1 The decision of the UN Commission on Human Rights (CHR) to establish the Working Group is recorded at para. 9 (f) of CHR Res. 2002/24 (Apr. 22). The subsequent ratification by the Economic and Social Council (ECOSOC) can be found in ECOSOC Dec. 2002/254 (July 25). Many of the recent Commission documents relied on or cited in this article are available at the Web site of the Office of the High Commissioner for Human Rights, <http://www.unhchr.ch>. Recent ECOSOC documents are available at its Web site, <http://www.un.org/esa/coordination/ecosoc/>.
2 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 999 UNTS 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR]. The proposal under discussion is based largely on the first Optional Protocol to the International Covenant on Civil and Political Rights [hereinafter ICCPR], Dec. 16, 1966, 999 UNTS 302 & 171, respectively. See infra notes 31–48 and accompanying text.
3 Report of the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/2004/44 [hereinafter Working Group Report].
4 CHR Res. 2004/29 (Apr. 19). See UN Doc. E/CN.4/2004/L.11 /Add.4, at 3, for the resolution and UN Doc. E/CN.4/2004/L.10/Add.4, paras. 53–72, for the various amendments and votes thereon. Those CHR resolutions and decisions are also published in the Report of the Commission on Human Rights on Its Sixtieth Session, UN ESCOR 2004, Supp. No. 4, UN Doc. E/2004/23. ECOSOC will review the decision in July.
5See generally The Right to Complain About Economic, Social and Cultural Rights (Fons Coomans & Fried van Hoof eds., 1995) (SIM Special Study No. 18, Netherlands Institute of Human Rights); Nowak, Manfred, The Need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Rev. Int’l Comm’n Jurists, Dec. 1995, at 153; Tomasevski, Katarina, Justiciability of Economic, Social and Cultural Rights, Rev. Int’l Comm’n Jurists, Dec. 1995, at 203. We recognize that current UN usage is to refer to individual “communications” rather than “complaints,” but we find the latter term a more accurate description.
6See, e.g., Alston, Philip, Out of the Abyss: The Challenges Confronting the New U.N, Committee on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 332 (1987); Alston, Philip, No Right to Complain About Being Poor: The Need foran Optional Protocol to the Economic Rights Covenant, inThe Future of Human Rights Protection in a Changing World: Fifty Years Since the Four Freedoms Address: Essays in Honour of Torkel Opsahl79 (Asbjøm, Eide & Helgesen, Jan eds., 1991) [hereinafter No Right to Complain].
7 The Committee on Economic, Social and Cultural Rights (ESCR Committee), while functioning as a treaty body, was created by ECOSOC in 1985 rather than by the ICESCR itself. ECOSOC Res. 1985/17 (May 28).
8 ESCR Committee, Report on the Fifth Session, para. 285, UN Doc. E/1991/23. At its sixth (1991) session, the ESCR Committee supported the drafting of an optional protocol “since that would enhance the practical implementation of the Covenant as well as the dialogue with States parties and would make it possible to focus the attention of the public opinion to a greater extent on economic, social and cultural rights.” ESCR Committee, Report on the Sixth Session, para. 362, UN Doc. E/1992/23.
9 The proposal is found in UN Doc. E/CN.4/1997/105, annex (1996) [hereinafter ESCR Committee proposal].
10 For the report on the workshop, see UN Doc. E/CN.4/2001/62/Add.2 [hereinafter Report on Workshop]. The Commission and ECOSOC decisions establishing the Independent Expert are contained in CHR Res. 2001/30 (Apr. 20) and ECOSOC Dec. 2001/220 (June 4), respectively. The reports of the Independent Expert are contained in UN Docs. E/CN.4/2002/57 [hereinafter Independent Expert 2002 Report] and E/CN.4/2003/53 & Corrs. 1–2 [hereinafter Independent Expert 2003 Report].
11 CHR Res. 2002/24, supra note 1, para. 9(f); ECOSOC Dec. 2002/254, supra note 1, para. (b).
12See, e.g., Nowak, Supra note 5; Arambulo, Kitty, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects16–18 (1999).
13 Vienna Declaration and Programme of Action, pt. I, para. 5, UN Doc. A/CONF.157/23 (1993), 32ILM 1661 (1993) (adopted at the 1993 World Conference on Human Rights) [hereinafter Vienna Declaration].
14 The precise meaning of “justiciability” in this context is open to debate, and the term is used ambiguously by those on both sides of the issue. See infra notes 81–91 and accompanying text.
15See generallyAlston, Philip & Quinn, Gerard, The Nature and Scope of States Parties’ Obligations Under the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 156 (1987); Vierdag, E. W., The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights, 9 Netherlands Y.B. Int’l L. 69 (1978); ESCR Committee, General Comment No. 3, The Nature of States Parties Obligations, UN Doc. E/1991/23, Annex III (1990). The General Comments are compiled (with those of other treaty bodies) in UN Doc. HRI/GEN/l/Rev.7 (2004), available at <http://www.unhchr.ch/tbs/doc.nsf>.
