Independent Expert's second study on an Optional Protocol (2003) E/CN.4/2003/53
COMMISSION ON HUMAN RIGHTS
Fifty-ninth session
Item 10 of the provisional agenda
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Status of the international covenants on human rights
Report by Mr. Hatem Kotrane, independent expert on the question of
a draft optional protocol to the International Covenant on Economic,
Social and Cultural Rights
GE.03-10292 (E) 200203 250203
Summary
In his first report, submitted to the Commission on Human Rights at its
fifty-eighth session (E/CN.4/2002/57), the independent expert declared himself in favour of
adopting the draft optional protocol to the International Covenant on Economic, Social and
Cultural Rights, although he believed that many of the questions discussed in his report needed
to be studied in greater depth.
The present report focuses mainly on the three questions that the Commission, in its
resolution 2002/24, adopted at its fifty-eighth session, requested the independent expert to study
in greater depth, namely:
1. The question of the nature and scope of States parties’ obligations under the Covenant.
The independent expert believes that these obligations include each State’s duty to respect,
protect and actively realize the rights set forth in the Covenant; each of these commitments
entails elements of the obligation of conduct and the obligation of result.
All States have an obligation to take steps immediately, or at least within a reasonably
short time after the Covenant’s entry into force, by taking legislative, administrative, financial
and other measures and by setting up appropriate mechanisms that can contribute, progressively
but actively, to the full realization of all the economic, social and cultural rights recognized in
the Covenant.
All States have an obligation to endeavour to ensure the widest possible enjoyment of all
the rights recognized in the Covenant without any discrimination and on the basis of equal
opportunity, paying special attention to the protection of the rights of the most vulnerable
segments of the population and to the equitable and effective use of the available resources.
All States have an obligation to eliminate immediately all forms of discrimination arising
from legislation and to take steps to combat, through vigorous and appropriate measures, those
forms of discrimination arising from practices and traditions that prevent the equal enjoyment by
everyone of all the rights recognized in the Covenant.
Every State party has a minimum core obligation to ensure the satisfaction of minimum
essential levels of each of the rights contained in the Covenant.
2. The question of the justiciability of economic, social and cultural rights. In the light of
the experience gained in recent years from the application of international, regional and national
human rights instruments and mechanisms, the independent expert notes that there is no longer
any doubt about the essentially justiciable nature of all the rights guaranteed by the Covenant.
3. The question of the benefits and the practicability of a complaint mechanism under the
Covenant and the issue of complementarity between different mechanisms. The independent
expert believes that the procedure envisaged would be both beneficial and practical:
− It would be beneficial in that it would, among other things, ensure that effect was
given to every individual’s right to appeal, and contribute to the development of
international law by producing a coherent body of principles covering all the rights
set forth in the Covenant; these principles could gradually acquire an authority that
would be recognized by all, both at the international level and in the various countries
where they could be used in the drafting of national legislation. It would also be
beneficial in that it would provide more vigorous support for the principle of the
indivisibility and interdependence of all human rights;
− It would be practical if, and to the extent that, the new procedure to be established
was cost-effective and ensured the necessary complementarity and coordination with
other mechanisms.
In conclusion, the independent expert recommends that the Commission adopt a
resolution confirming the decision contained in its resolution 2002/24 to establish, at its
fifty-ninth session, an open-ended working group of the Commission with a view to considering
options regarding the elaboration of an optional protocol to the International Covenant on
Economic, Social and Cultural Rights.
Introduction
1. At its fifty-seventh session, the Commission on Human Rights in its resolution 2001/30
took note of the report on the workshop organized on 5 and 6 February 2001 by the Office of the
United Nations High Commissioner for Human Rights and the International Commission of
Jurists on the justiciability of economic, social and cultural rights (E/CN.4/2001/62/Add.2) and
the report of the High Commissioner on the draft optional protocol to the Covenant
(E/CN.4/2001/62 and Add.1) and decided to appoint an independent expert to examine the
question of a draft optional protocol to the International Covenant on Economic, Social and
Cultural Rights in the light of the report of the Committee on Economic, Social and Cultural
Rights to the Commission on a draft optional protocol (E/CN.4/1997/105, annex), comments by
States, intergovernmental and non-governmental organizations, and the report on the workshop
on the justiciability of economic, social and cultural rights. The independent expert was called
upon to submit a report to the Commission at its fifty-eighth session with a view to its
consideration of possible follow-up and future actions, including the establishment of an
open-ended working group to examine the question of a draft optional protocol to the Covenant.
2. At the fifty-eighth session of the Commission, the independent expert submitted his first
report (E/CN.4/2002/57), in which he declared himself in favour of adopting the draft optional
protocol, although he believed that many of the questions discussed in his report needed to be
studied in greater depth.
3. At its fifty-eighth session, the Commission adopted resolution 2002/24, in which it took
note with interest of the report of the independent expert appointed to examine the question of an
optional protocol to the International Covenant on Economic, Social and Cultural Rights and the
recommendations it contained (para. 1) and decided to renew, for a period of one year, the
mandate of the independent expert and requested him to examine the following questions:
(a) The nature and scope of States parties’ obligations under the Covenant;
(b) Conceptual issues on the justiciability of economic, social and cultural rights,
with particular reference to the experience gained in recent years from the application of
universal, regional and national human rights instruments and mechanisms;
(c) The benefits and the practicability of a complaint mechanism under the Covenant
and the complementarity between different mechanisms (para. 9 (c)).
4. In its resolution 2002/24, the Commission also decided “to establish, at its
fifty-ninth session, an open-ended working group of the Commission with a view to considering
options regarding the elaboration of an optional protocol to the International Covenant on
Economic, Social and Cultural Rights” (para. 9 (f)).
5. The independent expert has held wide-ranging consultations. A note verbale was sent to
States on 2 June 2002 and letters were sent to interested organizations and experts, seeking their
views on the questions set out in the resolution. As at 15 November 2002, replies had been
received from the Governments of Argentina, Cuba, the Czech Republic, the Islamic Republic
of Iran, Italy, Mexico, the Netherlands, Portugal, Sweden and Thailand, from the World Health
Organization and from a group of 56 non-governmental organizations. The Office of the
United Nations High Commissioner for Human Rights (OHCHR) also prepared a note for the
independent expert covering all three of the questions mentioned above. The International
Commission of Jurists organized a round table on the same questions and submitted its report to
the independent expert.
