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Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?

  • Michael J. Dennis (a1) and David P. Stewart (a1)

Extract

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. 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. Participating states were in sharp disagreement over the viability of the proposal, however, and the session ended in disarray. Since the Commission has recommended renewal of the Working Group’s mandate for two years, the issue remains open.

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1 The decision of the UN Commission on Human Rights (CHR) to establish the Working Group is recorded at para. 9 (f) of CHR Res. 2002/24 (Apr. 22). The subsequent ratification by the Economic and Social Council (ECOSOC) can be found in ECOSOC Dec. 2002/254 (July 25). Many of the recent Commission documents relied on or cited in this article are available at the Web site of the Office of the High Commissioner for Human Rights, <http://www.unhchr.ch>. Recent ECOSOC documents are available at its Web site, <http://www.un.org/esa/coordination/ecosoc/>.

2 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 999 UNTS 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR]. The proposal under discussion is based largely on the first Optional Protocol to the International Covenant on Civil and Political Rights [hereinafter ICCPR], Dec. 16, 1966, 999 UNTS 302 & 171, respectively. See infra notes 31–48 and accompanying text.

3 Report of the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/2004/44 [hereinafter Working Group Report].

4 CHR Res. 2004/29 (Apr. 19). See UN Doc. E/CN.4/2004/L.11 /Add.4, at 3, for the resolution and UN Doc. E/CN.4/2004/L.10/Add.4, paras. 53–72, for the various amendments and votes thereon. Those CHR resolutions and decisions are also published in the Report of the Commission on Human Rights on Its Sixtieth Session, UN ESCOR 2004, Supp. No. 4, UN Doc. E/2004/23. ECOSOC will review the decision in July.

5 See generally The Right to Complain About Economic, Social and Cultural Rights (Fons Coomans & Fried van Hoof eds., 1995) (SIM Special Study No. 18, Netherlands Institute of Human Rights); Nowak, Manfred, The Need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Rev. Int’l Comm’n Jurists, Dec. 1995, at 153 ; Tomasevski, Katarina, Justiciability of Economic, Social and Cultural Rights, Rev. Int’l Comm’n Jurists, Dec. 1995, at 203 . We recognize that current UN usage is to refer to individual “communications” rather than “complaints,” but we find the latter term a more accurate description.

6 See, e.g., Alston, Philip, Out of the Abyss: The Challenges Confronting the New U.N, Committee on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 332 (1987); Alston, Philip, No Right to Complain About Being Poor: The Need foran Optional Protocol to the Economic Rights Covenant, in The Future of Human Rights Protection in a Changing World: Fifty Years Since the Four Freedoms Address: Essays in Honour of Torkel Opsahl 79 (Asbjøm, Eide & Helgesen, Jan eds., 1991) [hereinafter No Right to Complain].

7 The Committee on Economic, Social and Cultural Rights (ESCR Committee), while functioning as a treaty body, was created by ECOSOC in 1985 rather than by the ICESCR itself. ECOSOC Res. 1985/17 (May 28).

8 ESCR Committee, Report on the Fifth Session, para. 285, UN Doc. E/1991/23. At its sixth (1991) session, the ESCR Committee supported the drafting of an optional protocol “since that would enhance the practical implementation of the Covenant as well as the dialogue with States parties and would make it possible to focus the attention of the public opinion to a greater extent on economic, social and cultural rights.” ESCR Committee, Report on the Sixth Session, para. 362, UN Doc. E/1992/23.

9 The proposal is found in UN Doc. E/CN.4/1997/105, annex (1996) [hereinafter ESCR Committee proposal].

10 For the report on the workshop, see UN Doc. E/CN.4/2001/62/Add.2 [hereinafter Report on Workshop]. The Commission and ECOSOC decisions establishing the Independent Expert are contained in CHR Res. 2001/30 (Apr. 20) and ECOSOC Dec. 2001/220 (June 4), respectively. The reports of the Independent Expert are contained in UN Docs. E/CN.4/2002/57 [hereinafter Independent Expert 2002 Report] and E/CN.4/2003/53 & Corrs. 1–2 [hereinafter Independent Expert 2003 Report].

11 CHR Res. 2002/24, supra note 1, para. 9(f); ECOSOC Dec. 2002/254, supra note 1, para. (b).

12 See, e.g., Nowak, Supra note 5; Arambulo, Kitty, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects 1618 (1999).

13 Vienna Declaration and Programme of Action, pt. I, para. 5, UN Doc. A/CONF.157/23 (1993), 32ILM 1661 (1993) (adopted at the 1993 World Conference on Human Rights) [hereinafter Vienna Declaration].

14 The precise meaning of “justiciability” in this context is open to debate, and the term is used ambiguously by those on both sides of the issue. See infra notes 81–91 and accompanying text.

15 See generally Alston, Philip & Quinn, Gerard, The Nature and Scope of States Parties’ Obligations Under the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 156 (1987); Vierdag, E. W., The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights, 9 Netherlands Y.B. Int’l L. 69 (1978); ESCR Committee, General Comment No. 3, The Nature of States Parties Obligations, UN Doc. E/1991/23, Annex III (1990). The General Comments are compiled (with those of other treaty bodies) in UN Doc. HRI/GEN/l/Rev.7 (2004), available at <http://www.unhchr.ch/tbs/doc.nsf>.

16 See Steiner, Henry J. & Alston, Philip, International Human Rights in Context 237320 (2d ed. 2000); Asbjørn, Eide, Economic and Social Rights, in Janusz Symonides, Human Rights: Concept and Standards 109 (2000); Yokota, Yozo, Reflections on the Future of Economic, Social, and Cultural Rights, in The Future of International Human Rights 201 (Weston, Burns H. & Marks, Stephen P. eds., 1999); Alston, Philip, Economic and Social Rights, in Human Rights: An Agenda for the Next Century 137 (Henkin, Louis & John, Lawrence Hargrove eds., 1994); Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Abdullahi Ahmed An-Na‘im ed., 1992).

17 See generally Economic, Social and Cultural Rights: A Textbook (Asbjørn, Eide, Krause, Catarina, & Rosas, Allan eds., 2d rev. ed. 2001); Giving Meaning to Economic, Social, and Cultural Rights (Merali, Isfahan & Oosterveld, Valerie eds., 2001); Jackbeth K., Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights, 6 Int’l J. Hum. Rts. 29 (2002).

18 UN Development Programme, Human Development Report 2002, at 17–18, at <http://hdr.undp.org>.

19 The content of economic, social, and cultural rights is generally said to comprise the following: an adequate standard of living, including food, clothing, housing, health, and medical care; education; work; fair conditions of employment; the opportunity to form and join trade unions; social security; and participation in cultural life. See generally Matthew C. R., Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development 78 (1995); Economic, Social and Cultural Rights: A Textbook, supra note 17.

20 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71 (1948) [hereinafter UDHR].

21 Jack Donnelly notes, for example, that describing the Western conception of human rights as focused exclusively on civil and political rights is a “prominent myth in the human rights literature Quite the contrary, during the Cold War the West was the only region that in practice took seriously the often-repeated assertion of the indivisibility of all internationally recognized human rights.” Donnelly, Jack, Universal Human Rights in Theory and Practice 6465 (2d ed. 2003). While the present article does not address the question of U.S. ratification (the United States is a signatory, but not a party, to the Covenant), we tend to agree with much of the analysis set out in Alston, Philip, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy, 84 AJIL 365, 36768 (1990), particularly when he notes that the “nature” of Covenant obligations is “considerably more substantial and demanding than has been assumed in most of the ratification debate in the United States” and that the obstacles to U.S. ratification are “much more formidable” than they were for other human rights treaties. We might add that since the time that Alston wrote that article, the trend in ESCR Committee interpretation, through General Comments and Concluding Observations discussed infra section III, has made the task even more difficult. See also the statement by ESCR Committee member Abdessatar Grissa, who, in opposing the protocol, observed that it was “unrealistic since certain countries, even among the most prosperous, could not implement all the provisions of the Covenant in full” and that “the United States had shown greater realism in not [ratifying] the Covenant, knowing that it could not implement it.” UN Doc. E/C.12/1996/SR.48, para. 8 (1997).

22 Regrettably, as discussed infra notes 92–94 and accompanying text, much of the argumentation in support of an optional protocol merely contends there is no reason not to establish a complaints mechanism, rather than demonstrating good reasons to do so—for example, by establishing what tangible benefits would flow therefrom.

23 Cf. Hathaway, Oona A., Do Human Rights Treaties Make a Difference? 111 Yale L.J. 1935, 201519 (2002).

24 Cf. Bangalore Declaration and Plan of Action (1995), which calls throughout for more active involvement of lawyers and judges in the pursuit of economic, social, and cultural rights. Rev. Int’l Comm’n Jurists, Dec. 1995, at 219, 223. On the subject of “overlegalization,” see Heifer, Laurence R., Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 Colum. L. Rev. 1832 (2002). We acknowledge, of course, that some economic, social, and cultural rights are more readily capable of meaningful adjudication than others. See infra note 330 and accompanying text.

25 To argue, as we do, that rights need not have remedies in order to be obligatory is, admittedly, an anti-Kelsenian approach. That is different, however, from asserting that the Covenant is not binding on states parties; clearly, it is. By comparison, the UDHR was intended to be a broad declaration of inspirational principles, not “a narrow set of legally binding provisions ‘confined to a ‘document of lawyers.’” Paul, Gordon Lauren, The Evolution of International Human Rights: Visions Seen 23436 (1998); Mary, Ann Glendon, A World Made New 23541 (2001); cf. Sen, Amartya, Development as Freedom 3, 22730 (1999), where the Nobel laureate argues that development must be viewed in terms of freedom and the removal of major obstacles to it; in his view,” [I]t is best to see human rights as a set of ethical claims, which must not be identified with legislated legal rights . . . . [W]e have to judge the plausibility of human rights as a system of ethical reasoning as the basis of political demands.”

26 Some do fear, of course, that empowering the ESCR Committee to adjudicate the rights of individuals and the concomitant obligations of states is a significant step toward establishing a judicially controlled command economy, and that it is a fundamentally undemocratic approach to issues of social and economic development. A less stark assessment would assert mat some issues ought not be adjudicated even if they can be. Cf. Sandler, Ross & Schoenbrod, David, Democracybydecree: What Happens When Courts Run Government (2003); The Politics of Human Rights: Does It Help to Think of Poverty or Inadequate Heath Care as Violations of Basic Rights? Economist, Aug. 18, 2001, at 9.

[I]f the intention is to move from stating rights to enforcing laws, they will be constitutionally dangerous. Vague laws would invite, and indeed require, courts rather than governments to settle arguments about social justice. Advocates may not mind this: the courts, they imagine, will give them an extra lever to use in pushing policy in their desired direction. But they must recognize that in practice this amounts to subordinating the popular will to the rule, not of law, but of judges.

Id. at 9. Others argue that the judiciary is well suited to enforcing individuals’ rights to “a fair share” of community resources, and that “the available resources include not just the wealth produced within a given state but that of the global community as a whole.” Woods, Jeanne M., Justiciable Social Rights as a Critique of the Liberal Paradigm, 38 Tex. Int’l L J. 763, 792 (2003).

27 In the field of international law, recent academic commentary suggests that cultivating voluntary obedience, rather than compelling compliance, is more effective at the task of “norm internalization,” which is the functional bedrock of a “horizontal” system. See generally Harold, Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997); Harold, Hongju Koh, How Is International Human Rights Law Enforced? 74 Ind. L.J. 1397 (1999); Hathaway, supra note 23.

28 A majority of ESCR Committee members (supported by many scholars) viewed a complaints mechanism as the sine qua non of an effective system for the protection and promotion of economic, social, and cultural rights. See generally No Right to Complain, supra note 6. From this perspective, ICESCR rights lack authoritative definition, and absent an internationally agreed adjudicative mechanism, there can be no body of interpretative “jurisprudence” to guide and motivate states. See, e.g., Tomasevksi, supra note 5, at 203–04. Virginia Leary made this argument in the context of the right to health as follows: “Procedures which permit legal complaints to be raised by aggrieved groups and individuals have been demonstrated to be the most effective means of protecting civil and political rights.... The concept of a ‘right’ necessarily carries with it the implication of the opportunity to demand that the right be protected.” Leary, Virginia, Justiciability and Beyond: Complaint Procedures and the Right to Health, Rev. Int’l Comm’n Jurists, Dec. 1995, at 105, 106.

29 UN Doc. A/CONF.157/PC/62/Add.5, Annex II (1993); ESCR Committee, Report on the Seventh Session, Annexes III, IV, UN Doc. E/1993/22. The ESCR Committee’s report was prepared by Philip Alston, who served first as rapporteur and then as chair of the Committee from 1991 to 1999, and had previously done substantial work in support of an optional protocol. See id., paras. 233–37.

