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TEILDOKUMENT:
Prof. Philip Alston
Die Rolle des Sozialpaktes bei der Umsetzung der Ergebnisse des Weltsozialgipfels: Wie sollte die Arbeitsteilung zwischen UN-Ausschuß für wirtschaftliche, soziale und kulturelle Rechte und der Internationalen Arbeitsorganisation aussehen?
I would like to begin by congratulating the organisers of this conference for their initiative in focusing not only on the World Summit for Social Development but especially on the relevance of the International Covenant on Economic, Social and Cultural Rights. I should add that, in Australia, to the best of my knowledge, no such gathering has ever been assembled to discuss this regrettably obscure Covenant and I consider it to be an important step forward for such an initiative to have been taken here in Germany. I am not under illusions as to the level of familiarity that most people have with the Covenant, but those who know very little about it should draw strength from my encounter a couple of years ago at Columbia University with a middle-ranking World Bank official with whom I was debating the relevance of human rights to the agenda which the Bank has set for itself. To my astonishment, he interrupted me when we were three-quarters of the way through our debate and said: "I'm sorry to interrupt, but you referred to a Covenant of some sort. I wonder if you could give me more details about this document?" Thus, although his task on behalf of the Bank was to affirm how comitted they were to human rights issues, he had never even heard of the Covenants which are the two most fundamental treaties in this field.
There were many fascinating issues raised this morning, but I will limit myself to several of those which I consider to be central. In many ways, the most important step is to acknowledge that when we talk about social rights we are dealing with a basic question of ideology. The point is quite simply that the world has not yet come to accept that the right to education - in other words, the right of a child to obtain a minimum number of years of primary education - is as important as the right of an adult not to be tortured. Equally, the right of access to essential health care is as important as the right to free speech. In reality, our societies have not accepted those basic premises, despite the fact that this is what the concept of social rights is really all about. It requires a basic and unflagging commitment to those principles.
Yet, in contrast, we heard this morning in relation to German development cooperation that it would be unreasonable to expect developing countries to accept a right to education at this stage in their evolution. The clear implication was that promotion of a right to education might be a nice objective but it is not something that can be treated as an urgent priority. But such defeatism amounts to the end of any serious and sustained commitment to economic and social rights. For that reason, we have to reject such thinking absolutely and definitively. In reality, there are very few countries in the world, no more than a handful of what might be termed "basket cases", which really do not have enough resources to enable them to draw up a strategy aimed at promoting the right to primary education for all. It is unjustified and immoral to accept readily the position put forward by the leaders of some countries to the effect that the right to four or five years primary education simply has to be sacrificed in the interests of some vague and inevitably self-serving objectives such as national development, national unity, or the interests of the community as a whole. This will often be no more than code language for saying that the leaders of the elite prefer to build a new luxury hospital or a new airport than to educate the masses. Such reasoning is unacceptable and until we get to the stage where we react with as much outrage in response to those sorts of statements about economic rights as we do in relation to political rights we will not have struck a proper balance. When an official says "I am sorry but because we are poor we have to use a little bit of torture to achieve our national goals" or argues that the nation cannot afford free speech we dismiss such arguments as unwarranted and unacceptable. Instead we insist that every effort must be made to move towards the different objectives simultaneously rather than choosing one and rejecting the other. We have to start making a similarly principled but dogmatic response in relation to economic rights. But we do not, and that is why we are a very long way away from realizing equality in terms of the two categories of rights.
While I could very happily develop this analysis further I will not. I will content myself with making one other general point. It is sometimes suggested that there is a cultural obstacle which prevents the acceptence of economic rights by some developing countries. But we have to react to such suggestions and ask which specific developing countries insist for cultural reasons upon the exploitation of child labour or would defend the denial of access to really essential health care. We do not get too many developing countries who are prepared to acknowledge such policy preferences. Most such countries would not really suggest that there is any cultural obstacle to promoting these goals. Indeed their position is usually the very opposite; they portray themselves as the countries which care most about economic and social rights. China was mentioned this morning as one such country. But, one thing is clear. The present Chinese Governments is not attaching priority to a policy which is primarily concerned to ensure the satisaction of economic and social rights. I was there in April to give a series of lectures and I did not hear from any of the human rights specialists or other Government officials that they were striving to temper in any fundamental way their headlong rush to an unfettered free market by, for example, seeking to ensure that all Chinese people have the right to adequate housing, to adequate food and to apropriate educational opportunities. Those sorts of commitments belong in the past. Thus, when a country like China says that the West should not talk to them about political rights because they are too concerned about social rights, what they really mean is that rights are a poor second in their priorities behind economic growth, whatever its impact upon individual or community rights. I think it is time that the human rights community and others took the Chinese Government to task for that.