16SeeSteiner, Henry J. & Alston, Philip, International Human Rights in Context237–320 (2d ed. 2000); Asbjørn, Eide, Economic and Social Rights, inJanusz Symonides, Human Rights: Concept and Standards109 (2000); Yokota, Yozo, Reflections on the Future of Economic, Social, and Cultural Rights, inThe Future of International Human Rights201 (Weston, Burns H. & Marks, Stephen P. eds., 1999); Alston, Philip, Economic and Social Rights, in Human Rights: An Agenda for the Next Century137 (Henkin, Louis & John, Lawrence Hargrove eds., 1994); Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Abdullahi Ahmed An-Na‘im ed., 1992).
17See generallyEconomic, Social and Cultural Rights: A Textbook (Asbjørn, Eide, Krause, Catarina, & Rosas, Allan eds., 2d rev. ed. 2001); Giving Meaning to Economic, Social, and Cultural Rights (Merali, Isfahan & Oosterveld, Valerie eds., 2001); Jackbeth K., Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights, 6 Int’l J. Hum. Rts. 29 (2002).
18 UN Development Programme, Human Development Report 2002, at 17–18, at <http://hdr.undp.org>.
19 The content of economic, social, and cultural rights is generally said to comprise the following: an adequate standard of living, including food, clothing, housing, health, and medical care; education; work; fair conditions of employment; the opportunity to form and join trade unions; social security; and participation in cultural life. See generallyMatthew C. R., Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development7–8 (1995); Economic, Social and Cultural Rights: A Textbook, supra note 17.
20 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71 (1948) [hereinafter UDHR].
21 Jack Donnelly notes, for example, that describing the Western conception of human rights as focused exclusively on civil and political rights is a “prominent myth in the human rights literature Quite the contrary, during the Cold War the West was the only region that in practice took seriously the often-repeated assertion of the indivisibility of all internationally recognized human rights.” Donnelly, Jack, Universal Human Rights in Theory and Practice64–65 (2d ed. 2003). While the present article does not address the question of U.S. ratification (the United States is a signatory, but not a party, to the Covenant), we tend to agree with much of the analysis set out in Alston, Philip, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy, 84 AJIL 365, 367–68 (1990), particularly when he notes that the “nature” of Covenant obligations is “considerably more substantial and demanding than has been assumed in most of the ratification debate in the United States” and that the obstacles to U.S. ratification are “much more formidable” than they were for other human rights treaties. We might add that since the time that Alston wrote that article, the trend in ESCR Committee interpretation, through General Comments and Concluding Observations discussed infra section III, has made the task even more difficult. See also the statement by ESCR Committee member Abdessatar Grissa, who, in opposing the protocol, observed that it was “unrealistic since certain countries, even among the most prosperous, could not implement all the provisions of the Covenant in full” and that “the United States had shown greater realism in not [ratifying] the Covenant, knowing that it could not implement it.” UN Doc. E/C.12/1996/SR.48, para. 8 (1997).
22 Regrettably, as discussed infra notes 92–94 and accompanying text, much of the argumentation in support of an optional protocol merely contends there is no reason not to establish a complaints mechanism, rather than demonstrating good reasons to do so—for example, by establishing what tangible benefits would flow therefrom.
23Cf. Hathaway, Oona A., Do Human Rights Treaties Make a Difference?111 Yale L.J. 1935, 2015–19 (2002).
24Cf. Bangalore Declaration and Plan of Action (1995), which calls throughout for more active involvement of lawyers and judges in the pursuit of economic, social, and cultural rights. Rev. Int’l Comm’n Jurists, Dec. 1995, at 219, 223. On the subject of “overlegalization,” see Heifer, Laurence R., Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 Colum. L. Rev. 1832 (2002). We acknowledge, of course, that some economic, social, and cultural rights are more readily capable of meaningful adjudication than others. See infra note 330 and accompanying text.
25 To argue, as we do, that rights need not have remedies in order to be obligatory is, admittedly, an anti-Kelsenian approach. That is different, however, from asserting that the Covenant is not binding on states parties; clearly, it is. By comparison, the UDHR was intended to be a broad declaration of inspirational principles, not “a narrow set of legally binding provisions ‘confined to a ‘document of lawyers.’” Paul, Gordon Lauren, The Evolution of International Human Rights: Visions Seen234–36 (1998); Mary, Ann Glendon, A World Made New235–41 (2001); cf. Sen, Amartya, Development as Freedom3, 227–30 (1999), where the Nobel laureate argues that development must be viewed in terms of freedom and the removal of major obstacles to it; in his view,” [I]t is best to see human rights as a set of ethical claims, which must not be identified with legislated legal rights . . . . [W]e have to judge the plausibility of human rights as a system of ethical reasoning as the basis of political demands.”
26 Some do fear, of course, that empowering the ESCR Committee to adjudicate the rights of individuals and the concomitant obligations of states is a significant step toward establishing a judicially controlled command economy, and that it is a fundamentally undemocratic approach to issues of social and economic development. A less stark assessment would assert mat some issues ought not be adjudicated even if they can be. Cf. Sandler, Ross & Schoenbrod, David, Democracybydecree: What Happens When Courts Run Government (2003); The Politics of Human Rights: Does It Help to Think of Poverty or Inadequate Heath Care as Violations of Basic Rights?Economist, Aug. 18, 2001, at 9.
