Challenging State Practice

As indicated in section 2, the significance of CESCR doctrine for human rights law cannot be adequately assessed by relying solely on abstract ideas of clarity and doctrinal plausibility. The formation of CESCR soft law is a political process that must be understood as shaped by both political and doctrinal challenges. We need to place the development of CESCR doctrine in its political context.

Justiciability and violationism

The specific efforts to reconstitute (as opposed to merely articulate) state obligations under the ICESCR is partly driven by the institutional agenda pursued by the Committee. The reform of its monitoring regime (which would establish an individual complaints mechanism) has been a strategic objective for the Committee from the beginning. The CESCR formulated a formal proposal for an Optional Protocol to the ICESCR as early as 1992, and four separate reports on the Protocol were drafted in 1996.84 The powers of the Human Rights Committee were envisaged as the model for improved and enhanced monitoring for the CESCR/5 The undercurrent of this agenda has always been the controversy regarding the justiciability of economic and social rights/6 A complaint mechanism under the ICESCR is eminently implausible without gaining the upper hand in this debate. The Committee’s agenda could not succeed without demonstrating the doctrinal plausibility of subjecting the implementation of economic and social rights to judicial or quasi-j udicial review, which is resolutely denied by many governments.[1] [2] [3] [4] [5] [6] [7] General Comments have been explicitly used to flesh out a doctrinal vision that accommodates the Committee’s stance on justiciability.88 The emphasis has shifted markedly towards identifying the aspects of economic and social rights that lend themselves to review procedures. This has meant explicitly arguing that at least some rights in the ICESCR are readily justiciable^9 as well as showing that economic and social rights give rise to determinate obligations. This explains the pivotal role of ‘minimum core obligations’ and the ‘tripartite classification’ in CESCR doctrine: they serve to demonstrate that it is feasible to specify distinct responsibilities for implementing economic and social rights in review processes.

However, the institutional agenda is not the only factor determining the political dynamics here. The Committee has also sought to develop closer cooperation with NGOs,9° which involved adjusting its doctrinal work to the agenda of mainstream human rights activism. As indicated in section 1, this meant facilitating the ‘naming and shaming’ of those who breach economic and social rights.91 Crucially, the CESCR institutional agenda on justiciability and the commitment to bolstering NGO activism have interacted in specific ways within CESCR soft law. The efforts to clarify state obligations focus on improving the possibility of declaring clear violations of economic and social rights.92 CESCR doctrine has thus taken on a ‘violationist’ character.

Of course, the ability to define violations is an important test for the clarity of legal obligations anywhere. What makes the focus on violations problematic is that the Committee was not merely articulating the implications of set obligations. As we have seen, CESCR General Comments are not simply manifestations of treaty norms and state practice^3 The Committee set out to reconstitute state obligations with a view to sharpening and broadening our understanding of violations of economic and social rights. And, in the process, it has moved away from the cooperative model of monitoring that underlies its legal mandate. This unilateralism turns its ‘violationism’ into ‘violationist bias’, raising issues about the legitimacy of the Committee’s doctrinal work. Is it acceptable for the Committee to create soft law with the aim of unilaterally imposing normative expectations on states parties?

  • [1] M. J. Dennis and D. P. Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: ShouldThere be an International Complaints Mechanism to Adjudicate the Rights to Adjudicate the Rightsto Food, Water, Housing, and Health?’, American Journal of International Law vol. 98 (2004): 472—3.
  • [2] CESCR (1998) General Comment 9 (‘The Domestic Application of the Covenant’) UN Doc.E/C. 12/1998/24, s. 10.
  • [3] CESCR (n. 26) s. 5. The Committee specifically refers to the justiciability of non-discrimination
  • [4] provisions in ICESCR Arts 3, 7(a)(i), and 10(3), as well as the availability of compulsory and free pri
  • [5] mary education in Art. 13(2)(a) and the freedom to establish educational institutions in Art. 13(4).
  • [6] 9° Sepulveda (2003): 69-70. 91 Craven (1998): 83.
  • [7] 92 Dennis and Stewart (20 04). 93 Blake (2008): 27.
 
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