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Daniel Moeckli - Helen Keller - Corina Heri - The Human Rights Covenants at 50 - Their Past, Present, and Future-Oxford University Press (2018)

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Daniel Moeckli - Helen Keller - Corina Heri - The Human Rights Covenants at 50 - Their Past, Present, and Future-Oxford University Press (2018)

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i

T H E H U M A N R I G H T S C OV E N A N T S AT 5 0
ii
iii

The Human Rights

Covenants at 50
Their Past, Present, and Future

Edited by
DANIEL MOECKLI
HELEN KELLER

Assistant Editor
CORINA HERI

1
iv

1
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It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Daniel Moeckli, Helen Keller, and Corina Heri 2018
The moral rights of the authors have been asserted
First Edition published in 2018
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a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
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Links to third party websites are provided by Oxford in good faith and
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contained in any third party website referenced in this work.
v

Acknowledgements

At the origin of this volume was the idea that the fiftieth anniversary of the two
UN human rights Covenants was a cause for celebration and reflection. We there-
fore gathered a group of eminent scholars and invited them to a symposium co-
organized by the University of Zurich’s Institute for Public International Law and
the European Society of International Law and held in Zurich on 14–15 April 2016.
The symposium, as well as the book resulting from it, would not have been pos-
sible without the support of many people, to whom we would like to express our
gratitude.
First and foremost, we would like to thank the contributors for agreeing to draft
their respective papers, presenting them in Zurich, and then turning them into
chapters for this book.
We would also like to thank the many people who helped make the 2016 sym-
posium a success. Matthew Craven, Jürg Lindenmann, and Matthias Mahlmann
generously agreed to provide comments that helped improve the papers. Oliver
Diggelmann and Joseph HH Weiler introduced and chaired the symposium panels
and provided insightful remarks. Unfortunately, two of the contributors were pre-
vented from travelling to Zurich. We are extremely grateful to Leena Grover and
Lorenz Langer for agreeing to present their papers at the symposium at very short
notice. Many thanks also go to Natalie Balazs, Patrik Dudar, Christine Tramontano,
and Reto Walther, who were instrumental in organizing the symposium. Finally, we
would like to express our gratitude to all the participants in the symposium for their
perceptive questions and comments and to the Swiss Federal Department of Foreign
Affairs, which kindly sponsored the event.
Corina Heri played a key role in editing all the chapters for the book. We thank
her for the admirable efficiency and diligence with which she carried out this role. At
Oxford University Press, Merel Alstein, Emma Endean-Mills, Natasha Flemming,
and Kimberly Marsh expertly steered us through the various editorial stages, and we
are very grateful for their support.
We hope that this volume will inspire the work of the UN treaty bodies and of
human rights scholars as they begin to give the Covenants the shape they will take
for the coming fifty years.
Daniel Moeckli/Helen Keller
February 2018
vi
vi

Contents

List of Tables xv
Table of Cases xvii
List of Contributors xxvii
List of Abbreviations xxix

1. Introduction 1
Helen Keller and Daniel Moeckli

I . T H E PA S T: W H AT H AV E T H E
C OV E N A N T S ( N OT ) A C H I E V E D ?
2. The History of the Covenants: Looking Back Half a Century and Beyond 7
Maya Hertig Randall
I. Introduction 7
II. The Political Context 10
III. Select Thorny Issues 14
A. The rights to be included 14
B. States’ obligations under the Covenants 17
C. Measures of international supervision and enforcement 23
IV. Concluding Remarks 26
Bibliography 27

3. Giving Meaning and Effect to Human Rights: The Contributions of

Human Rights Committee Members 31
Gerald L Neuman
I. Introduction 31
II. The Functions of the Human Rights Committee 31
III. The Committee and Its Members 37
IV. The Interpretative Function of the Members 40
Bibliography 46

4. Interpretation of the ICESCR: Between Morality and State Consent 48

Daniel Moeckli
I. Introduction 48
II. The CESCR as Interpreter 49
III. Rules of Interpretation 51
A. The ICESCR 52
B. VCLT articles 31–33 52
IV. A Special Regime of Treaty Interpretation? 53
A. ‘Special’ interpretive methods 54
vi

viii Contents
1. Effectiveness 54
2. Evolutive interpretation 55
B. Legality of ‘special’ interpretive methods 56
V. Between Morality and State Consent 58
A. Morality 59
1. Object and purpose: Teleological interpretation 59
2. Rules of international law 60
3. ‘Special’ interpretive methods 61
B. State consent 62
1. Travaux as supplementary means of interpretation 62
2. Wording: Textual interpretation 63
3. Subsequent practice 63
C. Morality or State consent? 64
VI. Generating Legitimacy 65
A. Adherence 67
B. Coherence 67
C. Transparency 68
VII. Conclusion 71
Bibliography 72

5. NGOs: Essential Actors for Embedding the Covenants in

the National Context 75
Patrick Mutzenberg
I. Introduction 75
II. Cooperation with the Committees Primarily Related to the
Reporting Procedure 77
A. The role of NGOs in the reporting procedure 77
1. NGO interaction prior to the review 80
2. NGO interaction during the State report review 81
B. The role of NGOs in the elaboration of General Comments 84
C. The role of NGOs in the individual communications procedure
under the Optional Protocols 86
III. The Emerging Role of NGOs in the Implementation of
Concluding Observations and Views 87
A. At the national level 87
1. Raising awareness at the national level 87
2. Engaging with national stakeholders 88
B. Participation in the committees’ follow-up procedure 89
1. The embryonic follow-up procedure of the CESCR 89
2. The key role of NGOs in the follow-up procedure of the HRC 90
C. Difficulties for NGOs in engaging systematically with the UN treaty
body system 92
IV. Conclusion 93
Bibliography 94
ix

Contents ix

I I . T H E P R E S E N T: W H AT I S T H E
I N F LU E N C E O F T H E C OV E N A N T S ?

6. Influence of the ICESCR in Africa 99

Manisuli Ssenyonjo
I. Introduction 99
II. Influence of the ICESCR on the African Regional Human Rights
System 101
III. Influence of the ICESCR on the Domestic Protection of Human
Rights in Africa 107
A. Are the rights protected in the ICESCR part of domestic
constitutions in Africa? 107
B. Dualist approaches to the ICESCR in Africa and their influence on
human rights 109
C. Monist approaches to the ICESCR in Africa and their influence on
human rights 117
IV. Conclusion 121
Bibliography 122

7. Influence of the ICCPR in the Middle East 124

Başak Çali
I. Introduction 124
II. Challenges to Surveying the Influence of the ICCPR in the
Middle East 126
III. Pathways for Influence: Ratification, Reservations, Engagement,
and Legal Status 130
A. Reservations to the ICCPR 133
B. Engagement with the Human Rights Committee 135
C. Domestic legal status of the ICCPR 137
IV. Resistance to HRC’s Concluding Observations in the Middle
East Region 140
A. States of emergency, counter-terrorism, and extraordinary judicial
practices 140
B. Death penalty 142
C. Extraordinary administration of justice systems 143
D. Non-discrimination and equal citizenship agenda 144
E. Minorities and indigenous peoples 145
F. Democratic expression of political pluralism 147
V. Conclusion 147
Bibliography 149

8. Influence of the ICESCR in Latin America 151

Mónica Pinto and Martín Sigal
I. Introduction 151
II. The Region’s Constitutional Frameworks and Their Approach to
International Human Rights Instruments 153
x

x Contents
A. Argentina 154
B. Brazil 155
C. Chile 155
D. Paraguay 156
E. Uruguay 156
F. Venezuela 156
G. Ecuador 156
H. Bolivia 157
I. Interim conclusion 157
III. Justiciability of Economic, Social, and Cultural Rights 157
A. The road to justiciability 157
B. A new form of litigation 161
IV. Influence of the ICESCR on the Jurisprudence of
National Courts 162
A. Argentina 163
B. Brazil 165
C. Colombia 166
D. Venezuela 168
E. Other countries’ experiences 170
V. Influence of the ICESCR on the Regional Human Rights System 171
A. The San Salvador Protocol 171
B. Measuring progress 172
C. Incorporating ESCR into the regional case law 173
VI. Political Impact, Poverty, and Social Rights Violations:
The CESCR and the IACHR 175
VII. The By-products of ESCR’s Justiciability in the Region 179
VIII. Concluding Remarks 180
Bibliography 181

9. Influence of the ICCPR in Asia 184

Yogesh Tyagi
I. Introduction 184
II. Preliminary Observations 185
III. Theoretical Framework 186
IV. Assessment of the Influence of the ICCPR 187
A. Participation in the drafting of the ICCPR 187
B. Acceptance of the ICCPR 188
C. Reservations and declarations 189
1. Objections to reservations and declarations 190
2. Withdrawal of reservations and declarations 191
D. Status of treaties under domestic law 191
E. Influence of the ICCPR on domestic law 195
F. Influence of the ICCPR on domestic courts 196
1. Influence of the draft ICCPR 196
2. Influence of the ICCPR before States’ ratification or accession 196
3. Influence of the ICCPR on the domestic courts of
the States parties 197
G. Influence of the ICCPR on legal scholarship 198
xi

Contents xi

H. Influence of national human rights institutions 201

I.Reporting record 203
J.Influence of General Comments and concluding observations 205
K. Influence of Views 206
L. Influence of the Universal Periodic Review 207
M. Availability of human rights documents in local languages
and their accessibility 208
N. General support 209
V. Concluding Remarks 209
Bibliography 212

10. Influence of the ICESCR in Europe 215

Amrei Müller
I. Introduction 215
II. Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect? 218
A. Signs of increased legal influence 218
B. Signs revealing the limits of legal influence 225
III. Particularities of Domestic Systems 231
IV. The Financial and Economic Crises as a Chance for Reinforced
Engagement with the ICESCR in Europe? 235
V. Concluding Remarks 239
Bibliography 240

11. The Influence of the Two Covenants on States Parties Across

Regions: Lessons for the Role of Comparative Law and of Regions in
International Human Rights Law 243
Samantha Besson
I. Introduction 243
II. A Framework for the Proposed Regional Human Rights
Comparison 246
III. Comparative Analysis of the Regional Influence of the Two
Covenants 251
A. Comparative analysis 252
1. International law status 252
2. ‘Domestic international law’ status 255
3. Domestic constitutional order 257
4. Domestic institutions 258
5. Other domestic actors 260
B. An overall assessment: Four trends and five needs 261
IV. A Comparative Law Argument for the Authority of the
Committees’ Interpretations 262
V. Three Proposals for Enhancing the Legitimacy of the
Committees’ Interpretations 264
A. The role of subsidiarity in Covenant law 265
B. The role of comparison and transnational consensus
in Covenant law 267
C. The role of regions and regional human rights regimes under
Covenant law 269
xi

xii Contents
VI. Conclusions 273
Bibliography 273

I I I . T H E F U T U R E : W H AT S H O U L D
B E C O M E O F T H E C OV E N A N T S ?
12. The Covenants in the Light of Anthropogenic Climate Change 279
Stephen Humphreys
I. Introduction 279
II. Preambles to the Covenants 283
III. Common Article 1 (Self-determination) 286
IV. Jurisdiction (Articles 2) 291
A. Article 2 of the ICCPR 291
B. Article 2 of the ICESCR 294
V. Limitation/Derogation (Articles 4 and 5) 296
A. Common article 4 of the ICCPR and ICESCR 296
B. Common article 5 of the ICCPR and ICESCR 298
VI. Conclusion 298
Bibliography 301

13. The Covenants and Financial Crises 303

Christine Kaufmann
I. Introduction 303
II. Anatomy of Financial Crises: Who, How, and What? 304
A. Typologies of an ‘equal opportunity menace’: Currency, balance of
payments, and debt and banking crises 304
B. Human rights impacts of financial crises 307
1. Economic, social, and cultural rights 308
2. Civil and political rights 309
3. Equality and non-discrimination 310
C. Human rights in times of financial crises: Two case studies 311
1. Argentina 311
2. Greece 314
III. States’ Human Rights Obligations in Times of Financial Crises 317
A. States’ obligations as parties to the UN Covenants 318
B. State responsibilities as members of IFIs or participants in rescue
programmes 320
C. Obligations of States with regard to private actors 322
IV. Human Rights Obligations and Responsibilities of IFIs
and Their Members 323
A. Obligations and responsibilities 323
B. IFIs’ human rights obligations—Much ado about nothing? 323
C. Human rights-related responsibilities of IFIs? 326
D. The role of the UN human rights bodies 327
xi

Contents xiii

V. Conclusion: People, Process, and Paradigm 328

A. People-oriented, rights-based perspective 328
B. Processes for ensuring coherence 329
C. Paradigm reloaded: Emancipation and translational human rights 329
Bibliography 330

14. The Institutional Future of the Covenants: A World Court

for Human Rights? 334
Felice D Gaer
I. Introduction 334
II. Human Rights Treaty Implementation and the Covenants 337
III. Past Treaty Reform Efforts 338
IV. Recommendations for Reform by Alston, and Others 339
V. Consolidation Ideas: Stakeholder Meetings and Beyond 340
VI. Arbour’s Proposal Deferred: A Unified Standing Treaty Body 343
VII. The Dublin Statement and Treaty Body Strengthening 344
VIII. The General Assembly Concludes the Treaty
Strengthening Process 345
IX. A ‘World Court’ for Human Rights? 346
X. Improving Individual Communications: What Should be Done? 350
Bibliography 355

Index 357
xvi
xv

List of Tables

Chapter 7
7.1 UN human rights treaty commitment in the Middle East 131
7.2 Accession to the ICCPR in chronological order 132
7.3 Reservations to the ICCPR in the Middle East region 133

Chapter 9
9.1 Number of Asian States which failed to file reports under article 40 of the
ICCPR 205

Chapter 13
13.1 Typologies and impacts of financial crises 305
xvi
xvi

Table of Cases

INTERNATIONAL AND REGIONAL BODIES

African Commission on Human and Peoples’ Rights
Abdel Hadi, Ali Radi and others v Sudan, Communication No 368/09, 5 November 2013 ��106
Anuak Justice Council v Ethiopia, Communication No 299/05, 25 May 2006, AHRLR 97
(ACHPR 2006) ��100
Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council v Kenya, Communication No 276/2003
(25 November 2009) 27th Activity Report of the African Commission on
Human and Peoples’ Rights �� 103, 104
Democratic Republic of the Congo v Burundi, Rwanda and Uganda, Communication
No 227/99 (29 May 2003) EX.CL/279 (IX)��104
Groupe de Travail sur les Dossiers Judiciaires Stratégiques v Democratic Republic of Congo,
Communication No 259/2002, 24 July 2011��106
Open Society Justice Initiative v Côte d’Ivoire, Communication No 318/06 (27 May 2016), 38th
Activity Report of the African Commission on Human and Peoples’ Rights��104
Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria,
Communication No 155/96, 27 October 2001, AHRLR 60 (ACHPR 2001)�� 103, 108, 288
Socio-Economic Rights and Accountability Project v Nigeria, Communication No 300/2005, 29
July 2008, AHRLR 108 (ACHPR 2008)��108
Sudan Human Rights Organisation and Another v Sudan, Communication Nos 279/03 &
296/05, 27 May 2009, AHRLR 153 (ACHPR 2009)��103
Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v the Sudan,
Communication Nos 279/03 and 296/05 (27 May 2009) EX.CL/600(XVII), Annex V ��102
Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication No 245/2002, Annex
III, 15 May 2006, AHRLR 128 (ACHPR 2006)��106

African Committee of Experts on the Rights and Welfare of the Child

Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice
Initiative on Behalf of Children of Nubian Descent in Kenya v the Government of Kenya,
Decision No 002/Com/002/2009 (22 March 2011)��105

African Court on Human and People’s Rights (ACtHPR)

African Commission on Human and Peoples’ Rights v Republic of Kenya App no 006/ 2012
(ACtHPR, 26 May 2017)�� 103, 104
Konaté v Burkino Faso App no 004/2013 (ACtHPR, 5 December 2014) �� 36, 37, 40
Mtikila v United Republic of Tanzania App nos 009/2011 and 011/2011
(ACtHPR, 14 June 2013)��36
Thomas v United Republic of Tanzania App no 005/2013 (ACtHPR, 20 November 2015) �� 37, 105
Wilfred Onyango Nganyi and Nine others v United Republic of Tanzania App No 006/2013
(ACtHPR, 18 March 2016) ��106

Committee on the Elimination of Racial Discrimination (CERD)

TBB Turkish Union in Berlin-Brandenburg v Germany (2013), CERD Communication
No 48/2010, UN Doc CERD/C/82/D/48/2010 ��39
xvi

xviii Table of Cases

Court of Justice of the European Union (CJEU)
ECJ, Case C-370-12 Pringle v Government of Ireland [2012] EU:C:2012:756��325
ECJ, Joined Cases C-8/15 P to C-10/15 P Ledra Advertising Ltd and others v European
Commission and European Central Bank [2016] EU:C:2016:701��325

East African Court of Justice

Matia Katabazi and 21 others v Secretary General of the East African Community and the Attorney
General of the Republic of Uganda, Reference No 1 of 2007��121

ECOWAS Community Court

Registered Trustees of Socio-Economic Rights and Accountability Project (SERAP) v Federal
Republic of Nigeria and Universal Basic Education Commission (30 November
2010) ECW/CCJ/APP/12/07 and ECW/CCJ/JUD/07/10 ��108

European Committee of Social Rights (ECSR)

ECSR, Marangopoulos Foundation for Human Rights v Greece, Collective Complaint No 30/
2005, 6 December 2006��292
ECSR, Federation of Employed Pensioners of Greece (IKA-ETAM) v Greece (7 December 2012),
Complaint No 76/2012�� 309, 315

European Court of Human Rights (ECtHR)

Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979)�� 19, 54, 174
Al-Adsani v the United Kingdom App no 35763/97 (ECtHR, 21 November 2001)��61
Al-Skeini and Others v United Kingdom App no 55721/07 (ECtHR, Judgment of
7 July 2011)�� 292, 293, 294
Banković and Others v Belgium and 16 Other Contracting States App no 52207/99
(ECtHR, 12 December 2001)�� 292, 293, 294
Bayatyan v Armenia App no 23459/03 (ECtHR, 7 July 2011)��36
Demir and Baykara v Turkey App no 34503/97 (ECtHR, 12 November 2008)��272
Golder v the United Kingdom App no 4451/70 (ECtHR, 21 February 1975) ��67
Issa and Others v Turkey App no 31821/96 (ECtHR, 16 November 2004)��292
Jasvir Singh v France App no 25463/08 (ECtHR, 30 June 2009)��36
Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR, 23 March 1995)�� 56, 292
Mamatas and Others v Greece App nos 63066/14 and 66106/14 (ECtHR, 21 July 2016)��310
Mangouras v Spain App no 12050/04 (ECtHR, 28 September 2010)��58
Matthews v the United Kingdom App no 24833/94 (ECtHR, 18 February 1999)�� 320, 326
Mockiené v Lithuania App no 75916/13 (ECtHR, 4 July 2017)��311
Tyrer v the United Kingdom App no 5856/72 (ECtHR, 25 April 1978)��55

Inter-American Court of Human Rights (IACtHR)

Acevedo Buendía et al v Perú, Judgment (Preliminary Objection, Merits, Reparations and
Costs) Inter-American Court of Human Rights Series C No 198 (1 July 2009)�� 172, 174
Alejandro v Cuba, Inter-American Commission on Human Rights Report No 86/99
(29 September 1999) ��292
Case of the ‘Mapiripán Massacre’ v Colombia, Judgment (Merits) Inter-American Court of
Human Rights Series C No 134 (15 September 2005)��56
Case of the Mayagna (Sumo) Awas Tigni Community v Nicaragua, Judgment (Merits,
Reparations and Costs) Inter-American Court of Human Rights Series C No 79
(31 August 2001)��161
Case of the Yakye Axa Indigenous Community v Paraguay, Judgment (Merits, Reparations and
Costs) Inter-American Court of Human Rights Series C No 125 (17 June 2005)�� 161, 174
Caso Comunidad Indígena Xákmok Kásek v Paraguay, Judgment (Merits, Reparations and
Costs) Inter-American Court of Human Rights Series C No 214 (24 August 2010)��178
xi

Table of Cases xix

Coard v United States, Inter-American Commission on Human Rights Report No 109/99
(29 September 1999) ��292
‘Five Pensioners’ v Peru, Judgment (Merits, Reparations and Costs) Inter-American Court of
Human Rights Series C No 98 (28 February 2003)�� 173, 174
Gonzales Lluy et al v Ecuador, Judgment (Preliminary objections, Merits, Reparations
and Costs) Inter-American Court of Human Rights Series C No 298
(1 September 2015) �� 173, 177
Instituto de Reeducación del Menor v Paraguay, Judgment (Preliminary Exceptions, Merits,
Reparations and Costs) Inter-American Court of Human Rights Series C No 112
(2 September 2004) ��174
‘Street Children’ (Villagrán Morales et al) v Guatemala, Judgment (Merits) Inter-American
Court of Human Rights Series C No 77 (19 November 1999)��55
Suarez Peralta v Ecuador, Judgment (Preliminary objections, Merits, Reparations and Costs)
Inter-American Court of Human Rights Series C No 261 (21 May 2013)��174
The Effect of Reservations on the Entry into Force of the American Convention on Human Rights
(Advisory Opinion) Inter-American Court of Human Rights Series A No 2
(24 September 1982) ��56
The Kaliña and Lokono Peoples v Suriname, Judgment (Merits, Reparations and Costs)
Inter-American Court of Human Rights Series C No 309 (25 November 2015) ��173
The Right to Information on Consular Assistance in the Framework of Guarantees for Due Legal
Process (Advisory Opinion) Inter-American Court of Human Rights Series C No 16
(1 October 1999)��55
Velásquez Rodríguez v Honduras, Judgment (Merits) Inter-American Court of Human Rights
Series C No 4 (29 July 1988)��171
Ximenes Lopes v Brazil, Judgment (Preliminary objections, Merits, Reparations and Costs)
Inter-American Court of Human Rights Series C No 149 (4 July 2006)�� 173, 178

International Centre for Settlement of Investment Disputes (ICSID)

International Centre for Settlement of Investment Disputes (ICSID), CMS Gas Transmission
Company v the Argentine Republic (award), 12 May 2005, ICSID case no ARB/01/8 ��319

International Court of Justice (ICJ)

Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo (Advisory Opinion) [2010] ICJ Rep 403��286
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russian Federation) (Preliminary Objections) [2011] ICJ Rep 70��57
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010]
ICJ Rep 639�� 35, 51, 255, 263
Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Merits) [2009]
ICJ Rep 213�� 51, 58
Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7��60
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory
Opinion) [1980] ICJ Reports 73��323
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa), notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)
[1971] ICJ Rep 12�� 60, 286
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136 �� 50, 286
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits) [1949]
ICJ Rep 422��108
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949]
ICJ Reports 174��323
Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15��56
x

xx Table of Cases
South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections)
[1962] ICJ Rep 319�� 24, 60
Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Merits) [1994] ICJ Rep 6��57
United States Diplomatic and Consular Staff in Tehran (Jurisdiction and Admissibility)
[1980] ICJ Rep 3��324
Western Sahara (Advisory Opinion) [1975] ICJ Rep 12��286

Permanent Court of International Justice

Exchange of Greek and Turkish Populations (Advisory Opinion) PCIJ Rep Series B No 10��108

UN Committee on Economic, Social and Cultural Rights (CESCR)

IDG v Spain, CESCR Communication No 2/2014 (13 October 2015) UN Doc E/C.12/55/
D/2/2014��49, 87, 122, 216, 319
Michael Andreas Müller and Imke Engelhard v Namibia, CESCR Communication No 919/
2000 (26 March 2002) UN Doc CCPR/C/74/D/919/2000�� 110, 111

UN Human Rights Committee (HRC)

AS v Nepal, HRC Communication No 2077/2011 (6 November 2015) UN Doc CCPR/C/
115/D/2077/2011��86
Bhandari v Nepal, HRC Communication No 2031/2011 (29 October 2014) UN Doc CCPR/
C/112/D/2031/2011��86
Bikramjit Singh v France, HRC Communication No 1852/2008 (1 November 2012) UN Doc
CCPR/C/106/D/1852/2008��36
Blessington and Elliot v Australia, HRC Communication No 1968/2010 (22 October
2014) UN Doc CCPR/C/112/D/1968/2010��43
Broeks v the Netherlands, HRC Communication No 172/1984 (9 April 1987) UN Doc CCPR/
C/29/D/172/1984��44
Fernando v Sri Lanka, HRC Communication No 1189/2003 (31 March 2005) UN Doc
CCPR/C/83/D/1189/2003��207
Giri v Nepal, HRC Communication No 1761/2008 (24 March 2011) UN Doc CCPR/C/
101/D/1761/2008�� 42, 207
JM Basnet and TB Basnet v Nepal, HRC Communication No 2051/2011 (29 October
2014) UN Doc CCPR/C/112/D/2051/2011��86
Katwal v Nepal, HRC Communication No 2000/2010 (1 April 2015) UN Doc CCPR/C/
113/D/2000/2010��86
Maharjan v Nepal, HRC Communication No 1863/2009 (19 July 2012) UN Doc CCPR/C/
105/D/1863/2009��207
Naidenova et al v Bulgaria, HRC Communication No 2073/2011 (30 October 2012) UN Doc
CCPR/C/106/D/2073/2011��45–46
Ruzmetov v Uzbekistan, HRC Communication No 915/2000 (30 March 2006) UN Doc
CCPR/C/86/D/915/2000��207
Sedhai v Nepal, HRC Communication No 1865/2009 (19 July 2013) UN Doc CCPR/C/108/
D/1865/2009��207
Sharma v Nepal, HRC Communication No 1469/2006 (28 October 2008) UN Doc CCPR/
C/94/D/1469/2006��207
SID v Bulgaria, HRC Communication No 1926/2010 (21 July 2014) UN Doc CCPR/C/
111/D/1926/2010��45
Weerawansa v Sri Lanka, HRC Communication No 1406/2005 (17 March 2009) UN Doc
CCPR/C/95/D/1406/2005��207
Yuzepchuk v Belarus, HRC Communication No 1906/2009 (24 October 2014) UN Doc 112/
D/1906/2009��33

World Trade Organization (WTO)

WTO, Korea: Definitive Safeguard Measure on Imports of Certain Dairy Products—Report of the
Appellate Body (14 December 1999) WT/DS98/AB/R ��57
xxi

Table of Cases xxi

NATIONAL COURTS
A & Ors v Secretary of State for the Home Department [2004] UKHL 56��220
AA v Secretary of State for the Home Department [2013] UKSC 49 ��220
Administrative Court of Ansbach, AN 2 K 07.00603, 7 August 2008 ��229
Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 ��233
Asociación Civil por la Igualdad y la Justicia c/GCBA s/amparo (art 14 CCABA) No 23360/
0 (19 March 2008) <http://campusvirtual.justiciacordoba.gob.ar/moodle/pluginfile.
php/2799/mod_folder/content/0/CCAyT%20ACIJ%20Educacion%20Inicial.
pdf?forcedownload=1> accessed 10 March 2017��165
‘B’ & Ors v Secretary of State for the Foreign & Commonwealth Office [2004] EWCA Civ 1344��229
Bangladeshi Supreme Court, Appellate Division, Bangladesh and another v Hasina and another,
60 DLR (AD) (2008) 90��197
Bangladeshi Supreme Court, Government of Peoples’ Republic of Bangladesh v Abdul Quader
Molla, Criminal Appeal No 24 of 2013��195
Bangladeshi Supreme Court, High Court Division, Bangladesh Legal Aid and Services
Trust v Bangladesh, Writ Petition Nos 5863 of 2009, 754 of 2010, and 4275 of 2010��205
Bangladeshi Supreme Court, High Court Division, BNWLA v Government of Bangladesh and
others, 14 BLC (2009) (HCD) 703��197
Botswana Court of Appeal, Attorney General v Unity Dow (2001) AHRLR 99 (BwCA 1992)��113
Botswana Court of Appeal, Student Representative Council of Molepolole College of Education v
Attorney General [1995] (3) LRC 447 ��112
Bundesverwaltungsgericht, Judgment of 29 April 2009, BVerwG 6 C 16/08��70
Calcutta High Court, Union of India v Manmull Jain, AIR 1954 Cal. 615��194
Colombian Constitutional Court, Judgment SU225-98, Sandra Clemencia Perez Calderon y
otros c. Ministerio de Salud y la Alcaldía de Santa Fe de Bogota, 20 May 1998��167
Colombian Constitutional Court, No C-005/17, Demanda de inconstitucionalidad c. el
numeral 1 del artículo 239 y el numeral 1 del artículo 240 del Decreto Ley 2663 de 1950
(Código Sustantivo del Trabajo) 18 January 2017 ��167
Colombian Constitutional Court, No T-020/17, Yeison Fabian Arciniegas Omaña c. el Centro
Penitenciario y Carcelario de Cúcuta y el Instituto Nacional Penitenciario y Carcelario
(INPEC) 20 January 2017 ��167
Colombian Constitutional Court, No T-025/04, Abel Antonio Jaramillo y otros c. la Red de
Solidaridad Social y otros, 22 January 2004��168
Colombian Constitutional Court, No T-428/12, Carlos Armando Orbes Benavides y otros c. la
Secretaría de Educación Departamental de Nariño y el Ministerio de Educación Nacional,
8 June 2012 ��167
Colombian Constitutional Court, No T-533/09, Luis Alberto Lozano y otros c. el Municipio de
Ibagué y otros, 6 August 2009��167
Condliff v North Staffordshire Primary Care Trust [2011] EWCA Civ 910��233
Constitutional Court of South Africa, Glenister v President of the Republic of South Africa and
others (CCT 48/10) [2011] ZACC 6��110
Constitutional Court of Uganda, Centre for Health, Human Rights and Development and three
others v Attorney General, Constitutional Petition No 16 of 2011, [2012] UGCC 4
(5 June 2012)��108
Constitutional Tribunal of Peru, No 00052-2004-AA, Martha Elena Cueva Morales c. la
resolución de la Primera Sala Civil de la Corte Superior de Justicia del Callao,
1 September 2004��170
Constitutional Tribunal of Peru, No 2945-2003-AA, Azanca Alhelí Meza García c. la sentencia
de la Tercera Sala Civil de la Corte Superior de Justicia de Lima, 20 April 2004��170
Dakar Court of Appeal, Senegal, Case No 501 of 27 July 1984 ��119
Egyptian Constitutional Court Judgment of 1 March 1975 (Case No 2, Judicial Year 2) ��146
Federal Constitutional Court of Germany, 1 BvL 1/08, 8 May 2013��228
Federal Constitutional Court of Germany, 1 BvL 1/09, 9 February 2010��221
Federal Constitutional Court of Germany, 1 BvL 10/10, 18 July 2012��221
xxi

xxii Table of Cases

Federal Constitutional Court of Germany, 1 BvR 1842/11, 23 October 2013��228
Federal Constitutional Court of Germany, 2 BvL 1/03, 26 January 2005��228
Federal Constitutional Court of Germany, 2 BvR 2125/01, 19 September 2006�� 219, 229
Gujarat High Court, Ktaer Abbas Habib Al Qutaifi v Union of India, 1999 Cri LJ 919��193
Hague District Court, Urgenda Foundation v the State of the Netherlands, C/09/456689/HA
ZA 13-1396, Judgment of 24 June 2015��292–94
High Court of Ghana, Issa Iddi Abass & ors v Accra Metropolitan Assembly and Anor, Suit No
Misc 1203/2002, 24 July 2002, unreported ��107
High Court of Kenya, Consumer Federation of Kenya (COFEK) v Attorney General & 4 others,
Petition No 88 of 2011, [2012] eKLR��117
High Court of Kenya, Ibrahim Sangor Osman v Minister of State for Provincial Administration
and Internal Security, Constitutional Petition No 2 of 2011, [2011] eKLR��121
High Court of Kenya, John Kabui Mwai & three others v Kenya National Examination Council
& two others, Petition No 15 of 2011, [2011] eKLR��117
High Court of Kenya, Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & Three
Others v Cabinet Secretary Ministry of Health & Four Others, Petition No 250 of 2015
[2016] eKLR ��112
High Court of Kenya, Kenya Society for the Mentally Handicapped v Attorney General and seven
others, Petition No 155A of 2011, [2012] eKLR ��117
High Court of Kenya, Luco Njagi & 21 others v Ministry of Health & two others, Petition No
218 of 2013, [2015] eKLR��117
High Court of Kenya, Mathew Okwanda v Minister of Health and Medical Services & three
others, Petition No 94 of 2012, [2013] eKLR��117
High Court of Kenya, Michael Mutinda Mutemi v Permanent Secretary, Ministry of Education &
two others, Petition No 133 of 2013, [2013] eKLR ��116
High Court of Kenya, Mitu-Bell Welfare Society v Attorney General & two others, Petition No
164 of 2011, [2013] eKLR��116
High Court of Kenya, PAO & two others v Attorney General, Petition No 409 of 2009 [2012]
eKLR��117
High Court of Kenya, Republic v Minister for Home Affairs & two others Ex Parte Sitamze, Misc
Civil Case No 1652 of 2004, [2008] eKLR��113
High Court of South Africa, Mazibuko and others v City of Johannesburg and others (06/13865)
[2008] 4 All SA 471 (W) (30 April 2008)��115
High Court of Tanzania, Ephraim v Pastory [1990] Civil Appeal No 70 of 1989, (2001)
AHRLR 236��112
Higher Administrative Court of Nordrhein-Westfalen, 15 A 1596/07, 9 October 2007��229
International Crimes Tribunal of Bangladesh, Abdul Quader Molla v Government of Peoples’
Republic of Bangladesh, Criminal Appeal No 25 of 2013, ICT-BD Case No 02 of 2012 ��195
Israeli High Court of Justice, HCJ 3239/02 Marab et al v Israeli Defence Force Commander (5
February 2003) ILDC 15 (IL 2003)��148
Israeli High Court of Justice, HCJ 7146/12 Adam et al v the Parliament (16 September 2013)��138
Januzi v Secretary of State for the Home Department & Ors [2006] UKHL 5��228
Japanese Supreme Court (1st Bench), Judgment, 14 January 2002, Hanrei Taimuzu [Law
Times Reports], vol 1085, 169��206
Japanese Supreme Court (1st Bench), Judgment, 21 January 1999, Hanrei Taimuzu [Law
Times Reports], vol 1002, 94��206
Japanese Supreme Court (Grand Bench), Decision of 4 September 2013, Hanrei Taimuzu
[Law Times Reports], No 1393, 64; Japanese YB of Intl L, vol 57 (International Law
Association of Japan 2014)��198
Kerala High Court, Francis Manjooran and ors v Government of India, AIR 1966 Ker. 20��196
Kuwaiti Constitutional Court Judgment of 22 October 2009 <http://jurist.org/paperchase/
2009/10/kuwait-constitutional-court-rules-women.php> accessed 28 March 2017��148
Lahore High Court, Mst Rukhsana Bibi, etc v Government of Pakistan, etc (Writ Petition No
5939 of 2006) Multan Bench (18 May 2016) <http://sys.lhc.gov.pk/appjudgments/
2016LHC2281.pdf> accessed 17 April 2017 ��198
xxi

Table of Cases xxiii

Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic
of China, Panel on Administration of Justice and Legal Services, ‘Implementation of
International Agreements in the Hong Kong SAR’ (No CB(2)1398/06-07(04),
26 March 2007)��193
Lesotho Court of Appeal, Khathang Tema Baitsokoli and Another v Maseru City Council and
others, Case (CIV) 4/05, CONST/C/1/2004, 20 April 2004, (2004) AHRLR 195
(LeCA 2004) ��107
Limbuela v Secretary of State for the Home Department [2005] UKHL 66 ��233
MA & Ors v The Secretary of State for Work and Pensions [2014] EWCA Civ 13��233
Maclaine Watson & Co v Dept of Trade and Industry [1989] UKHL [1990] 2 AC 418, 500
(House of Lords)��110
Malaysian High Court, Public Prosecutor v Narongne Sookpavit [1987] 2 MLJ 100��193
McDonald v Royal Borough of Kensington and Chelsea [2011] UKSC 33��233
Namibian Supreme Court, Government of the Republic of Namibia v LM and others (SA 49/
2012) [2014] NASC 19��112
Padam Singh and others v Superintendent of Police, Agra and others, MANU/UP/0259/1969��196
Peshwar High Court, Advocate F M Sabir & Others v Federation of Pakistan, Writ Petition
No 1551-P/2012 ��198
Quila & Anor v Secretary of State for the Home Department [2011] UKSC 45 ��228
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009]
AC 453��110
R (Hurley and Moore) v Secretary of State for Business Innovation & Skills [2012]
EWHC 201 (Admin)��229
R (SG and Others) v Secretary of State for Work and Pensions [2015] UKSC 16��237
R v Jones [2006] UKHL 16, [2006] 2 WLR 772 ��110
Re McKerr [2004] UKHL 12, [2004] 1 WLR 807��110
Russian Constitutional Court, Judgment of 12 March 2015, No 4-P/2015��228
Russian Constitutional Court, Judgment of 17 January 2013, No 1-P��227
Russian Constitutional Court, Judgment of 19 April 2016, No 12-P/2016��239
Russian Constitutional Court, Judgment of 19 January 2017, No 1-P/2017��239
Russian Constitutional Court, Judgment of 24 January 2002, No 3-P��228
Russian Constitutional Court, Judgment of 24 October 2013, No 22-P ��227
Russian Constitutional Court, Ruling of 14 July 2015, No 21-P/2015 ��239
Russian Constitutional Court, Ruling of 2 July 2015, No 1539-О��228
Russian Constitutional Court, Ruling of 20 October 2016, No 20-P/2016��228
Russian Constitutional Court, Ruling of 5 November 2003, No 343-О ��228
Russian Constitutional Court, Ruling of 8 June 2010, No 13-P��228
Rutherford & Ors v Secretary of State for Work and Pensions (Rev 1) [2014] EWHC 1631
(Admin)��233
Senegalese Court of Cassation, Souleymane Guengueng and others v Hissène Habré (2002)
AHRLR 183 (SeCC 2001)��118
SG & Ors (Previously JS & Ors) v The Secretary of State for Work and Pensions [2014] EWCA
Civ 156 ��233
South African Constitutional Court, Abahlali Basemjondolo Movement SA and Another v
Premier of the Province of Kwazulu-Natal & others [2009] ZACC 31��114
South African Constitutional Court, Azanian Peoples Organization (AZAPO) and others v
President of the Republic of South Africa and others (CCT 17/96) [1996] ZACC 16) ��110
South African Constitutional Court, City of Johannesburg Metropolitan Municipality v Blue
Moonlight Properties 39 (Pty) Ltd and Another [2011] ZACC 33��114
South African Constitutional Court, Governing Body of the Juma Musjid Primary School &
others v Essay NO & others (Centre for Child Law & another as Amici Curiae) [2011]
ZACC 13 ��113–16
South African Constitutional Court, Government of the Republic of South Africa & others v
Grootboom & others [2000] ZACC 19�� 20, 65, 113, 114
South African Constitutional Court, Government of the Republic of Zimbabwe v Fick and others
(CCT 101/12) [2013] ZACC 22 ��121
xvi

xxiv Table of Cases

South African Constitutional Court, Head of Dept, Dept of Education, Free State Province v
Welkom High School and Another; Head of Dept, Dept of Education, Free State Province v
Harmony High School and Another (CCT 103/12) [2013] ZACC 25��112
South African Constitutional Court, Khosa & others v Minister of Social Development [2004]
ZACC 11��114
South African Constitutional Court, Mazibuko & others v City of Johannesburg & others [2009]
ZACC 28�� 65, 114, 115
South African Constitutional Court, Minister of Health and others v Treatment Action
Campaign [2002] ZACC 16��114
South African Constitutional Court, Thiagraj Soobramoney v Minister of Health (KwaZulu-
Natal) [1997] ZACC 17��114
Spanish Constitutional Court, Judgment 10/2014, 27 January 2014��228
Spanish Constitutional Court, Judgment 110/2011, 22 June 2011��228
Spanish Constitutional Court, Judgment 188/2013, 4 November 2013 ��228
Spanish Constitutional Court, Judgment 247/2007, 12 December 2007��227–28
Spanish Constitutional Court, Judgment 36/1991, 14 February 1991��227
Spanish Constitutional Court, Judgment 93/2015, 14 May 2015��231
Sri Lankan Supreme Court, Advisory Opinion on the ICCPR Act, SC Ref No 01/2008 ��198
Sri Lankan Supreme Court, Singarasa v Attorney General of Sri Lanka, SC Spl (LA) No 182/99
(September 2006)��207
Sri Lankan Supreme Court, Singarasa v Attorney General SC Spl (LA) No 182/99 (2006)�� 198, 207
Sri Lankan Supreme Court, Visuvalingam v Liyanage [1984] 2 Sri LR 123��198
Supreme Court of Appeal of South Africa, City of Johannesburg and others v Mazibuko and
others (489/08) [2009] 3 All SA 202 (SCA) (25 March 2009) ��115
Supreme Court of Appeal of South Africa, Government of the Republic of Zimbabwe v Fick &
others (657/11) [2012] ZASCA 122 (20 September 2012)��121
Supreme Court of Appeal of South Africa, Minister of Basic Education v Basic Education for All
(20793/2014) [2015] ZASCA 198 (2 December 2015) ��116
Supreme Court of Argentina, No A.186.XXXIV.REX, Asociación Benghalensis y otros c/
Ministerio de Salud y Acción Social—Estado Nacional s/amparo ley 16.986, 1 June 2000��164
Supreme Court of Argentina, No C.823.XXXV.RHE, Campodónico de Beviacqua, Ana Carina
c/Ministerio de Salud y Acción Social—Secretaría de Programas de Salud y Banco de Drogas
Neoplásicas, 24 October 2000��163
Supreme Court of Argentina, No Q.64.XLVI, Q. C., S. Y. c/Gobierno de la Ciudad Autónoma
de Buenos Aires s/amparo, 24 April 2012 (cita Fallos: 335:452) www.cij.gov.ar/nota-9003-
Derecho-a-la-vivienda--la-Corte-ordeno-a-la-Ciudad-poner-fin-a-la-situacion-de-calle-
de-una-madre-y-su-hijo-discapacitado.html accessed 10 March 2017��164
Supreme Court of Argentina, Smith v Poder Ejecutivo o Estado Nacional, [2002-I] JA 237,
1 February 2002��312
Supreme Court of Canada, Reference re Secession of Quebec, 37 ILM 1340 (1998)��287
Supreme Court of Costa Rica, No 05316-2003, Ligia Agüero Hernández c. directora del Centro
Educativo Nuestra Señora de Desamparados, 20 June 2003 ��170
Supreme Court of Costa Rica, No 06096-1997, Luis Murillo Rodríguez c. el Presidente Ejecutivo
de la Caja Costarricense de Seguro Social, 26 September 1997��170
Supreme Court of Ghana, New Patriotic Party v Attorney-General [1996–97] SCGLR 729��107
Supreme Court of India, Anupriya Nagori v Union of India, Thr its Secretary and Ors, MANU/
SCOR/00058/2017��201
Supreme Court of India, Dilip K Basu v State of West Bengal, MANU/SC/0799/2015 ��197
Supreme Court of India, Jolly George Verghese v Bank of Cochin, MANU/SC/0014/1980��196
Supreme Court of India, Maganbhai Ishwarbhai Patel v Union of India, (1969) 3 SCR 254 ��194
Supreme Court of India, N Sengodan v Secretary to Government, Home (Prohibition and Excise)
Department, Chennai and Ors (2013) 8 SCC 664 ��191
Supreme Court of India, NALSA v Union of India (2014) 5 SCC 438 �� 194, 197
Supreme Court of India, NALSA v Union of India, MANU/SC/0309/2014�� 194, 197
xv

Table of Cases xxv

Supreme Court of India, Nilibati Behra v State of Orissa, AIR 1993 SC 1960��191
Supreme Court of India, People’s Union for Civil Liberties v Union of India (UOI) and Anr,
MANU/SC/0039/2005��201
Supreme Court of India, Prem Shankar Shukla v Delhi Administration, AIR 1980 SC 1535 ��197
Supreme Court of India, Ram Jawaya Kapur v State of Punjab, AIR 1955 SC 549��194
Supreme Court of India, Rudul Sah v State of Bihar, AIR 1983 SC 1086 ��191
Supreme Court of India, Vishaka v State of Rajasthan, 1997 (6) SCC 241��193
Supreme Court of Justice of Mexico, No 378/2014, 15 October 2014��170
Supreme Court of Justice of Mexico, No 566/2015, 15 February 2017 ��170
Supreme Court of Namibia, Michael Andreas Müller v President of Namibia (SA 2/98) [1999]
NASC 2��110
Supreme Court of Nigeria, Sanni Abacha and others v Gani Fawehinmi (2001) AHLRR 172,
[2002] 3 LRC 296 ��111
Supreme Court of Swaziland, Swaziland National Ex-Miners Workers Association v The Minister
of Education & others (2010) Civil Appeal Case No 2/10, [2010] SZSC 35 ��112
Supreme Court of the Federated Malay States, PP v Wah Ah Jee (1919) 2 FMSLR 193��193
Supreme Court of Uganda, Centre for Health, Human Rights and Development & three others v
Attorney General, Constitutional Appeal No 1 of 2013 (30 October 2015)��108
Supreme Court of Uganda, Mifumi (U) Ltd and 12 others v Attorney General and Kenneth
Kakuru [2010] UGCC 2��113
Supreme Federal Court (Brazil), RE-AgR 271286 RS, Diná Rosa Vieira c/Município de Porto
Alegre, 12 September 2000��165
Supreme Federal Court (Brazil), RMS 17903, Kátia Mendes Campos c/Estado de Minas Gerais,
10 August 2004 ��166
Supreme Tribunal of Justice (Venezuela), No 00-1343, López, Glenda y otros c. Instituto
Venezolano de los Seguros Sociales (IVSS) s/acción de amparo, 2 December 2002��169
Supreme Tribunal of Justice (Venezuela) No 00-2305, Peña Linares y otros c. Instituto
Venezolano de los Seguros Sociales (IVSS) 12 June 2001��169
Supreme Tribunal of Justice (Venezuela) No 01-2832, Balza Meza, Maza de Balza y otros
c. Ministro de la Defensa y el Comandante General del Ejército, 12 June 2001��169
Supreme Tribunal of Justice (Venezuela) No 03-1100, Demanda de inconstitucionalidad por
omisión de la Asamblea Nacional al promulgar la Ley Orgánica de Seguridad Social,
2 March 2005��170
The Ministry of Justice v Prison Officers Association (POA) [2008] EWHC 239 (QB)��229
The Superintendent of Police and Ors v Padam Singh and Ors, 1977 AWC 515 (All.) ��196
US District Court for the Ninth Circuit, Native Village of Kivalina and City of Kivalina v
ExxonMobil Corporation et al, 663 F.Supp.2d 863 (2009) ��294
US Supreme Court, Massachusetts et al v Environmental Protection Agency, 127 S.Ct. 1438��294
Whaley & Another v Lord Advocate [2003] Scottish Court of Session (ScotCS) 178��229
Zimbabwe Harare High Court, Gramara (Private) Limited and Another v the Government of the
Republic of Zimbabwe (HC 33/09) [2010] ZWHHC 1 (26 January 2010)��121
Zimbabwe Supreme Court, Kachingwe and others v Minister of Home Affairs and Another
[2005] ZWSC 134, (2005) AHRLR 288 ��112
Zimbabwe Supreme Court, Lloyd Chaduka and Morgenster College v Enita Mandizvidza,
Judgment No SC 114/2001, Civil Appeal No 298/2000��112
xvi
xxvi

List of Contributors

Samantha Besson is Professor of Public International Law and European Law at the
University of Fribourg, Switzerland.
Başak Çali is Professor of International Law at Hertie School of Governance, Berlin, and
Director of the Centre for Global Public Law at Koç University, Istanbul. She has published
widely in many areas of international human rights law, including the influence of human
rights law in domestic settings.
Felice D Gaer is the Director of the Jacob Blaustein Institute for the Advancement of Human
Rights. She is also the Vice-Chair of the Committee against Torture, a United Nations-ad-
ministered treaty monitoring body on which she has served since 2000.
Stephen Humphreys is an Associate Professor of International Law at the London School
of Economics.
Christine Kaufmann is Professor of International and Constitutional Law and Chair of the
Centre for Human Rights Studies at the University of Zurich. Her main research interests
include the interactions between human rights, business and economic law, and the related
implications on global governance.
Helen Keller serves as a Judge at the European Court of Human Rights and is Professor of
Public Law, European Law. and Public International Law at the University of Zurich. She is
also a former member of the UN Committee on Human Rights.
Daniel Moeckli is an Assistant Professor of Public International Law and Constitutional Law
at the University of Zurich and a Fellow of the University of Nottingham Human Rights Law
Centre.
Amrei Müller is a Leverhulme Trust Early Career Researcher in the Health and Human
Rights Unit at the School of Law, Queen’s University, Belfast. At present, she is conducting
research for the project ‘Healthcare in conflict: Do armed groups have obligations and re-
sponsibilities?’, spanning human rights and international humanitarian law.
Patrick Mutzenberg holds a PhD in Human Rights from the University of Grenoble. He is
currently the Director of the Centre for Civil and Political Rights, an NGO facilitating the
participation of civil society in the work of the Human Rights Committee. He is also a lay-
judge at the Criminal Tribunal in Geneva.
Gerald L Neuman is the J Sinclair Armstrong Professor of International, Foreign, and
Comparative Law at Harvard Law School, and the Co-Director of its Human Rights
Program. From 2011 to 2014, he was a member of the Human Rights Committee.
Mónica Pinto is Professor of International Law and International Human Rights Law,
Director of the Master Program on International Human Rights Law, University of Buenos
Aires Law School. She is a Member of the Committee of Experts on the Application of
ILO Conventions and Recommendations, and President of the World Bank Administrative
Tribunal.
xxvii

xxviii List of Contributors

Maya Hertig Randall (attorney at law, LLM Cambridge) is a tenured Professor of
Constitutional Law at Geneva University. She is a member of the Swiss Federal Commission
Against Racism and the ICRC, and co-directs the Certificate of Advanced Studies in Human
Rights at the University of Geneva.
Martín Sigal is a Professor at the University of Buenos Aires Law School. He qualified as a
lawyer at the University of Buenos Aires, and holds a Master in Laws (LLM) from Columbia
University. He is a founder and former director of Asociación Civil por la Igualdad y la
Justicia, and currently Director of the Center of Human Rights at UBA Law School, and a
Member of the Board of Amnesty International, Argentina, and ACIJ.
Manisuli Ssenyonjo is Professor of International Law and Human Rights at Brunel
University, London. He is the managing editor and co-editor-in-chief of the International
Human Rights Law Review. His research and teaching interests are in areas of public inter-
national law and human rights law, including economic, social, and cultural rights.
Yogesh Tyagi is Vice Chancellor of the University of Delhi and a Member of the Institut de
Droit International.
xi

List of Abbreviations

AC Appeal Cases
ACHPR African Charter on Human and Peoples’ Rights
ACHR American Convention on Human Rights
ACIJ Civil Association for Equality and Justice (Asociación Civil por la
Igualdad y la Justicia)
ACtHPR African Court on Human and Peoples’ Rights
AD Appellate Division (of the Bangladeshi Supreme Court)
AICHR Intergovernmental Commission of Human Rights
AIR All India Reporter
AJIL American Journal of International Law
ALI American Law Institute
ASEAN Association of Southeast Asian Nations
AU African Union
AWC Allahabad Weekly Cases
BGBl Bundesgesetzblatt (Germany)
BLC Bangladesh Law Chronicles
BLD Bangladesh Legal Decisions
BT German Bundestag
BVerwG Bundesverwaltungsgericht (German Federal Administrative Court)
BvR Verfassungsbeschwerde zum Bundesverfassungs-gericht (constitutional
complaint to the Federal Constitutional Court of Germany)
BwCA Botswana Court of Appeal
BYIL British Yearbook of International Law
Cal. Calcutta
CAR Central African Republic
CAT United Nations Convention against Torture (also referred to as UNCAT)
CBDR common but differentiated responsibilities
CEDAW United Nations Convention on the Elimination of all Forms of
Discrimination Against Women
CEDMHR Commission for Eliminating Discrimination and Monitoring of Human
Rights (Sri Lanka)
CELS Centro de Estudios Legales y Sociales (Center for Legal and Social Studies)
CERD Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
ch chapter
CJEU Court of Justice of the European Union
CMW Committee on the Rights of Migrant Workers
CoE Council of Europe
CPR civil and political rights
CRC Convention on the Rights of the Child
Cri LJ Criminal Law Journal (India)
CRPD Convention on the Rights of Persons with Disabilities
x

xxx List of Abbreviations

DLR Dhaka Law Reports (Bangladesh)
DRC Democratic Republic of the Congo
ECHR European Convention on Human Rights
ECLAC Economic Commission for Latin America and the Caribbean
ECOSOC UN Economic and Social Council
ECSR European Committee of Social Rights
ECtHR European Court of Human Rights
EFSF European Financial Stability Facility
EHRC Equality and Human Rights Commission
EJIL European Journal of International Law
eKLR Kenya Law Reports
ESCh European Social Charter
ESCR economic, social and cultural rights
ESCR-Net International Network for Economic, Social and Cultural Rights
ESIL European Society of International Law
ESM European Stability Mechanism
ETS European Treaty Series
EU European Union
EWCA England and Wales Court of Appeal
EWHC England and Wales High Court (Administrative Court)
F.Supp.2d Federal Supplement, Second Series (US)
FAO UN Food and Agriculture Organization
FCC German Constitutional Court
FMSLR Federated Malay States Law Report
GAOR Official Records of the UN General Assembly
GATT WTO General Agreement on Tariffs and Trade
GDP Gross Domestic Product
GHG greenhouse gas
Hague YIL Hague Yearbook of International Law
HCD High Court Division (of the Bangladeshi Supreme Court)
HCJ Israeli High Court of Justice
HIV human immunodeficiency virus
HL House of Lords
HRC Human Rights Committee
HRCSL Human Rights Commission of Sri Lanka
HRTF Human Rights Task Force (Sri Lanka)
IACHR Inter-American Commission on Human Rights
IACtHR Inter-American Court of Human Rights
IASHR Inter-American System on Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICERD Convention on the Elimination of All Forms of Racial Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICM Inter-Committee Meeting
ICSID International Centre for Settlement of Investment Disputes
ICT-BD International Crimes Tribunal of Bangladesh
IFC International Finance Corporation
IFIs international financial institutions
xxi

List of Abbreviations xxxi

IFOR International Fellowship of Reconciliation
IHRL international human rights law
IHRR International Human Rights Reports
ILA International Law Association
ILDC Oxford Reports on International Law in Domestic Courts
ILO International Labour Organization
IMF International Monetary Fund
IPCC Intergovernmental Panel on Climate Change
JCHR the UK Parliament’s Joint Committee on Human Rights
Ker. Kerala
LeCA Lesotho Court of Appeal
LNTS League of Nations Treaty Series
LOIPR List of Issues Prior to Reporting
LR Law Review
MENA Middle East and North Africa
MLJ Malayan Law Journal
NASC Namibian Supreme Court
NCHR National Commission for Human Rights (Pakistan)
NCIIHRT National Committee for the Implementation of International Human
Rights Treaties (North Korea)
NDCs nationally determined contributions
NGO(s) non-governmental organization(s)
NHRC National Human Rights Commission (India)
NHRIs national human rights institutions
NIHRC the Northern Ireland Human Rights Commission
NMRF National Mechanism for Reporting and Follow-up
OAS Organization of American States
OECD Organization for Economic Co-operation and Development
OHCHR Office of the United Nations High Commissioner for Human Rights
OP1-ICCPR First Optional Protocol to the ICCPR
OP-ICESCR Optional Protocol to the ICESCR
PACE Parliamentary Assembly of the Council of Europe
PCIJ Permanent Court of International Justice
PSNR permanent sovereignty over natural resources
RCC Russian Constitutional Court
(R)ESCh (Revised) European Social Charter
RSC Russian Supreme Court
SAR Special Administrative Region
SC Supreme Court
SCC Supreme Court Cases (India)
SCGLR Supreme Court of Ghana Law Reports
SCHR the Scottish Human Rights Commission
ScotCS Scottish Court of Session
SCR Supreme Court Reports (India)
SeCC Senegalese Court of Cassation
SLR Sri Lankan Law Reports
SPR Simplified Reporting Procedure
SUHAKAM National Human Rights Commission of Malaysia
(Suruhanjaya Hak Asasi Manusia)
xxxi

xxxii List of Abbreviations

UDHR Universal Declaration of Human Rights
UgCC Ugandan Constitutional Court
UK United Kingdom
UKSC Supreme Court of the United Kingdom of Great Britain and
Northern Ireland
UNCAT United Nations Convention against Torture (also referred to as CAT)
UNGA United Nations General Assembly
UNGP UN Guiding Principles on Business and Human Rights
UNTB UN human rights treaty bodies
UNTC United Nations Treaty Collection
UNTS United Nations Treaty Series
UPR Universal Periodic Review
VCLT Vienna Convention on the Law of Treaties
WTO World Trade Organization
ZACC Constitutional Court of South Africa
ZASCA Supreme Court of Appeal of South Africa
ZWHHC Zimbabwe Harare High Court
1

1
Introduction
Helen Keller and Daniel Moeckli

Human rights protection today marks a cornerstone of international law and belongs
to its most developed areas. Human rights are enshrined in international conventions,
as well as national constitutions, and form the subject of innumerable treatises. As com-
pared to many other subject areas of international law, human rights have a considerable
advantage: they can be asserted before international adjudicative bodies or courts. Their
recognition is ‘the foundation of freedom, justice and peace in the world’, as the preambles
of the International Covenant on Economic, Social and Cultural Rights (ICESCR)1 and
the International Covenant on Civil and Political Rights (ICCPR)2 proclaim. However,
the international system of human rights protection has been facing a number of major
challenges, such as how to deal with the distinction between different categories of rights
or how to design effective monitoring mechanisms. The system is very likely to continue
to attract a great deal of attention over the next few years, as it is faced with the question of
how to guarantee human rights in times of globalization, financial crises, environmental
disasters, and climate change, war, and terrorism. The reader will find some answers to
these questions in the present book, which contains papers that were presented during a
symposium held in Zurich, Switzerland, in 2016 on the occasion of the fiftieth anniver-
sary of the adoption of the ICESCR and the ICCPR.3
Half a century ago, on 16 December 1966, the UN General Assembly adopted
the two UN human rights Covenants. While their adoption was celebrated all over
the world, their fiftieth anniversary has received very little attention from the inter-
national community.4 The present volume marks this anniversary by taking stock
of the first half-century of the existence of what are probably the world’s two most
important human rights treaties. It does so by reflecting on what the Covenants
have achieved (or failed to achieve) in the years that have passed, by determining

1 International Covenant on Economic, Social and Cultural Rights (opened for signature 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
2 International Covenant on Civil and Political Rights (opened for signature 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171.
3 The Symposium was organized by the Institute for Public International Law of the University
of Zurich together with the European Society of International Law (ESIL) and took place on 14–15
April 2016.
4 See, for one of the rare exceptions, Eibe Riedel, ‘Reflections on the UN Human Rights Covenants
at Fifty’ (2016) 54 Archiv des Völkerrechts, 132–54.

The Human Rights Covenants at 50: Their Past, Present, and Future. Daniel Moeckli, Helen Keller,
and Corina Heri. © Daniel Moeckli, Helen Keller, and Corina Heri 2018. Published 2018 by Oxford
University Press.
2

2 Introduction
and comparing their current influence in the various regions of the world, and by
assessing their potential roles in the future.
Some fundamental issues that are addressed by the contributors to this book are
as old as the two Covenants themselves. They concern, for example, the division of
human rights into first-and second-generation rights, and the questions of whether
there should be one central monitoring body—possibly a world court—or more
than just one, and whether such a body or bodies should be able to issue legally
binding decisions or ‘only’ recommendations. Other important questions dealt with
in this book are how human rights treaties should be interpreted—in compliance
with the Vienna Convention on the Law of Treaties or, rather, sui generis—and who
is bound by the Covenants—only State actors or also private individuals. However,
the contributors go beyond such questions, which have been explored before; they
develop new answers to old questions and point to new challenges.
The book begins by looking back to the origins of the Covenants. The Covenants’
story began with the ambitious goal of creating an International Bill of Human
Rights. In 1945, the first milestone in this regard was reached with the proclam-
ation of the Universal Declaration of Human Rights (UDHR).5 The next step was
to be the inclusion of the UDHR rights in a binding human rights treaty. After
years of tough negotiations, the two binding UN human rights covenants were fi-
nally adopted on 16 December 1966. In her chapter entitled ‘The History of the
Covenants: Looking Back Half a Century and Beyond’, Maya Hertig Randall gives
a detailed account of that time and the political context of the negotiation process.
The ICCPR and the ICESCR have played an important role in the protection
of human rights in the last decades. The fact that a large number of States have
ratified the twin Covenants can certainly be regarded as a success.6 Furthermore,
the introduction of different monitoring and enforcement mechanisms—from the
State reporting process to the individual application system—is another important
achievement. With regard to the implementation of the Covenants, much depends
on the actors involved, including the treaty bodies—the Committee on Economic,
Social and Cultural Rights (CESCR) and the Human Rights Committee (HRC) —
and non-governmental organizations (NGOs). In this context, Gerald L Neuman,
in his chapter ‘Giving Meaning and Effect to Human Rights: The Contributions of
Human Rights Committee Members’, presents and discusses the multiple roles that
the members of the HRC play with regard to the implementation of the rights guar-
anteed in the ICCPR. He argues that the members’ most important contribution
is their credible and professional interpretation of the ICCPR rights, thereby pro-
viding an objective framework for criticizing States’ failure to respect these rights.
Daniel Moeckli, on the other hand, comments on the—disputed—techniques
that the CESCR has developed in order to interpret the ICESCR. His chapter
‘Interpretation of the ICESCR: Between Morality and State Consent’ argues that,

5 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).
6 165 States have ratified the ICESCR and 169 States have ratified the ICCPR. See Office of the
High Commissioner for Human Rights, ‘Ratification of 18 International Human Rights Treaties’
<http://indicators.ohchr.org/> accessed 6 June 2017.
3

Introduction 3

for its interpretive practice to be legitimate, the CESCR must adhere to a set of in-
terpretive principles, apply these principles in a coherent manner, and lay bare how
a particular interpretive outcome is reached. Patrick Mutzenberg, in his contri-
bution on ‘NGOs: Essential Actors for Embedding the Covenants in the National
Context’, illustrates the position and the tasks of NGOs within the work of the
Committees, as well as their crucial role in the process of implementing the recom-
mendations of the Committees at the national level.
Almost half of the chapters of this book are dedicated to the assessment of the
current influence of either the ICCPR or the ICESCR in one of the world’s re-
gions. The authors—namely Manisuli Ssenyonjo for Africa, Başak Çali for the
Middle East, Mónica Pinto and Martín Sigal for Latin America, Yogesh Tyagi
for Asia, and Amrei Müller for Europe—were provided with the same set of non-
exhaustive questions as a starting point for their contributions. They were asked to
identify broad trends and challenges within the respective regions, or rather within
States parties belonging to these regions, by considering, inter alia, the impact of the
Covenants on national legislation and on the jurisprudence of national and regional
courts; the influence of the General Comments, concluding observations on State
reports, and Views concerning individual communications issued by the HRC and
the CESCR; the impact of the Universal Periodic Review process with regard to
the Covenants; the impact of the Covenants’ standing on legal scholarship; and the
availability of the relevant UN documents in the respective local languages as well as
the accessibility of these documents.
The differences between the methodological approaches adopted by the authors
of the five regional reports and the results they reached are striking. This might
already be taken as an indication of the different underlying perceptions of the
Covenants within the various world regions. None of the reports is based strictly on
empirical studies. In other words, it is not possible to scientifically establish what
kind of impact the Covenants have—or rather have had in the past—on the rele-
vant national societies or on individuals, or the extent of such an impact. However,
each of these reports contains the appraisal of a human rights expert—or, in the
case of the Latin American report, two experts—who knows the relevant region
and gives professional insight into the situation. It goes without saying that these as-
sessments are subjective. Nevertheless, in the words of Samantha Besson, ‘the five
reports . . . provide the first opportunity for a global or universal comparison of the
influence of the two Covenants in domestic law’.7 Besson accepted the challenge of
comparing the regional reports. In her chapter, entitled ‘The Influence of the Two
Covenants on States Parties across Regions: Lessons for the Role of Comparative Law
and of Regions in International Human Rights Law’, she not only presents a study
in comparative international human rights law, but also provides a contribution to
its methodology. Furthermore, she explores a central and recurring issue, namely the
legitimacy of the Committees’ interpretations of their respective Covenants, from

7 Samantha Besson, ‘The Influence of the Two Covenants on States Parties Across Regions: Lessons
for the Role of Comparative Law and of Regions in International Human Rights Law’, Chapter 11 in
this volume.
4

4 Introduction
a comparative perspective. She argues that a comparison of regional approaches to
human rights issues may provide the Committees with a fruitful avenue for iden-
tifying and consolidating an international consensus around Covenant rights, and
that such a region-by-region approach may ease this process as compared to a purely
State-by-State approach.
Finally, the book dares to take a look into the future. What challenges will the
Covenants have to face? What role will they play in the years to come? Is there a need
for institutional changes to ensure better implementation of the human rights en-
shrined in these treaties? Possible answers to these questions are found in Stephen
Humphreys’s chapter, ‘The Covenants in the Light of Anthropogenic Climate
Change’. He predicts a rather bleak future for the Covenants given that climate
change has a huge and growing impact on the human rights system. He claims that
the gap between the nominal rights enshrined in the Covenants and the legal rem-
edies available to assert their breach is widening and beginning to appear unbridge-
able. Hence, in a warming world, the promise of the Covenants to protect human
rights cannot be kept. Christine Kaufmann, for her part, elaborates on the nature
of financial crises, their impact on human rights, and the role(s) of the States bound
by the Covenants. Her chapter, entitled ‘The Covenants and Financial Crises’, pro-
poses three key elements for an effective implementation of the Covenants in times
of financial crises: a people-oriented, rights-based perspective, a process to foster
coherence, and a fresh paradigm which she calls ‘translational human rights’. Finally,
in ‘The Institutional Future of the Covenants: A World Court for Human Rights?’,
Felice Gaer discusses and analyses the proposal by Manfred Nowak and Martin
Scheinin to introduce a ‘world court of human rights’ to overcome the problem of
the weak implementation system for Covenant rights. She advocates, instead of
aiming at the creation of a ‘world court’ as a new ‘big idea’, a thorough analysis of the
existing treaty body system in order to achieve the ultimate goal: providing greater
human rights protection and enforcement of individual complaint decisions. In
this analysis, one would, inter alia, need to consider the question of how to respond
to the phenomenon that the human rights treaty bodies’ reactions are notoriously
late in many cases. Or, to put it differently: how can human rights bodies discuss
imminent human rights violations in good time, in order to prevent them from
taking place?
The added value of this book, we believe, lies in the diversity of its essays. Due to
the different regional, theoretical, and professional backgrounds of the contributors,
the volume gives the reader a unique, comprehensive, and practical insight into the
multifaceted and contentious nature of human rights from different perspectives.
In times when the human rights system is constantly challenged, the inter-
national community would do well to pay (more) attention to the fiftieth anni-
versary of the two human rights treaties that are probably the most important
and well-known instruments of their kind worldwide, to recall the—positive and
negative—experiences made with them in the past half-century, and to learn from
them. Today’s challenges call for an effective human rights system. This book tells us
that the ICESCR and the ICCPR undoubtedly contribute to the powerful protec-
tion of human rights throughout the world.
5

PA RT I
T H E PA S T
What Have the Covenants (Not) Achieved?
6
7

2
The History of the Covenants
Looking Back Half a Century and Beyond

Maya Hertig Randall

I. Introduction

The adoption of the Universal Declaration of Human Rights (UDHR)1 on 10

December 1948 realized the first of the three limbs of an international bill of
rights: (1) a declaration of rights, to be complemented at a later stage by (2) a binding
human rights treaty and (3) international measures of implementation.2 Whilst the
adoption of the UDHR undoubtedly marked a milestone in the history of inter-
national human rights and has rightly been celebrated as a tremendous achieve-
ment,3 the realization of the second and third prongs was no less important. Casting
the rights contained in the UDHR into binding treaty law was a paradigm shift,4
raising many intricate questions:5 how precisely should the rights be worded? Under
which circumstances and conditions should it be possible to limit or to suspend
them at times of emergency? Should States be free to enter reservations to binding
human rights provisions or would this undermine the universal aspiration of the

1 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).
2 See ECOSOC (UN Economic and Social Council) Res 1/5 (16 February 1946).
3 As the UDHR did not provide for legal institutionalization, international lawyers’ early reac-
tions were, however, marked by scepticism. See Jochen von Bernstorff, ‘The Changing Fortunes of the
Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in
International Law’ (2008) 19 EJIL 903, 903–10.
4 When the UDHR was adopted, many State representatives stressed the fact that it did not create
any legal obligations. The representative of the United States, for instance, made the following state-
ment before the General Assembly: ‘[i]‌n giving our approval to the Declaration today, it is of primary
importance that we keep clearly in mind the basic character of the document. It is not a treaty; it is not
an international agreement. It is not and does not purport to be a statement of law or of legal obligation’
(‘Remarks by Mrs Franklin D Roosevelt’ (1948) Department of State Bulletin 19 751, as cited in Hersch
Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354, 358). The United
States’ insistence that the UDHR was not a treaty reflected its stance during the drafting process. Like
the Soviet Union, it had been pushing for a nonbinding document (see Christopher NJ Roberts, The
Contentious History of the International Bill of Human Rights (CUP 2015) 68.
5 The negotiations on most of these questions are described in Roger Normand and Sarah Zaidi,
Human Rights at the UN: The Political History of Universal Justice (University of Indiana Press 2008)
197–242.

8 The History of the Covenants

International Bill of Human Rights?6 What obligations would States precisely have
under a binding human rights treaty? Should these obligations extend to all levels of
government or should the federal structure of States be taken into account?7 Should
the human rights treaty to be drafted extend to dependent territories? Drafting a
binding human rights treaty required agreement on these vexing legal issues.
Providing for international supervision and enforcement mechanisms for the
rights enshrined in a binding treaty was even more challenging: it required ‘States to
submit to international supervision their relationship with their own citizens, some-
thing which has been traditionally regarded as an absolute prerogative of national
sovereignty’.8 Accepting international implementation signified ‘a revolutionary
change in the status of the individual’,9 based on the insight that the most fun-
damental rights of every human being are a matter of international concern tran-
scending the interest of any single State.10
The members of the United Nations (UN) grappled with the tremendous obs-
tacles entailed in completing the International Bill of Human Rights for almost two
decades. The Commission on Human Rights (hereafter ‘the Commission’) finished
its task in 1954. As is well known, its work resulted in two draft treaties, instead
of one as originally envisaged.11 The subsequent negotiation and review process
of the two draft Covenants within the UN General Assembly (UNGA) (mainly
within its Third Committee) lasted twelve years. By the time the UNGA adopted
the International Covenant on Economic, Social and Cultural Rights (ICESCR),12

6 As no agreement could be reached, the Covenants are silent on this issue. On the negotiations,
see ibid 232–40.
7 The United States, supported by other federal States, namely Canada and Australia, pressed for
over a decade for a so-called federal clause, which would have enabled federal States to limit the applic-
ability of the covenant to the federal government. Due to strong opposition, this view did not prevail.
ICCPR art 50 and ICESCR art 28, as finally adopted, read: ‘[t]‌he provisions of the present Covenant
shall extend to all parts of federal States without any limitations or exceptions.’ On the controversy
raised by the federal clause, see Normand and Zaidi, Human Rights (n 5) 224–32; AW Bryan Simpson,
Human Rights and the End of Empire: Britain and the Genesis of the European Convention (paperback edn,
OUP 2004) 470–71.
8 Speech by John Humphrey (1 January 1952) UN Archives/Geneva, SOA 317/4/01 (C), quoted
in Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (3rd edn, University
of Pennsylvania Press 2011) 232.
9 Hersch Lauterpacht, An International Bill of the Rights of Man (OUP 2013) 194–95.
10 ibid.
11 For the decision to adopt two Covenants instead of one, see UNGA Res 543 (VI) (5 February
1952) UN Doc A/ RES/ 543(VI). The General Assembly requested ECOSOC to instruct the
Commission on Human Rights ‘to draft two Covenants on Human Rights, to be submitted simul-
taneously for the consideration of the General Assembly at its seventh session, one to contain civil and
political rights and the other to contain economic, social and cultural rights, in order that the General
Assembly may approve the two Covenants simultaneously and open them at the same time for signa-
ture, the two Covenants to contain, in order to emphasize the unity of the aim in view and to ensure
respect for and observance of human rights, as many similar provisions as possible, particularly in so
far as the reports to be submitted by States on the implementation of those rights are concerned’ (para
1). For a detailed analysis of the process leading to the split into two Covenants, see Daniel J Whelan,
Indivisible Human Rights: A History (University of Pennsylvania Press 2010) 113–14 (ch 6).
12 International Covenant on Economic, Social and Cultural Rights (ICESCR) (opened for signa-
ture 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
9

Introduction 9

the International Covenant on Civil and Political Rights (ICCPR),13 and the
Optional Protocol to the ICCPR14 on 16 December 1966,15 eighteen years had
elapsed since the adoption of the UDHR in 1948. It took another decade until
both Covenants entered into force once the necessary thirty-five ratifications had
been gained.16
The present chapter will not recount the various stages of the lengthy drafting
process.17 To provide a better sense of what the drafters of the Covenants achieved,
Section II will outline the political context of the genesis of the two human rights
treaties. Section III will cast a spotlight on three thorny and intertwined issues
with which the drafters grappled, namely: what rights should be included in a
binding human rights treaty (Section III.A)? What obligations should States have
under the Covenants to ensure effective implementation of human rights on the
domestic level (Section III.B)? What mechanisms of international supervision
and enforcement should be established as ultimate safeguards against State failure
to observe human rights (Section III.C)? These questions are closely related to
the controversial and much-debated decision to split the proposed covenant into
two.18 This schism was not only of ideological, symbolic, and political signifi-
cance. It also mattered for legal reasons, as the ICESCR and the ICCPR differ
with respect to States’ obligations and the measures of international oversight. In
analysing these three issues, this chapter will also cast some light on the reasons
for and implications of the decision to adopt two human rights instruments in-
stead of one and on the relationship between the two sets of rights protected by
the Covenants.

13 International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16 December
1966, entered into force 23 March 1976) 999 UNTS 171.
14 First Optional Protocol to the ICCPR (opened for signature 16 December 1966, entered into
force 23 March 1971) 999 UNTS 171.
15 UNGA Res 2200A (XXI) (16 December 1966) UN Doc A/RES/21/2200. The ICESCR was
adopted with a vote of 105 to zero, the ICCPR with a vote of 106 to zero, and the Optional Protocol to
the ICCPR with 66 to 2 votes (with Togo and Niger voting against) and 38 abstentions, including all
of the socialist States (see Christian Tomuschat, ‘International Covenant on Civil and Political Rights
(1966)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2012)
vol V, 639).
16 The ICESCR entered into force on 3 January 1976, in accordance with ICESCR art 27. It has
been ratified by 165 States (as of May 2017). The ICCPR entered into force on 23 March 1976, in ac-
cordance with its art 49. It has been ratified by 169 States (as of May 2017).
17 For a detailed account, see Whelan, Indivisible (n 11) chs 4–6, with an Appendix showing
the timeline of the drafting process (217), and Normand and Zaidi, Human Rights (n 5) 197–98.
Immensely valuable for tracing the genesis of the ICCPR is Marc J Bossuyt, Guide to the ‘Travaux
Préparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff 1986). For
succinct overviews of the drafting process, see Dominic McGoldrick, The Human Rights Committee: Its
Role in the Development of the International Covenant on Civil and Political Rights (OUP 1991) 3–18,
and Tomuschat, ‘ICCPR’ (n 15) (both focusing on the ICCPR); Matthew CR Craven, The International
Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (OUP 1995) 16–22
(focusing on the ICESCR).
18 On the various reasons (ideological/political, pragmatic, and legal) underlying the split, see Craig
Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the
International Covenants on Human Rights’ (1989) 27 Osgoode Hall L J 794.
10

10 The History of the Covenants

II. The Political Context

The aftermath of the Second World War was the ‘constitutional moment’19 of inter-
national society, leading to the creation of the UN and to work on an international
catalogue of human rights.20 The authors of the UDHR were, however, aware that
the ‘window of opportunity’21 was closing fast,22 and therefore pressed for a speedy
adoption of the Declaration. Although the Commission on Human Rights had de-
cided in 1947 to proceed first with the Declaration,23 work on the second and third
prongs of the International Bill of Human Rights had been going on in parallel.24
The Commission officially resumed work on the covenant and international measures
of implementation in 1949. Although tensions between West and East had already
overshadowed the drafting process of the UDHR, Cold War antagonism left an even
stronger imprint on the work on the covenant, both within the Commission and
within the General Assembly. In 1950, for instance, the Soviet Union withdrew from
the Commission’s sessions as a sign of protest against the refusal of the UN to unseat
the representative of the Kuomintang in favour of the representative of the People’s
Republic of China after the 1949 Revolution. As Samuel Moyn highlights, the Soviet
absence enabled an agreement within the Commission on a first draft of a human
rights covenant but came at the cost of labelling the UN human rights endeavour a
Western, anti-communist project.25
Apart from the ‘Deep Freeze’,26 another influential factor was the decoloniza-
tion movement. Between 1948 and 1966, UN membership increased dramatically
from 58 to 122 States,27 many of which were newly independent African and Asian
countries. Decolonization and the new African-Asian group shaped the evolution

19 The term is borrowed from Bruce Ackerman, The Future of Liberal Revolution (Yale University
Press 1992) 48.
20 For the evolution of international human rights before the adoption of the UN Charter, see eg Jan
Herman Burgers, ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth
Century’ (1992) 14 Human Rights Q 447.
21 On the ‘window of opportunity’ for domestic constitution-making after revolutionary changes,
see Ackerman, Liberal Revolution (n 19) 46–47.
22 See Mary Ann Glendon, ‘The Forgotten Crucible: The Latin American Influence on the Universal
Human Rights Idea’ (2003) 16 Harvard Human Rights J 27, 37 (recounting mainly John Humphrey’s
concerns).
23 The United States and the Soviet Union were the main driving forces behind the move to put off
work on a binding convention (see Simpson, End of Empire (n 7) 431).
24 Three working groups, each dealing with one prong of the International Bill of Human Rights,
were set up in 1947 (ibid 431–32).
25 Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2010) 69–70.
Prominent human rights issues raised within the UN around the same time reinforced the impression
that human rights went hand-in-hand with anticommunism (for more details, see 71).
26 This expression is used by the title of ch 11 of Mary Ann Glendon, A World Made New: Eleanor
Roosevelt and the Universal Declaration of Human Rights (Random House 2001).
27 See the information available at UN, ‘Growth in United Nations Membership, 1945–Present’
<www.un.org/en/sections/member-states/growth-united-nations-membership-1945-present/index.
html> accessed 7 April 2017.
1

The Political Context 11

of human rights and the work on the Covenants in manifold ways.28 Firstly, they
favoured the universal reach of international human rights law by dealing a deadly
blow to the attempts of colonial powers to keep human rights out of dependent
territories on the grounds that the colonial people lacked the necessary level of de-
velopment.29 Secondly, with the newly independent nations becoming the biggest
voting bloc in the General Assembly,30 the emphasis shifted towards their major
concerns, namely the fight against racism and discrimination on the one hand and
self-determination on the other. The influence of the former colonies favoured the
inclusion of non-discrimination provisions in the Covenants.31 African and Asian
States’ opposition to racial discrimination was epitomized by the struggle against
apartheid in South Africa.32 Supported by a transnational network of grass-roots
movements,33 the fight against racism and apartheid was also the driving force be-
hind the first human rights treaty to be adopted after the UDHR, the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of
21 December 1965.34 Claims for self-determination were supported by the Soviet
Union,35 which was competing with the West for the support of the newly inde-
pendent States. Backed by the General Assembly,36 these claims resulted in the in-
clusion of a provision on the right to self-determination—a right that is absent from
the UDHR—in both Covenants.37

28 Several authors caution, however, against an understanding of the movement of decolonization

as a human rights movement. See mainly Moyn, Last Utopia (n 25) 97–98; Simpson, End of Empire (n
7) 300.
29 See Moyn, Last Utopia (n 25) 96; Lauren, Evolution (n 8) 234. During the negotiation of the
Covenants, the United Kingdom pressed for a so-called colonial clause enabling ratifying States to
limit or exclude the applicability of the Covenants to their dependent territories. These efforts were not
backed by the General Assembly (see UNGA Res 422(V) (4 December 1950) UN Doc A/RES/422(V)
instructing the Commission to include a provision specifying that the covenant should apply to all terri-
tories governed or administered by the metropolitan State) and were ultimately defeated. See Normand
and Zaidi, Human Rights (n 5) 230–35; on the colonial clause, see also Roberts, Contentious History (n
4) 132–33; Simpson, End of Empire (n 7) also 288–89 and 476–77.
30 See Jean H Quataert, Advocating Dignity: Human Rights Mobilizations in Global Politics (University
of Pennsylvania Press 2009) 71–72, highlighting that in 1966, 64 out of the 117 member States of the
UN were African and Asian States.
31 For more details, see Moyn, Last Utopia (n 25) 97–98.
32 For a detailed account of the struggle against apartheid and its impact on the human rights move-
ment, see Quataert, Advocating Dignity (n 30) 69–70.
33 See ibid 87–88. The same author’s study stresses the more general importance of human rights
advocacy groups for human rights policies within the UN system. On the contribution of social move-
ments and social practices to fleshing out the content of human dignity, see Matthias Mahlmann, ‘The
Good Sense of Dignity: Six Antidotes to Dignity Fatigue in Ethics and Law’ in Christopher McCrudden
(ed), Understanding Human Dignity (OUP 2013) 593, 598–99.
34 International Convention on the Elimination of All Forms of Racial Discrimination (opened
for signature 7 March 1966, entered into force 4 January 1969) 666 UNTS 195. See also Quataert,
Advocating Dignity (n 30) 77.
35 For the Soviet Union’s official anticolonial stance, see eg Moyn, Last Utopia (n 25) 79; Simpson,
End of Empire (n 7) 290.
36 UNGA Res 545 (VI) (5 February 1952) UN Doc A/RES/545(VI).
37 On self-determination and the ICCPR, see Burak Cop and Doğan Eymirlioğlu, ‘The Right of
Self-Determination in International Law Towards the 40th Anniversary of the Adoption of the ICCPR
and the ICESCR’ [2005] Perceptions 115; Normand and Zaidi, Human Rights (n 5) 212–24; Moyn,
Last Utopia (n 25) 97–98.
12

12 The History of the Covenants

The movement emphasizing self-determination was not only beneficial to the
development of human rights; it also had its drawbacks. Once former colonies had
gained independence, there was a trend to conflate self-determination with national
sovereignty and non-interference in domestic affairs.38 This vision, also championed
by the Soviet Union, was difficult to reconcile with the project for an international
bill of rights aimed at providing effective protection to individuals against their
own States. Coupled with development concerns, the focus on self-determination
triggered Western fears that human rights were being transformed from individual
rights claims into interstate claims to international assistance39 and into an ideo-
logical tool of anti-colonialism.40 The fact that newly independent States had be-
come an important force within the General Assembly and its Third Committee
exacerbated these concerns.
In the light of shifting power constellations and Cold War antagonism, the vic-
torious powers of the Second World War showed little enthusiasm for a binding
human rights treaty and international measures of implementation. They were
also aware that their human rights record was not immune to criticism: ‘the Soviet
Union had domestic terror and the Gulag; England and France had colonies; and
the United States had racism’.41 The superpowers did not miss a chance to attack
their political opponents, shaming them for their human rights violations whilst
turning a blind eye to their own weaknesses.42 In this context, the United Kingdom
decided in 1951 on the ‘prudent course . . . to prolong the international discussions,
to raise legal and practical difficulties, and to delay the conclusion of the Covenant
as long as possible’.43 The Soviet Union persisted in its strategy of being highly de-
fensive of national sovereignty. It adamantly opposed any international supervision
of human rights in the name of non-interference in domestic affairs.44 The United
States was facing domestic opposition to the UN and the international human rights
project, as epitomized by McCarthyism, the proposed Bricker Amendment to the
Constitution,45 and opposition from the American Bar Association.46 As a result,

38 Moyn, Last Utopia (n 25) 98. 39 See Whelan, Indivisible (n 11) 108.
40 ibid 86, recounting John Humphrey’s and Eleanor Roosevelt’s concerns.
41 Wiktor Osiatynski, ‘On the Universality of the Universal Declaration of Human Rights’ in Andras
Sajó (ed), Human Rights with Modesty: The Problem with Universalism (Springer 2004) 36.
42 The federal and the anti-colonial clauses, championed by the United States and the United
Kingdom, respectively, made both States subject to strong criticism from the Eastern bloc (see Normand
and Zaidi, Human Rights (n 5) 228 and 231). Criticism levelled at the federal clause was linked to the
broader charge that the United States failed to grapple with racial discrimination in the Southern states
(on Soviet criticism of racial discrimination in the United States, see Glendon, World Made New (n
26) 203). Self-determination was an issue exploited by both camps to accuse each other of imperialism
and hypocrisy (see Normand and Zaidi, Human Rights (n 5) 215–16).
43 Memorandum by Foreign Secretary Herbert Morrison, as cited in Simpson, End of Empire (n
7) 815.
44 See eg Simpson, End of Empire (n 7) 417, 478–79; Normand and Zaidi, Human Rights (n 5) 237.
45 Senator John Bricker made several proposals to amend the US Constitution which would have
severely restricted both the government’s treaty-making power and the domestic incorporation of treaty
law (for detailed studies, see Richard O Davies, Defender of the Old Guard: John Bricker and American
Politics (Ohio State University Press 1993); Duane Tanabaum, The Bricker Amendment Controversy: A
Test of Eisenhower’s Political Leadership (Cornell University Press 1988).
46 On the opposition within the United States, see Lauren, Evolution (n 8) 232–33.
13

The Political Context 13

President Eisenhower turned his back on the positivization of international human

rights in 1953. The US government withdrew its support from Eleanor Roosevelt,47
putting an end to her membership in the Commission, and announced its inten-
tion not to become part of any human rights treaty elaborated under the auspices
of the UN.48
The drafters not only encountered the challenge of overcoming attitudes strongly
defensive of national sovereignty and the ideological cleavages linked to the Cold
War and decolonization. They were also faced with disagreement among allies.49
The United Kingdom and the United States, for instance, fundamentally disagreed
about the level of precision of the drafting language:50 on the one hand, the United
Kingdom favoured a ‘fairly tightly drawn Covenant’,51 meaning a treaty with pre-
cisely drafted provisions and clearly spelled-out limitations, as a general policy. The
United States, on the other hand, preferred rather general, inclusive wording.52 As
regards the limits of rights, the United States pressed for a general limitation clause
modelled on UDHR article 29 instead of narrowly drawn qualifications specific to
each right.53 Whilst the United Kingdom suspected the United States of proposing
a general limitation clause so as to arrive at a ‘text which committed nobody to any-
thing’,54 the American side retorted that it was ‘impossible to avoid using general
terms to express restrictions’55 and that ‘the more restrictions there were, the harder
it would be to draw up a Covenant and the more hesitant certain States would be
about ratifying it’.56 The last part of that statement refers to the difficulties of se-
curing the required two-thirds majority vote in the US Senate to pave the way for

47 See Lauren, Evolution (n 8) 233. Eleanor Roosevelt was replaced by Mary Lord, whose attitude to
the human rights project was, according to René Cassin, marked by indifference (see René Cassin, La
pensée et l’action (Editions F Lalou 1972) 83).
48 Whelan, Indivisible (n 11) 138.
49 An additional challenge was intra-State disagreement between different ministries. In the United
Kingdom, for instance, there was persistent disagreement between the Foreign Office and the Colonial
Office during the drafting process, as both departments pursued different policies (see Simpson, End of
Empire (n 7) 296, 408–10, 493–98, 500–01, 512; Normand and Zaidi, Human Rights (n 5) 230–31,
238). With respect to the contentious issue of individual petition, AW Bryan Simpson (Simpson, End of
Empire (n 7) 497) summarizes the opposition between both offices eloquently as follows: ‘the real source
of the disagreement was that the Foreign Office wanted an effective stick with which to beat the Soviets,
whilst the Colonial Office feared the application of the same stick to its vulnerable posterior’.
50 See Simpson, End of Empire (n 7) 466–70, 512, 518–19, 532–33; Whelan, Indivisible (n 11) 71
and 85. A further issue of fundamental disagreement was the federal clause. See Normand and Zaidi,
Human Rights (n 5) 225.
51 Simpson, End of Empire (n 7) 467.
52 On the conflict between the United States and the United Kingdom, see Simpson, End of Empire
(n 7) 512, 518–19.
53 See Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under
the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Q 156,
194; Simpson, End of Empire (n 7) 466–67.
54 Simpson, End of Empire (n 7) 467.
55 Statement by Herzel Plaine (US Department of Justice) as cited in Simpson, End of Empire (n
7) 469.
56 ibid.
14

14 The History of the Covenants

ratification.57 The domestic political context, marked by concerted opposition to
international human rights treaties and controversies about racial discrimination,
exacerbated concerns that the constitutional hurdles to ratification would be too
high.58 Nevertheless, these disputes over the level of precision and general versus
specific limitations cannot be reduced exclusively to pragmatic reasons and to dis-
agreement over a covenant ‘with or without teeth’.59 The opposing views also re-
flected different legal traditions. The US approach was in line with the provisions
of the US Bill of Rights, which are phrased in succinct, general terms and do not
spell out detailed limitations.60 Some of the UK’s proposals for detailed limitation
clauses codified all of the existing qualifications in English law, and aimed to ensure
that the status quo of domestic legislation would be in line with the covenant.61 The
controversy over the level of precision exemplifies the challenges the drafters faced to
reach a consensus in the face of different legal traditions and more or less conscious
attempts to ‘export’ domestic conceptions of human rights.62

III. Select Thorny Issues

A. The rights to be included

The purpose of the drafting process was to translate the rights protected in the
UDHR into binding treaty law. The content of the Universal Declaration provided
the point of reference for the substantive part of the future covenant. However, this
did not prevent discussions aiming to add new rights to the list (including rights re-
jected during the drafting process of the UDHR, namely self-determination63 and

57 Simpson, End of Empire (n 7) 469; the United Kingdom’s view on the matter was that the United
States was ‘determined to secure a Covenant sufficiently meaningless for Congress to ratify’ (statement
by JP Duffy, as cited in Simpson, End of Empire (n 7) 521).
58 Simpson, End of Empire (n 7) 521.
59 The General Assembly expressed its preference for precise drafting, instructing the Commission
to consider the view that it is ‘desirable to define the rights set forth in the Covenant and the limitations
thereto with the greatest possible precision’ (UNGA Res 421(V)B (4 December 1950), UN Doc A/
RES/421(V)B, s 4(ii)).
60 Some drafting proposals made by the United States closely resembled the text of the US
Constitution. Compare the proposal for the following provision: ‘[n]‌o one shall be deprived of life,
liberty or property without due process of law’ (see Simpson, End of Empire (n 7) 505) with the fifth
Amendment of the US Constitution.
61 Simpson, End of Empire (n 7) 468.
62 See ibid 468, referring to the ‘export theory of human rights’ in connection with the United
Kingdom’s position on limitations of human rights, and ibid 399, stressing that ‘those involved in
government are deeply reluctant to promote bills of rights unless they anticipate that this will make ab-
solutely no difference to their own domestic situation. One technique for achieving this result, though
not the only one, is to match the bill to the domestic status quo, treating human rights as primarily for
export’. The final draft of the ICCPR is a compromise between diverging views. Unlike the UDHR,
it does not contain a general limitation clause, but several human rights provisions incorporate a fairly
broadly phrased limitation clause. See ibid 532–33. By contrast, the ICESCR contains a general limi-
tation clause (art 4), the wording of which was, however, considerably tightened during the drafting
process (see Alston and Quinn, ‘Parties’ Obligations’ (n 53) 194–95).
63 See Section II.
15

Select Thorny Issues 15

minority rights64), or, conversely, to reduce the number and scope of rights enshrined
in the UDHR. The Covenants, as finally adopted, for instance do not include the
right to seek asylum (UDHR article 14), the right to a nationality (UDHR article
15), or the right to own property (UDHR article 17). The latter right turned out to
be intractable. In the context of the Cold War and decolonization, it raised highly
sensitive issues, including the definition of the concept of property (as individual
or collective)65 and questions related to nationalization and just compensation.66
Fundamental disagreements extended well beyond the right to property to the
whole class of economic, social, and cultural rights (ESCR). During the drafting
of the UDHR, several factors had favoured an agreement on including so-called
second-generation rights: in the direct aftermath of the Second World War, the
insight that economic hardship paved the way for totalitarianism was still very pre-
sent.67 In the United States, supporters of second-generation rights invoked the
experience of the New Deal, President Roosevelt’s defence of the ‘freedom from
want’,68 and his proposal for a ‘Second Bill of Rights’. The famous American Law
Institute (ALI) Statements on Essential Human Rights,69 which were an influen-
tial source of inspiration for the drafters of the UDHR,70 also included second-
generation rights. Moreover, the bloc of Latin American States (twenty out of
the fifty-one founding members of the UN) were strong supporters of ESCR.71
Their human rights traditions, influenced by Catholic social thought, synthesized

64 See ICCPR art 27. Like self-determination, minority rights were championed by the Soviet Union
but met with opposition from Western States (see Normand and Zaidi, Human Rights (n 5) 201; on
minority protection during the drafting process of the UDHR, see Simpson, End of Empire (n 7) 435,
441–42, and 450).
65 The UDHR accommodated both positions in asserting that ‘[e]veryone has the right to own
property alone as well as in association with others’ (art 17(1) UDHR, emphasis added).
66 For a more detailed analysis, see Whelan, Indivisible (n 11) 93–94.
67 See Moyn, Last Utopia (n 25) 64, stressing ‘[t]‌he powerful welfarist consensus in America and
around the world’ and the fact that it ‘reflected a brief and unprecedented moment’.
68 The extent to which ‘the West’ opposed second-generation rights is debated; see the controversy
between Daniel J Whelan and Jack Donnelly on the one hand, and Alex Kirkup and Tony Evans and
Susan L Kang on the other hand (Daniel J Whelan and Jack Donnelly, ‘The West, Economic and Social
Rights, and the Global Human Rights Regime: Setting the Record Straight’ (2007) 29 Human Rights Q
908; Alex Kirkup and Tony Evans, ‘The Myth of Western Opposition to Economic, Social, and Cultural
Rights? A Reply to Whelan and Donnelly’ (2009) 31 Human Rights Q 221; Daniel J Whelan and Jack
Donnelly, ‘Yes, a Myth: A Reply to Kirkup and Evans’ (2009) 31 Human Rights Q 239; Susan L Kang,
‘The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and
Donnelly’ (2009) 31 Human Rights Q 1006; Daniel J Whelan and Jack Donnelly, ‘The Reality of
Western Support for Economic and Social Rights: A Reply to Susan L. Kang’ (2009) 31 Human Rights
Q 1030).
69 ALI, ‘Statements on Essential Human Rights, with Commentary’ (1946) 243 Annals of the
American Academy of Political and Social Science 18 and (1995) 89 AJIL 550. On the ALI Statement,
see eg Hanne Hagtvedt Vik, ‘Taming the States: the American Law Institute and the “Statement of
Essential Human Rights”’ (2012) 7(3) J of Global History 461.
70 See Thilo Rensmann, ‘The Constitution as Normative Order of Values: The Influence of
International Human Rights Law on the Evolution of Modern Constitutionalism’ in Pierre-Marie
Dupuy and others (eds), Völkerrecht als Wertordnung: Festschrift für Christian Tomuschat (NP Engel
2003) 259, 265.
71 On the contribution of Latin American countries to international human rights, see Glendon,
‘Forgotten Crucible’ (n 22); Paolo G Carozza, ‘From Conquest to Constitutions: Retrieving a Latin
American Tradition of the Idea of Human Rights’ (2003) 25 Human Rights Q 281.
16

16 The History of the Covenants

‘the individualistic with the social and economic dimensions of human dignity’72
and helped to steer a middle course ‘between the Scylla of brutally atomistic lib-
eral capitalism and the Charybdis of excessive socialist collectivism’.73 The drafters
of the UDHR bridged the rift between West and East by stressing the ideological
neutrality of ESCR, which were to be realized ‘in accordance with the organization
and resources of each State’.74 Another favourable factor for the inclusion of social
and economic rights in the UDHR was the intensive and successful activity of the
International Labour Organization (ILO). In the period between the two Wars, it
had adopted nearly 100 conventions on labour standards.75 Last but not least, the
fact that the UDHR was a legally non-binding document and did not provide for
international enforcement mechanisms also helped States to reach a consensus on
second-generation rights.
It was a much bigger challenge to secure an agreement on incorporating ESCR
into a legally binding instrument backed up by international implementation
measures given the far more polarized political context.76 After the adoption of the
UDHR, the Commission started discussions on a binding international treaty based
on a draft covenant, prepared by the United Kingdom, which was very limited in
scope.77 Reflecting the Anglo-American rights tradition,78 it set out a list of civil
rights but did not contain second-generation rights (nor did it protect political
rights).79 The proposal was in line with the United Kingdom’s policy that a legally
binding treaty should spell out clearly defined and enforceable provisions.80 Second-
generation rights were considered as not fulfilling these requirements, a view shared
by the United States and other nations, namely India, the Netherlands, Canada,
China, and Venezuela.81
The omission of ESCR triggered immediate concerns within the Commission
and later within the Third Committee, where States defending the incorporation of
ESCR outnumbered the opponents. Advocates of second-generation rights not only
included Socialist nations, newly independent developing countries linking the
issue to self-determination, and Latin American delegations, but also the representa-
tive of France, René Cassin, and the delegates of Australia and Denmark. According

72 Carozza, ‘Conquest to Constitutions’ (n 71) 312.

73 ibid 311 (referring to the Mexican Constitution of 1917).
74 UDHR art 22 (emphasis added). 75 Osiatynski, ‘Universality’ (n 41) 45.
76 McCarthyism and the Bicker Amendments were miles away from President Roosevelt’s four
freedoms, the New Deal, and a Second Bill of Rights. The account given by Whelan and Donnelly
(Whelan and Donnelly, ‘The West’ (n 68)), portraying the United States as a constant defender of
second-generation rights, adopts an excessively monolithic view and does not account for the evolution
of the political context.
77 On the genesis and the content of the draft UK Bill of Rights, see Simpson, End of Empire (n
7) 390–91.
78 Whelan, Indivisible (n 11) 65; Normand and Zaidi, Human Rights (n 5), 201; see also Simpson,
End of Empire (n 7) 399, highlighting the minimalist character of the bill, the content of which was
limited to guaranteeing existing common law rights.
79 Political rights were opposed by the United Kingdom’s Colonial Office (see Simpson, End of
Empire (n 7) 374).
80 Simpson, End of Empire (n 7) 511.
81 Whelan, Indivisible (n 11) 74; for similar statements from other representatives, see 76.
17

Select Thorny Issues 17

to this view, expressed prominently by Cassin, a truncated covenant would be ‘an

unpardonable anachronism’.82 The representative of Yugoslavia made a philosoph-
ical defence in favour of a comprehensive covenant before the Third Committee,
arguing that the UDHR includes economic and social rights ‘because it conceives of
man as a integrated personality, which for its full expression and well-being requires
the employment of economic and social as well as political and civil rights’.83
Once it had become obvious that a blanket ‘no’ would not be acceptable to
the majority of States, the emphasis of the debates shifted from the fundamental
question of inclusion or non-inclusion to other issues, namely whether provi-
sions on ESCR should be worded in concise, general terms or spelled out in detail.
The United States, for instance, favoured the first approach, whilst the USSR and
Yugoslavia submitted proposals for extremely detailed provisions.84 Despite the
General Assembly’s policy decision to include second-generation rights in the cov-
enant,85 discussions continued to centre around the question whether social and
economic rights should be protected in the same instrument as civil or political
rights, or in a different instrument to be adopted at the same time as the covenant,
or in a later one. As is well known, the ultimate compromise that emerged was to
protect each generation of rights in a separate Covenant, to be adopted simultan-
eously and containing as many similar provisions as possible.86 The problematic
issues of defining States’ obligations and international enforcement were linked to
this solution.

B. States’ obligations under the Covenants

Legally binding human rights norms are meaningful only if they entail corres-
ponding legal duties. It was thus essential to define what obligations States would
have under the Covenants to provide for effective implementation on the domestic
level. Spelling out States’ duties, was, however, a highly sensitive issue. Firstly, States
had, and continue to have, different constitutional traditions. For instance, a duty to
incorporate international human rights treaties into domestic law is easier to satisfy
for monist than for dualist States. Ensuring that international human rights prevail
in cases of conflict with domestic law, including Acts of Parliament, raises difficulties
for States attached to the United Kingdom’s tradition of parliamentary sovereignty

82 UNGA ‘Draft First International Covenant on Human Rights and Measures of Implementation
(continued)’ (30 October 1950) UN Doc A/C.3/SR.298, 177 (Cassin, as quoted in Whelan, Indivisible
(n 11) 74). Similarly worded claims were made by the Czechoslovak and the Yugoslav delegates, and by
the representative of Mexico (see Normand and Zaidi, Human Rights (n 5) 203–04).
83 UN Doc A/C.3/SR.298 (n 82) 178 (see Normand and Zaidi, Human Rights (n 5) 204).
84 See Whelan, Indivisible (n 11) 73–74. A Soviet Union draft on trade union rights, for instance,
contained thirteen sub-paragraphs (see Whelan and Donnelly, ‘The West’ (n 68) 929 fn 80).
85 UNGA Res 421(V)E (4 December 1950) UN Doc A/RES/421(V)E. The resolution requested
to include ‘a clear expression of economic, social and cultural rights’ (para 7(b), emphasis added). The
chosen formulation is a compromise: the term ‘expression’ affords the drafters a wide margin of discre-
tion and does not put second-generation rights exactly on the same level as civil and political rights.
86 UNGA Res 543 (VI) (n 11).
18

18 The History of the Covenants

or nations following the traditional French conception considering parliamentary
statutes as the ‘expression of the general will’.87
Secondly, the negotiations on States’ obligations under an international bill of
rights brought to the fore the divisive problem of the relationship between civil
and political rights on the one hand, and ESCR on the other hand. The question
of how the two sets of rights relate to each other—thus, their commonalities and
their differences—had already been vigorously debated during the drafting pro-
cess of the UDHR.88 The United Kingdom, for instance, proposed introducing
qualifications to some social rights so as to stress their dependence on resources.89
Cassin, in turn, sought to tackle the question by proposing an ‘umbrella’ clause
specifying how second-generation rights should be realized.90 Neither of these pro-
posals was accepted. As the Declaration was a legally non-binding document, it
was possible to gloss over disagreement by leaving the question unspecified. The
same approach could not be adopted when it came to drafting a legally binding
human rights treaty.91 During the negotiations, the dominant view was that both
categories of rights called for different implementation measures, both on the do-
mestic and on the international level. The question then was whether a differenti-
ated approach should be realized within one covenant or whether it was preferable
to adopt two different instruments. Whilst the Commission chose the first option
in 1951 and prepared a single draft with two umbrella clauses introducing ESCR,92
it was the second option which prevailed one year later. Opposition to uniform im-
plementation provisions thus turned out to be a factor favouring the division of the
covenant.93
Articles 2 of the ICESCR and the ICCPR, as finally adopted,94 clearly express the
drafters’ choice for a differentiated approach with respect to States’ obligations and
domestic implementation. Under the ICESCR, each State party:
undertakes to take steps, individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures.

87 The United Kingdom, for instance, rejected a duty to incorporate the Covenants as superior do-
mestic law on the grounds of parliamentary sovereignty (see Simpson, End of Empire (n 7) 405 and 417).
The wording of ICCPR art 2(2) is a compromise that accommodates different constitutional traditions.
It holds that ‘each State Party . . . undertakes to take the necessary steps, in accordance with its constitu-
tional processes’ with a view to giving effect to the rights recognized in the Covenant (emphasis added).
88 See Roland Burke, ‘Confronting “Indivisibility” in the History of Economic and Social
Rights: From Parity to Priority and Back Again’ (2012) 12 Human Rights & Human Welfare 53, 56–57.
89 ibid 57. 90 ibid. 91 ibid 58.
92 The result was, in Whelan’s terms, ‘a very odd looking Covenant’, which also met with criticism at
the time. See Whelan, Indivisible (n 11) 100–01 and 105.
93 ibid 214.
94 For an analysis of the arts 2 of the respective Covenants, including their drafting history, see, for
the ICESCR, Alston and Quinn, ‘Parties’ Obligations’ (n 53) 164–65, and for the ICCPR, Anja Seibert-
Fohr, ‘Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant
to its Article 2(2)’ in Max Planck Yearbook of United Nations Law (Brill 2001) vol 5, 399; Bossuyt, Guide
to the Travaux (n 17) 56–57.
19

Select Thorny Issues 19

References to the qualifying elements of ‘progressive realization’, ‘available re-

sources’, and ‘international assistance and co-operation’ are absent in the ICCPR.
Conversely, unlike the ICESCR, the ICCPR contains a clause obligating States to
‘ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy’.95
The different wording of articles 2 of the Covenants did not merely express the
view that both sets of rights had different characteristics. After the adoption of the
Covenants, this difference served to justify and reinforce polarized visions, concep-
tualizing the two sets of rights in opposing terms: first-generation rights were ‘nega-
tive’, ‘cost-free’, and justiciable rights, to be realized immediately and giving rise to
obligations of result. By contrast, second-generation rights were framed as ‘positive’,
‘costly’, and non-justiciable (ie merely programmatic) rights, to be realized over
time, and generating obligations of means contingent on the available resources.
Pushed one step further, these characteristics provided the ground for claims that the
ICESCR did not really assert rights, but merely policy objectives. This view became
widespread not only in the United States96 and in the United Kingdom,97 but also
in other countries with a legal tradition viewing judicial enforceability as a necessary
feature of legal rights.98
Mainly since the end of the Cold War, our understanding of both sets of rights
has substantially evolved. Human rights bodies and academics have started tearing
down the wall upholding a categorical distinction between civil and political rights
on the one hand, and ESCR on the other.99 Instead of operating on the basis of
distinctions between different sets of rights, it has become common to distinguish
between different types of obligations generated by human rights norms. Based
on this approach, the realization of all human rights entails both negative duties
(the duty to respect) as well as positive duties (the duty to protect and fulfil the
rights in question).100 The corollary of this approach is a more nuanced theory of
justiciability.101 Negative duties, independently of whether they pertain to a first-or

95 ICCPR art 2(3)(a).

96 See, on the American reluctance to view positive rights as fundamental rights, Mary Ann
Glendon, ‘Rights in Twentieth-Century Constitutions’ (1992) 59 University of Chicago L Rev 519,
523–24.
97 For a prominent academic view, see Maurice William Cranston, What Are Human Rights?
(Taplinger Publishing Company 1973) 54–55; for a critical discussion, see Jack Donnelly, Universal
Human Rights in Theory and Practice (3rd edn, Cornell University Press 2013) 40–41.
98 For examples of continental jurisdictions adopting the opposite view and acknowledging so-
called programmatic rights as fundamental rights, see Glendon, ‘Rights’ (n 96) 527–28.
99 See eg the famous holding of the European Court of Human Rights that ‘the mere fact that an
interpretation of the Convention may extend into the sphere of social and economic rights should not
be a decisive factor against such an interpretation; there is no water-tight division separating that sphere
from the field covered by the Convention’ (ECtHR, Airey v Ireland, App no 6289/73, 9 October 1979,
para 26, emphasis added). For an academic study, drawing on political and social theory and compara-
tive constitutional law, see eg Sandra Fredman, Human Rights Transformed: Positive Rights and Positive
Duties (OUP 2008).
100 For the duty to respect, protect, and fulfil, see the seminal work of Henry Shue, Basic Rights:
Subsistence, Affluence, and U.S. Foreign Policy (first published 1980, 2nd edn, Princeton University
Press 1996).
101 For a comprehensive study, see Gregor T Chatton, Vers la pleine reconnaissance des droits
économiques, sociaux et culturels (Schulthess 2014).
20

20 The History of the Covenants

a second-generation right, can clearly be enforced by courts. To the extent that
human rights bodies and many constitutional courts accept that the duty to pro-
tect is also capable of judicial enforcement, no principled reason justifies confining
justiciability to first-generation rights.102 To date, the question if and to what extent
the duty to fulfil human rights is enforceable by the judiciary has not been clearly
settled. This duty pertains to all human rights, but is generally of greater importance
for the realization of second-rather than of first-generation rights. The difference
between both sets of rights is, however, not one of kind, but one of degree.103 The
social rights jurisprudence which has emerged on the domestic level mainly as of the
late 1980s104 shows that the duty to fulfil ESCR can, to some extent, be enforced by
the judiciary.105 Some courts have, for instance, affirmed their power to enforce core
obligations, holding States to their obligation to realize the essential minimal con-
tent of social rights.106 Others have reviewed compliance with second-generation
rights, applying a deferential ‘reasonableness’ standard.107 The Committee on
Economic, Social and Cultural Rights endeavours to spell out the normative con-
tent of ICESCR rights and States’ duties under article 2, and has also helped to pave
the way for a more sophisticated approach to the enforcement of ESCR.108
At the time when the Covenants were drafted, few voices advocated for a nu-
anced understanding of the characteristics and the justiciability of first-and second-
generation rights. During the negotiations of what became ICESCR article 2, in
1952, the representative of Egypt suggested inserting the phrase ‘if necessary’ after
‘progressively’, arguing that some social rights, namely trade union rights, could
be implemented immediately.109 During the same year, the Israeli delegate ques-
tioned the artificial categorization of rights,110 noting that effective implementa-
tion of civil and political rights required ‘a highly developed judiciary organization,
which could not be achieved at short notice’.111 Contesting the simplistic equa-
tion of first-generation rights with immediate realization on the one hand, and
that of second-generation rights with progressive realization on the other hand, he

102 The case law of the European Court of Human Rights is a prominent example. See Dimitris Xenos,
The Positive Obligations of the State Under the European Convention of Human Rights (Routledge 2012).
103 Alston and Quinn, ‘Parties’ Obligations’ (n 53) 184.
104 See Malcolm Langford, ‘The Justiciability of Social Rights: From Practice to Theory’ in Malcolm
Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (CUP
2008) 3.
105 For a comparative study of social rights jurisprudence, see Malcolm Langford (ed), Social Rights
Jurisprudence: Emerging Trends in International and Comparative Law (CUP 2008).
106 The Swiss Supreme Court adopted this approach in a judgment of 27 October 1995 (BGE
121 I 367). Asserting the justiciability of the entitlement to have one’s most basic needs covered, the
Court recognized the right to assistance when in need as an unwritten constitutional right. The Swiss
Constitution of 1999 provides for an explicit guarantee of this right in art 12.
107 This approach has been adopted by the South African Supreme Court. See eg Government of the
Republic of South Africa & others v Grootboom & others [2000] ZACC 19.
108 See mainly CESCR, ‘General Comment 3’ and ‘General Comment 9’ in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies’ (2003) UN Doc HRI/GEN/1/Rev.6 (mainly s A related to domestic remedies).
109 Whelan, Indivisible (n 11) 99.
110 See Alston and Quinn, ‘Parties’ Obligations’ (n 53) 173.
111 Quoted in ibid 123–24.
21

Select Thorny Issues 21

proposed a different approach. Depending on differences of development and struc-

ture, each government should divide human rights, ‘whatever their nature’, into
two categories: one comprising rights capable of immediate implementation and
enforcement, and another including the rights which necessitated ‘the execution of
programmes, including economic and social programmes’, to become effective.112
The insight that all human rights, including civil and political rights, require State
action to afford protection against third-party interference and may necessitate
adequate institutions and procedures was also reflected in the ALI Statement of
Essential Human Rights.113 Like the unsuccessful Egyptian and Israeli proposals,
this vision also went far beyond the understanding of international human rights
law that was common at the time.
Apart from ideological reasons and differences in the understanding of the charac-
teristics and justiciability of first-and second-generation rights, the economic context
favoured a cautious approach with respect to ESCR. Representatives of several States
were concerned that unqualified social rights might raise hopes that would be impos-
sible to fulfil considering the economic situation prevailing in their countries.114 The
delegates of India and Greece, for instance, both argued that most States’ ‘resources and
state of economic development did not permit them to implement the economic and
social rights at one stroke of the pen’.115 In the context of decolonization, the debates on
second-generation rights became intertwined with the larger issue of economic devel-
opment.116 As the drafting history shows, the wording of the reference to international
cooperation and assistance in ICESCR article 2 was fiercely debated.117 Western States
had the impression that developing countries championed ESCR not so much as in-
dividual human rights but rather as interstate claims to development,118 which made
them suspicious with respect to second-generation rights.
Moreover, at the time of drafting, a minority of States had a constitutional
framework combining two powerful features for effective enforcement of human
rights: a constitutional bill of rights and a developed system of constitutional review.
Thus, it comes as no surprise that it was the representative of Mexico, a country
with a long tradition of judicial review as a means to enforce constitutional rights,
who proposed the inclusion of the right to a domestic remedy in the UDHR.119

112 Quoted in ibid 173–74. 113 See Rensman, ‘Normative Order’ (n 70) 264.
114 The ECHR, which is limited to civil and political rights, and several constitutions adopted
shortly after the Second World War reflect this cautious approach. Written against the backdrop of dire
economic conditions, the German Basic Law of 23 May 1949, for instance, contains a commitment
to a social State (art 20(1)), but does not protect social rights as fundamental rights (see Rensman,
‘Normative Order’ (n 70) 273). The Constitution of India, adopted on 26 January 1950, tackles social
welfare not in Part III ‘Fundamental Rights’ but in Part IV ‘Directive Principles of State Policy’.
115 ECOSOC, ‘Summary Record of the 248th Meeting of the Commission on Human Rights’ (10
July 1951) UN Doc E/CN.4/SR.248, 6 (representative of India). In the words of the Greek represen-
tative, ‘[i]t was, however, clearly impossible to abolish want and illness by the stroke of a pen’ (UN Doc
A/C.3/SR.298 (n 82) 179, para 24).
116 On the connection between including ESCR in the covenant and the anticolonial movement and
wider development goals, see Whelan, Indivisible (n 11) 76–77.
117 See Alston and Quinn, ‘Parties’ Obligations’ (n 53) 186–87. 118 See Section II.
119 See UDHR art 8; Glendon, ‘Forgotten Crucible’ (n 22) 38; Simpson, End of Empire (n 7) 450. More
generally on the long tradition of judicial review in Latin America, see Axel Tschentscher and Caroline
2

22 The History of the Covenants

However, the tradition of judicial enforcement was mainly limited to civil and polit-
ical rights. As Daniel J Whelan argues, models of judicial review as applied to ESCR
were lacking.120 The socialist concept of human rights did nothing to fill this void.
Although socialist constitutions contained extensive catalogues of social rights, wel-
fare services were provided to the citizens on a discretionary basis and not in terms
of rights—that is, entitlements enforceable in courts.121 Put differently, social rights
were conceived of as a way to ‘enhance government’s authority’122 in the relevant
areas ‘rather than accepting State accountability to individual rights’.123 Not sur-
prisingly, meaningful social rights jurisprudence has emerged mainly in countries
with a developed system of judicial or quasi-judicial enforcement of civil and polit-
ical rights.124 Soviet opposition to the division of the covenant and to the qualifying
elements expressed in ICESCR article 2 was mainly based on ideological and not on
legal grounds.125
Lastly, it is interesting to note that immediate realization of civil and political
rights could not be taken for granted. During the drafting process of what became
ICCPR article 2, States were divided.126 One camp, including the United Kingdom,
argued that States were bound to secure compliance with the ICCPR immediately
upon ratification. If they had difficulties in doing so, they had the option to enter
reservations. Another camp, led by the United States, favoured an approach that
left States a reasonable time frame to bring their law and practise into line with the
ICCPR. The concept of immediate realization was thus a contested issue. It may
not have prevailed if the drafters had insisted on uniform treatment of civil and

Lehner, ‘The Latin American Model of Constitutional Jurisdiction: Amparo and Judicial Review’ (2013)
SSRN Research Paper 2296004 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296004> ac-
cessed 7 April 2017; Norbert Lösing, Die Verfassungsgerichtsbarkeit in Lateinamerika (Nomos 2001);
Francisco Fernández Segado, ‘Les origines du contrôle juridictionnel de la constitutionnalité des lois
en Amérique latine’ <www.umk.ro/images/documente/publicatii/Buletin18/3_les_origines.pdf> ac-
cessed 19 October 2015.
120 Whelan, Indivisible (n 11) 193.
121 Andras Sajó, ‘Rights in Post-Communism’ in Andras Sajó (ed), Western Rights? Post-communist
Application (Kluwer 1996) 139, 141–42.
122 Normand and Zaidi, Human Rights (n 5) 201 (describing the Soviet stance during the drafting
process).
123 ibid. 124 Langford, ‘Justiciability’ (n 104) 10.
125 In the General Assembly debate on 4 December 1950, the French delegate voiced criticism dir-
ected at the Soviet Union and its allies. He deplored their opposition to effective implementation mech-
anisms, holding that disregarding the legal consequences of implementing ESCR would render the
covenant meaningless, unless one considered that the purpose of the covenant was ‘to secure some polit-
ical and propaganda advantage by means of oft-repeated democratic slogans. It could have a meaning if
the only purpose were to use a phraseology savoring of progress as a cloak for continuing the old errors
of the policy of the reason of State’ (UNGA (4 December 1950) UN Doc A/PV.317, 559, para 90), as
quoted in Whelan, Indivisible (n 11) 81. See also Whelan and Donnelly, ‘The West’ (n 68) 935, arguing
that the Soviet Union viewed ESCR in terms no different from the West: as social policy goals and not
as enforceable individual rights.
126 See Bossuyt, Guide to the Travaux (n 17) 57–58; Seibert-Fohr, ‘Domestic Implementation’ (n
94) 407–08; Simpson, End of Empire (n 7) 528–29 (focusing on the positions of the United States and
the United Kingdom).
23

Select Thorny Issues 23

political rights on the one hand, and ESCR on the other. The same risk of level-
ling down could not be denied out of hand when it came to defining international
enforcement.

