Are there lessons for the Geneva Convention from the Supervision of Economic, Social and Cultural Rights: UN and Council of Europe Perspectives?

Jean Monnet Professor ad personamElspeth Guild (Radboud University Nijmegen and Queen Mary, University of London) and

Claude Cahn (RadboudUniversityNijmegen)

Introduction

The international community reveals contradictory approaches to supranational supervision in the form of complaints mechanisms in respect of international human rights and refugee obligations. On the one hand, there has been much discussion about supervision fatigue; the argument goes that states already find their reporting requirements too heavy which results in the failure to achieve them in a timely manner. The addition of further supranational obligations on states to defend themselves against individual or collective petitions is viewed in some quarters as potentially even more problematic. Such a line of reasoning continues that states are reluctant to cede what is perceived as sovereignty within the national realm over the adjudication of disputes with individuals regarding international rights.Examples of opinions and decisions by UN Treaty Bodies and regional human rights courts which have been unwelcome by state authorities are put forward in support of this position.

At the same time, however, new instruments and renewed commitment to international protection are also being negotiated, signed and ratified, including supranational complaints mechanisms. In this chapter we will considerthe development of new supranational supervisory mechanisms at the UN and the Council of Europe levels in the fields of social and economic rights, regarded by some as “sensitive” or difficult. The question which we will ask is whether there are lessons here which would be helpful for the UN Convention relating to the Status of Refugees (“1951 Geneva Refugee Convention”). Our objective is to look at developments in the field of economic, social and cultural rights and to seek to draw lessons for the future supervision options for the 1951 Geneva Refugee Convention standard setting in a similarly politically sensitive field.

This chapter examines the changing landscape of international supervision of the International Covenant on Economic, Social and Cultural Rights 1966(ICESCR) and of the European Social Charter 1961 and Revised Charter of 1996 (ESC). The ICESCR is part of the so-called International Bill of Rights,which comprises the Universal Declaration of Human Rights(1948) and the two major human rights Covenants -- the one oncivil and political rights (ICCPR) and the other being theICESCR. The two Covenants give legal voice to the rights set out in the Declaration. The ESC belongs to the Council of Europe system and is the sister treaty to the European Convention on Human Rights (ECHR). In the European context, these two treaties mirror broadly – although not exactly[1] -- the two international Covenants.

The two systems bear particular interest not least because on 10 December 2008 the UN General Assembly adopted resolution A/RES/63/117, which opened for signature and ratification an optional protocol to the ICESCR. This protocol creates an individual complaints procedure similar to that of the UN Human Rights Committee, as well as several other mechanisms for improved supervision of the treaty. In the European context, the ESC was provided with an optional protocol in 1995 which established a collective complaints procedure. The jurisprudence of the European Committee of Social Rights (ECSR, the body charged with adjudicating complaints under the Charter) is now sufficiently mature to reveal some of the contentious issues, including those relating to refugees and their treatment. Thus, as states sign and ratify the ICESCR optional protocol, they do so already with some advance information about how it is likely to work and where asylum related issues may arise. The decisions of states to sign and ratify the ICESCR optional protocol are taken in full knowledge of the possible trajectory of the field. We insist on this as it is important in the context of arguments about political will. Too often one hears the suggestion that a state would not have ratified an international treaty if it had been aware of the possible interpretation of its provisions which a Treaty Body has determined. In the European context, there is much rumbling of this kind in some quarters following, to name only one example, the European Court of Human Rights (ECtHR) decision in Al Sadoon[2]regarding the extraterritorial effect of the ECHR. Basically the ECtHR reaffirmed – this time with respect to the United Kingdom -- that state agents are subject to the state’s human rights obligations including when they are acting outside the sovereign territory of the state but within the jurisdiction of the state. However, the sustainability of this kind of complaint is questionable in light of the case study we present. This is one of the points which we will make in this chapter, and which is particularly important in the discussion of a supervisory mechanism for individual complaints under the 1951 Geneva Refugee Convention.

Accordingly, the questions we address in this chapter are:

  • What mechanisms are developed under the ICESCR for supranational consideration of complaints?
  • What does this indicate as regards appetite in the Global North for participation in such Treaty Bodies in respect of individual complaints systems?
  • What comparisons may be made with the ESC on the value of the complaint system for refugees?
  • What lessons can be learned from the most recent protocol creating an individual complaints mechanism for the ICESCR for the 1951 Geneva Refugee Convention, if any?

