First, I would like to extend fraternal greetings to participants and to thank Terre des Hommes for their invitation to participate in the present training session, which gives us the opportunity to analyse and discuss mechanisms for the presentation of shadow reports before the United Nations (UN) Committee on ESC Rights. We can share on limitations and successes experienced and on the possibilities offered by this mechanism, based on concrete experiences of Guatemalan human rights organisations with this international body.
Background General data about Guatemala
Guatemala is a Latin American country of 108,000 km2 and a population of 13 million people. Twenty three languages are spoken in Guatemala, out of which 20 are of Maya, Garifuna (population of African descent living on the Atlantic coast), Xinca and Spanish origins.
In Guatemala, a permanent situation of human rights violations prevailed during the internal military conflict (1960 – 1996). The latter caused 200,000 casualties, the disappearance of 45,000 detainees and the displacement of one million people. 150,000 women turned widows and 300,000 children became orphans.
Violent processes infringe upon the most essential human rights principles. They lead to the disintegration of the social fabric and the rupture of social relations and of the coexistence model. The impact of these human rights violations goes beyond individuals. It includes their social environment and lasts for an undetermined period. This situation obviously undermines the integral development of Guatemalan society and the building up of democratic processes.
Societies such as the Guatemalan society have had a hard time to overcome the effects entailed by the violent events they underwent at a certain point of their history. There are many examples of countries (Germany, Argentina, Uruguay, Chile, El Salvador, Haiti, South Africa, etc.) that sought to establish the truth on past events and to achieve compensation and justice, although abuses were committed a long time ago. Reconciliation is indeed only possible if past events are actually recognised and compensation and justice measures are implemented.
In the case of Guatemala, the impact of political violence that the civil population endured for over three decades does not only have to do with the sufferings caused by the privation of life and by physical and psychological torture, but also with economic, social, cultural and political aspects. At the economic level, the impoverishment processes have reached such an extent that 80% of the population currently live in poverty. At the social level, the extent of decomposition and the shortcomings of democratic values have affected the majority of citizens. At the cultural level, the forms of ancestral organisation and coexistence of indigenous Mayan communities have been disintegrated. At the political level, the situation is characterised by a polarisation of thoughts and the lack of ideological tolerance. For all these reasons, the fight in Guatemala to establish the truth, to restore victims’ dignity, to achieve compensation and justice, is crucial in the building up of a democratic society. But the Guatemalan society is far from achieving this and inequalities and social injustice prevail.
It was difficult, for several years, given the acuteness of political violence, to picture people’s precarious living conditions, poverty and inequalities, albeit being the root causes of the conflict. Because of this situation, human rights organisations could not make the promotion of economic, social, cultural and environmental rights a priority. This work could only be started after the end of the conflict. Many organisations then undertook to use international protection mechanisms of both Inter-American and universal systems.
Experience of organisations in using the various protection, promotion and denunciation bodies and mechanisms at the level of the universal and/or Inter-American system
We (human rights organisations) first decided to rely on the experience of civil and political rights promotion and defence acquired over many years and on our knowledge of the universal protection system. However, we became aware that possibilities and capacities offered by ESC rights protection instruments were more limited and had a weaker binding force.
In practice, the coercive and binding character of recommendations issued by the various bodies (committees, special rapporteurs, representatives, etc.) in the field of ESC rights is very weak, what brought us to question their usefulness.
This debate was settled by defining a strategic vision, not only on instruments and international protection bodies, but also, fundamentally, on the content, which allows assessing the extent of human rights enforcement, through social, environmental, economic and cultural analysis.
Generation of specific capacities
The work on ESC rights follow-up, promotion and defence implies generating specific capacities to develop a vision of human rights enforcement in these fields. Such “vision” refers to the conceptual framework that we use as a reference, e.g. in terms of international human rights doctrine, to elaborate methodological propositions and human rights programmes and projects.
No action on ESC rights can be undertaken if these human rights notions cannot be clearly pictured as, otherwise, we take the risk to repeat and/or formulate sector-based diagnosis of social issues.
Highlighting the human rights dimension help us acquire a clear vision of possibilities offered by international instruments to try to obtain the fulfilment of states’ obligations. In this way, we are provided with tools to strengthen human rights’ social enforceability. Infringed rights are indeed those that we are not aware of. The promotion of an enforceability culture is thus crucial in promoting ESC rights. The use of such tools for human rights justiciability makes it possible to obtain different verdicts on concrete cases before tribunals of different kinds.
Shadow reports to the UN Committee on ESC rights
Shadow reports offer CSOs the opportunity to present their vision on ESC rights fulfilment in the various countries to the Committee of the International Covenant on Economic, Social and Cultural Rights.
The ICESCR provides for a five-year assessment. Yet, this timeframe is only indicative, as a number of states that are parties to the ICESCR have never presented any assessment. It is also difficult, for the Committee, to abide by the 5-year timeframe for the review of reports – the average period between two assessments is rather generally of 8 years.