30 Vienna Declaration, supra note 13, pt. II, para. 75.

31 ESCR Committee proposal, supra note 9. The report drew not only on the ICCPR’s first Optional Protocol, but also on the communication procedures available under other UN human rights treaties—that is, the Convention on the Elimination of All Forms of Racial Discrimination, December 21, 1965, Article 8, 660 UNTS 195, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Dec. 10, 1984, Articles 17 and 18, 1465 UNTS 85, and the (then draft) optional protocol to the Convention on the Elimination of Discrimination Against Women, March 12, 1999, 38 ILM 763 (1999) [hereinafter CEDAW Optional Protocol]. For an overview of the individual-communications mechanisms of these treaties, see generally Anne Bayefsky, How to Complain to the UN Human Rights Treaty System (2002), and Hurst Hannum, Guide to International Human Rights Practice (3ded. 1999).

32 See Working Group Report, supra note 3, para. 42 (statement of Human Rights Committee member Martin Scheinin). It remains unclear whether, by ratifying the proposed optional protocol, states would assume an independent legal obligation to comply with the decisions of the adjudicators, or whether those decisions would be considered only “authoritative interpretations” of the binding obligations that states had already assumed under the Covenant itself. During the Working Group debate, some delegations were of the view “that the optional protocol would be a quasi-judicial procedure and that the [ESCR] Committee like other treaty monitoring bodies would only make recommendations,” while others “questioned the nature of the Committee’s decisions on individual cases and suggested that ‘quasijudicial’ recommendations by a treaty body” might “be interpreted in practice as ‘judicial’ decisions.” Id., para. 54. If the decisions are merely hortatory, akin to the Committee’s recommendations adopted under the state reporting procedure, there would seem to be little point to the exercise. If, on the other hand, the decisions constitute authoritative interpretations of me legally binding obligations of states parties to the Covenant—which states party to the Protocol have agreed to respect, and for violations of which, liability attaches and remedies (including an award of compensation) may be handed down—they clearly assume a binding character of their own.

33 ESCR Committee proposal, supra note 9, para. 16.

34 Use of the term “adjudicators” also serves to emphasize that the proposal contemplates a formal, judicial process of adjudication with obligatory results. To contend, as the ESCR Committee itself has done, that the process would be “noncompulsory” and “strictly optional,” see id., para. 12(a), (d), UN Doc. A/CONF.157/PC/62/Add.5, Annex I, para. 18 (1993), risks serious miscomprehension.

35 ESCR Committee proposal, supra note 9, paras. 23, 31 (Art. 2).

36 Id., para. 31 (settingforth Art. 2(1)). The ESCR Committee noted that “the right of self-determination should be dealt with under this procedure only in so far as economic, social and cultural rights dimensions of that right are involved.” Id., para. 25.

37 Id., paras. 21 (Art. 1), 31 (Art. 2).

38 Id., para. 33 (Art. 3(1), (3)).

39 Id., para. 35 (Art. 4(1)).

40 Id., para. 37 (Art. 5). Interim measures would seem to be unrealistic since most of the rights require institutional development and budget commitments, which take time to develop.

41 Id., paras. 38–41 (Art. 6(3)).

42 Id., para. 53 (Art. 10).

48 Id., para. 41 (Art. 6(2)).

44 Id., para. 45 (Art. 7(1)).

45 Id., para. 45 (Art.7 (3)). On-site visits would require substantial resources. Other treaty bodies currently have almost no funds for such mechanisms. See infra note 316–17.

46 ESCR Committee proposal, supra note 9, para. 49 (Art. 8(1)).

47 Id., para. 51 (Art. 9(1), (2)).

48 Id., para. 14.

49 For the initial comments of states on the proposal, see generally UN Docs. E/CN.4/1998/84 & Add. 1, E/CN.4/1999/112 & Add.1, E/CN.4/2000/49, and E/CN.4/2001/62 (2000) & Add.1 (2001).

50 See UN Doc. E/CN.4/2001/62/Add.2. The Sub-Commission also endorsed the concept of a legally binding optional protocol. UN Doc. E/CN.4/Sub.2/RES/2003/19. A subsequent round table was convened by the International Commission of Jurists on Nov. 30, 2001. See UN Doc. E/CN.4/2002/161 [hereinafter Roundtable].

51 Kotrane serves as director of the Department of Private Law at the Faculty of Juridical, Political and Social Sciences at the University of Tunis. His mandate was to “examine the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights in the light, inter alia, of the [Committee’s proposal].” CHR Res. 2001/30, supra note 10, para. 8(c); ECOSOC Dec. 2001/220, supra note 10.

52 Independent Expert 2002 Report, supra note 10, summary & para. 55.

53 Id., para. 16.

54 Id., para. 20 (emphasis added).

56 Id., para. 23.

56 Id., para. 34.

57 Id., para. 42.

58 Id., para. 47.

59 Id., paras. 48–49.

60 Id., para. 55.

61 CHR Res. 2002/24, supra note 1, para. 9(c); ECOSOC Dec. 2002/254, supra note 1. The Commission and ECOSOC also requested that states, intergovernmental organizations, and nongovernmental organizations (NGOs) submit their views concerning these three questions. A similar request was made at the 2003 session. CHR Res. 2003/18, para. 14 (Apr. 22).

62 Independent Expert 2003 Report, supra note 10, para. 5.

63 Id., para. 76.

64 Id., paras. 66–67; see infra text accompanying notes 334–37.

65 Id., para. 72.

66 Id., para. 16.

67 Id., para. 24. “A State in which many people lacked the basics—food, primary health care, housing or education—would ostensibly be failing in its obligations under the Covenant and would thus be violating an obligation of result.” Id.

68 Id., para. 51.

69 Working Group Report, supra note 3, paras. 7–13. There were thirty-seven member states and forty-eight observers.

70 CHR Res. 2003/18, supra note 61, para. 16.

71 Working Group Report, supra note 3, para. 4. Ambassador Catarina de Albuqueque (Portugal) served as chair.

72 Id., para. 70. For the similar views of commentators, see Nowak, supra note 5, at 164; Scott, Craig, Toward the Institutional Integration of the Core Human Rights Treaties, in Giving Meaning to Economic, Social, and Cultural Rights, supra note 17, at 1 . Many of the arguments in favor of justiciability are presented as responses to the “myths” or misconceptions of the naysayers who are said to bear responsibility for obstructing the realization of economic, social, and cultural rights over the decades, See, e.g., Matas, David, Economic, Social and Cultural Rights and the Role of Lawyers: North American Perspectives, Rev. Int’l Comm’l Jurists, Dec. 1995, at 123 . For the Vienna Declaration and Programme of Action, see supra note 13.

73 Finland, for example, asserted that proposals for a complaints mechanism for the Covenant were rejected in the 1950s because of “the international climate” but that, “[w]ith the end of the Cold War, the question of adopting an Optional Protocol to [the ICESCR] came under increased consideration by the international community.” Finland, Statement (Feb. 23, 2004), at 1–2 (on file with authors). For similar views of commentators, see Roundtable, supra note 50, at 5–6 (summarizing comments by ESCR Committee member Eibe Riedel); Arambulo, supra note 12, at 16–20 (“the alleged difference between the nature of the two groups of human rights was not built on sound arguments”); Chisanga, Puta-Chekwe & Flood, Nora, From Division to Integration: Economic, Social, and Cultural Rights as Basic Human Rights, in Giving Meaning to Economic, Social, and Cultural Rights, supra note l7, at 39 (“the decision to create the [ICESCR] was the product of conflicting ideologies and misconceptions about the nature of human rights, rather than the necessary consequence of fundamental differences between groups of rights”).

74 Working Group Report, supra note 3, para. 18.

75 Id., paras. 41 (statement of ESCR Committee member Eibe Riedel), 53.

76 Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3.

77 Working Group Report, supra note 3, para. 18.

78 Id., para. 19.

79 Id., paras. 56–57.

80 Poland, Statement (Feb. 23, 2004), at 1 (on file with authors). India and the United States were of the same view. India, Statement (Feb. 23, 2004), at 2; United States, Statement (Apr. 8, 2004).

81 Working Group Report, supra note 3, paras. 58, 60.

82 Finland, Statement, supra note 73, at 3–4 (paragraph structure omitted). See also the written submission of Cuba (not a party to the ICESCR) (noting that its “laws not only recognize economic, social and cultural rights, but also permit complaints about violations of these rights and the award of an appropriate remedy”). UN Doc. E/CN.4/2004/WG.23/2, para. 25 (2003) [hereinafter Secretary-General’s Report to CHR]. This document contains summaries of written submissions made by various states prior to the Working Group session.

83 Working Group Report, supra note 3, paras. 59, 63. Italy made a different distinction: “Obligations in relation to civil and political rights are binding in nature, while obligations in relation to economic, social and cultural rights are only declarations of intent that carry moral and political weight but do not constitute direct legal obligations for the State party.” Secretary-General’s Report to CHR, supra note 82, para. 10.

84 Working Group Report, supra note 3, para. 57. Sweden noted that because the ICESCR contains several unclear concepts, such as the principle of “progressive realization” and the phrase “to the maximum of its available resources,” clarity would be “an important prerequisite for the consideration of an individual complaint mechanism.” Secretary- General’s Report to CHR, supra note 82, para. 17.

85 India, Statement, supra note 80, at 4.

86 UN Doc. E/CN.4/2004/WG.23/CRP.4, para. 2 (written submission of Katarina Tomasevski to the Working Group). Tomasevski also advised that the “text of the ICESCR and, in particular, its previous interpretations should be . . . carefully reviewed so as to identify those features of the past decades that no longer influence the practice of the overwhelming majority of states.” Id., para. 7. Similarly, the general counsel for the World Bank, Francois Gianviti, concluded in a working paper for the Committee that, “[w]hile the provisions of the Covenant may represent a common ground around which members of the United Nations found agreement at a certain point in time, they now appear somewhat removed from the realities of today’s internally and externally open economy.” UN Doc. E/C.12/2001/WP.5, para. 39.

87 ESCR Committee, General Comment No. 9, The Domestic Application of the Covenant, paras. 10, 14, UN Doc. E/C.12/1998/24.

88 Cf. Arambulo, supra note 12, at 57 (“Justiciability of a human right means that a court of law or another type of supervisory body deems the right concerned to be amenable to judicial scrutiny.”).

89 Craven, supra note 19, at 102. This statement captures the sense in which we understand the Independent Expert’s observation about “the essentially justiciable nature of all the rights guaranteed under the Covenant,” see supra text accompanying note 68—namely, that in the abstract, it is possible to establish a mechanism to address complaints about violations of those rights.

90 See Leary, supra note 28, at 111, where the term is used to refer “not only to the possibility of raising issues before judicial tribunals but also to refer to the right to bring communications concerning violations before quasijudicial organs.”

91 This approach is somewhat closer to the traditional definition of “justiciability” in U.S. courts, which is said to require an actual controversy between two or more parties with adverse interests and with standing to bring the case to court, and where the court’s determination is likely to result in practical relief for the complainant. See, e.g., Flast v. Cohen, 392 U.S. 83 (1968); New York County Lawyers’ Ass’n v. State, 742 N.Y.S.2d 16 (1st Dept. 2002). Even in the United States, courts are capable of deciding some issues related to recognition and enforcement of some economic, social, and cultural rights, including the obligation of the state vel non to provide minimal levels of subsistence or other basic benefits. See, e.g., Harris v. McRae, 448 U.S. 297, rehg denied, 448 U.S. 917 (1980); Boehm v. Superior Court, 223 Cal. Rptr. 716 (Ct. App. 1986); Moore v. Ganim, 660 A.2d 742 (Sup. Ct. Conn. 1995). Because courts can, of course, does not mean that they should. Some commentators maintain that judicial decision making is simply inappropriate for economic, social, and cultural rights:

No convincing example has . . . been produced of a case in which judges can effectively make decisions allocating positive economic rights. All such decisions are decisions which allocate resources and which therefore have opportunity costs. They also invariably require transfers from individual to individual. Such decisions should be made either by voluntary transactions or by an accountable political process.

Robertson, Bernard, Economic, Social and Cultural Rights: Time for a Reappraisal 17 (1997), available at <http://www.nzbr.org.nz/documents/publications/publications-l997/nzbr-rights.doc.htm>. Even when domestic law explicitly provides for adjudication of such rights, courts may still have a limited role in enforcing them. See Minister of Health v. Treatment Action Campaign, 2002 (5) SALR 721 (CC), para. 25 (S. Afr.). The decisions of South Africa’s Constitutional Court are available at <http://www.concourt.gov.za>.

