Iccpr And Icescr Comparison Essay

Copyright (c) 2004 The American Society of International Law

American Journal of International Law

July, 2004

98 A.J.I.L. 462

LENGTH: 35730 words

NAME: By Michael J. Dennis and David P. Stewart *

BIO:

* Mr. Dennis is Attorney Adviser for Near East and South Asian Affairs, and Mr. Stewart is Assistant Legal

Adviser for Diplomatic Law and Litigation, in the Office of the Legal Adviser in the U.S. Department of State. Both have extensive experience in the field of human rights. The views expressed herein are solely those of the authors.

SUMMARY:

... At its first meeting, from February 23 to March 5, 2004, the Working Group debated the feasibility of elaborating an optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) that would provide for the adjudication of individual and group complaints against states under that Covenant. ... Ever since the adoption of the ICESCR and the International Covenant on Civil and Political Rights (ICCPR) in 1966, proponents of economic, social, and cultural rights have complained that the ICESCR lacks oversight and implementation mechanisms equal to those provided in the ICCPR and its first Optional Protocol. ... As sketched by the Committee, the optional protocol would establish a formal mechanism for the adjudication of individual complaints that states parties had violated their legally binding obligations in respect of any ICESCR rights. ... For example, the ILO representative explained that the Covenant articles that fell within the ILO's scope were framed "in brief general clauses, in conformity with the Governing Body's view that the ILO or other specialized agency concerned should work out in detail those economic and social rights which fell within its competence and apply to them the precise and detailed provisions necessary for their effective implementation." ... During its debate in 1966, states adopted both a revised procedure whereby the Human Rights Committee would review interstate complaints under the ICCPR, and a new proposal for an optional protocol establishing an individual right to petition. ...

TEXT:

[*462] Should all internationally recognized human rights----economic, social, and cultural rights, as well as civil and political rights----be subject to the same individual--complaints procedures? This issue is now before a newly convened working group of the UN Commission on Human Rights. n1 At its first meeting, from February 23 to March 5, 2004, theWorking Group debated the feasibility of elaborating an optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) that would provide for the adjudication of individual and group complaints against states under that Covenant. n2 Participating states were in sharp disagreement over the viability of the proposal, however, and the session ended in disarray. n3 Since the Commission has recommended renewal of the Working Group's mandate for two years, the issue remains open. n4

The demand for an individual--complaints mechanism for economic, social, and cultural rights is hardly new. n5 Ever since the adoption of the ICESCR and the International Covenant on Civil and Political Rights (ICCPR) in 1966, proponents of economic, social, and cultural rights have complained that the ICESCR lacks oversight and implementation mechanisms equal to those provided in the ICCPR and its first Optional Protocol. n6 The Committee on Economic, [*463] Social and Cultural Rights (Committee) n7 began studying the question of an optional protocol in 1990 n8 and submitted a draft proposal for the Commission's consideration in 1996. n9 The Commission itself did not take up the proposal until 2001, when it held a workshop on the justiciability of economic, social, and cultural rights and appointed an Independent Expert to examine the question of a draft optional protocol. n10 Notwithstanding the Independent Expert's admonition to defer the undertaking, the Commission and the Economic and Social Council (ECOSOC) proceeded in 2002 to establish the open--ended Working Group "with a view to considering options regarding the elaboration of an optional protocol." n11

Proponents of a complaints mechanism have long argued that the absence of strong enforcement mechanisms in the ICESCR has marginalized economic, social, and cultural rights and stymied their full realization. Some point to the putative Cold War origins of the Covenants as an explanation for this disparate treatment. n12 Many assert that if, as current UN doctrine proclaims, all human rights are, in fact, "universal, indivisible, interdependent and interrelated," n13 they must all now be accorded equivalent enforcement mechanisms. The heart of this argument, however, lies in the contention that state compliance with economic, social, and cultural rights must be "justiciable"----subject to the possibility of formal third--party adjudication, with remedies for findings of noncompliance. n14

Much of the debate centers on the textual differences between the two Covenants and, in particular, on the meaning and implications of Article 2(1) of the ICESCR, which provides:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co--operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. n15

The broader theoretical contours of the discussion are familiar to every student of international human rights. n16 In light of Article 2(1), can it cogently be argued that the ICESCR articulates [*464] real rights, or does it merely set forth hortatory goals, programmatic objectives, or utopian ideals? Is it "soft law"? How can rights (or obligations) that depend on the availability of scarce or unpredictable resources in fact be rights (or obligations) in any meaningful sense? How does one calculate the "maximum extent of available resources," and what does "progressive realization" mean? Can economic, social, and cultural rights ever be fully achieved? How can they best be "enforced"? n17

It is often difficult to discern the real--world relevance of this discussion. The immediate and consequential challenge for all proponents of economic, social, and cultural rights is how to improve the lives of the vast majority of people on this planet, who suffer daily from ruinous privations. According to the UN Development Programme, half the human race----3 billion people----live on less than two dollars a day, and 20 percent of the world's population----more than 1.2 billion people----live on less than one dollar per day. n18 Many go without adequate food, water, clothing, shelter, or health care. For all human rights advocates and activists, the critically important question must be whether (and how) economic, social, and cultural rights can be given meaningful content and application in individual circumstances. n19

The debate over the need for an individual--complaints mechanism for economic, social, and cultural rights has not yet seemed to contribute to the resolution of this fundamental problem. The current situation results in no small part, we believe, from the fact that such discussions typically focus on the abstract "nature, status, and characteristics" of economic, social, and cultural rights. The issue that needs to be confronted, instead, is that these rights present genuinely different and, in many respects, far more difficult challenges than do civil and political rights. However arduous it may be to determine in practice when certain rights----for example, freedom of expression, or freedom of thought, conscience, and religion----are sufficiently protected, it is a much more complex undertaking to ascertain what constitutes an adequate standard of living, or whether a state fully respects and implements its population's right to education or right to work.

Vexing questions of content, criteria, and measurement lie at the heart of the debate over "justiciability," yet are seldom raised or addressed with any degree of precision.

It has never been satisfactorily demonstrated, we submit, that a binding individual--complaints mechanism will be practical, effective, or worth the cost and effort. If it is to carry out its responsibilities fairly, the Working Group (and the states represented thereon) must grapple with a series of underlying substantive issues, including:

. whether the treaty obligations assumed by states parties under the ICESCR can in fact be measured, quantified, and applied in a meaningful way

. whether such standards can be the same for all countries (regardless of their levels of development) and, if not, how the distinctions will be made

. how states parties would be able to demonstrate their levels of achievement (or failure) in response to individual complaints [*465]

. whether and how a legally binding adjudicative regime would improve states parties' implementation of economic, social, and cultural rights

. whether and how a complaints mechanism under the ICESCR would add meaningfully to the mechanisms and procedures already available in other international organizations

This article aims to contribute to the task from several perspectives. First, we review the proposal and the views that have been presented by the Independent Expert and in the Working Group. We next examine the relevant negotiating background of the Universal Declaration of Human Rights n20 (UDHR) and the two Covenants in order to assess the validity of some of the arguments put forward in support of a new complaints mechanism. We survey some of the Committee's recent interpretive pronouncements, including on key aspects of the right to an adequate standard of living set forth in ICESCR Article 11 (specifically the rights to housing, food, and water) and the right to health under Article 12, in order to discern the likely leanings of the Committee under a complaints mechanism. We also examine the likely impact of the proposal on the work of various specialized agencies and identify some of the practical difficulties facing the operation of such a mechanism.

Our investigation leads us to question the proposal for an optional protocol on several levels. While shopworn opposition to economic, social, and cultural rights on "ideological" grounds should be abandoned, n21 the argument that a new international adjudicative mechanism is necessary in order to validate those rights proceeds from equally dubious contentions. Formalistic demands that economic, social, and cultural rights must be treated the same as civil and political rights, and must therefore be "justiciable" in the same sense, are equally flawed. That case has not been made. n22

From the outset, and for good reason, economic, social, and cultural rights, unlike civil and political rights, have been defined primarily as aspirational goals to be achieved progressively. The drafters of the UDHR and the two Covenants well understood the difficulties and obstacles relating to justiciability. The decision to put the two sets of rights in different treaties with different supervisory mechanisms was well considered, and the underlying reasons for those distinctions and decisions appear to remain valid today. Their different treatment in no way disqualified economic, social, and cultural rights as rights or relegated them to a lower hierarchical rung. It did reflect an assessment of the practical difficulties that states would face in implementing generalized norms requiring substantial time and resources.

We do not argue against taking a fresh look at these decisions or the reasoning behind them. Indeed, the major motivation for this article was our sense that such an undertaking was necessary. A strong case can be made that further clarification and elucidation of the rights and [*466] obligations set forth in the ICESCR are vital to promoting greater respect and to achieving more effective implementation of that Covenant. That type of analysis----which has yet to be done----is nevertheless an essential first step before any of those rights can be said to be justiciable in any meaningful sense.

Nothing persuades us that the aspirational goals set forth in the ICESCR can be achieved----or can be achieved more effectively----only by means of an international adjudicative mechanism for individual complaints. In point of fact, the "articulation" function is already being performed by the Committee in its review of, and commentary on, implementation reports by states parties to the Covenant, as well as by the relevant specialized agencies of the United Nations. We see no convincing evidence that a legally binding adjudicative mechanism would lead to greater compliance by states with their ICESCR obligations. n23

There is also no reason to believe that the Committee is the necessary or logical body to perform such an adjudicative function, even if one could be justified. To the contrary, as we discuss below, there are several apparent reasons why the Committee should not be tasked with that responsibility, not least of which is that the additional workload would potentially undermine the Committee's ability to perform its existing functions. Moreover, in the extensive commentaries that the Committee has already rendered on Covenant rights, we find reasons to be cautious about expanding the Committee's purview or giving it authority to issue legally binding judgments.

More fundamentally, adopting the proposed individual--complaints procedure would improvidently "legalize" the content and provision of economic, social, and cultural rights. n24 However satisfying it might be to assert that there can be no "rights" in the absence of a formal adjudicative process and legally sanctioned remedies for identified violations, there are other, more promising pathways to realizing the promises and visions embodied in the UDHR and ICESCR. All rights or rights--related entitlements do not need to be subject to identical or equivalent processes of implementation and enforcement. n25 The call for formal, binding, case--by--case adjudication seems to us an example of overreaching legal positivism, borne of the myth that judicial or quasi--judicial processes intrinsically produce better, more insightful policy choices than, for example, their legislative counterparts. n26

[*467] In our view, international adjudication offers a dubious route toward economic and social progress. In any event, it is certainly not the only or even the best means of holding governments "accountable" for their human rights obligations. One need not believe that domestic courts are always or per se "ill equipped to run a railroad"----that is, disqualified from deciding issues of the entitlement to, or adequacy of, economic, social, and cultural rights----in order to take the position that in many, if not most, countries, legitimate political processes offer a more likely pathway than international litigation to achieving the goals of the Covenant. n27 At the international level, efforts to articulate a single approach to the promotion and achievement of economic, social, and cultural rights are bound to fail, given the vastly differing circumstances in which states parties find themselves. Governments must be allowed a substantial measure of discretion in dealing with their disparate domestic situations. We fear that instead of advancing respect for, and implementation of, economic, social, and cultural rights in states parties that to date have given them short shrift, there is a significant risk that trying to "enforce" such rights through binding international adjudication will have the opposite result, causing states to deemphasize them and further undermining their stature and acceptability.