[I]f the intention is to move from stating rights to enforcing laws, they will be constitutionally dangerous. Vague laws would invite, and indeed require, courts rather than governments to settle arguments about social justice. Advocates may not mind this: the courts, they imagine, will give them an extra lever to use in pushing policy in their desired direction. But they must recognize that in practice this amounts to subordinating the popular will to the rule, not of law, but of judges.
Id. at 9. Others argue that the judiciary is well suited to enforcing individuals’ rights to “a fair share” of community resources, and that “the available resources include not just the wealth produced within a given state but that of the global community as a whole.” Woods, Jeanne M., Justiciable Social Rights as a Critique of the Liberal Paradigm, 38 Tex. Int’l L J. 763, 792 (2003).
27 In the field of international law, recent academic commentary suggests that cultivating voluntary obedience, rather than compelling compliance, is more effective at the task of “norm internalization,” which is the functional bedrock of a “horizontal” system. See generallyHarold, Hongju Koh, Why Do Nations Obey International Law?106 Yale L.J. 2599 (1997); Harold, Hongju Koh, How Is International Human Rights Law Enforced?74 Ind. L.J. 1397 (1999); Hathaway, supra note 23.
28 A majority of ESCR Committee members (supported by many scholars) viewed a complaints mechanism as the sine qua non of an effective system for the protection and promotion of economic, social, and cultural rights. See generally No Right to Complain, supra note 6. From this perspective, ICESCR rights lack authoritative definition, and absent an internationally agreed adjudicative mechanism, there can be no body of interpretative “jurisprudence” to guide and motivate states. See, e.g., Tomasevksi, supra note 5, at 203–04. Virginia Leary made this argument in the context of the right to health as follows: “Procedures which permit legal complaints to be raised by aggrieved groups and individuals have been demonstrated to be the most effective means of protecting civil and political rights.... The concept of a ‘right’ necessarily carries with it the implication of the opportunity to demand that the right be protected.” Leary, Virginia, Justiciability and Beyond: Complaint Procedures and the Right to Health, Rev. Int’l Comm’n Jurists, Dec. 1995, at 105, 106.
29 UN Doc. A/CONF.157/PC/62/Add.5, Annex II (1993); ESCR Committee, Report on the Seventh Session, Annexes III, IV, UN Doc. E/1993/22. The ESCR Committee’s report was prepared by Philip Alston, who served first as rapporteur and then as chair of the Committee from 1991 to 1999, and had previously done substantial work in support of an optional protocol. See id., paras. 233–37.
30 Vienna Declaration, supra note 13, pt. II, para. 75.
31 ESCR Committee proposal, supra note 9. The report drew not only on the ICCPR’s first Optional Protocol, but also on the communication procedures available under other UN human rights treaties—that is, the Convention on the Elimination of All Forms of Racial Discrimination, December 21, 1965, Article 8, 660 UNTS 195, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Dec. 10, 1984, Articles 17 and 18, 1465 UNTS 85, and the (then draft) optional protocol to the Convention on the Elimination of Discrimination Against Women, March 12, 1999, 38 ILM 763 (1999) [hereinafter CEDAW Optional Protocol]. For an overview of the individual-communications mechanisms of these treaties, see generally Anne Bayefsky, How to Complain to the UN Human Rights Treaty System (2002), and Hurst Hannum, Guide to International Human Rights Practice (3ded. 1999).
32See Working Group Report, supra note 3, para. 42 (statement of Human Rights Committee member Martin Scheinin). It remains unclear whether, by ratifying the proposed optional protocol, states would assume an independent legal obligation to comply with the decisions of the adjudicators, or whether those decisions would be considered only “authoritative interpretations” of the binding obligations that states had already assumed under the Covenant itself. During the Working Group debate, some delegations were of the view “that the optional protocol would be a quasi-judicial procedure and that the [ESCR] Committee like other treaty monitoring bodies would only make recommendations,” while others “questioned the nature of the Committee’s decisions on individual cases and suggested that ‘quasijudicial’ recommendations by a treaty body” might “be interpreted in practice as ‘judicial’ decisions.” Id., para. 54. If the decisions are merely hortatory, akin to the Committee’s recommendations adopted under the state reporting procedure, there would seem to be little point to the exercise. If, on the other hand, the decisions constitute authoritative interpretations of me legally binding obligations of states parties to the Covenant—which states party to the Protocol have agreed to respect, and for violations of which, liability attaches and remedies (including an award of compensation) may be handed down—they clearly assume a binding character of their own.
33 ESCR Committee proposal, supra note 9, para. 16.
34 Use of the term “adjudicators” also serves to emphasize that the proposal contemplates a formal, judicial process of adjudication with obligatory results. To contend, as the ESCR Committee itself has done, that the process would be “noncompulsory” and “strictly optional,” see id., para. 12(a), (d), UN Doc. A/CONF.157/PC/62/Add.5, Annex I, para. 18 (1993), risks serious miscomprehension.