92 Working Group Report, supra note 3, para. 70. See also the statement of Finland, supra note 73, at 2–3, and the summaries of the written submissions of Mexico and Portugal, Secretary-General’s Report to CHR, supra note 82, paras. 11, 39 (respectively). Within the Committee, then Chair Philip Alston explained that the “main aim of the optional protocol was to allow the Committee to build up a body of jurisprudence; thus, even though a particular case considered might involve only one State party or a handful of individuals, the Committee’s decisions could eventually have a multiplier effect.” UN Doc. E/C/1996/SR.45, para. 11.

93 Working Group Report, supra note 3, para. 70 (emphasis added).

94 Id., para. 51.

95 To quote Tomasevski:

Justiciability will develop, much as everything else in the field of human rights, bottom-up, through fragmentary incursions into the areas cloaked behind the proverbial unwillingness of governments to concede ways and means for holding them accountable. It is thus fortunate that examples of holding governments accountable for violations of economic, social and cultural rights exist and can be used as a basis for further development of justiciability.

Tomasevski, supra note 5, at 206. During the Committee debate, Kenneth Rattray reminded members that the “drafting of an optional protocol was a further step towards establishing an international court to which individuals could apply.” UN Doc. E/C.12/1996/SR.48, para. 15 (1997).

96 The ESCR Committee has long criticized states parties for their failure to incorporate the provisions of the ICESCR into their domestic legislation. See Concluding Observations of the ESCR Committee: New Zealand, para. 11, UN Doc. E/C. 12/1 /Add.88 (2003); Concluding Observations of the ESCR Committee: Iceland, para. 10, UN Doc. E/C.12/1/Add.89 (2003); Concluding Observations of the ESCR Committee: United Kingdom, para. 11, UN Doc. E/C.12/1/Add.79 (2002).

97 GA Res. 2200A (XXI) (Dec. 16, 1966).

98 The Covenants contain common Articles 1 (self-determination), 3 (equal rights of men and women), and 5 (safeguards), as well as identical final articles (ICESCR Articles 24–32 and ICCPR Articles 46–53).

99 GA Res. 421 E (V) (Dec. 4, 1950).

100 One clear example of the relative (indeed, variable) nature of this undertaking is found in ICESCR Article 2(3), which allows “ [d]eveloping countries, with due regard for human rights and their national economy,” to “determine to what extent they would guarantee the economic rights . . . to non-nationals.”

101 The ICESCR (Article 16(1)) requires states parties to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” in the Covenant. It provides (Article 22) that ECOSOC “may bring to the attention of other organs of the United Nations . . . and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports . . . which may assist such bodies in deciding... on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.” The ICESCR also provides that ECOSOC “may transmit [the reports] to the Commission on Human Rights for study and general recommendation” (Article 19), and that ECOSOC may, in turn, submit “recommendations of a general nature” to the General Assembly on “the progress made in achieving general observance of the rights recognized” in the Covenant (Article 21).

102 See supra note 73 and accompanying text.

103 Eleanor Roosevelt (U.S. representative and chair of the Commission) noted that methods of implementation “would necessarily vary from one country to another and such variations should be considered not only inevitable but salutary.” UN Doc. E/CN.4/SR.64, at 5 (1948).

104 Wilson, Geoffrey, representative of the United Kingdom, Statement, UN Doc. E/CN.4/SR.71, at 11 (1948); see generally Humphrey, John P., Human Rights & The United Nations: A Great Adventure 45 (1984); Glendon, supra note 25, at 115–17; cf. Morsink, Johannes, The Universal Declaration of Human Rights 230 (1999).

105 Cassin, Rene, La Pensée et l’Action 111 (1972) (authors’ translation). For his work on human rights, specifically with regard to the Universal Declaration, Cassin was awarded the 1968 Nobel Peace Prize.

106 René, Cassin, representative of France, Statement, UN Doc. E/CN.4/SR.72, at 4 (1948).

107 The proposal, as amended, was adopted by a vote of 12–0, with 5 abstentions. UN Doc. E/CN.4/SR.72, at 10 (1948). Cassin’s initial proposal stated, “Everyone as a member of society has the economic, social and cultural rights enumerated below, whose fulfillment should be made possible in every State separately or by international collaboration.” UN Doc. E/CN.4/SR.67, at 2 (1948). Egypt (Omar Loutfi) suggested adding the phrase “in accordance with the economic and social possibilities” of each state, while Mrs. Roosevelt proposed “in accordance with the social and economic system and political organization.” UN Doc. E/CN.4/SR.71, at 3 (1948).

108 UN Doc. A/C.3/SR.138, at 512–14 (1948).

109 The USSR amendment is contained in UN Doc. E/800, at 43 (1948). It was rejected by votes of 11–4 and 10–4 (with 1 abstention) in the Commission, UN Doc. E/CN.4/SR.72, at 9–10 (1948), and by 27–8, with 8 abstentions, in the Third Committee, UN Doc. A/C.3/SR.138, at 512 (1948).

110 Pavlov, Alexei, representative of USSR, Statement, UN Doc. A/C.3/SR.137, at 49899 (1948).

111 Roosevelt, Eleanor, representative of the United States, Statement, UN Doc. A/C.3/SR.138, at 501 (1948).

112 Id.

113 GA Res. 217 A, B, E (III) (Dec.10, 1948).

114 GA Res. 421 E (V), supra note 99; see 1950 U.N.Y.B. 529–31.

115 Morozov, Platon, representative of USSR, Statement, UN Doc. E/CN.4/SR.206, at 5 (1951).

116 Max, Sörensen, representative of Denmark, Statement, UN Doc. E/CN.4/SR.207, at 1011 (1951); see also Roosevelt, Eleanor, Statement, UN Doc. E/CN.4/SR.236, at 5 (1951) (“they were not justiciable”); Whitlam, H. F. E., representative of Australia, Statement, UN Doc. E/CN.4/SR.206, at 22 (1951) (“juridical implementation was quite inappropriate”); Cassin, Rene, Statement, UN Doc. E/CN.4/AC.14/SR.2, at 12 (1951) (“the French delegation recognized the independence of the systems in force in the various States, and desired aims alone to be stated”).

117 Jenks, Wilfred, assistant director-general of the International Labour Organization (ILO), Statement, UN Doc. E/CN.4/SR.203, at 15 (1951) (“By their very nature, such provisions were statements of policy and aims to be attained by dint of sustained endeavour both at the national and international level, rather than by juridical recognition of their validity.”); Jamie, Torres-Bodet, director-general of UNESCO, Statement, UN Doc. E/CN.4/AC.14/SR.1, at 14 (1951) (“States should accept the obligation to do all within their power to achieve certain clearly defined aims, without, however, undertaking to attain them within a specified period [since] they could be achieved only by slow degrees”).

118 UN Doc. E/CN.4/SR.237, at 12–13 (1951); Report of the Commission on Human Rights on Its Seventh Session, UN ESCOR 1951, Supp. No. 9, para. 54, UN Doc. E/CN.4/640 [hereinafter CHR Report on 7th Session].

119 René, Cassin, Statement, UN Doc. E/CN.4/SR.237, at 78 (1951). Cassin also explained:

As to the word “progressively”, the realization of economic, social and cultural rights always took time, and ratifications of the draft Covenant would not be facilitated by ignoring that fact. Furthermore, if the provisions of the general clause were too strict, the Covenant would be a magnificent monument, but, like all monuments, entirely devoid of life.

Id.

120 Jevremovic, Branko, representative of Yugoslavia, Statement, id. at 15 .

121 Hemán, Santa Cruz, representative of Chile, Statement, UN Doc. E/CN.4/SR.236, at 19 (1951). Santa Cruz added:

[T]he expression “to the maximum extent of their available resources” could, in the absence of a closer definition, be interpreted as applying only to the resources of States available for that particular purpose, and not to their over-all resources. Again, the expression “undertake to take steps” did not constitute a formal undertaking to guarantee the exercise of the rights recognized. Finally, the adverb “progressively” also tended unduly to reduce the scope of the undertaking to be assumed by the signatory States.

Id. Other developing countries opposing the French proposal included Uruguay, id. at 27–28, and Pakistan, UN Doc. E/CN.4/SR.237, at 14 (1951).

122 The vote was 8–3, with 7 abstentions. CHR Report on 7th Session, supra note 118, para. 53; UN Doc. E/CN.4/609/Rev.1 (1951) (proposal).

123 The vote was 8–8, with 2 abstentions. UN Doc. E/CN.4 SR.237, at 12 (1951).

124 CHR Report on 7th Session, supra note 118, para. 38.

125 The ILO counseled that the articles on economic and social rights should be brief and general, leaving the details to the ILO or other specialized agencies. UN Doc. E/2057/Add.2 (1951).

126 For the negotiating history of ICESCR Articles 12 to 15 in the Commission, see UN Docs. E/CN.4/544 & Add.1 (1951) (WHO proposal) and E/CN.4/541 (1951) (UNESCO proposal); CHR Report on 7th Session, supra note 118, paras. 45, 47; and Report of the Commission on Human Rights on Its Eighth Session, UN ESCOR1952, Supp. No. 4, paras. 119–28, 132–34, UN Doc. E/CN.4/669 [hereinafter CHR Report on 8th Session]. See generally Alston, Philip, The United Nations’ Specialized Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights, 18 Colum. J. Transnat’l L. 79, 8589 (1979).

127 Both the General Assembly and the CHR rejected several USSR proposals that would have excluded all measures of implementation from the draft covenant. See CHR Report on 7th Session, supra note 118, para. 72.

128 Report of the Commission on Human Rights on Its Sixth Session, paras. 34–41, UN Doc. E/CN.4/507 (1950). The CHR continued to consider the specific details of implementation provisions concerning civil and political rights at its 1951 session. See CHR Report on 7th Session, supra note 118, paras. 68–90.

129 Malik, Charles, Representative of Lebanon, Statement, UN Doc. E/CN.4/AC.14/SR.2, at 20 (1951). The proposal is contained in UN Doc. E/CN.4/570/Rev.2 (1951).

130 The CHR ultimately set up a working group to consider measures on implementation. It rejected the Lebanese proposal by a vote of 6–2. UN Doc. E/CN.4/AC.15/SR.3, at 15 (1951).

131 The proposal is contained in UN Doc. E/CN.4/622 (1951). See also Waheed, Abdul, representative of Pakistan, Statement, UN Doc. E/CN.4/SR.241, at 711 (1951); see generally CHR Report on 7th Session, supra note 118, paras. 56–67.

132 See, e.g., Jenks, C. W., representative of ILO, Statement, UN Doc. E/CN.4/SR.203, at 16 (1951).

133 See, e.g., Bammate, N., representative of UNESCO, Statement, UN Doc. E/CN.4/SR.241, at 16 (1951).

134 Guildhaume, Myrddin-Evans, representative of ILO Governing Body, Statement, UN Doc. E/CN.4/AC.14/SR.1, at 9 (1951). Myrddin-Evans added:

If the existing balance should be upset, delicate problems would arise in respect of the Constitutions of the specialized agencies and the relationship agreements between the latter and the United Nations. Moreover, duplication, frustration and a lowering of the authority of both of the United Nations and of the specialized agencies would almost certainly follow.

Id.

135 Dorolle, P., representative of WHO, Statement, UN Doc. E/CN.4/SR.203, at 20 (1951).

136 UN Docs. E/CN.4/AC.14/SR.2, at 20 (1951), E.CN.4/SR.237, at 17 (1951); see also Ms. Bowie, representative of United Kingdom, Statement, UN Doc. E/CN.4/SR.238, at 11 (1951) (“[T]he primary responsibility for the implementation of human rights rested with the General Assembly and the Economic and Social Council; but the executive responsibility rested with the specialized agencies.”); Roosevelt, Eleanor, Statement, id at 17 (“The role of specialized agencies was vital, but they should direct their attention to assisting governments rather than finding fault with them.”); René, Cassin, Statement, UN Doc. E/CN.4/SR.203, at 1011 (1951) (“Whereas the civil and political rights protected by the Commission had not been safeguarded by the specialized agencies, economic, social and cultural rights already had their defenders in the shape of such agencies as the International Labour Organization, the United Nations Educational, Scientific and Cultural Organization and the World Health Organization.”).

137 ECOSOC Res. 384 (XIII) (Aug. 29, 1951) (adopted by a vote of 11–5, with 2 abstentions); see generally, 1951 U.N.Y.B. 479–81.

138 GA Res. 543 (VI) (Feb. 5, 1952) (adopted by a vote of 27–20, with 3 abstentions); UN Doc. A/PV.375 (1952), paras. 63–67; see generally Humphrey, supra note 103, at 158–62.

139 1952 U.N.Y.B. 482.

140 Id. at 483.

141 Malik, Charles, Statement, UN Doc. A/C.3/SR.370, paras. 3940 (1951). Malik continued:

Neither was it a chance that the two categories of rights had always been regarded as distinct. In the Charter of the United Nations, as in the Universal Declaration of Human Rights, the international problems of an economic, social, cultural or humanitarian character were never confused with those involving respect for human rights and basic freedoms. It would be a pity, therefore, if all rights were included in one and the same covenant.

