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 personam Elspeth Guild (Radboud University Nijmegen and Queen Mary, University of London) andClaude Cahn (Radboud University Nijmegen)

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 consider the 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 on civil and political rights (ICCPR) and the other being the ICESCR. 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 exactly1 -- the two international Covenants.

1 To name two examples, the European system includes a right to the peaceful enjoyment of one’s possessions (Article 1 of the first Protocol to the European Convention) not found in the international treaties; the right to education appears in Europe’s predominantly civil and political rights treaty (it is Article 2 of the first Protocol to the European Convention), but is a social right under the international Covenants.

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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 Sadoon2 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). 2 Al-Sadoon and Mufdhi v United Kingdom 2 March 2010 (application number 61498/08).

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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);

3 Steiner, H, P Alston & R Goodman International Human Rights in Context OUP, Oxford 2007. 4 P Alston and G Quinn ‘The Nature and Scope of States Parties’ Obligations Under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 H.R.Q. 156 – 164.

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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

5 More generally, see G de Burc and B de Witte Social Rights in Europe OUP, Oxford, 2005.6 In the case of the recently adopted International Convention on the Rights of Persons with Disabilities, the relevant Optional Protocol was adopted concurrently with the substantive treaty.

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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 that governments 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, including within 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.

7 Neier, A ‘Social and Economic Rights: A critique’ quoted in Steiner et al supra p 283. 8 Plant R ‘Social and Economic Rights Revisited’ 14 Kings College L J (2003) 1.9 Sunstein C, ‘Against Positive Rights’ East Eur Constit’al Rev 35 (1993).10Palmer, E Judicial Review, Socio-economic Rights and the Human Rights Act Hart, Oxford, 2007. 11 Harvey, C. & Rooney, E ‘Integrating Human Rights? Socio-Economic Rights and Budget Analysis’ [2010] 3 EHRLR 266 – 279; Nolan, A & Dutschke, M ‘Article 2(1) ICESCR and States Parties’ Obligations: Whither the Budget?’ [2010] 3 EHRLR 280 – 289; Fredman, S ‘Positive Duties and Socio-Economic Disadvantage: Brining Disadvantage onto the Equality Agenda’ [2010] 3 EHRLR 290 – 304.

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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.

12 The CESCR Committee examined non-discrimination under the ICESCR in detail in its General Comment 20 (2009). In General Comment 20, under ‘other status’ the Council specifically added disability, age, nationality and – for the first time in the UN system – sexual orientation. Regarding nationality, it states that nationality should not bar access to Covenant rights, in particular, that “all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant applies to everyone including non-nationals, such as refugees, asylum seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.”

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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.

Supranational Supervision of Social Rights in the Council of Europe Framework

The development of the ICESCR justiciability framework was also, of course, greatly assisted by the fact that not fewer than three regional human rights systems – the African, Inter-American and European ones – were already involved in supranational adjudication of economic, social and cultural rights claims, with seemingly far less difficulty than the critics of the project were warning. Space considerations preclude full treatment of all three of these systems; the Council of Europe’s European Social Charter collective complaints mechanism is reviewed below as exemplary.

The European Social Charter Collective Complaints Procedure is primarily set out under a 1995 Additional Protocol to the European Social Charter. It has thereafter been included in the Revised European Social Charter (1996) by dint of Article D of the Revised Charter. The Council of Europe describes the mechanism as follows:

Under the 1995 Additional Protocol providing for a system of Collective Complaints which came into force in 1998, complaints of violations of the Charter may be lodged with the European Committee of Social Rights (ECSR). Certain organisations are entitled to lodge complaints with the ECSR. This is a special list of organisations with standing to file complaints has been established, made up of international NGOs enjoying participatory status with the Council of Europe and indicating a particular interest in standing under the Charter; the list also includes trade unions. The ECSR examines the complaint and, if the formal requirements have been met, declares it admissible. Once the complaint has been declared admissible, a written procedure is set in motion, with an exchange of memorials between the parties. The ECSR may decide to hold a public hearing. The ECSR then takes a decision on the merits of the complaint, which it forwards to the parties concerned and the Committee of Ministers in a report, which is made public within four months of its being forwarded. Finally, the Committee of Ministers may adopt a resolution on the matter. If appropriate, it may recommend that the state concerned take specific measures to bring the situation into line with the Charter.13

In accordance with the provisions of the Additional Protocol and Revised Charter at Article D, in addition to the parties to a complaint, the following entities are provided with the documents of all collective complaints, and may also be formally involved in proceedings: the Contracting Parties to the Protocol; states that have made a declaration in accordance with Article D(2) of the Revised Charter, and international employers' organisations and trade unions referred to in Article 27(2) of the 1961 European Social Charter, i.e. the European Trade Union Confederation (ETUC), 13 http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/FAQ_en.asp, accessed 12 July 2010.

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Businesseurope (former UNICE) and the International Organisation of Employers (IOE). Some states parties have availed themselves of the opportunity to participate in proceedings. For example, Finland took part formally in joined oral proceedings concerning collective complaints 33 and 39 against France.

The European Committee of Social Rights (ECSR) is the body to which complaints may be brought and by which they are then adjudicated. The parallel of the role of this Committee with the UN Committee on Economic, Social and Cultural Rights in its expanded powers following the adoption of the 2008 optional protocol to the ICESCR is evident. As the territory of rights instruments is similar, the lessons of the ECSR were available to the negotiators when preparing the optional protocol. What is important here is the choice of the international community (and in particular European states) to extend and develop supranational supervision of individual complaints with clear and immediate knowledge of the full implications of such a move. This story is not one of states seeking to avoid justiciability mechanisms for the adjudication of human rights claims, but of actively seeking to create them. Most importantly, no new rights are created through the development of a complaints mechanism; the system has merely provided a mechanism for their evaluation as rights. In effect, the addition of a complaints mechanism to an existing treaty is an act through which states affirm the gravity of the undertakings they have made previously, when adopting the parent treaty.

