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Conclusion

This chapter has argued that CESCR General Comments play the role of both ‘norm-filling’ (obligation-articulating) and ‘norm-creating’ soft law. The analysis of specific doctrinal constructs developed by the CESCR suggests that the CESCR has been working on at least partly reconstituting (as opposed to merely clarifying) state obligations under the ICESCR. CESCR General Comments stretch the institutional competence of the Committee, and expose it to political and even doctrinal criticism.

This does not mean that the Committee’s doctrinal innovations are without justification. The overall doctrinal record of the Committee is positive. CESCR soft law holds the promise of a more balanced development of human rights law, and represents a move towards broadening the range of agents contributing to normative development in human rights law. The CESCR deserves credit for using its General Comments to ‘paper over’ some of the drafting deficiencies of the ICESCR. Importantly, the Committee has sought to achieve this by channelling concepts and ideas from human rights scholarship into its soft law. The CESCR has also aligned its interpretative practices with mainstream human rights activism, offering a more prominent role to human rights activists in setting the agenda for the protection of economic and social rights.109

However, the time may be ripe for reconsidering the direction of doctrinal development in CESCR General Comments. CESCR soft law has some unappealing substantive features. Its doctrinal credibility is compromised by the uncertainty regarding how the different obligations-related concepts used in General Comments (like ‘minimum core obligations’ and obligations of ‘respect’, ‘protect’, and ‘fulfil’) relate to one another. Even more importantly, the CESCR has steered its General Comments towards a more adversarial stance in relation to states parties.[1] The idea that the best hope for improved implementation of human rights lies with expert bodies unilaterally imposing normative expectations on states parties has shown its limitations over the past couple of decadesdn The chapter has argued that the doctrinal constructs of the CESCR (and ‘minimum core obligations’ in particular) could benefit from being embedded within a more ‘dialogical’ model of monitoring.

Human rights law, like any law, requires continuous normative development. It must be adjusted to the shifting challenges of human rights protection. However, such adjustments do not make a lasting positive impact on the quality of the law without adequate doctrinal groundwork—without developing the conceptual arsenal for formulating human rights norms and articulating their content. One aim of this chapter has been to show that soft law has formidable potential in providing this doctrinal groundwork in human rights law. Soft law can play the leading role in elaborating principles and conceptual constructs capable of setting the course for the development of hard law.

  • [1] Craven (1998): 83. in We have seen how this unilateralism created political tensions around the practice of theEuropean Court of Human Rights. See: High Level Conference on the Future of the European Courtof Human Rights, Brighton Declaration, available at .
 
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