Id., para. 42. The statement of Mr. D’Souza, representative of India, was similar. UN Doc. A/C.3/SR.361, paras. 27–36(1951).

142 1951 U.N.Y.B. 482.

143 Id.

144 Roosevelt, Eleanor, Statement, UN Doc. A/C.3/SR.360, paras. 1013 (1951) (emphasis added).

145 UN Doc. A/C.3/L.182 (1951).

146 UN Doc. A/C.3/L.185/Rev.l (1951). The vote was 30–24, with 4 abstentions. UN Doc. A/C.3/SR.395, paras. 59–64.

147 UN Doc. A/C.3/L.192/Rev.2 (1952) (amendment); UN Doc. A/C.3/SR.395, paras. 56–58 (1952).The vote was 26–24, with 8 abstentions. The General Assembly, in later affirming the Third Committee’s decision, rejected a Chilean amendment that would have again provided for the drafting of a single covenant. UN Doc. A/PV.375, paras. 63–66 (1952). The vote was 29–25, with 4 abstentions.

148 E/CN.4/L.54/Rev.2 (1952) (proposal); CHR Report on 8th Session, supra note 126, para. 109. The proposal, which was put forward by the United States and orally amended by France, added the words “by legislative as well as other means.” The Soviet bloc states, along with several developing countries, continued to attack the proposed approach—of permitting states to “take steps,” “to the maximum of its available resources,” and “with a view to achieving progressively”—as providing too many loopholes for states parties wishing to evade their responsibilities. See, e.g., Morozov, Platon, representative of USSR, Statement, UN Doc. E/CN.4/SR.273, at 47 (1952); Jevremovic, Branko, representative of Yugoslavia, Statement, id. at 1415 ; Hernán, Santa Cruz, representative of Chile, Statement, UN Doc. E/CN.4/SR.272, at 89 (1952). The proposal’s specific wording was adopted as follows: the words “to the maximum extent of its available resources” by a vote of 12–6; the word “progressively” by a vote of 10–8 on a roll call; and the words “achieving progressively” by 10–7, with 1 abstention. UN Doc. E/CN.4/SR.274, at 15 (1952).

149 UN Doc. E/CN.4/L.65/Rev.l (1952).

150 UN Doc. E/CN.4/SR.274, at 10–11 (1952). The Commission also rejected by a vote of 9–7 with 2 abstentions, id. at 11, an amendment by Chile to the effect that the terms of the umbrella provision would not prevent states parties from undertaking any specific obligations relating to particular rights, UN Doc. E/CN.4/L.71 (1952) (amendment).

151 Boratynski, S., representative of Poland, Statement, UN Doc. E/CN.4/SR.273, at 13 (1952).

152 Sir Samuel, Hoare, representative of the United Kingdom, Statement, UN Doc. E.CN4/SR.271, at 10 (1952).

153 UN Doc. E/CN.4/SR.270, at 11(1952).

154 UN Doc. E/CN.4/SR.272, at 10 (1952).

155 UN Doc. E/CN.4/SR.270, at 11 (1952).

156 Waheed, Abdul, Representative of Pakistan, Statement, UN Doc. E/CN.4/SR.273, at 10 (1952); see also Bracco, D., representative of Uruguay, Statement, UN Doc. E/CN.4/SR.271, at 9 (1952).

157 Mahmoud, Azmi Bey, representative of Egypt, Statement, UN Doc. E/CN.4/SR.274, at 14 . To the same effect, see Hansa Mehta, representative of India, Statement, UN Doc. E/CN.4/SR.271, at 9 (1952) (“In democratic countries, that decision was taken by representatives of the people, who apportioned expenditure.”).

158 Casanueva, Diaz, representative of Chile, Statement, UN Doc. A/C.3/SR.1181, para. 26 (1962). One commentator has suggested that on “a strict reading of the Covenant,” the terms of Article 2 would not necessarily apply to those ICESCR provisions in which states parties “undertake” specific obligations. Craven, supra note 19, at 134; see also Alston, supra note 21, at 380. There is support for this view in the negotiating record. During the debate in the Third Committee, the Lebanese representative stated:

Article 2 referred to “die full realization of the rights recognized in this Covenant”. The Commission on Human Rights had chosen the word “recognized” intentionally. It was used in all but three of the articles of the Covenant on Economic, Social and Cultural Rights; the three exceptions were article 8 [undertake to ensure right to strike], article [13], paragraph 3 [undertake to have respect for liberty of parents to choose schools], and article [15], paragraph 3 [undertake to respect the freedom indispensable for scientific research] The reason was that the Commission had considered the three rights referred to in diose articles to be in a separate category, since their exercise was in no way connected with economic and social conditions in the country.

Azkoul, Karim, Statement, UN Doc. A/C.3/SR.721, para. 21 (1957).

159 UN Doc. A/C.3/L.1026/Rev.2 (1962).

160 Mr. Attlee, representative of the United Kingdom, Statement, UN Doc. A/C.3/SR.1202, para. 44 (1962). The UK amendment incorporated a Ghanaian proposal, which similarly sought to clarify “that certain Governments would have to apply other means until public opinion was ripe for legislation.” Mr. Donkor, representative of Ghana, Statement, UN Doc. A/C.3/SR.1203, para. 1 (1962). The amendment was adopted by a vote of 54–0, with 35 abstentions. UN Doc. A/C.3/SR.1206, para. 37 (1962). In short, as one commentator has observed with respect to ICESCR Article 2, “Although it has commonly been asserted that the enactment of legislation is essential to the implementation of economic, social, and cultural rights on the domestic plane, the travaux préparatoires make clear this was not intended to be the case.” Craven, supra note 19, at 125 (footnote omitted).

161 Report of the Commission on Human Rights on Its Tenth Session, UN Escor 1954, Supp. No. 7, paras. 72–242, UN Doc. E/CN.4/705 [hereinafter CHR Report on 10th Session].

162 Id., paras. 107–09, 215–25, 227.

163 Juvigny, P., representative of France, Statement, UN Doc. E/CN.4/SR.431, at 9 (1954); CHR Report on 10th Session, supranote 161, para. 216 (proposal).

164 Manning, R. E., representative of ILO, Statement, UN Doc. E/CN.4/SR.431, at 10 .

168 The representative of UNESCO’s Executive Board, Arnaldo, Solomon V., remarked that “examination of the complaints implied a thorough knowledge of the technical conditions of implementation,” which the specialized agencies already possessed. UN Doc. E/CN.4/SR.432, at 4 (1954); see generally Alston, supra note 126, at 90–91.

166 Paonan, Cheng, representative of China, Statement, UN Doc. E/CN.4/SR.432, at 6 (1954).

167 Whitlam, H. F. E., representative of Australia, Statement, id. at 8 (1954).

168 Id.

169 Sir Samuel, Hoare, representative of the United Kingdom, Statement, id. at 9 .

170 Morozov, Platon, representative of USSR, Statement, id. at 6 .

171 Roussos, S. G., representative of Greece, Statement, id. at 10 .

172 Juvigny, P., representative of France, Statement, id. at 11 . Uruguay and Chile also submitted and then withdrew a proposal that would have similarly provided for consideration of interstate complaints. CHR Report on 10th Session, supra note 161, paras. 217–19, 224–25.

173 Cesar, Montero Bustamante, representative of Uruguay, Statement, UN Doc. E/CN.4/SR.423, at 10, 12 (1954).

174 Id. at 10–14; CHR Report on 10th Session, supra note 161, paras. 107–09, 227.

175 Ortega, Rudecindo, representative of Chile, Statement, UN Doc. E/CN.4/SR.423, at 13 (1954).

176 See Nowak, Manfred, The U.N. Covenant on Civil and Political Rights 580–616, 647723 (1993). The Third Committee considered the draft covenants from 1954 to 1966.

177 Mrs. Harris, representative of the United States, Statement, UN Doc. A/C.3/SR.1399, paras. 1–10 (1966); UN Doc. A/C.3/L.1360 (1966) (proposal). For the Racial Discrimination Convention, see supra note 31.

178 Mr. Capotorti, representative of Italy, Statement, UN Doc. A/C.3/SR.1398, paras. 2–4 (1966); UN Doc. A/C.3/L.1358 (1966) (proposal).

179 See Canada, Statement, UN Doc. A/C.3/SR.1399, paras. 27–28 (1966); Finland, Statement, id., para. 30; Ireland, Statement, UN Doc. A/C.3/SR. 1400, paras. 2–4 (1966); Netherlands, Statement, id., paras. 13–16; Norway, Statement, id., paras. 24—26; Israel, Statement, id., paras. 50–52. Other delegations supporting the U.S. or Italian proposals included Madagascar, Ceylon, and Panama, UN Doc. A/C.3/SR.1400, paras. 10–11, 19–24, 33 (respectively) (1966).

180 McDonald, Donald, representative of Canada, Statement, UN Doc. A/C.3/SR.1399, para. 27 (1966).

181 Mr. Nasinovsky, representative of USSR, Statement, id., para. 23.

182 Mr. Tsao, representative of China, Statement, UN Doc. A/C.3/SR.1401, para. 4 (1966).

183 Mr. Sinha, representative of India, Statement, id., para. 12.

184 Mr. Dombo, representative of Ghana, Statement, id., para. 15.

185 Id., paras. 17–21; see generally Alston, supra note 126, at 91–92.

186 ECOSOC Res. 1988 (LX) (May 11, 1976); see also ECOSOC Dec. 1978/10 (May 3).

187 ECOSOC Dec. 1981/158 (May 8); ECOSOC Res. 1982/33 (May 6).

188 ECOSOC Res. 1985/17 (May 28); UN Doc. E/1985/SR.22, paras. 43–48.

189 See generally Centre for Human Rights, United Nations Action in the Field of Human Rights, paras. 248–52, 130614, UN Doc. ST/HR/2/Rev.4 (1994) [hereinafter UN Action in the Field of Human Rights]; Alston, Philip, The Committee on Economic, Social and Cultural Rights, in The United Nations and Human Rights: A Critical Appraisal 473 (Alston, Philip ed., 1992).

190 In addition to reporting that the “Committee has clearly indicated its preoccupation with its ambiguous status with respect to the Covenant,” the secretary-general has noted that the Committee’s “role is dependent upon its continuing to be the body to which this function has been delegated by the Council.” Report of Secretary-General, Follow-up and Monitoring of the ICESCR, UN Doc. E/1996/101, para. 5 (emphasis omitted).

191 UN Doc. E/CN.4/SR.427, at 4 (1954).

192 See, e.g., Working Group Report, supra note 3, para. 59; Poland, Statement, supra note 80, at 2 (“Treaties ought not to be allowed to evolve informally in disregard of formal amendment procedures.”).

193 A number of serious issues lurk here. Experience under the ICCPR’s first Optional Protocol, as well as under the CHR’s so-called “1503 procedure,” suggests that many, if not most, individual complaints are likely to contain scant supporting documentation. It will obviously not be sufficient for the adjudicators to decide such complaints solely on the basis of superficial allegations. Other petitions, especially those brought by knowledgeable and experienced NGO advocates, will likely be carefully researched, well crafted, and fully detailed. Still, it would not be appropriate for the adjudicators to conclude that such complaints, if not rebutted, necessarily establish treaty violations. A state that is willing to respond will have to commit the resources to investigate the charges in the complaint, rebut the allegations or explain the circumstances, defend its policies and programs, and justify the choices that arguably caused (or have not yet ameliorated) the privation in question. This task will be more difficult and time consuming in the case of the well-prepared NGO complaint posited above. If no response—or no adequate response—is forthcoming from the respondent state, the adjudicators would presumably need to determine and analyze the facts themselves, assuming that there is money for such “on-site” fact finding.

194 Indeed, some of the advocates of the optional protocol point to the lack of conceptual clarity as one of the main reasons for establishing the complaints procedure. This approach seems to put the cart before the horse.