35 ESCR Committee proposal, supra note 9, paras. 23, 31 (Art. 2).
36Id., para. 31 (settingforth Art. 2(1)). The ESCR Committee noted that “the right of self-determination should be dealt with under this procedure only in so far as economic, social and cultural rights dimensions of that right are involved.” Id., para. 25.
37Id., paras. 21 (Art. 1), 31 (Art. 2).
38Id., para. 33 (Art. 3(1), (3)).
39Id., para. 35 (Art. 4(1)).
40Id., para. 37 (Art. 5). Interim measures would seem to be unrealistic since most of the rights require institutional development and budget commitments, which take time to develop.
41Id., paras. 38–41 (Art. 6(3)).
42Id., para. 53 (Art. 10).
48Id., para. 41 (Art. 6(2)).
44Id., para. 45 (Art. 7(1)).
45Id., para. 45 (Art.7 (3)). On-site visits would require substantial resources. Other treaty bodies currently have almost no funds for such mechanisms. See infra note 316–17.
46 ESCR Committee proposal, supra note 9, para. 49 (Art. 8(1)).
47Id., para. 51 (Art. 9(1), (2)).
49 For the initial comments of states on the proposal, see generally UN Docs. E/CN.4/1998/84 & Add. 1, E/CN.4/1999/112 & Add.1, E/CN.4/2000/49, and E/CN.4/2001/62 (2000) & Add.1 (2001).
50 See UN Doc. E/CN.4/2001/62/Add.2. The Sub-Commission also endorsed the concept of a legally binding optional protocol. UN Doc. E/CN.4/Sub.2/RES/2003/19. A subsequent round table was convened by the International Commission of Jurists on Nov. 30, 2001. See UN Doc. E/CN.4/2002/161 [hereinafter Roundtable].
51 Kotrane serves as director of the Department of Private Law at the Faculty of Juridical, Political and Social Sciences at the University of Tunis. His mandate was to “examine the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights in the light, inter alia, of the [Committee’s proposal].” CHR Res. 2001/30, supra note 10, para. 8(c); ECOSOC Dec. 2001/220, supra note 10.
52 Independent Expert 2002 Report, supra note 10, summary & para. 55.
54Id., para. 20 (emphasis added).
61 CHR Res. 2002/24, supra note 1, para. 9(c); ECOSOC Dec. 2002/254, supra note 1. The Commission and ECOSOC also requested that states, intergovernmental organizations, and nongovernmental organizations (NGOs) submit their views concerning these three questions. A similar request was made at the 2003 session. CHR Res. 2003/18, para. 14 (Apr. 22).
62 Independent Expert 2003 Report, supra note 10, para. 5.
64Id., paras. 66–67; see infra text accompanying notes 334–37.
67Id., para. 24. “A State in which many people lacked the basics—food, primary health care, housing or education—would ostensibly be failing in its obligations under the Covenant and would thus be violating an obligation of result.” Id.
69 Working Group Report, supra note 3, paras. 7–13. There were thirty-seven member states and forty-eight observers.
70 CHR Res. 2003/18, supra note 61, para. 16.
71 Working Group Report, supra note 3, para. 4. Ambassador Catarina de Albuqueque (Portugal) served as chair.
72Id., para. 70. For the similar views of commentators, see Nowak, supra note 5, at 164; Scott, Craig, Toward the Institutional Integration of the Core Human Rights Treaties, inGiving Meaning to Economic, Social, and Cultural Rights, supra note 17, at 1. Many of the arguments in favor of justiciability are presented as responses to the “myths” or misconceptions of the naysayers who are said to bear responsibility for obstructing the realization of economic, social, and cultural rights over the decades, See, e.g., Matas, David, Economic, Social and Cultural Rights and the Role of Lawyers: North American Perspectives, Rev. Int’l Comm’l Jurists, Dec. 1995, at 123. For the Vienna Declaration and Programme of Action, see supra note 13.
73 Finland, for example, asserted that proposals for a complaints mechanism for the Covenant were rejected in the 1950s because of “the international climate” but that, “[w]ith the end of the Cold War, the question of adopting an Optional Protocol to [the ICESCR] came under increased consideration by the international community.” Finland, Statement (Feb. 23, 2004), at 1–2 (on file with authors). For similar views of commentators, see Roundtable, supra note 50, at 5–6 (summarizing comments by ESCR Committee member Eibe Riedel); Arambulo, supra note 12, at 16–20 (“the alleged difference between the nature of the two groups of human rights was not built on sound arguments”); Chisanga, Puta-Chekwe & Flood, Nora, From Division to Integration: Economic, Social, and Cultural Rights as Basic Human Rights, inGiving Meaning to Economic, Social, and Cultural Rights, supra note l7, at 39 (“the decision to create the [ICESCR] was the product of conflicting ideologies and misconceptions about the nature of human rights, rather than the necessary consequence of fundamental differences between groups of rights”).
