Switzerland for human rights « a la carte »

Switzerland has defended an idea at the UN in Geneva that is controversial and up to now not practised in international law. States could choose « a la carte » the rights which their citizens had the right to complain to the UN about if infringed. The proposal has shocked human rights experts, diplomats and NGOs.

The Swiss Constitution ensures that « all basic human needs such as food, clothing and shelter are guaranteed ». In theory any one finding themselves either legally or illegally on Swiss territory has the right to go to the courts if these rights are refused.

The principle is also written into the International Convention on economic, social and cultural rights, one of the pillars of the Universal Declaration of Human Rights, along with that on civil and political rights.

The right for individuals to lodge a complaint at the UN is once again on the negotiating table this week in Geneva, in the form of an optional protocol to the International Convention. The document is currently under examination by a working group of the Human Rights Council.

In theory, this protocol would allow, for example, a farmer illegally driven from his lands to file a complain against his government at the Human Rights Council.

A serious blow to the right to health

Now, Switzerland is in the process of supporting an « a la carte » protocol. In other words, signatory states could exclude certain rights – however universal – from the complaints process.

Such a move is unprecedented at international level and has caused an outcry amongst experts, diplomats and NGOs. In their annual campaign on the right to food, two Swiss NGOs, Action for Lent and Bread for All criticise Bern’s ambivalence.

« Switzerland has led the way in defending the right to food », says Chantal Peyer of Bread for All. « Bern has contributed a lot to this right at the Human Rights Council. It is a Swiss, Jean Ziegler, who has for the past seven years been the UN special rapporteur on the issue. So the positions of the authorities on this protocol are totally incoherent ».

It seems that as regards health and shelter, Switzerland is lagging behind. « Since the revision of the law on health insurance, for examples, companies are no longer obliged to reimburse treatment if affiliated members don’t have the means to pay their subscriptions, which means that treatment is often interrupted », says Christophe Golay, legal advisor to Jean Ziegler. « It s a major blow to the right to health as these people no longer have any means of recourse ». Bern has refused to sign the protocol which would oblige it to review this law.

Canada and the US too

The Swiss position – which is the same as that of Canada and the United States – is not shared by other countries such as Germany, Italy, Portugal, Finland and Spain. « An a la carte menu allows for a hierarchy of laws that contradicts the principle of universality » says Gregoir Schottin, responsible for human rights at the foreign ministry in Berlin.

His Swiss counterpart, Christoph Spenle, defends the position. « When we ratify a new instrument, we want to be certain that it is totally compatible with our Constitution and judicial system », he explains. « We recognise already economic, social and cultural rights. In this sense we are already obliged as a state party to do everything to implement them. But for that to happen there has to be a law and political will. The protocol is not going to speed things up ».

This argument makes Christophe Golay’s blood boil. « It is an inversion of values », he says. « If every time a treaty is negotiated, states start to test if it conforms to their national law, where would that lead ? States recognised at the Vienna Conference in 1993 that all human rights should be considered in the same manner. It is unthinkable that Switzerland should choose them a la carte ! “

But why is there this Swiss ‘prudence’ when most western and developing countries refuse to have a hierarchy of rights ? An African diplomat has this explanation. ‘Some countries consider that social, economic and cultural rights are the key goals. And they are afraid of the consequences of such a treaty. It could mean that each worker, whether legal or note could demand the right to shelter, to treatment etc. The Protocol also has a clause that commits signatory countries to international cooperation. This could be a heavy burden for rich countries to shoulder’.

Translated from French by Claire Doole

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