Human Rights Law Review 2009 Brems 349 72

Human Rights Law Review 93 The Author [2009] Published by Oxford University PressAll rights reserved For Permissions please email journalspermissionsoxfordjournalsorgdoi101093hrlrngp016

Human Rights MinimumandMaximum Perspectives

Eva Brems

Abstract

A focus on human rights violations leads to border control type humanrights monitoring that provides only minimal human rights protectionas the borderline tends towards the bottom Moreover it is indifferentto degrees of human rights protection beyond the borderline thusdiscouraging ambitious human rights agendas The technique of pro-gressive realisation may be the basis of improved border control moni-toring that avoids the downward trend Moreover borderline controlshould be complemented with additional techniques that transformthe dynamic of human rights from minimalism to maximalism

1 Introduction

Human rights are the ultimate touchstones determining acceptable as well asdesirable government and private behaviour Yet 60 years after the UniversalDeclaration of Human Rights human rights monitoring remains partial andthe tests and techniques that shape human rights scrutiny at different levelsof governance and in different types of mechanisms are rather poorly alignedThis article will adopt a holistic approach to human rights monitoringencompassing the domestic regional and global levels Its starting point is thecentrality of the concept of human rights violations in human rights discourseand some unsatisfactory consequences thereof Drawing on the legal resourcesthat already exist in the human rights world outside the violations paradigmthe article will make a number of conceptual as well as practical suggestionsto address these shortcomings Its chief focus is on the work of treaty monitor-ing bodies and (national as well as supranational) courts Yet a fully adequate

Professor of Human Rights Law Ghent University Belgium (EvaBremsUGentbe)

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response to the issues raised may require integration of their work with that ofother bodies such as national human rights commissions

2 Bottom and Horizon Lines Monitoring HumanRights Performance

A Border Control Violations as a Central Concept

In human rights discourse the concept of the lsquohuman rights violationrsquo is cen-tral Determining whether or not any particular measure that restricts ahuman right constitutes a violation of that right is the main pre-occupation ofthe human rights lawyers In human rights adjudication it is obviously crucialto know whether or not a right has been respected Yet the concept of viola-tions does not only appeal to lawyers Likewise in ethical and politicalhuman rights discourse the need is felt to determine a borderline Whoevercrosses that line will be labelled as a human rights violator It seems that thelegal concept of a human rights violation reflects the essence of our mentalimage of human rights they express what is most valuable most sacred andshould not be touched upon Hence monitoring human rights is essentiallyborder control Human rights monitoring as border control has manifestadvantages of clarity and legal certainty Yet when human rights monitoringis limited to border control there are also a number of strong drawbacks Oneis the borderrsquos lsquobottom linersquo character another is the lack of interest for what-ever happens on either side of the border

(i) Minimalism the border as a bottom line

While the appeal of border control type human rights monitoring is in itsclarity it should not be forgotten that the location of the border is not clear atthe outset Human rights norms are formulated in general abstract termsand are associated with restriction clauses For example Article 21 of theInternational Convenant on Civil and Political Rights 1966 (ICCPR)1 protectsthe right of peaceful assembly and states

No restrictions may be placed on the exercise of this right other thanthose imposed in conformity with the law and which are necessary in ademocratic society in the interests of national security or public safetypublic order (ordre public) the protection of public health or morals orthe protection of the rights and freedoms of others

1 999 UNTS 171

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Does this mean that a rule requiring authorisation of the police for a publicdemonstration is a human rights violation Does it imply that the organisersof a demonstration have the freedom to choose the time and place of thedemonstration These questions concern the determination of the borderlineThe answer cannot be given on the basis of the rule alone it requires interpre-tation by an authoritative body In international human rights law this iseither a court2 ruling on applications by states or individuals or a committee3

examining national reports andor individual complaints or issuing generalinterpretational guidelines (lsquoGeneral Commentsrsquo) Even when deciding on anindividual case a supranational monitoring body has to take into account thefact that its decision will mark the borderline between human rights violationsand acceptable restrictive measures for all the states parties to the conventionThis is tricky and it appears to push the borderline downwards The reasonbehind this is that context matters as much in human rights as it does else-where The diversity of economic cultural and political contexts in whichhuman beings live is enormous Accounting for this diversity in the humanrights norm is not easy One way of doing this is by developing the humanrights norms in more detail for example by carving out exceptions For exam-ple in the European Convention on Human Rights (ECHR)4 system the con-text of the fight against terrorism justifies a number of restrictions of anaccused personrsquos right of defence that are not otherwise acceptable (in particu-lar with respect to access to counsel and to the case file and the use of anon-ymous witnesses)5 Carving out exceptions to a human rights norm does notlower the borderline as such but rather makes for a porous border

Yet another way of accounting for contextual diversity is by reducing thedegree of international scrutiny and thus lowering the borderline In thismodel the border remains solid there are no holes in it Yet it is so low thatone can easily lookccediland even stepccedilover it The latter tendency is manifestedin the European Court of Human Rightsrsquo (ECtHR) use of the margin of

2 The European Court of Human Rights the Inter-American Court of Human Rights and theAfrican Court of Human and Peoplesrsquo Rights (not yet operational)

3 This is the case under the United Nations human rights treaties where the most importanthuman rights monitoring committees are the Human Rights Committee Committee onEconomic Social and Cultural Rights Committee on the Elimination of Racial Discrimina-tion the Committee Against Torture Committee on the Elimination of all Forms ofDiscrimination against Women and Committee on the Rights of the Child Yet there arecommittees also under regional human rights conventions such as the African Commissionon Human and Peoplesrsquo Rights the Inter-American Commission on Human Rights theEuropean Committee on Social Rights and Advisory Committee on the FrameworkConvention for the Protection of National Minorities

4 Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ETS 5(Protocol 11 ETS 155)

5 Article IX legal proceedings Committee of Ministers of the Council of Europe Guidelines onHuman Rights and the Fight against Terrorism 11 July 2002 at 3 available at httpwwwcoeintTEHuman_rightsh-inf(2002)8engpdf [last accessed 30 May 2009]

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appreciation doctrine6 When the European Court is confronted with an issueon which it estimates that there are widely diverging viewpoints among theCouncil of Europe Member States it argues that there is a need to grant awide margin of appreciation to the national authorities and will exercise onlymarginal control A clear example is the case of Leyla S ahin v Turkey7 dealingwith the prohibition of Islamic headscarves in Turkish universities Amongthe 47 Member States of the Council of Europe a wide diversity of models ofChurch^State relations is found from countries with a state church or officialreligion8 to countries such as Turkey and France that operate a principle ofneutrality that is hostile to expressions of religion in the public sphereConfronted with this diversity the ECtHR does not want to impose uniformitybut rather resorts to a wide margin of appreciation