195 India, Statement, supra note 80, at 2.

196 Working Group Report, supra note 3, para. 61.

197 Id., para. 62.

198 Id., para. 61.

199 See ESCR Committee, General Comment No. 1, Reporting by States Parties, UN Dec. E/1989/22, annex. Strictly speaking, the Committee’s General Comments cannot properly provide the criteria for adjudicating complaints, since as currently constituted the Committee lacks the authority to issue binding legal interpretations of the Covenant As a general matter, only states parties to a treaty are empowered to give a binding interpretation of a treaty and its provisions, unless the treaty expressly provides otherwise. Cf. Whiteman, Marjorie M., 14 Digest of International Law 361 (1970) (quoting Research in International Law (Harvard Law School). Dralt Convention on the Law of Treaties, Art. 19, Comment, 29 AJIL Supp. 937, 97576 (1935)). The Covenant does not so provide. This Committee was not constituted as a mechanism to render binding, or even authoritative, interpretations. See supra notes 101, 186–90 and accompanying text. Moreover, in explaining the purpose of its General Comments to ECOSOC in 1988, the Committee did not itself even claim such authority. See ESCR Committee, Report on the Second Session, paras. 367–69, UN Doc E/1988/13. In principle, states parties could, of course, vest such authority in the Committee by amending the Covenant, but in doing so would presumably assert rights of participation and approval in the articulation of the criteria by which their compliance with the Covenant would be judged. Absent such rights, the legitimacy of the criteria would be open to question. In this context, it is worth noting that ICESCR Article 19 provides that state parties may submit comments to ECOSOC on any general recommendations made by the Commission on Human Rights.

200 ESCR Committee, General Comment No. 4, The Right to Adequate Housing, UN Doc. E/l992/23 (1991), Annex III; see also ESCR Committee, General Comment No. 7, The Right to Adequate Housing: Forced Evictions, UN Doc. E/1998/22, Annex IV (1997).

201 ESCR Committee, General Comment No. 12. The Right to Adequate Food, UN Doc. E/C.12/1999/5.

202 ESCR Committee, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc.E/C.12/2000/4.

203 ESCR Committee, General Comment No. 15, The Right to Water, UN Doc. E/C.12/2002/11.

204 ESCR Committee, General Comment No. 13, The Right to Education, UN Doc. E/C. 12/1999/10; see also ESCR Committee, General Comment No. 11, Plans of Action for Primary Education, UN Doc. E/C. 12/1999/4.

205 The CHR special rapporteur on education, In her paper for the Working Group, suggested that it “explore the option of elaborating an optional protocol which would focus on those economic, social and cultural rights whose substance is also included In the millennium development goals.” UN Doc E.CN.4/2004/WG.23/CRP.4, para. 13.

206 ESCR Committee, General Comment No. 6, The Economic, Social and Cultural Rights of Older Persons, UN Doc. E/1996/22, Annex IV (1995).

207 ESCR Committee, General Comment No. 5, Persons with Disabilities, UN Doc. E/1995/22, Annex IV (1994).

208 General Comment No. 9, supra note 87, para. 10.

209 Id., paras. 3, 8 (respectively).

210 See, e.g., ICESCR Art. 11 (2) (a).

211 General CommentNo. 12, supra note 201, para. 15; General CommentNo. 14, supra note 202, para. 37; General Comment No. 15, supra note 203, para. 25.

212 General Comment No. 12, supra note 201, para. 15 (second emphasis added).

213 General Comment No. 3, supra note 15, para 2.

214 Id, para. 10. See also the ESCR Committee’s Statement to the Third UN Conference on Least Developed Countries, para. 15, UN Doc. E/C.12/2001/17, Annex VII (2002) [hereinafter Statement on Least Developed Countries].

215 In the Committee’s opinion, “[A] State party cannot justify its non-compliance with the core obligations set out . . . above, which are non-derogable.” General Comment No. 15, supra note 203, para. 40.

216 General Comment No. 14, supra note 202, para. 43(b)–(e).

217 Id., para. 47 (emphasis added).

218 General Comment No. 12, supra note 201, para. 32; General Comment No. 14, supra note 202, para. 59; General Comment No. 15, supra note 203, para. 55; cf. General Comment No. 9, supra note 87, para. 4.

219 As one scholar has put it, “To have a right to x is to be entitled to x. It is owed to you, belongs to you in particular. And if x is threatened or denied, right-holders are authorized to make special claims that ordinarily ‘trump’ utility, social policy, and other moral or political grounds for action.” Donnelly, supra note 21, at 8 (citing Ronald Dworkin, Taking Rights Seriously, at xi, 90 (1977)). This orientation was endorsed, reinforced, and encouraged by the so-called 1986 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17, annex (1987), reprinted in 9 Hum. Rts. Q. 122 (1987), and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), in 20 Hum. Rts. Q. 691 (1998) (both of which have been reprinted in UN Doc. E/C.12/2000/13). The Limburg Principles and Maastricht Guidelines resulted from conferences convened by the International Commission of Jurists, and purported to provide an authoritative “gloss” on the ICESCR for the benefit of the Committee. The Maastricht Guidelines further called for the adoption of the optional protocol for the ICESCR. Id., para. 31. See also the so-called Quito Declaration on the Enforcement and Realization of Economic, Social, and Cultural Rights in Latin America and the Caribbean, para. 10 (1998), at <http://www.ciel.org/Publications/QuitoDeclaration.pdf> (“impunity in the face of severe violations of civil, political, economic, social, and cultural rights leads to the breakdown of the ethical values of our society, [making it] imperative that States organize judicial structures to determine the truth about violations, punish those responsible, and ensure reparations to the victims”), and the Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural Rights), UN Doc. E/CN.4/Sub.2/1997/8, paras. 142–43 (prepared by Sub-Commission Special Rapporteur El Hadji Guissé) (calling for the characterization of violations of economic, social, and cultural rights as international crimes subject to the principles of universal jurisdiction and urging adoption of an optional protocol).

220 We recognize that special recognition has been accorded these rights in other regional treaties. See, for example, Articles 16, 18, 22, 24, and 25 of the African Charter on Human and Peoples’ Rights June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982), and the African Commission on Human and Peoples’ Rights Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria), Case No. ACHPR/COMM/A044/1 (May 27, 2002), finding violations of the rights to health, environment, food, and housing, at <http://www.umn.edu/humanrts/africa/comcases/allcases.html>. The case is reported by Dinah Shelton at 96 AJIL 937(2002).

221 ICESCR Article 11(1) provides:

The States parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right . . . .

It is unclear exactly what is entailed by the obligation to ensure the continuous improvement of living conditions. A strict reading might suggest that a state could not levy a discriminatory tax on any group even if the aim was redistributional, since the rich are as entitled to the right to continuous improvement of living conditions as much as anyone else. See Robertson, supra note 91, at text accompanying note 40.

222 Whidam, H. F. E., representative of Australia, Statement, UN Doc. E/CN.4/SR.223, at 4 (1951).

223 The Soviet proposal to amend Article 25 of the Universal Declaration and to include, inter alia, a specific “right to housing” was rejected in the Commission by a vote of 6–4, with 3 abstentions, UN Doc. E/CN.4/SR. 71, at 4–12 (1948), and in the Third Committee of the General Assembly by a vote of 20–7, with 10 abstentions, UN Doc. A/C.3/SR.145, at 573–74 (1948).

224 CHR Report on 8th Session, supra note 126, paras. 129–30.

225 UN Doc. A/C.3/SR.739, para. 38 (1957). The representative of Guatemala (Mrs. Quan) stressed that it “was not intended that States should be directed to do anything specific; they would simply be expected to adopt measures, enabling the individual to obtain more easily what was essential to subsistence: food, clothing and housing.” Id., para. 9. Before the vote, the representative of Italy (Mr. Macchia) intervened to support the text, taking special account “of the explanation given by the Guatemalan representative, who had pointed out that rights of the type enunciated in article 11 were not exercised, but enjoyed,” and that” [i]n his opinion, the right recognized in Article 11 had the force of a principle binding as such on the States Parties to the Covenant, but not establishing an individual formal right, actionable in courts.” UN Doc. A/C.3/SR.743, para. 1 (1957).

226 UN Docs. A/C.3/SR.1232, para. 10 (1963) (FAO proposal), A/C3/SR.1269, paras. 1–2 (1963) (General Assembly adoption of revised article). FAO Director-General Sen observed that the international community had not achieved “the same success for economic and social rights” as it had with respect to civil and political rights, and that the “reason might be that the Universal Declaration did not include the right to freedom from hunger among the fundamental human rights.” UN Doc. A/C.3/SR.1266, para. 56 (1963).

227 Convention on the Rights of the Child, supra note 76, Art. 24(2) (c ).

228 Alston, Philip, International Law and the Right to Food, in Food as a Human Right 162, 167 (Asbjørn, Eide, Wenche, Barthe Eide, Goonatilake, Susantha, Gussow, Joan, & Omawale eds., 1984).

229 During the Commission’s negotiations of ICESCR Article 12, states adopted a U.S.-proposed amendment that added the words “ [t]he steps to be taken by the States Parties to the Covenant to achieve the full realization,” thereby making clear that Article 12 was subject to the progressive achievement principle in Article 2. CHR Report on 8th Session, supra note 126, para. 133. States rejected a proposal by Uruguay to require that each state party “undertake [] to provide legislative or other measures to promote and protect health.” UN Doc. E/CN.4/L.109, para. 2 (1952). The representative of Poland (S. Boratynski) insisted that the amendment would not “carry with it the conception of socialized medicine.” UN Doc. E/CN.4/SR.296, at 7 (1952). Mrs. Roosevelt asserted, however, that this type of provision would weaken “the cornerstone of the covenant” (that is, Article 2). Id. at 6. Similarly, the ESCR Committee’s recent views on social issues, such as its opposition to restrictive abortion laws, find no support in the text of the Covenant or in its negotiating history. See Concluding Observations of the ESCR Committee: Kuwait, paras. 23, 43, UN Doc. E/C.12/1/Add.98 (2004) (“the Committee recommends that the State party’s legislation on abortion include other motives [than protecting the life of the mother] for performing legal abortion”).

230 Declaration on Cities and Other Human Settlements in the New Millennium, GA Res. S-25/2, para. 8 (June 8, 2001), at <http://www.unhabitat.org/declarations/declaration_cities.asp> (adopted by the 25th Special Session of the General Assembly). During the negotiations, the Committee had contended (without success) that omitting any reference to the right to adequate housing (or to the Covenant, the Committee, or its General Comments) would “seriously undermine achievements made over the last decade at the national and international level in promoting the right to adequate housing.” ESCR Committee, Statement to the Special Session of the General Assembly, para. 6, UN Doc. E/C.12/2001/17, Annex XI. Similarly, the CHR has treated “adequate housing as a component of the right to an adequate standard of living.” CHR Res. 2004/21 (Apr. 16).

231 World Summit on Sustainable Development, Plan of Implementation, para. 40(a), UN Doc. A/CONF.199/20, at 6 (2002), at <http://www.unctad.org>. The Committee termed the negotiators’ actions “regressive.” ESCR Committee, Statement to the Preparatory Committee for the World Summit on Sustainable Development, para. 2, May 17, 2002, UN Doc. E/C.12/2001/17, Annex VI. At the World Food Summit in 1996, states reaffirmed “the right of everyone to have access to safe and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger.” Rome Declaration on World Food Security 1 (1996) (emphasis added), at <http://www.fao.org/wfs/index_en.htm>; see also Declaration of the World Food Summit: Five Years Later, para. 10, at <http://www.fao.org/worldfoodsummit/english/index.html>. For the most recent Cuban-sponsored UN resolutions on “the right to food,” see GA Res. 58/186 (Dec. 22, 2003) and CHR Res. 2004/19 (Apr. 16).

232 Final Report of the 3d World Water Forum (2003), at <http://www.world.water-forum3.com>. In 2002, the Commission had authorized a Sub-Commission study on the “right to drinking water supply.” CHR Dec. 2002/105 (Apr. 22).

233 GA Res. 55/2, para. 19 (Sept. 13, 2000). The goals are available at <http://www.un.org/millenniumgoals/>.

234 Id. The declaration also included a number of more general development goals such as achieving significant improvement in the lives of at least one hundred million slum dwellers by the year 2020.

235 International Conference on Financing for Development, Monterrey Consensus, para. 2, UN Doc. A/CONF.198/3, at 2, 2 (2002), available at <http://www.un.org/esa/ffd/>.

236 FAO, The State of Food Insecurity in the World 2003, at 5, 8 (2003), at <http://www.fao.org/publishing/>.

237 Diouf, Jacques, director-general of FAO, Political Dimensions of World Hunger, Address Delivered at Kennedy School of Government, Harvard University (Jan. 30, 2003), at <http://www.fao.org/english/dg/dgspeeches.htm>.

238 WHO, Statement to the Commission on Human Rights (Apr. 1, 2003) (on file with authors).

239 Gro, Harlem Brundtland, director-general of WHO, Statement to the 59th Commission on Human Rights (Mar. 20, 2003), at <http://www.who.int/dg/speeches/2003/commissionhumanrights/en/print.html>.

240 UNESCO, EFA Global Monitoring Report 2002: Is the World on Track? 15 (2002), at <http://www.unesco.org/education/efa/monitoring/>. Primary education for all was also treated as a development goal in the 1990 World Conference on Education for All (to be reached within a decade) and in the 2000 World Education Forum (to be reached by 2015). Both the 1990 World Declaration on Education for All and the 2000 Dakar Framework for Action are available at the UNESCO Web site, <http://www.unesco.org>.

