Speakers:

Professor Christine Chinken, Professor of International Law, London School of Economics

1. Professor Christine Chinkin located her remarks in the general context of a discussion about the justiciablity of economic, social and cultural rights. She began by talking about the general question of economic, social and cultural rights, before turning to a specific discussion of the proposal to establish an International Criminal Court.
2. On the general question, the 1993 Vienna Conference on Human Rights had marked a watershed, emphasising the indivisibility and interdependence of rights, and opening up the possibility of new thinking about enforcement procedures for economic, social and cultural (FSC) rights that were similar to those used for civil and political rights. There had been substantial progress in deepening both the substance and the content of ESC rights, fleshing out terms like ‘the right to an adequate standard of living’ or the need for states to take ‘appropriate measures to implement rights’. The UN Committee on Economic, Social and Cultural Rights had helped to evolve jurisprudence in this area, both through its reaction to reports by individual states, and through its ‘general comments’. It had developed standards for measurement in the area of protecting, promoting, ensuring, and respecting ESC rights. It had emphasised that states had the obligation to take at least some steps in these areas, which were deliberate, concrete, targeted and appropriate. But it had also pointed out that certain rights were immediately justiciable, for example work place rights or trade union rights.

3. Europe was the region in which the justiciability of economic, social and cultural rights had probably proceeded furthest. On the civil and political side, the European Convention on Human Rights (1950) was supported by the European Court of Human Rights, which allowed individual petition. The provisions of the Convention would enter UK law in 2000, following the passage of the Human Rights Act in 1998. On the economic, social and cultural side, the framework was provided by the European Social Charter (1961). This was supervised by a committee of experts but did not provide for individual recourse. An additional protocol had been adjusted in 1995 to provide a formal collective complaints mechanism, with the possibility of NGOs bringing cases on behalf of groups. However, it was not yet ratified.

4. Turning to the ICC, Professor Chinkin explained that a treaty had been agreed in Rome in the summer of 1998. 60 ratifications were required for the ICC to come into effect. So far only one country had ratified, though 65 had ‘signed’ the treaty, as an early indication of commitment.

5. The purpose of the ICC was to provide a mechanism for pursuing individual liability for criminal actions. Its jurisdiction covered war crimes, crimes against humanity, and genocide. Defined in these terms, it was not directly concerned with economic, social and cultural rights, though there were opportunities for bringing these rights within its jurisdiction.

6. For example, although the war crimes provisions of the ICC treaty were mostly concerned with political and civil rights, however they also included clauses relating to ‘wilfully causing great suffering’ and ‘extensive destruction of property, carried out wantonly and unlawfully’. Similarly, the provision on crimes against humanity included references to ‘extermination’, which could include intentional deprivation of food, ‘other inhumane acts’ and ‘persecution’. The genocide provisions included the deliberate inflicting of deprivation on a group. Thus, the heads of jurisdiction were potentially available to include economic, social and cultural rights within the ICC.

7. There were limitations, however. First, the ICC would only have jurisdiction if either the state accusing or the state of nationality of the accused individuals had ratified the treaty. Ratification would not be easy, and it was worth noting that the US was strongly opposed, as it was to any discussion of economic, social and cultural rights (the US has not ratified the Covenant on Economic, Social and Cultural Rights in 1966, nor the Convention on the Rights of the Child). Professor Chinkin thought that the main value of the ICC could be its deterrent value. It could also help to create a ‘culture of compliance’.

8. A number of points were raised in the discussion:

   1. One speaker thought it was unfortunate that the ICC contained such weak provision on economic, social and cultural rights, since these rights were routinely violated in modern conflicts. It would be difficult to strengthen the treaty at this stage. Perhaps stronger links needed to be built with the wider question of accountability for economic, social and cultural rights.
   2. On this latter question, it was clear that Europe was the region in which the justiciability of economic, social and cultural rights had proceeded most quickly. It would certainly be worth tracking the process of ratification of the additional protocol referred to.
   3. The ratification of the ICC was clearly going to take some time. The Ottawa Landmines Treaty had been ratified rather quickly, but other international treaties had often taken 10 years or more (e.g. the Law of the Sea, the Covenant on Economic, Social and Cultural Rights). It was important to keep up momentum. In this case, the legal affairs division of the UN Secretariat, which was responsible for the ICC Treaty, was organising a series of preparatory commissions on drafting of rules and procedures.
   4. The importance of persuading the international financial institutions to recognise economic, social and cultural rights was emphasised. In this connection, it was noted that the UN had appointed a Special Rapporteur on structural adjustment and economic, social and cultural rights.
   5. Finally, a slight disjuncture was noted between advocating a legal framework for rights and promoting a culture of compliance, where advocacy might be the main tool. Professor Chinkin suggested in reply to this question that having a law in place was a very important way to help achieve a change in culture.