Where questions concerning the relationship between State and religionsare at stake on which opinion in a democratic society may reasonablydiffer widely the role of the national decision-making body must begiven special importance This will notably be the case when itcomes to regulating the wearing of religious symbols in educational insti-tutions especially in view of the diversity of the approaches takenby national authorities on the issue It is not possible to discern through-out Europe a uniform conception of the significance of religion insociety and the meaning or impact of the public expression of a reli-gious belief will differ according to time and context Rules in thissphere will consequently vary from one country to another according tonational traditions and the requirements imposed by the need to protectthe rights and freedoms of others and to maintain public order Accordingly the choice of the extent and form such regulations shouldtake must inevitably be left up to a point to the State concerned as itwill depend on the domestic context concerned 9

Lowering the borderline out of a desire to take into account different contex-tual possibilities happens also at the national level An example is the case ofDiane Pretty a terminally ill British woman who claimed that her right toself-determination should include a right to assisted suicide British legislation

6 On the margin of appreciation doctrine see Brems lsquoThe Margin of Appreciation Doctrine inthe Case-Law of the European Court of Human Rightsrsquo (1996) 56 Zeitschrift fulaquo r auslalaquo ndischesolaquo ffentliches Recht und Volaquo lkerrecht 240 and Brems lsquoThe Margin of Appreciation Doctrine ofthe European Court of Human Rights Accommodating Diversity within Europersquo in Forsytheand McMahon (eds) Human Rights and Diversity Area Studies Revisited (Lincoln Universityof Nebraska Press 2003) 81^110

7 The case was examined first in 2004 by an ordinary chamber (seven judges) of the ECtHRwhich reached its judgment unanimously (Leyla S ahin v Turkey 41 EHRR 8 at para 230) andagain in 2005 by a Grand Chamber (17 judges) which confirmed the judgment with a 16 to1majority (Leyla S ahin v Turkey 2005-XI 44 EHRR (GC))

8 For example the Church of England9 Leyla S ahin v Turkey (GC) supra n 7 at para 109

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stated and the judgment of the House of Lords10 held that such a right couldnot be granted to anyone An absolute prohibition on assisted suicide wasdeemed necessary to protect vulnerable persons against abuse Even thoughDiane Pretty did not fall within that category no exception had to be made inher case In its judgment upholding the judgment of the House of Lords theECtHR stated that lsquojudgments issued in individual cases establish precedentsalbeit to a greater or lesser extent and a decision in this case could not eitherin theory or practice be framed in such a way as to prevent application inlater casesrsquo11 In principle the establishment of a low international borderlinemay coexist with higher borderlines at the national level When an interna-tional judgment of lsquono violationrsquo is based on the accommodation of contextualdiversity such as through the use of the margin of appreciation doctrine thisis not supposed to function as a guideline for state behaviour in the same wayas a finding of a violation In fact what the ECtHR is saying when it grants awide margin of appreciation on a particular issue is precisely that it abstainsfrom guiding state action in this field Because an in-depth examination ofthe human rights conformity of certain measures cannot be meaningfully per-formed in the abstract it must be undertaken in the concrete context by thenational authorities (legislator andor courts) It is their duty for example tomonitor ChurchState relations in their country in the light of human rightsstandards establish the violations border in their specific context and correctany violations that may occur Yet the public and political perception of suchan ECtHR judgment in practice is that of a Court clearance of a restrictivepractice as such In many cases national courts and legislators interpret theinternational lsquono violationrsquo judgment as a licence to proceed with a restrictivemeasure without having to perform their own in-depth evaluation

Thus while in theory a hands-off approach by the supranational bodiesshould not have an impact on the determination of the violations border (thesituation after a lsquono violationrsquo finding on the basis of a margin of appreciationreasoning should be the same as without an intervention by the supranationalbody) in reality it leads to levelling down Hence minimal human rights guar-antees are established as the norm and the borderline function of humanrights in practice often becomes a bottom line

(ii) Eyes on the line no degrees of good or evil

The second drawback of border control type human rights monitoring isits narrow vision As all attention is focused on the borderline and on

10 Pretty v Director of Public Prosecutions and Secretary of State for the Home Department [2001]UKHL 61

11 Pretty v United Kingdom 2000-III 35 EHRR 1 at para 75 The ECtHR follows the reasoning ofthe British House of Lords Similar reasoning is found in the Canadian Supreme Court caseof Rodriguez vAttorney General of Canada [1994] 2 LRC 136

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determining whether or not it is crossed whatever happens on either side ofthe line becomes irrelevant On the one hand the uniform term lsquoviolationrsquohides the distinctions between more and less serious violations Both develop-ments over time and comparisons between perpetrators are possible in quanti-tative terms (counting the number of violations the number of victims and soon) but not in qualitative terms (looking at degrees of violations) There isonly one line determining whether or not there is a violation not severallines determining for example first- second- and third-degree violations

On the other hand the single borderline approach obscures the differencesbetween good and excellent human rights records Take two statesrsquo nationalsecurity programmes that do not violate human rights There is a goodchance that nevertheless one of the two offers a lot more protection to humanrights than the other In fact there are not only degrees in human rights viola-tions but also in respect for and protection and fulfilment of human rightsThe single borderline approach renders these invisible and therefore missesan opportunity to provide incentives for states to do more than the minimumfor human rights Best practices have no place in a violations approach Statesimplicitly suppose that the best they can do for human rights is to avoid allhuman rights violations whereas in reality there is a world of potentialprogress open to them beyond that borderlinebottom line Hence bordercontrol type human rights monitoring does not encourage states to be ambi-tious in their human rights agendas

B Reaching for the Horizon Progressive Realisation

In the area of economic social and cultural rights an alternative for the viola-tions approach exists which is known as progressive realisation Progressiverealisation has been formulated amongst others in the International Covenanton Economic Social and Cultural Rights 1966 (ICESCR)12 and in the UnitedNations Convention on the Rights of the Child 1989 (CRC)13 Ordinarily whena state joins a human rights treaty it is not allowed to cross the violationsborder from the moment it is bound by the treatyccedilusually upon ratificationThe progressive character of state obligations under economic social andcultural rights however means that states commit themselves to gradually

12 993 UNTS 3 Article 2(1) provides lsquoEach State Party to the present Covenant undertakes to takesteps individually and through international assistance and co-operation especially eco-nomic and technical to the maximum of its available resources with a view to achieving progres-sively the full realization of the rights recognized in the present Covenant by all appropriatemeans including particularly the adoption of legislative measuresrsquo (emphasis added)

13 1577 UNTS 3 Article 4 provides lsquoStates Parties shall undertake all appropriate legislativeadministrative and other measures for the implementation of the rights recognized in thepresent ConventionWith regard to economic social and cultural rights States Parties shall under-take such measures to the maximum extent of their available resources and where neededwithin the framework of international co-operationrsquo (emphasis added)

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realising these rights their available resources determining the precise extentof their obligations Progressive realisation does not work on the basis of aborderline similar to that in the violations approach There is a line signallinglsquofull realisationrsquo but that is more akin to a horizon line In addition there is abottom line of state obligations under economic social and cultural rightsthe Committee on Economic Social and Cultural Rights (CESCR) defines lsquocoreobligationsrsquo that have to be realised by all states