C. Measures of international supervision and enforcement

Providing for international supervision and enforcement of the human rights obli-
gations undertaken by States turned out to be ‘the most difficult and controversial
aspect’ of developing the International Bill of Human Rights,127 raising difficult
questions such as: which bodies were to be the guardians of the rights enshrined in
the Covenants? What powers should they be invested with to improve compliance?
It was a formidable challenge to tackle these issues in a context where the three
superpowers were jealously guarding their sovereignty and reluctant to accept inter-
national enforcement mechanisms ‘with teeth’.128 The Commission took up negoti-
ations on international enforcement based on drafts prepared by its Working Group
on Implementation. A panoply of options had been discussed,129 including the
establishment of an international court of human rights, of a high commissioner,
or of a permanent human rights body vested with the power to receive individual
petitions, to initiate inquiries, and to carry out independent monitoring. The option
to expel States from the UN in case of persistent human rights violations was also
considered.130 The Commission’s draft submitted to the General Assembly in 1954
did not include any of these ‘bold’ proposals. The Third Committee only started
working on implementation measures in 1963.131
The asymmetrical solution finally adopted in 1966, after protracted and tough
negotiations, is well known: the ICCPR established a supervisory body consisting
of independent experts, the Human Rights Committee. It provided for a manda-
tory reporting system and an optional interstate complaint procedure. An Optional
Protocol complemented the ICCPR, enabling the Human Rights Committee to
receive and consider communications from individuals claiming to be victims of a
violation of any of the rights set forth in the Covenant. For the ICESCR, no body
equivalent to the Human Rights Committee was created. The only available super-
visory mechanism was a mandatory reporting procedure, as ECOSOC had been
entrusted with examining the periodic reports submitted by States. It was only two
decades after the adoption of the Covenants, once the initial monitoring system

127 Quote by the Polish delegate, as cited in Philip Alston, ‘The Committee on Economic, Social and
Cultural Rights’ in Philip Alston (ed), The United Nations and Human Rights: A Critical Appraisal (OUP
1992) 473, 476. For a detailed account of the drafting history of implementation measures, see Egon
Schwelb, ‘Notes on the Early Legislative History of the Measures of Implementation of the Human
Rights Covenants’ in Mélanges offerts à Polys Modinos (Editions Pedone 1968) 270; Egon Schwelb, ‘Civil
and Political Rights: The International Measures of Implementation’ (1968) 62 AJIL 827.
128 See Normand and Zaidi, Human Rights (n 5) 198.
129 See Schwelb, ‘Notes’ (n 127) 274–75; Normand and Zaidi, Human Rights (n 5) 236.
130 Schwelb, ‘Notes’ (n 127) 274.
131 Schwelb, ‘Civil and Political Rights’ (n 127) 830–31.
24

24 The History of the Covenants

had turned out to be highly ineffective, that an independent expert committee (the
Committee on Economic, Social and Cultural Rights) was established.132
The difference between the monitoring provisions in both Covenants has re-
ceived much attention and tends to be viewed through the lens of the ideological
rift between the Soviet and the Western blocs. The drafting history reveals, how-
ever, a more complex picture: debates around the choice of supervisory body for
the ICESCR, for instance, did not reflect a socialist–capitalist divide.133 The Soviet
Union and other socialist States opposed the creation of a Committee for the
ICESCR throughout the drafting process. The position of other States varied over
time. During the 1950s, Lebanon—a Western ally—and France submitted pro-
posals for entrusting an independent expert body with the oversight of ESCR.134
The States opposing the French and Lebanese proposals included China, the United
Kingdom, and Australia. A decade later, during the final debates preceding the
adoption of the Covenants, the United States proposed the establishment of an
independent expert committee for the ICESCR. Italy made a more moderate pro-
posal providing for an ad hoc body of experts that was supported by several Western
States, including Canada, the Netherlands, Finland, and Norway.135 Strong oppos-
ition stemmed from African States, disillusioned with international bodies after the
International Court of Justice’s decision in the South West Africa cases.136
As regards the choice of oversight mechanisms, negotiations occurred against
the backdrop of many States’ uneasiness about any implementation measures ‘with
teeth’.137 In line with its opposition to any international enforcement, the Soviet
Union and its allies initially rejected even the system of periodic reporting as con-
trary to the principle of non-intervention in domestic affairs, a position they re-
versed in 1963.138 Whilst the reporting procedure was considered well-adapted
for the implementation of ESCR, its suitability for ensuring the effectiveness of
civil and political rights was controversial. The major sceptic of the reporting pro-
cedure for the ICCPR was the United Kingdom, which considered that State re-
porting would weaken the immediacy of States’ obligations under the ICCPR.139
Other States also voiced concerns that the provisions on reporting might introduce
elements of progressive realization and reduce the effectiveness of civil and political
rights.140 Nevertheless, the Commission extended the reporting procedure to the

132 See Alston, ‘CESCR’ (n 127) 473–74.

133 Malcolm Langford and Jeff A King, ‘Committee on Economic, Social and Cultural Rights: Past,
Present and Future’ in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in
International and Comparative Law (CUP 2008) 477, 478, fn 15.
134 See Alston, ‘CESCR’ (n 127) 476–77; Langford and King, ‘CESCR’ (n 133) 478, fn 15; Whelan,
Indivisible (n 11) 181. By contrast with Lebanon, France did not favour the establishment of a separate
monitoring body, but instead sought a solution that extended the competence of the Human Rights
Committee to examine State reports under the ICESCR.
135 Langford and King, ‘CESCR’ (n 133) fn 15.
136 South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections)
[1962] ICJ Rep 319; see Whelan, Indivisible (n 11) 181.
137 See Burke, ‘Confronting Indivisibility’ (n 88) 59. 138 Schwelb, ‘Notes’ (n 127) 285.
139 See Bossuyt, Guide to the Travaux (n 17) 617–18.
140 Including New Zealand, Ireland, Uruguay, Madagascar, and Chile (see Schwelb, ‘Civil and
Political Rights’ (n 127) 840–41).
25

Select Thorny Issues 25

ICCPR in 1954. Within the Third Committee, the draft provisions and subsequent
amendments were subject to careful scrutiny, which led to the wording that became
article 40 of the Covenant.141
Providing for complaint mechanisms was, without surprise, the subject of intense
discussions. As Whelan convincingly demonstrates, the debates were, however,
limited to the ICCPR. A violations approach for ESCR was not on the negotiating
table,142 for reasons similar to those discussed above in relation to States’ obliga-
tions.143 Individual or interstate complaints were not viewed as a suitable mech-
anism for giving effect to social, economic, and cultural rights. For civil and political
rights, the Commission’s draft as sent to ECOSOC and the General Assembly in
1954 provided for mandatory interstate complaints but did not propose an indi-
vidual complaint procedure. Proposals to grant individuals or non-governmental
organizations the right to petition the Human Rights Committee were met with
strong opposition by the three superpowers.144 These initiatives were ultimately
either defeated, often by narrow margins, or withdrawn by their sponsors.145
Between 1963 and 1966, fundamental changes of the Commission’s proposal on
implementation measures were debated within the General Assembly. In 1966, sup-
porters of the complaint mechanisms (including the United Kingdom, Canada, the
Netherlands, and Australia) could point to the adoption of the ICERD on 7 March
1966. Adopted unanimously, with the support of the Soviet Union, the ICERD be-
came the first human rights convention to provide for a mandatory interstate com-
plaint mechanism, and, more importantly, for an optional individual complaint
procedure. Not all States, however, were willing to consider the ICERD as a pre-
cedent for implementation measures under the ICCPR.146 Despite its approval of
the ICERD, the Soviet Union, for instance, reverted to its long-held opposition to
international oversight (albeit having come to accept the reporting system147), ar-
guing that the monitoring mechanisms for both Covenants should be identical.148
Considering the ‘no violation’ approach agreed upon for the ICESCR, following

141 Under ICCPR art 40(1), State parties ‘undertake to submit reports on the measures they have
adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of
those rights’. This wording differs from previous drafts, which provided for reporting on ‘the progress
made in giving effect to the rights’ recognized in the Covenant, and could have been understood as
meaning that States were only committed to giving effect to the rights progressively. To prevent such a
reading, the final wording established a distinction between ‘giving effect to rights’ and reporting on the
‘progress made in the enjoyment of those rights’. This approach limited the notion of progressiveness
to the enjoyment of rights, ‘i.e., to the results of the governmental action without implying that the
governmental action might be taken progressively’ (Schwelb, ‘Civil and Political Rights’ (n 127) 840;
Schwelb, ‘Notes’ (n 127) 279).
142 Whelan, Indivisible (n 11) 101 and 113–14; see also Normand and Zaidi, Human Rights (n
5) 240.
143 See Section III.A.
144 See Simpson, End of Empire (n 7) 453, 522, 535, and 539; in the United Kingdom, opposition
to the right of individual petition was linked to the colonial question, leading to conflicts between the
Foreign Office and the Colonial Office (see Normand and Zaidi, Human Rights (n 5) 238).
145 See Schwelb, ‘Notes’ (n 127) 276–77; Schwelb, ‘Civil and Political Rights’ (n 127) 832.
146 Schwelb, ‘Civil and Political Rights’ (n 127) 833. 147 Schwelb, ‘Notes’ (n 127) 285.
148 Many Afro–Asian States and France considered the ICERD approach to be too stringent for ap-
plication to the ICCPR. See Schwelb, ‘Civil and Political Rights’ (n 127) 832–33.
26

26 The History of the Covenants

the Soviet position would have left the ICCPR with weak implementing measures,
privileging State sovereignty over effective monitoring.149
An African–Asian proposal, partially inspired by the ICERD, helped to reach an
acceptable compromise.150 Whilst the Commission’s proposal had envisaged a man-
datory interstate complaints procedure as the main monitoring mechanism for the
ICCPR, the Third Committee made interstate complaints optional and subject to
reciprocity. In line with the ICERD, an optional individual complaint mechanism
was added in the form of the First Optional Protocol and submitted to the General
Assembly together with the Covenants.
The results of the negotiations on the third prong of an international bill of
rights—international measures of implementation—clearly stayed away from more
bold and visionary projects, such as the establishment of a universal human rights
court. Optional individual petitions (tellingly renamed, during the drafting process,
as ‘communications’) were the maximum that States were willing to accept.

IV. Concluding Remarks

The Preamble of the UDHR asserts that ‘it is essential, if man is not to be com-
pelled to have recourse, as a last resort, to rebellion against tyranny and oppression,
that human rights should be protected by the rule of law’. This recital expresses the
framers’ view that the Declaration was only ‘a step forward in the great evolutionary
process’.151 To afford effective protection against tyranny and oppression, it was es-
sential to translate the text of the Declaration into binding treaty law, backed up by
international supervision and enforcement. Reaching a consensus on these issues
was an ‘acid test’ for the international community. The volatile political context,
marked by the interlocking challenges of the Cold War and decolonization, and
thus changing power constellations within the UN, could have easily precluded an
agreement.
These were, however, not the only difficulties the drafters were facing. They also
had to overcome conflicts between nations belonging to the same ideological bloc
(as the long-lasting disagreement between the United Kingdom and the United
States on precise versus general drafting language and on the immediacy of States’
obligations under the ICCPR shows). The framers also had to defeat attempts by
States to ‘export’ their own fundamental rights traditions whilst resisting commit-
ments going beyond the domestic status quo.
Another important challenge was the relative indifference of the three super-
powers and their reluctance to enter into human rights commitments limiting their
national sovereignty. In this context, the adoption of the Covenants is due largely

149 ibid 833.

150 Samuel Hoare, ‘The United Nations and Human Rights: A Brief Survey of the Commission on
Human Rights’ in Yoram Dinstein (ed), Israel Yearbook on Human Rights (Israel Press 1971) vol 1, 29,
30; see also Schwelb, ‘Civil and Political Rights’ (n 127) 834.
151 Verbatim Record of the General Assembly proceedings (GAOR 3rd Session (10 December
1948) UN Doc A/PV.183, 934) as quoted in Lauterpacht, ‘The Universal Declaration’ (n 4) 354.
27

Bibliography 27

to the efforts of other nations. The group of African and Asian States, for instance,
favoured an agreement on the right to individual petition, both directly and indir-
ectly: they submitted a compromise solution paving the way for an optional com-
plaint procedure. This proposal was inspired by the ICERD, a convention which
African–Asian States had championed, as it reflected one of their core concerns. The
Latin American States, with their long tradition of judicial review and commitment
to social rights, had already left a strong imprint on the UDHR. As the Declaration
was the reference point for the Covenants, its content established a baseline below
which a binding human rights treaty was expected not to fall. Unsurprisingly, at-
tempts to exclude the whole set of ESCR met with strong resistance and did not
succeed. However, the prevalent view at the time of drafting was that the two sets
of rights called for differentiated measures of implementation, both at the domestic
and at the international level. The opposing view, defended by the Soviet Union,
was unconvincing: it was based on the premise of an extremely weak international
implementation regime and on an understanding of rights as ideological tools rather
than enforceable entitlements for holding the State accountable. Reinforcing the
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community needs to live up. A milestone in this process was achieved in 2008, when
the General Assembly adopted the Optional Protocol on individual complaints to
the ICESCR,152 adding a ‘missing piece of the International Bill of Rights’.153 This
does not mean that the International Bill of Human Rights is complete or can be
taken for granted. On the one hand, ‘[t]‌he human rights revolution is by definition
ongoing’.154 On the other, human rights, and the underlying vision of common hu-
manity, are demanding ideals that will not prevail without firm support from both
States and their people.

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the Human Rights Covenants’ in Mélanges offerts à Polys Modinos (Editions Pedone 1968)
Scott, Craig, ‘The Interdependence and Permeability of Human Rights Norms: Towards a
Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall
L J 794
Seibert-Fohr, Anja, ‘Domestic Implementation of the International Covenant on Civil and
Political Rights Pursuant to its Article 2(2)’ in Max Planck Yearbook of United Nations Law
(Brill 2001) vol 5
Shue, Henry, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (first published 1980,
2nd edn, Princeton University Press 1996)
Simpson, AW Bryan, Human Rights and the End of Empire: Britain and the Genesis of the
European Convention (paperback edn, OUP 2004)
Tanabaum, Duane, The Bricker Amendment Controversy: A Test of Eisenhower’s Political
Leadership (Cornell University Press 1988)
Tomuschat, Christian, ‘International Covenant on Civil and Political Rights (1966)’ in
Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2012)
vol V
Tschentscher, Axel, and Lehner, Caroline, ‘The Latin American Model of Constitutional
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2296004 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296004> accessed 7
April 2017
30

30 The History of the Covenants

Vik, Hanne Hagtvedt, ‘Taming the States: the American Law Institute and the “Statement of
Essential Human Rights”’ (2012) 7(3) J of Global History 461
von Bernstorff, Jochen, ‘The Changing Fortunes of the Universal Declaration of Human
Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law’
(2008) 19 EJIL 903
Whelan, Daniel J, Indivisible Human Rights: A History (University of Pennsylvania Press 2010)
Whelan, Daniel J, and Donnelly, Jack, ‘The West, Economic and Social Rights, and the Global
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31 Human Rights Q 239
Xenos, Dimitris, The Positive Obligations of the State Under the European Convention of
Human Rights (Routledge 2012)
31

3
Giving Meaning and Effect to Human Rights
The Contributions of Human Rights Committee Members

Gerald L Neuman*

I. Introduction

This chapter discusses the role of the members of the Human Rights Committee
(HRC or Committee) in the implementation of the International Covenant on Civil
and Political Rights (ICCPR),1 and the human rights project as a whole. Initially,
that requires a discussion of the functions of the Committee as an overall institution,
and then the essay concentrates on the contributions of the members, individually
and collectively. It emphasizes the collective activity of authoritatively interpreting
the rights within their mandate as the members’ most important contribution.

II. The Functions of the Human Rights Committee

The HRC is the independent expert body created by the ICCPR for monitoring
compliance by States parties with their obligations under the treaty. Its overbroad
name reflects a historical moment when no other treaty bodies were contemplated.
Although some of the rights protected by the ICCPR are also addressed in other
human rights treaties at the global level, certain key rights are substantively guaran-
teed to everyone only by the ICCPR, such as freedom from detention, freedom of
expression, and political participation.
The HRC has three principal activities: the examination of States’ reports, the
decision of individual communications, and the writing of General Comments.
Each of these activities has evolved over the lifetime of the Committee. This chapter
will mostly address their operation from the perspective of 2011–14, my term on
the HRC. The three activities have contrasting natures, in terms of how publicly

* Although the author was a member of the Human Rights Committee from 2011 to 2014, this
essay does not speak on behalf of the Committee.
1 International Covenant on Civil and Political Rights (opened for signature 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171.

32 Giving Meaning and Effect to Human Rights

they are performed and their generality or specificity. State reporting is a major
public event for the HRC, although some preparatory and deliberative phases take
place in closed meetings, and each dialogue covers a wide range of civil and political
rights issues in the particular reporting State. Communications involve claims of
violation by a specific individual or group of individuals against a particular State,
and are processed in confidence; in fact, even the existence of the communication is
generally unknown to the rest of the world until the case has been decided and pub-
lished.2 General Comments address recurring legal issues of substance or procedure
under the ICCPR, without being focused on any particular State, and over the
years the HRC has increased the transparency of its process for generating General
Comments. It now receives several rounds of public input, and deliberates on the
text in open session.
Like any other international body, the HRC has a variety of other auxiliary func-
tions in support of the three main tasks. These functions include adopting proced-
ural rules and practices, drafting an annual report, and maintaining relations with
the United Nations (UN) and other human rights institutions. There is also one
potentially significant task assigned by the ICCPR that actually lies dormant—the
resolution of interstate disputes regarding violations of the treaty3—as no State has
ever launched such a proceeding. Unlike some of the other treaty bodies, the HRC
very rarely issues public statements about human rights crises unconnected to a
pending State report or communication, and it does not operate an ‘urgent action’
procedure for self-initiated investigations.
The periodic reporting process is the primary mode of interaction between
States and the HRC required by the ICCPR. States’ written reports on their im-
plementation of the treaty lead to a live and public dialogue between the States
and Committee members. As the process has evolved, it has encompassed earlier
written and oral input to the HRC from non-governmental organizations (NGOs),
national human rights institutions, and various UN agencies. Increasingly, States
agree to file written answers to a list of questions posed in advance by the HRC, in-
stead of a comprehensive written report, as the foundation for the public dialogue.4
The dialogue not only takes place before civil society observers and is documented,
but (when resources permit) is webcast to reach a wide audience, particularly in
the State’s own territory. Since 1992, the dialogue has led to the HRC’s collectively
deliberated concluding observations, which welcome positive developments in the
reporting period and then set forth a series of concerns about possible or definite
noncompliance with the State’s ICCPR obligations, and recommendations for how
the State should address these problems. During the Cold War period, individual
members were able to make observations at the end of the dialogue, but the mem-
bers from the socialist States successfully blocked any collective evaluation of States’

2 HRC, Rules of Procedure of the Human Rights Committee, Rule 102 UN Doc CCPR/C/3/
Rev.10 (2012).
3 ICCPR art 41.
4 This optional substitute is known as the List of Issues Prior to Reporting (LOIPR), or more recently
as the ‘simplified reporting procedure’. See United Nations General Assembly (UNGA) Res 68/268 (9
April 2014) UN Doc A/RES/68/268, paras 1–2.
3

The Functions of the Human Rights Committee 33

compliance.5 The HRC now makes collective observations, and follows up on them,
within one year for a few selected recommendations, and in connection with the
next periodic report for the full set.
The reporting system currently serves a number of overlapping purposes, de-
pending on the quality of the State’s participation. The activity of generating the
report should focus the attention of State organs on their ICCPR obligations and
on the needs expressed by civil society; the constructive dialogue between the State
and the HRC gives the State the opportunity to educate the Committee and the
world at large on its efforts to comply, and to receive legal guidance and advice from
the HRC; the transparency of the dialogue, especially if webcast, offers the State’s
populace a different perspective on their government; the HRC’s welcoming and use
of NGOs’ information can bolster the legitimacy of their activities and their issues;
the HRC’s concluding observations offer a form of public accountability for human
rights violations; the concluding observations give the HRC an opportunity to in-
dicate its interpretation of the ICCPR; and the follow-up activities create a further
forum for civil society engagement.
The HRC can consider individuals’ communications only if the relevant State
has ratified the (first) Optional Protocol to the ICCPR, as roughly two-thirds of
the parties to the ICCPR proper have done thus far.6 It has been suggested that the
optional character of the procedure facilitated the HRC’s ability to make findings
of violations in its decisions (known as ‘Views’) during the Cold War years, be-
cause the members from socialist States did not seek to undermine a mechanism to
which their States were not parties.7 The communications process serves a variety
of purposes—most obviously, extending a forum where individuals can seek vin-
dication of their claims; but also bringing neglected issues to the HRC’s attention;
operating as an adjunct to the monitoring function of the State report; and giving
the HRC the opportunity to expound its interpretation of the ICCPR in a more
definite way than concluding observations on State reports usually allow. The HRC
also engages in public follow-up on its Views, pressing for implementation of its
recommendations.
A key limitation of the HRC’s role is that its evaluation of State reports and its
final decisions on communications do not produce legally binding outcomes.8 Most
of the concluding observations on State reports do not purport to express definitive

5 See eg Christian Tomuschat, Human Rights: Between Idealism and Realism (OUP 2003), 147–49.
6 First Optional Protocol to the ICCPR (opened for signature 16 December 1966, entered into force
23 March 1976) 999 UNTS 302.
7 Nejib Bouziri, ‘Problèmes particuliers rencontrés dans les premières années d’activité du Comité’
in Nisuke Ando (ed), Towards Implementing Universal Human Rights: Festschrift for the Twenty-Fifth
Anniversary of the Human Rights Committee (Brill 2004) 79, 98 (Mr Bouziri was an HRC member from
1979 to 1986).
8 The HRC has held, however, that its requests to States to avoid inflicting irreparable harm on the
author of a communication—such as execution or deportation to a country where the author fears
torture—pending resolution of the communication are legally binding, because the State would be ren-
dering the communications procedure futile by acting irreversibly before the Committee has expressed
its Views on the State’s obligations. See eg Yuzepchuk v Belarus, HRC Communication No 1906/2009
(24 October 2014) UN Doc 112/D/1906/2009, para 6.4.
34

34 Giving Meaning and Effect to Human Rights

conclusions. Each set of concluding observations includes a series of paired ‘concern’
paragraphs and ‘recommendation’ paragraphs; usually the concerns involve possible
violations, or even regrets about matters that the HRC recognizes as suboptimal,
such as reservations to the ICCPR that could be withdrawn. Occasionally the con-
cern paragraph will forthrightly describe a legal rule or practice as incompatible
with the treaty. The recommendations are ordinarily proposed measures for dealing
with the concern, which are not necessarily the only measures that would suffice,
although sometimes the recommendation may openly assert that a rule incompat-
ible with the treaty must be amended. Whether tentative or certain in phrasing, the
concluding observations are not legally binding under the ICCPR.
In Views on communications, the HRC’s resolution of the dispute does include
definite findings of violation or non-violation. The Views also point out the State’s
obligation to provide reparations for any violations, with details whose status as re-
commendations or legal conclusions is less clear.9 Neither the findings of violation
nor the remedial indications are legally binding under the Optional Protocol to the
ICCPR authorizing the communications procedure.
Although the reporting procedure and the communications procedure do not re-
sult in legally binding outcomes for the State involved, they exert a softer normative
force for compliance, and they also generate indirect effects on the implementation
of the ICCPR. State authorities may be persuaded by the HRC’s findings, and re-
examine individual decisions or policies. Views and concluding observations can
reinforce internal political forces and social movements arguing for reform. The
HRC’s follow-up processes call upon States to document and explain their measures
of implementation. At the international level, a treaty body must be understood as
an element in a broader network, where the outputs of the treaty body motivate or
are utilized by other institutions that play different roles. The HRC’s findings pos-
sess an authority and objectivity that can be combined with the political power or
financial resources of other external actors to induce change. The HRC’s legal inter-
pretations of the ICCPR provide an objective framework for criticizing the State’s
failure to respect human rights.
The HRC has characterized its elaboration of the meaning of the ICCPR as ‘au-
thoritative’, a term that is subtly different from ‘binding’.10 The International Court
of Justice (ICJ) expressed its appreciation of the HRC’s role in a well-known judg-
ment applying the ICCPR:

9 The HRC’s lists of forms of reparation in its Views may be understood as conclusions on the exact
remedy required by the violations found, or as recommended measures to remedy these violations, or as
being sometimes one and sometimes the other. See eg HRC, ‘Summary Record’ (31 October 2014) UN
Doc CCPR/C/SR.3134, 3 (for an abbreviated and approximate summary of the discussion); Martin
Scheinin, ‘The Human Rights Committee’s Pronouncements on the Right to an Effective Remedy: An
Illustration of the Legal Nature of the Committee’s Work under the Optional Protocol’ in Ando,
Implementing Universal Human Rights (n 7) 101, 108–10; cf Gerald L Neuman, ‘Bi-Level Remedies
for Human Rights Violations’ (2014) 55 Harvard Intl L J 323 (examining remedies from a theoretical
perspective). Moreover, the Views rarely include reasons in their remedial paragraph.
10 HRC, ‘General Comment 33’ (2008) UN Doc CCPR/C/GC/33, para 13.
35

The Functions of the Human Rights Committee 35

Since it was created, the Human Rights Committee has built up a considerable body of inter-
pretative case law, in particular through its findings in response to the individual communica-
tions which may be submitted to it in respect of States parties to the first Optional Protocol,
and in the form of its ‘General Comments’.
Although the Court is in no way obliged, in the exercise of its judicial functions, to model
its own interpretation of the Covenant on that of the Committee, it believes that it should
ascribe great weight to the interpretation adopted by this independent body that was estab-
lished specifically to supervise the application of the treaty. The point here is to achieve the
necessary clarity and the essential consistency of international law, as well as legal security,
to which both the individuals with guaranteed rights and the States obliged to comply with
treaty obligations are entitled.11
In other words, when the HRC performs its task properly, its consistent inter-
pretations provide focal points around which interpretation of the ICCPR should
coalesce.
From my own perspective, this interpretive function constitutes the most im-
portant contribution of the HRC to the implementation of the ICCPR. In saying
this, I do not mean to minimize the value of the other functions, but rather to em-
phasize the need for authoritative elaboration. Covenant rights cannot be left to the
chaos of self-serving interpretations by each indifferent or complacent State. The
HRC’s interpretations are foreshadowed in concluding observations, articulated in
holdings on communications, and summarized in General Comments.
General Comments usually provide a synthesis or progressive codification of
the HRC’s interpretation of a particular substantive article of the ICCPR, based
primarily on its past experience in communications and concluding observations.
Some General Comments address cross-cutting issues, and others have addressed
HRC procedures. In the past, General Comments often requested States to include
particular information in their reports, but this function may be fading as advance
lists of issues replace comprehensive reports. General Comments may include both
passages that elaborate obligations and passages that set forth recommended means
of avoiding violations; the use of the verb ‘should’ often, but not always, indicates
a recommendation, in contrast with the mandatory ‘must’. General Comments
guide States and the HRC’s own conduct in drafting concluding observations and
Views. Nonetheless, the HRC may further develop its jurisprudence without first
amending or replacing an older General Comment.12

11 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010]
ICJ Rep 639, 664.
12 eg in 1996 the HRC’s General Comment 25 had identified ‘established mental incapacity’ as a
permissible basis for denying the right to vote (HRC, ‘General Comment 25’ in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies’ (2008) HRI/GEN/1/Rev.9 (vol I) para 4). This conclusion appeared problematic after the ad-
vent of the Convention on the Rights of Persons with Disabilities (CRPD) (opened for signature 13
December 2006, entered into force 3 May 2008) 2515 UNTS 3. In response, the HRC declined to
amend or replace its old General Comment, but rather took into account some of the insights of the
CRPD Committee and adopted concluding observations that articulated a stricter standard for (but not
an absolute ban on) finding an inability to vote. See eg HRC, ‘Concluding Observations on the Third
36

36 Giving Meaning and Effect to Human Rights

The importance of the HRC’s interpretive function varies somewhat in the
different regions. It is most crucial in regions that lack independent human rights
tribunals, and for countries that are not parties to relevant regional treaties. In
the Council of Europe, which has a thick set of human rights institutions and a
well-established if overburdened court with mandatory jurisdiction, the HRC’s
role is supplementary. The HRC has filled in some gaps in the coverage of the
European Convention on Human Rights,13 and has occasionally led the way in
the interpretation of particular rights, such as conscientious objection to mili-
tary service as an element of religious freedom.14 The HRC also provides a global
corrective to certain region-specific interpretations, such as the excessive margin
of appreciation that the European Court of Human Rights (ECtHR) affords
to limitations on non-Christian religious practices.15 In the Americas, where
most States are now subject to the jurisdiction of a regional court that borrows
freely from European and global sources and exercises considerable interpretive
freedom of its own, the HRC’s role may have become supplementary as well.
Nonetheless, for non-parties to the American Convention on Human Rights,
most prominently the United States of America, the ICCPR reporting system
provides an essential impartial global forum for accountability.16 In Africa, where
the regional human rights convention expressly encourages use of global human
rights instruments in its interpretation, the HRC influences the articulation of
human rights standards both directly under the ICCPR and indirectly through
the regional convention, although great challenges of implementation remain.17
Moreover, the new African Court on Human and Peoples’ Rights (ACtHPR)
has already invoked the HRC’s General Comments in some of its judgments,18

Periodic Report of Hong Kong, China’ (29 April 2013) UN Doc CCPR/C/CHN-HKG/CO/3, para
24; HRC, ‘Summary Record’ (28 March 2013) UN Doc CCPR/C/SR.2978, para 14.
13 eg there is a weakened version of the right to criminal appeal, with an exception that allows ap-
peals to be restricted to pure issues of law, in the European human rights system (Protocol No 7 to the
Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 22
November 1984, entered into force 1 November 1988) ETS 117). HRC Views finding violations by
Spain of the stronger provision in ICCPR art 14(5) led the legislature to adopt legal reforms broadening
the right of appeal. See International Law Association, ‘Final Report on the Impact of Findings of the
United Nations Human Rights Treaty Bodies’ (2004) 9–10.
14 See Bayatyan v Armenia App no 23459/03 (ECtHR, 7 July 2011) paras 105–09 (changing the
Court’s interpretation of ECHR art 9 in relation to conscientious objection, in parallel to the HRC’s
change in interpretation of ICCPR art 18).
15 Compare eg Bikramjit Singh v France, HRC Communication No 1852/2008 (1 November
2012) UN Doc CCPR/C/106/D/1852/2008 (protecting a male Sikh student’s right to wear a reli-
giously required head covering in public school), with Jasvir Singh v France App no 25463/08 (ECtHR,
30 June 2009) (finding that the denial of such a right was within France’s margin of appreciation);
see Gerald L Neuman, ‘Human Rights and Constitutions in a Complex World’ (2013) 50 Irish Jurist
1, 7–8.
16 Perhaps it should be mentioned here that, in the HRC, members are recused from participation in
examining the State report of their country of nationality, as well as communications brought against it,
in contrast to the mandatory inclusion of national judges in cases before the ECtHR. See HRC, Rules
of Procedure (n 2) Rules 71(4), 90(1)(a). The United States is not a party to the Optional Protocol.
17 See Frans Viljoen, International Human Rights in Africa (OUP 2007) 345.
18 Konaté v Burkino Faso App no 004/2013 (ACtHPR, 5 December 2014); Mtikila v United Republic
of Tanzania App nos 009/2011 and 011/2011 (ACtHPR, 14 June 2013).
37

The Committee and Its Members 37

and has exercised its explicit authority to find a violation of the ICCPR in a
case.19

III. The Committee and Its Members

According to the ICCPR, the Human Rights Committee ‘shall consist of eighteen
members’.20 The Committee is its members, taken together. In addition, the ICCPR
requires the UN Secretary-General to ‘provide the necessary staff and facilities for
the effective performance of the functions of the Committee under the present
Covenant’.21 The result of this arrangement is that personnel of the UN human
rights bureaucracy (currently the Treaty Bodies Division of the Office of the High
Commissioner for Human Rights (OHCHR)) furnish vital support and assistance
to the work of the HRC, and the Conference Management division of the UN sup-
plies other facilities, such as interpretation, translation, and publication services.
In a broad sense, the Committee could be said to include the members, the
human rights officers, and the Conferences Services personnel, just as the ICJ could
be said to include the judges and the entire Registry, from the legal officers to the
security division and the medical unit.22 Unlike the ICJ, however, the HRC does
not have formal authority over any of the people who assist it—they are all part of
the UN Secretariat.23 The HRC proper is an independent treaty-based body outside
the UN hierarchy, but dependent on the UN for financial and human resources. The
Committee members have a close working relationship with their own Secretary
and other helpful people from the Treaty Bodies Division, and a much more arms-
length relationship with others, including Conference Services, whose translation
and publication services actually consume the great majority of the treaty body
budget.24 This unfortunate structure weakens the HRC.
The Committee proper, then, consists of the members, nationals of eighteen dif-
ferent States that are parties to the ICCPR. They attend the HRC’s three sessions per
year, and they also perform preparatory work between sessions, in addition to the
full-time jobs that support them. They are elected by the States parties for staggered
four-year terms, with consideration given to ‘equitable geographical distribution of
membership and to the representation of the different forms of civilization and of
the principal legal systems’.25 The regional distribution is not fully proportional,

19 See Konaté (n 18); Thomas v United Republic of Tanzania App no 005/2013 (ACtHPR, 20
November 2015).
20 ICCPR art 28. 21 ICCPR art 36.
22 See ICJ ‘Report of the International Court of Justice: 1 August 2013–31 July 2014’ (2014) UN
Doc A/69/4, 61.
23 See Torkel Opsahl, ‘The Human Rights Committee’ in Philip Alston (ed), The United Nations and
Human Rights: A Critical Appraisal (OUP 1992) 369, 388–91.
24 See eg Navanethem Pillay, ‘Strengthening the United Nations Treaty Body System: A Report by
the United Nations High Commissioner for Human Rights’ (OHCHR 2012) 26 (describing treaty
body costs for 2010 and 2011 as $39.3 million for human rights personnel, including members’ travel,
and $72 million for conference services).
25 ICCPR art 31(2).
38

38 Giving Meaning and Effect to Human Rights

but the HRC benefits from the existing diversity of its membership.26 From recent
experience I would report that the members interact as equals and without the fac-
tionalism that characterized the HRC’s Cold War period. Nearly all the HRC mem-
bers have been lawyers, though with different career paths, including academia, the
judiciary, foreign ministries, and NGO service. Their legal experience, which the
ICCPR encourages but does not require, contributes to the quality of the HRC’s
work; so do other skills, such as diplomacy, which academics often lack but which is
helpful in dialogue with recalcitrant States or in sometimes awkward relations with
UN structures. The HRC could benefit from greater gender diversity in its member-
ship, an issue that the two Covenants do not expressly address.27
The members contribute through a division of labour within the Committee.
Every two years since 1987, the HRC has elected a new Chairperson from a dif-
ferent region than the previous one, though not in a strictly regular rotation. Along
with three Vice-Chairpersons and a Rapporteur (for the Annual Report), the
Chairperson participates in the Bureau to handle certain administrative matters.
Special Rapporteurs are appointed for two-year terms to perform certain specialized
functions, such as the follow-up procedures. The heaviest load is carried by the
Special Rapporteur for New Communications and Interim Measures, who is on call
for urgent decisions year-round. An average member in an average session is likely
to play multiple roles: as rapporteur for one State report, task force member on an-
other, rapporteur for a few communications, and more generally by actively partici-
pating in deliberations on concluding observations, communications, the pending
draft General Comment, and the HRC’s working methods.
The HRC’s Views, concluding observations, and General Comments are all the
product of deliberations by the plenary Committee.28 Concluding observations and
General Comments are adopted by consensus. Views on individual communica-
tions, however, may be adopted by majority vote if consensus cannot be reached,
and this is the one area where the HRC’s rules provide for the publication of separate
individual opinions (concurring or dissenting).29
Members write their individual opinions, alone or with others, for a variety
of reasons. The HRC has a fairly restrained culture of dissent, and members do

26 See eg UNGA ‘Promotion of Equitable Geographical Distribution in the Membership of the

Human Rights Treaty Bodies’ (3 August 2015) UN Doc A/70/257 (providing statistics). Members
with human rights expertise contribute understanding of the operation of their legal systems, including
the defects; they should not serve as mere conduits for conveying national and regional preferences.
For further discussion of regional representation, see Samantha Besson, ‘The Influence of the Two
Covenants on States Parties Across Regions: Lessons for the Role of Comparative Law and of Regions in
International Human Rights Law’, Chapter 11 in this volume.
27 See eg Alice Edwards, ‘Universal Suffrage and the International Human Rights Treaty
Bodies: Where are the Women?’ in M Cherif Bassiouni and William A Schabas (eds), New Challenges
for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights
Council Procedures? (Intersentia 2011) 151; UNGA Res 68/268, 9 April 2014, paras 12–13.
28 Some of the inadmissibility decisions may be drafted by a Special Rapporteur or Working Group,
and adopted by the Committee without discussion if no member raises a concern. See HRC, Rules of
Procedure (n 2) Rule 93(3).
29 ibid Rule 104.
39

The Committee and Its Members 39

not write every time they disagree with some aspect of the majority opinion.30
Separate opinions may argue for a different evaluation of the facts, or may articu-
late a different legal approach with regard to substance, methodology, or procedure.
Sometimes concurring opinions explain more fully reasoning that may be latent in
a terse majority opinion, or emphasize one of the rationales that contributed to a
compromise formulation. On a few occasions, concurring members have written in
order to respond to the arguments of a dissenting opinion. Separate opinions bring
internal debates into the open, which may prompt wider discussion, and they record
arguments that may prove influential when a related issue arises in a later case. The
individualized style of many separate opinions has potential to persuade a variety of
audiences that the concise institutional style of HRC majority opinions may lack.
In the HRC, the members write the General Comments. They possess the legal
expertise to draft, and they would not delegate the task to the Secretariat or to out-
side agencies or NGOs, as some other treaty bodies have done.31 Serving as rappor-
teur on a General Comment is a huge time commitment, both during and between
sessions. The rapporteur produces the initial draft, and shepherds the evolving text
through the stages of discussion. The procedure for adopting General Comments
has become highly consultative, and the HRC receives very useful suggestions from
States and other stakeholders, but the members must be persuaded of their merit,
and each paragraph of the text is adopted by consensus.
Members play diverse roles in another respect. One former member, Martin
Scheinin, has emphasized three ideal types of the Committee member, which he
and a co-author call the Captain, the Fire Brigade, and the Icebreaker.32 The captain
emphasizes maintaining stability on a forward course, as if the Committee were a
massive vessel that could not make sharp turns or reduce speed quickly. The fire bri-
gade responds to burning injustices, and rushes to extinguish them by any means
that work. The icebreaker leads the way through blocked seas, creating the single

30 During 2011–14, somewhat under 40 per cent of the Views included at least one separate opinion,
concurring or dissenting (author’s calculation). Far fewer inadmissibility decisions inspire separate opin-
ions. The number of separate opinions on Views, written or joined, varied greatly among members
during this period, from zero to forty-eight (an outlier). I do not distinguish here between concurring
and dissenting opinions, because members may disagree sharply on issues of interpretation in cases
where they agree that the provision at issue has been violated. The HRC’s rate of separate opinions is
much lower than that of the ECtHR, but far higher than that of the Committee on the Elimination
of Racial Discrimination (CERD), which did not see its first separate opinion until 2013. See Robin
CA White and Iris Boussiakou, ‘Separate Opinions in the European Court of Human Rights’ (2009) 9
Human Rights L Rev 37 (finding 80 per cent of Chamber and Grand Chamber judgments from 1999 to
2004 non-unanimous); Luzius Wildhaber, ‘Opinions dissidentes et concordantes de juges individuels
à la Cour Européenne des Droits de l’Homme’ in René-Jean Dupuy (ed), Mélanges en l’Honneur de
Nicolas Valticos: Droit et justice (A Pedone 1999) 529 (giving earlier statistics); TBB Turkish Union in
Berlin-Brandenburg v Germany (2013), CERD Communication No 48/2010, UN Doc CERD/C/82/
D/48/2010.
31 See eg Jaap E Doek, ‘The CRC: Dynamics and Directions of Monitoring its Implementation’
in Antonella Invernizzi and Jane Williams (eds), The Human Rights of Children: From Visions to
Implementation (Routledge 2011) 99, 106.
32 See Pamela Slotte and Martin Scheinin, ‘Captain, Fire Brigade or Icebreaker? Political Legitimacy
as a Rationale in Human Rights Adjudication’ in Tage Kurtén and Lars Hertzberg (eds), Legitimacy: The
Treasure of Politics (Peter Lang 2011) 89.
40

40 Giving Meaning and Effect to Human Rights

channel that States must follow to reach the treaty’s goal. Scheinin makes evident his
sympathy with the fire brigade.
I agree that the HRC benefits from having members with diverse approaches
and strategies, and I recognize the fire brigade type as making an essential contribu-
tion, challenging the others to perceive new problems and find new solutions. My
own view is that the HRC also needs counterweights to the fire brigade, and I note
Scheinin’s observation that the fire brigade concentrates on putting out the fire,
leaving it to civilians to clean up ‘the mess left behind’.33 If we depict the members’
roles in such terms, then I would add here the need for Chess Players, who can listen
to the fire brigade’s suggestion, but who think several moves ahead, and consider
the specific and systemic consequences of employing the proposed method and its
alternatives.
Another useful type, who would also double in one of the other capacities, is the
Historian: the HRC has been fortunate in having a few long-serving members who
could shed light not only on past events, but on why they occurred. Regrettably, the
Secretariat has not been in a position to perform that function. Historians are not
necessarily resistant to change, but are knowledgeable about the Committee’s past.
The value of institutional memory provides an argument against rigid term limits for
treaty bodies, which benefit from both infusion of new perspectives and an insider’s
understanding of a treaty body’s history.

IV. The Interpretative Function of the Members

The HRC’s members understand that their task is to apply the ICCPR. Unlike some
other human rights tribunals,34 they are not given competence to adjudicate claims
brought under other human rights treaties, either global or regional. The doctrine of
the indivisibility of human rights does not confer omnicompetence on treaty bodies.
Neither does it imply that whatever violates a substantive provision of one human
rights treaty should also be regarded as violating some substantive provision of every
other human rights treaty.
At the same time, application of the ICCPR may require the Committee to give
attention to other treaties, or even customary international law. For example, article
4 ICCPR authorizes and restricts derogations from certain provisions of the ICCPR
in times of public emergency, while expressly specifying that derogating meas-
ures must remain consistent with the State’s other obligations under international
law. The Committee could not give proper effect to that restriction on derogation

33 ibid 109.
34 See the Protocol to the African Charter of Human and Peoples’ Rights on the Establishment of
an African Court on Human and Peoples’ Rights (opened for signature 9 June 1998, entered into force
25 January 2004), art 3(1) (extending jurisdiction to disputes regarding either the Charter or ‘any other
relevant Human Rights instrument ratified by the States concerned’); Konaté (n 18) (applying both the
ICCPR and the Charter).
41

The Interpretative Function of the Members 41

without taking into account the State’s obligations under treaty-based or customary
international humanitarian law.35
More broadly, the HRC faces recurring questions about the relationship between
rights guaranteed by the ICCPR and the obligations of States under other human
rights treaties. In 2013–14, the Committee engaged in an explicit debate on the ef-
fect of other ‘core’ human rights treaties—either the texts of the treaties themselves
or the interpretations by the respective treaty bodies—on the interpretation of the
ICCPR.36 Committee members were in general agreement that dialogue with other
treaty bodies was important, and that the HRC should be open to learning from the
insights of other treaty bodies. No member proposed that the HRC should auto-
matically and unquestioningly adopt other treaty bodies’ interpretations of their
respective treaties as settling the meaning of the ICCPR.
The HRC’s conversation took place in the context of the issues that arise repeat-
edly in its work, but also in the context of contemporary debates related to the
OHCHR’s report on ‘strengthening the United Nations treaty body system’.37 (It
deserves notice that the OHCHR’s self-interested formulation made the ‘system’
the object of the strengthening, rather than the treaty bodies.) The report insisted,
for example, that treaty bodies ‘need to ensure consistency among themselves on
common issues in order to provide coherent treaty implementation advice and guid-
ance to States’.38 The calls for consistency and coherence could be read as seeking
either absence of conflict or achievement of uniformity.
To my own understanding, direct contradiction between treaty bodies, in the
sense of the HRC’s concluding that the ICCPR obliges a State to perform an ac-
tion that another treaty body regards as a violation of its respective treaty, or vice
versa, amounts to a very serious problem to be avoided if possible. Avoiding such
contradictions may not be possible, however, if the other treaty body does not take

35 See HRC, ‘General Comment 29’ in ‘Compilation of General Comments’ (vol I) (n 12) 234,
paras 9–10.
36 The conversation included a discussion in open session on 28 March 2014 as part of the HRC’s
improvement of its working methods, and an earlier preliminary discussion by the ten HRC members
who attended an informal retreat in the Hague in April 2013. The March 2014 meeting is summarized
in abbreviated and approximate form in HRC, ‘Summary Record’ (28 March 2014) UN Doc CCPR/
C/SR.3066; there is no public record of the April 2013 retreat, although its content was briefly dis-
cussed at the HRC’s meeting with the States parties to the ICCPR in July 2013, as summarized in HRC,
‘Summary Record’ (22 July 2013) UN Doc CCPR/C/SR.3000, paras 32–48.
37 See Pillay, ‘Strengthening’ (n 24); UNGA Res 68/268 (9 April 2014) UN Doc A/RES/68/268
(adopting the outcome of the intergovernmental process).
38 See Pillay, ‘Strengthening’ (n 24) 25 and 68 (‘ensuring consistency of jurisprudence among treaty
bodies’). As another example, the so-called Poznan formula for uniformizing the procedural rules
of treaty bodies by enhancing the role of joint meetings of the committees’ chairpersons (see Pillay,
‘Strengthening’ (n 24) 31; UNGA Res 68/268, 9 April 2014, para 38) shifts power from the treaty
bodies’ members to the OHCHR. The Treaty Bodies Division drafts proposals for procedural changes
and can present them—with insufficient prior notice—at the chairpersons’ intersessional meetings,
which are then under pressure to act. For example, at the 2014 meeting of chairs, the OHCHR put
a series of texts on the agenda that had been made available only after the most recent sessions of
the HRC and the Committee on the Elimination of Racial Discrimination had ended. See UNGA,
‘Implementation of Human Rights Instruments’ (11 August 2014) UN Doc A/69/285 (report of the
meeting of chairs), paras 25–26.
42

42 Giving Meaning and Effect to Human Rights

ICCPR obligations adequately into account. Specialized treaty bodies may lack legal
expertise, and they may pay insufficient attention to the rights of others that come
into conflict with the rights within their specialized mandate. Of course, the HRC
may also have misperceived empirical realities that the other treaty body under-
stands better, or may have neglected the perspective of a disadvantaged group whose
situation prompted the creation of the other treaty. The HRC needs to examine both
possibilities, by means that may include actual dialogue with the other treaty body,
but it cannot automatically yield to the expertise or choices of the other body.
‘Consistency’ in a stronger sense, however, is a different issue. Even with regard to
civil and political rights listed in the ICCPR, other ‘core’ treaties (by text or interpret-
ation) may impose stricter or more specific standards, more detailed implementing
measures, or more extensive positive obligations. The Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)39
provides an instructive example. The UNCAT could be considered as a kind of
‘implementing treaty’ for ICCPR article 7, which prohibits torture and cruel, in-
human, or degrading treatment or punishment. The UNCAT’s preamble refers to
ICCPR article 7 as one of its predecessors, and it emphasizes the States parties’ desire
to ‘make more effective the struggle against torture and other cruel, inhuman or de-
grading treatment or punishment throughout the world’.40 UNCAT article 1 pro-
vides a definition of torture for the purposes of the UNCAT—without prejudice to
wider definitions elsewhere—and there follow a series of preventive, repressive, and
remedial obligations, some quite detailed, to increase effectiveness. Cruel, inhuman,
or degrading treatment is handled more succinctly in UNCAT article 16, without
providing a definition and expressly imposing a subset of the obligations listed for
torture, again without prejudice to other instruments.
The HRC has considered UNCAT as useful guidance with respect to the imple-
mentation of ICCPR article 7, but not as wholly determining the meaning of article
7 obligations within the framework of the ICCPR.41 It would be excessive and for-
malistic to consider every detailed regulation listed in the UNCAT as a mandatory
component of the State’s duties of implementation under article 2 ICCPR in com-
bination with article 7. The HRC also does not rely exclusively on the definition of
torture in UNCAT article 1, or the scope given to other ill-treatment in UNCAT
article 16, both of which restrict UNCAT obligations to acts committed ‘by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.’ That aspect of the definition is relevant to the range of
detailed obligations in the UNCAT. In contrast, the HRC understands the rights in
ICCPR article 7 as ‘amenable to application between private persons’ in a manner
that generates positive obligations for the State to prevent and punish private torture

39 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
40 UNCAT Preamble.
41 See eg Giri v Nepal, HRC Communication No 1761/2008 (24 March 2011) UN Doc CCPR/C/
101/D/1761/2008, para 7.5.
43

The Interpretative Function of the Members 43

or ill-treatment.42 Thus, even a treaty as closely linked to the ICCPR as the UNCAT
needs to be used with care in interpreting the ICCPR itself.43
It would admittedly simplify the work of the Secretariat and provide uniform
advice to States if the HRC and other treaty bodies always gave identical answers
to questions about the permissibility of particular practices. A State party to the
ICCPR would have understandable objections, however, if the result were that it
became bound de facto by the content of another treaty that it had not ratified, or if
the HRC’s communications procedure became the vehicle for bringing complaints
under the other treaty when the State had not accepted the other treaty’s optional
procedure. And, as illustrated by the UNCAT, identical interpretation would some-
times reduce protection under the ICCPR.
Using the text of another ‘core’ treaty to shed light on provisions of the ICCPR
differs from using other treaty bodies’ interpretations of their treaties for that purpose.
Generally speaking, States parties have agreed to be bound by the texts of treaties,
and the wording of the texts is stable over time.44 Interpretations by other treaty
bodies, in contrast, are not formally binding, and they change over time, not neces-
sarily in a predictable direction. The HRC has found the interpretations by other
treaty bodies of their treaties informative,45 but it has not tried to emulate all their
innovations. To maintain dynamic consistency would not only be taxing; it would
also mean abandoning the HRC’s own credibility as authoritatively interpreting
the ICCPR.
In the context of the present volume, particular interest attaches to the relation-
ship between the two Covenants in light of the indivisibility of civil and political
rights on the one hand from economic, social, and cultural rights on the other.
The interplay between the ICCPR and the International Covenant on Economic,
Social and Cultural Rights (ICESCR)46 differs from the relationship between the
two Covenants and later treaties. Neither Covenant can be understood as generally
implementing the other. There are a variety of relationships among the rights in the

42 See eg HRC, ‘General Comment 31’ in ‘Compilation of General Comments’ (vol I) (n 12) 244,
para 8.
43 Similarly, the HRC has not mechanically incorporated into its definition of the child’s right to
protection by the State under ICCPR arts 23 and 24 all the obligations set forth in the Convention
on the Rights of the Child ((opened for signature 20 November 1989, entered into force 2 September
1990) 1577 UNTS 3). Instead, it has characterized that Convention as ‘a valuable source informing the
Committee’s interpretation of the Covenant’ (Blessington and Elliot v Australia, HRC Communication
No 1968/2010 (22 October 2014) UN Doc CCPR/C/112/D/1968/2010, para 7.11).
44 Qualifications to this proposition include the fact that not all States parties to the ICCPR may
have ratified another treaty; that some ratifications are accompanied by reservations; and that dif-
ferent language versions of treaties exist. In fact, later translations of both Covenants into Chinese
may have been substituted for the original ones: see Sun Shiyan, ‘The International Covenant on Civil
and Political Rights: One Covenant, Two Chinese Texts?’ (2006) 75 Nordic J of Intl L 187; James D
Seymour and Patrick Yuk-tung Wong, ‘China and the International Human Rights Covenants’ (2015)
47 Critical Asian Studies 514.
45 See eg HRC, ‘General Comment 35’ (16 December 2014) UN Doc CCPR/C/GC/35 (citing
General Comments of both the Committee on the Rights of the Child and the Committee Against
Torture, among other sources, in construing ICCPR art 9).
46 International Covenant on Economic, Social and Cultural Rights (opened for signature 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
4

44 Giving Meaning and Effect to Human Rights

two Covenants, and there are two conspicuous instances of overlapping rights: the
right to form and join trade unions is mentioned in both ICCPR article 22 and
ICESCR article 8(1)(a), and the generally phrased non-discrimination norm in
ICCPR article 26 shares content with the ancillary norms of non-discrimination with
regard to ICESCR rights expressed in ICESCR articles 2(2) and 3.47 Nonetheless,
considerable differences remain in the rights enumerated by the Covenants and their
interpretations by the respective bodies.
One might usefully contrast the prohibition of arbitrary interference with the
home under ICCPR article 17 and the right to adequate housing under ICESCR
article 11(1). The Committee on Economic, Social and Cultural Rights (CESCR)
has elaborated the right to adequate housing in its General Comment 4 (issued
in 1991) as including obligations to take necessary steps toward ensuring shelter
for everyone that is ‘adequate’ in numerous dimensions, including legal security of
tenure; availability of services, materials, facilities, and infrastructure; affordability;
habitability; accessibility; location ‘which allows access to employment options,
health-care services, schools, child-care centers and other social facilities’; and enab-
ling the expression of cultural identity.48 While fulfilling this ambitious conception
of adequacy was subject to the ICESCR mandate for progressive achievement, some
dimensions of the right had more immediate consequences. One such consequence,
noted in General Comment 4 and more fully expounded in General Comment
7 (issued in 1997), involved protection against ‘forced evictions’.49 The CESCR
pointed out that ‘forced eviction’ is a term of art, referring not to all compelled re-
linquishment of housing for any reason, but rather ‘the permanent or temporary
removal against their will of individuals, families and/or communities from the
homes and/or land which they occupy, without the provision of, and access to, ap-
propriate forms of legal or other protection’, and does not include ‘evictions carried
out by force in accordance with the law and in conformity with the provisions of
the International Covenants on Human Rights.’50 That conformity implies both
procedural and substantive limitations on the process of lawful eviction, and also:
Evictions should not result in individuals being rendered homeless or vulnerable to the vio-
lation of other human rights. Where those affected are unable to provide for themselves, the State
party must take all appropriate measures, to the maximum of its available resources, to ensure
that adequate alternative housing, resettlement or access to productive land, as the case may be, is
available.51
That is, under ICESCR article 11, a person may sometimes be lawfully evicted from
a particular housing unit, but the State must then ensure that the person’s right to
adequate housing, as understood by CESCR, is respected.

47 The HRC clarified in Broeks v the Netherlands, HRC Communication No 172/1984 (9 April
1987) UN Doc CCPR/C/29/D/172/1984, and a companion case that the prohibition of sex discrim-
ination in ICCPR art 26 was autonomous rather than limited to discrimination with regard to other
rights under the ICCPR, and that it applied to unemployment benefits.
48 CESCR, ‘General Comment 4’ in ‘Compilation of General Comments’ (vol I) (n 12) 11.
49 CESCR, ‘General Comment 7’ in ‘Compilation of General Comments’ (vol I) (n 12) 38.
50 ibid para 3. 51 ibid para 16 (emphasis added).
45

The Interpretative Function of the Members 45

The HRC has examined the phenomenon of eviction from informal settlements
in connection with several State reports, and has expressed concerns and made some
recommendations.52 The Committee did not make precise findings in Views on that
subject until 2012. The authors in Naidenova et al v Bulgaria were Roma residents of
a longstanding informal settlement constructed on municipal land, which the city
sought to reclaim after acquiescing in its presence for several decades.53 The NGOs
that briefed their case raised claims of both arbitrary and unlawful interference with
their homes under ICCPR article 17, as well as claims of discrimination based on
their Roma ethnicity.54 Among the arguments, counsel urged that the threatened
evictions would violate the right to adequate housing under ICESCR article 11 and
the CESCR’s General Comments, and therefore were unlawful within the meaning
of ICCPR article 17.55 Counsel also argued that the right to adequate housing in the
ICESCR was similar to the prohibition of arbitrary interference with the home in
ICCPR article 17, and that the factors articulated in CESCR, General Comment 7
showed that the threatened eviction should be condemned as arbitrary.
The HRC unanimously concluded that carrying out the threatened evictions as
planned would be arbitrary under ICCPR article 17, but did not endorse the strong
form of the NGOs’ arguments. The HRC wrote narrowly in its first Views on the
subject of eviction from unlawfully occupied property. It agreed that the dwellings
were the residents’ ‘homes’ within the meaning of article 17, despite the fact that
they did not own the land on which they had built. The HRC’s own analysis avoided
using the term ‘forced eviction,’ and did not equate the meaning of article 17 with
the meaning of ICESCR article 11 or the CESCR General Comment. The analysis
emphasized a series of factors that, taken together, rendered the city’s conduct un-
reasonable, including the lengthy acquiescence in the presence of the settlement, the
fact that the land was publicly owned, the absence of any pressing need to change
the status quo, and the unavailability of satisfactory replacement housing. The HRC
did not determine how it would rule if any of these factors had been different, but
left those issues for analysis in future cases.56 It also avoided saying that the residents
were immediately entitled to ‘adequate’ housing as defined by CESCR.
The Naidenova case could be seen as the HRC’s effort to independently explore
the content of a prohibition of arbitrary interference with the home in the context

52 See eg HRC, ‘Concluding Observations on the Second Periodic Report of Kenya’ (29 April
2005) UN Doc CCPR/CO/83/KEN, para 22.
53 Naidenova et al v Bulgaria, HRC Communication No 2073/2011 (30 October 2012) UN Doc
CCPR/C/106/D/2073/2011.
54 The HRC found the discrimination claims inadmissible because the evidence submitted insuffi-
ciently substantiated them, and also observed that these claims seemed not to have been exhausted in
the domestic proceedings (ibid para 13.6).
55 ibid para 3.4. Article 5(4) of the Bulgarian Constitution gives duly ratified treaties force of law
superior to statute. It does not expressly give the General Comments of treaty bodies force of law.
56 In a later decision on another communication brought against Bulgaria by the same NGOs, the
HRC found the claim inadmissible for lack of substantiation after the authors failed to provide informa-
tion the Committee had requested regarding such factors as the length of the occupancy and the public
or private ownership of the land. See SID v Bulgaria, HRC Communication No 1926/2010 (21 July
2014) UN Doc CCPR/C/111/D/1926/2010.
46

46 Giving Meaning and Effect to Human Rights

of unauthorized occupation of land. Counsel had called to the HRC’s attention the
CESCR’s interpretation of the other Covenant, and the HRC took into account
the insights expressed by the CESCR but also the difference in the two committees’
mandates. For example, from the perspective of a treaty body monitoring progres-
sive realization of the right to adequate housing, it might be appropriate to infer
strict obligations on a State that has neglected implementation of the right and
subsequently confronts the need to demolish unsanitary and dangerous structures,
or seeks to protect the interests of private owners whose land has recently been oc-
cupied. At the same time, a treaty body that has a different monitoring task, focused
on a prohibition of arbitrary interference with the home, may justifiably base its
evaluation on a narrower view of the duties involved, within the framework of a
different treaty. If the period of occupation has been short, or if the reason for re-
moving the occupiers from the land is compelling, it may be reasonable within the
framework of the ICCPR for a State with limited resources to expel them from their
current home without prioritizing them for housing that meets the CESCR’s stand-
ards of adequacy. Such divergence, if it occurred, would express no disrespect for the
CESCR’s interpretation of its own Covenant, but rather the HRC’s respect for the
limits of its own competence. The right to adequate housing and the right against
arbitrary interference with the home may be interrelated, but they are not identical.
Some may regard the foregoing as an unduly modest vision of the task of the HRC
and its members. Some authors have argued that the subsequent ‘core’ human rights
treaties should be considered as incorporated into the ICCPR, or more comprehen-
sively that States’ obligations under relevant economic, social, and cultural rights
should be enforced as part of compliance with an ICCPR right.57 I do not believe
that the HRC can implement this program. The HRC would require a large increase
in financial and human resources to adequately perform the role contemplated by
this comprehensive approach. If the HRC were perceived as arrogating that task to
itself, the General Assembly would cut its resources, not increase them.
Even the current modest role, performed across the range of civil and political
rights guaranteed by the ICCPR, constitutes a major contribution to the global
human rights project. The HRC is known for its impartial, credible, professional
exposition of the content of its Covenant. Among all the tasks that the members
accomplish, that is their most important contribution.

Bibliography
Bouziri, Nejib, ‘Problèmes particuliers rencontrés dans les premières années d’activité du
Comité’ in Nisuke Ando (ed), Towards Implementing Universal Human Rights: Festschrift
for the Twenty-Fifth Anniversary of the Human Rights Committee (Brill 2004)

57 See eg Eva Brems, ‘Should Pluriform Human Rights Become One? Exploring the Benefits of
Human Rights Integration’ (2014) European J of Human Rights 447, 463–64. Given that ICCPR
art 26 contains an autonomous guarantee of equality, it is likely that the requisite linkage could always
be found.
47

Bibliography 47
Brems, Eva, ‘Should Pluriform Human Rights Become One? Exploring the Benefits of
Human Rights Integration’ (2014) European J of Human Rights 447
Doek, Jaap E, ‘The CRC: Dynamics and Directions of Monitoring its Implementation’ in
Antonella Invernizzi and Jane Williams (eds), The Human Rights of Children: From Visions
to Implementation (Routledge 2011)
Edwards, Alice, ‘Universal Suffrage and the International Human Rights Treaty Bodies: Where
are the Women?’ in M Cherif Bassiouni and William A Schabas (eds), New Challenges for
the UN Human Rights Machinery: What Future for the UN Treaty Body System and the
Human Rights Council Procedures? (Intersentia 2011)
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Intl L J 323
Neuman, Gerald L, ‘Human Rights and Constitutions in a Complex World’ (2013) 50 Irish
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Opsahl, Torkel, ‘The Human Rights Committee’ in Philip Alston (ed), The United Nations
and Human Rights: A Critical Appraisal (OUP 1992)
Scheinin, Martin, ‘The Human Rights Committee’s Pronouncements on the Right to an
Effective Remedy: An Illustration of the Legal Nature of the Committee’s Work under
the Optional Protocol’ in Nisuke Ando (ed), Towards Implementing Universal Human
Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee (Brill
2004)
Seymour, James D, and Wong, Patrick Yuk-tung, ‘China and the International Human
Rights Covenants’ (2015) 47 Critical Asian Studies 514
Shiyan, Sun, ‘The International Covenant on Civil and Political Rights: One Covenant, Two
Chinese Texts?’ (2006) 75 Nordic J of Intl L 187
Slotte, Pamela, and Scheinin, Martin, ‘Captain, Fire Brigade or Icebreaker? Political
Legitimacy as a Rationale in Human Rights Adjudication’ in Tage Kurtén and Lars
Hertzberg (eds), Legitimacy: The Treasure of Politics (Peter Lang 2011)
Tomuschat, Christian, Human Rights: Between Idealism and Realism (OUP 2003)
Viljoen, Frans, International Human Rights in Africa (OUP 2007)
White, Robin CA, and Boussiakou, Iris, ‘Separate Opinions in the European Court of
Human Rights’ (2009) 9 Human Rights L Rev 37
Wildhaber, Luzius, ‘Opinions dissidentes et concordantes de juges individuels à la Cour
Européenne des Droits de l’Homme’ in René-Jean Dupuy (ed), Mélanges en l’Honneur de
Nicolas Valticos: Droit et justice (A Pedone 1999)
48

4
Interpretation of the ICESCR
Between Morality and State Consent

Daniel Moeckli*

I. Introduction

In September 2015, the Committee on Economic, Social and Cultural Rights

(CESCR or Committee) published its first Views on a communication brought
under the Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights (ICESCR-OP).1,2 The new complaint mechanism offers the
CESCR the opportunity to enhance its standing by pronouncing, similarly to a
court, on violations in individual cases. Consideration of particular cases, it has
been hoped, will allow the Committee to provide greater clarity on the scope of the
rights and obligations under the International Covenant on Economic, Social and
Cultural Rights (ICESCR or Covenant)3 than it has thus far been able to provide
through its General Comments and concluding observations.4 At the same time,
given that the stakes are arguably higher for States parties in individual cases as com-
pared to the State reporting procedure, they will start to scrutinize the Committee’s
work more critically.5 Therefore, how the CESCR interprets the ICESCR will be-
come more important than ever before. Whether the Committee’s interpretations

* I am grateful to Matthew Craven for his detailed comments on an earlier draft of this chapter.
Thanks are also due to Helen Keller, Stefan Schürer, Lea Raible, and Raffael Fasel for sharing their
insights.
1 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(opened for signature 10 December 2008, entered into force 5 May 2013) UN Doc A/RES/63/117,
48 ILM 256 (2009).
2 IDG v Spain CESCR Communication No 2/2014 (13 October 2015) UN Doc E/C.12/55/D/
2/2014.
3 International Covenant on Economic, Social and Cultural Rights (opened for signature 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
4 Philip Alston, ‘No Right to Complain About Being Poor: The Need for an Optional Protocol to
the Economic Rights Covenant’ in Asbjørn Eide and Jan Helgesen (eds), The Future of Human Rights
Protection in a Changing World: Fifty Years Since the Four Freedoms Address (Essays in Honour of Torkel
Opsahl) (Norwegian University Press 1992) 79, 86–93.
5 See ibid 92; David Marcus, ‘The Normative Development of Socioeconomic Rights through
Supranational Adjudication’ (2006) 42 Stanford J of Intl L 53, 54.

The CESCR as Interpreter 49

are regarded as persuasive will determine how many States will ratify the Optional
Protocol, how many complaints will be submitted, and what the influence of the
Committee’s Views will be.
The present chapter starts by setting out the role of the Committee in interpreting
the ICESCR (Section II) and by giving an overview of the rules governing interpret-
ation of the Covenant (Section III). Discussions concerning the Committee’s inter-
pretive practice have so far centred on the question as to the legality of the ‘special’
interpretive methods it has developed. Section IV shows that the framework pro-
vided by articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT)6 is
broad enough to accommodate the CESCR’s methods, which, on closer inspection,
turn out not to be that special at all. The real problem with the Committee’s inter-
pretations is not (il)legality but (lack of ) legitimacy. Section V demonstrates that its
interpretive practice can be read as a constant oscillation between morality on the
one hand and, on the other, State consent as the source from which legitimacy may
be derived in international law. Yet, as is argued in Section VI, the legitimacy of a
given interpretation depends on more than the extent of (pre-existing) State con-
sensus it embodies. Interpreters, including the CESCR, can generate legitimacy by
adhering to the agreed-upon interpretive principles and applying them in a coherent
and transparent manner.

II. The CESCR as Interpreter

As the International Law Commission (ILC) acknowledged when drafting the

VCLT, how rules of interpretation are applied inevitably depends on who it is
who applies them.7 The interpreter’s approach, in turn, is influenced by the as-
sumptions and categories of understanding shared by the community of actors
engaged in the interpretation of a given text: ‘meaning is produced by neither
the text nor the reader but by the interpretive community in which both are
situated’.8
As a treaty, the ICESCR is primarily to be interpreted by the States that are
parties to it. However, as a human rights treaty, its implementation, and thereby
interpretation, cannot be entrusted to States alone. Since the beneficiaries of the
commitments contained in human rights treaties are third parties, States will tend
to interpret them restrictively. In addition, because of the essentially non-reciprocal
nature of these obligations, States parties have no obvious incentive to ensure

6 Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force
27 January 1980) 1155 UNTS 331.
7 ILC, ‘Yearbook of the International Law Commission 1966’ (vol II, 1966) UN Doc A/CN.4/
SER.A/1966/Add.1, 218.
8 Ian Johnstone, ‘Treaty Interpretation: The Authority of Interpretive Communities’ (1991) 12
Michigan J of Intl L 371, 378 (building on Stanley Fish, Is There a Text in This Class? The Authority of
Interpretive Communities (Harvard University Press 1980)).
50

50 Interpretation of the ICESCR

compliance by other States.9 This is why human rights treaties typically establish
collective enforcement systems.
In the case of the ICESCR, the body that has been entrusted with monitoring com-
pliance and must thus assume a central role in its interpretation is the CESCR: the
parties to the ICESCR have charged the United Nations (UN) Economic and
Social Council (ECOSOC) with supervising implementation of the Covenant;10
ECOSOC, in turn, has established the CESCR to carry out this task.11 In the per-
ceptive characterization of Matthew Craven, the CESCR ‘acts as a “clearing centre”
for the divergent interpretations of the Covenant offered by States parties and is best
placed for establishing the common agreement of States as to the interpretation of
the Covenant’.12 Due to its key role in the interpretive process, the chapter focuses
on the interpretation of the ICESCR by the Committee.
The first and main means for the CESCR to define the normative content of the
Covenant have been its General Comments. They allow it ‘to announce its interpret-
ations of different provisions of the Covenant in a form that bears some resemblance
to the advisory opinion practice of international tribunals’,13 without having to
address individual States.14 The Committee’s General Comments enjoy a consid-
erable degree of acceptance by States parties and are often relied upon by national
courts when they interpret the Covenant.15 Second, the concluding observations on
State reports offer the Committee a further opportunity to clarify the Covenant’s
content, although, due to the need to address a wide range of concerns with regard
to a particular country, there is only very limited scope for it to go into any depth.
Nevertheless, the CESCR has used, for example, its concluding observations on
the State reports submitted by Israel to summarily clarify the territorial scope of
the Covenant.16 In its Wall Advisory Opinion, the International Court of Justice
(ICJ) relied on the Committee’s interpretation with regard to this point.17 Third,
the various statements and open letters issued by the CESCR ‘to clarify and confirm its
position with respect to major international developments and issues bearing upon
the implementation of the Covenant’18 may sometimes also touch upon questions

9 Louis Henkin, ‘The International Bill of Rights: The Universal Declaration and the Covenants’
in Rudolf Bernhardt and John-Anthony Jolowicz (eds), International Enforcement of Human Rights
(Springer 1987) 1, 8.
10 ICESCR arts 16–22. 11 ECOSOC Res 1985/17 (28 May 1985).
12 Matthew CR Craven, The International Covenant on Economic, Social, and Cultural Rights: A
Perspective on its Development (OUP 1995) 4.
13 Thomas Buergenthal, ‘The U.N. Human Rights Committee’ in Jochen A. Frowein and Rüdiger
Wolfrum, Max Planck Yearbook of United Nations Law vol 5 (Brill 2001) 341, 386 (the statement relates
to the CESCR’s ‘sister committee’, the Human Rights Committee).
14 Craven, The ICESCR (n 12) 90–91.
15 See International Law Association (ILA) Committee on International Human Rights Law and
Practice, ‘Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies’
(ILA Conference, Berlin, 2004) 24–25.
16 CESCR, ‘Concluding Observations on the Initial Periodic Report of Israel’ (4 December
1998) UN Doc E/C.12/1/Add.27, para 8; CESCR, ‘Concluding Observations on the Second Periodic
Report of Israel’ (26 June 2003) UN Doc E/C.12/1/Add.90, paras 15, 31.
17 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136, 180–81.
18 CESCR, ‘Report on the Fiftieth and Fifty-first Sessions’ (2014) UN Doc E/2014/22, para 62.
51

Rules of Interpretation 51

of interpretation. Fourth, as explained above, the new possibility to publish Views

on complaints will allow the Committee to define the meaning of the Covenant’s
provisions more precisely.
What is the legal status of the interpretations put forward by the CESCR? Unlike
judgments of the regional human rights courts,19 the findings of the UN treaty
bodies are not legally binding.20 However, considering that the States parties cre-
ated these bodies to monitor compliance with the respective treaties, which logically
presupposes interpreting them, it would go against the good faith requirement of
VCLT article 26 if States disregarded their findings simply because they disagree
with them.21 It is before this background that the ICJ held (with regard to the
Human Rights Committee (HRC), charged with supervising implementation of
the International Covenant on Civil and Political Rights (ICCPR))22 that ‘it should
ascribe great weight to the interpretation adopted by this independent body that was
established specifically to supervise the application of that treaty’.23 Although the
ICJ has not spelled out what exactly ascribing ‘great weight’ involves, it is certainly
not far-fetched to conclude that, at the very least, there is a presumption that such
findings are correct and that States would have to adduce good reasons for any con-
flicting view.24

III. Rules of Interpretation

According to the ICJ, a treaty must be interpreted ‘in accordance with the intentions
of its authors as reflected by the text of the treaty and the other relevant factors in
terms of interpretation’.25 The aim of treaty interpretation is thus to establish the
common intention of the parties, understood in an ‘objectivized’26 sense as the re-
sult of the application of the admissible means of interpretation, rather than as a sep-
arately identifiable original will of the parties (‘subjective intention’).27 The ‘relevant

19 See Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) art 46; American Convention on Human Rights (opened
for signature 21 November 1969, entered into force 18 July 1978) 1144 UNTS 123, art 68; Protocol to
the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human
and Peoples’ Rights (opened for signature 9 June 1998, entered into force 25 January 2004) OAU Doc
OAU/LEG/EXP/AFCHPR/PROT (III), art 30.
20 ILA, ‘UN Treaty Bodies’ (n 15) 5.
21 See Office of the United Nations High Commissioner for Human Rights, ‘Fact Sheet No
16 (Rev.1): The Committee on Economic, Social and Cultural Rights’ (1991) <www.ohchr.org/
Documents/Publications/FactSheet16rev.1en.pdf> accessed 30 May 2017, 17.
22 On the differences regarding the establishment and composition of the CESCR as compared to
the HRC and other UN treaty bodies, see Section VI.C.
23 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010]
ICJ Rep 639, 664.
24 Geir Ulfstein, ‘Individual Complaints’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights
Treaty Bodies: Law and Legitimacy (CUP 2012) 73, 100.
25 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Merits) [2009] ICJ
Rep 213, 237.
26 Eirik Bjorge, The Evolutionary Interpretation of Treaties (OUP 2014) 2–3.
27 Richard Gardiner, Treaty Interpretation (2nd edn, OUP 2015) 6–9 and 466.
52

52 Interpretation of the ICESCR

factors’ to be used to ascertain the intention of the parties to a treaty are those set out
in, first, the respective treaty itself and, second, VCLT articles 31–33.

A. The ICESCR
Since the VCLT’s rules of interpretation are dispositive,28 the first port of call to look
for guidance on how a treaty is to be interpreted is that treaty itself. The ICESCR
contains a number of rules of interpretation, although the guidance they provide is
rather limited. Accordingly, they have not played a significant role in the practice of
the CESCR or other interpreters of the Covenant.
ICESCR article 5(1), which is derived from article 30 of the Universal Declaration
of Human Rights (UDHR) and is identical to ICCPR article 5(1), makes it clear,
first, that the Covenant rights may not be interpreted in such a way as to destroy
another right, and, second, that the limitation clauses contained in the ICESCR are
exhaustive. ICESCR article 5(2), which corresponds to ICCPR article 5(2), pro-
vides that the Covenant may not be used as a basis for restricting any human rights
guaranteed by national law or other treaties, thus clarifying that the Covenant rights
are meant as minimum standards. The CESCR has not paid much attention to art-
icle 5 in its work.29 Further special rules of interpretation can be found in articles 24
and 25, prescribing that nothing in the ICESCR shall be interpreted as impairing
the provisions of the UN Charter or, respectively, the right of all peoples to enjoy
and utilize their natural wealth and resources. In the final analysis, all of these in-
terpretive principles can be understood as specific expressions of the general rule of
treaty interpretation requiring a treaty to be interpreted in the light of its object and
purpose. Finally, ICESCR article 31(1) provides that the various language versions
of the Covenant are equally authentic, restating the general rule of treaty interpret-
ation now codified in VCLT article 33.

B. VCLT articles 31–33

The essential framework for the interpretation of all treaties is provided by the set
of rules contained in VCLT articles 31–33. The ICJ and several other international
courts and tribunals, as well as numerous national courts, have confirmed that the
VCLT rules of interpretation reflect pre-existing customary international law.30
They therefore also govern interpretation of the ICESCR, regardless of the facts that
the Covenant was concluded before the entry into force of the VCLT in 1980 and
that, according to its article 4, the VCLT is not retroactive.
As is highlighted by the provision’s marginal note, the ‘general rule of interpret-
ation’ in VCLT article 31 constitutes the core of these rules. According to article
31(1), ‘[a]‌treaty shall be interpreted in good faith in accordance with the ordinary

28 ILC, ‘Yearbook 1966’ (n 7) 218.

29 See Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights (Intersentia 2003) 303–04.
30 See the references cited in Gardiner, Treaty Interpretation (n 27) 13–20.
53

A Special Regime of Treaty Interpretation? 53

meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose.’ The three main means of interpretation are thus the wording,
the context, and the object and purpose, with good faith serving as the guiding prin-
ciple directing the whole process of interpreting a treaty.31 Article 31(2) specifies
what is meant by ‘context’. Article 31(3) adds further elements that need to be
taken into account, including ‘[a]ny subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its interpretation’
(subparagraph b) and ‘[a]ny relevant rules of international law applicable in the re-
lations between the parties’ (subparagraph c).
The various elements mentioned in article 31 are all of equal value; there is no
hierarchy between them.32 As the ILC explained in its Commentary on the draft art-
icles on the law of treaties, it intended the application of the means of interpretation
to be ‘a single combined operation. All the various elements, as they were present in
any given case, would be thrown in the crucible, and their interaction would give
the legally relevant interpretation’.33 Interpretation is not a mechanical process that
would allow the interpreter to find the meaning, but instead, as is reflected in the
wording of article 31(1), involves giving a meaning to a text.34 In other words, ‘the
meaning of norms is a product of interpretative practice’.35 Accordingly, the VCLT
rules allow interpreters considerable leeway. They are more akin to principles or
guidelines,36 providing an ‘intellectual checklist’37 of the elements to be taken into
account and some methodological direction on how to approach these elements.
This flexible nature of the VCLT rules is perhaps captured best by the metaphor pro-
posed by Hugh Thirlway, who characterized them as ‘scaffolding for the reasoning
on questions of treaty interpretation’.38

IV. A Special Regime of Treaty Interpretation?

The CESCR relies not only on the means of interpretation traditionally associ-
ated with VCLT articles 31–33, but also employs methods that are often described
as ‘special’ or even as falling outside the VCLT framework.39 These special inter-
pretive methods include, in particular, the principle of effectiveness and evolutive

31 ibid 167–72.
32 Mark E Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill 2009) 435.
33 ILC, ‘Yearbook 1966’ (n 7) 219–20.
34 Harvard Law School, ‘Research in International Law: Part III, Law of Treaties’ (1935) 29 American
J of Intl L Supplement 946.
35 Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative
Twists (OUP 2012) 10.
36 ILC, ‘Yearbook 1966’ (n 7) 94.
37 Michael Waibel, ‘Uniformity Versus Specialization (2): A Uniform Regime of Treaty
Interpretation?’ in Christian J Tams, Antonios Tzanakopoulos, and Andreas Zimmermann (eds),
Research Handbook on the Law of Treaties (Edward Elgar 2014) 375, 381.
38 Hugh Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989,
Supplement, 2006: Part Three’ (2006) 77 British YB of Intl L 1, 19.
39 See eg Sepúlveda, Nature of Obligations (n 29) 87 (stating that the VCLT rules ‘are not the only
rules considered by the Committee’ when interpreting the ICESCR).
54

54 Interpretation of the ICESCR

interpretation (Section IV.A). It is especially this aspect of the Committee’s inter-
pretive practice that has been singled out for criticism, with concerns being raised
about its legality. The most common response to this criticism is to invoke the spe-
cial nature of the ICESCR as a human rights treaty, which, it is contended, justifies
recourse to specialized methods of interpretation. I will argue that a special inter-
pretive regime is neither warranted nor needed. The Committee’s allegedly ‘spe-
cial’ techniques are, in fact, quite common and fit well into the VCLT framework
(Section IV.B).

A. ‘Special’ interpretive methods

1. Effectiveness
An interpretive approach that has become very influential in the practice of all
human rights bodies—in fact, so influential that it is often exclusively associated
with human rights—is that based on the principle of effectiveness.40 This prin-
ciple requires an interpretation that gives meaning and effect to all the terms of the
treaty to be preferred over one that does not.41 Since human rights treaties are, in
the famous words of the European Court of Human Rights (ECtHR), ‘intended to
guarantee not rights that are theoretical or illusory but rights that are practical and
effective,’42 they must be read so that they have a real impact on the actual lives of
individuals.
This basic notion underlies large parts of the CESCR’s interpretive practice.
Already very early on, the Committee explained that the obligation under ICESCR
article 2(1) to realize the Covenant rights ‘progressively’ ‘should not be misinter-
preted as depriving the obligation of all meaningful content’,43 and it has since
repeated this statement several times.44 Similarly, it held that, ‘[i]‌n order not to
render this provision devoid of any meaning’, ICESCR article 15(1)(c) must be read
in a way that affords authors of scientific, literary, or artistic productions ‘effective’
protection of their moral and material interests.45 Finally, with regard to discrimin-
ation, the ‘effective enjoyment of Covenant rights’ in the CESCR’s understanding
requires elimination of not only formal but also substantive discrimination.46

40 Birgit Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’ in Helen
Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 261,
286–87; Başak Çali, ‘Specialized Rules of Treaty Interpretation: Human Rights’ in Duncan B Hollis
(ed), The Oxford Guide to Treaties (OUP 2012) 525, 538–41.
41 Gardiner, Treaty Interpretation (n 27) 179–81.
42 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 24.
43 CESCR, ‘General Comment 3’ in ‘Note by the Secretariat, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies’ (2008) UN Doc HRI/GEN/
1/Rev.9 (vol I) para 9.
44 CESCR, ‘General Comment 13’ in ‘Compilation of General Comments’ (2008) (vol I) (n
43) para 44; CESCR, ‘General Comment 14’ in ‘Compilation of General Comments’ (2008) (vol I)
(n 43) para 31.
45 CESCR, ‘General Comment 17’ in ‘Compilation of General Comments’ (2008) (vol I) (n
43) para 10.
46 CESCR, ‘General Comment 20’ (2 July 2009) UN Doc E/C.12/GC/20, para 8.
5

A Special Regime of Treaty Interpretation? 55

2. Evolutive interpretation
Another special interpretive method that is characteristic for the practice of courts
and other bodies supervising the implementation of human rights treaties is the
evolutive (often also called ‘evolutionary’ or ‘dynamic’) interpretation of treaties.47
According to this method, the terms of a treaty must be interpreted not as under-
stood at the time of its conclusion but ‘in the light of present-day conditions’.48
Hence, the meaning of treaty terms can ‘evolve over time in view of existing circum-
stances’.49 Most supervisory bodies, although not (yet) the CESCR, have invoked
the ‘living instrument’ character of ‘their’ human rights treaties to justify an evolu-
tive interpretation.50 In scholarship, the evolutive approach is often presented as a
method that is unique, or almost unique, to human rights treaties.51 Magdalena
Sepúlveda argues that it has particular relevance in the case of treaties guaranteeing
economic, social, and cultural rights, as these are more dependent on changes in eco-
nomic, social, and political conditions than civil and political rights.52
The CESCR has made it abundantly clear that the meaning of the ICESCR’s
terms can evolve over time. A good example is its General Comment on the right
to health, wherein the Committee, referring to formerly unknown diseases such
as HIV, observed that ‘the world health situation has changed dramatically’ since
1966 and concluded that the notion of ‘health’ in ICESCR article 12 must be
interpreted in the light of these changes.53 Similarly, it has pointed out that the
reference to ‘himself and his family’ in article 11(1) ‘reflects assumptions as to
gender roles and economic activity patterns commonly accepted in 1966’, but
‘cannot be read today as implying any limitations upon the applicability of the
right to individuals or to female-headed households or other such groups’.54 With
regard to the list of prohibited grounds for discrimination in article 2(2), finally,
the Committee has held that ‘[a]‌flexible approach to the ground of “other status”
is . . . needed’, since ‘[t]he nature of discrimination varies according to context and
evolves over time’.55

47 See Malgosia Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties, Part I’ (2008) 21 Hague
YB of Intl L (hereafter Hague YIL) 101; Malgosia Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of
Treaties, Part II’ (2009) 22 Hague YIL 3; Rudolf Bernhardt, ‘Evolutive Treaty Interpretation, Especially
of the European Convention on Human Rights’ (1999) 42 German YB of Intl L 11.
48 Tyrer v the United Kingdom App no 5856/72 (ECtHR, 25 April 1978) para 31.
49 ‘Street Children’ (Villagrán Morales et al) v Guatemala, Judgment (Merits) Inter-American Court
of Human Rights Series C No 77 (19 November 1999) para 193 (slightly misquoting The Right to
Information on Consular Assistance in the Framework of Guarantees for Due Legal Process (Advisory
Opinion) Inter-American Court of Human Rights Series C No 16 (1 October 1999) para 114).
50 Daniel Moeckli and Nigel D White, ‘Treaties as “Living Instruments”’ in Michael J Bowman and
Dino Kritsiotis (eds), Conceptual and Contextual Perspectives on the Modern Law of Treaties (CUP 2018)
136, 143–54.
51 Bernhardt, ‘Evolutive Treaty Interpretation’ (n 47) 12, 21; Schlütter, ‘Human Rights
Interpretation’ (n 40) 295.
52 Sepúlveda, Nature of Obligations (n 29) 83.
53 CESCR, ‘General Comment 14’ (n 44) para 10.
54 CESCR, ‘General Comment 4’ in ‘Compilation of General Comments’ (2008) (vol I) (n
43) para 6.
55 CESCR, ‘General Comment 20’ (n 46) para 27.
56

56 Interpretation of the ICESCR

B. Legality of ‘special’ interpretive methods

The special interpretive methods developed by human rights bodies, it has been
argued, have ‘drawn away from traditional treaty-reading’56 and are ‘hard to recon-
cile’57 with VCLT articles 31–33. Does this mean that there is no legal basis for the
use of the techniques described above? Or does the special nature of human rights
treaties justify recourse to methods of interpretation that are not covered by the
VCLT? This question has triggered an extensive debate,58 which may be understood
to form part of the wider debate as to whether human rights law constitutes a special
(or even self-contained) regime exempt from the rules of general law.59
It is undoubtedly true that human rights treaties have certain characteristics that
set them apart from other types of treaties. They do not merely create reciprocal ob-
ligations between States, but recognize pre-existing rights of third parties (individ-
uals).60 By establishing a system for the collective enforcement of these rights, they
embody objective obligations and thus have a law-making or even ‘constitutional’
nature.61 The HRC, the ECtHR, and the Inter-American Court of Human Rights
(IACtHR) have all invoked the special nature of human rights treaties in the context
of, for instance, reservations.62
More problematic is the claim that the ‘high purposes’63 or ‘higher shared values’64
pursued by human rights treaties necessitate a special approach to interpretation
that prioritizes the teleological over the textual element. Rudolf Bernhardt, for ex-
ample, maintains that the ‘unique’ object and purpose of human rights treaties must
entail special principles of interpretation.65 Magdalena Sepúlveda states that, since
‘[t]‌he specific object and purpose of human rights treaties is the protection of the
individual human person’, it should be given ‘a central and crucial role’ in their in-
terpretation.66 According to Judge Cançado Trindade, finally, ‘keeping in mind that

56 Detlef F Vagts, ‘Treaty Interpretation and the New American Ways of Law Reading’ (1993) 4
European J of Intl L 472, 497.
57 Malgosia Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in Dinah Shelton (ed), The
Oxford Handbook of International Human Rights Law (OUP 2013) 739, 740.
58 See ibid 740–44; Çali, ‘Specialized Rules’ (n 40) 526–33.
59 ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and
Expansion of International Law, Report of the Study Group of the ILC, finalized by Martti Koskenniemi’
(13 April 2006) UN Doc A/CN.4/L.682, 30–102.
60 Matthew CR Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in
International Law’ (2000) 11 European J of Intl L 489.
61 On the constitutional nature of human rights, see Stephen Gardbaum, ‘Human Rights as
International Constitutional Rights’ (2008) 19 European J of Intl L 749.
62 HRC, ‘General Comment 24’ in ‘Compilation of General Comments’ (2008) (vol I) (n 43) paras
8, 17; Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR, 23 March 1995) paras 93,
96; The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Advisory
Opinion) Inter-American Court of Human Rights Series A No 2 (24 September 1982) paras 29–35.
63 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23.
64 Case of the ‘Mapiripán Massacre’ v Colombia, Judgment (Merits) Inter-American Court of Human
Rights Series C No 134 (15 September 2005) para 104.
65 Rudolf Bernhardt, ‘Thoughts on the Interpretation of Human-Rights Treaties’ in Franz Matscher
and Herbert Petzold (eds), Protecting Human Rights: The European Dimension, Studies in Honour of
Gérard J. Wiarda (Heymanns 1988) 65, 65.
66 Sepúlveda, Nature of Obligations (n 29) 79.
57

A Special Regime of Treaty Interpretation? 57

superior values . . . are at stake’,67 greater weight needs to be placed on the object and
purpose element when it comes to human rights treaties, ‘so as to secure protection
to human beings’.68
In my view, this boils down to a droit de l’hommiste argument69 that is not convin-
cing. It is not clear why, simply because human rights treaties pursue an important
objective, the teleological element should assume a greater importance than when
it comes to, say, investment treaties.70 The object and purpose of every treaty is,
when compared to other treaties, special. The weight to be given to the teleological
element must be determined not by comparing a treaty’s object and purpose to
that of other treaties, but by comparing it to the other interpretive elements. In fact, a
look at the jurisprudence of international courts and tribunals reveals that the teleo-
logical element may play a crucial role in the interpretation not only of human rights
treaties, but of any type of treaty.71
Hence, the nature of the object and purpose of a treaty is not determinative for
the application of the interpretive rules. The VCLT rules were designed for all types
of treaties,72 without any distinction between law-making and other treaties.73 By
allowing for a variety of elements to be taken into account, they provide an inter-
pretive framework that can be appropriately applied to any treaty. This is, of course,
not to argue that interpretive practices do not, or should not, vary across different
subfields of international law.74 It is only to point out that the VCLT’s ‘scaffolding
for the reasoning on questions of treaty interpretation’75 is broad enough to also ac-
commodate the ‘special’ methods used to interpret human rights treaties, including
the ICESCR.
In fact, on closer inspection, these ‘special’ methods, including the two tech-
niques described above, turn out not to be special at all. Far from being a unique
interpretive technique restricted to human rights treaties, the principle of effective-
ness has been characterized by the ILC as ‘a true general rule of interpretation’ that,
even though not explicitly mentioned in the VCLT, is embodied in the ‘good faith’
and the ‘object and purpose’ elements of its article 31(1).76 The principle plays a
prominent role in the interpretive practice of the Appellate Body of the World Trade
Organization (WTO)77 and has also been relied upon, for example, to interpret
treaty provisions fixing boundaries.78

67 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russian Federation) (Preliminary Objections) [2011] ICJ Rep 70, Dissenting Opinion of
Judge Cançado Trindade, 276.
68 ibid 267.
69 See Alain Pellet, ‘“Droits- de-
l’hommisme” et droit international’ (2001) 1 Droits
fondamentaux 167.
70 See also Bjorge, Evolutionary Interpretation (n 26) 36.
71 See the references cited in ibid.
72 James Crawford, Brownlie’s Principles of Public International Law (OUP 2012) 370.
73 ILC, ‘Yearbook 1966’ (n 7) 219. 74 See Waibel, ‘Uniformity’ (n 37).
75 Thirlway, ‘ICJ’ (n 38) 19. 76 ILC, ‘Yearbook 1966’ (n 7) 219.
77 See WTO, Korea: Definitive Safeguard Measure on Imports of Certain Dairy Products—Report of the
Appellate Body (14 December 1999) WT/DS98/AB/R, paras 80–82.
78 Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Merits) [1994] ICJ Rep 6, 23, 25.
58

58 Interpretation of the ICESCR

Similarly, the evolutive interpretation of treaties falls squarely under and, indeed,
may be required by VCLT article 31, in particular its ‘good faith’, ‘object and pur-
pose’, ‘subsequent practice’, and ‘relevant rules of international law’ elements.
Evolutive interpretation has not only been embraced by human rights bodies, but
also by the ICJ,79 and the technique has been applied to a broad range of treaties,
from the UN Charter to multilateral environmental agreements and the General
Agreement on Tariffs and Trade (GATT).80 Furthermore, contrary to a widely-held
assumption,81 it is not the case that deployment of evolutive interpretation will
automatically result in an expansion of human rights and the correlating State du-
ties. As pointed out by Eirik Bjorge,82 the ECtHR’s invocation of ‘the growing and
legitimate concern both in Europe and internationally in relation to environmental
offences’ in Mangouras v Spain, for instance, had exactly the opposite result, namely
a lowering of the protection offered by article 5 of the European Convention on
Human Rights (ECHR).83
In short, from the perspective of legality, the ‘special’ interpretive techniques em-
ployed by the CESCR are unproblematic; they fit well into the VCLT framework.
There is neither a need nor a justification for a special interpretive regime. Instead,
the real problem with these methods of interpretation is that they are, as will be
shown in the following section, the product of the Committee’s ‘moral reading’ of
the Covenant and, as such, are regarded with suspicion by States. In other words, the
problem is—as with the CESCR’s interpretive practice in general—not (il)legality
but (lack of ) legitimacy.

V. Between Morality and State Consent

Studying the CESCR’s interpretations of the ICESCR, one cannot help sensing
a basic dilemma with which it is constantly struggling. On the one hand, one can
often almost grasp the Committee’s urge to give the Covenant’s terms a ‘moral
reading’. On the other hand, it seems to be acutely aware that the interpretations it
adopts must find the support of States parties. The Committee’s interpretive prac-
tice, I submit, is a manifestation of its being torn between the poles of morality and
State consent or, as some might call them, ‘utopia’ and ‘apology’.84
The purpose of this section is to demonstrate that the gravitational force of mor-
ality has led the CESCR to emphasize one set of interpretive elements, and the
pull towards State consent another. To be clear, this section merely aims to give

79 Dispute regarding Navigational and Related Rights (n 25) 242–44.

80 See Fitzmaurice, ‘Part I’ (n 47); Fitzmaurice, ‘Part II’ (n 47); Moeckli and White, ‘Living
Instruments’ (n 50).
81 See eg Çali, ‘Specialized Rules’ (n 40) 539–40.
82 Bjorge, Evolutionary Interpretation (n 26) 78.
83 Mangouras v Spain App no 12050/04 (ECtHR, 28 September 2010) paras 86–93 (as a result, the
Court found that setting bail in the amount of EUR 3,000,000 was compatible with ECHR art 5(3)).
84 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument
(CUP 2005).
59

Between Morality and State Consent 59

an account of the Committee’s interpretive practice; I do not claim that the inter-
pretive elements listed below are inherently linked to morality and State consent,
respectively.

A. Morality
One pole of the Committee’s interpretive practice is constituted by the moral values
or principles that underlie the ICESCR and which may thus serve as guidance for
its interpretation. According to Ronald Dworkin’s concept of a ‘moral reading’, legal
norms must be interpreted ‘on the understanding that they invoke moral principles
about political decency and justice’.85 In the case of the Covenant, these moral
principles may be taken to be human survival,86 human dignity,87 and/or liberty.88
Given that human rights are meant to protect minorities from the majority, it would
seem to make sense that, in the interpretive process, more weight should be attached
to the fundamental moral interests of individuals than to considerations such as
State consent. In one view, moral reasons are even ‘[t]‌he only thing which can jus-
tify interpretive outcomes’.89 The Committee’s urge to give the Covenant a moral
reading is apparent throughout its interpretive practice.

1. Object and purpose: Teleological interpretation

First and most obviously, the pole of morality pulls the Committee’s interpretations
towards an emphasis of the object and purpose element. While large parts of its in-
terpretive practice are implicitly based on the teleological approach, the Committee
has sometimes also expressly highlighted the central role that it accords to the object
and purpose element. Already in its very first General Comment, it pointed out
that the Covenant must be interpreted in accordance with its spirit.90 Similarly, the
CESCR has justified the establishment of its concept of minimum core obligations—
specifying the obligations that States must satisfy as a matter of priority under the
various ICESCR rights—on the basis that ICESCR article 2(1) ‘must be read in the
light of the overall objective, indeed the raison d’être, of the Covenant’.91
One of the central purposes of the Covenant is, in the CESCR’s view, realization
of the moral principle of human dignity mentioned in the preamble. Accordingly, it

85 See Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard
University Press 1996) 2.
86 Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd edn, Princeton
University Press 1996); David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement
of Socio-Economic Rights (OUP 2007).
87 Sandra Liebenberg, ‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005)
21 South African J on Human Rights 1.
88 Jeremy Waldron, ‘Homelessness and the Issue of Freedom’ (1991) 39 UCLA L Rev 295.
89 George Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21
European J of Intl L 509, 532.
90 CESCR, ‘General Comment 1’ in ‘Compilation of General Comments’ (2008) (vol I) (n
43) para 1.
91 CESCR, ‘General Comment 3’ (n 43) paras 9–10.
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60 Interpretation of the ICESCR

has repeatedly interpreted Covenant rights, including the rights to housing,92 edu-
cation,93 work,94 and social security,95 in the light of this principle. Human survival
is seen as another key purpose by the Committee. Although ICESCR article 11(1)
does not mention a separate right to water, it has held that it must be understood to
include one, explaining that such a right is ‘one of the most fundamental conditions
for survival’.96 Finally, its practice concerning minimum core obligations is equally
grounded in the moral values of human dignity and survival.97

2. Rules of international law

The Committee’s urge to give the ICESCR a moral reading also explains its lib-
eral approach to the invocation of other rules of international law to interpret the
Covenant. VCLT article 31(3)(c) allows for the consideration of ‘any relevant rules
of international law applicable in the relations between the parties’, which may
include other treaties, customary international law, and general principles of law.
According to the ICJ, rules that came into force after the conclusion of the treaty at
issue can be taken into account where the respective treaty terms are open to evolu-
tion.98 However, it would seem to be clear from the terms ‘rules’ and ‘applicable’ that
non-binding instruments cannot be relied upon.99 Furthermore, the wording of the
provision suggests that, with regard to the consideration of another treaty, all parties
to the treaty under interpretation (or, at the very least, the parties to the dispute over
the interpretation) must also be parties to the other treaty.100
Nevertheless, the CESCR has frequently interpreted ICESCR rights in the light
of other international standards, be they binding or not, and, in the case of treaties,
regardless of the number of ratifications. With regard to the right to education, for
example, the Committee referred to the World Declaration on Education for All,
the Vienna Declaration and Programme of Action, and the Plan of Action for the
UN Decade for Human Rights Education to read into ICESCR article 13 ‘elem-
ents which are not expressly provided for in article 13(1), such as specific references
to gender equality and respect for the environment’.101 In other contexts, it has

92 CESCR, ‘General Comment 4’ (n 54) para 7.

93 CESCR, ‘General Comment 13’ (n 44) para 41.
94 CESCR, ‘General Comment 18’ in ‘Compilation of General Comments’ (2008) (vol I)
(n 43) paras 1, 4, and 31.
95 CESCR, ‘General Comment 19’ in ‘Compilation of General Comments’ (2008) (vol I)
(n 43) paras 1, 22, and 41.
96 CESCR, ‘General Comment 15’ in ‘Compilation of General Comments’ (2008) (vol I)
(n 43) para 3.
97 See Liebenberg, ‘Human Dignity’ (n 87) 17 (stressing the role of dignity for the concept); Bilchitz,
Poverty (n 86) 178–235 (stressing the role of survival).
98 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa), notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 12,
31; Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7, 67–68.
99 Villiger, VCLT (n 32) 433; Oliver Dörr, ‘Article 31’ in Oliver Dörr and Kirsten Schmalenbach
(eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2012) 521, 564, 567.
100 Dörr, ‘Article 31’ (n 99) 566; Ulf Linderfalk, On the Interpretation of Treaties (Springer 2007) 178.
101 CESCR, ‘General Comment 13’ (n 44) para 5.
61

Between Morality and State Consent 61

taken into account ILO (International Labour Organization) Conventions ratified

by as few as eight,102 eleven,103 or sixteen States,104 as well as non-treaty stand-
ards such as the Principles for the Protection of Persons with Mental Illness and
the Improvement of Mental Health Care,105 the Alma-Ata Declaration on Primary
Health Care,106 the Voluntary Guidelines on the Right to Food of the UN Food
and Agriculture Organization (FAO),107 and the World Programme of Action con-
cerning Disabled Persons.108
The CESCR’s extensive citation of various rules of international law that are not
legally binding on (all) the parties to the ICESCR can be understood as forming
part of its moral reading of the Covenant. Although other rules of international law
could also be invoked to justify restrictions of human rights,109 the Committee has
only referred to rules that support the moral values underlying the ICESCR. Like
the ECtHR,110 it is not so much concerned with establishing State consensus in the
sense of VCLT article 31(3)(c) as with identifying values shared across societies that
help it make sense of the Covenant’s terms.

3. ‘Special’ interpretive methods

The pull towards the pole of morality also underlies the CESCR’s ‘special’ inter-
pretive techniques, analysed in more detail earlier in Section IV. The Committee’s
heavy reliance on the principle of effectiveness is intended to maximize the protec-
tion of the fundamental values underlying the Covenant and is thus clearly prompted
by a moral reading of that instrument. The same holds true for the Committee’s ap-
proach to evolutive interpretation. Despite the fact that, as explained above, evolu-
tive interpretation must not necessarily result in an expansion of protection for the
individual, the CESCR has employed it exclusively with this aim in mind.

102 CESCR, ‘General Comment 19’ (n 95) para 24 (referring to ILO Convention No 168 on
Employment Promotion and Protection against Unemployment (opened for signature 21 June 1988,
entered into force 17 October 1991) 1654 UNTS 67).
103 CESCR, ‘General Comment 23’ (27 April 2016) UN Doc E/C.12/GC/23, para 28 (referring to
the ILO Protocol to the Occupational Safety and Health Convention, 1981 (opened for signature 20
June 2002, entered into force 9 February 2005) 2308 UNTS (Annex A) 112).
104 CESCR, ‘General Comment 6’ in ‘Compilation of General Comments’ (2008) (vol I) (n 43) para
27 (referring to ILO Convention No 128 on Invalidity, Old-Age and Survivors’ Benefits (opened for
signature 29 June 1967, entered into force 1 November 1969) 699 UNTS 185).
105 UNGA Res 46/119 (17 December 1991) A/RES/46/119, Annex, referred to in CESCR,
‘General Comment 14’ (n 44) para 34.
106 World Health Organization and UN Children’s Fund, ‘Declaration of the Alma-Ata International
Conference on Primary Health Care’ (Alma-Ata, 6–12 September 1978), referred to in CESCR,
‘General Comment 14’ (n 44) para 38.
107 FAO, Voluntary Guidelines on the Right to Food (FAO 2005), referred to in CESCR, ‘Concluding
Observations on the Fifth Periodic Report of Germany’ (12 July 2011) UN Doc E/C.12/DEU/CO/
5, para 9.
108 UNGA Res 37/52 (3 December 1982) A/RES/37/52, referred to in CESCR, ‘General Comment
5’ in ‘Compilation of General Comments’ (2008) (vol I) para 7.
109 See Al-Adsani v the United Kingdom App no 35763/97 (ECtHR, 21 November 2001) paras 55–56.
110 See Letsas, ‘Interpretive Ethic’ (n 89) 521–23.
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62 Interpretation of the ICESCR

B. State consent
As opposed to the regional human rights courts, the CESCR cannot issue
judgments—and thus propose interpretations—which would be legally binding
on States parties. Arguably, it is in an even more precarious position than, say, the
HRC, as its findings have—or are believed to have—a greater impact on matters
that have traditionally been understood to belong to the core of a State’s sovereignty,
such as budgetary allocations.111 Even more so than for other human rights bodies,
it is therefore crucial for the Committee that its views on the correct reading of
the Covenant are shared, or at least regarded as legitimate, by States. The CESCR
simply cannot afford to engage in a purely moral reading of the Covenant. Hence,
the CESCR’s interpretive practice is pulled towards a search for common ground
among the States parties. This pull towards State consent, which has exerted an es-
pecially strong influence on the Committee’s early work, manifests itself, above all,
in its reliance on the travaux préparatoires, a textual approach, and subsequent State
practice.

1.
Travaux as supplementary means of interpretation
According to VCLT article 32, recourse to the preparatory work of the treaty at issue
and the circumstances of its conclusion may be had in order to confirm the meaning
resulting from the application of article 31 or to determine the treaty’s meaning
when the interpretation according to article 31 leaves it ambiguous or obscure or
leads to a manifestly unreasonable result. While article 32 requires the interpreter to
first employ the means of interpretation provided for in the general rule under article
31, the elastic nature of the term ‘ambiguous’ provides considerable discretion to use
the travaux préparatoires.112
The CESCR has made full use of this discretion to link its interpretations to
the original intention of the States parties. For example, it has backed up its rejec-
tion of the notion that ICESCR rights are ‘non-self-executing’ by referring to the
respective drafting debates,113 it has drawn upon the drafting history of ICESCR
article 12 to clarify that the right to health is not confined to the right to health
care but ‘embraces a wide range of socio-economic factors’,114 and it has explained
that the term ‘moral interests’ contained in ICESCR article 15(1)(c) must be given
a meaning that is in line with the intention of the drafters of the UDHR and the
ICESCR.115

111 Marcus, ‘Normative Development’ (n 5) 60, 66; Jeff A King, Judging Social Rights (CUP 2012)
117–18.
112 Villiger, VCLT (n 32) 447; Oliver Dörr, ‘Article 32’ in Oliver Dörr and Kirsten Schmalenbach
(eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2012) 571, 584.
113 CESCR, ‘General Comment 9’ in ‘Compilation of General Comments’ (2008) (vol I)
(n 43) para 11.
114 CESCR, ‘General Comment 14’ (n 44) para 4.
115 CESCR, ‘General Comment 17’ (n 45) paras 12–13.
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Between Morality and State Consent 63

2. Wording: Textual interpretation

The pull towards State consent may lead the Committee to focus on the terms used by
the States parties in the treaty. Whereas the wording of the ICESCR is quite specific and
clear in some parts, especially those concerning economic rights, in others, especially
those concerning social rights, the Covenant contains terms that—even by the stand-
ards of a treaty guaranteeing economic, social, and cultural rights116—are extremely
imprecise and obscure.117 Since the ‘ordinary meaning’ of the Covenant terms is thus
often ambiguous, the scope for textual interpretation is rather narrow. Nevertheless,
the CESCR has repeatedly tried to demonstrate that its interpretations reflect State
consensus by adopting a textual approach. For example, it has compared some of the
different language versions of ICESCR article 2(1) to gauge the meaning of the phrase
‘to take steps’,118 it has inferred from the inclusion of the term ‘other status’ in the list
of prohibited grounds of discrimination in article 2(2) that the list is not exhaustive,119
and it has stated that the (very broad) wording of article 9 indicates that the requisite
measures for the provision of social security benefits cannot be defined narrowly.120

3. Subsequent practice
Another way of demonstrating that a given interpretation embodies the will of the
States parties is by pointing to ‘subsequent practice in the application of the treaty’
in the sense of VCLT article 31(3)(b). Such practice may be taken into account pro-
vided it establishes the agreement of the parties regarding that interpretation. The
practice must be actively shared by at least some States parties and acquiesced in by
the others.121
It was the search for common ground among the States parties that led to the
creation of the Committee’s key interpretive instruments, concluding observations
and General Comments, in the first place. The original idea behind these instru-
ments was to clarify the normative content of ICESCR rights through a process
of documenting State practice and distilling common standards from it. The State
reporting procedure allows the Committee to collect information regarding imple-
mentation of the Covenant from States, engage them in ‘a constructive and mutually
rewarding dialogue’,122 and, based on this, offer suggestions and recommendations
in its concluding observations. Its General Comments, in turn, serve ‘to make the
experience gained so far through the examination of [State] reports available for the
benefit of all States parties’.123 The whole process may be described as one in which

116 See Craven, The ICESCR (n 12) 25.

117 ibid 3, 353; Sepúlveda, Nature of Obligations (n 29) 131–33.
118 CESCR, ‘General Comment 3’ (n 43) para 2.
119 CESCR, ‘General Comment 20’ (n 46) para 15.
120 CESCR, ‘General Comment 19’ (n 95) para 4.
121 Report of the International Law Commission on the work of its sixty-eighth session (2 May–10
June and 4 July–12 August 2016) UN Doc A/71/10, Chapter VI, Draft Conclusion 10 [9]‌; Villiger,
VCLT (n 32) 431; Linderfalk, Interpretation (n 100) 167.
122 CESCR, ‘Report on the Seventh Session’ (1999) UN Doc E/1993/22, para 32.
123 ibid para 49.
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64 Interpretation of the ICESCR

‘[State] practice builds consensus and vice versa’.124 As will be explained in Section
VI.C below, in recent years, however, the Committee has increasingly invoked its
own practice in support of its interpretations, which, from the perspective of VCLT
article 31(3)(b), is problematic.

