Michael J. Dennis and David P. Stewart
Economic, social, culture, rights, human rights, food, water, housing, health
This article aims to contribute to the task from several perspectives. First, we review the proposal and the views that have been presented by the Independent Expert and in the Working Group. We next examine the relevant negotiating background of the Universal Declaration of Human Rights (UDHR) and the two Covenants in order to assess the validity of some of the arguments put forward in support of a new complaints mechanism. We survey some of the Committee’s recent interpretive pronouncements, including on key aspects of the right to an adequate standard of living set forth in ICESCR Article 11 (specifically the rights to housing, food, and water) and the right to health under Article 12, in order to discern the likely leanings of the Committee under a complaints mechanism. We also examine the likely impact of the proposal on the work of various specialized agencies and identify some of the practical difficulties facing the operation of such a mechanism.
Our investigation leads us to question the proposal for an optional protocol on several levels. While shopworn opposition to economic, social, and cultural rights on “ideological” grounds should be abandoned, the argument that a new international adjudicative mechanism is necessary in order to validate those rights proceeds from equally dubious contentions. Formalistic demands that economic, social, and cultural rights must be treated the same as civil and political rights, and must therefore be “justiciable” in the same sense, are equally flawed. That case has not been made.
From the outset, and for good reason, economic, social, and cultural rights, unlike civil and political rights, have been defined primarily as aspirational goals to be achieved progressively. The drafters of the UDHR and the two Covenants well understood the difficulties and obstacles relating to justiciability. The decision to put the two sets of rights in different treaties with different supervisory mechanisms was well considered, and the underlying reasons for those distinctions and decisions appear to remain valid today. Their different treatment in no way disqualified economic, social, and cultural rights as rights or relegated them to a lower hierarchical rung. It did reflect an assessment of the practical difficulties that states would face in implementing generalized norms requiring substantial time and resources.
(2004) 98 American Journal of International Law 462