I turn now to the Copenhagen Summit. There are great expectations that the cause of social rights will be significantly promoted in the final outcome produced by the Summit. I believe these expectations to be misplaced. Do not get me wrong; I think Copenhagen is a very important process but I think that for all the concern about "human needs", social rights will not be promoted by Copenhagen as rights. What we have seen so far in the preparatory work is a typical international endeavour to avoid the use of the term "economic and social rights" at almost any cost. I have here one page taken from the document currently before the Preparatory Committee. If we read it in search of references to social rights, we may well conclude that someone has promised delegates one hundred dollars to come up with substitute terms which avoid the need to refer to economic and social rights as such. On such a basis the drafters would by now have become quite wealthy. The draft document commits governments to "social development" based on "human dignity". How will that be achieved? Well, I tell you. The economy will be put at the service of "human needs"; governments will respect the needs of "global well-being". They will integrate such well-being with the dignity of all mankind. They will promote human dignity, social justice and solidarity. And I could cite many other such phrases.
The point I want to make is a very simple one. I am not opposed to "solidarity" or "social justice" or whatever, but there is actually a big difference involved in the use of different terminology. When we talk about social "human rights" we talk about legally-binding norms; we talk about an obligation accepted by states. We are rejecting the notion of charity, the undefined concepts of human dignity or of general social justice on the grounds that, whatever their undeniable merits, they do not provide the strongest possible grounding for social rights. By using the language of rights we move beyond those inchoate domains into something which is quite specific. But this, of course, is precisely why states have sought to avoid the use of the terminology of rights.
It is especially disappointing that many of the United Nations agencies have done exactly the same thing. They too have, at least historically, gone to considerable lengths to avoid talking about human rights; they have certainly never framed their programs or policies in terms of economic and social rights. The only significant exception in that regard is the ILO.
The World Health Organization, for example, has been determinedly rights-averse in relation to all of its activities, leaving aside a couple of irrelevant token gestures. I said this in a speech a few month ago when I was on the same platform as the Director-General of WHO at the United Nations in Geneva. After the meeting the Director-General said something like "That was an interesting speech Professor Alston, but you are obviously unaware that we do a lot of work on matters of health ethics." I replied: "I am sure you do, Dr Nakajima, but the fact remains that you do nothing on the right to health as a human right, as a mobilising concept, as a legal principal which would give rise to entitlements and obligations". He still did not understand the point. Other agencies, such as the Food and Agriculture Organization are in exactly the same position.
Therefore in terms of its first priority, the Copenhagen Summit should recognize the importance of economic, social and cultural rights as defined in the International Covenant on Economic, Social and Cultural Rights. That would amount to an extraordinary break through, as simple as it seems. Nevertheless, I predict that it will not happen.
There have also been proposals, endorsed by the United Nations Development Programme and other groups, for the adoption of a new International Social Charter. Whatever the motivation of the proponents of such a Charter, and I am sure they are entirely sincere, I see the proposal as an example of the same type of rights-avoidance approach that I have already described. The proponents seem determined not to recognize and build upon the International Covenant on Economic, Social and Cultural Rights, despite the fact that it has been available for thirty years, has been formally accepted as binding by some 130 States, and provides an ideal basis upon which to work. So UNDP, which hardly ever once referred to the words human rights in its work up until 1990 proposes instead that a whole new start be made. The assumption is that a Charter would be more acceptable to governments and fit more easily with UNDP's current pre-occupations. But the belief that a new Charter, with meaningful social rights provisions in it could be negotiated from scratch today strikes me as entirely unrealistic. The only result would be a drastically watered-down statement of platitudes.
Another important issue is the question of effective and appropriate means by which to follow-up on the results achieved by the Copenhagen Summit. Again, my prediction is that nothing serious will be done by way of follow-up. There have been discussions about reforming the role of the Economic and Social Council (ECOSOC) in order to ensure meaningful follow-up. While I am all in favor of such proposals I doubt that they will achieve the truly radical reforms that would be required to make the Council effective, both on its own terms and as a mechanism for following up on the commitments made by Governments in Copenhagen. There will still be a need for a specific set of arrangements to monitor those commitments. For this purpose there has also been much discussion about the desirability of revitalizing the Commission on Social Development. But use of the verb "to re-vitalize" implies that there was some vitality in the first place. Unfortunately, there have been all too few signs of life from that body over the many years of its existence. It is asking a lot to think that it can suddenly develop into an effective monitoring body when it has not even been successful as a talking shop in the past.