I. THE PROPOSAL AND ITS JUSTIFICATIONS

Virtually from its very first meetings in 1987, the Committee on Economic, Social and Cultural Rights has propounded the need for an individual--complaints mechanism as an essential, even irreducible, means of giving effect to the Covenant. n28 In 1992, the Committee presented a paper to the Second World Conference on Human Rights in Vienna, recommending adoption of a noncompulsory complaints procedure open to individuals or groups, and possibly including an optional state--to--state procedure. n29 In its final declaration, the World Conference encouraged further study of the proposal but stopped short of endorsing the complaints procedure itself. n30

The Committee's Proposal

In 1996, the Committee prepared and sent to the Commission an "analytical report" proposing a draft text for the optional protocol. n31 As sketched by the Committee, the optional [*468] protocol would establish a formal mechanism for the adjudication of individual complaints that states parties had violated their legally binding obligations in respect of any ICESCR rights. Decisions would be binding on the states concerned and would be considered authoritative legal interpretations of the ICESCR, as is the case with the ICCPR. n32 The proposed preamble justifies the need for such a mechanism by citing the importance of "social justice and development" and stating that "the possibility for the subjects of economic, social and cultural rights to submit complaints of alleged violations of those rights is a necessary means of recourse to guarantee the full enjoyment of the rights." n33

The Committee's proposal understandably contemplates that the Committee itself would adjudicate those complaints.

Because that is, in fact, an open question, and because we express serious misgivings below about the Committee's capacity to perform that function, we will hereafter refer to the decision makers by using the more neutral term "adjudicators." n34

Under the Committee's expansive approach to locus standi, the "right to petition" would be broadly available to any individuals or groups who themselves claim to be victims of a violation or who act on behalf of alleged victims with their knowledge and agreement. n35 The procedure would encompass alleged violations of any of the rights broadly "recognized" in the ICESCR. n36 A state party to the protocol would be obligated to recognize the competence of the adjudicators to examine complaints from "any individuals or groups subject to its jurisdiction," would be prohibited from interfering with the "effective exercise" of the right to petition, and would be obligated "to prevent any persecution or sanctioning" of persons exercising that right. n37

General criteria of receivability and admissibility are articulated in the Committee's proposal. The adjudicators would be required to exclude anonymous complaints and empowered to decline any complaint if all available domestic remedies had not been exhausted or if a particular complaint raised substantially the same issues of fact or law being examined under another procedure of international investigation or settlement. n38 A communication could be declared inadmissible "if the author, after being given a reasonable opportunity to do so, fails [*469] to provide information which would sufficiently substantiate the allegations contained in the communication." n39 Adjudicators could issue interim measures in order to avoid irreparable harm before the merits of a complaint had been decided, n40 and they could initiate a process of "friendly settlement" of a complaint. n41

Although no specific rules of procedure have been elaborated (these being left for subsequent adoption by the adjudicators), n42 states parties would be given six months to respond to complaints by providing their "explanations or statements and the remedy, if any, that may have been afforded" to the complainant(s). n43 In considering complaints, the adjudicators would not be limited to information made available to them by either the complainant(s) or the state party concerned, but could take into account supplemental "information obtained from other sources." n44 They would be authorized to conduct on--site visits, subject to the agreement of the relevant state party. n45

In the event that the adjudicators determine a violation has occurred, they could "recommend that the State Party take specific measures to remedy that violation and to prevent its recurrence." n46 They would also be authorized to "invite" a state party to discuss steps that it has taken to give effect to their decision and to include such information in its periodic implementation reports to the Committee. n47

No provision would be made for state--to--state complaints. n48

The Views of the Independent Expert

Prior to the Working Group's recent debate, only a few states had responded to this proposal, and most voiced generalized support. n49 In February 2001, a reviewwas conducted at an informalworkshop of states and nongovernmental participants convened by the Office of the UN High Commissioner for Human Rights (OHCHR) and the International

Commission of Jurists (ICJ). n50 In order to facilitate further deliberations, the Commission and ECOSOC decided in 2001 to appoint an Independent Expert, Hatem Kotrane of the University of Tunis, to examine the question of an optional protocol. n51

Over the succeeding months, the Independent Expert reviewed the Committee's 1996 draft, as well as the results of the 2001 OHCHR--ICJ workshop, and held various consultations with member states. In February 2002, he submitted his initial report to the Commission, concluding that "it is necessary to press ahead towards the possible adoption of the draft optional protocol" but recommending against the immediate establishment of an open--ended working [*470] group because "the matters at issue still provoke too much doubt, uncertainty, and even outright opposition among member States." n52

At the outset, the Independent Expert's initial report recognized the "misgivings" of states about the practical problems associated with establishing an adjudicative mechanism for individual economic, social, and cultural rights. He acknowledged the important differences in the undertakings of states parties to the two Covenants, noting that civil and political rights are said to be "obligations of result, obligations which are measurable by their very nature, and hence not subject to shades of meaning." n53 By comparison, he noted that obligations under the ICESCR generally represent "obligations of means" rather than "obligations of result."

In other words, States----particularly the poorest States----cannot be held solely responsible for the difficulties they encounter in meeting the vital needs of their populations. . . . How, that being the case, is it possible to provide precise definitions, within the general obligation of diligence assumed by States parties, of genuinely measurable obligations? How, in other words, are the provisions of the Covenant to be translated into clearly defined commitments so that individual breaches of them can give rise to remedies under the communications procedure established by the draft optional protocol? n54

Setting this basic conundrum aside, the Independent Expert proceeded to focus on four practical, but fundamental, questions concerning the proposed optional protocol: (1) Which specific rights articulated in the Covenant should be encompassed by the complaints procedure? (2) What body should have the competence to receive and resolve complaints?

(3) Who should be entitled to bring a complaint, and what admissibility criteria should apply to those complaints? (4) What range of remedies should be available for justified complaints? n55

On the scope of application, the Independent Expert expressed serious reservations over the comprehensive or "omnibus" approach taken in the Committee's draft, fearing inter alia that it could lead to conflicts with other international bodies----in particular, the specialized agencies. He recommended that the complaints mechanism be limited to "situations revealing a species of gross, unmistakable violations of or failures to uphold any of the rights set forth in the Covenant." n56 He voiced particular concern that assigning this new role to the Committee itself could interfere with its primary task of considering the periodic implementation reports by states parties. Instead, he proposed establishing "a new body altogether, a sort of parallel committee whose responsibility it would be to handle the new communications and complaints procedure." n57 He endorsed the Committee's proposal to permit individuals, but not states, to submit complaints, and he also saw merit in "allowing groups duly empowered by alleged victims" to do so as well. n58 Finally, he accepted the Committee's proposal to permit a broad range of potential remedies, including the power to initiate inquiries, to facilitate amicable settlements, to issue interim measures, and to determine what actions states should take to remedy a violation. n59

Notwithstanding his conclusion that the Working Group "should not be set up immediately," n60 that is precisely what the Commission and ECOSOC did, with strong support from the European Union, the Group of Latin American and Caribbean Countries, and others, but with little evident consideration of the concerns that had been expressed in the Independent Expert's report. The Commission and ECOSOC did extend the Independent Expert's mandate [*471] for another year, however, and requested a further report from him at its fifty--ninth session, with particular emphasis on three questions: (1) the nature and scope of states parties' obligations under the Covenant, (2) "conceptual issues on the justiciability of economic, social and cultural rights" in the light of the experience of other human rights mechanisms, and (3) "the question of the benefits and practicability of a complaint mechanism under the Covenant and the issue of complementarity between different mechanisms." n61

In preparing his second report, which was submitted in January 2003, the Independent Expert again held "wide--ranging consultations" with states, interested experts, and organizations. n62 This time, however, his conclusions were constrained by the previous decision of ECOSOC. For example, he modified one of his key earlier recommendations, now endorsing the proposal that the Commission move ahead to establish an open--ended working group "mandated to elaborate an optional protocol." n63 He strongly reiterated his previous recommendation that the complaints procedure, while covering all rights set forth in the Covenant, should be limited to "situations revealing a species of gross, unmistakable violations of or failures to uphold" those rights, in order to reduce the burden on adjudicators as well as the risks of overlapping other investigative or settlement bodies. n64 He also referred again to the practical difficulties that could arise from asking the Committee to consider both complaints and periodic reports from states parties. n65

In addressing the specific questions posed by the Commission, the Independent Expert noted that each of the obligations under the Covenant entails some measure of immediate action----for example, to eliminate all forms of discrimination in the enjoyment of those rights. n66 Each state party, he said, has a "minimum core obligation to ensure the satisfaction of the basic content of each of the rights contained in the Covenant." n67 Most importantly, he endorsed "the essentially justiciable nature of all the rights guaranteed under the Covenant," so that the remaining question is "at most, one of determining the liability of States and the conditions in which a State may be considered to have failed to fulfil one of its obligations." n68

The Working Group Debate

At theWorking Group session earlier this year, representatives of eighty--five states debated the same three conceptual issues considered by the Independent Expert as part of his extended mandate, rather than revising the Committee's draft text or attempting to elaborate a new one. n69 At the close of the session, given the divergence of views, the Working Group was not able to "make specific recommendations on its course of action concerning the question of an optional protocol," as requested by the Commission. n70 Instead, the chairperson was forced to present her own personal recommendations to the Commission. n71 As noted above, [*472] the Commission subsequently decided, in a series of contentious votes, to recommend that ECOSOC renew the term of the Working Group for two years.

During the debate, a number of participating delegations reiterated the main justifications for a complaints mechanism, including the need to correct the historical asymmetry between civil and political rights, on the one hand, and economic and social rights, on the other, and to reaffirm the universality, interdependence, and indivisibility of all human rights as proclaimed by the 1993 Vienna Declaration and Programme of Action. n72 It was argued that the separate codification of these rights in different covenants, with different structures of implementation and supervision, was either a mistake or a by--product of ideological, Cold War confrontation----or both. n73 Lack of a complaints mechanism, some delegations asserted, constitutes a major reason why economic, social, and cultural rights are not recognized and respected in practice; in fact, some said, "civil and political rights become solitary and meaningless without the realization of economic, social and cultural rights." n74 Contending that no fundamental differences exist between the two sets of rights----at least none of special relevance to the elaboration of a complaints mechanism n75----they made the essentially equitable (or "me, too") argument that with the exception of the Convention on the Rights of the Child, n76 all the other main international human rights treaties have optional complaints procedures. n77

Other delegations rejected the notion that all human rights were alike, especially when one takes into account the nature of the legal obligations stemming from the Covenants. n78 The different formulations set forth in Article 2(1) of the Covenants, they contended, reflect fundamental differences between the two sets of rights. n79 As stated by the Polish delegation, They were made different deliberately, not just by accident. Consequently the rights protected by the Covenant on Economic, Social and Cultural Rights were also deliberately formulated in an imprecise manner.