6. The independent expert also organized, with the High Commissioner’s support, a
programme of consultations in June, September and November 2002 in order to clarify the
three questions set out in the resolution. The first series of consultations and meetings was held
during the meeting of special rapporteurs that took place from 24 to 29 June 2002, with the
Special Rapporteur on adequate housing, two experts from the Committee on Economic, Social
and Cultural Rights and an expert from the International Commission of Jurists. During the
second series of consultations (30 September to 1 October 2002), the independent expert met
with two representatives of the International Labour Office, an expert on international trade,
Mr. George Abi-Saab, and representatives of OHCHR and the International Commission of
Jurists. Finally, on 22 November 2002, the independent expert took part in the discussion day
held by the Committee on Economic, Social and Cultural Rights on the right to drinking water,
at the end of which the Committee adopted its general comment on the subject.
I. NATURE AND SCOPE OF STATES PARTIES’
OBLIGATIONS UNDER THE COVENANT
7. Under article 2, paragraph 1, of the Covenant, “each State party to the present Covenant
undertakes to take steps, individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures”. In his first
report to the Commission, the independent expert underlined the difficulty of determining the
nature and scope of States Parties’ obligations under the Covenant. Unlike those whose various
analyses and views tend to minimize the scope of the progressive nature of the realization of
economic, social and cultural rights and to consider the above-mentioned provisions of the
Covenant as purely fortuitous provisions of no real significance to the substantive issue, the
independent expert said he believed that these provisions needed to be considered carefully.
Besides, they do not in themselves in any way diminish the value of economic, social and
cultural rights, especially today, when it is increasingly asserted and recognized that a person
living in extreme poverty or destitution is faced with a situation that is in many respects similar
to that faced by a person subjected to the worst atrocities and torture. The ensuing discussion is
therefore not - or at least should not be - a discussion of the value attributed to these rights or of
their place in the classification of international human rights. All human rights are, as
recognized in the Vienna Declaration and Programme of Action, “universal, indivisible and
interdependent and interrelated”, and so cannot be put in any kind of hierarchical order.
8. Today, all this is well known. The independent expert will nevertheless attempt here to
resolve the difficulties and doubts that have been expressed by undertaking a methodical and
in-depth analysis of the exact scope and nature of States parties’ obligations under the Covenant.
To do this, the independent expert draws on a number of sources, including the Limburg
Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights, the Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights, and the general comments of the Committee on Economic, Social and Cultural Rights.
A. Precise scope of States’ obligations: the obligations
to respect, protect and fulfil
9. Under article 2, paragraph 1, of the Covenant, each State party undertakes:
− “to take steps …”: all States parties have an obligation to begin immediately to take
steps towards the full realization of the rights contained in the Covenant.1 The
Committee on Economic, Social and Cultural Rights has emphasized that steps
should be deliberate, concrete and targeted as clearly as possible at the full realization
of economic, social and cultural rights and that they should be taken by the State
concerned within a reasonably short time after the Covenant’s entry into force
(E/1991/23, annex III, para. 2);
− “… through international assistance and cooperation …”: the Committee has
highlighted the crucial role of international assistance and cooperation in facilitating
the full exercise of economic, social and cultural rights; it has emphasized that
international cooperation for development, and thus for the realization of economic,
social and cultural rights, is an obligation of all States and that, without it, the full
realization of economic, social and cultural rights will remain an unfulfilled aspiration
in many countries (ibid., paras. 13 and 14). More particularly, international
cooperation and assistance should be directed towards the establishment of a social
and international order in which the rights and freedoms set forth in the Covenant can
be fully realized;2
− “… to the maximum of its available resources …”: the Committee has stated that,
even where the available resources are demonstrably inadequate, an obligation for a
State party to strive to ensure the widest possible enjoyment of the relevant rights
under the prevailing circumstances and, in particular, to protect the rights of the most
vulnerable (ibid., paras. 11 and 12). In determining whether adequate measures have
been taken to realize economic, social and cultural rights, attention should be paid to
equitable and effective use of and access to the available resources;3
− “… with a view to achieving progressively the full realization of the rights …”: the
Committee has noted that the concept of progressive realization constitutes a
recognition of the fact that full realization of economic, social and cultural rights will
generally not be achieved immediately (ibid., para. 9). However, under no
circumstances should that be interpreted as implying that States are entitled to delay
indefinitely efforts to ensure full realization of the rights or that they are entitled to set
aside the obligation “to take steps” - in fact, States must make the best possible use of
the resources available to them, however limited these may be. Moreover,
notwithstanding the progressive realization requirement, some of the obligations set
forth in the Covenant, such as the prohibition of discrimination, require immediate
implementation in full by all States parties;4
− “… by all appropriate means, including particularly the adoption of legislative
measures”: the appropriate means may include not only the legislative measures
appropriate to a given situation but also the provision of judicial remedies,
administrative measures and economic, social and educational measures. It is for the
State party itself to determine the appropriate means, though its decision is subject to
review by the Committee.5
10. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights set out
States parties’ obligations in respect of the rights contained in the Covenant in the following
manner:6
(a) The obligation to respect requires States to refrain from interfering with the
enjoyment of economic, social and cultural rights;
(b) The obligation to protect requires States to prevent violations of such rights by
third parties;
(c) The obligation to fulfil requires States to take appropriate legislative,
administrative, budgetary, judicial and other measures towards the full realization of such rights.
11. The obligations to respect, protect and fully realize human rights each contain elements
of obligation of conduct and obligation of result:7 the obligation of conduct requires action
reasonably calculated to realize the enjoyment of a particular right, while the obligation of result
requires States to achieve specific targets to satisfy a detailed substantive standard.
