Cheffi Brenner, Michel Doucin, Nantes, January 2006
Should « international cooperation » under the Covenant be understood as an obligation for rich countries and aid agencies to finance the additional cost of implementing new policies inspired by a committee examining individual or collective communications?
This question has been the subject of hot debate for several years, fuelled by the rather vague wording of the Covenant.
Agreement emerged during the seminar on a few key ideas that help to identify what the wording does not mean (I) and how it can be interpreted positively (II).
I. What the Covenant does not mean
This kind of question arises from two complementary and extremist misconceptions about “international cooperation” as regards CESCRs. One of them considers that developing countries have no resources to comply with the obligations to respect, protect and fulfil the realisation of ESCRs, and therefore should not do anything about them. The other misconception is that this supposedly absolute incapacity should be replaced by financial support from developed countries. The notion of international cooperation appears in several articles of the ICESCR, but its most comprehensive role is outlined in Article 2.1. These two misconceptions tend to support the view according to which, if no consensus among countries is to be reached, Article 2.1 should be left out of the Protocol, so that the Committee would not have to deal with it. […] However the omission of Article 2.1 from the Protocol would mean the absence of any comprehensive consideration of interstate relations in the system of protection of ESCRs. In a context in which most policies have to take account of international law, and in particular international commercial law, this would be a great loss. The body of law that is being developed in the discussions within the WTO would then have no clear international legal counterpart concerning the obligations of states about ESCRs in their relations with each other.
The omission of Article 2.1 would also be a great loss for countries whose economic, social and cultural policies are negotiated with international institutions, such as the IMF and the World Bank. The inclusion of Article 2.1 would entail an obligation for developing states to comply with its obligations concerning ESCRs in those negotiations also. Its omission would mean that the Committee could not issue recommendations, at the implementation and legal levels, concerning the character of international cooperation that those negotiations involve.
Finally, the omission of Article 2.1 would make it more difficult for a citizen of a State to be able to ask the Committee to issue recommendations aiming at rendering another State accountable for a violation of his or her ESCRs. This incapacity is particularly dangerous in a context in which multinationals based in developed countries manage to impose policies that violate ESCRs on weak States. The citizens of those weak States should be able to demand that the legislation of the developed countries in which multinationals are based forbids those multinationals to violate ESCRs in other countries in the same way that it forbids them to do so in the home country. This would also deter multinationals from using relocation as a means of strengthening their positions in developing countries.
In a context of globalisation, a comprehensive approach to the realisation of ESCRs cannot afford to omit Article 2.1. The Nantes Seminar was thus crucial in establishing a general consensus on this point.
The formulation of Article 2.1 forbids a reading in which a State could be allowed not take measures individually to realize ESCRs. The main burden lies on each individual State. (Horacio Ortiz)
A third misconception can be corrected by bearing in mind that no person may give a commitment on behalf of third parties and that the Covenant, like any international treaty on human rights, first and foremost governs relations between States and their citizens. Article 2.1 must therefore be taken as meaning international assistance and cooperation with regard to the commitment made by States parties to their citizens. As States have absolute obligations with regard to the duty to respect and protect economic, social and cultural rights, it may be deduced that insufficient international assistance and cooperation cannot be invoked as grounds for non-fulfilment. Financial difficulties do not moreover justify violation of economic, social and cultural rights (Johanne Levassseur). Paragraph 10 of the Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in June 1993 said on that subject: “While development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights”. Ultimately, then, assistance and cooperation should be taken into account in assessing States’behaviour only insofar as they improve social and cultural policies in the countries concerned. International cooperation is not therefore a prerequisite to which developing countries that have ratified the Covenant may subordinate their essential obligations.
The notion of “international cooperation » may be clarified by interpreting it in the context of each of the three obligations on States with regard to economic, social and cultural rights.
Respect : All legislation should refrain from harming the realisation of ESCRs. This also applies to international cooperation. Therefore, the Committee should be able to audit the legislation being introduced and the policies that are carried out, and demand that States should be careful, when introducing legislation according to negotiations with the IMF or the World Bank or within the WTO or bilateral or regional negotiations, that it does not harm the realisation of ESCRs. The clause on international cooperation would thus bring the ESCRs into inter-state relations, setting a coherent, reasonable and legitimate set of fundamental standards that should not be breached. This does not imply a financial transfer from developed countries to developing ones, but the harmonisation of national laws and international agreements according to the respect of ESCRs.
Protect: Any new legislation concerning economic, social and cultural issues should bear in mind the obligation to progressively realise ESCRs. There is no unique model of development or unique way of realising ESCRs. But any development aid programme, like any inter-state agreement, and particularly commercial agreements and laws concerning companies under foreign jurisdictions, should aim at such realisation. The ICESCR offers a consistent and flexible framework for including any international cooperation within the project of realising ESCRs. This should allow the Committee to help developing countries not to overlook the realisation of ESCRs in agreements imposed on States that particularly need international cooperation.
