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Zambia Law Journal: A critical analysis of the international supervision mechanisms

Whose rights are they anyway? A critical analysis of the international supervision mechanisms for economic, social and cultural rights



Thoko Kaime*


‘Human rights are precisely the rights that the individual may invoke against the claims of those who exercise power over him, and which they only too often assert in the name of the people.’

1 Introduction

The perceived differences between civil and political rights on the one hand and economic, social ad cultural rights on the other, did not only result in the division of the rights contained in the Universal Declaration of Human Rights into the International Covenant on Civil and Political Rights (‘the ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘the ICESCR’ or ‘the Covenant’), but also resulted in the provision of radically different supervision mechanisms for the two instruments. While the ICCPR was endowed with a compulsory periodic reporting procedure, an interstate complaint procedure, a friendly settlement procedure as well as an individual complaint procedure incorporated in a separate Optional Protocol, the ICESCR was only bequeathed with a periodic reporting procedure.
The evident paucity of supervisory mechanisms both in quality and quantity has led scholars to question the effectiveness of a supervision system which entirely entrusts governments with the responsibility for reporting on themselves, once every five years, subject to soft questioning for a few hours by the Committee on Economic, Social and Cultural Rights (‘the Committee’), which is elected by those very governments, and with almost no likelihood of serious censure or real sanctions. Investigations of these questions have found the system fundamentally wanting. Some critics have suggested in-depth reform of the supervision system whilst others have concluded that the system is so ineffective that it should be abolished.
This analysis argues that the effectiveness of any human rights supervisory system is directly proportional to its ability to ensure the protection of the rights concerned to individual right-holders. Based on this premise, it is argued that the mechanism enshrined in the Covenant is not effective because of inherent structural deficiencies which disable it from realising the rights guaranteed in the Covenant for individuals. However, the system has attained a considerable level of effectiveness, thanks to a combination of several conceptual and practical developments which had not been envisaged (or intended) in the Covenant. Nevertheless, the system is not truly effective, as it still remains largely abstracted from individuals. Thus, whilst the effectiveness of the supervision mechanism has progressively developed, there is still a lot of room for improvement.

2 Structural deficiencies in the protection mechanisms under the ICESCR

Protection mechanisms and structures under the ICESCR are beset with several structural and normative weaknesses which include the erroneous conception of economic, social and cultural rights, the unsound formulation of the rights and obligations under the Covenant and an ambiguous means of implementation.

2.1 Erroneous conception of the nature of economic, social and cultural rights

The ‘ineffective and unsophisticated’ mechanism, for monitoring the implementation of the ICESCR was informed by certain entrenched albeit erroneous assumptions regarding the nature of economic, social and cultural rights. It was felt that economic, social and cultural rights, as distinct from civil and political rights, were positive rights requiring state intervention for their realisation, and were to be achieved programmatically and progressively. Consequently, it was considered that such ‘rights’ could not be invoked before and applied by a court of law or a ‘similar quasi-judicial entity.’
In a nutshell, economic, social and cultural rights were not considered ‘hard’ legal entitlements but rather were domestic concerns of resource allocation which should not be subjected to judicial or close international ‘interference’. They were more ‘objectives to be attained rather than rights to be protected.’ Consequently, it was felt that the weak supervision mechanism endowed to the Covenant was sufficient for the monitoring of economic, social and cultural rights.