B. Obligations at the international level
12. The international aspects of economic, social and cultural rights are covered in
articles 2, 11, 15, 22 and 23 of the Covenant. Thus, while States parties are primarily
responsible for implementing all human rights and it is ultimately incumbent upon them to
respect, protect and realize such rights, other actors or entities also have responsibilities. The
latter include foreign occupying forces and non-State entities, such as transnational corporations
and international organizations, in which States act collectively.8
13. As pointed out above, article 2, paragraph 1, of the Covenant provides that international
assistance and cooperation are a means by which States can give effect to economic, social and
cultural rights. The Limburg Principles state that “international cooperation and assistance must
be directed towards the establishment of a social and international order in which the rights and
freedoms set forth in the Covenant can be fully realized”. Moreover, such cooperation must take
place irrespective of differences in States’ political, economic and social systems and must be
based on the sovereign equality of States. States not only have to cooperate in the realization of
the rights recognized in the Covenant but also have to bear in mind the role of international
organizations and non-governmental organizations.9
14. The Committee has examined the international aspects of economic, social and cultural
rights in its general comments on certain specific rights. More precisely, it has identified certain
important areas of relevance to the international obligations established by the Covenant. A
non-exhaustive list of these areas is provided below (see, for example, E/C.12/1999/10,
paragraph 56; E/1992/23, paragraph 18; and E/C.12/1999/5, paragraphs 36 and 37):
(a) With regard to the negotiation and ratification of international agreements, States
parties should take steps to ensure that these instruments do not have an adverse impact on the
right to education;
(b) States parties have an obligation to ensure that their actions as members of
international organizations, including international financial institutions, take due account of
economic, social and cultural rights;
(c) The international financial institutions promoting structural adjustment measures
should ensure that these measures do not jeopardize the enjoyment of economic, social and
cultural rights;
(d) States parties, both recipients and providers of financial aid, should ensure that a
substantial proportion of financing is devoted to creating conditions that will allow more people
to be adequately housed;
(e) States parties should respect the economic, social and cultural rights that exist in
other countries and provide the necessary aid as required;
(f) States parties should refrain at all times from food embargoes or similar measures
that endanger food production and access to food in other countries; food should never be used
as an instrument of political and economic pressure.
C. Summary of the question and position of the independent expert
15. The above discussion makes it possible now to address the question of the nature and
scope of States parties’ obligations under the Covenant.
1. Scope of States parties’ obligations: obligations of
a progressive nature, but with immediate effect
16. The independent expert is of the view that, although States’ fulfilment of their obligations
implies the progressive nature of such obligations, as expressly stated in article 2, paragraph 1, of
the Covenant, this should in no circumstances be interpreted as implying that States have the
right to delay indefinitely measures to ensure the full realization of all the rights recognized in
(a) All States have an obligation to take steps immediately, or at least within a
reasonably short time after the Covenant’s entry into force, by taking legislative, administrative,
financial and other measures and by setting up appropriate mechanisms that can contribute
progressively but actively to the full realization of all the economic, social and cultural rights
recognized in the Covenant;
(b) All States have an obligation to endeavour to ensure the widest possible
enjoyment of all the rights recognized in the Covenant without any discrimination and on the
basis of equal opportunity, paying special attention to the protection of the rights of the most
vulnerable segments of the population and to the equitable and effective use of the available
resources;
(c) All States have an obligation to eliminate immediately all forms of discrimination
arising from legislation and to take steps to combat, through vigorous and appropriate measures,
those forms of discrimination arising from practices and traditions that prevent the equal
enjoyment by everyone of all the rights recognized in the Covenant.
2. Nature of States parties’ obligations: obligations
of conduct and obligations of result
17. In his first report (E/CN.4/2002/57, para. 20), the independent expert stressed that the
obligations assumed by States under the Covenant are generally presented, because of their
objective, not as obligations of result but as obligations of conduct, which means that States -
particularly the poorest States - cannot be held solely responsible for the difficulties they
encounter in meeting the vital needs of their populations. Quite often they have only assumed a
general obligation of diligence, so to speak, undertaking to do all they can to bring about the
progressive realization of the rights set forth in the Covenant. In short, these States would like to
accomplish all that is humanly and socially desirable but in fact they can only guarantee in the
long run what is economically feasible.
18. Nevertheless, the independent expert will try to define precisely, within the framework of
the general obligation of diligence assumed by States, their actual, measurable obligations and to
translate the provisions of the Covenant into specific commitments, the violation of which could,
in certain cases, justify resorting to the communications procedure that would be put in place by
the draft optional protocol to the Covenant.
19. In the first place, the independent expert is of the view that the obligations assumed under
the Covenant are sometimes true obligations of result, any violation of which can be easily
noticed and assessed. This would be the case whenever the State party commits a “violation
through acts of commission”. In such cases, the State party would be violating, so to speak, an
obligation “not to do something”, which is by its very nature a measurable obligation and hence
not usually subject to different interpretations. States parties cannot simply undertake to do their
best not to violate commitments that fall within this category of international commitments. The
obligation is flouted in its entirety, and the right in question is violated the moment a State does
something that it is forbidden to do.
20. The Maastricht Guidelines give the following examples of violations through acts of
commission: the formal removal or suspension of legislation necessary for the continued
enjoyment of an economic, social and cultural right that is currently enjoyed; and the active
denial of such rights to particular individuals or groups, whether through legislated or enforced
discrimination.10
21. In any event, any violation by a State party of the principle of non-discrimination
constitutes a violation through an act of commission, as it is in contravention of the express
provisions of article 2, paragraph 2, of the Covenant, according to which “the States Parties to
the present Covenant undertake to guarantee that the rights enunciated in the present Covenant
will be exercised without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status”. In other
words, if the resources are available to enable a given right to be enjoyed to some extent, the
right must be exercised in circumstances that involve no discrimination, and the State will clearly
have failed in its obligation of result if ever it takes or maintains legislative, administrative or
other measures that prevent individuals or groups of individuals from enjoying on an equal
footing any of the rights recognized in the Covenant. Clearly, respect for such a fundamental
principle is not a question of resources, and the obligations of States parties is measurable by its
very nature and hence not usually subject to different interpretations. States parties cannot
simply undertake to do their best not to violate the principle of non-discrimination. The
obligation is flouted, in its entirety, and the principle in question is violated the moment the State
does something that it is forbidden to do.
22. In the second place, the independent expert is of the view that, in the remaining cases,
whenever the obligations assumed under the Covenant consist of taking steps, or “doing
something” - which no doubt relates back to a longer list of commitments undertaken by
States parties under the Covenant - violations of these obligations concern “violations through
acts of omission” and, depending on the circumstances and pertain to a violation of true
obligations of result or of simple obligations of conduct, depending on the State’s scope for
action and the means objectively available to the State to give effect to the rights for which it is
responsible.