C. Morality or State consent?

Although, for the sake of illustration, they have been described here as ‘poles’, it
is important to acknowledge that morality and State consent are not strict oppos-
ites: an interpretation that appears to be morally appropriate will often be one that
finds the support of States, and vice versa. Nevertheless, sometimes morality and
State consent do pull in different directions.
The best illustration of how the Committee may be torn between the two poles
is its ‘meandering course of logic’125 as to what is meant by ‘minimum core obliga-
tions’. The development of this concept by the CESCR may be summarized as: (1)
pragmatic, context-sensitive formulation; (2) moralist expansion; (3) tracking back
in search of State support.
The Committee introduced the concept in its General Comment 3, stating that
ICESCR article 2(1) must be understood to impose on every State party ‘a minimum
core obligation to ensure the satisfaction of, at the very least, minimum essential
levels of each of the rights’.126 However, in this first step, it confined the content of
minimum core obligations to true essentials, such as ‘essential foodstuffs’, ‘essential
primary health care’, ‘basic shelter and housing’, and ‘the most basic forms of edu-
cation’, and explicitly acknowledged that, under strict conditions, non-compliance
could be justified by resource constraints.127
In a second step, the Committee began to considerably expand the minimum en-
titlements it saw as being required by the moral values underlying the Covenant.128
Furthermore, it held that these core obligations had to be met regardless of avail-
able resources: in General Comment 14 on the right to health, it stressed, in clear
contradiction to its observations in General Comment 3, ‘that a State party cannot,
under any circumstances whatsoever, justify its non-compliance with the core obli-
gations . . . which are nonderogable’.129
However, States continued to justify failure to satisfy their minimum core obliga-
tions by a lack of resources,130 and the South African Constitutional Court rejected
the concept on the basis that it was impossible to define a minimum core without

124 Katharine G Young, Constituting Economic and Social Rights (OUP 2012) 54.
125 Katharine G Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search
of Content’ (2008) 33 Yale J of Intl L 113, 154.
126 CESCR, ‘General Comment 3’ (n 43) para 10. 127 ibid.
128 See eg CESCR, ‘General Comment 15’ (n 96) para 37 (listing nine core obligations under the
right to water, including, for instance, an obligation to adopt and implement a national water strategy
and plan of action).
129 CESCR, ‘General Comment 14’ (n 44) para 47.
130 eg CESCR, ‘Second Periodic Report by Nepal’ (7 August 2006) UN Doc E/C.12/NPL/2,
para 240.
65

Generating Legitimacy 65

taking into account the context and available resources.131 As a reaction to the lack
of support for an ambitious notion of minimum core obligations in State practice,
the CESCR, in a third step, started to scale back the concept and returned to its
original formulation: General Comment 19 on the right to social security restates
word-for-word the formulation of General Comment 3, thus recognizing that a
failure to fulfil minimum core obligations can be justified by resource constraints.132

VI. Generating Legitimacy

The tension between morality and State consent cannot be resolved. It is inevitable
that the CESCR will sometimes have to choose between an interpretation that may
follow from a moral reading of the ICESCR but lacks State support and one that
may run counter to the moral values underlying the Covenant but is carried by the
consensus of States. There is no third way. Given its lack of power to issue legally
binding decisions, all the Committee can do is try to lend legitimacy to what it re-
gards as the morally correct interpretations. Legitimacy has been defined by Thomas
Franck as ‘a property of a rule or rule-making institution which itself exerts a pull
toward compliance on those addressed normatively because those addressed believe
that the rule or institution has come into being and operates in accordance with
generally accepted principles of right process’.133 According to this conception, le-
gitimacy is a social fact, not a normative standard: it is the belief of those addressed
that counts.134 As the Committee’s constant attempts to link its interpretations to
State consensus demonstrate, it has realized that the pull toward compliance exerted
by findings that are believed to be legitimate can, to some extent, compensate for its
lack of coercive authority.
However, the Committee seems to have a too narrow understanding of what
constitutes the basis of the legitimacy of its interpretations. First, it concentrates on
the views of States and appears to regard these views as a given fact. While it is true
that the primary addressees of the Committee’s interpretations are States, the inter-
pretive community of the ICESCR extends far beyond them and their representa-
tives: international organizations, non-governmental organizations, multinational
corporations, trade unions, aid agencies, and a wide range of further international
and domestic actors all have an interest in the meaning assigned to Covenant terms
and will therefore evaluate the appropriateness of a given interpretation.135 Under
the ICESCR-OP, involvement of these non-State actors will be further enhanced.136

131 Government of the Republic of South Africa & others v Grootboom & others [2000] ZACC 19, paras
33, 46. See also Mazibuko & others v City of Johannesburg & others [2009] ZACC 28, paras 56–59.
132 CESCR, ‘General Comment 19’ (n 95) para 60.
133 Thomas M Franck, The Power of Legitimacy Among Nations (OUP 1990) 24.
134 Christopher A Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ (2014) 34
Oxford J of Legal Studies 729, 741.
135 See also John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty
Interpretation’ (2010) 23 Harvard Human Rights J 1, 8–10.
136 See ICESCR-OP arts 2, 8(1), 8(3), and 11(3).
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66 Interpretation of the ICESCR

Their views, in turn, have the potential, through various social processes such as
persuasion and ‘acculturation’, to influence State behaviour: States are not unitary
actors with predetermined interests but may be ‘socialized’.137 Therefore, it would
be crucial for the CESCR to also persuade non-State actors with its interpretations.
Second, by focusing on the extent of pre-existing State consensus that its interpret-
ations embody, the Committee follows an exclusively source-based understanding
of legitimacy. Yet legitimacy can derive not only from a source—in international
law, State consent—but also from the process of decision-making.138 In other words,
legitimacy can be generated through following a process of interpretation that the in-
terpretive community regards as adequate and fair.139 The other players in ‘the game
of interpretation in international law’140 will only be convinced by an interpretation
if it is clear that the interpreter has followed the rules of the game.
What exactly does process-based legitimacy imply? Since legitimacy is under-
stood here as a social fact, it is clear that the relevant requirements cannot be deter-
mined through moral reasoning or derived from some settled concept of justice.
Instead, an empirical evaluation must be undertaken to identify the qualities of a
decision-making process that lead the relevant actors to regard it as adequate and
fair. This is not the place to draw up such a list of detailed requirements for the inter-
pretive practice of human rights treaty bodies.141
Instead, I will simply point to three requirements that are so basic that virtually
any member of the interpretive community would agree that a given interpretation
must meet them in order to enjoy legitimacy. The first and most obvious is adher-
ence. Since in legal decision-making ‘there is a limited set of arguments which can
acceptably be invoked to justify a solution’,142 an interpretation will only appear le-
gitimate if it is reached by adhering to the principles agreed upon by the interpretive
community for this very purpose.143 The game must be played by the rules. Second,
a legitimate or, in Jan Klabbers’s terms, ‘virtuous’ interpretation is one that pays heed
to past interpretations.144 Hence, there must be a certain coherence to the practice

137 Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights Through
International Law (OUP 2013).
138 Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for
International Environmental Law?’ (1999) 93 American J of Intl L 596, 612; Rüdiger Wolfrum,
‘Legitimacy of International Law from a Legal Perspective: Some Introductory Considerations’ in
Rüdiger Wolfrum and Volker Röben (eds), Legitimacy in International Law (Springer 2008) 1, 6.
139 See Franck, Power of Legitimacy (n 133) 17–19.
140 Andrea Bianchi, ‘The Game of Interpretation in International Law: The Players, the Cards, and
Why the Game is Worth the Candle’ in Andrea Bianchi, Daniel Peat, and Matthew Windsor (eds),
Interpretation in International Law (OUP 2015) 34.
141 For such attempts, see Sepúlveda, Nature of Obligations (n 29) 87–111 (with regard to the
findings of the CESCR); Helen Keller and Leena Grover, ‘General Comments of the Human Rights
Committee and their Legitimacy’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty
Bodies: Law and Legitimacy (CUP 2012) 116, 140–92 (with regard to the HRC’s General Comments).
142 Koskenniemi, From Apology to Utopia (n 84) 67.
143 See Franck, Power of Legitimacy (n 133) 183–94; Keller and Grover, ‘General Comments’
(n 141) 162–67.
144 Jan Klabbers, ‘Virtuous Interpretation’ in Malgosia Fitzmaurice, Olufemi Elias, and Panos
Merkouris (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Brill
2010) 17, 36.
67

Generating Legitimacy 67

of the interpreter in question.145 The rules cannot be changed in the middle of the
game. Third, the interpreter must explain the means of interpretation used to arrive
at a particular result; that is, the set of interpretive principles must be applied in a
transparent manner.146 Those affected by a norm should be given reasons for how it
is used.147 Interpretation is a game that needs to be played with open cards.
The better a particular interpretation meets these requirements, the greater will
be the support for it in the interpretive community and therefore the more difficult
it will be for States not to comply with it.148 Thus, although the Committee’s in-
terpretive practice may be trapped between the poles of morality and State consent,
there are still interpretations that will generate more legitimacy than others because
they follow the prescription for how a legal argument has to be crafted.

A. Adherence
The agreed-upon set of principles for interpreting the ICESCR can be found, as
explained earlier, in the Covenant itself and, more importantly, in the VCLT. The
Committee apparently recognizes that the VCLT is applicable to the ICESCR, as it
has made reference to its article 27.149 However, unlike, for example, the ECtHR,150
it has so far not been prepared to explicitly state that it feels bound by VCLT articles
31–33. Given that the existing ‘rules of the game’ give interpreters considerable lati-
tude, this failure to commit to them is surprising.

B. Coherence
It has already been pointed out in the previous section that the tension between
morality and State consent has led the CESCR to adopt interpretations of the con-
cept of minimum core obligations that are plainly contradictory. This is not the only
incoherence in the Committee’s interpretive practice: the Committee has at times
suggested that international organizations have ‘obligations’ under the ICESCR,
then again it has spoken of their ‘responsibilities’;151 it has developed the concept of
extraterritorial obligations in such a way that ‘[w]‌ith every new General Comment
the scope of such obligations seems either to expand or to shrink again’;152 and
its interpretation of the term ‘other status’ in ICESCR article 2(2) is tainted with
‘startling inconsistencies’.153 These criticisms by commentators who can hardly be

145 See Franck, Power of Legitimacy (n 133) 135–82; Keller and Grover, ‘General Comments’
(n 141) 150–59.
146 Klabbers, ‘Virtuous Interpretation’ (n 144) 36; Keller and Grover, ‘General Comments’ (n 141)
183–85.
147 Venzke, Interpretation (n 35) 13. 148 Tobin, ‘Seeking to Persuade’ (n 135) 11.
149 CESCR, ‘General Comment 9’ (n 113) para 3.
150 Golder v the United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 29.
151 eg CESCR, ‘General Comment 18’ (n 94) para 52. See Kerstin Mechlem, ‘Treaty Bodies and the
Interpretation of Human Rights’ (2009) 42 Vanderbilt J of Transnational L 905, 934–35.
152 Mechlem, ‘Treaty Bodies’ (n 151) 938.
153 Malcolm Langford and Jeff A King, ‘Committee on Economic, Social and Cultural Rights’ in
Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative
Law (CUP 2008) 477, 491.
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68 Interpretation of the ICESCR

described as fundamental opponents of the Committee’s work go a long way to show
how its constant see-saw between morality and State consent may undermine the
legitimacy of its interpretations and, ultimately, of the Committee itself.

C. Transparency
Although the Committee apparently takes guidance from the interpretive rules of the
VCLT, it has never given any explanation as to how it proceeds in applying them. At
best, the reader may guess that this or that element of VCLT articles 31–33 was at play,
as with the examples mentioned in Section V earlier. Why other elements were regarded
as irrelevant or less important remains unexplained.
For example, in its General Comment on the right to water, the pull towards morality
led the CESCR to ignore the full range of interpretive means and to focus exclusively
on the teleological element. Thus, it read a separate right to water into ICESCR article
11(1) on the basis that such a right was ‘essential for securing an adequate standard
of living’ and, indeed, ‘one of the most fundamental conditions for survival’.154 Yet
it failed to point out that one construction of the travaux concludes that the drafters
deliberately omitted water as a separate right155 and that a textual interpretation also
leads to the conclusion that the Covenant does not guarantee such a right.156 This is not
to argue that the Committee’s interpretation is wrong—there may be perfectly good
reasons to give a teleological approach priority over a textual interpretation and, even
more so, over an interpretation according to original intent. However, if an interpret-
ation is to be regarded as legitimate, the various interpretive elements should at least be
dealt with. Thus, it cannot come as a surprise that the Committee’s expansive reading
of ICESCR article 11(1) has attracted severe criticism from academic commentators157
as well as governments.158
The CESCR frequently refers to its previous General Comments, concluding ob-
servations, Statements, and Open Letters. Of course, the requirement of coherence
may make it necessary to consider previous findings. However, since its Views are not
legally binding, it is not sufficient for the Committee—as it tends to do—to simply
point to its preceding output to justify a particular interpretation of the ICESCR.159
If it wants to persuade the interpretive community that its own findings are relevant

154 CESCR, ‘General Comment 15’ (n 96) para 3.

155 Stephen Tully, ‘A Human Right to Access Water? A Critique of General Comment No. 15’
(2005) 23 Netherlands Q of Human Rights 35, 37–38.
156 See Matthew CR Craven, ‘Some Thoughts on the Emergent Right to Water’ in Eibe Riedel and
Peter Rothen (eds), The Human Right to Water (Berliner Wissenschafts-Verlag 2006) 37, 40.
157 Tully, ‘A Human Right to Access Water?’ (n 155); Michael J Dennis and David P Stewart,
‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints
Mechanism to Adjudge the Rights to Food, Water, Housing, and Health?’ (2004) 98 American J of Intl
L 462, 493–94.
158 eg Commission on Human Rights, ‘59th Session: Summary Record of the 56th Meeting’ (22
April 2003) UN Doc E/CN.4/2003/SR.56, para 49 (Canada).
159 For recent examples, see CESCR, ‘General Comment 23’ (n 103) paras 22, 52; CESCR,
‘Concluding Observations on the Second Periodic Report of Greece’ (27 October 2015) UN Doc
E/C.12/GRC/CO/2, para 8; CESCR, ‘Concluding Observations on the Second Periodic Report of
Slovenia’ (15 December 2014) UN Doc E/C.12/SVN/CO/2, para 8 (all referring to the letter on
69

Generating Legitimacy 69

for purposes of interpretation, it needs to explain why they are to be regarded as

‘subsequent practice . . . which establishes the agreement of the parties’ in the sense
of VCLT article 31(3)(b). After all, this conclusion is far from self-explanatory. It is
true that the ILA Committee on International Human Rights Law and Practice has
argued that the special character of human rights treaties requires article 31(3)(b) to
be interpreted widely: with regard to this type of treaties, ‘subsequent practice’ was
broader than subsequent State practice and included ‘the considered views of the
treaty bodies adopted in the performance of the functions conferred on them by the
States parties’.160 However, considering that the UN treaty bodies are composed of
independent experts rather than State representatives, it seems questionable whether
their findings amount to evidence of the agreement of the parties.161 Such a broad
reading of article 31(3)(b) is particularly problematic in the case of the CESCR.
Unlike the other treaty bodies, the CESCR was not created in accordance with the
provisions of the treaty it monitors, but by ECOSOC, and its members are elected
by ECOSOC rather than the States parties.162 Not all members of ECOSOC are,
however, parties to the ICESCR,163 and only 51 out of the 165 States that are par-
ties to the ICESCR are currently represented on ECOSOC.164 Hence, the work of
the CESCR cannot be said to be carried by the will of the States parties to the same
extent as that of the other UN treaty bodies.
If not the Committee’s findings themselves, can the reactions of States to them be
qualified as ‘subsequent practice’ in the sense of VCLT article 31(3)(b)? To answer
this question, the Committee would have to examine whether States have acqui-
esced in, or endorsed, a given interpretation put forth in, for example, one of its
General Comments. The Committee has so far failed to engage in such analysis of
State reactions. Without linking its findings to the agreement of States, however,
there is a risk that they will amount to nothing more than circular reasoning, with
references from its General Comments to its concluding observations and back.
This is all the more deplorable given that a convincing case could be made that
many of its interpretations do reflect State consensus. As pointed out in Section II,
States should ascribe great weight to interpretations adopted by human rights treaty
bodies: they must be presumed to be correct, so that good reasons must be presented
to contest them. In practice, States only very rarely express disagreement with the

austerity measures by the CESCR’s Chairperson sent to States parties (CESCR, ‘Letter to States Parties
from the Chairperson of the CESCR, Ariranga G Pillay’ (16 May 2012) UN Doc CESCR/48th/SP/
MAB/SW), which, without any explanation, established a number of requirements that austerity meas-
ures must meet).
160 ILA, ‘UN Treaty Bodies’ (n 15) 6.
161 Report of the International Law Commission on the work of its sixty-eighth session (2 May–
10 June and 4 July–12 August 2016) UN Doc A/71/10, Chapter VI, Draft Conclusion 13 [12],
Commentary, paras 9–10; Ulfstein, ‘Individual Complaints’ (n 24) 97.
162 ECOSOC Res 1985/17 (28 May 1985).
163 Of the current ECOSOC members, Andorra, the United Arab Emirates, and the United States
are not parties to the ICESCR.
164 See also Urfan Khaliq and Robin Churchill, ‘The Protection of Economic and Social Rights: A
Particular Challenge?’ in Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and
Legitimacy (CUP 2012) 199, 207.
70

70 Interpretation of the ICESCR

CESCR’s General Comments or concluding observations.165 Although a few States
have pointed out that its General Comments are not legally binding,166 there have
been—unlike in the case of the HRC167—no formal objections to them.168 Quite
to the contrary, States typically base their own submissions on the Committee’s find-
ings. This could be understood as acquiescence in, or even endorsement of, these
findings, establishing the agreement of the parties regarding the respective inter-
pretations.169 Yet such an understanding can only be maintained as long as there is
at least minimal engagement by States with the Committee’s output. This makes the
legitimacy, and thus transparency, of its work all the more important.
The CESCR should also reveal why it regards it as appropriate to interpret the
Covenant in the light of other rules of international law. As explained above, it regu-
larly takes into account all sorts of international standards, be they binding upon (all)
the parties to the ICESCR or not. Very exceptionally, the Committee may give some
hints suggesting that it regards the rules referred to as ‘applicable in the relations be-
tween the parties’ in the sense of VCLT article 31(3)(c).170 In general, however, it
fails to explain why the standards cited should have a bearing on the understanding
of the Covenant. This lack of transparency leaves the Committee open to the criti-
cism that it may be ‘cherry-picking’ those international standards that best sup-
port the intended outcome.171 If, as suggested in Section V, the Committee takes
international standards into account because it believes them to reflect moral values
underlying the Covenant and thus to be relevant for a teleological interpretation,
then it should say so.
The lack of transparency regarding the Committee’s interpretive approach con-
trasts starkly with that of some national courts. To refer to one especially illustrative
example, the German Federal Administrative Court, in a case concerning access to
higher education, first observed that the ICESCR must be interpreted according to
the rules of VCLT articles 31–33 as these form part of customary international law.
It then systematically went through the interpretive elements of VCLT article 31 to
make sense of ICESCR article 13(2)(c). It examined the wording of the provision
in its different language versions, analysed its systematic context, interpreted it in
light of its object and purpose, and surveyed the subsequent practice of States and
the CESCR.172

165 ILA, ‘UN Treaty Bodies’ (n 15) 6–7. For a rare example, see CESCR, ‘Comments by States
Parties on Concluding Observations: Japan’ (29 November 2002) UN Doc E/C.12/2002/12.
166 Eibe Riedel, ‘Allgemeine Bemerkungen zu Bestimmungen des Internationalen Paktes über
wirtschaftliche, soziale und kulturelle Rechte’ in Deutsches Institut für Menschenrechte (ed), Die
“General Comments” zu den VN-Menschenrechtsverträgen (Nomos 2005) 160, 164–65.
167 See eg the responses of the United States and the United Kingdom to General Comment 24
relating to reservations (HRC, ‘General Comment 24’ (n 62)): HRC, ‘Report of the Human Rights
Committee’ (3 October 1995) UN Doc A/50/40, Annex VI.
168 Sepúlveda, Nature of Obligations (n 29), 42; Riedel, ‘Allgemeine Bemerkungen’ (n 166) 164–65.
169 ILA, ‘UN Treaty Bodies’ (n 15) 7.
170 For such a rare exception, see CESCR, ‘General Comment 13’ (n 44) para 5 (pointing out the
widespread endorsement that the standards cited have received from all regions of the world).
171 Schlütter, ‘Human Rights Interpretation’ (n 40) 302.
172 Bundesverwaltungsgericht, judgment of 29 April 2009, BVerwG 6 C 16/08, paras 47–55.
71

Conclusion 71

Of course, invocation of the VCLT rules of interpretation is no guarantee of ac-

tual adherence to them.173 However, proceeding according to these rules at least
forces the interpreter to consider other interpretive elements that may lead to a dif-
ferent result and to provide an explanation of how the various elements are weighed.
A minimum of transparency is a prerequisite for proper scrutiny—to be able to
review an interpretation, the interpretive community must at least know what the
interpreter claims to be doing. Otherwise, as the example of its General Comment
on the right to water shows, the Committee’s interpretations become an easy target
for criticism.

VII. Conclusion

The broad framework constituted by the VCLT rules of interpretation allows for
a wide range of interpretive means, including the allegedly special methods used
by the CESCR. Due to their nature as mere guidelines, there are, at the same time,
limits to what these rules can achieve: giving interpreters considerable leeway, they
cannot prevent a treaty text from being approached and understood very differently
by different readers or, indeed, from being misread.174 Against this background, it is
the guiding principle of good faith, rather than the various means of interpretation
also referred to in VCLT article 31(1), that should be accorded the central role in
the process of interpretation. The importance of this guiding principle was already
highlighted by Hersch Lauterpacht, who observed that ‘[m]‌ost of the current rules
of interpretation . . . are no more than elaborations of the fundamental theme that
contracts must be interpreted in good faith’.175 What really matters is thus how—the
spirit in which—the task of interpretation is undertaken. Interpreting a treaty in
good faith implies that the interpreter adheres to a set of principles, applies these
principles in a coherent manner, and lays bare how a particular interpretive outcome
is reached by explaining which interpretive elements were used and how they were
weighed.
In contrast, a large part of the CESCR’s interpretations may be viewed as ‘result-
driven jurisprudence’.176 While especially its early practice was characterized by at-
tempts to adopt interpretations that would find the support of States, more recently
the Committee has often advanced interpretations that appear to be designed to
justify outcomes that it regards as morally right—without, however, acknowledging
that it engages in a moral reading of the Covenant. Its constant oscillation between
the two poles of morality and State consent has resulted in an interpretive practice
that lacks coherence and transparency.

173 Waibel, ‘Uniformity’ (n 37) 386–88.

174 Klabbers, ‘Virtuous Interpretation’ (n 144) 37. See also Hersch Lauterpacht, ‘Restrictive
Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 26 British YB
of Intl L 48, 53–55.
175 Lauterpacht, ‘Restrictive Interpretation’ (n 174) 56.
176 Jeremy Waldron, ‘Judges as Moral Reasoners’ (2009) 7 Intl J of Constitutional L 2, 17.
72

72 Interpretation of the ICESCR

The CESCR’s new power to rule on individual cases offers it the unique op-
portunity to enhance its standing as a quasi-judicial authority. Yet this will only
be achieved if the Committee succeeds in persuading the interpretive community
surrounding the Covenant of the interpretations it advances. In order to generate
legitimacy for its interpretive practice, it will have to demonstrate its good faith by
applying the VCLT principles in a coherent and transparent manner.

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75

5
NGOs
Essential Actors for Embedding the
Covenants in the National Context

Patrick Mutzenberg*

I. Introduction

Non- governmental organizations (NGOs)1 are essential to the work of the

Human Rights Committee (HRC), the monitoring body established by the 1966
International Covenant on Civil and Political Rights (ICCPR).2 This was recently
reaffirmed by Fabian Salvioli, former Chairperson of the HRC, when he pointed
out that:
Through its observations and analysis, civil society has a fundamental role to play in assessing
how States Parties implement the ICCPR. NGOs represent a crucial link between national
concerns and international mechanisms in providing the Human Rights Committee with
the required information during the examination of States parties’ reports. They are also
important partners when it comes to the implementation of the Concluding Observations,
whether through advocacy with the authorities, or under their own monitoring activities.3
The same can be said of NGO participation in the work of the Committee on
Economic, Social and Cultural Rights (CESCR),4 the monitoring body set up under

* The author would like to thank Emile Kinley-Gauthier for his research assistance and Lucy
McKernan, of Global Initiative for Economic, Social and Cultural Rights, for her very useful comments
and suggestions.
1 See the definition of NGOs in George E Edwards, ‘Assessing the Effectiveness of the Human
Rights Non-Governmental Organisations (NGOs) from the Birth of the United Nations to the 21st
Century: Ten Attributes of Highly Successful Human Rights NGOs’ (2009) 18 Michigan State Intl L
Rev 171.
2 International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16 December
1966, entered into force 23 March 1976) 999 UNTS 171.
3 Peggy Brett and Patrick Mutzenberg, ‘UN Human Rights Committee, Participation in the
Reporting Process: Guidelines for Non-Governmental Organisations (NGOs)’ (2nd edn, Centre for
Civil and Political Rights 2015) foreword.
4 The CESCR ‘attaches great importance to cooperation with all non-governmental organisations
(NGOs) active in the field of economic, social and cultural rights—local, national and international’ (in
CESCR, ‘Report on the Twenty-second, Twenty-third, and Twenty-fourth Sessions’ (2000) UN Doc
E/C.12/2000/21, Official Records of the Economic and Social Council 2001, Supplement No 2, Annex

76 NGOs: Embedding the Covenants in the National Context

the International Covenant on Economic, Social and Cultural Rights (ICESCR),5
and more generally with respect to the various United Nations (UN) human rights
treaty bodies (UNTB).6
However, the role of NGOs has changed since these Committees were first set
up. As neither of the Covenants specifically refers to a possible interaction between
the Committees and civil society,7 this role has been gradually and progressively de-
veloped over the years, initially on an ad hoc basis and subsequently in the working
methods of the relevant bodies. Both Committees have recently adopted specific
documents clarifying the modalities of NGO participation in their work. These
documents established the Committees’ cooperation with NGOs in relation to their
three main functions, namely the reporting procedure, the individual communica-
tions procedure, and the elaboration of General Comments.
The CESCR was the first Committee to formalize its cooperation with NGOs.
A first reference to NGOs was made by the CESCR in its 1994 Annual Report,8 and
in November 2000 it adopted its ‘Guidelines for NGOs’, which review its modal-
ities of interaction with civil society.9 More than a decade later, in March 2012, the
HRC adopted similar guidelines clarifying the relationship between the Committee

V: ‘Non-Governmental Organisation Participation in the Activities of the Committee on Economic,

Social and Cultural Rights’ 149, para 1.
5 International Covenant on Economic, Social and Cultural Rights (ICESCR) (opened for signature
16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
6 The essential role of NGOs is recognized by all of the UNTB and is regularly reaffirmed by the
various Committees and at the annual meetings of the Chairs of the UNTB. See eg the Report of the
27th meeting of the Chairs of the UNTB in San Jose, Costa Rica, 22–26 June 2015, where the ‘Chairs
welcomed the indispensable contribution of civil society organizations to the work of the treaty bodies,
whether through submissions, inputs, hearings or briefings. They called upon civil society organiza-
tions to continue to participate in State party reviews as well as in the follow-up to recommendations
emanating from the treaty bodies’ (‘Report of the Chairs of the Human Rights Treaty Bodies on their
Twenty-seventh Meeting’ (7 August 2015) UN Doc A/70/302, para 77).
7 Similarly, the other UNTB do not have specific provisions foreseeing cooperation with civil society,
with the notable exception of those adopted recently: art 45(a) of the Convention on the Rights of the
Child (CRC) (opened for signature 20 November 1989, entered into force 2 September 1990) 1577
UNTS 3 provides that ‘[t]‌he Committee may invite . . . other competent bodies as it may consider ap-
propriate to provide expert advice on the implementation of the Convention in areas falling within the
scope of their respective mandates’. Similar provisions are included in: the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their Families (opened for sig-
nature 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, art 74(4); the Convention
on the Rights of Persons with Disabilities (opened for signature 13 December 2006, entered into force
3 May 2008) 2515 UNTS 3, art 38(a); and to a lesser extent in the International Convention for the
Protection of All Persons from Enforced Disappearance (opened for signature 20 December 2006, en-
tered into force 23 December 2010) 2716 UNTS 3, art 28(1). There is no reference to NGOs in the
Optional Protocols to the ICCPR and to the ICESCR on individual communications (First Optional
Protocol to the ICCPR (OP1-ICCPR) (opened for signature 16 December 1966, entered into force 23
March 1971) 999 UNTS 171; Optional Protocol to the ICESCR (OP-ICESCR) (opened for signa-
ture 10 December 2008, entered into force 5 May 2016) UN Doc A/RES/63/117, 48 ILM 256 2009.
See Katarzyna Sękowska-Kozłowska, ‘The Role of Non-governmental Organisations in Individual
Communication Procedures before the UN Human Rights Treaty Bodies’ in Alexander J Bělohlávek,
Naděžda Rozehnalová, and Filip Černý (eds), Czech Yearbook of International Law, vol V (Juris 2014)
367, 370.
8 See CESCR, ‘Report on the Tenth and Eleventh Sessions’ (1 January 1995), UN Doc E/C.12/
1994/20, Official Records of the Economic and Social Council 1995, Supplement No 3, 14, para 27.
9 See CESCR, ‘Annex V’ (n 4) 149.
7

Cooperation with the Committees Regarding Reporting 77

and NGOs10 and analysing at length the role of NGOs in the different areas of
its work.
The objective of this chapter is to analyse the specific role of NGOs before the
Committees and how this role been reinforced and clarified over time, in particular
through the adoption of the above-mentioned documents. The focus of the chapter
is on the reporting procedure, which is by far the most important aspect of the
Committees’ work for NGOs, although other aspects should not be underestimated
(Section II). The chapter also envisages the implication of NGOs in a broader con-
text, in particular regarding the contribution of civil society to the implementation of
the Covenants at the national level. An examination of the impact of NGOs should
not be limited to their interaction with the Committees during their sessions, but
should also consider the implementation of the Committees’ views and concluding
observations (Section III).11

II. Cooperation with the Committees Primarily

Related to the Reporting Procedure

A. The role of NGOs in the reporting procedure

The reporting procedure, as set out in ICCPR article 40 and ICESCR article 16,
is premised on the idea that States parties should submit reports to the Covenants’
respective monitoring bodies on a regular basis. Such reports are discussed with the
States parties during public meetings. Following a ‘constructive dialogue’,12 both
Committees adopt concluding observations with recommendations addressed to
the States parties and aimed at improved implementation of the ICCPR and the
ICESCR. The Covenants do not foresee the intervention of third parties in this

10 This document mainly covers the reporting procedure but also provides brief information on
other ways to contribute to the work of the Committee, namely regarding the individual commu-
nications procedure under the OP1-ICCPR and the elaboration of General Comments. See HRC,
‘The Relationship of the Human Rights Committee with Non-governmental Organizations’ (4 June
2012) UN Doc CCPR/C/104/3.
11 This chapter does not intend to cover the role of civil society in the drafting process of the Covenants
and their protocols. There is limited information on the role played by civil society in the negotiation
of the texts of the ICCPR and the ICESCR, as suggested in Ida Lintel and Cedric Ryngaert, ‘The
Interface between Non-governmental Organisations and the Human Rights Committee’ (2013) 15
Intl Community L Rev 359, 361. However, NGOs played a more crucial role in the adoption process of
the OP-ICESCR by the UN General Assembly (UNGA). Several NGOs established a coalition for the
OP-ICESCR. This coalition, coordinated by ESCR-Net, was active during the drafting process of the
Optional Protocol, although it had a more significant impact by pushing for a time frame for negotiating
the text than on the text itself. The NGO Coalition for the OP-ICESCR continues to play an important
role in promoting the instrument’s ratification. See Gamze Erdem Türkelli, Wouter Vandenhole, and
Arne Vandenbogaerde, ‘NGO Impact on Law-making: The Case of a Complaints Procedure under the
International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of
the Child’ (2013) 5 J of Human Rights Practice 1, and Claire Mahon, ‘Progress at the Front: The Draft
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2008) 8
Human Rights L Rev 617.
12 See HRC, ‘Working Methods’ <www.ohchr.org/EN/HRBodies/CCPR/Pages/WorkingMethods.
aspx> accessed 4 April 2017, s B.
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78 NGOs: Embedding the Covenants in the National Context

reporting procedure. However, since the first reviews of State reports, the participa-
tion of NGOs has been increasingly endorsed, at first informally and subsequently
with a formal role given to NGOs at all stages of the reporting procedure (before,
during, and after the review of State reports). During its early days, the HRC debated
at length on whether it was authorized to receive (and to solicit) NGO informa-
tion. In 1997, the HRC formally decided that it ‘should also seek information from
NGOs’.13 At that time, very few NGO reports were submitted to the Committees,
and then mainly by international NGOs which were acquainted with their work
and the subtleties of the reporting procedure. Nowadays, both Committees receive
a high volume of NGO reports. Figures from 2015 show that the HRC received 290
NGO reports and that the CESCR received 212 NGO reports that year. In-depth
analysis of these reports reveals interesting data. Of the 290 NGO reports received
by the HRC, 112 were submitted before the adoption of the Lists of Issues14 and
178 were submitted in the context of the review procedure. The average number of
reports per country is high (15.2 NGO reports per country); however, the volume of
output varies significantly between different States. Some generated a high volume
of NGO reports, with the review of Venezuela entailing the highest number at a
total of thirty-seven (six reports for the List of Issues and thirty-one reports for
the review), followed by the United Kingdom (thirty-one reports), the Russian
Federation (twenty-six reports), and the Republic of Korea (twenty-two reports).
However, it is concerning to observe that other States, namely Monaco, Cyprus,
Benin, and Suriname, received little attention from the NGO community, with very
few NGO reports submitted regarding either their Lists of Issues or their reviews.
A similar analysis of the CESCR demonstrates that this Committee received
significantly fewer reports in 2015, with figures indicating that a total of 212
NGO reports were submitted predominantly in the context of the State review
procedure (140 reports), with only seventy-two reports submitted prior to the
adoption of the Lists of Issues. Therefore, in the case of this Committee, only
12.6 NGO reports per country were submitted on average. As with the HRC, the

13 See HRC, ‘Report on the Informal Meeting on Procedures’ (22 December 1997) UN Doc CCPR/
C/133. For a full overview of the early debate on NGO participation at the HRC, see Patrice Gillibert,
‘Le Comité des droits de l’homme et les organisations non gouvernementales’ in Emmanuel Decaux
and Fanny Martin (eds), Le Pacte international relatif aux droits civils et politiques: commentaire article
par article (Economica 2011) 55. For the first example of interaction between the HRC and the civil
society organizations, see also Yogesh K Tyagi, ‘Cooperation between the Human Rights Committee
and Nongovernmental Organizations: Permissibility and Propositions’ (1983) 18 Texas Intl L J 273.
14 All UNTB now adopt a ‘List of Issues and Questions’ on the basis of the State party report and
other available information (including information from specialized UN agencies, NGO submissions,
etc). This List of Issues is transmitted to the State party in advance of the session at which the UNTB
will consider the report. The List of Issues provides the framework for a constructive dialogue with the
State party’s delegation. The delegation may respond to the issues orally during the session, but most
of the Committees request the State party to submit written responses to the List of Issues in advance,
allowing the dialogue to focus on specific issues more expediently (<www2.ohchr.org/english/bodies/
treaty/glossary.htm> accessed 4 April 2017). Additionally, the States parties can opt for the ‘Simplified
Reporting Procedure’ (SRP), wherein the List of Issues is adopted prior to the submission of the State
report. In that situation, the State report has to focus on the issues included in the List of Issues and is
therefore more focused on the concerns of the specific Committee (<www.ohchr.org/EN/HRBodies/
CCPR/Pages/SimplifiedReportingProcedure.aspx> accessed 4 April 2017).
79

Cooperation with the Committees Regarding Reporting 79

number of reports according to country ranges significantly, from thirty reports

received on Ireland (sixteen reports for the List of Issues and fourteen reports for
the review) and twenty-two reports on Uganda (ten reports for the List of Issues
and twelve reports for the review) to very limited NGO contributions on coun-
tries such as Mongolia (five reports), Guyana (four reports), or the Gambia (three
reports).
Moreover, several reports submitted to both Committees were drafted by NGO
coalitions, and as such these reports could either cover only a few issues (thematic
reports)15 or else were more global, addressing several of the provisions set out in the
Covenants.16
At this stage, it is important to highlight that only the HRC benefits from the
support of a structure—the Centre for Civil and Political Rights—specifically dedi-
cated to NGO engagement with the Committee. The Centre for Civil and Political
Rights acts as a focal point for civil society organizations17 with regard to the various
activities of the HRC. No similar platform exists in the framework of the CESCR,
although the Secretariat and several NGOs play an active role to ensure that civil
society is engaged in a coordinated manner.
All NGOs and civil society groups may involve themselves in the reporting pro-
cedure (as well as the other activities of the Committees), regardless of whether
they have been granted ECOSOC (UN Economic and Social Council) consultative
status.18 There is no process that monitors the independence or the credibility of the
NGOs interacting with the Committees. All of the information provided by civil so-
ciety is generally transmitted to the Committees as long as it is formally submitted to
their secretariats within the specific deadlines. It is therefore the Committee mem-
bers’ task to monitor and assess the quality of the NGO information received. In
practice, there have been relatively few instances wherein NGO information was
considered biased and non-independent.19

15 See eg the thematic report by ten NGOs submitted to the HRC at its 114th session in July
2015 and concerning Canadian oil, mining, and gas companies operating abroad, restrictions on
freedom of expression and democratic participation, and the rights of first nations, inequality, and en-
vironmental policy (Franciscans International and others, ‘Alternative Report on Canada’s Compliance
with the International Covenant on Civil and Political Rights’ (2015) <http://tbinternet.ohchr.org/
Treaties/CCPR/Shared%20Documents/CAN/INT_CCPR_CSS_CAN_20763_E.doc> accessed 4
April 2017).
16 See eg the global report on Cambodia submitted by ten NGOs to the HRC at its 113th session
in March 2015 concerning the main issues included in the List of Issues (Cambodian Human Rights
Action Committee and others, ‘Cambodia: Civil Society Report on the Implementation of the ICCPR’
(20 February 2015) <http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/KHM/
INT_CCPR_CSS_KHM_19618_E.pdf> accessed 4 April 2017).
17 The Centre for Civil and Political Rights was established in 2008 as a platform dedicated to na-
tional and international NGOs, with the mandate to reinforce the presence and improve the coordin-
ation of NGOs before the HRC (<www.ccprcentre.org> accessed 4 April 2017).
18 See Brett and Mutzenberg, ‘NGO Guidelines’ (n 3) 13.
19 See eg the report by a coalition of NGOs from Venezuela submitted to the HRC in June 2015
(FUNDALATIN and others, ‘Informe ante el Consejo de Derechos Humanos’ (1 June 2015) <http://
tbinternet.ohchr.org/ Treaties/ C CPR/ Shared%20Documents/ V EN/ I NT_ C CPR_ C SS_ V EN_
20713_S.doc> accessed 4 April 2017).
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80 NGOs: Embedding the Covenants in the National Context

1. NGO interaction prior to the review

Once the State party has submitted its (initial or periodic) report, the review is
scheduled and commences with the adoption of the List of Issues. This is the first
entry point for NGOs that would like to see their main subjects of concern taken
into consideration. It is also a key opportunity for NGOs to share their views, since
the List of Issues forms the framework for subsequent dialogue and is thoroughly
addressed with the representatives of the State party during their dialogue with the
Committees. Both Committees welcome written information at this initial stage,20
and NGOs frequently submit information at this point. The communication of the
countries selected for the adoption of Lists of Issues and the deadlines for NGOs to
submit information prior to their adoption are, however, challenging. Meeting these
deadlines requires the NGOs to have a clear understanding of the working methods
and the calendar of the Committee concerned. Deadlines to submit information are
not easily accessible (in particular on the OHCHR website) and can be changed at
short notice. To guarantee that such information is widely disseminated, the Centre
for Civil and Political Rights issues regular newsletters and alerts as soon as the in-
formation is made available.
Information submitted for the List of Issues21 should ideally refer to previous
reporting cycles, with a specific emphasis on information related to the imple-
mentation of the previous concluding observations.22 In reality, however, most
of the information submitted does not refer to the previous cycle and remains
silent on the progress made regarding the specific subjects of concern raised at an
earlier stage.
Even though, at this point, information is mainly submitted in written form,
NGOs also have the opportunity to brief the Committees orally. The CESCR is the
only one of the two Committees to organize a formal and private meeting held in the
pre-sessions that is specifically devoted to the List of Issues.23 Such a formal meeting
does not take place at the HRC, although informal briefings may be organized prior
to the adoption of the Lists of Issues. In practice, meetings are organized depending
on the need for more information identified by the Committee members involved

20 The HRC ‘emphasizes that it is highly desirable to receive input from NGOs at an early stage of
the reporting process’ (HRC, ‘Relationship with NGOs’ (n 10) para 9). The CESCR provides similar
guidance (CESCR, ‘Annex V’ (n 4) 153, para 14).
21 Information submitted by NGOs is even more crucial when the States parties opt for the SRP,
which foresees that the List of Issues is to be adopted prior to the drafting of the State reports. In that
context, NGO concerns will be addressed in both the State report and during dialogue with the States
parties. See more on the SRP and NGOs’ contribution in Brett and Mutzenberg, ‘NGO Guidelines’
(n 3) 9.
22 See Brett and Mutzenberg, ‘NGO Guidelines’ (n 3) 10.
23 This approach follows the long-standing practice of the Committee of the Rights of the Child,
which engages in a three-hour dialogue with NGOs regarding each country at this stage of the pro-
cedure. See the working methods of the Committee of the Rights of Child <www.ohchr.org/Documents/
HRBodies/CRC/WorkingMethodsCRC.doc> accessed 4 April 2017, s A. See also the information pro-
vided by Child Rights Connect on the reporting procedure (Child Rights Connect, ‘CRC Reporting’
<www.childrightsconnect.org/connect-with-the-un-2/crc-reporting/> accessed 4 April 2017).
81

Cooperation with the Committees Regarding Reporting 81

in the adoption of the List of Issues; however, these meetings, which are usually held
via video-conference, are rare.24
NGO briefings scheduled a few hours or days prior to the adoption of the Lists
of Issues help to ensure that the main concerns of civil society organizations are
voiced and that the latest human rights developments are fully taken into account.
However, the effectiveness of this practice can be questioned for two main reasons.
First, the impact of the information provided by NGOs at this stage is certainly miti-
gated due to the fact that the drafts of the Lists of Issues are prepared several weeks
beforehand and, in most cases, only minor changes can occur at this point. Secondly,
the participation of NGOs at this stage remains weak, as representatives who travel
to Geneva to participate in NGO briefings have to budget for a second journey in
order to attend the review itself, when another NGO briefing takes place. Hence, as
NGOs (particularly national ones) usually have very limited resources, they often
choose to participate in the review only and do not attend the pre-session.

2. NGO interaction during the State report review

Once the List of Issues is adopted and the review of the State report is scheduled,
NGOs are presented with a second opportunity to provide information to the
Committees. The format of this participation remains similar to the previous phase,
with NGOs receiving an opportunity to provide written information prior to the
review and to participate in formal and/or informal briefings during the sessions of
the Committees.
Regarding written information, NGOs are encouraged to submit their reports
prior to the examination of the State reports.25 At this stage, the Committees wel-
come reports that focus on topics included in the Lists of Issues, although additional
information is also appreciated. Such information helps the Committees to shed
light on inconsistencies and contradictions in the State reports and, more import-
antly, in the written replies to the Lists of Issues provided by the States parties.26
In practice, more and more NGO reports focus on the issues included in the Lists;
whilst some deal with only one or a few topics, others are more comprehensive and
address most of the concerns listed.
NGOs are also presented with the opportunity to formally brief the Committees.
They have been exercising this possibility since 1993 in the case of the CESCR,27

24 In its paper on the relationship of the HRC with NGOs, the Committee ‘welcomes the organ-
ization of NGO briefings prior to the adoption of Lists of Issues’ (HRC, ‘Relationship with NGOs’ (n
10) para 6).
25 For the CESCR, see CESCR, ‘Annex V’ (n 4), 154, para 21, and for the HRC, see HRC,
‘Relationship with NGOs’ (n 10) para 9.
26 NGO information is particularly crucial when the procedure of review in absence of a report is
triggered according to the Rules of Procedure of the HRC (Rule 70), as—absent a State report—the
main information available to the Committee stems from NGOs (HRC, ‘Rules of Procedure of the
Human Rights Committee’ (11 January 2015) CCPR/C/3/REV.10).
27 CESCR, ‘NGO Participation in Activities of the Committee on Economic, Social and Cultural
Rights’ (12 May 1993) UN Doc E/C.12/1993/WP.14. See also Wouter Vandenhole, The Procedures be-
fore the UN Human Rights Treaty Bodies: Divergence or Convergence? (Intersentia 2004) 128.
82

82 NGOs: Embedding the Covenants in the National Context

which officialized this activity in its Guidelines for NGOs.28 Such formal briefings
are public and usually held on each Monday for the countries to be reviewed during
the week ahead. The briefings are limited to NGO statements on ICESCR issues
and strictly address the countries scheduled for review at the session. The process
is similar for the HRC, although this is a more recent practice,29 and meetings are
private. This is certainly a key advantage compared to the NGO briefing practice of
the CESCR, as it is thus ensured that human rights defenders participating in such
meetings can raise their concerns freely without any fear of reprisals from their gov-
ernments. This is particularly true since July 2016, when the public sessions of the
UNTB started to be webcast live,30 allowing anyone to follow the meetings of the
Committees, including the formal NGO briefings.31
In addition to formal briefings, NGOs also have the opportunity to attend in-
formal briefings. These are usually scheduled immediately before the examination
of the relevant State report commences. Whilst the formal briefings allow NGO
representatives to deliver statements, the informal briefings are usually viewed as an
additional opportunity for members of the Committees to raise questions and seek
clarification on issues mentioned in NGO reports.
NGOs tend to coordinate with each other in order to avoid duplication in their
written submissions and subsequent oral presentations. This is possible with the
support of third parties such as the Centre for Civil and Political Rights32 or a na-
tional NGO working to correlate the efforts of the different stakeholders.33 This
greatly facilitates the organization of formal NGO briefings from an early stage,
allowing NGOs to speak with one voice. In practice, the majority of NGOs that
have submitted written information for the reporting procedure attend the sessions
to brief the Committees’ members. According to the internal figures of the Centre
for Civil and Political Rights, 120 NGO representatives participated in the HRC’s
sessions in 2014, and 174 representatives attended the 2015 sessions.
In the context of the HRC, the Centre for Civil and Political Rights acts as the
facilitator for the coordination of formal NGO briefings, aiming to avoid overlap in
NGO statements and ensure a fair allocation of speaking time amongst the NGOs
wishing to take the floor. The Centre also coordinates all of the informal briefings.

28 See CESCR, ‘Annex V’ (n 4) 155, para 23.

29 The formal briefings have been taking place since the 103rd session (October 2011). Their aim is
to engage with the HRC ‘during a formal closed meeting preceding the examination of the State party’s
report’ (HRC, ‘Relationship with NGOs’ (n 10) para 10).
30 See <www.webtv.un.org> accessed 4 April 2017.
31 The review of Burundi by the Committee on the Elimination of Discrimination against Women
(in October 2016) is a recent example wherein several national NGOs refused to participate in the
formal briefing (which is also held in public and webcast) for fear of reprisals.
32 The Centre for Civil and Political Rights organizes several national consultations prior to the re-
view for the purpose of encouraging NGOs to participate in a joint consolidated NGO report. See eg
the NGO report on Burundi (Actions des Chrétiens pour l’Abolition de la Torture and others, ‘Rapport
Alternatif de la société civile sur la mise en œuvre du Pacte International relatif aux Droits Civils et
Politiques’ (October 2014) <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?
symbolno=INT%2fCCPR%2fCSS%2fBDI%2f18220&Lang=en> accessed 4 April 2017).
33 See eg the testimony of Alex Neve, Secretary-General of Amnesty International Canada, in Brett
and Mutzenberg, ‘NGO Guidelines’ (n 3) 15.
83

Cooperation with the Committees Regarding Reporting 83

At this stage, it is prudent to address the extent to which the information con-
tained in the NGO reports is taken into consideration by the Committees, and more
specifically how this information is incorporated into and reflected in the outcome
of the review, particularly in the concluding observations. For the purpose of this
chapter, the Centre reviewed the NGO material received by the HRC at its 113th
session (in March 2015)34 and by the CESCR at its 56th session (in September
2015).35 Figures indicate that, when NGOs submit global reports (covering sev-
eral provisions of the ICESCR or the ICCPR), the majority of issues are taken into
consideration and both the Lists of Issues and the concluding observations reflect
the concerns highlighted by the NGOs. In cases where several global reports are
submitted, the correlation of NGO concerns with Committee concerns can be very
high. For instance, in the review of Cambodia, 87.5 per cent of the concerns raised
in the List of Issues36 were also mentioned in the four global NGO reports sub-
mitted, and 100 per cent of the concerns included in the concluding observations37
were also reflected in the material submitted by civil society organizations (via five
global NGO reports).
Also in the case of thematic reports, most of the concerns raised are fully reflected
in the Lists of Issues and subsequently in the concluding observations. This is true
also for very specific issues that are included in the NGO reports.38 The analysis of
NGO submissions for the Lists of Issues and for the reviews shows that thematic
civil society groups cooperating with the Committees on a limited number of issues
are usually well-organized and engage strategically with the members. They manage
to submit information at this early stage, prior to the List of Issues, and then, at a
later stage, for the dialogue with the State party. These NGOs comprehend how im-
portant it is to submit timely information to ensure that their issues remain high on
the agenda, and these issues are usually well-reflected in the Lists of Issues and sub-
sequently in the concluding observations.39 This strategy of advocacy is sometimes

34 The countries reviewed at the 113th session were Cambodia, Ivory Coast, Cyprus, Monaco,
Croatia, and Russia.
35 The countries reviewed at the 56th session were Burundi, Greece, Guyana, Iraq, Italy, Morocco,
and Sudan.
36 HRC, ‘List of Issues in Relation to the Second Periodic Report of Cambodia’ (19 August 2014) UN
Doc CCPR/C/KHM/Q/2. A list of the written NGO replies to the List of Issues is available at <http://
ccprcentre.org/doc/2015/03/CCPRCKHMQ2Add.1.pdf> accessed 4 April 2017.
37 HRC, ‘Concluding Observations on the Second Periodic Report of Cambodia’ (27 April
2015) UN Doc CCPR/C/KHM/CO/2. A list of the NGO reports submitted for the review is available
at <http://ccprcentre.org/country/cambodia> accessed 4 April 2017.
38 See eg the NGO report from the European Association of Jehovah’s Christian Witnesses on the
violations against the Jehovah’s Christian Witnesses in Russia (The European Association of Jehovah’s
Christian Witnesses, ‘Complementary Submission to the UN Human Rights Committee Subsequent
to the Adoption of the List of Issues’ (18 February 2015) <http://tbinternet.ohchr.org/Treaties/CCPR/
Shared%20Documents/RUS/INT_CCPR_CSS_RUS_19636_E.pdf> accessed 4 April 2017) and the
related concluding observations on the Russian Federation (HRC, ‘Concluding Observations on the
Seventh Periodic Report of Russia’ (28 April 2015) UN Doc CCPR/C/RUS/CO/7, para 20).
39 See eg the specific contribution of the NGO coalition ‘Cotton Campaign’ in Uzbekistan. Their
report (Cotton Campaign, ‘Pre-Sessional Report on Forced Labour in Uzbekistan to the Country
Report Task Force for the Adoption of the List of Issues’ <http://tbinternet.ohchr.org/Treaties/CCPR/
Shared%20Documents/UZB/INT_CCPR_ICO_UZB_17835_E.pdf> accessed 4 April 2017) was ex-
tensively taken into consideration in the List of Issues on Uzbekistan (HRC, ‘List of Issues in Relation
84

84 NGOs: Embedding the Covenants in the National Context

conducted in a more systematic way by one specific NGO. If this systematic ap-
proach is successful, the same issue will therefore be addressed in the context of sev-
eral countries’ reviews and will be routinely discussed by the Committee. This is, for
instance, the case for the regular submissions by the NGO International Fellowship
of Reconciliation (IFOR) on the right to conscientious objection to military service.
As a result of these submissions, this issue is now regularly taken into consideration
in the Lists of Issues as well as in the concluding observations.40
Finally, from 2010 to 2016, a group of NGOs took the initiative to webcast the
sessions of the UNTB, allowing video transmission of States parties’ reviews. This
process was carried out systematically for all the countries reviewed by the HRC,41
but less so for the CESCR.42 Since 2016, the OHCHR has taken over the web-
casting of all of the sessions of all UNTB, acknowledging the precursor and leading
role played by civil society in improving the outreach of the work of these bodies.

B. The role of NGOs in the elaboration of General Comments

The role of NGOs in the adoption of General Comments43 is now well-established,
and similar before both Committees. The CESCR’s Guidelines for NGOs acknow-
ledge the role of civil society organizations, which are granted permission to submit
information to the Committee in writing ‘during the stages of the drafting and dis-
cussion of a general comment’.44 However, in practice, NGOs can only intervene

to the Fourth Periodic Report of Uzbekistan’ (21 November 2014) UN Doc CCPR/C/UZB/Q/4,
para 15) and in the concluding observations (HRC, ‘Concluding Observations on the Fourth Periodic
Report of Uzbekistan’ (17 August 2015) CCPR/C/UZB/CO/4, para 19). See also the NGO re-
ports on discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons in Cambodia
(Kaleidoscope Human Rights Foundation, ‘Shadow Report to the UN Human Rights Committee
Regarding Cambodia’s Protection of the Rights of LGBTI Persons’ <http://tbinternet.ohchr.org/
Treaties/CCPR/Shared%20Documents/KHM/INT_CCPR_ICO_KHM_17317_E.pdf> accessed 4
April 2017) and how the issue is reflected in the List of Issues (HRC, ‘List of Issues: Second Report of
Cambodia’ (n 36) para 5) and the concluding observations (HRC, ‘Concluding Observations: Second
Report of Cambodia’ (n 37) para 9).
40 See eg Cyprus, where an NGO report (IFOR and Conscience and Peace Tax International,
‘Submission to the 111th Session of the Human Rights Committee for the attention of the Country
Report Task Force on Cyprus’ (April 2014) <http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20
Documents/CYP/INT_CCPR_ICO_CYP_17198_E.doc> accessed 4 April 2017) is reflected in the
List of Issues (HRC, ‘List of Issues in Relation to the Fourth Periodic Report of Cyprus’ (19 August
2014) CCPR/C/CYP/Q/4, para 24) or Austria, where the List of Issues (HRC, ‘List of Issues in Relation
to the Fifth Periodic Report of Austria’ (28 April 2015) CCPR/C/AUT/Q/5, para 18) and the con-
cluding observations (HRC, ‘Concluding Observations on the Fifth Periodic Report of Austria’ (3
December 2015) CCPR/C/AUT/CO/5, paras 33–34) adequately take into consideration the report
submitted by IFOR (IFOR, ‘Submission to the 113th Session of the Human Rights Committee for the
Attention of the Country Report Task Force on Austria’ (December 2014) <http://tbinternet.ohchr.
org/Treaties/CCPR/Shared%20Documents/AUT/INT_CCPR_ICO_AUT_19177_E.doc> accessed
4 April 2017).
41 From 2010 to 2016, the webcasting of the sessions of the HRC was carried out by the Centre for
Civil and Political Rights. The archive of the session is available at <www.treatybodywebcast.org> ac-
cessed 4 April 2017.
42 This irregularity can be attributed to the fact that no NGOs are specifically dedicated to
the CESCR.
43 ICCPR art 40(4) and ICESCR art 19. 44 CESCR, ‘Annex V’ (n 4), 157, para 34.
85

Cooperation with the Committees Regarding Reporting 85

before the Committee initiates its drafting process, at the occasion of the regular
‘(half-)days of general discussion’. The objective of such general discussion, which
allows NGOs to submit written information prior to the meeting and to deliver oral
statements, is to ‘help the Committee to lay the basis for a future general comment’.45
The HRC has taken much longer to accept the idea of a ‘day of general dis-
cussion’,46 although since its early days NGOs have submitted informal written
material at every stage of the drafting of General Comments.47 In 2012, the HRC
finally decided to host ‘half-days of general discussion’ prior to the beginning of
the drafting process of the General Comment on article 9.48 In July 2015, a similar
set-up was established for the drafting of the General Comment on article 6. These
general discussions were held in public and well-attended, with several dozen NGOs
participating in the dialogue and providing 117 written submissions.49 In add-
ition, as opposed to those of the CESCR, the HRC’s meetings devoted to the actual
drafting of the General Comments are open to the public. Although NGOs cannot
directly intervene in the drafting process, the publicity that surrounds the debate
before the HRC ensures a certain level of transparency. In addition, NGOs have the
possibility to comment on the draft of the General Comment once the first reading
is completed. This opportunity is given to all stakeholders (including the States par-
ties) and is not limited to NGOs.50
Given the fact that the introduction of the HRC’s ‘half-days of general discussion’
is a recent development, it is difficult to assess the impact of NGOs on the drafting
process of General Comments. Preliminary analysis shows, however, that informa-
tion submitted by NGOs on the occasion of the July 2015 ‘half-day of general dis-
cussion’ had a limited influence on the original draft prepared by the Rapporteurs.
This is mainly due to the nature of a General Comment, which ‘usually codifies
the Committee’s practice’51 and therefore focuses primarily on the HRC’s findings
(either in its Views or its concluding observations). In that context, the contribu-
tions have a limited impact, as the HRC will not be inclined to follow new positions

45 CESCR, ‘Working Methods’ <www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.

aspx> accessed 4 April 2017, part G, para 49. The first ‘day of general discussion’ took place in 1989 and
concerned the right to food. See the list of the previous days of general discussion held by the CESCR at
CESCR ‘General Discussion Days’ <www.ohchr.org/EN/HRBodies/CESCR/Pages/DiscussionDays.
aspx> accessed 4 April 2017.
46 NGOs called for a better participation of civil society in the drafting process of the General
Comments. A similar proposal was made by academics; see Helen Keller and Leena Grover, ‘General
Comments of the Human Rights Committee and their Legitimacy’ in Helen Keller and Geir Ulfstein
(eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 115, 190.
47 ibid.
48 HRC, ‘Issues for Consideration During the Half-day General Discussion in Preparation for a
General Comment on Article 9 (Liberty and Security of Person) of the ICCPR’ (17 August 2012) UN
Doc CCPR/C/105/3, para 2. The organization of a (half )-day of general discussion is also formally
mentioned in the Guidelines for NGOs of the HRC (HRC, ‘Relationship with NGOs’ (n 10) para 14).
49 HRC, ‘Written Contributions for the Half Day of Discussion’ (2015) <www.ohchr.org/EN/
HRBodies/CCPR/Pages/WCRightToLife.aspx> accessed 20 May 2017.
50 HRC, ‘Summary record of the 3154th meeting’ (27 March 2015) UN Doc CCPR/C/SR.3154,
para 20.
51 HRC, ‘Summary record of the 3185th meeting’ (14 July 2015) UN Doc CCPR/C/SR.3185,
para 2.
86

86 NGOs: Embedding the Covenants in the National Context

suggested by NGOs that are not strictly corroborated by its own findings. This situ-
ation is even truer when the NGOs’ contributions reflect positions that are not in
line with the HRC’s position.52

C. The role of NGOs in the individual communications

procedure under the Optional Protocols
NGO interaction with the Committees is not limited to the reporting procedure
and the drafting of General Comments. NGOs also have an important role to
play—albeit a more discrete one—in the individual communications procedure
under the Optional Protocols. This is particularly true regarding the individual com-
munications submitted to the HRC, which has a long history of NGO engagement
with victims of ICCPR rights violations by assisting them and providing them with
support to file their complaints. This is acknowledged by the HRC, which has stated
that ‘NGOs play an important role in providing assistance to alleged victims of
human rights violations under the Covenant in submitting individual communica-
tions to the Committee under the Optional Protocol’.53 The most common form
of NGO engagement occurs when an NGO represents a petitioner, whilst in other
instances NGOs can act on behalf of victims.54 Several NGOs regularly submit cases
before the HRC with the specific objective to develop strategic litigation. This may
refer to particular issues not yet addressed by the Committee or be related to States
parties where the relevant jurisprudence is still embryonic. This strategic litigation
has led to the emergence of key HRC jurisprudence. One of the most remarkable
examples is the recent development of the jurisprudence on enforced disappearances
and its consequences for ICCPR article 6. In 2013–15, the Committee received sev-
eral cases from the same NGO, ‘Trial International’, on cases of enforced disappear-
ance in Bosnia and Herzegovina55 and in Nepal.56 Those cases have allowed the
HRC to develop a clear jurisprudence clarifying—after much debate—how cases of
enforced disappearance violate ICCPR article 6. NGO engagement also encouraged

52 Amongst 117 NGOs contributions submitted to the July 2015 ‘day of general discussion’ on the
General Comment on art 6, 49 contributions emanated from ‘Pro Life’ organizations advocating for the
application of art 6 to unborn children.
53 HRC, ‘Relationship with NGOs’ (n 10) para 8.
54 Sękowska-Kozłowska, ‘Individual Communications’ (n 7) 370. In contrast, NGOs face difficul-
ties when they aim to submit a petition in their own name: art 1 of the OP1-ICCPR clearly limits the
possibility of submitting a communication to individuals. The HRC remains particularly restrictive in
its interpretation of art 1, considering most of the cases submitted by NGOs as petitioners inadmissible.
55 Eight cases submitted by Trial International against Bosnia Herzegovina were decided by the
HRC between 2014 and 2015. A list of the cases is available online (Centre for Civil and Political
Rights, ‘Bosnia and Herzegovina’ <http://ccprcentre.org/country/bosnia_and_herzegovina> accessed
15 May 2017).
56 Four cases submitted by Trial International against Nepal were decided by the HRC between
2014 and 2015: JM Basnet and TB Basnet v Nepal, HRC Communication No 2051/2011 (29 October
2014) UN Doc CCPR/C/112/D/2051/2011; Bhandari v Nepal, HRC Communication No 2031/2011
(29 October 2014) UN Doc CCPR/C/112/D/2031/2011; Katwal v Nepal, HRC Communication No
2000/2010 (1 April 2015) UN Doc CCPR/C/113/D/2000/2010; AS v Nepal, HRC Communication
No 2077/2011 (6 November 2015) UN Doc CCPR/C/115/D/2077/2011.
87

The Emerging Role of NGOs Regarding Implementation 87

the development of country-specific jurisprudence where the engagement of one

particular NGO was at the origin of the submission of several cases against a par-
ticular State.57
In an interesting development, NGOs can now submit third-party interventions,
such as amicus curiae briefs, regarding cases currently pending before the CESCR.
This approach, taken on the grounds that third-party interventions are permissible
under OP-ICESCR article 8(3), was confirmed in June 2015.58 At that time, a
first submission from the International Network for Economic, Social and Cultural
Rights (ESCR-Net) was admitted by the CESCR.59 Of course, such interventions
are possible only with the consent of the complainant. After a similar request was
made to the HRC by the NGOs,60 the Committee is also considering the possi-
bility of receiving third-party interventions, although no formal decisions have been
made yet.

III. The Emerging Role of NGOs in the Implementation

of Concluding Observations and Views

For several years, the role of NGOs was limited to the reporting procedure and, to
a lesser extent, the individual complaints procedure. With the development of the
follow-up procedure on the implementation of the concluding observations and
the Views adopted under the OP1-ICCPR and OP-ICESCR, NGOs have started
to play a greater role in promoting full implementation of the Committees’ recom-
mendations, not only at the national level but also as actors in the follow-up pro-
cedure. However, this role mainly reflects the procedure before the HRC, as the
CESCR follow-up procedure remains embryonic.

A. At the national level

1. Raising awareness at the national level
Both Committees acknowledge that NGOs have a crucial role to play at the national
level once the concluding observations have been adopted at the end of the reporting
procedure. The primary role of NGOs, as suggested by both Committees, is to ‘give
publicity to the Concluding Observations locally and nationally’.61 Regarding the

57 See eg the five cases submitted by the NGO Kazakhstan International Bureau for Human Rights
and Rule of Law against Kazakhstan between 2010 and 2012 (Centre for Civil and Political Rights,
‘Kazakhstan’ <http://ccprcentre.org/country/kazakhstan> accessed 18 May 2017).
58 See IDG v Spain (2015) CESCR Communication No 2/2014 (13 October 2015) UN Doc E/
C.12/55/D/2/2014, para 6.1.
59 See ESCR-Net, ‘Intervención de tercero’ <www.escr-net.org/es/recursos/red-desc-intervencion-
tercero-comite-desc-comunicacion-22014> accessed March 2016.
60 See eg the ‘Pretoria Statement on the Strengthening and Reform of the UN Human Rights Treaty
Body System’ (20–21 June 2011) <www2.ohchr.org/english/bodies/HRTD/docs/PretoriaStatement.
doc> accessed 4 April 2017, which was signed by twelve NGOs.
61 CESCR, ‘Non-governmental Organization Participation in the Activities of the Committee on
Economic, Social and Cultural Rights’ (7 July 2000) UN Doc E/C.12/2000/6, para 26.
8

88 NGOs: Embedding the Covenants in the National Context

ICCPR, the Centre for Civil and Political Rights, which is involved in the follow-up
phase, suggests several activities that may be carried out by national NGOs in order
to raise awareness of the Committee’s recommendations.62 These activities include
translating the concluding observations into national languages,63 organizing press
conferences,64 or writing op-ed pieces,65 all with the same goal in mind: to en-
sure that the different stakeholders, and more broadly the public, are aware of the
Committees’ recommendations.

2. Engaging with national stakeholders

Too often, NGOs limit their activities to lobbying the Committees whilst their
country is under review, since they want to make sure that their main subjects of
concern are considered seriously. They tend to forget that similar if not greater effort
should be made to ensure that national authorities take the concluding observations
seriously and initiate concrete action to implement them. It is therefore strongly
recommended that NGOs initiate a medium-or long-term dialogue with national
authorities, firstly to ensure that the latter are aware of the concluding observations,
and secondly to learn more about any action taken by governments to implement
the recommendations.
In order to initiate this dialogue with national authorities, the Centre for Civil
and Political Rights, jointly with national NGOs, organizes regular in-country visits
with members of the HRC.66 These visits, though unofficial, are nonetheless organ-
ized in full cooperation with national authorities.67 The various follow-up visits have
shown that the authorities take these visits seriously and appreciate the possibility
to continue the dialogue initiated during the review of the State report. Experience
has shown that these visits are crucial for disseminating information about what is
required of the State, as most of the stakeholders concerned are not aware of the
concluding observations. This is also true for the members of Parliament, who are
usually not part of the State delegation and do not participate in the review. They
are often not aware of the recommendations made by the Committees, which raises

62 Brett and Mutzenberg, ‘NGO Guidelines’ (n 3) 18.

63 See eg the translation of the concluding observations on the second periodic report of Cambodia
(HRC, ‘Concluding Observations: Second Report of Cambodia’ (n 37)) into Khmer (<http://
ccprcentre.org/files/documents/CO-cambodia.pdf> accessed 4 April 2017).
64 See eg the press conference organized in Abidjan by the NGO coalition in Ivory Coast on the
review of the State report (‘La situation des droits de l’Homme en Côte d’Ivoire examinée mercredi à
Genève’ (13 March 2015) <http://news.abidjan.net/h/528710.html> accessed 4 April 2017).
65 See eg the op-ed written after the review of South Korea in October 2015 (Jung Hwan-bong and
Choi Hyun-june, ‘UN review finds regression on human rights in S. Korea’ (7 November 2015) <http://
english.hani.co.kr/arti/english_edition/e_national/716404.html> accessed 4 April 2017).
66 The Centre for Civil and Political Rights has carried out several follow-up visits since 2010. See
the 2014 annual report for an overview of the follow-up visits carried out recently (Centre for Civil and
Political Rights, ‘2014 Annual Report’ <http://ccprcentre.org/doc/2015/07/annual-rep-Online-View.
pdf> accessed 4 April 2017).
67 The follow-up visits are always discussed with national authorities and the agenda as well as the
date of such visits are agreed with the Permanent Missions to the United Nations Office at Geneva.
89

The Emerging Role of NGOs Regarding Implementation 89

concerns about their role in the implementation of these recommendations in rela-

tion to new legislation or amendments to existing laws.
In a few countries, national NGOs have been encouraged to adopt plans in order
to better monitor the action taken by the authorities to implement recommenda-
tions. Such plans of action include regular meetings with authorities and in par-
ticular with the governmental bodies in charge of cooperation with the UNTB.68
The possibility of organizing such activities depends very much on the national con-
text and the willingness of the State authorities to cooperate with civil society. It is
clear that follow-up activities are not possible in countries where civil society cannot
work freely or is reduced to silence. For instance, recent reviews by the HRC of
Uzbekistan, Turkmenistan, Yemen, or Sudan offered no opportunity for follow-up
activities, either because of the absence of national NGOs or because of the States’
refusal to initiate a dialogue with civil society.

B. Participation in the committees’ follow-up procedure

1. The embryonic follow-up procedure of the CESCR
The follow-up procedure to the concluding observations was initially developed by
the CESCR back in 1999.69 This procedure authorizes the Committee to ‘ask the
State party to respond to any pressing specific issue identified in the concluding
observations prior to the date that the next report is due to be submitted’.70 NGOs
can submit written information to the Committee, providing that it is specifically
related to the recommendations selected for the follow-up procedure. As stated in
its working methods, the Committee will ‘consider and act upon the information
received from sources other than a State party only in cases where such information
has been specifically requested in its Concluding Observations’.71 It is also specified
that, with regard to other information (ie information not related to the recom-
mendations selected for the follow-up procedure), the Committee is not ‘in a pos-
ition to consider and act upon such information without reopening its dialogue with
a State party’72 and will only consider this information in the subsequent review.
Analysis of the work of the CESCR shows that this procedure was not applied
until very recently, and that the Committee was more inclined to request follow-up
information to be reviewed at the occasion of the subsequent review. After a long
debate, the CESCR finally decided in June 2017 to use its follow-up procedure in
a more comprehensive way and to systematically identify up to three follow-up re-
commendations. In that regard, the Committee updated its working methods on

68 In many countries, there is a specific body in charge of the implementation of the recommenda-
tions, namely the National Mechanism for Reporting and Follow-up (NMRF). This body is a key partner
for NGOs willing to engage with the government on follow-up to the UNTBs’ recommendations. For
more on the role of the NMRF, see OHCHR, ‘A Practical Guide to Effective State Engagement with
International Human Rights Mechanisms’ (2016) <www.ohchr.org/Documents/Publications/HR_
PUB_16_1_NMRF_PracticalGuide.pdf> accessed 4 April 2017.
69 CESCR, ‘Report on the Twentieth and Twenty-first Sessions’ (1999) UN Doc E/C.12/1999/11,
Official Records of the Economic and Social Council 2000, Supplement No 2, 19, para 38.
70 ibid. 71 CESCR, ‘Working Methods’ (n 45) para 44. 72 ibid.
90

90 NGOs: Embedding the Covenants in the National Context

follow-up and formally adopted a note73 which reaffirms that information from
NGOs is welcome. This information has to be sent ‘within 18 months after the
adoption of the concluding observations or, at the latest, one month after the State
party’s follow-up report is made public’.74 The note also clarifies that information
submitted to the CESCR is made public.75
During the same June 2017 session, the CESCR decided to initiate a follow-up
procedure to the Views adopted under the OP-ICESCR.76 The working methods
for this new procedure also provide the possibility for NGOs to engage with the
CESCR, although this engagement is limited to the submission of information
‘concerning the implementation of general recommendations’.77 Moreover, the
CESCR decided that the State party concerned will be able to comment upon the
information provided by NGOs.78
At this stage, the opportunity for NGOs to participate in the follow-up procedure
remains rather limited, although these recent developments will certainly prompt a
stronger engagement from the NGO community.

2. The key role of NGOs in the follow-up procedure of the HRC

The practice adopted by the HRC is different from that of the CESCR, and allows
for better interaction with civil society. Initiated in 200179 and further developed in
2013, the procedure foresees a specific role for NGOs. According to this follow-up
procedure,80 the HRC systematically selects between two and four recommenda-
tions as priorities and requests that States parties provide follow-up information
within a one-year timeframe.81 In his report, the Special Rapporteur responsible
for the follow-up to concluding observations assesses the measures taken by the na-
tional authorities to implement the recommendations, with specific criteria on this
adopted by the HRC in October 2011.82 The HRC welcomes NGO submissions

73 CESCR, ‘Note on the Procedure for Follow-up to Concluding Observations’ (2017) <www.
ohchr.org/Documents/HRBodies/CESCR/Follow-upConcludingObservations.docx> accessed 21
July 2017.
74 ibid para 4. 75 ibid para 4.
76 CESCR, ‘Working Methods Concerning the Committee’s Follow-up to Views under the
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2017)
<www.escr-net.org/node/389644> accessed 21 July 2017.
77 ibid para 4. 78 ibid para 4.
79 HRC, ‘Note by the HRC on the Procedure for Follow-up to the Concluding Observations’ (21
October 2013) UN Doc CCPR/C/108/2. For the history of the procedure, see Patrick Mutzenberg,
‘Agir pour la mise en œuvre des droits civils et politiques: l’apport du Comité des droits de l’homme’
(l’Harmattan 2014) 193.
80 For a complete overview of the follow-up procedure of the HRC, see HRC, ‘Note on Follow-up’
(n 79).
81 ibid para 7.
82 The replies received by the States parties are assessed against the following criteria: category
A: Reply largely satisfactory; category B: Reply/action partially satisfactory; category C: Reply/action
not satisfactory; category D: No cooperation with the Committee; and category E: The information or
measures taken are contrary to or reflect rejection of the recommendation. See HRC, ‘New Assessment
of Follow-up replies’ <http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/
INT_CCPR_FGD_8108_E.pdf> accessed 10 February 2018.
91

The Emerging Role of NGOs Regarding Implementation 91

as long as they focus on the recommendations selected for the follow-up procedure.
These reports allow NGOs to indicate to the Committee the extent to which the
recommendations have been effectively implemented.83 Despite some suggestions
to this end made by NGOs, the follow-up procedure does not allow NGOs to orally
brief the HRC.84
The majority of States parties submit their follow-up reports to the HRC,85 which
in turn routinely analyses the measures taken to implement the recommendations
and assesses the States parties based on the criteria mentioned above.86 Similarly,
civil society organizations are now generally familiar with the follow-up procedure,
and the HRC receives numerous NGO follow-up reports each year. NGO feedback
is systematically integrated into the reports of the Follow-up Rapporteur and usu-
ally taken into account in the follow-up assessment, although in some instances the
HRC puts forth an alternative evaluation to that suggested by NGOs.87
The HRC has also reinforced its follow-up procedure regarding the Views
adopted under the OP1-ICCPR, endorsing a similar approach to that developed
regarding the concluding observations.88 In its Guidelines for NGOs, the HRC
has ‘encouraged [NGOs] to submit follow-up information on the implementation
of the Committee’s Views’.89 As in the follow-up to the concluding observations,
the Committee’s follow-up progress report on individual communications includes
all of the information received from NGOs regarding measures taken to provide

83 In order to support the work of NGOs in effectively reporting to the HRC, the Centre for Civil
and Political Rights developed a template for the NGO follow-up report. It focuses on the measures
taken by the authorities to ensure the implementation of recommendations and suggests additional ac-
tion to fully implement them. It also includes similar categories of assessment to those adopted by the
HRC. See Brett and Mutzenberg, ‘NGO Guidelines’ (n 3) 18 and HRC, ‘Note on Follow-up’ (n 79).
84 The Committee Against Torture is the only UNTB that allocates a specific time to a formal NGO
briefing dedicated to the follow-up to the concluding observations (see Committee against Torture,
‘Working Methods’ <www.ohchr.org/EN/HRBodies/CAT/Pages/WorkingMethods.aspx> accessed 4
April 2017, Part VIII: ‘Participation of NGOs and NHRIs [national human rights institutions] in the
activities of the Committee’).
85 The HRC has a specific webpage on the follow-up procedure where all the follow-up State
reports are available (<http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/FollowUp.
aspx?Treaty=CCPR&Lang=en> accessed 4 April 2017).
86 One meeting per session is devoted to the follow-up to the concluding observations and to the
Views, wherein the report of the Follow-up Rapporteur is adopted in a public meeting and posted on the
relevant webpage of the session. See eg the HRC, ‘Report on Follow-up to the Concluding Observations
of October 2015’ (21 December 2015) UN Doc CCPR/C/115/2 <http://tbinternet.ohchr.org/_lay-
outs/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f115%2f2&Lang=en> accessed
4 April 2017.
87 See eg the assessment of the follow-up report of Guatemala, in particular recommendation 7
(HRC, ‘Report of the Special Rapporteur for Follow-up to Concluding Observations’ (8 December
2014) UN Doc CCPR/C/112/2).
88 The follow-up procedure on individual communications was established in July 1990 (39th session)
according the HRC’s Rules of Procedure, Rule 101 (HRC, ‘Rules of Procedure’ (n 26)). The adoption of
categories of assessment to monitor the implementation of Views was initiated in October 2013 (109th
session). See the introduction of HRC, ‘Follow-up Progress Report on Individual Communications’ (29
June 2015) UN Doc CCPR/C/113/3, para 3: ‘[a]‌t its 109th session [in October 2013], the Committee
decided to include in its reports on follow-up to Views an assessment of the replies received from and
action taken by States parties. The assessment is based on the criteria applied by the Committee in the
procedure for follow-up to its concluding observations’.
89 See HRC, ‘Relationship with NGOs’ (n 10) part B, para 13.
92

92 NGOs: Embedding the Covenants in the National Context

support and solutions for victims of human rights violations.90 This information is
systematically taken into consideration when the HRC assesses the implementation
of its recommendations.91

C. Difficulties for NGOs in engaging systematically

with the UN treaty body system
Despite a certain rigidity of the process of NGO engagement at the CESCR and the
HRC, the level of NGO engagement is remarkably high. It is not only limited to the
review itself, but also includes a strong involvement of civil society in the follow-up
phase, at least as far as the HRC is concerned. The main challenge for NGOs is, ra-
ther, related to the capacity to consider the UNTB as a global and coherent system
wherein the findings of the Committees should echo each other. So far, very few
NGOs have managed to obtain such a global picture of the work of all of the UNTB
on one given country. It is, in fact, difficult to find examples of NGOs that have en-
gaged several UNTB on the same issues, thereby trying to establish links between
the findings made by two or more Committees. This ‘silo’ approach undermines
the efficiency of the advocacy strategy of civil society organizations that do not take
the opportunity to address the same issue through various channels, and thus be-
fore various UNTB. The lack of a concerted approach on how NGOs address the
issue of torture and cruel, inhuman, and degrading treatment and punishment in
their advocacy work before the HRC and the Committee Against Torture (CAT) is
illustrative. Indeed, in most of the recent appearances of particular States before the
two bodies, none of the NGO submissions made direct reference to the review (and
the findings) of the other Committee, therefore missing an opportunity to further
advocate for specific measures to address the issue.92
The same ‘silo’ approach can be observed regarding advocacy efforts in the context
of the Universal Periodic Review (UPR) procedure established by the Human Rights
Council. Observers admit that the level of NGO engagement is important and that
it represents one of the positive outcomes of this process.93 However, analysis of the

90 Information is also frequently submitted by the representatives of the author of a complaint.

91 The HRC’s follow-up progress reports on individual communications are available online (<www.
ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx> accessed January 2016).
92 See eg the review of Colombia by the CAT in May 2015 (CAT, ‘Concluding Observations on
the Fifth Periodic Report of Colombia’ (29 May 2015) CAT/C/COL/CO/5) and by the HRC in July
2016 (HRC, ‘Concluding Observations on the Seventh Periodic Report of Colombia’ (17 November
2016) CCPR/C/COL/CO/7). None of the NGOs that engaged with the CAT submitted information
to the HRC. Similarly, there was no NGO report submitted to the HRC that refers to the previous
CAT review. See also the review of the former Yugoslav Republic of Macedonia before the CAT in May
2015 (CAT, ‘Concluding Observations on the Third Periodic Report of the Former Yugoslav Republic
of Macedonia’ (5 June 2015) CAT/C/MKD/CO/3) and the HRC in July 2015 (HRC, ‘Concluding
Observations on the Third Periodic Report of the former Yugoslav Republic of Macedonia’ (16 August
2015) CCPR/C/MKD/CO/3), where none of the NGOs were in a position to submit a report to both
Committees.
93 See Ben Shokman and Phil Lynch, ‘Effective NGO Engagement with the Universal Periodic
Review’ in Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic
Review: Rituals and Ritualism (CUP 2015) 126.
93

Conclusion 93

submissions of NGOs to the UPR shows that most of the written information re-
fers neither to the findings of the UNTB nor to the State implementation measures
taken in response.94 This is also the case when the same NGOs engage first with one
specific Committee and then later on with the UPR.
The difficulties facing NGOs in streamlining their engagement before the UNTB
echoes the struggle of the UNTB themselves to work in a more coherent and sys-
tematic manner and to create links amongst themselves and vis-à-vis the UPR.
This can be explained by the variety of procedures available before the Committees
and by the absence of a fixed and harmonized calendar of Committee reviews. It
is also linked to difficulties in accessing the documents related to the UNTB re-
porting procedures and in extracting the relevant information from the various
Committees’ reports.
The capacity to digest all of the relevant information and to develop advocacy
strategies that include a systematic and coordinated engagement before the dif-
ferent UN human rights mechanisms is certainly one of the main challenges ahead
for NGOs.

IV. Conclusion

The purpose of this chapter has been to present the ways in which the HRC and
the CESCR have developed a space for NGOs in their regular activities. Whilst the
role of NGOs was not explicitly mentioned in the ICCPR or the ICESCR, both
Committees have developed their practices over the years and have since established
clear proceedings to ensure the meaningful participation of NGOs in all areas of
work carried out by them. In practice, NGOs are more active in the context of the re-
porting procedure, submitting dozens of reports for each session prior to the List of
Issues or for the review itself. Despite having to undergo a quite technical procedure,
NGOs attend the Committees’ sessions in large numbers, especially when there
are specific meetings devoted to direct interaction between NGOs and Committee
members. There is strong evidence to support the conclusion that concerns high-
lighted by NGOs are taken into serious consideration by the Committees, both
in the case of global reports covering several provisions as well as thematic reports,
which are usually fully reflected in the Committees’ findings. However, NGO par-
ticipation varies widely from one country to another, and in some instances there
has been a complete lack of civil society involvement in the review process. This is of

94 See eg the UPR review of Mongolia that took place May 2015 (UNGA, ‘Report of the Working
Group on the Universal Periodic Review: Mongolia’ (13 July 2015) A/HRC/30/6), four years after
the HRC’s review in March 2011 (HRC, ‘Concluding Observations on the Fifth Periodic Report of
Mongolia’ (2 May 2011) CCPR/C/MNG/CO/5). The submissions of NGOs to the UPR procedure
hardly reflected the findings and recommendations of the HRC (only two out of sixteen NGO reports
made such a link). Moreover, no information was provided about the measures taken by the State party
to implement these recommendations. See the compilation of the reports of NGOs on the UPR of
Mongolia (<www.upr-info.org/en/review/Mongolia/Session-22---May-2015/Civil-society-and-other-
submissions#top> accessed 4 April 2017).
94

94 NGOs: Embedding the Covenants in the National Context

particular concern, as consequently the voice of civil society remains unheard and
unrepresented in the Committees’ findings.
Nonetheless, the role of NGOs is not limited to direct interaction with the HRC
and the CESCR. Indeed, NGOs are taking an increasingly active role to ensure that
the Committees’ recommendations are actually implemented at the national level.
This is a significant and recent trend demonstrated especially by the broad range of
activities undertaken by NGOs, including lobbying governments to ensure that
recommendations are taken seriously as well as monitoring the measures taken to
implement them.
The outcome of these developments is that NGOs are now engaged in a more
long-term process, whereby the reporting procedure is considered as part of a cycle
that includes activities prior to and after the review. Ultimately, this long-term en-
gagement between the Committees and civil society is key to ensuring that change
actually occurs at the national level. These developments will hopefully coincide
with and catalyse a process that will serve to further improve and harmonize the
Committees’ methods of work, with the ultimate objective being to see the UNTB
working in a more coherent and coordinated way.

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and the Human Rights Committee’ (2013) 15 Intl Community L Rev 359
Mahon, Claire, ‘Progress at the Front: The Draft Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights’ (2008) 8 Human Rights L Rev 617
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Convergence? (Intersentia 2004)
96
97

PA RT I I
THE PRESENT
What Is the Influence of the Covenants?
98
9

6
Influence of the ICESCR in Africa
Manisuli Ssenyonjo

I. Introduction

16 December 2016 marked fifty years since the United Nations (UN) General
Assembly adopted the International Covenant on Economic, Social and Cultural
Rights (the ICESCR or the Covenant),1 the most comprehensive international
treaty protecting economic, social, and cultural rights (ESCR), in 1966. Despite
the ratification of the ICESCR by the vast majority (90 per cent) of African States,2
there are no studies evaluating the ‘influence’ (effect) of the Covenant in Africa. As of
May 2017, with the exception of only six states (Botswana, Comoros, Mozambique,
the Sahrawi Arab Democratic Republic, São Tomé and Príncipe, and South Sudan),
all other African states were parties to the ICESCR. Out of these, only eight States—
Algeria, Egypt, Guinea, Kenya, Libya, Madagascar, South Africa, and Zambia—had
entered reservations or made declarations to the ICESCR, in particular to article
13(2)(a) relating to the provision of ‘compulsory and free’ primary education.3 It
should be noted that, by the time the ICESCR entered into force on 3 January 1976,
only seven African States had ratified the Covenant.4 Eighteen more African States
ratified the Covenant between 1976 and 1989.5 The remaining twenty-three African
States ratified the Covenant beginning in 1990, following increased global attention

1 International Covenant on Economic, Social and Cultural Rights (opened for signature 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
2 By December 2016, the following forty- nine African States were States parties to the
ICESCR: Algeria, Angola, Benin, Burkina Faso, Burundi, Cape (Cabo) Verde, Cameroon, the Central
African Republic (CAR), Chad, Congo, Côte d’Ivoire (Ivory Coast), the Democratic Republic of the
Congo (DRC), Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, the Gambia, Ghana,
Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania,
Mauritius, Morocco, Namibia, Niger, Nigeria, Rwanda, Senegal, Seychelles, Sierra Leone, Somalia,
South Africa, Sudan, Swaziland, Togo, Tunisia, Uganda, the United Republic of Tanzania, Zambia,
and Zimbabwe. Comoros and São Tomé and Príncipe had signed the Covenant but had not ratified it.
See United Nations Treaty Collection (UNTC), ‘ICESCR’ <https://treaties.un.org/doc/Publication/
MTDSG/Volume%20I/Chapter%20IV/IV-3.en.pdf> accessed 20 June 2016.
3 ibid.
4 These were Kenya, Libya, Madagascar, Mali, Mauritania, Rwanda, and Tunisia.
5 These were Algeria, the CAR, Cameroon, Congo, the DRC, Egypt, Gabon, the Gambia, Guinea,
Equatorial Guinea, Morocco, Niger, Sudan, Senegal, Togo, Uganda, the United Republic of Tanzania,
and Zambia.

100 Influence of the ICESCR in Africa

to the principles of universality, indivisibility, interdependence, and interrelatedness
of all human rights6 and the adoption of new (democratic and liberal) constitu-
tions in Africa7 protecting (some) ESCR alongside civil and political rights.8 In
addition, thirteen African States had signed the Optional Protocol to the ICESCR
by December 2016,9 though only four of these (Cape Verde, the CAR, Gabon, and
Niger) had ratified it. The Covenant, therefore, enjoys widespread support in Africa,
at least viewed in terms of ratification. What has been the influence of the Covenant
on the protection of human rights in Africa at both regional and domestic levels?
The term ‘influence’ is used in this chapter to refer to the Covenant’s effect upon
laws, policies, and practices in Africa that directly or indirectly contribute to the
respect, protection, and fulfilment of ESCR. Key indicators of the Covenant’s influ-
ence include: changes in laws and policies protecting ESCR at regional and national
levels, including constitutional provisions and courts’ jurisprudence; the domestic
enforcement of such laws, including the availability and accessibility of effective
remedies in instances in which ESCR are violated; and the practical enjoyment of
ESCR. Has the Covenant had any influence on the African regional human rights
instruments? What has been the influence of the Covenant, if any, on the constitu-
tional protection of human rights and on national courts’ jurisprudence in Africa?
It is widely accepted that the ratification of international human rights treaties is
meaningful if the rights guaranteed in the relevant treaties have an effect upon do-
mestic (national or municipal) protection of human rights, and effective remedies
for violations of the protected rights are available and accessible at the domestic
level.10 Although the mere ratification of international treaties by States with poor
human rights records without translating them into domestic law and policy does
not necessarily result in improved outcomes in terms of human rights realization
and redress of violations,11 it might represent ‘the initiation, culmination, or recon-
figuration of a domestic political struggle’ for better human rights practices.12
On the occasion of the fiftieth anniversary of the ICESCR in 2016, this chapter
considers the influence of the ICESCR in Africa. To place the Covenant in the

6 ‘Vienna Declaration and Programme of Action’ UN World Conference on Human Rights (Vienna,
14–25 June 1993) (25 June 1993) UN Doc A/CONF.157/24 (Part I) 20, para 5.
7 See Henry Kwasi Prempeh, ‘Africa’s “Constitutionalism Revival”: False Start or New Dawn?’
(2007) 5 Intl J of Constitutional L 469.
8 Christof H Heyns and Waruguru Kaguongo, ‘Constitutional Human Rights Law in Africa: Current
Developments’ (2006) 22 South African J on Human Rights 673. See also the Constitutions of the fifty-
four African Union member States (African Law Library, ‘African Constitutions Collection’ <www.
africanlawlibrary.net/web/constitutions/overview> accessed 20 June 2016 and African Legal Centre,
‘Constitutions of African Countries’ <http://africanlegalcentre.org/constitutions-african-countries/>
accessed 20 June 2016.
9 These were Angola, Benin, Burkina Faso, Cape (Cabo) Verde, Congo, the DRC, Gabon, Ghana,
Guinea-Bissau, Mali, Niger, Senegal, and Togo. See UNTC, Optional Protocol to the ICESCR
<https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-3-a.en.pdf> ac-
cessed 20 June 2016.
10 See African Commission on Human and Peoples’ Rights (the African Commission), Anuak Justice
Council v Ethiopia, Communication No 299/05, 25 May 2006, AHRLR 97 (ACHPR 2006) paras 47–48.
11 Oona A Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale L J 1870.
12 Ryan Goodman and Derek Jinks, ‘Measuring the Effects of Human Rights Treaties’ (2003) 14
European J of Intl L 171, 174.
10

Influence of the ICESCR on the African Regional Human Rights System 101

African regional human rights context, the analysis begins by discussing, in Section
II, the influence of the ICESCR on the African regional human rights system. It
then goes on to examine, in Section III, the influence of the ICESCR upon consti-
tutional protection of human rights in Africa, drawing on examples from former
British colonies in Africa (which apply a ‘dualist’ approach to the ICESCR) and
former French and Portuguese colonies (which apply a ‘monist’ approach). It con-
siders whether the rights protected in the ICESCR are part of national (‘municipal’,
‘domestic’, or ‘internal’) constitutional law in African States and, if so, where these
rights feature in the hierarchy of the domestic legal order. The focus is primarily on
the influence of the ICESCR on the constitutional protection of ESCR, because this
is the most effective means of protecting human rights in Africa. All African States
have, as their supreme law, national constitutions that protect human rights. The
analysis examines whether the rights in the ICESCR have been invoked before, or
‘applied’ by, national courts in Africa. The chapter ends, in Section IV, with some
concluding remarks about the influence of the Covenant in Africa on the occasion
of its fiftieth anniversary, and comments on what needs to be done to maximize the
influence of the ICESCR in the future.

II. Influence of the ICESCR on the African

Regional Human Rights System

At the outset, it must be noted that the ICESCR influenced the drafting, legal pro-
tection, and development of ESCR in the African Charter on Human and Peoples’
Rights (African Charter),13 the African Union’s primary human rights treaty, which
was adopted on 27 June 1981, fifteen years after the adoption of the ICESCR. The
African Charter, in articles 15–19, explicitly recognizes the following rights, which
are also protected in the ICESCR: the right to self-determination, the right to work
under equitable and satisfactory conditions, the right to enjoy the best attainable
state of physical and mental health, the right to education, the protection of the
family, and cultural rights. Although the formulation of the rights in the Charter
is narrower than in the ICESCR, the Charter empowers the African Commission
on Human and Peoples’ Rights (the African Commission) to ‘draw inspiration
from international law on human and peoples’ rights’,14 particularly from UN in-
struments such as the ICESCR, when interpreting the Charter. On this basis, the
African Commission has relied on the ICESCR to develop the scope and content of
ESCR as well as the corresponding State obligations.
For instance, in its 2016 Resolution on the Right to Education in Africa, the
Commission specifically considered article 13 of the ICESCR and urged African
States to ‘guarantee the full scope of the right to education’, including the ‘provision of

13 African Charter on Human and Peoples’ Rights (opened for signature 27 June 1981, entered
into force 21 October 1986) (1982) 21 ILM 58, ratified by fifty-three member States of the African
Union (AU).
14 ibid art 60.
102

102 Influence of the ICESCR in Africa

pre-school, primary, secondary, tertiary, adult education and vocational training’.15
Using the wording in ICESCR article 2, it called on States to adopt all necessary
and ‘appropriate’ measures to the ‘maximum of available resources’ to promote,
provide, and facilitate access to education for all in Africa.16 Moreover, in 2010,
the Commission adopted principles and guidelines on ESCR in Africa,17 largely
drawing inspiration from the ICESCR and the General Comments of the UN
Committee on Economic, Social and Cultural Rights (CESCR), which have de-
veloped the normative content of ESCR and State obligations since the 1990s.18
For example, in a decision adopted in 2009, the Sudan Human Rights Organisation
and Centre on Housing Rights and Evictions v the Sudan (the COHRE case),19 the
Commission elaborated on the scope of the right to health under article 16 of
the African Charter by relying on the interpretation of the right to health under
the ICESCR. In this communication, the complainants alleged gross, massive, and
systematic violations of human rights by the Republic of Sudan (involving the de-
struction of homes, livestock, and farms as well as the poisoning of water sources)
against the indigenous Black African tribes in the Darfur region of Western Sudan,
in particular members of the Fur, Marsalit, and Zaghawa tribes. It was claimed that
the Republic of Sudan was complicit in looting and destroying foodstuffs, crops,
and livestock as well as poisoning wells and denying access to water sources in the
Darfur region, in violation of article 16. The Commission gave the right to health
meaningful content by relying on the normative definition of that right as spelt out
by the CESCR in its General Comment 14 on the ‘right to the highest attainable
standard of health’.20 The Commission stated that:
In its General Comment No. 14 on the right to health adopted in 2000, the UN Committee
on Economic, Social and Cultural Rights sets out that, ‘the right to health extends not only to
timely and appropriate health care but also to the underlying determinants of health, such as,
access to safe and portable water, an adequate supply of safe food, nutrition, and housing . . . ’.
In terms of the General Comment, the right to health contains four elements: availability,
accessibility, acceptability and quality, and impose three types of obligations on States—to
respect, fulfil and protect the right. In terms of the duty to protect, the State must ensure that
third parties (non-state actors) do not infringe upon the enjoyment of the right to health.

15 AU ‘Resolution on the Right to Education in Africa’ (20 April 2016) ACHPR/ Res.346
(LVIII) 2016.
16 ibid.
17 See African Commission, ‘Principles and Guidelines on the Implementation of Economic, Social
and Cultural Rights in the African Charter on Human and Peoples’ Rights’ (47th Ordinary Session
of the African Commission, Banjul, 12–26 May 2010) <www.achpr.org/files/instruments/economic-
social-cultural/achpr_instr_guide_draft_esc_rights_eng.pdf> accessed 20 June 2016.
18 The General Comments of the CESCR have been published in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies’ (27 May 2008) HRI/GEN/1/Rev.9 (vol I) and at <http://tbinternet.ohchr.org/_layouts/
treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11> accessed 20 June 2016.
19 Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v the Sudan,
Communication Nos 279/03 and 296/05 (27 May 2009) EX.CL/600(XVII), Annex V (hereafter the
COHRE case).
20 CESCR, ‘General Comment 14’ in ‘Compilation of General Comments’ (2008) (vol I) (n 18).
103

Influence of the ICESCR on the African Regional Human Rights System 103
. . . Violations of the right to health can occur through the direct action of States or other
entities insufficiently regulated by States. According to General Comment 14, ‘states should
also refrain from unlawfully polluting air, water and soil . . . during armed conflicts in viola-
tion of international humanitarian law . . . States should also ensure that third parties do not
limit people’s access to health-related information and services, and the failure to enact or
enforce laws to prevent the pollution of water . . . [violates the right to health]’.21
Applying this understanding of the right to health—as extending to healthcare and
the underlying determinants of health—to the facts, the Commission found that
‘the destruction of homes, livestock and farms as well as the poisoning of water
sources, such as wells exposed the victims to serious health risks and amounts to a
violation of article 16 of the Charter’.22 It is likely that in appropriate future com-
munications the Commission will continue to rely on the General Comments of
the CESCR to interpret ESCR rights under the Charter, as it did in the Centre for
Minority Rights Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council v Kenya23 and in SERAC and CESR v Nigeria.24
Accordingly, the Commission has interpreted the Charter as implicitly recog-
nizing other ESCR which are protected by the ICESCR but not explicitly restated
in the Charter, for example the right to an adequate standard of living (adequate
food, clothing, housing, water, and sanitation), the right to social security, the right
to rest and leisure, and the right to form and join trade unions.25 This is so despite
the fact that these rights were deliberately omitted from explicit protection in the
African Charter so as to ‘spare young states too many but important obligations’.26
The African Court on Human and Peoples’ Rights (ACtHPR or the Court) has also
confirmed in African Commission on Human and Peoples’ Rights v Republic of Kenya
that, by virtue of articles 60 and 61 of the African Charter, it will draw inspiration

21 The COHRE case (n 19) paras 209 and 210, emphasis removed. 22 ibid para 212.
23 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf
of Endorois Welfare Council v Kenya, Communication No 276/2003 (25 November 2009) 27th Activity
Report of the African Commission on Human and Peoples’ Rights, para 200 (hereafter the Endorois case),
citing with approval CESCR, ‘General Comment 4’ in ‘Compilation of General Comments’ (2008)
(vol I) (n 18) para 18; and CESCR, ‘General Comment 7’ in ‘Compilation of General Comments’
(2008) (vol I) (n 18) para 14.
24 African Commission, Social and Economic Rights Action Center and Center for Economic and Social
Rights v Nigeria, Communication No 155/96, 27 October 2001, AHRLR 60 (ACHPR 2001) (hereafter
SERAC and CESR v Nigeria).
25 See eg SERAC and CESR v Nigeria (n 24), paras 60 and 65 (the Commission implied that the
rights to housing or shelter and food are protected by the African Charter (n 13)); African Commission,
Sudan Human Rights Organisation and Another v Sudan, Communication Nos 279/03 & 296/05,
27 May 2009, AHRLR 153 (ACHPR 2009), para 212 (the Commission stated that art 16 of the
African Charter, which protects the right to health, implicitly protects the rights to adequate food and
housing, including the prohibition on forced evictions, and also guarantees the right to water); African
Commission, ‘Guidelines for National Periodic Reports 1989’ <www.achpr.org/instruments/guide-
lines_national_periodic_reports/> accessed 20 June 2016, paras II.A.31–34, para II.18, paras 9, 10, and
17; African Commission on Human and Peoples’ Rights ‘Resolution on Economic, Social and Cultural
Rights in Africa’ (7 December 2004) ACHPR/Res.73(XXXVI)04(2004), adopting the ‘Statement on
Social, Economic and Cultural Rights in Africa’ (17 September 2004) (2005) 5 African Human Rights
L J 182, para 10.
26 See Rapporteur’s Report on the Draft African Charter on Human and Peoples’ Rights, OAU Doc
CAB/LEG/67/Draft Rapt Rpt (II) rev 4, para 13.
104

104 Influence of the ICESCR in Africa

from ‘other human rights instruments’ including the ICESCR and the CESCR’s
General Comments to interpret the rights protected by the Charter.27 In this case
the Court found, inter alia, that the Republic of Kenya interfered with the enjoy-
ment of the right to culture of the Ogiek population by evicting them from the Mau
Forest, thereby restricting them from exercising their cultural activities and prac-
tices, in violation of article 17(2) and (3) of the African Charter. In arriving at this
conclusion, the Court specifically relied on the CESCR’s General Comment 21 to
interpret the right to take part in cultural life under article 17 of the African Charter,
observing that:
The UN Committee on Economic, Social and Cultural Rights, in its General Comment on
Article 15 (1)(a) also observed that ‘the strong communal dimension of indigenous peoples’
cultural life is indispensable to their existence, well-being and full-development, and includes
the right to the lands, territories and resources which they have traditionally owned, occupied
or otherwise used or acquired’.28
As a result, the Court accepted that the Ogiek population, as indigenous peoples,
had the right to occupy their ancestral lands in the Mau Forest, as well as use and
enjoy the said lands.
In addition, the African Commission’s interpretation of the right to development
under article 22 of the African Charter has been influenced by the ICESCR. The
Commission has thus interpreted this right as ‘an inalienable, individual or col-
lective right, to participate in all forms of development, through the full realisation
of all fundamental rights, and to enjoy them without unjustifiable restrictions’.29 It
follows that the right to development imposes obligations on States to respect, pro-
tect, and fulfil ‘all fundamental rights’, including civil and political rights as well as
all ESCR. In this respect, the Commission has confirmed that ‘[t]‌he right to devel-
opment will be violated when the development in question decreases the well-being
of the community’.30 Such well-being entails all ESCR protected in the ICESCR,
such the right to housing, including the freedom ‘to choose where to live’,31 the right
to water and sanitation,32 the right to adequate food,33 and the right to economic
self-determination, that is, the right of all peoples to ‘freely dispose of their wealth
and natural resources’.34
The content of some treaty provisions protecting ESCR in other, later African
Union regional human rights treaties protecting specific vulnerable groups such as
children, women, the youth, internally displaced persons, persons with disabilities,
and older persons—in particular, the African Charter on the Rights and Welfare

27 African Commission on Human and Peoples’ Rights v Republic of Kenya App no 006/2012 (ACtHPR,
26 May 2017) para 108.
28 ibid para 181, referring to CESCR, ‘General Comment 21’ (21 December 2009) UN Doc E/
C.12/GC/21, paras 36–37.
29 Open Society Justice Initiative v Côte d’Ivoire, Communication No 318/06 (27 May 2016), 38th
Activity Report of the African Commission on Human and Peoples’ Rights, para 183 (emphasis added).
30 The Endorois case (n 23) para 294 (emphasis added). 31 ibid para 278.
32 ibid paras 87–92. 33 SERAC and CESR v Nigeria (n 24).
34 Democratic Republic of the Congo v Burundi, Rwanda and Uganda, Communication No 227/99
(29 May 2003) EX.CL/279 (IX), para 95; African Charter (n 13) art 21.
105

Influence of the ICESCR on the African Regional Human Rights System 105

of the Child;35 the Protocol to the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa;36 the African Youth Charter;37 the Convention
for the Protection and Assistance of Internally Displaced Persons;38 the Draft
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Persons with Disabilities in Africa;39 and the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Older Persons in Africa40—were
heavily influenced, at least in part, by the ICESCR. The ACtHPR (or any other
court that replaces it in the future) will enforce the ESCR protected in the ICESCR
given that the Protocol to the African Charter on the Establishment of an African
Court on Human and Peoples’ Rights empowers the African Court to consider ‘all
cases and disputes submitted to it concerning the interpretation and application of
the Charter, this Protocol and any other relevant Human Rights instrument ratified
by the States concerned’.41 This means that the Court will interpret relevant provi-
sions of the African Charter in light of the provisions of any applicable international
human rights instrument to which a participating State is a party, including the
International Covenant on Civil and Political Rights (ICCPR),42 the ICESCR, and
the relevant jurisprudence of human rights bodies.43

35 African Charter on the Rights and Welfare of the Child (opened for signature 11 July 1990, en-
tered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49 (1990) art 11 (right to education),
art 12 (leisure, recreation and cultural activities), art 14 (right to health), art 15 (protection against
child labour), art 18 (protection of the family), and art 21 (protection from harmful social and cultural
practices). See also African Committee of Experts on the Rights and Welfare of the Child, Institute
for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on Behalf of
Children of Nubian Descent in Kenya v the Government of Kenya, Decision No 002/Com/002/2009 (22
March 2011) para 65.
36 See Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa (opened for signature 11 July 2003, entered into force 25 November 2005) Second Ordinary
Session of the AU Assembly, Maputo <www.au.int/en/treaties/protocol-african-charter-human-and-
peoples-rights-rights-women-africa> accessed 20 June 2016, arts 12–17, 22–24.
37 See the African Youth Charter (opened for signature 2 July 2006, entered into force 8 August
2009), arts 13–16, 20, and 25.
38 African Union Convention for the Protection and Assistance of Internally Displaced Persons in
Africa (Kampala Convention) (opened for signature 22 October 2009, entered into force 6 December
2012), art 3(b) requires States to ‘[p]‌revent political, social, cultural and economic exclusion and mar-
ginalisation, that are likely to cause displacement of populations or persons by virtue of their social
identity, religion or political opinion’.
39 Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons
with Disabilities in Africa (adopted at the 19th Extra-Ordinary Session of the African Commission
on Human and Peoples’ Rights, held from 16–25 February 2016, not yet adopted by the Assembly of
Heads of State) arts 12–21.
40 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in
Africa (opened for signature 31 January 2016, not yet entered into force) arts 2–19.
41 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African
Court on Human and Peoples’ Rights (opened for signature 10 June 1998, entered into force 25 January
2004) AU Doc OAU/LEG/EXP/AFCHPR/PROT(III) arts 3 and 7. See also the Protocol on the Statute
of the African Court of Justice and Human Rights (opened for signature 1 July 2008, not yet entered
into force) art 28(c).
42 International Covenant on Civil and Political Rights (opened for signature 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171.
43 See eg In the Matter of Alex Thomas v United Republic of Tanzania App No 005/2013 (ACtHPR,
12 November 2015) paras 88, 95–98, 114–121, 124, 130, 146, and 158, in which the Court relied on
art 14(3)(d) of the ICCPR, decisions of the African Commission, judgments of the European Court of
106

106 Influence of the ICESCR in Africa

The African Charter, which entered into force on 21 October 1986, five years
after the entry into force of the ICESCR, places legally binding obligations on States
parties and obliges them to ‘recognize the rights, duties and freedoms’ enshrined
in the Charter and ‘undertake to adopt legislative or other measures to give effect
to them’.44 This entails obligations to ‘respect’, ‘protect’, and ‘fulfil’ all rights pro-
tected by the African Charter, including ESCR.45 As the Charter reaffirms in its
preamble, ‘civil and political rights cannot be dissociated from economic, social
and cultural rights in their conception as well as universality and . . . the satisfaction
of economic, social and cultural rights is a guarantee for the enjoyment of civil and
political rights’.46
The African Commission has thus interpreted civil and political rights broadly to
include ESCR. For example, the right to life under article 4 of the African Charter47
has been understood to entail a ‘dignified life’.48 This includes State obligations to
take ‘preventive steps to preserve and protect the natural environment and humani-
tarian responses to natural disasters, famines, outbreaks of infectious diseases, or
other emergencies’.49 In addition, the Commission has interpreted the right to life
as entailing State obligations ‘to address more chronic yet pervasive threats to life, for
example with respect to preventable maternal mortality, by establishing functioning
health systems and eliminating discriminatory laws and practices which impact on
individuals’ and groups’ ability to seek healthcare.’50 Thus, the Commission has
noted that violations of ESCR may, in certain circumstances, also entail violations
of the right to life.51 It is crucially important to note that the African Commission
has strongly recommended that African States ‘harmonize’ domestic legislation with
‘international human rights obligations’.52 Have the African State parties to the
ICESCR indeed harmonized their domestic laws with the ICESCR? The next sec-
tion examines the influence of the ICESCR on domestic legal regimes in Africa with
particular emphasis on whether the Covenant has influenced the constitutional pro-
tection of human rights.

Human Rights and the Inter-American Court of Human Rights, as well as Views of the Human Rights
Committee. See also Wilfred Onyango Nganyi and Nine others v United Republic of Tanzania App No
006/2013 (ACtHPR, 18 March 2016) paras 165–79.
44 African Charter (n 13) art 1.
45 See eg African Commission, Abdel Hadi, Ali Radi and others v Sudan, Communication No 368/
09, 5 November 2013, para 92: ‘[t]‌he Commission considers that if a State Party fails to respect, pro-
tect, promote or fulfil any of the rights guaranteed in the Charter, this constitutes a violation of Article
1 of African Charter.’ See also SERAC and CESR v Nigeria (n 24) paras 44–47; African Commission,
Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication No 245/2002, Annex III, 15 May
2006, AHRLR 128 (ACHPR 2006) para 152.
46 African Charter (n 13) preamble, para 8.
47 ibid art 4 reads: ‘Human beings are inviolable. Every human being shall be entitled to respect for
his life and the integrity of his person. No one may be arbitrarily deprived of this right.’
48 See African Commission, ‘General Comment 3’ (2015) <www.achpr.org/files/instruments/
general-comments-right-to-life/general_comment_no_3_english.pdf> accessed 20 June 2016, 3
and 43.
49 ibid para 41. 50 ibid para 42. 51 ibid para 43.
52 See eg African Commission, Groupe de Travail sur les Dossiers Judiciaires Stratégiques v Democratic
Republic of Congo, Communication No 259/2002, 24 July 2011, para 92(i).
107

The ICESCR and Domestic Protection of Human Rights in Africa 107

III. Influence of the ICESCR on the Domestic

Protection of Human Rights in Africa

A. Are the rights protected in the ICESCR part

of domestic constitutions in Africa?
State parties to the ICESCR are obliged to ‘take steps’ to the maximum of ‘available
resources’ with a view to ‘achieving progressively’ the full realization of the rights recog-
nized in the Covenant.53 This must be done by all ‘appropriate means, including par-
ticularly the adoption of legislative measures’.54 While it is recognized that the ICESCR
‘does not formally oblige States to incorporate its provisions in domestic law’ and thus
there is no obligation to adopt or incorporate the Covenant in national constitutions
or other domestic laws, direct incorporation is highly desirable since it ‘avoids prob-
lems that might arise in the translation of treaty obligations into national law, and pro-
vides a basis for the direct invocation of the Covenant rights by individuals in national
courts.’55
The Covenant has influenced the domestic protection of human rights in Africa
in several ways. Some African States have adopted constitutional provisions ac-
cording priority to the provisions of international human rights treaties, including
the ICESCR, over any inconsistent domestic laws, while others have transformed
some rights protected in the Covenant into domestic law by supplementing or
amending existing national constitutions and ordinary legislation, without in-
voking the specific terms of the Covenant. It is crucial to note that the CESCR
has made important recommendations on the implementation of ESCR in several
African States.56 However, the influence of these recommendations generally re-
mains limited since several African States still consider most ESCR (particularly the
rights to adequate housing, food, water, and sanitation) to be merely non-justiciable
‘directive principles’ (‘needs’ or ‘services’) rather than fully justiciable human rights
(‘entitlements’).57 Thus, some national constitutions relegate the rights to health and
education to the status of non-justiciable ‘Principles of State Policy’.58 Moreover,
even a few of the States that have expressly given domestic effect to the African

53 ICESCR art 2(1); CESCR, ‘General Comment 3’ in ‘Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies’ (2003) UN Doc HRI/GEN/1/
Rev.6, 14.
54 ICESCR art 2(1).
55 CESCR, ‘General Comment 9’ in ‘Compilation of General Comments’ (2003) (n 53) 54, para 8.
56 See eg for a recent example, CESCR, ‘Concluding Observations on the Third Periodic Report of
Tunisia’ (14 November 2016) UN Doc E/C.12/TUN/CO/3.
57 See eg the constitutions of Nigeria (1999), Lesotho (1993), Sierra Leone (1991), Ghana (1992),
Ethiopia (1994), Uganda (1995), and the Gambia (1996). See also Khathang Tema Baitsokoli and
Another v Maseru City Council and others, Case (CIV) 4/05, CONST/C/1/2004, 20 April 2004, (2004)
AHRLR 195 (LeCA 2004); High Court of Ghana, Issa Iddi Abass & Ors v Accra Metropolitan Assembly
and Anor, Suit No Misc 1203/2002, 24 July 2002, unreported; Supreme Court of Ghana, New Patriotic
Party v Attorney-General [1996–97] SCGLR 729.
58 See eg Constitution of Lesotho, 1993, arts 27–28.
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108 Influence of the ICESCR in Africa

Charter (Nigeria and Benin)59 consider most ESCR, including the right to free and
compulsory primary education, to represent non-justiciable directive principles of
State policy.60 As a result, domestic courts in several States have been unwilling to
enforce ESCR, claiming that they involve (non-justiciable) questions of ‘a political
nature’.61
In contrast, as a matter of international law, every State party to a treaty that has not
submitted reservations is legally obliged to perform its obligations in ‘good faith’.62
Thus, a State party to the ICESCR may not invoke the provisions of its domestic law
as a ‘justification for its failure to perform a treaty’.63 Rather, a State that has con-
tracted valid international obligations, including those arising under the ICESCR,
is ‘bound to make in its legislation such modifications as may be necessary to ensure
the fulfilment of the obligations undertaken’.64 The ICESCR does not specify the
specific means by which it is to be given effect or implemented in the national legal
order.65 As a result, every State enjoys a ‘margin of discretion’66 in adopting ‘all ap-
propriate means’ to comply with its Covenant obligations. Nevertheless, ‘legislative
measures’67 (eg the repeal or reform of laws that nullify or impair certain individuals’
and groups’ right to realize their ESCR, including where sexual and reproductive
health, the legal prohibition of harmful practices, and the legal prohibition of har-
assment at work are concerned)68 are in many instances ‘highly desirable’ and in
some cases may even be ‘indispensable’.69 Such measures should provide for appro-
priate means of redress, or ‘accessible, affordable, timely and effective’ remedies, to
ensure accountability.70

59 See the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap
10, Laws of the Federation of Nigeria 1990 (Nigerian ACHPR Act); and Constitution of the People’s
Republic of Benin, 1990, art 7.
60 See Constitution of the Federal Republic of Nigeria, 1999, ss 6(6)(c) and 18; ECOWAS
Community Court, Registered Trustees of Socio-Economic Rights and Accountability Project (SERAP)
v Federal Republic of Nigeria and Universal Basic Education Commission (30 November 2010) ECW/
CCJ/APP/12/07 and ECW/CCJ/JUD/07/10; African Commission, Socio- Economic Rights and
Accountability Project v Nigeria, Communication No 300/2005, 29 July 2008, AHRLR 108 (ACHPR
2008) paras 28, 29, 62–69.
61 See eg Constitutional Court of Uganda, Centre for Health, Human Rights and Development and
three others v Attorney General, Constitutional Petition No 16 of 2011, [2012] UGCC 4 (5 June 2012).
But see Supreme Court of Uganda, Centre for Health, Human Rights and Development & three others v
Attorney General, Constitutional Appeal No 1 of 2013 (30 October 2015), directing the Constitutional
Court to hear the case on its merits before deciding whether it raised a ‘political question’.
62 Vienna Convention on the Law of Treaties (VCLT) (opened for signature 23 May 1969, entered
into force 27 January 1980) 1155 UNTS 331, art 26.
63 ibid art 27. The International Court of Justice (ICJ) has stated that VCLT art 27 reflects ‘cus-
tomary law’ which binds all States (Questions Relating to the Obligation to Prosecute or Extradite (Belgium
v Senegal) (Merits) [1949] ICJ Rep 422, 460).
64 See Exchange of Greek and Turkish Populations (Advisory Opinion) PCIJ Rep Series B No 10, 20.
65 CESCR, ‘General Comment 9’ (n 55) para 5.
66 CESCR, ‘General Comment 16’ in ‘Compilation of General Comments’ (2008) (vol I) (n
18) para 32.
67 ICESCR art 2(1).
68 CESCR, ‘General Comment 22’ (4 March 2016) UN Doc E/C.12/GC/22, paras 34 and 49(a)
and (b); CESCR, ‘General Comment 23’ (8 March 2016) UN Doc E/C.12/GC/23, paras 50 and 65(e).
69 CESCR, ‘General Comment 3’ (n 53) para 3.
70 CESCR, ‘General Comment 9’ (n 55) paras 2 and 9.
109

The ICESCR and Domestic Protection of Human Rights in Africa 109

The ICESCR has influenced the legal protection of ESCR in African States in
other ways. First, it has been applied as a guide for interpretation in some court judg-
ments. Second, it has influenced the content of ESCR in national constitutions.71
Third, it has specifically been referred to as a source of law in some national consti-
tutions, and this has in turn influenced the adoption of certain ordinary legislation
and policies essential to ESCR. All African States have constitutions containing
provisions regulating the relationship between international treaties and national
law and/or protecting human rights, including the right to life, human dignity,
equality and non-discrimination, freedom from torture, inhuman, and degrading
treatment, and some ESCR.72 Although there is no uniform approach to treaties
across Africa, African States generally apply either the ‘dualist’ or ‘monist’ approach
to international treaties,73 following the practice of domesticating international
treaties applied by the former colonial powers in Africa, mainly Britain, France, and
Portugal, though many constitutions embody both ‘dualist’ and ‘monist’ elements.