The ICCPR has been the most researched and discussed of the two Covenants not least because the rights are most clearly individual. Its first optional protocol, opened for signature in 1976 gives the UN Human Rights Committee the power to receive complaints from individuals aggrieved by state actions (or inactions) where those states have ratified the protocol and accepted the competence of the Committee for this purpose. There is a substantial body of opinions of the Committee on individual complaints many of which engage issues of asylum and protection (see elsewhere in this volume).

The starting place for the international protection of social rights is with the International Labour Organisation. Its 1919 charter included the objective of abolishing injustice, hardship and privation. A wide range of issues which are now contained in the ICESCR have also been the subject of ILO international standard setting particularly in relation to work and employment. However, when the ICESCR was negotiated, the right to full employment was not included not least because of US opposition. In the drafting of the ICESCR much emphasis was placed on the fact that the rights were already recognized in the constitutions of many of the members of the United Nations.[3] The international community chose to bring together economic, social and cultural rights in one covenant not least as the activities of the UN included all of these fields (such as the WHO, UNESCO, FAO, etc), but there was, at that time, no human rights treaty foundation in this area.[4]

The key rights contained in the ICESCR are:

  • The right to self determination (which as we will describe below presented particular problems in the negotiation of the Optional Protocol);
  • A prohibition on discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status in the delivery of rights under the Covenant (Article 2);
  • The right to work and to just and favourable working conditions (Articles 6 and 7);
  • Trade union rights (Article 8);
  • The right to social security and insurance (Article 9);
  • Protection and assistance to the family and in particular children (Article 10);
  • The right to adequate living standards, including housing, food and clothing, a non-exhaustive list (Article 11);
  • The right to enjoy the highest attainable standard of physical and mental health (Article 12);
  • The right to education (Articles 13 and 14);
  • The right to take part in cultural life (Article 15).

The central rights in the ESC (revised 1996) are:

  • The right to work, to just working conditions and to safe and healthy working conditions and remuneration (Articles 1-4);
  • Trade union rights and protection of workers’ representatives (Articles 5, 6 and 28);
  • Children’s rights to protection (Articles 7 and 17);
  • Women’s rights in employment (Article 8);
  • The right to guidance and training (Articles 9 and 10);
  • The right to protection of health, social security, social and medical assistance, and the benefit of social welfare services and to protection against poverty and social exclusion (Articles 11-14 and 30);
  • Rights for the disabled (Article 15);
  • The right of families to social, legal and economic protection (Article 16);
  • Rights for migrant workers and their families (Articles 18 and 19);
  • The right to non-discrimination including a right to equal opportunities and treatment for those with family responsibilities (Articles 20 and 27);
  • The right of workers to information, consultation and participation in the work place and in the event of collective redundancy (Articles 21, 22 and 29);
  • The right of the elderly to social protection (Article 23);
  • The right to protection on termination of employment or insolvency of the employer (Articles 24 and 25);
  • The right to dignity at work (Article 26);
  • The right to housing (Article 31).

As regards foreigners, the rights are limited to nationals of other parties to the ESC who are lawfully resident or working regularly on the territory of the state (but see below on the jurisprudence of the ECSR).[5] Although the scope of the two treaties is different, they cover ground which is sufficiently similar as to provide a framework for comparison as regards supranational supervision. In both cases, the rights engage sensitive issues either of foreigners in need of protection or the allocation of state resources.

Moving towards International Supervision in the UN

The UN Treaty Bodies have competence to consider individual petitions only where there is a power to do so in the treaty or where there is an optional or additional protocol, often adopted after the entry into force of the convention which establishes such a system.[6] Competences of this kind are now familiar under the ICCPR, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Convention on the Rights of Persons with Disabilities (CPRD) and the International Convention on the Rights of All Migrant Workers and Members of Their Families (CMW), although the latter two mechanisms are not yet fully operative. However, the ICESCR was not provided with such a protocol from its outset. While other UN human rights instruments acquired these supervisory mechanisms, evidence of a general agreement that such mechanisms improve state compliance, this was not the case for the ICESCR until 2008. One important reason for this has been a certain resistance to the idea that economic, social and cultural rights are justiciable.

There are a number of reasons for this. First of all, the rights are often seen – rightly or wrongly -- as collective in part or in whole.This has led to skepticism that rights such as work and social security related rights (Articles 6-9), living standards (Article 7), food distribution (Article 11), physical and mental health (Article 12), etc., can be individually adjudicated at international level. Secondly, the ICESCR requires states to use all appropriate means to achieve the rights contained in the ICESCR: Article 2 states, “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” It has been argued that language of this kind may not be as absolutely legally binding as, for example, the ban on torture; the argument as promoted especially in the United States, in particular, from the Reagan presidency onward, has run that the rights in the ICESCR are mere “aspirations” rather than hard rights.