23. According to the Maastricht Guidelines, there may be violations through acts of
omission if a State party fails to take appropriate steps as required by the Covenant or fails to
reform or repeal legislation that is manifestly inconsistent with an obligation arising from the
Covenant.11
24. In any case, each State party has a minimum core obligation to ensure the satisfaction of
the basic content of each of the rights contained in the Covenant. A State in which many people
lacked the basics - food, primary health care, housing or education - would ostensibly be failing
in its obligations under the Covenant and would thus be violating an obligation of result. The
Committee on Economic, Social and Cultural Rights has pointed out in this respect that any
interpretation of the Covenant that does not reflect this minimum core obligation would render
the Covenant largely meaningless (E/1991/23, para. 10).
II. JUSTICIABILITY OF ECONOMIC, SOCIAL AND CULTURAL
RIGHTS: INTERNATIONAL, REGIONAL AND NATIONAL
HUMAN RIGHTS INSTRUMENTS AND MECHANISMS
A. Experience gained at the national level
25. The nature and scope of economic, social and cultural rights and their justiciability are
becoming better defined in national case law. Cases touching on a broad spectrum of economic,
social and cultural rights have been brought before various national courts.
26. The cases mentioned below have been selected in such a way as to reflect regional
diversity and to cover a broad spectrum of the rights recognized in the Covenant.
1. The right to work and the right to the enjoyment of just
and favourable conditions of work (articles 6 and 7
of the Covenant)
27. In the case of Daily Rated Casual Labour Employed under P & T Department through
Bharatiya Dak Tar Mazdoor Manch v. Union of India and others (AIR, 1987, SC 234), the
petitioners complained that their wages were very low and were lower than those of permanent
staff doing similar work even though the petitioners had been in their jobs for a long time (up
to 10 years in some cases). Moreover, the petitioners pointed out that the Government had not
set up any scheme to absorb them gradually into the civil service and that they had been denied
the social benefits - such as annual increments, pensions, leave and other benefits - enjoyed by
employees holding permanent contracts. The court found that, although constitutional guidelines
requiring the State to reduce inequalities in status, facilities and career opportunities were not
enforceable as such, they could serve as a basis for determining the existence of hostile
discrimination. In the case in point, there was hostile discrimination amounting to exploitation
of the workers and thus to a denial of their human rights. Moreover, the classification of casual
labour according to the number of days worked was also a violation of the right to a fair wage
and equal pay for equal work without discrimination of any kind.
28. In another case brought before the Indian Supreme Court, Apparel Export Promotion
Council v. A.K. Chopra (AIR, 1999, SC 625), the Court defined sexual harassment (in the
workplace) as including unwelcome behaviour with sexual overtones (whether explicit or
implicit) such as: (a) physical contact and advances; (b) a demand or request for sexual favours;
(c) sexually coloured remarks; (d) showing pornography; and (e) any other unwelcome physical,
verbal or non-verbal conduct of a sexual nature.
3. Right to social security, including social insurance
(article 9 of the Covenant)
29. In case No. 2000-08-0109, on compliance of item 1 of the transitional provisions of
the Social Security Act with articles 1 and 109 of the Latvian Constitution, the Constitutional
Court of Latvia considered a dispute over non-payment of social insurance premiums for
over 13,000 employees and the irregular payment of social insurance premiums
for 67,000 employees in 1999 alone. It transpired that many employers liable to pay social
insurance premiums for their employees in the form of a tax had not done so. The Court ruled
that, by recognizing the right to social security, the State was obliged to implement it, which it
had not done in this case. It considered that the employer was bound by law to pay the
obligatory premiums to each of its employees. When the employer failed in its duty, the
organizer of the insurance (that is, the State) had to guarantee the implementation of the law
through compulsory measures. The State was thus required to set up an effective
implementation mechanism to guarantee the uniform implementation of the right to social
security.
4. Right to an adequate standard of living, including adequate food,
clothing and housing, and to the continuous improvement of
living conditions (article 11 of the Covenant)
30. In the Government of the Republic of South Africa and others v. Grootboom and others
case, the Supreme Court of South Africa noted that the Government had set up a programme for
the progressive realization of the right to adequate housing. However, as the programme did not
take account of the needs of people in extremely precarious situations, the measures taken were
not considered reasonable.
31. In Olga Tellis and others v. Bombay Municipal Corporation and others (AIR, 1986,
SC 180), the Supreme Court of India declared that the right to life was not limited to questions
such as capital punishment but also covered the right to a source of income - in other words, the
right to have the means to live. Consequently, the expulsion of about 500 people living on the
street and in shanty towns would deprive them of their means of subsistence and thus their right
to life. A decision that deprived them of this right was nevertheless acceptable insofar as it
complied with an “equitable, just and reasonable” legal process. According to those living in the
shanty towns, this definition covered the basic rules of natural justice, namely, their right to
make use of their resources.
5. Right to the enjoyment of the highest attainable standard
of physical and mental health (article 12 of the Covenant)
32. In the Minister of Health and others v. Treatment Action Campaign and others
case, the Supreme Court of South Africa found that restricting the availability of a particular
treatment for HIV/AIDS to certain hospitals and clinics was a violation of the right to health,
since this policy led to long waits for decisions authorizing the treatment of patients outside
those particular hospitals and clinics; such waits were unreasonable within the meaning of the
Constitution.
6. Right to education (articles 13 and 14 of the Covenant)
33. In Campaign for Fiscal Equity et al. v. the State of New York et al. (719 NYS
2d 475 2001), the New York State Supreme Court considered the scope of the right to education
under the New York State Constitution. The court considered a complaint from students, parents
and educational organizations alleging that the State had failed in its obligation to provide
sufficient funding to public schools in New York City in order to ensure that their pupils
received “a sound basic education”, as provided for in the State Constitution. With regard to the
scope of the right to education, the court indicated that the State must take steps to ensure that at
least adequate resources were provided for pupils in the city’s public schools. With regard to
funding, the State should determine, insofar as possible, the actual cost of providing a sound
basic education in the various educational districts and hence the State must embark on reforms
of the school funding system and rectify its shortcomings.
B. Experience gained at the regional level
34. The nature and scope of economic, social and cultural rights and their justiciability are
also becoming better defined in the case law of regional human rights mechanisms. Cases
touching on a broad spectrum of economic, social and cultural rights have been brought before
the European Court of Human Rights, the new European Committee of Social Rights and the
African Commission on Human and Peoples’ Rights.
