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The legitimacy of challenging state practice through soft law

It is not very surprising, then, that the doctrinal work of the CESCR is so hotly contested. There is scepticism about the underlying interpretative methods,[1] [2] [3] [4] [5] and the Committee has become embroiled in quarrels with governments.95 Still, we should not hastily reject CESCR doctrine as originating in a misguided and subversive institutional practice. We must consider whether the Committee, in its attempts to reconstitute state obligations, has reacted to genuine needs to further human rights protection. Perhaps, on occasion, soft law has come to the rescue of flawed hard law. This possibility should not be dismissed on the basis of potentially misguided orthodoxy regarding legal sources and institutional competences.

We need to put the legitimacy challenge facing the Committee into perspective. As we have seen, General Comments carry limited normative force in themselves. States parties do not have enforceable ‘minimum core obligations’ merely on the basis of CESCR General Comments. Precisely because of the deviations from the terms of the ICESCR and state practice, it is questionable whether CESCR General Comments constitute authoritative interpretations of existing treaty obligations. States parties can always stifle normative developments here by consistent objections^6 or frustrate the institutional ambitions of the Committee by not ratifying the Optional Protocol to the ICESCR.97 They are challenged, but never forced.

Of course, it is somewhat unsatisfactory to argue that simply because the Committee has limited institutional capacities, we can overlook ventures beyond its mandate. This would be to underplay the significance to soft law. A better starting point is to acknowledge that fidelity to what states have consented to by ratifying the ICESCR cannot be the sole measure of the legitimacy of doctrinal development. If, as emphasized above, human rights treaties only ‘recognize’ human rights, positive international norms cannot claim to pin down the exact meaning of human rights. If economic and social rights indeed ‘derive from the inherent dignity of the human person’,98 the CESCR, in its claims regarding the concomitant obligations, may be right and states parties wrong. The normative vision underlying the articles of the ICESCR must be open to contestation. It is a distinct possibility that the ICESCR, as we find it today, may not be fit for purpose in the twenty-first century.

As a redraft does not seem feasible in the foreseeable future, doctrinal development by way of soft law may be the only practicable way of getting right the character of economic and social rights in international law.

There is considerable force to this line of argument: the ICESCR (as a legal document) indeed suffers from a number of deficiencies. The Covenant’s open ‘redistributionism’" and its emphasis on trade union activism derive from the aspirations of the labour movement in the first half of the twentieth century to build a model for the welfare state.[6] [7] [8] [9] Also, the text of the Covenant reflects an unfortunate mixture of a minimalist and maximalist agenda in terms of economic and social rights.101 It has been a genuine worry that the Covenant in fact misconstrues the character of economic and social rights. The drafters made a mistake when capturing the nature of state obligations in Article 2(1) in a way that gives licence to postpone any meaningful implementation. There may be a need to establish international standards that are consciously pitched against the original doctrinal design of the Covenant. Soft law may then offer a framework for consolidating such international standards. Precisely because they challenge state practice without forcing states parties, CESCR General Comments may play a crucial role in setting the course for much-needed normative development. Seen in this light, the doctrinal work of the CESCR may be considered admirable: it has done well in bringing the ICESCR into the twenty-first century. Moreover, it has broadened the range of actors playing a role in normative development. CESCR General Comments have provided an avenue for human rights scholars and NGOs to influence normative development.102

  • [1] Mechlem (2009); M. Odello and F. Seatzu, The UN Committee on Economic, Social and CulturalRights: The Law, Process and Practice (Oxford: Routledge, 2013): 34.
  • [2] E. Bates, ‘The United Kingdom and the International Covenant on Economic, Social andCultural Rights’, in Economic, Social and Cultural Rights, ed. M. A. Baderin and R. McCorquodale(Oxford: Oxford University Press, 2007): 271.
  • [3] Blake (2008): 34.
  • [4] In over six years, of the 165 parties to the ICESCR, only 47 have become signatories of theOptional Protocol, and 21 have become parties to it (as of Mar. 2016).
  • [5] ICESCR Preamble.
  • [6] Craven (1998): 157-8.
  • [7] 1°° Craven (1998): 138; Palmer (2007): 8; C. Tomuschat, ‘Human Rights in a World-WideFramework: Some Current Issues’, Zeitschrift fur auslandisches offentliches Recht und Volkerrecht vol. 45 (1985): 566.
  • [8] Art. 11(1) of the ICESCR makes the continuous (!) improvement of living conditions a rightof everyone (that is, even of the well-off citizens of the richest countries). On the other hand, Art. 14settles for an obligation to introduce a detailed plan (!) to implement compulsory primary educationfor countries that were not able to implement it before acceding to the ICESCR.
  • [9] Ю2 Blake (2008): 2; Sepulveda (2003): 69-70.
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