Preventing violations of economic, social and cultural rights

The experience of several decades of efforts to realize economic, social and cultural rights has brought to light many difficulties related to the very nature of the rights concerned and to the specific character of the peoples and regions of the world which are their beneficiaries. While it is true that every people or region has its own specific character, the necessary interdependence between the different human rights must not be overlooked. Preventing the violation of these rights is a task which must be jointly undertaken by each state and the international community. It should also be remembered that each state is responsible for drafting appropriate legislation and regulations and for implementing an economic and social policy allowing individuals and peoples to enjoy their economic, social and cultural rights.

The preventive measures are important and go some way towards offsetting the vagueness surrounding economic offences and the related sanctions. One doubt, as regards to international law in particular, concerns the empirical means deployed. In this respect, there should be close cooperation among States and between them and the international community. Successful prevention of, violations of economic, social, cultural, or of any other rights, is undoubtedly the ideal solution, though also the most difficult to achieve. It requires an effort to inform and reeducate public opinion and a more courageous political attitude on the part of the Governments of the States on whose territories violations of human rights are committed.

From an international point of view, it is worth recalling the now classic suggestion that a more coercive and more coherent legal framework should be set up to induce States to accept and carry out their obligations under international law, which now clearly provides for State responsibility. This recognition of State responsibility was further strengthened by the Brussels Convention of 25 May 1962: Convention on the Liability of Operators of Nuclear Ships, the international Convention of 29 November 1969: Convention on Civil Liability for Oil Pollution Damage and the Vienna Convention of 29 November 1971: Convention on the International Liability for Damage caused by Space Objects.

Recommendations on international cooperation for crime prevention and criminal justice in the context of development were adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Havana in August and September 1990. In those recommendations, Governments were urged to promulgate laws to combat transnational crime and illegal international transactions. It was mentioned that, since even legitimate enterprises, organizations and associations were sometimes involved in transnational criminal activities affecting national economies, Governments should adopt measures to control such activities. They should also collect information from various sources so as to have a solid basis for the detection and punishment of enterprises and organizations, their officials, or both, if they were involved in such activities. It was suggested that States should devise effective criminal legislation to combat the corrupt activities of public officials, which could hinder development and damage individuals or the entire nation.

In other words, in domestic law, all mechanisms and practices leading to violations of economic, social and cultural rights should be identified as punishable offences, giving entitlement to compensation. In its General Comment No. 3 (1990), the Committee on Economic, Social and Cultural Rights discussed the nature of States parties, obligations under article 2, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights and stated, inter alia, that the adoption of legislative measures was by no means exhaustive of the obligations of the States parties and that the phrase "by all appropriate means" should be given its full and natural meaning; such measures should include the provision of judicial remedies with respect to those rights. That means, incidentally that States should avoid any deliberately retrogressive measures in that regard.

At the international level, measures to prevent violations of economic, social and cultural rights are of many different kinds. Some of them could be drawn up by the United Nations in cooperation with the Member States, while others would be prepared by States in the framework of regional organizations. They could also result from an action by the specialized agencies of the United Nations system. Measures which could be taken by the United Nations include the preparation and adoption of an optional protocol to the International Covenant on Economic, Social and Cultural Rights, like the one already existing with regard to civil and political rights. It would be supported by the obligation on the part of States to report to the Committee on Economic, Social and Cultural Rights concerning measures taken for the effective enjoyment of these rights and the penalties applied to the perpetration of violations thereof. Although applying the procedures of an optional protocol would not give the Committee any jurisdictional authority, it would provide an opportunity through regular reports and individual communications to submit useful recommendations to the States parties and would make a major contribution to the campaign against impunity for violations of economic, social and cultural rights. Pending the establishment and functioning of such a procedure, it would be worthwhile encouraging the Committee on the Elimination of Racial Discrimination, the Human Rights Committee and the Working Group on Communications (1503 Procedure) to examine periodic reports by States and individual communications submitted to those United Nations bodies.

The international community should endeavour to rectify current deviations from the missions of the international financial institutions. In 1944, the Bretton Woods Conference agreed to set up two international financial institutions: the International Monetary Fund (IMF) and the World Bank. Article 1 of the IMF Articles of Agreement establishes six purposes for the Fund, one of them being to facilitate the expansion and balanced growth of international trade and thereby to contribute to the promotion and maintenance of high levels of employment and real income and to the development of productive resources. The international community must attempt to bring these institutions back to their initial purposes.

In the preparation of preventive measures against violations of economic, social and cultural rights, the non-governmental organizations could, within the framework of their information and popularization activities, help the campaign considerably by denouncing such violations and suggesting solutions. With regard more specifically to cultural wealth, it would be important and essential to prepare and have the States adopt a convention protecting the cultural wealth of peoples, to declare any traffic involving such wealth to be a crime against humanity and to ask States to elaborate domestic legislation protecting it.

Violations of economic, social and cultural rights give entitlement to a remedy for the damage they have caused. From the point of view of domestic legislation, such violations are offences and subject to two types of sanction, repressive and compensatory. Under its guarantee obligation, the State has to provide the necessary legal framework to safeguard the enjoyment of economic, social and cultural rights. States in general, as well as all other subjects of law, must cease to accord only a programmatic value to economic, social and cultural rights. The best way of achieving this is to incorporate the international legal standards into domestic law, so that they can be invoked before the domestic authorities and courts.

If violations extend beyond domestic boundaries and affect several countries, the international responsibility of their perpetrators, whether individuals, human groups, companies, States or regional or international organizations, becomes engaged. There are thus two types of responsibility: national and international. It should be pointed out that these are not cumulative; they are complementary or supplementary. Thus, the international responsibility of a subject of law can be invoked only when no domestic remedy is available or if domestic remedies have been exhausted or are inadequate. The point here is to lay the foundations of the juridical status and justiciability of economic, social and cultural rights. A serious study of these two notions must be undertaken, for without them the legal reality of economic, social and cultural rights is utopian.

While, under domestic law, criminal law offences are dealt with under enforceable legislation, the same is not true in international law, where States freely decide their conduct. Thus, an international offence, as determined by international legal standards, is the result of an act or of conduct that is morally and legally imputable to a subject of international law. Punishment of an economic crime and remedying the damage it causes raise three questions: (a) Who is responsible for the offence or violation which is the source of the damage?; (b) Who is the victim of the resultant damage?; and (c) What forms of remedy are possible?