1. European Court of Human Rights
35. In the Gustafsson case, dated 25 April 1996, the European Court of Human Rights
inferred from article 11 of the European Convention on Human Rights that employers and
unions have a right to negotiate. By agreeing to recognize the existence of a fundamental social
right derived from civil and political law, in the form of the right of association - even though
article 11 extends this right to cover trade union freedom - the Court undoubtedly reconfirmed
the uniqueness and indivisibility of human rights, whether civil or political rights or economic
and social rights.12
36. In the Gaygusuz case, dated 16 September 1996, the European Court of Human Rights
ruled that an application for a minimum living allowance could not be rejected on the grounds
that the applicant did not have the nationality of the country of residence when the applicant met
all the other requirements for payment. According to the Court, only “very weighty” reasons
could lead it to consider a difference of treatment based on nationality as compatible with the
Convention, and no such reasons had been given in this case.13
37. In Airey v. Ireland, dated 9 October 1979, the European Court of Human Rights deemed
that there was no “watertight division” separating the sphere of economic and social rights from
the field covered by the European Convention on Human Rights and that “whilst the Convention
sets forth what are essentially civil and political rights, many of them have implications of a
social or economic nature”. Accordingly, human rights were bound to have an influence on
social rights as such.14
38. In the Delgado case, dated 14 November 2000, the European Court of Human Rights
found that labour disputes, because they concern “matters of crucial importance to a person’s
professional situation”, must be settled quickly and with “particular dispatch”.15
2. European Committee of Social Rights
39. In its first decision, dated 9 September 1999, concerning the prohibition of child labour,
the new European Committee of Social Rights ruled against Portugal, recalling that the aim of
the revised European Social Charter - which replaced the earlier European Social Charter and
introduced new social rights - is not to protect “theoretical” rights and that “the satisfactory
implementation [of its provisions] cannot be achieved solely through legislation”. On the
contrary, respect for these provisions presupposes that their implementation is “rigorously
controlled” by the States that are signatories to it.16
3. African Commission on Human and Peoples’ Rights
40. In Representatives of the Ogoni people v. the Government of Nigeria, which was
submitted to it recently, the African Commission on Human and Peoples’ Rights considered a
communication in which the representatives of the Ogoni people claimed that a number of their
fundamental rights had been violated as a result of the behaviour of the Government of Nigeria,
acting through the national petroleum company, which is a majority shareholder in a consortium
with Shell Petroleum. The Court ruled that the Government’s failure to take certain measures to
protect the local population and to avoid ill-considered and destructive military acts, as well as
acts harmful to the environment, resulted in the violation of a number of human rights, in
particular the right to health, the right to a clean environment, the right of all peoples to dispose
freely of their wealth and natural resources, the right to property, the right to the protection of the
family, the right to housing, the right to food and the right to life and the integrity of the person.
C. Experience gained at the international level
41. The nature and scope of economic, social and cultural rights and the possibility of
invoking them in a court of law are being defined more and more clearly in the case law of
international human rights mechanisms. Cases concerning a broad spectrum of economic, social
and cultural rights have been brought before, inter alia, the Human Rights Committee, the
Committee on Freedom of Association of the Governing Body of the International Labour
Office, and the Committee on Conventions and Recommendations of the Executive Board of the
United Nations Educational, Scientific and Cultural Organization (UNESCO).
1. Human Rights Committee
42. In Communication No. 182/1984 (Netherlands),17 the Human Rights Committee
considered that a violation of article 26 of the International Covenant on Civil and Political
Rights (equality before the law) could be invoked even if it related to the economic, social and
cultural rights contained in the International Covenant on Economic, Social and Cultural Rights.
The case in question concerned the right to social security, covered in article 9 of the Covenant.
2. Committee on Freedom of Association of the Governing
Body of the International Labour Office
43. The experience gained in the consideration of nearly 2,000 cases in the course of
its 50 years of existence has enabled the Committee on Freedom of Association of the Governing
Body of the International Labour Office to prepare a coherent, comprehensive and balanced
body of principles governing freedom of association and collective bargaining based on the
provisions of the Constitution of the International Labour Organization (ILO) and the relevant
conventions, recommendations and resolutions. Since it was produced by an impartial and
prestigious international specialized agency whose activities reflect a tripartite perspective
on real situations, this body of principles has acquired an authority that has been recognized by
all, both at the international level and in the various countries where it is increasingly being used
in the drafting of national legislation. This section will be confined to the presentation of a
summary of the cases that have been examined by the Committee on Freedom of Association
and of principles and decisions that highlight its decisive contribution to the definition of the
nature and scope of trade union rights in the world and the possibility of invoking them in a court
of law (justiciability).
44. In case No. 1273,18 the Committee on Freedom of Association affirmed that “it should be
the policy of every government to ensure observance of human rights”.
45. In case No. 1480,19 the Committee on Freedom of Association referred to the Tripartite
Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the
Governing Body of the International Labour Bureau in November 1977, paragraph 45 of which
states that “where governments of host countries offer special incentives to attract foreign
investment, these incentives should not include any limitation of the workers’ freedom of
association or the right to organize and bargain collectively”.
46. In case No. 1512,20 the Committee on Freedom of Association found that “facts
imputable to individuals incur the responsibility of States because of their obligation to remain
vigilant and take action to prevent violations of human rights”.
47. In case No. 1581,21 the Committee on Freedom of Association found that “trade union
rights, like other basic human rights, should be respected no matter what the level of
development of the country concerned”.
48. In case No. 1590,22 the Committee found that “the matters dealt with by the ILO in
respect of working conditions and promotion of freedom of association cannot be considered to
be undue interference in the internal affairs of a sovereign State since such issues fall within the
terms of reference that the ILO has received from its members, who have committed themselves
to cooperate with a view to attaining the objectives that they have assigned to it”.
3. Committee on Conventions and Recommendations
of the UNESCO Executive Board
49. UNESCO has, pursuant to its mandate, drawn up many standard-setting human rights
instruments, especially in the educational field, education being considered an empowering right
that provides the means of upholding the principles of non-discrimination and equal opportunity,
as recognized, inter alia, in the Convention against Discrimination in Education that it adopted
on 14 December 1960. Since then, it has adopted other binding instruments, in the form of
decisions of the General Conference, instruments adopted at intergovernmental conferences, and
instruments adopted in the form of UNESCO Executive Board decisions. The procedure for
examining complaints received at UNESCO concerning alleged violations of the human rights
that fall under its jurisdiction, namely, education, science, culture and information, offers an
edifying example: it is defined in Executive Board decision 104 EX/3.3, and applied by a body
subsidiary to the Board, the Committee on Conventions and Recommendations, to which States
accord jurisdiction simply by being members of the organization. In practice, even States that
are not members of UNESCO have been perfectly willing to allow communications concerning
them to be considered by the Committee.23
D. Summary of the question and position of the independent expert
50. The preceding developments make it possible to reply to the question of the justiciability
of economic, social and cultural rights. The experience gained in recent years from the
application of international, regional and national human rights instruments and mechanisms is,
without any doubt, indicative of the development and recognition of economic, social and
cultural rights, and of mechanisms for monitoring them, at the national, regional and
international levels. However, if all economic, social and cultural rights are justiciable, it must
still be recognized - as the European Court of Human Rights affirmed in the above-mentioned
Delgado case - that cases involving such rights should be settled quickly and with “particular
dispatch”.