A third suggestion that has been made in terms of follow-up is for a special meeting, a follow-up conference, to be held in five years time. Again, it is not clear to me that, at this stage, we need even more international conferences. I cannot say that they have so far contributed very much towards promoting respect for economic and social rights.
So my conclusion is that the Copenhagen Summit, if assessed on the basis of the type of follow-up arrangements that it succeeds in putting into place, risks being a failure when looked at in retrospect in several years from now. That is not to say that the whole exercise is a waste of time. There will be many Heads of Governments and others who will be forced to address, and perhaps even reflect upon, issues of fundamental importance in the social sphere. Given their involvement and the opportunity created to foster improved NGO interaction the Summit is probably a worthwhile undertaking.
But, by the same token, we need to recognize that the Summit is likely to achieve very little in terms of the two criteria which I have suggested are of major importance: (1) recognition of social rights as human rights; and (2) the creation of effective follow-up and monitoring arrangements. In an ideal scenario the Summit would acknowledge that key roles should be played in relation to follow-up by both the ILO and the United Nations Committee on Economic, Social and Cultural Rights. I do not see the Committee as being likely to become the Arnold Schwarzenegger of the social development field, to use Bruno Simma's analogy this morning. But while the Committee might not be as strong as Arnold, it at least has a few brains! These should be used to move towards an effective monitoring mechanism. There is also a potentially important role for the ILO. That Organization has done more than any other international organisation to promote the theory and practice of social rights. It should thus be very actively involved. But we should also remember that the ILO does not aspire to be the sole organisation responsible for covering the entire field of social development. It is not well placed to undertake a comprehensive role in relation to international monitoring across the entire spectrum of social development activities. I believe that, in addition to the ILO and other relevant bodies, the UN Committee on Economic, Social and Cultural Rights is well placed to play a key role provided that it could work out a modus operandi in conjunction with those other bodies.
What else would I like to see emerge from the Copenhagen process? I would like the Summit to adopt quite specific benchmarks in the social field by which I mean absolute minimum standards to which governments must commit themselves in terms of ensuring their citizens access to primary education, minimum health care and so on.
I would like to see a clear obligation to undertake national self-monitoring. In some respects this might amount to a national poverty report which would detail all of the major shortcomings in social policy that the country urgently needs to address. Yet, even most Western countries have long resisted undertaking such reviews. In the United Kingdom, for example, successive governments have long played the game of saying that there is no such thing as a poverty line. As a result they are unable to estimate the extent to which poverty exists in the UK. Australia is not much better in this regard, although its techniques and certainly its arguments are probably more sofisticated.
I would also like to see the UN Committee given a mandate to monitor, on a regular and continuing basis, the performance of States against those bench marks which Copenhagen should set. There are already 131 States legally committed to presenting regular reports to the Committee. Because of the legal basis upon which the Committee has been established (by a resolution of the ECOSOC) its mandate can be amended any time by the Council. It could thus be asked to continue its existing role in relation to the States Parties, with the additional element of considering the Copenhagen benchmarks.
It could also be given an additional mandate in respect of the fifty or so countries that have not yet ratified the Covenant and do not therefore report to it. In this connection the Copenhagen Summit could mandate the different UN agencies to cooperate with the UN Committee. At present it receives very little cooperation, even from the ILO, from any of the international agencies which are best placed to contribute to its work and to help to build an effective set of international monitoring arrangements. For example, the Committee does not receive a single World bank report on what is happening in the countries whose performance it is expected to examine. It does not receive a single UNDP report. In general, there is no attempt by any part of the UN system to cooperate in carrying out the task of monitoring compliance by states with their existing legal obligations in this fundamental area.
Finally, the Summit should also call for an effort to be made to strengthen the Secretariat of the UN Committee. A sceptical response to that suggestion would be that the Committee is not sufficiently serious to warrant assistance. The argument might be made that it is not capable of taking on the sort of role that has been suggested for it. In some ways, such scepticism would be justified because the Committee is not performing at the height of its potential effectiveness. But this is to a large part because it receives no professional assistance at all. Nor does it get technical advice from anywhere. Until it does so, it will not be capable of taking on a significantly expanded role.
The irony is that a stronger secreteriat than the one which currently exists would only need to include a single professional with expertise in the economic and social, as well as legal, fields. Unfortunately, the commitment of States to social rights is so minimal, despite the rhetoric, that this is probably asking too much.
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