74 Working Group Report, supra note 3, para. 18.
75Id., paras. 41 (statement of ESCR Committee member Eibe Riedel), 53.
76 Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3.
77 Working Group Report, supra note 3, para. 18.
80 Poland, Statement (Feb. 23, 2004), at 1 (on file with authors). India and the United States were of the same view. India, Statement (Feb. 23, 2004), at 2; United States, Statement (Apr. 8, 2004).
81 Working Group Report, supra note 3, paras. 58, 60.
82 Finland, Statement, supra note 73, at 3–4 (paragraph structure omitted). See also the written submission of Cuba (not a party to the ICESCR) (noting that its “laws not only recognize economic, social and cultural rights, but also permit complaints about violations of these rights and the award of an appropriate remedy”). UN Doc. E/CN.4/2004/WG.23/2, para. 25 (2003) [hereinafter Secretary-General’s Report to CHR]. This document contains summaries of written submissions made by various states prior to the Working Group session.
83 Working Group Report, supra note 3, paras. 59, 63. Italy made a different distinction: “Obligations in relation to civil and political rights are binding in nature, while obligations in relation to economic, social and cultural rights are only declarations of intent that carry moral and political weight but do not constitute direct legal obligations for the State party.” Secretary-General’s Report to CHR, supra note 82, para. 10.
84 Working Group Report, supra note 3, para. 57. Sweden noted that because the ICESCR contains several unclear concepts, such as the principle of “progressive realization” and the phrase “to the maximum of its available resources,” clarity would be “an important prerequisite for the consideration of an individual complaint mechanism.” Secretary- General’s Report to CHR, supra note 82, para. 17.
85 India, Statement, supra note 80, at 4.
86 UN Doc. E/CN.4/2004/WG.23/CRP.4, para. 2 (written submission of Katarina Tomasevski to the Working Group). Tomasevski also advised that the “text of the ICESCR and, in particular, its previous interpretations should be . . . carefully reviewed so as to identify those features of the past decades that no longer influence the practice of the overwhelming majority of states.” Id., para. 7. Similarly, the general counsel for the World Bank, Francois Gianviti, concluded in a working paper for the Committee that, “[w]hile the provisions of the Covenant may represent a common ground around which members of the United Nations found agreement at a certain point in time, they now appear somewhat removed from the realities of today’s internally and externally open economy.” UN Doc. E/C.12/2001/WP.5, para. 39.
87 ESCR Committee, General Comment No. 9, The Domestic Application of the Covenant, paras. 10, 14, UN Doc. E/C.12/1998/24.
88Cf. Arambulo, supra note 12, at 57 (“Justiciability of a human right means that a court of law or another type of supervisory body deems the right concerned to be amenable to judicial scrutiny.”).
89 Craven, supra note 19, at 102. This statement captures the sense in which we understand the Independent Expert’s observation about “the essentially justiciable nature of all the rights guaranteed under the Covenant,” see supra text accompanying note 68—namely, that in the abstract, it is possible to establish a mechanism to address complaints about violations of those rights.
90See Leary, supra note 28, at 111, where the term is used to refer “not only to the possibility of raising issues before judicial tribunals but also to refer to the right to bring communications concerning violations before quasijudicial organs.”
91 This approach is somewhat closer to the traditional definition of “justiciability” in U.S. courts, which is said to require an actual controversy between two or more parties with adverse interests and with standing to bring the case to court, and where the court’s determination is likely to result in practical relief for the complainant. See, e.g., Flast v. Cohen, 392 U.S. 83 (1968); New York County Lawyers’ Ass’n v. State, 742 N.Y.S.2d 16 (1st Dept. 2002). Even in the United States, courts are capable of deciding some issues related to recognition and enforcement of some economic, social, and cultural rights, including the obligation of the state vel non to provide minimal levels of subsistence or other basic benefits. See, e.g., Harris v. McRae, 448 U.S. 297, reh’g denied, 448 U.S. 917 (1980); Boehm v. Superior Court, 223 Cal. Rptr. 716 (Ct. App. 1986); Moore v. Ganim, 660 A.2d 742 (Sup. Ct. Conn. 1995). Because courts can, of course, does not mean that they should. Some commentators maintain that judicial decision making is simply inappropriate for economic, social, and cultural rights:
No convincing example has . . . been produced of a case in which judges can effectively make decisions allocating positive economic rights. All such decisions are decisions which allocate resources and which therefore have opportunity costs. They also invariably require transfers from individual to individual. Such decisions should be made either by voluntary transactions or by an accountable political process.
Robertson, Bernard, Economic, Social and Cultural Rights: Time for a Reappraisal17 (1997), available at <http://www.nzbr.org.nz/documents/publications/publications-l997/nzbr-rights.doc.htm>. Even when domestic law explicitly provides for adjudication of such rights, courts may still have a limited role in enforcing them. See Minister of Health v. Treatment Action Campaign, 2002 (5) SALR 721 (CC), para. 25 (S. Afr.). The decisions of South Africa’s Constitutional Court are available at <http://www.concourt.gov.za>.