[T]he Committee is of the view that a minimum core obligation to ensurethe satisfaction of at the very least minimum essential levels of each ofthe rights is incumbent upon every State party Thus for examplea State party in which any significant number of individuals is deprivedof essential foodstuffs of essential primary health care of basic shelterand housing or of the most basic forms of education is prima facie fail-ing to discharge its obligations under the Covenant If the Covenantwere to be read in such a way as not to establish such a minimum coreobligation it would be largely deprived of its raison drsquoeldquo tre14

Hence core obligationsccedilwhich the CESCR enumerates concretely in itsGeneral Comments dealing with specific rights15ccedilare an exception they arenot progressive but rather immediate The issue of resources can of coursenot totally be ignored it is possible that a state lacks the resources to guaranteeeven the minimal level of protection of a particular right (eg vaccination ofall children against certain diseases) yet as soon as the resources are suffi-cient they must be spent as a matter of priority on the satisfaction of the coreobligations

As a result there are two lines a bottom lineccedilwhich is much lower thanthe borderline under civil and political rightsccedilbelow which there is always aviolation and a horizon lineccedilwhich does not signal a maximum but ratherapproaches lsquobest practicersquo or at least lsquogood practicersquo In between the two linesstate behaviour may or may not conform to treaty obligations dependingamongst others on the availability of resources Even above the bottom lineprogressive realisation cannot be an excuse for doing nothing There is always

14 CESCR General Comment No 3 (1990) The nature of States partiesrsquo obligations E19912311 IHRR 6 (1994) at para 10

15 See CESCR General Comment No12 (1999) The right to adequate food EC1219995 6 IHRR902 (1999) at para 8 CESCR General Comment No 13 (1999) The right to education EC12199910 7 IHRR 303 (2000) at para 57 CESCR General Comment No 14 (2000) The right tothe highest attainable standard of health EC1220004 8 IHRR 1 (2001) at paras 43^4CESCR General Comment No 15 (2002) The right to water EC12200211 10 IHRR 303(2003) at para 37 CESCR General Comment No 17 (2005) The right of everyone to benefitfrom the protection of the moral and material interests resulting from any scientific literaryor artistic production of which he or she is the author EC12GC17 13 IHRR 613 (2006) atpara 39 and CESCR General Comment No 18 (2006) The right to work EC12GC18 13IHRR 625 (2006) at para 31

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the obligation to lsquotake stepsrsquo ie to begin implementation The CESCR hasspecified that

while the full realization of the relevant rights may be achieved progres-sively steps towards that goal must be taken within a reasonably shorttime after the Covenantrsquos entry into force for the States concerned Suchsteps should be deliberate concrete and targeted as clearly as possibletowards meeting the obligations recognized in the Covenant16

Progressive realisation allows in principle the measurement of degrees of goodas well as bad human rights performance In practice it is mostly monitoredthrough the use of indicators and benchmarks Indicators allow both compar-isons and follow-up over time yet they are generally not suited for the evalua-tion of individual instances of rights restrictions Moreover monitoringprogress with this method is highly dependent on the availability and qualityof appropriate statistical data

C Some Nuances

In order to enable thinking on improved human rights monitoring some nuan-ces need to be added to the above-sketched picture One is the fact that in thefield of economic social and cultural rights progressive realisation coexistsand is integrated with a violations approach Another is the dynamic characterof the violations borderline Finally rights doctrines within several jurisdictionsappear to contradict the claim that borderlines tend towards the bottom lineas they put forward maximalist interpretations of the proportionality test

(i) Violations of economic social and cultural rights

Progressive realisation is not the full story of economic and social rights Thereare a number of exceptions to progressive realisation to which the standardborderline approach applies17 These include in particular the prohibitionof discrimination in this area18 as well as those economic and social rightswhich most closely resemble civil and political rights19 In addition as men-tioned above the identification of core obligations under each right leads toa violations approach on the basis of a low bottom line But more importantlyeven for those rights to which progressive realisation applies a violations

16 CESCR General Comment No 3 supra n 14 at para 217 Ibid at para 518 Under the ICESCR these are contained in Articles 3 (equality for men and women in the

enjoyment of economic social and cultural rights) and 7(a)(i) (equal pay for equal work)19 Under the ICESCR these are Articles 8 (trade union rights and the right to strike) 13(3) (par-

ental freedom of choice in education) 13(4) (freedom to establish educational institutions)and 15(3) (scientific and artistic freedom) In addition the CESCR (General Comment No 3supra n 14 at para 5) exempts from the principle of progressive realisation Articles 10(3)(special measures to protect children and young persons) and 13(2)(a) (compulsory and freeprimary education)

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discourse is increasingly used First promoted in academic circles20 the viola-tions approach to economic social and cultural rights has been backed by theCESCR Since the end of the 1990s it includes in its General Comments onspecific rights a section enumerating examples of violations of state obligationsto respect protect and fulfil that right

The practice of both national and international bodies adjudicating onindividual applications about violations of economic and social rights showsthat it is possible to identify in a specific case a violations borderline at a pointin between the bottom line of core obligations and the horizon line Criteriaguiding adjudicators towards this point are being developed in the case lawIf we take the example of the right to housing a groundbreaking case isthe Grootboom judgment of the Constitutional Court of South Africa21 SouthAfricarsquos 1996 Constitution provides in section 26 lsquo(1) Everyone has the right tohave access to adequate housing (2) The state must take reasonable legislativeand other measures within its available resources to achieve the progressiverealisation of this rightrsquo In its reasoning supporting the finding of a violationof this provision in Grootboom the Court relies heavily on the lsquoreasonablenessrsquocriterion Reasonableness is further developed as requiring amongst othersbalance flexibility appropriate attention to crises and to short- medium- andlong-term needs absence of exclusion of a significant segment of society andabsence of exclusion of those whose needs are the most urgentYet those whoexpect the technique of progressive realisation above the bottom line of coreobligations to lead to maximisation of human rights protection are in for adisappointment The Court specifies

A court considering reasonableness will not enquire whether other moredesirable or favourable measures could have been adopted or whetherpublic money could have been better spent The question would bewhether the measures that have been adopted are reasonable

Hence the question whether the point at which a state is situated on the slopetowards the horizon line is the highest one that is feasible in the light of itsavailable resources does not enter into the evaluation

On the other hand the European Committee of Social Rights ruling oncollective complaints of violations of the Council of Europersquos 1996 EuropeanSocial Charter22 insists that states should make lsquomaximum use of available

20 Chapman lsquoA lsquolsquoViolations Approachrsquorsquo for Monitoring the International Covenant on EconomicSocial and Cultural Rightsrsquo (1996) 18 Human Rights Quarterly 23 lsquoThe Limburg Principles onthe Implementation of the ICESCRrsquo (issued in 1986) see lsquoSymposium the implementation ofthe International Covenant on Economic Social and Cultural Rightsrsquo (1987) 9 Human RightsQuarterly 121 and the lsquoMaastricht Guidelines on Violations of Economic Social and CulturalRightsrsquo (issued in 1997) see International Commission of Jurists lsquoThe Maastricht GuidelinesonViolations of Economic Social and Cultural Rightsrsquo (1998) 20 Human Rights Quarterly 691

21 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 4622 European Social Charter (Revised) 1996 ETS 163