2.2 Formulation of economic, social and cultural rights in the ICESCR

The erroneous conception of economic, social and cultural rights was translated into the formulation of the state obligations in the ICESCR. Whereas parties to the ICESCR’s twin, the ICCPR ‘undertake to respect and to ensure to all individuals within [their] territory and subject to [their] jurisdiction the rights and recognised in the Covenant’; parties to the ICESCR ‘undertake to take steps…to the maximum of [their] available resources, with a view to achieving progressively the full realisation of the rights recognised in the Covenant.’
As has been often pointed out, the former is a dogmatic statement of a state’s responsibilities to individual people ‘whereas the latter is a laissez-faire statement whereby the existence of the right is dependent upon the existence of resources.’
Unfortunately, this formulation which has been described as ‘a difficult phrase-two warring adjectives describing an undefined noun’ and as being ‘of such a nature as to be legally negligible’ justified the evidently half-hearted international supervision system espoused by the Covenant. There was no need for stringent supervisory mechanisms and structures since all that would be examined was the sufficiency of legislative and administrative programs.
Further, unlike the general formulation of rights in the ICCPR which clearly and unambiguously bestows entitlements upon individuals by stipulating that ‘[e]veryone shall have the right to…’ and ‘[n]oone shall be…’, the ICESCR resisted this approach and instead, general phrases such as ‘[t]he States Parties undertake to ensure the right to…’ were relied upon.
Thus, the formulation chosen was not only very weak but also militated against the promotion and protection of economic, social and cultural rights. It bolstered and propped the argument that the normative content of these rights are vague and opaque and provided tangible justification for a weak supervisory system.

2.3 Method of implementation

State parties to the ICESCR undertake to submit reports at intervals determined by the Economic and Social Council, on the measures taken by states parties in their national legislation, administrative procedures and practices and on the progress made in achieving the observance of the rights contained in the Covenant. The reports may contain factors and difficulties affecting the degree of fulfilment of the obligations under the Covenant.
The reports are to be submitted to the Secretary-General of the UN who is required to transmit them to ECOSOC ‘for consideration. ECOSOC may in turn forward the reports to the Commission on Human Rights ‘for study and general recommendations or for information’ or may submit reports and recommendations to the General Assembly of the United Nations, or may bring to the attention of the other organs of the United Nations, their subsidiary organs and specialised agencies any matters arising out of the reports which might contribute to the decisions regarding international measures to ensure the progressive implementation of the Covenant.
Thus, the system outlined in the ICESCR is unclear as to the nature, purpose or degree of supervision to be given or the extent or nature of scrutiny which the bodies mentioned should involve themselves and does not clearly identify the body which is to have central responsibility for supervision. Thus, although ECOSOC is mandated to ‘consider’ state reports, the Commission on Human Rights may similarly ‘study’ the reports and make general recommendations.
Further, while the Covenant provides for the submission of reports and their consideration, it does not stipulate their periodicity, form or content. More significantly, no institution is bestowed with the authority to interpret the Covenant in a manner that binds states and states are merely under an obligation to submit reports, any further participation in the process is entirely voluntary.
It is clear, then, that the system for the supervision of the ICESCR is normatively vague and imprecise that it cannot be expected to enhance significantly (if at all) the protection of economic, social and cultural rights at the international law level in general, and at the domestic level in particular.


2.4 The impact of the structural deficiencies on the protection of economic, social and cultural rights

The normative deficiencies that have been discussed above led to the legitimisation of the belief that that economic, social and cultural rights were somehow less than legal rights in the strict sense. This belief manifested itself in a number of specific problematic challenges to the protection and promotion of economic, social and cultural rights at the international level.
In the first place, the structural shortcomings contributed to a general lack of conceptual clarity which only served to further exacerbate the weakness of the supervision system. Secondly, the supervision framework also served to provide support to the claim that that economic, social and cultural rights were exclusively of a programmatic or directive nature and consequently not immediately realisable leading to a general ambivalence of many governments to economic, social and cultural rights and the supervision system itself. Since governments did not take the rights themselves seriously, it made was almost inevitable that they would not to take the supervision system itself seriously.
Thus, the supervision mechanism as conceived in the ICESCR is not conducive to the enhanced protection of economic, social and cultural rights and its effectiveness is constrained by entrenched assumptions and provisions which do not assist the realisation of the rights by individuals.
However, developments in human rights discourse and practice, and in the activities and procedures of the Committee have served to ameliorate some of the structural and normative deficiencies and thereby enhanced the efficacy of the mechanisms for the protection and promotion of economic, social and cultural rights at international law. We now consider these issues and how they have enhanced the protection of economic, social and cultural rights at international law.

