Philippe Texier
in Hommage à Léo Matarasso, Séminaire sur le droit des peuples, Cahier réalisé par CEDETIM-LIDLP-CEDIDELP, Février 1999
First of all, it seems to me that the term “new rights” is inappropriate when we talk about economic, social and cultural rights. On the one hand, because these rights are concomitant to other rights, and this since the Declaration of the Rights of Man and of the Citizen of 1789 and the Universal Declaration of Human Rights of 1948, which deals with both civil and political rights and economic, social and cultural rights, as well as the two pacts that followed this declaration. On the other hand, all international meetings affirm in a very solemn way the universality, complementarity and indivisibility of human rights.
If we speak today of “new rights”, it is because of the different status that has been given to these two forms of rights. When the Universal Declaration of Human Rights was drafted, there was only one covenant of application, and all the drafters felt that these rights should be considered from one angle and in the same way. This was reiterated in 1968 at the Tehran Conference and again in 1993 at the Vienna Conference. To speak of “new rights” in relation to economic, social and cultural rights seems to me to be as inappropriate as speaking of first-generation rights, second-generation rights, etc., because it is tantamount to saying that civil and political rights preceded social, economic and cultural rights. This attitude is both historically inaccurate, because if we look at the United Nations institutions, the ILO, for example, preceded the other institutions, and also dangerous, because it means giving these social, economic and cultural rights a lower place than civil and political rights.
It is nevertheless true that in the history of the United Nations they have had an inferior place. For example, when these covenants were drawn up, we were in the middle of the Cold War: the Western countries did not want to hear about economic, social and cultural rights, and the countries of the Soviet bloc, while they accepted the idea of these rights, did not want any control over their actual application. This explains the creation of two separate covenants with very different treatment. On the one hand, the Covenant on Civil and Political Rights was adopted together with an additional and optional protocol that allows for individual and collective remedies to verify their application, which does not exist for social, economic and cultural rights; On the other hand, the first pact creates a control body, the Human Rights Committee; the second pact does not create anything and entrusts ECOSOC (Economic and Social Council) with the task of verifying their application, initially in a total informalism, then in 1985 by the creation of an Economic, Social and Cultural Rights Committee. Moreover, the additional protocol allowing individual and collective recourse still does not exist, although the Vienna Conference in 1993 entrusted the Committee on Economic, Social and Cultural Rights, in relation with the Commission on Human Rights, with the task of drafting a text which has still not been adopted.
For all these reasons, these are “new rights”, but they are fundamentally linked to the others. What is new is, on the one hand, the awareness of their existence and, on the other, the increase and diversification of the violations they suffer. I believe that this violation of economic, social and cultural rights is an issue that we must work on.
This lack of awareness of these rights is not only the fault of the State, as civil society plays an important role. For example, the statutes of an NGO like Amnesty International refer only to civil and political rights, although other NGOs are beginning to become aware of the existence of these rights. Does this mean that violations of civil and political rights are more serious or more massive? I think not, because as the UNDP figures state “more than a billion people live in conditions of extreme poverty, homelessness, hunger and malnutrition, unemployment, illiteracy and chronic ill health. More than 1.5 billion people do not have access to safe drinking water and live in unsanitary conditions, more than 500 million children do not have access to education, even at the primary level, and more than one billion adults cannot read or write.
These figures speak for themselves and, provocatively, it could be said that more people die of hunger than of torture. Similarly, the current evolution of the economic and financial system is leading to an increase in the gap between rich and poor: poverty no longer concerns only poor countries, but also reaches rich countries, and globalisation, which has been discussed this morning as a new form of imperialism, is aggravating the marginalisation of entire populations. The dramatic consequences of massive capital transfers carried out in a few hours, as was the case in Mexico in 1994 and more recently in South-East Asia, are a concrete illustration of the problem, because tens of thousands of people find themselves in debt or impoverished from one day to the next with no possibility of recourse. Where is the human dignity in the face of international financial stringency?
So much for the inaccuracy of the term “new” when referring to economic, social and cultural rights. On this subject, the Algiers Declaration is very prescient, because if we look at what is devoted to these rights, we see that in addition to certain points mentioned in the preamble, sections 3, 4 and 5 (i.e. half of this text) refer to them.
There are many reasons for this difference in the treatment of rights and for the worsening of violations of economic, social and cultural rights. First of all, the fall of the Berlin Wall not only eliminated a kind of political pluralism, but also and above all imposed liberalism as the only economic model. Secondly, the domination of politics by the economy and finance means that the state is powerless to control capital flows. The questions are: should we demand more state, or more state where there is none? How can we fight against the destabilization of a country or an entire region linked to the rapid movement of capital on a computer in a few seconds? What can we do against multinationals and financial groups? I am personally convinced that we must urgently work on the tracks.
The Tobin tax, which consists of imposing or limiting rapid capital transfers, and the fight that was waged around the MAI are also interesting, but do we need to go further? Can we, for example, hold the IMF, the World Bank, the IDB or the multinationals to account? One of the consequences of globalisation, despite all the positive aspects that can be found in it, is that, in a way, it increases the imbalances between North and South, rich and poor, and contributes to the creation of two-speed societies, not only within countries, but also at the universal level, with a minority of included and a majority of excluded. Some work is beginning to be done on this subject, including in the UN bodies, particularly on labour law and relocation to countries where labour is cheap and working conditions are deplorable.
