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Cheffi Brenner, , Nantes, January 2006

How can an international procedure be put in place in order to receive individual or group communications after all domestic remedies have been exhausted, when there exists an intermediate regional level?

In Europe, America, and Africa there exist regional mechanisms for receiving, under more or less restrictive conditions, communications from individuals or groups concerning economic, social and cultural rights. Must it be considered that the principle of exhaustion of all remedies available at lower levels before going before a universal body should apply ? This question was asked by several State representatives and by regional institutions considering, on the one hand (negative effect) the risk of prolonging recourse procedures and the risk of confusion such recourse on a regional level might entail and, on the other hand (positive effect) the filtering function and informational role such regional recourse might fulfill.

As a basic principle, it was pointed out that “from the perspective of the international community the Charter of the United Nations recognizes the role of regional groupings in regional mediation. Indeed, article 52 affirms that “no disposition of the present Charter rules out the existence of regional agreements o organizations which, dealing with the maintenance of international peace and security, may be used to undertake a regional action, provided these agreements and these organizations as well as their activities are compatible with the aims and the principles of the United Nations.” (Didier Agbodjan).

Moreover, it has been recognized that the articulation between the different geographical levels can overcome the risks involved (II) and produce interesting positive effects (I).

I. The existence of regional mechanisms: a source of mutual enrichment in the area of jurisprudence as well as a filter

Established regional mechanisms produce a body of jurisprudence which takes into consideration geographical, cultural, and other constraints affecting States when they implement a policy of rights. Thus these Courts and Commissions participate in a useful harmonization of rights at the level of the relevant political and socio-economic space, in areas where the differences between the different levels of protection can be enormous. For example, the Supreme Court of Ghana considers that the economic, social, and cultural rights contained in the constitution, except for any disposition to the contrary, have the force of law, whereas for the Supreme Court of Zambia no economic, social or cultural rights have the force of law and cannot be invoked before a court of law (Michelo Hansungule).

Concerning the evaluation of policies in different sectors as regards economic, social, and cultural rights, regional mechanisms also favor comparisons among various “good practices”, making clear in each case those which are the most effective, an exercise which can only contribute to a better guarantee and implementation of economic and social and cultural rights.

Moreover, regional mechanisms have been adopted in mutual emulation, a fact which has promoted the progressive expansion of their jurisdictions to the totality of economic, social and cultural rights. This is all the more useful in view of the fact that the universal consecration of economic, social and cultural rights has no influence in certain regional systems. “Thus the African Charter on Human and Peoples’Rights, for example, consecrates the indivisibility of the rights of the individual and of peoples, but does not recognize a specific right to social security. From another perspective, the European Social Charter does not accept the right of individual recourse, even if, in certain cases, the judges of the European Court, through an original and interpretative jurisprudence, have protected social rights that are not directly guaranteed.” (Didier Agbodjan)

For these reasons, the examination of communications at the regional level, prior to the universal level, seems particularly relevant. The protocol could help for instance the African Commission on Human and Peoples’Rights to clarify african law and its own effort of interpretation. (Paul-Gérard Pougoué)

Nevertheless, the creation of a general international mechanism appears necessary to correct the differences in interpretation which become apparent from one geographical region to another and might call into question, in the long term, the universality of economic, social and cultural rights. As regards the right to social security, for example, it can be hoped that a universal arbitration on the basis of concrete cases will contribute to a clarification (at least from a judicial point of view) of the state of rights in certain aspects of social protection. (Didier Agbodjan)

Universal arbitration reinforces the continuity between the United Nations and the regional levels, in a process of mutual enrichment which promotes the elaboration of a universal culture of rights. The rule regarding the exhaustion of internal levels of recourse should be interpreted so as to allow recourse to a universal level only after using the available regional mechanisms, except if these are not available because of limited access compared to universal provisions.” (Didier Agbodjan)

It also promotes (see below) a reduction in the number of communications that will be heard by virtue of the universal procedure, and thus reduces the risk of a bottleneck on the universal level.

II. A mechanism of articulation that can overcome the different technical problems that threaten it

The first problem to overcome is the problem of identifying the existence of competing procedures already involved at the regional level. The solution is to establish systems for the exchange of information.

The second problem is the risk of the excessive prolongation of the procedure detrimental to the victims : they can be irreparably affected by the violation to which they have been subjected if redress is implemented too late (for example, in the area of health) ; the possibility of redress may become impossible (after, for example, the construction of an infrastructure in the place of former habitation or on farming land taken from its owners, after the flooding of a village, etc.). One of the measures in the Optional Protocol proposed by the Committee in 1997 could be taken up again, and provides that cases could nevertheless be examined in situations in which the international procedure of investigation or settlement appears abnormally long. This examination should, obviously, include a study of the possibly urgent character of the case from the point of view of the victim.

A different idea, which could constitute a radical solution to the problem, has also been suggested : “It is not desirable that the Committee on Economic, Social and Cultural Rights appear as a court of appeal for decisions made, for example, by jurisdictions or other regional courts that have jurisdiction for individual complaints as regards provisions elaborated in the same manner and similar to those of the Covenant on Economic, Social, and Cultural Rights. It would be more advantageous, not only for reasons of procedural efficiency but also to ensure legal integrity and limit the risk of contradictions between positions taken on the same legal questions by different international jurisdictions, that the individual who has a choice of presenting his complaint before different international jurisdictions, be required to make a choice of one only, which commits him definitively to whatever decision will be made. As regards points where divergences of interpretation persist, and which cannot be explained only by differences in the formulation of the texts to be applied, it will be the role of the different jurisdictions concerned to achieve a harmonization, in a gradual elaboration of a “jus commune” in the international law on human rights, through an ongoing dialogue among the different jurisdictions which, in fact, to a great extent, has already begun.” (Olivier de Schutter)