It was done so specifically to accommodate difference in levels of economic development and in cultural and legal traditions of various countries to allow them to become parties to the Covenant nevertheless. n80

Perhaps most significantly, representatives disagreed sharply about the "justiciability" of economic, social, and cultural rights. Those from states whose domestic legal systems provide for some degree of adjudication of such rights (or that are party to regional mechanisms that so provide) generally accepted the idea of justiciability, arguing that the binding decisions [*473] of courts can usefully clarify the imprecise provisions of the Covenant. n81 Finland, for example, explained its view as follows:

In 1995, a fundamental [constitutional] reform took place in Finland . . . [whereby] economic, social, and cultural rights were made justiciable. . . . Our regional treaty. . . has an optional protocol allowing for collective complaints. . . . The standards of the European Social Charter .. . . are in many ways more far reaching than those of the [ICESCR] . . . . So because we have accepted these standards at the regional level why should we not accept them at the global level? n82

Other delegations, typically representing the majority of states that do not provide for domestic adjudication of economic, social, and cultural rights, argued that Covenant rights remain imprecise, unenforceable in domestic law, and unsuitable for supranational adjudication. n83 Some raised questions about "whether allocation of resources was a legitimate issue for review by a treaty body under an individual complaints mechanism and, if so, what criteria would be used in deciding on the appropriate allocation of resources." n84 Disparities in economic development were also viewed as problematic. India, for example, asserted that some European countries (and others) "may be in a position to assume legally binding and/or regional obligations" but that "only when we reach a measure of development homogeneity globally would it be meaningful to seriously embark on an international protocol cutting across all regions." n85

One expert, Katarina Tomasevski (the Commission's special rapporteur on the right to education), took issue with an all--or--nothing approach to the question of justiciability. She noted that "the ICESCR would have been drafted differently had an optional protocol providing for individual complaints been envisaged." She therefore rejected "widespread suggestions that the entire ICESCR (that is all the rights listed therein, and the whole scope of the rights as listed) be deemed suitable for any type of legal enforcement that could be envisaged in an optional protocol." n86

These comments highlight an underlying difficulty with the debate about a complaints mechanism: both proponents and opponents use the concept of justiciability in ambiguous ways. As indicated above, governments appear to understand the meaning of justiciability primarily by reference to what is permissible in their own domestic law. The Committee itself has expressed a closely related view, arguing that "there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable [*474] dimensions" and that, as a result, states parties should provide for judicial enforcement of Covenant rights in their domestic law:

It is sometimes suggested that matters involving the elaboration of resources should be left to the political authorities rather than the courts. While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. . . . . . . . Within the limits of the appropriate exercise of their functions of judicial review, courts should take account of Covenant rights where this is necessary to ensure that the State's conduct is consistent with its obligations under the Covenant. n87

Among scholars and nongovernmental advocates, the term "justiciability" seems to be used most often to refer merely to the existence of a mechanism or procedure to resolve alleged violations of the rights in question. In this view, rights (or disputes about rights) are justiciable when there is a mechanism capable of adjudicating them, and nonjusticiable when one is lacking. n88 Matthew Craven puts the tautology succinctly: The justiciability of a particular issue depends, not on the quality of the decision, but rather on the authority of the body to make the decision. Prima facie then, in so far as the Committee is given the authority to assume a quasi--judicial role over the rights in the Covenant, those rights will be justiciable. n89

A necessary corollary to this formulation is that there is a right to invoke the competence of the Committee; victims of alleged violations have a "right of petition" to bring complaints before the authorized decision maker. n90 In this rather limited sense, the debate over justiciability of economic, social, and cultural rights is simply about creating a mechanism for adjudicating alleged violations. It is not an especially illuminating discussion but does permit the proponents to avoid having to delve into the underlying issues.

A more substantive approach to justiciability looks to the nature of the rights and obligations in question and whether complaints about their violation are susceptible to a rational and meaningful resolution by a duly empowered decision maker. n91 On this view, unlike Craven's, [*475] justiciability is not simply a matter of whether the authorized adjudicator is institutionally able to make a reasoned, objective decision. Competent courts can, at least in theory, decide virtually any question put to them and, in the right circumstances, do so fairly, objectively, and, at least superficially, on a reasoned basis. Instead, it has to do with results. The issue of justiciability must turn on an assessment about the overall impact of the adjudicator's decision: will adjudication contribute to a practical, useful resolution of the issue at hand, which the relevant parties will, in turn, respect and implement?

TheWorking Group's discussion was also distressingly shallow with respect to the benefits of the proposal. Proponents argued generally that a new complaints mechanism would provide "clarity" to economic, social, and cultural rights, undercut "arguments against . . . justiciability," guarantee a "remedy for victims of violations," and "make up for the lack of information before the Committee." n92 One delegation argued that "a higher burden of proof should be placed on States to prove that there are no benefits to adopting an optional protocol under the ICESCR." n93 Responding to express concerns about the potential cost of a new mechanism, the proliferation of mechanisms under human rights treaties, and the prospects for reform of the current Committee procedures, a number of participants merely pointed out that the proposed protocol would be optional." n94

In short, the Working Group debate reflected a continuing divergence of views and an evident lack of consensus about the need for, and purpose and legal effect of, a binding adjudicative mechanism. For many proponents, there appears to be a "build it and they will come" attitude. n95 However, given the widespread differences in domestic approaches to the treatment of economic, social, and cultural rights, and the evident misgivings on the part of a significant number of delegations about a new international mechanism, it would certainly appear that consensus will be difficult to achieve. n96 Further undercutting the likelihood of agreement is that the proponents' arguments have largely been conclusory, dismissive of [*476] other viewpoints, and self--serving. That does not mean, of course, that the arguments necessarily lack validity or could not be substantiated, but only that without more they should not be permitted to carry the debate. In the next section, we look specifically at the validity of the argument from original intent.

II. TEXT AND HISTORY OF THE COVENANTS

A careful review of the negotiating history of the two Covenants confirms the view put forward by the Polish and Indian delegations during theWorking Group meeting that their dissimilar provisions on undertakings and implementation resulted from deliberate choices adopted after careful consideration and specific rejection of arguments remarkably similar to those made today in favor of the draft optional protocol. The decision to treat economic, social, and cultural rights differently was not attributable simply----or even mainly----to ideological divisions. Nor was it taken despite a common desire to make those rights binding and enforceable. To the contrary, there was no unanimity that economic, social, and cultural rights and civil and political rights constitute integral parts of a whole or should be subjected to identical or even similar adjudicative mechanisms. The differences in the two Covenants reflected not only deep--seated legal and practical reservations on the part of the negotiators about the putative justiciability of economic, cultural, and social rights, but also a recognition that the specialized agencies were already fully engaged in the implementation of such rights.

The Textual Differences

It is well known that the two Covenants, along with the first Optional Protocol to the ICCPR, were adopted on the same day in 1966 in a single General Assembly resolution n97 and that they share many features, including a common preamble, several common general principles, and concluding articles. n98 But it is also well known that the General Assembly's original conception had been for a single covenant, setting forth all human rights in the same document. n99

That objective did not prove achievable, and the result was the adoption of two separate instruments. The essential terms of the Covenants differ markedly. The ICCPR requires states parties to guarantee the enumerated civil and political rights directly through appropriate legal provisions. Article 2(1) stipulates that each state party undertakes to "respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant" (emphasis added). Article 2(2) further mandates that states parties "adopt such other legislative measures as may be necessary to give effect to the rights" recognized in the ICCPR whenever such measures do not already exist in their laws. Under Article 2(3) each state party undertakes to "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy."

The rights set forth in the ICESCR, however, are not described as obligations to be performed by states parties in full and at once. Rather, they represent goals to be achieved progressively. More precisely, as set forth in ICESCR Article 2(1), each state party undertakes to "take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized . . . by all appropriate means." In other words, the ICESCR describes a regime of contextual, contingent, and continuing obligations on states aimed at the eventual "realization" of economic, social, and cultural rights. n100

[*477] The specific wording of the substantive obligations set forth in the ICCPR also differs substantially from the formulations used in the ICESCR. The ICCPR's articles are written in precise terms and typically provide that "everyone shall have the right" to each fundamental freedom or that a state party shall refrain from interfering with the exercise of such rights. By contrast, the ICESCR generally provides only that "States Parties to the present Covenant recognize the right of everyone" to each enumerated economic goal, consistent with the idea of progressive realization.

The specific measures of supervision set forth in the two Covenants similarly reflect different approaches. The ICCPR created the Human Rights Committee, a body of eighteen experts elected by states parties charged with monitoring compliance by states parties with the rights guaranteed under the Covenant. Among other functions, the Human Rights Committee may entertain state--to--state complaints and, pursuant to the first Optional Protocol, consider individual communications (or complaints) filed against states parties that have ratified the Protocol. In sharp contrast, the ICESCR did not establish an oversight "treaty body," an individual--complaints mechanism, or an interstate--complaints mechanism, but left oversight to ECOSOC and the specialized agencies. n101

Over the years, these differences have been the source of much debate----and not a little mischief. But the real problem for present purposes lies in the reasons why the negotiators ended up dividing the rights into two separate instruments and why they explicitly rejected the idea of establishing a complaints mechanism for economic, social, and cultural rights, or even a supervisory committee. Was it because the ICCPR reflects Western liberal democratic notions of limited government and free markets, while the ICESCR rests on more Eastern or Soviet authoritarian principles of a directed socialist economy? Many proponents of the optional protocol would have it so. n102

A careful review of the negotiating record demonstrates that this view is flawed and misleading. The differences between the Covenants did not result from oversight or from an inability to agree because of political or ideological confrontations----although there is no denying such conflicts did exist and did influence the debates. Because of their appreciation of practical differences between the two sets of rights, the negotiators intended the implementation provisions to be different. It is simply wrong, as a historical matter, to ascribe all of these decisions to ideological cleavage. It is therefore also wrong to argue that identical or parallel treatment is necessary today in order to comply with the original intent and purpose behind the Universal Declaration or the Covenants.