B. Dualist approaches to the ICESCR in Africa

and their influence on human rights
The influence of the ICESCR in African States applying a ‘dualist’ approach to
international treaties has depended on whether or not a particular State has adopted
relevant domestic law (constitutional provisions or ordinary legislation) to give ef-
fect to its obligations under the Covenant. Generally, a dualist theoretical approach
to the relationship between international and national law takes the view that inter-
national law regulates the relations between States whereas national law regulates
the rights and obligations of individuals within a State.74 In ‘dualist’ African States,
mainly former colonies of the United Kingdom following the constitutional law
tradition of that nation,75 the principle is generally that international courts apply
international law while domestic courts are obliged to apply domestic law and not
international treaties, or at least that it is for the national court to decide which rule
to apply.76 Thus, international treaties such as the ICESCR, in whole or in part,
are not applicable (and thus not ordinarily enforceable by the courts) unless they
have been incorporated into national law (through incorporation or reception) by

71 All African States have bills of rights in their constitutions. See African Legal Centre, ‘Constitutions
of African Countries’ (n 8).
72 ibid.
73 For a discussion of the relationship between international treaties and domestic law, see Anthony
Aust, Modern Treaty Law and Practice (3rd edn, CUP 2013) 159–77; James Crawford, Brownlie’s
Principles of Public International Law (8th edn, OUP 2012) 48–111; Malcolm N Shaw, International
Law (7th edn, CUP 2014) 92–141; and David J Harris and Sandesh Sivakumaran, Cases and Materials
on International Law (8th edn, Sweet & Maxwell 2015) 59–84.
74 Crawford, Brownlie’s Principles (n 73) 48.
75 Lord Oliver, in Maclaine Watson & Co v Dept of Trade and Industry [1989] UKHL [1990] 2 AC
418, 500 (House of Lords), explained that ‘a treaty is not part of English law unless and until it has been
incorporated into the [domestic] law by legislation’. The former British colonies in Africa are: Botswana,
Cameroon, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Nigeria,
Seychelles, Sierra Leone, South Africa, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe.
76 Crawford, Brownlie’s Principles (n 73) 48.
10

110 Influence of the ICESCR in Africa

legislation in force to give effect to them.77 The rationale for the dualist theory is to
prevent the executive from being able to create law without observing the domestic
constitutional requirements necessary for law-making (ie to prevent law creation by
the executive without an Act of Parliament).78 In States applying a ‘dualist’ approach
to the ICESCR, domestic courts apply the Covenant as mediated by national legis-
lation, and national legislation will prevail unless the issue can be resolved by inter-
pretation. This means that, in ‘dualist’ States in Africa, the rights protected under the
ICESCR and the jurisprudence developed by the CESCR are generally regarded as
not directly enforceable unless incorporated into domestic law by legislation.
Furthermore, the influence of the Covenant has also depended on judicial atti-
tudes towards the application of international treaties by domestic courts. Domestic
judges are still reluctant to rely on the ICESCR and other international human
rights treaties in the absence of domestic implementing legislation. Some consti-
tutions of ‘dualist’ States have adopted in essence a monist approach regarding the
relationship between international law and national law. For example, although the
Constitution of Namibia provides that ‘the general rules of public international law
and international agreements’ are binding and form part of domestic law unless
otherwise provided by the Constitution or an Act of Parliament,79 domestic courts
have shown unwillingness to invoke international human rights treaties, including
the ICESCR.80 This has led to the absence of jurisprudence invoking Covenant
rights and reluctance to apply other human rights treaties.
For example, the Supreme Court of Namibia stated that an international treaty
ratified by Namibia (in this case the Convention on the Elimination of All Forms of
Discrimination against Women,81 which had not been implemented by domestic
legislation) was ‘subject to the Constitution and cannot change the situation’82

77 See eg the Constitution of the Kingdom of Swaziland, 2005, s 238(4), which provides that: ‘[u]‌nless
it is self-executing, an international agreement becomes law in Swaziland only when enacted into law
by Parliament’. The Constitution of the Republic of South Africa, 1996, s 231(4), provides that: ‘[a]
ny international agreement becomes law in the Republic when it is enacted into law by national legis-
lation; but a self-executing provision of an agreement that has been approved by Parliament is law in
the Republic unless it is inconsistent with the Constitution or an Act of Parliament’ (see also Glenister
v President of the Republic of South Africa and others (CCT 48/10) [2011] ZACC (Constitutional Court
of South Africa) 6, para 92, and Azanian Peoples Organization (AZAPO) and others v President of the
Republic of South Africa and others (CCT 17/96) [1996] ZACC 16, para 26).
78 See eg Re McKerr [2004] UKHL 12, [2004] 1 WLR 807, Lord Steyn; R v Jones [2006] UKHL
16, [2006] 2 WLR 772, Lord Bingham; R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 2) [2009] AC 453, para 44, Lord Hoffmann; Albert Venn Dicey, Introduction to the Study of
the Law of the Constitution (8th edn, Macmillan 1915) 38, stating that Parliament has ‘the right to make
or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right
to override or set aside the legislation of Parliament’.
79 Constitution of the Republic of Namibia, 1990, art 144.
80 See CESCR, ‘Concluding Observations on the Initial Periodic Report of Namibia’ (23 March
2016) UN Doc E/C.12/NAM/CO/1, para 6. See also Michael Andreas Müller and Imke Engelhard v
Namibia, CESCR Communication No 919/2000 (26 March 2002) UN Doc CCPR/C/74/D/919/
2000.
81 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
(opened for signature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.
82 Supreme Court of Namibia, Michael Andreas Müller v President of Namibia (SA 2/98) [1999]
NASC 2.
1

The ICESCR and Domestic Protection of Human Rights in Africa 111

relating to Namibia’s legislation, which discriminated on the basis of sex in relation

to the right to assume the surname of one’s spouse on marriage.83 This led the UN
Human Rights Committee to find a violation of the right to equal protection of the
law without discrimination under article 26 of the ICCPR.84
At the time of writing, in 2017, although most African States applying a ‘dualist’ ap-
proach to international treaties had adopted some policy and legislative measures (con-
stitutional provisions and/or ordinary domestic legislation) protecting some aspects of
ESCR, they had not enacted domestic legislation to explicitly and fully incorporate or
give full effect to the ICESCR in national laws so as to ensure the applicability of all
Covenant rights in domestic courts.85 This non-domestication approach is also gener-
ally applied to other international and regional human rights treaties.86 As noted above,
Nigeria explicitly incorporated the African Charter into Nigerian law in 1990 by pro-
viding that the African Charter’s provisions ‘have force of law in Nigeria and shall be
given full recognition and effect and be applied by all authorities and persons exercising
legislative, executive or judicial powers in Nigeria’.87 More than twenty-five years later,
it had not extended the same treatment to the ICESCR. It remains unclear why the
Nigerian authorities deemed it ‘necessary and expedient’88 to incorporate the African
Charter, thereby making it possible for domestic courts to directly ‘apply’ the Charter
and allowing individuals and groups to ‘resort to its provisions to obtain redress in [the
Nigerian] domestic courts’,89 but have not extended this approach to the ICESCR.
It is well known that, as a precondition to independence, most ‘dualist’ African
States adopted constitutions that drew heavily from the European Convention
on Human Rights.90 Their bills of rights therefore provide exclusive protection of
civil and political rights and the right to property of nationals of the former co-
lonial power.91 Thus, historically, some domestic courts in ‘dualist’ African States
have referred to international treaties protecting civil and political rights, such as
the ICCPR, rather than to the ICESCR when applying and interpreting relevant

83 Aliens Act No 1 of 1937, as amended by Proclamation AG No 15 of 1989, s 9.

84 Müller v Namibia (n 80) para 6.8.
85 See eg CESCR, ‘Concluding Observations on the Initial Periodic Report of Uganda’ (24 June
2015) UN Doc E/C.12/UGA/CO/1, paras 4–5; CESCR, ‘Concluding Observations on the Combined
Second to Fifth Periodic Reports of Kenya’ (4 March 2016) UN Doc E/C.12/KEN/CO/2-5, paras 5–6;
Nana Tawiah Okyir, ‘Toward a Progressive Realisation of Socio-Economic Rights in Ghana: A Socio-
Legal Analysis’ (2017) 51 African J of Intl and Comparative L 91; Howard Chitimira, ‘An Analysis of
Socio-Economic and Cultural Rights Protection under the Zimbabwe Constitution of 2013’ (2017)
61 J of African L.
86 As evidenced by a number of domestic constitutions (n 57). See also Bonita Meyersfeld,
‘Domesticating International Standards: The Direction of International Human Rights Law in South
Africa’ (2015) 8 Constitutional Court Review 399.
87 The Nigerian ACHPR Act (n 59) art 1. 88 ibid preamble.
89 Supreme Court of Nigeria, Sanni Abacha and others v Gani Fawehinmi (2001) AHLRR 172,
[2002] 3 LRC 296.
90 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR).
91 See eg the bills of rights contained in the following constitutions: Constitution of Nigeria, 1960;
Constitution of Uganda, 1962; Constitution of Kenya, 1969.
12

112 Influence of the ICESCR in Africa

domestic law.92 Given increased attention to the need to address widespread pov-
erty, the inequitable distribution of resources, and systematic or widespread viola-
tions of ESCR (eg the rights to education, health, adequate food, housing, water,
and sanitation) in many African States, several States have adopted new constitu-
tions and other domestic legislation protecting at least some ESCR, particularly the
rights of vulnerable and marginalized groups, since the 1990s.93 This process was
influenced in part (although not explicitly) by the ICESCR.
To date, in many African States, there have been no cases in which the ICESCR
has been applied before domestic courts. Although domestic courts in Africa have
handed down significant judgments concerning some aspects of ESCR, such as the
protection of pregnant school girls and women in higher education against discrim-
ination in education94 and the protection of individuals from sterilization or com-
pulsory testing on account of their Human Immunodeficiency Virus (HIV) positive
status without informed consent,95 most domestic courts do not regularly take into
account the ICESCR when interpreting and applying domestic law.
For example, the Constitution of the Kingdom of Swaziland, 2005, in its section
29(6), protects the right to free primary education by providing that ‘[e]‌very Swazi
child shall within three years of the commencement of this Constitution have the
right to free education in public schools at least up to the end of primary school,
beginning with the first grade.’ The Supreme Court of Swaziland, contrary to the
ICESCR,96 held that the right to education, including primary education, could
only be progressively realized subject to the availability of resources.97 Thus, schools
continued to levy compulsory parental contributions (indirect costs) for primary
education, such as payment for school uniforms, which restrict access to primary
education for children from families with high levels of poverty, particularly for girls.

92 See eg High Court of Tanzania, Ephraim v Pastory [1990] Civil Appeal No 70 of 1989, (2001)
AHRLR 236, para 10; Zimbabwe Supreme Court, Kachingwe and others v Minister of Home Affairs and
Another [2005] ZWSC 134, (2005) AHRLR 288, paras 50–72.
93 Constitution of Kenya, 2010, art 21(3). See also the Constitution of Zimbabwe, 2013, arts 63–
65, 71–75, and 80–83; Constitution of Mozambique, 2004, arts 82–95; Constitution of the Republic
of Seychelles, 1993, arts 26–39; Constitution of Malawi, 1994, s 30.
94 See eg Head of Dept, Dept of Education, Free State Province v Welkom High School and Another; Head
of Dept, Dept of Education, Free State Province v Harmony High School and Another (CCT 103/12) [2013]
ZACC 25; Botswana Court of Appeal, Student Representative Council of Molepolole College of Education
v Attorney General [1995] (3) LRC 447; Zimbabwe Supreme Court, Lloyd Chaduka and Morgenster
College v Enita Mandizvidza, Judgment No SC 114/2001, Civil Appeal No 298/2000.
95 Government of the Republic of Namibia v LM and others (SA 49/2012) [2014] NASC 19; Kenya
Legal and Ethical Network on HIV & AIDS (KELIN) & Three Others v Cabinet Secretary Ministry of
Health & Four Others, Petition No 250 of 2015 [2016] eKLR.
96 The minimum core obligation of the State includes the obligation to provide primary educa-
tion which is ‘compulsory’ and ‘available free to all’. See ICESCR art 13(2)(a); CESCR, ‘General
Comment 11’ in ‘Compilation of General Comments’ (2008) (vol I) (n 18) paras 6–7; CESCR,
‘General Comment 13’ in ‘Compilation of General Comments’ (2008) (vol I) (n 18) para 57; CESCR,
‘Concluding Observations on the Initial Periodic Report by Cameroon’ (8 December 1999) UN Doc
E/C.12/1/Add.40, paras 27 and 47; CEDAW Committee ‘Concluding Observations on the Combined
Initial and Second Periodic Reports of Swaziland’ (24 July 2014) UN Doc CEDAW/C/SWZ/CO/1-2,
paras 30–31.
97 Supreme Court of Swaziland, Swaziland National Ex-Miners Workers Association v The Minister of
Education & others (2010) Civil Appeal Case No 2/10, [2010] SZSC 35, paras 16–21.
13

The ICESCR and Domestic Protection of Human Rights in Africa 113

However, some domestic courts in Africa have relied on provisions of the ICESCR
and other regional and international human rights instruments98 to interpret and
apply relevant domestic law even before ratification of the ICESCR.99 For example,
the Covenant has specifically been referred to as a source of interpretation in court
judgments in Kenya ‘for the purpose of removing ambiguity or uncertainty from
national constitutions, legislation or common law’.100 This general approach in-
volving the use of international treaties to interpret ambiguous domestic law has also
been used by other domestic courts in Africa. Thus, in August 2015 the Supreme
Court of Uganda relied on the CEDAW101 to interpret article 33(6) of the country’s
Constitution, 1995, which prohibits ‘laws, cultures, customs or traditions which are
against the dignity, welfare or interest of women or which undermine their status’.102
It is particularly instructive to note that the ICESCR influenced the protection
of human rights in the South African Constitution, 1996, which entrenches both
civil and political rights and ESCR (eg the right of ‘everyone’ to have access to
adequate housing;103 access to health care services, sufficient food and water, and
social security;104 and the right to education105) as ‘inter-related and mutually sup-
porting’.106 The Constitution contains two important international law-friendly in-
terpretive provisions. First, it provides that, in interpreting the bill of rights, courts or
tribunals ‘must consider international law’.107 While this provision indicates that it is
possible for South African courts to use international law (treaties and the jurispru-
dence of relevant international bodies), the obligation—not a choice—is to simply
‘consider’—and not to apply—international law. Second, the Constitution provides
that ‘when interpreting any legislation, every court must prefer any reasonable inter-
pretation of the legislation that is consistent with international law over any alterna-
tive interpretation that is inconsistent with international law’.108 This applies to the
interpretation of ‘any legislation’, even in the absence of any ambiguity. On the basis

98 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)
(UDHR) art 26; Convention on the Rights of the Child (CRC) (opened for signature 20 November
1989, entered into force 2 September 1990) 1577 UNTS 3, art 28(1)(a) and (b) and 29(1); African
Charter (n 13) art 17; African Charter on the Rights and Welfare of the Child (n 35) art 11(2) and (3).
99 See eg Governing Body of the Juma Musjid Primary School & others v Essay NO & others (Centre
for Child Law & another as Amici Curiae) [2011] ZACC 13 (hereafter Juma Musjid), paras 40–43;
Botswana Court of Appeal, Attorney General v Unity Dow (2001) AHRLR 99 (BwCA 1992) paras
106–09, referring to UDHR art 2 and art 2 African Charter (n 13).
100 See eg High Court of Kenya, Republic v Minister for Home Affairs & two others Ex Parte Sitamze,
Misc Civil Case No 1652 of 2004, [2008] eKLR. The Court extensively relied on arts 6 and 2 of the
ICESCR to interpret the right of a non-national to work in Kenya.
101 CEDAW arts 2(f ) and 16(1)(b) and (c).
102 See Supreme Court of Uganda, Mifumi (U) Ltd and 12 others v Attorney General and Kenneth
Kakuru [2010] UGCC 2, noting at 59–60 that ‘Uganda is a signatory [State party] to all major human
rights Conventions [including the ICESCR] which require it to put in place laws and measures that
prevent discrimination and perpetuate inequality (sic)’.
103 Constitution of the Republic of South Africa, 1996, s 26. 104 ibid s 27.
105 ibid s 29.
106 See Government of the Republic of South Africa & others v Grootboom & others [2000] ZACC 19
(hereafter Grootboom), para 23.
107 Constitution of the Republic of South Africa, 1996, sec 39(1)(b), emphasis is added.
108 ibid s 233, emphasis added.
14

114 Influence of the ICESCR in Africa

of the relevant constitutional provisions, the South African Constitutional Court
has developed useful jurisprudence on the justiciability of ESCR with particular
reference to the rights of access to health care, adequate housing, water, electricity,
basic sanitation, and education.109 It is evident from the Court’s jurisprudence that
domestic courts will enforce the positive constitutional obligations imposed upon
the government with respect to ESCR in at least the following ways. First, if the gov-
ernment fails to take steps to ensure that ESCR are progressively realized, ‘the courts
will require government to take steps’.110 Second, if steps or measures taken by the
government are unreasonable (eg by failing to provide for those most desperately in
need), the courts will ‘require that they be reviewed so as to meet the constitutional
standard of reasonableness’.111 Third, if the government adopts a policy with un-
reasonable limitations or exclusions, the court may order that those unreasonable
limitations or exclusions ‘are removed’.112
While the Court’s jurisprudence shows how the State and specific aspects of public
policy can be held accountable for failure to respect, protect, and fulfil ESCR via a
constitutional culture of justification and accountability through litigation, it has
signalled that the Court does not intend to adopt and apply the notion developed
by the CESCR that ESCR contain a minimum core (or ‘minimum essential levels’)
which the State is obliged to ensure.113 The Committee’s minimum core approach,
recently reaffirmed in two General Comments adopted in March 2016,114 has thus
not been applied by the South African Constitutional Court. Instead, the Court has
preferred a high level of deference to the legislature and executive.
Thus, in the Mazibuko case, the applicants alleged, inter alia, that a Free Basic Water
policy to supply 6 kilolitres of free water per month to every account holder (regard-
less of household size) in the City of Johannesburg violated the right to have access
to ‘sufficient water’ under section 27 of the South African Constitution 1996.115

109 See eg Thiagraj Soobramoney v Minister of Health (KwaZulu-Natal) [1997] ZACC 17 (hereafter
Soobramoney); Grootboom (n 106); Minister of Health and others v Treatment Action Campaign [2002]
ZACC 16 (hereafter Treatment Action Campaign); Khosa & others v Minister of Social Development [2004]
ZACC 11; Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal
& others [2009] ZACC 31; Mazibuko & others v City of Johannesburg & others [2009] ZACC 28; City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011]
ZACC 33; and Juma Musjid (n 99).
110 Mazibuko (n 109) para 67. 111 ibid. 112 ibid.
113 CESCR, ‘General Comment 3’ (n 53) para 10: ‘the Committee is of the view that a minimum
core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the
rights is incumbent upon every State party. Thus, for example, a State party in which any significant
number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter
and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations
under the Covenant’.
114 CESCR, ‘General Comment 22’ (n 68) para 49; and CESCR, ‘General Comment 23’ (n
68) para 65.
115 Section 27 provides: ‘(1) Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their depend-
ents, appropriate social assistance.
15

The ICESCR and Domestic Protection of Human Rights in Africa 115

The Constitutional Court had to consider whether the City of Johannesburg’s Free
Basic Water policy was ‘reasonable’ in terms of section 27(1)(b) of the Constitution,
which guarantees everyone’s right of access to sufficient water. The applicants con-
tended, inter alia, that the Court should determine a quantified amount of water as
‘sufficient water’ within the meaning of section 27, and that this amount is 50 litres
per person per day.116 The Court (contrary to the High Court117 and the Supreme
Court of Appeal118) refrained from defining the minimum core content of the right
of access to ‘sufficient water’ and held that the ‘applicants have not persuaded this
Court to specify what quantity of water is “sufficient water” within the meaning of
section 27 of the Constitution’.119 According to the Court, the right to ‘sufficient
water’ does not as such require the State to provide every person with sufficient water
on demand, but rather ‘it requires the state to take reasonable legislative and other
measures progressively to realize the achievement of the right of access to sufficient
water, within available resources’.120 Without giving contextual meaning to the con-
stitutional standard of ‘reasonableness’ and the minimum core content of the right
to ‘sufficient water’, the Court found the City’s Free Basic Water policy to fall ‘within
the bounds of reasonableness’. According to the Court,
ordinarily it is institutionally inappropriate for a court to determine precisely what the
achievement of any particular social and economic right entails and what steps government
should take to ensure the progressive realisation of the right. This is a matter, in the first place,
for the legislature and executive, the institutions of government best placed to investigate so-
cial conditions in the light of available budgets and to determine what targets are achievable
in relation to social and economic rights. Indeed, it is desirable as a matter of democratic ac-
countability that they should do so for it is their programmes and promises that are subjected
to democratic popular choice.121
Therefore, the ‘reasonableness’ review for assessing State compliance with ESCR
obligations has been applied to allow governments a wide margin of discretion,
inter alia, to determine ‘what the achievement of any particular social and economic
right entails’. Thus, the normative core content of the right to ‘sufficient water’ has
remained ambiguous. This means that there is no clear guidance regarding State ob-
ligations and entitlements for individuals and groups.
The influence of the ICESCR in South Africa can also be discerned from the
constitutional protection of the right to education and how this right has been en-
forced by courts. In 2011 (before the ratification of the ICESCR by South Africa
on 18 January 2015, and its entry into force for the State on 12 April 2015), in the
case of Juma Musjid,122 the Constitutional Court relied on articles 13 and 14 of the

(2) The state must take reasonable legislative and other measures, within its available re-
sources, to achieve the progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.’
116 Mazibuko (n 109) paras 44(a) and 51.
117 Mazibuko and others v City of Johannesburg and others (06/13865) [2008] 4 All SA 471 (W) (30
April 2008), Tsoka J (holding that a basic minimum of 50 litres per person per day should be provided).
118 City of Johannesburg and others v Mazibuko and others (489/08) [2009] 3 All SA 202 (SCA) (25
March 2009) (holding that a basic minimum of 42 litres per person per day should be provided).
119 Mazibuko (n 109) para 159. 120 ibid para 50. 121 ibid para 61, O’Regan J.
122 Juma Musjid (n 99).
16

116 Influence of the ICESCR in Africa

ICESCR to interpret and apply section 29(1) of the Constitution, which states that
‘[e]‌veryone has the right . . . to a basic education, including adult basic education;
and . . . to further education, which the state, through reasonable measures, must
make progressively available and accessible.’
The Court held that, unlike some of the other ‘socio-economic rights’ under the
South African Constitution,123 the right to a basic education under article 29(1)
(a) is ‘immediately realisable’ since there is no internal limitation requiring that the
right be ‘progressively realised’ within ‘available resources’ subject to ‘reasonable le-
gislative measures’.124 The Court distinguished the right to a ‘basic education’ from
the right to ‘further education’ provided for in section 29(1)(b), which obliges the
State, through reasonable measures, to make further education ‘progressively avail-
able and accessible.’125 The Court further relied on the CESCR’s General Comment
13 to stress the importance of the right to education126 and concluded that:
Indeed, basic education is an important socio-economic right directed, among other things,
at promoting and developing a child’s personality, talents and mental and physical abilities
to his or her fullest potential.127 Basic education also provides a foundation for a child’s
lifetime learning and work opportunities. To this end, access to school—an important com-
ponent of the right to a basic education guaranteed to everyone by section 29(1)(a) of the
Constitution—is a necessary condition for the achievement of this right.128
The South African example of the constitutional protection of ESCR and judicial
enforcement of these rights has been followed in other African States, in particular
in Kenya.129 Influenced by the ICESCR, the Constitution of Kenya, 2010 pro-
tects what used to be considered solely as ‘needs’ and ‘services’ as fully justiciable
entitlements at par with civil and political rights.130 The Constitution guarantees
every person a right to the highest attainable standard of health, accessible and
adequate housing, reasonable standards of sanitation, freedom from hunger, ad-
equate food of acceptable quality, clean and safe water in adequate quantities, so-
cial security, and education.131 The State is obliged to ‘observe, respect, protect,
promote and fulfil’ all rights in the Bill of Rights and to ‘take legislative, policy
and other measures, including the setting of standards, to achieve the progres-
sive realisation of the rights guaranteed under Article 43’,132 subject to available

123 ibid referring to arts 26 (right to have access to adequate housing) and 27 (right to have access
to health care services, sufficient food and water, and social security) of the Constitution of South
Africa, 1996.
124 Juma Musjid (n 99) para 37. See also Minister of Basic Education v Basic Education for All (20793/
2014) [2015] ZASCA (Supreme Court of Appeal of South Africa) 198 (2 December 2015).
125 Juma Musjid (n 99) para 37. 126 CESCR, ‘General Comment 13’ (n 96) para 1.
127 The Court cited CRC (n 98) art 29(1). 128 Juma Musjid (n 99) para 43.
129 Constitution of Kenya, 2010, arts 43–44, 53. In art 165(3)(b), the High Court is empowered to
‘determine the question whether a right or fundamental freedom in the Bill of Rights has been denied,
violated, infringed or threatened’.
130 High Court of Kenya, Michael Mutinda Mutemi v Permanent Secretary, Ministry of Education &
two others, Petition No 133 of 2013, [2013] eKLR, para 13.
131 Constitution of Kenya, 2010, art 43.
132 ibid arts 21(1) and (2). In High Court of Kenya, Mitu-Bell Welfare Society v Attorney General &
two others, Petition No 164 of 2011, [2013] eKLR, para 53, Judge Mumbi Ngugi held that ‘progressive
17

The ICESCR and Domestic Protection of Human Rights in Africa 117

resources.133 This provides a strong legal basis for courts to consider whether the
measures or policies taken by the State or its organs, if any, with respect to ESCR
(eg access to healthcare, housing, food, water, and sanitation) meet constitutional
standards.134 In several cases, the High Court has applied the standard of whether
policies or measures are ‘reasonable in the circumstances’.135 Since the adoption of
Kenya’s 2010 Constitution, domestic courts have increasingly relied directly on the
ICESCR and General Comments of the CESCR to interpret ESCR protected in
the Constitution.136

C. Monist approaches to the ICESCR in Africa

and their influence on human rights
Monism emphasizes that national and international law form one single legal order,
or at least a number of interlocking orders that should be presumed to be coherent
and consistent.137 Accordingly, in States applying monism to international treaties,
a treaty such as the ICESCR may, without legislation, become part of domestic
law and can be applied directly within the national legal order once it has been
concluded in accordance with the constitution and has entered into force for the
State.138 Nevertheless, in practice, legal institutions of a ‘monist’ State, such as its
legislature and judiciary, should ensure that national law conforms to international
law and that international law can be relied on in national courts. In cases of conflict,
national courts should give effect to international law. In ‘monist’ African States
(following the civil law tradition based on the Constitution of France, 1958),139
international treaties in force for the State can be applied directly within the national
legal order, without legislation. Some constitutions of a number of ‘Francophone’140

realisation’ implies that ‘the state must begin to take steps, and I might add be seen to take steps, towards
realization of these rights’ (emphasis in the original).
133 Constitution of Kenya, 2010, art 43(5); art 2(1) ICESCR.
134 See eg High Court of Kenya, Mathew Okwanda v Minister of Health and Medical Services &
three others, Petition No 94 of 2012, [2013] eKLR, para 24; High Court of Kenya, Kenya Society for the
Mentally Handicapped v Attorney General and seven others, Petition No 155A of 2011, [2012] eKLR,
para 18.
135 See eg High Court of Kenya, Luco Njagi & 21 others v Ministry of Health & two others, Petition
No 218 of 2013, [2015] eKLR, paras 85 and 90, concluding that ‘the measures taken by the respondents
to ensure access to haemodialysis by the petitioner are reasonable in the circumstances’ due to limited
available resources. See also High Court of Kenya, Consumer Federation of Kenya (COFEK) v Attorney
General & 4 others, Petition No 88 of 2011, [2012] eKLR, para 39.
136 See eg High Court of Kenya, John Kabui Mwai & three others v Kenya National Examination
Council & two others, Petition No 15 of 2011, [2011] eKLR, 6–7, where the Court directly relied on arts
13 and 14 of the ICESCR after observing that under article 2(6) of the Constitution of Kenya, 2010, the
ICESCR ‘forms part of our [Kenyan] laws’ since Kenya is a State party to the Covenant. See also High
Court of Kenya, PAO & two others v Attorney General, Petition No 409 of 2009 [2012] eKLR, paras
58–64, 86; Luco Njagi (n 135) paras 63–64.
137 Crawford, Brownlie’s Principles (n 73) 48. 138 Aust, Modern Treaty Law (n 73) 163.
139 The Constitution of France, 1958, art 55, reads: ‘[t]‌reaties or agreements duly ratified or ap-
proved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement
or treaty, to its application by the other party’.
140 See the Constitutions of the following former French colonies in Africa: Algeria, 1989, art 132;
Benin, 1990, preamble and art 147; Burkina Faso, 1991, preamble; Burundi, 2004, art 292; Cameroon,
18

118 Influence of the ICESCR in Africa

and ‘Lusophone’141 African States expressly provide (in their preambles or else-
where) that treaties that have duly been signed and ratified in accordance with
constitutional processes are part of or take precedence over national legislation, or
that human rights protected in the Constitution shall be interpreted in harmony
with the relevant international instruments.142 Treaties in such States are, in theory,
superior to (and thus supersede) ordinary legislation, but subject to the constitu-
tion.143 However, in practice, ‘monist’ States in Africa require international treaties
to be officially published before becoming part of domestic law.144 Courts may also
need to determine the extent to which rights protected by the ICESCR are ‘justi-
ciable’ or ‘self-executing’; that is, whether they may be directly applied by courts
without further specification or definition by the legislature. Thus, enforcement of
the ICESCR in ‘monist’ African States may require a State to ‘take prior legislative
measures’ to make provisions of the ICESCR applicable in domestic law.145 It must
be acknowledged that, generally, most courts in ‘monist’ African States have not
given full effect to the provisions of the ICESCR in the domestic legal order, espe-
cially not by providing for judicial and other remedies for violations of ESCR.146 As
a result, the influence of the ICESCR on domestic legislation, policies, and national
courts’ jurisprudence in most ‘monist’ African States has been very limited partly be-
cause, historically, judicial training has not paid adequate attention to international
human rights, including the justiciability of ESCR.147 In this context, the ICESCR
has not been used as a source of directly enforceable rights or a source of inspir-
ation in the interpretation of relevant domestic law in court judgments, as judges
tend to rely on domestic legislation (which is inadequate to implement the rights

1996, art 45; the CAR, 1995, preamble; Chad, 1996, preamble and art 221; the DRC, 2005, art
215; Congo, 2001, art 184; Guinea, 1990, preamble; Madagascar, 1992, preamble; Mali, 1992, pre-
amble and art 116; Niger, 1999, preamble and art 132; Rwanda, 2003, art 190; Senegal, 2001, art 98;
Seychelles, 1993, art 48; Togo, 1992, preamble; and Tunisia, 2014, art 20.
141 See the Constitutions of the following six former colonies of the Portuguese Empire in
Africa: Angola, 2010, art 13; Cape Verde, 1992, art 11; Guinea-Bissau, 1984, art 28; Mozambique,
2004, art 18; São Tomé and Príncipe, 1975, arts 12 and 17; and Equatorial Guinea, 1991, preamble
and art 14.
142 See eg the Constitutions of São Tomé and Príncipe, 1975, arts 12 and 17; Equatorial Guinea,
1991, preamble and art 14; Guinea-Bissau, 1984, art 28; and Mozambique, 2004, art 43. The latter
states that ‘[t]‌he constitutional principles in respect of fundamental rights shall be interpreted and in-
tegrated in harmony with the Universal Declaration of Human Rights and with the African Charter of
Human and Peoples’ Rights.’
143 See eg Constitution of the CAR, 2013, art 97, stating that ‘[a]‌greements or Treaties properly
ratified or approved, take precedence, once published, over laws, on the condition, for each Agreement
or Treaty, of its application by the other parties.’ See also the Constitution of Cape Verde, 1992, art 11,
and the Constitution of Tunisia, 2014, art 20.
144 See eg Constitution of Senegal (2001) art 98, stating that ‘[t]‌reaties or agreements duly ratified
shall, upon their publication, have an authority superior to that of the laws, subject, for each treaty and
agreement, to its application by the other party’ (emphasis added). See also Constitutions of Angola,
2010, art 13(1), and Benin, 1990, art 147.
145 See Souleymane Guengueng and others v Hissène Habré (2002) AHRLR 183 (SeCC 2001), para 38.
146 See CESCR, ‘Concluding Observations on the Combined Second to Fourth Periodic Reports of
the Democratic Republic of the Congo’ (16 December 2009) UN Doc E/C.12/COD/CO/4, para 8.
147 USAID, ‘Democracy, Human Rights and Governance: Assessment of Senegal: Final Report’
(2013) <http://pdf.usaid.gov/pdf_docs/pnaec828.pdf> accessed 16 June 2017, 28.
19

The ICESCR and Domestic Protection of Human Rights in Africa 119

guaranteed under the ICESCR) with which they are more familiar.148 Therefore, it
is imperative to ensure that national human rights institutions do not concentrate
solely on civil and political rights, but accord equal weight and attention to ESCR.
For example, the Constitution of Rwanda, 2003 protects several ESCR, in-
cluding the rights to free choice of employment, equal pay for equal work, form
trade unions, strike, education, and health.149 It further provides that international
treaties and agreements have precedence over domestic laws150 and can thus be
applied directly in the domestic legal order. In addition, it reaffirms ‘adherence
to the principles of human rights’ enshrined in various treaties, namely the UN
Charter,151 the Convention on the Prevention and Punishment of the Crime of
Genocide,152 the Universal Declaration of Human Rights,153 the International
Convention on the Elimination of All Forms of Racial Discrimination,154 the
ICCPR, the ICESCR, the CEDAW, the African Charter, and the CRC.155
However, the influence of the ICESCR in Rwanda has been limited by the ab-
sence of cases of invocation before, or direct or indirect application of the Covenant
by, domestic courts or tribunals.156 This is also true in other African States giving
primacy to international treaties, or making ratified international treaties part of do-
mestic law,157 or providing that the Bill of Rights ‘shall be interpreted in such a way
as not to be inconsistent with any international obligations’,158 including human
rights obligations under the ICESCR. There has also been a lack of compliance with
timely reporting obligations by several States. For instance, Seychelles acceded to the
ICESCR on 5 May 1992, but had not submitted even a single report to the CESCR
by May 2017, more than twenty-five years after its accession.

148 See eg Case No 501 of 27 July 1984, Dakar Court of Appeal, Senegal. Although the case raised
an issue concerning the right of access to good quality public health facilities, it was determined on the
basis of relevant domestic law (article 142 of the Code of the Obligations of the Administration, Act No
65-61 of 19 July 1965) without any reference to article 12 ICESCR.
149 Constitution of the Republic of Rwanda, 2003, arts 37–41.
150 ibid art 190, provides: ‘[u]‌pon their publication in the official gazette, international treaties and
agreements which have been conclusively adopted in accordance with the provisions of law shall be
more binding than organic laws and ordinary laws except in the case of non-compliance by one of the
parties’.
151 Charter of the United Nations (opened for signature 26 June 1945, entered into force 24 October
1945) 1 UNTS 1.
152 Convention on the Prevention and Punishment of the Crime of Genocide (opened for signature
9 December 1948, entered into force 12 January 1951) 78 UNTS 277.
153 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).
154 Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 7
March 1966, entered into force 4 January 1969) 666 UNTS 195.
155 ibid preamble para 9.
156 CESCR, ‘Concluding Observations on the Combined Second to Fourth Periodic Reports of
Rwanda’ (10 June 2013) UN Doc E/C.12/RWA/CO/2-4, para 6.
157 See eg Constitution of the Federal Democratic Republic of Ethiopia, 1994, art 9(4), which pro-
vides: ‘[a]‌ll international agreements ratified by Ethiopia are an integral part of the law of the land’. See
also the Constitution of the Republic of Namibia, 1990 (as amended), art 144; CESCR, ‘Concluding
Observations on the Combined Initial, Second, and Third Periodic Reports of Ethiopia’ (31 May
2012) UN Doc E/C.12/ETH/CO/1-3, para 5.
158 Constitution of the Republic of Seychelles, 1993, art 48.
120

120 Influence of the ICESCR in Africa

As a further example, article 132 of the Constitution of the People’s Democratic
Republic of Algeria, 1989 (amended by the constitutional revision of 1996)159
provides that ‘[t]‌reaties ratified by the President of the Republic in accordance
with the conditions provided for by the Constitution are superior to [national]
law.’ Nevertheless, in 2010 the CESCR was concerned that there was ‘an absence
of jurisprudence invoking the Covenant provisions, despite the primacy of the
Covenant over national law established by article 132 of the Constitution’.160 The
Committee recommended that Algeria ‘take effective measures to increase aware-
ness of Covenant rights among the judiciary and the public at large, and to ensure
that judicial training take full account of the justiciability of Covenant rights’.161 To
date, jurisprudence invoking the ICESCR is still non-existent.
The observation above (concerning the failure to invoke the ICESCR before or to
apply it by national courts) and the recommendation above (concerning the direct
applicability of the ICESCR by promoting it, inter alia, among judges and the gen-
eral population at large) appear in several other CESCR concluding observations on
African State reports,162 as most recently exemplified by the following observations
with respect to Burundi:
5. The Committee finds it regrettable that, despite the constitutional standing of the
Covenant, its provisions have never been invoked before or applied by national courts.
6. The Committee recommends that the State party ensure the direct applicability of the
Covenant by promoting among judges, attorneys, public officials and other officials respon-
sible for application of the Covenant, as well as among rights holders, an awareness of the
content of the Covenant and of the possibility of invoking it in the justice system . . .163
It follows from the foregoing that, while constitutional provisions providing for
the direct applicability of the ICESCR provide a strong legal basis for the enforce-
ment of ESCR before domestic courts and tribunals, they do not per se necessarily
give rise to the application of the Covenant by national courts and tribunals. More
needs to be done by non-governmental organizations (NGOs) to pursue cases in-
volving systematic violations of ESCR in the public interest in order to protect the

159 Constitution of the People’s Democratic Republic of Algeria, 1996.

160 CESCR, ‘Concluding Observations on the Combined Third and Fourth Periodic Reports of
Algeria’ (7 June 2010) UN Doc E/C.12/DZA/CO/4, para 5.
161 ibid.
162 See eg CESCR, ‘Concluding Observations on the Combined Initial, Second, and Third Periodic
Reports of Angola’ (1 December 2008) UN Doc E/C.12/AGO/CO/3, para 9; CESCR, ‘Concluding
Observations on the Second Periodic Report of Benin’ (9 June 2008) UN Doc E/C.12/BEN/CO/
2, paras 9 and 30; CESCR, ‘Concluding Observations on the Combined Initial, Second, and Third
Periodic Reports of Chad’ (16 December 2009) UN Doc E/C.12/TCD/CO/3, para 9; CESCR,
‘Concluding Observations on the Combined Initial, Second, and Third Periodic Reports of Ethiopia’
(31 May 2012) UN Doc E/C.12/ETH/CO/1-3, para 5; CESCR, ‘Concluding Observations on the
Fourth Periodic Report of Morocco’ (22 October 2015) UN Doc E/C.12/MAR/CO/4, paras 9–10;
CESCR, ‘Concluding Observations on the Second Periodic Report of Sudan’ (27 October 15) UN Doc
E/C.12/SDN/CO/2, paras 5–6; CESCR, ‘Concluding Observations: Rwanda’ (n 156) para 6; CESCR,
‘Concluding Observations: Uganda’ (n 85) para 5.
163 CESCR, ‘Concluding Observations on the Initial Periodic Report of Burundi’ (16 October
2015) UN Doc E/C.12/BDI/CO/1, paras 5–6. See also CESCR, ‘Concluding Observations: Chad’
(n 162) para 7.
12

Conclusion 121

underprivileged and marginalized populations in society. In addition, this will help

national courts to apply the ICESCR when interpreting domestic law in order to
develop the content of ESCR and to define the nature of obligations of both States
and non-State actors.164

IV. Conclusion
The ICESCR has significantly influenced the regional and, to some extent, domestic
legal protection of ESCR in Africa. As noted above, the Covenant influenced the
explicit protection of ESCR in the African Charter and in several constitutions in
Africa. It has also influenced the development of the jurisprudence of the African
Commission on ESCR. While there is no consistent practice among African States,
there is an increasing trend towards more constitutional protection of many ESCR
in African States’ constitutions, either as justiciable human rights or at least as ‘dir-
ective principles’ of State policy. Nevertheless, ESCR have still not attained the same
level of protection and enforcement extended to civil and political rights in the
constitutions of many African States. Besides, the influence of the Covenant on na-
tional courts’ jurisprudence in most African States remains limited. There are still
several factors limiting the realization of ESCR in Africa, including non-compliance
with domestic court rulings in favour of ESCR,165 political authoritarianism, high
levels of corruption,166 poverty,167 armed conflicts, limited engagement of NGOs
and civil society, and a lack of respect for the rule of law168 including a lack of re-
spect for international judicial bodies.169 In order to enhance the influence of the

164 See Redson E Kapindu, ‘Courts and the Enforcement of Socio- Economic Rights in
Malawi: Jurisprudential Trends, Challenges and Opportunities’ (2013) 13 African Human Rights
L J 125.
165 See eg High Court of Kenya, Ibrahim Sangor Osman v Minister of State for Provincial Administration
and Internal Security, Constitutional Petition No 2 of 2011, [2011] eKLR; CESCR, ‘Concluding
Observations: Kenya’ (n 85) paras 7–8.
166 See CESCR, ‘Concluding Observations: Kenya’ (n 85) paras 17–18 and Kolawole Olaniyan,
Corruption and Human Rights Law in Africa (Hart 2014).
167 The Fund for Peace, ‘Fragile States Index 2015: Fragility in the World 2015’ <http://fsi.
fundforpeace.org/rankings-2015> accessed 20 June 2016. The Index is based on several indicators in-
cluding uneven economic development, poverty, and human rights.
168 See eg East African Court of Justice, Matia Katabazi and 21 others v Secretary General of the
East African Community and the Attorney General of the Republic of Uganda, Reference No 1 of 2007;
Gramara (Private) Limited and Another v the Government of the Republic of Zimbabwe (HC 33/09)
[2010] ZWHHC (Zimbabwe Harare High Court) 1 (26 January 2010); Government of the Republic
of Zimbabwe v Fick & others (657/11) [2012] ZASCA 122 (20 September 2012); Government of the
Republic of Zimbabwe v Fick and others (CCT 101/12) [2013] ZACC 22.
169 eg although Uganda is a State party to the Rome Statute of the International Criminal Court
(ICC) (opened for signature 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90), on 12
May 2016, during his swearing-in speech extending his thirty-year rule, Ugandan President Yoweri
Museveni told visiting heads of State and representatives of the US and EU member States in Uganda
that ‘[w]‌e lost interest in the ICC. . . . ICC is none of our business. It is a useless body. We had sup-
ported the ICC initially thinking they were serious . . . but it is a bunch of useless people.’ See Peter
Clottey, ‘International Court Urges Uganda to Arrest Sudan President Bashir’ (Voice of America, 13 May
2016) <www.voanews.com/content/sudanese-president-bashir-defies-international-arrest-warrant-
with-trip-to-uganda/3327216.html> accessed 20 June 2016.
12

122 Influence of the ICESCR in Africa

ICESCR in Africa, these factors must be addressed by implementing a wider range
of comprehensive, necessary, appropriate, and effective legal, economic, and edu-
cational measures, plans of action, and policies by States, including: (i) enacting
and implementing domestic legislation to give effect to the ICESCR; (ii) providing
extensive training and conducting awareness-raising campaigns on the ICESCR
and the justiciability of ESCR to politicians, law-makers, national and local civil ser-
vants, law enforcement officers, and students at all levels of education; (iii) training
members of all professions and sectors that have a direct role in the promotion
and protection of human rights, including judges, lawyers, prosecutors, civil ser-
vants, teachers, immigration officers, the military, the police, and other law enforce-
ment officers, on the domestic application of international human rights treaties,
including through specific training programmes on the ICESCR; (iv) adopting and
effectively implementing poverty reduction strategies, in cooperation with relevant
(non-governmental or civil society, regional, and international) organizations and
institutions, which should fully integrate ESCR; (v) ensuring the transparency of
the conduct of public authorities and the allocation of available resources to rele-
vant sectors, especially those addressed to the most disadvantaged and marginalized
social groups and individuals, in law and in practice; (vi) signing and ratifying,
without delay, the Optional Protocol to the ICESCR, which offers a complemen-
tary and accessible forum for accountability concerning neglected ESCR;170 and
(vii) timely submission of periodic reports to the CESCR, including a compilation
of case summaries and decisions adopted by domestic courts and tribunals on the
justiciability of ESCR.

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124

7
Influence of the ICCPR in the Middle East
Başak Çali

I. Introduction

This chapter aims to survey the influence of the International Covenant on Civil
and Political Rights (ICCPR)1 on the domestic laws of States in the Middle East
region. The chapter approaches influence from the perspective of its legal features. It
conceives of influence as the presence of an enabling domestic legal environment by
way of the enactment, application, and interpretation of domestic laws compatible
with the ICCPR and the subsequent interpretations of the ICCPR by the Human
Rights Committee (HRC).2 The chapter confines the region-level investigation to
interactions between the ICCPR and the ten countries that are located in the geo-
graphical space of the Middle East and that are States parties to the ICCPR. These
States are Bahrain, Egypt, Iraq, Iran, Israel, Kuwait, Lebanon, Turkey, Syria, and
Yemen. The analysis excludes countries that are located in the region but are not
States parties to the ICCPR. These are Oman, Qatar, Saudi Arabia, and the United
Arab Emirates. It further excludes countries that share a common language and reli-
gion with most States in the region but are located solely in North Africa.
The primary sources used to identify region-level trends of influence are the
ratification and reservation practices of States, the periodic reports of States to the
HRC, shadow reports of non-governmental organizations, and the concluding ob-
servations of the HRC. Given the ever-increasing overlap between the ICCPR and
other UN human rights treaties, the chapter will be confined to what will be de-
limited as the six core domains of the ICCPR: states of emergency and counter-
terrorism legislation, the death penalty, the administration of justice, democratic
rights, the protection of minorities and indigenous peoples, and equality and non-
discrimination. These six core domains, together, make up the ICCPR’s vision of
what an enabling domestic legal environment for the protection of civil and political
rights must feature. They together reflect a commitment for the entrenchment of a

1 International Covenant on Civil and Political Rights (opened for signature 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR or the Covenant).
2 See Samantha Besson, ‘The Influence of the Two Covenants on States Parties across Regions’,
Chapter 11 in this volume.

Introduction 125

liberal, democratic, and multicultural domestic legal order based on the rule of law.
The ICCPR is the only UN treaty that regulates derogation in cases of emergency
and the death penalty. The remaining domains find further echoes in other UN
human rights treaties that offer issue-specific protections (ie the Convention against
Torture (UNCAT)3 and the Convention on the Elimination of All Forms of Racial
Discrimination (CERD)4) or group-specific protections (ie the Convention on the
Elimination of Discrimination against Women (CEDAW),5 the Convention on
the Rights of the Child (CRC),6 and the Convention on the Rights of Persons with
Disabilities (CRPD)7).
The central argument of this chapter is two-fold. First, it is argued that the path-
ways of the ICCPR’s influence on domestic law enactment, application, and in-
terpretation are structurally hampered in the Middle East region due to how the
ICCPR enters into domestic legal orders in the first place. The ICCPR’s entry into
domestic law is mired with reservations, the ambiguity of the ICCPR qua domestic
law in the region, and the irregular relationship between the HRC and the States
post-ratification. This amounts to the presence of limited legal opportunity struc-
tures in the region that would allow the ICCPR and the concluding observations of
the HRC to have a bearing on domestic law.8
Second, the chapter argues that the interactions between the HRC and the States
in the Middle East are governed primarily by defensive domestic legalism. The do-
mestic laws and their interpretation post-ratification, for the most part, fall sig-
nificantly short of the expectations of the HRC as formulated in the concluding
observations. Instead, States in the region hold that their already existing domestic
constitutional arrangements and laws offer adequate protection of civil and political
rights and point out that the HRC’s concluding observations are not ‘fit’ for a region
marked by conflicts and internal and external national security concerns. Cases of
the ICCPR operating as a mechanism for boosting existing constitutional civil and
political rights, as it does, for example, in Israel, Turkey, and Kuwait, are thus limited
and few and far between in the region.
Overall, this chapter’s granular empirical investigation confirms existing political
science wisdom that long-standing international human rights law (IHRL) influ-
ences are conditional on domestic legal and political opportunity structures9 and

3 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
4 Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 7
March 1966, entered into force 4 January 1969) 666 UNTS 195.
5 Convention on the Elimination of All Forms of Discrimination against Women (opened for signa-
ture 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.
6 Convention on the Rights of the Child (opened for signature 20 November 1989, entered into
force 2 September 1990) 1577 UNTS 3.
7 Convention on the Rights of Persons with Disabilities (opened for signature 13 December 2006,
entered into force 3 May 2008) 2515 UNTS 3.
8 On legal opportunity structures, see Chris Hilson, ‘New Social Movements: The Role of Legal
Opportunity’ (2002) 9 J of European Public Policy 238, and Ellen Ann Andersen, Out of the Closets
and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (University of Michigan
Press 2005).
9 Beth A Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (CUP 2009).
126

126 Influence of the ICCPR in the Middle East

that the conditions that would create receptive domestic partners for the ICCPR,
allowing it to have a widespread positive influence, are not yet present in the Middle
East region.10
This chapter has three parts. Section II addresses the methodological challenges
in surveying the influence of the ICCPR in the Middle East as a geographical re-
gion. Section III investigates how the ICCPR enters into domestic law and how the
States in the region interact with the HRC through reporting requirements. Section
IV turns to the HRC’s framing of the (in)compatibility of domestic laws with the
ICCPR in the six core domains outlined above and discusses the limitations of the
influence of the ICCPR in light of the logic of counterclaims by Middle Eastern
States.11

II. Challenges to Surveying the Influence

of the ICCPR in the Middle East

Investigating the influence of the ICCPR on the domestic laws of the Middle Eastern
countries poses three central challenges.
The first is geographic. How do we delimit the Middle East as a region for com-
parative analysis? The term ‘Middle East’ was first introduced in 1890. Over time
and in its various reiterations, it has encompassed an uncertain number of coun-
tries.12 Which countries are to be included in the Middle East for the purposes of
surveying the influence of the ICCPR? Is the Middle East a geographical space, a
political space, a cultural space, or a space imagined, defined, and redefined by the
West? Should the Middle East only cover States with Arabic culture and history?13
Does it also incorporate Iran and Turkey? Does it include Afghanistan or Pakistan to
the east or the States of North Africa to the west? This chapter employs a common
sense understanding of the region, rather than a linguistic or a political one. Doing
so permits inclusion of countries that are in more than one region, namely Turkey

10 One exception to this is Turkey, where the shadow of the European Court of Human Rights
(ECtHR), supported by the prospect of European Union membership, has indirectly influenced
ICCPR- respecting practices. See also Başak Çalı, ‘The Logics of Supranational Human Rights
Litigation, Official Acknowledgment and Human Rights Reform: The Southeast Turkey Cases before
the European Court of Human Rights, 1996–2006’ (2010) 35 Law and Social Inquiry 311.
11 See Stanley Cohen, ‘Government Responses to Human Rights Reports: Claims, Denials, and
Counterclaims’ (1996) 18 Human Rights Q 517.
12 On the history of the term ‘Middle East’, see Roderic H Davison, ‘Where is the Middle East?’
(1960) 38 Foreign Affairs 665. On the delimitation of the Middle East, see George Etzel Pearcy, ‘The
Middle East: An Indefinable Region’ (1959) 40 Department of State Bulletin 407.
13 eg Mehran Kamrava focuses on Arabic commonalities in his treatment of the Middle East and
defines Iran as outside of the Middle East imaginary. See Mehran Kamrava, The Modern Middle East: A
Political History since World War I (3rd edn, University of California Press 2013). Turkey has long con-
tested its place in the Middle East space and wishes to be seen as part of Europe. The Arab League, by
contrast, operates with a definition that includes all Arabic-speaking countries, regardless of whether
they are included in the standard Middle East space, and the Office of the High Commissioner for
Human Rights (OHCHR) operates with a definition of the Middle East and North Africa (MENA)
that includes Arab States, but excludes Turkey.
127

Challenges to Surveying the Influence of the ICCPR in the Middle East 127

and Egypt, a cross-section of countries that are also part of the sub-regional system
of the Arab Charter on Human Rights,14 and Israel, which is geographically in the
region, but is not politically affiliated to it. This selection allows an assessment of
whether a hybrid regional identity or a sub-regional identity makes a difference for
the influence of the ICCPR in the Middle East.
The second challenge is motivational. For those familiar with the political science
literature on the effects of human rights treaties, the proposed investigation is not
likely to yield interesting results when focusing on a political space called the Middle
East due to the prevalence of authoritarian States in the region for whom the rati-
fication of treaties is best conceived as a low-cost reputational signal.15 In fact, the
central finding of any research into the influence of the ICCPR in the Middle East
can be stated with little granular analysis: the ICCPR has had a negligible positive
influence on the corpus of domestic law, encompassing domestic legislation, admin-
istration, and adjudication, in the vast majority of Middle Eastern countries. This is
because most political and legal regimes in the Middle East are either unable or un-
willing to be responsive to the demands of the HRC’s interpretation of the ICCPR
as a living instrument.
The central explanation for this is the sizeable discrepancy between the HRC’s
domestic legal–institutional vision for the protection of ICCPR rights and the
legal–institutional arrangements prevalent across the Middle East. For the HRC,
the protection of ICCPR rights depends on political and legal regimes that are
committed to a pluralist democracy and the rule of law supported by strong in-
dependent judiciaries. Substantively, domestic institutions must be committed to
equality, non-discrimination, and the protection of cultural, religious, and ethnic
differences and vulnerabilities. In contrast to this vision, the Middle Eastern space is
comprised of authoritarian or semi-authoritarian States and weak judiciaries, with
the exception of Israel.16 The region is—or at least has been—plagued by civil war,
international armed conflict, military intervention, and invasion.17 The security
paradigm—in relation to internal and external threats—is in the foreground of do-
mestic political agendas in Middle Eastern countries. Domestic attitudes towards

14 The Arab Charter on Human Rights (opened for signature 22 May 2004, entered into force 15
March 2008) 12 IHRR 893 (2005) (the Arab Charter).
15 On the limited effects of international human rights treaties in authoritarian political regimes,
see generally: James Raymond Vreeland, ‘Political Institutions and Human Rights: Why Dictatorships
Enter into the United Nations Convention against Torture’ (2008) 62 International Organization 65;
Christine Min Wotipka and Kiyoteru Tsutsui, ‘Global Human Rights and State Sovereignty: State
Ratification of Human Rights Treaties, 1965–2001’ (2008) 23 Sociological Forum 724; Simmons,
Mobilizing (n 9); Thomas Risse, Stephen C Ropp, and Kathryn Sikkink (eds), The Persistent Power of
Human Rights: From Commitment to Compliance (CUP 2013).
16 Of all the region’s countries, the Freedom House 2017 report rates Israel as ‘free’, Turkey, Kuwait,
and Lebanon as ‘partly free’, and the rest of the countries studied as ‘not free’ (Freedom House, Freedom
in the World (2017) <https://freedomhouse.org/report/freedom-world/freedom-world-2017> accessed
29 May 2017).
17 Quintan Wiktorowicz, ‘The Limits of Democracy in the Middle East: The Case of Jordan’
(1999) 53 The Middle East J 606; Eva Bellin, ‘The Robustness of Authoritarianism in the Middle
East: Exceptionalism in Comparative Perspective’ (2004) 36 Comparative Politics 139; Mehran
Kamrava, ‘The Arab Spring and the Saudi-Led Counterrevolution’ (2012) 561 Orbis 96.
128

128 Influence of the ICCPR in the Middle East

ethnic, religious, and cultural differences are infused with preferences hostile to
non-majority groups and discourses18 and religion-grounded defences of patri-
archal structures.19 Given the strong link between the enjoyment of civil and pol-
itical rights and the absence of political repression and conflict, and the worsening
effects of the latter on the former,20 expecting positive influences of the ICCPR on
domestic laws in the Middle East is unrealistic, and even, perhaps, uninteresting as
a path of research inquiry. Ratification of the ICCPR in the region is more likely to
amount to empty promises in the absence of domestic incentives to reform existing
legal and political structures.
The third challenge is the difficulty of isolating the influence of the ICCPR on do-
mestic laws from the influence of other United Nations (UN) human rights treaties
or from the effects of a global human rights culture more generally. The latter is not
only generated by UN treaty mechanisms, but also by the UN Charter mechan-
isms.21 This includes the inter-State peer-to-peer review mechanism of Universal
Periodic Review (UPR) and bilateral interactions between the States of the Middle
East and those Western States that are human rights-promoting.22 It is often the case
that other UN treaty bodies, UN Charter mechanisms, or recommending States
under the auspices of UPR make similar recommendations to those made by the
HRC in the context of the ICCPR.23 The HRC, too, is open to influences from
other UN bodies. It allows for the permeability of rights24 and employs the living
instrument and the implied rights doctrines, resorting to quasi-judicial borrowing
to bring concerns not addressed in earlier concluding observations under review.25
The heightened emphasis on fighting gender stereotypes, concerns around child
soldiers, and the rights of migrant workers are some examples of this. This is a two-
way interaction. Other treaty bodies also take up points raised by the HRC in their
concluding observations.26 Given that countries in the Middle East are multiple

18 Joshua Castellino and Kathleen A Cavanaugh, Minority Rights in the Middle East (OUP 2013).
19 Fatma Müge Göcek and Shiva Balaghi (eds), Reconstructing Gender in the Middle East: Tradition,
Identity, Power (Columbia University Press 1994); Ann Elizabeth Mayer, Islam and Human
Rights: Tradition and Politics (4th edn, Westview Press 2007).
20 M Rodwan Abouharb, Book Review (2008) 70 J of Politics 563.
21 As envisaged in the Charter of the United Nations (opened for signature 26 June 1945, entered
into force 24 October 1945) 1 UNTS 1.
22 eg the fifth Yemeni periodic report makes references to the technical co-operation between Yemen,
the OHCHR, and the Danish Institute for Human Rights as contributors to the Yemeni human rights
reform agenda. See HRC, ‘Fifth Periodic Report of Yemen’ (8 January 2010) CCPR/C/YEM/5, para 45.
23 eg all UN treaty bodies recommend the ratification of UN treaties that have not yet been ratified
by a State and support the establishment of action plans on human rights as well as of National Human
Rights Institutions. Such recommendations yield positive results; see Sonia Cardenas and Andrew
Flibbert, ‘National Human Rights Institutions in the Middle East’ (2005) 59 The Middle East J 411.
24 See eg the recommendation of the HRC to Israel with respect to discrimination in access to water
(HRC, ‘Concluding Observations on the Third Periodic Report of Israel’ (3 September 2010) CCPR/
C/ISR/CO/3, para 8).
25 This includes eg the emphasis that the HRC places on gender stereotyping, the duty to combat
gender prejudices, domestic and sexual violence including marital rape, concerns about the stigmatiza-
tion of homosexuality, and migrant workers’ rights.
26 eg the recommendation of the CRC Committee to Bahrain with respect to the protection of the
civil rights and freedoms of children (CRC Committee, ‘Concluding Observations on the Second and
Third Reports of Israel’ (3 August 2011) CRC/C/BHR/Co/2-3, paras 38–46).
129

Challenges to Surveying the Influence of the ICCPR in the Middle East 129

ratifiers of UN treaties,27 it is therefore, empirically, more accurate to talk about the

influence of IHRL through the ICCPR rather than the influence of the ICCPR per
se on the domestic laws of States in the Middle East.
In addition, with respect to a sub-set of Middle Eastern countries, there is also a
regional human rights treaty, the Arab Charter on Human Rights, with its own treaty
monitoring mechanism, the Arab Human Rights Committee.28 The Arab Charter,
in its preamble, reaffirms the principles of the ICCPR. In article 43, it stipulates
that the Charter should not be interpreted as impairing the rights in the treaties that
have already been ratified by Arab States. Article 44 requires States to take legislative
measures to give effect to the rights protected in the Charter. On the one hand, it
may, therefore, operate as a regional vehicle for the influence of the ICCPR amongst
its States parties, provided that the Arab Human Rights Committee interprets the
Charter in sync with the ICCPR. On the other hand, the text of the Arab Charter
on Human Rights does not fully mirror the ICCPR. Significantly, it does not pro-
hibit cruel, inhuman, and degrading punishment, it allows for the imposition of the
death penalty on juveniles, it subjugates women’s rights in favour of Islamic Sharia,
and it allows limitations on freedom of religion solely in accordance with domestic
law.29 In the absence of a harmonious interpretation between the ICCPR and the
Arab Charter, the latter may thus offer a competing vision for sub-regional protec-
tion of civil and political rights. What we may view as the influence of the ICCPR
and the HRC’s recommendations, therefore, may in effect be the influences of a
broad culture of human rights law generated through these multi-actor processes,
globally and regionally, which may be both amplifying or undermining the influ-
ence of the ICCPR.
Given this cautious framing of the merits of analysing the influence of the ICCPR
on domestic laws in the Middle East region, what can be usefully discussed with
regard to the influence of the ICCPR qua ICCPR and the Middle East? The cen-
tral contention of this chapter is that this inquiry is meaningful in order to inves-
tigate the region-specific reasons for the limited legal influence of the ICCPR in
the Middle East and to better understand the terms of resistance to the concluding
observations of the HRC. In order to do this, this chapter comparatively surveys
(a) how the ICCPR enters into the domestic law realm in the first place in the region
by way of ratification, reservations, and administrative engagement with the HRC,
along with an assessment of the status of the ICCPR within the domestic legal or-
ders (Section III), and (b) how the Covenant operates as a resource for framing the
human rights law reform agenda in Middle Eastern countries with a specific focus

27 See Table 7.2.

28 The Arab Charter has currently been ratified by thirteen of the twenty-two member States of
the Arab League situated in the wider geography of the Middle East and North Africa. These States
are Algeria, Bahrain, Iraq, Kuwait, Lebanon, Jordan, Libya, Palestine, Qatar, Saudi Arabia, Syria, the
United Arab Emirates, and Yemen. Egypt, Morocco, Sudan, and Tunisia have signed but not yet ratified
the Charter. Collated from Center for Not-for-Profit Law, ‘Civic Freedom Monitor: League of Arab
States’ <www.icnl.org/research/monitor/las.html> accessed 17 June 2016.
29 See also Mervat Rishmawi, ‘The Arab Charter on Human Rights and the League of Arab States: An
Update’ (2010) 10 Human Rights L Rev 169, 171.
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130 Influence of the ICCPR in the Middle East

on civil and political rights and how this is resisted by States in the region (Section
IV). When seen in this more encompassing framework, despite the justified low
expectations of influence on domestic laws, it is argued that we are able to obtain a
more detailed picture of the potential of a long-term influence of IHRL through the
lens of the ICCPR in the Middle East.

III. Pathways for Influence: Ratification,

Reservations, Engagement, and Legal Status

The initial component of the ICCPR’s pathway to influence on domestic laws in

the Middle East are the terms on which the ICCPR enters into the domestic realm
in the first place. The extent and scope of legal support that the ICCPR receives in
the region through ratifications (including those of the Optional Protocols) and re-
servations is the starting point for this assessment. The Middle East stands out as a
region from the perspective of support by way of ratification, given that four signifi-
cant Middle Eastern countries are not States parties to the ICCPR. These are Oman,
Qatar, Saudi Arabia, and the United Arab Emirates.30 Given that, globally, most of
the States that have not yet ratified the ICCPR are small island States, the concen-
tration of four non-States parties to the ICCPR in one region is significant. What
is more, three of the non-ICCPR ratifiers (Qatar, Saudi Arabia, and the United
Arab Emirates) are States parties to the Arab Charter on Human Rights, signalling
a preference for a sub-regional alternative to civil and political rights protection
rather than the ICCPR. Middle Eastern countries are otherwise highly integrated
into the UN human rights treaty system. All States in the region are States parties to
the ICESCR,31 CERD, CRC, UNCAT, and CRPD. With the exception of Iran, all
States have also ratified CEDAW. Ratifications of the MWC32 and CPED,33 how-
ever, are not common.34 Table 7.1 sets out ratifications of human rights treaties by
States in the Middle East.
Countries in the Middle East acceded to the ICCPR at very different times. This
can be distilled into five waves of ratification. The first wave consisted of the early

30 The ICCPR has 168 States parties. There are only seven countries that have signed and not ratified
the ICCPR (China, Comoros, Cuba, Nauru, Palau, St Lucia, and São Tomé and Principe) and twenty-
four countries that have taken no action with respect to the ICCPR (Bhutan, Brunei Darussalam, the
Cook Islands, Fiji, the Holy See, Kiribati, Malaysia, the Marshall Islands, Micronesia, Myanmar, Niue,
Qatar, Oman, St Kitts and Nevis, Saudi Arabia, South Sudan, the Solomon Islands, Singapore, Tonga,
Tuvalu, and the United Arab Emirates). The four Middle Eastern non-parties to the ICCPR—Saudi
Arabia, Qatar, the United Arab Emirates, and Oman—are also not States parties to the ICESCR. They
have, however, all acceded to CERD, CEDAW, and the CRC.
31 International Covenant on Economic, Social and Cultural Rights (ICESCR) (opened for signa-
ture 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
32 International Convention on the Protection of the Rights of All Migrant Workers and Members
of their Families (opened for signature 18 December 1990, entered into force 1 July 2003) 2220 UNTS
3 (MWC).
33 International Convention for the Protection of All Persons from Enforced Disappearance (CPED)
(opened for signature 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3.
34 See Table 7.2.
13

Pathways for Influence 131

Table 7.1 UN human rights treaty commitment in the Middle East
ICCPR ICESCR CERD CEDAW CRC CAT CRPD CPED MWC

Bahrain Yes Yes Yes Yes Yes Yes Yes No No

Iraq Yes Yes Yes Yes Yes Yes Yes Yes No
Iran Yes Yes Yes No Yes No Yes No No
Israel Yes Yes Yes Yes Yes Yes Yes No No
Jordan Yes Yes Yes Yes Yes Yes Yes No No
Lebanon Yes Yes Yes Yes Yes Yes No No No
Syria Yes Yes Yes Yes Yes Yes Yes No Yes
Turkey Yes Yes Yes Yes Yes Yes Yes No Yes
Egypt Yes Yes Yes Yes Yes Yes Yes No Yes
Kuwait Yes Yes Yes Yes Yes Yes Yes No No
Yemen Yes Yes Yes Yes Yes Yes Yes No No

ratifiers, namely Syria, Iraq, and Lebanon, in the late 1960s and early 1970s. The
second wave, or the mid-1970s accessions, consisted of Iran and Jordan. The third
wave, or the 1980s ratifications, included Egypt and Yemen. The fourth wave, or
the ratifications that came about at the end of the Cold War, consisted of Israel
and Kuwait. The fifth wave, or the new millennium ratifications, was made up of
Turkey and Bahrain. Table 7.2 lists the dates of accession of Middle Eastern States
to the ICCPR.
The underlying motivations for ratifying the ICCPR vary in the region.35 In
particular, they point to the lack of region-level political dynamics and highlight
the importance of State-level considerations, tied to the low cost of ratification of
human rights treaties and international political incentives for ratification. Early
ratifications all came about when there was some domestic political stability in the
ratifying countries. Thus, the ratifications by Syria, Iraq, and Lebanon came about
in periods of relative calm in all three States and predate the more recent coups and
civil wars.36 The same is true for the 1970s ratifications by Jordan and Iran. In Egypt
and Yemen, the decision by domestic actors not to remain isolated from the inter-
national system motivated ratifications in the 1980s. The Israeli ratification of the
ICCPR took place in the context of the ongoing peace talks with the Palestinians
and was part of a larger ratification package that also included the UNCAT and the
ICESCR. Kuwait’s ratification of the ICCPR was part of a ratification surge in the
aftermath of the invasion and the country’s attempts to signal deeper integration

35 This argument, originally advanced by Andrew Moravcsick in the context of the European
Convention on Human Rights ratifications is viewed as one domestic reason (Andrew Moravsick,
‘The Origins of Human Rights Regimes: The Post War Delegation in Post War Europe’ (2000) 54
International Organization 217).
36 The Syrian ratification came before Assad’s bloodless coup of 1970. In Lebanon, it predates the
Lebanese civil war. In Iran, the ICCPR was ratified by Shah Pahlavi without any reservations.
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132 Influence of the ICCPR in the Middle East

Table 7.2 Accession to the ICCPR in chronological order
State Date of Accession

Syria 21 April 1969

Iraq 25 January 1971
Lebanon 3 November 1972
Jordan 28 May 1975
Iran 24 June 1975
Egypt 14 January 1982
Yemen 9 February 1987
Israel 3 October 1991
Kuwait 21 May 1996
Turkey 23 September 2003
Bahrain 20 September 2006
Qatar Has not ratified
UAE Has not ratified
Oman Has not ratified
Saudi Arabia Has not ratified

with the international community.37 In the case of Turkey, the late ratification is
best explained by the dominant role of the European Convention on Human Rights
(ECHR)38 as the leading civil and political rights treaty with respect to that State
and the European Union membership efforts in the early 2000s. In Bahrain, the re-
cent ratification of the ICCPR is best explained as a concession to rising opposition
to the King of Bahrain.39
Whilst heterogeneity is present at the level of the ratification of the ICCPR,
States in the region converge with respect to their lack of interest in the Optional
Protocols to the Covenant. With the exception of Turkey,40 none of the other ten
States have ratified the First Optional Protocol on the right to individual petition41
or the Second Optional Protocol on the abolition of the death penalty.42 The lack
of ratifications of the First Optional Protocol limits the engagement of the HRC to

37 cf Başak Çalı, Nazila Ghanea, and Benjamin Jones, ‘Domestic Effects of Human Rights Treaty
Ratification in the Member States of the Gulf Cooperation Council’ (2016) 38 Human Rights Q
21, 39.
38 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR).
39 ibid 40.
40 Turkey acceded to the Second Optional Protocol on 2 March 2006 and to the First Optional
Protocol on 24 November 2006.
41 First Optional Protocol to the ICCPR (opened for signature 16 December 1966, entered into
force 23 March 1971) 999 UNTS 171.
42 Second Optional Protocol to the ICCPR, aiming at the Abolition of the Death Penalty (opened
for signature 15 December 1989, entered into force 11 July 1991) 1642 UNTS 414.
13

Pathways for Influence 133

Table 7.3 Reservations to the ICCPR in the Middle East region

Syria Article 48(1) and diplomatic relations with Israel

Iraq Diplomatic relations with Israel
Lebanon None
Jordan None
Iran None
Egypt General reservation (Islamic Sharia)
Yemen Diplomatic relations with Israel
Israel Article 23
Kuwait Articles 2(1), 3, 23, and 25(b)
Turkey General reservation (territorial application) and article 27
Bahrain General reservation, articles 3, 18, 23, 9(5), and 14(7)

recommendations for legal, institutional, and policy change without giving it the
chance to interact with the specific decisions of the domestic courts in the region. As
most of the countries in the Middle East also give either no or few examples of how
the ICCPR is judicially implemented domestically,43 the absence of ratifications
of the First Optional Protocol seriously hampers the HRC’s chances of having any
impact on the judicial internalization of the ICCPR through individual case-based
interaction. As will be discussed in the following section, the lack of ratifications of
the Second Optional Protocol further means that ICCPR article 6, which delineates
careful and limited exceptions to the death penalty, becomes a central site through
which the ICCPR engages with and faces resistance in the Middle East.

A. Reservations to the ICCPR

The ICCPR is the most reserved-against UN human rights treaty. The ratifications
from the Middle East, shown in Table 7.3, reflect this.44 However, Middle Eastern
States show important divergences in their reservation practices with respect to the
Covenant. In this regard, two observations can be made.
First, despite the presence of large Muslim majorities and the constitutional status
of Islamic Sharia in Egypt, Yemen, Jordan, and Iran, not all Middle Eastern States

43 There are no examples of how the ICCPR is implemented by judges in the reports of Lebanon,
Jordan, and Egypt. See, respectively, HRC, ‘Concluding Observations on the Initial Periodic Report
of Lebanon’ (22 November 1996) CCPR/C/42/Add.14; HRC, ‘Concluding Observations on the
Fourth Periodic Report of Jordan’ (18 November 2010) CCPR/C/JOR/CO/4 (HRC, ‘Concluding
Observations: Fourth Report of Jordan’); HRC, ‘Combined Third and Fourth Periodic Reports of
Egypt’ (15 April 2002) CCPR/C/EGY/2001/3.
44 Universal Rights Group, ‘UN Human Rights Treaties Reservations Database’, on file with author.
See also Başak Çalı and Mariana Montoya, The March to Universality? Religion-based Reservations to Core
Human Rights Treaties (Universal Rights Group 2017) <www.universal-rights.org/urg-policy-reports/
march-universality-religion-based-reservations-core-un-human-rights-treaties-tell-us-human-rights-
religion-universality-21st-century/> accessed 26 May 2017.
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134 Influence of the ICCPR in the Middle East

have made reservations to the ICCPR concerning Islamic Sharia. Significantly, this
is true despite the fact that Sharia-based reservations are a common staple of re-
servations to the CEDAW and the CRC in the Middle East.45 Thus, for example,
Jordan, Lebanon, Iran, Iraq, Syria, and Yemen have not made any reservations to
the ICCPR. This is best explained by the lack of a ‘Sharia-based reservation’ trend
in the 1970s, when these States were ratifying the ICCPR, and the introduction of
this type of reservation for the first time by Egypt in 1982. In contrast, post-1980
ratifications of other treaties both by the very same States46 and by other States in the
Middle East featured prevalent references to Sharia.
The Egyptian reservation to the ICCPR is a statement indicating that Egypt would
comply with the ICCPR ‘to the extent that it does not conflict with Sharia’, and is a
classic example of a 1980s general reservation of this kind.47 Following this, similar
reservations have been made by other Middle Eastern States when acceding to human
rights treaties.48 The reservations of Bahrain to articles 3 (equality between men and
women), 18 (freedom of thought, conscience, and religion), and 23 (equality in family
life) of the ICCPR continue this practice and make direct references to Sharia law. With
respect to article 23, Kuwait also indicated that its personal status law based on Islamic
law governs family relations.49 In contrast, reservations by Kuwait to article 2(1) (non-
discrimination) and article 3 only indicated that Kuwait would implement these provi-
sions in so far as they are compatible with domestic law. Israel shares similarities to these
three countries with respect to its article 23 reservation. Therein, it limits the scope of
the ICCPR by making reference to personal status laws governed by the religious laws
of the individuals concerned.
Second, the Middle Eastern ICCPR reservations reflect the legacies of the Arab-
Israeli War of 1948. The early accessions by Iraq and Syria in the 1970s, as well as
the Yemeni accession in 1987, were made under the indication that accession to
the ICCPR does not signal any diplomatic relations with Israel. Turkey’s reserva-
tion to the ICCPR stands out in the region, as it seeks to limit the definition and
the scope of protection of minorities as laid out in the post-World War One Treaty

45 cf United Nations General Assembly (UNGA), ‘Report of the Committee on the Elimination
of Discrimination against Women’ (14 May 1998) A/53/38/Rev.1, pt II, ch 1, ‘Statements on the
Reservations to the Convention on the Elimination of All Forms of Discrimination against Women’.
46 Iran started to formulate Sharia-based reservations in its post-1979 Iranian revolution ratifica-
tions. See eg its reservation to the CRC (cf United Nations Treaty Collection (UNTC) ch IV.11 <https://
treaties.un.org/ Pages/ V iewDetails.aspx?src=IND&mtdsg_ n o=IV- 1 1&chapter=4&clang=_
en#EndDec> accessed 28 March 2017).
47 See Egypt’s reservation to the CESCR and ICCPR (UNTC, ch IV.3 <https://treaties.un.org/
pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en#EndDec> accessed 5
November 2015).
48 Interviews carried out by the author with officials from Saudi Arabia indicated that, after the
Egyptian reservation, it has become unthinkable for the Saudi authorities to accede to UN human
rights treaties without a similar reservation since the 1980s (interviews conducted at Doha, May 2013).
49 Kuwait’s reservation to art 25(b) on the grounds that only male candidates can run for election
has become obsolete after 2005 with the adoption of Act No 17 giving women the right to stand for
election. The reservation still does not allow members of the armed forces and the police to benefit from
the rights under art 25(b).
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Pathways for Influence 135

of Lausanne signed in 1923.50 Turkey, in light of its unresolved territorial dispute

with Cyprus, also seeks to limit the application of the ICCPR to the territory of the
Turkish Republic.
Third, all reservations that seek to limit the legal effect of the ICCPR made by
Middle Eastern States have attracted concern from the HRC. In its 2002 concluding
observations on Egypt, the HRC took issue with the State’s general reservation to the
ICCPR as a whole, and concluded that:
while observing that the State Party considers the provisions of the Islamic Shariah to be
compatible with the Covenant, the Committee notes the general and ambiguous nature of
the declaration made by the State party upon ratifying the Covenant. The State party should
either clarify the scope of its declaration or withdraw it.51
The Committee has also shown concern for Turkey’s general reservation on terri-
toriality and its reservation to article 27.52 The Committee has also been concerned
about reservations making reference to religious laws governing personal status, as
such laws can have discriminatory aspects and can strip individuals of their substan-
tive rights guaranteed by the Covenant.53 In the case of Iran, a country that made
no reservations to the ICCPR when it ratified the Covenant in 1975, the HRC ex-
pressed concern with ‘stealth reservations’ made through constant references to re-
ligious norms as primary tenets in State reports.54 The Committee has taken a clear
stance on Kuwait’s interpretative declaration subjecting ICCPR articles 2(1), 3, and
23 to limitations in Kuwaiti law and declared that the declaration ‘contravenes the
State party’s essential obligations under the Covenant and is therefore without legal
effect and does not affect the powers of the Committee’.55 In the light of this de facto
severance of the reservation, Kuwait was formally asked to withdraw the interpretive
declaration.56

B. Engagement with the Human Rights Committee

In the region, the engagement of States with the HRC shows important discrepan-
cies both through delays in regular reporting to the HRC and in the lack of follow-up
with its concluding observations and recommendations in previous reports.57 Delays

50 Treaty of Peace between the British Empire, France, Italy, Japan, Greece, Romania, and the Serb-
Croat-Slovene State and Turkey (signed 24 July 1923 at Lausanne) 28 LNTS 1–4 (1924).
51 HRC, ‘Concluding Observations on the Third and Fourth Periodic Reports of Egypt’ (28
November 2002) CCPR/CO/76/EGY, para 5.
52 HRC, ‘Concluding Observations on the Initial Periodic Report of Turkey’ (13 November
2012) CCPR/C/TUR/CO/1, para 9.
53 cf HRC, ‘Concluding Observations on the Fourth Periodic Report of Israel’ (21 November
2014) CCPR/C/ISR/CO/4.
54 HRC, ‘Concluding Observations on the Third Periodic Report of Iran’ (29 November
2011) CCPR/C/IRN/CO/3, para 5.
55 HRC, ‘Concluding Observations on the Initial Periodic Report of Kuwait’ (27 July 2000) CCPR/
CO/69/KWT, para 4.
56 ibid. This is also repeated in HRC, ‘Concluding Observations on the Second Periodic Report of
Kuwait’ (18 November 2011) CCPR/C/KWT/CO/2, para 7.
57 It must be noted that delays in reporting are not a region-specific issue in the case of the ICCPR.
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136 Influence of the ICCPR in the Middle East

in reporting limit both the quality and the quantity of interactions between the HRC
and member States by not offering any opportunity to follow up on how the State is
progressing in implementing the ICCPR and the recommendations of the HRC and
bringing its legislation and practice into line with those requirements.
With regard to some Middle Eastern States, there has been close to no continuous
interaction between the HRC and the State concerned. Bahrain has not submitted
any reports to the HRC since its accession to the ICCPR in 2006.58 The last report
by Lebanon was submitted in 199659 and was reviewed in 1997. There has been no
meaningful assessment of the ICCPR’s influence in Lebanon since then. In the case of
Egypt, there have been three delayed reports to the HRC since 1987.60 The fifth report
has been pending since 2004. Jordan submitted its fourth periodic report twelve years
late, in 2009, and has not submitted its fifth.61 In the case of Iraq and Iran, engage-
ment with the HRC resumed after a two-decade long break. The fifth Iraqi periodic
report was submitted thirteen years late, in 2013 (twenty years after the fourth report
in 1993). Iran’s third periodic report arrived eighteen years after the second. Syria sub-
mitted its second report in 2000—twenty-four years after the first. Its fourth report has
been pending since 2009. Ten years elapsed between the first and the second reports of
Kuwait (which were submitted in 1999 and 2009, respectively), but a third report ar-
rived in 2014. Israel’s initial report was five years late, but since then Israel has continued
its engagement with the HRC on a regular basis.62 Yemen is the only country in the
region that has not had a seriously interrupted exchange with the HRC.
When the reports have been submitted, a commonplace criticism of the region by
the HRC has been that Middle Eastern States do not offer sufficient information on
the implementation of the Covenant in practice and on the factors and difficulties
restraining its effective implementation.63 Instead, States offer ample information
on the prevailing legislation and other domestic legal frameworks.64 Significantly,
States provide little or no information as to how the domestic judiciaries interact
with the ICCPR in their case law65 and how the ICCPR qua ICCPR has had an
influence on legislative changes and human rights policy-making.66 A common

58 For this reason, further discussion of Bahrain is omitted after this section.
59 HRC, ‘Second Periodic Report of Lebanon’ (22 November 1996) CCPR/C/42/Add.14.
60 Egypt submitted a joint third and fourth report to the HRC and was asked to avoid this in the
future (HRC, ‘Concluding Observations: Third and Fourth Reports of Egypt’ (n 51) para 2.
61 HRC, ‘Fourth Periodic Report of Jordan’ (30 March 2009) CCPR/C/JOR/4.
62 HRC, ‘Initial Periodic Report of Israel’ (2 June 1998) CCPR/C/81/Add.13.
63 See HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 2; HRC, ‘Concluding
Observations on the Second Periodic Report of Egypt (9 August 1993) CCPR/C/79/Add.23, para 2;
HRC, ‘Second Periodic Report of Yemen’ (12 October 1993) CCPR/C/82/Add.1, para 243; HRC,
‘Concluding Observations on the Second Periodic Report of Lebanon’ (5 May 1997) CCPR/C/79/
Add.78, para 2; HRC, ‘Concluding Observations on the Initial Periodic Report of Israel’ (18 August
1998) CCPR/C/79/Add.93.
64 eg Lebanon’s 1996 Report is particularly telling, as it simply states regarding most of the ICCPR’s
provisions that ‘there is nothing to report.’ See HRC, ‘Second Report of Lebanon’ (n 59) para 81.
65 See eg the List of Issues (CCPR/C/IRN/Q/3) to be taken up in connection with the consideration
of the third Iranian periodic report (HRC, ‘Third Periodic Report of Iran’ (31 May 2010) CCPR/C/
IRN/3, para 1).
66 eg Iraq, in its second periodic report in 1987, indicated that all Iraqi law was fully compliant with
the ICCPR (See HRC, ‘Second Periodic Report of Iraq’ (18 July 1986) CCPR/C/37/Add.3).
137

Pathways for Influence 137

lacuna in the reports concerns information about the involvement of all relevant
ministerial stakeholders and civil society organizations in their compilation.67
A qualitative mark of the engagement between Middle Eastern States and the
HRC is that these States constantly reference extra-territorial circumstances, civil
wars, and terrorist activities affecting the enjoyment of Covenant rights. Such cir-
cumstances include, inter alia, the ten-year war between Iraq and Iran, the Lebanese
civil war, the Yemeni civil war, and the UN Security Council sanctions in Iraq. The
HRC regularly makes note of these circumstances as allowing for legitimate limi-
tations of the enjoyment of rights,68 but also vents its frustrations as to the lack of
concrete examples of how these justifications absolve countries of the responsibility
to protect ICCPR rights. During its consideration of Iraq’s third periodic report,
in 1991, the HRC took a step forward from the otherwise diplomatic language re-
quiring meaningful, concrete engagement, as habitually prevalent in its concluding
observations. It stated that ‘the representative of the state party had engaged in a
kind of monologue or ‘stonewalling’ and sought constantly to evade certain issues
and avoid responding to legitimate questions’.69 In addition, there is often a ‘fa-
tigued’ tone in HRC reports, showing disappointment in the lack of any follow-up
to its previous concluding observations. There is also often a resigned repetition of
the same recommendations and statements. An example of such language can be
seen in the recommendation that Kuwait ‘should officially recognize ethnic, reli-
gious or linguistic minorities as such and ensure the protection and promotion of
their rights in compliance with article 27 of the Covenant’.70
Interactions between the HRC and the Middle Eastern States, therefore, offer a
general pattern wherein States foreground the domestic political circumstances, in
particular the existence or threat of violence (be this due to armed conflict or ter-
rorism) as a blanket defence of the prevailing domestic laws against the demands
of the ICCPR. Middle Eastern States also mobilize arguments with respect to the
feasibility of the HRC’s vision of the protection of civil and political rights, making
frequent references to broadly conceived contextual constraints.

C. Domestic legal status of the ICCPR

The domestic legal status of the ICCPR in Middle Eastern countries exhibits
varying degrees of ambiguity. All countries in the Middle East (with the exception

67 One exception to this is represented by the Israeli reports, in reaction to which the HRC has
commended the dissemination of the State reports to non-governmental organizations prior to consid-
eration by the Committee (see HRC, ‘Concluding Observations: Initial Report of Israel’ (n 63) para 3).
68 On the recognition of the ten-year Iran-Iraqi war, see HRC, ‘Concluding Observations on the
Fourth Periodic Report of Iraq’ (19 November 1997) CCPR/C/79/Add.84, para 2 (HRC, ‘Concluding
Observations: Fourth Report of Iraq’). On the recognition of the Yemeni civil war, see HRC, ‘Concluding
Observations on the Second Periodic Report of Yemen’ (30 March 1995) A/50/40, para 245.
69 HRC, ‘Concluding Observations on the Third Periodic Report of Iraq’ (10 October 1991) A/46/
40, para 651. The post-Saddam regime report of 2013 has indicated that Iraq concurs with the con-
cluding observations adopted by the HRC following its Saddam-era reports (cf HRC, ‘Fifth Periodic
Report of Iraq’ (12 December 2013) CCPR/C/IRQ/5, para 3).
70 HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 31.
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138 Influence of the ICCPR in the Middle East

of Iran) allow for a formal legal status of the Covenant in the domestic legal system.
International treaties, once ratified and promulgated in the official gazettes, have the
power of domestic law. In Iran, the ICCPR enjoys no formal status in the domestic
legal system.71 In Israel, the ICCPR has not yet been incorporated into national law.
However, it may enjoy persuasive authority if and when invoked by domestic courts,
or may be made authoritative if conceived of as customary international law.72
There are two central regional commonalities concerning the domestic legal status
of the ICCPR: the prevalence of domestic constitutionalism and the prevalence of
open conflict between the ICCPR and domestic law. Middle Eastern countries view
their own constitutions and the interpretation of those constitutions by constitu-
tional courts (where they exist) as offering adequate protection of the ICCPR do-
mestically. In Egypt, for example, the government defines the 1971 Constitution
as the fundamental legal instrument that defines rights and freedoms.73 In Kuwait,
the Kuwaiti Constitution of 1962 is described as a document that highlights human
rights and ascribes to them ‘the elevated status they deserve’.74 The ICCPR, there-
fore, is protected by the mere existence of constitutional provisions on civil and pol-
itical rights75 and the presence of domestic courts.76 States hold on to this ‘formal’
argument even when there are discrepancies between the texts of their own consti-
tutions and the ICCPR.77
The States of the Middle East are often silent on the legal value of the HRC’s in-
terpretation of the ICCPR as a method for interpreting constitutional rights. The
widespread lack of acceptance of the right to individual petition before the HRC
means that domestic courts have no opportunities to engage with the case law of the
HRC directly. Even if courts do openly engage with the HRC’s case law and guid-
ance in other contexts, as in the case of Israel, thus far such engagement has been part
of a comparative law exercise rather than an exercise in harmonious interpretation.78
Turkey, the only State that has accepted the right to individual petition before the
HRC, also does not engage with the HRC’s guidance on a regular basis. References
to the HRC are few and far between. In the case of Turkey, however, the European
regional system’s influence on domestic constitutionalism, rather than domestic
constitutionalism per se, may offer an explanation for the lack of engagement with

71 HRC, ‘Concluding Observations: Third Report of Iran’ (n 54) para 5.

72 Ruth Lapidoth, Orna Ben-Naftali, and Yuval Shani, The Obligation to Incorporate Human Rights
Conventions into Israeli Law, position paper (Rishon LeZion 2004).
73 HRC, ‘Third and Fourth Reports of Egypt’ (n 43) para 46 and 54.
74 HRC, ‘Initial Report of Kuwait’ (3 December 1999) CCPR/C/120/Add.1, para 20.
75 ibid paras 16–20.
76 See also Egypt’s written response to the HRC’s Questions in HRC, ‘Third and Fourth Reports of
Egypt’ (n 43) para 640.
77 ibid para 49. In the case of Yemen, the HRC found that the human rights protections in the
Yemeni Constitution offer less protection than the ICCPR, which puts the idea of protecting ICCPR
rights via the Constitution at risk. See HRC, ‘Concluding Observations: Second Report of Yemen’ (n
68) para 251.
78 Israeli High Court of Justice, HCJ 7146/12 Adam et al v the Parliament (16 September 2013) para
93. See also Yaël Ronen, ‘The Use of International Jurisprudence in Domestic Courts: The Israeli
Experience’ (April 2015) The Hebrew University of Jerusalem Research Paper <http://ssrn.com/ab-
stract=2599016> accessed 21 June 2016.
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Pathways for Influence 139

the HRC. Turkey boosted the effect of the ECHR and the corresponding case law
in the domestic system through the introduction of the right to individual petition
before the Turkish Constitutional Court for rights at the intersection of the ECHR
and the Turkish Constitution in 2012, after which citations of the case law of the
European Court of Human Rights have become common place in the case law of
the Constitutional Court.79
Second is the prevalence of domestic laws that contradict the ICCPR and its
interpretation by the HRC. Whilst it is generally acknowledged that the ICCPR
has the status of law, can prevail over legislation, and can (at least) theoretically be
invoked before domestic courts, there is scarce evidence of its active employment
in domestic courts.80 There is further ambiguity with respect to the relationship be-
tween the ICCPR and legislation that postdates its ratification.81 Despite assurances
by States in their reports, the HRC often raises concerns about the lack of clarity on
the primacy of the Covenant over conflicting or contradictory national legislation,
as States fail to provide consistent evidence of this theoretical position and, often,
most evidence is contradictory evidence. States further tend to hold that existing
legislation is compatible with the ICCPR.82
In the case of conflicts between Sharia-based domestic law and the ICCPR, the
ambiguity of the legal status of the ICCPR becomes even more pronounced.83 States
also push back against the necessity of the ICCPR’s domestic legal effects if its pro-
visions are deemed to conflict with Sharia law. Iran holds the most uncompromising
position in this regard. The Arab Charter further echoes the centrality of Sharia law
in giving effect to civil and political rights.
In the face of both the formal and the practical ambiguity of the place of the
ICCPR in domestic legal systems, the HRC sticks to its repetitive position that
States have a duty to give legal effect to the ICCPR and, if necessary, amend legisla-
tion and constitutional provisions to ensure the compatibility of the legal order with
the ICCPR.84 Despite the long history of ICCPR ratifications in the Middle East,
therefore, domestic legal systems across the region are significantly closed to the do-
mestic legal influence of the ICCPR through courts. In practice, domestic constitu-
tionalism and legalism emerge as forces of resistance to the influence of the ICCPR
in domestic legal systems. Significantly, Middle Eastern States posit the ICCPR as
interpreted by domestic legal orders as an alternative to the ICCPR as interpreted by

79 See Başak Çalı, ‘Third Time Lucky: The Turkish Constitutional Court and a Woman’s Right
to Identity’ (EJIL Talk!, 29 January 2014) <www.ejiltalk.org/third-time-lucky-the-dynamics-of-the-
internationalisation-of-domestic-courts-the-turkish-constitutional-court-and-womens-right-to-
identity-in-international-law/> accessed 19 June 2016.
80 The two exceptions to this, where there are examples of domestic courts making reference to the
ICCPR, are Kuwait and Israel. See eg HRC, ‘Initial Report of Israel’ (n 62) para 42.
81 HRC, ‘Second Periodic Report of Syria’ (25 August 2000) CCPR/S/SYR/2000/2, para 29.
82 HRC, ‘Third Periodic Report of Jordan’ (26 May 1992) CCPR/C/76/Add.1, para 4.
83 On the ambiguity of the ICCPR’s place in the Kuwaiti domestic system with respect to Sharia, see
HRC, ‘Concluding Observations: Second Report of Kuwait’ (n 56) para 6.
84 eg the HRC asked for the amendment of Israeli Basic Laws to include the principle of non-
discrimination. See HRC, ‘Concluding Observations: Third Report of Israel’ (n 24) para 6.
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140 Influence of the ICCPR in the Middle East

the HRC. As discussed below, this is a recurrent theme in the six core domains of the
HRC’s interpretation of the ICCPR.

IV. Resistance to HRC’s Concluding

Observations in the Middle East Region
The tension between the HRC’s interpretation of the ICCPR and domestic visions
for the protection of human rights is a prevalent theme in State reports and responses
to the HRC’s concluding observations. Here, the analysis will highlight six central
areas of interconnected and independent contention that are within the core com-
petencies of the ICCPR.

A. States of emergency, counter-terrorism,

and extraordinary judicial practices
States in the Middle East stand out because they live under quasi-permanent forms of
states of emergency—be these de jure or de facto—or suffer from non-international
armed conflicts. Three States (Egypt,85 Israel,86 and Syria87) have been ruled by
long-term de jure state of emergency laws throughout their interaction with the
HRC. Emergency rule has been declared, lifted, and reintroduced in Iraq, Yemen,
Lebanon, Jordan, Turkey, Egypt, and Bahrain.88 There has been a recurrent non-
international armed conflict in the territories of Turkey. At the time of writing, there
are ongoing non-international armed conflicts in Yemen, Iraq, and Syria,89 along-
side the fifty-year occupation of Palestine by Israel.90 Vis-à-vis all countries in this

85 Egypt’s state of emergency was declared in 1981. It was lifted in 2012 after thirty-one years. Since
then, a state of emergency has been declared again multiple times. More recently, a three-month state of
emergency was declared in April 2017. See also Nathan Brown, ‘Egypt is in a State of Emergency and
Here is What It Means for Its Government’ Washington Post (Washington, DC, 13 April 2017).
86 Israel has remained under a state of emergency from 19 May 1948 until the present day. See also
HRC, ‘Concluding Observations: Third Report of Israel’ (n 24) para 11.
87 Syria was under a de jure state of emergency between 1963 and 2011. The formal lifting of the state
of emergency, however, coincided with the start of the Syrian conflict in 2011. See ‘Syria Protests: Assad
to Lift State of Emergency’ BBC News (20 April 2011) <www.bbc.com/news/world-middle-east-
13134322> accessed 26 May 2017.
88 More recently, having lifted its states of emergency in 2002, Turkey reintroduced state of emer-
gency laws in 2016 in reaction to a failed coup attempt. See Martin Scheinin, ‘Turkey’s Derogation from
Human Rights Treaties: An Update’ (EJIL Talk!, 18 August 2016) <www.ejiltalk.org/turkeys-derogation-
from-human-rights-treaties-an-update/> accessed 26 May 2017. Iraq reintroduced a state of emer-
gency in 2016 after protesters stormed into Parliament (Dominic Smith, ‘Baghdad State of Emergency
Declared after Protesters Storm Parliament’ The Guardian (30 April 2016) <www.theguardian.com/
world/2016/apr/30/moqtada-al-sadr-supporters-enter-baghdad-parliament-building-green-zone> ac-
cessed 26 May 2016).
89 On the classification of conflicts in the Middle East region depending on their intensity, use of
weapons, and the level of command and control of opposing armed forces, see ‘Rule of Law’ in ‘The
Rule of Law in Armed Conflicts’ project of the Geneva Academy of International Humanitarian Law
and Human Rights <www.rulac.org/browse/countries> accessed 26 May 2017.
90 UN Security Council Res 2334 (23 December 2016) S/RES/2334 (2016).
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Resistance to HRC’s Concluding Observations in the Middle East Region 141

study, the HRC has continuously raised concerns about the ambiguity of the scope
of state of emergency powers, a lack of judicial safeguards against the application of
state of emergency laws, and a lack of official notification to the HRC with respect to
any derogations from the ICCPR.91 In times when States in the Middle East are not
governed by states of emergency, existing counter-terrorism legislation and practices
often lead to de facto state of emergency practices undermining both the derogable
and non-derogable rights protections envisaged by the HRC’s autonomous inter-
pretation of the ICCPR.92
The HRC, in this domain, constantly reiterates the incompatibility of such do-
mestic practices with the ICCPR. This framing often focuses on the effects of state
of emergency legislation and counter-terrorism laws and practices on the effective
enjoyment of rights. With respect to Israel’s state of emergency rules, for example,
the HRC has insisted that derogation from ICCPR article 9 leads to the frequent
use of administrative detention—thus failing to respect the proportionality test for
derogable rights. The HRC has also held that Israeli state of emergency laws have
practical effects on non-derogable fair trial rights (ICCPR articles 4, 14, and 24) and
that the State’s de facto derogation goes beyond the permissible for article 9 deroga-
tions.93 Vis-à-vis Syria, the HRC has highlighted the lack of clarity of state of emer-
gency laws and the lack of judicial remedies to challenge treatment under them.94
The HRC has also raised concerns about the fact that state of emergency domestic
frameworks often lack the clear distinction between derogable and non-derogable
rights required by the ICCPR.95
In the Middle East, the HRC has also been intensely preoccupied with the broad
scope of counter-terrorism laws in force. It has criticized Egypt,96 Jordan,97 Israel,98
and Yemen99 for their broad definitions of ‘terrorist activities’ in terrorism legisla-
tion and for the knock-on effects of domestic legal ambiguity for the enjoyment
of the full range of civil and political rights, as well as for systemic values under-
lying the Covenant, such as the requirements of the principle of legality with regard
to accessibility, equality, precision, and non-retroactivity. The HRC points to how
counter-terrorism legislation undermines the non-derogable rights of fair trial and
equality of arms.100 In the face of this, Middle Eastern States defend their state of

91 See eg HRC, ‘Concluding Observations: Second Report of Lebanon’ (n 63) para 10; HRC,
‘Concluding Observations on the Second Periodic Report of Israel’ (21 August 2003) CCPR/CO/78/
ISR, para 13.
92 cf HRC, ‘General Comment 29’ in ‘Note by the Secretariat, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies’ (2008) HRI/GEN/1/Rev.9
(vol 1) 234.
93 HRC, ‘Concluding Observations: Third Report of Israel’ (n 24) para 7.
94 HRC, ‘Concluding Observations on the Second Periodic Report of Syria’ (24 April 2001) CCPR/
CO/71/SYR, para 7.
95 HRC, ‘Concluding Observations on the Fifth Periodic Report of Yemen’ (23 April 2012) CCPR/
C/YEM/CO/5.
96 HRC, ‘Third and Fourth Reports of Egypt’ (n 43) para 16.
97 HRC, ‘Concluding Observations: Fourth Report of Jordan’ (n 43) para 6.
98 HRC, ‘Concluding Observations: Second Report of Israel’ (n 91) para 14; HRC, ‘Concluding
Observations: Fourth Report of Israel’ (n 53) para 13.
99 HRC, ‘Concluding Observations: Fifth Report of Yemen’ (n 95) para 8. 100 ibid.
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142 Influence of the ICCPR in the Middle East

emergency legal frameworks and counter-terrorism laws through the prism of do-
mestic legalism and formal constitutional or legal safeguards, with no engagement
with the ICCPR’s requirements on derogation clauses.
In Israel, the pushing back of the HRC’s framing further extends to the applic-
ability of the ICCPR in the occupied Palestinian Territories. The HRC has held
that the applicability of international humanitarian law in the territories does not,
of itself, impede the application of the ICCPR.101 Israel, on the other hand, argues
that the ICCPR is a ‘territorially bound treaty and does not apply with respect to
individuals under its jurisdiction, but outside its territory’ and that the ICCPR does
not apply when international humanitarian law is applicable.102 This standoff has,
thus far, continued in the interactions between the HRC and Israel.

B. Death penalty
In the States in the Middle East, many crimes are punishable by death—thereby
leaving the region outside global norms. This includes some States where the
death penalty is applicable to certain crimes committed by those under the age of
eighteen.103 The resistance to ICCPR article 6 standards on the death penalty is
reflected in article 7 of the Arab Charter. This provision bans the imposition of the
death sentence on those under the age of eighteen ‘unless otherwise stipulated in the
laws in force at the time of the commission of the crime’.
The HRC’s view on the obligations of States with respect to article 6 has long been
that they must take steps to limit the imposition of the death penalty with a view to
it being abolished. They must also respect the ICCPR standard of not imposing the
death penalty on juveniles and pregnant women. The HRC often finds that most
domestic laws on the death penalty are vague and do not meet the strict scrutiny
required under the ‘most serious crimes’ clause under article 6.104 In Iran, the HRC
is concerned with the extremely high number of death sentences imposed as well as
the large number of crimes for which capital punishment is applicable and used.105
With regard to Kuwait, the HRC has noted that the crimes for which the death pen-
alty is applicable are vague and include references to internal and external security
and drug-related crimes.106
With the exception of Israel and Turkey, which have abolished or strictly limited
the use of the death penalty, the general trend in the Middle East contradicts the
HRC’s interpretation of article 6. Retrogressive measures have also been introduced
in the region by the expansion of the category of crimes for which the death penalty

101 HRC, ‘Concluding Observations: Initial Report of Israel’ (n 63) para 10.
102 HRC, ‘Concluding Observations: Fourth Report of Israel’ (n 53) para 5.
103 HRC, ‘Concluding Observations: Fourth Report of Iraq’ (n 68) para 10.
104 HRC, ‘Third and Fourth Reports of Egypt’ (n 43) para 12; HRC, ‘Concluding
Observations: Second Report of Syria’ (n 94) para 9; HRC, ‘Second Report of Yemen’ (n 63) para 256;
HRC, ‘Concluding Observations on the Third Periodic Report of Yemen’ (12 August 2002) CCPR/
CO/75/YEM, para 15.
105 HRC, ‘Concluding Observations: Third Report of Iran’ (n 54) para 12.
106 HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 8.
143

Resistance to HRC’s Concluding Observations in the Middle East Region 143

is applicable107 and by imposing the death penalty on juveniles.108 A further excep-

tion here is Jordan. It is the only country that has moved away from the regional
trend of domestic autonomous interpretation of article 6. Following a call by the
HRC, initially in 1994, Jordan placed a moratorium on the death penalty in 2007
and reduced the number of offences that are punishable by death.109

C. Extraordinary administration of justice systems

The HRC regularly finds discrepancies concerning the judicial protection of
freedom from torture, security and liberty of person, and fair trial guarantees in the
countries under study here. Such discrepancies are made all the more significant
due to the prevalence of extraordinary justice systems, including military justice
systems,110 state security courts,111 special courts,112 and revolutionary courts.113
Such extraordinary justice systems rely on the logic of states of emergency or have
special powers under counter-terrorism legislation. The broad powers of extraor-
dinary justice systems span arresting, detaining, interrogating, and trying civilians,
including children.114 These extraordinary judicial institutions raise a range of fair
trial concerns,115 both in terms of the independence and impartiality of such insti-
tutions and of their inability to meet equality of arms standards.116 The forty-eight
hour pre-trial detention limit established by the HRC also means that the HRC
finds most practices of lengthy detentions by these judicial institutions to represent
structurally arbitrary detention practices that also create a risk of disappearances.117
The judicial prevention of torture is also undermined in these situations, as there is
no positive protection against torturers by way of the criminalization of torture118

107 cf the HRC’s concerns with respect to the extension of the range of crimes carrying the death
penalty in Lebanon. See HRC, ‘Concluding Observations: Second Report of Lebanon’ (n 63) para 20.
108 cf Committee on the Rights of the Child ‘Concluding Observations on the Third and Fourth
Periodic Reports of Egypt’ (20 June 2011) CRC/C/EGY/Co/3-4, para 39.
109 HRC, ‘Third Periodic Report of Jordan’ (30 March 2009) CCPR/C/JOR/3, para 5.
110 HRC, ‘Concluding Observations: Fourth Report of Israel’ (n 53) para 7; HRC, ‘Concluding
Observations: Second Report of Lebanon’ (n 63) para 13.
111 HRC, ‘Concluding Observations: Second Report of Lebanon’ (n 63) para 14; HRC, ‘Concluding
Observations: Third Periodic Report of Syria’ (9 August 2005) CCPR/CO/84/SYR, para 9.
112 HRC, ‘Concluding Observations: Fourth Report of Jordan’ (n 43) para 12.
113 HRC, ‘Concluding Observations: Third Report of Iran’ (n 54) para 21.
114 Cf HRC, ‘Concluding Observations: Second Report of Lebanon’ (n 63) para 14.
115 eg in Egypt the President had powers to refer cases to State security courts and the right to ratify
judgments and to grant pardons until State security courts were abolished in 2008. (HRC, ‘Third
and Fourth Reports of Egypt’ (n 43) para 9). After the promulgation of the 2014 Constitution, the
President, however, continues to have the power to refer cases to state of emergency courts (‘Egypt’s
Emergency Law Explained’ Al Jazeera (April 2017) <www.aljazeera.com/indepth/features/2017/04/
egypt-emergency-law-explained-170410093859268.html> accessed 29 May 2017).
116 HRC, ‘Concluding Observations: Fourth Report of Israel’ (n 53) para 7; HRC, ‘Concluding
Observations: Initial Report of Kuwait’ (n 55) para 10.
117 HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 12. The HRC has, in the
past, made direct use of the Report of the Working Group on Enforced or Involuntary Disappearances
(21 December 1999) E/CN.4/2000/64 (HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n
55) para 11; HRC, ‘Concluding Observations: Third Report of Iraq’ (n 69) para 590).
118 HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 16.
14

144 Influence of the ICCPR in the Middle East

(for example in Israel,119 Kuwait,120 or Egypt121), despite nearly region-wide ratifi-
cation of the UNCAT.