In the little more than a decade since it began functioning, the European Social Charter has developed a detailed, thoughtful and complex jurisprudence for addressing the human rights issues brought before it. This jurisprudence is still in a state of development. Indeed, as of the time of writing, under 60 complaints total had been adjudicated by the Committee under the Charter’s collective complaints mechanism.

One key question regarding the European Committee of Social Rights is whether its activities aid in improving state implementation of the ESC. Here we will examine some of the decisions and the consequences in the states condemned to answer, at least in part, this question.

The Committee’s first case concerned child labour in Portugal. In Collective Complaint 1/1998 International Commission of Jurists v. Portugal, the Committee considered a claim that the State party was not enforcing the prohibition on the employment of children below the age of 15 as required under the European Social Charter. In its decision on the merits, the Committee held that Portugal was not in compliance with the Charter as, although the state had adopted legislation prohibiting child labour, this legislation was not effectively enforced. After the decision of the ECSR, the State party reported that, due to improvements in the Labour Inspectorate’s working methods to monitor respect for the prohibition on child labour, statistics on child labour had greatly decreased and was now of marginal importance. Further, the State party had taken legislative measures in relation to self-employed children and children engaged in light work, hazardous work and night work, and create criminal offences in respect of child labour. Finally, the State party had introduced policy changes to eliminate child labour. The European Trade Union Council corroborated the evidence and conclusions of the State party. As noted subsequently by De Albuquerque, following the Committee’s decision in the complaint, “Inspection visits

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in enterprises were carried out in the regions and sectors where the problem of child labour was most acute. The number of unannounced inspection visits that specifically targeted at child labour increased considerably from 1997. Whereas the number of visits carried out in 1997 was 4,736 they amounted to 7,100 in 2001 and 11,043 in 2002. The number of cases of illegal child employment detected by the General Labour Inspection during this period constantly and considerably decreased. The number of children in illegal employment per 1000 visits carried out was 49.2 in 1999, 22.4 in 2000, 12.8 in 2001 and 3.8 in 2002. The number of children under the age of 16 illegally employed in enterprises visited decreased from 233 in 1999 to 42 in 2002.”14

In its early work, the Committee found modes of addressing concerns elsewhere raised within freedom of thought, conscience and religion frameworks. In Collective Complaint No. 8/2000, Quaker Council for European Affairs (QCEA) v. Greece, the Committee was asked to consider whether Greece had violated the Charter Article 1 guarantee of the right to work because, as set out in the argumentation of the QCEA, Greek provisions for allowing conscientious objectors to perform civilian service instead of military service, as well as their application in practice, were “of a punitive nature”. The QCEA contended that the modalities and conditions for the performance of this civilian service amount to forced labour. It noted inter alia that in certain medical establishments, conscientious objectors worked between 11 and 15 hours per day, 7 days per week. The Committee concluded by six votes against three that the situation in Greece was not in conformity with Article 1 paragraph 2 of the Charter.

We will return to the jurisprudence of ESCR later in this chapter. We have chosen the two examples here to show the beneficial effects that supranational individual (or collective) complaints mechanisms can have in encouraging faithful implementation of treaty rights, as well as of identifying matters for the attention of the policy- and lawmaker.

The Political Process towards Supervisory Mechanisms

In this section, we will consider the political process which led to the adoption of the ICESCR Optional Protocol. Article 8 of the Universal Declaration of Human Rights states that, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. The question then is how to give this effect in respect of the ICESCR. For the first part of the cold war – at least until the adoption of the two Covenants in 1966 and their entry into force in 1976 -- international supervision of the ICESCR was fundamentally different from that of the ICCPR which had already been provided with the Human Rights Committee for its supervision. Indeed, there was not even a Committee on Economic, Social and Cultural Rights until 1985, when the UN’s Economic and Social Council resolved to convert an earlier Sessional Working Group

14 De Albuquerque, Catarina, “Elements for an optional protocol to the International Covenant on Economic, Social and Cultural Rights: Analytical paper by the Chairperson-Rapporteur, Catarina de Albuquerque”, E/CN.4/2006/WG.23/2, 21 November 2005, p. 22.

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advising the Council, into the Committee.15 Since that time, the UN Human Rights Council has consistently endeavoured to equalize the status of the two Committees.

Following the conversion of the Sessional Working Group into the Committee in 1985, the Committee began the arduous task of advancing for itself the powers available to the Human Rights Committee, and working towards definitions of the normative content of the rights under the ICESCR, such that they might be viewed as similarly ‘hard law’ to the rights under the ICCPR. Thus, in 1989, the Committee issued its first reporting guidelines (a move undertaken by the Human Rights Committee in 1981). And, crucially, in 1991, the Committee issued General Comment 3 on States Parties’ obligations under the Covenant, noted above. Proposals for a complaint mechanism flowed inevitably from these moves to heal the original problem caused by dividing the UDHR into two distinct treaties.

This discussion was further authorised by the Vienna World Human Rights Conference in 1993, and in particular its most famous conclusion, that “[a]ll human rights are universal, indivisible and interdependent and interrelated”. The Vienna Declaration and Programme of Action also “encourage[d] the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights”. A staging post was reached in 1997 when the Committee produced its first published draft of such a protocol (UN Doc E/CN.4/1997/105 annex). Not surprisingly, some in the academic world in the United States viewed this development with some dismay.16

Academic voices in Europe were encouraging to these moves, among them Alston (at that time at the European University Institute in Florence, as well as Chair of the Committee during the period 1990-1998). He set out six reasons and ways in which a protocol would contribute to the understanding of economic and social rights under the ICESCR. These are:

Complaints procedures bring concrete and tangible issues into relief;

15 Economic and Social Council Resolution 1985/17. While the ICCPR establishes the Human Rights Committee directly in the treaty and in detail at Articles 28-45, the Covenant on Economic, Social and Cultural Rights includes, as to international supervision, only the minimal provisions of Articles 21 and 22:“Article 21: The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received from the States Parties to the present Covenant and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the present Covenant.Article 22: The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.”In Resolution 1978/10 of 3 May 1978, the Economic and Social Council decided to establish a Sessional Working Group on the Implementation of the International Covenant on Economic, Social and Cultural Rights, for the purpose of assisting the Council in the consideration of reports submitted by States parties to the Covenant.16 Dennis M J & D P Steward ‘Justiciability of Economic Social and Cultural Rights’98 Am J Int L (2004) 462. Apparently the authors were US State Department legal advisers although writing in their personal capacities.