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resourcesrsquo towards achieving the objectives of the Charter23 However in con-crete cases the Committeersquos reasoning does not make any significant referenceto the resources available On housing the European Social Charter providesin Article 31

With a view to ensuring the effective exercise of the right to housingthe Parties undertake to take measures designed1 to promote access to housing of an adequate standard2 to prevent and reduce homelessness with a view to its gradual

elimination3 to make the price of housing accessible to those without adequate

resources

Applying a similar criterion to that used by the South African ConstitutionalCourt the Committee finds that Francersquos social housing policy violatesArticle 31(3) of the Charter due to lsquomanifest inadequacy of the existing policymechanisms for ensuring due priority for the provision of social housing forthe most socially deprivedrsquo24

Hence both the theory and practice of adjudicating economic social and cul-tural rights point to a possibility of avoiding the bottom line tendency of theviolations approach by integrating it in a framework of progressive realisationthat requires maximisation of resources available for rights protection Yet thefocus on economic resources is a limited one and the maximisation require-ment awaits a satisfactory translation into manageable assessment criteria

(ii) Unsteadiness of the border

Presenting the violations approach as border control type human rights moni-toring may suggest that the border determining when a rights restrictionconstitutes a violation is fixed and stable That would be a misconceptionIn the first place it is in many cases not clear until the intervention of anauthoritative body whether a specific restriction is a violation or not In otherwords the location of the border is uncertain in many cases as it requiresinterpretation of the human rights rule including its restriction grounds ina specific context Next the co-existence of human rights protection systemsat different levels (the universal regional national and sub-national) makesdifferent borders at different levels For example the death penalty is consid-ered a violation of the right to life in international conventions25 but not in

23 ECSR Autism Europe v France Complaint No 132002 Merits 4 November 2003 at para 53and ESCR International Movement ATD FourthWorld v France Complaint No 332006 Merits5 December 2007 at para 62

24 ESCR International Movement ATD FourthWorld v France ibid at para 10025 Protocols No 6 (1983) and No 13 (2002) to the European Convention on Human Rights and

Protocol No 2 (1989) to the International Covenant on Civil and Political Rights 1966

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the domestic law of the United States Likewise the 2003 Maputo Protocol tothe African Charter on Human and Peoplesrsquo Rights on the Rights of Womenin Africa protects the right to abortion26 which remains a criminal offence inseveral African states

In addition to the above-described contextual variability of the violationsborder there is also a temporal variability There is a continuous tendency toraise the standard of international human rights law and increase humanrights protection27 One example from the case law of the ECtHR concerns thequalification of an abusive act as torture In 1999 the Court considered that

certain acts which were classified in the past as lsquoinhuman and degradingtreatmentrsquoas opposed to lsquolsquotorturersquorsquocould be classified differently in futureIt takes the view that the increasingly high standard being requiredin the area of the protection of human rights and fundamental libertiescorrespondingly and inevitably requires greater firmness in assessingbreaches of the fundamental values of democratic societies28

Another example concerns the slow extension of human rights protection forhomosexuals starting with decriminalisation and gradually enforcing non-discrimination in different spheres29 To the extent that the borderline movesupwards it loses its bottom line quality

(iii) Maximalist ambitions under the violations approach the lsquoleast restrictivealternativersquo

It may be objected that it is not correct to present border control human rightsmonitoring as a minimalist approach In fact it is often argued that the inter-pretative exercise on the basis of which a judicial or quasi-judicial body deter-mines whether or not a human rights violation has occurred (ie determinesthe exact location of the violations border) includes a maximisation criterionThis is generally integrated in a proportionality test aimed at determiningwhether or not a particular rights-restrictive measure can be justified Themaximisation criterion is usually termed as a lsquoleast restrictive alternativersquo testAs an element of the proportionality test it relates to the link between therestrictive measure and its (legitimate) goal which concerns either the promo-tion of a general interest or the protection of the rights of others The least

26 Article 14(2)(c) Protocol to the African Charter on Human and Peoplesrsquo Rights on the Rightsof Women in Africa Adopted by the Second Ordinary Session of the Assembly of the UnionMaputo 11 July 2003

27 Yet in principle it is not excluded that standards may also move in the other direction lower-ing human rights protection

28 Selmouni v France 1999-V 29 EHRR 403 at para 10129 On this issue see Brems lsquoShould Rights Shape Societies and their Values or should Societal

Values Shape Rights An Examination of the Case-law of the European Court of HumanRightsrsquo in Andras Sajo and Renata Uitz (eds) Constitutional Axiology or Is There Anythingbehindabove the Constitution (Utrecht Eleven Publishing forthcoming)

MinimumMaximum Perspectives 359

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restrictive alternative test implies that among all possible measures to attaintheir policy goal the authorities have to choose the one that least restrictshuman rights In a somewhat attenuated version the obligation to choose theleast rights-restrictive option applies only to alternatives that are comparablein terms of effectiveness towards realising the goal

The least restrictive alternative criterion is part of constitutional humanrights doctrine in several jurisdictions For example in Germany andSwitzerland it is called the lsquonecessity criterionrsquo (Erforderlichkeit) The leadingGerman constitutional law scholar Robert Alexy states that the necessitycriterion concerns the factual possibility of a restrictive measure and for thatreason precedes the proportionality test in the narrow sense which concernsthe legal possibility of the restrictive measure and consists of a balancingexercise between human rights and other interests30 The necessity criterionrequires that the rights restriction does not exceed what is necessary withrespect to its substance and scope31 From the perspective of substance therestriction is acceptable only when there is no other measure available thatwould allow the realisation of the same goal in a less rights-restrictivemanner In terms of geographical and temporal scope the restriction shouldnot affect a wider territory than necessary for the realisation of its goal andshould not last any longer than necessary From the perspective of personalscope restrictive measures affecting a plurality of individuals are acceptableonly when the goal cannot be reached through individual measures An exam-ple from the case law of the Swiss Constitutional Court concerns the manda-tory psychiatric examination of an 87-year-old woman living in a home forthe elderly in the context of a procedure that would remove her legal capacityThe woman was summoned to an examination in a psychiatric hospitalWhen she did not comply with the order she was sued in court under threatof police arrest The Court accepted her argument that the goal that was pur-sued could be reached with manifestly less restrictive means by organisingthe psychiatric examination in the home where she was a resident32

The Canadian Supreme Court set out four requirements that must be satis-fied to prove that a human rights restriction is justified in the Oakes testOne of these is the least restrictive alternative criterion or lsquominimal impair-mentrsquo test the restrictive law lsquoshould impair lsquolsquoas little as (reasonably) possiblersquorsquothe right or freedom in questionrsquo33 As in German and Swiss law this criterionprecedes the test of proportionality between effects and objective Theminimal impairment test is regularly a focus of inquiry by the Canadian

30 Alexy A Theory of Constitutional Rights (trans by Julian Rivers) (Oxford OUP 2002) 66^831 Kiener and Kalaquo lin Grundrechte (Bern Stalaquo mpfli Verlag 2007) 105^732 BGE 124 I 40 E 4c thorn e S 46 f Zwangsbegutachtung Derendingen cited in ibid at 10533 R v Oakes [1986] 1 SCR 103 at 139 and 772