D. Non-discrimination and equal citizenship agenda

A common point of resistance between the HRC and Middle Eastern States in their
interactions is either the States’ refusal to view a legal practice as discriminatory or
their tendency to take a largely positive view on whether de facto discrimination
exists in society.
In the first sense, countries in the Middle East argue both for the primacy of their
national laws and for the lack of discriminatory intent in them. Here, three points
of contention on the adequacy of national laws emerge. First, in countries where
Sharia law or other religion-based laws form the basis of legislation (be it in a wide
sense or only for personal status laws), governments defend domestic law as lacking
discriminatory intent. Instead, counter-arguments by States to concluding obser-
vations concern the unquestionability of such laws. Second, when the law in place
does not have a religious basis, governments point to the illegality of the claims made
by groups under the banner of discrimination. Bedouins in Kuwait, for example,
are illegal residents.122 A Bedouin in Israel cannot hold a title to land,123 and the
extension of nationality is framed as a sovereign prerogative.124 Third, States in the
Middle East employ public order or security clauses too easily to restrict the rights
of minority groups.125
The reiterated interactions between the HRC and the States of the Middle East on
the points of the legality of discriminatory measures, therefore, often finish at a dead
end, with both the State in question and the HRC holding their positions. With re-
spect to the Yemeni argument that it is impossible to fulfil HRC recommendations
that contradict Sharia law, for example, the HRC stresses the duty of all States ‘re-
gardless of their political, economic and cultural systems to protect all human rights
and fundamental freedoms’.126

119 As concerns Israel, the HRC has raised concerns that the ‘defence of necessity’ may be allowed
by domestic courts with respect to torture practices (HRC, ‘Concluding Observations: Third Report of
Israel’ (n 24) para 11).
120 HRC, ‘Concluding Observations on the Third Periodic Report of Kuwait’ (11 August
2016) CCPR/C/KWT/CO/3, para 24.
121 HRC, ‘Concluding Observations: Second Report of Egypt’ (n 63) para 13. See also Amnesty
International, ‘Egypt: Officially You Do Not Exist—Disappeared and Tortured in the Name of
Counter-Terrorism’ (13 July 2016) <www.amnesty.org/en/documents/mde12/4368/2016/en/> ac-
cessed 29 May 2017.
122 HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 15.
123 HRC, ‘Concluding Observations: Fourth Report of Israel’ (n 53) para 24.
124 In Egypt, Kuwait, Lebanon, Iran, Jordan, and Bahrain, women cannot pass citizenship on to
their children. Yemen amended its laws in this respect, granting women the right to confer nationality
in 2010.
125 HRC, ‘Concluding Observations: Third Report of Iran’ (n 54) para 24 (on the arrests of Baha’is
and Muslims who had converted to other religions).
126 HRC, ‘Concluding Observations on the Fourth Periodic Report of Yemen’ (9 August
2005) CCPR/CO/84/YEM, para 5.
145

Resistance to HRC’s Concluding Observations in the Middle East Region 145

A second common source of resistance is that Middle Eastern States are com-
placent about discriminatory practices in their societies based on gender, ethnicity,
and religious difference, and do not have a policy agenda to actively fight such dis-
crimination. It is the absence of legislation and policies rather than their presence
that forms part of the problem. The HRC often makes the point that there is no do-
mestic legal framework or active policy to positively combat gender-based, ethnic,
or religious discrimination or violence against women.127 The HRC further makes
reference to the duty to alter stereotypes and prejudices.128

E. Minorities and indigenous peoples

In the States of the Middle East, the European post-First World War definition
of ethnic, linguistic, and religious historic minorities and the subsequent, more
expansive interpretation by the HRC covering non-historic minorities129 does
not cohere with prevalent homogenizing historical nation-building discourses.
Countries in the region follow the French Republican concept of citizenship and
refuse to approach combatting non-discrimination within a minority rights para-
digm de jure or de facto. This contrasts with the HRC’s interpretation of article 27
protections.130 The formalism of the citizenship project fights for the ideal of equal
citizenship and relegates differences in identity to the private sphere. Furthermore,
a concern for indigenous peoples is missing in the region, as Middle Eastern coun-
tries regard their nations as a continuation of indigenous peoples. Egypt, for ex-
ample, states that ‘the Egyptian people enjoy (sic) complete homogeneity between
all groups and communities in society, since it is unified by single language and
by the Arab culture’.131 In Israel, the Bedouin population’s right to their ancestral
land132 does not find support, as the Israeli State views Jews as the authentic indi-
genous people of the land.
In Middle Eastern States, the citizenship bond is viewed as an equalizer for all
communities regardless of ethnic, religious, and linguistic differences. Syria reports
that it ‘has never known any discrimination on grounds of race, origin, religion or
nationality’.133 In Yemen, minorities enjoy their rights by virtue of Yemeni citi-
zenship.134 Kuwait holds that it has no minorities.135 Egypt confirms that people
belonging to the Baha’i faith have a freedom to have this belief in their homes.
If individuals belonging to different identities seek to organize publicly, however,
then they become suspect. For example, Egypt views the right of the Baha’i to form

127 See eg HRC, ‘Concluding Observations: Fourth Report of Jordan’ (n 43); HRC, ‘Concluding
Observations: Initial Report of Kuwait’ (n 55) para 5; HRC, ‘Concluding Observations: Fourth Report
of Israel’ (n 53) para 6.
128 See n 27. Cf HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 8.
129 HRC, ‘General Comment 23’ in ‘Compilation of General Comments’ (2008) (vol 1) (n 92) 207.
130 ibid. 131 HRC, ‘Third and Fourth Reports of Egypt’ (n 43) para 628.
132 HRC, ‘Concluding Observations: Fourth Report of Israel’ (n 53) para 24.
133 HRC, ‘Second Periodic Report of Syria’ (25 August 2000) CCPR/C/SYR/2000/2, para 364.
134 HRC, ‘Second Report of Yemen’ (n 63) para 113.
135 HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55) para 14.
146

146 Influence of the ICCPR in the Middle East

associations to advance their faith in community with others as contrary to public
order considerations under domestic law.136
Iran remains an exception to this, as the Iranian Constitution recognizes ethnic
and tribal groups qua groups and affords them the right to use their own languages
in the press, in mass media, and in school education.137 Whilst Iranian constitu-
tional precepts do make room for the legal protection of minorities qua minorities,
official domestic recognition of minority groups is a necessary condition for their
constitutional protection. Groups that fall outside of the official paradigm of mi-
norities (eg Baha’i or Sunni Muslims) face a significant denial of their rights as well
as repression.138
The only significant move from a unified vision of citizenship to a diverse con-
struction thereof before the eyes of the law took place in the post-2005 Iraqi
Constitution. Whilst Iraq, in 1987, held that the ‘Iraqi constitution spoke of the
“national” generation and not the “Arab” generation’,139 in the 2013 Report of Iraq
to the HRC, Iraq is named as a State that experiences ‘unity in diversity’.140 This
2013 report lists Christians, Sabian-Mandaens, Yazidis, and Turkmen, Shabak,
and Feyli Kurds as Iraqi minorities, and moves beyond the HRC’s requirements by
affording proportionate representation to minorities in governorates.141 The Iraqi
government is also the only State in the Middle East that has used the discourse of
‘indigenous inhabitants’ in its report to the HRC.
Whilst protections of the cultural heritage of linguistic, religious, and ethnic
minorities are rejected, Middle Eastern States continue traditions of legal plur-
alism with respect to the regulation of personal status laws based on the religious
identities of their inhabitants. As a legacy of the pre-nation state Ottoman millet
regime, personal status (including marriage, divorce, child custody, and inher-
itance) is governed by the religions to which the affected individuals belong in
Lebanon, Israel, Jordan, Egypt, and Iraq. In Yemen, the personal status laws of
the majority are governed by Sharia. In Lebanon and Jordan, the millet paradigm
is also the source of confessionalist political participation, with reserved seats for
certain minorities in the parliament. According to the HRC, the application of
personal status laws falls short of providing non-discriminatory safeguards, in par-
ticular for women. The HRC view, also echoed by CEDAW, is that personal status
laws must exist within a unified framework of non-discrimination, and that the
individual’s right to opt out of religion-based personal status laws as well as their
ability to legally challenge the discriminatory effects of such laws must be secured.
The HRC further challenges the confessionalist paradigm as an adequate basis for
political participation.

136 cf the Egyptian Constitutional Court Judgment of 1 March 1975 (Case No 2, Judicial Year
2) finding the activities of Baha’i associations to be ‘inimical to social security and public order’, cited in
HRC, ‘Third and Fourth Reports of Egypt’ (n 43) para 677.
137 HRC, ‘Third Report of Iran’ (n 65) paras 1001–11. 138 ibid para 24.
139 UNGA, ‘Report of the Human Rights Committee’ GAOR 42nd Session Supp No 40 UN Doc
A/42/40 (1987–1988) para 386.
140 HRC, ‘Fifth Report of Iraq’ (n 69) para 225. 141 ibid para 234.
147

Conclusion 147

F. Democratic expression of political pluralism

In a significant number of political regimes in the Middle East, protection of the
standard democratic participation rights—freedom of expression, freedom of as-
sembly and association, and the right to participate in the political process—falls
below ICCPR standards. There are significant restrictions on the freedom of the
media and the rights to assembly and association (both in law and in practice),142
and amendments to domestic laws continue to reify such restrictions.143
In Syria and Kuwait, there are no opposition political parties. In Lebanon, a
citizen must belong to a religious denomination officially recognized by the gov-
ernment to be eligible to run for public office.144 In Egypt, the HRC has found
that there are de jure and de facto impediments to the establishment and running of
political parties.145 In Iran, the Guardian Council has the power to reject parliamen-
tary candidates, and political parties face the risk of dissolution with no clear legal
safeguards.146 Such requirements are so central to the regime’s existing identities and
political hold on power that calls by the HRC for the establishment of opposition
political parties147 or the abolishment of confessionalism148 have no influence.

V. Conclusion

This survey of the influence of the ICCPR on domestic laws in the Middle East
region shows a legal history of interrupted engagement due to conflicts and coups
and of defensive engagement dominated by domestic legalism. Defensive domestic
legalism is both a structural and an interactional feature of the region’s engagement
with the ICCPR. The former is reflected in the formulation of reservations (and
the lack of interest in their lifting) and the unresolved ambiguity of the status of
the ICCPR in domestic legal orders. The latter is prevalent in the post-ratification
dialogues between the countries in the Middle East and the HRC. Countries in the
region approach the influence of the ICCPR on domestic law primarily through the
prism of pre-existing domestic laws. To borrow from Beth Simmons, the countries
of the Middle East are, for the most part, ‘insincere ratifiers’.149
There are three significant background explanations for the primacy of the do-
mestic legal frameworks in the Middle East region as reflected in their resistance
to HRC concluding observations. First, the region’s authoritarian or majoritarian

142 HRC, ‘Concluding Observations: Fourth Report of Jordan’ (n 43) para 14.
143 cf Egyptian Law No 107/2013 of November 2013 regulating public meetings and peaceful
assemblies.
144 For a most recent restatement of the denominational system in Lebanon, see CERD Committee,
‘Combined Eighteenth to Twenty-Second Reports of Lebanon’ (5 August 2015) CERD/C/LBN/18-
22, para 51.
145 HRC, ‘Concluding Observations: Third and Fourth Reports of Egypt’ (n 51) para 22.
146 HRC, ‘Concluding Observations: Third Report of Iran’ (n 54) para 29.
147 HRC, ‘Concluding Observations: Initial Report of Kuwait’ (n 55).
148 HRC, ‘Concluding Observations: Second Report of Lebanon’ (n 63) para 23.
149 Simmons, Mobilizing (n 9) 77ff.
148

148 Influence of the ICCPR in the Middle East

political structures, with their markedly patriarchal and robust religious establish-
ment attributes, exhibit strong hostile preferences against minority identities and
political views. This is demonstrated by de facto and de jure discrimination and
blanket justifications in favour of public order and security when limiting rights
and oppressing minority views. The second explanation is the prevalence of in-
stability (de facto or perceived) and the existence of conflicts and violence in the
region. The ‘realities on the ground’ narrative emerges as a predominant defence
of domestic laws at the expense of the ICCPR, in particular when striking the bal-
ance between security concerns and human rights. The third explanation is the
lack of independent and impartial judicial institutions and instead the prevalence
of domestic administration of justice systems that are unable to produce civil and
political rights-respecting outputs. Given the absence of strong domestic and inter-
national pro-reform partners, the HRC (and the rest of the UN human rights
machinery for that matter) is unable to offer leverage for structural reform in the
region.
There remains a significant gap between the HRC’s vision of civil and political
rights protection grounded in a liberal, democratic, and multicultural vision, and
the domestic laws of the Middle East region. Some exceptions to this regional trend
are found in Israel, Kuwait, and Turkey, in particular with respect to the engagement
of high courts with the ICCPR as an aid to interpretation. In Israel, the ICCPR re-
mains unincorporated into domestic law, but has the potential to act as a persuasive
authority through the State’s independent judiciary.150 In Kuwait, the ICCPR has
had some limited success in boosting the 1962 Constitution’s protection of civil and
political rights through the Kuwaiti Constitutional Court.151 In both of these coun-
tries, the ICCPR pairs with the domestic constitutions and willing courts to have
influence on domestic laws. In Turkey, the ICCPR plays a peripheral role thanks
to the European Convention of Human Rights, the leverage of the EU on Turkey,
and the Turkish Constitutional Court’s explicit mandate to provide domestic rem-
edies for rights protected at the intersection of the Turkish Constitution and the
ECHR. The legal influence of the ICCPR here is achieved through the influence
of a regional human rights mechanism in the constitutional legal order. Given that
ECHR and ICCPR do not have identical provisions, however, the influence of the
ICCPR in Turkey is limited to overlapping domains of protection. These exceptions
show that the ICCPR and the concluding observations of the HRC need stronger
pro-ICCPR domestic, regional, and international judicial and institutional partners
in the region for sustainable and continuous legal influence to offset the prevalent
regional culture of domestic legalism. Whether the Arab human rights monitoring
mechanism, and the recently proposed Arab Court for Human Rights, may boost
the influence of the ICCPR for some States in the region remains to be seen. The

150 Israeli High Court of Justice, HCJ 3239/02 Marab et al v Israeli Defence Force Commander (5
February 2003) ILDC 15 (IL 2003).
151 See eg the Kuwaiti Constitutional Court Judgment of 22 October 2009 <http://jurist.org/paper-
chase/2009/10/kuwait-constitutional-court-rules-women.php> accessed 28 March 2017.
149

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influence of the ICCPR on domestic laws remains a long-term battle in the Middle
East region, where small gains under limited existing legal opportunity structures
remain the overarching norm.

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15

8
Influence of the ICESCR in Latin America
Mónica Pinto and Martín Sigal*

I. Introduction

164 States from all over the world have ratified the International Covenant on
Economic, Social and Cultural Rights (ICESCR or Covenant).1 Among them
are nearly all of the Latin American States,2 with the exception of Cuba and three
Caribbean States—Antigua and Barbuda, St. Kitts and Nevis, and St. Lucia. In the
course of the following pages, we will assess the influence of the ICESCR’s ratifica-
tion in the Latin American region. For the purpose of our analysis, we will measure
this influence by tracking the ICESCR’s imprint on the different States at different
levels; for example, the prevalence of references to the Covenant by political author-
ities, adjudicative bodies, and regional systems, as well as the institutional changes
required by the incorporation of economic, social, and cultural rights (ESCR).
In assessing the influence of the ICESCR in Latin America, our main arguments
are the following: (a) there is a constitutional framework shared by nearly all Latin
American States according to which ESCR have found their place in constitutional
provisions; (b) at the same time, while the great majority of Latin American States
have adopted a regional instrument dealing with ESCR, namely the Pact of San
Salvador, the gap in time between its adoption and its entry into force allowed the
Covenant to exert a decisive impact in the countries of the region; (c) regarding
justiciability, the great majority of courts in the region receive complaints con-
cerning ESCR and adjudicate these complaints. However, this judicial activity is
not reflected in an official public policy allowing citizens to avail themselves of those
rights, and coexists with a regional situation of deep inequality and a lack of access to
ESCR. At the same time, there is a need to incorporate a collective rights approach

* The authors thank Antonio Ribichini, who assisted them in the research and elaboration of a pre-
vious version of this paper, José Ryb, who helped in the editing of a version for the Seminar held in April
2016, Francisco Rodriguez Abinal, who helped in the checking of sources for the last version, and María
Victoria Gama, for her valuable comments.
1 International Covenant on Economic, Social and Cultural Rights (opened for signature 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
2 For a full list of ratifications and accessions, see United Nations Treaty Collection <https://treaties.
un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en> accessed 27
March 2016.

152 Influence of the ICESCR in Latin America

into litigation concerning ESCR; (d) in relation to the Optional Protocol to the
ICESCR,3 there is nearly no international case law in the region because of its re-
cent entry into force. In spite of this, the regional system relies on the Covenant as a
source of rights and as the instrument providing the pro persona interpretation of the
scope of certain rights; (e) poverty plays a crucial role in the field of ESCR because
it deepens the structural inequalities and exclusions present in the region. It has led
to a variety of approaches in domestic legislation, but should also lead to political
changes and public policy developments aiming to reduce it; (f ) all of these develop-
ments have evoked important debates on the scope of ESCR and on the capabilities
and roles of enforcement agencies.
In order to address these issues, the chapter is divided into six sections. First, we
will depict the particularities of the constitutional framework in Latin American
countries and their relationship with international human rights instruments.
Second, we will analyse the trajectory followed by the judiciary in determining the
justiciability of ESCR. Third, we will present examples of how the jurisprudence of
national courts has helped shape the impact of the ICESCR. Fourth, we will enlarge
upon the impact that the ICESCR has had on regional mechanisms and jurispru-
dence. Fifth, we will consider the central role of poverty and inequality as the causes
of violations of ESCR and their political impact in Latin America and, lastly, we will
expand on the by-products of the justiciability of ESCR in the region.
As a caveat, we need to underline that the chapter suggests traces left by the
ICESCR at different levels of the domestic and regional systems, but does not pre-
tend to show that the ICESCR was a variable acting independently from others at
the time of incorporating ESCR nationally. In fact, the influence of the Covenant
coexists and interacts with the influence of other factors and variables (ie political
reforms, social movements and civil society actions, economic crisis, the changing
social understanding of local constitutions and constitutional reforms, the changing
degree of judicial independence, the influence of other international human rights
treaties, some of which also deal with ESCR, and the role of academia, among many
others), which makes it improper to take the ICESCR as an isolated variable.
For that reason, we take the ICESCR as one relevant variable among several
others which interact with each other, causing changes and progress in the domestic
legal systems. In some cases, the traces of the ICESCR are explicit (eg when judges
cite the ICESCR in their decisions, or when the Covenant is referred to in States’
constitutions); in others the influence is implicit (eg when judges do not cite the
ICESCR in their decisions, but decide based on ESCR that are recognized in the
Covenant, while at the same time granting the Covenant a high hierarchical position
in the domestic field).
Also, due to space constraints, it would not have been possible to analyse the in-
fluence of the ICESCR on all dimensions of the domestic systems of all the States
included in the region. In this light, for Section II, we opted to analyse a number

3 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(‘Optional Protocol’) (10 December 2008) United Nations General Assembly (UNGA) Resolution
(Res) 63/117.
153

The Region’s Constitutional Frameworks and International Human Rights 153

of countries which share certain characteristics, such as being members of the con-
tinental law tradition, being receptive to international human rights treaties, and
having recognized ESCR in recent constitutional reforms, and a selection of coun-
tries in which courts have adjudicated social rights cases (in which the influence
of the ICESCR may be traced either explicitly or implicitly), including Argentina
and Colombia, which play a leading role in the adjudication of structural cases
involving social rights. The selection of countries could have included others or
replaced some of the ones on the list, but the chapter’s conclusions would not have
varied significantly.

II. The Region’s Constitutional Frameworks and Their

Approach to International Human Rights Instruments

Decolonization in America developed at two different points in time, namely in the

early nineteenth century, when the great majority of Spanish colonies emancipated
and became nation states, and in the second half of the twentieth century, when the
British possessions in the region declared their independence and became part of the
British Commonwealth of Nations.4 These two processes shaped much of the con-
stitutional life of Latin American States. They also made room for some distinctive
differences between States.
Because of the Enlightenment’s influence on Spain, the constitutions of its former
colonies include chapters dealing with civil liberties. At the same time, the con-
stitutional framework adopted by the United States was also a reference for other
countries deciding on their emancipation.5 Even though the United Kingdom was
a forerunner in recognizing civil liberties, its former colonies kept much of the—
eventually outdated—British legal infrastructure upon independence, and changes
came a long time after the United Kingdom itself had changed its position in these
areas.6
Latin American constitutions started embodying ESCR early in the twentieth
century, beginning with the 1917 Mexican Constitution.7 Argentina incorporated
all of these rights into a Constitution adopted in 1949 by the Peronist government

4 The first movement developed early in the nineteenth century, mainly after Napoleon’s invasion of
Spain, and the second started with the twentieth century decolonization period, after the adoption of
the General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples
(UNGA Res 1514 (XV) (14 December 1960).
5 See Mónica Pinto, ‘Droits humanitaires et droits de l’homme en Amérique latine’ in Jean-René
Garcia, Denis Rolland, and Patrice Vermeren (eds), Les Amériques, des constitutions aux démocraties
(Éditions de la Maison des sciences de l’homme 2015) 353.
6 The death penalty is a good illustration. While the United Kingdom progressively abolished it
for different crimes (in 1965, 1973, 1998, and 2004), some of its former colonies kept it longer. See
Amnesty International, ‘Death Sentences and Executions 2016’ (2017) Global Report ACT 50/5740/
2017, 43, listing as ‘retentionists’ the following former colonies in the region: Antigua and Barbuda,
Bahamas, Barbados, Belize, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the
Grenadines, and Trinidad and Tobago.
7 See Political Constitution of Mexico, 1917.
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154 Influence of the ICESCR in Latin America

and, after a constitutional amendment, they became the object of a single consti-
tutional provision that entered into force in 1957. Other constitutional texts, like
the ones that entered into force in Paraguay, Brazil, and Ecuador in 1967, included
chapters dealing with social and economic order and the rights to education and
culture, among others.8 This historical background provides some explanation as to
the rationale of the processes of reception of international human rights treaties in
national contexts and their elevated position in the hierarchical order.
In Latin America, constitutional rules are supreme in the great majority of States.
There are, however, some differences regarding the relationship between domestic
law and international human rights instruments. Some constitutions place inter-
national treaties on the same footing as the constitutional text, while others assign
them higher ranking over domestic legislation, and still others are silent on this
point. Some specific examples of these practices are worth analysing in detail, espe-
cially in light of the concluding observations of the Committee on Economic, Social
and Cultural Rights (CESCR) relating to the periodic reports submitted by States
Parties, wherein it has highlighted the need to make ESCR justiciable without using
deference to domestic legal hierarchies as an excuse.

A. Argentina
In Argentina, the amendment of the Constitution in 1994 brought two major in-
novations: new social rights were added and a number of international human rights
instruments were given a status on par with or directly below the Constitution and
above domestic law. One of the particularities of the Argentine Constitution is that
it makes a distinction between some human rights instruments and other treaties.
In force since 24 August 1994, it provides a constitutional-level hierarchical pos-
ition to eleven international instruments—nine treaties, including the two inter-
national covenants, and two declarations—‘in the full force of their provisions’.9
By this wording, the Constitutional Assembly meant that these instruments are
binding together with the reservations and declarations made at the time of acces-
sion, and that they are not to be understood as repealing any section of the First
Part of the Constitution, but as complementing the rights and guarantees therein.10
The Constitution also provides that Congress, by a special majority, may award the
same hierarchical position to other international human rights treaties. Three other
treaties have accordingly joined those named in the Constitution.11 As a result of

8 Constitution of the Republic of Paraguay, 1967; Political Constitution of Brazil, 1967;

Constitution of the Republic of Ecuador, 1967. All three texts later underwent amendments resulting
in the Constitutions of 1992, 1988, and 2008, respectively.
9 See Constitution of the Nation of Argentina, 1994, ss 75(22) and (23), 41, 42, and 75(17).
10 ibid.
11 Convention on the Rights of Persons with Disabilities (opened for signature 13 December 2006,
entered into force 3 May 2008) 2515 UNTS 3; Inter-American Convention on Forced Disappearance
of Persons (opened for signature 9 June 1994, entered into force 28 March 1996); A-60 Organization
of American States (OAS) Treaty Series; Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes Against Humanity (opened for signature 26 November 1968, entered into
force 11 November 1970) 754 UNTS 73.
15

The Region’s Constitutional Frameworks and International Human Rights 155

this provision, international human rights obligations in Argentina have thus be-
come constitutionalized.

B. Brazil
When Brazil adopted a new Constitution, in 1988, after more than twenty years
of authoritarian rule, it placed human dignity in a position of privilege at the
instrument’s centre, as an interpretive guide to be followed in order to determine the
meaning of other domestic legal provisions.
The 1988 Constitution consolidated fundamental rights and guarantees, in-
corporating new provisions and international human rights treaties. ESCR were
strategically placed with other fundamental rights12 so that the principles of indivis-
ibility and interdependence were reinforced. The Constitution sets out the duties of
the government, which must shape its programs, policies, and goals towards the full
protection of these social priorities. In order to fulfil this objective, new, enforceable
guarantees were added and mechanisms set up to prompt State action.13
The Brazilian Constitution of 1988 establishes the precedence of human rights—
prevalência dos direitos humanos—as one of the cardinal principles guiding the
international relations of the State.14 Accordingly, it has been said that it cemented
Brazilian engagement concerning the international protection of human rights.15
At the same time, the Constitution states that the rights protected by it do not ex-
clude others whose source is to be found in international law, and that international
treaties on human rights, once approved by three-fifths of Congress, have equivalent
status to constitutional amendments.16 Legal authorities agree that the constitu-
tional status of international treaties has therefore been established.17

C. Chile
In the case of Chile, the Constitution of 1980, as amended in 2005, establishes
a State duty to respect and promote fundamental rights, as guaranteed by the
Constitution and by the international treaties ratified by Chile.18 In this context, it

12 Constitution of the Federal Republic of Brazil, 1988, chs I and II.

13 See Flavia Piovesan, ‘Brazil’ in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging
Trends in International and Comparative Law (CUP 2008) 182, 184.
14 Constitution of the Federal Republic of Brazil, 1988, s 4(II).
15 See Nadia de Araujo and Inés da Matta Andreiuolo, ‘A internalização dos Tratados no Brasil e
os Direitos Humanos’ in Carlos Eduardo de Abreu Boucault and Nadia de Araujo (eds), Os direitos
humanos e o direito internacional (Renovar 1999) 63, 102, supported by comments and statements by
Pedro Dallari and Flavia Piovesan.
16 Constitution of the Federal Republic of Brazil (n 14) ss 5, 2, and 3.
17 See Antônio A Cançado Trindade, ‘Direito Internacional e Direito Interno: Sua Interação na
Proteção dos Direitos Humanos’ (1996) <http://egov.ufsc.br/portal/sites/default/files/anexos/
22361-22363-1-PB.pdf> accessed 23 March 2016; Flavia Piovesan, ‘Direitos Humanos e o Dereito
Constitucional Internacional’ (Caderno de Direito Constitucional /Escola da Magistratura do Tribunal
Regional Federal da 4a Região, 2006) <www.dhnet.org.br/direitos/militantes/flaviapiovesan/piovesan_
dh_direito_constitucional.pdf> accessed 23 March 2016.
18 See the Political Constitution of the Republic of Chile, 1980, s 5 (amended on 26 August 2005).
156

156 Influence of the ICESCR in Latin America

is crucial to keep in mind the self-executing nature of international human rights law
as a iuris tantum presumption.

D. Paraguay
In Paraguay, the Constitution of 1992 recognized the superior rank of international
treaties over all domestic legislation except the Constitution. In this sense, the
Constitution is the supreme law of the Republic. The Constitution, international
treaties, conventions, and agreements that have been approved and ratified by
Congress, the laws dictated by Congress, and other related legal provisions of lesser
rank make up the national legal system, in descending order of pre-eminence.19

E. Uruguay
The Uruguayan Constitution in force since 1997 makes no mention of the hierarchy
of international instruments. However, it has been claimed that it recognizes the
predominance of international law.20 It provides, furthermore, for the application
of ‘implicit’ rights. This means that constitutional provisions dealing with the rights
of individuals should not be prevented from application on the grounds that the re-
spective rules have not yet been adopted.21

F. Venezuela
Some Latin American States have enacted constitutional amendments in light of
new popular movements. These texts are usually very detailed and complete. The
1999 Bolivarian Constitution of Venezuela is an example, and one that provides
for the constitutional footing of treaties, pacts, and conventions relating to human
rights. As a result, human rights treaties precede domestic rules when they embody
more favourable standards than those in the Constitution and the national legisla-
tion, and they are immediately and directly applicable by courts and other public
organs.22

G. Ecuador
In the same vein, the 2008 Constitution of Ecuador proclaims that international
human rights instruments recognizing more favourable rights than those contained

19 Constitution of the Republic of Paraguay, 1992, s 137(1).

20 Article 85(7) of the Constitution of the Eastern Republic of Uruguay, 1967, as last amended in
2004: ‘A la Asamblea General compete: Decretar la guerra y aprobar o reprobar por mayoría absoluta de
votos del total de componentes de cada Cámara, los tratados de paz, alianza, comercio y las convenciones
o contratos de cualquier naturaleza que celebre el Poder Ejecutivo con potencias extranjeras.’ See
Eduardo Jiménez de Aréchaga, ‘La Convención Americana de Derechos Humanos como derecho
interno’ (1988) 7 Revista del Instituto Interamericano de Derechos Humanos 25.
21 Constitution of the Eastern Republic of Uruguay, 1967, as last amended in 2004, s 85(7).
22 Constitution of the Bolivarian Republic of Venezuela, 1999, as last amended in 2009, art 23.
157

Justiciability of Economic, Social, and Cultural Rights 157

in the Constitution will prevail over any other norm or legal rule. At the same time,
it states that, as a general rule, the Constitution enjoys pre-eminence over inter-
national treaties.23

H. Bolivia
The 2009 Constitution of the Plurinational State of Bolivia states that international
treaties protecting human rights and prohibiting limitations during states of emer-
gency, where ratified by the legislature and Plurinational Assembly, have priority in the
domestic legal order. In addition, the Constitution should be interpreted in conformity
with the human rights treaties ratified by Bolivia.24

I. Interim conclusion
On the one hand, the influence of the Covenant may be traced to the incorporation
of several economic, social, and cultural rights into the domestic constitutions of the
States under study. At the same time, the ICESCR’s relevance in the domestic legal or-
ders of several countries in the region becomes clear when analysing the constitutional
provisions that determine how human rights treaties operate internally and the norma-
tive hierarchy that each State gives to such instruments. Further, these constitutional
clauses provide the necessary framework for courts to interpret both the Constitution
and treaties under the lens of a more pro persona or expansive view of human rights in
the resolution of particular cases.

III. Justiciability of Economic, Social, and Cultural Rights

A. The road to justiciability

We understand justiciability as the capability of a right to be the object of a claim that
can be adjudicated by a court of law.25 In order for that to happen, the right needs to
be recognized by the domestic legal order in a certain way so that courts can order its
enforcement by the political authorities.
By contrast, non-justiciability encompasses both the situation in which the non-
recognition of the right impedes the possibility of making that right enforceable
and, independently or because of that, the lack of immediate applicability. In that
sense, the CESCR has a long tradition of deploring the non-justiciability of ESCR in
given national contexts, for example finding that it ‘regrets that laws incorporating

23 Constitution of the Republic of Ecuador, 2008, ss 424 and 425.

24 Political Constitution of the Plurinational State of Bolivia, 2009, s 13(IV).
25 CESCR, ‘General Comment 3’ in ‘Note by the Secretariat, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies’ (2003) UN Doc HRI/GEN/
1/Rev.6, para 5.
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158 Influence of the ICESCR in Latin America

the Covenant into Bolivia’s domestic legal system have not yet been adopted’;26 ex-
pressing concern about the fact that ‘some economic, social and cultural rights, in-
cluding the right to housing, are not considered justiciable in [Chile, while noting]
the scarcity of case law in which the rights of the Covenant have been invoked before
and directly applied by domestic courts’;27 regretting ‘that legislation aimed at the
incorporation of the Covenant directly into Panama’s domestic legal system has
not been adopted and that as a result the Covenant cannot be invoked before the
internal authorities’;28 and noting ‘that, under the 1993 [Peruvian] Constitution,
international human rights instruments are on the same level as domestic laws and
that a recent decision of the Supreme Court of Justice stated that the provisions of
those instruments do not have constitutional status’.29
Traditionally, ESCR have been viewed as unenforceable, non-justiciable, and to
be fulfilled ‘progressively’ over time,30 as opposed to their more popular siblings,
civil and political rights (CPR).31 As Craig Scott points out, States understood the
difference between ESCR and CPR as based on ‘implementation-based reasons’,
among others.32 According to this reasoning, the two categories of rights were seen
as different in nature and, hence, each of them required different methods of imple-
mentation. The source for these conclusions derived from the Covenants themselves,
as the International Covenant on Civil and Political Rights (ICCPR) establishes
obligations ‘to respect and ensure’,33 whereas the ICESCR requires State parties to
‘undertake to take steps . . . to the maximum of [their] available resources, with a
view to achieving progressively the full realization of the rights’34 recognized by the
Covenant. When drafting the Covenants, it was believed that CPR required merely
non-interference by the State and the adoption solely of legislation and adminis-
trative measures. On the contrary, ESCR required positive State action depending
on the level of economic resources of the State and thus, their implementation was
deemed to be gradual.
Slowly but surely, the discussion about the progressive versus immediate char-
acter of the obligations derived from the ICESCR shifted into the understanding
that ESCR, like any rights, require the adoption of legal rules and public policies so

26 CESCR, ‘Consideration of Bolivia’s Initial Periodic Report’ (21 May 2001) UN Doc E/C.12/1/
Add.60, para 11.
27 CESCR, ‘Consideration of Chile’s Third Periodic Report’ (1 December 2004) UN Doc E/C.12/
1/Add.105, para 12.
28 CESCR, ‘Consideration of Panama’s Second Periodic Report’ (24 September 2001) UN Doc E/
C.12/1/Add.64, para 9.
29 CESCR, ‘Consideration of Peru’s Initial Periodic Report’ (20 May 1997) UN Doc E/C.12/1/
Add.14, para 13.
30 See Magdalena Sepúlveda, Nature of the Obligations under the International Covenant on Economic,
Social and Cultural Rights (Intersentia 2003) 117.
31 See CESCR, ‘Fact Sheet No 16 (Rev. 1)’ s 2 <www.ohchr.org/Documents/Publications/
FactSheet16rev.1en.pdf> accessed 23 March 2016.
32 See Craig Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a
Partial Fusion of the International Covenant on Human Rights’ (1989) 27 Osgoode Hall Law Journal
769, 791, 794–95.
33 International Covenant on Civil and Political Rights (opened for signature 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171, art 2(1).
34 ICESCR art 2(1).
159

Justiciability of Economic, Social, and Cultural Rights 159

that individuals can exercise said rights and, if needed, demand their enforcement
through legal action. The fact that CPR also require legal rules, public policies, and
resources to be fulfilled became clear in the discussion. Also, the growing shared
understanding that progressivity does not imply the absence of immediate obliga-
tions (and creates certain immediate duties to adopt measures, for example) created
room for the intervention of courts and tribunals. At the same time, the interpret-
ations created by those courts and tribunals exert a great influence on the content
of the obligations imposed on the State in relation to ESCR. The CESCR’s General
Comment 335 has been a crucial tool to advance this discussion.
As stated above, the non-justiciability of ESCR and claims about their program-
matic nature have long been excused because of the use of the expression ‘progres-
sively’ in article 2 of the Covenant. This is not a valid conclusion in light of the fact
that the provision must be interpreted in good faith: that is, according to the rules
of interpretation embodied in article 31 of the Vienna Convention on the Law of
Treaties.36 Any other result would be arbitrary and contrary to the interdependence
and indivisibility of human rights. CESCR, General Comment 3 sheds some light
on the expression by understanding that:
full realization of all economic, social and cultural rights will generally not be able to be
achieved in a short period of time. . . . Nevertheless, the fact that realization over time, or in
other words, progressively, is foreseen under the Covenant should not be misinterpreted as
depriving the obligation of all meaningful content. . . . It thus imposes an obligation to move
as expeditiously and effectively as possible towards that goal [the full realization of the rights
in question].
General Comment 3 further informs this understanding by providing that ‘any de-
liberately retrogressive measures in that regard would require the most careful con-
sideration and would need to be fully justified by reference to the totality of the
rights provided for in the Covenant and in the context of the full use of the max-
imum available resources’.37
Following this interpretation, when the Organization of American States’ General
Assembly adopted the ‘Standards for the Preparation of Periodic Reports Pursuant
to Article 19 of the Protocol of San Salvador’, it decided that progressiveness means
‘gradual advancement in the creation of the conditions necessary to ensure the exer-
cise of an economic, social and cultural right’,38 thus pushing for the enforceability
of the protected rights. At the same time, the CESCR has constantly submitted that
some provisions of the Covenant, including articles 3, 7(a)(i), 8, 10(3), 13(2)(a),

35 See CESCR, ‘General Comment 3’ (n 25). In this General Comment, the Committee states that
the Covenant ‘imposes various obligations which are of immediate effect’ including ‘“undertaking to
guarantee” that relevant rights “will be exercised without discrimination”’ and ‘undertaking in article
2(1) “to take steps” . . . within a reasonably short time after the Covenant’s entry into force for the States
concerned’ to fulfil the obligations established in it.
36 Philip Alston, ‘U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The
Need for an Entirely New Strategy’ (1990) 84 American J of Intl L 365, 391.
37 CESCR, ‘Fact Sheet’ (n 31) para 9.
38 OAS (General Assembly), ‘Standards for the Preparation of Periodic Reports Pursuant to Article
19 of the Protocol of San Salvador’ (7 June 2005) AG/RES. 2074 (XXXV-O/05) para 5(1).
160

160 Influence of the ICESCR in Latin America

(3), and (4), and 15(3), would seem to be capable of immediate application by judi-
cial and other organs in many national legal systems.39
The justiciability of ESCR has also been supported by some of the most well-known
legal authorities in the Americas, who have written numerous pages devoted to ana-
lysing ESCR and the clauses of the Covenant. Current trends in academia and among
the judiciary seem to prove that there is a growing consensus on their justiciability.40
According to César Rodríguez, two angles of analysis have dominated this perspec-
tive. On the one hand, there have been many contributions that have concentrated
on making a theoretical case for the justiciability of ESCR in light of the demands of
democratic theory and the reality of social contexts marked by deep economic and
political inequalities. On the other, a number of contributions have focused on a doc-
trinal human rights perspective, which has given greater precision to judicial standards
for upholding ESCR and boosted the utilization of these rights by judicial organs and
supervisory bodies at both the national and international level.41
Further, some of the judges at the Inter-American Court of Human Rights, in-
cluding Antonio Cançado Trindade (in a paper published in 1994)42 and later on
Sergio García Ramírez (in 2003)43 and Manuel Ventura Robles (in 2004),44 have
produced legal literature on ESCR and on the ICESCR. Other well-known specialists
dealing with this set of rights and their normative sources have joined their number,
including Ligia Bolívar,45 Víctor Abramovich and Christian Courtis,46 Julieta Rossi,47
César Rodríguez-Garavito,48 and Rodrigo Uprimny Yepes,49 among others.

39 See CESCR, ‘Fact Sheet’ (n 31) para 5.

40 Malcolm Langford, ‘The Justiciability of Social Rights: From Practice to Theory’ in Malcolm
Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (CUP
2008) 3, 45.
41 César Rodríguez- Garavito, ‘Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America’ (2011) 89 Texas L Rev 1669.
42 Antonio A Cançado Trindade, ‘La protección internacional de los derechos económicos, sociales
y culturales’ (1994) 1 Estudios Básicos de Derechos Humanos 39.
43 Sergio García Ramírez, ‘Protección jurisdiccional internacional de los derechos económicos,
sociales y culturales’ (2003) 9 Cuestiones Constitucionales 127.
44 Manuel E Ventura Robles, ‘Jurisprudencia de la Corte Interamericana de Derechos Humanos en
materia de derechos económicos, sociales y culturales’ (2004) 40 Revista Instituto Interamericano de
Derechos Humanos 87.
45 Ligia Bolívar, ‘Derechos económicos, sociales y culturales: derribar mitos, enfrentar retos, tender
puentes—Una visión desde la (in)experiencia de América Latina’ in Sonia Picado Sotela, Antônio
A Cançado Trindade, and Roberto Cuéllar (comps), Estudios Básicos de Derechos Humanos, vol V
(Instituto Interamericano de Derechos Humanos 1996) 85.
46 Víctor Abramovich and Christian Courtis, ‘Hacia la exigibilidad de los derechos económicos,
sociales y culturales: Estándares internacionales y criterios de aplicación ante los tribunales locales’ in
Martín Abregú and Christian Courtis (comps), La aplicación de los tratados sobre derechos humanos por
los tribunales locales (Editores el Puerto /CELS 1997) 283.
47 See Julieta Rossi, ‘Mecanismos internacionales de protección de los derechos económicos,
sociales y culturales’ in Víctor Abramovich, María José Añón, and Christian Courtis (comps), Derechos
sociales: instrucciones de uso (Fontamara 2003) 355; Julieta Rossi and Victor Abramovich, ‘La tutela
de los derechos económicos, sociales y culturales en el artículo 26 de la Convención Americana sobre
Derechos Humanos’ (2007) 9 Revista Estudios Socio-Jurídicos 34.
48 eg see Rodríguez-Garavito, ‘Beyond the Courtroom’ (n 41) among other works. For a complete list
of the author’s publications, see <http://cesarrodriguez.net/files/cvingles.pdf> accessed 10 March 2017.
49 Rodrigo Uprimny Yepes, ‘Should Courts Enforce Social Rights? The Experience of the Colombian
Constitutional Court’ in Fons Coomans (ed), Justiciability of Economic and Social Rights: Experiences
16

Justiciability of Economic, Social, and Cultural Rights 161

B. A new form of litigation

The incorporation of human rights treaties guaranteeing ESCR into the do-
mestic systems of the countries in the region added to the acceptance of the
justiciability of such rights and created the need to redesign the country-level
litigation and procedural rules so that they would be able to process rights claims
of a collective nature (like those involving ESCR). For example, social rights
have a collective dimension, and therefore the violation of such rights tends to
imply the violation not only of individual rights, but also of those of groups
or communities. Also, violations derived from public policies, which often ex-
clude marginalized groups or communities in a region with very high levels of
inequality, tend to have a structural nature that may only be challenged through
collective litigation seeking collective and structural remedies. This led the Inter-
American Commission on Human Rights to state that a central requirement
for the enforceability of ESCR is to design and implement collective proceed-
ings that allow for collective claims. Furthermore, the Commission claimed that
the possibility of filing collective claims in representation of vulnerable groups
that may suffer a violation of their ESCR is a requirement of the right to have
effective recourse to justice.50
The collective dimension of certain violations of ESCR has also been iden-
tified by the Inter-American Court of Human Rights, for example, in a case
concerning indigenous peoples’ right to their ancestral lands, in which it stated
that the communal property rights characteristic of these communities imply
that there is no one single individual who may claim ownership, since such
ownership belongs to the group and its community.51 The same idea was as-
serted, invoking General Comment 14 of the CESCR, in the Yakye Axa v
Paraguay case.52
Also, as emerges from the cases mentioned in the following section, the require-
ment for collective proceedings may respond to the practical impossibility facing
members of a given collective in filing an individual claim in court. This may be due
to the particular situation of vulnerability of such individuals, which constitutes an
empirical barrier to carrying out all of the steps necessary to file a judicial case, or to
the structural nature of the situation that produces the rights violation in question,

from Domestic Systems (Intersentia 2006) 355. For a complete list of this author’s publications, see
<https://uprimnyrodrigoenglish.wordpress.com/publications> accessed 10 March 2017.
50 See Inter-American Commission on Human Rights (IACHR) ‘El acceso a la justicia como
garantía de los derechos económicos sociales y culturales: Estudio de los estandares fijados por el
sistema interamericano de derechos humanos’ (7 September 2007) OEA/Ser.L/V/II.129 Doc 4, paras
268–75.
51 Case of the Mayagna (Sumo) Awas Tigni Community v Nicaragua, Judgment (Merits, Reparations
and Costs) Inter-American Court of Human Rights Series C No 79 (31 August 2001) paras 146 and
149. All of the IACtHR’s jurisprudence is available online at <www.corteidh.or.cr/index.php/en/
jurisprudencia> (last visited 10 March 2017).
52 Case of the Yakye Axa Indigenous Community v Paraguay, Judgment (Merits, Reparations and
Costs) Inter-American Court of Human Rights Series C No 125 (17 June 2005) para 166.
162

162 Influence of the ICESCR in Latin America

which therefore requires a structural remedy (eg cases in which prison system reform
is required to change inhuman conditions of detention).
This collective nature of ESCR led countries to progressively recognize collective
proceedings for filing claims for their protection. These proceedings adopted dif-
ferent forms in different jurisdictions, examples of which are the acción de amparo
colectivo (in Argentina), acción de tutela (in Colombia), and the mandados de
segurança (in Brazil), among others. As time passed, different types of civil society
organizations, indigenous peoples, public defence institutions, and ombudspersons
exerted societal oversight of public policies using a human rights approach, making
the region a leader in human rights strategic litigation experiences. These types of
proceedings propelled cases which promoted public discussions on policies such as
guidelines for social security reform, mass pension and wage reduction programs,
HIV/AIDS drugs provision policy, education quota systems for Afro-descendant
populations, distribution of public education budget appropriations, exclusion of
social sectors from food assistance programs, discriminatory practices against immi-
grants in access to social services and housing schemes, and non-fulfilment of social
policy for displaced persons in armed conflicts. These remedies have also contributed
to the monitoring of companies that provide public services, in order to protect the
rights of users, or private groups and companies that engage in economic activities
that have an environmental impact. They have also served to secure the disclosure of
information and demand participation mechanisms in processes prior to the design
of a policy or the award of concessions for potentially harmful economic activities.53

IV. Influence of the ICESCR on the Jurisprudence of National Courts

As the present section will show, the ICESCR and the ‘decisions’ (understood as
General Comments, Views, concluding observations, reports, and provisional
measures) issued by the CESCR have a strong presence in the decisions of most na-
tional courts in cases related to ESCR. According to Julieta Rossi and Leonardo G
Filippini, this fact is explained by at least four conditions. The first is the availability
of these documents as relevant normative material for the resolution of a specific
case in the local domain. The second is the higher precision and sophistication of the
international human rights rules and ‘decisions’ in delineating the scope of human
rights obligations, as a consequence of the activity of specialized treaty bodies (ie the
CESCR). The third is the massive judicialization of politics, which implied that, as
of the 1990s in Latin America, the judiciary became an avenue for political partici-
pation, activism, and contesting issues which were once discussed in the political do-
main but are now claimed in court through a rights-based approach. The last factor
is the robust presence of invocations of international law in judicial decisions, which
may be explained by the fact that, as a consequence of the incorporation of inter-
national obligations into domestic legal systems, litigants are invoking international

53 IACHR, ‘El acceso a la justicia’ (n 50) para 238.

163

Influence of the ICESCR on the Jurisprudence of National Courts 163

treaties and decisions in court.54 The ways in which States have implemented their
Covenant obligations have become the set of criteria through which the courts find
that positive obligations exist and that States have to enforce them.
As stated in the introduction to this chapter, domestic courts have found dif-
ferent ways of addressing issues regulated under the ICESCR, and it is difficult to
isolate the influence of the Covenant from the influence of other factors that may
have impacted the courts’ decisions—such as the recognition of certain rights by the
domestic Constitution and references to other international human rights treaties
or to other countries’ judicial decisions. The following are some examples in which
rights that emerge from the ICESCR have been adjudicated by national courts in
countries that have ratified the Covenant. As explained in the previous section, con-
stitutions throughout the region grant a high hierarchical position to treaty provi-
sions in the domestic legal system. Also, as emerges from the following decisions, the
influence of the ICESCR on the judicial system is explicit in some cases, with courts
citing the CESCR, or implicit in others. In the latter case, even if the ICESCR is
not cited, the rights which are the basis for the decisions are rights recognized by the
ICESCR and by the internal legal orders, which assign international human rights
treaties a high position in the normative hierarchy.

A. Argentina
The Argentine Supreme Court applies ESCR contained in international human
rights treaties, including the ICESCR, either directly or in complement to constitu-
tional provisions. It has done so across the board, including in a variety of fields such
as the right to health, the right to social security, labour rights, and children’s rights,
in a progressive and non-regressive fashion. The Court has also based its rulings on
the CESCR’s General Comments and the decisions and advisory opinions of the
Inter-American Court of Human Rights.55
In Campodónico de Beviacqua, the Court delivered a seminal decision regarding
the right to health.56 The case revolved around the obligation of the federal govern-
ment to continue assisting in the treatment of a child with disabilities. The State
had discontinued the provision of medication to the affected child, affirming that
this was compatible with its human rights obligations. It argued that it had previ-
ously provided the medication not out of legal duty but for ‘humanitarian reasons’.
An appellate court found against the State and ordered the re-establishment of the

54 Julieta Rossi and Leonardo G Filippini, ‘El derecho internacional en la judiciabilidad de los
derechos sociales: El caso de Latinoamérica’ in Pilar Arcidiácono, Nicolás Espejo Yaksic, and César
Rodríguez-Garavito (eds), Derechos sociales: Justicia, política y economía en América Latina (Siglo del
Hombre, Uniandes, CELS, and Universidad Diego Portales 2010) 193.
55 Víctor Abramovich, Alberto Bovino, and Christian Courtis (eds), La aplicación de los tratados sobre
derechos humanos en el ámbito local: La experiencia de una decada (CELS 2007).
56 See Supreme Court (Argentina) No C.823.XXXV.RHE, Campodónico de Beviacqua, Ana Carina
c/Ministerio de Salud y Acción Social—Secretaría de Programas de Salud y Banco de Drogas Neoplásicas,
24 October 2000. All Argentine Supreme Court decisions are available online at <www.csjn.gov.ar/
sentencias-acordadas-y-resoluciones> accessed 10 March 2017.
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164 Influence of the ICESCR in Latin America

benefit, and the Supreme Court confirmed the decision. In doing so, the Court
stated that the right to health is constitutionally protected and that it is the duty of
the federal State to implement positive action in order to guarantee it. The judges
also pointed out that international human rights treaties protect children’s right
to life and health and cited article 12 of the ICESCR. They then affirmed that
States parties to the Covenant ‘must take steps to the maximum of their available
resources, with a view to achieving, progressively, the full realization of the rights
recognized in the Covenant.’ They also based their decision on articles 23, 24, and
26 of the Convention on the Rights of the Child.57 Based on this, the Supreme
Court affirmed that the Argentine government could not validly refuse to comply
with its international duties to promote and facilitate the health treatment required
by children. More so, the involvement of other public or private entities did not
preclude participation by the State, especially when the best interests of the child
were at stake.
In another important decision, Asociación Benghalensis, the Supreme Court or-
dered the federal government to guarantee the provision of HIV-related medicine to
public hospitals, in compliance with a federal statute, as the result of an injunction
that had been filed by a non-governmental organization (NGO).58 The Court up-
held the judgment of the appellate court and confirmed the arguments advanced by
the attorney general. The judges stated that the right to health is recognized in article
12(c) of the ICESCR, articles 4(1) and 5 of the American Convention on Human
Rights,59 and article 6 of the ICCPR.60 Consequently, it is up to the government
not only to ‘abstain from interfering in the exercise of individual rights’ but also to
‘perform positive actions, without which the exercise of rights would be illusory’.
Further, this was the first case in which the Court recognized the collective standing
of an NGO.
More recently, the Federal Supreme Court ruled in a right to housing case wherein
it explicitly argued for the State’s obligation to guarantee the rights recognized in
the Constitution and international human rights treaties.61 In doing so, the Court
heavily relied on and even quoted the CESCR’s General Comment 5, and reiter-
ated that the Committee is the authorized interpreter of the ICESCR and that,
for that reason, its interpretation of the Covenant should be taken into account
by the Court.62 Further, the Court directly relied on the standards established by

57 Convention on the Rights of the Child (opened for signature 20 November 1989, entered into
force 2 September 1990) 1577 UNTS 3.
58 Supreme Court (Argentina) No A.186.XXXIV.REX, Asociación Benghalensis y otros c/Ministerio
de Salud y Acción Social—Estado Nacional s/amparo ley 16.986, 1 June 2000, 22.
59 See arts 4(1) and 5 of the American Convention on Human Rights (ACHR) (opened for signature
22 November 1969, entered into force 18 July 1978) 36 OAS Treaty Series, 1144 UNTS 123.
60 ICCPR art 6.
61 Supreme Court (Argentina) No Q.64.XLVI, Q. C., S. Y. c/Gobierno de la Ciudad Autónoma de
Buenos Aires s/amparo, 24 April 2012 (cita Fallos: 335:452) <www.cij.gov.ar/nota-9003-Derecho-a-
la-vivienda--la-Corte-ordeno-a-la-Ciudad-poner-fin-a-la-situacion-de-calle-de-una-madre-y-su-hijo-
discapacitado.html> accessed 10 March 2017.
62 ibid para 10, referring to CESCR, ‘General Comment 5’ in ‘Compilation of General Comments’
(2003) (n 25) 24.
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Influence of the ICESCR on the Jurisprudence of National Courts 165

the Committee on how to understand the obligation under the Optional Protocol
to adopt measures using the maximum available resources, stating that even if the
availability of resources may condition the obligation to adopt measures (or take
steps), it does not alter the immediate nature of this obligation; it also rejected the
scarcity of resources as an argument to justify not having adopted any measures.63
The Court went on to adopt the Committee’s approach to analysing the objective
criteria to be considered in cases in which the State invokes the lack of resources or
limited resources.64
At the provincial level, the settlement agreement between the government of the
City of Buenos Aires and the non-governmental association ACIJ (Civil Association
for Equality and Justice) helped to clarify the content and scope of the State’s obliga-
tions with regards to the right to education. The injunction filed by ACIJ demanded
that the government allocate enough resources to properly finance the education
system and execute budgetary allocations to the fullest. After a positive decision by
an appellate court, which included as a central argument that the government had
not respected the obligation imposed by the ICESCR to adopt measures using the
maximum available resources,65 the government and ACIJ reached an agreement
containing provisions for the building of adequate facilities and the implementation
of a control and audit mechanism. Still in progress today, this precedent proved to
be a milestone in the litigation of ESCR and an important guideline for the State in
the execution of public policy.66

B. Brazil
As concerns the right to health care, the Brazilian courts have stated that this right
stems from the right to life and is, as such, its inseparable consequence. In Diná Rosa
Vieira v Município de Porto Alegre, the Superior Federal Tribunal affirmed that it was
the responsibility of the State to design its public policies so as to guarantee equal
access to medical, hospital, and pharmaceutical assistance. The judges stressed that
the government cannot transform constitutional rules into an empty constitutional
promise and that the right to health ‘imposes upon the government a positive duty
to provide the means for it, which will only be fulfilled by government bodies when
they adopt measures designed to promote, in full, effective compliance with the
determinations contained in the constitutional text’.67 The same tribunal has also

63 ibid para 14, citing CESCR, ‘Statement of Evaluation of the Obligation to Take Steps to the
“Maximum of Available Resources” under an Optional Protocol to the Covenant’ (21 September
2007) E/C.12/2007/1, para 10.
64 ibid para 14.
65 Asociación Civil por la Igualdad y la Justicia c/GCBA s/amparo (art 14 CCABA) No 23360/0
(19 March 2008) <http://campusvirtual.justiciacordoba.gob.ar/moodle/pluginfile.php/2799/mod_
folder/content/0/CCAyT%20ACIJ%20Educacion%20Inicial.pdf?forcedownload=1> accessed 10
March 2017, s A.5.
66 See the Acta de Acuerdo between the government of the City of Buenos Aires and ACIJ (9 February
2011) <http://acij.org.ar/wp-content/uploads/ACTA_ACUERDO_4_de_febrero.pdf> accessed 23
March 2016.
67 See Supreme Federal Court (Brazil), RE-AgR 271286 RS, Diná Rosa Vieira c/Município de Porto
Alegre, 12 September 2000.
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166 Influence of the ICESCR in Latin America

affirmed that those in need are entitled not just to any sort of treatment, but to the
most suitable and effective kind. This, in turn, provides the patient ‘with the greatest
dignity and least amount of suffering’.68
Regarding the right to education, the courts have stressed the right to elementary
schooling, deriving it from the general duty of the State in this matter. In this line,
domestic judges have emphasized the importance of verifying compliance beyond
any economic restraints. In other rulings, they have established the obligation of the
public authorities to provide vacancies in day-care centres for children of up to six
years of age. As for higher education, rulings point to the duty of the State to sustain
its provision even when students are behind on the payment of fees.69
It can be pointed out that, with an exception for the right to health, Brazilian
courts have not dealt with as many cases concerning ESCR as other States in the
region, and that direct citations of the ICESCR are not commonly found in their
decisions, reflecting the country’s traditional reticence towards international law.
Such lack of explicit reliance may also be explained by the normative structure for
the domestic enactment of rights. As explained by Octavio Luiz Motta Ferraz in his
analysis of Brazilian right to health litigation, such enactment is very detailed and
specific and does not even contain references to the limitation of the State’s duty
based on the availability of resources, which may explain the different approaches to
adjudication taken in comparison with other jurisdictions.70
However, there is an increasing trend to litigate ESCR, which reveals the po-
tential to fully ensure compliance with the relevant international human rights
instruments.

C. Colombia
Colombia’s Constitutional Court plays a leading role in the protection of ESCR
and in promoting their effectiveness. The Court has done so through the so-called
acción de tutela—one of the judicial remedies available before it—as well as through
its review of laws. The Court has stated that, although ESCR are defined by their
progressive realization, it is an inalienable duty of the State to develop a plan for their
implementation, as well as to commit not to adopt retrogressive measures, neither in
legislation nor in the allocation of resources.71
As for the right to health, the Court has generally considered that ESCR should
be progressively realized, except for the cases in which the right in question is linked

68 See Supreme Federal Court (Brazil), RMS 17903, Kátia Mendes Campos c/Estado de Minas Gerais,
10 August 2004.
69 See Piovesan, ‘Brazil’ (n 13) 188–89.
70 Octavio Luiz Motta Ferraz, ‘Between Usurpation and Abdication? The Right to Health in
the Courts of Brazil and South Africa’ in Oscar Vilhena, Upendra Baxi, and Frans Viljoen (eds),
Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India, and South Africa (Pretoria
University Law Press 2013) 375.
71 Magdalena Sepúlveda, ‘Colombia: The Constitutional Court’s Role in Addressing Social Injustice’
in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative
Law (CUP 2008) 144, 147.
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Influence of the ICESCR on the Jurisprudence of National Courts 167

to another fundamental right. In the case of children, the Constitution establishes

that it is a fundamental right on its own and is, thus, directly applicable.72 In that
vein, in a high-profile decision, the Court ordered the State to implement a free vac-
cination program for children in one of the poorest districts of Bogotá. More than
four hundred parents filed an injunction against the government requesting assist-
ance from the State and denouncing the violation of their children’s right to health.
They argued that they lacked the resources to provide for their families and that the
children were in a high-risk situation. In its ruling, the Court stressed that the lack
of a vaccination plan affected the core content of the right to health—as protected
by local laws, the Constitution, and international human rights treaties ratified by
Colombia (which include the ICESCR)—and, hence, superseded any concerns
about a violation of the principle of separation of powers.73 The judges also required
that treatments be provided to children even when these were excluded from the
coverage of the compulsory health plan, including, in some instances, when these
interventions needed to take place overseas.74 The Court has made an effort to place
human dignity at the centre of its decisions and, in doing so, has eschewed utili-
tarian considerations. Further, the influence of the ICESCR may be traced not only
to the recognition of ESCR rights by the Constitution and courts, but also to the
direct citation of and recourse to certain doctrines related to the Covenant. For ex-
ample, in a recent case concerning the right to health of an imprisoned person, the
Constitutional Court strongly relied on the CESCR’s General Comment 14 to de-
fine the scope of such a right;75 in a case related to employment stability and labour
rights, the Court based its decision on ICESCR article 10(2).76
With regards to the right to education, the Constitution recognizes it as a fun-
damental right and, as such, as directly enforceable. The Constitutional Court has
affirmed that it is an inalienable duty of the State to make sure that access to edu-
cational institutions is guaranteed, and supported its position by citing General
Comment 13 of the CESCR. In this sense, it has found that this right is violated
when public or private schools deny access to children without adequate justifica-
tion.77 In another case, the Court analysed the principle of progressive realization
and non-retrogression, citing General Observation 3 of the CESCR in deciding
that the State had an obligation to provide access to primary education to adults.78

72 Political Constitution of Colombia, 1991, s 44.

73 Colombian Constitutional Court, Judgment SU225-98, Sandra Clemencia Perez Calderon y otros
c. Ministerio de Salud y la Alcaldía de Santa Fe de Bogota, 20 May 1998.
74 ibid.
75 Colombian Constitutional Court, No T-020/17, Yeison Fabian Arciniegas Omaña c. el Centro
Penitenciario y Carcelario de Cúcuta y el Instituto Nacional Penitenciario y Carcelario (INPEC ) 20
January 2017.
76 Colombian Constitutional Court, No C-005/17, Demanda de inconstitucionalidad c. el numeral
1 del artículo 239 y el numeral 1 del artículo 240 del Decreto Ley 2663 de 1950 (Código Sustantivo del
Trabajo) 18 January 2017.
77 Colombian Constitutional Court, No T-533/09, Luis Alberto Lozano y otros c. el Municipio de
Ibagué y otros, 6 August 2009.
78 Colombian Constitutional Court, No T-428/12, Carlos Armando Orbes Benavides y otros c. la
Secretaría de Educación Departamental de Nariño y el Ministerio de Educación Nacional, 8 June 2012.
168

168 Influence of the ICESCR in Latin America

The Colombian Constitutional Court delivered its most structural and ambi-
tious judgment in this regard—to date—in 2004. Judgment T-025 was the result
of the accumulation of over 1,000 complaints filed by displaced families by way of
acción de tutela, and declared that the humanitarian emergency caused by forced dis-
placement constituted an ‘unconstitutional state of affairs’; that is, a massive human
rights violation associated with systemic failures in State action.79 The desperate
situation of displaced families coexisted with the lack of an articulated State policy
for providing emergency aid and the absence of reliable information on the number
of displaced people or the conditions in which they lived. As part of the lack of
adequate policies, the State was not devoting sufficient resources to tackling this
situation. As César Rodríguez-Garavito has explained, Judgment T-025 was not the
Court’s first structural decision declaring an unconstitutional state of affairs.80 The
Court has handed down judgments of this kind in diverse situations including non-
compliance with the State’s obligation to affiliate numerous public officials to the
social security system, massive prison overcrowding, lack of protection for human
rights defenders, and failure to announce an open call for public notary nomin-
ations. In other cases, the Court has aggregated different tutela actions and ordered
long-term structural remedies without formally declaring an unconstitutional state
of affairs. It did so most recently in its Judgment T-76014 of 2008, which resolved
twenty-two complaints about systemic failures in the health care system.81
The basis for all this jurisprudential development is the Constitution of 1991.82
This instrument, which defines Colombia as a ‘social State’, contains an extensive
catalogue of ESCR—as a corollary to the aforementioned principle—and estab-
lishes that international human rights treaties take precedence over domestic law.
Further, the Constitutional Court has developed the concepts of progressivity and
non-retrogression established in the Constitution following the ICESCR standards
and the jurisprudence of the CESCR on those issues, and has recurred to deci-
sions and reports of the universal treaty bodies, including the CESCR, to interpret
the human rights norms included in international instruments or the Colombian
Constitution.83

D. Venezuela
Venezuela’s 1999 Constitution places respect for human rights at its core. This new
instrument includes a comprehensive list of human rights and guarantees for their

79 Colombian Constitutional Court, No T-025/04, Abel Antonio Jaramillo y otros c. la Red de

Solidaridad Social y otros, 22 January 2004.
80 Rodríguez-Garavito, ‘Beyond the Courtroom’ (n 41).
81 ibid; Sepúlveda, ‘Colombia’ (n 71) 147.
82 For a more detailed description of the evolution of the arguments used by the Constitutional Court
to enforce ESCR rights, see Rodrigo Uprimny Yepes, ‘La justiciabilidad de los DESC en Colombia en
perspectiva comparada’ in Magdalena Cervantes Alcayde and others (eds), ¿Hay justicia para los de-
rechos económicos, sociales y culturales?: debate abierto a propósito de la reforma constitucional en
materia de derechos humanos’ (Instituto de Investigaciones Jurídicas 2014) 65.
83 See Rossi and Filippini, ‘Derecho internacional’ (n 54).
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Influence of the ICESCR on the Jurisprudence of National Courts 169

realization, as well as proclaiming Venezuela to be a democratic ‘social State of law

and justice’.84
Along with proclaiming justice, equality, and human rights as superior values, the
Constitution’s catalogue of ESCR encompasses more than fifty prerogatives ranging
from policy goals to justiciable guarantees. The Constitution also includes participa-
tory mechanisms to encourage the active involvement of citizens in the design and
management of public social services and policies, as well as the right to act before
the courts in defence of collective and diffuse interests.
Scholars claim that the justiciability of ESCR has been significantly advanced
under the new Constitution.85 However, the courts have yet to reach a point of
maturity, and their findings are contradictory at times. Nevertheless, the Supreme
Tribunal of Justice has consistently affirmed that constitutional rights possess a nor-
mative nature and are therefore immediately enforceable by the courts. Also, the
Constitution recognizes, in its article 23, that human rights treaties have constitu-
tional hierarchy and prevail over local laws as long as they provide stronger rights
protection.
With regard to the right to health, the Supreme Tribunal of Justice has enforced
decisions allowing HIV-positive patients to access medication from the Social
Security Agency. The judges extended the effects of the decision to all rights-bearers,
giving their holding a collective nature and stressing that people need to attain the
‘ideal health care’ necessary to safeguard their ‘mental, social and environmental
integrity’.86 The Court also stated that the Social Security Agency could not justify
non-compliance on the basis of a lack of resources. This case was filed by plaintiffs
invoking violations of the ICESCR.87
In another landmark decision, the Tribunal ordered the Social Security Agency
to reverse the closure of the emergency service and night shift in one of its health
centres.88 In still another ruling, it affirmed that the right to health is enforceable
and that the State must not only intervene as appropriate to create the conditions
necessary for the enjoyment of this right, but also to remove the obstacles to its
exercise.89
Finally, in a more recent ruling concerning a case filed by an NGO invoking—
among other treaties—the State’s obligations under the ICESCR, the Supreme
Tribunal found that the National Assembly’s failure to institute an unemployment
benefit scheme violated the right to social security and to worker protection and was
inconsistent with the progressiveness of social rights in the Constitution and the

84 Constitution of the Bolivarian Republic of Venezuela, 1999, art 2.

85 See Enrique González, ‘Venezuela: A Distinct Path Towards Social Justice’ in Malcolm Langford
(ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (CUP 2008)
192, 196.
86 Supreme Tribunal of Justice (Venezuela) No 00-1343, López, Glenda y otros c. Instituto Venezolano
de los Seguros Sociales (IVSS) s/acción de amparo, 2 December 2002.
87 ibid.
88 Supreme Tribunal of Justice (Venezuela) No 00-2305, Peña Linares y otros c. Instituto Venezolano
de los Seguros Sociales (IVSS) 12 June 2001.
89 Supreme Tribunal of Justice (Venezuela) No 01-2832, Balza Meza, Maza de Balza y otros c. Ministro
de la Defensa y el Comandante General del Ejército, 12 June 2001.
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170 Influence of the ICESCR in Latin America

international human rights obligations assumed by Venezuela. The judges ordered
the government to take action and pass a law on the matter or to implement a tem-
porary remedy to satisfy the plaintiffs.90

E. Other countries’ experiences

Other countries’ courts also exhibit an influence of the ICESCR in their decisions.
In Costa Rica, for example, the Supreme Court decided a case related to the right
to health and access to HIV medications by directly citing ICESCR article 12(2).91
The Supreme Court also considered that not allowing a pregnant adolescent access
to education would violate ICESCR article 13(3).92
In Peru, the Constitutional Tribunal ruled in favour of the protection of the right
to health of a patient with HIV, invoking the doctrine of progressive realization and
use of maximum available resources under ICESCR article 2(1).93 Further, in a right
to education case in which access was denied to a child, the Tribunal stated that local
laws should be interpreted according to the obligations stemming from the human
rights treaties ratified by Peru (among which the ICESCR can be found).94
The Supreme Court of Justice of Mexico relied on the ICESCR to obligate the
State to finish the construction of a health services facility in order to guarantee
the right to health. The decision relied on the ICESCR and the guidance of the
CESCR. On the one hand, the Court defined the scope of the right to health by
citing ICESCR article 12 and the CESCR’s General Comment 14. On the other
hand, the Court analysed the CESCR’s General Comment 3 and stated that it was
mandatory for Mexico to adopt measures up to the maximum available resources
and also that the State had certain obligations of immediate effect.95 In a more re-
cent case, even though the Court dismissed a claim from a group of neighbours that
demanded the construction of an arts building, it analysed the right to culture under
the CESCR’s General Comment 21 and defined the international obligations of
Mexico regarding this right according to ICESCR article 2.96

90 Supreme Tribunal of Justice (Venezuela) No 03-1100, Demanda de inconstitucionalidad por

omisión de la Asamblea Nacional al promulgar la Ley Orgánica de Seguridad Social, 2 March 2005.
91 Supreme Court of Costa Rica, No 06096-1997, Luis Murillo Rodríguez c. el Presidente Ejecutivo
de la Caja Costarricense de Seguro Social, 26 September 1997. See Nash Rojas, Claudio, ‘Los dere-
chos económicos, sociales y culturales y la justicia constitucional latinoamericana: tendencias
jurisprudenciales’ (2011) 9 Estudios Constitucionales 65.
92 Supreme Court of Costa Rica, No 05316-2003, Ligia Agüero Hernández c. directora del Centro
Educativo Nuestra Señora de Desamparados, 20 June 2003; Nash Rojas, ‘Tendencias jurisprudenciales’
(n 91).
93 Constitutional Tribunal of Peru, No 2945-2003-AA, Azanca Alhelí Meza García c. la sentencia
de la Tercera Sala Civil de la Corte Superior de Justicia de Lima, 20 April 2004; Nash Rojas, ‘Tendencias
jurisprudenciales’ (n 91).
94 Constitutional Tribunal of Peru, No 00052-2004-AA, Martha Elena Cueva Morales c. la resolución
de la Primera Sala Civil de la Corte Superior de Justicia del Callao, 1 September 2004; Nash Rojas,
‘Tendencias jurisprudenciales’ (n 91).
95 Supreme Court of Justice of Mexico, No 378/2014, 15 October 2014.
96 Supreme Court of Justice of Mexico, No 566/2015, 15 February 2017.
17

Influence of the ICESCR on the Regional Human Rights System 171

V. Influence of the ICESCR on the Regional Human Rights System

A. The San Salvador Protocol

Notwithstanding the confirmed justiciability of ESCR, a question remains un-
answered: are the ICESCR obligations of States fulfilled by the mere adoption of
measures ordered by regional treaties which create obligations along the same lines
as the ICESCR? The Inter-American Court of Human Rights has attempted to pro-
vide an answer to this question, stating that simply fulfilling the obligation to adopt
treaty measures is not enough. The Court has stressed that ‘[t]‌he obligation to ensure
the free and full exercise of human rights is not fulfilled by the existence of a legal
system designed to make it possible to comply with this obligation—it also requires
the government to conduct itself so as to effectively ensure the free and full exercise
of human rights.’97 In the same vein, the CESCR has traditionally asked States par-
ties to submit practical and empirical information in their periodic reports together
with information on normative structures and, therefore, its General Comments
contain detailed information on the requirements in such fields.98
The adoption of adequate measures is one of the issues to be measured through
the progress indicators adopted under the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural Rights,
or Protocol of San Salvador,99 in order to implement the duty to submit periodic
reports.100 The Protocol of San Salvador took nearly eleven years to enter into force
and only binds sixteen States,101 all of which are States parties to the Covenant. The
objective of the Protocol is to complement the ACHR, whose article 26 is the only
provision in its chapter III dealing with ESCR. This provision, under the title of
Progressive Development, states that the parties are bound to:
undertake to adopt measures, both internally and through international cooperation, espe-
cially those of an economic and technical nature, with a view to achieving progressively, by
legislation or other appropriate means, the full realization of the rights implicit in the eco-
nomic, social, educational, scientific, and cultural standards set forth in the Charter of the
Organization of American States as amended by the Protocol of Buenos Aires.102
It is common wisdom in the Inter-American system of human rights that the ESCR
referred to in article 26 are those mentioned in the OAS Charter and those embodied

97 See Velásquez Rodríguez v Honduras, Judgment (Merits) Inter-American Court of Human Rights
Series C No 4 (29 July 1988) para 167.
98 See CESCR, ‘General Comment 1’ in ‘Compilation of General Comments’ (2003) (n 25) para 7.
99 Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights (‘Protocol of San Salvador’) (opened for signature 17 November 1988, en-
tered into force 16 November 1999) OAS Treaty Series 69.
100 See OAS (Executive Secretariat for Integral Development), Progress Indicators for Measuring
Rights under the Protocol of San Salvador (OEA/Ser.D/XXVI.11, 2nd edn, OAS 2015) 21.
101 For the full list of ratifications and accessions regarding the Protocol of San Salvador, see <www.
oas.org/juridico/english/sigs/a-52.html> accessed 13 March 2016.
102 ACHR art 26 (n 59).
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172 Influence of the ICESCR in Latin America

in the American Declaration of the Rights and Duties of Man. This provision has
been considered a suitable entry point for this set of rights in the strategies for the
justiciability of ESCR at the regional level.103
The relationship between the ICESCR and the Protocol of San Salvador is close
in substance because the two instruments deal with almost the same rights, but
the wording and the legislative techniques employed are quite different. Aiming
to supersede the gap between the East and the West in the international arena, the
drafters of the Protocol decided to conceive of the protected rights as entitlements
similar to CPR. The protection system ultimately established by the Protocol is
half-way between the ICESCR and the ICCPR, as it provides that complaints re-
lating to rights protected in its articles 8 and 13 (trade union rights and the right to
education) can be lodged with the Inter-American Commission on Human Rights
(IACHR), and therefore with the IACtHR, and that reports should be submitted re-
lating to all protected rights even though the specificities of such a reporting system
remain open in the text.

B. Measuring progress
It was only in 2005 that the rules governing the periodic reports that States should
submit according to article 19 of the Protocol were adopted by the OAS General
Assembly on the grounds of the above-mentioned indicators of progress.104 Such
measurement of progress is conducted with quantitative and qualitative indicators
and analysed under certain categories that are transversal to all rights. At all stages, a
human rights perspective is adopted.105
The institutional decision to establish a specific method of analysis to assess
compliance with ESCR through the construction of periodic reports as a set
of progressive indicators led specialists to intensely deal with these rights and
to produce relevant legal writings, for example the articles written by Flavia
Piovesan and Laura Pautassi, two experts assigned with the task of building the
indicators.106
A specific Working Group was created in 2010, which divided the rights into
two groups, namely (i) health, social security, and education, and (ii) labour
rights and trade-union rights, the right to food, and environmental and cultural
rights. The Working Group has now concluded the evaluation process of the
first group.
While this reporting system is relatively new, the failure to adopt adequate meas-
ures as well as the adoption of inadequate ones has been a central argument in ESCR
adjudication throughout the region.

103 See Acevedo Buendía et al v Perú, Judgment (Preliminary Objection, Merits, Reparations and
Costs) Inter-American Court of Human Rights Series C No 198 (1 July 2009) para 100.
104 See OAS, ‘Standards’ (n 38). 105 OAS, Progress Indicators (n 100).
106 ibid; Laura Pautassi, ‘Monitoreo del acceso a la información desde los indicadores de derechos
humanos’ (2013) 10 Sur—Revista Internacional de Derechos Humanos 57.
173

Influence of the ICESCR on the Regional Human Rights System 173

C. Incorporating ESCR into the regional case law

By contrast to the universal and other regional systems, the evolution of the Inter-
American system is the result of many factors not necessarily linked to the normative
process. The normative structure embodied in the treaties evolved due to the con-
tinuous updating of the rules by both the Commission and the Court. The scope
of the protected rights increased because of the integration of many human rights
rules into the Inter-American system. Based on the provision authorizing the Court
to adopt advisory opinions on ‘other treaties concerning the protection of human
rights in the American states’107 and on the pro homine / persona principle of inter-
pretation,108 both the Commission and the Court are used to bringing other inter-
national human rights rules that are binding on the States into the system by means
of their decisions.
Whenever the scope of a given protected right is broader in another instrument
binding a State, the Court relies on article 29 of the ACHR to apply the broader ob-
ligation to the State.109 That is the case with the ICESCR, too. In a case dealing with
an indigenous community’s property, the IACtHR noted the absence of a national
rule but, based on the CESCR’s interpretation of ICESCR article 1 as applicable
to indigenous peoples, declared that ‘[a]‌ccording to Article 29(b) of the American
Convention, this Court is unable to interpret the provisions of Article 21 of this
instrument in a sense that would limit the enjoyment and exercise of the rights rec-
ognized by Suriname in these Conventions.’110 The Court has based many of its
decisions on the broader interpretations contained in the General Comments of
the CESCR on different rights protected under both systems, or even applied the
CESCR’s argumentation to its interpretation of rights protected under the regional
system.111
In the case of Five Pensioners, the IACtHR adopted, without further discussion,
a development produced by the jurisprudence of the CESCR and ruled on this
basis that
[the] progressive development [of ESCR], about which the United Nations Committee on
Economic, Social and Cultural Rights has already ruled [quoting General Comment 3 of the
CESCR], should be measured in function of the growing coverage of economic, social and
cultural rights in general, and of the right to social security and to a pension in particular, of
the entire population, bearing in mind the imperatives of social equity, and not in function

107 See art 64(1) ACHR (n 59). 108 See art 29 ACHR (n 59).
109 ibid. The original text states: ‘[n]‌o provision of this Convention shall be interpreted as: . . . b. re-
stricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State
Party or by virtue of another convention to which one of the said states is a party’.
110 The Kaliña and Lokono Peoples v Suriname, Judgment (Merits, Reparations and Costs) Inter-
American Court of Human Rights Series C No 309 (25 November 2015) para 122.
111 See eg Suarez Peralta v Ecuador, Judgment (Preliminary objections, Merits, Reparations and Costs)
Inter-American Court of Human Rights Series C No 261 (21 May 2013) paras 130, 131, 134, 150,
and 152. See also Gonzales Lluy et al v Ecuador, Judgment (Preliminary objections, Merits, Reparations
and Costs) Inter-American Court of Human Rights Series C No 298 (1 September 2015) paras 159,
173, 234, 235, and 262. See also Ximenes Lopes v Brazil, Judgment (Preliminary objections, Merits,
Reparations and Costs) Inter-American Court of Human Rights Series C No 149 (4 July 2006) para 51.
174

174 Influence of the ICESCR in Latin America

of the circumstances of a very limited group of pensioners, who do not necessarily represent
the prevailing situation.112
Later on, in the Acevedo Buendía case, which concerned the payment of pensions
in Peru, the IACtHR stressed the interdependence of rights, the absence of hier-
archies between ESCR and CPR, and the enforceability of all rights, citing the Airey
judgment of the European Court of Human Rights.113 The Court made its clearest
statement to date regarding how the State duty to adopt measures should be ana-
lysed by citing the CESCR. Among other concepts, the Court expressed that even if
the fulfilment of ESCR requires time and flexibility according to the practical reality
of each country, the State essentially (though not exclusively) has an obligation to
adopt measures and provide resources to fulfil the requirements of ESCR to the ex-
tent of its available resources. The Court went on to underline that the progressive
implementation of the relevant measures is subject to control and accountability,
and that the State’s fulfilment of its obligations may be enforced by any institution
devoted to human rights protection. Furthermore, it underlined the prohibition of
adopting retrogressive measures in ESCR-related areas.114
In addition, the IACtHR has invoked the concept of a life in dignity under the
obligations stemming from ACHR art 4, stating for example that the fundamental
right to life includes the right of every human being not to be deprived of life ar-
bitrarily, but also the right to have access to conditions that grant an existence in
dignity.
In other cases involving ESCR, the IACtHR resolved the issues at hand without
dealing with ACHR article 26 or the progressivity concept. In the Yakye Axa v
Paraguay case, the Court considered that the State had not adopted the necessary
measures to grant essential conditions for a life in dignity, since it had not guaran-
teed the provision of water, food, health, or education, among others.115 In the same
vein, and in relation to children in prisons, the Court considered that the protection
of the life of the child requires that the State take special care concerning the condi-
tions of detention, specifying that the State has, regarding children in prison, an ob-
ligation to provide them with health assistance and education in order to guarantee
that their detention will not destroy their future life projects.116

112 ‘Five Pensioners’ v Peru, Judgment (Merits, Reparations and Costs) Inter-American Court of
Human Rights Series C No 98 (28 February 2003) para 147. This decision was criticized for the dif-
ficulty implied, for a single litigant by the need to produce evidence concerning the situation of an
entire population instead of only his or her own. In this regard, see for example Christian Courtis,
‘Luces y sombras: La exigibilidad de los derechos económicos sociales y culturales en la sentencia Cinco
Pensionistas de la Corte Interamericana de Derechos Humanos’ (2004) 6 Revista Mexicana de Derecho
Público, ITAM, Departamento de Derecho (2004) 37–67.
113 IACtHR, Acevedo Buendía (n 103) paras 99–103, citing Airey v Ireland App no 6289/73 (ECtHR,
9 October 1979) para 26.
114 IACtHR, Acevedo Buendía (n 103) para 102. Also, it should be noted that, despite adopting such
a clear position in favour of the justiciability of ESCR, the court decided the case based on arts 25 (judi-
cial protection) and 21 (property) of the American Convention, and not on progressivity.
115 Yakye Aya v Paraguay (n 52) paras 161–62.
116 Instituto de Reeducación del Menor v Paraguay, Judgment (Preliminary Exceptions, Merits,
Reparations and Costs) Inter-American Court of Human Rights Series C No 112 (2 September
2004) paras 156–61.
175

Political Impact, Poverty, and Social Rights Violations 175

VI. Political Impact, Poverty, and Social Rights

Violations: The CESCR and the IACHR

The Optional Protocol to the ICESCR is in force in six Latin American States
(Argentina, the Plurinational State of Bolivia, Costa Rica, Ecuador, El Salvador,
and Uruguay) and was signed by another three States (Guatemala, Paraguay, and
Venezuela). However, there has not been, as of yet, any jurisprudence of the CESCR
dealing with Latin American States.
Latin America—mainly through the examination of periodic reports—provided
a good testing field for the CESCR, which did not hesitate to criticize States’ policies
on the adjustment of public debt and the liberalization of national economies, which
were understood as an obstacle for the reasonable enforcement of the Covenant.117
The region also allowed the Committee to recommend that the obligations under-
taken under the Covenant have to be taken into account by States Parties during
their negotiations with international financial institutions.118
Moreover, the CESCR first objected to States’ recurrent arguments concerning
the lack of resources as a justification for their non-compliance with the obliga-
tions deriving from the Covenant. Some States were accustomed to invoking their
poverty as an excuse for their failure to fulfil their Covenant obligations. Instead of
accepting these arguments, the CESCR blamed States and international organiza-
tions for these situations, and took the lead in considering poverty to be a denial of
human rights.119
Eschewing a strictly economic definition, the Committee has asserted that pov-
erty can be more accurately defined as the lack of basic capabilities required to live in
dignity.120 This means that it encompasses hunger, poor education, discrimination,
vulnerability, and social exclusion. It has found that:
In light of the International Bill of Rights, poverty may be defined as a human condition
characterized by sustained or chronic deprivation of the resources, capabilities, choices, se-
curity and power necessary for the enjoyment of an adequate standard of living and other
civil, cultural, economic, political and social rights.121
Consequently, enforcing ESCR is a fundamental step in the eradication of poverty.
The IACHR has followed the path created by the CESCR and has built on its
own vision, as expressed in a 2011 country report where it suggested that poverty
is, overall, a major human rights concern in the Americas and a phenomenon that

117 See CESCR, ‘Consideration of Argentina’s Second Periodic Report’ (8 December 1999) UN
Doc E/C.12/1/Add.38, para 10; CESCR ‘Consideration of Honduras’s Initial Periodic Report’ (21
May 2001) E/C.12/1/Add.57, paras 9–10; CESCR, ‘Consideration of Colombia’s Fourth Periodic
Report’ (6 December 2001) E/C.12/1/Add.74, para 9.
118 See CESCR, ‘Consideration of Argentina’s Second Periodic Report’ (8 December 1999) UN
Doc E/C.12/1/Add.38, para 28.
119 See CESCR, ‘Substantive Issues Arising in the Implementation of the International Covenant
on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social
and Cultural Rights’ (10 May 2001) UN Doc E/C.12/2001/10, para 1.
120 ibid para 7. 121 ibid para 8.
176

176 Influence of the ICESCR in Latin America

constitutes an across-the-board violation of all human rights: civil, political, social,
economic, and cultural.122 In 2016 the IACHR produced a Preliminary Report on
Poverty, Extreme Poverty and Human Rights in the Americas,123 in which it now
submits that:
poverty constitutes a human rights problem manifested in obstacles to the enjoyment and ex-
ercise of human rights on a genuinely equal basis by the persons, groups and communities ex-
periencing it. Under certain circumstances, it also involves violations of human rights for which
the State may bear international responsibility. At the same time, extreme poverty constitutes a
serious human rights issues [sic] because of the intensity with which it undermines the enjoyment
and exercise of human rights.124
This report was coordinated by a special Unit on ESCR created by the OAS in 2012
and operating within the IACHR. It clearly stresses the importance of tackling poverty
from a human rights perspective, which involves considering human beings as rights
holders who may actively participate in decision-making processes relating to them,
who require protection, and who demand accountability.
The influence of the ICESCR and the CESCR over the regional system is clear in
this report. In fact, the report cites the CESCR’s ideas on how to understand discrimin-
ation;125 on the links between the discrimination of vulnerable groups and poverty;126
on the interpretation and understanding of the obligation to adopt measures;127 and on
the understanding of the acceptability and quality of health care provisions presented in
General Comment 14,128 among others.
Also, it emerges as exceedingly clear from the report that the region faces a context
of structural poverty that is intimately related to a persistent situation of inequality,
exclusion, and discrimination. Under these conditions, the structural violation
of ESCR in the region is widespread and especially impacts people living in pov-
erty, specifically certain groups who have historically suffered discrimination.129
Furthermore, the Commission has stressed the deeper impact created by intersec-
tional discrimination.130 It specifically pointed out how the IACtHR has identified
the effects of such intersectionality in the context of its discrimination analysis in a

122 See IACHR, ‘Third Report on the Situation of Human Rights in Paraguay’ (9 March 2001) OEA/
Ser.L/V/II.110 Doc 52, ch II, para 8, and ch V, paras 8–9, citing United Nations Development
Programme, Human Development Report 2000 (OUP 2000) Foreword and 6, 42.
123 See IACHR, ‘Preliminary Report on Poverty, Extreme Poverty and Human Rights in the
Americas’ (2016) <www.oas.org/es/cidh/desc/docs/Pobreza-DDHH-InformePreliminar-2016-
en.pdf> accessed 10 March 2017.
124 ibid para 2.
125 ibid para 95, citing CESCR, ‘General Comment 20’ (25 May 2009) UN Doc E/C.12/GC/20.
126 IACHR, ‘Preliminary Report on Poverty’ (n 123) para 98, citing CESCR, ‘Substantive Issues’
(n 119) para 11.
127 IACHR, ‘Preliminary Report on Poverty’ (n 123) paras 143, 155–57.
128 ibid para 170, referring to CESCR, ‘General Comment 14’ in ‘Compilation of General
Comments’ (2003) (n 25) 85.
129 IACHR, ‘Preliminary Report on Poverty’ (n 123) paras 18 and 88.
130 ibid para 106.
17

Political Impact, Poverty, and Social Rights Violations 177

case in which the victim was a girl living in a situation of poverty and with HIV.131
The Court argued that the various discrimination-related factors interacted with
one another: poverty impacted the applicant’s access to adequate health care, which
ended up causing her to become infected with the HIV virus when she was three
years old, but it also impacted her right to access the education system and to find
adequate housing.132
The numbers concerning the gravity of poverty and inequality in the region,
and showing how certain groups are especially affected in their access to rights, are
telling. These numbers show a different side of the impact of the ICESCR in the re-
gion. Whereas, as shown, the Covenant has had a significant influence on domestic
legal systems and local adjudication bodies, such influence coexists with a desolate
state of affairs in terms of poverty and inequality. The increasing recognition of
ESCR in domestic constitutions and by courts has not been paired with adequate
public policies to fulfil the goals of the Covenant in terms of real access to ESCR.
The following will present only a brief selection of data as a sample for the
whole region. According to the Economic Commission for Latin America and the
Caribbean (ECLAC),133 in 2014, the number of people living in poverty in the re-
gion reached 168 million (70 million in extreme poverty), and this figure grew again
in 2015, reaching 175 million (of whom 75 million are indigent). Furthermore,
Latin America and the Caribbean continues to be the most unequal region in the
world, with an economic inequality gap that strengthens social inequalities, despite
economic growth during the last decade. According to ECLAC, in 2014, 10 per
cent of the population owned 71 per cent of the existing wealth in the region, while
50 per cent of the population owned 3.2 per cent. The richest 1 per cent owned 40
per cent of wealth. In certain Caribbean states, the rates of people living in poverty
are even higher, with Haiti (77 per cent), Belize (41.3 per cent), Grenada (37.7 per
cent), and Guyana (36.1 per cent) representing the worst examples.
The report clearly shows how poverty directly impacts access to basic ESCR, and
how deprivation is more acute for certain vulnerable groups. Though the report
thoroughly analyses the situation of women, migrants, imprisoned or detained per-
sons, persons with disabilities, and LGBTI persons, we will focus—due to space
constraints—on the situation of children as an example. In this regard, the report
notes, first, that around 80 million children live in poverty in Latin America and the
Caribbean, which implies that over 45 per cent of the population under eighteen
years of age lives in such conditions. Of these, 32 million live in extreme poverty.
This gets worse in the case of indigenous communities (wherein one out of three
children live in poverty) and Afro-descendants (whereof two out of four children
live in poverty). Second, malnutrition affects 2.3 million children aged 0-4, which

131 ibid paras 108–09, referring to Gonzales Lluy et al v Ecuador, Judgment (Preliminary
Exceptions, Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 298
(1 September 2015).
132 IACHR, ‘Preliminary Report on Poverty’ (n 123) citing Gonzales Lluy et al v Ecuador
(n 131) para 290.
133 ECLAC, ‘Social Panorama of Latin America 2015’ <http://repositorio.cepal.org/bitstream/
handle/11362/39964/1/S1600226_en.pdf> accessed 10 March 2017, 7.
178

178 Influence of the ICESCR in Latin America

represents 4.5 per cent of the children in this group, and 8.8 million children are
affected by chronic malnutrition. In other words, this affects 16 per cent of children
in the region. If this average is disaggregated, it emerges that certain countries will be
closer to a 3.5 per cent child malnutrition rate,134 and others closer to 10 per cent.135
Third, 5.7 million children work under the legal age, many of them in risky activities
such as mining, dumps, domestic work, fishery, and so on. Fourth, even if advances
have been registered, 1.4 million children never attend school, and in certain coun-
tries this number rises to 2–4 per cent of school-aged children.136 Fifth, 5.6 per cent
of children (10 million) have abandoned school. This number rises to 10 per cent
in certain countries.137 These numbers get even worse in indigenous communities
and regarding Afro-Americans,138 who exhibit higher rates of malnutrition (eg in
Colombia, 5.9 per cent of children under five years old had had at least one day of
fasting during the week previous to the 2005 Census).139
This situation of extreme and structural inequality has had an impact on the re-
gional bodies’ way of understanding equal protection. In effect, the regional system
employs an idea of formal equality focused on demanding objective and reasonable
criteria to trace distinctions. This view is complemented by an idea of structural or
material equality, which implies and accepts the need to adopt a policy of affirma-
tive action to level the situation of certain groups, and makes States responsible for
omitting to adopt such policies.140
Dealing with structural inequality and discrimination seems to be the most ur-
gent mission of the Inter-American human rights system given the dramatic circum-
stances described above. Victor Abramovich has clearly described the evolution of
the system’s role in the region through the last decades, as well as the requirements
of the current historical moment for the agenda of the Court and Commission.
During the period of dictatorships and State terrorism in the region, the role of the
Inter-American system was that of a last resort for victims who could not find local
courts to address human rights violations. Human rights bodies clearly contributed
to eroding the legitimacy of the dictatorships by producing information, buffering
local situations, and contributing to the creation of international pressure on illegit-
imate governments. Later on, during the 1980s and 1990s, the system played a rele-
vant role in the transition to democracy, playing a part in the discussions on how to

134 This is true for Argentina, Chile, Brazil, Jamaica, Mexico, Paraguay, and the Dominican Republic.
See IACHR, ‘Preliminary Report on Poverty’ (n 123) para 291.
135 This applies for Guatemala, Haiti, Honduras, Guyana, and Suriname (ibid).
136 Specifically in El Salvador, Guatemala, Honduras, and Nicaragua (ibid paras 292–94).
137 Namely in Peru, Guatemala, Honduras, and Nicaragua (ibid para 294).
138 See IACHR, ‘Informe sobre la situación de personas afrodescendientes en las Americas’ (15
December 2011) OEA/Ser.L/V/II. Doc 62 <www.oas.org/es/cidh/afrodescendientes/docs/pdf/afros_
2011_esp.pdf> accessed 10 March 2017.
139 Mortality rates during childhood are also higher, country by country, for Afro-descendant chil-
dren vis-à-vis white children (ibid paras 18, 68).
140 IACHR, ‘Preliminary Report on Poverty’ (n 123) para 110, citing the IACtHR in the case
of Ximenes Lopes v Brazil, Judgment (Preliminary objections, Merits, Reparations and Costs) Inter-
American Court of Human Rights Series C No 149 (4 July 2006) paras 104 and 106, citing Caso
Comunidad Indígena Xákmok Kásek v Paraguay, Judgment (Merits, Reparations and Costs) Inter-
American Court of Human Rights Series C No 214 (24 August 2010) paras 270–71.
179

The By-products of ESCR’s Justiciability in the Region 179

deal with past authoritarian regimes. During that period, the system contributed to
delineating the standards for transitional justice, established limits on the legitimacy
of amnesties, helped expand free speech protection, ruled against military tribunals
to decide on human rights issues, and focused on the establishment of adequate
standards to strengthen local mechanisms of human rights protection. Today, the
challenge for the regional system is to contribute to improving structural conditions
to enable effective enjoyment of rights in a context of huge inequality, poverty, and
rights violations vis-à-vis groups and communities systematically excluded from ac-
cess to fundamental rights.141

VII. The By-products of ESCR’s Justiciability in the Region

As shown, the Covenant and the work of the CESCR, together with the Inter-
American system, have contributed to the justiciability of ESCR being widely ac-
cepted in Latin America. Thus, judges have started hearing claims and reaching
decisions that establish control over public policies that disregard or ignore ESCR.
These interventions, taken in many countries and by different judges at various
levels, have provoked important debates.
Such discussions have revolved around reshaping the role of judges as audi-
tors of public policy, namely their technical capacity and their democratic
legitimacy to do so. Several important discussions on the implementation
of complex judicial decisions were provoked by ESCR-related judgments.
Concerns related to the impact on the separation of powers implied by the
judiciary’s involvement in the review of public policies promoted discussions
leading to different ways of conceiving interactions between the judiciary and
the executive.142 There resulted a shift from a more rigid conception of the div-
ision of powers to a more dialogical one,143 in which judges show deference to
the executive’s power to design policies, but at the same time provide remedies,
establish limits, and maintain oversight and the final word on the adequacy of
a remedy in a given case.
Furthermore, as a result of the justiciability and adjudication of ESCR-related
cases, new evidence of the absence of institutional infrastructure as a cause of ESCR
violations arose. The lack of coordination between agencies, the failure to produce
information that would allow for the design of public policies that are respectful
of ESCR or to monitor progressive implementation, and deficiencies in the use of
public resources (inefficiency and lack of effective use of resources, among others)
were all shown to contribute to the violation of ESCR.

141 See Victor Abramovich, ‘De las violaciones masivas a los patrones estructurales: Nuevos enfoques
y clásicas tensiones en el sistema Interamericano de derechos humanos’ (2009) 63 Derecho PUCP
(Revista de la Facultad de Derecho de la Pontificia Universidad Católica de Perú) 95.
142 Rodríguez-Garavito, ‘Beyond the Courtroom’ (n 41).
143 See Roberto Gargarella (comp), Por una justicia dialógica: El poder judicial como promotor de la
deliberación democrática (Ediciones Siglo Veintiuno 2014).
180

180 Influence of the ICESCR in Latin America

Accepting ESCR as enforceable rights required addressing and defining certain
concepts: the scope of the rights that might be enforced, that is, the individualiza-
tion of the core obligations; the relationship between the scarcity of resources and
the correct fulfilment of rights, that is, which delays by the State might be justified
due to a lack of resources; the precise meaning of concepts such as the obligation to
use the maximum available resources established by article 2 of the Covenant and
the CESCR’s General Comment 3; and the interpretation of the notion of pro-
gressiveness. Addressing and resolving these issues required interaction between the
law and other fields, such as the social sciences, economics, or public finance. At
the same time, strategies to enforce ESCR turned to important quantitative tools,
like indicators and measurement strategies, to be able to produce evidence on the
violation of these rights. Legal education started focusing on ESCR, and seminars,
workshops, and legal materials helped law schools to have a decisive influence on the
legal profession and to make lawyers familiar with ESCR litigation strategies, with
the periodic reporting mechanism, and with the relevant indicators themselves. In
addition, the Inter-American Institute on Human Rights has not only promoted
the study of ESCR and the various relevant treaties from the standpoint of specific
rights (such as education, housing, etc), but also from the standpoint of poverty.144
Along the same lines, this movement and reflection contributed to developing the
approach that understands ESCR as collective rights. In turn, as mentioned above,
this gave rise to new collective procedures (similar to class actions) that did not pre-
viously exist in the region, in turn evoking an intense debate on procedural rules.145
In addition, new actors started to emerge through the growth of NGOs specialized
in ESCR, which resorted to novel strategies such as (strategic) litigation and the
drafting of shadow reports.

VIII. Concluding Remarks

Jurisprudential trends in Latin America point to a growing consensus on the full

justiciability of ESCR. The Covenant plays a fundamental role in this regard. On the
one hand, its progressive incorporation into domestic law and its implementation
provides judges with the opportunity to address situations that have thus far been
out of reach and marginalized by the traditionalist constitutions of the region, which
are characterized by their liberal underpinnings. On the other hand, together with
the General Comments published by the Committee, the Covenant helps judges by
setting standards of interpretation. These are of central importance to judges across
the continent and have proven to be an invaluable tool in the implementation, ap-
plication, and enforcement of international human rights law.

144 See Mónica Pinto, ‘Los derechos humanos desde la dimensión de la pobreza’ (2008) 48 Revista
Instituto Interamericano de Derechos Humanos 43; Mónica Pinto, ‘Poverty and Constitutional Rights’
(2010) 28 Penn State Intl L Rev 477.
145 Martin Sigal, Julieta Rossi, and Diego Morales, ‘Argentina: Implementation of Collective Cases’
in Malcolm Langford, César Rodríguez-Garavito, and Julieta Rossi (eds), Social Rights Judgments and
the Politics of Compliance: Making It Stick (CUP 2017) 140.
18

Bibliography 181

Discussions about justiciability have also contributed to the progressive develop-

ment of international human rights law in the field of ESCR. These discussions have
given rise to new debates and new reactions about institutional frameworks and legal
approaches aimed at giving us, the persons entitled to these rights, the possibility to
better and more fully enjoy and exercise them.
Justiciability needs public policy as a companion. People must be in a position
to exercise their ESCR without having to knock down the doors of judges. In this
regard, there is—as the abovementioned numbers from the IACHR’s report, based
on ECLAC’s data on poverty, show—unfortunately still a lot to be done.

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Cançado Trindade, Antonio A, ‘La protección internacional de los derechos económicos,
sociales y culturales’ (1994) 1 Estudios Básicos de Derechos Humanos 39
Courtis, Christian, ‘Luces y sombras: La exigibilidad de los derechos económicos, sociales
y culturales en la sentencia Cinco Pensionistas de la Corte Interamericana de Derechos
Humanos’ (2004) 6 Revista Mexicana de Derecho Público 37
de Araujo, Nadia, and da Matta Andreiuolo, Inés, ‘A internalização dos Tratados no Brasil e
os Direitos Humanos’ in Carlos Eduardo de Abreu Boucault and Nadia de Araujo (eds),
Os direitos humanos e o direito internacional (Renovar 1999)
Ferraz, Octavio Luiz Motta, ‘Between Usurpation and Abdication? The Right to Health in
the Courts of Brazil and South Africa’ in Oscar Vilhena, Upendra Baxi, and Frans Viljoen
(eds), Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India, and
South Africa (Pretoria University Law Press 2013)
García Ramírez, Sergio, ‘Protección jurisdiccional internacional de los derechos económicos,
sociales y culturales’ (2003) 9 Cuestiones Constitucionales 127
182

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Gargarella, Roberto (comp), Por una justicia dialógica: El poder judicial como promotor de la
deliberación democrática (Ediciones Siglo Veintiuno 2014)
González, Enrique, ‘Venezuela: A Distinct Path Towards Social Justice’ in Malcolm Langford
(ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law
(CUP 2008)
Jiménez de Aréchaga, Eduardo, ‘La Convención Americana de Derechos Humanos como
derecho interno’ (1988) 7 Revista del Instituto Interamericano de Derechos Humanos 25
Langford, Malcolm, ‘The Justiciability of Social Rights: From Practice to Theory’ in
Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and
Comparative Law (CUP 2008)
Nash Rojas, Claudio, ‘Los derechos económicos, sociales y culturales y la justicia constitucional
latinoamericana: tendencias jurisprudenciales’ (2011) 9 Estudios Constitucionales 65
Pautassi, Laura, ‘Monitoreo del acceso a la información desde los indicadores de derechos
humanos’ (2013) 10 Sur—Revista Internacional de Derechos Humanos 57
Pinto, Mónica, ‘Droits humanitaires et droits de l’homme en Amérique Latine’ in Jean-René
Garcia, Denis Rolland, and Patrice Vermeren (eds), Les Amériques, des constitutions aux
démocraties (Éditions de la Maison des sciences de l’homme 2015)
Pinto, Mónica, ‘Los derechos humanos desde la dimensión de la pobreza’ (2008) 48 Revista
Instituto Interamericano de Derechos Humanos 43
Pinto, Mónica, ‘Poverty and Constitutional Rights’ (2010) 28 Penn State Intl L Rev 477
Piovesan, Flavia, ‘Brazil’ in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging
Trends in International and Comparative Law (CUP 2008)
Piovesan, Flavia, ‘Direitos Humanos e o Dereito Constitucional Internacional’ (Caderno
de Direito Constitucional/Escola da Magistratura do Tribunal Regional Federal da 4a
Região, 2006) <www.dhnet.org.br/direitos/militantes/flaviapiovesan/piovesan_dh_
direito_constitucional.pdf> accessed 23 March 2016
Rodríguez-Garavito, César, ‘Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America’ (2011) 89 Texas L Rev 1669
Rossi, Julieta and Abramovich, Victor, ‘La tutela de los derechos económicos, sociales y
culturales en el artículo 26 de la Convención Americana sobre Derechos Humanos’ (2007)
9 Revista Estudios Socio-Jurídicos 34
Rossi, Julieta and Filippini, Leonardo G, ‘El derecho internacional en la judiciabilidad de los
derechos sociales: El caso de Latinoamérica’ in Pilar Arcidiácono, Nicolás Espejo Yaksic,
and César Rodríguez-Garavito (eds), Derechos sociales: Justicia, política y economía en
América Latina (Siglo del Hombre, Uniandes, CELS, and Universidad Diego Portales
2010)
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(comps), Derechos sociales: Instrucciones de uso (Fontamara 2003)
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184

9
Influence of the ICCPR in Asia
Yogesh Tyagi*

I. Introduction

At the concluding stage of its drafting, the International Covenant on Civil and
Political Rights (ICCPR)1 was considered to be ‘the most important legal instru-
ment in the hierarchy of international agreements’.2 Today, it is a basic pillar of
the International Bill of Rights, one of ‘the core human rights treaties’ of the UN
system, and the constituent instrument of the Human Rights Committee (HRC).
Since it contains certain rich normative standards, the ICCPR merits attention on
account of its influence on domestic law and practice. Being the largest continent,
with more than half of the world’s population, Asia is a natural choice for the study
of its engagement with the ICCPR. Considering that the current century has been
projected as the Asian century, implying Asian predominance in shaping the des-
tiny of humankind, the influence of the ICCPR in the most populous continent is
a matter of compulsive curiosity.
This chapter begins with a few preliminary observations about its subject matter
and then outlines a theoretical framework for studying that subject. The analysis
seeks to assess the influence of the ICCPR in the selected States on a number of
grounds. It then offers a few concluding remarks about the status of the ICCPR
in Asia, draws attention to the influence of the Covenant in Asia in the foresee-
able future, and suggests an agenda for further research in this field. The absence
of adequate data does not encourage a law and society approach, which could
help measure the impact of the ICCPR in Asia in terms of compliance at the
grassroots level.

* The author gratefully acknowledges the help of Xiaohua Chen (China), Naoko Maeda (Japan),
Deepika Udagama (Sri Lanka), and several students of South Asian University.
1 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171.
2 Evgeny Nasinovsky (USSR) in United Nations General Assembly (UNGA) ‘Third Committee
Records’ (24 November 1966) 1433rd meeting, agenda item 62 UN Doc A/C.3/SR.1375–1464,
para 35.

Preliminary Observations 185

II. Preliminary Observations

It is useful to preface the analysis of the ICCPR’s impact in Asia with a number of
preliminary observations. First, it should be noted that, since religion and culture
play a crucial role in the lives of a large majority of people in Asia, cultural relativism
has a strong presence in the field of human rights in this region.
Second, owing to their socio-economic realities, most Asian States seek to accord
primacy to economic, social, and cultural rights over civil and political rights. This
implies that the principle of the interdependence and inseparability of civil and pol-
itical rights on the one hand, and economic, social, and cultural rights on the other,
has its limitations in Asian State practice.
Third, there is no agreement on what exactly constitutes Asia. Some States, such
as Cyprus, Russia, and Turkey, have more than one regional identity, namely both
an Asian and a European one. Dual regional identity may create doubts about the
selection of States relevant for conducting a region-specific study and also about
the accuracy of conclusions drawn therefrom. Therefore, the present chapter ex-
cludes those ‘Asian’ States from its purview that have dual regional identity and are
parties to the ICCPR as well as the African Charter on Human and Peoples’ Rights
(ACHPR) or the European Convention on Human Rights (ECHR). It also excludes
the States of the Middle East because this region is the subject of a separate chapter.3
Thus, it adopts a rather narrow definition of ‘Asian’ States. The selection of States
was made so as to assess the influence of the ICCPR in those States that have distin-
guished themselves on the following grounds:
(i)
the region’s largest democracy (India);
(ii)
the first Asian State to participate in the international community (Japan);
(iii)
the last Asian State party to the ICCPR (Pakistan);
(iv)the State with the latest constitution (Nepal);
(v)the most isolated State (North Korea);
(vi)the frontline of the ‘war on terror’ (Afghanistan);
(vii)one of the least developed States (Bangladesh);
(viii)a civil war-affected State (Sri Lanka);
(ix)the most populous State that has signed—but not ratified—the ICCPR
(China); and
(x) a unique entity (Hong Kong), which is a party to the ICCPR but remains
part of a State non-party to the Covenant (China).
Malaysia, once the champion of Asian values, with considerable influence on the
international human rights discourse during the 1990s, finds a brief mention in
this study to illustrate the impact of the ICCPR on those Asian States that are still

3 Başak Çali, ‘Influence of the ICCPR in the Middle East’, Chapter 7 in this volume.
186

186 Influence of the ICCPR in Asia

struggling with the question of adhering to the Covenant. Thus, the selected States
fairly represent ‘the different forms of civilization and of the principal legal systems’4
which are a basic feature of the international legal system.

III. Theoretical Framework

The influence of an international legal instrument like the ICCPR in a domestic
legal system depends, inter alia, on the relationship between international law
and the domestic legal system, the willingness of the domestic courts of the
State concerned to employ the applicable international law provisions in the
functioning of the system, the intensity of interaction between the system and
the international bodies in the given field, and the impact of the related inter-
national legal instruments that have some substantive norms in common with
the Covenant. One may have a glimpse of the influence of an international legal
instrument in a domestic legal system by examining the participation of the State
concerned in the drafting of the relevant instrument. The signing and ratifica-
tion of, or accession to, an international legal instrument indicates its acceptance
at the domestic level. Generally, declarations and/or reservations to an inter-
national legal instrument point out its limits in the State concerned. Whether
a State has adopted enabling legislation or incorporated an international legal
instrument into domestic law demonstrates the degree of its preparedness to re-
spect the instrument.
The status of international legal instruments under domestic law reflects their
domestic reception. Institutionalization of the implementation of an international
legal instrument at the domestic level testifies to the seriousness of the State con-
cerned in respect of the instrument. The willingness of a State to subject itself
to international accountability and its compliance with the outcome of imple-
mentation procedures indicate the self-confidence of the State and the influence
of the instrument. Follow-up to the assessment of national compliance with an
international legal instrument demonstrates the degree of respect attached to the
instrument. The existence and effectiveness of a regional and/or parallel regime
dealing with the same subject matter also have a bearing on the influence of the
instrument. The availability of the relevant documents in the local languages and
the accessibility of these documents reflect the seriousness of the State’s level of
commitment towards equipping its subjects to seek enforcement of their human
rights.
Although consideration of these criteria does not ensure a comprehensive assess-
ment of the influence of an international legal instrument in a domestic legal system,
they cover the most important aspects of State practice in respect of a given instru-
ment. They therefore constitute the basis for the assessment of the influence of the
ICCPR in the aforementioned selected States in the following section.

4 UNGA Resolution (Res) 64/173 (24 March 2010) UN Doc A/RES/64/173.

187

Assessment of the Influence of the ICCPR 187

IV. Assessment of the Influence of the ICCPR

A. Participation in the drafting of the ICCPR

Not many Asian States were independent when the former UN Commission on
Human Rights began drafting the International Covenants on Human Rights in the
late 1940s. Therefore, the draft ICCPR, as produced by the Commission in 1954,
benefitted from only a modest contribution by Asian States. During the discussions
of the draft ICCPR in the Third Committee of the UN General Assembly (UNGA),
however, some Asian States—such as India and Pakistan—participated and helped
shape its content.5
The drafting of the ICCPR took place during the period of the Cold War. When
the East–West differences in respect of human rights appeared to be insurmount-
able, a group of Asian and African States introduced the Afro–Asian amendments
to overcome those differences. The amendments paved the way for the adoption of
the ICCPR and the first Optional Protocol thereto, along with the International
Covenant on Economic, Social and Cultural Rights (ICESCR), in 1966.6 Among
the thirteen powers involved were India and Pakistan.7 A number of other Asian
States did not participate in this process at all, however: Japan played little role in
the drafting of the ICCPR, China could not participate owing to a dispute over its
representation at the UN, North Korea was absent because it was not a member of
the organization, Bangladesh was not even in existence at that time, and Malaysia
had not yet emerged as a champion of Asian values.
Altogether, a handful of Asian States contributed considerably to formulating
the provisions concerning implementation of the ICCPR and the first Optional
Protocol thereto. Sceptical of strong international implementation measures, these
States did not want the ICCPR to imitate the European model of implementation.
Owing to the colonial past, there was some distrust towards any international ma-
chinery for the implementation of the ICCPR. While Asian States had an affinity
with Western States in respect of the substantive provisions of the ICCPR, they were
closer to socialist States regarding the implementation provisions of the Covenant.
Since they successfully advocated for the optional nature of both the individual and
inter-State communications procedures, the ICCPR and the first Optional Protocol
thereto envisage modest international machinery for monitoring the implementa-
tion of the Covenant.8

5 UNGA, ‘Amendments submitted by India, Iran, Iraq, Libya, Mauritania, Nigeria, Pakistan,
Senegal, Sierra Leone, Sudan, Tunisia, the United Arab Republic, and Upper Volta’ (4–7 November
1966) UN Doc A/C.3/L.1373 and Add.1 and Add.1/Corr.1 (hereafter ‘The Afro–Asian amendments’).
6 Egon Schwelb, ‘The International Measures of Implementation of the International Covenant
on Civil and Political Rights and of the Optional Protocol’ (1977) 12 Texas Intl L J 141, 148 (fn 36).
7 The Afro–Asian amendments (n 5).
8 For a summary of the drafting history of the international measures of implementation of the
ICCPR and the Optional Protocol thereto, see Yogesh Tyagi, The UN Human Rights Committee: Practice
and Procedure (CUP 2011) 153–56, 326–34, and 389–96.
18

188 Influence of the ICCPR in Asia

B. Acceptance of the ICCPR

In spite of the campaign for universal adherence to the ICCPR, several Asian States
(namely Malaysia, Myanmar, and Singapore) have not yet signed the Covenant.
Had there been no emergency during 1975–77, even India would not have ac-
ceded to the ICCPR in 1979. The Philippines was the first Asian State to sign the
ICCPR in 1966, and Pakistan became the latest in 2008. While the chronology of
accession to or ratification of the ICCPR does not establish that the Asian democ-
racies are more enthusiastic adherents to the Covenant, the strength of adherence
proves that democracies are more Covenant-friendly than States with other forms
of government.
Like Hong Kong, Macao became a party to the ICCPR without signing it. While
the ratification of the ICCPR by the United Kingdom made the Covenant applic-
able to Hong Kong in 1976, Portugal sought to accomplish the same task in respect
of Macao in 1978. China assumed responsibility as a party to the ICCPR in respect
of both Hong Kong and Macao since regaining sovereignty over these cities in 1997
and 1999 respectively. China signed the ICCPR in 1998, but has yet to ratify it. The
Chinese Ministry of Foreign Affairs set up an inter-ministerial working group on
the ratification of the ICCPR in November 2003.9 According to its current national
human rights action plan, China ‘shall continue to advance related legal preparations
and pave the way for ratification of the International Covenant on Civil and Political
Rights’.10 Some unofficial news suggests that China will ratify the ICCPR soon,
but not many share this optimism. The prospects of China ratifying the ICCPR in
the near future are not good because the Covenant and the current system in China
seem to give differing answers regarding various big political questions, and also be-
cause the interpretation of the Covenant by the HRC is considered alarming by the
Chinese ruling class, which is concerned about whether it can exercise any measure
of control over the HRC’s interpretive activities.
Comparatively, Asia has the largest number of States not parties to the ICCPR11—
even more than the Middle East.12 This deficit is striking in the absence of any re-
gional regime for the promotion and protection of human rights in Asia. Further,
Asian States have a rather poor rate of subscription to the ICCPR article 41 pro-
cedure13 as well as the Optional Protocol procedure.14 Furthermore, the Asian States

9 Björn Ahl, ‘Exploring Ways of Implementing International Human Rights Treaties in China’
(2010) 28 Netherlands Q of Human Rights 361, 363.
10 Information Office of the State Council of China, ‘National Human Rights Action Plan of
China (2016–20)’, pt V (‘Fulfillment of Obligations to Human Rights Conventions, and International
Exchanges and Cooperation in the Field of Human Rights’) <http://english.gov.cn/archive/publica-
tions/2016/09/29/content_281475454482622.htm> accessed 16 April 2017.
11 Twenty-one Asian States are parties to the ICCPR, whereas the following six are not: Brunei,
China, Bhutan, Malaysia, Myanmar, and Singapore.
12 The following five Middle Eastern States are not parties to the ICCPR: Oman, Qatar, Saudi
Arabia, South Sudan, and the United Arab Emirates.
13 Only three Asian States—the Philippines, the Republic of Korea, and Sri Lanka—have accepted
the article 41 procedure.
14 Of the twenty-seven Asian States, the following eleven have subscribed to the Optional Protocol
procedure: Kazakhstan, Kyrgyzstan, the Maldives, Mongolia, Nepal, the Philippines, the Republic
189

Assessment of the Influence of the ICCPR 189

parties to the ICCPR maintain a large number of reservations and declarations.