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Focus on a specific case provides a framework for inquiry which is otherwise absent;

The possibility of complaints encourages State action to ensure rights domestically;

An international remedy provides an incentive for individuals and groups to formulate their claims clearly in relation to the ICESCR;

The possibility of an adverse finding by the Committee can give political salience to the subject;

Complaints procedures produce tangible results which generate interest and understanding of the ICESCR.17

Two academics provided much needed support for the principle of greater supervision and emphasis on the protection of economic, social and cultural rights. These are Amartya Sen and Thomas Pogge. Sen’s ground breaking work on the right to development came at a critical moment for the political discussion on the need to give new life to the ICESCR.18 Pogge’s philosophical challenge to the continuing existence of poverty as an ethical failure both politically and socially, similarly gave a boost to those pushing for greater accountability under the ICESCR.19

At this point and indeed right up to the point of the adoption of the Optional Protocol in 2008, arguments against supranational supervision were championed by a number of states leading to great uncertainty in the negotiating process. The Commission on Human Rights agreed in 2003 to establish an “Open-Ended Working Group” to study the subject. As the name of this entity suggests, its tasks were solely to study the problem, and it had no drafting powers. In June 2006, the Human Rights Council – the successor body to the now-defunct Commission on Human Rights – decided to grant the Working Group drafting powers. The Working Group approved a draft Optional Protocol in April 2008. On 18 June 2008, the United Nations Human Rights Council approved the text of an Optional Protocol. The Optional Protocol was subsequently approved by the UN Third Committee and, thereafter and finally, by the General Assembly on 10 December 2008. It will enter into force once ratified by 10 states. As of June 2010, it had been signed by 32 states and ratified by one: Ecuador.

The cursory summary of process above masks a drafting history which was protracted, exhausting, normatively complex, and additionally burdened by the efforts of a number of states to undermine the process of adoption by whatever diplomatic means possible. It also featured legitimate questions as to how such a mechanism might work in practice. Also, as recently as 2004, some influential parties continued to argue that powers for supervision of the ICESCR should simply be given to the Human Rights Committee, through expanded powers to that body.

In the first place, the process 2003-2008 of necessity needed to reduce some of the expectations surrounding the Optional Protocol. For example, some states of the Global South hoped that an Optional Protocol might focus on inter-state complaints related to the right to development. Even after leaving the debate, this idea returned in the form of a discussion of possibilities for complaints based on a failure to allocate

17 Alston, P ‘Establishing a Right to Petition under the Covenant on Economic, Social and Cultural Rights’ Collected Courses of the Academy of European Law (1995).18 Sen, Amartya K. Development as Freedom. New Ed., Oxford University Press, 2001.19 Pogge T, World Poverty and Human Rights, Second Edition. Cambridge: Polity Press, 2008.

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sufficient resources to international cooperation. Remnants of these efforts appear, much reduced, in Optional Protocol Article 14.

Early drafts of the Optional Protocol included a “collective complaint” mechanism modeled on that of the ESC. However, this provision had died in practice by early 2007 and was only retained in several of the 2007 drafts as a negotiating chip. Due to the Global South-dominated politics of the Human Rights Council, the Working Group was always going to have difficulty embracing an item modeled on the European system. More significantly however, an overarching goal of the friends of the Optional Protocol was the creation of a remedy mechanism available in the international system to individuals. It is precisely the lack of such an explicit remedy component which is among the European Social Charter’s weakest elements. The provision ultimately adopted, first by the Working Group, and ultimately by the General Assembly, sets out at Article 2 that:

Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.

The development of the ICESCR Optional Protocol benefited significantly from the relatively recent development of the Optional Protocol to the CEDAW. In particular, provisions for interim measures (Article 5) and the inquiry procedure (Article 11) owe much to the CEDAW example. The existence of agreed international procedural texts under other treaties – and the CEDAW Optional Protocol had been negotiated relatively recently – provided a strong political argument against ‘reinventing the wheel’.

Perhaps the most fraught debate concerned the question of a “comprehensive” versus an “a la carte” approach. Many states argued for a so-called “a la carte” approach, similar to that available under the European Social Charter, in which the Protocol might apply to some rights but not others, depending on the decision of the ratifying state at issue. This approach was ultimately rejected, though not without strenuous argument over a number of years. Accepting an “a la carte approach” would fly in the face of the Vienna Conference conclusions, noted above, and would perpetuate the hierarchy of some rights over others. It was also noted that an “a la carte” approach would potentially constitute a system of impermissible reservations to the Covenant itself. Also, in response to arguments that “a la carte” would allow states a particular form of progressive implementation of justiciability, it was pointed out that there are no examples of Council of Europe Member States expanding the list of rights they accept under the European Social Charter over time. It was further noted that no other treaty in the UN system has been shackled to an “a la carte approach”.

Entering the fifth and final session of the Working Group – two weeks split between February 4-8 and March 31-April 4, 2008 – although a number of issues remained outstanding, none appeared as daunting as to how to handle the question of “a la

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carte” versus “comprehensive” approaches. The Chair’s draft offered the following opening move under Article 2, concerning “Communications”:

1. Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in [Parts II and III of/ Part III read in conjunction with provisions contained in Part II of] the Covenant by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.