Fulfil : The question we are answering here seems to imply that the obligation to fulfil should be financed exclusively by developed countries. This would mean that a developed country could be held accountable for not fulfilling the realisation of ESCRs in a developing country. It would nevertheless be very hard to define, technically, which country should help which other one. Such accountability would be impossible at a general level. In this case the quasi-juridical status (of the Committee) could not immediately be regarded as that of a body with condemnatory powers. This could change with time as the Committee’s real spheres of action develop through practice, as has been the case with the Committee for Human Rights. […] The obligation to fulfil primarily concerns each individual country. But it also concerns any other country from which funds are transferred, which the Committee could audit and about which it should be able to issue recommendations. Again, the interpretation of Article 2.1 should be not so much quantitative as qualitative. (Horacio Ortiz)
“If a complaint mechanism were set up, the Committee would have to examine, through actual cases, whether the donor State, in implementing cooperation, had violated the complainants’rights through its action or inaction. It would have to identify a causal link between the action or inaction of the State in question and the alleged violation, bearing in mind that the victim must have exhausted all internal means of redress beforehand.” (Magdalena Sepulveda)
It has been pointed out that the Convention on the Rights of the Child also refers to international cooperation, which has been interpreted in this context as a collective obligation that does not provide grounds for an appeal directed specifically against a particular State. The idea that emerged is that it should be given the same scope in the context of the Convention on Economic, Social and Cultural Rights.
A general consensus emerged during the seminar that « international cooperation » should not be understood as an obligation for rich countries and aid agencies to finance the additional cost of implementing new policies inspired by a Committee examining individual and collective communications.
That is already the Committee’s interpretation. “According to the ESCR Committee’s current interpretation, international cooperation should not necessarily be taken to mean an obligation to provide international aid. The inclusion of Article 2.1 [in an optional protocol] would not mean that an individual or group would be able to bring a complaint against a developed country in order to oblige it to provide financial or technical aid to another country.” (Magdalena Sepulveda)
II. Possible relevant interpretations of the cooperation principle
Discussions during the seminar also sought to put a positive interpretation on the reference to international cooperation. Several proposals were put forward and considered with interest.
“In order to understand why the inclusion of Article 2.1 in the Protocol would not mean that the additional costs of any new policy introduced by a developing country according to the recommendations of the Committee to comply with its obligations concerning ESCRs should be assumed by international cooperation, it is important to bear in mind that this article should be read in the context of the Covenant as a whole, i.e. in regard to the notion of progressiveness and to the particular obligations of States to respect, protect and fulfil. As with all other measures, the support of ESCRs through international cooperation should be progressive, according to available resources. The adoption of an Optional Protocol which includes Article 2.1 would therefore not mean a massive transfer of resources from developed countries to developing ones.” (Horacio Ortiz)
The opinion was also expressed that “international assistance and cooperation » as mentioned in the Covenant should be seen above all as a much more qualitative than quantitative concept. States should concentrate on the quality of the aid they grant much more than on the quantity. Without quality, increasing the quantity of aid will not necessarily ensure that economic, social and cultural rights are better guaranteed. This was acknowledged by the ESCR Committee in its General Comment No. 3 of 1990, in which it asserts that public development aid does not always guarantee a better enjoyment of ESCRs by individuals. (Sigrun Skogly)
The question was raised whether, in west African countries in particular, there might not be a greater need for technical support in order to establish the right conditions for the realisation of economic, social and cultural rights, rather than for a kind of judicial mechanism that would be powerless on its own to create the conditions for effective enjoyment of ESCRs. (Vincent Zakane) International cooperation could thus possibly be restrictive with regard to expert input and impact studies relating to the obligation to protect when they require technical skills that are not available in the country or only available at an exorbitant cost.
Several participants suggested that the notion of cooperation should be understood more specifically as the response that would be given to the need for expertise felt by the State concerned and the ESCRs Committee when they had to examine a communication from a complainant criticising his or her government for not having completely discharged its duties under the Covenant. Concerning the right to food, for example, one of the most useful features of international cooperation could be to help States analyse food shortages in all their complexity so as to help them come up with solutions. If that were to be the case, the Committee would need a power of investigation. (Michael Windführ)
International assistance should also cover implementation, following the example of the ILO. (Emmanuel Decaux)
Another aspect of cooperation could be to help States considering policies liable to have side-effects that infringe the rights of part of the population (its own or a neighbour’s) to carry out systematic and consistent impact studies.
Advances in the recognition of economic, social and cultural rights are closely linked to the definition of objective indicators that measure both the extent of and obstacles to their realisation, in particular by precisely identifying direct and indirect violators of ESCRs. In that respect the millennium goals were an interesting development, albeit limited and ambiguous insofar as they maintain confusion between obligations to provide development aid and the duty to respect rights. It was felt that the scientific community should work on identifying evaluation methods which could be used to assess quality of governance as a factor in the realisation of economic, social and cultural rights, particularly in order to refute the argument often put forward that a lack of resources is the main obstacle to the realisation of ESCRs in developing countries.
The ultimate effect of international cooperation should be to encourage reform of the system with the dual aim of giving greater consideration to the precautionary principle and ensuring greater transparency. (Emmanuel Decaux)