Nantes, 5 September 2005
On behalf of the High Commissioner, allow me first of all to thank the Government of France, the Organisation Internationale de la Francophonie, la ville et l’université de Nantes, la Foundation Charles Léopold Meyer and le ministère de la culture et de la communication for inviting the High Commissioner and staff of the Office of the High Commissioner for Human Rights to attend this important conference. It is with sincere regrets that the High Commissioner is unable to attend in person today; however I have the pleasure to deliver this statement on her behalf.
One of the basic challenges facing the United Nations is the fight against poverty and social exclusion. Within the international human rights system, economic, social and cultural rights identify many of the basic requirements to build inclusive and developed societies based on the rule of law. Yet, forty years after the adoption of the two Covenants, economic, social and cultural rights still do not receive adequate treatment and some - even today - challenge the legal status of these rights.
Fortunately, this appears to be changing. Deliberations over the current reform of the Commission on Human Rights have emphasized that all human rights - civil, cultural, economic, political and social - must receive equal treatment in the future human rights machinery. The Plan of Action I have prepared for my Office - borne out of the reform - has called for leadership in protecting economic, social and cultural rights - to reaffirm their legal status and strengthen the recognition of their justiciability.
The working group examining options for an optional protocol to the International Covenant on Economic, Social and Cultural Rights therefore have a privileged role. This forum, a continuation of discussions of the working group to consider the elaboration of an optional protocol, provides a unique and valued opportunity to reflect on how to strengthen the implementation of economic, social and cultural rights and ensure equal treatment of all human rights in the ongoing UN reform process. Allow me to share some reflections with you.
While some economic, social and cultural rights - such as workers' rights - have long been subject to judicial enforcement, the last ten years has seen an increasingly sophisticated national and regional jurisprudence in relation to other economic and social rights. Decisions in Argentina, Colombia, India, South Africa and many other jurisdictions have demonstrated how the judiciary can play an important role in providing relief to individuals and in ensuring that governments uphold constitutionally guaranteed economic, social and cultural rights.
Significantly, judicial decisions have led to improved implementation of economic, social and cultural rights. Judicial decisions have improved access to HIV/AIDS treatments for thousands of women to stop mother-to-child transmission of the HIV virus; restricted the arbitrary eviction of destitute people from housing; improved water and sanitation services to poorer suburbs; ensured school children receive mid-day meals; prevented famine through the monitoring of food programmes; and identified the basic necessities for an adequate education.
Of course, these improvements rely also on other factors including an active civil society, a willing government and respect for civil and political rights. We must also remember that the judiciary is not able to solve all - or even the majority - of social problems and the eradication of poverty requires concerted effort from government, parliaments and other actors as well. Yet the judiciary, in increasing numbers of jurisdictions, is demonstrating that it has a role to play in the wider strategy of upholding human rights and thus combating poverty and social exclusion - a role that is valid in poorer and wealthier countries alike.
These improvements have not occurred in a vacuum and the international human rights system has provided impetus for change. The adoption of the International Covenant in 1966 and the construction of regional human rights systems encouraged judicial recognition of economic, social and cultural rights. In some jurisdictions, the Covenant itself is given constitutional rank. This has reinforced the legal status of economic, social and cultural rights and given further justification the consideration of claims by national courts. Indeed, some of the most significant national decisions have referred to the provisions of the Covenant in judicial reasoning and some have referred to the General Comments of the Committee on Economic, Social and Cultural Rights. This indicates an important factor to bear in mind in our discussions - that the work of the international human rights system has an impact at the national level.
While the decisions to be taken clearly rest with States, it is my firm belief that the time is now ripe for an optional protocol in the form of a communications procedure allowing individuals to bring claims to the Committee on Economic, Social and Cultural Rights in the case of alleged violations of any provision of the Covenant. This would be an important development in international law: one that promises to help parties to the Covenant honour the commitments they have made at law, complementing and expanding remedial avenues under the European, Inter-American and African regional human rights systems, and affirming our deeper commitment to the realization for all people of a life of dignity, free from want. Alternatively, a decision not to adopt such a mechanism would also have repercussions, possibly having a chilling effect on the important developments we have seen at the national level to date.
Ultimately, the potential for such an instrument to have an effective impact at the national level will depend in large part on the procedure adopted. States are still faced with further questions and I hope that discussions in Nantes will help find appropriate answers. The programme of work for this seminar sets out many of these questions - allow me to draw attention to four.
The first concerns the issue of ensuring that people who suffer most from poverty and social exclusion have access to such a procedure. While any human rights procedure should focus foremost on hearing claims brought by individuals themselves, could there be value in allowing public interest organizations to bring communications on behalf of individuals? What might be the appropriate modalities to achieve this?
A second issue relates to claims of grave or systematic violations of economic, social and cultural rights? To what extent might it also be appropriate to include an option within a protocol of allowing Committee members to undertake country investigations upon agreement by the government?
A third issue concerns the relationship between an optional protocol and international cooperation. States parties to the Covenant have undertaken to take steps to achieve the progressive realization of economic, social and cultural rights - individually but also through international cooperation. In what ways could an individual communications procedure be useful to identify areas where international cooperation is wanting or necessary?
The fourth issue concerns modalities for follow-up to views and recommendations of the Committee. While an optional protocol provides an important means of identifying the responsibilities of governments and remedies for individuals, the impact at the national level will often be lost in the absence of monitoring of the implementation of those recommendations. What appropriate follow-up mechanism could be included under an optional protocol?
In conclusion, I recall that we are at an important juncture. Protecting economic, social and cultural rights is not only a legal obligation, it also provides a means of combating poverty and social injustice, wherever that might be. While protection must primarily take place at the national and even local level, action at the international level can and does have an effect. Our experience demonstrates that individual communications procedures can have a positive impact on individuals and States. In the current context of the reform of the human rights machinery, our deliberations over an optional protocol to the International Covenant on Economic, Social and Cultural Rights provide the opportunity for real change for individuals and improvements for all in the implementation of economic, social and cultural rights.