3 Overcoming the deficiencies

3.1 Human rights discourse

Incisive academic scholarship on the nature of human rights generally, and economic, social and cultural rights in particular has effectively dispelled the fundamental misconceptions which informed the division of the rights contained in the Universal Declaration of Human Rights. It has been demonstrated that all rights, irrespective of their ‘category’ generate at least three levels of obligations, namely the duty to respect, protect and fulfil. Analysis of economic, social and cultural rights on the basis of this typology has served to elevate them from a precarious existence as ‘social aspirations’ into fully-fledged rights capable of adjudication by judicial forums.
Similarly, the Limburg Principles which were developed by experts, academics and practitioners in the field of human rights served to provide more clarity on the Covenant and are believed to ‘reflect the present state of international law’ on the conception of economic, social and cultural rights. In a manner similar to the tri-partite typology of duties, the Principles confirmed that economic, social and cultural rights were not merely benevolent social programs but rather justiciable rights which states were required to ensure and protect just like civil and political rights.
The Limburg Principles served as a point of departure for the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. The Guidelines affirm the justiciability of economic, social and cultural rights and ‘are designed to be of use to all who are concerned with understanding and determining violations of economic, social and cultural rights and providing remedies thereto, in particular monitoring and adjudicating bodies at the national, regional and international level.’
Thus the theoretical basis for according a weak supervision system to economic, social and cultural rights has been demonstrated as fallacious and that, consequently, economic, social and cultural rights require supervision mechanisms that are at least as effective as those accorded to civil and political rights since they too are justiciable rights.
The Committee has drawn inspiration from this rendering of the nature of economic, social and cultural rights and has improved the structures and mechanisms for supervision through its practices and procedures.

3.2 The practice and procedures of the Committee

In order to enhance the efficacy of the reporting system under the ICESCR, the Committee has adopted several practices and procedures which are not provided for in the Covenant or in the ECOSOC resolution establishing it. These include the adoption of general comments, the formulation of concluding remarks at the end of state report examination, and the adoption of a violations approach in the execution of its supervisory role.

3.2.1 General comments of the Committee

In order to enhance the normative development of the Covenant, the Committee has adopted the practice of producing documents known as general comments in which it authors its understanding of both substantive and procedural aspects of the Covenant and its perception of difficulties facing states in implementation.
The overt aim of general comments is not merely to provide the Committee with a tool for evaluation to assist states in the promotion and implementation of economic, social and cultural rights. Thus, the general comments have served to flesh out the normative content of the various rights and obligations in the Covenant and enhanced their recognition and protection at international law in ways not originally envisaged under the Covenant. This procedure has informed and has been supplemented by the system of concluding observations.

3.2.2 Concluding observations of the Committee

After the consideration of a state report, the Committee makes concluding observations in which it lays out the principal areas of concern and advances any suggestions and recommendations for improvement. The Committee has innovatively used this procedure to request states to carry out specific measures in order to comply with their obligations under the Covenant. These measures have included urging the adoption of new legislation, the repeal of legislation, encouraging the implementation of legislation, recommending the substantive provision of rights or the taking of specific policy measures.
Thus the Committee has been able to use this procedure to accord more effectiveness to the enforcement of economic, social and cultural rights and its concluding observations have sometimes achieved a level of analysis normally associated with judicial bodies.

3.2.3 Incorporation of a violations approach

The fascination by academics with adopting a violations approach to the protection and enforcement of economic, social and cultural rights did not pass over the Committee. It has adopted the approach in the examination of state reports and has made determinations that some state parties are in violation of their obligations under the Covenant and requested the states concerned to take immediate remedial measures.
The Committee has thus pushed the reporting mechanism beyond what is explicitly contained in the Charter and has extended the mandate given it by ECOSOC, namely ‘assist in the examination of state reports.’ These innovations undoubtedly have enhanced the effectiveness of the supervisory mechanism.