51. While the often progressive nature attributed to economic, social and cultural rights may
give rise to a discussion of the nature and scope of States parties’ obligations under the
Covenant - obligations of conduct or obligations of result (see above, chapter I, section C) - the
independent expert is of the view that there can be no doubt as to the essentially justiciable
nature of all the rights guaranteed under the Covenant. The question is then, at most, one of
determining the liability of States and the conditions in which a State may be considered to have
failed to fulfil one of its obligations:
(a) In all cases where a State party fails to fulfil an obligation of result, its liability
should be incurred and recognized from the moment that, through its action or its manifest
inaction, the State causes actual damage to individuals or groups of individuals who claim to be
victims. This would be the case when the State party commits violations by action - be it any
violation of the principle of non-discrimination (see above, paragraphs 20 and 21) or when it
fails to fulfil a minimum core obligation to ensure the enjoyment of the basic content of each of
the rights contained in the Covenant (see above, paragraph 24).
(b) In all other cases where a State party fails to fulfil an obligation of conduct, its
liability could be incurred on the basis of violations by omission and should be assessed in
accordance with the scope for action and the means objectively available to the State to give
effect to the rights for which it is responsible (see above, paragraphs 22 and 23).
52. However, in addition to the questions concerning the nature and scope of the obligations
assumed by States parties under the Covenant, these obligations may not be reduced to mere
moral obligations, or mere “wishes”. It is rather, and just as much, a question of legal
obligations assumed by virtue of an obligatory and binding international instrument.
III. BENEFITS AND PRACTICABILITY OF A COMPLAINT
MECHANISM UNDER THE COVENANT AND THE
ISSUE OF COMPLEMENTARITY BETWEEN
DIFFERENT MECHANISMS
A. Benefits and practicability of a complaint mechanism
under the Covenant
1. Benefits of a complaint mechanism under the Covenant
53. The independent expert hopes that he has helped to promote awareness of the benefits of
recognizing the justiciability of all economic, social and cultural rights. The experience gained
in recent years from the application of international, regional and national human rights
instruments and mechanisms makes it possible, without a doubt, to reduce considerably the
impact of the arguments based on State sovereignty, which often point out that a complaints
procedure under the Covenant might at times require the international body responsible for
examining complaints to conduct a detailed examination of a country’s economic, social and
cultural policies and thus lead to unacceptable interference in a sphere where the State would
normally have exclusive competence within the meaning of international law.
54. Such arguments should not, in the opinion of the independent expert, pose an insuperable
obstacle to the justiciability of economic, social and cultural rights. For convincing proof, one
need only recall the content of the decision taken by the Committee on Freedom of Association
in case No. 1590 (see above, paragraph 48), in which it found that the matters dealt with in
respect of working conditions and promotion of freedom of association cannot be considered to
be undue interference in the internal affairs of a sovereign State since such issues fall within the
terms of reference that the ILO has received from its members, who have committed themselves
to cooperate with a view to attaining the objectives that they have assigned to it. This same
reasoning would lead to the conclusion that, in essence, an optional protocol to the Covenant
would enhance the effectiveness of that instrument, by which State parties pledged to guarantee
the full exercise of the rights contained therein and to cooperate with a view to attaining the
objectives that they have assigned to it. At the same time, this would make it possible to
reaffirm the principles recognized in the Vienna Declaration and Programme of Action,
according to which all human rights are “universal, indivisible and independent and
interrelated”, which means that they cannot be subjected to any attempt to put them in any kind
of hierarchical order.
55. Other benefits could result from the establishment of a complaint mechanism under the
Covenant, including:
(a) Application of everyone’s right of appeal. Without a doubt, one of the main
precepts of international human rights law is that everyone has the right of appeal in cases of
violations of his or her fundamental rights. A mechanism for examining individual complaints
will be an important means of ensuring that this right can be exercised at the international level;
(b) Development of international law. In addition to recognizing everyone’s right of
appeal, the establishment of a procedure for examining complaints under the Covenant would,
without a doubt, contribute, through the specific cases and real situations that will be examined,
to the development of a coherent body of principles covering all the rights set forth in the
Covenant. Such principles could gradually acquire an authority that would be recognized by all,
both at the international level and in countries where they could be used in the drafting of
national legislation. The principles could supplement the methodical work that has been carried
out in recent years to explain the nature and scope of economic, social and cultural rights,
particularly through the Limburg Principles and the Maastricht Guidelines, the Committee’s
general observations, the consideration of States’ reports, and resolutions of the Commission.
There is a missing link in this process, namely, a mechanism for examining individual
complaints capable of developing case law at the international level on the basis of concrete
facts.
(c) Unity of all economic, social and cultural rights. The optional protocol will be,
certainly, the only mechanism of its kind that enables persons to obtain reparations for the entire
spectrum of rights recognized in the Covenant. While it is true that there are other international
complaint mechanisms for economic, social and cultural questions, the Covenant is, at the
international level, the only global instrument that deals with these various rights. A complaint
mechanism under the Covenant would provide greater support for the principle of the
indivisibility and interdependence of all human rights, including indivisibility and
interdependence within the category of economic, social and cultural rights. Many of the cases
that will be examined could deal with several rights, so that a violation of the right to health
would, for example, be linked to a violation of the right to housing or the right to water, and a
violation of workers’ rights would be linked to a violation of the right to health, or even the right
to education - as in the case of violations of the minimum age of employment.
2. Practicability of a complaint mechanism under the Covenant
56. It is important to note that the international treaty system is currently undergoing a
process of reform, which is summarized in detail in the report of the Secretary-General entitled
“Strengthening the United Nations: an agenda for further change” (A/57/387). The report
indicates that the procedures applied by bodies established under international instruments will
be reviewed in order to simplify the rules relating to the submission of reports, and that the
system of special procedures (rapporteurs, working groups, etc.) will be reviewed in order to
strengthen effectiveness by ensuring greater coherence.