Commentators, particularly in the Anglo American academic world, and particularly in recent years, have tended to be negative about the capacity of social and economic rights to be legally binding in ways in which an individual can access them. For instance, Aryeh Neier states, “The concern I have with economic and social rights is when there are broad assertions…of a right to shelter or housing, a right to education, a right to social security, a right to a job, and a right to health care. There, I think, we get into territory that is unmanageable through the judicial process and that intrudes fundamentally into an area where the democratic process ought to prevail.”[7] Similarly, Plant cited Hayek as his guide in the argument that wrongs need intentional acts to be justiciable, including, of course, reasonably foreseeable results. In distinction then, he considers that a duty in respect of social and economic rights falls on no one as responsible except as a duty to support the tax system or other aspects of provision of social and economic rights.[8] Sunstein argues against such “positive rights” on the grounds thatgovernments should not be compelled to interfere with free markets. “Some positive rights establish government interference with free markets as a constitutional obligation. For countries that are trying to create market economies [he is discussing new democracies in Central and Eastern Europe], this is perverse.”[9]

Nonetheless, this perspective has not stopped the development of legal thinking about social and economic rights, includingwithin the UN framework. Among other things, it has been observed that while proponents of civil and political rights as the only “real” rights are in the habit of discrediting economic, social and cultural rights as being heavily resource-dependant, in fact the costs of maintaining the pet apparatuses of proponents solely of civil and political rights – such as a fully functional legal system – are not negligible. The myth that safeguarding civil and political rights is cost-free is just that – a myth.[10] Further, there has been some very interesting work on ways to incorporate social and economic rights not only as embedded in national budget processes but also as part of wider strategies including judicial enforcement.[11]

Among other things to rise to the challenge of demonstrating that economic, social and cultural rights are in fact justiciable, the recent two decades have seen the significant development of a conceptual apparatus around economic, social and cultural rights. This has taken place heavily – although not solely – around the UN Committee on Economic, Social and Cultural Rights (CESCR Committee) and in particular in its general comment documents.

An early first move in this regard takes place in General Comment 3 (1991), in which the CESCR Committee set out to define States’ Parties obligations under the ICESCR. These, it deemed, were twofold. First of all, there is the "undertaking to guarantee" that relevant rights "will be exercised without discrimination...." Secondly, States Parties are obliged "to take steps" or "to adopt measures", “within a reasonably short time after the Covenant's entry into force for the States concerned”. Such steps should be “deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant”. General Comment 3, thus, set the stage for the development of a framework for positive obligations on the state in an economic, social and cultural rights framework, a move which in principle also signals the possibility of failings or violations of the law of the treaty concerned.

In the decade that followed, the CESCR Committee and its intellectual supporters elaborated this nascent framework considerably. By the time of the Committee’s General Comment 15 on the right to water, a mere twelve years later, this modest conceptual move had become a fully developed series of interpretive procedures. A summary of these follows here:

  • An assessment of adequacy, based on: (1) availability; (2) quality; and (3) accessibility, which is itself subdivided into (a) physical accessibility; (b) economic accessibility; (c) non-discrimination; and, (d) “information accessibility”;
  • “Special topics of broad application”, namely, equality and non-discrimination,[12] the meaning of which in an economic, social and cultural rights context is parsed in detail and by category of vulnerability;
  • “General legal obligations”, including the obligation “to take steps” identified in General Comment 3 and defining the harm of retrogression; “steps” in this regard include “legislation, policies and strategies”, as well as the formulation of “indicators and benchmarks”;
  • “Specific legal obligations”, namely, obligations: (1) “to respect”; (2) “to protect”; and, (3) “to fulfil”; this tripartate parsing of the aspects of states obligations with respect to any individual economic, social or cultural right has the benefit of providing a clear prism through which failings or violations can be assessed;
  • “Core obligations”, specified in detail depending on the right concerned;
  • “Violations”, meaning which acts or measures would constitute an outright infringement of the right. These are defined in terms of violations of obligations to respect, protect and fulfil, as noted above.
  • The requirement to provide “remedies and accountability”;
  • The obligations of actors other than States.

The conceptual framework advanced in the development during the 1990s and 2000s of the Committee’s general commentary on the rights in the Covenant arguably is among the most important factors preparing the ground for moving toward a complaints mechanism under the ICESCR. In effect, it provides the foundations for answering critics claims that there is no possible way to assess economic, social and cultural rights in a justiciable or adversarial setting.