360 HRLR 9 (2009) 349^372

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Supreme Court34 For example it has lead to the finding that the definitionof secondary picketing in the Labour Relations Code prohibiting the peacefuldistribution of leaflets at secondary sites not involved in a labour dispute wastoo broad as it did not limit freedom of expression as little as reasonably possi-ble in order to prevent disruption to other businesses35 Another example isthe finding that the provisions of the Quebec Charter of the French Languagerequiring the exclusive use of French in commercial signs violated freedom ofexpression as they did not impair this freedom as little as possible In theCourtrsquos opinion the goal of promoting and maintaining a French lsquovisagelinguistiquersquo in Quebec could have adequately been served by requiring onlythe predominant (but not exclusive) display of the French language36

The restriction clause of the South African Bill of Rights37 explicitly men-tions the lsquoless restrictive meansrsquo criterion38 as one of the elements to be takeninto account in determining whether the restriction of a right is lsquoreasonableand justifiable in an open and democratic society based on human dignityequality and freedomrsquo The Constitutional Court of South Africa regularlyincludes less restrictive means arguments in its reasoning39 For examplein a case40 claiming an exemption for the non-harmful use of cannabis forreligiousccedilRastafarianccedilpurposes

the minority was essentially of the opinion that less restrictive meanscould have been pursued in satisfying the purpose of drug controlwhile also protecting diversity whereas the majority did not consider analternative as being equally effective as a total prohibition on cannabispossession for the sake of effective policing and ultimately societalcoherence41

34 Beaudoin and Mendes Canadian Charter of Rights and Freedoms (Markham (Ont)Butterworths 2005) at 199

35 United Food amp CommercialWorkers Local 1518 v KMart Canada Ltd [1999] 2 SCR 1083 [1999]SCJ No 67

36 Ford v Quebec (Attorney-General) [1988] 2 SCR 712 [1988] SCJ No 8837 Chapter 2 Constitution of the Republic of South Africa 199638 Article 36 provides lsquo1 The rights in the Bill of Rights may be limited only in terms of law of

general application to the extent that the limitation is reasonable and justifiable in an openand democratic society based on human dignity equality and freedom taking into accountall relevant factors including (a) the nature of the right (b) the importance of the purposeof the limitation (c) the nature and extent of the limitation (d) the relation between the lim-itation and its purpose and (e) less restrictive means to achieve the purpose2 Except as provided in subsection (1) or in other provision of the Constitution no law maylimit any right entrenched in the Bill of Rightsrsquo

39 For example Brink v Kitshoff 1996 (4) SA 197 1996 (6) BCLR 752 at para 4940 Prince v the President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 2002 (3)

BCLR 23141 Van Der Schyff Limitation of Rights A Study of the European Convention and the South African

Bill of Rights (Nijmegen Wolf Legal Publishers 2005) at 289 and Van Der Schyff lsquoCannabisreligious observance and the South African Bill of Rightsrsquo (2003) 1 Journal of South AfricanLaw 136 at 136^8

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In the ECHR a proportionality requirement is expressed in the restrictionclausesrsquo42 requirement that restrictive measures be lsquonecessary in a democraticsocietyrsquo for the realisation of a legitimate goal and has been extended to theentire ECHR by the ECtHR Several authoritative commentators of the ECHRand of the case law of the ECtHR have interpreted this in line with theGerman and Swiss standards as including an obligation to opt for the leastrestrictive alternative43 There are cases in which the ECtHR resorts to a leastrestrictive means criterion For example with respect to the use of anonymouswitnesses in a criminal trial the ECtHR has stated that this is not a priori a vio-lation of the rights of the defence but lsquoif a less restrictive measure can sufficethen that measure should be appliedrsquo44 Also in striking down a state mono-poly on radio broadcasting as disproportionate the Court considered thatlsquoit cannot be argued that there are no equivalent less restrictive solutionsrsquo45

In both cases the ECtHR provided examples of less restrictive alternativesWith respect to armed interventions by state agents against individuals theECtHR stated that such operations must be planned in such a way as to lsquomini-mise to the greatest extent possiblersquo any risk to the lives of individuals46 Andin one case concerning an aggressive house search the ECtHR held that lsquotheexercise of powers to interfere with home and private life must be confinedwithin reasonable bounds to minimise the impact of such measures on thepersonal sphere of the individual guaranteed under Article 8rsquo47

In addition instances are found in which the ECtHR applies a proceduralversion of the least restrictive alternative criterion requiring not per se thatthe least restrictive option be chosen but that evidence is provided thatthe national authorities have included a consideration of less restrictive alter-natives in their decision-making process For example in Bartik the ECtHRnoted in its proportionality assessment that control by domestic courts overtravel restrictions was restricted to formal issues and had not included thequestion whether the restriction was necessary for achieving the legitimateaim and whether a less restrictive measure could be applied48 The proceduralcriterion was most explicitly stated in Hatton concerning an increase in noise

42 Similarly framed restriction clauses are found in Articles 8 (right to private and family lifehome and correspondence) 9 (freedom of conscience and religion) 10 (freedom of expression)and 11 (freedom of assembly and association) as well as Article 2 of the Fourth AdditionalProtocol to the ECHR (freedom of movement)

43 Van Drooghenbroeck La proportionnalitecurren dans le droit de la convention europecurren enne des droits delrsquohomme (Brussels Bruylant 2001) 190 (including more references in his footnotes 90 at 191and 21 at 171) See also references in Schokkenbroek Toetsing aan de vrijheidsrechten van hetEuropees Verdrag tot Bescherming van de Rechten van de Mens (Zwolle WEJ Tjeenk Willink1996) note 126 at 199

44 Van Mechelen and others v the Netherlands 1997-III 25 EHRR 647 at para 5845 Informationsverein Lentia vAustria A 276 (1993) 17 EHRR 93 at para 3946 Ergi v Turkey 1998-IV 32 EHRR 18 at para 79 and Makaratzis v Greece 2004-XI 41 EHRR 49

at para 60 confirmed in numerous later judgments47 Keegan v United Kingdom 2006-X 44 EHRR 716 at para 3448 Bartik v Russia Application No 5556500 21 December 2006 unreported at para 48

362 HRLR 9 (2009) 349^372

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pollution in the area of Heathrow airport In its examination whether thisconstituted a violation of the rights to private life family life and the home(Article 8 ECHR) the ECtHR reasoned

States are required to minimise as far as possible the interference withthese rights by trying to find alternative solutions and by generally seek-ing to achieve their aims in the least onerous way as regards humanrights In order to do that a proper and complete investigation andstudy with the aim of finding the best possible solution which will inreality strike the right balance should precede the relevant project49

However while the Chamber judgment found a violation on this ground theGrand Chamber which did not find a violation mentioned only this criterionwithout actually applying it