2. [Each State Party may, at the time of signature or ratification of the present Protocol or accession thereto, declare that it does not recognize the competence of the Committee to consider [individual] communications under certain provisions of articles 2 (1) and 6 to 15 of the Covenant.]

During the second of the two weeks, the compromise implicit in the idea of simply excluding Part I of the Covenant from the scope of complaints appeared to be achieved. This would remove from the ambit of complaints matters related to the Covenant Article 1 right to self-determination. NGOs representing Native American and First Nations groups explicitly opposed this, but it was argued that self-determination claims might be raised under the substantive provisions of the Covenant. Final opposition to this compromise was mounted by the Palestinian delegation and several supporting States including Syria and Egypt, the latter of which had supported the compromise but was unable to maintain the agreement once explicit Palestinian opposition appeared. The compromise was so tenuous that the Chair raised her gavel three times to assert that she believed she had agreement on the final text, only to be stopped by another intervention tabling opposition to exclusion of Article 1. It was only during a fourth effort that the Chair was able to close the session with a draft Optional Protocol to send to the Human Rights Council.

Indeed this compromise came off the rails when the text came before the Human Rights Council in June 2008. Although commitments had been made not to reopen any aspect of the text at Council, lest the whole text unravel, continuing revolt by Syria, Algeria, Egypt and Pakistan over the exclusion of Article 1 from the ambit of complaints forced a change at Council to the first sentence of Article 2 of the draft Optional Protocol. The sentence:

“Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victim of a violation of any of the rights and obligations set forth in Parts II and III of the Covenant by that State Party.”

… was changed to:

“Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming

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to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party.”

This was the version adopted by Council, the result of a compromise engineered by the Portuguese Chair with the assistance of Egypt as Chair of the African Group and key player also across the Organisation of the Islamic Conference.

The late compromise rendered the adoption at Council sour, with a number of explanations-of-votes-after-the-vote tabling objections for the proceedings in New York. The United Kingdom in particular detailed at length a number of concerns, including that it did not consider that economic, social and cultural rights – “particularly because of progressive realisation” -- lent themselves to third party adjudication; that it had favored an “a la carte” approach; that it likely could not ratify the Protocol; and in any case that it reserved its position for the Third Committee. Poland and Denmark made similarly dissatisfied interventions.

The final period – i.e. the run-up to the fifth Working Group session and the June session of Council – had also seen a number of insertions designed to placate those States most consistently and vocally opposed to the Optional Protocol – in particular Canada, Australia, New Zealand and the United Kingdom (and by implication the United States, which was partially withdrawn from Council work during the period). These included the Article 4 provision on “Communications not revealing a clear disadvantage” and the Article 8(4) provision on “reasonableness”. The latter, it was pointed out, is a virtually unknown legal concept outside common law systems. More importantly, the governments tabling these requirements were widely viewed to be unlikely ever to ratify the Protocol. Nevertheless, they were necessary to achieve a semblance of consensus and preclude open revolt.

The inclusion of these compromise texts did not prevent a number of governments tabling purportedly “helpful” new suggestions during late stages of the Working Group proceedings, aimed at postponing a final text apparently indefinitely or for as long as possible. Also during late stages, previously reticent Norway and Switzerland both suddenly emerged as proponents of an “a la carte” approach, to the annoyance of many. Perhaps to avoid more trouble after the June Council resolution, the General Assembly resolution on the subject focuses on “taking note” of the previous Council resolution.

The difficult process of agreeing on a text distracts from the fact that, in the end, the Optional Protocol enjoyed broad support. The project had had consistent support from the African Group. For Egypt and South Africa – dominant personalities in the African Group in all senses of the word – the Optional Protocol was a priority for the Global South. GRULAC – the Central and South American grouping – also consistently supported the project, with Mexico (to name only one of a number) providing consistently vigorous positive input. In Europe, in addition to Portugal – which was committed firmly to the process by dint of chairing it – Belgium, Croatia, Finland, France, Italy, The Netherlands, the Russian Federation, Spain, Slovenia and Turkey proved regular and consistent supporters of the Optional Protocol. Mobilizing support in Asia proved much more difficult, due primarily to strong national sovereignty visions in Asia and a general disposition to reject international supervision of human rights (or any other international commitments). Nevertheless,

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Timor Leste was consistently supportive, and India, Pakistan, Indonesia and Bangladesh ultimately spoke out in support.

As noted above, Canada, Australia and others opposed (diplomatically) the project, with the United States presumed to lie behind them. Some observers (who remain officially anonymous) thought this view did not do credit to how deep intrinsic Canadian opposition in fact was. Poland and Denmark were difficult, and Poland’s difficulty was frequently and at length expounded. The United Kingdom was also a difficult case, because it professed support and engaged regularly and consistently with the process in a manner seemingly supportive, but its positions were sharply divergent from other supporters. Throughout the process, the most common position of states was silence; China, Hungary, Romania and many others consistently provided no position, and attendance at the Working Group was frequently thin.

Some countries moved forward. Germany, for example, had internally divided ministries, so it took no position during much of the drafting. During late stages however, it was able to support a comprehensive approach.

The conclusion cannot be avoided, however, that the consensus around the Optional Protocol is weak by comparison with other recently negotiated human rights treaties. This is particularly striking in relation with the International Convention on the Rights of Persons with Disabilities (ICRPD) and its Optional Protocol, both adopted in December 2006. The drafting process for those treaties was a mere five years from start to finish. Although it is too early to judge definitively (and indeed the ICRPD has a two-and-a-half year head-start on the Optional Protocol of the ICECSR), rates of signature and ratification are noticeably divergent between the two Optional Protocols.20

A word should be said about the role of human endeavor in the process. Chairperson Catarina de Albuquerque worked with seemingly irrepressible energy over a period of years to shepherd the Optional Protocol through fields mired by deep skepticism and pernicious instructions from capitals. During the afternoon session of the Working Group on Friday, April 4, 2008, after the gavel had finally fallen on a consensus text, she was given three rounds of standing ovation. Diplomats who had devoted several years of energy to hobbling the process spoke at length of their admiration for her tireless, upbeat determination to overcome any opposition. She had been quietly and vocally supported, including with extensive research assistance, by the Office of the High Commissioner for Human Rights, as well as by an NGO coalition.

