Introduction
The French Government presented its third official report to the United Nations Committee on Economic, Social and Cultural Rights (Committee on ESC Rights) in 2007.
Between 2007 and 2008, the French civil society drafted its first collective report on the situation of ESC rights in France.
The Ligue des Droits de l’Homme (LDH), the Fédération Internationale des Droits de l’Homme (FIDH) and the Centre de Recherche et d’Information pour le Développement (CRID) launched the drafting process with a pre-counter-report that they presented in the pre-session of the Committee on ESC rights, in charge of reviewing the French draft report and the French civil society’s comments (May 20th, 2007).
The platform presented the counter-report on April 29th, 2008, to the Committee on ESC Rights, at the same time as the French Government answered the Committee’s recommendations.
The choice was made to submit a shadow report to the Committee on ESC Rights, which would be drafted with the participation of as great a number of national and international associations and trade unions as possible. The goal was to create a dynamic, with all stakeholders, which would go beyond the presentation of the report to the Committee on ESC rights, through a broader awareness raising and mobilisation in France.
The ESC rights platform currently gathers 31 associations and trade unions. It is open to all French civil society’s stakeholders interested in taking part in the movement initiated by the counter-report. The major benefit of the drafting of this third report was to undertake a collective work with the many associations and trade unions involved, with a main concern, which was to respect the work of everyone. And so, the expertise was to take on less of a legal dimension than for a presentation to the UN Committee.
While the drafting process was ongoing, we chose to present two kinds of report. For a better understanding, we make the distinction between the two notions of counter-report and shadow report, even though they both tackle the same problems. Nevertheless, in the UN terminology, reports that are presented to the Committee are referred to as “shadow reports”.
And so, the drafting of a counter-report was undertaken as the first step in coming up with a shadow report, of a broader coverage, intended to educate people.
- The counter-report, which had to have a maximum of about forty pages, would answer, in a linear way, to the recommendations of the Committee on ESC Rights on the French government’s official reports of 2001 and 2007. We agreed that, in spite of how rigorous the task of answering Committee’s comments was, we needed to highlight aspects showing shortcomings of our legislation as well as sensible aspects relating to the French government’s policy. - A shadow report, whose content is denser, is meant to be used as a tool for popular education and consultation, available to everyone. It was unanimously decided to draft a second report to echo the general and consensual mobilisation of the associations that enthusiastically engaged in this work.
Both reports were drafted on the basis of a common position, which consisted in:
- criticising the official report and measures, reforms and policies introduced by the French government, as well as the gap between legislation and its applicability;
- submitting propositions in the form of recommendations, at first to the attention of the Committee on ESC Rights, then, indirectly, to the French government, and, eventually, to social movements, to trade unions and to the French population.
The strategy associated to the counter-report: towards ESC rights enforceability and justiciability.
The ESC rights platform considers the International Covenant on ESC Rights (ICESCR) provisions’ effectiveness in French domestic law as all the more essential, since the Committee insisted on it in the final comments of its review of the French report in 2001. One of the objectives of the report is indeed to put forward the issue of ESC rights’ “justiciability”. We consider it as crucial, as it shows the importance of the right to effective remedies to enforce these rights. Therefore, we drafted this shadow report in order to expose breaches of ESC rights, but also to demonstrate how necessary their effectiveness and justiciability were, by formulating recommendations.
Approach and method
I) Content of the counter-report
The report was structured around the Committee on ESC Rights’ suggestions in terms of analysing the situation of ESC rights in France and putting forward its demands and claims. The coalition of associations and trade unions carried out a synthesis based on their expertise and field experience. Expertise and rigour are indeed required in communications to the Committee’s experts. The report’s structure relies on ESC Rights. It is organised in successive sections intended to make its review by the Committee easier. At last, it focuses on vulnerable populations that have been undergoing ESC rights violations.
National obligations are discussed in ten chapters in which the French legal framework, government policies and their limitations as well as breaches of ESC rights in France are analysed. Corresponding associations’ recommendations are also addressed. Nine rights and two issues are discussed in the report. Their selection was motivated by the Committee on ESC Rights’ recommendations and by the claims that appeared as the most relevant to us in the fight against misery and social exclusion. Migrants’ rights, the criminalization of poverty and social movements as well as discriminations that impede the access to economic, social and cultural rights are also central in the report. International obligations are discussed under the angle of five main cross-cutting issues: France’s Official Development Aid (ODA), France’s cooperation policy in Africa, France’s role in International Institutions (International Monetary Fund -IMF-, World Bank, World Trade Organisation -WTO-), the European Union’s (EU) external policy and the accountability of French corporations operating abroad. These issues were essentially selected on the basis of the Committee on ESC Rights’ recommendations.
Overall, the analysis deals with every right set forth in the ICESCR and makes up a comprehensive report. Some issues such as poverty and exclusion require a cross-cutting analysis of several rights to demonstrate the impact of cumulated human rights violations in terms of poverty. The benefit of focussing on human rights is to highlight their interdependence, and hence, their indivisibility.
The issue of human rights justiciability and effectiveness is addressed in all chapters to show the importance of the right to effective remedies in the implementation of ESC rights.
