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Soft Law, Doctrinal Development, and the General Comments of the UN Committee on Economic, Social and Cultural Rights

Matyas Bodig

Introduction

UN treaty bodies in the human rights field (such as the Human Rights Committee or the Committee on the Elimination of Racial Discrimination) regularly publish ‘General Comments’ or ‘General Recommendations’ that elaborate on the substantive provisions of the respective human rights treaties.1 These documents can be usefully analysed as an aspect of the communication and cooperation between states parties and treaty bodies.2 General Comments are closely associated with the processing of periodic state reports, as they set out general guidance to states parties on the information to be included in state reports. General Comments are auxiliary to treaty obligations, and in themselves not binding on states parties. These features make General Comments paradigmatic examples of soft law in the human rights field. They comfortably fit the criteria typically used in the literature for identifying soft law3—including those set out in the Introduction to this volume. While their role and main characteristics may not appear particularly controversial, they can raise difficult theoretical or legal challenges and, as we will see, have the potential to generate considerable doctrinal and political tensions.

This chapter will focus on the General Comments of the UN Committee on Economic, Social and Cultural Rights (CESCR). Although some points made here

  • 1 See e.g.: Human Rights Committee, General Comment 6 (‘The Right to Life’) UN Doc. HRI/ GEN/1/Rev.1 at 6 (1994).
  • 2 The UN Office of the High Commissioner for Human Rights itself characterizes General Comments along these lines. See: .
  • 3 See e.g.: A. Boyle, ‘Soft Law in International Law-Making’, in International Law, ed. M. Evans (Oxford: Oxford University Press, 2010): 128; D. Shelton, ‘Law, Non-law and the Problem of “Soft Law” ’, in Commitment and Compliance: The Role of Non-binding Norms in the International System, ed. D. Shelton (Oxford: Oxford University Press, 2003): 10—13; C. Chinkin, ‘Normative Development in the International Legal System’, in Commitment and Compliance: The Role of Non-binding Norms in the International System, ed. D. Shelton (Oxford: Oxford University Press, 2003): 25—31.

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

are applicable to General Comments across the UN human rights system, CESCR practice will here be analysed in light of challenges specific to the task of implementing the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Even though their manifest function concerns the mere articulation of treaty- based obligations, General Comments are important factors in normative development. General Comments offer the opportunity of securing a foothold within the UN system for more progressive interpretations of human rights norms. As they do not fall under the rigid procedural rules of treaty-making, and are formulated by relatively small expert bodies, they can be more responsive to the ever-shifting challenges of human rights protection. They can trigger gradual changes in the attitudes of key agents (and the states parties in particular) towards human rights problems. CESCR General Comments provide some of the best examples of this dynamic. Due to the deficiencies of the ICESCR (discussed in section 4.2) and the scarcity of relevant domestic jurisprudence,[1] [2] clarifying the content of economic and social rights has always required more than a mere articulation of existing hard law. The CESCR acted as a trailblazer for doctrinal innovations that profoundly shape the parameters for the contemporary interpretations of economic and social rights.

The analysis of soft law in this chapter will have a distinctive focus: the contribution of CESCR soft law to ‘doctrinal development’5 in the human rights field. This means emphasizing the ‘doctrinal aspect’ of human rights documents: how their content and rationale is captured in terms of normative concepts and principles internal to professional legal discourses. Importantly for us, it is by choosing characteristic normative concepts and principles for the purposes of the documents it issues that a particular body can determine its own ‘doctrinal profile’. In this sense, the conceptual arsenal used by the CESCR in its General Comments determines the ‘doctrinal profile’ of the Committee, hereinafter abbreviated as the ‘CESCR doctrine’. In such a context, ‘doctrinal development’ denotes adjustments in the conceptual arsenal used by human rights bodies necessitated by the changing institutional environment and the shifting challenges of human rights implementation. We will refer to the conceptual devices ‘produced’ by this development as ‘doctrinal constructs’ or ‘doctrinal devices’. Thus, for example, we can describe the concept of ‘minimum core obligation’ as a ‘doctrinal construct’. From this perspective, the success of doctrinal development at a particular human rights body is measured by its influence on the doctrinal work of other international bodies, the human rights scholarship agenda, the discourse of human rights activism, and ultimately the subsequent development of binding international law.