The Universal Declaration

Throughout the drafting of the UDHR, the East and the West unquestionably proceeded from differing concepts of the role of the state in society. But at base the debate concerned what would be effective, not the inherent "nature" of the rights themselves. Soviet--bloc representatives maintained that economic, social, and cultural rights would be meaningless without a strong state apparatus in charge of economic and social welfare. Representatives of liberal democracies, while accepting the need to describe these rights as fundamental human rights, [*478] nonetheless opposed efforts to mandate state--oriented implementation procedures for economic, social, and cultural rights, in order not to dampen private initiative or give too much power to the government of a state party. n103 They further emphasized that different systems of government have different approaches to resource allocation and management of economies, and that "a Declaration on Human Rights could not call on states to change the systems which were in force in their countries." n104

In June 1948, during the Commission's final drafting of the relevant UDHR articles, progress was stalled for several days while states debated these issues, which the French negotiator Rene Cassin later recalled as among "the most emotionally charged in [the Commission's] work." n105 In order to resolve the impasse, states ultimately settled on Cassin's proposal to establish a framework "chapeau" or umbrella provision (ultimately adopted as Article 22) to introduce the provisions on economic and social rights. Cassin urged that the Commission "should follow the example to be found in all constitutions adopted in recent years, and should treat those rights separately from the rights of the individual." n106 As adopted, the article provided that "everyone . . . is entitled to realization of the economic, social and cultural rights enumerated below, in accordance with the organization and resources of each state, through national effort and international cooperation." n107 The General Assembly later adopted the provision without major change. n108

In considering Article 22, both the Commission on Human Rights and the General Assembly rejected proposals by the Soviet Union to emphasize the state's duty to "take all necessary steps, including legislation, to ensure" the implementation of all rights set forth in the UDHR. n109 The Soviet representative maintained that its amendment "contained not only the idea that the State and society must ensure to the individual the realization of social, economic and cultural rights, but also the idea that they must give him a real opportunity to enjoy all of the other rights set forth in the declaration." n110 Eleanor Roosevelt, in opposing the amendment, stressed that the formulation contained in Article 22 was a "compromise between the views of certain Governments, which were anxious that the State should give special recognition to the economic, social and cultural rights of the individual and the views of Governments, such as the United States Government, which considered that the obligation of each State should not be specified." n111 She emphasized that for the United States, "the essential elements of article [22] were the two phrases 'through national effort and international co--operation' and 'in accordance with the organization and resources of each State'." n112

[*479] Initial Draft of the Provisions on Economic, Social, and Cultural Rights

At its seventh (1951) session, the Commission set about drafting the articles that formed the basis for the general and specific undertakings, as well as the implementation provisions, of ICESCR Articles 2 through 24. Earlier, at the time of the adoption of the Universal Declaration, the General Assembly had requested that the Commission prepare, as a matter of priority, a draft covenant on human rights and draft measures on implementation, and (importantly for our purposes) that it examine further the question of the right to petition. n113 The General Assembly, at its fifth (1950) session, specifically directed the Commission "to include in the draft Covenant a clear expression of economic, social and cultural rights." n114

At the outset of these negotiations, states resumed their debate about the undertakings to be included in the Covenant. Soviet--bloc states continued to insist that the state was bound to "guarantee" economic, social, and cultural rights to its citizens "unequivocally." They charged that Western proposals "consisted of empty declarations of principle which would have no binding force on signatory governments." n115 Western delegations maintained that judicial or juridical implementation of economic, social, and cultural rights was both inappropriate and impracticable. For example, Max Sorensen, the Danish representative, asserted that "not all governments were partisans of the socialist solution, and it was essential to recognize that each must be free to select the policy appropriate to its own national requirements and conditions." He went on to point out that "it would not be practicable to transform the general principles themselves into legally binding provisions," because those rights "called for positive government action like that, for example, required to achieve full employment." n116 The specialized agencies expressed a similar view. n117 States ultimately decided to include an umbrella provision like that contained in UDHR Article 22. By a vote of 10--8, the Commission approved a French proposal, substantially similar to ICESCR Article 2(1), whereby states parties would be required to "undertake to take steps, individually and through international cooperation, to the maximum of their available resources, with a view to achieving progressively the full realization of the rights recognized." n118 Introducing the proposal, Cassin emphasized the conceptual differences between the two sets of rights, as well as the differing methods by which countries implement them, as justification for a "general clause" along the lines of UDHR Article 22. n119

[*480] The Soviet--bloc states contended that the French approach "was entirely wrong from all points of view [since it] separated economic, social and cultural rights from the other human rights." n120 Several developing countries agreed. According to the Chilean representative, the provision would render "illusory" the rights set out in the Covenant. n121 Nonetheless, the Commission rejected a Soviet--bloc proposal requiring states to take "whatever legislative or other measures are necessary to ensure to their nationals the full exercise of economic, social and cultural rights." n122 The Commission also narrowly rejected a proposal by the Lebanese representative (and then--chairman of the Commission), Charles Malik, to substitute the word "implementing" for the words "achieving progressively the full realization of" in the French proposal. n123

In drafting the specific undertakings that came to form the basis for ICESCR Articles 6 to 15, the Commission for the most part followed the recommendations of the specialized agencies. n124 For example, the ICESCR's provisions on labor (Articles 6 to 11(1)) were cast in general terms, at the specific request of the International Labour Organization (ILO). n125 Similarly, the provision on health (ultimately, ICESCR Article 12) was based upon a proposal by the director--general of theWorld Health Organization (WHO), and the provisions on education and culture (ICESCR Articles 13 to 15) were based upon proposals by UNESCO's director--general. n126

This aspect of the East--West debate did not carry over to the drafting of the implementation provisions, as Soviet bloc states were generally opposed to the inclusion of implementation provisions in either Covenant. n127 With respect to the civil and political rights provisions, the Commission had already decided (at its 1949--50 sessions) to establish a permanent independent body----the Human Rights Committee----to consider state--to--state complaints and to offer its good offices to the states concerned. n128 At the 1951 negotiating session, Malik proposed that the articles on economic, social, and cultural rights be implemented "through a special organ similar to, but separate from, the Human Rights Committee." n129 The proposal met with substantial opposition, however, from a large majority of states, as well as from the specialized agencies, and it was ultimately rejected. n130 The final draft articles were based, in part, on [*481] a joint Pakistani/Swedish proposal drawn from a suggestion by the ILO: states parties would submit their reports on the measures that they had taken to implement the provisions on economic, social, and cultural rights in stages that were "in accordance with a program to be established by ECOSOC in consultation with the States Parties to the Covenant and with interested Specialized Agencies, pursuant to the agreements between the United Nations and these agencies." n131

During the debate, the specialized agencies stressed that they were constitutionally designed and empowered to ensure the protection of economic, social, and cultural rights and that they had negotiated agreements with the United Nations, based upon Article 57 of the UN Charter, giving them responsibility for taking action as provided in their respective constitutions. n132 They also emphasized their respective mandates to formulate international standards and noted that member states were required to submit detailed reports on the measures that they were taking to comply with the obligations that had been assumed. n133 The ILO representative stressed the need for avoiding duplication of effort ("no disturbance in the existing apportionment of responsibilities as between the United Nations and the specialized agencies"). n134 To the same effect, WHO's representative cautioned the Commission "to remember that theWorld Health Assembly, in which the best medical experts of the world took part each year, was better qualified than any other international body to formulate specific recommendations in the field of health." n135

States were in general agreement with the position of the specialized agencies. Even Malik was quick to acknowledge "that the Commission was dealing with two separate types of rights, for which a uniform mode of implementation was not possible," and "that no action should be taken by the Commission [that was] susceptible of weakening the authority of the specialized agencies or of leading to overlapping of activities." n136

In sum, by the close of the 1951 Commission session, states had drafted articles on general and specific undertakings, as well as on implementation, that were substantially different for the two sets of rights. The result was the reconsideration of the General Assembly's decision to draft one rather than two covenants..

The Decision to Split the Covenant

ECOSOC subsequently invited the General Assembly to reconsider its decision in favor of a single covenant, "conscious of the difficulties which may flow from embodying in one covenant [*482] two different kinds of rights and obligations" and "considering that these provisions [in the draft Covenant] provide for two different methods of implementation." n137 After extended debate, the General Assembly did, in fact, reverse its decision and requested that the Commission draft two separate covenants containing "as many similar provisions as possible," to be approved and opened for signature simultaneously, "in order to emphasize the unity of the aim." n138

During the debate, the Soviet bloc asserted that "economic, social and cultural rights formed the basis of other rights, and that the exercise of civil and political rights might become purely nominal under economic conditions which were conducive to economic instability and unemployment." n139 This assertion brought sharp rebukes from India and Lebanon. n140 Malik declared that "civil and political rights had an absolute character which other rights had not. . . . [A] people could not attain to the enjoyment of economic, social and cultural rights in full freedom, until its civil and political rights were ensured." n141

The critical debate, however, focused upon practical considerations. The Soviet bloc, along with several Latin American delegations (notably, Chile, Guatemala, and Mexico), contended that economic, social, and cultural rights were capable of precise definition and that it was therefore possible to combine them with civil and political rights in a single covenant without robbing the text of necessary clarity. n142 The United States and other Western delegations, along with Brazil, China, India, Lebanon, Liberia, and Venezuela, took the position that while civil and political rights could be protected by appropriate legislation, the realization of economic, social, and cultural rights could be achieved only progressively, because their protection depended upon economic and social conditions. n143

In this context, Mrs. Roosevelt highlighted four critical differences between the two sets of rights----ones based upon the negotiations that had just occurred at the 1951 session of the Commission: First Article 19 of the draft covenant [Article 2 of the ICESCR] recognized that, unlike the civil and political rights, which the States bound themselves to protect as soon as possible, the realization of the economic, social and cultural rights should be achieved progressively.

The second difference lay in the way in which States could fulfil the obligations they undertook. Nothing more than the passing of appropriate legislation was required for civil and political rights, whereas for the economic, social and cultural rights the assistance of people in general and that of a large number of governmental and non--governmental bodies was needed.

Thirdly, the proposed measures of implementation were not the same with regard to both categories of rights. The Commission on Human Rights had proposed the establishment of a committee on human rights to hear complaints by one State against another. . . . The majority of the members had appeared to consider that such a procedure [*483] would not be appropriate for those rights the realization of which was to be achieved only progressively and with regard to which the obligations of States were less precise. Those members had believed that it would be better to help States achieve progress in that respect than to enable complaints to be brought against them. The draft covenant therefore provided for the submission of reports with regard to economic, social and cultural rights as the appropriate procedure.