4 Assessment of the effectiveness of the supervision mechanism

It may be concluded that the innovations discussed above have ameliorated to a considerable extent the weaknesses stemming from the erroneous conception of economic, social and cultural rights, the weak formulation of the rights in the Covenant and given life to an otherwise dead supervision system. These processes have thus served to lessen the negative impact of the structural deficiencies on the protection and promotion of economic, social and cultural rights.
However, these outstanding innovations cannot be expected to surmount the problems inherent in a system which is ‘essentially grounded on self-criticism and dependent almost entirely upon good faith.’ Thus, problems such as the failure of many states to present reports on time or at all, or the frequent presentation of poor quality report, or failure by states to follow the reporting guidelines, and the refusal by most states to engage in introspection through the reporting process and divulge particular problems or hurdles cannot be expected to be solved by innovations in discourse or procedure.
Consequently, whilst one must accept the tremendous input and impact that developments in both theoretical and procedural aspects of economic, social and cultural rights have achieved, the supervision still remains bogged down by the weaknesses inherent in relying solely upon state reporting. Thus, there is still room for improvement through the adoption of radical and complementary procedures that ensure greater interaction between the supervision mechanism and the people who are entitled to the enjoyment of the rights contained in the Covenant. The next section is devoted to this enterprise

5 Suggestions for further improvement

Despite the improvements alluded to above, the supervisory system still remains abstracted from individuals-the real beneficiaries of economic, social and cultural rights. There have thus been suggestions of adopting an optional protocol to allow for individual complaints.
The Committee itself has been at the forefront in agitating for an optional protocol providing for an individual complaints procedure and has expressed the need for such a procedure as follows:

The international community has long recognised the desirability of providing individuals with the possibility of seeking redress in instances where they consider their human rights to have been violated…Accordingly, and in recognition of the fact that many of the principal international human rights treaties already have such procedures, the Committee believes that there are strong reasons for adopting a complaints procedure in respect of economic, social and cultural rights recognised in the Covenant.

There are several benefits for such a procedure. First, a complaint procedure can ‘allow real problems confronting individuals and groups [to] come alive in way that can never be the case in the context of the abstract discussions that arise in the setting of the reporting procedure. Further, such a complaint procedure would allow for a more extensive and more in-depth framework of inquiry with respect to a specific case. Thirdly, the existence of an international forum to address alleged violations of economic, social and cultural rights would prompt states to ensure the existence of more effective remedies at the domestic level and generally would lead to greater interest understanding of the Covenant and economic, social and cultural rights.
In a nutshell, a complaints system would go further in the supervision mechanisms by bringing the protection of economic, social and cultural rights at international level closer to the bearers of the rights and thus enhance the quality and quantity of supervision available.
Secondly, the impetus and impact of the reporting system would be enhanced if the system made more use of information technology. Electronic submission and examination of reports would increase speed and efficiency and most importantly would subject the process to more rigorous accountability and transparency since the process would be a truly public one. Such an innovation would enable individuals to participate in the reporting system by putting the reports to scrutiny and providing useful information to the Committee.
Lastly, the effectiveness of the system could be enhanced by more intensive and systematic follow-ups of the Committee’s pronouncements and recommendations made in its concluding observations. Prompt follow up would ensure the realisation of economic, social and cultural rights by individuals whose rights have been violated. Innovative general comments or ‘violations-approaches to state report examination’ do not mean much if the Committee must wait for five years to determine whether the states concerned have complied with its determinations or recommendations.
These suggestions for improvement share a common characteristic: they attempt to enhance the effectiveness of the supervision mechanisms and structures by ensuring the realisation of economic, social and cultural rights by individual right-holders. It is submitted that this is the direction in which the system should develop.

6 Concluding observations

Significant strides have been made in improving the supervisory mechanism for economic, social and cultural rights at international law. From a curiously unsophisticated and ineffectively ambiguous mechanism, several developments which were not foreseen when the Covenant was adopted have served to rescue economic, social and cultural rights from marginalisation and accord them enhanced protection.
However, the system still remains largely abstracted from individuals, the real beneficiaries of economic, social and cultural rights. So, whilst one must not dismiss these significant developments, the potentialities of the international system must not be overplayed either. It is unlikely that the Committee’s pronouncements in general comments or concluding observations will bring food to the hungry merely because the Committee says they are entitled to that.
Unless states are willing to respect, protect, promote and fulfil economic, social and cultural rights at home, and thus bring supervision mechanisms close to the right-holders, innovative developments in legal discourse, general comments or concluding remarks will not do much to make these rights a reality for individuals.






 

 


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