Finally, it should be added that a number of the key moments in the drafting process, including the decision in 2006 to give the Working Group drafting powers, as well as the ultimate moves to finalize the text, seemed to many involved to have a life of their own. That is, they seemed to materialize even as opposition seemed most implacable and entrenched. Many of those involved in the process would be at a loss to say how it happened that the Optional Protocol was ultimately adopted.

20 As of July 4, 2010, the Disabilities Convention had 145 Signatories and 87 States had ratified the treaty; the Optional Protocol to the Disabilities Convention had 89 Signatories and 54 Parties; the Optional Protocol to the Economic, Social and Cultural Rights Covenant (OP ICECSRR) had 32 Signatories and only 1 Party. The OP ICECSR was opened for signature on 24 September 2009. The two treaties on the rights of persons with disabilities were opened for signature on 30 March 2007.

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What does the Optional Protocol as adopted provide?

The Optional Protocol was opened for signature on 18 June 2008. As an explanation for its existence, there are six preambles which state:

A reaffirmation of the right to dignity and of the equal and inalienable rights of all human beings;

All human beings are born free and equal and are entitled to all the rights of the UDHR without discrimination on the prohibited grounds;

The International Bill of Rights recognises the ideal of freedom from fear and want which objectives can only be achieved there everyone can enjoy civil, cultural, economic, political and social rights;

All human rights are universal, indivisible, interdependent and interrelated; The ICESCR requires states to maximize available resources to achieve

progressively the full realization of its rights; The protocol furthers the objective of the ICESCR by strengthening the role of

the CESCR Committee.

Article 2 of the Optional Protocol provides that individuals or groups of individuals may submit communications (subject to State Party jurisdiction) in which they claim to be victims of a violation of any of the economic, social and cultural rights contained in the ICESCR. Where a complaint is submitted on behalf of another person their consent must be expressed. Article 2 provides for an admissibility stage in respect of complaints. The CESCR Committee must first ensure that domestic remedies have been exhausted. This requirement is very common, indeed, almost a norm among supranational courts and Treaty Bodies. There is, however, an exception where the application of remedies is unreasonably prolonged. This exception is provided to ensure that states cannot, merely by dragging out a procedure, render the rights nugatory.

The provision also sets a one year time limit between the end of domestic procedures and the submission of a complaint. The facts of the complaint must have occurred after the Protocol came into force for the relevant state (with an exception for continuing violations). A complaint can also be held inadmissible if it is being examined under another procedure of international investigation or settlement. This is to ensure that no more than one international Treaty Body is considering any particular set of facts at any given time. A complaint can also be inadmissible if it is incompatible with the ICESCR, manifestly ill-founded or insufficiently substantiated or only based on mass media information, an abuse of the communication right or is anonymous or not in writing.

The CESCR Committee can decline to consider a complaint if the author has not suffered a clear disadvantage but this does not bar the Committee from considering such a complaint if it raises serious issues of general importance (Article 4). There is a power to the CESCR Committee to request interim measures from a state party if this is necessary in exceptional circumstances to avoid possible irreparable damage to the victim(s) of the alleged violations (Article 6). Once a complaint has been held to be admissible, the CESCR Committee communicates it to the relevant state party (subject to confidentiality provisions) wherein the state has six months to submit

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explanations or statements clarifying the matter and the remedy, if any, that it has made available (Article 6). If a friendly settlement is achieved the matter ends. If not the Committee then examines the communication in closed meeting. The Committee is entitled to consult relevant documentation emanating from other UN bodies, specialised agencies, funds, programmes and mechanisms, other international organisations including regional human rights systems21 and any observations or comments from the state party concerned (Article 8(1)-(3)). The Committee is charged with considering the reasonableness of the steps which the state has taken (in accordance with Part II of the ICESCR) and is charged with bearing in mind that states may adopt a range of possible policy measures for the implementation of the ICESCR rights.

After the examination of the communication, the CESCR Committee ‘transmits’ its views on the communication and recommendations to the parties. This is the form of decision on whether there has been a violation or not (article 9). The state is obliged to give ‘due consideration to the views of the Committee’ and its recommendation and within six months respond in writing to the Committee including information on action to implement the recommendations (article 9). The Committee is entitled to invite the state to submit further information about any measure the state has taken and to take the matter up with the state under the normal state reporting requirements (Articles 16 and 17 ICESCR; this is repeated in Article 12 of the Optional Protocol). This can be a rather effective way for Committees to keep their decisions live as officials from a relevant state will face questions about the implementation of the decision and recommendations in the future when the state has to report under the general provisions. Unless the Committee is satisfied with the state’s position, the question can arise again and again, each time with the unwelcome publicity attendant on negative comments in a UN Committee’s conclusions on state compliance.

There is a power for states parties to the ICESCR which recognize the competence of the Committee to receive and to consider communications submitted by another state party. There is quite an elaborate state party complaints system contained in Article 10 but this is beyond the scope of this chapter. Similarly, however, there is a power for states to recognize the competence of the Committee to investigate allegations of grave or systematic violations of the ICESCR (Article 11). The Committee is charged with inviting the state to cooperate in such an examination and submit information. However, the Committee is entitled in such an examination to take into account any information it has received. It may also designate one or more of its members to conduct an inquiry and report urgently to the Committee. If the state agrees, this can include a visit to the state in question. These inquiries are confidential and every effort must be made to engage the state under scrutiny in the investigation. After the Committee transmits its finding, a state has six months to submit its observations to the Committee. States are entitled to withdraw their consent to this procedure by a simple notification to the UN Secretary General (Article 11).