57. The establishment of a new mechanism to deal with complaints of violations of the rights
defined in the Covenant should, without a doubt, take account of the reform process; this might
lead one to think that new resources for treaty bodies would perhaps be difficult to mobilize.
However, the independent expert is of the opinion that what is needed is a mechanism with a
good cost/efficiency ratio, bearing in mind the obvious advantages of such a mechanism. This
approach would be feasible if, and insofar as, the new procedure to be established ensured the
necessary complementarity and coordination with existing mechanisms.
B. Complementarity and coordination between
the various mechanisms
58. In his first report, the independent expert mentioned the basic questions making it
possible to reply to the main points raised in debates on the draft optional protocol to the
Covenant. This report seeks to go further by taking account of the observations and opinions
expressed by States, intergovernmental organizations, including the specialized agencies of the
United Nations, and non-governmental organizations, as well as the opinions of experts and
academics on the question.
59. In addition to theoretical questions, the observations that follow will endeavour to
promote considerations of appropriateness together with the need to create a mechanism that
ensures the required complementarity and coordination with the monitoring mechanisms
established under other international human rights instruments. This would, at the same time,
make it possible to provide coherent arbitration between concerns that are sometimes necessarily
divergent and to promote States’ support for the draft optional protocol to the Covenant.
1. Rights covered
(a) The current situation
60. Under the proposed procedure, the draft put forward by the Committee on Economic,
Social and Cultural Rights to the Commission on Human Rights in 1996 would allow recourse
against violations of all the substantive rights set forth in the Covenant, apart from the right of
peoples to self-determination recognized in article 1 which, as was pointed out - not without
reason - could leave the procedure in grave danger of being misused, especially since the right to
self-determination was proclaimed in exactly the same words in article 1 of the International
Covenant on Civil and Political Rights. Moreover, the Human Rights Committee, which is in a
better position to deal with the issue, has in its practice adopted a cautious or restrictive approach
to that right. The Committee has pointed out, however, that the other general principles set forth
in articles 2 to 5, namely the principle of non-discrimination and the equal right of men and
women to the enjoyment of the rights set forth in the Covenant, would always be applicable and
would serve as the basis for interpreting and monitoring how States parties give effect to the
rights covered by articles 6 to 15 of the Covenant.
61. This rather broad approach that the Committee has proposed is also intended to be an
omnibus one, in the sense that any State becoming a party to the optional protocol would have to
accept that the procedure set up for the submission of communications and complaints applied to
all the rights recognized in articles 2 to 15 of the Covenant.
(b) Position of the independent expert
62. In his previous report, the independent expert pointed out that the Committee’s omnibus
approach to the rights covered is clearly divergent from the approaches taken in recent years
under regional instruments, for example the Additional Protocol to the American Convention on
Human Rights (Protocol of San Salvador) under which individual petitions are admitted only as
a means of upholding trade union rights and the right to education, or the Additional Protocol to
the European Social Charter, which establishes an “à la carte” system under which ratifying
States are free to choose which rights they consider themselves bound by.
63. In order to measure the true scope of the Committee’s approach, it is important to
remember how consistent the rights set forth in the Covenant are. In addition to the rights and
general principles laid down in articles 2 to 5, which those protected can assert for the purpose of
interpreting and monitoring how States are giving effect to the rights set forth in the Covenant,
articles 6 to 15 recognize the right to work (art. 6), the right to just and favourable conditions of
work (art. 7), the right to form and join trade unions (art. 8), the right to social security, including
social insurance (art. 9), the right of families, mothers, children and young persons to the widest
possible protection and assistance (art. 10), the right to an adequate standard of living (art. 11),
the right to enjoyment of the highest attainable standard of physical and mental health (art. 12),
the right to education (arts. 13 and 14), and the right to take part in cultural life (art. 15).
64. In other words, the body authorized to deal with communications and complaints under
the draft optional protocol would have to intervene in a very extensive range of rights which, at
the moment, it is the responsibility of a number of different institutions and international
monitoring bodies, particularly those established by ILO and UNESCO, to follow up.
65. The independent expert emphatically underscores these difficulties which, it should be
pointed out, rarely arise in connection with the rights set forth in the International Covenant on
Civil and Political Rights because the jurisdiction of the Human Rights Committee appears to be
so much more restricted and does not conflict with that of other bodies set up by international
organizations. If, besides, one bears in mind that nowadays many of the rights set forth in the
International Covenant on Economic, Social and Cultural Rights are justiciable before treaty
bodies concerned with the application of other international human rights instruments, the extent
of the problems becomes even more apparent.
66. In this regard, the independent experts recalls the proposal that he made in his first report,
namely that the procedure envisaged in the draft optional protocol to the Covenant should be
restricted as regards to the rights covered. This does not mean that certain rights covered by
other international procedures of investigation or settlement should be excluded, since that would
be tantamount to introducing a new, intolerable kind of discrimination among the various
economic, social and cultural rights. Remedies for all the rights set forth in the Covenant, as the
Committee on Economic, Social and Cultural Rights firmly maintains in its draft, should be
available under the current draft protocol. The idea is, rather, to restrict the proposed new
procedure by introducing a new criterion limiting it to “situations revealing a species of gross,
unmistakable violations of or failures to uphold any of the rights set forth in the Covenant”.
Such a criterion would at the same time allay the uncertainties and doubts voiced by many
member States that fear that the proposed procedure might give rise to arbitrary appeals against
simple oversights or shortcomings in the action that States parties take under their policies and
programmes for the progressive achievement of the various economic, social and cultural rights
recognized in the Covenant.
67. By so doing, the risks of overlapping with or diverging from other investigative or
settlement bodies can be substantially reduced. Other considerations contribute to the removal
of these difficulties and to the relevance of the new procedure envisaged in the draft optional
protocol.
68. The independent expert wishes to point out that the current procedures applied by the
bodies reporting to other international organizations, such as the Committee on Freedom of
Association, are not open to individuals but restricted to complaints of violations of freedom of
association submitted by Governments or employers’ or workers’ organizations. It would
clearly, be useful to enable individuals or groups of individuals to submit to a United Nations
body communications concerning violations of which they themselves are the direct victims, and
thus to have access, as prime intended beneficiaries of the international human rights
instruments, to the procedures designed to give stronger effect to their recognized rights. This
would surely demonstrate the interest of the United Nations system in improving the human
condition, which is so often presented as the primary objective of international action.