Finally, the provisions relating to the two categories of rights had been drafted differently: the civil and political rights had been drafted in specific terms, whereas the provisions relating to economic, social and cultural rights had been couched in more general language. n144

At the close of the debate, the Third Committee had before it a joint proposal submitted by Chile, Egypt, Pakistan, and Yugoslavia under which the General Assembly would have reaffirmed its decision to draft one covenant that would include both sets of rights. n145 Instead, the Committee adopted a counteramendment offered by Belgium, India, Lebanon, and the United States providing for simultaneous submission of two draft covenants to the General Assembly. n146 A French subamendment, stating that the two covenants should "contain . . . as many similar provisions as possible, particularly insofar as the reports to be submitted by States on the implementation of those rights," was also approved. n147

No Right of Redress for Economic Rights

Drafting of the substantive provisions of the ICESCR was completed at the Commission's eighth (1952) session. The umbrella provision providing for progressive realization was approved----again through a series of sharply contested votes, similar to those taken at the 1951 session. n148 Most significantly, however, the Commission rejected a Polish amendment that would have added to the umbrella provision two paragraphs drawn directly from what ultimately became the general--undertakings provisions of ICCPR Article 2(2)--(3). The amendment would have mandated each state party to adopt "such legislative or other measures as may be necessary to give effect to the rights recognized" in the ICESCR, and to "ensure . . . that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy." n149 These proposals were rejected by separate votes of 10--7, with 1 abstention. n150

In explaining its amendment, Poland maintained that the State should be responsible for the realization of economic, social and cultural rights to the same extent as civil and political rights. It [is] surely unreasonable to say that the [*484] right to vote should be implemented immediately upon entry into force of the covenant, while the right to work should be implemented only in a distant future. . . . Paragraph 3 of the Polish proposal .. . . provide[s] that any person whose rights had been violated should have an effective remedy; [since] many members, including the United States representative, [have] recognized that most economic rights would call for legislation, it [is] only reasonable to grant the right of redress in case that legislation was violated. The paragraph dealing with an effective remedy consequently applie[s] as fully to the present covenant as to the covenant on civil and political rights, as the State was responsible to the same extent for the observance of all its laws. n151

Western delegations strongly opposed the idea of any comprehensive form of juridical recognition of economic, social, and cultural rights----again, not from an ideological motivation, or because they thought them "lesser rights," but out of practical concerns. The United Kingdom's representative, for example, insisted that "paragraph 3 of the Polish amendment dealing with effective remedies would be altogether inappropriate, as it would clash with the idea of gradual improvement and progress." n152 Cassin took the position that most economic, social, and cultural rights must be expressed in the Covenant as general obligations to take progressive action and not as obligations of result: Civil law distinguished between obligations leading to final results and obligations to take action. In the present case civil and political rights and some economic rights might connote obligations that would produce actual results; most economic and social rights, however, could only give rise to obligations to take action.

The French delegation did not consider that the wording of article 1 of the draft Covenant, which stated that "the States Parties hereto undertake to respect and to ensure . . ." was applicable to most economic and social rights. . . . The phrase 'with a view to achieving progressively the full realization of the rights . . .' seemed to be preferable, since it corresponded more closely to reality. n153

Cassin went on to make clear that "absolute guarantees could be required subsequently not on the basis of the Covenant itself but on the basis of precise conventions concluded by States." n154 He explained that "implementation of most economic and social rights . . . presupposed considerable changes and wide--spread reforms" and that such rights "should therefore be embodied in technical conventions" to be negotiated and adopted after completion of the ICESCR. n155

Developing countries were equally divided over the Polish proposal. Pakistan supported the idea of progressive implementation, as well as the Polish amendment, because it "had constitutional means providing for effective remedy in the broad field of social and economic rights" and it "was essential for the Commission to draft those rights with great precision to make them justiciable." n156 Egypt, by contrast, observed that it "had been unable to vote for a provision postulating that States undertook to guarantee that the competent political, administrative or judicial authorities would determine a person's right to redress, in view of the absolute independence of the judiciary in his country." n157

Significantly, when the General Assembly considered the ICESCR umbrella provision ten years later at its seventeenth (1962) session, there was much broader acceptance of the concept of progressive realization of economic, social, and cultural rights. The Chilean representative, [*485] for example, asserted that the "principle of progressive application was absolutely indispensable" and that developing countries "must be accorded a period of grace" that might be "prolonged beyond what the Commission on Human Rights would consider a reasonable time." n158 The General Assembly did adopt a technical amendment offered by the United Kingdom, substituting the words "all appropriate means including particularly legislative measures" for "legislative as well as other means." n159 The UK representative stressed the importance of making it clear that legislative action was not mandatory. n160

Rejection of a Complaints Mechanism

The Commission completed its consideration of the implementation mechanisms of the two Covenants at its tenth (1954) session and decided that a periodic reporting system should be included in both instruments. n161 It was agreed, however, that the Human Rights Committee procedure should apply only to civil and political rights. The Commission also rejected several proposals that would have established a complaints mechanism for economic, social, and cultural rights. n162 At that time, no state suggested that a complaints mechanism could be established for economic and social rights on a comprehensive basis. France proposed adopting an optional procedure, however, for bringing certain interstate complaints before the Human Rights Committee. The French proposal would have permitted states parties to select the economic and social rights to be subject to the process. It reasoned that while the "covenant was to receive progressive implementation and the rights stated in it could hardly be subject to court review[,] . . . some of the articles, . . . such as those on trade-- union rights and primary education, might well become subject to review by the human rights committee." n163

The specialized agencies opposed the French proposal. For example, the ILO representative explained that the Covenant articles that fell within the ILO's scope were framed "in brief general clauses, in conformity with the Governing Body's view that the ILO or other specialized agency concerned should work out in detail those economic and social rights which fell within its competence and apply to them the precise and detailed provisions necessary for [*486] their effective implementation." He also drew attention to the fact that "Articles 24 to 34 of the ILO Constitution embodied a very thorough reporting procedure and an equally thorough procedure for handling complaints by member states or by associations of employers or workers" under the numerous ILO conventions relating to economic and social rights. The ILO had therefore concluded that "reference of complaints to the human rights committee would only lead to duplication and overlapping, which would be likely to endanger the authority and efficiency both of the proposed committee and of the ILO or other specialized agency concerned." n164 UNESCO took a similar view. n165 A majority of the Commission's members agreed with the specialized agencies. China expressed the view that "it was open to question whether the committee could properly take a decision on a complaint relating to an economic, social or cultural right in respect of which there was no criterion capable of providing the basis for a semi--juridical decision." n166 To the same effect, the Australian representative stated that if the Committee were given any degree of competence to adjudicate economic, social, and cultural rights, it "would also be necessary to evolve some method evaluating those rights and the means used to ensure their observance in quantitative or statistical terms." n167 He also observed that the "real need was to secure the closest possible collaboration between the United Nations and the specialized agencies on the one hand and the States concerned on the other" and that there "was room for doubt as to whether the committee procedure could, for example, facilitate the development of education or the improvement of health conditions in vast areas of the world." n168 According to the United Kingdom's representative, If the human rights committee procedure were to be applied to the economic, social and cultural rights, the main issue before the committee could only be the rate at which progress had been made towards ensuring the full realization of those rights. In particular, the question would arise whether the maximum available resources had been used, and that would involve consideration of the distribution of the domestic budget. No democratic State could predict the attitude of its parliament on the subject of the distribution of expenditures or the priority to be given to various government programmes. That was a department which States were certainly not prepared to submit to the consideration of the human rights committee. n169

The USSR representative stated that his delegation "had never approved of the establishment of a human rights committee" and that the French proposal "could only result in considerable confusion." n170 The Greek representative hoped that France would withdraw its proposal, noting that "while the flexibility of the proposed system made it preferable to any other, it would nevertheless be preferable not to envisage the application of the human rights committee procedure to economic and social rights at all." n171 In light of this strong opposition, France withdrew its proposal before it came to a vote. n172

For similar reasons, Uruguay also withdrew a proposal that would have recognized the right of individuals and groups to petition ECOSOC concerning the fulfillment of obligations under [*487] the Covenant. n173 Delegations supporting the provision had argued that the rights conferred on individuals in the draft covenant not only made them the subject of international law, but entitled them to defend their rights by communicating to the United Nations. n174 The representative of Chile, while sympathetic with the principle of the right to petition, cited "the fact that such a large number of petitions might be submitted that it might be impossible to consider them in a satisfactory manner." n175

Rejection of a Treaty Body

Twelve more years elapsed before the General Assembly turned to these questions of implementation. During its debate in 1966, states adopted both a revised procedure whereby the Human Rights Committee would review interstate complaints under the ICCPR, and a new proposal for an optional protocol establishing an individual right to petition. n176 States continued to reject, however, the idea that similar measures should be adopted for the ICESCR.

Interestingly (and as further proof of the nonideological origins of the system), it was the United States that then proposed the establishment of a treaty body of Independent Experts to oversee reporting under the ICESCR. The proposed body was modeled after both the committee established under the Convention on the Elimination of All Forms of Racial Discrimination and the Human Rights Committee ultimately established under ICCPR Articles 28 to 39. n177 Italy alsoproposed the establishment of an ad hoc committee that would advise ECOSOC on how to exercise its functions under the Covenant. n178Western delegations generally supported the U.S. or Italian proposals, arguing that establishment of a committee of experts would bring ICESCR implementation in line as far as possible with the experience of the specialized agencies. n179 Canada stressed that neither proposal "aimed at introducing into the draft Covenant on Economic, Social and Cultural Rights any such advanced techniques as conciliation, petitions, or procedures for the settlements of dispute, which would be quite inappropriate in that particular instrument." n180

Once again, however, even these moderate proposals met with widespread opposition. The USSR representative was of the opinion that "no body of experts, however able and impartial, could solve the kind of controversial problems that were likely to arise in the implementation of the Covenant." n181 China asserted that "the implementation measures must be feasible and practical," and that "it was true that economic, social and cultural rights differed from civil and political rights in that, whereas the latter could be guaranteed by legislation or administrative measures, the former could not be realized overnight but required an infrastructure of schools, teachers, factories, doctors, hospitals and so forth." n182 Many developing countries agreed with India that "since the Economic and Social Council and various specialized agencies [*488] in relationship with it dealt with most of the rights enumerated in the draft Covenant, the Council was the appropriate organ to examine and comment on the reports of States parties." n183 Ghana reflected the views of several African delegations when it asserted:

As a developing country, Ghana considered that since the Council was the body through which technical assistance was channelled, it was proper that the Council should carry out the function of examining the reports. . . . A committee would be needed if complaints from individuals or States were contemplated, . . . but the Covenant simply required the States parties to raise the level of living of their citizens and to report on their efforts to the Council, which could offer assistance on requests from States. n184

These views led to the withdrawal of the U.S. and Italian proposals. n185 So, when adopted, the ICESCR did not itself provide for any oversight or implementation mechanism comparable to the ICCPR's Human Rights Committee. The overwhelming sentiment of states at that time was that ECOSOC should retain supervision of the Covenant.

Establishment of the Committee on Economic, Social and Cultural Rights

After the Covenant entered into force in January 1976, ECOSOC adopted a resolution in order to institute procedures regarding the submission of reports by states parties and the specialized agencies, as well as for ECOSOC's consideration of such reports. n186 The resolution also called for the establishment of a sessional working group to assist ECOSOC in the consideration of reports. The working group encountered some difficulty in establishing its method of work, however, and in 1981 and 1982, ECOSOC modified its composition, organization, and administrative arrangements. n187 Subsequently, in 1985, ECOSOC changed the working group's composition so that it would consist of experts serving in their personal capacities, and renamed it the Committee on Economic, Social and Cultural Rights. n188

In practice, the Committee has come to operate similarly to the other treaty bodies in reviewing state party reporting, issuing general comments, and so on. Unlike those other bodies, however, the Committee is not directly accountable to states parties to the Covenant since its members are elected by the 54--state membership of ECOSOC. n189 In this respect, it remains a temporary or "provisional" body, deriving its authority and responsibility from ECOSOC and thus remaining potentially subject to abolition by that same body. n190

To summarize, the historical record reveals that the differences in implementation mechanisms were based, to use Cassin's words, upon "two great differences" between the prospective covenants: "Firstly economic, social and cultural rights had been placed under the aegis of the specialized agencies and, secondly, the Commission had repeatedly stressed that application of those rights would be a gradual process." n191 While political confrontations certainly influenced delegates' views, the main concerns unquestionably revolved around the difficulties that states would face in implementing economic, social, and cultural rights. Most states, [*489] including the USSR and China, opposed oversight mechanisms; there was almost no support to establish adjudicative procedures or to make the rights in question otherwise "justiciable."