On the other hand, the Committee has few capacities to follow up its own recommendations to states. As a matter of fact, the Committee’s recommendations and general comments are the only reference states avail of. This model is being questioned, since there is no monitoring body that has the capacity to effectively supervise the fulfilment of states’ commitments in relation with the ICESCR.
Relations between social organisations and states
One of our aspirations in relation with the reports that are presented to the Committee on ESC rights is to have states consult and involve social organisations in the elaboration of the content of their reports. But as this procedure is generally not followed, the contrast between reports presented by civil society and those presented by states is flagrant.
Cohesion and social coordination
A major challenge of the coordination of report drafting activities is its temporal character (the minimum 5-year timeframe for the representation of reports). In the case of Guatemala, we succeeded in assuming the responsibility of coordinating drafting processes at an institutional level. Indeed, independently of the temporal character of the presentation of reports, we carried out a permanent follow-up from the International Centre for Research on Human rights -CIIDH-. The Guatemalan state’s report was evaluated in November 2003. We engaged in the coordination of the drafting work of the various organisations, but once the process was completed, the coalition was dissolved.
We decided, in the CIIDH, to engage in a permanent work on ESC rights, and to present a report every year to the Committee’s experts in Geneva, as well to the High Commissioner on Human rights. This experience was very positive, as we became a referent organisation at both national and international levels.
Another benefit of this process was that it provided us with many opportunities to keep fostering the fulfilment of ESC rights. Based on general reports, we were able to identify reports on specific rights, what enabled us to pursue our action to strengthen international mechanisms (we especially refer to special rapporteurs here). We succeeded in obtaining the visit, in Guatemala, of the special rapporteurs on the right to housing and to food and on migrants’ and indigenous people’s rights, and we are currently negotiating a visit of the special rapporteur on the right to education.
And so, we were able to follow upon the recommendations issue by the Committee on ESC rights and by the special rapporteurs. Starting from this very concrete activity (drafting a report and presenting it), we were thus able to come up with an action plan for a permanent work on ESC rights.
The drafting of shadow reports
As far as the drafting of shadow reports is concerned, our main conclusion and recommendation is that they should constitute a diagnosis of the situation in terms of human rights enforcement. Importantly, they should reflect the status of the various human rights and expose their possible violations. They need to be elaborated with reliable statistics and figures, to assess the state’s public policies as well as the financial investments carried out by them.
Shadow reports should be elaborated with actual and reliable data and documented by relevant examples, and used as a political tool.
Presentation of reports
One of the frustrating aspects of UN mechanisms is that only 15 minutes to half an hour are granted to social organisations to present the reports the drafting of which represented several months of work. The problem is not only the organisations’ capacity to synthesise their analysis but that of the Committee to propose a better suited process. This is why lobbying and advocacy, before the presentation of the report, is very important.
It is important to conclude a contract with the Committee’s secretary several months in advance, to cooperate with the Committee’s assistants and to approach its experts. This work also enabled us to establish alliances with organisations with consultative status. We benefited from their support in obtaining accreditations for our representatives, as well as from their advice about the process of seminars on specific human rights, during which we involved Committee members and people in relation with thematic rapporteurs and the office of the High Commissioner on Human Rights.
The mechanism’s usefulness: opportunities and limitations
The foregoing questions the usefulness of the shadow report mechanism. From our experience, we may conclude that it opens opportunities to work on ESC rights, but that it also has its limitations.
Such limitations, on a practical point of view, have structural character. Indeed, due to its very design, this mechanism hardly brings an effective answer to civil society’s expectations in terms of enforcing the ICESCR. The debate on the mechanism’s efficiency should be resumed.
I think that two fundamental aspects need to be addressed:
- Strengthen the mechanism’s coercive character The non-binding character of the Committee’s recommendations, the too long period between assessments, the little number of visits of commissioners in the various countries, are a few of the aspects that need to be revised. The possible adoption of an Optional Protocol to the ICESCR also opens up new opportunities for the Committee in the future.
- Change the mechanism’s operation mode The Committee’s process itself is a difficulty as it has become a routine, and its working approach is too slow and not proactive enough. The Committee’ recommendations follow-up mechanism could be strengthened by making the Committee’s secretary more dynamic.
As a conclusion, the elaboration and presentation of shadow reports offer civil society a range of opportunities in terms of expressing its views on the ESC rights situation. In spite of the limitations of shadow reports and of the Committee itself, these spaces open up doors for a permanent work on ESC rights defence and promotion. As human rights defenders, we should take advantage of the various existing spaces and mechanisms, make them more dynamic and consolidate the links that strengthen our struggles.
We do not always succeed in complying with ESC rights mechanisms and their associated procedures, but we take advantage of them for the advancement of the cause of human rights.