On the other hand there are numerous examples of cases in which theECtHR did not use a least restrictive means criterion even though the appli-cants or dissenters have made arguments in that sense or even though itwould otherwise have been a fruitful approach50 In particular the ECtHRexplicitly rejects the least restrictive means criterion in cases concerning theright to property (Article 1 First Additional Protocol) In response to the appli-cantsrsquoargument that expropriation should be resorted to only if no less drasticmeans is available the ECtHR stated in James

This amounts to reading a test of strict necessity into the Article aninterpretation which the Court does not find warranted The availabilityof alternative solutions does not in itself render the leasehold reformlegislation unjustified it constitutes one factor along with others rele-vant for determining whether the means chosen could be regarded asreasonable and suited to achieving the legitimate aim being pursuedhaving regard to the need to strike a lsquolsquofair balancersquorsquo Provided the legisla-ture remained within these bounds it is not for the Court to say whetherthe legislation represented the best solution for dealing with the problemor whether the legislative discretion should have been exercised inanother way51

Moreover in several cases the ECtHR does not find a violation even thoughit admits that less restrictive alternatives were available For example theECtHR has held that the manner in which a house search was conducted was

49 Hatton v United Kingdom 34 EHRR 1 at para 97 and Hatton v United Kingdom 2003-VIII 37EHRR 28 (GC) at para 86

50 See examples inVan Drooghenbroeck supra n 43 at 192^651 James and others v United Kingdom A 98 (1986) 8 EHRR 123 at para 51 This has been con-

firmed in several later cases

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not disproportionate even though the domestic judge had held that it waslsquomore oppressive than it should have beenrsquo52

Hence it is clear that to the extent that a least restrictive alternative criter-ion is present in the ECtHR case law it is not self-sufficient53 contrary toGerman Swiss and Canadian doctrine As indicated in James and in line withthe scheme in the South African Bill of Rights it is rather one of the elementsthe ECtHR may take into account in its appreciation of the proportionality ofa restrictive measure vis-a -vis a legitimate aim

At the universal level the necessity test under the ICCPR has sometimesbeen interpreted as a test of strict necessity amounting to a least restrictivemeans criterion54 and the CESCR reads the limitation clause of Article 4ICESCR in a sense that interprets proportionality as implying a mandatorychoice for the least restrictive alternative55

When a proportionality test really functions as a lsquoleast restrictive alterna-tiversquo test or a lsquominimal impairmentrsquo test the violations approach avoids thepitfall of the low bottom line Instead of being pushed towards the bottomthe borderline in this scenario is pushed towards the horizon and humanrights protection is effectively maximised However in practice it appears diffi-cult if not impossible to consistently uphold a maximisation discipline It wasnoted supra that in some systems (such as the ECHR and the South AfricanConstitution) maximisation of rights protection is only an optional interpreta-tion of the proportionality requirement Moreover even when it is beingapplied in principle the maximisation criterion is often interpreted in a waythat significantly lowers the standard The Constitutional Court of SouthAfrica stated

The requirement of finding lsquothe least onerous solutionrsquo would not haveto be seen as imposing on the court a duty to weigh each and everyalternative with a view to determining precisely which imposed theleast burdens What would matter is that the means adopted byParliament fell within the category of options which were clearly not

52 Chappell v United Kingdom A 152-A (1989) 12 EHRR 1 at para 6553 Van Drooghenbroeck supra n 43 at 21854 For example Nowak on Article 21 ICCPR states lsquoThe principle of proportionality requires that

the type and intensity of an interference be absolutely necessary to attain a purposersquo Headds that stronger measures such as the prohibition and forceful breaking up of an assemblymay be considered only lsquowhen all milder means have failedrsquo [Nowak CCPR Commentary 2ndrev edn (Kehl am Rhein Engel 2005) 491] Kiss states that the word lsquonecessaryrsquo in the ICCPRrestriction clauses lsquoindicates that restrictions on rights are permissible only when they areessential that is inevitablersquo See Kiss lsquoPermissible Limitations on Rightsrsquo in Henkin (ed) TheInternational Bill of Rights The Covenant on Civil and Political Rights (New York ColumbiaUniversity Press 1981) 308

55 CESCR General Comment No 14 supra n 15 at para 29 and General Comment No 17 supran 15 at para 23

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unduly burdensome overbroad or excessive considering all the reason-able alternatives56

Thus instead of looking for the least onerous solution the Court looks for anot unduly onerous solution Similarly the Canadian Supreme Court has notbeen able to strictly and consistently apply the Oakes test and has lsquoeffectivelyreformulated the minimal impairment test to being a reasonable impairmenttestrsquo57

Thus while the lsquoleast restrictive alternativersquo test in principle holds thepromise of preventing the bottom line tendency of the violations borderlinethe practice of its application does not honour this promise

3 Co-ordinating Minimal and Maximal Approaches

It is submitted that human rights need both the definition of a non-negotiableminimum and a tool monitoring progress towards their fullccedilmaximalccedilguarantee In technical legal terms both types of instruments are availableYet their optimal co-ordination may require some adjustments The first stepmay be the extension of the concept of lsquoprogressive realisationrsquo outside therealm of economic social and cultural rights Next an agenda is drafted thatidentifies further steps to be taken

A Extending Progressive Realisation58

Progressive realisation is a tool developed to accommodate economic diversityamong states subscribing to the same human rights obligations it allowsstates to account for the enormous differences among states with respect tothe availability of resources Progressive realisation is recognised only withrespect to economic social and cultural rights in international human rightslaw It is suggested here that it may be worth considering doing more withthis tool

In the first place progressive realisation as a tool to accommodate economicdiversity can be extended to positive obligations under civil and politicalrights The restriction of progressive realisation to economic social andcultural rights is an expression of the artificial dichotomy between the twocategories of rights that has long been taken for granted Today it is widelyrecognised that all human rights give rise to obligations to respect protect

56 Coetzee v Government of South Africa [1995] 4 LRC 22057 Beaudoin and Mendes supra n 34 at 20158 See Brems lsquoAccommodating Diversity in International Human Rights Legal Techniquesrsquo in

Meerts (ed) Culture and International Law (Hague Hague Academic Press 2008) 63^81

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and fulfil the latter two categoriesccedilimplying positive state obligationsccedilinparticular requiring the mobilisation of resources Government spending isneeded not only to guarantee the right to health or housing but also theright to a fair trialccedilby creating a well-functioning justice systemccediland theguarantee against inhuman treatmentccedileg respecting minimal standards forprison conditionsccediland in fact all human rights If all positive obligationsunder civil and political rights have an immediate character whereas stateobligations under economic social and cultural rights are progressiveresource constraints inevitably lead states to always give priority to implement-ing civil and political rights over the realisation of economic social andcultural rights This result is undesirable and incompatible with the principleof the indivisibility of human rights Hence a strong argument can be madeto apply progressive realisation in function of available resources also to civiland political rights