By attributing the negotiators' fundamental structural decisions to confrontational "ideological" dynamics that no longer exist, proponents of new oversight mechanisms for the Covenant would return us to the point of departure in 1948, when these issues were first debated in the context of the Universal Declaration, or to 1951--52, when the Commission took up the idea of a covenant on economic, social, and cultural rights. Those proponents simply disregard the fact that a complaints mechanism for economic, social, and cultural rights was specifically debated and rejected, and that there was markedly little support for parallel oversight and supervisory provisions between the two prospective covenants.

They would have the international community overlook the reasons for those decisions and, in effect, rewrite the relevant provisions of the ICESCR.

There is no reason why the international community cannot now reconsider the matter. But the current proposal must be evaluated, at least in part, by assessing the continued vitality of the concerns that drove the drafters to reach the conclusion they did----the lack of criteria for evaluating complaints, overlapping and duplication of functions with the specialized agencies, and practical considerations that include the number of potential complaints.

III. THE NEED FOR WORKABLE CRITERIA

Of the various issues that gave the Covenant negotiators such serious pause, the most fundamental was the difficulty of developing workable criteria by which to measure states' compliance with, or violation of, economic, social, and cultural rights. This difficulty remains the most serious obstacle to adoption of the proposed optional protocol. It is simply backward to pursue a "bottom up" approach by creating the mechanism for adjudication before it has been agreed what specific criteria are to be enforced. States should, and likely will, be reluctant to submit to a binding new process without knowing what criteria will be used in determining whether and to what extent they have violated the Covenant. n192

Even more significantly, states are unlikely to comply with the decisions unless they appear to be well reasoned and based upon universally accepted principles. This is not simply a question of fair procedure. Certainly, if a decision is made to adopt the protocol, the Working Group will be called upon to devote careful attention to such issues as the nature and timing of pleadings and responses, the modalities for submitting and contesting evidence, whether there will be oral hearings and testimony by experts and rebuttal witnesses, whether and to what extent the adjudicators can develop and rely on their own "outside" information, what kinds of sanctions can be imposed and remedies awarded, and so on. n193 These elements are the sine qua non of an impartial, effective process of adjudication. But what is more critical in evaluating the propriety of the complaint  mechanism is to know how compliance with economic, social, and cultural rights will be measured and judged. n194

[*490] During the recently concluded Working Group negotiations, a number of states reiterated their concerns about the lack of criteria. India, for example, asserted that the absence of a "clear standard against which to measure a member state's obligation of 'progressive realization' based on the 'maximum of its available resources'" is exactly the reason why no treaty--based monitoring body for economic, social, and cultural rights has ever been established. n195

Some delegations also stated that the "views expressed by the Committee under an optional protocol might lead to a division among States, as some States might not accept the Committee's interpretations," and that "the Committee's views concerning States' social policies and resource allocations might unduly interfere with the policy--making powers of legislatures." n196

Other states maintained that Covenant rights had been sufficiently elaborated in the Committee's General Comments and recommendations under the state reporting procedure and that "the balanced approach demonstrated by the Committee" should "address concerns over how the Committee would carry out its mandate under the proposed optional protocol." n197 Some states expressed the view (somewhat diplomatically) that "it would be useful to know more about the criteria that would be used in determining whether a violation had occurred." n198

To be sure, in recent years, the Committee has issued a number of detailed pronouncements on various rights. These statements have come in the form of "General Comments" intended to provide guidance to states parties in preparing their periodic implementation reports. n199 Such pronouncements provide some insight, if not a precise guide, to how individual petitions might be handled if the process was entrusted to the Committee. We here focus on the General Comments on the rights to adequate housing, n200 food, n201 health, n202 water, n203 and education n204----those relating to the Millennium Development Goals. n205 There are others, including the rights of older persons n206 and persons with disabilities, n207 but these five will serve to illustrate the Committee's approach for purposes of this discussion.

[*491] The Committee's Idea of Enforceable Rights

Not only has the Committee defined ICESCR rights very broadly, but the substance of its commentaries makes its pro-- adjudication stance abundantly clear. In its view, the ICESCR unquestionably imposes binding and enforceable obligations on states parties. Despite the clear language of Article 2(1) about progressive implementation, and notwithstanding the relevant negotiating history, many of the elements of the rights articulated in the Covenant are in the Committee's eyes "capable of immediate implementation." n208 The Committee has said, forthrightly, that it expects states parties to "modify the domestic legal order as necessary in order to give effect to their treaty obligations," preferably by "direct incorporation" of Covenant provisions into their domestic laws. n209

In the Committee's distinctive taxonomy, "obligations to respect" entail responsibilities of direct application and effect, "obligations to protect" generally require states to prevent interference by third parties (particularly nonstate actors) in the enjoyment of the right in question, and "obligations to fulfil" involve the duty of states parties to adopt appropriate legislative, administrative, budgetary, judicial, promotional, and other measures aimed at "the full realization" of the rights in question. To varying degrees, each of these categories contemplates immediate application by the state, but it is the last that is by far the most onerous and the most questionable in light of the Covenant's negotiating history.

In the Committee's view, the obligation to "fulfil" can involve both a duty to "facilitate" and a duty to "provide." The former contemplates "empowering" action by the state party to create the appropriate circumstances in which individuals can successfully pursue their enjoyment of the rights in question----for example, by developing agrarian systems, adopting national health policies and programs, improving methods of production, establishing effective distribution mechanisms, and so forth----in order to promote efficient development and utilization of natural resources. n210 By contrast, the Committee considers state parties to be obligated to "fulfil (provide)" the rights to food, water, and health whenever an individual or group is unable to realize the right "by the means at their disposal." n211 Thus, states are affirmatively required to supply the content of the right, the commodity in question, when and for whatever reason individuals cannot obtain it themselves. Regarding the right to food, the Committee has stated: The obligation to fulfil (facilitate) means the State must pro--actively engage in activities intended to strengthen people's access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters. n212

Thus conceived, the Covenant's obligations are neither aspirational nor discretionary, but have become unmistakably mandatory and subject to immediate enforcement in whole or in substantial part. As stated in one of the Committee's earliest General Comments: The undertaking in article 2(1) "to take steps" . . . is not qualified or limited by other considerations. . . . Thus while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned. Such steps should be deliberate, [*492] concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant. n213

Even more transformatory is the Committee's reading of ICESCR Article 2 as containing separate "minimum core obligations." The Committee has taken the position that even though "the enumerated rights are subject to resource availability and may be realized progressively," states parties nonetheless have a "core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of these rights" enunciated in the Covenant. n214 It has begun to articulate these mandatory core obligations to provide "minimum essential levels" of the rights to food, water, housing, and health, and it has confirmed that these core obligations are nonderogable----that is, subject to no exceptions.. n215

For example, the Committee stated in its General Comment on the right to health that the right includes "at least" the following core nonderogable obligations: "to ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;" "to ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water;" "to provide essential drugs, as from time to time defined under the relevant WHO Action Programme on Essential Drugs;" and "to ensure equitable distribution of all health facilities, goods and services." n216

The Committee has increasingly embraced a "violationist" viewpoint. While acknowledging a difference in principle between "acts of commission" and "acts of omission," and between the unwillingness and the inability of a state party to comply, the Committee has left no doubt that a state's failure to take all necessary and feasible steps to meet its obligations constitutes a violation of the rights in question. For example, in its General Comment concerning the right to health, the Committee stated: A State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12. If resource restraints render it impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above. It should be stressed, however, that a State party cannot, under any circumstances whatsoever, justify its non--compliance with the core obligations set out in paragraph 43 above, which are non--derogable. n217

A necessary corollary to the violationist approach is that the Covenant requires a remedy for any violation, notwithstanding clear negotiating history to the contrary. Its recent General Comments on food, health, and water declare that "all victims of such violations are entitled to adequate reparation" and that they should "have access to effective judicial or other appropriate remedies at both the national and international levels." n218 This position reflects the Committee's overall belief that economic, social, and cultural rights are legally binding, enforceable, remediable, and justiciable. n219

The Purpose of Module 3

The purpose of this module is to provide an introduction to and overview of the central inter­national treaty on economic, social and cultural rights, the International Covenant on Eco­nomic, Social and Cultural Rights (ICESCR).

The module

  • summarizes the six sections of the ICESCR;
  • makes references to related standards and interpretative documents; and
  • discusses the principal supervisory mechanism for the Covenant—the Committee on Eco­nomic, Social and Cultural Rights (CESCR).

Introduction

The International Covenant on Economic, Social and Cultural Rights (ICESCR) [1] was adopted by the UN General Assembly in 1966.  It came into force in 1978 and together with its sister Covenant, the International Covenant on Civil and Political Rights (ICCPR), forms part of the International Bill of Human Rights.  (See pages following this module for the full text of the ICESCR.)

The ICESCR is composed of thirty-one articles contained in six sections: the preamble and parts I to V.  Part I, which is identical to the parallel part of the ICCPR and comprises solely article 1, proclaims the right of all peoples to self-determination, including the right to freely pursue their economic, social and cultural development and to freely dispose of their natural wealth and resources.  Although the inclusion of a right of “peoples” may be problematic [2] (particu­larly where the definition of the “people” remains difficult), it could be said to pro­vide a nec­essary context within which the realization of rights within the Covenant is to take place. [3]

The heart of the Covenant is found in part III, articles 6-15, which outlines the rights to be protected.  These include, broadly, the right to work (art. 6), the right to fair conditions of employment (art. 7), the right to join and form trade unions (art. 8), the right to social secu­rity (art. 9), the right to protection of the family (art. 10), the right to an adequate standard of living, including the right to food, clothing, and housing (art. 11), the right to health (art. 12), the right to education (art. 13) and the right to culture (art. 15).

The protection given to economic rights in the Covenant is broad but general.  Article 7, for example, provides for a right to equal remuneration for work of equal value (rather than just the more restrictive equal pay for equal work), and gives recognition to a wide range of other rights such as the right to safe and healthy working conditions and the right to reasonable limitation of working hours.  Similarly, article 8 provides not only for the right to join and form trade unions but also for the right of trade unions to function freely and the right to strike.  (See Module 10 for more discussion on these issues.)

None of the formulations adopted, however, deals with matters in the same detail as do Inter­national Labour Organization (ILO) instruments in the area.  In this respect one might con­sider that it is rather in relation to social and cultural rights, where existing standards are less well developed, that the Covenant has greatest utility.  The recognition given to the rights to food, housing, health and cultural life, for example, do not find comparable enactment else­where.

