Rethinking the formation of CESCR soft law
In light of these considerations, the key question regarding legitimacy may not be whether the Committee has never gone beyond its substantive remit, but whether its doctrinal work reflects a plausible understanding of the character and significance of economic and social rights, and whether it has the potential to nudge state practice towards better implementation. Has the Committee successfully balanced the need to repair some of the deficiencies of the ICESCR with the importance of not blatantly flouting the treaty provisions that the states parties have signed up to? Has the Committee managed to outline where state practice can reasonably go in terms of economic and social rights in the twenty-first century?
Assessed in these terms, the record of CESCR General Comments is clearly positive but not without problems. The most obvious defect in terms of striking the right balance between the ambition to improve human rights protection and the need to show due respect for treaty law is that the Committee has failed to ensure the coherence and clarity of its doctrinal work, as seen in the analysis of doctrinal constructs in section 3. The uncertainty surrounding some of the Committee’s doctrinal constructs compromises the credibility of CESCR doctrine and weakens its ability to influence the course of normative development. There is a need for much better integration of obligation-related concepts in CESCR soft law.
The violationist bias of the Committee has an even more detrimental impact on CESCR soft law. It has steered the Committee towards ‘unilateralism’ when it comes to specifying the normative implications of human rights. The ‘minimum core’ that, fairly or unfairly, has become the symbolic manifestation of the Committee’s violationist bias is a fitting example. The problem is not that it is implausible to claim that economic and social rights give rise to core obligations. The trouble is that the CESCR is not particularly well positioned to specify them unilaterally. Issuing General Comments is an aspect of the communication and cooperation between the CESCR and states parties, a view matched by the Committee’s own descrip- tion.     If this is true, the Committee should have chosen to develop its conception of core obligations more directly via its communications with states parties through state reports.™4 Concrete obligations could be presented as implications of more successful models of implementation.™5 This would still allow for challenging state practice and setting the agenda for normative development, but CESCR soft law could arise from a more explicitly dialogical process and move away from the unilateralism that the Committee’s violationist approach currently entails. The result would be a more institutionalist understanding of minimum core obligations:™6 that they are specified as part of the process of key actors developing a shared understanding of the normative implications of implementing human rights.
This more dialogical model of doctrinal development looks more feasible if we realize that it is not only the CESCR that faces legitimacy challenges here. Joining human rights mechanisms makes sense for states parties partly because it addresses aspects of their legitimacy that they cannot address through domestic legitimizing processes. Participation in international cooperation (e.g. international trade) becomes troublesome if they struggle to get their practices of governance accepted by the international community (and even the global public). This partly explains why states ratify human rights treaties in the first place.™7 Monitoring by treaty bodies is predicated on the responsibility of states parties towards the international community.  This has implications for the appropriate attitude of states parties towards doctrinal development in soft law.
Once again, reflecting on core obligations helps to substantiate this point. State obligations under the ICESCR are indeed subject to a ‘progressive realization’ standard. Still, for each state party, there is a certain level below which the lack of implementation efforts calls into question the very commitment that ratifying the Covenant entails. There is no reliable way of determining this ‘level’ in the abstract. Sustained communication between monitoring bodies and states parties offers the best chance of filling the idea of meaningful implementation with more concrete content. If framed appropriately, specific examples of ‘minimum core obligations’ (and a more nuanced understanding of the obligations to ‘respect’, ‘protect’, and ‘fulfil’, for that matter) may be considered products of this communication process from the perspective of states parties.
-  CESCR (n. 16) para. 51.
-  Actually the CESCR has claimed that it derives core obligations from its work on State Reports.See: CESCR (n. 26) s. 10. But this does not seem to bear out in later General Comments.
-  This was Philip Alston’s original suggestion. See: P. Alston, ‘The Committee on Economic, Socialand Cultural Rights’, in The United Nations and Human Rights: A Critical Appraisal, ed. P. Alston(Oxford: Oxford University Press, 1992): 491.
-  Young (2010): 125.
-  O. Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’, Journal of ConflictResolution vol. 51 (2007): 613.
-  This is, of course, a vision of the relationship between sovereignty and responsibility that underlies the UN documents on ‘Responsibility to Protect’ (R2P). E.g.: World Summit Outcome (2005) GARes. A/RES/60/1 (24 Oct. 2005), ss 138-9.
-  The Committee cooperates with a range of NGOs, and the profile of economic and social rightshas indeed been raised among human rights activists. See: Sepulveda (2003): 69-70. An NGO coalition was assisting the Committee in its drive for the Optional Protocol to the ICESCR. See: Turkelli,Vandenhole, and Vandenbogaerde (2013).