92 Working Group Report, supra note 3, para. 70. See also the statement of Finland, supra note 73, at 2–3, and the summaries of the written submissions of Mexico and Portugal, Secretary-General’s Report to CHR, supra note 82, paras. 11, 39 (respectively). Within the Committee, then Chair Philip Alston explained that the “main aim of the optional protocol was to allow the Committee to build up a body of jurisprudence; thus, even though a particular case considered might involve only one State party or a handful of individuals, the Committee’s decisions could eventually have a multiplier effect.” UN Doc. E/C/1996/SR.45, para. 11.
93 Working Group Report, supra note 3, para. 70 (emphasis added).
95 To quote Tomasevski:
Justiciability will develop, much as everything else in the field of human rights, bottom-up, through fragmentary incursions into the areas cloaked behind the proverbial unwillingness of governments to concede ways and means for holding them accountable. It is thus fortunate that examples of holding governments accountable for violations of economic, social and cultural rights exist and can be used as a basis for further development of justiciability.
Tomasevski, supra note 5, at 206. During the Committee debate, Kenneth Rattray reminded members that the “drafting of an optional protocol was a further step towards establishing an international court to which individuals could apply.” UN Doc. E/C.12/1996/SR.48, para. 15 (1997).
96 The ESCR Committee has long criticized states parties for their failure to incorporate the provisions of the ICESCR into their domestic legislation. See Concluding Observations of the ESCR Committee: New Zealand, para. 11, UN Doc. E/C. 12/1 /Add.88 (2003); Concluding Observations of the ESCR Committee: Iceland, para. 10, UN Doc. E/C.12/1/Add.89 (2003); Concluding Observations of the ESCR Committee: United Kingdom, para. 11, UN Doc. E/C.12/1/Add.79 (2002).
97 GA Res. 2200A (XXI) (Dec. 16, 1966).
98 The Covenants contain common Articles 1 (self-determination), 3 (equal rights of men and women), and 5 (safeguards), as well as identical final articles (ICESCR Articles 24–32 and ICCPR Articles 46–53).
99 GA Res. 421 E (V) (Dec. 4, 1950).
100 One clear example of the relative (indeed, variable) nature of this undertaking is found in ICESCR Article 2(3), which allows “ [d]eveloping countries, with due regard for human rights and their national economy,” to “determine to what extent they would guarantee the economic rights . . . to non-nationals.”
101 The ICESCR (Article 16(1)) requires states parties to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” in the Covenant. It provides (Article 22) that ECOSOC “may bring to the attention of other organs of the United Nations . . . and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports . . . which may assist such bodies in deciding... on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.” The ICESCR also provides that ECOSOC “may transmit [the reports] to the Commission on Human Rights for study and general recommendation” (Article 19), and that ECOSOC may, in turn, submit “recommendations of a general nature” to the General Assembly on “the progress made in achieving general observance of the rights recognized” in the Covenant (Article 21).
102See supra note 73 and accompanying text.
103 Eleanor Roosevelt (U.S. representative and chair of the Commission) noted that methods of implementation “would necessarily vary from one country to another and such variations should be considered not only inevitable but salutary.” UN Doc. E/CN.4/SR.64, at 5 (1948).
104Wilson, Geoffrey, representative of the United Kingdom, Statement, UN Doc. E/CN.4/SR.71, at 11 (1948); see generallyHumphrey, John P., Human Rights & The United Nations: A Great Adventure45 (1984); Glendon, supra note 25, at 115–17; cf. Morsink, Johannes, The Universal Declaration of Human Rights230 (1999).
105Cassin, Rene, La Pensée et l’Action111 (1972) (authors’ translation). For his work on human rights, specifically with regard to the Universal Declaration, Cassin was awarded the 1968 Nobel Peace Prize.
106René, Cassin, representative of France, Statement, UN Doc. E/CN.4/SR.72, at 4 (1948).
107 The proposal, as amended, was adopted by a vote of 12–0, with 5 abstentions. UN Doc. E/CN.4/SR.72, at 10 (1948). Cassin’s initial proposal stated, “Everyone as a member of society has the economic, social and cultural rights enumerated below, whose fulfillment should be made possible in every State separately or by international collaboration.” UN Doc. E/CN.4/SR.67, at 2 (1948). Egypt (Omar Loutfi) suggested adding the phrase “in accordance with the economic and social possibilities” of each state, while Mrs. Roosevelt proposed “in accordance with the social and economic system and political organization.” UN Doc. E/CN.4/SR.71, at 3 (1948).
108 UN Doc. A/C.3/SR.138, at 512–14 (1948).
109 The USSR amendment is contained in UN Doc. E/800, at 43 (1948). It was rejected by votes of 11–4 and 10–4 (with 1 abstention) in the Commission, UN Doc. E/CN.4/SR.72, at 9–10 (1948), and by 27–8, with 8 abstentions, in the Third Committee, UN Doc. A/C.3/SR.138, at 512 (1948).