241 EFA Global Monitoring Report 2002: Is the World on Track? supra note 240, at 22–25, 162–63.

242 Republic of South Africa v. Grootboom, 2001 (1) SALR 46 (CC), available at <http://www.concourt.gov.za>, a case brought by individuals rendered homeless by eviction and who invoked their right of “access to adequate housing” under Article 26 of the South African Constitution. The Constitutional Court stated:

Socio-economic rights must all be read together in the setting of the Constitution as a whole. The state is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing. Their interconnectedness needs to be taken into account in interpreting the socio-economic rights, and, in particular, in determining whether the State has met its obligations in terms of them.

Id., para. 24; see also Soobramoney v. Minister of Health, KwaZulu-Natal, 1998(1) SALR 765 (CC); Minister of Health v. Treatment Action Campaign, 2002 (5) SALR 721 (CC), para. 25. Grootboom and Treatment Action Campaign are discussed in a case report by Joan Fitzpatrick and Ronald Slye at 97 AJIL 669 (2003).

243 Another reason to reject a per se standard is that no government provides all of its citizens a fully adequate standard of living. However conceived, the proper function of a complaints procedure cannot be to hold every state party ipso facto guilty of violating its treaty obligations in respect of every complaint of deprivation. No useful function would thus be served. Nor is it logically or practically possible for any state to devote “the maximum of its available resources” to promoting the enjoyment of any one aspect of the rights in the Covenant to the detriment or. exclusion of the others.

244 General Comment No. 14, supra note 202, para. 43(f); General Comment No. 15, supra note 203, para. 37(f). Earlier, the Committee had taken a less strident approach. See, e.g., General Comment No. 4, supra note 200, para. 12 (1996), where the Committee asserted that the full realization of the right to adequate housing, while varying from one state party to another, “will almost invariably require the adoption of a national housing strategy which . . . defines the objectives for the development of shelter conditions, identifies the resources available to meet these goals and the most cost-effective way of using them.” Contrary to the Committee’s current position, only Article 14 of the ICESCR requires “a detailed plan of action for the progressive implementation, . . . of compulsory primary education free of charge for all” (emphasis added). During the negotiations, the UNESCO representative assured states that it “had considered that the article would not prevent States from amending their plans, as circumstances required and had made a very clear statement to that effect in . . . its commentary on the article.” Mr. Maheu, Statement, UN Doc.A/C.3/SR.790, para.4. (1957); UN Doc.E/CN.4/655/Add.4, annex, sec.I(c) (1952) (UNESCO commentary).

245 Even while recognizing the justiciability of certain economic rights, the South African Constitutional Court has acknowledged that they are resource dependent. See Grootboom, para. 46; Treatment Action Campaign, paras. 31–39.

246 Sen has observed that “no substantial famine has ever occurred in a democratic country—no matter how poor... because famines are extremely easy to prevent... and a government in a multiparty democracy with elections and free media has strong political incentives to undertake famine prevention.” Sen, supra note 25, at 51–52. It is commonly acknowledged, of course, that gross mistreatment of indigenous, minority, and other disfavored groups occurs worldwide. See also Wrongs, Righting, Economist, Aug. 18, 2001, at 18, 19–20 .

247 See, e.g., CHR Res. 2004/18 (Apr. 16) (“Effects of Structural Adjustment Policies and Foreign Debt”); CHR Res. 2004/24 (Apr. 16) (“Globalization”); CHR Res. 2004/22 (Apr. 16) (“Unilateral Coercive Measures”) (Apr. 16). All three resolutions reflect North-South splits.

248 India, Statement, supra note 80, at 2–3.

249 E/CN.4/2004/L.10/Add.l0, ch.X (vote); UN Doc. E/CN.4/2004/L.67/Rev.l (Saudi Arabian amendment).

260 See, e.g., Secretary-General’s Report to CHR, supra note 82, para. 35 (Cuba); UN Docs. E/CN.4/2000/49, at 4–5 (2000) (Georgia), E/CN.4/2004/WG.23/CRP.6, at 2 (Europe-Third World Centre and American Association of Jurists); Report on Workshop, supra note 10, para. 18.

251 ESCR Committee proposal, supra note 9, para. 14. Some members supported such a mechanism. See UN Docs. E/C.12/1991/4, para. 363, E/C.12/1992/SR.11, paras. 15, 28, 32, 43, E/C.12/1996/SR.19, para. 52, E/C.12/1996/SR.43, para. 8.

252 The interstate mechanisms of the 1960 UNESCO Convention Against Discrimination in Education (Article 8) and the Protocol thereto adopted in 1962 (Articles 19 and 20) have never been utilized by states. Only a limited number of state-to-state complaints have been filed under ILO Constitution Article 26. Resort to such mechanisms has been more attractive in the regional human rights systems, particularly under Article 24 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 222 (entered into force Sept. 3, 1953). See Nowak, supra note 176, at 583–87.

253 Turki, Al Madi, representative of Saudi Arabia, Statement, Feb. 23, 2004, at 2 (on file with authors); Working Group Report, supra note 3, para. 21.

254 During the debate the Committee’s experts acknowledged that cases concerning the “international dimension” “might arise.” Working Group Report, supra note 3, para. 45.

255 General Comment No. 12, supra note 201, para. 36 (referring to Arts. 2(1), 11, and 23). The Committee has repeatedly emphasized that states “should refrain at all times from imposing embargoes or similar measures” that “prevent the supply of... goods and services essential for securing” Covenant rights (in this case, water). General Comment No. 15, supra note 203, paras. 31–32; see also General Comment No. 8, The Relationship Between Economic Sanctions and Respect for Economic, Social and Cultural Rights, para. 9, UN Doc. E/C. 12/1997/8; General Comment No. 12, supra note 201, para. 37; General Comment No. 14, supra note 202, para. 41. The Commission’s special rapporteur on food concluded on the basis of similar reasoning that “the Security Council, in subjecting the Iraqi people to a harsh economic embargo since 1991, is in clear violation of its obligation to respect the right to food of the people in Iraq.” UN Doc. E/CN.4/2002/58, para. 123.

256 Statement on Least Developed Countries, supra note 214, para. 14; General Comment No. 15, supra note 203, para. 33 (respectively). In the Working Group discussions, India and Cuba also underscored the importance of holding transnational corporations accountable. India, Statement, supra note 80, at 2; Secretary-General’s Report to CHR, supra note 82, para. 35 (written submission of Cuba). See also thejudgment of the African Commission on Human and Peoples’ Rights in Decision Regarding Communication 155/96 (Social and Economic Rights Actum Center/Center for Economic and Social Rights v. Nigeria), Case No. ACHPR/COMM/A044/1 (May 27, 2002), where the Commission concluded that under the African Charter, the Nigerian government had a duty to monitor and control the activities of multinational corporations.

257 General Comment No. 14, supranote 202, para. 45 (endnote omitted); General CommentNo. 15, supra note 203, para. 38.

258 Under ICESCR Article 11, for example, states parties recognize the “essential importance of international cooperation based on free consent (emphasis added). See Alston & Quinn, supra note 15, at 191 (“on the basis of the preparatory work it is difficult, if not impossible, to sustain the argument that the commitment to international cooperation contained in the Covenant can accurately be characterized as a legally binding obligation upon any particular state to provide any particular form of assistance”); Craven, supra note 19, at 149.

259 See Concluding Observations of the ESCR Committee: Ireland, para. 38, UN Doc. E/C.12/1/Add.77 (2002); Concluding Observations of the ESCR Committee: Germany, para. 33, UN Doc. E/C.12/1/Add.68 (2001). By comparison, the Monterrey Consensus, supra note 235, para. 42, only “urge [d]developed countries that have not done so to make concrete efforts towards the target.”

260 See Concluding Observations of the ESCR Committee: Ireland, supra note 259, para. 37; Concluding Observations of the ESCR Committee: Germany, supra note 259, para. 31; accord General Comment No. 15, supra note 203, paras. 36, 60; General Comment No. 14, supra note 202, paras. 39, 64.

261 General Comment No. 15, supra note 203, para. 44(c); see also General Comment No. 14, supra note 202, para, 50; Concluding Observations of the ESCR Committee: Morocco, para. 15, UN Doc. E/C.12/1/Add.55 (2000); Concluding Observations of the ESCR Committee: Egypt, paras. 10, 14, 28, UN Doc. E/C.12/1/Add.44 (2000); Concluding Observations of the ESCR Committee: Mexico, para. 34, UN Doc. E/C.12/1/Add.41 (1999); Concluding Observations of the ESCR Committee: Argentina, para. 242, UN Doc. E/1995/22 (1994). To the same effect, see the Quito Declaration, supra note 219, para. 36:

A serious commitment to the obligations of the States with respect to [economic, social, and cultural rights] requires that commitments to pay external creditors must be subordinated to the duty of promoting full access to, and enjoyment of, economic, social, and cultural rights] by citizens, so that structural adjustment programs agreed upon with international financial organizations must be subordinated to social development and, in particular, to the eradication of poverty, the generation of full, productive employment, and the promotion of social integration mindful of gender and cultural diversity.

262 ICESCR Article 24 states that “[n]othing in the present Covenant shall be interpreted as impairing . . . the constitutions of the specialized agencies which define [their] respective responsibilities . . . in regard to matters dealt with in the present Covenant.” Significantly, the constitutions of the international financial institutions have been construed as precluding non-economic influences or political factors in decision making. See Articles of Agreement of the International Monetary Fund, Dec. 27, 1945, Art. V, sec. 3(a), 60 Stat. 1401, 2 UNTS 39; Articles of Incorporation of the International Bank for Reconstruction and Development, July 22, 1944, Arts. III, sec. 5 (b) & IV, sec. 10, 60 Stat. 1440, 2 UNTS 134, as amended, Dec. 16, 1965, 16 UST 1942, 606 UNTS 294; see generally Gianviti, supra note 86, para. 56 (“Neither by [the ICESCR’s] terms nor by the terms of the Fund’s relationship agreement with the United Nations is it possible to conclude that the Covenant is applicable to the Fund.”) (author is general counsel, IMF); Roberto Danino, general counsel of World Bank, Statement to Conference on Human Rights and Development (Mar. 1, 2004) (“We must work within the legal framework [and]. ..embrace the centrality of human rights to our work, without adopting a ‘rights-based approach.’“) (on file with authors).

263 The Monterrey Consensus and the World Summit on Sustainable Development emphasized that “[e]ach country has the primary responsibility for its own economic and social development,” and stressed the need to “ [u]se development frameworks that are owned and driven by developing countries.” Monterrey Consensus, supra note 235, paras. 6, 43; World Summit on Sustainable Development, Plan of Implementation, supra note 231, para. 146. In this regard, the World Bank Group and the IMF agreed in 1999 that nationally owned participatory poverty-reduction strategies should provide the basis of all concessional lending and debt relief under the enhanced Heavily Indebted Poor Country Initiative. The Monterrey Consensus, supra note 235, para. 4, did stress, in the context of the Millennium Development Goals, the need for a “new partnership between developed and developing countries” whereby international resources are mobilized to complement domestic resources harnessed through “sound policies, good governance . . . and the rule of law.” Similarly, President George W. Bush’s recent pledge of additional development assistance, through the establishment of the Millennium Challenge Account, aims to support projects in countries that exercise good governance (rooting out corruption, upholding human rights, and adherence to the rule of law as essential conditions for successful development), invest in the health and education of their people (schools, health care, and immunization), and pursue sound economic policies that foster enterprise and entrepreneurship, at <http://www.whitehouse.gov/infocus/developingnations/>. This approach captures the sense in which we understand states parties’ obligation under ICESCR Article 2.

264 Working Group Report, supra note 3, para. 74.

265 Higgins, Rosalyn, The United Nations: Still a Force for Peace, 52 Mod. L. Rev. 1, 89 (1989).

266 Id. at 9. She identified a number of issues relevant to consideration of the optional protocol:

Does the interpretation under the prior or later treaty prevail? Does an interpretation given under a one topic treaty have greater authority than interpretation given of a specific right under a more general treaty? Is the integrity of each treaty to be protected by each body carefully not looking beyond its own jurisprudence in any given subject area? Is the authority and standing of any one interpreting body to be weighed against the authority and standing of any other interpreting body?

Id. at 8.

267 Effective Implementation of UN Human Rights Instruments, para. 128, UN Doc. A/44/668 (1989).

268 Alston, supra note 126, at 100, 117, acknowledges that the drafters contemplated a “greatly enhanced role to be played by the agencies under the Covenant”—indeed, “the primary thrust of the implementation procedures [was] directed at the agencies.” For a discussion of the relationship between the United Nations and its specialized agencies, see UN Action in the Field of Human Rights, supra note 189, paras. 268–303.