While the Covenant benefits from an impressive scope, it does suffer from the fact that its terms are phrased in an excessively general manner.  For example, whereas the European So­cial Charter has three articles dealing with the right to social security, [4] the Covenant merely has the briefest of statements.  Similarly, the rights to food and housing, which are clearly complex and ill-defined concepts, are given little, if any, further substance in the text of the Covenant.  The amount of detail to be included in the provisions of the Covenant was the subject of much debate in the drafting of the Covenant.  Although it was noted that more general wording could leave the way open to divergent and conflicting interpretations, gener­ally phrased provisions were often preferred in order to avoid restricting the scope of the arti­cles and to prevent conflict with the standards established by the specialized agencies (par­ticularly the ILO).  The generality and breadth of the Covenant’s terms could be said to con­tribute to its longevity by providing scope for a dynamic inter­pretation of its provisions.  It does, however, place a heavy burden on the supervisory body whose central role inevitably becomes one of developing and defining the content of the norms.  Although the drafters clearly envisaged a con­tinuing process of standard-setting (particularly under the auspices of the ILO), [5] the fact that this must take place after ratification leaves the way open to conflicts in interpretation that might ultimately undermine the integrity of the Covenant itself.

One particular failing of the Covenant, espe­cially when compared with the European Social Charter, is that it does not identify those groups that might be considered to need special pro­tection.  Specific mention is made only to the position of women and children (arts. 3 and 10).  Ideally, one might have hoped that mention would be made of the position of aliens, migrant workers, the elderly and those with physical or mental disabilities.  It would be wrong, however, to suppose that the Covenant fails to offer any protec­tion in that respect.  The rights to which the Covenant refers are the rights of “everyone”; the only limit ratio personae is to be found in article 2(3), which permits “developing countries” to determine the extent to which they would guarantee economic rights to nonnationals.  Equally, article 2(2) prohibits discrimination of any kind “as to race, colour, sex, language, religion, political or other opinion, national or social ori­gin, property, birth or other status” (emphasis added).  The term “other status,” as far as the UN Committee on Economic, Social and Cultural Rights (CESCR; see below) is concerned, includes advanced age and disability.  It is also arguable that it may be interpreted to prevent discrimination on other grounds, such as nationality, age, health status or sexual orientation.

Related Instruments and Standards

As with any human rights treaty, there is inevitably a certain amount of overlap between the Covenant and other human rights instruments.  A number of ESC rights are recognized in instruments such as the International Convention on the Rights of the Child (arts. 24-31), the Convention on the Elimination of All Forms of Racial Discrimination (art. 5), the Conven­tion on the Elimination of All Forms of Discrimination against Women (art. 1), and certain ILO instruments. [6]   Similarly at a regional level, recognition is given to ESC rights in the African Charter on Human and Peoples’ Rights and, more extensively, in the European So­cial Charter.  Such instruments, however, tend to be limited in their application either as re­gards the range of rights to which recognition is given, the class of persons to whom they are addressed, or in their territorial application.  They are important, however, in so far as they essentially supplement the guarantees found in the Covenant in certain important areas.  

By and large, it is proper to suppose that there should be some cross-fertilization between these different instruments.  A decision taken by the Committee on the Elimination of Racial Discrimination (CERD) in relation to discrimination in the context of employment, for ex­ample, will be a relevant source for the CESCR in its work in that area.  Similarly, the CESCR’s work on the rights of persons with disabilities will be influential for other com­mittees when they encounter that issue.  The text of each instrument may vary, however, and the level of pro­tection offered by each may therefore not be quite the same.  The ICCPR, for example, allows for derogation from the right to join and form trade unions, while the ICESCR does not.  What this means, of course, is that for those states that are party to both instruments, derogation would be impermissible, whereas for states party only to the ICCPR, it would remain a possibility.

In addition to other treaties, relevant sources of interpretation of the Covenant include Gen­eral Assembly resolutions, court decisions and documents produced by expert bodies.  There are three particularly pertinent documents that have had a great influence on the inter­preta­tion of the Covenant.  The first two were produced at expert meetings in the Netherlands, and have become known as the Limburg Principles [7] and the Maastricht Guidelines. [8]   In the Lim­burg Principles, a group of experts sought to explain and build upon the basic obligations as­sumed by states in relation to the Covenant.  These Princi­ples have since been endorsed, both explicitly and implicitly, in the work of the CESCR and other bodies.  The Maastricht Guidelines are of the same nature, and focus more specifically upon the question of identi­fying violations of ESC rights.  The third document is the General Assembly Standard Rules on Disability, which were used to a great extent in the committee’s General Comment on the Rights of Persons with Disabilities.  The Standard Rules were not incorporated in their en­tirety, but formed the basis for the committee’s inter­pretation of relevant provisions of the Covenant.

The Supervision System

The system of supervision devised for the ICESCR differs from that for the ICCPR princi­pally in so far as it does not possess the equivalent of the Optional Protocol to the ICCPR for the purpose of receiving individual petitions.  It was considered during the drafting of the Covenant that the progressive nature by which the rights were to be implemented rendered it impossible for individual complaints to be entertained.  It would not be possible to speak of violations in a context where all that was being considered was the sufficiency of legislative and administrative programs. [9] Accordingly, the ICESCR was left with a reporting system as a means of supervision, to be undertaken not by an expert committee like the Human Rights Committee, but by the Economic and Social Council (ECOSOC) as one of the political organs of the United Nations.

According to articles 16 and 17 of the Covenant, states are required to submit reports, at in­tervals to be defined by ECOSOC, on the “measures which they have adopted” and the “pro­gress made” in achieving observance of the rights in the Covenant.  The reports are to be sent to the UN Secretary-General, who is required to transmit them to ECOSOC “for consid­era­tion.”  ECOSOC may, in turn, transmit the state reports to the Commission on Human Rights “for study and general recommendations or . . . for information,” (art.19) and may invite the UN specialized agencies (which are to be sent copies of the relevant parts of the state reports) to report to it on the progress made in achieving observance of the rights. (art. 18)  Finally, ECOSOC may “from time to time” submit reports and recommendations “of a general na­ture” to the General Assembly (art. 21), and may bring to the attention of other UN organs and specialized agencies any matters that “may assist such bodies in deciding . . . on the ad­vis­ability of international measures likely to contribute to the effective progressive imple­menta­tion of the . . . Covenant.”(art. 22)

The system envisaged in part IV of the Covenant does not clearly identify which body has central responsibility for supervision (ECOSOC or the Commission on Human Rights), nor does it stipulate the precise content of the reports to be submitted by states parties or the na­ture of the scrutiny to be undertaken by the UN bodies mentioned.  What is clear under part IV is that no body has the ability to interpret the Covenant in a manner that binds states par­ties, and that states are merely under an obligation to submit reports at periodic intervals.  Any further participation in the supervisory process is entirely voluntary.  Reading between the lines, it would appear that what was envisaged was a system in which ECOSOC would act as a conduit for the transmission of requests for international assistance, both economic and technical.  It was not expected that ECOSOC would “assess” the state reports or evalu­ate state performance with respect to the implementation of obligations under the Covenant.  This, however, is not how the supervision system has ultimately developed.

The UN Committee on Economic, Social and Cultural Rights

It was immediately apparent, following the entry into force of the Covenant, that ECOSOC itself would not be able to undertake the tasks in­volved in the implementa­tion of the Cove­nant.  After some debate, it was de­cided that that responsibil­ity should be devolved upon a “Sessional Working Group” specially created for that purpose. [10]   Unfor­tunately, the Ses­sional Working Group (later known as the Sessional Working Group of Governmental Experts) never came to terms with the task at hand.  Its work was undermined by political disagreement, particularly in relation to the participation of the specialized agencies, and it undertook only a very superficial examination of the state reports.  The experience was suffi­ciently unsatisfactory for ECOSOC to decide in 1985 to create a new body, composed of independent (rather than governmental) experts, which would take up the role of assisting it in the “consideration” of state reports. [11]   The Committee on Economic, Social and Cultural Rights (CESCR) so cre­ated has since operated as the principle supervisory body to the Cove­nant.

The CESCR is composed of eighteen experts, sitting in an independent capacity, chosen with due regard to equitable geographical distribution. [12]   It officially meets in Geneva each year for a single three-week session, although additional sessions are frequently arranged.  As of May 1998, the committee has held eighteen sessions.  Unlike other human rights committees created by virtue of the respective treaties, the committee is technically only an organ of the United Nations.  It was created by ECOSOC, and its mandate is merely to assist ECOSOC in the consideration of state reports.  Although it operates in a manner broadly similar to that of other human rights treaty bodies, it has not been hampered by the con­straints of a detailed constitutional instrument and has therefore been able to develop its working methods quickly and flexibly.  As a result it now boasts one of the most advanced reporting procedures in the UN human rights system. 

Under the reporting procedure as it now operates, states are required to submit a report on the domestic implementation of the articles in the Covenant once every five years. [13]   To assist states in that regard, the CESCR has adopted a set of reporting guidelines that outline the is­sues to be addressed by states parties. [14]   The reports, once submitted, are considered ini­tially by a pre-sessional working group (consisting of five members of the committee), which drafts a list of specific questions regarding further information to be requested.  When the committee comes to consider the report in plenary, a representative of the state concerned is invited to attend the committee’s meeting and present the report.  In doing so, the represen­tative is requested initially to address the list of questions drafted by the pre-sessional work­ing group.  Thereafter individual members of the committee ask further questions to which the state representative will endeavor to respond.  At the conclusion of this process, which is somewhat inaccurately referred to as a “constructive dialogue,” the committee will draft a set of Concluding Observations in which it will lay out the principal subjects of con­cern to the committee and any suggestions and recommendations that it might have. [15] A number of as­pects of this process are worthy of further comment.

One of the enduring criticisms of reporting systems in general is their reliance on the coop­eration of states, not only in terms of their submission of reports but also in their participa­tion in the constructive dialogue.  The unwillingness of certain states to cooperate in that regard has posed problems with respect to the ICESCR.  For example, as of May 1996, there were 97 overdue reports from 88 states parties and 17 states had failed to submit a single report in ten years.  The committee has taken action to address such problems by, inter alia, scheduling for consideration the situation in states in absence of a report. [16]   This has met with some suc­cess in so far as states have often responded by submitting a report at the next session, [17] but it clearly runs counter to the ethos of the constructive dialogue and arguably exceeds the com­petence of the committee to consider “state reports.”

Aware of the limits of relying solely upon information provided by the states parties them­selves, the CESCR took what was at the time the unprecedented step of officially inviting “all concerned bodies and individuals to submit relevant and appropriate documentation to it.” [18]   As regards the UN specialized agencies, this is unremarkable in so far as their partici­pa­tion in the supervision process was already foreseen by the terms of the Covenant.  In real­ity, however, with the exception of the ILO, participation by the specialized agencies has been uniformly poor.  The main significance of the committee’s decision thus was in its offi­cial legitimization of participation by nongovernmental organizations (NGOs).  Although NGOs may not participate in the committee’s dialogue with states parties, they may submit at any time relevant written information to the committee concerning the enjoyment of rights within the states whose reports are being considered, and may give oral presentations at the beginning of each of the committee’s sessions. [19]   It has largely been as a result of the receipt of such information that the committee has been able to develop its work with respect to the right to housing.  The lack of large-scale participation by NGOs, however, has tended to mean that other areas of its work have not developed as rapidly.