110Pavlov, Alexei, representative of USSR, Statement, UN Doc. A/C.3/SR.137, at 498–99 (1948).
111Roosevelt, Eleanor, representative of the United States, Statement, UN Doc. A/C.3/SR.138, at 501 (1948).
113 GA Res. 217 A, B, E (III) (Dec.10, 1948).
114 GA Res. 421 E (V), supra note 99; see 1950 U.N.Y.B. 529–31.
115Morozov, Platon, representative of USSR, Statement, UN Doc. E/CN.4/SR.206, at 5 (1951).
116Max, Sörensen, representative of Denmark, Statement, UN Doc. E/CN.4/SR.207, at 10–11 (1951); see alsoRoosevelt, Eleanor, Statement, UN Doc. E/CN.4/SR.236, at 5 (1951) (“they were not justiciable”); Whitlam, H. F. E., representative of Australia, Statement, UN Doc. E/CN.4/SR.206, at 22 (1951) (“juridical implementation was quite inappropriate”); Cassin, Rene, Statement, UN Doc. E/CN.4/AC.14/SR.2, at 12 (1951) (“the French delegation recognized the independence of the systems in force in the various States, and desired aims alone to be stated”).
117Jenks, Wilfred, assistant director-general of the International Labour Organization (ILO), Statement, UN Doc. E/CN.4/SR.203, at 15 (1951) (“By their very nature, such provisions were statements of policy and aims to be attained by dint of sustained endeavour both at the national and international level, rather than by juridical recognition of their validity.”); Jamie, Torres-Bodet, director-general of UNESCO, Statement, UN Doc. E/CN.4/AC.14/SR.1, at 14 (1951) (“States should accept the obligation to do all within their power to achieve certain clearly defined aims, without, however, undertaking to attain them within a specified period [since] they could be achieved only by slow degrees”).
118 UN Doc. E/CN.4/SR.237, at 12–13 (1951); Report of the Commission on Human Rights on Its Seventh Session, UN ESCOR 1951, Supp. No. 9, para. 54, UN Doc. E/CN.4/640 [hereinafter CHR Report on 7th Session].
119René, Cassin, Statement, UN Doc. E/CN.4/SR.237, at 7–8 (1951). Cassin also explained:
As to the word “progressively”, the realization of economic, social and cultural rights always took time, and ratifications of the draft Covenant would not be facilitated by ignoring that fact. Furthermore, if the provisions of the general clause were too strict, the Covenant would be a magnificent monument, but, like all monuments, entirely devoid of life.
120Jevremovic, Branko, representative of Yugoslavia, Statement, id. at 15.
121Hemán, Santa Cruz, representative of Chile, Statement, UN Doc. E/CN.4/SR.236, at 19 (1951). Santa Cruz added:
[T]he expression “to the maximum extent of their available resources” could, in the absence of a closer definition, be interpreted as applying only to the resources of States available for that particular purpose, and not to their over-all resources. Again, the expression “undertake to take steps” did not constitute a formal undertaking to guarantee the exercise of the rights recognized. Finally, the adverb “progressively” also tended unduly to reduce the scope of the undertaking to be assumed by the signatory States.
Id. Other developing countries opposing the French proposal included Uruguay, id. at 27–28, and Pakistan, UN Doc. E/CN.4/SR.237, at 14 (1951).
122 The vote was 8–3, with 7 abstentions. CHR Report on 7th Session, supra note 118, para. 53; UN Doc. E/CN.4/609/Rev.1 (1951) (proposal).
123 The vote was 8–8, with 2 abstentions. UN Doc. E/CN.4 SR.237, at 12 (1951).
124 CHR Report on 7th Session, supra note 118, para. 38.
125 The ILO counseled that the articles on economic and social rights should be brief and general, leaving the details to the ILO or other specialized agencies. UN Doc. E/2057/Add.2 (1951).
126 For the negotiating history of ICESCR Articles 12 to 15 in the Commission, see UN Docs. E/CN.4/544 & Add.1 (1951) (WHO proposal) and E/CN.4/541 (1951) (UNESCO proposal); CHR Report on 7th Session, supra note 118, paras. 45, 47; and Report of the Commission on Human Rights on Its Eighth Session, UN ESCOR1952, Supp. No. 4, paras. 119–28, 132–34, UN Doc. E/CN.4/669 [hereinafter CHR Report on 8th Session]. See generallyAlston, Philip, The United Nations’ Specialized Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights, 18 Colum. J. Transnat’l L. 79, 85–89 (1979).
127 Both the General Assembly and the CHR rejected several USSR proposals that would have excluded all measures of implementation from the draft covenant. See CHR Report on 7th Session, supra note 118, para. 72.
128 Report of the Commission on Human Rights on Its Sixth Session, paras. 34–41, UN Doc. E/CN.4/507 (1950). The CHR continued to consider the specific details of implementation provisions concerning civil and political rights at its 1951 session. See CHR Report on 7th Session, supra note 118, paras. 68–90.
129Malik, Charles, Representative of Lebanon, Statement, UN Doc. E/CN.4/AC.14/SR.2, at 20 (1951). The proposal is contained in UN Doc. E/CN.4/570/Rev.2 (1951).