269 See supra notes 161–75 and accompanying text.

270 See Alston, supra note 126, at 94.

271 Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Pt. IA), International Labour Conference, 91st Sess., at 28 (2003); see generally Samson, Klaus, The Standard-Setting and Supervisory System of the International Labour Organisation, in An Introduction to the International Protection of Human Rights 149, 15864 (Hanski, Raija & Suksi, Markku eds., 1997).

272 Article 24 of the ILO Constitution grants workers’ and employers’ organizations the right to submit to the ILO Governing Body a representation or complaint against any member state that, in its view, “has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party.” Under ILO Constitution Article 26, any member has the right to file a complaint with the International Labour Office if it is “not satisfied that any other member is securing the effective observance of any Convention which both have ratified.” See generally UN Action in the Field of Human Rights, supra note 189, paras. 2651–54; Samson, supra note 271, at 164–70; Lee Swepston, Human Rights Complaint Procedures of the International Labor Organization, in Guide to International Human Rights Practice 85, 90–95, 100–01 (Hurst Hannum ed., 3d ed. 1999).

273 The main element of the special complaints mechanism is the Governing Body Committee on Freedom of Association, which has examined more than 2, 100 cases since its creation in 1951. The digest of decisions can be found in the International Labour Organization ILOLEX database, at <http://www.ilo.org/ilolex/index.htm>. See generally Samson, supra note 271, at 170–74. See also Leary, Virginia A., Lessons from the Experience of the International Labour Organisation, in The United Nations and Human Rights 500, 58788 (Alston, Philip ed., 1992), for a discussion of the jurisdictional conflict in 1949 between the ILO and the United Nations regarding human rights. She concludes, “In retrospect it is difficult to regret that the ILO won the jurisdictional battle.” Id. at 588.

274 As Leary observed, “To most observers, this full participation of workers’ and employers’ representatives in the ILO is responsible for much of its success in adopting and implementing conventions. . . . It is unfortunate that an aspect of ILO human rights work which has proved to be particularly helpful is structurally incapable of duplication within the UN.” Leary, supra note 273, at 584–85; see also No Right to Complain, supra note 6, at 86–87 (“[T]he International Labor Organization (ILO) has been working since 1919 to develop and clarify the precise normative content of [ICESCR Articles 6 to 9]. It has used a variety of methods for that purpose but many of them have a strong ‘petition’ or complaints element about them.”).

276 ICESCR Articles 13 to 15 concerning the rights to education, culture, and scientific progress relate directly to the fundamental human rights aims of UNESCO and were adopted on the basis of a drafting proposal first made in 1951 by UNESCO’s director-general. See supra note 126 and accompanying text; see generally Alston, Philip, UNESCO’s Procedures for Dealing with Human Rights Violations, 20 Santa Clara L. Rev. 665, 66769 (1980).

276 UNESCO’s conventions and agreements, as well as a general discussion of its complaints procedures, are available at <http://www.unesco.org/general/eng/legal/index.shtml>. In 1953, UNESCO instituted a procedure for its executive director to examine complaints received from private persons or associations alleging human rights violations by states. UNESCO Doc. 30 EX/Decisions 11 (1953). Under that system, as revised in 1978, the Committee on Conventions and Recommendations (CCR) examines cases concerning violations of human rights in UNESCO’s field of competence, including the rights to education, to share in scientific advancement and to enjoy its benefits, to participate freely in cultural life, and to information, including freedom of opinion and expression as provided primarily in Articles 26 and 27 of the Universal Declaration and Articles 13 to 15 of the ICESCR. UNESCO Doc. 104 EX/Decisions 3.3 (1978). Cases involving “individual and specific” human rights violations are examined by the CCR in private, whereas “questions of massive, systematic or flagrant violations of human rights and fundamental freedoms” may be considered by UNESCO’s Executive Board and General Conference in public meetings. UNESCO Doc. 104 EX/Decisions 3.3, paras. 10, 15–18 (1978); see generally UNESCO Doc.l69 EX/CR/2 (2004); Alston, supra note 275, at 670–94. UNESCO also adopted dispute settlement mechanisms under its Convention Against Discrimination in Education, as well as through a Protocol (under the same convention) that entered into force in 1968 and instituted a Conciliation and Good Offices Commission responsible for facilitating settlement of any disputes arising between states parties. The instruments are available at <http://www.unesco.org/human_rights/hrad.htm>.

277 Report of the Committee on Conventions and Recommendations, para. 4(b), UNESCO Doc. 166 EX/45 Rev. (2003). In 1998, the UNESCO Executive Board reported that during its first twenty years, its CCR had handled some 460 communications and mat 274 of them have been settled. Summary of the Results of the Application of the Procedure Laid Down by 104 EX/Decision 3.3, UNESCO Doc. 154 EX/16, Annex II (1998). By comparison, the Human Rights Committee has resolved about 30 percent of its cases since 1976. See infra note 326 and accompanying text.

278 As discussed above, ICESCR Article 11 (2) was based upon a proposal by the FAO director-general, whereas Article 13 was based upon a proposal by the WHO director-general. See supra notes 126, 226 and accompanying text. With a regular budget of $749.1 million for the 2004–05 biennium, the FAO employs more than 3, 450 professional and general service staff, and maintains 5 regional offices, 5 subregional offices, 5 liaison offices, and 78 country offices in addition to its headquarters in Rome. See What Is the FAO? at <http://www.fao.org>. The WHO has a regular UN budget of $880 million for the 2004–05 biennium and boasts a secretariat staffed by some 3, 500 health and other experts and support personnel, who work at its headquarters in Geneva and in its 6 regional offices and 141 representative offices worldwide. See Overview of WHO, at <http://www.who.int/about/overview>. Both secretariats assist states throughout the world in carrying out various functions, including setting, validating, monitoring, and pursuing the proper implementation of norms.

279 See UN Action in the Field of Human Rights, supra note 189, paras. 285–89, 299–303, 1202–32, 1240–46, for a general discussion of the human rights work of the FAO and WHO.

280 The ILO has the lowest regular budget of the four specialized agencies—$529.6 million for the 2004–05 biennium. For a discussion of the ESCR Committee’s budget, see infra notes 316–19 and accompanying text.

281 Alston, supra note 126, at 82 (footnotes omitted).

282 Independent Expert 2002 Report, supra note 10, para. 32. As noted above, the Committee’s aggressive interpretation of the ICESCR has already brought it into conflict with decisions taken by the World Bank and the IMF concerning their lending policies, credit agreements, and structural-adjustment programs. See supra notes 260–62 and accompanying text. The Committee has also made clear its position that actions taken by the WTO (particularly “the negative consequences of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)”) and World Intellectual Property Organization conflict with the ICESCR and that those organizations should be “held to account.” Statement by the ESCR Committee on Human Rights and Intellectual Property, para. 10, UN Doc. E/C.12/2001/17, Annex XIII; Statement by the Committee to the Third Ministerial Conference of the WTO, para. 4, UN Doc. E/C. 12/1999/9.

283 For example, the Human Rights Committee has construed ICCPR Article 26 as a free-standing “nondiscrimination” guarantee, the equivalent of a general equal protection clause not limited to the particular civil and political rights enumerated in the ICCPR. That article provides that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination, on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.” See Higgins, supra note 265, at 6–7.

284 Working Group Report, supra note 3, para. 38.

285 General Comment No. 13, supra note 204, para. 14.

286 UN Doc. E/CN.4/2004/WG.23/CRP.4, para. 1 (c). The special rapporteur went on to explain:

The explicit wording of the ICESCR regarding secondary and higher education has been affected by the advent of trade in education services and the corresponding change in practice of states [whereby] post-compulsory education may entail the payment of tuition and other charges. This practice is contrary to the explicit wording of the ICESCR, which anticipated that the right to education would be realized progressively, ensuring all-encompassing free and compulsory education as soon as possible, and broadening post-compulsory education as circumstances permit.

Id., para. 10(b).

287 Id., para. 8.

288 See supra note 86 and accompanying text.

289 Working Group Report, supra note 3, para. 36.

290 Higgins, supra note 265, at 7–8. She explained that “it is objectively the case that what may be an appropriate and sensitive interpretation for the Western European democracies is not necessarily so for a global system embracing highly diverse political and economic systems.”

291 Article 20 of the European Social Charter, Oct 18, 1961, ETS No. 35, established an “à la carte” system under which ratifying states are free to choose by which rights (above a minimum) they consider themselves to be bound. This flexibility has been retained under the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Nov. 9, 1995, ETS No. 158. Both of the above instruments are available at <http://www.coe. int>. Although the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, at <http://www.oas.org>, guarantees a number of rights not articulated in the American Convention on Human Rights itself, Nov. 22, 1969, 1144 UNTS 123, the Protocol expressly admits individual petitions (under Article 19(6)) only for violations of trade unionization rights (Article 8(1) (a)) and the right to education (Article 13). See generally Meush, Tara, Protecting Economic, Social and Cultural Rights in the Inter-American Human Rights System: A Manual on Presenting Claims (2002). By comparison, die African Charter on Human and Peoples’ Rights, supra note 220, was the first international human rights treaty to integrate civil, political, economic, social, and cultural rights in a single instrument. See supra notes 220, 256.

292 For example, the Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria), Case No. ACHPR/COMM/A044/1 (May 27, 2002), was in large part based on the African Commission’s having found a violation of the right to a “satisfactory environment,” which is included among the general guarantees in Article 24 of the African Charter. States have not recognized this right in the ICESCR or in international practice. See Dennis, Michael J., The Fifty-second Session of the UN Commission on Human Rights, 91 AJIL 167, 17273 (1997).

293 See Working Group Report, supra note 3, para. 74.

294 This obligation is even clearer in light of the secretary-general’s recent comment concerning the “growing complexity” of the United Nations’ human rights machinery, particularly the treaty bodies, and his having noted that “the benefits of the current system are not always clear.” Report of the Secretary-General, Strengthening of the United Nations: An Agenda for Further Change, para. 52, UN Doc. A/57/387 (2002).

295 Several states raised these concerns during the Working Group negotiations. Sweden, for example, in its paper for the working group, cited the secretary-general’s report on strengthening the United Nations, see id., and asserted that the problems with the present system of human rights treaty bodies should be “corrected before new mechanisms are put in place.” Secretary-General’s Report to CHR, supra note 82, para. 40. Sweden further stated that it “is seriously concerned about the lack of resources to serve the human rights treaty bodies, including in handling individual complaints which requires enhanced professional secretariat resources.” Id.

296 Working Group Report, supra note 3, para. 26.

297 See supra notes 101, 186–90 and accompanying text.

298 The UN Office of Legal Counsel reached this conclusion in a report submitted to ECOSOC in response to ECOSOC Resolution 1996/38 of July 26, 1996. UN Doc. E/1996/101, paras. 6, 18 (“the conclusion of an additional protocol in order to establish a treaty-based human rights monitoring body would also entail amendment of the Covenant in order to, inter alia, define the new role of [ECOSOC], if any, once the treaty-based monitoring body was established”). For the Committee’s views, see UN Doc. E/C.12/1996/SR.27, paras. 24–25.

299 The UN Office of Legal Counsel noted the availability of this option in concluding that ECOSOC did not have the independent authority to establish a complaints mechanism by resolution. Opinion of Zacklin, Ralph, Assistant Secretary General for Legal Affairs, Legal Status of ESCR Committee 2 (Mar. 2, 2004) (on file with authors).

300 Initially, the ESCR Committee’s draft text included a transitional provision that would have come into force if ECOSOC decided to abolish the Committee. UN Doc. E/C.12/1994/12, para. 18. The subject was dropped after one member asked “whether it was wise for the Committee to envisage its own abolition... [a]t a time of financial crisis in the United Nations.” Zambrano, Wimer, Statement, UN Doc. E/C.12/1996/SR.48, at para. 20 (1997).

301 Independent Expert 2002 Report, supra note 10, paras. 39–44.

302 See infra note 320 and accompanying text.

303 ESCR Committee proposal, supra note 9, para. 12(c). Not all Committee members endorsed this position.

See e.g., Grissa, Abdessatar, Statement, UN Doc. E/C.12/1996/SR.43, para. 13 .

304 See supra note 31. The CEDAW Optional Protocol, which provides for an individual-complaints mechanism, entered into force only on December 22, 2000. As of January 30, 2004, sixty states were parties to the Protocol. The Committee has recently appointed a five-member working group on communications and, as of January 3, 2004, had registered three communications. Information concerning the Protocol is available at <http://www.un.org/womenwatch/>. Additionally, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, which entered into force July 1, 2003, includes provisions for both interstate and individual-communications procedures. Pursuant to Articles 76 and 77 of the Convention, however, both procedures require ten declarations by states parties in order to enter into force. To date, no state has made the necessary declaration with respect to either procedure. Information concerning the Convention is available at <http://www.unhchr.ch>.