Also, while a number of the Asian States parties to the ICCPR have faced emergency
situations, only three of them (Nepal, Sri Lanka, and Thailand) have made notifica-
tions under article 4(3) of the Covenant; the rest of them have occasionally exercised
emergency powers without such a notification. Moreover, Asia hosts the various
‘forms of civilization and of the principal legal systems’ without adequate represen-
tation on the HRC. Since the HRC plays an important role in the implementation
of the ICCPR, the inadequate representation of the Asian civilizations and legal
systems on the said body reflects their inadequate contribution to the development
of Covenant standards.
This gives an impression that Asia is the least enthusiastic region when it comes
to ICCPR adherence, although most Asian States proclaim their strong commit-
ment to civil and political rights. For instance, without making any commitment to
accede to the ICCPR, Singapore submitted the following statement to the Human
Rights Council: ‘[w]‌e are fully committed to the protection and promotion of the
human rights of our citizens. We take a practical, not an ideological approach to
the realisation of human rights.’15 In other words, accession to the ICCPR is not
considered necessary for adherence to civil and political rights by some Asian States.

C. Reservations and declarations

A majority of the Asian State signatories or parties to the ICCPR have made reserva-
tions and/or declarations in respect of the Covenant. There are three most common
reservations/declarations, each of which has been made by at least three Asian States.
First, China, India, Indonesia, and Thailand have made declarations regarding
ICCPR article 1, thus restricting the application of the right of self-determination.16
Secondly, almost half of the Islamic States parties reserve the right of Islamic Sharia
to govern personal status laws: some directly (eg Pakistan17) and a few indirectly (eg
the Maldives18). Thirdly, unlike many Islamic States of the Middle East (eg Iraq,

of Korea, Sri Lanka, Tajikistan, Turkmenistan, and Uzbekistan. Cambodia has signed the Optional
Protocol, but has not yet ratified it.
15 UNGA, ‘National Report Submitted in Accordance with Paragraph 5 of the Annex to Human
Rights Council Resolution 16/21: Singapore’ (28 October 2015) UN Doc A/HRC/WG.6/24/SGP/
1, para 4.
16 China does not want the right of self-determination to affect the status of Macao as defined
in the Basic Law and the Joint Declaration of the Government of the Portuguese Republic and the
Government of the People’s Republic of China on the Question of Macau, signed on 13 April 1987.
India, Indonesia, and Thailand confine the right of self-determination only to the peoples under foreign
domination, not to a section of people within a sovereign independent State. UN, ‘Multilateral Treaties
Deposited with the Secretary- General’, chapter IV.4 <https://treaties.un.org/pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en> accessed 2 April 2017.
17 ibid.
18 ibid. The Maldives ratified the ICCPR with the understanding that ‘[t]‌he application of the prin-
ciples set out in Article 18 of the Covenant shall be without prejudice to the Constitution of the Republic
of Maldives’, and article 10 of the Constitution of the Maldives, 2008, proclaims: (a) ‘[t]he religion of
the State of the Maldives is Islam. Islam shall be the one of the basis of all the laws of the Maldives’; and
(b) ‘[n]o law contrary to any tenet of Islam shall be enacted in the Maldives.’
190

190 Influence of the ICCPR in Asia

Libya, Syria, and Yemen), there are several Islamic States in Asia (eg Bangladesh,
Indonesia, the Maldives, and Pakistan) that have refrained from making reservations
against the recognition of Israel as a State. In addition, the participation of Hong
Kong in the ICCPR is subject to reservations entered by both China and the United
Kingdom.19 Lastly, Pakistan made reservations to articles 3, 6, 7, 12, 13, 18, 19, 25,
and 40 of the ICCPR at the time of its ratification of the Covenant but subsequently
withdrew most of them under international pressure.
Some of the Asian States parties to the ICCPR have adduced reasons for their re-
spective reservations or declarations. Incompatibility between domestic law and the
ICCPR has been the most-cited reason. A few Asian States have also argued on the
basis of financial and logistical constraints (this is true, for example, for Bangladesh’s
declaration in respect of ICCPR article 10(3)). Both Bangladesh and India have
made declarations regarding the right to compensation, although for different
reasons and in respect of different provisions of the ICCPR.20

1. Objections to reservations and declarations

Except for Pakistan’s objection to India’s declaration (which is construed as a ‘reserva-
tion’ by Pakistan) in respect of ICCPR article 1, no Asian State party to the Covenant
has made any objection against any declaration or reservation of any other Asian
State party. Instead, criticism tends to come from outside of the region: Pakistan’s
reservations to the ICCPR have been the target of the largest number of objections
from the Western world, including from the United States, which rarely makes such
objections.21 The most objectionable reservation of Pakistan concerned ICCPR art-
icle 40, which envisages the compulsory reporting procedure for monitoring the
implementation of the Covenant. In response, the European Parliament passed a
resolution calling on Pakistan to reconsider its blanket reservation to several provi-
sions of the ICCPR.22 It also asked the European External Action Service (EEAS)
to take into account the human rights position in Pakistan ‘during the examination
of a possible application of the GSP+ scheme to Pakistan from 2013 onwards’.23
The HRC also immediately issued a statement regarding Pakistan’s reservation to
article 40. The HRC made it clear that its competence to consider State reports
under article 40 was of ‘critical importance for the performance of the Committee’s
monitoring functions and essential to the raison d’être of the Covenant’.24 The HRC
asked Pakistan to submit its initial report pursuant to the requirements of article
40(1)(a),25 and the State submitted its report more than four years later.26 In effect,

19 ibid. 20 ibid. 21 ibid.

22 European Parliament Resolution P7_TA(2011)0098 of 10 March 2011 on Pakistan, in particular
the murder of Shahbaz Bhatti, OJ 2012/C 199 E/21, para 20.
23 ibid.
24 UNGA, ‘Report of the Human Rights Committee’ (2011) UN Doc A/66/40 (vol I) 10–11,
para 49.
25 ibid paras 48–49.
26 HRC, ‘Initial Periodic Report of Pakistan’ (24 November 2015) UN Doc CCPR/C/PAK/1.
19

Assessment of the Influence of the ICCPR 191

therefore, the HRC had declared the article 40 reservation incompatible with the
object and purpose of the ICCPR, and this finding delivered its results in due course.
In its concluding observations on State reports, the HRC has invariably asked the
Asian States parties to review, reconsider, and withdraw their respective reservations
and declarations in respect of the ICCPR.27 Apparently, the objective is the eventual
withdrawal of reservations and declarations in general, even if these are not con-
sidered incompatible with the object and purpose of the ICCPR.

2. Withdrawal of reservations and declarations

Japan, Pakistan, and South Korea are among those exceptional States that have with-
drawn some of their declarations or reservations to the ICCPR. It has been argued
that Pakistan’s withdrawal of some of its reservations was ‘not prompted by a change
of attitude towards human rights, but by economic pressure from the EU, the big-
gest market for Pakistan’s exports’, and aimed to serve political ends only.28 This
seems to ignore ignores the influence of State objections to Pakistan’s reservations29
as well as the importance of the HRC’s statement regarding those reservations.30
Although India has not formally withdrawn any of its declarations or reservations,
its higher judiciary and the human rights commissions have rendered the article 9-
related declaration practically ineffective by awarding compensation to victims of il-
legal detention or certain other human rights violations in a number of cases.31 This
means that the judicial and/or quasi-judicial neutralization of an ICCPR reservation
or declaration is not necessarily dependent on any treaty action in this regard and
that the number of withdrawn or neutralized reservations or declarations is higher
than what the official records of the HRC or the UN show.

D. Status of treaties under domestic law

States follow different approaches in respect of treaties. Some States consider treaties
as part of their domestic law; others require domestic legislation to incorporate
treaties into their domestic legal system; some consider treaties equal to their basic
law; some place treaties at a higher level; and some deny treaties of one kind any

27 eg HRC, ‘Concluding Observations on the Third Periodic Report of Hong Kong, China’ (29
April 2013) UN Doc CCPR/C/CHN-HKG/CO/3.
28 Lorenz Langer, Religious Offence and Human Rights: The Implications of Defamation of Religions
(CUP 2014) 364.
29 The following States made objections against the reservations of Pakistan: Australia, Austria,
Belgium, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia, the Netherlands, Norway, Poland, Portugal, the Slovak Republic, Spain,
Sweden, Switzerland, the United Kingdom, the United States, and Uruguay. See UN, ‘Multilateral
Treaties Deposited with the Secretary-General’ (n 16).
30 HRC, ‘Statement on the Reservation of Pakistan to Article 40’ (30 March 2011); UNGA, ‘Report
of the Human Rights Committee’ (2011) UN Doc A/66/40 (vol I) 10–11.
31 See the following series of rulings by the Supreme Court of India: Rudul Sah v State of Bihar,
AIR 1983 SC 1086; Nilibati Behra v State of Orissa, AIR 1993 SC 1960; N Sengodan v Secretary to
Government, Home (Prohibition and Excise) Department, Chennai and Ors (2013) 8 SCC 664.
192

192 Influence of the ICCPR in Asia

space in their domestic law while giving a preferential position to treaties of other
kinds. One distinction is between those States that place treaties on a constitutional
rank and those that position treaties below their respective constitutions. Some of
the Asian constitutions specifically mention multilateral treaties such as the UN
Charter,32 thus distinguishing them from other treaties.33
Those States that rank treaties below their respective constitutions may be div-
ided further into those that accord supremacy to treaties over legislation (for ex-
ample, Japan34 and Nepal35) and those that do not (for example, Bangladesh,
India, Malaysia, Sri Lanka, and Pakistan). For example, treaties in China ‘acquire
prevailing force over domestic law only when the relevant domestic law includes
an explicit stipulation to that effect’.36 Otherwise, the general domestic adoption
of human rights treaties is denied on the grounds that the scope of domestic provi-
sions referring to international treaties is confined to legal relationships in private
or economic law, and does not extend to the relations between individuals and the
State. Further, unlike article 39 of the Basic Law of Hong Kong, no provision in the
domestic law of China refers explicitly to human rights treaties.37
In some States, treaties in compliance with certain procedural requirements have
the authority of law. For example, in the absence of any prescribed legal status for
treaties in China, some commentators consider that if the concluded treaty has
been authorized by the Standing Committee of the National People’s Congress, it
has the same rank as laws enacted by the same body.38 Another example stems from
the Japanese context. Being the supreme law of the land, the Constitution of Japan
supersedes the ICCPR in domestic effect. However, the Japanese government claims
that ‘since the Constitution can be interpreted as covering the same range of human
rights’ as the ICCPR, ‘there can be no conflict between the Constitution and the
Covenant’.39
Only a few States, such as Nepal and North Korea, have separate legislation dealing
with the nuances related to treaty-making and the obligations flowing therefrom.40
North Korea has the Treaty Law of 18 December 1998, which describes inter alia the
relationship between the treaties to which it is a party and domestic law.41 In some

32 Charter of the United Nations (opened for signature 26 June 1945, entered into force 24 October
1945) 1 UNTS XVI.
33 eg art 25 of the Constitution of Bangladesh, 1972; Preamble and art 7 of the Constitution of
Afghanistan, 2004; art 51(m) of the Constitution of Nepal, 2015.
34 Meryll Dean, Japanese Legal System (2nd edn, Routledge-Cavendish 2002) 166, noting that, in
the Jewellery Smuggling case, the Kobe district court stated that ‘the principle of faithful observance of
treaties . . . is understood to proclaim superiority of treaties [over domestic law]’.
35 Nepal Treaty Act, 1990, s 9.
36 Hanqin Xue and Qian Jin, ‘International Treaties in the Chinese Domestic Legal System’ (2009)
8 Chinese J of Intl L 299, 305.
37 Ahl, ‘Exploring’ (n 9) 366–67.
38 Björn Ahl, ‘Chinese Law and International Treaties’ (2009) 39 Hong Kong L J 737, 738.
39 HRC, ‘Fourth Periodic Report of Japan, Addendum’ (1 October 1997) UN Doc CCPR/C/115/
Add.3, para 11.
40 Nepal Treaty Act, 1990; and North Korea’s Treaty Law, 1998.
41 HRC, ‘Second Periodic Report of North Korea’ (4 May 2000) UN Doc CCPR/C/PRK/2000/
2, para 12.
193

Assessment of the Influence of the ICCPR 193

States, the reference to status is conspicuously missing (for example, in Sri Lanka).
In some other States, such as India, the written domestic law on treaties remains un-
changed but judicial practice in respect of human rights treaties has gone through
a transformation without comparable effects on other kinds of treaties. In yet other
States, the constitution has simply referred to international law as non-enforceable
and non-binding (in a positive law sense).42
Interpretations provided by national courts have played an important role in
most of the States under study. Most of the domestic case law points towards a har-
monious construction of statutes and treaties.43 In some cases, indeed, the domestic
courts have even tried to fill in gaps whenever legislation is absent.44
There are various methods of implementation of treaties, depending on the do-
mestic legal system. Most Asian States selected for the present study are dualist (for
example, Bangladesh, India, Sri Lanka, and Pakistan) or partly dualist (for example,
Hong Kong).45 Like several other dualist States, Malaysia practices the ‘doctrine of
transformation’ as evidenced in Public Prosecutor v Narongne Sookpavit and Others.46
Thus, even if a treaty is binding on Malaysia under international law, it has no do-
mestic legal effect unless a law is adopted by the legislature giving effect to that treaty.
If there is a conflict between a statute and a treaty, the general rule is that the statute
shall prevail.47
Japan follows a monist approach, signifying that ratified treaties are automatically
accepted into domestic law from the time of promulgation in the Official Gazette
(kampō).48 Faithful implementation of treaties concluded by Japan is a matter of
constitutional obligation.49
Some States, such as China, have underlined the difference between self-executing
and non-self-executing treaties.50 In Hong Kong, implementing legislation is not
required where the relevant provisions of the international agreement relate to mat-
ters of principle, or to matters that are already dealt with under existing legisla-
tion, or where the international obligations can be implemented by administrative
means, or ‘where the international agreement purely concerns an international
matter which has no relevance in the domestic context’—for example, the 1969
Vienna Convention on the Law of Treaties.51

42 eg for the Indian Constitution, 1950, see art 51(c), pt IV, ie Directive Principles of State Policy. See
also the Preamble to the Constitution of Afghanistan, 2004; art 25 of the Constitution of Bangladesh,
1972; art 55 of the Constitution of Nepal, 2015.
43 eg Gujarat High Court, Ktaer Abbas Habib Al Qutaifi v Union of India, 1999 Cri LJ 919.
44 Supreme Court of India, Vishaka v State of Rajasthan, 1997 (6) SCC 241.
45 Anthony Aust, Modern Treaty Law and Practice (3rd edn, CUP 2013) 191.
46 Public Prosecutor v Narongne Sookpavit [1987] 2 MLJ 100.
47 Illustrated in Supreme Court of the Federated Malay States, PP v Wah Ah Jee (1919) 2 FMSLR 193.
48 Yuji Iwasawa, ‘Effectuation of International Law in the Municipal Legal Order of Japan’ in Ko
Swan Sik, M Christopher W Pinto, and JJG Syatauw (eds), Asian Yearbook of International Law, vol 4
(Kluwer 1994) 143, 148.
49 The Constitution of Japan, 1947, art 98(2).
50 Xue and Jin, ‘International Treaties’ (n 36) 305.
51 LegCo Panel on Administration of Justice and Legal Services, ‘Implementation of International
Agreements in the Hong Kong SAR’ (No CB(2)1398/06-07(04), 26 March 2007) paras 3–4.
194

194 Influence of the ICCPR in Asia

In the case of India, generally, treaties require domestic legislation to become en-
forceable.52 Judicial trends in India show that some treaties need specific legislation,
including in cases that imply a heavy financial burden on the exchequer,53 an infringe-
ment of private rights,54 or a cessation of territories,55 and where the treaty itself stipu-
lates it.56 In the case of human rights treaties, however, various judgments show the
application of some of those treaties even in the absence of enabling legislation.57
In North Korea, article 17 of the Treaty Law 1998 provides that ‘[a]‌n institution
that has concluded a treaty ought to fulfill without fail the obligation under the
treaty.’ International human rights instruments are given effect through their ‘in-
corporation into domestic laws and regulations or through direct invocation of the
provisions of the instruments’.58 North Korea claims that the necessary changes have
been made to the Constitution and statutes after the ratification of international
human rights instruments in order to reflect the ‘requirements of the instruments’.59
It has also been claimed that North Korea:
maintains the policy of steadily promoting the human rights which are recognized or existing
by national legislation or custom in step with the development of the State and social system,
without restriction or derogation for the reason that they are not indicated in the Covenant.60
According to North Korea, it does not accept any interpretation that curtails the
rights and freedoms enshrined in the ICCPR.61 However, according to Amnesty
International, fundamental rights and freedoms embodied in the Universal
Declaration of Human Rights (UDHR) and the treaties to which North Korea is
a party ‘remain largely unprotected by domestic legislation’.62 The HRC observes
that, although the ICCPR has ‘the same status as domestic law’ in North Korea, it
remains doubtful ‘whether the Covenant would have primacy over domestic law if
the latter is in conflict with Covenant provisions’.63

52 P Chandrasekhara Rao, The Indian Constitution and International Law (Martinus Nijhoff 1993).
53 Calcutta High Court, Union of India v Manmull Jain, AIR 1954 Cal. 615.
54 Supreme Court of India, Ram Jawaya Kapur v State of Punjab, AIR 1955 SC 549, para 19.
55 Supreme Court of India, Maganbhai Ishwarbhai Patel v Union of India, (1969) 3 SCR 254, 299.
56 The Rights of Persons with Disabilities Act, 2016, was enacted to give effect to the 2006
Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force
3 May 2008) 2515 UNTS 3 .
57 Supreme Court of India, NALSA v Union of India (2014) 5 SCC 438.
58 HRC, ‘National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human
Rights Council Resolution 5/1 by North Korea’ (27 August 2009) UN Doc A/HRC/WG.6/6/PRK/
1, para 28.
59 UN, ‘Core Document Forming Part of the Reports of States Parties, North Korea’ (16 July
2002) UN Doc HRI/CORE/1/Add.108/Rev.1, paras 49–56. See also HRC, ‘Second Periodic Report
of North Korea’ (n 41) para 2; CEDAW Committee, ‘Consideration of the Initial Periodic Report
by North Korea’ (11 September 2002) UN Doc CEDAW/C/PRK/1, para 56; CRC Committee,
‘Consideration of the Combined Third and Fourth Periodic Reports by North Korea’ (15 January
2008) UN Doc CRC/C/PRK/4, paras 6–30.
60 HRC, ‘Second Periodic Report of North Korea’ (n 41) para 27. 61 ibid para 26.
62 Amnesty International, ‘Democratic People’s Republic of Korea: Submission to the UN Universal
Periodic Review (November– December 2009)’ <www.amnesty.org/download/Documents/44000/
asa240082009en.pdf> accessed 2 April 2017.
63 HRC, ‘Concluding Observations on the Second Periodic Report of North Korea’ (27 August
2001) UN Doc CCPR/CO/72/PRK, para 9.
195

Assessment of the Influence of the ICCPR 195

E. Influence of the ICCPR on domestic law

Among the Asian States parties to the ICCPR, Hong Kong’s legal system displays
the most conspicuous influence of the Covenant on domestic law. Article 39 of
the Basic Law of Hong Kong grants a special status to the ICCPR, as a result of
which any legislation inconsistent with the Covenant may be challenged before a
court of law. In India, the Protection of Human Rights Act, 1993 defines the term
‘human rights’ with reference to ‘the International Covenants’.64 Bangladesh wit-
nessed the influence of the ICCPR over its domestic law even before signing the
Covenant. In the case of The Chief Prosecutor v Abdul Quader Molla, for instance,
M Amir-Ul Islam, the counsel of the aggrieved party who was also the author of
the 1971 Declaration of Independence and a member of the Constituent Assembly
of Bangladesh, submitted that the International Crimes (Tribunals) Act, 1973 ‘in-
cluded important fair-trial and due-process rights enshrined in the International
Covenant for Civil and Political Rights, which was not yet in force when the ICT
Act 1973 was enacted’.65 The Tribunal apparently endorsed this observation by
stating that ‘the provisions of the ICTA 1973 and the Rules framed there under offer
adequate compatibility with the rights of the accused enshrined under Article 14 of
the ICCPR’.66
Since the Constitution of Afghanistan refers to the UDHR, one may read a
number of the provisions of the ICCPR into the Constitution where the two inter-
national instruments have a common normative content. Sri Lanka has passed the
ICCPR Act, 2007 to give effect to certain provisions of the Covenant. However,
some ambiguity exists about the status of those Covenant provisions that are not
mentioned in the ICCPR Act.
There is a view that, although the annually issued government report on
Progress in China’s Human Rights induced the development of national legislation
in China concerning those human rights that are enshrined in the ICCPR, it is
difficult to conclude that the Covenant has influence over national legislation.
Some scholars think that ‘the Chinese government looks to national instruments
and mechanisms for guidance in making international legal commitments, ra-
ther than looking to international instruments and mechanisms for guidance
in formulating national law’.67 This means that, in China, the consideration of
national policy and domestic demand are more important than international
human rights treaties.

64 Article 2(d).
65 Government of Peoples’ Republic of Bangladesh v Abdul Quader Molla, Criminal Appeal No 24 of
2013 and Abdul Quader Molla v Government of Peoples’ Republic of Bangladesh, Criminal Appeal No 25
of 2013, ICT-BD Case No 02 of 2012, 546.
66 ibid 515.
67 Friedrich Ebert Foundation (ed), The Universal Declaration of Human Rights at 50: Progress and
Challenges (Friedrich Ebert Foundation 1999) 9.
196

196 Influence of the ICCPR in Asia

F. Influence of the ICCPR on domestic courts

The influence of the ICCPR on the domestic courts of the Asian States under study
is not fully known. While decisions of the apex courts of most Asian States are avail-
able, thus enabling an assessment of the influence of the ICCPR on those courts,
it is difficult to evaluate the impact of the Covenant on the courts of a State like
Afghanistan that does not publish the entire judgments even of its Supreme Court,
or Stera Mahkama.68

1. Influence of the draft ICCPR

The draft ICCPR had modest influence on the domestic courts of India. In Francis
Manjooran and Ors v Government of India,69 for instance, Justice PT Raman Nair, in
a separate opinion, referred to article 12 of the draft ICCPR to hold that article 21
of the Constitution of India entails a wide interpretation of the freedom to travel. In
the absence of the requisite information, it is difficult to assess the influence of the
draft ICCPR in other Asian States.

2. Influence of the ICCPR before States’ ratification or accession

Information relating to the influence of the ICCPR prior to its ratification
is not available in respect of most of the Asian States. The ICCPR had some
influence on the domestic courts of India even before the State’s accession to
the Covenant. Indian courts treated the ICCPR as a book of knowledge, from
which various concepts were taken and applied without any reference to the
instrument. If a court did apply the ICCPR to give a judgment directly, the
appellate court would overturn it.70 A significant development in this regard
came in the case of Jolly George Verghese v Bank of Cochin,71 for instance, where
the Supreme Court of India made an apparently conflicting but essentially
complementary observation. While holding that the ICCPR was not binding
on India, as it had not ratified it at the time, the Court cleverly read article
11 of the Covenant into article 21 of the Constitution and thereby sought to
harmonize the pertinent provision for civil prison in the Civil Procedure Code
of India, 1908 (section 51) with article 51 of the Constitution of India and
ICCPR article 11.

68 Eli Sugarman and others, An Introduction to the Law of Afghanistan (3rd edn, Stanford Law School
Afghanistan Legal Education Project (ALEP) 2011) 53–54.
69 Kerala High Court, Francis Manjooran and Ors v Government of India, AIR 1966 Ker. 20,
para 13.
70 Padam Singh and others v Superintendent of Police, Agra and others, MANU/UP/0259/1969; The
Superintendent of Police and Ors v Padam Singh and Ors, 1977 AWC 515 (All.).
71 Supreme Court of India, Jolly George Verghese v Bank of Cochin, MANU/SC/0014/1980.
197

Assessment of the Influence of the ICCPR 197

3. Influence of the ICCPR on the domestic courts of the States parties

The domestic courts of several Asian States parties to the ICCPR accept a varying
degree of influence of the Covenant on their jurisprudence. This is true even in those
States that have not incorporated the ICCPR into their domestic law.
In Prem Shankar Shukla v Delhi Administration, for instance, the Supreme Court
of India used the ICCPR as guidance to pronounce its judgment.72 Transforming
the use of the ICCPR from a guiding force to an understanding of the presence
of a State obligation to implement the Covenant, in Dilip K Basu v State of West
Bengal,73 the Supreme Court emphasized that the ICCPR formulated ‘legally en-
forceable rights of the individuals’ and that the Covenant is binding on the parties.74
Subsequently, while deciding on the application of the ICCPR in Indian courts,75
the Supreme Court held that since India has acceded to the Covenant, this instru-
ment ‘can be used by the municipal courts as an aid to the interpretation of statutes
by applying the Doctrine of Harmonization’.76 The Court went to the extent of
observing that ‘if the Indian law is not in conflict with the International Covenants,
particularly pertaining to human rights, to which India is a party, the domestic court
can apply those principles in the Indian conditions’.77 The HRC has welcomed the
‘frequent references to provisions of international human rights instruments by the
courts, in particular the Supreme Court [of India]’.78
Like the domestic courts of India, courts in Bangladesh have referred to the pro-
visions of the ICCPR in several cases.79 In Japan, judges tend to prioritize national
legislation or their own precedents rather than international human rights law. Even
in the government’s view, the status of the jurisprudence on the ICCPR is not uni-
form. For example, the Ministry of Justice insisted that the ICCPR was not self-
executing because article 2(2) of the Covenant requires the States parties to take the
necessary steps to adopt such legislative or other measures as may be necessary to give
effect to the rights recognized in the Covenant.80
Lately, however, there have been some cases in which judges have taken into
account the ICCPR and its jurisprudence.81 In Pakistan, a single-judge bench of the
Peshawar High Court referred to ICCPR article 6(1) in order to hold that ‘the drone

72 Supreme Court of India, Prem Shankar Shukla v Delhi Administration, AIR 1980 SC 1535.
73 Supreme Court of India, Dilip K Basu v State of West Bengal, MANU/SC/0799/2015.
74 ibid para 7.
75 Supreme Court of India, NALSA v Union of India, MANU/SC/0309/2014, paras 47–53.
76 ibid para 51. 77 ibid.
78 HRC, ‘Concluding Observations on the Third Periodic Report of India’ (4 August 1997) UN Doc
CCPR/C/79/Add.81, para 6.
79 BNWLA v Government of Bangladesh and others, 14 BLC (2009) (HCD) 703, para 45; Bangladesh
and another v Hasina and another, 60 DLR (AD) (2008) 90, para 86.
80 Yuji Iwasawa, International Law, Human Rights and Japanese Law: The Impact of International Law
on Japanese Law (Clarendon Press 1998) 49–56.
81 eg in a case questioning the constitutionality of art 900(4) of the Civil Code before the Supreme Court
of Japan, the plaintiffs invoked articles of the ICCPR and the Convention on the Rights of the Child (CRC)
(opened for signature 20 November 1989, in force 2 September 1990) 1577 UNTS 3, to claim a right to
non-discrimination against children born out of wedlock with respect to their statutory inheritance share
(Supreme Court (Grand Bench), Decision of 4 September 2013, Hanrei Taimuzu [Law Times Reports], No
1393, 64; Japanese YB of Intl L, vol 57 (International Law Association of Japan 2014) 480–81).
198

198 Influence of the ICCPR in Asia

strikes in Pakistan is blatant breach of absolute right to life (sic)’.82 Likewise, a single-
judge bench of the Lahore High Court made use of ICCPR articles 11, 13, and 23 to
pronounce that gender discrimination in granting citizenship was contrary to article
25 of the Constitution of Pakistan, 1973.83 In Sri Lanka, while the Singarasa judg-
ment presented a pessimistic view of the first Optional Protocol to the ICCPR,84 the
Advisory Opinion of the Supreme Court on the ICCPR Act suggested a positive in-
fluence of the Covenant on domestic courts.85 Again in Visuvalingam v Liyanage,86
the Sri Lankan Supreme Court, alluding to ICCPR article 19, recognized the need
to broadly interpret the free expression clause of the Constitution of 1978 to in-
clude the right to receive information. The trend is towards greater cognizance of
the ICCPR in domestic judicial practice, although judges are constantly inhibited
owing to the doctrine of dualism.

G. Influence of the ICCPR on legal scholarship

Since its adoption in 1966, the ICCPR has been a focus of attention, though more in
Europe than in Asia. There has been a varying degree of scholarship on the Covenant
in Asian States, although this assessment is largely confined to the availability of
literature in the English language. In Afghanistan, for instance, although some com-
mentators have made passing references to the ICCPR,87 it is hard to find publica-
tions that deal in any detail with its implementation.88 By contrast, a major study
has been done on Bangladesh’s compliance with the ICCPR89 and a number of
articles make references to the Covenant in relation to that State.90
A few commentators have published work on the implementation of the
ICCPR in India.91 Some Indian scholars have relied upon ICCPR provisions while

82 Advocate F M Sabir & Others v Federation of Pakistan, Writ Petition No 1551-P/2012, para 12.
83 Mst Rukhsana Bibi, etc v Government of Pakistan, etc (Writ Petition No 5939 of 2006) Lahore
High Court, Multan Bench (18 May 2016) paras 15 and 16 <http://sys.lhc.gov.pk/appjudgments/
2016LHC2281.pdf> accessed 17 April 2017.
84 Sri Lankan Supreme Court, Singarasa v Attorney General SC Spl (LA) No 182/99 (2006).
85 Sri Lankan Supreme Court, Advisory Opinion on the ICCPR Act, SC Ref No 01/2008.
86 Sri Lankan Supreme Court, Visuvalingam v Liyanage [1984] 2 Sri LR 123.
87 eg Mandana Knust Rassekh Afshar, ‘The Case of an Afghan Apostate: The Right to a Fair Trial
Between Islamic Law and Human Rights in the Afghan Constitution’ in Armin von Bogdandy and
Rüdiger Wolfrum (eds), Max Planck United Nations Yearbook, vol 10 (Brill 2006) 591.
88 eg Alexandra Hilal Guhr and others, ‘Max Planck Manual on Fair Trial Standards in the Afghan
Constitution, the Afghan Interim Criminal Code for Courts, the Afghan Penal Code and other Afghan
Laws as well as in the International Covenant on Civil and Political Rights’ (4th edn, Max Planck
Institute for Comparative Public Law and International Law 2009).
89 Mohammad Shahabuddin, ‘The International Covenant on Civil and Political Rights: A Study on
Bangladesh Compliance’ (National Human Rights Commission of Bangladesh 2013).
90 Mohammad Ershadul Karim, ‘Health as Human Rights under National and International Legal
Framework: Bangladesh Perspective’ (2010) 3 J of East Asia and Intl L 337.
91 eg Abdulrahim P Vijapur, ‘Domestic Application of the International Covenant on Civil and
Political Rights – With Special Reference to Rights of Minorities in India’ in Krishan P Saksena (ed),
Human Rights and the Constitution: Vision and Reality (Gyan Publishing House 2003); Hari Om
Agarwal, Implementation of Human Rights Covenants: With Special Reference to India (Kitab Mahal
1983); Brij Kishore Sharma, Human Rights Covenants and Indian Law (PHI Learning 2010).
19

Assessment of the Influence of the ICCPR 199

substantiating their arguments concerning diverse issues.92 ICCPR-related issues

have also been subject to research interest at some universities in India.93
There is rich literature on the implementation of the ICCPR in Japan.94 Besides
the legal literature, quite a few activities to promote the ICCPR take place in that
country. For instance, the Japanese Society of International Law held its annual
meeting focusing on the fiftieth anniversary of the ICCPR in September 2016, and
the Japanese Yearbook of International Law published half a dozen articles on ‘Half a
Century with the International Covenants on Human Rights: Long-Term Impacts
on the World’.95
There is a small amount of literature on the implementation of the ICCPR in
Nepal,96 with passing references to the provisions of the Covenant made in discus-
sions about specific issues.97 Similarly, just a few scholarly writings deal with the
implementation of the ICCPR in Sri Lanka.98 North Korea once drew the atten-
tion of the international community by attempting to withdraw from the ICCPR,
and Elizabeth Evatt’s article on the subject is one of the most-cited scholarly works
relating to that State.99 Non-North Korean commentators have contributed more
scholarly works on the ICCPR obligations of North Korea than domestic scholars.100
With regard to Pakistan, three main issues have been widely discussed in
relation to that State’s obligations under the ICCPR: blasphemy,101 minority

92 International Human Rights Law Clinic, ‘The Right to a Remedy for Enforced Disappearances
in India: A Legal Analysis of International and Domestic Law Relating to Victims of Enforced
Disappearances’ (2014) Berkeley School of Law Working Paper Series 1 <www.law.berkeley.edu/wp-
content/uploads/2015/04/Working-Paper-1-India-Right-to-a-Remedy-151027.pdf> accessed 13
March 2017; Arthur Mark Weisburd, ‘Customary International Law and Torture: The Case of India’
(2006) 2 Chicago J Intl L 81.
93 eg Ravender Kumar, ‘India, the International Covenant on Civil and Political Rights, and its
Implementation Machinery’ (PhD dissertation, Jawaharlal Nehru University 1991).
94 Timothy Webster, ‘International Human Rights in Japan: The View at Thirty’ (2010) 23
Columbia J of Asian L 241; Yuji Iwasawa, ‘International Human Rights Adjudication in Japan’ in
Benedetto Conforti and Francesco Francioni (eds), Enforcing International Human Rights in Domestic
Courts (Martinus Nijhoff 1997) 223.
95 Koichi Morikawa (ed), ‘Half a Century with the International Covenants on Human
Rights: Long-Term Impacts on the World (Part I)’ Japanese YB of Intl L, vol 59 (International Law
Association of Japan 2016).
96 eg National Human Rights Commission of Nepal, ‘A Study of the Domestication Status of
International Covenant on Civil and Political Rights in Nepal’ (August 2007) Report No 32/82/
2064; Padma Prasad Khatiwada, ‘Nepal: Domestication of Treaties—What about Implementation?’
(2012) Human Rights Alliance Review Report <https://reliefweb.int/sites/reliefweb.int/files/resources/
Domestication%20of%20Major%20International%20Treaties%20in%20Nepal%20Problems%20
and%20Prospects.%202012.pdf> accessed 22 January 2018.
97 Hemang Sharma, ‘Rights against Torture in Nepal: Commitment and Reality’ (2015) 4 Intl
Human Rights L Rev 104.
98 eg Deepika Udagama, ‘The Politics of Domestic Implementation of International Human Rights
Law: A Case Study of Sri Lanka’ (2015) 16 Asia-Pacific J on Human Rights & L 104.
99 Elizabeth Evatt, ‘Democratic People’s Republic of Korea and the ICCPR: Denunciation as an
Exercise of the Right of Self-defence?’ (1998) 5 Australian J of Human Rights 215.
100 Danielle Chubb, ‘North Korean Human Rights and the International Community: Responding
to the UN Commission of Inquiry’ (2014) 15 Asia-Pacific J on Human Rights & L 51.
101 Richard Lombardi, ‘The Influence of the International Covenant on Civil and Political Rights on
Anti-Blasphemy Laws’ (2013) Law School Student Scholarship Paper 158 <http://scholarship.shu.edu/
student_scholarship/158/> accessed 2 April 2017.
20

200 Influence of the ICCPR in Asia

rights102 and the status of the Ahmediya community,103 and the death penalty.104
Though Pakistan’s reservations to certain provisions of the ICCPR and with-
drawal of some of those reservations have attracted attention from several quar-
ters, very little on the subject has appeared in the legal literature.105
As concerns China, human rights law scholars regard the ICCPR as an important
instrument for improving the state of human rights. A number of Chinese as well as
Western scholars have done work on the ICCPR in relation to the country.106 They
have referred to ICCPR provisions in respect of some burning issues, such as the
death penalty,107 media freedom and digital oppression,108 and national security.109
Some literature on Taiwan’s obligations under the ICCPR is also available,110 but
the non-assumption of those obligations by China remains unexplored. On the
other hand, a number of scholarly writings on Hong Kong and the ICCPR appeared
in the 1990s, upon the transfer of the island’s sovereignty to China.111 Post-2000
writings have focused on issues such as immigration and refugee protection,112 the
interface between domestic and international human rights law,113 environmental
issues,114 and adult suffrage.115

102 Abbas Kassar, ‘Pakistan Unwilling to Protect Religious Minorities Rights under ICCPR’ The
Pioneer (Hyderabad, 14 July 2014) <http://thepioneer.com.pk/pakistan-unwilling-to-protect-
religious-minorities-rights-under-iccpr/> accessed 2 April 2017.
103 Qasim Rashid, ‘Pakistan’s Failed Commitment: How Pakistan’s Institutionalized Persecution of
the Ahmadiyya Muslim Community Violates the International Covenant on Civil and Political Rights’
(2011) 11 Richmond J of Global L & Business 1.
104 Shagufta Omar, Abolition of Death Penalty with Special Reference to Pakistan (Women Aid Trust
Pakistan 2012).
105 Aistė Akstinienė, ‘Reservations to Human Rights Treaties: Problematic Aspects Related to
Gender Issues’ (2013) 20 Jurisprudencija 451.
106 eg Na Jiang, China and International Human Rights: Harsh Punishments in the Context of the
International Covenant on Civil and Political Rights (Springer 2014); Eric Kolodner, ‘Religious Rights in
China: A Comparison of International Human Rights Law and Chinese Domestic Legislation’ (1994)
16 Human Rights Q 455; Shiyan Sun, ‘Understanding and Interpretation of the ICCPR in the Context
of China’s Possible Ratification’ (2007) 6 Chinese J Intl L 17.
107 Roger Hood, ‘Abolition of the Death Penalty: China in World Perspective’ (2009) 1 City U of
Hong Kong L Rev 1.
108 Katharine M Villalobos, ‘Digital Oppression in Cuba and China: A Comparative Study of
ICCPR Violations’ (2014–15) 24 J of Transnational L & Policy 161.
109 Kelly A Thomas, ‘Falun Gong: An Analysis of China’s National Security Concerns’ (2001) 10
Pacific Rim L and Policy J 471.
110 Mark L Shope, ‘Adoption and Function of International Instruments: Thoughts on Taiwan’s
Enactment of the Act to Implement the ICCPR and the ICESCR’ (2012) 22 Indiana Intl & Comparative
L Rev 159.
111 Johannes Chan, ‘State Succession to Human Rights Treaties: Hong Kong and the International
Covenant on Civil and Political Rights’ (1996) 45 Intl & Comparative L Q 928.
112 Michael Ramsden, ‘Reviewing the United Kingdom’s ICCPR Immigration Reservation in Hong
Kong Courts’ (2014) 63 Intl & Comparative L Q 635.
113 Albert HY Chen, ‘International Human Rights Law and Domestic Constitutional
Law: Internationalization of Constitutional Law in Hong Kong’ (2009) 4 National Taiwan U L Rev 237.
114 Heather R Croshaw, ‘The “Right To Health” and “Right To Life”: Positive Obligations for
Controlling Air Pollution in Hong Kong in Clean Air Foundation v. HKSAR’ (2014) 15 Vermont J of
Environmental L 450.
115 Michael C Davis, ‘Basic Law, Universal Suffrage and the Rule of Law in Hong Kong’ (2015) 38
Hastings Intl & Comparative L Rev 275.
201

Assessment of the Influence of the ICCPR 201

In brief, the total amount of literature relating to the ICCPR in Asia is very limited;
Japan is the subject of the largest amount of literature, whereas North Korea remains the
least researched State. Notably, the quantity of literature is much less than the intensity
of interest in the ICCPR in Asia. The contribution of legal scholarship is quite modest,
but various civil society reports have had some influence on State practice. Therefore,
it is possible to establish, interestingly, that civil society reports have more influence on
the human rights situations in the selected Asian countries than the scholarly literature
on the subject.

H. Influence of national human rights institutions

National human rights institutions (NHRIs) may act as local foot soldiers for the HRC
in respect of the ICCPR. That is why the HRC invariably recommends the establish-
ment of NHRIs in those States that do not have such an institution. NHRIs can take
various forms, ranging from human rights commissions or ombudsmen to human
rights institutes or centres.
Most of the Asian States parties to the ICCPR have NHRIs. Among the selected
States, India was the first to establish the National Human Rights Commission (NHRC)
in 1993, and Pakistan was the latest, establishing its NHRI in 2015. China, Japan, and
North Korea do not have NHRIs. Not many of the Asian NHRIs meet the test of the
Paris Principles relating to the Status of National Institutions.116 Yet, a majority of the
NHRIs have sought to overcome their respective limitations by expanding their func-
tional orbits and by improving their public images. Since the Universal Periodic Review
(UPR) in 2009, for instance, Bangladesh has prioritized transforming its NHRC into
the primary institution that oversees human rights implementation in the country.
Since Japan does not have an NHRI, the Human Rights Organs of the Ministry
of Justice carry out human rights protection activities there. In September 2012,
the Cabinet adopted a decision confirming the content of a bill to establish an in-
dependent human rights commission compliant with the Paris Principles and a bill
to partially amend the Human Rights Volunteers Act; however, these measures were
later scrapped.117

116 eg the appointment of a member of the NHRC was challenged before the Supreme Court of
India on the grounds of non-compliance with the Paris Principles (Supreme Court of India, People’s
Union for Civil Liberties v Union of India (UOI) and Anr, MANU/SC/0039/2005; and Supreme
Court of India, Anupriya Nagori v Union of India, Thr its Secretary and Ors, MANU/SCOR/00058/
2017). Because of the questionable selection and appointment process of the NHRC, in particular,
the Global Alliance for National Human Rights Institutions (GA-NHRI) deferred the accreditation of
the NHRC until late 2017, thus barring the commission from representing India in the UN Human
Rights Council and the UNGA (Saurav Datta, ‘Major Setback, Embarrassment to National Human
Rights Commission’ National Herald (New Delhi, 9 February 2017) <www.nationalheraldindia.com/
institution/setback-embarrassment-to-national-human-rights-commission-report-un-recommends-
accreditation-deferred-till-nov-2017> accessed 30 March 2018.
117 Silvia Atanassova Croydon, ‘A National Human Rights Commission for Japan: Domestic and
Regional Implications’ (30 May 2013) Nordic Association of Japanese and Korean Studies <www.
najaks.org/?p=1032> accessed 11 April 2017; Asia- Pacific Human Rights Information Centre,
‘Japanese National Human Rights Commission’ (2002) 28 Human Rights Forum 21 <www.hurights.
20

202 Influence of the ICCPR in Asia

Nepal established its National Human Rights Commission in 2000. Like the
Constitution of Afghanistan, the Constitution of Nepal of 2015 embodies the man-
date of the Human Rights Commission. Among other things, the Constitution
empowers the Commission to monitor the implementation of those human rights
treaties to which Nepal is a party and to make recommendations to the government
regarding the ratification of those treaties to which Nepal is not a party. Pursuant to
the Human Rights Commission Act 1997, Nepal defines ‘human rights’ in broader
terms than its larger neighbour India.118
North Korea claims that its people’s committees at all levels have ‘direct respon-
sibility’ for the promotion of human rights and that ‘[p]‌rocuratorial, judicial, and
people’s security organs also discharge important functions of protecting human
rights’.119 Since its establishment in April 2015, the National Committee for the
Implementation of International Human Rights Treaties (NCIIHRT) provides
‘unified coordination for the implementation of all the treaties’ to which North
Korea is a State party.120
Pakistan set up a National Commission for Human Rights (NCHR) in June
2012; however, the members of the Commission were appointed only three years
later. The NCHR has a mandate to make recommendations for the implementation
of international human rights treaties. However, like the Indian NHRC, the NCHR
of Pakistan is only authorized to seek reports from the government and make recom-
mendations in cases of allegations against the armed forces.121 The HRC has asked
India to remove restrictions on the mandate of the NHRC,122 and Pakistan is likely
to receive a similar recommendation in respect of the NCHR.
In 1996, Sri Lanka adopted legislation to establish the Human Rights
Commission of Sri Lanka (HRCSL). The HRCSL is empowered to advise the
government of Sri Lanka on the ratification of human rights treaties and also on
bringing legislation and administrative practices and procedures into line with
international human rights norms and standards. Prior to the establishment of the

or.jp/archives/focus/section2/2002/06/japanese-national-human-rights-commission.html> accessed
11 April 2017.
118 While the definition of human rights pursuant to the 1993 Indian Protection of Human Rights
Act covers the rights embodied in the ICCPR and ICESCR (Republic of India, The Protection of
Human Rights Act, 1993, Act No 10 of 1994 <http://nhrc.nic.in/documents/Publications/TheProt
ectionofHumanRightsAct1993_Eng.pdf> accessed 20 June 2017), the definition of human rights ac-
cording to the 1997 Nepalese Human Rights Commission Act extends to the rights enshrined in the
human rights treaties to which Nepal is a party (Kingdom of Nepal, The Human Rights Commission
Act, 2053 (1997) <www.asiapacificforum.net/media/resource_file/Human_Rights_Commission_
Act_1997.pdf> accessed 20 June 2017).
119 UNGA, ‘National Report by North Korea’ (27 August 2009) UN Doc A/HRC/WG.6/6/PRK/
1, para 23.
120 CRC Committee, ‘Fifth Periodic Report of North Korea’ (25 October 2016) UN Doc CRC/C/
PRK/5, para 22.
121 Indian Protection of Human Rights Act, 1993, s 19 (<http://nhrc.nic.in/documents/
Publications/TheProtectionofHumanRightsAct1993_Eng.pdf> accessed 13 April 2016); and Pakistani
National Commission for Human Rights Act, 2012 s 14 (<http://pgil.pk/wp-content/uploads/2014/
06/National-Commission-for-Human-Rights-Act-2012.pdf> accessed 13 April 2017).
122 HRC, ‘Concluding Observations on the Third Periodic Report of India’ (4 August 1997) UN
Doc CCPR/C/79/Add.81, para 22.
203

Assessment of the Influence of the ICCPR 203

HRCSL, two institutions existed under emergency regulations: the Human Rights
Task Force (HRTF) to prevent illegal arrest and detention, and the Commission
for Eliminating Discrimination and Monitoring of Human Rights (CEDMHR) to
prevent discrimination.
On 27 March 2013, the Chinese Ministry of Foreign Affairs and the Australian
Human Rights Commission jointly organized a seminar in Beijing in which topics
such as the function, role, and future development of an NHRI and an analysis of
the feasibility of establishing such an institution in China were discussed in depth.
Yet, China—along with Japan and North Korea—has not established an NHRI
to date.
The National Human Rights Commission of Malaysia (Suruhanjaya Hak Asasi
Manusia) (SUHAKAM) was established under the Human Rights Commission of
Malaysia Act 1999. Like the NHRC of India, the SUHAKAM has advocated for
the ratification of the Convention against Torture (UNCAT).123 It has done con-
siderable work in respect of CEDAW,124 which elaborates the rights of women as
partly recognized in the ICCPR, and its work consequently has an indirect bearing
on the Covenant. However, the Malaysian government has failed to take its findings
and recommendations seriously. The Parliament of Malaysia has not discussed the
annual reports of SUHAKAM.
This survey of Asian States’ NHRIs gives rise to a few impressions. First, devel-
oped legal systems do not necessarily feature developed NHRIs as well (as is shown
by the examples of Hong Kong and Japan). Secondly, the presence of an NHRI does
not always ensure a satisfactory state of human rights protection in the State con-
cerned (as is the case eg in India and Pakistan). Thirdly, the ranking of an NHRI does
not necessarily represent its performance in respect of human rights (for example, in
Afghanistan). Finally, compliance with the Paris Principles does not ipso facto guar-
antee ICCPR standards (eg, again, in Afghanistan); however, an NHRI in compli-
ance with those principles is better situated to improve the human rights situation
in a country, including adherence to ICCPR standards; and a compromised NHRI
dramatically dilutes the possibility of compliance.

I. Reporting record
ICCPR article 40 envisages a compulsory monitoring procedure, and its article 41
concerns the optional competence of the HRC to receive inter-State communi-
cations. Pursuant to article 40, State reports constitute the basis of constructive
discussions between the HRC and the States parties concerned. The international
monitoring of the implementation of the ICCPR critically depends on the timely
submission of reports by States parties. Unlike most European States, most Asian
States do not submit their respective reports within the stipulated deadlines. Some

123 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
124 Convention on the Elimination of All Forms of Discrimination against Women (opened for sig-
nature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.
204

204 Influence of the ICCPR in Asia

Asian States, such as Afghanistan, have not submitted their periodic reports for
as long as twenty years;125 India’s fourth periodic report is more than fifteen years
overdue.126 Bangladesh had not submitted its initial report for fourteen years, thus
forcing the HRC to initiate the review procedure to examine the country situation127
that prompted the State to submit its initial report without further delay.128 By its
reservation to article 40, Pakistan unsuccessfully sought to escape from submitting
any report to the HRC. Thus, generally, the Asian States have been reluctant com-
municators with the Committee.
Since delays in the submission of State reports constitute a violation of the re-
porting obligations under ICCPR article 40, several measures have been developed
to persuade States parties to comply with those obligations in a timely manner. At
least four measures have an Asian imprint.
First, in 1997, when the former UN Sub- Commission on Prevention of
Discrimination and Protection of Minorities noted that North Korea had not sub-
mitted its second periodic report in the preceding ten years, it deplored the delay
and requested the State to delay no longer and to extend its cooperation with the
reporting procedure. Annoyed with this admonition, North Korea declared its with-
drawal from the ICCPR. While Asian States kept quiet over the purported with-
drawal by North Korea, certain Nordic States denounced this move.129 In response,
the HRC disapproved the purported withdrawal and adopted General Comment
26 on the continuity of human rights obligations, stating that no State party to the
ICCPR was entitled to withdraw from the Covenant.130 Partly as a result of General
Comment 26, North Korea resumed its reporting under ICCPR article 40 in 2000.
Second, when a State party to the ICCPR fails to submit its report under article
40 of the Covenant for more than five years, the HRC may place that State on the
list of serious defaulters of reporting obligations. Since its inception in 1994, the
annual list of defaulters has always included some Asian States parties. Figure 9.1
below shows an increasing number of Asian States parties appearing in the list of
defaulters over the years.
Third, when a State party fails to submit its report for a long time in spite of re-
peated reminders, the HRC may serve notice on the State concerned that it intends
to consider the measures adopted by that State to give effect to the provisions of the
Covenant, even in the absence of a report. Since April 2001, the HRC has applied
this procedure in respect of more than a dozen States.
Fourth, the increasing reporting burden on the States parties to the UN human
rights treaties and the failure of a number of those States to submit their respective
reports without delay have led to a set of procedural reforms.131 Accordingly, a

125 UNGA, ‘Report of the Human Rights Committee’ (2017) UN Doc A/72/40, 18.
126 ibid.
127 UNGA, ‘Report of the Human Rights Committee’ (2015) UN Doc A/70/40 (vol I) paras 73–74.
128 HRC, ‘Initial Periodic Report of Bangladesh’ (3 September 2015) UN Doc CCPR/C/BGD/1.
129 Hans Klingenberg, ‘Elements of Nordic Practice 1998: Denmark’ (1999) 68 Nordic J of
Intl L 163.
130 HRC, ‘General Comment 26’ (1997) UN Doc CCPR/C/21/Rev.1/Add.8/Rev.1.
131 UNGA Res 68/268 (21 April 2014) UN Doc A/RES/68/268.
205

Assessment of the Influence of the ICCPR 205

10
9
8
7
6
5
4
3
2
1
0
19 4
19 5
19 6
19 7
19 8
20 9
20 0
20 1
20 2
20 3
20 4
20 5
20 6
20 7
20 8
20 9
20 0
20 1
20 2
20 3
20 4
15
16
9
9
9
9
9
9
0
0
0
0
0
0
0
0
0
0
1
1
1
1
1
19

20
Number of States

Figure 9.1 Number of Asian States which failed to file reports under article 40 of the ICCPR

number of States parties to the ICCPR, including Afghanistan and Japan, have ac-
cepted the new optional procedure of focused reports based on replies to the list of
issues provided prior to reporting (LOIPR).132

J. Influence of General Comments and concluding observations

General Comments of the HRC on the provisions of the ICCPR constitute its uni-
versalist guidance to States. Although the reporting guidelines of the HRC require the
States parties to the ICCPR to take its General Comments into account while submit-
ting their respective reports under article 40 of the Covenant, the Asian States parties
hardly do the needful in this regard. As for the use of General Comments in domestic
legal processes, for instance, the Supreme Court of Bangladesh referred to General
Comment 7 on ICCPR article 7 but refused to enforce the Covenant in the absence of
its incorporation into municipal legislation.133
In Japan, General Comments are paid considerable attention and treated as
significant standards for the promotion and protection of human rights. Several
Japanese scholars and practitioners translate General Comments into the Japanese
language for the purpose of dissemination and the formulation of critical reviews
of the Japanese courts’ practice. It has been found that plaintiffs’ representatives
have asserted human rights protection arguments built on General Comments

132 UNGA, ‘Report of the Human Rights Committee’ (2014) UN Doc A/69/40 (vol I) 9–10;
‘Report of the Human Rights Committee’ (2017) UN Doc A/72/40, 23.
133 Bangladesh Legal Aid and Services Trust v Bangladesh, Writ Petition Nos 5863 of 2009, 754 of
2010, and 4275 of 2010.
206

206 Influence of the ICCPR in Asia

in legal proceedings before national courts in a number of cases.134 In such cases,
the defendants (namely the government, including local authorities) argue against
the applicability of General Comments as legal norms in Japan. They insist that
General Comments have no binding force, neither at the international level nor at
the national level. It is rather difficult to find cases where judges relied upon General
Comments in their reasoning.135
North Korea has indirectly admitted the influence of HRC, General Comment
6 on ICCPR article 6 (the right to life)136 by stating that it ‘considers an aggressive
war, especially thermonuclear war, as the most serious threat to the life of mankind
and resolutely rejects it’.137 However, North Korea’s nuclear threats against its arch-
enemies expose the limits of the influence of General Comment 6.
As for the HRC’s concluding observations on State reports, the Special Rapporteur
for Follow-Up on Concluding Observations monitors their implementation by the
States parties concerned. Official records reveal a mixed response in this regard. In
response to the concluding observations on its report, for instance, Japan conveyed
its inability to respect the observations relating to the death penalty but expressed
its intention to solve the problem of comfort women. In fact, in December 2015,
Japan entered into an agreement with South Korea to redress the grievances of com-
fort women.138 Similarly, in its follow-up to the concluding observations on its fifth
periodic report,139 Sri Lanka highlighted that it has taken steps to comply with some
of those observations. Thus, in comparison to General Comments, concluding ob-
servations have greater influence on the Asian States parties.

K. Influence of Views
Following the submission of individual complaints under the Optional Protocol
procedure, a number of the target States have administered remedies to the vic-
tims of ICCPR violations, sometimes even before the HRC’s adoption of its Views
on the merits of those cases. Since not many Asian States are parties to the first
Optional Protocol,140 only a relatively small number of cases have been submitted

134 Among more than 100 cases are: Supreme Court (1st Bench), Judgment, 14 January 2002,
Hanrei Taimuzu [Law Times Reports], vol 1085, 169; Supreme Court (1st Bench), Judgment, 21
January 1999, Hanrei Taimuzu [Law Times Reports], vol 1002, 94.
135 Kimio Yakushiji, ‘Domestic Implementation of Human Rights Conventions and Judicial
Remedies in Japan’ (2003) 46 Japanese Ann Intl L 1, 27–37.
136 HRC, ‘General Comment 6’ in ‘Note by the Secretariat, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) HRI/GEN/
1/Rev.9 (vol I) 176–78.
137 HRC, ‘Second Periodic Report of North Korea’ (n 41) para 32.
138 Kwanwoo Jun and Alexander Martin, ‘Japan, South Korea Agree to Aid for “Comfort Women”’
Wall Street Journal (28 December 2015) <www.wsj.com/articles/japan-south-korea-reach-comfort-
women-agreement-1451286347> accessed 13 March 2017.
139 Government of Sri Lanka, ‘Update to the Fifth Periodic Report of Sri Lanka under the ICCPR’
(16 October 2015) <http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/LKA/INT_
CCPR_FCO_LKA_22048_E.docx> accessed 13 March 2017.
140 Only eleven Asian States are parties to the Optional Protocol.
207

Assessment of the Influence of the ICCPR 207

to the HRC141 and one does not find many illustrations of the positive influence
of the Views on the Asian States parties, whereas some of the worst cases of non-
compliance with the Views and interim measures of the Committee have taken
place in Asia.142
Among the States selected for the present study, only Nepal and Sri Lanka are
parties to the first Optional Protocol. The HRC has found ICCPR violations in all
those cases against Nepal and in all except for one case against Sri Lanka in which
it expressed its Views on the merits, thus warranting follow-up action on the part
of these States. As for Nepal, the Views adopted in the cases of Sharma,143 Giri,144
Maharjan,145 and Sedhai146 have been a subject of discussion in the report of the
Special Rapporteur for Follow-Up on Views for a long time,147 and the follow-up
dialogues on these cases are still going on.148 Similarly, referring to the Weerawansa
case involving Sri Lanka,149 the HRC stated that its decision had not been imple-
mented and sought observations from the State party in this regard.150 Also, when
the government of Sri Lanka failed to respect the interim measures of protection
in the case of Fernando v Sri Lanka, the HRC reiterated those measures.151 In the
Singarasa case, instead of implementing the HRC’s Views, the Supreme Court of Sri
Lanka found the State’s accession to the first Optional Protocol unconstitutional.152
All of these cases underline the limitations of the ICCPR and the first Optional
Protocol thereto and consequently convey that Asia is still not well prepared to
comply with the Views of the HRC.

L. Influence of the Universal Periodic Review

UPR seeks to reinforce the implementation of human rights irrespective of a State’s
accession to or ratification of the ICCPR. In the absence of HRC monitoring of the
States not parties to the ICCPR, UPR assumes even greater importance.

141 As of March 2016, the HRC had registered 2756 cases against 115 States parties to the Optional
Protocol. Only 490 cases (18 per cent) were against the 11 Asian States parties.
142 eg Ruzmetov v Uzbekistan (2006) HRC Communication No 915/2000, UN Doc CCPR/C/86/
D/915/2000, paras 1.2, 5.1, and 8.
143 Sharma v Nepal (2008) HRC Communication No 1469/2006, UN Doc CCPR/C/94/D/1469/
2006.
144 Giri v Nepal (2011) HRC Communication No 1761/2008, UN Doc CCPR/C/101/D/1761/
2008.
145 Maharjan v Nepal (2012) HRC Communication No 1863/2009, UN Doc CCPR/C/105/D/
1863/2009.
146 Sedhai v Nepal (2013) HRC Communication No 1865/2009, UN Doc CCPR/C/108/D/1865/
2009.
147 eg HRC, ‘Follow-up Progress Report on Individual Communications Received and Processed
Between June 2014 and January 2015’ (29 June 2015) UN Doc CCPR/C/113/3.
148 ibid 16.
149 Weerawansa v Sri Lanka (2009) HRC Communication No 1406/2005, UN Doc CCPR/C/95/
D/1406/2005.
150 UNGA, ‘Report of the Human Rights Committee’ (2014) UN Doc A/69/40 (vol I) 215–16.
151 Fernando v Sri Lanka (2005) HRC Communication No 1189/2003, UN Doc CCPR/C/83/D/
1189/2003, para 5.6.
152 Singarasa v Attorney General of Sri Lanka, SC Spl (LA) No 182/99 (September 2006).
208

208 Influence of the ICCPR in Asia

During their respective UPRs, the Asian States under study pointed out the meas-
ures they had taken for the promotion and protection of human rights; some other
States, including quite a few Asian ones, made certain recommendations; and most
target States gave a mixed response. For instance, Pakistan was asked to withdraw
remaining reservations to the ICCPR, review and align its legislation with the rights
to freedom of religion and belief and freedom of expression as stipulated in the
Covenant, and sign the Second Optional Protocol to the Covenant.153 Similarly,
Sri Lanka was asked to ratify the Second Optional Protocol;154 China was recom-
mended to speed up the process of ratification of the Covenant;155 and Malaysia
was asked to expedite the process of accession to the Covenant.156 In spite of the
fact that most of these recommendations remain unimplemented, UPRs contribute
to enhancing the influence of the ICCPR in Asian States even if that influence is
currently far from satisfactory. Since several Asian States make recommendations to
other States in the region,157 UPRs also contribute to the development of human
rights diplomacy among those Asian States.

M. Availability of human rights documents in

local languages and their accessibility
The literacy rate in most of the selected Asian States is very low in comparison to the
global literacy rate. This underlines the limitations on the influence of the availability
of human rights documents in local languages. In addition, international human
rights instruments are not available in all the languages of the Asian States parties.
For instance, the ICCPR and several other human rights treaties were published in
only one official language of Afghanistan—Dari—and some of these instruments,
including the Covenant, were translated into the other official language—Pashto—
rather late. Likewise, although India has Hindi and English as its official languages
and also twenty-two languages listed in the Eighth Schedule of the Constitution
of India, the ICCPR is available in Bengali, English, Hindi, and Malayalam, while
other language versions of the Covenant are difficult to find. A strong attachment
to the local languages in India has shaped the boundaries of several states in this
country, but it is surprising that linguistic loyalties do not get reflected in the avail-
ability of the ICCPR and other human rights instruments in all these languages.
The government of Japan makes Japanese translation of a treaty a prerequisite for
seeking ratification of the treaty from the Diet. After ratification, the Japanese text is
disseminated in the Kampo (official announcements) to the public. The government

153 UNGA, ‘Universal Periodic Review of Pakistan’ (26 December 2012) UN Doc A/HRC/22/12.
154 UNGA, ‘Universal Periodic Review of Sri Lanka’ (18 December 2012) UN Doc A/HRC/22/16.
155 UNGA, ‘Universal Periodic Review of China’ (4 December 2013) UN Doc A/HRC/25/5.
156 UNGA, ‘Universal Periodic Review of Malaysia’ (4 December 2013) UN Doc A/HRC/25/10.
157 During the second Universal Periodic Review of India in 2012, for instance, the following Asian
States made recommendations: Indonesia, Japan, Kyrgyzstan, Laos, Malaysia, the Maldives, Myanmar,
Nepal, Singapore, South Korea, Sri Lanka, Thailand, Timor-Leste, and Viet Nam (OHCHR, ‘Universal
Periodic Review Second Cycle: India’ <www.lan.ohchr.org/EN/HRBodies/UPR/Pages/INSession13.
aspx> accessed 16 February 2018).
209

Concluding Remarks 209

also provides treaty collections on an official website. As a result, all human rights
treaties to which Japan is a party are available in the Japanese language. Several
Japanese universities offer courses that include human rights. In North Korea, the
texts of human rights instruments ‘have been translated into Korean and dissem-
inated to the people’s power organs, judicial, procuratorial and people’s security
organs, economic and cultural organs and public organizations, and are taught in
the regular higher educational institutions’.158 There are no independent sources to
reaffirm this claim of human rights teaching in North Korea.

N. General support
Besides the necessary legal architecture, powerful forces such as business communi-
ties, corporate entities, educational institutions, religious bodies, social media, and
political parties have a significant role to play in ensuring respect for human rights.
In particular, religious institutions and religious leaders shape the psyche of people
in those societies where people have religious beliefs and sometimes prejudices, too.
This is the case with most of the States selected for the present study.
In a politically organized society, political parties set the political agenda and in-
fluence the state of human rights. Further, the lack of political will generally affects
the implementation of international human rights instruments. Political institu-
tions are important tools for awakening political consciousness, which is a vital
process for the true realization of human rights. The lack of political will, commonly
cited as a ground for not assuming human rights obligations, has its origins in the
political parties that form the government in a country. For example, owing to the
lack of political will, the ratification of the UNCAT by India remains an ambi-
tion of human rights activists and an expectation of UPR participants. Similarly,
one of the reasons for the lack of an NHRI in Japan is the lack of political will: the
ruling Liberal Democratic Party has long opposed an NHRI. Likewise, both of the
leading political parties in Bangladesh were reluctant to establish an NHRI, and it
was a non-party caretaker government that created the country’s NHRC in response
to repeated calls and pressure from the international community and donors. The
manner in which war criminals are being tried in Bangladesh is again an exhibition
of the required political will, which actually is the result of the ideology of the pre-
sent ruling party.

V. Concluding Remarks

Since Asia is the most diverse region in the world, it is difficult to identify a single
Asian perspective on human rights, and any generalization about the influence
of the ICCPR in this region is bound to be unsafe. This insecurity is aggravated

158 UN, ‘Core Document Forming Part of the Reports of States Parties: North Korea’ (16 July
2002) UN Doc HRI/CORE/1/Add.108/Rev.1, para 57.
210

210 Influence of the ICCPR in Asia

by the fact that a majority of Asian States lack satisfactory human rights databases.
There is intolerable indifference towards the systematic collation and dissemination
of information relating to human rights in Asia. It is not easy to obtain information
about those aspects of Asian States’ practice concerning the ICCPR that are essen-
tial for a scientific study of the subject. Only a few civil society actors in Asia attach
importance to the development of human rights databases or to the submission of
parallel or shadow reports following the respective State reports to the HRC under
ICCPR article 40.
The HRC has had inadequate ‘constructive discussions’ with the Asian States
parties to the ICCPR because a number of these States have not submitted their
respective reports within the stipulated periods, becoming persistent defaulters of
their respective reporting obligations, and most of those States that submitted their
respective reports failed to provide all of the necessary information and disaggre-
gated data. The inadequate ‘constructive discussions’ between the Asian States and
the HRC have constrained an in-depth understanding of the ICCPR practice of
these States. Since the first Optional Protocol to the ICCPR has the least adherents
in the most populous continent, only a small number of individuals from Asia have
been able to invoke the individual communication procedure of the HRC, and
therefore a relatively smaller number of opportunities arises for the Committee to
examine and appreciate the engagement with the Covenant in the domestic law of
the Asian States. While some of the Asian States played a decisive role in the final-
ization and adoption of the ICCPR, these States have not played an equally effective
role in determining the interpretation of the Covenant. Except for a few experts,
not many members of the HRC from Asia have distinguished themselves as active
members of the Committee. Similarly, not a single Asian State (except Pakistan)
made a statement during the negotiation of the April 2014 Resolution of the UNGA
regarding the reform of human rights treaty implementation procedures.159 Even
Pakistan did not make a direct statement (the Russian Federation spoke on behalf
of a cross-regional group that includes Pakistan). Also, Asia witnesses the largest
number of death sentences in the world, and this explains why only a small number
of Asian States have become parties to the Second Optional Protocol to the ICCPR
on the abolition of the death penalty160 and one of them (the Philippines) has tried
to reintroduce the death penalty and leave the ICC.161
The ICCPR has had varied influence on the domestic law, judicial decisions, and
institutional practices of the Asian States parties to the Covenant. While Hong Kong,
India, and Japan are encouraging examples, although not fully satisfactory, Pakistan
needs to do more and Afghanistan remains extremely vulnerable. Bangladesh,
Nepal, and Sri Lanka face considerable internal challenges to welcoming the ICCPR
within their respective jurisdictions. North Korea continues to challenge the efficacy

159 UNGA, Res 68/268 (21 April 2014) UN Doc A/RES/68/268.

160 These are Kyrgyzstan, Mongolia, Nepal, the Philippines, Timor-Leste, Turkmenistan, and
Uzbekistan.
161 Open ended letter dated 27 March 2017 by the HRC Chairperson to the Philippines <www.
ohchr.org/Documents/HRBodies/CCPR/NV_from_HRC_ThePhilippines_28March2017.pdf> ac-
cessed 15 February 2018.
21

Concluding Remarks 211

of diplomacy, and the ICCPR is no panacea in this regard. China wants to take time
to ratify the ICCPR, with uncertain prospects of greater openness in its socialist
legal system, and Malaysia remains shy of the Covenant even after de-escalating its
advocacy of Asian values.
The development of systemic databases is essential to understanding and appreci-
ating the influence of the ICCPR in Asia. Both governmental and non-governmental
bodies, especially educational institutions and NHRIs, ought to do justice to their
obligations and potential in this regard. They are expected to conduct meticulous
studies on the compatibility between the domestic law of every Asian State and the
provisions of the ICCPR, the General Comments, and the applicable concluding
observations of the HRC. They are also expected to investigate the factors and dif-
ficulties, if any, in the implementation of the ICCPR in every Asian State party.
Further, every Asian State party’s report to the HRC and its resulting concluding ob-
servations ought to be subjects of discussions at the domestic level. All the General
Comments and concluding observations ought to be distributed by NHRIs or other
civil society actors in local languages, with efforts to bring them to the attention of
law enforcement officials and judges in particular. To comply with the Views of the
HRC on the merits of the Asian cases submitted under the Optional Protocol, the
Asian States parties ought to develop response mechanisms with the help of their
respective NHRIs.
Asia as a whole is unlikely to have a regional human rights body in the foresee-
able future, but Southeast Asia has already made some progress in this regard,162
and South Asia has the potential to develop some limited human rights regimes to
reinforce the ICCPR. The way the regional human rights treaties have enhanced
compliance with civil and political rights in other regions ought to be a source of
envy for those who are delighted with the projection of the current century as the
Asian century.
Asia has already emerged as the leader of economic growth in the world. Most
probably, Asia will become a hub of technological and military power in the years to
come. This is bound to liberate the world from Eurocentrism. However, there is no
comparable confidence that Asia will also do justice to its rich cultural heritage or
that the growing economic, technological, and military power of Asian States will
go along with a strengthening of the humanitarian values of the Asian people. Their
cultural heritage, especially its collective moral dimension, is also a reminder of the
importance of universal value pluralism, and hence the HRC should be aware of the
same. The history of international law shows that besides law and morality, power
and hegemony have had an impact on the formulation and application of inter-
national legal instruments. By the same logic, the anticipated Asian dominance in
the world is likely to influence the formulation and interpretation of human rights
instruments. Material growth without moral strength is not an Asian value, and the
Asian century ought to combine the two by safeguarding and enriching the content

162 In 2009, the Association of Southeast Asian Nations (ASEAN) established the Intergovernmental
Commission of Human Rights (AICHR) as an ‘overarching human rights body (...) with a cross-cutting
mandate’ <http://aichr.org/> accessed 2 April 2017.
21

212 Influence of the ICCPR in Asia

and principles inherent in the concept of human rights that finds an eloquent ex-
pression in the ICCPR.

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215

10
Influence of the ICESCR in Europe
Amrei Müller*

I. Introduction

Studies evaluating the legal influence of the ICESCR1 and the work of the Committee
on Economic, Social and Cultural Rights (CESCR or the Committee) in European
States are few and far between. Those that exist have often found that this influence has
been limited,2 while others have gone as far as to announce the ‘death of socio-economic
rights’3 in an era of neo-liberal globalization affecting Europe and the rest of the world,
suggesting a vanishingly low influence at best.
On the occasion of the fiftieth anniversary of the ICESCR in 2016, it is timely
to (re-)examine the influence that the ICESCR has had in Europe. The focus is on
analysing the positive and negative influence of Covenant law (comprising both
the ICESCR and its interpretation by the CESCR) on domestic law, both on legal
processes and outcomes.4 The scope of this chapter precludes tracing this influ-
ence in all of the European States,5 virtually all of which ratified the ICESCR early

* The author would like to thank Aslan Abashidze, Ed Bates, Virginia Bras- Gomes, Colm
O’Cinneide, Aleksandra Koneva, Claudia Mahler, Isabel Maillo, and Maksim Usynin, who generously
helped with finding relevant information about the ICESCR’s influence in the four countries studied.
Many thanks to Samantha Besson, Andreas Føllesdal, and Geir Ulfstein for their very helpful comments
on earlier versions of this contribution. All remaining errors are of course my own. I would also like to
thank the Geneva Academy for International Humanitarian Law and Human Rights for hosting me as a
visiting fellow while I conducted the research for this chapter, and the Research Council of Norway for
the financial support provided through its Centres of Excellence Funding Scheme, ‘PluriCourts: The
Legitimacy of the International Judiciary’ (project number 223274).
1 International Covenant on Economic, Social and Cultural Rights (opened for signature 16
December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR or Covenant).
2 eg Jasper Krommendijk, The Domestic Impact and Effectiveness of the Process of State Reporting
under UN Human Rights Treaties in the Netherlands, New Zealand and Finland: Paper-Pushing or Policy
Prompting? (Intersentia 2014) 143–63; Christof Heyns and Frans Viljoen, The Impact of the United
Nations Human Rights Treaties on the Domestic Level (Martinus Nijhoff 2002).
3 Paul O’Connell, ‘The Death of Socio-Economic Rights’ (2011) 74 Modern L Rev 532.
4 For a more detailed definition of ‘legal influence’ that also underlies the analysis in the present
chapter, and for a distinction of ‘influence’ from other concepts (eg ‘compliance’, ‘reception’, and ‘ef-
fectiveness’), see the contribution by Samantha Besson in this volume.
5 For the purpose of the present chapter, the forty-seven member States of the Council of Europe and
Belarus are counted as European States.

216 Influence of the ICESCR in Europe

on.6 The chapter therefore concentrates on four representative countries (Germany,
Russia, Spain, and the United Kingdom)7 and on three broader questions that help
to uncover the wider trends and challenges of the ICESCR’s influence. First, it asks
whether the direct effects of the ICESCR (and of domestic economic, social, and cul-
tural rights (ESCR)) are now widely recognized in the four countries (Section II.A).
In other words, are ESCR today accepted as individual rights that create binding
obligations and can thus have practical implications for government policy, law-
making, domestic jurisprudence, and the distribution of resources within a State,
and can they be enforced (usually by a domestic, regional, or international judi-
ciary)8 similarly to the civil and political rights set out in the International Covenant
on Civil and Political Rights (ICCPR)9 and the European Convention on Human
Rights (ECHR)?10 This question is examined against the background of the well-
known circumstance that the impact of the ICESCR has been hampered in many
States by the fact that its direct effect has been questioned, an attitude which is often
reflected in statements that qualify the ICESCR’s provisions (and domestic ESCR)
as mere ‘aspirations’ guiding social policies, and thus reject their status as individual
rights that create binding obligations. Relatedly, the chapter investigates whether
we can still observe a difference in the approach to ESCR in Eastern and Western
European States, a holdover from the East–West confrontation during which the
Eastern bloc championed ESCR while the West promoted civil and political rights
(Section II.B).11 Second, the chapter discusses the extent to which particularities of
the political and legal systems in the four countries have determined and shaped the
legal influence that the ICESCR has had (Section III). Third, it considers whether
the recent financial and economic crises, which have led to far-reaching interfer-
ences with ESCR in Europe and elsewhere12 and thus attest a limited influence of

6 All European States have ratified the ICESCR, with the exception of Andorra.
7 The criteria for the selection of these countries were: their geographical distribution, their degree of
scepticism towards ESCR (reflecting also the former East–West divide), the way in which the country
in question has been affected by the recent global financial and economic crises, and the author’s lan-
guages abilities.
8 For a more comprehensive discussion of the notion of ‘direct effect’ and the relationship between
international and domestic human rights underlying this article’s analysis, see Samantha Besson’s con-
tribution to this volume (Samantha Besson, ‘The Influence of the Two Covenants on States Parties
across Regions: Lessons for the Role of Comparative Law and of Regions in International Human
Rights Law’).
9 International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16 December
1966, entered into force 23 March 1976) 999 UNTS 171.
10 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR).
11 For a summary of the main arguments and the relevant literature, see Olivier De Schutter,
International Human Rights Law (1st edn, CUP 2010) 740–42. These arguments have been discussed
extensively and refuted by many, eg in Asbjørn Eide, Catarina Krause, and Allan Rosas (eds), Economic,
Social and Cultural Rights: A Textbook (2nd edn, Martinus Nijhoff 2001); David Bilchitz, Poverty and
Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (OUP 2007).
12 As established by the CESCR’s first View adopted under the Optional Protocol to the ICESCR
(OP-ICESCR) (opened for signature 10 December 2008, entered into force 5 May 2016) UN Doc A/
RES/63/117, 48 ILM 256 (2009)), namely in IDG v Spain CESCR Communication No 2/2014 (13
October 2015) UN Doc E/C.12/55/D/2/2014, as discussed in many contributions, including in Aoife
Nolan (ed), Economic and Social Rights after the Financial Crisis (CUP 2014), and Aoife Nolan, ‘Not Fit
217

Introduction 217

the ICESCR, could nonetheless increase awareness for the ICESCR after a long
period of decline of a ‘social Europe’ and the steady downsizing of social protec-
tion systems in many European States, which can be traced back to the ideological
shifts of the 1980s (Section IV).13 It is submitted that such awareness, and thus a
stronger influence of the ICESCR, is highly desirable to ensure a ‘decent life’ for
everyone, including socio-economically disadvantaged individuals,14 and given the
fundamental connection between the protection of human rights, equality, and the
functioning of inclusionary and emancipatory democratic systems15—a connection
that calls for levelling out undue socio-economic inequalities within a polity (and
among polities).16
To paint a comprehensive picture of the various aspects of the broader trends
and challenges characterizing the ICESCR’s legal influence in the four countries,
the chapter conducts comparative research on the four States’ participation in the
CESCR’s reporting process, the influence of the ICESCR and the CESCR’s General
Comments and concluding observations on domestic legislation, legislative pro-
cesses, and policies, on national courts’ jurisprudence, and on civil society’s engage-
ment with and media coverage of the ICESCR and the CESCR’s work.17 Where
indicated, but without any claim of exhaustiveness, the influence of the ICESCR
is compared to the influence of the ICCPR, the ECHR, or other international or
European human rights treaties protecting ESCR.18 Some of the influence of the

for Purpose? Human Rights in Times of Financial and Economic Crisis’ (2015) 4 European Human
Rights L Rev 360.
13 Colm O’Cinneide, ‘Austerity and the Faded Dream of a “Social Europe”’ in Nolan, ESCR
(n 12) 169, 170.
14 For a thorough analysis of the normative foundation of ESCR see Bilchitz, Poverty and Fundamental
Rights (n 11).
15 Richard Burchill, ‘Democracy and the Promotion and Protection of Socio-Economic Rights’
in Mashood Baderin and Robert McCorquodale (eds) Economic, Social and Cultural Rights in Action
(OUP 2007) 361, 366, noting that an understanding of democracy that embraces ESCR would reject a
neo-liberal understanding that sees ‘democracy as limited to a process of choosing leaders, and [letting]
competitive free-market systems dominate the organisation of all other aspects of the economy and so-
ciety.’ Instead, as noted by Susan Marks, it is necessary to establish an understanding that represents ‘an
on-going call to enlarge the opportunities for popular participation in political processes and end social
practices that systematically marginalise some citizens while empowering others’ (Susan Marks, The
Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (OUP 2000) 109);
also David Beetham, Democracy and Human Rights (Polity 1999) c hapter 6.
16 See Burchill, ‘Democracy’ (n 15) 379; CESCR, ‘General Comment 20’ (2 June 2009) UN Doc
E/C.12/GC/20, paras 8–9 and 39.
17 Due to space constraints, not all components of the grid for comparative analysis of Covenant
law influence on domestic law identified in Samantha Besson’s contribution to this volume could be
covered. Moreover, not all examples and evidence collected to identify this influence in Europe can be
presented here.
18 ie Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
(opened for signature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13;
Convention on the Rights of the Child (CRC) (opened for signature 20 November 1989, entered
into force 2 September 1990) 1577 UNTS 3; Convention on the Rights of Persons with Disabilities
(CRPD) (opened for signature 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3; and
the (Revised) European Social Charter ((R)ESCh) (opened for signature 3 May 1996, entered into force
1 July 1999), European Treaty Series (ETS) No 163, which revised the European Social Charter (ESCh)
(opened for signature 18 October 1961, entered into force 26 February 1965) ETS No 35.
218

218 Influence of the ICESCR in Europe

ICESCR on the Council of Europe (CoE) and the European Union (EU), in par-
ticular the jurisprudence of the European Court of Human Rights (ECtHR), the
European Committee of Social Rights (ECSR), and the Court of Justice of the
European Union (CJEU), is also traced.

II. Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect?

Through its General Comments and ‘constructive dialogue’ with the States par-
ties to the ICESCR, the CESCR has worked over the years to counter the afore-
mentioned assumption that the Covenant has no direct effect. In this section, six
developments that indicate an enhanced significance and recognition of ICESCR
rights as individual rights in the four States shall be discussed, pointing towards an
increased influence of the ICESCR (II.A), before giving four examples that high-
light the fact that there is still a certain way to go in order to achieve full recognition
of these rights as human rights on an equal level with the civil and political rights set
out in the ICCPR and the ECHR (II.B).19

A. Signs of increased legal influence

As the first sign of the influence of ICESCR rights, it can be observed that Germany,
Russia, Spain, and the United Kingdom ratified the ICESCR early on,20 and actively
participated in the reporting process to the CESCR and its predecessor—a Working
Group of the Economic and Social Council (ECOSOC)—from the time when it
was set up in 1979. This ratification and participation is on par with the States’ rati-
fication of the ICCPR and their participation in the reporting process before the
UN Human Rights Committee (HRC). In all four States, comprehensive reports
are prepared by a lead ministry that pools information from other relevant minis-
tries and governmental agencies, and reports are submitted on time.21 All four States
regularly send high-level delegations composed of experts from relevant ministries
and governmental agencies to Geneva, and the CESCR recognizes this—and the
high quality of the reports—as a positive feature in its concluding observations.22

19 Note that Russia is an exception when it comes to recognizing the direct effect of ESCR. Whilst
there are of course numerous problems with the implementation of ESCR in Russia, it does have a
far-reaching constitutional ESCR catalogue. ECSR can be invoked before domestic courts, and Russia
(and its predecessor the USSR) has never questioned that ESCR constitute judicially enforceable human
rights.
20 The Federal Republic of Germany, the German Democratic Republic, and the Soviet Union rati-
fied the ICESCR in 1973; Spain did so in 1977, and the United Kingdom in 1976.
21 All four States have so far submitted five or six periodic reports.
22 eg CESCR, ‘Concluding Observations on the Fifth Periodic Report of Germany’ (12 July
2011) UN Doc E/C.12/DEU/CO/5, paras 2–3; CESCR, ‘Concluding Observations on the Fifth
Periodic Report of Russia’ (1 June 2011) UN Doc E/C.12/RUS/CO/5, para 2; CESCR, ‘Concluding
Observations on the Fifth Periodic Report of Spain’ (6 June 2012) UN Doc E/C.12/ESP/CO/5, paras
2–3; CESCR, ‘Concluding Observations on the Combined Fourth and Fifth Periodic Report of the
United Kingdom of Great Britain and Northern Ireland’ (12 June 2009) UN Doc E/C.12/GBR/CO/
5, para 2.
219

Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect? 219

Second, with the exception of the United Kingdom, where these issues still evoke
considerable discussions with the CESCR,23 Germany, Russia, and Spain no longer
question the character of ESCR as human rights or their enforceability (at least not
openly), and they recognize the minimum core approach as an important concept
guiding the progressive realization of ESCR.24
Third, all States have given the Covenant a place in their legal order that is largely
equal to that of the ICCPR and the ECHR25—even if this place varies depending
on the degree of openness of the respective domestic legal order to international law.
Formally, Russia affords the ICESCR the strongest position, whereas it remains very
weak in the United Kingdom. The 1993 Russian Constitution declares that inter-
national treaties are a component part of the Russian legal system,26 and establishes
that ‘if an international treaty of the Russian Federation stipulates other rules than
those stipulated by the law, the rules of the international treaty shall apply’.27 Based
on this provision, the primacy of international human rights treaties (including the
ICESCR) in relation to ordinary laws has been confirmed by the Russian Supreme
Court (RSC), which has also endorsed the direct effect of the ICESCR’s provi-
sions.28 In addition, the Russian Constitution contains an extensive catalogue of
ESCR, the drafting of which has been influenced by the ICESCR.29 In Germany,
the ICESCR was transformed into domestic law by means of federal legislation,30
and has the rank of an ordinary federal law.31 The provisions of the ICESCR have
direct effect in Germany: they are binding on all governmental institutions at fed-
eral and Länder level,32 and can in principle be invoked before domestic courts.
Similarly, in Spain, as a duly concluded and officially published treaty, the ICESCR
is part of the Spanish legal order.33 Even in the United Kingdom, where the ICESCR
has not been transformed into the domestic legal order, and thus cannot be invoked
before domestic courts, the Covenant nonetheless has some influence on legislative
processes, policies, and jurisprudence, as will be discussed further below. The pos-
ition of ESCR more generally in the domestic legal orders is also strengthened by
the fact that other regional and international treaties containing ESCR have been

23 As will be argued further on in this chapter (n 93).

24 Based on the CESCR’s concluding observations on the respective States (n 22) and the author’s
conversations with CESCR members.
25 Note that, among the countries studied, the United Kingdom is the only one that formally gives
the ECHR a much stronger position in its legal order than the ICCPR and the ECHR.
26 Gennady M Danilenko, ‘The New Russian Constitution and International Law’ (1994) 88
AJIL 451.
27 Russian Constitution, 1993, art 15(4), also confirmed by arts 17(1) and 55(1).
28 Resolution of the Plenum of the RSC of 10 October 2003, No 5, paras 1, 4, and 8; Resolution
of the Plenum of the RSC of 5 March 2013, No 4, para 2. This is also in line with the Federal Law on
international treaties of 15 July 1995, No 101-FS, paras 3 and 5(3).
29 Danileko, ‘The New Russian Constitution’ (n 26) 467; Heyns and Viljoen, Impact (n 2) 503. In
addition, the drafting was influenced by the ESCR catalogue of the Soviet Constitution.
30 Bundesgesetzblatt (BGBl) II 1973/428, 1570.
31 German Constitution, 1949, art 59(2).
32 In accordance with art 20(3) of the German Constitution, 1949; confirmed by the FCC, 2 BvR
2125/01, 19 September 2006, para 52.
33 Spanish Constitution, 1978, art 96(1).
20

220 Influence of the ICESCR in Europe

transformed into the respective domestic legal orders of three of the States under
study with direct effect,34 with the United Kingdom being the exception.
Fourth, domestic courts in all four countries have engaged with the ICESCR,
even though the extent and effect of this engagement varies once more. The Russian
Constitutional Court (RCC) referred to the ICESCR fifty-eight times between
1992 and December 2016,35 and the Spanish Constitutional Court (SCC) had
done so on fifty-one occasions by December 2016, with the first reference appearing
in 1981.36 In the jurisprudence of the German Federal Constitutional Court (FCC)
and the UK Supreme Court (UKSC) and its predecessor, the House of Lords (HL),
references to the ICESCR are hardly found. From the ICESCR’s entry into force
for both countries in 1976 until December 2016, the FCC mentioned the ICESCR
only five times,37 and the UKSC/HL referred to the ICESCR only in four cases,38
two of which included this reference only because they cited other material that
contained it.39 References to the (R)ESCh, CEDAW, CRC, and CRPD are also
found in the work of all four apex courts,40 confirming domestic courts’ readiness
to enforce ESCR more broadly.41 In parallel, at the European level, the reporting
process before the ECSR has gathered momentum and more collective complaints
about alleged violations of the (R)ESCh have been submitted.42 At the same time,

34 The (R)ESCh, CEDAW, CPED, and CRC have been transformed into German, Russian, and
Spanish law in a similar way as the ICESCR.
35 Search conducted at <http://ksportal.garant.ru:8081/SESSION/PILOT/main.htm> accessed 30
March 2017. No research was conducted on the influence of the ICESCR on the jurisprudence of the
Supreme Court of the Soviet Union, which ceased to exist in 1992.
36 Search conducted at <http://hj.tribunalconstitucional.es/es-ES/Resolucion/List> accessed 30
March 2017.
37 Search conducted at <www.bundesverfassungsgericht.de/SiteGlobals/Forms/Suche/
Entscheidungensuche_Formular.html?language_=de> accessed 30 March 2017.
38 Search conducted at <www.bailii.org> accessed 30 March 2017.
39 AA v Secretary of State for the Home Department [2013] UKSC 49; A & Ors v Secretary of State for
the Home Department [2004] UKHL 56, para 62.
40 By December 2016, the FCC had referred to the CRC three times (since 1992 [note: this and
the following dates refer to the year in which the respective treaties entered into force for the respective
country]); six times to the CRPD (since 2009); never to the CEDAW (since 1985); and only twice to
the ESCh (since 1965). The RCC referred to the CRC seventy-seven times (since 1990); three times
to the CRPD (since 2012); three times to the CEDAW (since 1981); and eleven times to the (R)ESCh
(since 2009). The SCC referred to the CRC twenty times (since 1990); four times to the CRPD (since
2007); twice to the CEDAW (since 1984); and forty-eight times to the ESCh (since 1980). The UKHL/
SC referred to the CRC forty-one times (since 1991); five times to the CRPD (since 2009); five times to
the CEDAW (since 1986); and never to the ESCh (since 1962).
41 More frequent references to the CRC and CRPD than to the ICESCR are likely due to the fact
that these instruments contain more specific provisions than the ICESCR and that NGOs specifically
promoting the rights of children and persons with disabilities actively invoke these Conventions before
domestic courts.
42 See the overview in the ECSR’s ‘Activity Report 2015’ (2016) <https://rm.coe.int/CoERMPu
blicCommonSearchServices/DisplayDCTMContent?documentId=09000016805ab9c7> accessed 30
March 2017; and the analysis by Holly Cullen, ‘The Collective Complaints System of the European
Social Charter: Interpretative Methods of the European Committee of Social Rights’ (2009) 9 Human
Rights L Rev 61. Note, however, that none of the four States analysed here have ratified the Additional
Protocol to the ESCh providing for a System of Collective Complaints (opened for signature 9
September 1995, entered into force 1 July 1998) ETS No 158.
21

Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect? 221

the number of references to the ICESCR in the work of the ECSR and the ECtHR
has increased.
There are some judgments in which the respective courts engaged with the sub-
stance of the ICESCR and where this had an influence on the outcome of the case.
For example, in March 2015, the RCC declared parts of a Russian law that provided
for the deportation of HIV-positive foreigners or stateless persons legally residing
in Russia with the aim of protecting public health to be unconstitutional. The RCC
relied inter alia on the ICESCR’s non-discrimination clause,43 and observed that the
CESCR, in its General Comment 20, had unambiguously established that among
the prohibited grounds for discrimination under ‘other status’ was an individual’s
health status, explicitly including people suffering from HIV/AIDS.44 Another ex-
ample is a 2012 judgment of the FCC wherein the FCC concretized the scope and
content of an autonomous fundamental right to a dignified minimum existence
under the German Constitution.45 The judgment concerned the unconstitution-
ality of the Asylum Seekers Benefits Act’s provisions on cash benefits, and the FCC
relied on the ICESCR to further substantiate the existence of this constitutional
right.46 Both dimensions of the right—the individual right to have one’s physical
existence secured as well as the right to maintain interpersonal relationships and a
minimum of participation in social, cultural, and political life—were reinforced
with references to ICESCR articles 9 and 15(1)(a).47
Fifth, in all four countries, the ICESCR and the CESCR’s output have had some
influence on ordinary legislation, legislative processes, and policies, even if this in-
fluence might not extend so far as to affect the ultimate content of a certain piece of
legislation or the outcome of a legislative process. In addition, this influence can take
many different routes. Influence on ordinary legislation has been noted in Russia
and, more recently, on legislation adopted by regional parliaments in Spain.
Concerning Russia, the CESCR observed that the revision process of the Russian
Labour Code, which was amended throughout the 1990s and adopted in 2001,
was inspired by the ICESCR.48 In addition, many ordinary Russian laws refer to
international human rights law in general in their preambles or operative para-
graphs. An example is the federal framework law on health care for Russian citizens
of November 2011.49 Article 5 of the framework law sets out that ‘health interven-
tions should be conducted based on the recognition, observance and protection of

43 ICESCR art 2(2).

44 Judgment of the RCC of 12 March 2015, No 4-P, paras 2.1 and 4.
45 FCC, 1 BvL 10/10, 18 July 2012. 46 ibid para 75.
47 ibid para 70. Surprisingly, in a 2010 judgment (1 BvL 1/09, 9 February 2010) wherein the FCC
concretized the scope of the right to a dignified minimum existence, it did not refer to the ICESCR.
48 Labour Code of the Russian Federation of 30 December 2001, N 197-FS; CESCR, ‘Concluding
Observations on the Third Periodic Report of Russia’ (20 May 1997) UN Doc E/C.12/1/Add.13, para
5; and CESCR, ‘Concluding Observations on the Fourth Periodic Report of Russia’ (12 December
2003) UN Doc E/C.12/1/Add.94, para 7.
49 Documents relating to the drafting history of the law do not, however, reveal that the ICESCR
or any document issued by the CESCR was referred to during this process. However, references to the
right to health under the Russian Constitution were made (see <http://asozd2.duma.gov.ru/main.nsf/
(Spravka)?OpenAgent&RN=534829-5&02> accessed 30 March 2017).
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222 Influence of the ICESCR in Europe

human rights and in accordance with universally recognized principles and norms
of international law,’50 and contains a strong anti-discrimination clause.51 The law
furthermore establishes the priority of patients’ interests in the provision of health
care as a fundamental principle,52 something the CESCR’s 2003 concluding obser-
vations on the Russian State report had recommended.53
In Spain, regional parliaments adopted legislation that qualifies ESCR as ‘sub-
jective rights’ and gives individuals the right to invoke them before domestic courts.
These legislative acts have been supported with references to the ICESCR in their
preambles.54 They concern the right to housing and include provisions that recog-
nize a right to occupy dwellings on the part of those who live in them but who do not
have the resources to buy (their) homes or pay their mortgages, and are not provided
with alternative housing by the authorities.55
The influence of the ICESCR on legislative processes can be observed in all four
countries under study. In some instances, legislation has been adopted that estab-
lishes a concrete and measurable mechanism for the progressive realization of ob-
ligations under the ICESCR. An example is the 2010 UK Child Poverty Act.56
While human rights language had been absent in the government-initiated Child
Poverty Bill,57 the UK Parliament’s Joint Committee on Human Rights (JCHR)
brought in this language in its legislative scrutiny report.58 The Act enshrined the
government’s commitment to eradicating child poverty by 2020 in law, and thus
constituted a mechanism to measure concrete steps towards the progressive real-
ization of the UK’s obligations under ICESCR articles 2(1) and 11 as well as CRC
article 27.59 To some extent, this has been repeated in the UK Equality Act (2010),

50 Federal Law of 21 November 2011, N 323-FS, art 5(1). 51 ibid arts 5(2) and (3).
52 ibid art 6.
53 CESCR, ‘Concluding Observations: Fourth Report of Russia’ (n 48) paras 32 and 60.
54 See eg Ley 3/2015, 18 June 2015, de Vivienda; Ley 4/2013, 1 October 2013, de medidas para
asegurar el cumplimiento de la función social de la vivienda, Comunidad Autónoma de Andalucía; and
Ley 24/2015, 29 July 2015, de medidas urgentes para afrontar la emergencia en el ámbito de la vivienda
y la pobreza energética, Comunidad Autónoma de Cataluña.
55 Generally, see the analysis by Emilio José Gómez Ciriano, ‘La protección de los derechos
económicos, sociales y culturales desde una perspectiva diacrónica y comparada: Estudio en cinco
países europeos’, VII Informe sobre exclusión y desarrollo social en España 2014, documento de trabajo
8.4 <www.foessa2014.es/informe/uploaded/documentos_trabajo/15102014153319_5781.pdf> ac-
cessed 30 March 2017.
56 Child Poverty Act (2010) (ch 9). Other prominent examples are the Equality Act (2010) and the
Apprenticeships, Skills, Children and Learning Act (2009).
57 Ellie Palmer, ‘The Child Poverty Act 2010: Holding Government to Account for Promises in a
Recessionary Climate?’ (2010) 3 European Human Rights L Rev 305, 307.
58 JCHR, ‘Legislative Scrutiny: Child Poverty Bill’, HL Paper No 183, HC 1114 (28th report of
session 2008–09) para 1.22; Murray Hunt, ‘Enhancing Parliament’s Role in Relation to Economic and
Social Rights’ (2010) 3 European Human Rights L Rev 242.
59 For a critical analysis, also in light of the UK’s obligations under the ICESCR, see Palmer, ‘Child
Poverty Act’ (n 57) 307, 310, and 314. Regrettably, the UK government repealed the duty to meet
time-bound targets on child poverty in 2016. The CESCR has expressed concerns about this measure;
see CESCR, ‘Concluding Observations on the Sixth Periodic Report of the United Kingdom of Great
Britain and Northern Ireland’ (14 July 2016) UN Doc E/C.12/GBR/CO/6, paras 47–48.
23

Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect? 223

which establishes a public sector duty to reduce inequalities resulting from socio-
economic disadvantage.60
In Russia, the influence of the ICESCR on legislation, policies, and legislative
processes comes via the work of the High Commissioner for Human Rights in the
Russian Federation and of the Council for Civil Society and Human Rights under
the President of the Russian Federation. Both entities have been tasked with en-
suring that Russian legislation conforms to the ICESCR and other international
human rights treaties. Even though they prefer to base their arguments on the
ESCR contained in the Russian Constitution, and thus rarely expressly refer to
the ICESCR or the CESCR’s concluding observations, both entities have urged the
adoption of legislative and other measures that would contribute to the implemen-
tation of ICESCR law. For example, the 2014 report of the High Commissioner
reveals that she has taken many initiatives to enhance peoples’ ability to enjoy their
rights to health, education, housing, and social security,61 and has called on the gov-
ernment to increase minimum wages to address the growing number of the ‘working
poor’.62 The Council for Civil Society and Human Rights, a consultative body to
the President, has a permanent commission on social rights which is involved in im-
proving peoples’ access to health care in Russia, also in regard to many issues that the
CESCR flagged in its 2011 concluding observations.63 Currently, the Council also
has a temporary Working Group on the Realization of Citizens’ Right to Affordable
Housing,64 which deals with many issues concerning access to housing, in par-
ticular access by vulnerable groups, and has issued recommendations to change the
Housing Act.65 Like the recommendations of the JCHR to the UK Parliament and
government, the suggestions of the Russian High Commissioner and the Council
have recommendatory character only. It is difficult to assess their exact influence
without conducting a more detailed and systematic study. However, due to the fact
that the issues related to the implementation of ESCR are relatively less controversial
than many other human rights questions in the current Russian political climate,66

60 Equality Act (2010) s 1(1) and s 149. For a comprehensive discussion see Sandra Fredman,
‘Positive Duties and Socio-economic Disadvantage: Bringing Disadvantage onto the Equality Agenda’
(2010) 3 European Human Rights L Rev 290.
61 High Commissioner for Human Rights in the Russian Federation, ‘2014 Report’ <http://
ombudsmanrf.org/www/upload/files/docs/appeals/doklad2014.pdf> accessed 30 March 2017, 27–29,
60, 67–72, 94, 104 (health); 30–31, 87–88, 104 (education); 28, 73, 75, 78–82 (housing); 72, 104
(social security).
62 ibid 76–77.
63 ‘Совет при Президенте Российской Федерации по развитию гражданского общества и правам
человека, Постоянные комиссии Совета, ПК 2—по социальным правам’ <http://president-sovet.
ru/about/comissions/permanent/read/2/> accessed 30 March 2017, also listing the relevant documents
issued by the commission.
64 ‘Совет при Президенте Российской Федерации по развитию гражданского общества и правам
человека, Временная рабочая группа по реализации права граждан на доступное жилье’ <http://
president-sovet.ru/about/comissions/temporary/read/3/> accessed 30 March 2017.
65 Рекомендации по итогам специального заседания ‘Проблемы реализации прав граждан
на доступное жилье и пути преодоления социальной исключенности’ (30 May 2014) <http://
president-sovet.ru/documents/read/211/> accessed 30 March 2017).
66 Thus, despite continuing efforts to this end, neither the High Commissioner nor the Council
succeeded in preventing the adoption of laws unduly restricting civil and political rights, eg laws classi-
fying NGOs receiving funding from abroad and involved in ‘political activities’ as ‘foreign agents’, the
24

224 Influence of the ICESCR in Europe

it seems that the recommendations in this area have a slightly greater chance of being
taken on by the State Duma, the relevant ministries, or the President.67
In Germany, the ICESCR and the CESCR’s concluding observations and General
Comments have featured in the activities of opposition parties. These parties have
initiated bills directly relating to the ICESCR, or requested the government to pre-
pare relevant bills. Among many examples are a bill introduced by the Green Party
on the ratification of the OP-ICESCR in 201268 and a 2009 bill introduced by the
party Die Linke calling for the inclusion of ESCR in the German Constitution.69
Opposition parties have furthermore put critical questions to the government con-
cerning the implementation of the ICESCR and the CESCR’s concluding obser-
vations in Germany,70 the relevance of the obligations and responsibilities flowing
from the Covenant for governmental acts and omissions beyond German borders,
and the activity of Germany as a member of international organisations. This has
happened, for instance, in regard to development cooperation71 and in the context
of austerity policies at the EU level, which have been strongly promoted by the
German government in concert with the International Monetary Fund (IMF).72
Also in Spain, the ICESCR has been (re-)discovered by opposition parties: in prep-
aration for the general elections in December 2015, the then recently-established
political party Podemos presented an initiative on the right to housing with reference
to ICESCR article 11, the aim of which was to ensure that people without suffi-
cient economic resources to pay their mortgages would be protected from eviction
and provided with affordable housing.73 In addition, the situation in Spain reveals

controversial laws prohibiting ‘gay propaganda’, laws that unduly limit the right to freedom of assembly,
laws that legalize (excessive) use of force by the police, and laws that tighten the State’s control over the
Internet. On this, see the interviews with the chairman of the Council, Mikhail Fedotov, in Александр
Мельман, ‘Михаил Федотов: “Я знаю людей, которые звали себя демократами, а были ворьем”’,
Московский комсомолец (Moscow, 18 September 2014), and Елена Мухаметшина, ‘Россия не имеет
права на новую гражданскую войну’, Ведомости (Moscow, 30 March 2015).
67 This is confirmed, in regard to some ESCR-related activities, in the 2014 report of the High
Commissioner (n 61) 28–29, 49, 68–69, 76, 82, and 94.
68 Entwurf eines Gesetzes zum Fakultativprotokoll zum Internationalen Pakt über wirtschaftliche,
soziale und kulturelle Rechte, Initiative der Fraktion Bündnis 90/Die Grünen, Drucksache des
Bundestages (BT) 18/8452, 24 January 2012; see also Entwurf eines Gesetzes zur Gewährleistung der
Wahrnehmung sozialer Rechte von Menschen ohne Aufenthaltsstatus, Initiative der Fraktion Bündnis
90/Die Grünen, Drucksache BT 18/6278, 8 October 2015, III.
69 Entwurf eines Gesetzes zur Änderung des Grundgesetzes (Aufnahme sozialer Grundrechte in das
Grundgesetz), Initiative der Fraktion Die Linke, Drucksache BT 16/13791, 14 July 2009.
70 Antrag der Fraktion Die Linke, ‘Konkrete Maßnahmen zur Stärkung wirtschaftlicher, sozialer
und kultureller Rechte ergreifen’, Drucksache BT 14/8502, 13 March 2002; Antrag der Fraktion Die
Linke, ‘Vom Anspruch zur Wirklichkeit: Menschenrechte in Deutschland schützen, respektieren und
gewährleisten’, Drucksache BT 17/5390, 6 April 2011; and Große Anfrage der Fraktion Die Linke,
‘Abschließende Bemerkungen der UN zum Staatenbericht an den Ausschuss für wirtschaftliche, soziale
und kulturelle Rechte’, Drucksache BT 17/8966, 9 March 2012.
71 Antrag der Fraktion Bündnis 90/ Die Grünen, ‘Für eine kohärente Politikstrategie zur
Überwindung des Hungers’, Drucksache BT 17/13492, 15 May 2013; Antrag der Fraktion Bündnis 90/
Die Grünen, ‘Aktionsplan Soziale Sicherung: Ein Beitrag zur weltweiten sozialen Wende’, Drucksache
BT 17/11665, 28 November 2012.
72 Antrag der Fraktion Die Linke, ‘Kürzungspolitik beenden -Soziale Errungenschaften verteidigen
-Soziales Europa schaffen’, Drucksache BT 18/1116, 9 April 2014.
73 cf the Podemos party programme <http://podemos.info/wp-content/uploads/2015/05/prog_
marco_12.pdf> accessed 30 March 2017.
25

Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect? 225

another way in which the ICESCR and the CESCR’s concluding observations and
General Comments can influence domestic legislation and policies: it is likely that
they influenced Spain’s national human rights plan, which was approved by the
Spanish parliament in 2008, at a time when the Socialist Party (PSOE) was in gov-
ernment. Of the 172 measures suggested in the plan, around fifty-two related to the
promotion and protection of ESCR.74 In addition, measure number 5 of the plan
recommended the elaboration of a strategy to enhance compliance with the recom-
mendations of various UN human rights treaty bodies.75 Spain’s ratification of the
OP-ICESCR is a result of the plan’s implementation.
Sixth, in all four countries, civil society engagement with Covenant law has in-
creased in recent years.76 This is complemented by growing engagement with other
international human rights treaties containing ESCR, in particular the CRC and the
CRPD, which are often promoted by strong networks of non-governmental organiza-
tions (NGOs) advocating children’s rights and the rights of persons with disabilities.77
Whilst these examples hint at an increased influence of the ICESCR, including
an increased recognition of the direct effect of ESCR, there are other developments
that show that this influence and recognition do not yet compare to the level enjoyed
by the ICCPR and the ECHR.