Article 13 provides for the protection of individuals from ill-treatment or intimidation as a consequence of making a complaint. Further the Committee is entitled to transmit its decisions (though subject to a consent requirement) to other UN Agencies with a view to providing technical advice or assistance towards implementation (Article 14).

21 This may provide for coherence across the regional and international systems for instance with the European Committee on Social Rights.

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Further, a trust fund must be established under the Protocol to be administered by the UN and aimed at providing expert and technical assistance to State Parties (subject to their consent) to contribute to building national capacities in the area of economic, social and cultural rights under the Protocol (Article 14). There is an annual reporting requirement on the Committee and a duty on the States Parties to disseminate information about the Protocol and to facilitate access to information on views and recommendations of the Committee. The Protocol enters into force three months after the tenth instrument of ratification or accession.

What States Want Complaints Mechanisms on Economic, Social and Cultural Rights?

In light of the complexities of the negotiating process for the Optional Protocol of the ICESCR, it is interesting now to look at what states have signed up to it. Here, for European states it is important also to examine whether the same states which have ratified the ESC protocol or otherwise accepted the collective complaints mechanism at the time of adopting the Revised European Social Charter are also signing the Optional Protocol for the ICESCR. If the comparison is favourable this must mean that the political choice is in favour of the extension of rights to individuals and collective groups. If the comparison is unfavourable, that is to say European states which have accepted the European Social Charter collective complaints mechanism have declined to support the Optional Protocol of the ICESCR, then further questions are relevant about the appetite for more supranational supervision.

So far, the Global North has been fairly positive about signing the ICESCR Optional Protocol. Most signatures took place in September 2009 and during that month the following Global North states signed up: Belgium, Bosnia, Finland, Ireland, Italy, Luxembourg, Montenegro, The Netherlands, Portugal, Slovakia, Slovenia, Spain and Ukraine. It remains to be seen when (or indeed whether) these states will ratify the protocol. Some discussion has already taken place in the Netherlands regarding this.

As regards the collective complaints under the European Social Charter, the following States have agreed to be bound by the mechanism to date: Belgium, Croatia, Italy, France, Portugal, Finland, Slovenia, Bulgaria, Cyprus, Ireland, The Netherlands, Norway, and Sweden. Thus, one finds already some overlap between which European states have signed the Optional Protocol of the ICESCR and those which have accepted the collective complaint mechanism of the ESC. There may be many reasons for this overlap but one is certainly the fact that familiarity with a system for supranational adjudication of economic, social and cultural rights makes it easier for states to sign up to another similar system. The argument that participation in such systems is injurious to state sovereignty is no longer available to opponents once the state has already accepted one supranational jurisdiction in the relevant area.

What has the ECSR decided and how might this be relevant to refugees?

The ECSR has only had its supervisory competence for ten years at the time of writing. Notwithstanding constraints which many consider problematic, the ECSR has begun to develop a constant jurisprudence which indicates substantial added value in the delivery of economic and social rights in Europe. Among the core elements which

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the ECSR has deployed is the right to non-discrimination in economic and social rights. From the first complaints, this has been an important framework within which the Committee has been able to provide legal certainty to questions about entitlements to economic rights.

An early complaint, No 6/1999 Syndicat national des Professions du tourisme v. France, provided the Committee with its first major opportunity to address discrimination to which it has returned repeatedly since. Collective Complaint 6/1999 concerned the fact that all bodies offering guided tours within the remit of the Ministry of Culture and Communication, which included a significant list of national and local entities, discriminated between, on the one hand, lecturer guides approved by these bodies (conférenciers agréés) and, on the other, interpreter guides and national lecturers with a state diploma (guides interprètes et conférenciers nationaux diplomés d’Etat). The Syndicat alleged that this discrimination resulted in a denial of the right to work and to vocational training for interpreter guides and national lecturers with a state diploma, as guaranteed by Articles 1, 10 and E of the Revised Charter.

The Committee concluded that the differences in treatment between the approved lecturer guides of the Villes et Pays d’Art et d’Histoire network and the interpreter guides and national lecturers with a state diploma as regards the freedom to conduct guided tours constituted discrimination in breach of Article 1, paragraph 2, of the revised Charter; that the differences in treatment between the approved lecturer guides of the CNMHS and national museums, on the one hand, and the interpreter guides and national lecturers with a state diploma, on the other, as regards the freedom to conduct guided tours also constituted discrimination in breach of Article 1, paragraph 2, of the revised Charter; and that the differences in treatment between the approved lecturer guides of the CNMHS and national museums, on the one hand, and the interpreter guides and national lecturers with a state diploma, on the other, as regards working conditions constitute discrimination in breach of Article 1, paragraph 2, of the revised Charter. It held, however, that the differences in treatment between the approved staff and the interpreter guides and national lecturers with a state diploma does not constitute a violation of the right to vocational training within the meaning of Article 10, paragraphs 1 or 3 of the Revised Charter.

The issue of discrimination arose again in Collective Complaint 13/2002 Austisme-Europe v. France, where the ECSR found France in violation of Articles 15(1) (right of persons with disabilities to independence, social integration and participation in the life of the community) and 17(1) (right of children and young persons to social, legal and economic protection) whether alone or read in combination with the Article E non-discrimination provisions of the revised European Social Charter for failing to provide adequate educational arrangements for children with autism.

It is, however, within the jurisprudence on Roma that the Committee’s approach on discrimination has broadly taken shape. It now encompasses generally the conceptual frame with Article E of the Revised Charter prohibiting discrimination and, therefore, establishes an obligation to ensure that, in the absence of objective and reasonable justifications, any individual or groups with particular characteristics enjoys in practice the rights secured in the Revised Charter. Moreover, Article E not only prohibits direct discrimination but also all forms of indirect discrimination.