II) The work carried out upstream of the drafting of the report
A basic support: background papers ESC rights platform members have been working in the field of ESC rights. In spite of their experience, the ten issues related to national and international obligations were analysed in “background papers”. The latter served as a support to start the work of the group, so that all its members avail of the same information. Background papers also enabled members to clearly understand the views of the various stakeholders, i.e. the Committee on ESC rights and the French Government. The following aspects were listed in the background papers: The article relating to the right in question. For example, the Article 6 relating to the right to employment. The nature of the right in question according to the ICESCR, illustrated by the Committee on ESC Rights’ general comments. Committee on ESC rights’ recommendations issued after the 2001 official report. The French government’s position with regard to a particular right, documented by a summary of the third official report of 2007. Questions and comments formulated by the Committee on ESC Rights following the presentation of this third report. Elements of the pre-counter-report presented by the CRID, the FIDH and the LDH to the Committee on ESC rights in May 2007.
Exchange between associations facilitated by the Rinoceros discussion list. Rinoceros is an on-line documentation centre of Ritimo (Network of documentation centres for sustainable development and international solidarity). Documents, information and updates on the work carried out by associations and trade unions can be sent to ESC rights platform members through the discussion list, which is a means of ensuring transparency.
Information visibility ensured by Ritimo. Ritimo is a visual support to view articles about ESC rights, but also all achievements of the ESC rights platform’s associations. The section on ESC rights and bibliographic sources are regularly updated.
III) The successive steps of the drafting of the counter-report
The initiative of the report was launched in April 2007. Its elaboration initiated a process that lasted one year, until the presentation of the report before the Committee on ESC Rights.
The pre-counter-report drafted by a dozen of associations served as a basis for the drafting of the counter-report. A process was then initiated to mobilise French associations and trade unions, until September 2007, when the first meeting was organised with 22 associations and trade unions, to lay the foundations of the future work and amend initial conclusions for the purpose of elaborating the counter-report.
Two approaches were contemplated: the drafting of the report and the formulation of propositions/ observations.
1. We chose to start the drafting process with a single association for each right or issue. The concerned association was tasked to closely review the content of the background paper and to complete it with additional elements about the situation of ESC rights in France. The associations and trade unions in charge of drafting background papers were referred to as “pilot” organisations. These documents were supposed to include the following elements:
- A definition of the right in question, as put forward in the background paper.
- A diagnosis of the situation in France based on quantified examples and evolutions over time.
- A presentation of the legal framework (Constitution and legislation) and of the political framework (measures, reforms, policies).
- Examples of violations and breaches of ESC rights.
This initial step took some time. Until January 2007, one of the main tasks was to improve this preliminary draft and to bring it into line with the pattern described above.
This initial document, not more than 4-5 pages, aimed at setting out a legal rationale and an overall assessment stressing the political rather than the legal dimension.
2. Seven issue-based working groups were set up. Some associations and trade unions participated in several working groups, depending on the issues that were being discussed. Working groups’ mandate was to work out proposals and amendments on the pilot associations’ martyr documents. National obligations were discussed within these working groups, with a maximum of 5-6 associations. Working groups really started to operate in January 2007, once pilot associations’ background papers had been completed. The drafting of documents about international obligations did not take place in the same manner. It took less time, the pre-report was completed with contributions from other associations whose figures and data were updated.
3. Documents were always circulated to all platform members. All associations and trade unions were free to react to every working document during meetings and through the Rinoceros discussion list. The circulation of documents to all associations made it possible to work in a spirit of transparency.
4. The compilation of all contributions started in late February 2008 in parallel with the formulation of comments and amendments by working groups. Julie Zerbib took the responsibility to review the sections to which working groups’ comments were added. She first endeavoured to harmonise the structure of documents and, then, to summarize then by sticking to their meaning, to the greatest possible extent. The length of the counter-report was reduced from 80 to 46 pages.
5. A steering committee coordinated the initiative from the start. It was formed with the CRID, the LDH and the FIDH, as well as all associations or trade unions that volunteered to join it. Membership fluctuated over the successive steps. This committee defined the main orientations and assessed the progress of reports. The presence of this steering committee did not undermine the participative character of the drafting process, as all final decisions were taken in the platform’s meetings to ensure overall coherence.
Meetings took place every two months to discuss possible amendments and modifications.
IV) The drafting of shadow reports
The elaboration of a shadow report is part of a process of mobilising all players concerned by the fulfilment of human rights and popular education on ESC rights. This report is a reference document as it addresses both human rights set forth in the ICESCR and the views expressed by the ESC rights platform’s members. The opportunity was offered to associations to present their views, not as representatives of the platform any more but in their own name, in appendixes. The goal of the shadow report is to communicate such views and to share experiences by trying to popularise the situation of ESC rights, to the greatest possible extent, and to claim the enforcement of human rights by the French Government, as well as ESC rights justiciability, in the perspective of the adoption of an Optional Protocol to the ICESCR. The structure of the shadow report is identical to that of the counter-report, insofar as it draws up an assessment of the situation of ESC rights in France based on platform’s recommendations. It remains open to all kinds of organisations and stakeholders as its aim is to contribute to mobilise the French population on the situation of economic, social and cultural rights in France and on France’s international ESC rights commitments.
Challenges and successes
Deal with the various organisations’ sometimes contradictory views.
One of the platform’s priorities was to establish a participative logic. It has kept operating in this manner so far.
We chose to address most human rights set forth in the Covenant, although we knew that we would not be in a position to draw up a comprehensive assessment of the situation of ESC rights in France. This is why the rationale of both reports was developed on the basis of concrete examples, in order to make breaches of human rights as visible and as explicit as possible, while pursuing the objective of making these rights justiciable.
The building up of a compromise and a consensual base to have all participants adhere to a common position was a permanent concern throughout the drafting period.
On the other hand, each player was empowered by the sharing and the analysis of the various associations’ and trade union’s points of view.
The collective work experience allowed creating a dynamic to reflect on a political action in favour of ESC rights.