69. The risk of divergent interpretations of international protection standards and the rights
and obligations defined in various places can also be diminished thanks to the cooperation that
has grown up in recent years among the bodies responsible for enforcing these standards. For
example, in performing its task of considering States’ periodic reports and making its related
general comments, the Committee on Economic, Social and Cultural Rights has often drawn on
the international labour conventions and the comments made by the appropriate ILO committee
of experts. Such cooperation in the field of investigation or settlement procedures could be
developed further by a variety of means.
70. The same comment could be made about the communications procedure established
under the Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women. Although the rights covered intersect at many points, advantage
can be taken in practice of the coordination that cannot fail to evolve between the two
monitoring bodies as regards the interpretation and application of these rights by States parties.
2. Competent body
(a) The current situation
71. The draft submitted by the Committee to the Commission in 1996 would make the
Committee the competent body for examining complaints and communications under the
proposed investigation and settlement procedure. This option may seem fully justified, given the
experience and authority that the Committee has gained since its establishment. One may
wonder, however, whether the Committee as currently constituted and with the means that it has
at its disposal is really in a position to accomplish the task, which would enlarge its mission
substantially and add to the difficulties it is experiencing in coping fully and within reasonable
time limits with its primary mission, the consideration of States’ periodic reports.
(b) Position of the independent expert
72. In his first report, the independent expert considered that there was “a conflict of
authority to be discerned in the prerogatives accorded to treaty bodies: on the one hand,
considering periodic reports from States parties; on the other, considering complaints and
communications about alleged violations of the human rights covered by the various
international instruments”. Quite apart from the practical difficulties arising from the excessive
workload on the members of these various bodies, the independent expert considered that the
two activities were somewhat incompatible, which could have a negative effect on the quality of
the work of such bodies and also on their working conditions.
73. The independent expert acknowledges that that opinion should be further discussed in the
working group that will be established by the Commission at its fifty-ninth session with a view
to considering the options concerning the drafting of an optional protocol to the Covenant. He
hopes, nevertheless, that he has contributed to the debate on the effectiveness of and
coordination among the various monitoring and follow-up mechanisms under the human rights
instruments.
3. Possibility for individuals and/or groups to submit
complaints and possible means of remedying
violations by States parties of their obligations
74. With regard to these questions, the independent expert refers to his first report, in which
he endorsed the relevant comments contained in the report submitted in 1996 by the Committee
on Economic, Social and Cultural Rights (E/CN.4/1997/105, annex).
IV. CONCLUSION AND RECOMMENDATION
75. The adoption of a draft optional protocol to the International Covenant on
Economic, Social and Cultural Rights would, no doubt, contribute to the efforts to
promote, in accordance with the principles contained in the Charter of the United Nations,
“recognition of the inherent human dignity and of the equal and inalienable rights of all
members of the human family [which] is the foundation of freedom, justice and peace in
the world”, when we know that, as the preamble to the International Covenant on
Economic, Social and Cultural Rights and the preamble to the International Covenant on
Civil and Political Rights state, the ideal of free human beings enjoying civil and political
rights and freedom from fear and want can be achieved only if conditions are created
whereby everyone may enjoy his or her civil and political rights as well as his or her
economic, social and cultural rights. These are the challenges to be taken up and the
solutions to be discovered or rediscovered; one solution is, certainly, to strengthen the
international machinery designed to ensure that States parties honour their commitments.
76. This leads the independent expert on the question of a draft optional protocol to the
International Covenant on Economic, Social and Cultural Rights to recommend that the
Commission on Human Rights adopt a resolution in which it confirms the decision
contained in its resolution 2002/24, adopted at its fifty-eighth session, and to establish, at its
fifty-ninth session, an open-ended working group of the Commission with a view to
considering options regarding the elaboration of an optional protocol to the International
Covenant on Economic, Social and Cultural Rights in the light of the report of the
Committee on Economic, Social and Cultural Rights to the Commission concerning a draft
optional protocol, comments by States, intergovernmental and non-governmental
organizations, and the report of the independent expert.
Notes
1
Limburg Principles on the Implementation of the International Covenant on Economic, Social
and Cultural Rights, reproduced in E/C.12/2000/13, paragraph 16.
2 Ibid., para. 30.
3 Ibid., para. 27.
4 Ibid., paras. 21 and 22.
5 Ibid., paras. 17 and 20.
6 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, reproduced in
E/C.12/2000/13, paragraph 6.
7 Ibid., para. 7.
8 Ibid., paras. 16-19.
9 Limburg Principles, op. cit., paras. 29-34.
10 Maastricht Guidelines, op. cit., paras. 14 and 15.
11 Ibid., para. 15.
12 Recueil Dalloz 1997, p. 363, note by J.-P. Marguenaud and J. Mouly, cited in J. Mouly, “Les
droits sociaux à l’épreuve des droits de l’homme”, Revue de droit social, 2002, p. 799.
13 Recueil Dalloz 1988, p. 438, note by J.-P. Marguenaud and J. Mouly, cited in J. Mouly,
loc. cit. (note 12).
14 Airey v. Ireland, 9 October 1979 (Series A, No. 32), cited in J. Mouly, loc. cit. (note 12).
15 Recueil Dalloz 2001, p. 2,787, note by J.-P. Marguenaud and J. Mouly, cited in J. Mouly,
loc. cit. (note 12).
16 See J.-F. Akandji-Kombe, “L’application de la Charte sociale européenne: la mise en oeuvre
de la procédure de réclamations collectives”, Revue de droit social, 2000, p. 888, cited in
J. Mouly, loc. cit. (note 12).
17 Communication No. 182/1984 (Netherlands, CCPR/C/29/D/182/1984).
18 See Freedom of Association, a digest of decisions and principles of the Committee on
Freedom of Association of the Governing Body of the International Labour Office, Geneva,
International Labour Office, fourth edition, 1996, No. 15, p. 9.
19 Ibid., No. 12, p. 9.
20 Ibid., No. 19, p. 10.
21 Ibid., No. 17, p. 10.
22 Ibid., No. 3, p. 7.
23 Document 146 EX/7, paragraph 50. See also, on the Committee’s working methods and for
figures on the communications examined, document 154 EX/16 of 24 February 1998.