This awareness exists and, for example, at its last International Conference in June 1998, the ILO created a “hard core” of labour law, i.e. a regulation below which we cannot go. This idea should not only be explored, but also imposed.
Article 2 of the International Conference of the ILO states that “all Members, even when they have not ratified the ILO Conventions, have the obligation, by the mere fact of their membership in the Organisation (which concerns almost all countries), to respect, to promote and to realize in good faith and in accordance with the constitution, the principles of fundamental rights which are the subject of the said Convention, namely: freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forced or compulsory labour, the effective abolition of child labour, the elimination of all discrimination in respect of employment and occupation”. These standards, which the ILO intends to impose on itself and on member states, are beginning to be taken into account by companies. A number of charters have been drawn up by national or multinational companies, prohibiting or limiting trade with countries that produce under the conditions denounced. The aim now is to extend these standards to commercial institutions.
As a second example, I would like to talk about the measures taken by the International Financial Institutions (IFIs), in particular by the World Bank, but especially by the IMF. Countries that violate economic, social and cultural rights systematically put forward in their defence the famous structural adjustment plans imposed on them by the IMF. According to a study, these plans generally have the same main axes: the imposition of privatizations (8 times out of 10), a reduction of the foreign debt (8 times out of 10), and a reduction of social budgets. The consequence of these plans is to further marginalize those who are already marginalized. They also show that in these organizations, even though they are linked to the United Nations, the notion of economic, social and cultural rights is totally absent. At the Committee on Economic and Social Rights, we have been trying for the last ten years to organise a conference with these IFIs, in order to promote the idea that in any adjustment plan the human dimension should be respected. In all these areas, there are no “new rights” but new massive violations that result in famine, wars, lack of health care, lack of access to education, ecological disasters… How can we control, prevent or punish these abstract financial flows?
Whatever we think of the Rome meeting on the International Criminal Court, it has given rise to new hope. There are ad hoc tribunals that have been set up for the former Yugoslavia, for Rwanda, like the Nuremberg tribunal, but with the same defects, because they are commissions that deal with the situation of a country at a given moment, without being able to go back to an earlier period, and without being able to extend to the surrounding context. The idea of the ICC goes further, although this jurisdiction also has certain flaws. On the one hand, some States, and not the least (USA, Israel,…) do not want it and have made it known that they would never ratify it, on the other hand, it is not retroactive, and some of the crimes it provides for are not subject to any statute of limitations (genocide, crimes against humanity,…), finally, it only gives itself jurisdiction over certain crimes, without including economic crimes. This last point is difficult to decide, because as Samir Amin said this morning, given the world political situation, it will be a two-speed jurisdiction, in the sense that, in any case, some States and some criminals belonging to certain States will never appear. That is true, but we must be pragmatic: we cannot exclude today that some Yugoslav war criminals will one day be tried.
On the question of these economic crimes, I think it was important that this international court should reserve its jurisdiction for the most serious crimes, recognised by international law. I am one of those who believe that extending its jurisdiction to international trafficking is a mistake, because it will be all the stronger if its jurisdiction is reduced and targeted. But the problem of economic crimes remains, and the League, the TPP and other forms of association have a vital role to play, because sooner or later these crimes must be brought to justice. As NGOs, we need to push these issues. Legally, there are immense difficulties, because on the one hand, through these jurisdictions, it would not only be a question of judging States or individuals, but we could be led to judge the policy of the IMF, of multinational companies (as the Permanent Peoples’ Tribunal has already done). These are not insurmountable obstacles, and it is a work that we must advance, by participating in this awareness that these crimes are massive, and just as serious as the violations of civil and political rights, and that they give rise to even greater impunity, particularly because of the difficulty of defining the phenomenon and identifying the culprits.
Throughout this presentation, I have confined myself to raising questions and suggesting avenues for reflection. We could extend this debate on the new violations that progress in science and bioethics or the phenomenon of generalized information generally entail: the Internet raises totally new questions of rights. If, when we speak of “new rights”, we are referring to these, they are indeed new in relation to the Algiers Declaration, but I do not think that they are of a fundamentally different nature from other rights: their defence is based on the same notion of human dignity, and I do not believe that we need to create new instruments to ensure that these rights are respected. I was actually shocked that UNESCO adopted a Universal Declaration on the Human Genome, because, in my opinion, there is only one Universal Declaration, that of 1948, and in a way it is rather dangerous to dilute the problems by creating new instruments, new conventions, when, if we were to work to ensure that the existing conventions were applied, they would prove to be quite sufficient.
The real question is how to fight so that the essential rights are guaranteed to the greatest number. The real objective of ELEC and the Foundation is, on the one hand, to work on prevention and, on the other hand, to achieve sanctions, particularly in the field of economic, social and cultural rights. This last point must be the subject of our future work. Texier, Philippe
in:
<strong>Hommage à Léo Matarasso, Séminaire sur le droit des peuples
Cahier réalisé par CEDETIM-LIDLP-CEDIDELP, Février 1999
L’Harmattan, Paris, 2004</strong>