But there is more Progressive realisation need not be limited to the accom-modation of economic diversityWhy not consider applying the same principleto deal with other contextual factors affecting the pace of human rightsrealisation Cultural factors are a case in point Human rights are a revolution-ary discourse They aim to change entrenched political behaviour as well asentrenched social behaviour To an important degree human rights are coun-tercultural This is particularly clear when one considers the rights of groupsthat have traditionally been subordinated or denied certain rights As most cul-tures are patriarchal womenrsquos rights are inherently countercultural Thesame holds to a large extent for the autonomy rights of children and forthe equality rights of homosexuals Cultural resistance to certain humanrights norms may be so strong that states prefer not to join a particularConventionccedileg the United States and the CRCccedilor to join only after formu-lating a culture-based reservation59 States that have not made such a culturalreservation may still invoke culture (cultural resistance) as a factor explaining

59 Numerous lsquocultural reservationsrsquo have been made under the Convention on the Elimination ofall forms of Discrimination against Women 1979 1249 UNTS 13 (CEDAW) and the CRC Mostof these are lsquoreligious reservationsrsquo by states with a majority Muslim population stipulatingthat they object to any implications of the Convention that would run counter to the Islamicsharirsquoa Some examples of reservations made to the CRC are the following

lsquo[The Government of Djibouti] shall not consider itself bound by any provisions or arti-cles that are incompatible with its religion and its traditional valuesrsquolsquoThe Government of the Islamic Republic of Iran reserves the right not to apply any pro-visions or articles of the Convention that are incompatible with Islamic Laws and theinternational legislation in effectrsquolsquoThe Republic of Poland considers that a childrsquos rights as defined in the Convention inparticular the rights defined in articles 12 to 16 shall be exercised with respect for par-ental authority in accordance with Polish customs and traditions regarding the placeof the child within and outside the familyrsquo

366 HRLR 9 (2009) 349^372

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their poor results in terms of human rights implementation in the context ofthe state reporting procedure60

Progressive realisation to accommodate cultural diversity would allowtaking into account the reality that cultural change is usually slow It wouldadapt the legal standard to that reality by holding states accountable immedi-ately for realisation of their core obligationsccedilimplying the need to determinethoseccediland for taking deliberate concrete and targeted steps to overcome thecultural obstacles towards full realisation It is suggested that this might be agood idea for several reasons There are pragmatic reasons if human rightsobligations are made more realistic the risk is reduced of states rejecting orignoring them altogether And there are reasons of principle it might be afairer approach The countries of the global North andWest have always domi-nated the human rights agenda and they put certain issues on the agendawhen they are ready for them ie when cultural change in their societies haseither been accomplished or is well on track In Belgium for example womenobtained the right to vote only in 1948 Today there are quotas in the BelgianConstitution concerning gender representation in the executive power atdifferent levels61 In 1979 Belgium was ready for the Convention on theElimination of All Forms of Discrimination against Women 1989 (CEDAW)62

with its immediate obligations but in 1945 it would not have been It is amatter of remaining aware of the road travelled and of allowing some traveltime to others It is submitted that this is in fact common sense It is thereforenot surprising that in the rules and practice of international human rightsone can find a number of examples of the application of progressive realisa-tion in areas such as womenrsquos rights even though the term lsquoprogressiverealisationrsquo as such is not used One example at the level of standard settingis the Convention of Belecurren m Do Para the Inter-American Convention on thePrevention Punishment and Eradication of Violence against Women 199463

In its chapter on lsquoduties of the statesrsquo this Convention distinguishes betweenthe duties that states have to perform lsquowithout delayrsquo64 and specific measuresthat states lsquoagree to undertake progressivelyrsquo65 While the former list contains

60 For example the following quote in the conclusion of Namibiarsquos most recent CEDAW report 2September 2005 CEDAWCNAM2-3 at 70 lsquoFinally to support or to complement the clauseof the Constitution that guarantees gender equality laws have been enacted to prohibit discri-mination on the basis of sex and while many efforts have been made to promote gender equal-ity due to some cultural and traditional barriers it will take a while before meaningfulequality between men and women could be realizedrsquo

61 Article 11 Belgian Constitution 1994 introduced in 200262 1249 UNTS 13 which entered into force on 3 September 198163 (1996) Inter-AmericanYearbook on Human Rights 19464 Article 765 Article 8

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mainly obligations to put in place the necessary legal framework the latterincludes in particular the obligation

to modify social and cultural patterns of conduct of men and womenincluding the development of formal and informal educational programsappropriate to every level of the educational process to counteract preju-dices customs and all other practices which are based on the idea of theinferiority or superiority of either of the sexes or on the stereotypedroles for men and women which legitimize or exacerbate violence againstwomen66

An example at the level of interpretation and application of human rightsnorms may be found in the case law of the ECtHR in the case of Petrovic vAustria67 This was a gender discrimination case in which the applicantalleging discrimination was a man The issue at stake was the refusal of a par-ental leave allowance to a father on the ground that it was only available tomothers In fact the claim arose after Austria had extended this allowance tofathers but the new rule did not yet apply to the applicant At the time of thiscase earlier case law of the ECtHR had already established strict scrutiny forcases of gender discrimination in the sense that only lsquovery weighty reasonsrsquocan justify a distinction on that ground Hence it appears quite surprisingthat the ECtHR nevertheless found no discrimination in this case The ECtHRconfirmed the strict scrutiny rule but in its reasoning showed reluctance tohold a state that gradually develops a system offering broad human rightsprotection accountable for not realising all that immediately

The idea of the State giving financial assistance to the mother or thefather at the couplersquos option so that the parent concerned can stay athome to look after the children is relatively recent Originally welfaremeasures of this sort ^ such as parental leave ^ were primarily intendedto protect mothers and to enable them to look after very young childrenOnly gradually as society has moved towards a more equal sharingbetween men and women of responsibilities for the bringing up of theirchildren have the Contracting States introduced measures extending tofathers like entitlement to parental leave In this respect Austrian lawhas evolved in the same way the Austrian legislature enacting legislationin 1989 to provide for parental leave for fathers In parallel eligibility forthe parental leave allowance was extended to fathers in 1990 ( )It therefore appears difficult to criticise the Austrian legislature forhaving introduced in a gradual manner reflecting the evolution of

66 Article 8(b)67 Petrovic vAustria 1998-II 33 EHRR 307

368 HRLR 9 (2009) 349^372

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society in that sphere legislation which is all things considered veryprogressive in Europe68

While this is not formally an application of progressive realisation it comesvery close and it shows how the application of progressive realisation mightwork in practice in a field such as gender discrimination

B The Rising Borderline and theWorld Beyond

The concept of progressive realisation can thus serve to recognise contain andframe contextual variability of the violations borderline whereby contextuallyjustified variations between states are combined with a gradual rising of theborderline for all human rights and all states In addition to the recognition ofthe validity of progressive realisation beyond economic social and culturalrights and with respect to a broader range of contextual factors than economicresources alone this requires the normative development of the technique ofprogressive realisation Core obligations need to be identified under eachright and tools or guiding principles are needed to enable both policy makersand those evaluating the human rights conformity of their policies to establishin what manner and to what extent specific types of constraints justifiablyaffect the level of human rights protection For the benefit of reporting proce-dures indicators and benchmarks are needed to evaluate a governmentrsquos suc-cess or failure in maximisation of human rights protection In individualcomplaint procedures the evaluation of maximisation efforts is in the firstplace a process evaluation hence the need for criteria outlining adequateand sufficient government efforts at maximisation In addition it is worthexamining whether in some contexts it may be possible to evaluate maximisa-tion in terms of a particular result that needs to be obtained beyond the fulfil-ment of the universal core obligations For example lsquoonce economic resourceshave reached a certain level social housing must be sufficient to cover theneed for itrsquo Or lsquoonce decriminalisation of homosexual activities and awarenessraising in this field have been in place for a number of years there can nolonger be any justification for unequal treatment on the ground of sexualorientationrsquo At the United Nations (UN) level this type of normative develop-ment of human rights is not unfamiliar It is usually performed by the monitor-ing bodies of the UN human rights conventions in their General Commentsor General Recommendations In the area sketched above a joint GeneralComment of these bodies appears to be the most adequate procedure to outlinethe common principles It would have to be complemented with specificGeneral Comments by each Committee in its own field