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Discrimination may also arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all (see ERRC v. Bulgaria, Complaint No. 31/2005, decision on the merits of 18 October 2006, paragraph 40). The Committee has also held that non-discrimination is inherent in substantive provisions of the Charter such as Article 16 as a result of the perambulatory provisions of the original Charter (see ERRC v. Greece, Complaint 15/2003, decision on the merits of 8 December 2004, paragraph 26).

The Committee has also gone farther than any international or European review body in its findings on the requirement of positive action within the non-discrimination norm: “...for the integration of an ethnic minority as Roma into mainstream society measures of positive action are needed” (ERRC v. Bulgaria, Complaint 31/2005, paragraph 42). Assessing questions of racial discrimination and the adequacy of policies to address racial disparity have motivated the Committee to elaborate in detail requirements in the area of ethnic data:

The Committee recalls that when it is generally acknowledged that a particular group is or could be discriminated against, the state authorities have a responsibility for collecting data on the extent of the problem... The gathering and analysis of such data (with due safeguards for privacy and against other abuses) is indispensable to the formulation of rational policy. Similarly, if homelessness is to be progressively reduced as required by Article 31§2 of the Revised Charter, states will need the necessary factual information to deal with the problem. The regular collection of detailed information and statistics is a first step towards achieving this objective.” (ERRC v. Italy, Complaint 27/2004, decision on the merits of 7 December 2005, paragraph 23).

The impact of denial of social and economic rights in conjunction with social disadvantage as a result of ethnic origin was also a central theme in the Committee’s Decision 48/2008.22 The Committee relied on statistical evidence regarding the extent to which Roma families were dependent on social assistance because of the difficulties they faced as members of the community to gain access to the labour market. The exclusion of this group from a right to social assistance which was available for other members of the state constituted, in the opinion of the Committee a denial of the fundamental right of persons belonging to socially disadvantaged groups to equality of respect and esteem. Further in a case against Portugal on access for Roma to public housing, it found that the inability and unwillingness of central authorities to correctly oversee/coordinate the implementation of housing programmes at the local level taking into consideration the specific situation of Roma, for instance by taking action against those municipalities where housing projects have led to the isolation or segregation of Roma, demonstrates the lack of an “overall and coordinated approach” in this area, amounting to a violation of Article E taken in conjunction with Article 30.23

Closer to the issues central to the Geneva Convention regarding the duty to protect individuals from inhuman and degrading treatment, the organization World

22 ERRC v Bulgaria 18 February 2009. 23 ERRC v Portugal Complaint 61/2010; Decision 30 June 2011.

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Organisation Against Torture (OMCT) filed five complaints against Italy, Portugal, Ireland, Greece and Belgium in July 2003, alleging that these countries protected inadequately children from corporal punishment. The Committee found Portugal, Ireland and Greece in violation of Charter Article 17, but did not find Portugal or Italy in violation of the same provision. In its findings, the Committee honed in exclusively on whether there was an explicit and effective domestic law prohibition on corporal punishment of children by parents and “other persons”. In the OMCT Complaint against Portugal (Complaint 20/2003), the complainant organization brought no cases to the attention of the Committee. It was apparently unaware of several positive rulings by the Portuguese Supreme Court and other instances in corporal punishment cases. OMCT later brought new information to the Committee, in the form of Collective Complaint 34/2006, to the effect that a new Supreme Court judgment of 5 April 2006 meant that Portugal was failing to comply with Article 17 of the revised Charter (right of children and young persons’ to social, legal and economic protection) because it did not explicitly or effectively prohibit all corporal punishment of children, either by their parents or by others, and had not conducted any comprehensive awareness-raising on the law and children’s rights to protection. The Committee duly found Portugal in violation of Article 17. In general, the Committee has been willing to draw inferences from the presentation of detailed empirical data as to practices in the Member States and, provided sufficient quality information, will require the respondent state to refute a claimant’s contentions. This has been a feature, for example, of the Roma housing cases, which have relied predominantly on a body of plausible empirical data.

In a decision on 20 October 2009, the ECSR addressed the question of the economic rights of rejected asylum seekers. The complaint was brought by a non-governmental organization, Defence for Children International, regarding the refusal of the Dutch authorities to provide housing for unaccompanied child asylum seekers after the rejection of their asylum claims. During the asylum procedure, the children were detained under Dutch national law. Many criticisms of the detention of children from a wide range of international organizations and non-governmental organizations resulted in the Dutch authorities being particularly anxious to ensure that children do not remain in detention. However, following the rejection of their asylum applications at which point the children were no longer potential refugees, the children were also released from detention but not provided alternative accommodation. The argument of the Dutch authorities was that at that point the children were irregularly present in the Netherlands and must leave. Their failure to comply with the law and depart should not be interpreted as a right to housing or any other social or economic rights. The ECSR held that the ESC is to be interpreted teleologically with the objective of achieving the rights set out and in light of other international obligations of the state. In view of this, the ECSR considered that the right to shelter is closely connected to the right to life and is crucial for the respect of human dignity. It observed that “if all children are vulnerable, growing up in the streets leaves a child in a situation of outright helplessness”. For this reason the Committee held that children, whatever their residence status, are entitled to shelter under the Charter. This is notwithstanding Annex 1 of the Charter that limits its scope to “foreigners only in so far as they are nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned.”

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This is perhaps the most important part of the decision – the widening of the scope of protection beyond the stated limited group who are stated to be within the personal scope of the rights. In order to reach its decision the ECSR held that restrictions on access to rights must be interpreted restrictively, the essence of the right must be preserved intact to achieve the overall purpose of the Charter. Thus restrictions must not end up having unreasonably detrimental effects where the protection of vulnerable groups is at stake. It is worth noting that the Netherlands, against which the case was brought, has signed the ICESCR Optional Protocol and is currently considering ratification.