B. Signs revealing the limits of legal influence

There are a number of signs indicating the limits of the ICESCR’s legal influence.
First, the CESCR’s periodic concluding observations concerning all four States re-
veal a number of repeated recommendations to take legislative measures toward
improving the protection of ESCR. To name but one example among many per
country, the Committee has repeatedly called on Germany to remove the domestic
law prohibition on public servants’ right to strike;78 on Russia to adopt legislative
measures that would unequivocally decouple the enjoyment of many ESCR and
benefits from the requirement of valid residence registration;79 on Spain to enhance
the protection of migrants’ ESCR;80 and on the United Kingdom to address the

74 Spain’s national human rights plan of 2008 <www.ohchr.org/Documents/Issues/NHRA/Spain_

NHRAP.pdf> accessed 30 March 2017.
75 ibid 11 (medida 5). 76 As discussed in Section IV.
77 See the (alternative) submissions of NGOs and charities in the reporting processes before the re-
spective treaty bodies <www.ohchr.org/EN/Countries/Pages/HumanRightsintheWorld.aspx> accessed
30 March 2017.
78 CESCR, ‘Concluding Observations on the Third Periodic Report of Germany’ (4 December
1998) UN Doc E/C.12/1/Add.29, paras 19 and 31; CESCR, ‘Concluding Observations on the Fourth
Periodic Report of Germany’ (24 September 2001) UN Doc E/C.12/1/Add.68, para 22; CESCR,
‘Concluding Observations: Fifth Report of Germany’ (n 22) para 20.
79 CESCR, ‘Concluding Observations: Fifth Report of Russia’ (n 22) para 8; CESCR, ‘Concluding
Observations: Fourth Report of Russia’ (n 48) para 12.
80 CESCR, ‘Concluding Observations: Fifth Report of Spain’ (n 22) paras 11 and 19; Concluding
Observations—Spain, UN Doc E/C.12/1/Add.99, 7 June 2004, paras 7 and 24; CESCR, ‘Concluding
Observations on the Third Periodic Report of Spain’ (28 May 1996) UN Doc E/C.12/1/Add.2, para 17.
26

226 Influence of the ICESCR in Europe

high domestic levels of poverty, including through legislative measures.81 This tenta-
tively indicates that none of the four States systematically implements the CESCR’s
concluding observations82 or uses the process of preparing the periodic reports to
examine domestic law and policies for their compatibility with the ICESCR and its
principles, in particular the principle of ‘progressive realization’ in line with ‘max-
imum available resources’.83
Second, with the exception of Russia, the number of ESCR in the respective
domestic constitutions remains limited, and not all ICESCR rights are effectively
protected by ordinary laws. It is in this area where the greatest difference between
the influence of the ICESCR and the ICCPR (or the ECHR) can be noted, as
Germany’s, Spain’s, and even the UK’s constitutional laws include judicially enforce-
able civil and political rights. Also at the regional European level, the legal protection
of ESCR remains weaker than that of civil and political rights,84 including when it
comes to their judicial enforcement.85 Moreover, while all four States ratified the
OP-ICCPR,86 only Spain is party to the OP-ICESCR, and none of the four States
has ratified the 1995 Additional Protocol to the (R)ESCh providing for a system of
collective complaints before the ECSR—facts that reflect lasting scepticism towards
accepting ESCR as enforceable human rights.
In addition, in Spain and the United Kingdom, the direct effect of the ICESCR
and domestic ESCR continues to be challenged—including when compared to the
ICCPR, the ECHR, and domestic civil and political rights—due to the way in which
the Covenant is incorporated and/or the way in which its position in domestic law is
understood by the respective apex courts. For example, the Spanish Constitution es-
tablishes that its text should be interpreted in conformity with international human

81 CESCR, ‘Concluding Observations: Fourth and Fifth Report of the UK’ (n 22) para 28; CESCR,
‘Concluding Observations on the Fourth Periodic Report of the United Kingdom’ (5 June 2002) UN
Doc E/C.12/1/Add.79, paras 18 and 37; CESCR, ‘Concluding Observations on the Third Periodic
Report of the United Kingdom’ (12 December 1997) UN Doc E/C.12/1/Add.19, paras 9 and 22.
82 Concerning the United Kingdom, see Ed Bates, ‘The United Kingdom and the International
Covenant on Economic, Social and Cultural Rights’ in Mashood Baderin and Robert McCorquodale
(eds), Economic, Social and Cultural Rights in Action (OUP 2007) 258, 272–82. The author’s conversa-
tions with CESCR members also support this assumption.
83 ICESCR, art 2(1), and also the objectives of the reporting process identified by the CESCR in its
‘General Comment 1’ in ‘Compilation of General Comments and General Recommendations Adopted
by Human Rights Treaty Bodies’ (2003) UN Doc HRI/GEN/1/Rev.6, 8, para 2.
84 See eg the EU Fundamental Rights Charter (Charter of Fundamental Rights of the European
Union, OJ C 326, 26 October 2012, 391–407), which, in contrast with the treatment of civil and pol-
itical rights, classifies some ESCR not as fundamental (individual) rights but as principles (art 52(2) of
the Charter). Note, however, that the difference between rights and principles remains unclear. For an
analysis, see Jasper Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of the
EU Charter’s Principles in the Case Law of the Court of Justice’ (2015) 11 European Constitutional L
Rev 321. While the (R)ESCh establishes ESCR as individual rights, it allows parties to pick and choose
the provisions to which they wish to be bound. The hope that States would opt in to more provisions
over time has not yet materialized. Of the States analysed here, only Russia has ratified the (R)ESCh.
85 In contrast to the individual complaint procedure under the ECHR, the 1995 complaint system
under the (R)ESCh does not permit individual complaints to the ECSR, but only collective complaints
by some NGOs.
86 First Optional Protocol to the ICCPR (opened for signature 16 December 1966, entered into
force 23 March 1971) 999 UNTS 171.
27

Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect? 227

rights treaties.87 The SCC has, however, maintained that this does not give consti-
tutional individual rights status to the rights set out in these treaties, but that they
only serve to complement the provisions found in the Spanish Constitution itself.88
The ESCR provisions in the Spanish Constitution are established as guiding prin-
ciples of social and economic policy, and not as individual rights.89 The ESCR in the
Spanish Constitution and the ICESCR therefore only inform substantive legislation
and judicial practice as general principles, but cannot be invoked before domestic
courts as self-standing individual rights.90
In the United Kingdom, due to a strict dualist tradition, non-transformed inter-
national treaties are not considered part of the UK legal system.91 While some
human rights treaties containing primarily civil and political rights have been trans-
formed into UK law, the ICESCR is not among them. On the contrary, as expressed
in its reports to the CESCR and reiterated in the ‘constructive dialogue’ with the
Committee, the government has no intention of doing so any time soon.92 In its
submissions to the CESCR, the UK government also maintains that the provisions
of the Covenant ‘constitute principles and programmatic objectives rather than legal
obligations’,93 and cannot therefore be enforced by domestic courts or other au-
thorities. Moreover, when the civil and political rights of the ECHR were ‘consti-
tutionalized’ in the UK legal order through the adoption of the Human Rights Act
1998, doing the same for the rights set out in the ICESCR or (R)ESCh was not even
considered.94
Third, overall and despite the aforementioned increase in references to the
ICESCR by domestic apex courts, engagement with the actual substance of
Covenant law remains very limited and the outcome of a case is rarely influenced
by this engagement. Most of the time, the ICESCR is mentioned only in passing.
In many cases decided by the RCC (and the RSC), the ICESCR is only listed to-
gether with other relevant international human rights treaties.95 This is usually done

87 Spanish Constitution, art 10(2). 88 SCC, judgment 36/1991, 14 February 1991.

89 Spanish Constitution, arts 53(3) and 39–52.
90 Spanish Constitution, art 53(3), as confirmed by the SCC, judgment 247/2007, 12 December
2007. See also the detailed discussion of ESCR under Spanish constitutional law as complemented by
the ICESCR in María José Añón and Gerardo Pisarello, ‘The Protection of Social Rights in the Spanish
Constitutional System’, in Fons Coomans (ed), Justiciability of Economic and Social Rights (Intersentia
2006) 67.
91 Bharat Malkani, ‘Human Rights Treaties in the English Legal System’ [2011] Public Law 554,
554–55.
92 See the most recent report of the UK government, which the Committee examined in its 58th
session in June 2016 (CESCR, ‘Sixth Periodic Report of Great Britain’ (25 September 2014) UN Doc
E/C.12/GBR.6, para 11).
93 The Committee has strongly criticized this position. cf CESCR, Concluding Observations: Third
Periodic Report of the United Kingdom’ (n 81) paras 10 and 21; Concluding Observations: Fourth
Periodic Report of the United Kingdom’ (n 81) paras 11 and 24; Concluding Observations: Fourth and
Fifth Periodic Report of the United Kingdom (n 22) para 13; ‘Concluding Observations: Sixth Periodic
Report of the United Kingdom’ (n 59) paras 5 and 6.
94 As pointed out by Bates, ‘The UK and the ICESCR’ (n 82) 266.
95 eg judgment of the RCC of 17 January 2013, No 1-P, para 2; judgment of the RCC of 24
October 2013, No 22-P, para 2; and the analysis by Александра Конева ‘Комитет по экономическим,
социальным и культурным правам о статусе Международного пакта об экономических, социальных
28

228 Influence of the ICESCR in Europe

to confirm the findings that are made on the basis of the ESCR contained in the
Russian Constitution.96 This can also be observed in Germany97 and Spain.98 In the
two judgments in which the UKSC/HL referred to the ICESCR, findings based on
international treaties that have been incorporated into UK law—the ECHR and the
UN Refugee Convention99—were confirmed through these references.100 The very
few express references made to the CESCR’s General Comments by domestic courts
also reflect this limited influence on domestic jurisprudence. Only two such refer-
ences each were found in the FCC’s jurisprudence,101 that of the RCC,102 and that
of the SCC,103 respectively, and none in that of the UKSC/HL. The RSC has further
pointed out the recommendatory character of General Comments,104 and the SCC
has observed that, under the Spanish Constitution, it is only required to interpret
Spanish law in conformity with ‘international treaties’ ratified by Spain that create
binding obligations. General Comments do not, it has held, generate such obliga-
tions.105 Overall, one can observe that domestic courts in all four countries do not
review in detail whether an interpretation of domestic law in light of the relevant art-
icles of the ICESCR and their interpretation by the CESCR would lead to a different
outcome than their own interpretation based primarily on domestic sources. Thus,
the Covenant has no noticeable influence on the outcome of the courts’ decisions.
Similar patterns can be observed when it comes to domestic courts’ engagement
with the CEDAW, CRC, CRPD, and (R)ESCh or with the guidance of the relevant
international and European monitoring bodies.106 By contrast, engagement with

и культурных правах 1976 г. в национальных правовых системах применительно к Российской

Федерации’ (2015) 12–13 (unpublished, on file with author) (hereafter Koneva, ‘CESCR’).
96 See eg ruling of the RCC of 5 November 2003, No 343-О, para 3; judgment of the RCC of 24
January 2002, No 3-P, para 2.1; ruling of the RCC of 8 June 2010, No 13-P, para 2; ruling of the RCC
of 2 July 2015, No 1539-О, para 3; Koneva, ‘CESCR’ (n 95) 12–13.
97 FCC, 2 BvL 1/03, 26 January 2005, para 72; FCC, 1 BvL 1/08, 8 May 2013.
98 eg SCC, judgment 10/2014, 27 January 2014; SCC, judgment 188/2013, 4 November 2013;
SCC, judgment 247/2007, 12 December 2007.
99 Convention relating to the Status of Refugees (opened for signature 28 July 1951, entered into
force 22 April 1954) 189 UNTS 137.
100 Quila & Anor v Secretary of State for the Home Department [2011] UKSC 45, as per Lady Hale,
para 66; Januzi v Secretary of State for the Home Department & Ors [2006] UKHL 5.
101 FCC, 1 BvL 1/08, 8 May 2013, para 43, mentioning CESCR, ‘General Comment 13’ in
‘Compilation of General Comments’ (2003) (n 83) 70; FCC, 1 BvR 1842/11, 23 October 2013, para
88, referring to CESCR, ‘General Comment 17’ (2006) UN Doc E/C.12/GC/17.
102 Judgment of the RCC of 12 March 2015, No 4-P/2015, para 2(1); ruling of the RCC of 20
October 2016, No 20-P/2016, para 2.
103 SCC, judgment 247/2007, 12 December 2007; SCC, judgment 110/2011, 22 June 2011.
104 Resolution of the Plenum of the RSC of 10 December 2003, No 5, para 16. In another docu-
ment, summarizing the relevant Views of UN human rights treaty bodies that issue decisions on in-
dividual complaints, the RSC has referred to these Views as subsequent practice under art 31(3)(b) of
the Vienna Convention on the Law Treaties (opened for signature 23 May 1969, entered into force
27 January 1980) 1155 UNTS 331) that should be taken into account by Russian courts, see RSC,
Правовые позиции Комитета ООН по правам человека, Комитета ООН по ликвидации расовой
дискриминации, Комитета ООН по ликвидации дискриминации в отношении женщин, Комитета
ООН по правам инвалидов и практика их реализации при рассмотрении конкретных сообщений
<www.vsrf.ru/Show_pdf.php?Id=8853> accessed 30 March 2017.
105 SCC, judgment 247/2007, 12 December 2007.
106 A great majority of the references to the CEDAW, CRC, CRPD, and (R)ESCh in the decisions
counted in this chapter (n 40) are made in passing. Very few references to the General Comments of the
29

Influence of the ICESCR by Acceptance of ESCRs’ Direct Effect? 229

the ECHR and the ECtHR’s jurisprudence is more extensive, and their influence
on the outcome of the respective domestic courts’ decisions is much stronger.107
Additionally, despite the existence of the ECHR and the ECtHR, the influence of
the ICCPR on domestic courts in the four countries seems to be greater than that
of the ICESCR.108 This is also observable in regard to the ECHR’s influence on the
jurisprudence of the CJEU.109
Furthermore, in some lower courts’ decisions in Germany and the United
Kingdom, doubts about the suitability of ICESCR rights for judicial enforcement
are still prevalent. In Germany, some lower courts reject applying the ICESCR
due to its perceived vagueness or due to the fact that it has not been incorpor-
ated also at the level of the Länder through legislation adopted by the respective
Länder parliaments,110 even though these positions contradict the pronouncements
of the FCC.111 In the United Kingdom, a few judgments of Courts of Appeal, High
Courts, and Immigration Tribunals refer to the ICESCR. Some reiterate that the
ICESCR does not form part of the UK legal order and thus cannot be applied by
UK courts;112 in other judgments, the UK courts deny that the provisions of the
ICESCR establish individual rights.113
Fourth, the positive influence of the ICESCR on domestic legislation, legislative
processes, and policies remains limited. For example, the influence of opposition
parties’ aforementioned engagement with the ICESCR and the CESCR’s General
Comments and concluding observations in the German Bundestag are marginal at
best. While the government gives oral or written answers to these ICESCR-related

CRC Committee were found in the decisions of the FCC (one) and the UKHL/SC (six); one reference
was found to the General Comments of the CRPD Committee in the jurisprudence of the FCC (none
in that of the other three apex courts); no references to General Comments of the CEDAW Committee
were found in any of the four apex courts.
107 For a comprehensive study, see Helen Keller and Alec Stone Sweet, A Europe of Rights: The Impact
of the ECHR on National Legal Systems (OUP 2008).
108 All four of the apex courts under consideration have referred to the ICCPR more frequently than
to the ICESCR in the same timespan (cf Section II.A): FCC (sixteen references to the ICCPR), RCC
(425 such references), SCC (382 such references), and UKHL/SC (fifteen such references). Ten refer-
ences to the HRC’s General Comments have also been found in the UKHL/SC, and two in the RCC.
109 While the CJEU engages with the ECHR and ECtHR jurisprudence, it very rarely re-
fers to the ICESCR, the ICCPR, or the (R)ESCh. For details, see Sarah Schadendorf, ‘Die UN-
Menschenrechtsverträge im Grundrechtsgefüge der Europäischen Union’ (2015) 1 Europarecht 28.
Note, however, that the EU has been a party to the CRPD since 2010. This has led to some decisions
in which the CJEU adapted EU law provisions to the higher protection offered under the CPRD (see
ibid 31).
110 eg Higher Administrative Court of Nordrhein-Westfalen, 15 A 1596/07, 9 October 2007;
Administrative Court of Ansbach, AN 2 K 07.00603, 7 August 2008.
111 See the German Constitution, art 20(3), as confirmed by the FCC, 2 BvR 2125/01, 19 September
2006, para 52, and the discussion by Valentin Aichele, ‘Die UN-Behindertenrechtskonvention in der
gerichtlichen Praxis’ (2011) 10 Anwaltsblatt 727, 730; Claudia Mahler, ‘Wirtschaftliche, soziale und
kulturelle Rechte sind einklagbar!’ (2013) 4 Anwaltsblatt 245, 247.
112 cf ‘B’ & Ors v Secretary of State for the Foreign & Commonwealth Office [2004] EWCA Civ 1344,
para 90; R (Hurley and Moore) v Secretary of State for Business Innovation & Skills [2012] EWHC 201
(Admin) paras 43–44; The Ministry of Justice v Prison Officers Association (POA) [2008] EWHC 239
(QB) para 50.
113 eg Whaley & Another v Lord Advocate [2003] Scottish Court of Session (ScotCS) 178, para 33;
and Hurley and Moore (n 112) paras 43–44.
230

230 Influence of the ICESCR in Europe

questions posed by the opposition, their influence on the actual outcome of gov-
ernment policies is in all likelihood very limited,114 and bills tabled by opposition
parties aiming to improve the protection of ESCR in German law are regularly
rejected and thus have not had any positive influence on the legislation in force.
Similarly, in Spain, the implementation of the human rights plan mentioned
above lost momentum with the change of government and the adoption of aus-
terity policies in 2011.115 As mentioned, recommendations made by the Russian
High Commissioner for Human Rights, the Russian Council for Civil Society and
Human Rights under the President, and the JCHR in the UK parliament are re-
commendations only, and are often not taken on by the authorities to which they
are addressed.
Furthermore, analysis based on the ICESCR or ESCR more generally has, so far,
not positively influenced legislative measures related to budget decisions, taxation,
and economic policies in the States analysed or at EU level,116 something which has
once more become clear from the reactions to the financial and economic crises. In
other words, principled policy and law-making that explicitly reflect the provisions
of the ICESCR, set targets, and establish appropriate priorities in domestic and EU
law, focusing on the most vulnerable and marginalized in line with the CESCR’s
suggestions in many of its General Comments, so far remain a rare exception in the
countries studied.117 This includes laws and policies that affect the enjoyment of
ESCR outside of a respective State’s jurisdiction, for example through (neo-liberal)
economic policies promoted through the EU or the IMF. This is evident in the
Spanish central government’s reaction to the aforementioned regional legislation
that qualifies ESCR as ‘subjective rights’. As these regional laws collide with the
austerity policies adopted by the central government since 2010, the central gov-
ernment has challenged their constitutionality before the SCC. This challenge is
based on the argument that a (limited) right to lawfully occupy uninhabited houses
to mitigate the social consequences of the mortgage crisis would ‘put the stability of
the economic and financial system at risk’, given that most of the properties affected

114 See eg ‘Antwort der Bundesregierung auf die Große Anfrage der Abgeordneten Diana Golze,
Matthias W Birkwald, Heidrun Bluhm, weiterer Abgeordneter und der Fraktion Die Linke—
Abschließende Bemerkungen der Vereinten Nationen zum Staatenbericht an den Ausschuss für
wirtschaftliche, soziale und kulturelle Rechte’, Drucksache BT 17/11265, 31 October 2012.
115 While the government agreed, in 2013, to approve an updated human rights plan (II), little has
been done so far; see Miguel Ángel Vázquez, ‘Sin noticias del plan nacional de derechos humanos’ El
País (Madrid, 11 July 2014).
116 Concerning austerity policies promoted by the EU and ESCR, see Andreas Fischer-Lescano,
‘Human Rights in Times of Austerity Policy: The EU Institutions and the Conclusion of Memoranda of
Understanding’ (Legal Opinion commissioned by the Vienna Chamber of Labour, 2014).
117 eg Nicholas Lusiani, ‘Rationalising the Right to Health: Is Spain’s Austere Response to the
Economic Crisis Impermissible under International Human Right Law?’ in Nolan, ESCR (n 12) 202–
33, discussing human rights-centred fiscal alternatives to the austerity policies and laws adopted by
the Spanish government. See also the suggestions for human rights-centred tax law and policies in the
‘Report of the UN Special Rapporteur on Extreme Poverty and Human Rights, Ms. Maria Magdalena
Sepúlveda Carmona, on Taxation and Human Rights’ (22 May 2014) UN Doc A/HRC/26/28; more
generally on human rights-based economic analysis, see Radhika Balakrishnan and others, Maximum
Available Resources and Human Rights (Center for Women’s Global Leadership 2011).
231

Particularities of Domestic Systems 231

are owned by banking institutions.118 In addition, in its submissions to the SCC,

the central government held that it is under an obligation under the Memorandum
of Understanding of Financial-Sector Policy Conditionality of 20 July 2012 to con-
sult ex-ante with the European Commission and the European Central Bank and
to solicit technical advice from the IMF on the adoption of any financial measure
that could have an impact on the achievement of the objectives of the programme,
namely to regain financial stability through the restructuring of the financial sector.
The government also referred to a letter from the European Commission in support
of its arguments, in which the Commission expressed its concern that the meas-
ures taken by the region of Andalucía compromise the reforms introduced into the
Spanish mortgage sector.119 In its judgment of 14 May 2015,120 the SCC agreed
with the government. It held that the regional legislation interfered with the con-
stitutional competence of the central government to plan and coordinate economic
policies,121 and thus declared the legislation unconstitutional. The SCC emphasized
the importance of the general objective pursued by the government to ensure the
stability of the financial system, backing its arguments with a reference to the afore-
mentioned Memorandum of Understanding between Spain and the EU that, it
observed, afforded Spain financial assistance precisely to strengthen the solvency of
troubled credit institutions.122 The SCC referred neither to the ICESCR, nor to any
other international treaty containing ESCR, nor to the fact that the regional legisla-
tion had been enacted with reference to the Covenant. Moreover, it remained silent
on the question of how Spain’s obligations under the ICESCR could potentially be
reconciled with the obligations under the Memorandum of Understanding.

III. Particularities of Domestic Systems

To further assess the broader influence of Covenant law in the four European States,
and in particular the relevant variations between States, this section will highlight some
of the particularities of the respective domestic legal and political systems that shape this
influence, as well as the challenges faced in this regard.
In the United Kingdom, where the doctrine of ‘parliamentary sovereignty’ re-
iterates that it is primarily the parliament that is responsible for ensuring the imple-
mentation of the ICESCR, we can observe that the ICESCR has had considerable
influence on the work of the JCHR, which has a mandate to scrutinize every govern-
ment bill for its compatibility with human rights. This scrutiny also involves con-
sidering whether bills present an opportunity to improve human rights protection.

118 ‘El Gobierno acusa a la ley andaluza de vivienda de aumentar la prima de riesgo’ El País (Sevilla,
29 January 2012).
119 See the central government’s submissions to the SSC <www.juntadeandalucia.es/
fomentoyvivienda/estaticas/sites/consejeria/contenidos/noticias/documentos/recurso_contra_ley_
vivienda.pdf> accessed 30 March 2017, including the letter from the European Commission (124–25).
120 SCC, judgment 93/2015, 14 May 2015. 121 Spanish Constitution, s 149.
122 SCC, judgment 93/2015, 14 May 2015, s II, para 17.
23

232 Influence of the ICESCR in Europe

The JCHR has taken on some of these opportunities,123 and, in particular since
2010, has worked to alleviate the retrogressive effects on the enjoyment of socio-
economic rights caused by the government’s far-reaching austerity policies. Three
examples of the JCHR’s work in relation to the ICESCR shall be given here. First,
in 2003, recognizing that the UK parliament had never engaged with the ICESCR,
the JCHR conducted an inquiry into the implementation of the ICESCR in the
United Kingdom, including the government’s reporting to the CESCR and its
follow-up of the CESCR’s concluding observations.124 The JCHR pointed out
that there were gaps or inadequacies in the protection of ESCR through ordinary
legislation, and that, therefore, the domestic legal system could not always pro-
vide redress for violations of Covenant rights.125 It rejected the government’s claim
that ESCR were inherently non-justiciable (and thus non-enforceable by domestic
courts) and recommended a better incorporation of the ICESCR into UK law.126
Second, the JCHR succeeded in improving several pieces of draft legislation with
references to the ICESCR.127 The aforementioned 2010 Child Poverty Act is a
prominent example. Third, and more recently, the JCHR has concentrated on alle-
viating regressive effects on people’s ability to enjoy their socio-economic rights in a
context of austerity policies and laws adopted to downsize the UK’s welfare system
in a sustained manner. One example128 is the numerous concerns that the JCHR
voiced in a legislative scrutiny report on the Welfare Reform Bill under debate in
2011. The Bill (and the 2012 Welfare Reform Act eventually adopted) introduced
a new welfare benefit (universal credit), reformed the housing benefit, introduced
a benefit cap limiting the total amount of money available to individuals, and
changed the support schemes for persons with disabilities.129 Reviewing the Bill,
the JCHR reminded the government of its obligations under the ICESCR, in-
cluding the obligation to take steps to progressively realize the right to an adequate
standard of living and social security, and to thoroughly evaluate any retrogressive
measures in line with the criteria set out in the CESCR’s General Comments.130
It voiced its concerns about the potentially discriminatory effect of these meas-
ures on persons with disabilities, single mothers, large families, children in poorer
households, and ethnic minorities,131 and criticized the retrogressive character of
the measures affecting these groups in particular,132 which are difficult to justify

123 For an overview of this work in 2001–10, see Hunt, ‘Parliament’s Role’ (n 58).
124 JCHR, ‘The International Covenant on Economic, Social and Cultural Rights’, HL Paper No
183, HC 1188 (21st report of session 2003–04).
125 ibid para 73. 126 ibid para 73; Bates, ‘The UK and the ICESCR’ (n 82) 272–82.
127 Hunt, ‘Parliament’s Role’ (n 58) 245–49.
128 Others are eg JCHR, ‘Implementation of the Right of Disabled People to Independent Living’,
HL Paper No 257, HC 1074 (23rd report of session 2010–12); JCHR, ‘Legislative Scrutiny: Legal
Aid, Sentencing and Punishment of Offenders Bill’, HL Paper No 237, HC 1717 (22nd report of
session 2010–12); JCHR, ‘The Implications for Access to Justice of the Government’s Proposals to
Reform Judicial Review’, HL Paper No 147, HC 868 (13th report of session 2013–14); JCHR, ‘Legal
Aid: Children and the Residence Test’, HL Paper No 14, HC 234 (1st report of session 2014–15).
129 Welfare Reform Act 2012 (ch 5).
130 JCHR, ‘Legislative Scrutiny: Welfare Reform Bill’, HL Paper No 233, HC 1704 (21st report of
session 2010–12) paras 1.27–1.32.
131 ibid paras 1.51–52, 1.60–1.62, 1.64; 1.58, 1.56, and 1.57, respectively.
132 ibid paras 1.71 and 1.76–1.79.
23

Particularities of Domestic Systems 233

from a human rights and equality perspective.133 The government, specifically

the parliament, did not follow the JCHR’s recommendations. The fact that many
of the JCHR’s concerns were justified has been confirmed inter alia by the 2016
Concluding Observations on the UK’s sixth report to the Committee,134 the 2015
shadow report to the CESCR of the Equality and Human Rights Commission
(one of the UK’s national human rights institutions (NHRIs)) on this sixth State
report,135 by statistics collected by the government itself,136 by NGO reports,137
and by academic research.138 This also reveals a weakness of the purely recommen-
datory character of the JCHR’s reports, which, without reinforcement through
binding judicial review based on socio-economic rights, cannot prevent retrogres-
sive measures leading to violations of these rights in situations where such measures
are part of the political-ideological agenda of a parliamentary majority. The reluc-
tance of UK courts to engage with the ICESCR aggravates this outcome: in recent
decisions concerning the far-reaching domestic welfare reforms, no references to
the ICESCR were made.139 The UK courts decided these cases (and earlier ones140)
based solely on ECHR articles 3 and 8, resulting in a low level of protection of
socio-economic rights.141

133 As clearly noted in ibid para 1.82.

134 CESCR, ‘Concluding Observations: Sixth Periodic Report of the United Kingdom’ (n 59) paras
16–19, 40–41, 47–54, 59–60, and 63–64.
135 EHRC, ‘Socio- Economic Rights in the UK: Equality and Human Rights Commission
Submission to the United Nations Committee on Economic, Social and Cultural Rights on the United
Kingdom’s Implementation of the International Covenant on Economic, Social and Cultural Rights’
(2015) UN Doc INT/CESCR/IFL/GBR/21491.
136 See eg the statistics finding that 63 per cent of capped households under the benefit cap consti-
tuted a single parent with one or more dependent child (Department for Work and Pensions, ‘Benefit
Cap Quarterly Statistics: GB households capped to February 2015’ <www.gov.uk/government/up-
loads/system/uploads/attachment_data/file/426846/benefit-cap-statistics-to-feb-2015.pdf> accessed
31 March 2017).
137 David Webster, ‘Independent Review of Jobseeker’s Allowance (JSA) Sanctions for Claimants
Failing to Take Part in Back to Work Schemes: Evidence Submitted by Dr David Webster’ (Child
Poverty Action Group, 2014) <www.cpag.org.uk/sites/default/files/uploads/CPAG-David-Webster-
submission-Oakley-review-Jan-14_0.pdf> accessed 31 March 2017; and the welfare reform impact
assessments by Citizens Advice (2015) <www.citizensadvice.org.uk/about-us/policy/policy-research-
topics/welfare-policy-research-surveys-and-consultation-responses/welfare-policy-research/welfare-
reform-impact-assessments/> accessed 31 March 2017.
138 Among many, see Rachel Loopstra and others, ‘Austerity, Sanctions, and the Rise of Food Banks
in the UK’ (2015) 350 British Medical Journal 1880.
139 eg McDonald v Royal Borough of Kensington and Chelsea [2011] UKSC 33; MA & Ors v The
Secretary of State for Work and Pensions [2014] EWCA Civ 13; Rutherford & Ors v Secretary of State for
Work and Pensions (Rev 1) [2014] EWHC 1631 (Admin); Condliff v North Staffordshire Primary Care
Trust [2011] EWCA Civ 910; SG & Ors (Previously JS & Ors) v The Secretary of State for Work and
Pensions [2014] EWCA Civ 156.
140 eg Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406; Limbuela v Secretary of
State for the Home Department [2005] UKHL 66.
141 eg in Limbuela (n 140) the House of Lords held that a general public duty ‘to house the home-
less and provide for the destitute cannot be spelled out of Article 3’ (para 7 per Lord Bingham and
para 66 per Lord Scott). For more details, see Merris Amos, ‘The Second Division in Human Rights
Adjudication: Social Rights Claims under the Human Rights Act 1998’ (2015) 15 Human Rights L
Rev 549.
234

234 Influence of the ICESCR in Europe

In Germany, changes made to the Asylum Seekers Benefits Act by the parlia-
ment in 2014,142 in reaction to a judgment of the FCC of 2012, reveal that judicial
review based on socio-economic rights can have protection-enhancing effects in
a system where strong judicial review is widely accepted. In the aforementioned
judgment of 2012, the FCC declared sections of the Asylum Seekers Benefits Act
unconstitutional (and incompatible with the ICESCR). The 2014 changes made
to the Act brought it into line with the FCC’s requirement that benefits provided
to asylum seekers need to be consistent with the constitutional right to a dignified
minimum existence, a right also supported by the ICESCR.143 In addition, the
German system exhibits a stronger role for the executive to ensure compliance with
the ICESCR. Every piece of draft legislation that is discussed and adopted by the
legislature is checked for its compatibility with the German Constitution and EU
and international law, including the ICESCR, usually by the Ministry of Justice and
Consumer Protection and its Human Rights Section. Most bills that are introduced
before parliament thus contain a section that explains their compatibility with EU
and international law. It is very rare, however, that these sections expressly refer to
the ICESCR.144 In most cases, this section is limited to a general statement that the
bill in question does not conflict with EU or international law.145
In Russia, one can observe that civil society organizations working in the area of
ESCR often attempt to directly address the President, and less frequently the State
Duma or the ministries. Recent examples are the Moscow Helsinki Group’s call for
President Putin to change legislation that allows for the eviction of unregistered fam-
ilies without ensuring the availability of alternative accommodation and to develop
a comprehensive housing policy along the lines of suggestions made by the Council
for Civil Society and Human Rights,146 as well as the Andrey Rylkov Foundation for

142 Gesetz zur Änderung des Asylbewerberleistungsgesetzes und des Sozialgerichtsgesetzes of 10

December 2014, BGBl I 2014/59, 2187.
143 Whilst no direct references to the ICESCR were made in the parliamentary processes amending
the Asylum Seeker Benefits Act, some members of the opposition criticized the amendments for failing
to give asylum seekers adequate access to health care in violation of their right to health during the
debate in the Bundestag (see <http://dipbt.bundestag.de/extrakt/ba/WP18/620/62000.html> accessed
31 March 2017). See also Markus Kaltenborn, arguing that further changes based on a thorough com-
patibility analysis with the ICESCR could have avoided the changed law still interfering with asylum
seekers’ right to health: Markus Kaltenborn, ‘Die Neufassung des Asylbewerberleistungsgesetzes und
das Recht auf Gesundheit’ (2015) 5 Zeitschrift für Sozialrecht 161.
144 One of these rare examples is the recently adopted Law on Equal Participation of Women and
Men in Leadership Positions in the Private and Public Sectors (Gesetz für die gleichberechtigte Teilhabe
von Frauen und Männern an Führungspositionen in der Privatwirtschaft und im öffentlichen Dienst
of 24 April 2015, BGBl I 2015/17, 642). The government’s draft law indicated that one of the aims
was to further Germany’s international obligations to promote gender equality, flowing inter alia from
the ICESCR (Entwurf eines Gesetzes für die gleichberechtigte Teilhabe von Frauen und Männern an
Führungspositionen in der Privatwirtschaft und im öffentlichen Dienst, Initiative der Bundesregierung,
Drucksache BT 18/3784, 20 January 2015, s A.6.2.).
145 One of many examples is the Entwurf eines Gesetzes zur Reform des Wohngeldrechts und zur
Änderung des Wohnraumförderungsgesetzes (WoGRefG), Initiative der Bundesregierung, Drucksache
BT 18/4897, 13 May 2015, s V.
146 Moscow Helsinki Group, ‘Почему детям негде жить в самой большой стране мира?,
Президенту РФ В.В. Путину’ (16 April 2015) <http://mhg-main.org/news/pochemu-detyam-negde-
zhit-v-samoy-bolshoy-strane-mira> accessed 31 March 2017.
235

The Financial and Economic Crises and Engagement with the ICESCR 235

Health and Social Justice’s call on (then) President Medvedev to change the highly
controversial Russian policies concerning drug users, in line with the CESCR’s 2011
concluding observations.147 This could be a reflection of the limited trust that civil
society organizations have in the ability of the State Duma and the ministries to act
without the direct approval of the President in the Russian political system, which is
characterized as a ‘competitive authoritarian’ one today.148 This is confirmed by the
fact that many individual members of civil society organizations remain members
of the Council for Civil Society and Human Rights under the President,149 and are
thus involved in the Council’s above-discussed advisory work concerning the im-
plementation of ESCR, despite the fact that some of the participating organizations
have had to scale back their activities considerably after being classified as ‘foreign
agents’. For many civil society organizations, the Council remains the only mech-
anism for influencing executive decisions (if only marginally) in areas that affect the
protection of human rights.150

IV. The Financial and Economic Crises as a Chance

for Reinforced Engagement with the ICESCR in Europe?

So far, the issues discussed in regard to the financial and economic crises and the
ICESCR have revealed the limited influence of the ICESCR in Europe. This last sec-
tion highlights broader reactions to the legislative and policy measures undertaken
in response to these crises, which can be interpreted as signs that the financial and
economic crises could also offer tentative opportunities to strengthen the influence
of the ICESCR in Europe in the future.
The increased civil society engagement with the ICESCR in Spain and the United
Kingdom in response to the respective governments’ austerity policies can be seen
as one such opportunity. Among the many examples from Spain are, first, a letter
from 2013 signed by a group of more than 500 lawyers, judges, public prosecutors,
and law professors, which deplored the devastating social consequences of eviction
procedures in Spain and requested a legislative change that would allow individuals

147 Фонд содействия защите здоровьяи социальной справедливостиимени Андрея Рылькова,

‘Обращение ФАР к Президенту РФ Медведеву Д.А. по поводу исполнения РФ рекомендаций
Международного Комитета по экономическим, социальным и культурным правам касательно
реализации программ обмена шприцев и заместительной терапии’ (24 October 2011) <http://
rylkov-fond.org/blog/prava-cheloveka/pravo-na-zdorovie/icescr/> accessed 31 March 2017.
148 Steven Levitsky and Lucan A Way, Competitive Authoritarianism: Hybrid Regimes after the Cold
War (CUP 2010); Alfred Evans, ‘The Failure of Democratization in Russia: A Comparative Perspective’
(2011) 2 Journal of Eurasian Studies 40.
149 Many of the sixty-one members of the Council are representatives of civil society organizations.
150 See eg the comments by Igor Kalyapin—head of the NGO ‘Committee Against Torture’, which
was classified as a ‘foreign agent’ by the Russian Ministry of Justice in July 2015, but who remains
a member of the Council—on the annual meeting of the Council with President Putin in October
2015 in Дмитриева, Ольга and Елагина, Александрина, ‘Минута президентского внимания’ Новое
Время (Moscow, 13 October 2015), and statements by several civil society members of the Council in
Gabrielle Tetrault-Farber, ‘Russian Human Rights Council: Toothless but not Worthless’ The Moscow
Times (Moscow, 16 June 2015).
236

236 Influence of the ICESCR in Europe

to cover mortgage loans by giving their properties back to the bank. The letter made
reference to the ICESCR provision on housing and Spain’s obligations flowing from
it.151 A second example of a civil society organization’s renewed use of the ICESCR
in the current context is the practice of Plataforma de Afectados por la Hipoteca. In
submissions to Spanish courts on behalf of people affected by eviction procedures,
the Plataforma requests the courts to suspend these procedures. It substantiates its
requests with references to the right to adequate housing in the ICESCR, as well as
to the CESCR’s General Comment 7 on forced evictions.152 A third example is an
instance of social mobilization that successfully prevented the privatization of public
hospitals in Madrid in 2014. Among other things, human rights organizations ar-
gued that the privatization process was contrary to the right to health under the
Spanish Constitution and ICESCR article 12.153
In the United Kingdom, the most prominent example is the establishment of
Just Fair, a consortium of more than eighty national charities and local community
groups committed to building a fairer society, which introduces itself on its website
as ‘leading the [ESCR] movement that is beginning to emerge in England’.154 Just
Fair concentrates explicitly on the promotion of the rights set out in the ICESCR.155
In addition to NGOs, NHRIs in the United Kingdom and Spain have stepped up
their work on the ICESCR and ESCR in general. The ICESCR and CESCR docu-
ments have featured in the work of all three UK NHRIs: the Equality and Human
Rights Commission (EHRC), the Northern Ireland Human Rights Commission
(NIHRC), and the Scottish Human Rights Commission (SCHR). For example, the
EHRC’s/SCHR’s Human Rights Measurement Framework is built inter alia on the
ICESCR and CESCR documents.156 The NIHRC has conducted several human
rights inquiries related to ESCR and subsequently issued reports referring directly
to Covenant law,157 and recommended the inclusion of ESCR into a future Bill of
Rights for Northern Ireland.158 The ICESCR also figures strongly in many areas of
work of the SCHR, for example in Scotland’s National Human Rights Action Plan
and the SCHR’s activities on poverty reduction.159 Thus, while UK courts remain

151 Anabel Díez, ‘Los antidesahucios quieren retirar la iniciativa legislativa el día de su votación’ El
País (Madrid, 18 April 2013).
152 See Plataforma de Afectados por la Hipoteca, ‘Documentos útiles’ <http://afectadosporlahipoteca.
com/documentos-utiles/> accessed 10 May 2017.
153 Olivia Muñoz-Rojas, ‘Hablemos de Madrid’ El País (Madrid, 7 February 2014).
154 Just Fair <www.just-fair.co.uk> accessed 31 March 2017.
155 See Just Fair, ‘About Us’ <www.just-fair.co.uk/#!about_us/csgz> accessed 31 March 2017, and
the reports that Just Fair has produced in 2014 and 2015.
156 EHRC, Human Rights Measurement Framework <www.equalityhumanrights.com/en/our-
research/human-rights-measurement-framework> accessed 10 May 2017.
157 eg NIHRC, ‘Human Rights Inquiry: Emergency Health Care’ (2015) <www.nihrc.org/
Publication/detail/human-rights-inquiry-emergency-healthcare> accessed 10 May 2017; and NIHRC,
‘Education Reform in Northern Ireland: A Human Rights Review’ (2013) <http://www.nihrc.org/pub-
lication/detail/education-reform-in-northern-ireland> accessed 10 May 2017.
158 NIHRC, ‘A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern
Ireland’, 10 December 2008 (<http://www.nihrc.org/publication/detail/advice-to-the-secretary-of-
state-for-northern-ireland> accessed 10 May 2017).
159 SCHR, ‘Scotland’s National Action Plan for Human Rights 2013– 2017’ <http://www.
snaprights.info/wp-content/uploads/2016/01/SNAPpdfWeb.pdf> accessed 23 June 2017; and
237

The Financial and Economic Crises and Engagement with the ICESCR 237

reluctant to challenge the government’s retrogressive measures on the basis of the

ICESCR or other international human rights treaties containing ESCR,160 aware-
ness of these rights could grow further among civil society actors faced with the
devastating social consequences that these measures have for individuals. In Spain,
the Ombudsman (Defensor del Pueblo) has been involved in activities concerning the
protection of the rights to housing, education, social security, and health, primarily
through the consideration of individual complaints,161 and has issued a special re-
port on the economic crisis and mortgage debtors.162 Space constraints preclude
discussing these examples in detail.
In Russia and Germany, no such increased civil society and NHRI engagement
with the ICESCR can be observed.163 However, the link between the protection
of ESCR, German foreign (economic) policy, and the conduct of German enter-
prises abroad has become a focus of some NGOs in recent years.164 In addition, the
German Institute for Human Rights (Germany’s NHRI) is working towards sensi-
tizing NGOs, charities, and trade unions to the ESCR dimension of their activities,
is running several projects to enhance the protection of ESCR in Germany, and has
repeatedly called for the ratification of the OP-ICESCR.165 In Russia, the falling oil
price, sanctions, and the prioritization of military spending, among other things,
have led to cuts in the health and education budgets in recent years.166 Whilst
this has been criticized167 and the All-Russian Union of Patients and the National
Medical Chamber have called for protecting the health budget from further cuts
to prevent tragic consequences,168 it is not clear to what extent this will lead to

overview of the SHCR’s work on poverty and the ICESCR <http://www.scottishhumanrights.com/

poverty/economic-social-cultural-rights/> accessed 10 May 2017.
160 Exceptions are the dissenting judgments of Lady Hale and Lord Kerr in R (SG and Others) v
Secretary of State for Work and Pensions [2015] UKSC 16.
161 See the website of the Defensor del Pueblo <www.defensordelpueblo.es> accessed 31 March 2017.
162 Defensor del Pueblo, Report on ‘Crisis económica y deudores hipotecarios: actuaciones y propuestas
del Defensor del Pueblo’ (‘Economic Crisis and Mortgage Debtors: Actions and Propositions by the
Defensor del Pueblo’) (January 2012) <www.defensordelpueblo.es/wp-content/uploads/2015/05/2012-
01-Crisis-econ%C3%B3mica-y-deudores-hipotecarios-actuaciones-y-propuestas-del-Defensor-del-
Pueblo.pdf> accessed 31 March 2017.
163 An exception is the Eberhard-Schultz-Stiftung für soziale Menschenrechte und Partizipation
founded in 2011 (<www.sozialemenschenrechtsstiftung.org/> accessed 31 March 2017).
164 eg the work of the FoodFirst Information and Action Network (FIAN) (<www.fian.de> accessed
31 March 2017) and the working group on ‘Development and Economy’ of Forum Menschenrechte,
a network of more than fifty German NGOs (<www.forum-menschenrechte.de/1/arbeitsgruppen/
entwicklung-und-wirtschaft/> accessed 31 March 2017).
165 Based on the German Institute for Human Rights’ website (<www.institut-fuer-menschenrechte.
de/themen/wirtschaftliche-soziale-und-kulturelle-rechte/> accessed 31 March 2017) and the author’s
personal correspondence with the Institute.
166 For an overview, see Елена Малышева, ‘Здравоохранение в минусе—Расходы на
здравоохранение в России сократятся на 20%’, Газета.ru (Moscow, 17 November 2015); Арнольд
Хачатуров, ‘Резервы растают к 2019 году – Правительство представило в Госдуму проект
трехлетнего бюджета. Что важно?’ Новая газета (Moscow, 28 October 2016).
167 eg Сергей Гуриев, ‘Чем высокие военные расходы вредят экономике России’, Forbes.ru (18
May 2015); Наталья Чернова, ‘Теперь уже без иллюзий’, Новая газета (Moscow, 19 October 2016).
168 ‘Здравоохранение в опасности’, Российский медицинский сервер, 25 November 2015, <http://
rusmedserver.com/?p=3003> accessed 31 March 2017.
238

238 Influence of the ICESCR in Europe

increased civil society engagement with the ICESCR in a country where civil society
organizations are under growing pressure from the government.169
Increased media attention to the ICESCR and the Committee’s work can also
be observed in the United Kingdom and Spain concerning the unfolding effects of
austerity policies. This could be another opportunity to raise lasting awareness for
ESCR in these and other European States. While the consideration of the Spanish
and UK periodic reports in 2004 and 2009 respectively did not attract much media
attention,170 this has changed in regard to most recent reviews. Media reports on the
CESCR’s 2012 concluding observations on Spain reveal a positive attitude towards
the recommendations, with the media sharing the Committee’s concerns about the
negative impact of austerity measures on the protection of ESCR.171 The adoption
of the Committee’s first View on a Spanish citizen’s individual complaint under the
OP-ICESCR in September 2015 has also been reported on positively in Spanish
media, which commended the applicant for winning a difficult case by using this
new and innovative international instrument to mitigate the negative effects of the
government’s austerity policies.172 In the United Kingdom, due to the increasingly
negative social effects of the welfare reforms implemented over the last years, media
coverage on ESCR in general has risen. Headings like ‘UK “Breaching Human
Rights” Over Housing’,173 ‘Disabled Failed by Savage Cuts: Coalition Treatment is
an Attack on Their Human Rights’174 and ‘Food Poverty “puts UK’s International
Human Rights Obligations in Danger”’175 can be found in various UK media out-
lets. Moreover, the Committee’s review of the UK’s sixth periodic report to the
CESCR in June 2016 achieved broad media coverage despite the fact that it coin-
cided with the Brexit referendum.176

169 The Russian Ministry of Justice is working to widen the scope of the law on ‘foreign agents’ to also
cover NGOs that work in the social sector and receive foreign funding, see Екатерина Шульман, ‘Удар
по ребрам’ Новое Время (Moscow, 01 March 2016) and ‘Просто больше будет бедных и больных’,
Российский медицинский сервер (21 February 2016) <http://rusmedserver.com/?p=3122> accessed 31
March 2017.
170 Regarding the United Kingdom, see Bates, ‘The UK and the ICESCR’ (n 82) 11.
171 Olga R Sanmartín, ‘Una veintena de ONG denuncia ante la ONU los recortes sociales del
gobierno’ El Mundo (Madrid, 6 May 2012); ‘Naciones Unidas pide revisar las medidas de austeridad’,
Compromiso Empresarial (1 August 2012) <www.compromisoempresarial.com/rsc/2012/08/naciones-
unidas-pide-revisar-las-medidas-de-austeridad/> accessed 25 June 2017.
172 ‘La ONU acusa a España de violar el derecho a la vivienda de una mujer desahuciada’, Público
(Madrid, 18 September 2015) <http://www.publico.es/sociedad/onu-acusa-espana-violar-derecho.
html> accessed 28 June 2017; ‘España violó el derecho de una mujer desahuciada’, JerezSinFronteras.
es (21 September 2015) <http://www.jerezsinfronteras.es/onu-dictamina-espana-violo-derecho-
vivienda-mujer-desahuciada/> accessed 26 June 2017.
173 Afua Hirsch, ‘UK “Breaching Human Rights” Over Housing’ Sky News (London, 14 October
2015) <http://news.sky.com/story/uk-breaching-human-rights-over-housing-10343185> accessed 28
June 2017.
174 James Lyons, ‘Disabled Failed by Savage Cuts: Coalition Treatment is an Attack on Their Human
Rights’ The Mirror (London, 7 July 2014).
175 Patrick Butler, ‘Food Poverty “Puts UK’s International Human Rights Obligations in Danger”’
The Guardian (London, 18 February 2013).
176 eg Ros Wynne Jones, ‘Brexit Has Left the Poor up the Creek without a Paddle as “Rats Leave
a Sinking Ship”’ The Mirror (London, 7 July 2016); Anna Leszkiewicz, ‘The UN Declares the UK’s
Austerity Policies in Breach of International Human Rights Obligations’ New Statesman (London, 29
239

Concluding Remarks 239

V. Concluding Remarks

Overall, this chapter confirms that the influence of the ICESCR in the four European
States under examination has been limited. The absence of human rights language in
European (and global) responses to the financial and economic crises and the fact that
the rights set out in the ICESCR did not serve as an effective tool for social protection
during these crises makes this very clear.177 This is unlikely to change as long as it is
not recognized that the ICESCR has ‘a lot to say about the parameters and impacts of
economic decision making [and related law making]’178 and the ICESCR is not used
to challenge the prevailing economic paradigm of anti-statist, unregulated free market
liberalism that has been reinforced by the response to the crises (through mass socializa-
tion of debt by rescuing the financial markets with taxpayer money).179 This goes hand-
in-hand with the fact that, in the constitutional orders of Western European States, in
EU law, and in the legal instruments of the CoE, ICESCR rights have still not attained a
place as enforceable individual rights on an equal basis with the civil and political rights
enshrined in the ECHR and the ICCPR, including as concerns the degree to which
they can be enforced by national and European courts or the ECSR. By contrast, in
Russia, the influence of the ICESCR is not hampered by the fact that the direct effect of
ESCR is questioned, something that might also be observed in other Eastern European
States that have included ESCR in their constitutions.180 However, there are other
considerable obstacles that a competitive authoritarian regime like Russia imposes on
the influence of the ICESCR, among them the staggeringly high level of corruption,181
deficits in the rule of law, a strong focus on executive action, a decreasing number of
mechanisms for citizen and civil society engagement with State institutions,182 and a
growing scepticism towards international human rights law in general.183
To end on a positive note, the analysis has also revealed that, in all four States,
there are governmental and non-governmental actors that have increased their
activities related to the ICESCR over the years, hinting towards a growing legal
influence of the Covenant. Together with the increased activity of the ECSR184

June 2016); ‘UK’s Austerity Policy a Breach of International Human Rights, Says UN Report’ Belfast
Telegraph (Belfast, 29 June 2016).
177 Nolan, ESCR (n 12).
178 ibid 370–71, and Balakrishnan and others, Maximum Available Resources (n 117).
179 For more details and further references, see Nolan, ESCR (n 12).
180 For an overview, see Wojciech Sadurski, Rights before Courts: A Study of Constitutional Courts in
Postcommunist States of Central and Eastern Europe (Springer 2014) ch 7.
181 See Transparency International, ‘Corruption Perceptions Index 2016’ <http://www.transpar-
ency.org/news/feature/corruption_perceptions_index_2016> accessed 10 May 2017 (wherein Russia
was ranked 131st, together with Iran, Kazakhstan, Nepal, and Ukraine).
182 High Commissioner for Human Rights in the Russian Federation, ‘2014 Report’ (n 61) 103–04.
183 Ruling of the RCC of 14 July 2015, No 21-P/2015; judgment of the RCC of 19 April 2016,
No 12-P/2016; judgment of the RCC of 19 January 2017, No 1-P/2017; Federal Law ‘On Changes
to the Federal Constitutional Law “About the Constitutional Court of the Russian Federation”’ of 14
December 2015, N 7-FKS.
184 The ECSR’s cautious but increasing engagement with the ICESCR (ECSR ‘Activity Report
2015’ (n 42)) might also lead to better reinforcement of ICESCR law.
240

240 Influence of the ICESCR in Europe

and the enhanced quality and specificity of the CESCR’s concluding observations
and General Comments, if persistent, these developments could pave the way for
a steadily growing legal influence of the ICESCR in Europe, eventually extending
also to economic policy and law-making.

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243

11
The Influence of the Two Covenants
on States Parties Across Regions
Lessons for the Role of Comparative Law and of
Regions in International Human Rights Law

Samantha Besson

I. Introduction

To celebrate the fiftieth anniversary of the adoption of the International Covenant on

Civil and Political Rights (ICCPR)1 and the International Covenant on Economic,
Social and Cultural Rights (ICESCR),2 the organizers of the present volume com-
missioned five comparative legal studies of the influence of the two Covenants in
the (States parties belonging to) five regions of the world: Africa, Asia, Europe, Latin
America, and the Middle East.
This is a welcome contribution to the new and fast-growing field of comparative
international human rights law,3 but also a novel way to celebrate the coming of age
of the two Covenants. It departs from the approach to Covenant law used in most
commentaries,4 which barely mention domestic law and domestic practice con-
cerning the Covenants, but also, more generally, from many international human
rights lawyers’ top-down treatment of domestic compliance with Covenant law.5

1 International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16 December
1966, entered into force 23 March 1976) 999 UNTS 171.
2 International Covenant on Economic, Social and Cultural Rights (ICESCR) (opened for signature
16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
3 See eg Christopher McCrudden, ‘Why Do National Court Judges Refer to Human Rights
Treaties?: A Comparative International Law Analysis of CEDAW’ (2015) 109 AJIL 534; Christopher
McCrudden, ‘Comparative International Law and Human Rights: A Value-Added Approach’ in Anthea
Roberts and others (eds), Comparative International Law (OUP 2018) 439.
4 See eg Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political
Rights: Cases, Materials and Commentary (3rd edn, OUP 2013); Ben Saul, David Kinley, and Jacqueline
Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and
Materials (OUP 2014).
5 See eg Benedetto Conforti and Francesco Francioni (eds), Enforcing International Human Rights in
Domestic Courts (Brill 1997); Helen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law
and Legitimacy (CUP 2012).

244 The Influence of the Two Covenants on States Parties Across Regions
Actually, even from a comparative international human rights law perspective, the
present project is unprecedented in its global scope, its broad focus, and its com-
parative legal method.
Scope-wise, first of all, while comparative international human rights studies
have lately become common on the regional plane, either for a given regional human
rights instrument6 or among them,7 they have been much rarer with respect to uni-
versal human rights instruments. Moreover, the latter studies have not focused on
the two Covenants in a comparative fashion,8 but have either encompassed all inter-
national human rights treaties9 or, in a more recent and more nuanced vein,10 ad-
dressed one of them only, like the ICCPR11 or the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW)12 in particular. On the
domestic law side of the comparison, most of the existing studies have started by
selecting the States compared according to a preliminary assessment of the effective-
ness of international human rights law’s protection domestically in order to reach a
more fine-grained understanding of the causes of its ‘success’.13 This has often led
these studies to privilege democratic and unitary States and leave aside, as a result,
States, or even entire regions, where the human rights record has not been so good.
This is not a criterion of selection used by the reports in this project, which cover all
kinds of States in each region. In terms of focus, secondly, existing studies have often
concentrated only, on the one hand, on the influence of the Committees’ guidance
in general (ie their concluding observations, Views, General Comments, and provi-
sional measures) or of some types of guidance only,14 or, on the other hand, on their
influence on some domestic institutions only, such as courts in particular.15 The five
reports discussed here, by contrast, address the entire range of Covenant law, from

6 See eg Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on
National Legal Systems (OUP 2008).
7 See eg Gerald L Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court
of Human Rights’ (2008) 19 EJIL 101; Gerald L Neuman, ‘The External Reception of Inter-American
Human Rights Law’ [2011] Quebec J of Intl L 99.
8 As a matter of fact, none of the regional reports in this project have done so comparatively either.
9 See eg Helen Keller and Geir Ulfstein, Treaty Bodies (n 5).
10 See Daniel W Hill, ‘Estimating the Effects of Human Rights Treaties on State Behavior’ (2010) 72
J of Politics 1161, 1172; McCrudden, ‘National Judges’ (n 3) 549.
11 See eg Christopher Harland, ‘The Status of the International Covenant on Civil and Political
Rights (ICCPR) in the Domestic Law of States Parties: An Initial Global Survey Through UN Human
Rights Committee Documents’ (2000) 22 Human Rights Q 187.
12 See eg Christopher McCrudden, ‘CEDAW in National Courts: A Case Study in Operationalizing
Comparative International Law Analysis in a Human Rights Context’ in Anthea Roberts and others
(eds), Comparative International Law (OUP 2018) 459.
13 See Başak Çali, ‘Influence of the ICCPR in the Middle East’, Chapter 7 in this volume. See
also Jasper Krommendijk, ‘The Domestic Effectiveness of International Human Rights Monitoring
in Established Democracies: The Case of the UN Human Rights Treaty Bodies’ (2015) 10 Rev of
International Organizations 489.
14 See eg Rosanne van Alebeek and André Nollkaemper, ‘The Legal Status of Decisions by Human
Rights Treaty Bodies in National Law’ in Keller and Ulfstein, Treaty Bodies (n 5) 356; Helen Keller and
Leena Grover, ‘General Comments of the Human Rights Committee and their legitimacy’ in Keller and
Ulfstein, Treaty Bodies (n 5) 116.
15 See eg Gábor Halmai, ‘Domestic Courts and International Human Rights’ in Anja Mihr and
Mark Gibney (eds), The SAGE Handbook of Human Rights (SAGE 2014) 749.
245

Introduction 245

treaties through the Committees’ concluding observations or Views to their General

Comments, and their influence on all dimensions of State practice, including legis-
lative or administrative aspects of domestic law. Finally, from a methodological per-
spective, existing comparative international human rights studies have been either
conducted by international human rights organizations, non-governmental or-
ganizations, or professional associations,16 or single-authored by academics.17 The
five reports discussed here, by contrast, have been drafted separately by individual
human rights specialists from each region and are compared to one another in the
present chapter. Moreover, most of the existing comparative studies have endorsed
quantitative methods18 and actually stem from political science or international re-
lations scholars.19 The reports discussed here are, but for one exception, written by
human rights lawyers resorting to comparative human rights law methodology (in
all its variety).
In all of these respects, in contrast to past comparative international human rights
studies, the five reports discussed here provide the first opportunity for a global or
universal comparison of the influence of the two Covenants in domestic law. As a
companion to these five reports, this chapter has a double aim: first, to bring the
comparison one rung up, to the regional level, in order to assess the influence of
the Covenants on domestic law across regions and identify emerging trends; and,
second, to develop a pattern of analysis comprising the set of (international and)
domestic institutions, procedures, and mechanisms that can affect how any inter-
national human rights law instrument influences domestic law.20 The study should
therefore be read as much as a study in comparative international human rights law
as a contribution to its methodology.
The study’s structure is four-pronged. Section II—after this introduction—
clarifies the aim, object, and method of the proposed comparison. Section III
presents a comparative assessment of the domestic influence of the Covenants
across regions and, to do so, develops a grid of comparative analysis. Section IV
addresses the classical issue of the authority of the Committees’ interpretations of
the Covenants, albeit from a bottom-up approach and relying on a comparative law

16 See eg International Law Association (ILA), Committee on International Human Rights Law
and Practice, ‘Final Report on the Impact of Findings of the United Nations Human Rights Treaty
Bodies’ (ILA 2004); David C Baluarte and Christian de Vos, ‘From Judgment to Justice: Implementing
International and Regional Human Rights Decisions’ (Open Society Justice Initiative 2010); Venice
Commission, ‘Report on the Implementation of International Human Rights Treaties in Domestic Law
and the Role of Courts’ (8 December 2014) Doc No CDL-AD (2014) 036.
17 See eg Christof Heyns and Frans Viljoen, ‘The Impact of the United Nations Human Rights
Treaties on the Domestic Level’ (2001) 23 Human Rights Quarterly 483; Krommendijk, ‘Domestic
Effectiveness’ (n 13).
18 Universal datasets pertaining to international law in domestic legal settings remain too general
in focus (eg Oxford Reports on International Law in Domestic Courts <http://opil.ouplaw.com/page/
ILDC/oxford-reports-on-international-law-in-domestic-courts> accessed 3 June 2016).
19 See eg Hill, ‘State Behavior’ (n 10); Heyns and Viljoen, ‘The Impact’ (n 17); Krommendijk,
‘Domestic Effectiveness’ (n 13); Mila Versteeg, ‘Law versus Norms: The Impact of Human Rights
Treaties on Constitutional Rights’ (2015) 171 J of Institutional and Theoretical Economics 87.
20 For a regional example, see Keller and Stone Sweet, Europe of Rights (n 6). For a universal example,
see Venice Commission, ‘Implementation’ (n 16).
246

246 The Influence of the Two Covenants on States Parties Across Regions
argument. Finally, Section VI discusses the role of human rights comparison and of
regional human rights law in enhancing the legitimacy of the Committees’ future
interpretations.

II. A Framework for the Proposed Regional

Human Rights Comparison
Comparative law studies differ significantly in their aims (why compare?), objects
(what is compared?), and methods (how is it compared?).21 Comparative inter-
national human rights studies are no exception, and it is therefore important to
clarify the present chapter’s comparative framework.
The aim of the comparison, first of all, is the assessment, through a region-by-
region comparison, of the extent to which the Covenants—and their interpretation
by the Committees—have influenced domestic law, and the identification of the
institutions, procedures, and other mechanisms that have contributed to that influ-
ence. The main characteristic of the analysis is that it amounts to a ‘comparison of
a comparison’: it compares the influence of the Covenants on domestic law across
regions, but relies on a first-level State-by-State comparison of that influence in each
region. Even if the interest in a State-by-State comparison under comparative inter-
national human rights law is beyond question (after all, States are the duty-bearers
of international human rights law), one may wonder about the relevance of the re-
gional unit of reference and, accordingly, about the interest in a regional comparison
in this respect.
The notion and role of regions in international human rights law have rarely
been addressed as such.22 Regions are not the subjects of rights or duties under
international human rights law. More generally, they do not amount to an explicit
legal concept in international human rights treaties and practice. At the same time,
it is clear that they are much more than a scholarly reconstruction of geographical
vicinity; they sometimes match the boundaries of regional legal communities or or-
ganizations pursuing political or economic integration or those of a common legal
culture or system. Importantly, these regions may be either vindicated by States

21 See Christopher McCrudden, ‘What Does Comparing (Law) Mean and What Should It Mean?’
in Samantha Besson, Lukas Heckendorn Urscheler, and Samuel Jubé (eds), Comparing Comparative
Law (Schulthess 2017) 61.
22 With some exceptions (eg Christof Heyns and Magnus Killander, ‘Universality and the Growth
of Regional Systems’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law
(OUP 2013) 670), most discussions have focused on human rights regionalism as yet another case of
fragmentation in international human rights law. See eg Eva Brems, ‘Should Pluriform Human Rights
Become One?: Exploring the Benefits of Human Rights Integration /Intégrer le droit des droits de
l’homme: une exploration’ (2014) 4 Journal européen des droits de l’homme /European J of Human
Rights 447; Mehrdad Payandeh, ‘Fragmentation within International Human Rights Law’ in Mads
Andenas and Eirik Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International
Law (CUP 2015) 297; Yuval Shany, ‘International Human Rights Bodies and the Little-Realized Threat
of Fragmentation’ (2016) Hebrew University of Jerusalem Legal Research Paper 16/06 <https://papers.
ssrn.com/sol3/papers.cfm?abstract_id=2722663> accessed 31 March 2017.
247

A Framework for the Proposed Regional Human Rights Comparison 247

situated within them or labelled as such from the outside.23 Some States in different
regions may also share commonalities, but without belonging to a third common
region as a result.24
What international human rights lawyers know about regions, however, is, first,
that there are regional human rights treaties (and bodies) in Africa, the Americas,
Europe, and the Middle East, but not in Asia,25 and, second, that the United Nations
(UN) human rights system is organized (especially with respect to membership and
representation in human rights treaty bodies or at the Human Rights Council) ac-
cording to the five UN regional groups. The latter regions are different from the
former: they regroup African States, Asian-Pacific States, Eastern European States,
Latin American and Caribbean States, and Western European and Other States.26
While there are overlaps between the two sets of regions applicable under inter-
national human rights law, the most striking mismatches are that, in the latter set,
the Middle East is divided between Asia and Eastern Europe and Europe is divided
into two regions.27
The tensions between the two understandings of regions applicable under inter-
national human rights law can be sensed in the UN General Assembly’s Resolution
64/173,28 wherein the ‘five regional groups established by the General Assembly’
(para 4(a)) are mentioned for membership purposes, but reference is also made
‘to equitable geographical distribution of membership and to the representation
of the different forms of civilizations and of the principal legal systems’ (para 1).29
Unsurprisingly, therefore, UN regional groups have been reorganized a few times
since 1945 to reflect changes in UN membership, but also political realignments;
the latest regrouping dates back to May 2014. There are many other causes for
discontent with the UN regions, and one may mention the lack of proportionate
demographic representation, but also of proportionate representation of cultural di-
versity. Attempts to sidestep the UN regional division in the Human Rights Council
and in other UN human rights treaty bodies have failed, however. This may be
due to the sheer difficulty of finding a consensual replacement unit—these group-
ings being necessary for practical political reasons—and in particular for fear of the
other, necessarily more diverse and especially fluctuating ways of regrouping State
interests in the world (eg along religious lines, such as in the Organisation of Islamic
Cooperation).30 The first set of human rights regions persists, moreover, because of

23 See Çali, ‘Middle East’ (n 13).

24 See eg the common law tradition and the Commonwealth, which includes States in Europe, Asia,
and the Middle East. See especially the Asian report (Yogesh Tyagi, ‘Influence of the ICCPR in Asia’,
Chapter 9 in this volume).
25 See Tyagi, ‘Asia’ (n 24).
26 See eg UNGA (United Nations General Assembly) Res 60/251 (3 April 2006) UN Doc A/RES/
60/251, para 7; UNGA Res 64/173 (24 March 2010) UN Doc A/RES/64/173, para 4.
27 See Tyagi, ‘Asia’ (n 24) and Çali, ‘Middle East’ (n 13), which feature a discussion of their respective
geographical boundaries. See also the European report (Amrei Müller, ‘The Influence of the ICESCR in
Europe’, Chapter 10 in this volume) on the East–West divide.
28 UNGA Res 64/173 (n 26). 29 See also ICCPR art 31(2).
30 See Richard Gowan and Franziska Brantner, ‘Regionalism and Human Rights at the UN’ in
Philippe Lombaerde, Francis Baert, and Tânia Felicio (eds), The United Nations and the Regions: Third
World Report on Regional Integration (Springer 2012) 243, 246–48.
248

248 The Influence of the Two Covenants on States Parties Across Regions
existing regional human rights instruments and the many political and legal impli-
cations of these regional forms of human rights integration in the corresponding
areas. Of course, these are contingent arguments that beg the question of the actual
role of regions in international human rights law and of the justification of a region-
based approach given the universal scope of international human rights law. The
chapter will come back to these questions in Section V.C.
Secondly, the object of this study in comparative international human rights law is
the influence of Covenant law on domestic law. The chapter is not interested in how
other non-legal features of the Covenants influence States in the non-legal dimen-
sions of their domestic orders. Even within these legal boundaries, it is important
to specify further what (i) ‘Covenant law’, (ii) ‘domestic law’, and (iii) ‘influence’
actually mean.
The ‘Covenants’, first, refers to the two actual international human rights treaties,
but also to their interpretation by their respective Committees. The latter may be
found in concluding observations, Views, General Comments, or provisional meas-
ures. In order to contribute to the discussion of their authority in Section IV, it is
important to assess how much respect they are actually granted in domestic law,
independently from their claim to bind. What is meant by Covenant ‘law’ in this
study is therefore quite loose; it entails binding as much as non-binding decisions
by the two Committees.
Second, the ‘influence’ of the Covenants on States is assessed only by reference
to their influence on States’ legal structure and institutions, that is, ‘domestic law’,
and not domestic politics, culture, or society more generally. This assessment in-
cludes any kind of domestic law and the interpretation thereof, but also any kind of
domestic legal institutions and procedures, such as legislation, administration, or
adjudication. Importantly, legal influence may be formal, as in legislation or adju-
dication, but it may also be material, as in administrative practice or governmental
policy. This way, the study hopes to escape the referential blind spot that makes
comparatists assume that there is no influence when there is no textual or formal ref-
erence to Covenant law to point to as evidence.31 This should also prevent us, con-
versely, from taking the formal recognition and implementation of Covenant rights
in domestic law as necessarily meaning that they have some impact in practice.32
The Covenants’ ‘influence’ on domestic law, third, is understood in many ways,
even by comparative international human rights lawyers. The term is often used
interchangeably with ‘impact’,33 but also sometimes with ‘compliance’, ‘reception’,34
or ‘effectiveness’.35 Some authors have even used it together with other distinct no-
tions, such as ‘authority’ or ‘persuasiveness’. In this study, influence is understood as
any form of ‘impact’ (on domestic law). It is something that can be described to the
extent that impact on a normative practice like law can be. The notion of influence
covers positive or ‘successful’ impacts (what may be referred to as the ‘effectiveness’

31 See McCrudden, ‘National Judges’ (n 3). 32 See Çali, ‘Middle East’ (n 13).
33 See Heyns and Viljoen, ‘The Impact’ (n 17) 485.
34 See Keller and Stone Sweet, Europe of Rights (n 6).
35 See Krommendijk, ‘Domestic Effectiveness’ (n 13) 491–92.
249

A Framework for the Proposed Regional Human Rights Comparison 249

of international human rights law, whether it is intentional and stems from ‘com-
pliance’ or not) as much as negative ones.36 To that extent, this study should not be
confused with an assessment of domestic law’s compliance with States parties’ duties
under the Covenants. The notion of influence captures processes as much as their
outcomes (when these outcomes are positive, they are sometimes also referred to
as ‘reception’). Importantly, and a fortiori, influence should not be conflated with
‘authority’, even de facto; Covenant law influence may be explained through reasons
other than coercion and even through reasons other than de jure authority, and this
whether Covenant law’s claim to bind is justified or not. As a result, the Covenants
and their interpretation may exercise a legal influence without being legally binding
and even without that authority being justified or legitimate.
Finally, the method chosen for this comparative international human rights study
is legal. As a matter of fact, the proposed region-by-region comparison relies on the
State-by-State legal comparison conducted within each region by the five reports
discussed.
Because comparative international human rights law is a new field in comparative
human rights law, a few methodological remarks are called for.37 This field should
be conflated neither with a comparison of international human rights law, which
concerns competing universal and/or regional international human rights law re-
gimes and the interactions between their monitoring bodies without reference to
their reception in domestic law,38 nor with a comparison of domestic constitutional
or human rights law without reference to international (universal or regional) human
rights law in domestic law.39 Instead, comparative international human rights law
is best approached as a combination of both fields, to the extent that domestic and
international human rights law are difficult to separate from one another in prac-
tice, as the five reports demonstrate. This is also why it would be wrong to con-
sider comparative international human rights law as yet another area of comparative
international law. Unlike what applies in other areas of international law and their
interpretation and enforcement under domestic law, domestic human rights law
cannot be reduced to the implementation of international human rights law, but is
constitutive thereof. This mutual constitution between domestic and international
human rights law occurs through the transnational comparison of domestic human
rights law and the identification of a transnational consensus.40 As a result, and as
the present chapter will argue, human rights comparison amounts to much more

36 Contra Heyns and Viljoen, ‘The Impact’ (n 17).

37 See McCrudden, ‘CEDAW in National Courts’ (n 12).
38 See eg Burns H Weston, Robin Ann Lukes, and Kelly M Hnatt, ‘Regional Human Rights
Regimes: A Comparison and Appraisal’ (1987) 20 Vanderbilt J of Transnational L 585.
39 See eg Vicky C Jackson and Mark Tushnet, Comparative Constitutional Law (3rd edn,
Foundation 2014).
40 See Samantha Besson, ‘Human Rights and Constitutional Law: Mutual Validation and
Legitimation’ in Rowan Cruft, S Matthew Liao, and Massimo Renzo (eds), Philosophical Foundations
of Human Rights (OUP 2015) 279; Samantha Besson, ‘Human Rights as Transnational Constitutional
Law’ in Anthony F Lang and Antje Wiener (eds), Handbook on Global Constitutionalism (Edward Elgar
2017) 234.
250

250 The Influence of the Two Covenants on States Parties Across Regions
than a scholarly exercise, and is a central part of the practice of international human
rights law (Section V).
Last but not least, a caveat is in order. The chapter assumes, for practical
reasons, that the proposed framework of comparison is shared by the five re-
gional reports and that, accordingly, the proposed region-by-region comparison
(of State-by-State comparisons in each region) actually relies on ‘comparable’
reports. Of course, there are important variations between them. To start with,
their aims are very different: some test hypotheses or answer questions,41 while
others describe various types and degrees of influence,42 and yet another group
makes a normative argument on that basis.43 Two reports focus on the ICCPR,44
while the other three concern the ICESCR.45 They understand ‘influence’ differ-
ently: for some of them, it is a form of impact, whether negative or positive and
hence whether ‘successful’ or not,46 while most of them understand the concept
as a form of positive compliance and in fact discuss the extent to which States
conform to their duties under the Covenants.47 Some look at all the States in
their respective region,48 while others focus only on a selection of States, al-
though they select them on different grounds.49 Some overlap regarding States
whose regional belonging is controversial,50 while some States, like the United
States, are not addressed by any of the reports. Some of the reports focus on the
Covenants’ influence on domestic law only,51 while others include politics and
society more broadly.52 One report endorses a political science and more quan-
titative approach,53 while the others are more legal. While all this diversity may
be seen as a problem, the present study tries to make a virtue of a necessity and
turns some of the reports’ specificities into characteristics of the influence of the
Covenant in the respective regions.54

41 See Çali, ‘Middle East’ (n 13).

42 See the African report (Manisuli Ssenyonjo, ‘Influence of the ICESCR in Africa’, Chapter 6 in this
volume), the Latin American report (Mónica Pinto and Martín Sigal, ‘Influence of the ICESCR in Latin
America’, Chapter 8 in this volume), and Tyagi, ‘Asia’ (n 24).
43 See Müller, ‘Europe’ (n 27).
44 See eg Çali, ‘Middle East’ (n 13) and Tyagi, ‘Asia’ (n 24).
45 See eg Müller, ‘Europe’ (n 27), Ssenyonjo, ‘Africa’ (n 42), and Pinto and Sigal, ‘Latin America’
(n 42).
46 See Müller, ‘Europe’ (n 27) and Tyagi, ‘Asia’ (n 24).
47 See eg Çali, ‘Middle East’ (n 13), Ssenyonjo, ‘Africa’ (n 42), and Pinto and Sigal, ‘Latin America’
(n 42).
48 See Pinto and Sigal, ‘Latin America’ (n 42).
49 See Müller, ‘Europe’ (n 27), Çali, ‘Middle East’ (n 13), and Tyagi, ‘Asia’ (n 24).
50 See the African and Middle Eastern reports (Ssenyonjo, ‘Africa’ (n 42) and Çali, ‘Middle East’
(n 13)).
51 See Ssenyonjo, ‘Africa’ (n 42) and Pinto and Sigal, ‘Latin America’ (n 42).
52 See Müller, ‘Europe’ (n 27), Çali, ‘Middle East’ (n 13), and Tyagi, ‘Asia’ (n 24).
53 See Müller, ‘Europe’ (n 27).
54 For instance, the fact that some reports focus more on the influence of the Covenants on the re-
gional human rights instruments than on domestic law (eg in Africa and, although to a lesser extent, in
Latin America) is an indicator of a regional specificity.
251

Comparative Analysis of the Regional Influence of the Two Covenants 251

III. Comparative Analysis of the Regional

Influence of the Two Covenants

This section develops a grid or pattern for comparative analysis articulating the dif-
ferent institutions, procedures, and mechanisms that affect how the Covenants can
influence domestic law (III.A). The pattern of analysis consolidates the different
dimensions identified by the five reports and adds on some more so as to constitute
an instrument of use for future comparative international human rights law studies.
The section concludes with an overall comparative assessment and identifies some
trends (III.B).
Four caveats are in order regarding the structure of the analysis. First of all, all
of these comparative dimensions should be read in combination and can either re-
inforce or weaken one another. For instance, the ratification of the two Covenants’
Optional Protocols on their respective individual complaint mechanisms55 affects
the influence that existing domestic judicial remedies for the violation of domestic
human rights law can have on Covenant rights’ protection through domestic
courts.56 Another example is the overlap between the Covenants’ regime and those
of applicable regional human rights law instruments, and how the former may be
enhanced through the latter’s influence on domestic law.57 A third type of inter-
action to be noted is the relationship of mutual reinforcement between the existence
of domestic judicial remedies and domestic enabling legislation, on the one hand,
and regional human rights monitoring, on the other; without the former, the latter
may not always be able to secure a domestic influence, not to mention an impact on
the Covenants’ influence domestically.58 Secondly, some of these dimensions can
change over time, including under the influence of the Covenants and international
human rights law in general. This may contribute to undermining the distinction
between the causes and outcomes of influence. For instance, the kind of separation
of powers in place domestically or the relationship between domestic and inter-
national law are two dimensions of domestic law that have evolved in certain States
under the influence of the Covenants.59
Thirdly, some of the features of the comparative analysis are actually requirements
of Covenant law and international human rights law more generally. For instance,
having a democratic regime, respecting the independence of the judiciary, and pro-
viding judicial remedies in case of human rights violations are all dimensions of a

55 First Optional Protocol to the ICCPR (opened for signature 16 December 1966, entered into
force 23 March 1971) 999 UNTS 171; Optional Protocol to the ICESCR (opened for signature
10 December 2008, entered into force 5 May 2016) UN Doc A/RES/63/117, 48 ILM 256 (2009)
(OP-ICESCR).
56 See eg Pinto and Sigal, ‘Latin America’ (n 42) and, a contrario, Çali, ‘Middle East’ (n 13) and
Tyagi, ‘Asia’ (n 24).
57 See eg Müller, ‘Europe’ (n 27) and Ssenyonjo, ‘Africa’ (n 42) and, a contrario, Çali, ‘Middle East’
(n 13).
58 See Ssenyonjo, ‘Africa’ (n 42).
59 See Pinto and Sigal, ‘Latin America’ (n 42) and Tyagi, ‘Asia’ (n 24).
25

252 The Influence of the Two Covenants on States Parties Across Regions
general positive duty to set up a given institutional regime under Covenant law. It
is no surprise, therefore, that the positive influence of the Covenants in domestic
law is enhanced by the display of these features.60 This may also explain why, at
times, the comparative analysis comes close to an assessment of comparative com-
pliance with Covenant duties. Finally, comparing (international) human rights law
is not only a scholarly activity, but also amounts to an integral part of domestic (and
international) human rights reasoning, thereby instilling a comparative regress in
the analysis. For instance, domestic courts may resort to the comparison of their
domestic human rights law with that of other States, including other domestic judi-
cial decisions pertaining to the Committees’ decisions and/or to other universal or
regional human rights bodies’ decisions, themselves potentially including compari-
sons amongst themselves and/or with the Committees’ decisions.61

A. Comparative analysis
The present section identifies five dimensions that may affect how Covenant law
influences domestic law: its international law status (Section III.A.1), its ‘do-
mestic international law’ status (Section III.A.2), the domestic constitutional order
(Section III.A.3), domestic institutions (Section III.A.4), and other domestic actors
(Section III.A.5).

1. International law status

There are many ways in which States qua subjects of international law can relate to
the Covenants on the international plane. The various dimensions of that relation-
ship explain variations in the influence of the Covenants in domestic law.
First of all, States’ relationships to the two Covenants themselves qua human rights
treaties need to be considered. The Covenants’ influence on domestic law indeed
reflects the degree of States’ involvement during their negotiation and drafting, if
applicable. Another relevant dimension is whether the two Covenants were signed
and then ratified in a short period of time, and, if not, how long it took for them
to be ratified and why. If the two Covenants were not signed and/or ratified at the
same time, it may be interesting to wonder why, as this may affect their influence
domestically. Another important factor is whether the Covenants were signed and
ratified at the same time as other international and regional human rights instru-
ments. The national historical context of signature and ratification matters as well.
It is important to know especially whether ratification was motivated by internal
(eg decolonization, democratization) or external (eg human rights conditionality,
occupation) factors, and of what kind.62 Another relevant question is how many
States in the region have ratified one or both Covenants, and on what grounds.63

60 See Çali, ‘Middle East’ (n 13) a contrario.

61 See Ssenyonjo, ‘Africa’ (n 42) and Pinto and Sigal, ‘Latin America’ (n 42).
62 See Çali, ‘Middle East’ (n 13).
63 There is an important difference in this respect between Europe, Latin America, and Africa on the
one hand, and the Middle East and Asia on the other.
253

Comparative Analysis of the Regional Influence of the Two Covenants 253

Once the Covenants have been ratified, the next question is whether and which of
the (material and/or procedural) Optional Protocols64 have been ratified, whether
this occurred at the same time or later on, and why. Reservations and interpretative
declarations matter too. Besides their content (eg restrictions to the personal, ma-
terial, or territorial scope of some rights; religious exceptions; federal clauses), it is
important to know whether they have been controversial, domestically and on the
international plane. They may have been invalidated by the Committees because
they objected to them, could have been withdrawn, or may have grown obsolete
in the meantime through contrary domestic practice. Finally, the level of impli-
cation of States in the UN General Assembly or the Human Rights Council, and,
more specifically, in the Office of the UN High Commissioner for Human Rights
(OHCHR) context (eg reform,65 finances, etc) also matters.
Secondly, States’ relationships to the two Committees need to be considered. A first
factor of variation pertains to the procedures ratified by States, and in particular
whether the Committees may hear inter-State and/or individual complaints against
them in addition to reacting to their submissions in the periodic reporting pro-
cedure. When one or both of these complaint mechanisms applies to given States, it
matters how they relate to other international and regional individual human rights
complaint mechanisms that these States may have ratified, whether they are used
regularly, and whether States comply with the resulting Views or provisional meas-
ures. Regarding periodic reports, it is important to establish how regularly States’
reports have been submitted, what kind of information States have provided (eg
merely formal or substantial), whether they have adopted the simplified reporting
procedure (based on the List of Issues), and how they have behaved in the follow-up
procedures and in the dialogue with the Committees following concluding observa-
tions, but also, if applicable, in the various default procedures.66 More generally, it is
interesting to know how many members of the Committees there have been for each
State since it ratified the Covenants, how these individuals were selected, and how
involved they have been in the Committees’ daily work (and, accordingly, in their
reform process) and especially their interpretations of the Covenants.67 Other issues
in States’ relations with the Committees also need to be considered, in particular po-
tential notices of derogation in case of national emergency68 or retrogressive meas-
ures and their follow-up by the Committee.
A third relevant feature is the interaction with other international (universal
or regional) human rights instruments applicable to the States concerned and the

64 On the ratification of the OP-ICESCR, contrast Çali, ‘Middle East’ (n 13) and Tyagi, ‘Asia’ (n
24) with Pinto and Sigal, ‘Latin America’ (n 42).
65 See the discussion of the adoption of UNGA Res 68/268 (21 April 2014) UN Doc A/RES/68/
268 in Tyagi, ‘Asia’ (n 24).
66 See the Asian and Middle Eastern reports (Tyagi, ‘Asia’ (n 24) and Çali, ‘Middle East’ (n 13)) for
the consequences of the non-submission or of irregularities in the submission of reports for the lack of
integration of regional specificities into the Committees’ interpretations.
67 See Tyagi, ‘Asia’ (n 24), for the consequences of the lack of representation in the Committees for
the integration of regional specificities into the Committees’ interpretations.
68 See Çali, ‘Middle East’ (n 13).
254

254 The Influence of the Two Covenants on States Parties Across Regions
procedures open before their corresponding bodies or courts. To assess how the in-
fluence of the Covenants may be tied to that of other international human rights
instruments, first of all, issues of timing (ratification and entry into force) and the
scope of the respective rights (material, personal, or territorial) need to be explored.
Starting with the other universal human rights instruments, first, many of them
have fewer States parties than the Covenants, but their procedures are often more
advanced and may be used to promote the Covenants domestically. The potential
overlaps between their respective rights and complementarity between their inter-
pretations by their respective general and specific treaty bodies are worth consid-
ering too. With respect to regional human rights instruments, second, some of them
refer expressly to the Covenants.69 As a matter of fact, some regional human rights
bodies have made it a practice to include interpretations by the Committees in their
own interpretations of their respective instruments.70 Still other regional human
rights instruments were actually drafted on the model of one of the two Covenants.
This steers their interpretation by the corresponding regional human rights bodies
even more towards a parallel with that of the relevant Covenant.71 All of this af-
fects the overall influence of the Covenants in domestic law, especially when one of
these international human rights bodies issues binding judicial decisions.72 Other
benefits to the Covenants’ influence stemming from their coexistence with regional
human rights instruments may be the individuation of remedies or the application
of indicators in the context of economic and social rights.73 Of course, the coexist-
ence of the Covenants and other international (universal or regional) human rights
instruments may not only give rise to mutual reinforcements, but also to jurispru-
dential contradictions and even conflicts and, accordingly, to the limitation of the
influence of Covenant law in domestic law.74 Various principles and methods apply
to the resolution of these conflicts under general international law (eg systemic in-
terpretation), as we will see (Section V). Moreover, it may be the case that regional
human rights instruments have worked or still work as quasi-constitutions in certain
States, thereby benefitting from a privileged position in the domestic legal order.75
This may either favour the influence of other international human rights treaties do-
mestically or, on the contrary, signal their difference to domestic authorities.
Finally, another interesting international law feature is the relationship to other
international bodies and courts whose practice includes or emulates the Covenants.
One may think of the Human Rights Council, whose special procedures, individual
complaint mechanism, or universal periodic review (UPR) may include the moni-
toring of Covenant rights for their States parties. Another relevant body may be the

69 See Ssenyonjo, ‘Africa’ (n 42) on art 60 of the African Charter on Human and Peoples’ Rights
(African Charter or ACHPR) (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21
ILM 58).
70 See Pinto and Sigal, ‘Latin America’ (n 42) on art 29(b) of the American Convention of Human
Rights (ACHR) (opened for signature 22 November 1969, entered into force 18 July 1978) 36 OAS
Treaty Series, 1144 UNTS 123.
71 See Ssenyonjo, ‘Africa’ (n 42), on the African Charter.
72 See a contrario Çali, ‘Middle East’ (n 13) and Tyagi, ‘Asia’ (n 24).
73 See Pinto and Sigal, ‘Latin America’ (n 42). 74 See Müller, ‘Europe’ (n 27).
75 See Pinto and Sigal, ‘Latin America’ (n 42).
25

Comparative Analysis of the Regional Influence of the Two Covenants 255

International Court of Justice (ICJ), whose case law has contributed to reinforcing
the authority of the Committees’ interpretations of the Covenants.76

2. ‘Domestic international law’ status

Domestic law entails rules pertaining to the relationship between domestic and
international law, ie domestic foreign relations law or ‘domestic international law’.
These rules affect the influence of the Covenants on domestic law.
First of all, it is interesting to start by looking at the domestic procedures of approval
that precede the Covenants’ ratification. The existence of a procedure of parliamen-
tary approval, or even of a popular referendum on the Covenants, matters for their
democratic legitimacy domestically and hence for their influence. Generally, the
issue of the domestic law ‘pedigree’ (eg constitutional or legislative) of the Covenants,
where they are enacted as a piece of domestic legislation, is relevant as it may, later
on, condition the rank of the Covenants in the domestic legal order. The same may
be said about the existence of a procedure of pre-approval abstract judicial review of
international human rights treaties, including of the Covenants. Such a procedure
may indeed lead to the amendment of domestic legislation and/or constitutional
law prior to ratification.
A second dimension pertains to potential domestic reforms occurring prior to or
at the time of the entry into force of the Covenants. Some States wait until the
entry into force to proceed with reforms, or do not plan any systematic reforms at
all, while others organize them and postpone international treaties’ entry into force
until the completion of the required domestic reforms. It is in this context, too, that
the question of the integration of Covenant rights into the domestic bill of rights
(whether it is constitutional or not) or into another form of domestic legislation is
to be considered. In dualist countries, this takes the shape of incorporation legisla-
tion, but some monist countries are also known to integrate (some) Covenant rights
into their bill of rights or legislation. Independently from general reforms or from
the actual integration of Covenant rights into domestic law, or in addition to them,
some States, although this is rare in practice, have adopted enabling legislation to
help enforce the Covenants alone, and sometimes also the Committees’ concluding
observations, Views, or General Comments, in domestic law. Enabling laws vary
greatly in content: some only pertain to domestic adjudication, while others even
foresee special domestic remedies and reparations for violations of the Covenants
established by the Committees in their Views.
Once the Covenants are in force, a third relevant issue is the relationship between
domestic and international law. This relationship is organized around questions of
validity, rank, and effects, and the same applies to international human rights law
and the Covenants—although one may interestingly observe a certain level of un-
certainty or even overlaps between these categories in regions other than Europe.

76 See eg Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits)
[2010] ICJ Rep 639, 664.
256

256 The Influence of the Two Covenants on States Parties Across Regions
In certain States, international human rights law behaves like international law in
general, but, in others, it has a special status, both in terms of validity (usually imme-
diate) and rank (usually supra-legislative). Some constitutions even entail a clause
establishing what rank international human rights law, including the Covenants,
should have in domestic law.77 With respect to validity, some States are monist and
recognize the immediate validity of the Covenants, while others are dualist and
have to incorporate them, either into their domestic bill of rights or in a separate
piece of legislation, for them to have any form of validity and effect in domestic law.
Regarding the rank granted to the Covenants in domestic law, States vary signifi-
cantly: some grant them legislative rank, while others give them supra-legislative,
constitutional, or even supra-constitutional value. With respect to the Covenants’
effects, States usually give individual rights under the Covenants direct effect
(whether it is through their justiciability or not, depending on how judicialized
domestic human rights protection is in general). The rights under the ICESCR are
often treated differently in this respect, depending in particular on the extent to
which the direct effect of economic and social rights is recognized under domestic
law in general. Note that dualist legal orders usually address issues of the rank and
effects of the Covenants in their incorporating legislation. Finally, some States dis-
tinguish between Covenant rights and their interpretations by the Committees’ de-
cisions, and do not grant the latter the same validity, rank, and effects. Some regard
the latter as binding, while others do not (see Section IV).
Fourthly, another ground of variation pertains to the relationship between domestic
and Covenant rights. The first question to ask is whether the State has a domestic
bill of rights (constitutional or not) and whether that bill includes all rights pro-
tected under the two Covenants (maybe with differences between economic and
social rights and civil and political rights), as this may affect the significance of the
Covenants domestically.78 What matters in the latter case is whether the inclusion
or ‘internalization’79 of Covenant rights pre-existed the ratification of the Covenants
or is a consequence thereof. The domestic bill of rights’ degree of constitutional en-
trenchment and its relationship to domestic legislation matter also by comparison to
the entrenchment of the Covenants in domestic law. The relationship between the
domestic bill of rights and the Covenants in case of conflict between their respective
interpretations, and especially their ranking, also needs to be explored. In some
States, domestic and international human rights are subsumed in the context of spe-
cial judicial human rights remedies or, at least, in regular domestic courts’ human
rights reasoning. This may, in the long run, lead to the levelling-up or the levelling-
down of the protection of Covenant rights domestically, through mutual influence
between domestic human rights law and the Covenants with respect to various fea-
tures of human rights reasoning (eg jurisdiction and applicability; personal, ma-
terial, and territorial scope, such as horizontal effect; positive and/or negative duties;

77 See especially Pinto and Sigal, ‘Latin America’ (n 42).

78 See Pinto and Sigal, ‘Latin America’ (n 42).
79 See Versteeg, ‘Law versus Norms’ (n 19). See also Çali, ‘Middle East’ (n 13).
257

Comparative Analysis of the Regional Influence of the Two Covenants 257

procedural obligations; restriction justifications, such as proportionality; rights’

inner core; and constitutionality/conventionality review).
Finally, the relationship between the Covenants and other international (universal
or regional) human rights instruments (and, more accurately, their interpretations by
their respective bodies/courts) can affect the influence of the former in domestic
law. This relationship can be approached from an international law perspective (eg
conflict rules, systemic interpretation), as in the previous section, but it may also
be affected by domestic law’s approaches to these instruments. Domestic law may
expressly or tacitly rank certain instruments (usually regional ones, with a regional
court monitoring them) higher than others.80 It may also provide some instruments
with more effective judicial remedies domestically after an adverse decision by these
other international human rights bodies. Depending on whether other international
human rights instruments, and their monitoring bodies’ interpretations, refer to the
Covenants and their interpretations, therefore, the former’s privileged position in
domestic law may enhance the influence of the Covenants.

3. Domestic constitutional order

Various other background or constitutional factors in domestic law affect the influ-
ence of the Covenants domestically.
This is the case, first of all, of the constitutional order itself. The influence of the
Covenants can vary considerably depending on whether there is a formal constitu-
tion domestically, whether it is entrenched, whether it includes a bill of rights, and
whether it is monitored by a constitutional court and through constitutional review
of legislation.
Secondly, other more general features of the domestic legal order may also affect
the influence of the Covenants domestically. One should mention in particular the
recognition of legal pluralism (religious or not) or of other forms of legal devolu-
tion and special legal regimes within the domestic legal order. Despite the State’s
international responsibility under the Covenants, the latter may not be applied in
the same way in all parts of the domestic legal order. Issues of rank and effect, in
particular, may be addressed differently in each of them. One should also enquire
about the role of the predominant legal theories or cultures in the legal order, and in
particular legal realism, legal formalism, or jusnaturalism.81
A third influential feature is the political organization of the State. This includes
primarily the question of its federal organization, with the implications this may
have on the ranking and effects of the Covenants in domestic law. The issue of
(allocation of and potential centralization of ) competences in federal States often
interferes with the implementation of international human rights law in practice
and can have a chilling effect on compliance.82 Other related questions, such as

80 Contrast Ssenyonjo, ‘Africa’ (n 42) with Pinto and Sigal, ‘Latin America’ (n 42).
81 See Çali, ‘Middle East’ (n 13) on the former and Pinto and Sigal, ‘Latin America’ (n 42) on the
latter.
82 See eg Krommendijk, ‘Domestic Effectiveness’ (n 13).
258

258 The Influence of the Two Covenants on States Parties Across Regions
political inequalities among citizens (eg under a caste system or a personal status
system under Sharia83) can affect the Covenants’ influence by discriminating be-
tween groups of right-holders.
A fourth and related feature pertains to the political regime applicable domestically.
When it is democratic,84 as it should be according to the political requirements im-
posed by the Covenants, it is important to know whether it is parliamentary or not,
whether it grants direct democratic rights, and whether it adheres to a majoritarian
or consociational system, for all these features may modulate the Covenants’ influ-
ence in practice. Other features of the political regime can also affect the Covenants’
interpretation domestically, in particular predominant political ideologies like liber-
alism, communism,85 or socialism.86 One should also consider cultural characteris-
tics of domestic politics, such as their relationship to religion or other forms of social
morality. Thus, the existence of collective moralities tends to affect the influence of
individual rights, and hence of the Covenants, in practice.87
A fifth background or constitutional dimension that may affect the Covenants’
influence is the supranational or international integration of States. One may think of
various forms of integration of States, be they economic or political (eg the European
Union, the African Union, the Economic Community of West African States, the
Arab League, or the Organization of American States). Some have a human rights
dimension, as discussed before, that may also affect the influence of the Covenants,
usually with a positive effect. When these integrated communities of States do not
have their own human rights regimes and do not refer to one, their secondary law
(eg on trade-related matters) may affect the international legal duties of States, in-
cluding those arising under the Covenants, thereby raising issues of the fragmenta-
tion of international law.
Finally, one should mention the role played by structural difficulties. One may
think of migration, poverty,88 literacy,89 corruption, climatic hardship, armed con-
flict (international or not),90 epidemics, or financial and economic crisis.91 These
difficulties all hamper, in one way or another, the capacity of States to comply with
their international human rights duties, and hence with the Covenants.

4. Domestic institutions
Domestic institutions and their respective organization also affect the influence of
the Covenants domestically.
This is the case, first of all, of the separation of powers. The first thing to ask is
whether the domestic institutional order employs that principle and how it

83 See Çali, ‘Middle East’ (n 13).

84 On authoritarian regimes, compare Müller, ‘Europe’ (n 27), Tyagi, ‘Asia’ (n 24), and Çali, ‘Middle
East’ (n 13).
85 See Müller, ‘Europe’ (n 27), on the Russian and Eastern European exception.
86 See Pinto and Sigal, ‘Latin America’ (n 42).
87 See Tyagi, ‘Asia’ (n 24) and Çali, ‘Middle East’ (n 13).
88 See Ssenyonjo, ‘Africa’ (n 42). 89 See Tyagi, ‘Asia’ (n 24).
90 See Çali, ‘Middle East’ (n 13). 91 See Müller, ‘Europe’ (n 27).
259

Comparative Analysis of the Regional Influence of the Two Covenants 259

understands it. It is important to know, in particular, whether the legislative, execu-

tive, and judicial powers exercise mutual checks on one another or whether some
have supremacy (eg due to parliamentary sovereignty) over others, and how. Given
the close relationship between international human rights law and the Covenants,
on the one hand, and domestic courts and judicial remedies, on the other, situating
judicial power in relationship to the other two domestic powers, and in particular
the parliament and the administration, is key.92 The situation of judicial power may
affect other fundamental considerations, such as the existence of constitutional and/
or, at least, ‘conventional’ review (based on international human rights treaties like
the Covenants) and the scope of the judicial remedies that can be ordered. It is also
important to know whether that constitutional review can be abstract and thus per-
tain to legislation or even constitutional changes.
Secondly, the existence and scope of pre-legislative human rights scrutiny can also
affect the influence of the Covenants domestically. Its role is to scrutinize any pro-
posed legislation for its compatibility with human rights law. It is important to
ascertain whether its scope is restricted to domestic human rights law or whether it
extends to international human rights law and the Covenants, and to which extent
it encompasses the latter’s interpretations by the Committees’ concluding observa-
tions, Views, or General Comments.93
Thirdly, the existence and scope of executive human rights monitoring is another
factor affecting the influence of the Covenants in domestic law. More and more
States have established an ombudsman or a national human rights commission of
some kind. Some of these have as their mandate to monitor domestic human rights
protection, but most expand it to include international human rights law and the
Covenants.94 Establishing a national human rights institution (NHRI) has become
a requirement for governments and administrations under international human
rights law and the Paris Principles, and this duty has been monitored through the
Human Rights Council’s UPR in particular.
Finally, the scope and organization of domestic human rights adjudication can af-
fect how the Covenants influence domestic law. The first variation factor is whether
domestic courts can review legislation on human rights grounds, adjudicate indi-
vidual cases of human rights violations, and/or even interpret domestic legislation
in the light of the Covenants (eg in order to fill gaps). It is also important to know
which courts can do so (only federal ones, or local ones too; only constitutional or
highest courts, or all of them). Regarding individual human rights complaints, it is
important to identify whether there are specific judicial remedies for human rights
violations. Another relevant feature is whether these remedies are open to violations
of domestic and international human rights law (including the Covenants) alike.95
Another question is whether Covenant rights are applied as such or in light of their
interpretation in the Committees’ concluding observations, Views, or General
Comments and, in the latter case, whether these interpretations are only referred to

92 See Pinto and Sigal, ‘Latin America’ (n 42). 93 See Müller, ‘Europe’ (n 27).
94 ibid.
95 Contrast Ssenyonjo, ‘Africa’ (n 42) and Pinto and Sigal, ‘Latin America’ (n 42) in this respect.
260

260 The Influence of the Two Covenants on States Parties Across Regions
when they pertain to the State in question or to any State (so-called erga omnes ef-
fect). The question of ‘judicial’ or ‘quasi-judicial’ dialogue between domestic courts
and the Committees may be raised in this context. Regarding domestic courts’ rea-
soning, it may be interesting to assess how comparative it is, whether across domestic
human rights law or between international (universal and/or regional) human rights
law and domestic human rights law. As explained previously, it is relevant to identify
whether domestic courts merge domestic and Covenant rights in their reasoning,
and what this leads to with respect to various issues such as jurisdiction, scope, re-
strictions, or remedies. More generally, it is interesting to ascertain what areas of
domestic human rights adjudication are most influenced by Covenant rights and
their interpretations.
Interestingly, some States have introduced special remedies that apply following
a violation of Covenant rights (usually as established in adverse Views by the
Committees), often in their domestic legislation incorporating the Covenants or
facilitating their enforcement in domestic law. These remedies may be prescribed
specifically, such as, for instance, to order the reopening of the domestic judicial
procedure that led to the violation or to fast-track remedial orders when the viola-
tion stems from domestic legislation. In most cases, however, it is up to domestic
judges to remedy the situation within the constraints of the separation of powers
and the domestic constitutional order. Pre-existing domestic judicial remedies of
this kind help compensate for the lack of binding nature of the Committees’ Views.
The absence of such remedies in domestic law explains, for instance, why the most
that victims can expect from governments after adverse Views of the Committees
are often ex gratia payments.

5. Other domestic actors

The role of other domestic actors also affects the influence of the Covenants
domestically.
A first set of such actors are political parties and lobbies. Some have placed inter-
national human rights law, and the Covenants, at the core of their political mandate
and project. This is often the case of opposition parties,96 but not only.
A second group of relevant domestic actors are non-governmental organizations
(NGOs). Some are national, while others are regional or even universal in scope.
NGOs may contribute to the influence of international human rights law and the
Covenants, both in domestic and international institutions and procedures, but
also through sensibilization work with civil society.97 Their contribution may be
felt in the legislature, but also in the judicial process through representation, fact-
finding, or third-party interventions. The Committees have long associated NGOs
with the follow-up process and the reporting procedure in general, and this has

96 See Müller, ‘Europe’ (n 27).

97 See Tyagi, ‘Asia’ (n 24); Patrick Mutzenberg, ‘NGOs: Essential Actors for Embedding the
Covenants in the National Context’, Chapter 5 in this volume.
261

Comparative Analysis of the Regional Influence of the Two Covenants 261

contributed, when these NGOs also have a strong foothold domestically, to enhan-
cing the Covenants’ influence in domestic law.
A third relevant domestic actor for the influence of the Covenants in domestic law
is academia or scholarship. Its influence can occur through research and publications,
but also through teaching, professional training, and academic conferences. All of
these avenues can potentially include Covenant law and contribute to its dissemin-
ation in the domestic legal order.98 Other important factors are the translation of
the Committees’ decisions into local languages or the development of databases per-
taining to Covenant law, as these are often academic projects. One may also mention
other kinds of advanced training in Covenant law, be they organized together with
the bar or other professional associations.
Finally, the role of the media on the influence of the Covenants in domestic law
needs to be assessed in each State. Regular coverage of Views or General Comments
can help remind domestic lawyers and human rights-holders about the Covenants.99

B. An overall assessment: Four trends and five needs

There are four trends that emerge clearly from the comparative analysis of the influ-
ence of the Covenants in domestic law across the five regions examined.
First of all, the existence of preventive domestic legislation and/or remedial judi-
cial remedies enforcing Covenant rights enhances their domestic influence. In that
context, what matters especially is the relationship between the legislature (and/
or administration) and the judiciary, and especially the existence of a separation of
powers and mutual checks between them. This is confirmed by all reports, either
positively in Europe and Latin America100 or negatively in Africa.101 Importantly,
ratification of the two Optional Protocols on the individual complaint mechanism
enhances the influence that existing judicial remedies for the violation of domestic
human rights law can have on Covenant rights protection through domestic courts.
This is echoed in the reports’ findings on Latin America102 and, a contrario, on the
Middle East and Asia.103
Secondly, the overlap between the Covenants and regional human rights law
instruments, and their monitoring bodies, enhances the former’s influence in do-
mestic law. The reports confirm this in Europe and Latin America,104 but also, a
contrario, in Asia and the Middle East.105 Interestingly, however, in the absence
of domestic enabling legislation and judicial remedies specifically dedicated to the
Covenants, the existence of a regional human rights monitoring system, including
a system that includes the Committees’ interpretations into its regional body’s own

98 Tyagi, ‘Asia’ (n 24). 99 See Müller, ‘Europe’ (n 27).

100 See Müller, ‘Europe’ (n 27) and Pinto and Sigal, ‘Latin America’ (n 42).
101 See Ssenyonjo, ‘Africa’ (n 42). 102 See Pinto and Sigal, ‘Latin America’ (n 42).
103 See Çali, ‘Middle East’ (n 13) and Tyagi, ‘Asia’ (n 24).
104 See Müller, ‘Europe’ (n 27) and Pinto and Sigal, ‘Latin America’ (n 42).
105 See Tyagi, ‘Asia’ (n 24) and Çali, ‘Middle East’ (n 13).
26

262 The Influence of the Two Covenants on States Parties Across Regions
interpretations, does not necessarily suffice to secure domestic influence, as con-
firmed in the African report.106
Thirdly, the Covenant’s influence in domestic law depends to a great extent on
political (and judicial) culture. It requires more than pro forma legal protection of
Covenant rights, in other words.107 All of the reports confirm this, but especially
the Asian and Middle Eastern ones,108 which emphasize the lack of political will in
some of the States in these regions and hence also the lack of constructive interaction
with the Committees.
Finally, the Covenants’ influence in domestic law is enhanced when the political
and institutional requirements that stem from general positive duties arising under
Covenant rights are fulfilled. All reports confirm the importance of democracy, con-
stitutionalism, and judicial review for the Covenants’ influence. This is especially
true in Latin America,109 but the same conclusion may also be drawn from the
Middle Eastern report a contrario.110
Generally, among the main directions for future reform that one may identify
from the reports, one should mention the following five.
A first set of needs includes human rights education and information and, more
specifically, the development of databases pertaining to Covenant law domestically
and regionally.111 A second common concern is the need for heightened sensitivity
to moral (and religious) pluralism, and the legal diversity that stems from it across
regions, at the risk of otherwise alienating some States from the Covenants and the
Committees.112 Thirdly, there is a need for more (demographic or cultural) propor-
tionate representation in the Committees.113 A fourth concern pertains to the need
for new means of constructive dialogue and/or pressure by the Committees on States
that do not provide information or only do so pro forma.114 Finally, and more gener-
ally, there is a call for more resources as the price of better human rights protection.115

IV. A Comparative Law Argument for the Authority

of the Committees’ Interpretations

The (legal) authority or binding nature of the Committees’ interpretations of the

two Covenants (concluding observations, Views, and General Comments) has long
been controversial. Instead of approaching the issue in the traditional way and top-
down as a compliance problem, that is, from the perspective of the Committees,
whose authority to settle the question is as controversial as their authority to inter-
pret the Covenants in the first place, comparative international human rights law

106 See Ssenyonjo, ‘Africa’ (n 42). 107 ibid.

108 See Tyagi, ‘Asia’ (n 24) and Çali, ‘Middle East’ (n 13).
109 See Pinto and Sigal, ‘Latin America’ (n 42). 110 See Çali, ‘Middle East’ (n 13).
111 See Ssenyonjo, ‘Africa’ (n 42), Tyagi, ‘Asia’ (n 24), and Çali, ‘Middle East’ (n 13).
112 See Tyagi, ‘Asia’ (n 24). 113 ibid.
114 See Tyagi, ‘Asia’ (n 24) and Çali, ‘Middle East’ (n 13).
115 See Ssenyonjo, ‘Africa’ (n 42), Pinto and Sigal, ‘Latin America’ (n 42), and Müller, ‘Europe’
(n 27).
263

A Comparative Law Argument for Interpretive Authority 263

provides an opportunity to look at it differently, that is, bottom-up and from the
perspective of States.
As a matter of fact, most of the decisive arguments advanced in the discussions to
date stem from general international law, and in particular from the international
law on sources and on responsibility. Interestingly, these customary rules and general
principles arise from State practice. It is the very kind of topic in international law,
therefore, regarding which comparative international law can amount to an essential
resource: it enables us to map State practice and identify a transnational consensus
on the matter.
This comparative approach fits the issue of authority very well. It is a question
whose treatment, as legal philosophers have long realized, should bridge the socio-
logical and normative realms.116 It suffices to stress how difficult it is to distinguish
the duty to obey from the practice of obeying, or the claim to authority from the
exercise of authority, and, more generally, to decide what comes first: the claim or
the practice.117 Given that the kind of sociological data required to settle this ques-
tion cannot but be domestic, since international human rights law binds States to
individuals under their jurisdiction, the comparison of domestic human rights law
and practice has to be central to the elucidation of the authority of the Committees’
interpretations of the Covenants.
Scope precludes rehearsing the debate pertaining to the authority of the
Committees’ interpretations of the Covenants.118 In short, like any other inter-
national treaty, the two Covenants are binding international law. The problem is
that the interpretations of the treaties given by the two Committees were expressly
considered as non-binding by the two treaties. This is evidenced by the terms used,
such as ‘views’, ‘observations’, ‘comments’, or ‘recommendations’.
Unsurprisingly, the Committees have distanced themselves from this starting
point by referring to the good faith obligations of States parties and, more gener-
ally, to their interpretations’ ‘authority’.119 As a result, they have relied on their past
interpretations of the Covenants as if they were binding. The ICJ itself considered
that the Committees’ interpretations should be ascribed ‘great weight’ in the Diallo
case. The reasons it gave were that the States parties have established independent
bodies to interpret the Covenants on the one hand, and that granting their inter-
pretations special weight would serve the goals of ‘clarity’, ‘consistency’, and ‘legal
security’ on the other.120 It is difficult, however, to see how the latter could amount
to an argument in the absence of the former: it is the interpretative authority of the
Committees that seems to be key. Curiously, however, no argument to that effect is
to be found in the ICJ’s decision.

116 See eg Nicole Roughan, ‘From Authority to Authorities: Bridging the Normative/Sociological
Divide’, in Roger Cotterrell and Maksymilian Del Mar (eds), Authority in Transnational Legal
Theory: Theorising across Disciplines (Edward Elgar 2016) 280.
117 See Joseph Raz, The Morality of Freedom (OUP 1986) 65.
118 See eg Gerald L Neuman, ‘Giving Meaning and Effect to Human Rights: The Contributions of
Human Rights Committee Members’, Chapter 3 in this volume.
119 See HRC, ‘General Comment 33’ (2009) UN Doc CCPR/C/GC/33, para 13–14.
120 See ICJ, Diallo (n 76) 664.
264

264 The Influence of the Two Covenants on States Parties Across Regions
Among the international law arguments brought so far in favour of the binding
nature of the Committees’ interpretations, one could mention the responsibility
argument (under ICCPR article 2(2) and (3)) and the ‘quasi-judiciality’ argument.
The former begs the question of why the Committees’ interpretation of the sec-
ondary duties of responsibility, which arise for States anyway, actually binds, and the
latter begs the question of what makes a finding a ‘judgment’, and thus binding, in
the first place. A third argument put forward is that of States’ ‘subsequent practice’,
whether it is validated qua interpretation of the Covenants under the conditions
of article 31(3)(b) of the Vienna Convention on the Law of Treaties (VCLT)121
or arises qua customary international law norm. This is not an argument for the
binding nature of the Committees’ interpretations, however; it merely grounds the
separate authority of the latter’s content in another source of law: States’ consensual
practice or custom.122 The question of the authority of the Committees and their
interpretations remains open as a result.
It is here that comparative international human rights law can help us map State
practice and identify the existence of a potential transnational consensus in that
practice that is sufficiently common to become either a ground for an evolutive in-
terpretation of the treaty or a new custom pertaining to the binding nature of the
Committees’ interpretations. What the five reports show is that the Committees’
interpretations are increasingly treated as part of Covenant law (and not only when
these interpretations are grounded in States’ subsequent practice or custom, as ex-
plained above), and that this applies particularly to concluding observations and
Views. This is especially the case in States that have ratified regional human rights
instruments and acceded to the jurisdiction of their respective courts, since the latter
systematically include the Committees’ interpretations in their interpretations of
their own respective instruments.

V. Three Proposals for Enhancing the Legitimacy

of the Committees’ Interpretations

If the argument proposed in the previous section is correct, and the Committees’ in-
terpretations can bind, their practice needs to change also with respect to legitimacy.
Indeed, establishing the authority of the Committees’ interpretations and their
binding nature under international law does not yet imply that their authority is
justified and hence legitimate. Of course, because the Committees lacked authority
for a long time, their concern for legitimacy was limited. This has even arguably led
to the converse paradox: it is because the Committees did not care enough about

121 Vienna Convention on the Law of Treaties (VCLT) (opened for signature 23 May 1969, entered
into force 27 January 1980) 1155 UNTS 331.
122 This may explain the confusion of the Committee on Economic, Social and Cultural Rights
(CESCR) pertaining to whose subsequent practice should matter under VCLT art 31(3)(b): its own
or States’. See eg CESCR, ‘General Comment 19’ (2008) UN Doc E/C.12/GC/19, para 53a; Daniel
Moeckli, ‘Interpretation of the ICESCR: Between Morality and State Consent’, Chapter 4 in this
volume.
265

Enhancing the Legitimacy of the Committees’ Interpretations 265

justifying (the authority of ) their interpretations that these were not considered
as binding by States until recently. As a result, the time has come to think about
justifying the Committees’ interpretations, and the present comparative study of
the influence of the Covenants, with its transregional focus, is a good opportunity
to do so.
This section makes three interrelated proposals regarding the Committees’ future
practice in this respect: it should take subsidiarity more seriously (V.A); in order
to do so, it should resort to comparison to identify a transnational human rights
consensus on Covenant law (V.B); and, finally, it should make the most of regional
mechanisms for the identification of that consensus (V.C).

A. The role of subsidiarity in Covenant law

A way to justify the authority of the Committees’ interpretations of the Covenants
could be to respect a core principle of international human rights law: human rights
subsidiarity.
A descriptive survey of international human rights law shows that subsidiarity is
usually approached as a two-sided principle: States have the primary responsibility
to secure human rights protection, including through judicial review, and inter-
national human rights bodies or courts have a complementary review power in cases
where international minimal standards are not effectively protected domestically.123
More specifically, the survey reveals three types of human rights subsidiarity: ‘pro-
cedural’, when it pertains to the actual power of the international human rights
court or body to review (eg exhaustion of domestic remedies); ‘substantive’, when
it qualifies the intensity of that review (eg the fourth instance doctrine, the margin
of appreciation, or the principle of favour); and ‘remedial’, when it pertains to the
scope of review (eg the restitutio in integrum principle).124
If the principle of subsidiarity so described is very much at the core of regional
international human rights regimes, the same cannot yet be said about the Covenants
and the Committees’ practice. Interestingly, it is within judicialized international
human rights law regimes, and hence the regional ones, like the 1950 European
Convention on Human Rights (ECHR), with its Court, the European Court of
Human Rights (ECtHR), or the 1969 American Convention on Human Rights,
with its Court, the Inter-American Court of Human Rights (IACtHR), that one
encounters all three types of human rights subsidiarity. In the universal international
human rights regimes, by contrast, the rule seems to be, first of all, that the less insti-
tutionalized they are, the less frequently subsidiarity is invoked and respected. Thus,
while some forms of subsidiarity may be identified in the practice of UN human
rights treaty bodies, very few subsidiarity requirements subsist in the individual

123 See eg the prevailing approach under the law of the European Convention on Human Rights
law (ECtHR, ‘Subsidiarity: A Two-Sided Coin?’ (2015) ECtHR Background paper <www.echr.coe.int/
Documents/Seminar_background_paper_2015_ENG.pdf> accessed 1 April 2017, 1).
124 For a full argument, see Samantha Besson, ‘Subsidiarity in International Human Rights
Law: What is Subsidiary about Human Rights?’ (2016) 61 American J of Jurisprudence 69.
26

266 The Influence of the Two Covenants on States Parties Across Regions
procedures before the Human Rights Council. A second observation is that, even
before human rights treaty bodies like the two Committees, if procedural subsidi-
arity is usually respected, this is not the case for substantive subsidiarity, or then only
in a very limited fashion to the extent that there is no clear reference to the notion
of ‘margin of appreciation’;125 this is also not the case for remedial subsidiarity given
the frequent prescription of individual or general measures as remedies.
Claiming authority for the Committees’ interpretations comes at a price, how-
ever: they should endeavour to respect the principle of human rights subsidiarity
in order to justify the authority of their interpretations and secure their legitimacy.
In international human rights law, subsidiarity amounts to the justification for the
complementary review and interpretation power of international human rights
bodies or courts.126
Justifications of human rights subsidiarity itself are two-fold: epistemic and
democratic. This has been confirmed by the ECtHR, which refers to domestic au-
thorities’ being ‘better placed than an international court to evaluate local needs
and conditions’, on the one hand, and to reasonable disagreement and the special
weight that should be given to the democratically-elected domestic policy-maker,
on the other.127 The epistemic justification of subsidiarity is to be found in the con-
crete nature of human rights duties, whose content can only be specified by refer-
ence to threats existing in domestic circumstances. The democratic justification of
human rights subsidiarity is egalitarian and pertains to the protection of the political
equality of individuals in the specification of their respective human rights and du-
ties through domestic democracy.128
If the Committees are to develop a more rigorous practice of substantive subsidi-
arity, they will need a test to apply in this regard. In regional human rights law, the
test used for human rights subsidiarity is the effectiveness of domestic protection of
the minimal international standard of human rights. The ECtHR and the IACtHR
have developed the criteria of transnational consensus, ‘common ground’, or ‘con-
verging approach’ to identify what constitutes that minimal standard of human
rights protection across the States parties and to determine the corresponding degree
of scrutiny applicable to a given domestic measure. Regrettably, this is not the sole
test at play in these courts’ reasoning when setting the margin of appreciation, how-
ever, and its application remains largely unpredictable as a result. Nevertheless, there
are ways for the transnational consensus test to be streamlined and generalized as a
test for substantive subsidiarity in international human rights law.
Referring to democratic consensus as constitutive of a minimal standard of human
rights protection ties into the democratic justification of human rights subsidiarity.
Importantly, however, the existence or absence of democratic consensus should only

125 See eg HRC, ‘General Comment 34’ (2011) UN Doc CCPR/C/GC/34, para 36.
126 See eg David Szymczak, ‘Rapport introductif: Le principe de subsidiarité dans tous ses états’ in
Frédéric Sudre (ed), Le principe de subsidiarité au sens du droit de la Convention européenne des droits de
l’homme (Anthémis 2014) 15, 27.
127 See ECtHR, SAS v France, App no 43835/11, 1 July 2014, para 129.
128 See Samantha Besson, ‘The Egalitarian Dimension of Human Rights’ (2012) 136 Archiv für
Sozial-und Rechtsphilosophie Beiheft 19.
267

Enhancing the Legitimacy of the Committees’ Interpretations 267

work as a test for the margin of appreciation within the limits of the democratic jus-
tification of subsidiarity itself, that is, provided non-discrimination rights and the
fundamental core of human rights are not infringed.
Of course, some may object that not all States parties to the Covenants are demo-
cratic, and that this jeopardizes the democratic argument for applying human
rights subsidiarity to the Committees’ power of review and to the latter’s intensity
and scope. This democratic objection applies from the perspective of both non-
democratic States and democratic States.
With respect to the former, this is a false problem given that, under international
human rights law, all States have to be democratic as much as they have to respect
human rights. It is unclear, therefore, why the lack of democratic legitimacy of
minimal international democratic and human rights standards should worry the
people of a non-democratic State that is not yet abiding by either of these standards.
Secondly, regarding the impact on democratic States and their populations, the con-
cern may also be put aside. When a State has not ensured sufficient democratic de-
liberation in a given human rights case, its margin of appreciation should be limited
and subsidiarity sidestepped because the conditions for the latter, that is, domestic
deliberation and reason-giving, are not fulfilled.129 Non-democratic States should
not be allowed to contribute further, for instance through the consolidation of their
respective human rights practice into the transnational human rights consensus,
to the development of the minimal international human rights standard that also
amounts to a minimal democratic standard constraining democratic States parties
in return.130

B. The role of comparison and transnational consensus in Covenant law

If transnational human rights consensus is to become the test for substantive subsidi-
arity, and for States’ margin of appreciation under Covenant law, the Committees
should generalize their recourse to comparative international human rights law.
Comparison is the main method available to international human rights bodies and
courts in order to identify a common ground or consensus in States’ human rights
practice.
The importance of comparison in international human rights law becomes clear
once the duality of the domestic-international regime of human rights law is fully
understood.131 One of human rights law’s features, indeed, is the transnational

129 See also Andreas Føllesdal, ‘Appreciating the Margin of Appreciation’ in Adam Etinson (ed),
Human Rights: Moral or Political? (OUP 2018).
130 For a full argument, see Besson, ‘Transnational Constitutional Law’ (n 40). It would be paradox-
ical indeed to insist, on the one hand, on participatory grounds, that all non-democratic States should be
included in the determination of international human rights law and hence in the transnational human
rights consensus, while, on the other, refusing at a later stage to take that consensus seriously because it is
dominated or tainted by so-called ‘pretenders’ and could impose parochial conceptions of human rights.
See also Heyns and Killander, ‘Universality’ (n 22) 673–74.
131 See also Gerald L Neuman ‘Human Rights and Constitutional Rights: Harmony and Dissonance’
(2003) 55 Stanford L Rev 1863.
268

268 The Influence of the Two Covenants on States Parties Across Regions
nature of its sources, be they international or domestic.132 Domestic and inter-
national legal norms protecting human rights relate in a way that is uncommon
in international law: they are not only situated in a relationship of top-down en-
forcement of an international standard in domestic law, but also in a relationship
of bottom-up international recognition of the common law stemming from dif-
ferent domestic legal orders and of its progressive consolidation into a minimal
international human rights standard. Because this transnational minimal standard,
once it has been entrenched, requires the same level of transnational commonality
to evolve one way or the other, levelling-down is rare in practice. Moreover, as ex-
plained before, only the domestic human rights practices regarded as minimally
democratic according to the common standards entrenched in international human
rights law may and should be considered in the further transnational development
of this minimal international human rights standard.
Again, justifications for this transnational process of human rights law-making
are both democratic and epistemic. The moral epistemology of human rights is
social and reflexive,133 and this requires that human rights first be identified in the
socio-political context in which they are already protected in substance, that is, do-
mestically and democratically, followed by international recognition to protect and
entrench these epistemic egalitarian constraints.
Of course, some may object to this justification of transnational human rights
law-making on grounds of the universality of (minimal) international human rights
law. The problem is that international human rights law itself may be criticized for
its lack of universality. The parochialism objection is indeed usually raised in op-
position to the claimed universality of international human rights law and based
on what it regards as the largely parochial conceptions of these rights stemming
from one dominant culture and imposed on others in the name of universality.134
In reply to this objection, one may therefore argue that the transnational making
of human rights law actually amounts to a way of preventing parochial conceptions
from being too quickly entrenched into international human rights law. Starting
from many distinct domestic human rights interpretations and comparing them
on a transnational scale in order to identify common ground can contribute to
questioning the future international human rights standard and hence to making
it less parochial. This is not to say that there are no epistemic qualities in existing
international human rights institutions, such as for example their inclusiveness,
representativeness, or deliberativeness,135 but only that the latter are actually best
understood as complementary and transnational in their functioning rather than
unilateral and top-down.