305 To be sure, submission of complaints to the treaty bodies as a group is increasing. Whereas only 50 cases were registered with the three treaty bodies in 1993, 143 cases were registered in 2002. Methods of Work Relating to the State Reporting Process, para. 11, UN Doc. HRI/ICM/2003/3 (background document prepared by the Secretariat).

306 Bayefsky, Anne F., The UN Human Rights Treaty System: Universality at the Crossroads 105 (2001).

307 Id. at 105–08.

308 This information about complaints and violations is drawn from the Web site of the UN Office of the High Commissioner for Human Rights, <http://www.unhchr.ch/html/menu2/complain.htm#conv>, as of June 6, 2004. The office provides the support functions for these treaty bodies.

309 The Human Rights Committee registered an average of sixty-two new cases annually during the period 1997–2001. Report of the Human Rights Committee 2002, vol. 1, para. 95, UN Doc. A/57/40 (2002) [hereinafter Human Rights Committee 2002 Report].

310 Bayefsky, supra note 306, at 25; UN Doc. E/CN.6/1997/4, para. 93.

311 Bayefsky, supra note 306, at 25. According to the Human Rights Committee, finalized decisions are now adopted within slightly more man twenty-four months of receipt. Follow-up to the Recommendations of the Thirteenth Meeting of Chairpersons, para. 22, UN Doc. HRI/MC/2002/2, para. 22.

312 Bayefsky, supra note 306, at 25; UN Doc. E/CN.6/1997/4, para. 94.

313 Bayefsky, supra note 306, at 133.

314 ESCR Committee, Report on the Twentieth and Twenty-first Sessions, at 9, UN Doc. E/C12/1999/11 (“Under the current arrangements of two three-week sessions each year, the Committee is able to consider no more than 10 reports annually . . . . “ ) . During the last two years, the Committee has held two sessions each year, reviewing five states at each session. ESCR Committee, Report on the Twenty-eighth and Twenty-ninth Sessions, paras. 62–65, UN Doc. E/C. 12/2002/13 [hereinafter ESCR Committee 2002 Report]; ESCR Committee, Report on the Thirtieth and Thirty-first Sessions, paras. 60–63, UN Doc. E/C.12/2003/CRP.1.

315 All of me treaty bodies have experienced substantial difficulties in reviewing implementation reports on a timely basis, but the ESCR Committee’s record is especially poor. It has been estimated that in 1999, of all the bodies reviewing reports of states parties, the Committee had the highest average interval between the submission and consideration of reports—2.6 years. Bayefskv, supra note 306, at 223–29. As of March 15, 2002, approximately 1, 300 state party reports (under the various treaties) were overdue, and of those, more than 500 had been overdue for more than five years. To put this backlog in context, the six treaty bodies collectively examine about 100 reports per year. Methods of Work Relating to the State Reporting Process, para. 23, UN Doc. HRI/ICM/2002/2 (background document prepared by the Secretariat). The secretary-general earlier noted that “the most extreme case” concerned the ICESCR, where “over 40 per cent of the States parties . . . have failed to submit even their initial reports.” Effective Functioning of Human Rights Mechanisms: Treaty Bodies, para. 60, UN Doc. E/CN.4/2000/98. As of June 6, 2004, 92 of 149 states parties to the ICESCR had one or more overdue reports. See <http://www.unhchr.ch> for the most recent data on state reporting practices under the various human rights treaties, including the ICESCR.

316 The Independent Expert on enhancing the long-term effectiveness of the UN human rights treaty system (Philip Alston) concluded that “the present system is unsustainable,” in part because the “resources available to service [the] sizeable expansion in the system have actually contracted rather than expanded.” Final Report on Enhancing the Long-Term Effectiveness of the United Nations Human Rights Treaty System, paras. 7(f), 10, UN Doc. E/CN.4/1997/74 (1996); see generally Schmidt, Markus, Servicing and Financing Human Rights Supervision, in The Future of UN Human Rights Treaty Monitoring, 481, 48287 (Alston, Philip & Crawford, James eds., 2000).

317 In its written comments concerning the optional protocol, the UN Office of Legal Counsel noted that the “benefits of adding a new and major function ... should also be assessed in light of the potentially considerable increase in workload and the unlikely prospect of a proportional increase in the financial resources available to it.” UN Doc. E/CN.4/1998/84, at 7.

318 The educational and professional backgrounds of the Committee members are available at <http://www.unhchr.ch/tbs/doc.nsf/Committeefrset/>.

319 Bayefsky, supra note 306, at 126.

320 Independent Expert 2002 Report, supra note 10, para. 39. One scholar agrees: “It is unrealistic to expect that [a single, part-time treaty body] can both handle individual cases in a timely manner from a broad range of states, with an even wider range of problems, and at the same time consider state reports in a timely manner, as well as states in the absence of reports.” Bayefsky, supra note 306, at 26. A similar conclusion was reached in the deliberations leading to the adoption of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, Dec. 18, 2002, 42 ILM 26 (2003), where states formed an entirely new body to conduct inspections separate from the Committee Against Torture. See Dennis, Michael J., Human Rights in 2002: The Annual Sessions of the UN Commission on Human Rights and the Economic and Social Council, 97 AJIL 364, 37174 (2003). Alston criticized the proposal, arguing that it “would contribute very significantly to me further proliferation of instruments and committees” and recommending, instead, that consideration should be given to consolidation of the treaty bodies into “one or perhaps two new treaty bodies.” Final Report on Enhancing the Long-Term Effectiveness of the UN Human Rights Treaty System, supra note 316, paras. 80, 94–97.

321 See, e.g., Chapman, Audrey R., A “Violations Approach” to Monitoring Economic, Social and Cultural Rights, 18 Hum. Rts. Q. 23 (1996); Leckie, Scott, Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights, 20 Hum. Rts. Q. 81 (1998).

322 Advocates sometimes refer to this as the “name and shame” approach to promoting respect for human rights. See, e.g., Drinan, Robert F., The Mobilization of Shame (2001); Henkin, Louis, Human Rights: Ideology and Aspiration, Reality and Prospect, in Realizing Human Rights: Moving from Inspiration to Impact 24 (Power, Samantha & Allison, Graham eds., 2000).

323 See, e.g., Chapman, supra note 321, at 38 (the violations approach would render more effective one of the few “weapons” available to human rights monitors—namely the “stigma of being labeled a human rights violator”).

324 Bayefsky, supra note 306, at 7. More generally, we know little indeed about the actual effects of human rights treaties. For two recent forays into this important field, see Hathaway, supra note 23; Goodman, Ryan & Jinks, Derek, Measuring the Effects of Human Rights Treaties, 14 Eur.J. Int’l L. 171 (2003).

325 Article 46(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 252, gives the Committee of Ministers authority to ensure enforcement of any final judgment. That committee has rarely found it necessary to resort to political or diplomatic pressure to ensure the execution of judgments by states parties to the Convention. Report of the 13th Meeting of the Chairpersons of the Human Rights Treaty Bodies, para. 36, UN Doc. A/57/56 (2002).

326 Human Rights Committee 2002 Report, supra note 309, para. 225.

327 Id., para. 255.

328 The Committee’s comments accompanying the protocol state that a “strong minority favoured the adoption of a selective approach which would permit States to accept obligations only in relation to a specified range of rights. The minority considered that this could be achieved either through requiring States expressly to ‘opt out’ of provisions that they would need to identify at the time of becoming a party to the protocol or through enabling them to ‘opt in’ in relation to provisions which they would specify.” ESCR Committee proposal, supra note 9, paras. 26–28. For the positions of the Committee members favoring a selective approach, see UN Docs. E/C.12/1996/SR.43, paras. 18–19, 23, E/C.12/1996/SR.47, paras. 40, 45, 50–51, E/C.12/1997/SR.46/Add.1, paras. 50–51, 55. For the views of states supporting the selective approach, see Working Group Report, supra note 3, para. 65, and Argentina, Statement, Secretary-General’s Report to CHR, supra note 82, para. 33.

329 Working Group Report, supra note 3, para. 65.

330 See General Comment No. 3, supra note 15, para. 5, listing ICESCR articles that “would seem to be capable of immediate application in . . . many national legal systems”—including Articles 2 (nondiscrimination), 3 (equal rights of men and women), 7(a) (i) (equal pay for equal work), 8 (rights to form and join trade unions, and to strike), 10(3) (states “should” set age limits for child labor), 13(2)(a) (primary education compulsory and free for all), 13(3) (liberty of parents to chose schools), 13(4) (liberty to establish educational institutions), and 15(3) (freedom for scientific research). See supra note 158.

331 ESCR Committee member Eibe Riedel, citing the “comprehensive approach” adopted by the optional protocols to ICCPR and CEDAW, “strongly advised the working group against embarking on an article-by-article discussion of which rights should be subject to a complaints mechanism.” Working Group Report, supra note 3, para. 40. Of course, unlike the ICESCR, all other international human rights treaties providing for individual complaints (Torture Convention, Racial Discrimination Convention, and Optional Protocols to CEDAW and ICCPR) contain a common requirement that states parties adopt measures to give “immediate effect” to their obligations—which, in the vast majority of states, are enforceable in domestic courts. During the debate over CEDAW’s new Protocol, Human Rights Committee experts noted that “the availability of domestic remedies, including non-judicial remedies, was . . . essential and their sufficiency would be subject to review by a treaty body.” Report of the Open Ended Working Group on Elaboration of a Draft Optional Protocol to CEDAW, appendix, para. 5, UN Doc. E/CN.6/1996/15, Annex III.

332 Independent Expert 2002 Report, supra note 10, para. 34.

333 This argument was the main one advanced by ESCR Committee members favoring a comprehensive approach. See, e.g., UN Docs. E/C.12/1996/SR.43, para. 21 (“Although the Committee had in the past attached greater importance to some rights than to others, no hierarchy of rights could be drawn u p . . . . [T]he problem was that almost every right had both a justiciable and a non-justiciable aspect.”) (statement of Philip Alston), E/C.12/1996/SR.46/Add.1, para. 52 (1996) (“the Committee had a philosophy to defend, to the effect that all the rights recognized in the Covenant were equally important”) (statement of Mr. Simma). During the Working Group debate, states and Committee experts supporting a comprehensive approach expressed similar views. Working Group Report, supra note 3, paras. 47, 66.

334 Independent Expert 2002 Report, supra note 10, para. 34 (emphasis added).

335 The option was briefly considered during ESCR Committee discussions. Alston noted that “it was well-known that where [gross violations] occurred the State parties concerned often did not report and would be unlikely to comply with an optional protocol.” UN Doc. E/C.12/1996/SR.45, para. 10. He also expressed the view that it would be “discriminatory since it would mainly target the developing countries where such violations tended to occur.” Id.

336 The existing treaty bodies lack authority to dismiss complaints either as “de minimus” or without a written explanation.

337 It could also be that the Independent Expert was referring to the authority provided under Article 20 of the Torture Convention and Articles 8 to 9 of the CEDAW Optional Protocol to conduct inquiries or visits concerning allegations of systematic or gross violations of treaty rights. Again, this option was not addressed during the Working Group debate. Some commentators have noted that the Committee already has conducted inquiries/visits under its present authority. See Arambulo, supra note 12, at 197–98.

338 Extreme poverty and lack of social and economic development unquestionably constitute a threat to mankind. As President Bush has said, “A world where some live in comfort and plenty, while half of the human race lives on less than $2 a day is neither just nor stable.” Bush, George W., Remarks to World Bank (July 17, 2001), at <http://www.whitehouse.gov/news/releases/2001/07/20010717-l.html>; see Bruni, Frank, Bush Urges Shift to Direct Grants for Poor Nations, N.Y. Times, July 18, 2001, at A1 .

339 See UN Development Programme, Human Development Report 2003, at 34, at <http://hdr.undp.org>, reporting that fifty-four countries are poorer today than they were in 1990; that in twenty-one, a larger proportion of the population is going hungry; and that in fourteen, more children are dying before age five. Some 42 million people live with HIV/AIDS. Id. at 97.

340 Id. at 146–47.

341 As Michael Ignatieff notes, “Human rights is a language of individual empowerment.” Michael Ignatieff, Human Rights as Politics and Idolatry 5 7 (2001). Ignatieff also acknowledges that human rights is “an account of what is right, not an account of what is good,” id. at 55, and that” [w]hen political demands are turned into rights claims, there is a real risk that the issue at stake will become irreconcilable, since to call a claim a right is to call it nonnegotiable, at least in popular parlance,” id. at 20.

342 Cf. Upendra Baxi’s discussion of the “haunting ambiguities of human rights” in The Future of Human Rights 5–13 (2002).

* Both have extensive experience in the field of human rights. The views expressed herein are solely those of the authors.

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Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?

  • Michael J. Dennis (a1) and David P. Stewart (a1)

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