One notable instance in which NGO information has been significant was the case of the Philippines.  At its tenth session, certain NGOs drew the attention of the committee to several matters (broadly relating to the forcible eviction of large numbers of families from their homes) that were, in the words of the committee, sufficient “to give rise to concern that vio­lations are occurring and that future measures might amount to further violations of the obli­gations contained in the Covenant.” [20]   On the basis of this information the committee re­quested the government to respond to the issues raised, which it did in the following year.  After examining the report, the committee took the view that the planned forcible eviction of 200,000 families would, if undertaken without adequate resettlement sites being made avail­able, be incompatible with the guarantees under the Covenant. [21]  It accordingly requested that the government ensure “that forced evictions are not carried out except in truly excep­tional circumstances, following consideration of all possible alternatives and in full respect of the rights of all persons affected,” and that a moratorium should be extended on all summary and illegal forced evictions. [22]

There are several significant aspects of this case.  First, the whole process was initiated on the basis of information received from NGOs, rather than through the committee’s examina­tion of the state report.  It only emerged later that the Philippines was in any case due to submit a report on articles 10-12.  The committee appears to have asserted its competence to request ad hoc reports with respect to situa­tions which give cause for serious concern.  Sec­ondly, as it has done on several other occasions, the committee suggested that the state was potentially in breach of its obligations under the Covenant.  While such a finding is not nec­essarily out of place in the context of a reporting procedure, it suggests that the committee is increasingly adopting what might be termed a “quasi-judicial function” rather than merely the facilitative or advisory function that had initially been envisaged. [23]   Thirdly, the case is interesting in so far as it suggests that the committee will concern itself not merely with re­medial action but will attempt to forestall future violations of the Covenant by intervening before the event.

It is often the case that during the process of the constructive dialogue issues arise which the state representative is unable to address immediately to the satisfaction of the CESCR.  In those cases, states are generally requested to provide additional information in time for the committee’s next session.  In urgent cases, the committee may request the information to be provided at an earlier date, within a specified number of months. [24]   On receipt of the addi­tional information the committee will generally merely declare its satisfaction at receiving the requisite information, but on occasion it will adopt a number of concluding observations outlining those matters which remain of concern to the committee. [25]

Recently, however, the committee has gone considerably further in its approach to situations of grave and immediate con­cern.  In the cases of Panama and the Do­minican Republic, the committee considered that the information provided by the state party did not entirely dispel its concern as to allegations of housing rights vio­lations.  Accord­ingly, it requested each state to accept a mission, consisting of two members of the committee, which would visit the state concerned predominantly for the purpose of information-gathering.  Although both states initially resisted, they eventually accepted the proposal and a mission was dispatched to Panama in early 1995 and to the Dominican Republic in 1997.  Although the mission re­ports themselves were confidential, the committee has adopted a set of observations as to the results of each visit. [26]   This procedure, while not unknown in the context of UN practice, is a significant development in the work of the committee and may ultimately offer opportunities for it to develop a far more constructive role in the reporting process.

One of the major theoretical drawbacks of the reporting system as a system of supervision is its inability to respond to specific individual claims that might arise in relation to the enjoy­ment of the rights in particular states.  To some extent those claims might be championed by interested NGOs participating in the work of the committee, but thus far, such action has tended to be limited to the field of housing rights.  The lack of a formal complaints procedure has two main drawbacks: not only does it deprive individuals of the opportunity to seek an international outlet for their complaints, but it also limits the committee’s ability to develop a deeper understanding of the content of the rights in the Covenant. 

As regards the latter point, the CESCR has attempted to remedy the lack of case law by pro­ducing “General Comments” in which it attempts to outline its understanding of both sub­stantive and procedural aspects of the Covenant.  As of June 2000, the committee had pro­duced thirteen such general comments, seven of which relate to substantive rights, namely the right to housing (and forced evictions), food, education and the rights of persons with disabilities, and the rights of the elderly. [27]   These all go some way towards elucidating the committee’s understanding of the rights and obligations within the Covenant, and, indeed, its perception of the difficul­ties facing states in implementation.  The latter point was developed, in particular, in a recent General Comment where the committee expressed its deep concern about the deleterious effect that UN-imposed sanctions appeared to have upon the welfare of vulnerable groups in the target states.  It reiterated the importance of the standards in the ICESCR and asked that those concerned with implementation take necessary cognizance of the ESC rights of the population affected.

Petitions concerning ESC Rights

As mentioned above, one of the major shortcomings of the ICESCR as a human rights in­strument is the fact that it does not possess the equivalent of a system for the consideration of individual or group petitions.  Although the CESCR has recently drawn up a draft Optional Protocol to allow for the consideration of individual communications, it is unlikely that this will be adopted by states in the near future.  The present situation, however, is not without its opportunities.  First of all, individuals and groups do have the opportunity to submit infor­mation to the CESCR alleging violations of rights within the Covenant, and this, on occasion, may induce the committee to ask states for a particular response.  To some extent, therefore, the system operates in a “quasi-judicial” manner in providing at least a potential outlet for complainants.

Secondly, it is apparent that there is a substantive overlap between the ICESCR on the one hand and the ICCPR on the other, and that if a state is party to the Optional Protocol to the latter, petitions in relation to ESC rights may be submitted to the Human Rights Committee.  The clearest examples arising in practice have related to article 26 of the ICCPR concerning equality before the law.  In several cases, the Human Rights Committee has come to consider the legitimacy of discriminatory social security legislation in the Netherlands under that pro­vision, notwithstanding the fact that the right to “social security” is found in the ICESCR, not the ICCPR. [28] Other potentially fruitful overlaps include the right to join and form trade un­ions and the right of members of ethnic, cultural and linguistic minorities to take part in the cultural life of their community (art. 27).  A similar situation prevails in relation to the Con­vention against Racial Discrimination (CERD) which has led, in the past, to certain ESC rights being considered under CERD’s petition system.  Cases of relevance include the Yil­maz-Dogan case [29] and L.K. v. The Netherlands. [30]

Author: The author of this module is Matthew Craven.

USING MODULE 3 IN A TRAINING PROGRAM

NOTES


1.  International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, GA Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 UNTS 3, entered into force 3 Jan. 1976 (hereinafter cited asICESCR).

2. P. Sieghart, The Lawful Rights of Mankind (Oxford: Oxford University Press, 1986), 164.  Sieghart comments that human rights are “precisely the rights that the individual may invoke against the claims of those who exercise power over him, and which they only too often assert in the name of the people.”

3. On such a contextual approach, see Theo van Boven, “The Relations between People’s Rights and Human Rights in the African Charter,” Human Rights Law Journal  7 (1986): 183-94.

4.  European Social Charter (Revised), ETS No. 163 (3 May 1996), entered into force 1 July 1999. The ESC provides for the right to social security (art. 12), the right to social and medical assistance (art. 13) and the right to benefit from social welfare services (art. 14).

5. ICESCR, article 8(3).  This is indicated, in particular, by the inclusion of article 8(3) that refers to ILO Convention No. 87.

[6]. See, for example, ILO Convention concerning Freedom of Association and Protection of the Right to Organize (No. 87), 1948, 68 UNTS 17.

7.The Limburg Principles on the implementation of the International Covenant on Economic, Social and Cultural Rights, UN ESCOR, Commission on Human Rights, Forty-third Sess., Agenda Item 8, UN Doc. E/CN.4/1987/17, Annex (1987).

8. “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly, Vol. 20, No. 3, The Johns Hopkins University Press, Baltimore, August 1998, 691-701.

9. See UN Doc. A/2929, in UN GAOR, C.3, Tenth Sess. (1955), Annexes (Agenda Item 28, Part II), para. 41.

10. ESC Dec. 1978/10, UN Doc. S/DEC/1978/10 (3 May 1978).

11. ESC Res. 1985/17, UN Doc. S/RES/1985/17 (28 May 1985).

13. ESC Res. 1988/4, UN Doc. S/RES/1988/4 (24 May 1988).

14. CESCR, Report on the Fifth Session. ESCOR, 1991, Supp. No. 3 (UN Doc. E/1991/23), Annex IV.

15. See CESCR, Report on the Eighth and Ninth Ses­sions. ESCOR, 1994, Supp. No. 3 (UN Doc. E/1994/23), paras. 32-34.

16. CESCR, Report on the Seventh Session. ESCOR, 1993, Supp. No. 2 (UN Doc. E/1993/22), para. 245.

17. For example, Belgium, Surinam and Kenya.

18. CESCR, Report on the Sixth Session. ESCOR, 1992, Supp. No. 3 (UN Doc. E/1992/23), para. 386.

19. Rules of Procedure Rule 69.3; see also UN Doc. E/1994/23 at para. 354 (1994).

20. CESCR, Report on the Eighth and Ninth Sessions. ESCOR, 1994, Supp. No. 3 (UN Doc. E/1994/23), para. 374.

21. UN Doc. E/C.12/1995/7, para. 16.

23. See generally Matthew C. R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on Its Development (Oxford: Clarendon Press, 1995).

24. CESCR, Report on the Seventh Session. ESCOR, 1993, Supp. No. 2 (UN Doc. E/1993/22), para. 251.

25. For example, observations on the additional information of Zaire. CESCR, Report on the Sixth Session.  ESCOR, 1992, Supp. No. 3 (UN Doc. E/1992/23), para. 328(c).

26. See Report on the technical assistance mission to Panama, UN Doc. E/C.12/1995/8 (1995); Re­port on the technical assistance mission to the Dominican Republic, UN Doc. E/C.12/1997/9 (1997).

27.  CESCR, General Comment 1, Reporting by States parties (1989), UN Doc. E/1989/22, annex III; General Comment 2, International technical assistance measures (Art. 22 of the Covenant) (1990), UN Doc. E/1990/23, Annex III; Gen­eral Comment 3, The nature of States parties’ obli­gations (Article 2, para. 1 of the Covenant) (1990), UN Doc. E/1991/23, Annex III; General Comment 4, The right to adequate housing (Article 11(1) of the Covenant) (1991), UN Doc. E/1992/23, Annex III; General Comment 5, Persons with disabilities (1994), UN Doc. E/C.12/1994/13; General Comment 6, The economic, social and cultural rights of older persons (1995), UN Doc. E/C.12/1995/16, Rev. 1; General Comment 8, The Relationship between eco­nomic sanctions and respect for economic, social and cultural rights (1997), UN Doc. E/C.12/1997/8; see also Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994) for General Com­ments 1-4.

28. See, for example, S.W.M. Broeks v. The Netherlands, Communication No. 172/1984 (9 April 1987), UN Doc. Supp. No. 40.

29. Yilmaz-Dogan v. The Netherlands, Committee on the Elimination of Racial Discrimination, Communication No. 1/1984, UN Doc. A/43/18 Annex IV (1988).

30. L.K. v. The Netherlands, Committee on the Elimination of Racial Discrimination, Communica­tion No. 4/1991, UN Doc. A/48/18 at 131 (1993).

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