In the development of its jurisprudence, the Committee has kept a very firm eye – some might say too firm an eye -- on the jurisprudence of the ECtHR. In the development of its approaches on discrimination, the Committee has followed the Court in its use of terminology and in other elements of the Court’s apparatus in this area. The Committee has made explicit reference to ECtHR cases such as Thlimmenos v. Greece, Connors v. United Kingdom and others, while endeavoring to establish its approaches to the issues brought before it. In some cases, this might leave the Committee open to the accusation that it has not sufficiently explored possibilities for elaborating differences between the social rights jurisprudence of the Charter on the one hand, and the predominantly civil and political rights content of the ECtHR. Indeed, sometimes the Committee echoes the Court, as for example in the following:

“States enjoy a margin of appreciation in determining the steps to be taken to ensure compliance with the Charter, in particular as regards to the balance to be struck between the general interest and the interest of a specific group and the choices which must be made in terms of priorities and resources (mutatis mutandis most recently European Court of Human Rights, Ilascu and others v. Moldova and Russia, judgment of 8 July 2004, § 332).”24

Similarly, the Committee has actively avoided appearing to contradict ECtHR judgments. In COHRE v Croatia25the Committee explicitly referred to two decisions of the ECtHR on similar issues regarding discrimination in housing.26 It expressly followed the approach of the ECtHR on the issue of temporarity, how to assess whether a breach (here regarding access to housing) was an on-going one or not.

In one key aspect, the Charter mechanism differs from the Court: remedial possibilities under the Charter are significantly hampered by the lack of any standing by individuals. This problem is magnified by the bias toward international organizations in the standing provisions. Some organizations have attempted to test possibilities for ordering remedy, as yet without success.27 As outlined above, provisions for standing are significantly better under the new Optional Protocol to the ICESCR.24 European Roma Rights Centre (ERRC) v. Bulgaria, Collective Complaint 31/2005, decision on the merits of 30 November 2006, paragraph. 35.25 Complaint 52/2008, Decision 22 June 2010.26 Blecic v Croatia ECtHR 8 March 2006; Silih v Slovenia ECtHR 9 April 2009.27 In Collective Complaint 27/2004, European Roma Rights Centre v. Italy, the complainant organisation requested that the Committee order the State party to pay damages. The Committee responded by forwarding a recommendation to the Committee of Ministers that the organisation be awarded a symbolic sum. The Committee of Ministers declined to act on this recommendation.

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Perhaps the most noteworthy issue as concerns the relationship between the ECtHR and the Committee on Social Rights is one of power: the Committee is widely held to be a softer mechanism than the Court. Indeed, its adjudicating powers in complaints stem only from the late 1990s, while the Court has fifty years of adjudicative work under its belt. This may change, although any changes will happen incrementally. The body charged with enforcement of the Committee’s decisions is, like the Court, the Council of Europe’s Committee of Ministers. In decisions by the Committee in Collective Complaints, the Committee of Ministers may pass a Resolution on the matter at issue. If it does not do so, the Committee’s decision becomes public four months from its date of issue. The Committee of Ministers has used these powers on some occasions, but not others. There is an evolving practice of seeking Committee of Ministers resolutions wherever possible. Also, as a result of the first repeated Collective Complaints – a complaint by INTERIGHTS for non-implementation of the Committee’s decision in Collective Complaint 15/2003 against Greece, and a complaint by the Centre on Housing Rights and Evictions (COHRE) against Italy for non-implementation of the Committee’s decision in Collective Complaint 27/2004 against Italy – the Committee of Ministers is being confronted with the need to support this “younger sister to the Court”. The coming years will tell how enforcement under the Charter mechanism evolves.

Conclusions

What are the implications then, for the Geneva Convention, from the experiences of the ICESCR and the ESC in the creation and use of supranational complaints mechanisms? We will address this question in two parts, first, in the creation of a mechanism and then in interpretation.

What has been central to the establishment of a supranational individual complaints mechanism for the ICESCR was the dedication of a group of people within state authorities and non-governmental organisations pushing constantly towards the desired outcome. The ability to move what appeared to be intractable opposing forces results from consistent and continuous effort. A core of state authorities being in favour of an optional protocol was key. The association of such a protocol with one of the main groupings in the UN was also critical to overcoming many apparently insurmountable obstacles.

The association of the process of negotiating the optional protocol with the declaration of the unity of human rights arising form the Vienna World Human Rights conference in 1993 was also important. The impetus to create supranational accountability for aggrieved individuals could be anchored in this event which provided a foundation for new approaches. At the same time, the development of individual complaints mechanisms for other UN treaties provided a strong argument for the optional protocol. In terms of form, these other mechanisms provided a pattern which would be difficult to defeat. Mechanisms which had already been the subject of international agreement in other domains could be transferred to the ICESCR context. This then required that opposing states come up with reasons why it was inappropriate. Similarly the fact that a number of states in the Global North had

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already accepted supranational jurisdiction over similar areas in a regional convention reduced the resistance in some quarters to the Optional Protocol.

Turning then to the second part of our question, interpretation, it is clear from the experience of the ECSR that supranational jurisdiction over collective complaints has been extremely helpful for states and individuals as regards clarifying the extent of obligations and rights and assisting in focusing state attention on measures to improve the quality of their delivery. Consistency provided at the supranational level allows states to proceed with confidence that they are fully compliant with their international obligations. Problems can be resolved in a manner which is final and reduces the possibility of divergence between and among state parties to conventions. The possibility of friction over the meaning of obligations among states is reduced.

From both perspectives the experience of the creation of complaints mechanisms for supra national conventions has been positive. In light of this experience it is perhaps time to move ahead with such a mechanism for the Geneva Convention. In doing so, some pressure might be alleviated from the UN Committee against Torture and the UN Human Rights Committee, both of which are currently receiving many individual complaints under the relevant mechanisms, where the core issue of the complaint is in fact when a state has not complied with its obligation to provide international protection to a foreigner.

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