68 Ibid at para 40

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Such a project would address one of the concerns underlying this articleie the bottom line tendency of violations-centred border control type humanrights monitoring

An additional concern remains ie the indifference of border control moni-toring towards degrees of human rights protection above the borderline tothe effect of discouraging ambitious human rights agendas at the nationallevel In some states very few justifiable constraints exist that stand in theway of full human rights protection Yet if the dominant discourse is one ofminimal human rights protection governments will be convinced that theyhave done all that need and can be done for human rights protection if theyavoid violations and human rights in many cases will lose out against compet-ing interests In some other states serious constraints may exist with respectto some human rights only so that the same reasoning may apply It is sub-mitted that at least in those contexts the minimalist dynamic in humanrights policies is to be replaced by a maximalist dynamic Instead of askingtheir advisers how to draft a bill or make policy choices in such a way as toavoid human rights violations governments should ask them guidance onhow to make norms and policies that offer the most and the best guaranteesfor human rights protection

The above implies that there should be a limit to the gradual rising of theviolations border It is not desirable to label each and every shortcoming fromperfect human rights protection a human rights violation Not for strategicreasonsccedilinflation might undermine the credibility of human rights nor forreasons of fairnessccedilthere are degrees of good and evil some shortcomingsdo not mandate a sanction when they occur but rather applause when theydo not There has to be room for the recognition of best practice which theviolations approach does not offer Take the example of a recent campaign ofthe Flemish Anti-Cancer League to ban smoking at home in the presence ofchildren Clearly this proposal is in line with Article 24 CRC protecting thechildrsquos right to health There can be little doubt that this provision implies posi-tive state obligations including the obligation to change private behaviour ofindividuals that is harmful to the health of other individuals69 Hence a stateoperating a ban on smoking at home would deserve praise under this provi-sion But does this also mean that a state that does not issue such a banviolates Article 24 In a world in which most other more immediate or morecontrollable threats to childrenrsquos health have disappeared one may imaginethe standard rising to this level Yet in the real world as it stands it would beunsound strategy for an international monitoring body to focus on this partic-ular risk as it might divert resources from other health risks where theycould have more impact Even at the national level in a rich state it may not

69 Article 24(3) CRC provides lsquoStates Parties shall take all effective and appropriate measureswith a view to abolishing traditional practices prejudicial to the health of childrenrsquo

370 HRLR 9 (2009) 349^372

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be desirable to use the label lsquoviolation of childrenrsquos rightsrsquo in this context as itmay deflate the urgency of other situations in which the same label is usedsuch as the trafficking of children or access to health and education for undo-cumented immigrant children It would be useful though to be able to refer toanother type of human rights discourse to frame such situations a discoursethat is not concerned with minimal human rights obligations but rather withoptimal human rights achievement

A maximalist human rights discourse makes sense only in a welcomingenvironment It presupposes a society or government or regime perceivingthe protection of human rights as part of their common heritage or identityor their shared goals Utopian as it may sound this is in fact an importantfactor in the current international human rights system Internationalhuman rights protection is short on hard enforcement mechanisms andwhile political and economic pressure undoubtedly work to some extenta decisive factor supporting the strongest national and international humanrights enforcement mechanisms is government commitment to respect theiroutcome Hence it is not farfetched to imagine a state or a supranational orga-nisation such as the European Union to commit not onlyccedilas they havealready doneccedilto respecting the human rights entrenched in internationalconventions and in their constitutions but also to use human rights as aguideline to direct their policy choices In this maximalist perspective statesactively search for the policy option that least restricts human rights or thatcontributes most to effective human rights protection and fulfilment In addi-tion to avoiding human rights violations this implies the setting up of a proce-dural toolccedila lsquohuman rights impact assessment mechanismrsquoccediland an a prioripreference for the most human rights friendly policy option

How to monitor a maximalist human right commitment Its reliance ona voluntarist commitment does not do away with the need for formal proce-dures Experience with human rights scrutiny of proposed legislation hasshown that without a formal procedure governments are tempted to focus onarguments that serve their purpose and too easily to assume that countervail-ing lines of reasoning may be rebutted70 Where mechanisms for the scrutinyof proposed legislation are in place (eg the advisory function of the Councilof State in some continental European states) or where bodies exist that moni-tor the human rights conformity of norms and policies (as is the role of somenational human rights commissions) it may be possible to add the humanrights impact assessment of proposed norms and policies to their job descrip-tionWhile impact assessment tools in the human rights field may be less welldeveloped and less widespread than for example environmental impact

70 Kinley lsquoParliamentary Scrutiny of Human Rights A Duty Neglectedrsquo in Alston (ed)Promoting Human Rights Through Bills of Rights Comparative Perspectives (Oxford OUP1999) 174

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assessment tools important progress has been made in this field71 and moreoperational experience by states embracing human rights maximalism islikely to accelerate their further fine tuning

At the international level reporting procedures are well suited to follow-uphuman rights progress above as below the borderline One may imagine thata statersquos explicit commitment to maximising human rights may result in itsundertaking a particular effort to draw from the monitoring process all thebenefits it has to offer as a critical outsider assessment based on a wide rangeof experience

4 Conclusion

The world of human rights norms and mechanisms is a dynamic and learningworld Yet its growth and learning experiences occur mostly within a partic-ular horizontal level (the national regional global ) or vertical category(economic and social rights childrenrsquos rights womenrsquos rights ) In a diagonalmove cutting through these levels and categories this article has focused onone prominent transversal phenomenonccedilthe violations approachccediland hasidentified some of its shortcomings Looking for solutions to address theseshortcomings it has opted to draw on existing resources in the human rightstoolbox examining their unexplored potential Two promising human rightsassessment techniques were thus identified progressive realisation andthe least restrictive alternative criterion Looking for ways to operationalisea maximalist human rights dynamic a proposal was made that extendsintegrates and develops these techniques and adds other suggestions Thisarticle has thus argued that if it can be grounded in a shared commitmentmaximisation of human rights through the improvement of monitoring techni-ques is both thinkable and feasible

71 See for example the Human Rights Impact Resource Centre of the organisation Aim forHuman Rights available at httpwwwhumanrightsimpactorg [last accessed 30 May2009]

372 HRLR 9 (2009) 349^372

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