130 The CHR ultimately set up a working group to consider measures on implementation. It rejected the Lebanese proposal by a vote of 6–2. UN Doc. E/CN.4/AC.15/SR.3, at 15 (1951).
131 The proposal is contained in UN Doc. E/CN.4/622 (1951). See alsoWaheed, Abdul, representative of Pakistan, Statement, UN Doc. E/CN.4/SR.241, at 7–11 (1951); see generally CHR Report on 7th Session, supra note 118, paras. 56–67.
132See, e.g., Jenks, C. W., representative of ILO, Statement, UN Doc. E/CN.4/SR.203, at 16 (1951).
133See, e.g., Bammate, N., representative of UNESCO, Statement, UN Doc. E/CN.4/SR.241, at 16 (1951).
134Guildhaume, Myrddin-Evans, representative of ILO Governing Body, Statement, UN Doc. E/CN.4/AC.14/SR.1, at 9 (1951). Myrddin-Evans added:
If the existing balance should be upset, delicate problems would arise in respect of the Constitutions of the specialized agencies and the relationship agreements between the latter and the United Nations. Moreover, duplication, frustration and a lowering of the authority of both of the United Nations and of the specialized agencies would almost certainly follow.
135Dorolle, P., representative of WHO, Statement, UN Doc. E/CN.4/SR.203, at 20 (1951).
136 UN Docs. E/CN.4/AC.14/SR.2, at 20 (1951), E.CN.4/SR.237, at 17 (1951); see also Ms. Bowie, representative of United Kingdom, Statement, UN Doc. E/CN.4/SR.238, at 11 (1951) (“[T]he primary responsibility for the implementation of human rights rested with the General Assembly and the Economic and Social Council; but the executive responsibility rested with the specialized agencies.”); Roosevelt, Eleanor, Statement, id at 17 (“The role of specialized agencies was vital, but they should direct their attention to assisting governments rather than finding fault with them.”); René, Cassin, Statement, UN Doc. E/CN.4/SR.203, at 10–11 (1951) (“Whereas the civil and political rights protected by the Commission had not been safeguarded by the specialized agencies, economic, social and cultural rights already had their defenders in the shape of such agencies as the International Labour Organization, the United Nations Educational, Scientific and Cultural Organization and the World Health Organization.”).
137 ECOSOC Res. 384 (XIII) (Aug. 29, 1951) (adopted by a vote of 11–5, with 2 abstentions); see generally, 1951 U.N.Y.B. 479–81.
138 GA Res. 543 (VI) (Feb. 5, 1952) (adopted by a vote of 27–20, with 3 abstentions); UN Doc. A/PV.375 (1952), paras. 63–67; see generally Humphrey, supra note 103, at 158–62.
141Malik, Charles, Statement, UN Doc. A/C.3/SR.370, paras. 39–40 (1951). Malik continued:
Neither was it a chance that the two categories of rights had always been regarded as distinct. In the Charter of the United Nations, as in the Universal Declaration of Human Rights, the international problems of an economic, social, cultural or humanitarian character were never confused with those involving respect for human rights and basic freedoms. It would be a pity, therefore, if all rights were included in one and the same covenant.
Id., para. 42. The statement of Mr. D’Souza, representative of India, was similar. UN Doc. A/C.3/SR.361, paras. 27–36(1951).
144Roosevelt, Eleanor, Statement, UN Doc. A/C.3/SR.360, paras. 10–13 (
On 16 December 1966 the United Nations adopted the International Covenant on Economic, Social and Cultural Rights. This was the first global treaty that established legal obligations on states to protect a range of important economic, social, and cultural rights. Forty years later the vast majority of States have ratified this treaty. Despite this history, there remains considerable debate, both within the literature and within the international community generally, about the concept and application of economic, social, and cultural rights. This collection gives a coherent analysis of many of ... More
On 16 December 1966 the United Nations adopted the International Covenant on Economic, Social and Cultural Rights. This was the first global treaty that established legal obligations on states to protect a range of important economic, social, and cultural rights. Forty years later the vast majority of States have ratified this treaty. Despite this history, there remains considerable debate, both within the literature and within the international community generally, about the concept and application of economic, social, and cultural rights. This collection gives a coherent analysis of many of the key issues, both in concept and in application, relevant to economic, social, and cultural rights. The authors of the chapters, many of whom are leading scholars in their fields with significant experience in practice, examine how the obligations to protect these rights have been applied today, including their application to the Security Council and to non-state actors, as well as in the context of development and dispossession. They provide important universal and regional comparative perspectives on the development and implementation of these rights, and consider some of the contemporary issues relating to these rights, such as trade, health, and social security.
Keywords: United Nations, International Covenant on Economic, Social and Cultural Rights, Security Council, trade, health, social security, democracy, development
|Print publication date: 2007||Print ISBN-13: 9780199217908|
|Published to Oxford Scholarship Online: January 2009||DOI:10.1093/acprof:oso/9780199217908.001.0001|