This chapter progresses from general to specific issues. Section 2 offers a clarification of some additional general points regarding soft law and the inherent qualities of CESCR General Comments. The more specific analysis begins with an exploration of the ways in which the characteristic doctrinal constructs of CESCR soft law are formed. As we will see, the CESCR has made its mark on human rights law primarily by developing a series of obligation-related concepts.[3] Section 3 will single out two of those concepts for more detailed analysis: ‘minimum core obligations’ and the ‘tripartite classification of State obligations’ (‘respect’, ‘protect’, and ‘fulfil’). Importantly, the consideration of these doctrinal devices also aids our understanding of how human rights scholarship influences CESCR soft law. CESCR General Comments have often served as a channel through which conceptual devices developed by human rights scholars have been incorporated into human rights law.

A discussion of the doctrinal constructs of CESCR soft law may yield important insights into normative development in the field of human rights. However, the characteristic dynamics of this development cannot be adequately understood without examining in further depth the political tensions surrounding the doctrinal work of the CESCR. Doctrinal development is not only an intellectual exercise, illustrating the influence exerted by different systematic conceptions of the normative implications of human rights; it is also a political process. As we will see in section 4, in the case of CESCR soft law, the political process is driven by the Committee’s own institutional agenda and the characteristic methods of contemporary human rights activism. As a result, CESCR soft law generates a particular kind of doctrinal development that to an extent clashes with the original doctrinal design of the ICESCR. Instead of contributing to the consolidation of successful models of implementing economic and social rights (and thereby focusing on the systemic aspects of ICESCR implementation), the CESCR shifted the emphasis to facilitating the ‘naming and shaming’ of violators of economic and social rights.[4] It will be argued that this has led to a ‘violationist bias’ in CESCR soft law. As a result, CESCR General Comments are stretching the institutional competence of the Committee, and raise questions about the very legitimacy of CESCR doctrine. The overall contribution of CESCR General Comments to human rights law will be assessed in light of this issue of legitimacy.

It should be borne in mind that complications regarding the legitimacy and doctrinal plausibility of CESCR doctrine are a particularly pressing concern now that the Optional Protocol to the ICESCR has entered into force, marking the conclusion of a decades-long struggle by the Committee to strengthen its monitoring powers. We face more acute questions in terms of the range of normative sources the CESCR can rely on when operating the newly established complaints mechanism. Whether the CESCR will be able and willing to rely on its General Comments in its communications on individual complaints is a pressing issue. However, such questions are set aside in this chapter. With very little CESCR case law available yet,[5] any attempt at an answer would be needlessly speculative. But our analysis is very much motivated by the realization that the changing institutional landscape of CESCR practice renders the next few years hugely important in terms of the future of the Committee, and its soft law in particular.

  • [1] P. Alston, ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic,Social and Cultural Rights’, Human Rights Quarterly vol. 9 (1987): 351—2. It must be noted thatthere has been an encouraging accumulation of domestic jurisprudence on economic and social rightsof late: D. Landau, ‘The Reality of Social Rights Enforcement’, Harvard International Law Journalvol. 53 (2012): 189; K. Young, Constituting Economic and Social Rights (Oxford: Oxford UniversityPress, 2012).
  • [2] This is where the present analysis overlaps with my work on the character of doctrinal knowledgeand legal scholarship. See: M. Bodig, ‘Legal Theory and Legal Doctrinal Scholarship’, Canadian Journalof Law and Jurisprudence vol. 23 (2010): 494—9; M. Bodig, ‘Doctrinal Knowledge, Legal DoctrinalScholarship and the Problem of Interdisciplinary Engagement’, in Stateless Law: Evolving Boundaries ofa Discipline, ed. H. Dedek and S. van Praagh (Ashgate: Oxford, 2015): 62—4.
  • [3] M. Bodig, ‘Doctrinal Innovation and State Obligations: The Patterns of Doctrinal Developmentin the Jurisprudence of the UN Committee on Economic, Social and Cultural Rights’, in HumanRights Protection in Global Politics: Responsibilities of States and Non-state Actors, ed. D. Karp andK. Mills (Palgrave MacMillan: London, 2015).
  • [4] Some argue that, when it comes to economic and social rights, human rights activists are onlyreally good at ‘naming and shaming’. See: K. Roth, ‘Defending Economic, Social and CulturalRights: Practical Issues Faced by an International Human Rights Organization’, Human RightsQuarterly vol. 26 (2004): 67.
  • [5] To be more exact, the Committee has so far decided on the merits of one single complaint. Thiswas in a June 2015 case from Spain concerning the right to housing (more specifically the obligation ofstates parties to provide for effective remedies in foreclosure procedures related to defaulting on mortgage payments). See: IDG v Spain, Communication No. 002/2014, UN Doc. E/C. 12/55/D/2/2014.
 
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