132 For a full argument, see Besson, ‘Transnational Constitutional Law’ (n 40).
133 See Allen Buchanan, ‘The Reflexive Social Moral Epistemology of Human Rights’ in Miranda
Fricker (ed), Social Epistemology (2018) forthcoming.
134 See Samantha Besson, ‘Justifications’ in Daniel Moeckli, Sangeeta Shah, and Sandesh
Sivakumaran (eds), International Human Rights Law (3rd edn, OUP 2017) 22.
135 See Allen Buchanan, ‘Human Rights and the Legitimacy of the International Order’ (2008) 14
Legal Theory 39.
269

Enhancing the Legitimacy of the Committees’ Interpretations 269

The transnationality of human rights law, thus understood and justified, ex-
plains the specific function comparative law plays or should play in domestic136 and
international human rights reasoning, a role very different from that of scholarly
comparisons or one-to-one judicial references.137 If there is comparison in the con-
temporary dual human rights regime, it is because human rights law claims to be
transnational and hence universal and shares a common ground. It is not merely be-
cause it is interesting, or even strategic, to compare domestic practices, for instance
to clarify certain constitutional concepts.
What this means for the Committees is that they should resort more systematic-
ally to comparative international human rights reasoning by comparing the various
domestic practices pertaining to Covenant rights and try, more regularly, to identify
a transnational consensus.138 Arguably, this is already the way in which State prac-
tice becomes consolidated into Covenant law as subsequent State practice in the
Committees’ concluding observations139 and then reimposed as such onto States
thanks to the perpetuation of this transnational human rights law-making cycle
over time.140 To that extent, the way in which the Covenants’ interpretation is de-
veloped is already truly transnational. It is important, however, to make this process
even more comparative, and in particular to extend that human rights comparison
into the other procedures whereby Covenant law is interpreted, such as General
Comments and individual Views.
Resorting to human rights comparison would enable the Committees to comply
more strictly with the conditions of VCLT article 31(3)(b) when they interpret the
Covenants by reference to subsequent State practice; this method implies substan-
tiating State practice and assessing whether it reveals a new agreement. The fact that
domestic institutions, and especially domestic courts, increasingly resort to com-
parative human rights law (across domestic human rights law rules, but also between
the various universal and regional regimes of human rights law) could, of course, be
of great help to the Committees in this comparative endeavour and should be en-
couraged on the same grounds.

C. The role of regions and regional human rights

regimes under Covenant law
Pursuing human rights comparison, and especially identifying a transnational con-
sensus on that basis, may be more difficult on the Covenants’ universal scale than on
the regional level. This may explain why the minimal human rights standard under
Covenant law has overall been thinner in scope than under regional human rights

136 See Jeremy Waldron, ‘Rights and the Citation of Foreign Law’ in Tom Campbell, KD Ewing,
and Adam Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays (OUP 2011) 410, 423.
137 See eg Christopher McCrudden, ‘Common Law of Human Rights? Transnational Judicial
Conversations on Constitutional Rights’ (2000) 20 OJLS 499.
138 See Pinto and Sigal, ‘Latin America’ (n 42), on the use of the term ‘consensus’.
139 See eg CESCR ‘Report on the Seventh Session’ (23 November–11 December 1992) UN Doc E/
1993/22, para 32 and 49.
140 See also Moeckli, ‘Interpretation’ (n 122).
270

270 The Influence of the Two Covenants on States Parties Across Regions
regimes. Clearly, however, identifying such a universal transnational human rights
consensus is not impossible. As a matter of fact, comparing human rights practice
across regions rather than States may ease the process. Looking for regional human
rights consensuses may be a good way to promote, at an intermediary level, the con-
solidation of a universal consensus around interpretations of Covenant rights.
Various general arguments for the beneficial role of regional human rights law re-
garding the influence of the Covenants in domestic law have been mentioned in this
study, including the supranational judicial remedies available under these regimes
and their integration rules (Section III). These benefits were confirmed by the re-
gional reports corresponding to the four regions, out of the five studied, that have re-
gional human rights instruments in place. From a broader perspective, and to quote
Gerald L Neuman, one may make three arguments for the adoption of regional
human rights regimes: trust, effectiveness, and expertise.141 Regional human rights
bodies staffed by neighbour States’ nationals are more likely to be trusted in adju-
dicating and interpreting human rights than universal ones like the Committees,
more likely to be effective in the authority they claim and in enforcing human rights,
and likely to know better how to interpret human rights in domestic circumstances.
The Asian report actually emphasizes Asian States’ distrust of the distant universal
human rights machinery in charge of monitoring conformity with the ICCPR.142
As a matter of fact, some developments towards the establishment of a new regional
human rights regime are now observed in that region too.143
Importantly, nothing in these arguments for the development of regional human
rights instruments should be interpreted to mean that universal human rights in-
struments like the Covenants and their monitoring by the Committees would be
dispensable, provided regional instruments were in place universally and inclusive
of all States in every region.
Of course, for the reasons mentioned above, regional human rights instruments
and especially regional human rights bodies have been easier to set up and sustain.
History confirms that regional regimes were put in place first or, at least, to a greater
institutional depth, and especially that they were the first ones to be judicialized.
This affects the comparative advantages of both systems today and how they have
grown to coexist through that differentiation. One may mention, for instance, the
differences between the kinds of human rights they protect, between the thickness of
the minimal consensus they reveal on these rights, and, finally, between the kinds of
international remedies they provide, and especially whether these remedies are gen-
eral and political (eg State reporting) and/or individual and judicial (eg individual
applications).
All the same, contemporary fears that regional human rights systems could dis-
place the universal human rights system, or at least undermine it, are wrong.144

141 See Neuman, ‘Import, Export, and Regional Consent’ (n 7) 106; Heyns and Killander,
‘Universality’ (n 22) 673.
142 See Tyagi, ‘Asia’ (n 24).
143 ibid. See Heyns and Killander, ‘Universality’ (n 22) 691ff.
144 See, however, Heyns and Killander, ‘Universality’ (n 22) 674, 695.
271

Enhancing the Legitimacy of the Committees’ Interpretations 271

With respect to the former concern, one should stress that (domestic and regional)
human rights law’s claim to universality implies the coexistence of a (minimal) uni-
versal international human rights standard, at least qua general principles or cus-
tomary law. As a result, there could be no regional human rights law without a
universal human rights regime. A confirmation of this form of epistemic discipline
generated by the universality of international human rights law may be found in
regional human rights courts’ interpretations. The second concern may also be set
aside to the extent that, based on the arguments put forward earlier in this chapter,
it is unclear why regional human rights law and institutions should necessarily be
less democratic and more epistemically parochial than universal ones. Even if they
were, the inherent democratic and egalitarian limitations placed on States’ margin of
appreciation, the international entrenchment of the minimal transnational human
rights standard that requires an equivalent universal transnational human rights
consensus to be amended, and, finally, the reflexive benefits of transnational human
rights comparison within a region would all prevent a regional human rights system
whose guarantees allegedly fall below the threshold of the minimal international
human rights standard from being invoked to derogate from the latter and to level
it down.
Among the specific arguments one may give for the contribution of regional
human rights regimes to the identification of a regional human rights consensus
and, accordingly, to the consolidation of a universal consensus on Covenant rights,
one should, of course, mention the evidence that stems from the existing regimes.145
What the four regional reports show is that regional human rights regimes have led
to the development, over time, of common political or constitutional traits146 in
domestic human rights practice. As a matter of fact, the Asian report confirms that
commonalities can also be identified in Asia despite the absence of a regional human
rights instrument.147
Accordingly, the Committees should encourage regional human rights protection
and interpretations, and, in regions where these are not present, require States to re-
sort more regularly to regional comparisons and to the identification of a regional
consensus. This could, in turn, enable the Committees, in their own reasoning, to
distinguish the claims before them from those addressed by regional courts and,
when available, to rely on one or more regional consensuses. This could then fa-
cilitate the identification of a transnational consensus on Covenant rights based on
commonalities between regional human rights consensuses. This comparison and
search for consensus should, of course, be done in an inclusive and universal way
to avoid privileging some States or some regions over others and developing a paro-
chial interpretation of the Covenants.148 From an institutional perspective, this may
imply restructuring the Committees to create regional rapporteurs, to devolve some

145 See Neuman, ‘Import, Export, and Regional Consent’ (n 7).

146 See Pinto and Sigal, ‘Latin America’ (n 42). 147 See Tyagi, ‘Asia’ (n 24).
148 See eg Gerald L Neuman, ‘Standing Alone or Together: The Human Rights Committee’s
Decision in AP v Russian Federation’ in Eva Brems and Ellen Desmet (eds), Integrated Human Rights in
Practice: Rewriting Human Rights Decisions (Edward Elgar 2017).
27

272 The Influence of the Two Covenants on States Parties Across Regions
of their work to regional sub-committees, or, at least, to hold regional meetings.149
In this respect, an important contribution of better consideration of regional human
rights law in the Committees’ deliberations could be to compensate for the lack of
proportionate representation of the regions in the Committees’ membership.
Provided they can identify a transregional consensus on a given Covenant right
through comparison, the Committees should demonstrate some deference to that
consensus and enforce it through their interpretations of States’ duties. In other
cases, they should grant States parties a broad margin of appreciation. Importantly,
within these boundaries, the existence of a transnational human rights consensus
would not pre-empt the Committees’ power to review and interpret Covenant
rights.150
A separate and difficult question pertains to the relationship, in case of contra-
diction, between distinct regional human rights ‘consensuses’, on the one hand, and
between (some of ) them and the universal human rights consensus, on the other.
In circumstances of reasonable disagreement, one should expect that the respective
consensuses could diverge.
Regarding the former kind of conflict, first of all, the democratic and epistemic
justifications of transnational human rights law point to the priority of the common
ground identified in the relevant region. The existence of these contradictions
should, however, remind regional human rights courts of the importance of sub-
jecting their interpretations to comparative revision and of their necessary corrigi-
bility. Such conflicts should not be all too common, however.151 Indeed, existing
regional human rights regimes have adopted a universalizing approach to the identi-
fication of their respective regional human rights consensuses.152 From the perspec-
tive of the Committees, the identification of such conflicts between regional human
rights consensuses should be taken as a signal in the identification of a potential
universal and transnational human rights consensus.
With respect to the conflict between regional and universal human rights con-
sensuses, second, priorities are more difficult to draw. Of course, much of the time,
regional consensuses are thicker than the universal one and, if conflicts arise, they
fall within the thinner scope of the latter only. However, even in that context, such
conflicts should not be all too common. Indeed, as explained, existing regional
human rights regimes have adopted a universalizing discipline in the identification
of their regional human rights consensuses, and have integrated the Committees’ in-
terpretations of the Covenants into the interpretation of the American, African, and

149 See Heyns and Viljoen, ‘The Impact’ (n 17) 513.

150 Comparing human rights and identifying a transnational human rights consensus should not,
therefore, be equated with requiring the Committees to adopt the lowest minimal common standard
shared by States across regions. For a full argument for the authority of comparative human rights law
and especially of the transnational and transregional human rights consensus, see Samantha Besson,
‘Comparative Law and Human Rights’ in Mathias Reimann and Reinhard Zimmermann (eds), Oxford
Handbook on Comparative Law (2nd edn, OUP 2018) forthcoming.
151 See Heyns and Killander, ‘Universality’ (n 22) 688ff.
152 See eg Demir and Baykara v Turkey App no 34503/97 (ECtHR, 12 November 2008) para 85.
273

Bibliography 273

even European instruments.153 The Committees have also shown a lot of deference
to regional human rights consensus, especially when it is transregional154—albeit
not always by referring expressly to its comparative sources or distinguishing be-
tween them.155 Of course, there are many other reasons for convergence between
the Committees and regional human rights courts.156
In the rare cases in which conflicts between regional and universal consensuses
arise, however, the relationship between the respective consensuses cannot be one
of subsidiarity; subsidiarity is justified on democratic grounds and only applies be-
tween domestic democratic and international human rights law. This is why the
favour clause cannot apply either.157 Some human rights scholars have criticized
this lack of coherence in international human rights law.158 This risk of fragmenta-
tion is usually addressed by reference to international law’s rules on conflicts, and in
particular to the idea of systemic interpretation (VCLT article 31(3)(c)).159 In the
case of conflicts between regional and universal human rights interpretations, one
should add that they share a common universality in the human rights duties they
impose; this is what should guide their respective interpretations.

VI. Conclusions

The transregional scope of this study has provided a unique opportunity to confirm
the role of regional human rights instruments and bodies in international human
rights law descriptively, but also to argue normatively for their justification from the
perspective of the universality of human rights. It has also shown why comparative
international human rights law amounts to much more than a scholarly project and
should become a more integral part of the practice of international human rights
law, including in the Committees’ reasoning.

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27

PA RT I I I
THE FUTURE
What Should Become of the Covenants?
278
279

12
The Covenants in the Light
of Anthropogenic Climate Change
Stephen Humphreys*

I. Introduction

A mere dozen years after the two principal human rights Covenants1 entered into
force in 1976, the Intergovernmental Panel on Climate Change (IPCC) was con-
vened to assess the accumulating reports that human activity was altering the world’s
climate system. Among other things, the IPCC’s exhaustive first report concluded,
in 1990, that climate change was likely dramatically to undermine access to basic
public goods—food, water, healthcare, and shelter—for many millions of per-
sons.2 From this report came the United Nations (UN) Framework Convention
on Climate Change (UNFCCC), signed in 1992 and entering into force in 1994.3
These events straddle the 1993 Vienna World Conference on Human Rights, a
pivotal moment in revisiting and reactivating the Covenants for a post-Cold War
world. Curiously perhaps, the Vienna Declaration and Programme of Action—
although it cites the Rio conference at which the UNFCCC was signed—makes no
mention of climate change.4 In retrospect, this may seem an extraordinary omis-
sion.5 But it has also been, if not actually determinative of subsequent developments,

* This paper has benefitted immensely from review by Prof Olivier de Schutter. I signal his contri-
butions where they arise below.
1 The International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16
December 1966, entered into force 23 March 1976) 999 UNTS 171, and the International Covenant
on Economic, Social and Cultural Rights (ICESCR) (opened for signature 16 December 1966, entered
into force 3 January 1976) 993 UNTS 3.
2 See IPCC, First Assessment Report (1990) <www.ipcc.ch/ipccreports/far/wg_I/ipcc_far_wg_I_
full_report.pdf> accessed 3 April 2017, overview chapter, 54–56.
3 UN Framework Convention on Climate Change (UNFCCC) (opened for signature 9 May 1992,
entered into force 21 March 1994) 1771 UNTS 107.
4 World Conference on Human Rights, Vienna Declaration and Programme of Action (25 June
1993) para 36. See also paras 10 and 11. Given these references, it seems likely climate change was at
least raised in preparatory discussions.
5 The now-extensive literature on the human rights dimensions of climate change emerged only
after the unsuccessful ‘Inuit case’ of 2005. See the petition to the Inter-American Commission on
Human Rights seeking relief from violations resulting from global warming caused by acts and omis-
sions of the United States submitted by Sheila Watt-Cloutier, with the support of the Inuit Circumpolar

280 The Covenants in the Light of Anthropogenic Climate Change

at least predictive of them: the concerns climate change raises for our human rights
system can appear to be overwhelming and, perhaps, like looking directly at the sun,
best avoided.
In this chapter, I try not to be blinded by the likelihood that climate change, and
phenomena associated with it, pose a catastrophe not merely for the human rights
of millions of individuals (however we understand them), but also for the inter-
national machinery nominally charged with protecting those rights. I examine the
future of the Covenants in light of human-induced climate change by reference to
the provisions of the Covenants themselves. The Covenants—and human rights law
more broadly—are undoubtedly (and increasingly) relevant to our management,
or mismanagement, of climate change. Nevertheless, I will suggest that the human
rights dimensions of climate change are most pronounced in precisely those areas of
international human rights law which have traditionally been most ambiguous and
contested—notably social and economic rights, extraterritorial harms, and inter-
State obligations. There is little doubt that climate change raises authentic human
rights concerns—but, I will suggest, these largely escape international human rights
law as it has developed since 1948. This fact has to do as much with other key elem-
ents of the international legal framework (such as trade and investment law) as with
human rights law. In the present chapter, however, I restrict myself to the latter.
It seems fair to project one of three possible futures for the Covenants in light of
climate change:6 root-and-branch reform (or new treaty obligations) to render the
human rights regime capable of taking account of the conditions giving rise to vastly
unequal access to human rights protections in conditions of climate change (un-
likely); ‘business as usual’ in which climate change takes its place next to, or indeed
running through, a series of ‘issues’—business, poverty, trade, tax, finance, ‘devel-
opment’—that engender perennial angst for a human rights regime constitutionally
incapable of digesting them (more likely); or the Covenants’ gradual delegitimation
as felt and extensive human rights harms undermine their relevance (likely—but
avoidable, given the significant institutional anchors securing what is by now a bur-
geoning human rights industry).
In what follows, I take a number of rhetorical stances that need flagging up front.
The first is to decouple the existence of ‘human rights’ from the institutional and
legal machinery that protects them. This is a counter-realist move, insofar as I am set-
ting aside the ubi ius maxim (with which I am essentially sympathetic) that a ‘right’
without a remedy is an immaterial abstraction, so much ideological bluster.7 I avoid
this stance here for three reasons. First, the Covenants themselves—the master texts

Conference, on behalf of all Inuit of the Arctic regions of the United States and Canada (7 December
2005) <http://tinyurl.com/zl37fpq> accessed 28 June 2016.
6 See Stephen Humphreys, ‘Climate Change Pathways and the Future of Human Rights’ in Nehal
Bhuta (ed), The Futures of Human Rights: Collected Courses of the Academy of European Law (OUP 2018)
forthcoming.
7 The debate does not need recounting here. A recent and coherent account of the view I am here
calling ‘realist’, though the author is not ‘realist’ in the usual sense, is Joseph Raz, ‘Human Rights
Without Foundations’ in Samantha Besson and John Tasoulias (eds), The Philosophy of International
Law (OUP 2010) 321.
281

Introduction 281

in the present inquiry—do not approach the existence of rights in this way: rights are
explicitly affirmed as inherent and universal, rather than a consequence of formal
law. That is to say, if we must adhere to formal readings of the law to discover ‘human
rights’, our positive source texts themselves point up a non-positivist source for the
rights they ultimately aim to secure. The human rights of the Covenants pre-exist
them not as a matter of empirical fact, but as a matter of performative self-definition.
Second, although the hard law of the Covenants falls some way short of fulfilling the
promise of their own preambles, it nevertheless adopts a normative, rather than a
descriptive, approach to the ubi ius principle: a lack of remedy indicates not a lack of
right but rather an imperative to institute remedy. This imperative is explicit in the
Covenants and has long driven the ‘human rights movement’. From this perspec-
tive, all rights are, in the Covenants, ‘progressively realized’. Third, in the particular
context of climate change, to take such a ‘realist’ approach to human rights would
largely miss the point. This is because the risk climate change poses for human rights
is precisely that nominal abstract rights—rights said to exist even while awaiting a
legal apparatus to ‘fulfil’ them—seem at risk of disappearing altogether due to the
increasing intractability of the remedial deficit. In conditions of climate change, we
can, in short, expect very many human rights to enter a trajectory of progressive de-
terioration, becoming ever less concrete or realizable. The fact that this deterioration
takes place in such a way that our legal apparatus struggles even to notice formal
‘rights violations’ is less important than the substantive shrinkage of the space of
human rights. For this reason we might regard climate change as an existential chal-
lenge to our existing human rights imaginary.
My second rhetorical stance follows the first: climate change affects—that is,
‘impacts upon’—nominal human rights, understood in this sense. This is a matter
of empirical fact: phenomena associated with man-made (‘anthropogenic’) cli-
mate change have and will have material impacts on millions of people’s daily lives.
Extensive basic goods are at risk for very many people—food, water, shelter, health,
livelihoods, and even life itself—due both to extreme weather events, such as hurri-
canes, floods, and heat waves, and to more gradual changes to local environments,
such as sea-level rise, coastal erosion, increases in the numbers or range of vector-
disease carrying insects, and the disappearance of staple crops.8 At the present rate at
which world greenhouse gas (GHG) emissions are increasing—as they continue to
do year on year—the world will have warmed by more than 4°C above preindustrial
temperatures well before 2100.9 At that temperature, according to reports published

8 In climate literature, these two types of event are known as ‘sudden-onset’ and ‘slow-onset’, re-
spectively. For detailed accounts, see ‘Summaries, Frequently Asked Questions, and Cross-Chapter
Boxes, A Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental
Panel on Climate Change’ in Christopher B Field and others (eds), Climate Change 2014: Impacts,
Adaptation and Vulnerability (IPCC 2015) (hereafter Field, AR5). See also the series of reports com-
missioned by the World Bank and authored by the Potsdam Institute for Climate Impact Research and
Climate Analytics (hereafter Potsdam Institute) entitled Turn Down the Heat (<www.worldbank.org/
en/topic/climatechange/publication/turn-down-the-heat> accessed 14 November 2015) (hereafter the
Turn Down the Heat series).
9 Potsdam Institute, Turn Down the Heat: Confronting the New Climate Normal (vol 3, 2014)
<https:// o penknowledge.worldbank.org/ b itstream/ h andle/ 1 0986/ 2 0595/ 9 781464804373.
28

282 The Covenants in the Light of Anthropogenic Climate Change

by the World Bank, the world—and particularly the tropics—will regularly undergo
heat-waves of a frequency, magnitude, and duration beyond anything experienced
to date.10 This expected outcome would barely be dented if all the climate pol-
icies currently tabled by the world’s governments were to be fulfilled.11 The formal
Paris targets of 1.5–2°C are, in the meantime, extremely ambitious, given growing
world populations and the scale of developmental needs (themselves re-describable
as human rights) that must be met even as greenhouse emissions are sharply cut.12
It is worth pointing out that, at time of writing, it is not known whether this can be
done—the required technologies remain unproven.13 Climate change thus presents
much of the world with an invidious choice between the horrors of extreme climate
impacts as against locked-in conditions of poverty and economic inequity. The first
of these are already being felt. The second too, of course—the threat of climate
change is that the horizon of eventual relief may now be receding.
These shocks are tangible whether or not we articulate them as ‘human rights’-
related. They can be articulated in human rights terms in part because they are
ascribable to human activities (as opposed to being mere effects of ‘nature’).14 This
is not straightforward, of course. But if we accept the articulation of human rights
found in the Covenants, we are constrained, I think, to accept this basic point: phe-
nomena associated with climate change affect the enjoyment of the human rights
enumerated in the Covenants. This is already happening and it will get much worse.
Third, climate change is, in a literal sense, a ‘global’ problem, one that in certain
important respects is unimpressed by the territorial borders of the world. In the par-
ticular case of climate change, the (natural) borderlessness of the world is especially
invidious: climate change is not typical of ‘transboundary harm’ as we have come to

pdf?sequence=3&isAllowed=y> accessed 4 April 2017, 4–5. This is based on a sample of 114 scenarios,
collectively predicting ‘a warming of 4.0–5.2°C above pre-industrial levels by 2100’ (4), with most ex-
pecting 4°C by the 2080s (5).
10 ‘Projections for a 4°C world show a dramatic increase in the intensity and frequency of high-
temperature extremes. Recent extreme heat waves such as in Russia in 2010 [killing 10,000 persons]
are likely to become the new normal summer in a 4°C world. Tropical South America, central Africa,
and all tropical islands in the Pacific are likely to regularly experience heat waves of unprecedented
magnitude and duration. . . . In regions such as the Mediterranean, North Africa, the Middle East, and
the Tibetan plateau, almost all summer months are likely to be warmer than the most extreme heat
waves presently experienced’ Potsdam Institute, Turn Down the Heat: Why a 4°C Warmer World Must
Be Avoided (vol 1, 2012) <http://documents.worldbank.org/curated/en/865571468149107611/pdf/
NonAsciiFileName0.pdf> accessed 3 April 2017, xv.
11 Climate Action Tracker predicts a rise of 3.6°C were current policies (as opposed to promises)
fulfilled. See Louise Jeffery and others, ‘Climate Action Tracker Update: 2.7°C is Not Enough: We Can
Get Lower’ (Climate Action Tracker 2015) <http://tinyurl.com/zuzzqgl> accessed 27 June 2016, 6.
12 Detlef P van Vuuren and others, ‘RCP2.6: Exploring the Possibility to Keep Global Mean
Temperature Increase Below 2°C’ (2011) 109 Climatic Change 95–116.
13 ibid.
14 See the discussion in Judith N Shklar, Faces of Injustice (Yale University Press 1994) 2–3, where
she notes that human responsibility also arises where there is a mere failure to predict, or protect against,
natural disasters. Arguably, in conditions of climate change, the distinction between ‘nature’ and ‘the
human’ assumed by Shklar has become increasingly fuzzy: earthquakes and tsunamis aside, the destruc-
tive force of very many natural phenomena (floods, storms, droughts, and hurricanes) are partly attrib-
utable to human activity. See Christopher B Field and others (eds), Managing the Risks of Extreme Events
and Disasters to Advance Climate Change Adaptation: Special Report of the IPCC (CUP 2012).
283

Preambles to the Covenants 283

understand the term; nor is it an obvious exercise of (executive) extraterritorial jur-

isdiction. It does not conform straightforwardly to the model of actions undertaken
in or by one State with consequences in or for another. The causal chain is rather
more complex than that familiar model implies: acts undertaken by myriad individ-
uals in lots of States alter gas concentration levels at atmospheric (and so planetary)
level, which in turn result in local-level changes that vary according to conditions
that are—politically and legally, at least—quite unrelated to the locus of any par-
ticular emission of gases.15 We can probably bracket much of this complexity for
purposes of what is sometimes called ‘general international law’, but the problem is
of particular relevance to international human rights law. The transboundary locus
of climate change has generally been articulated as raising issues of extraterritorial
jurisdiction under human rights law, but this may not be the most sensible, or ac-
curate, way to approach it. I will discuss this too presently; for now it is enough to
flag its centrality to any attempt to think through the relevance of the Covenants to
climate change.
Those three moves in view, following this introduction (Section I), I will under-
take to examine the language of the Covenants in the light of climate change, with a
particular focus on the framing language of the preambles (Section II), the notion of
‘self-determination’ in common article 1 (Section III), the notion of jurisdiction in
respective articles 2 (Section IV), and the question of derogation and limitation in
respective articles 4 and common article 5 (Section V). In the light of this discussion,
I will then pose the question of the relevance of the Covenants to climate change
more broadly in my conclusion (Section VI).

II. Preambles to the Covenants

Although the preambles of the two Covenants are not identical, most of the text of
each is common to both. Relevant excerpts follow:
Considering that . . . recognition of . . . the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world . . .
. . . these rights derive from the inherent dignity of the human person . . .
. . . the ideal of free human beings enjoying [civil and political freedom and]16 freedom from fear
and want can only be achieved if conditions are created whereby everyone may enjoy his [civil and
political rights, as well as his economic, social and cultural rights]17 . . .
Considering the obligation of States under the Charter of the United Nations to promote uni-
versal respect for, and observance of, human rights and freedoms,

15 The most succinct and authoritative account of climate science is provided in the Summary
for Policymakers of successive IPCC reports, the most recent being Rajendra K Pachauri and others,
Climate Change 2014: Synthesis Report, Contribution of Working Groups I, II and III to the Fifth Assessment
Report of the Intergovernmental Panel on Climate Change (IPCC 2014) (especially the ‘Summary for
Policymakers’, 2 ff).
16 This clause is absent from the ICESCR. 17 This clause is reversed in the ICESCR.
284

284 The Covenants in the Light of Anthropogenic Climate Change

. . . the individual, having duties to other individuals and to the community to which he be-
longs, is under a responsibility to strive for the promotion and observance of the rights recognized
in the present Covenant . . .
In the grounding register of contemporary human rights, they are ‘equal’ and ‘in-
alienable’ and derive from the ‘inherent dignity’ of the human person. These words
are so familiar, indeed, that it is easy to forget how odd is the claim put forward here.
Human rights are said to pre-exist the legal or institutional machinery required to
frame or fulfil them. They are pre-political (equality), pre-economic (inalienable),
and pre-personal (inherent). Most surprisingly of all, they are ahistorical. Human
rights, as proclaimed in the Covenants, have not been won or earned. They are a
prize neither of political struggle nor of what, a mere decade earlier, would still have
been called, without embarrassment, the ‘progress of civilization’. They owe their
existence neither to the evolution of political institutions nor to any particular legal
culture. They are simply there, ‘natural’: rights inherent to an entity found in nature,
within whom they were, presumably, discovered.
There is, I think, only a mild irony in noticing that this ahistoricism and apoliticism
were symptomatic of the particular time in which the Covenants were drafted and
signed. At the height of the Cold War, and with colonialism collapsing apace, ref-
erence to any history—not to mention a politics, a ‘civilization’, a legal ‘culture’,
global or local—could not have achieved universal assent. The preambles amounted
to a great statement of global agreement, despite discord on just about everything
else. In the particular (that is, historically contingent) context of the Covenants, the
ahistoricism and apoliticism of human rights is thus, presumably, neither conjec-
ture, conclusion, nor error, but strategy. Procedurally—and in this the Covenants
repeat the war-superseding strategies of the Universal Declaration of Human Rights
(UDHR)18 and indeed the UN Charter itself19—they aim to achieve universalism
by fiat: here are some basics on which we can all agree, even in a divided world;
we recognize them as universal because we have proclaimed it so. Substantively, this
universalism appears intended as a bulwark against history and politics. In history,
in politics, human rights are frequently, repeatedly, rescinded or put into doubt. It
is the point of the Covenants to stand against the tide of history and remove any
doubt: human rights are equal, inalienable, inherent. This is a heroic effort at legis-
lation: determining not merely what the law is to be, but what the human subject of
the law too is—as a matter of simple (albeit legislated) fact.
(In climate change law, by contrast, many of these elements appear in inverse.
Climate change itself is, of course, a historical, a political, an economic, possibly
even a cultural phenomenon. But it is also a social error, a market failure. It is,
in fact, just the sort of development the Covenants might have been designed to
anticipate—a historical event that threatens ahistorical rights. In consequence, the
universalism of climate change law is profoundly contingent—a series of steps and

18 Universal Declaration of Human Rights (UDHR) (adopted 10 December 1948) UNGA (United
Nations General Assembly) Res 217 A(III).
19 Charter of the United Nations and Statute of the International Court of Justice (UN Charter)
(opened for signature 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI.
285

Preambles to the Covenants 285

targets and ratchets designed to move us (all humanity!) from contagious instability
into a mode of ‘stabilization’. Climate change affects everyone everywhere, but not
equally. In climate law, humanity appears rather as survivors on a life-raft, learning
how to overcome the consequences of our hubris, than autonomous carriers of the
noble ‘human’ spirit.)
That presumed noble human spirit drives the Covenants, however, whose pre-
ambles, like the UDHR itself, ‘found’ ‘freedom, justice and peace’ in the world
on ‘recognition’ of this fact—that is, of the inherent equality and inalienability of
human rights. The whole construction is very much more abstract than the frankly
concrete statement of purpose opening the UN Charter: ‘to save succeeding gen-
erations from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind’. At the same time, it is difficult to understand broad appeals
to ‘social progress’ and ‘development’ in the Charter and in countless subsequent
international instruments—including, for that matter, the UNFCCC (‘social and
economic development and poverty eradication’)—without an appeal to something
like an inherent and universal equality of humankind. It is presumably this bald
claim to a foundational status that gives the UDHR and the Covenants their privil-
eged place in the rhetoric of international law. Similar demands have come to litter
UN documents; and while they are not always articulated as human rights claims,
there exists an undeniable consonance—or even identity—between ‘progress’, ‘de-
velopment’, and ‘human rights’. In the rhetorical universe of the United Nations,
the pursuit of these goals characterizes the legitimate State.
Human ‘freedom’, according to the Covenants, will ‘only be achieved’ if ‘condi-
tions are created whereby everyone may enjoy’ their rights. This looks like a restate-
ment of article 28 of the UDHR: ‘Everyone is entitled to a social and international
order in which [their] rights and freedoms . . . can be fully realized.’ Like article 28,
the preambular language looks beyond the autonomous territorial State, apparently
to a community of States in the service of a universal human subject. The preambles
apparently assume an obligation on States proactively to ‘create’ conditions for the
flourishing of human rights. And yet, the only obligation concretely stated therein
repeats the Charter’s own mild exhortation to ‘promote universal respect for, and
observance of, human rights and freedoms’. The term ‘universal’ works hard in this
formula to return some of the heft apparently abandoned by the word ‘promote’.
But still, it is thin gruel.
It may therefore seem reasonable to read the preambles as assuming, at a min-
imum, a negative obligation on States not to disrupt the international ‘conditions’
in which substantive human rights can be ‘enjoyed’ by ‘everyone’. By the same
token, should something disturb the ‘equality’ of rights (by rendering one person’s
rights more vulnerable than another’s) or their inalienability (by removing a right
altogether, or rendering it removable) it must also presumably alter the conditions of
possibility of human rights protection. Anthropogenic climate change would then
seem to be the sort of thing States are expected, even required, to avoid.
However, it is hard not to conclude, especially in light of the substantive provi-
sions in Part III of both Covenants, that these preambles mark a shift away from the
‘social and international order’ language of the UDHR. They say nothing about what
286

286 The Covenants in the Light of Anthropogenic Climate Change

international ‘conditions’ for the enjoyment of human rights might be or how they
might be established. This gap is of course familiar across a range of international
problems: ‘global poverty’; the externalities (to adopt a widely used euphemism) of
international trade and of financial speculation; and ‘business and human rights’.
How to iron out the often-remarked mismatch between soaring global rhetoric and
its persistent flouting?
Climate change revives this problem in even starker terms: the ‘international condi-
tions’ for the fulfilment of human rights are worsening. Many millions are finding their
human rights less available for ‘enjoyment’. And some are more vulnerable than others
to human rights threats or to their loss altogether.

III. Common Article 1 (Self-determination)

1. All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international law. In no case may a
people be deprived of its own means of subsistence.

The notion of ‘self-determination’ in international law has undergone significant

evolution since the Covenants were signed, in well-known developments that began
long before their signature.20 Legal discussion of self-determination has mainly
had to do with decolonization and the preservation of borders.21 It is interesting
to notice, however, that the specific articulation of this ‘right’ in the Covenants has
relatively little to say about either. Of much greater importance to the drafters, ap-
parently, was the question of control over ‘natural wealth and resources’ as well as
‘economic, social and cultural development’—elements that have received much
less attention in the literature.22

20 ‘Self-determination’ in international law is of course traceable back to the League of Nations

and reappears as one of the ‘purposes’ of the UN Charter, art 1(2). The key development—the UN
Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514
(XV) (14 December 1960) (adopted by eighty-nine votes to none; nine abstentions)—triggered an
evolution that takes place in parallel to, and certainly informs, that of the Covenants. See in particular
Karen Knop, Diversity and Self-Determination in International Law (CUP 2008) chs 1–3.
21 The key case law comprises the ICJ opinions on Western Sahara (Western Sahara (Advisory
Opinion) [1975] ICJ Rep 12); the Palestinian Wall (Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136); South Africa/Namibia (Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwith-
standing Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 12); and Kosovo
(Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
(Advisory Opinion) [2010] ICJ Rep 403); and the ICJ’s rulings in a number of boundary disputes.
22 So, eg two recent major contributions on the topic essentially restrict discussion to the ‘polit-
ical’ issues of secession and border control, largely avoiding or ignoring the questions of ‘economic’
self-determination. See the contributions to Fernando R Tesón (ed), The Theory of Self-Determination
(CUP 2016) and Jörg Fisch, The Right of Self-Determination of Peoples: The Domestication of an Illusion
(CUP 2015). The question is also raised with regard to indigenous rights and also the new prevalence
287

Common Article 1 (Self-determination) 287

It is true that self-determination in this domain—as in the case of ‘political

status’—might amount to no more than the absence of ‘alien subjugation, domin-
ation and exploitation’ (as it is put elsewhere)23 or to the presence of some basic in-
stitutional mechanisms of public consultation, such as democratic elections, public
‘consultation’ or ‘participation’, or ‘free, prior and informed consent’.24 But the in-
sistence of article 1(2), in particular, would seem to point beyond this reading. ‘[F]‌or
their own ends’, ‘their natural wealth and resources’, a people’s ‘own means of sub-
sistence’: this persistent language of ownership is unmistakably consonant with the
various expressions of ‘permanent sovereignty over natural resources’ (PSNR) that
flourished over this same period.25 That language was concerned not primarily with
the mechanics of freedom from colonial rule itself, but with the political realities
of post-colonial independence. The various declarations and statements about ‘per-
manent sovereignty’ rarely innovate legally, but rather—at a time (the 1950s) when
the old Powers repeatedly intervened, politically and militarily (in Iran, in Egypt), to
preserve privileged access to the world’s natural resources—they reassert the legalist
principle of sovereignty in a realist post-colonial context.26
The references to ‘international economic cooperation’ and ‘mutual benefit’ fur-
ther emphasise this point: at issue here is the relationship between international de-
mand for primary commodities, on which many postcolonial states were dependent,
on one hand, and local needs (or ‘ends’), on the other. But at what point would for-
eign acquisition of a people’s ‘natural wealth’ constitute breach? The answer must
presumably lie in indicators as to whether the ‘people’ in question ‘freely disposed’
of it. What might constitute such indicators? Endemic poverty? Chronic energy
shortages? Whether the proceeds from exported natural resources remain solely or
primarily in private hands? Whether they were inadequately taxed or contributed
little to local revenues? These are in fact the sorts of questions the Committee on

of ‘land-grabs’, notably in Africa (itself in part a policy response to climate change). See eg Olivier
De Schutter, Special Rapporteur on the Right to Adequate Food, ‘Large-scale Land Acquisitions and
Leases: A Set of Core Principles and Measures to Address the Human Rights Challenge’ (11 June
2009) 12. See too Leif Wenar, Blood Oil (OUP 2016).
23 UN Declaration on the Granting of Independence (n 20) para 1: ‘The subjection of peoples to
alien subjugation, domination and exploitation constitutes a denial of fundamental human rights’. See,
for a later iteration, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts (Protocol I) (opened for signature 8 June
1977, entered into force 7 December 1978) 1125 UNTS 3, art 1(4), bestowing legitimacy on armed
conflicts against ‘colonial domination and alien occupation and against racist régimes in the exercise of
[the] right of self-determination’.
24 ICCPR art 21, and the UN Declaration on the Rights of Indigenous Peoples (UNGA Res 61/
295 (13 September 2007) UN Doc A/RES/61/295), respectively. See the discussion in the Quebec case
(Supreme Court of Canada, Reference re Secession of Quebec, 37 ILM 1340 (1998)).
25 See UNGA, ‘Recommendations Concerning International Respect for the Rights of Peoples and
Nations to Self-determination’ UN GAOR 9th Session Supp No 18 UN Doc A/4090 (1954) 27: ‘the
right of peoples and nations to self-determination as affirmed in the two draft Covenants completed
by the Commission on Human Rights includes “permanent sovereignty over their natural wealth and
resources”’. See also Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (CUP
2008) especially 49–56 and 134–42.
26 See the contributions to the special issue 6(1) of Humanity journal (2015) on the New International
Economic Order.
28

288 The Covenants in the Light of Anthropogenic Climate Change

Economic, Social and Cultural Rights might pose to States.27 In practice, however,
poverty, energy shortages, and capital flight remain common in many resource-rich
developing countries—whereas violation of the right of self-determination is rarely
invoked (indeed, the precise wording of article 1(2) is slippery on just this point).28
Revisited from the perspective of climate change, further wrinkles arise. It turns
out that, under colonialism, the old powers were not merely helping themselves to
the world’s resource wealth; they were also exhausting the world’s carbon dump.29
Only as it has gradually become clear that the global capacity to absorb carbon is
sharply limited has the global carbon dump itself become cognizable as a ‘natural
resource’. Indeed, it is arguably the quintessential natural resource—for, absent sig-
nificant technological progress not yet seen, it remains the basic requisite for ‘social
and economic development’. ‘Free disposition’ over a notional ‘national’ carbon
dump is, of course, precisely what is at stake in the discussions seeking reduction
of greenhouse gas emissions under the UNFCCC.30 But absent strong universal
binding targets that preserve sufficient carbon space for all (an unlikely scenario),
the developmental space—the carbon dump—of very many countries in the world
is currently being swallowed up by a handful of high-emitting States.31
Moreover, a direct result of this over-ingestion of the natural resources supposedly
belonging to certain ‘peoples’ (for that is the implication of articles 1(2) and 1(3)),
is that many of those same peoples are beginning to suffer the effects of climate
change: the floods, droughts, conflicts, and myriad other harms that attend it. That
is, the ‘peoples’ in much of the world are losing the capacity to predict, much less con-
trol, the environment in which they live and work. For this reason, control over the
carbon dump may be thought of as a sine qua non of any right of self-determination,
whether conceived in the sense of actually ‘disposing’ over one’s ‘national’ wealth,
or in the much weaker sense of simply being able to predict the conditions in which
life will be lived in the foreseeable future. Here the UNFCCC’s distinction between
‘developed’ and ‘developing’ countries bites, for a principal marker of a ‘developed’
country is its greater resource-ability to predict and adapt to phenomena such as
those associated with climate change.
As a general matter, to agree—for the purposes of managing climate change—not
to dispose of certain resources at all (such as forests, coal, or oil), would look like a

27 My thanks to Olivier de Schutter for clarifying this point.

28 A breach may be more evident in the context of other, more quantifiable, human rights harms,
such as a ‘people’ dwelling in proximity to a source of ‘natural wealth’ who experience systematic viola-
tions of human rights associated with its extraction. See African Commission on Human and Peoples’
Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v
Nigeria, Communication 155/96, 27 May 2002, paras 55–59.
29 I take the term ‘global carbon dump’ from Larry Lohmann, Carbon Trading: A Critical Conversation
on Climate Change, Privatisation and Power (CornerHouse 2006).
30 An early articulation of the relevant stakes is provided in Henry Shue, ‘Subsistence Emissions and
Luxury Emissions’ (1993) 15 L & Policy 39.
31 Again, the point was clarified early on: Anil Agarwal and Sunita Narain, Global Warming in an
Unequal World: A Case of Environmental Colonialism (Centre for Science and Environment 1990). For
recent comparative figures of per capita greenhouse gas emissions by country, see World Resources
Institute, ‘CAIT Country Greenhouse Gas Emissions Data’ <www.wri.org/resources/data-sets/cait-
country-greenhouse-gas-emissions-data> accessed 29 January 2016.
289

Common Article 1 (Self-determination) 289

voluntary abrogation of the right of self-determination (‘inalienable’ though it may

remain).32 That in view, the right to ‘freely dispose’ of one’s natural resources ‘for
[one’s] own ends’ presumably dovetails with the principle of ‘common but differen-
tiated responsibilities’ (CBDR) found in the UNFCCC (art 3(1)).33 On this prin-
ciple, ‘developing countries’ have lesser obligations to address climate change than
‘developed’ countries—although the criteria for distinguishing between these two
groups are increasingly unclear.34 So if the relevant people’s ‘ends’ were especially
pressing—and this is of course the whole point of the term ‘developing country’—
the Covenants’ article 1(2) would presumably buttress CBDR and cognate elements
of the climate regime.35 Indeed, with their reference to the ‘free disposal’ of natural
resources, the Covenants arguably add a more explicitly political dimension to the
UNFCCC’s technocratic and developmentalist language.
Although no claim based on article 1(2) has (to my knowledge) been raised in the
climate context (whereas the broader question of self-determination has been dis-
cussed),36 it seems correct to assume that its PSNR charge may exert a certain mag-
netism over the final shape of the climate regime. The UNFCCC itself hints at this in
its preamble, in which it is ‘recalled’ that ‘States have, in accordance with the Charter
of the United Nations and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental and developmental
policies’. This ‘right’ is coupled, in the same paragraph, with ‘the responsibility to
ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction’.
That this coupling takes the form of a balancing of rights and responsibilities seems

32 Such agreements inform the ‘nationally determined contributions’ States must submit in accord-
ance with the 2015 Paris Agreement (opened for signature 12 December 2015, entered into force 4
November 2016) art 4.
33 This key principle ensured that only wealthy countries took on binding targets in the UNFCCC’s
Kyoto Protocol (Kyoto Protocol to the United Nations Framework Convention on Climate Change
(11 December 1997, entered into force 16 February 2005) 2303 UNTS 162). Despite coming under
attack, the principle remains in the Paris Agreement, signed in December 2015. All countries now
undertake to act on climate change (through ‘nationally determined contributions’ (NDCs)), but the
Agreement recognises developing countries’ special need for continued development space.
34 The UNFCCC itself and the Kyoto Protocol both included Annexes listing putative ‘developed’
countries—though the residual status of ‘developing countries’ was not altogether clear. The Paris
Agreement includes no annexes; though the term remains central to the Agreement, its precise scope is
speculative.
35 Such as UNFCCC art 4(7), which recognizes that ‘economic and social development and pov-
erty eradication are the first and overriding priorities of the developing country Parties’. Though this
language is not repeated in the Paris Agreement, it is honoured to a degree in repeated references to
‘sustainable development and poverty eradication’ (not that this is any clearer).
36 See eg ‘Understanding Human Rights and Climate Change, Submission of the Office of the
High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations
Framework Convention on Climate Change’ (26 November 2015) <www.ohchr.org/Documents/
Issues/ClimateChange/COP21.pdf> accessed 30 June 2016, 14. Self-determination in the context of
climate change has been raised in reports and statements of the Office of High Commissioner for
Human Rights and of its Special Procedures since about 2008, but the emphasis has generally remained
on the ‘political’ question, particularly in light of sinking island States. See too, in this context, Susannah
Willcox, ‘A Rising Tide: The Implications of Climate Change Inundation for Human Rights and State
Sovereignty’ (2012) 9 Essex Human Rights Rev 1–19.
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290 The Covenants in the Light of Anthropogenic Climate Change

self-evident in the early formulation from which the UNFCCC language is lifted
(Principle 21 of the 1972 Stockholm Declaration on the Human Environment).37
However, in the context of climate change, it is far from obvious that ‘balancing’ is
likely to be at issue here. Fossil fuels—which are far and away the primary driver of
climate change—trade as international commodities, so the locus of ‘belonging’ in
the PSNR sense and the locus of any harm-doing (ie where oil and coal are actually
burned and emit carbon) are not necessarily, or even generally, the same. The ‘right’
and the ‘responsibility’ bifurcate. (Deforestation presents a less stark example of this
same phenomenon insofar as much timber is produced primarily for export mar-
kets). Indeed, for the great majority of developing States voluntarily relinquishing
their art 1(2) PSNR rights in the Paris context (by agreeing to mitigation measures)
there is in fact no balancing ‘responsibility’ that would require them to do so. To this
day, the world’s forty-eight ‘least developed countries’ are not net contributors to
climate change.38 One would therefore expect art 1(2) to support a stronger form of
CBDR than that found in the Paris Agreement.
A final interesting element of common article 1, from a climate perspective, is the
proviso that ‘[i]‌n no case may a people be deprived of its own means of subsistence.’
Much hangs on the word ‘own’ in this sentence. The article seems to articulate an
assumption that ‘peoples’ actively ‘own’ their means of subsistence, but of course this
is generally not the case. Common ownership—which this would seem to imply—is
exceedingly rare, especially for resources needed for ‘subsistence’, such as forests,
soil, food, and water.39 Insofar as there is ‘public’ (rather than common) ownership
in these resources (such as forests, rivers, and parks), they are generally off bounds
for ‘subsistence’ (though not always). For the most part, however, ‘means of subsist-
ence’ today refers to participation in a labour force providing the wherewithal to
buy essentials on an open market—that is, from other owners, who need not be ‘the
people’ and may well be (and often are in fact) foreign.
Still, however we understand it, climate change impinges directly on this element
of the right of self-determination. To take the obvious point first: species extinction,
drought, or the disappearance of locally-adapted crops: each of these would appear
to pose a loss of the means of subsistence for some, whether or not the means reside
in some form of communal ownership or are obtained through wage labour. The
loss would presumably be, in many cases, to a ‘people’, because effects of this nature
will tend to impact upon regions, rather than localities. The loss will amount to a

37 Declaration of the UN Conference on the Human Environment (16 June 1972) UN Doc A/
Conf.48/14/Rev.1, 11 ILM 1416 (1972).
38 A thorough account of the relative contribution of different countries is provided in Paul Baer and
others, Greenhouse Development Rights: The Right to Development in a Climate Constrained World (2nd
edn, Heinrich Böll Foundation and others 2009). More recent, though less nuanced, information can
be found on the website of the Climate Action Tracker (<http://climateactiontracker.org/countries.
html> accessed 20 June 2016).
39 Jona Razzaque, ‘Natural Resources in the Global Environmental Order’ in Elena Blanco and
Jona Razzaque (eds), Natural Resources and the Green Economy (Martinus Nijhoff 2012) 82–111, 87–
90; Emeka Duruigbo, ‘Realizing the People’s Right to Natural Resources’ (2011) 12 Whitehead J of
Diplomatic & International Relations 111; Emeka Diruigbo, ‘Permanent Sovereignty and Peoples’
Ownership of Natural Resources’ (2006) 38 The George Washington Intl L Rev 33.
291

Jurisdiction (Articles 2) 291

‘deprivation’ because it presumably would not have happened had the major GHG
emitters desisted from the actions causing these outcomes. By the same token, their
right of self-determination has been arguably violated.40 This will also be the case
where forest-dwelling peoples, for example, may be prohibited the use of forests in
order to preserve them through REDD+ programmes.41 The difficulty with each of
these apparently self-evident positions is that there has been neither case law sup-
porting claims of this sort since the Covenants’ entry into force, nor much evidence
of a State practice interpreting article 1 in a way that would assume that ‘peoples’
dispose of ‘their’ natural resources in this manner. Where there is such State practice,
as in the case of Norway’s sovereign fund for managing its oil wealth, there is little
sign that it derives from an understanding of Covenant obligations.

IV. Jurisdiction (Articles 2)

The two Covenants feature differing articles 2. I will take them in turn, with the
ICCPR followed by the ICESCR and then by a comparative note.

A. Article 2 of the ICCPR

ICCPR Article 2 raises a number of flags from the perspective of climate change.
First, and perhaps most important, is the jurisdictional clause. Each State is to guar-
antee the rights recognized in the ICCPR to ‘all individuals within its territory and
subject to its jurisdiction’ (art 2(1)). The immediate and obvious point is that, where
excess GHG emissions in one State contribute to harms experienced in a second
State, individuals affected in the second State cannot expect, on the wording of the
Covenant, that their affected human rights are protected by the emitting State, as
they are neither ‘within its territory’ nor ‘subject to its jurisdiction’.
This would not be the case were we to interpret the actual effect of excess GHG
emission to be a form of ‘subjecting’ individuals to the jurisdiction of the emitting
State. At its extreme, such a position would amount, in effect, to asserting that excess
GHG emissions in any given State subject everyone everywhere to the jurisdiction
of the emitting State.42 In a more modest form, it might be claimed that individuals

40 The point is addressed explicitly in the 2009 report of the UN High Commissioner for Human
Rights on human rights and climate change (UNGA ‘Report of the Office of the United Nations High
Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’
(15 January 2009) UN Doc A/HRC/10/61, para 40) (my thanks to Olivier de Schutter for reminding
me of this source).
41 United Nations Programme on Reducing Emissions from Deforestation and Forest Degradation
(UN-REDD Programme) ‘Guidelines on Free, Prior and Informed Consent’ (January 2013) <www.
uncclearn.org/sites/default/files/inventory/un-redd05.pdf> accessed 4 April 2017. See too UNGA
‘Report of the Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Sepulveda
Carmona’ (22 May 2014) UN Doc A/HRC/26/28, para 18.
42 This is because specific emissions, rather than contributing in a linear manner to specific climate
related events, contribute to the overarching phenomenon of climate change itself, which does, of
course, affect everyone everywhere.
29

292 The Covenants in the Light of Anthropogenic Climate Change

are subjected to the State’s jurisdiction (let us say the State’s ‘executive jurisdiction’)
only insofar as they are actually harmed by climate change related phenomena,
attributable in turn to (excess) emissions from within a given State. Since not all
States are equally responsible for harmful emissions, this would imply a hierarchy
of responsibility. Such an assertion throws up a number of challenges.43 Focusing
on jurisdiction, for the moment, the claim is a version of the ‘authority and con-
trol’ reasoning contained in some jurisprudence produced by the Inter-American
and European human rights institutions from the mid-1990s, which implies that
someone affected by the actions of a given State comes within its ‘authority and con-
trol’ (and so is subject to its jurisdiction) for that reason alone.44
An argument in essentially this form was famously rejected by the Grand
Chamber of the European Court of Human Rights in the 2001 Banković case, at the
admissibility phase, where it held that ‘the applicants’ submission is tantamount to
arguing that anyone adversely affected by an act imputable to a Contracting State,
wherever in the world that act may have been committed or its consequences felt, is
thereby brought within the jurisdiction of that State’.45 The statement (which does
not characterize the Banković situation at all well) could have been tailored to the
climate problem. At issue in Banković was whether NATO States had human rights
obligations towards individuals killed when missiles were fired on a radio tower
in Belgrade. The Banković ruling relied in part on the notion that the European
Convention on Human Rights (ECHR)46 only applied within a specific ‘éspace
juridique’—the territory of signatory parties (not including Serbia)—within which
alone Convention rights extended.47 This is an idea that the Court appears to have
rejected or at least de-emphasized in its subsequent jurisprudence, notably Al-Skeini
v United Kingdom.48 In that case, the Court ruled that States enjoy human rights

43 Two principal challenges present themselves. First, such a test requires a threshold of ‘excess’ emis-
sions, which could only be arrived at on a State-by-State basis. However, this is no longer excessively
complex, given the state of climate science. A Dutch court, in the Urgenda ruling, turned to the au-
thority of the IPCC to establish a desirable minimum rate of emission reduction (Urgenda Foundation
v the State of the Netherlands, C/09/456689/HA ZA 13-1396, Judgment of 24 June 2015). A somewhat
similar approach had been adopted by the European Committee on Social Rights (ECSR) in 2006,
which found against Greece on the basis that its own national plans expected lower emission reductions
than Greece’s commitments under the Kyoto Protocol required (see ECSR, Marangopoulos Foundation
for Human Rights v Greece, Collective Complaint No 30/2005, 6 December 2006 (my thanks to Olivier
de Schutter for drawing my attention to this case)). Second, there is the need to establish a causal link
between the harms suffered by an individual and the emissions of a State.
44 Coard v United States, Inter-American Commission on Human Rights Report No 109/99 (29
September 1999); Alejandro v Cuba, Inter-American Commission on Human Rights Report No 86/99
(29 September 1999) para 25; Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR,
23 March 1995); Issa and Others v Turkey App no 31821/96 (ECtHR, 16 November 2004).
45 Decision as to the admissibility in the case of Banković and Others v Belgium and 16 Other
Contracting States App no 52207/99 (ECtHR, 12 December 2001) para 75. See also para 52. According
to the Court, ‘the text of Article 1 [the equivalent of ICCPR art 2(1)] does not accommodate such an
approach to “jurisdiction”.’
46 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR).
47 Banković v Belgium (n 45) para 80. The idea is first mooted in Loizidou v Turkey (n 44) para 78.
48 Al-Skeini and Others v United Kingdom App no 55721/07 (ECtHR, Judgment of 7 July
2011) para 142.
293

Jurisdiction (Articles 2) 293

jurisdiction wherever they exercise ‘public powers’, a notion that appears to indi-
cate effective control over affected persons or spaces—in situations of occupation
or detention, for example—regardless of specific geographical locus.49 Climate
change harms may take place abroad without, of course, any assumption of ‘public
powers’ or ‘effective control’ in the territories in question. Given the similarity to
ICCPR article 2(1) of the relevant jurisdictional language in the ECHR (art 1), it
is difficult not to imagine that the same reasoning must apply, mutatis mutandis, to
the ICCPR.50 This would also be in keeping with the Human Rights Committee’s
General Comment on the topic.51
It is, then, difficult to argue that the ICCPR expects a given State to ‘respect’ and
‘ensure’ the enumerated human rights to individuals who are not on its territory or
‘subject to its jurisdiction’—meaning physically present in a space (such as a city,
boat, airplane, prison, or camp) over which the State exercises control.52 Pending
further development in the law, the fact that a person in one State suffers or dies due
to climate-related events that result in part from the failure of another State to curtail
emissions—emissions that unquestionably take place on its territory—seems un-
likely in itself to qualify that person as ‘subject’ to the State’s jurisdiction. This does
not, of course, imply that State responsibility cannot attach, under international
law, for harms caused extraterritorially by emissions on its territory.53 Nor, equally
obviously, does it mean that a State might not have human rights obligations to-
wards individuals on its own territory relating to GHG emissions.54 It simply means
that it appears difficult, at present, to conclude that any international law obliga-
tions States may have to rein in excess emissions derive from the Covenant rights of
affected persons in third States.
Ironically, however, the controversial notion of an éspace juridique, were it to be
applied in the case of the Covenants, would presumably extend such protection—
since the éspace juridique of the Covenants is, in principle, the world as a whole.55

49 ibid para 149.

50 ECHR art 1: ‘[t]‌he High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section I of this Convention’. In the travaux, the words ‘to all persons
residing in their territory’ were replaced with ‘to everyone within their jurisdiction’ precisely to widen
the application from ‘residents’ to all those present on territory. See Banković v Belgium (n 45) para 19.
51 HRC, ‘General Comment 31’ in ‘Note by the Secretariat, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies’ (2004) UN Doc HRI/GEN/
1/Rev.9 (vol I) para 11.
52 Al-Skeini and Others v United Kingdom (n 48) paras 136–37.
53 Obvious potential sources of such an obligation are the ‘no harm’ principle under international
environmental law and the UNFCCC itself. See Andrew Strauss, ‘Climate Change Litigation: Opening
the Door to the International Court of Justice’ in William C G Burns and Hari M Osofsky (eds),
Adjudicating Climate Change: State, National, and International Approaches (CUP 2009); Christina
Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic J of Int L 1.
54 Urgenda (n 43). The human rights claim in this case failed because the Urgenda Foundation,
being a legal rather than a natural person, could not itself be a ‘victim’ of climate harms. See Jolene Lin,
‘The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v The State of the
Netherlands’ (2015) University of Hong Kong Faculty of Law Research Paper 2015/021.
55 See Banković v Belgium (n 45) para 80: ‘[t]‌he Convention was not designed to be applied
throughout the world, even in respect of the conduct of Contracting States’.
294

294 The Covenants in the Light of Anthropogenic Climate Change

I rehearse this well-known debate here because—as that last observation illustrates—
it seems plausible that climate change reframes the old question of ‘extraterritoriality’
in a new light. The harms occasioned by phenomena (whether slow-or rapid-onset)
ultimately attributable to climate change are no doubt less immediate and direct than
the ill-treatment visited on Iraqi detainees in Basra at issue in the Al-Skeini case or the
Banković missiles. But they are arguably very much more concrete, foreseeable, and direct
than the harms attributable to, for example, international trade policy or the effects of
an apparently uncontrolled and unintended financial crisis.56 Moreover, while it may
seem far-fetched to argue in the abstract that each State has human rights obligations
towards ‘anyone adversely affected by an act imputable’ to that State, it is surely much
less far-fetched to seek to end, on human rights grounds, activities within a State that
have concrete and traceable human rights effects for thousands or indeed millions of
persons. The activities that give rise to climate change have been known to cause harm
for at least a quarter of a century—during which time they have actually increased in
most States. The harms are concrete. The causal chain, though complex, is uncontro-
versial. This looks like an open space for judicial activism.57

B. Article 2 of the ICESCR

The absence of language in ICESCR article 2 identifying either territorial or jur-
isdictional scope of application or requiring ‘effective remedy’ has been exten-
sively discussed.58 And yet, climate change adds an intriguing dimension to this
debate, dovetailing with the apparent requirement of article 2(1) of coordinated
‘international assistance and co-operation, especially economic and technical’ to
achieve ‘progressively’ the human rights of everyone everywhere.59 Precisely this
emphasis on the inherently global nature of the obligation is salient in the context

56 For an example of the former, see Thomas Pogge, ‘Recognized and Violated by International
Law: The Human Rights of the Global Poor’ (2005) 18 Leiden J of Intl L 717. For an example of the
latter, see the discussion at the Office of the High Commissioner for Human Rights <www.ohchr.org/
EN/Issues/Development/Pages/PromotingHRbasedfinancialregulationmacroeconomicpolicies.aspx>
accessed 1 April 2016.
57 Various arguments have been raised, relevant to ICCPR art 2(3), as to whether climate change
harms are justiciable at all. It is argued, on one hand, that courts are inappropriate fora for policy on
issues of such complexity (see eg US District Court for the Ninth Circuit, Native Village of Kivalina and
City of Kivalina v ExxonMobil Corporation et al, 663 F.Supp.2d 863 (2009), upheld on appeal), and, on
the other, that the causal chain from specific emissions to specific harms is too complex and non-linear
for the attribution of responsibility. Neither issue has proved insurmountable in practice. See eg US
Supreme Court, Massachusetts et al v Environmental Protection Agency, 127 S.Ct. 1438, and the Dutch
Urgenda case (Urgenda (n 43)).
58 UN Doc E/1991/23, CESCR, ‘General Comment 3’ in ‘Note by the Secretariat, Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (1991)
HRI/GEN/1/Rev.9 (vol I); Matthew Craven, ‘The Domestic Application of the International Covenant
on Economic, Social and Cultural Rights’ (1993) 40 Netherlands Intl L Rev 367.
59 Among recent texts raising this question: Olivier De Schutter and others, ‘Commentary to
the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social
and Cultural Rights’ (2012) 34 Human Rights Q 1084; Fons Coomans and Rolf Künnemann (eds),
Cases and Concepts on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights
(Intersentia 2012); UNGA ‘Final Draft of the Guiding Principles on Extreme Poverty and Human
Rights, Submitted by the Special Rapporteur on Extreme Poverty and Human Rights, Magdalena
295

Jurisdiction (Articles 2) 295

of climate change. It is not alone that the ineluctably transnational nature of cli-
mate change—a ‘global problem requiring a global solution’—provides an excellent
match for the internationalist language of the ICESCR; it is also because ICESCR
article 2(1) remarkably echoes language already found in the climate regime, not-
ably the UNFCCC, itself.
In particular, ICESCR article 2(1) fits snugly next to UNFCCC article 4(7),
which reads as follows:
The extent to which developing country Parties will effectively implement their commit-
ments under the Convention will depend on the effective implementation by developed
country Parties of their commitments under the Convention related to financial resources
and transfer of technology and will take fully into account that economic and social develop-
ment and poverty eradication are the first and overriding priorities of the developing country
Parties.
That article offers concrete examples of ‘international assistance and cooperation’,
citing obligations to provide financial resources and access to technologies, while at
the same time prioritizing social and economic rights under a different rubric (‘eco-
nomic and social development and poverty eradication’). Moreover, the UNFCCC
distinguishes between rights-bearers (‘developing country Parties’) and duty-bearers
(‘developed country Parties’). This has long been a sticking point in the vaguer lan-
guage of the ICESCR, in which it is far from clear that the reference to ‘international
assistance and cooperation’ creates any rights-or duty-bearers at all.60
That said, UNFCCC article 4(7) is hardly crystal clear on this matter. Indeed,
one of the striking aspects of the UNFCCC is how many different terms are brought
in to qualify States in terms of varying obligations. As well as the defined lists of
States in Annexes I and II (and so, by corollary, the implied list of ‘non-Annex I’
signatories), we also find the terms ‘developed’, ‘developing’, and ‘least developed’
countries. UNFCCC article 4(5)—which is the source of the obligation referred
to in article 4(7)—adopts a remarkably slippery formula for the duty-bearers: ‘the
developed country Parties and other developed Parties included in Annex II’.61 This
appears, on one hand, to draw a distinction between ‘developed country parties’
and the States listed in Annex II (Annex II lists the countries of Western Europe,
the United States, Canada, Japan, Australia, and New Zealand), while, on the other,
apparently denying that all Annex II countries are, at a minimum, ‘developed’.62 It

Sepúlveda Carmona’ (18 July 2012) UN Doc A/HRC/21/39. Thanks to Olivier de Schutter for re-
minding me of these developments.
60 CESCR, ‘General Comment 3’ (n 58) paras 13–14. Also UN Doc. E/1990/23, CESCR,
‘General Comment 2’ in ‘Note by the Secretariat, Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies’ (1990) HRI/GEN/1/Rev.9 (vol II);
Sigrun Skogly and Mark Gibney, ‘Transnational Human Rights Obligations’ (2002) 24(3) Human
Rights Q 781.
61 UNFCCC art 4(5): ‘[t]‌he developed country Parties and other developed Parties included in
Annex II shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer
of, or access to, environmentally sound technologies and know-how to other Parties, particularly
developing country Parties.’
62 At the time of signature (1992), a number of Annex II countries were relatively poor: Greece,
Ireland, Portugal, and Spain. However, as a signatory in its own right, the wealthy European Economic
296

296 The Covenants in the Light of Anthropogenic Climate Change

seems fair to assume, however, that all Annex II countries are in fact covered, and
others may also be, should they be, or become, ‘developed’. By the same token,
‘developing country parties’ is an open-ended formula that creates real difficulties
for classifying formally ‘developing’ States with large internationally-pivoted econ-
omies, such as China or Brazil (and India too, though its per capita emissions remain
relatively tiny). However, the term must include ‘least developed’ States at a min-
imum. The upshot would appear to be a core group of rights-bearers (the forty-seven
countries listed by the UN as ‘least developed’)63 and of duty-bearers (the twenty-
four countries listed in Annex II, plus the European Union).
Naturally, one cannot simply transpose a group of rights-and duty-bearers from
one treaty (the UNFCCC) over to another (the ICESCR), reading an obligation
into the latter where there is none in the text. Less far-fetched, however, is the sug-
gestion that one might read the language of ‘social and economic development and
poverty eradication’ in the UNFCCC in light of the obligations taken on by the
same States in the ICESCR (all parties to the latter are parties to the former, though
not vice versa). On one hand, the detailed rights listed in the ICESCR can without
difficulty be read as fleshing out the oblique clause in UNFCCC article 4(7). On the
other, there is a straightforward confluence between the achievement of these rights
as an obligation on all countries (in the ICESCR) and as the ‘first and over-riding
priority’ of developing countries (in the UNFCCC). The obligation in the ICESCR
would thereby be grounded within the territory of certain countries, at least when
the human rights dimensions of climate change are at issue, rather than abstracted
around the world as a whole. And finally, the obligation on ‘developed countries’
in the UNFCCC to ‘promote, facilitate and finance access to and transfer of envir-
onmentally sound technologies’ arguably fleshes out the reference to ‘international
assistance and cooperation’ in the UNFCCC—being essentially a rare concrete for-
mulation of such assistance in the form of an obligation.

V. Limitation/Derogation (Articles 4 and 5)

A. Common article 4 of the ICCPR and ICESCR

The Covenants’ fourth articles differ significantly. The ICCPR famously, if ob-
scurely, invokes threats to ‘the life of the nation’ as a basis for a ‘right of deroga-
tion’ from certain human rights obligations. The right is circumscribed: derogation
must not be inconsistent with ‘other obligations under international law’, it must
not be applied in a discriminatory manner, it may only apply to some among the
Covenant’s enumerated rights, and the commencement and end of the derogatory

Community might presumably have absorbed the obligations of these member States (this is effectively
what happened under the Kyoto Protocol).
63 The list is available online (<https://www.un.org/development/desa/dpad/least-developed-
country-category/ldcs-at-a-glance.html > accessed 19 February 2018).
297

Limitation/Derogation (Articles 4 and 5) 297

period must be demarcated through notifications to the UN Secretary General.64

The ICESCR does not speak of derogation at all, but of limitations, which must be
‘determined by law’, ‘compatible with the nature of [the] rights’, and ‘solely for the
purpose of promoting the general welfare in a democratic society’. So far so familiar.
The general notion of derogation and limitation of rights is relevant to climate
change for at least three reasons. First, climate change is already increasing the fre-
quency and intensity of weather events which may rise to the level of public emergen-
cies.65 Second, climate change-related factors (such as resource shortages and mass
movements of populations) are extremely likely to give rise to conflict—indeed, on
many accounts, they have already contributed significantly to at least one, namely
the ongoing war in Syria.66 Third, it is not unimaginable that climate change policies
may need, at some point, to be pushed through in the face of significant resistance by
affected parties—a state of affairs that, were it to arise, would raise parallels with, for
example, the turn to emergency legislation by the US administration under Franklin
D Roosevelt in the 1930s to put the New Deal in place.67 It is already the case that
climate regulation has, in some countries, relied on executive action in the teeth of
opposition from the legislature.68
In addition to the likelihood that States may formally limit the availability of
certain human rights in order to address climate change (most likely relevant to
certain rights listed in the ICCPR), climate change itself is likely to prove a limiting
factor to the achievement of human rights. This is particularly so in the case of the
ICESCR. It may be assumed that, for many countries, climate change limits the
availability of economic, social, and cultural rights in three interrelated ways. First,
it impacts directly upon the resources needed to sustain rights (food, water, shelter,
and so on). Second, it requires the use of scarce public funds to deal with emergen-
cies (such as hurricanes, floods, and so on) or climate adaptation policies that might
otherwise have been used to ‘progressively realize’ social and economic rights. Third,
it redirects resources towards cleaner energy sources and other forms of mitigation
that might have been used to achieve these rights. In such circumstances, the onus
of a given State to ‘take steps’ to ‘progressively realize’ the right would presumably
be discharged merely by slowing down the rate of deterioration, in turn requiring
meaningful ‘international assistance and cooperation’. Should that not be forth-
coming, however, to an extent that achieves ‘progressive realization’ of rights in the
face of progressive climate change, the result will presumably be, once again, another

64 HRC, ‘General Comment 29’ in ‘Note by the Secretariat, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies’ (2001) HRI/GEN/1/Rev.9
(vol I).
65 See, for detail, the Turn Down the Heat series (n 8).
66 Peter H Gleick, ‘Water, Drought, Climate Change, and Conflict in Syria’ (2014) 6 Weather,
Climate, and Society 331; Colin P Kelley and others, ‘Climate Change in the Fertile Crescent and
Implications of the Recent Syrian Drought’ (2015) 112 Proceedings of the National Academy of
Science of the USA 3241. More broadly, see W Neil Adger and others, ‘Chapter 12: Human Security’
in Field, AR5 (n 8) 755.
67 Giorgio Agamben, State of Exception (University of Chicago Press 2005) Chapter 1.
68 See eg the executive measures undertaken by the Obama administration to address climate change
<www.whitehouse.gov/climate-change> accessed 14 November 2015.
298

298 The Covenants in the Light of Anthropogenic Climate Change

wedge driven between the Covenant’s utopian preambular language and its substan-
tive provisions.

B. Common article 5 of the ICCPR and ICESCR

1. Nothing in the present Covenant may be interpreted as implying for any State,
group or person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights or freedoms recognized herein, or at their limitation
to a greater extent than is provided for in the present Covenant.
2. No restriction upon or derogation from any of the fundamental human rights
recognized or existing in any country in virtue of law, conventions, regulations or
custom shall be admitted on the pretext that the present Covenant does not recognize
such rights or that it recognizes them to a lesser extent.

Both elements of common article 5 are relevant to the specific circumstances of cli-
mate change. Article 5(1) might be thought pertinent insofar as States might rely
on the jurisdictional clause in ICCPR article 2(1) to avoid responsibility for human
rights harms in third countries stemming from a failure to limit GHG emissions
in their own. But even should such a scenario amount to an ‘interpretation of the
Covenant’, it would still be difficult to maintain that the emission of GHG was
‘aimed at’ the destruction of human rights, no matter how well understood the like-
lihood of that outcome was.
Article 5(2) is conceivably relevant to the forty-five or so States that include some
form of fundamental right to a clean and healthy environment—or similar—in their
laws or constitutions.69 Such a right might be expected to bolster climate change
policy; article 5(2) might be expected to bite should cases arise of an overbroad
adherence to, for example, freedom of speech, resulting in policy paralysis. One
can imagine tension between potential derogations—a derogatory battle—in such
cases. Article 5(1) may therefore, presumably, favour effective action in countries
with environmental rights legislation over and above those lacking such legislation.
But this is highly speculative and context-dependent.

VI. Conclusion

Human-induced climate change will disrupt, indeed devastate, the protection of

Covenant rights for many millions of persons. This is true in the simple sense that
for the very many people for whom these rights—to food, health, water, shelter, and
life—already appear barely protected in practice, they will be the more impaired as
climate change hits harder. It is also true in a more fundamental sense: the institu-
tions that have sprung up to meet the demands of the Covenants’ substantive provi-
sions are simply not equipped to deal with the inescapable transnational dimensions

69 UNGA, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating
to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H Knox’ (30 December
2013) UN Doc A/HRC/25/53, para 18–19.
29

Conclusion 299

of climate change. This gap may be understood in terms of normative developments,

positive limits, or simple pragmatic resource constraints. However it is understood,
it appears in the gap between the idealism of the Covenant preambles—their uto-
pian globalism and normative idealism—and the pragmatism of their substantive
provisions. It is a gap that has often seemed bridgeable in the past, but may seem
less so today.
The existing literature on the substantive human rights threats presented by cli-
mate change is uneven. Some Covenant rights—perhaps most notably the right to
‘adequate food’ (ICESCR art 11) and the derived right to ‘clean water and sanitation’
as well as the right to health (ICESCR art 12)—have attracted considerable atten-
tion.70 Other rights that seem equally likely to be affected by climate change—such
as the rights to life (ICCPR art 2) and housing (ICESCR art 11)—have attracted
some commentary, but comparatively less. Beyond these are Covenant rights that
seem clearly relevant to climate change policies but have so far remained relatively
unexplored: ICCPR article 19 guaranteeing freedom of speech and information
and ICESCR article 15 guaranteeing the rights to ‘take part in cultural life’ (threat-
ened in particular where island States or other dwelling places risk disappearance)
and to ‘enjoy the benefits of scientific progress and its applications’ (presumably
relevant to the question of technology transfer in the UNFCCC). A large literature
by now addresses climate change migration, some of which refers to the human
rights of internally displaced persons or cross-border migrants, but so far debate has
centred largely on the status of ‘environmental migrants’ (to choose a less contro-
versial wording); there is, in practice, relatively little in this literature addressing the
Covenant rights specifically in light of climate change.71 There is also a burgeoning
literature on the relevance of human rights to certain specific climate policies—
most noticeably REDD+ (in relation to indigenous peoples’ rights) and the Clean
Development Mechanism—and on the ‘mainstreaming’ of human rights into adap-
tation funding and programming. In general, the literature approaches the human
rights threats attributable to climate change-related phenomena using a ‘human
rights-based approach’ that initially evolved in the context of international develop-
ment policy, and primarily through UN institutions.72
There has, at the same time, been an immense awakening of interest in the human
rights dimensions of climate change within various human rights bodies, notably at
the UN, but increasingly also within the NGO-centred ‘human rights movement’.
The move has been strongest within the Charter-based mechanisms. The Human

70 The richest source on the right to food is undoubtedly the collected research of the former Special
Rapporteur on the Right to Adequate Food, Prof Olivier de Schutter <www.srfood.org/en/climate-
change-2> accessed 14 November 2015. On the right to health, see the analytical study of the OHCHR
<www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/StudyImpact.aspx> accessed 30 June
2016; Paul Hunt and Rajat Khosla, ‘Climate Change and the Right to the Highest Attainable Standard
of Health’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010) 238–56.
71 The key text is Jane McAdam, Climate Change, Forced Migration, and International Law
(OUP 2012).
72 A good account is Martti Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for
Institutional Power’ (2010) 1 Humanity 47.
30

300 The Covenants in the Light of Anthropogenic Climate Change

Rights Council has held several sessions devoted to climate change and produced
five resolutions on the matter to date.73 A preponderant number of special proced-
ures now attend to climate change in their reporting, and there have been joint state-
ments and open letters signed by twenty-eight special procedures.74 And of course
climate change has its own special procedure in the form of the Special Rapporteur
on Human Rights and the Environment. Climate change has featured in a number
of questions and reports within the Universal Periodic Review. The Treaty-based
mechanisms have also been apprised, notably the Committee on Economic, Social
and Cultural Rights, which has had a number of review meetings devoted to climate
change and has begun regularly to question what countries have been doing to safe-
guard ICESCR rights in this context in their reporting requirements. All this work
and activity is no doubt significant. It has, for example, contributed to the intro-
duction of human rights language within the UNFCCC process—and ultimately
in the preamble of the Paris Agreement—which may prove somewhat influential.75
I have largely set these developments aside in this chapter in order to focus on the
specific challenges raised by the phenomenon of anthropogenic climate change for
human rights as set out in the Covenants. My conclusion is that—the increasing
volume of activity notwithstanding—climate change, and the various concrete phe-
nomena associated with it, poses, and will increasingly pose, an immense, indeed
possibly insurmountable, challenge to the claim of the Covenants to represent and
protect ‘human rights’, understood as universal, inherent, equal, and inalienable
as per the Covenants themselves. This is because the human harms climate change
poses are concrete, universal, and progressive, and are likely cumulatively to drive a
wedge between the broad aspirational language of the preambles (and the UDHR)
and the narrower language of the Covenants’ operative provisions. Nothing about
the wording of the Covenants themselves inherently undermines the promise of the
preambles and of the UDHR. Nor does the existence of the threat of climate change
significantly alter how the Covenants will be ‘operationalized’. However, the cumu-
lative failure of States to attempt, through the Covenants, to achieve a ‘social and
international order in which the rights’ of the UDHR might be ‘fully realized’ has,
over time, instituted a legal approach to human rights that is, in practice, wholly
inadequate to the challenge climate change poses. Climate change is not the cause
of the gap between promise and practice that has emerged in the Covenants. It is
merely the occasion to confirm that the gap is no longer bridgeable.

73 See <www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/HRCAction.aspx> accessed 14

November 2015.
74 ibid.
75 UNFCCC, ‘The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on
Long-term Cooperative Action under the Convention’ Decision 1/CP.16 (11 March 2011) UN Doc
FCCC/CP/2010/7/Add.1, Preamble and art 8. The preamble to the Paris Agreement states that: ‘Parties
should, when taking action to address climate change, respect, promote and consider their respective
obligations on human rights, the right to health, the rights of indigenous peoples, local communities,
migrants, children, persons with disabilities and people in vulnerable situations and the right to devel-
opment, as well as gender equality, empowerment of women and intergenerational equity’.
301

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30

13
The Covenants and Financial Crises
Christine Kaufmann*

I. Introduction

Financial crises come in different shapes and sizes and involve a variety of actors,
both with regard to triggering a crisis and the responsibilities entailed. Depending
on the type of financial crisis—currency, balance of payments, or debt crisis—States,
private actors such as investors or banks, and international and regional organiza-
tions assume different roles. Technological progress and globalisation facilitate and
accelerate financial crises’ expansion in terms of their geographical scope and their
severity. As a result, financial crises’ detrimental effects go beyond the economy
and affect society at large. In light of the fiftieth anniversary of the United Nations
(UN) Covenants on Civil and Political Rights (ICCPR)1 and Economic, Social and
Cultural Rights (ICESCR)2 and the series of financial crises that has taken place
since the late 1990s,3 the time has come to explore the potential of such crises as an
‘equal opportunity menace’4 for the implementation of the UN Covenants.
Since the early stages of the discussion,5 the relationship between financial crises
and human rights has, to a large extent, been conceptualized as a one way-street,
with human rights not playing an active role but instead falling victim to the (side)
effects of financial crises. This chapter suggests a different approach by exploring the
role of the UN Covenants in financial crises from three perspectives: people, pro-
cess, and paradigm. A first focus lies on people as rights-holders and the role of the
Covenants in ensuring a human rights-based approach of the relevant actors during

* I am grateful to Samantha Besson, Moshe Hirsch, Helen Keller, Daniel Moeckli, Yuval Shany,
and Joseph HH Weiler for their comments and suggestions and to Fabienne Bretscher for her excellent
research assistance.
1 International Covenant on Civil and Political Rights (opened for signature 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171.
2 International Covenant on Economic, Social and Cultural Rights (opened for signature 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
3 Starting with the East Asia Crisis in 1997. For a detailed account, see Stephen Haggard, The
Political Economy of the Asian Financial Crisis (Peterson Institute for International Economics 2000).
4 Carmen M Reinhart and Kenneth S Rogoff, ‘Banking Crises: An Equal Opportunity Menace’
(2013) 37 J of Banking and Finance 4557, 4559–60.
5 See, for an example of an early analysis, Giovanni A Cornia, Richard Jolly, and Frances Stewart
(eds), Adjustment with a Human Face, 2 vols (OUP 1987).

304 The Covenants and Financial Crises

and in the aftermath of a financial crisis. The second focus is on process, including
coherence and context, and will explore human rights responsibilities in the context
of international financial institutions (IFIs). Thirdly, a shift in paradigm for emanci-
pating the Covenants and establishing an interface to overcome the conceptual gap
between human rights on the one hand and financial regulation on the other will
be suggested.
For this purpose, Section II will—from a rights-holder perspective (people)—explore
the anatomy of different types of financial crises with a view to identifying their actors
and mechanics and to specifying their potential impacts on human rights, followed by
an account of States’ human rights obligations (Section III). Based on these findings,
the focus will then be expanded from people to process and coherence with an analysis
of the human-rights related responsibilities of IFIs and their members (Section IV). In
an attempt to bridge the identified conceptual gaps and conflicting interests, and to
pave the way for entrusting the Covenants with a more active role, translational human
rights will be suggested as a new paradigm or interface (Section V).

II. Anatomy of Financial Crises: Who, How, and What?

A. Typologies of an ‘equal opportunity menace’: Currency,

balance of payments, and debt and banking crises
Financial crises— described by Reinhart and Rogoff as ‘an equal opportunity
menace’6—do not follow a unique pattern or model, but are often an amalgam of
events triggered by a variety of factors involving private, public, domestic, and inter-
national actors.7 The major groups of financial crises that have been identified in the
economic literature are summarized in Table 13.1.8
A first group comprises crises that affect a country’s currency (1) or balance of
payments (2). Such crises will often involve speculative attacks on a currency by pri-
vate and public investors, either as a trigger or as a reaction to a tumbling currency.
Reactions will typically take place at a macroeconomic level—monetary policy,
fiscal policy, and regulatory measures—and involve devaluation and austerity pro-
grammes.9 Examples are the late crises in Mexico, East Asia, Russia, and Brazil in
the 1990s.10 Austerity programmes can originally be traced back to the so-called
‘Washington Consensus’ reached by the governors of the International Monetary

6 Reinhart and Rogoff, ‘Banking Crises’ (n 4) 4559–60.

7 Stijn Claessens and Ayhan Kose, ‘Financial Crises: Explanations, Types, and Implications’ in Stijn
Claessens and others (eds), Financial Crises: Causes, Consequences, and Policy Responses (International
Monetary Fund 2014) 3, 4. With a focus on the Euro: Markus K Brunnermeier, Harold James, and
Jean-Pierre Landau, The Euro and the Battle of Ideas (Princeton University Press 2016) 175–84.
8 For a comprehensive discussion, see Claessens and Kose, ‘Financial Crises’ (n 7) 15–26.
9 Brunnermeier, James, and Landau, The Euro (n 7) 185–206.
10 Carmen M Reinhart and Kenneth S Rogoff, This Time is Different: Eight Centuries of Financial
Folly (Princeton University Press 2009) 189.
305
Table 13.1 Typologies and impacts of financial crises
(1) Currency crises (2) Balance of (3) Debt crises (4) Systemic banking crises
payments crises

Domestic public debt Foreign debt

Key features Speculative attack Large, unexpected Country does not Country is unable or unwilling Bank run (actual or potential)
on currency; result decline in international honour its domestic to service its foreign debt due to real or feared lack of
of debt crisis capital inflow fiscal obligations liquidity; changes in asset prices
Main actors in Private investors, Private investors, Governments, private Governments, private and Commercial banks,
triggering crisis governments, IFIs governments, IFIs and public creditors public creditors investors, clients
Economic results Devaluation, Devaluation, Default, inflation, Higher costs for loans; less foreign Lack of liquidity; loss of deposits/
depreciation, rising depreciation, rising recession investment; recession; default investments; need for government
interest rates, etc; interest rates, etc intervention; contagion
contagion/spread
to other countries;
recession
Typical reactions Austerity programmes, devaluation Austerity programmes Economic reform programmes New financial regulation;
required by international organizations orchestrated bankruptcy of
(IMF, EU) and/or creditors financial institutions
Main potential Loss of income and savings; unemployment; Unemployment; reduced public services (health, education, etc) Limited access to savings; limited
human rights reduced public services ⇨ ICESCR: arts 6–8 (right to work), art 9 (right to choice of economic activities;
implications ⇨ ICESCR: arts 6–8 (right to work), art 9 social security), art 11 (adequate housing), art 12 limited access to housing
(right to social security), art 11 (adequate housing) (right to health), art 13 (right to education) ⇨ ICESCR: arts 6–8 (right
⇨ ICCPR: art 26 (equality and ⇨ ICCPR: art 14 (access to justice), arts 19, 21, 22 (freedom of to work), art 9 (right to social
non-discrimination) opinion, expression, assembly, and association), art 25 (public security), art 11 (adequate housing)
participation), art 26 (equality and non-discrimination) ⇨ ICCPR: art 25 (public
participation)
Main actors involved States, central banks, international organizations States International organizations, States States, central banks,
in mitigating the international organisations
consequences
306

306 The Covenants and Financial Crises

Fund (IMF) in 1989 and consequently applied as a condition for IMF loans.11 In
their contemporary form, they typically involve a reduction of public deﬁcits by
lowering expenses, in particular through wage reductions, cutting social beneﬁts
such as pensions, and decreasing expenditures on public services such as health and
education.12
Debt crises (3) may occur when a country is not able or willing to honour its foreign
debt obligations and there is a lack of collateral (sovereign lending) from other coun-
tries. These crises are thus primarily triggered by governments and reinforced by
private and public creditors. The resulting decrease in foreign investment and the re-
lated higher costs for loans will then turn an originally external crisis into a domestic
problem. Typically, IFIs will prescribe austerity measures, that is, cuts on public
spending, to address the lack of liquidity. This will often lead to reducing public ser-
vices, such as healthcare and education. Consequently, individual expenses for these
services, which are no longer paid for by the State, will increase while—at the same
time—incomes tend to decrease due to a reduced government demand for private
goods and services, higher unemployment, and reforms on the labour market. In
absolute economic terms, debt crises are the most costly for an economy.13 Domestic
public debt crises may follow a foreign debt crisis or develop independently. They are
often the result of high inflation caused by a government’s abuse of its monopoly to
increase the money supply,14 with potential human rights implications similar to
foreign debt crises. A recent example in this regard is Venezuela.15
Unlike most debt crises, the origin of banking crises (4) can typically be traced to
activities by private actors, such as investors or commercial banks. Banking crises
have the potential to quickly spread from a single institution to the whole banking
sector (contagion) and turn into a systemic crisis which puts the whole financial
system at risk.16 The collapse of the financial service provider Lehman Brothers
in 2008 and its repercussions on global financial stability are a drastic example for
such a development.17 From an individual perspective, limited access to savings and
loans will particularly affect choices regarding economic activities as well as access
to housing.
When a currency crisis—such as the recent Euro crisis and the related economic
slow-down, as experienced for example in Greece—coincides with the high costs of

11 The concept aimed at raising Gross Domestic Product (GDP) by improving resource allocation
through trade liberalization, privatization, and stabilization. See Christine Kaufmann, Globalisation
and Labour Rights: The Conflict between Core Labour Rights and International Economic Law (Hart 2007)
102, with further references.
12 Markus Krajewski, ‘Human Rights and Austerity Programmes’ in Thomas Cottier, Rosa M Lastra,
and Christian Tietje (eds), The Rule of Law in Monetary Affairs (CUP 2014) 490, 493–95.
13 Claessens and Kose, ‘Financial Crises’ (n 7) 37.
14 Reinhart and Rogoff, This Time is Different (n 10) 180–93.
15 IMF, World Economic Outlook, April 2017: Gaining Momentum? (IMF 2017) 48, projecting
720 per cent inflation for 2017 (up from 254 per cent in 2016); Office of the United Nations High
Commissioner for Human Rights (OHCHR) ‘Human Rights Violations and Abuses in the Context of
Protests in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017’ (Geneva 2017) 2.
16 Brunnermeier, James, and Landau, The Euro (n 7) 180.
17 Reinhart and Rogoff, This Time is Different (n 10) 204–22.
307

Anatomy of Financial Crises: Who, How, and What? 307

restructuring the financial system in the aftermath of a banking crisis, public debt
will inevitably increase. The result is a triplex crisis which combines the detrimental
effects of a currency, debt, and banking crisis.18

B. Human rights impacts of financial crises

The severe repercussions of financial crises on society at large are undisputed. The
strong language used in comparing the recent financial crisis to a ‘tsunami’ (by
Alan Greenspan, former chair of the Board of Governors of the US Federal Reserve
System), an ‘infectious disease’ (by the IMF), or the ‘sinking of the Titanic’ (by
former Brazilian President Ignacio Lula da Silva)19 therefore seems appropriate. Yet,
despite the strong rhetoric, political discussions in the aftermath of the crisis fo-
cused primarily on the resulting economic costs and effects, which could be measured
through mainly quantitative indicators.20
While there is ample data on the economic consequences of a financial crisis,
research on such a crisis’s impacts on human rights is still in its infancy. This holds
true particularly for the identification of specific human rights put at risk by austerity
measures.21 As the following sections will show, these impacts vary according to the
nature of the crisis.
Before engaging in a detailed analysis of specific human rights, two general ob-
servations can be made. First, the crisis scenarios described in Section II.A above do
not automatically imply human rights violations, in other words not every nega-
tive impact of a financial crisis on peoples’ lives will constitute a violation of their
human rights. This being said, a commonality of all financial crisis scenarios is that
the related severe cuts on government expenditures and the related lack of available
resources (ICESCR art 2(1)) carry the risk of infringing on human rights if the provi-
sion of essential public services such as health, education, housing, and the like can
no longer be secured.
Second, all financial crises, and particularly banking crises, will go hand in hand
with a lack of credit from banks and other institutions. This limited access to credit
and loans may make it more difficult for individuals to, for instance, obtain mort-
gages or pay them back, with the related risk of eviction from their homes. Particular
challenges arise for subsistence farmers and small-scale or micro entrepreneurs
seeking to obtain loans for engaging in activities of their own choice.22

18 Carmen M Reinhart and Kenneth S Rogoff, ‘From Financial Crash to Debt Crisis’ (2011) 101
American Economic Review 1676; Brunnermeier, James, and Landau, The Euro (n 7) 185.
19 Matt Peterson and Christian Barry, ‘Who Must Pay for the Damage of the Global Financial
Crisis?’ in Ned Dobos, Christian Barry, and Thomas Pogge (eds), Global Financial Crisis: The Ethical
Issues (Springer 2011) 158, 159.
20 For a summary, see Claessens and Kose, ‘Financial Crises’ (n 7) 34–41; Brunnermeier, James, and
Landau, The Euro (n 7) 306–12.
21 Aoife Nolan, ‘Not Fit For Purpose? Human Rights in Times of Financial and Economic Crisis’
(2015) 21 European Human Rights L Rev 358.
22 Peer Stein, Oya Pinar Ardic, and Martin Hommes, ‘Closing the Credit Gap for Formal and
Informal Micro, Small, and Medium Enterprises’ (International Finance Corporation 2013).
308

308 The Covenants and Financial Crises

1. Economic, social, and cultural rights

Among economic, social, and cultural rights (ESCR), labour rights, the right to an
adequate standard of living, the right to health and social security, the right to edu-
cation, and the right to housing are particularly at risk in financial crises.23
All types of financial crises transmit their effects to the life of individuals pri-
marily via labour market impacts and thus have the potential to infringe on the
right to work as guaranteed in ICESCR articles 6–8.24 The most obvious effect is
an increased unemployment or underemployment rate, in particular among young
people and women, as was highlighted by some of the reporting procedures with re-
gard to the financial crises in Argentina and Greece.25 Governmental reforms of the
labour market to increase ‘employer flexibility’ as part of the remedies suggested by
IFIs may include reductions of the minimum wage or limitations of labour unions’
rights.26 For instance, during the 1983–2001 financial crisis in Argentina, a labour
law reform allowed for the modification of labour contracts, including the restric-
tion of labour rights as mentioned in ICESCR articles 6–8, as a measure to secure
the economic stability of private businesses.27
Additionally, children are more at risk during and after financial crises because
they may drop out of school in order to support their families and engage in work
which may be hazardous to their health. Such developments would result in a viola-
tion of ICESCR article 10(3).28
Typical austerity measures and the related unemployment and salary reductions
will increase the number of people depending on social programmes, which may
affect the right to social security (ICESCR article 9). In times of financial crisis,
social protection is an important means to reduce and alleviate poverty as well as
to prevent social exclusion.29 Yet, when financial resources are scarce, particularly

23 Council of Europe, ‘Safeguarding Human Rights in Times of Economic Crisis: Issue Paper’
(2013) <https://rm.coe.int/16806daa3f> accessed 18 May 2017, 17– 20; OHCHR, ‘Report on
Austerity Measures and Economic and Social Rights’ (7 May 2013) UN Doc E/2013/82, paras 12–14;
Jernej Letnar Černič, ‘State Obligations Concerning Socio-Economic Rights in Times of the European
Financial Crisis’ (2015) 11 Intl L and Management Rev 125, 128–31; Lisa Ginsborg, ‘The Impact of
the Economic Crisis on Human Rights in Europe and the Accountability of International Institutions’
(2017) 1 Global Campus Human Rights J 97, 101–03.
24 World Bank, The Jobs Crisis: Household and Government Responses to the Great Recession in
Eastern Europe and Central Asia (World Bank 2011) 13.
25 See Section II.C.
26 Kerry Rittich, ‘Labour Market Governance in Wake of the Crisis: Reflections and Possibilities’ in
Christian Joerges and Carola Glinski (eds), The European Crisis and the Transformation of Transnational
Governance (Hart 2014) 123, 127–28; Philomila Tsoukala, ‘Euro Zone Crisis Management and the
New Social Europe’ (2013) 20 Columbia J for European L 31, 59–61. See also eg the structural re-
form intended for Greece: European Commission, The Economic Adjustment Programme for Greece,
Occasional Papers 61 (May 2010) 68.
27 IMF, ‘Memorandum of Economic Policies of the Government of Argentina’ (14 February
2000) <www.imf.org/external/np/loi/2000/arg/01/> accessed 31 May 2017, para 23.
28 See eg CRC, ‘Concluding Observations on the Second Periodic Report of Argentina’ (9 October
2002) UN Doc CRC/C/15/Add.187, para 58.
29 CESCR, ‘General Comment 19’ in ‘Note by the Secretariat, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies’ (2008) UN Doc HRI/GEN/
1/Rev.9 (vol I) para 3.
309

Anatomy of Financial Crises: Who, How, and What? 309

in debt crises,30 expenses for social security are one of the first to be cut, either by
reducing coverage or the level of benefits.31 An example is Greece, which, according
to the European Committee on Social Rights (ECSR), violated the right to social
security because of the ‘cumulative effect’ of the different restrictions imposed.32
Cutting social benefits during economic restructuring may also affect the right to an
adequate standard of living in ICESCR article 11. In addressing this concern, the
Argentine government decided to suspend mortgage foreclosures on family homes,
because many people were at risk of losing their properties during the financial
crisis.33 Furthermore, the right to the highest attainable standard of physical and
mental health (ICESCR article 12) may be affected, as the rise in the number of
suicides, mental illnesses, and infectious diseases that was observed in Europe after
the 2008 financial crisis indicates.34 A further right potentially affected by austerity
measures following debt and currency crises is the right to education (ICESCR art-
icle 13). Cuts in public spending for education could, in fact, reverse the progress
made in school enrolment over the last decade.35

2. Civil and political rights

Although these impacts are not obvious at first glance, civil and political rights may
also be at risk in times of financial crises.36 In the course of its programme to reduce
government spending, Greece increased not only taxes but also costs for litigation ‘in
order to prevent the abusive lodging of legal remedies’.37 This measure raised con-
cerns about its compatibility with Greece’s obligation to guarantee access to justice
(ICCPR article 14).38 Moreover, the rights to freedom of opinion, expression, as-
sembly, and association (ICCPR articles 19, 21, and 22) are at risk of being impaired
during financial crises when protests and demonstrations against the government

30 See Section II.A, Table 13.1, scenario (3).

31 See eg HRC, ‘Report of the Independent Expert on the Question of Human Rights and Extreme
Poverty’ (17 March 2011) UN Doc A/HRC/17/34, para 43.
32 ECSR, Federation of Employed Pensioners of Greece (IKA-ETAM) v Greece (7 December 2012),
Complaint No 76/2012, para 78.
33 Larry Rohter, ‘The Homes of Argentines Are at Risk in I.M.F. Talks’ The New York Times
(New York, 23 June 2003). For recent measures to support vulnerable defaulting households in Europe,
see Alice Pittini and others, ‘The State of Housing in the EU 2015’ (Housing Europe 2015) 23.
34 Marina Karanikolos and others, ‘Financial Crisis, Austerity, and Health in Europe’ (2013) 381
The Lancet 1323.
35 UNGA, ‘Report of the Independent Expert on the Question of Human Rights and Extreme
Poverty’ (11 August 2009) UN Doc A/64/279, para 35.
36 See eg UNHCHR, ‘Report on Austerity Measures and Economic and Social Rights’ (7 May
2013) UN Doc E/2013/82; Parliamentary Assembly of the Council of Europe (PACE), ‘Austerity
Measures: A Danger for Democracy and Social Rights’ (26 June 2012) PACE Res 1884 (2012); UNGA,
‘Report on Extreme Poverty’ (n 35) paras 52–53; Ginsborg, ‘Impact’ (n 23) 103–04.
37 HRC, ‘List of Issues in Relation to the Second Periodic Report of Greece, Addendum: Replies of
Greece to the List of Issues’ (24 August 2015) UN Doc CCPR/C/GRC/Q/2/Add.1, para 81.
38 Greek National Commission for Human Rights, ‘Written Information on the Second Periodic
Report of the Hellenic Republic for the implementation of the ICCPR’ (22 December 2014) <www.
nchr.gr/images/English_Site/EllinikesEktheseis/ICCPR_list_of_issues.pdf> accessed 7 October
2015, 20–22.
310

310 The Covenants and Financial Crises

are unduly restricted. Such protests will often occur as a reaction to domestic policy
measures in the aftermath of debt crises or to regulatory measures adopted in re-
sponse to banking crises.39 Examples in this regard include the alleged human rights
violations by US authorities vis-à-vis members of the ‘Occupy Wall Street’ move-
ment.40 A similar development could be observed with the Spanish anti-austerity
movement, which expressed its discontent by means of various demonstrations and
occupations of public places. According to the Council of Europe Commissioner for
Human Rights, Spanish authorities used force in a disproportionate way in order to
dissolve these manifestations of opinion.41 The—at least partial—lack of popular
support for austerity measures which was expressed through these protests touches
on the right to public participation (ICCPR article 25), which gives effect to an as-
pect of the basic principles of democracy. The question arises whether the decision-
making process at the national and international level regarding measures to address
financial crises jeopardizes these principles.42

3. Equality and non-discrimination

Both Covenants guarantee the right to equality and non-discrimination (ICCPR
articles 2(1), 3, and 26, ICESCR articles 2(2) and 3), which is of relevance in con-
junction with nearly each of the above-presented guarantees. Measures adopted by
countries during financial crises often have a disparate effect on vulnerable groups.
This can be exemplified by the measures adopted by Greece to raise its fiscal rev-
enues: Greece has been accused of targeting the ‘easy-to-tax salaried employees and
pensioners’ instead of taking action to increase overall payment discipline.43 As a
consequence, the burden of adjustment is allocated in a disproportionate manner,
continuing to leave the wealthier ‘outside the tax-net’.44 In fact, the Greek govern-
ment acknowledged the disparate effect of the measures taken on vulnerable groups,
not just in tax matters, but also in other sectors.45 Among these vulnerable groups
are older persons, pensioners, younger people, women, children, people with dis-
abilities, and immigrants.46 Finally, the domestic legal framework, particularly for

39 See Section II.A, Table 13.1, scenarios (3) and (4).

40 Protest and Assembly Law Project, ‘Suppressing Protest: Human Rights Violations in the
U.S. Response to Occupy Wall Street’ (2012) <www.chrgj.org/wp-content/uploads/2012/10/
suppressingprotest.pdf> accessed 7 October 2015.
41 Council of Europe (CoE) Commissioner for Human Rights, ‘Report Following the Visit to Spain
from 3 to 7 June’ (9 October 2013) CoE Doc CommDH(2013)18, paras 112–30.
42 See eg PACE, ‘Austerity’ (n 36) para 10.1. A similar argument was made by the complainants in
Mamatas and Others v Greece App nos 63066/14 and 66106/14 (ECtHR, 21 July 2016), but rejected by
the ECtHR with reference to the necessity and proportionality of the contested collective action clauses
(paras 115–16).
43 IMF, ‘Greece: Selected Issues’ (June 2013) Country Report No 13/155, 18; see also HRC, ‘Report
of the Independent Expert on the Effects of Foreign Debt and other Related International Financial
Obligations of States on the Full Enjoyment of All Human Rights, Particularly Economic, Social and
Cultural Rights, Mission to Greece’ (27 March 2014) UN Doc A/HRC/25/50/Add.1, para 42.
44 IMF, ‘Report on Greece’ (n 43) 18; see also HRC, ‘Report on Extreme Poverty’ (n 31) paras 49–51.
45 HRC, ‘Second Periodic Report of Greece’ (26 February 2014) UN Doc CCPR/C/GRC/2, para 4.
46 HRC, ‘Report on Foreign Debt: Greece’ (n 43) para 42; on women, see CEDAW, ‘Concluding
Observations on the Sixth Periodic Report of Spain’ (7 August 2009) UN Doc CEDAW/C/ESP/CO/
31

Anatomy of Financial Crises: Who, How, and What? 311

social security, may distinguish between benefits based on (human) rights on the
one hand and benefits depending on available financial resources on the other. In
a recent decision, the European Court of Human Rights (ECtHR) held that such
differences may justify a different treatment of beneficiaries in the two groups.47

C. Human rights in times of financial crises: Two case studies

In order to gain an understanding of the two treaty bodies’ approaches to addressing
the role of the Covenants in the context of financial crises, two examples are particu-
larly illustrative: Argentina and Greece.

1. Argentina
a) 1983–2001: A crisis unfolds
When Argentina re-established a democratic regime in 1983, the new government
faced not only a fiscal deficit, high inflation, and a foreign debt burden, but also a
history of grave human rights violations.48 Confronted with severe debt and cur-
rency crises, Argentina entered a series of standby agreements with the IMF in order
to stabilize the economy. In these agreements, the IMF insisted inter alia on tar-
gets for reducing inflation, limits on wage increases, devaluation, and reductions
in government expenditures.49 Despite these strict conditions, the economic re-
sults were not sustainable.50 In addition, there were substantial negative impacts on
specific human rights, particularly workers’ and subsistence rights.51 Accordingly,
during the consideration of Argentina’s second periodic report to the Committee
on Economic, Social and Cultural Rights (CESCR) in 1994, the Committee ac-
knowledged some economic progress but at the same time voiced concerns that ‘the
implementation of the structural adjustment programme may harm certain social
groups’52 and that the effects of such measures on ESCR were not adequately moni-
tored by the country.53 The role of the IMF and the applied conditionality were not
addressed by the Committee.
Between 1998 and 2002, the country entered into a severe recession.54 As be-
fore, the IMF granted financial support depending on structural reform and fiscal

6, paras 23–24; on younger people, see PACE, ‘The Young Generation Sacrificed: Social, Economic
and Political Implications of the Financial Crisis’ (26 June 2012) PACE Res 1885; on immigrants, see
CERD, ‘General Recommendation 33’ (29 September 2009) UN Doc CERD/C/GC/33, para I.f ).
47 Mockiené v Lithuania App no 75916/13 (ECtHR, 4 July 2017), paras 53–54.
48 See CESCR, ‘Report on the Fourth Session, Supplement no 3’ (15 January–2 February 1990) UN
Doc E/C.12/1990/3, paras 235–54.
49 Margaret Conklin and Daphne Davidson, ‘The I.M.F. and Economic and Social Human Rights: A
Case Study of Argentina 1958–1985’ (1986) 8 Human Rights Q 227, 230–44.
50 Roberto Frenkel, ‘Argentina: A Decade of the Convertibility Regime’ (2002) 45 Challenge 41,
42–44; Andreas F Lowenfeld, International Economic Law (2nd edn, OUP 2008) 720.
51 Conklin and Davidson, ‘The I.M.F.’ (n 49) 248–57.
52 CESCR, ‘Concluding Observations on the [First] Periodic Report of Argentina’ (19 December
1994) UN Doc E/C.12/1994/14, paras 6 and 11.
53 ibid para 22.
54 IMF, Evaluation Report: The IMF and Argentina, 1991–2001 (IMF 2004) 20.
312

312 The Covenants and Financial Crises

austerity, which particularly affected the public health and social security system.55
Following Argentina’s report to the CESCR in 1997, the Committee criticized the
adopted measures more specifically than in 1994 and urged Argentina to comply
with its obligations under the ICESCR in negotiations with IFIs.56 The Committee
was particularly concerned about a labour law reform to stabilize private enterprises
at the cost of labour rights.57 As a consequence, it recommended the withdrawal of
the labour market legislation, yet did not address the fact that such a measure ex-
plicitly conflicted with Argentina’s obligations in its arrangements with the IMF.58
By 2001, the situation had further deteriorated. After the introduction of a new
‘zero deficit law’ with substantial cuts in wages and pensions and strict limitations of
cash withdrawals,59 it culminated in social unrest, the president’s resignation, and
Argentina declaring default on its public debt.60
From a human rights perspective, it is interesting to note that it was IMF staff
who expressed concerns about the social consequences of the zero deficit law at a
very early stage and to some extent even predicted the ensuing social unrest. What
had been a ‘simple’ debt crisis in the beginning was now a triple debt, currency, and
banking crisis with detrimental effects on human rights.

b) 2002–14: Any lessons learnt?

Only with the arrival of a new government and after the IMF’s critical review of its
own actions during the crisis was it possible to work towards economic recovery.61
Unlike previous regimes, and in close cooperation with the World Bank, the new
government made social spending a priority62 in order to reduce—in the words
of the IMF—the ‘traumatic’ impact of the crisis on people.63 Measures included,
for example, the already-mentioned suspension of mortgage foreclosures on family

55 IMF, ‘Memorandum: Argentina’ (n 27) para 8.

56 CESCR, ‘Concluding Observations on the Second Periodic Report of Argentina’ (8 December
1999) UN Doc E/C.12/1/Add.38, para 28. The HRC mentioned the economic situation neither in
HRC, ‘Report of the Human Rights Committee’ (3 October 1995) UN Doc A/50/40, paras 144–65,
nor in HRC, ‘Concluding Observations on the Third Periodic Report of Argentina’ (15 November
2000) UN Doc CCPR/CO/70/ARG; see also Jason Morgan-Foster, ‘The Relationship of IMF Structural
Adjustment Programs to Economic, Social, and Cultural Rights: The Argentine Case Revisited’ (2003)
24 Michigan J of Intl L 577, 595–96.
57 IMF, ‘Memorandum: Argentina’ (n 27).
58 IMF, Evaluation Report: Argentina (n 54) 83.
59 The so-called ‘corralito’. See Lowenfeld, International Economic Law (n 50) 726. This measure
was later declared unconstitutional by the Argentine Supreme Court (Smith v Poder Ejecutivo o Estado
Nacional, [2002-I] JA 237, 1 February 2002). For more information regarding the Supreme Court’s
approach during and after the financial crisis, see Gustavo Maurino and Ezequiel Nino, ‘Economic and
Social Rights and the Supreme Court of Argentina in the Decade Following the 2001–2003 Crisis’ in
Aoife Nolan (ed), Economic and Social Rights after the Global Financial Crisis (CUP 2014) 299.
60 Lowenfeld, International Economic Law (n 50) 726–29.
61 IMF, Evaluation Report: Argentina (n 54).
62 World Bank, ‘Argentina: Overview’ (22 September 2016) <www.worldbank.org/en/country/ar-
gentina/overview#1> accessed 19 May 2017; HRC, ‘Report of the Independent Expert on the Effects
of Foreign Debt and Other Related International Financial Obligations of States on the Full Enjoyment
of All Human Rights, Particularly Economic, Social and Cultural Rights, Mission to Argentina’ (2 April
2014) UN Doc A/HRC/25/50/Add.3.
63 IMF, Evaluation Report: Argentina (n 54) 58.
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Anatomy of Financial Crises: Who, How, and What? 313

homes, and thus supported the right to housing.64 With this strategy, Argentina
managed to withstand the global financial crisis of 2008 quite well.65
Unfortunately, hopes that the lessons learnt from the Argentine crisis in 2001
would result in a more coherent approach for reconciling human rights and eco-
nomic policies in times of financial crisis did not materialize.66 Despite first signs
of the IMF’s and the World Bank’s readiness to take human rights into consider-
ation when tailoring their programmes, neither the UN Human Rights Committee
(HRC)67 nor the CESCR seized the opportunity to discuss coherence during the
reporting procedures with Argentina in 2010 and 2011.68 In fact, in 2011, the
CESCR again ignored the regulatory context in which Argentina was acting and
asked for changes in labour legislation without addressing its relationship to the
conditional structural adjustment programme.69 In the light of the rising awareness
of financial crises’ impact on human rights, it is difficult to understand why the two
treaty bodies would let this opportunity to start a discourse on coherent human
rights and financial obligations go by.
In 2014, the UN Independent Expert on the effects of foreign debt praised
Argentina’s progress in reducing unemployment and poverty rates and increasing
pension coverage, health services, and primary school enrolment from an economic
and quantitative perspective, but did not situate these findings in a specific human
rights context. In rather general terms, he highlighted several shortcomings of the
adopted measures, namely the uneven distribution of resources, the lack of adequate
housing, and the exclusion of marginalized groups from social benefits, yet he did
not clearly link his observations to the rights enshrined in the UN Covenants.70
Despite these shortcomings in applying a rights-based approach, the report contains
an important section from a procedural point of view because it calls on Argentina
to address its debt problem in a way that respects human rights by ensuring the
participation of affected people, acting transparently, and closely monitoring the
effects of the debt restructuring measures on human rights.71 In addition, the report
emphasizes the role of international creditors in this scenario.72 In sum, the report

64 Rohter, ‘Homes of Argentines’ (n 33); see, for the CESCR’s recommendation on the same issue in
the context of Portugal, CESCR, ‘Concluding Observations on the Fourth Periodic Report of Portugal’
(8 December 2014) UN Doc E/C.12/PRT/CO/4, para 16.
65 World Bank, ‘Globalized, Resilient, Dynamic: The New Face of Latin America and the Caribbean’
(Report No 78498 by the Chief Economist for LAC, Augusto de la Torre, 6 October 2010) inter alia 17.
66 See eg Morgan-Foster, ‘IMF Structural Adjustment’ (n 56); Stephany Griffith-Jones, ‘From
Austerity to Growth in Europe: Some Lessons from Latin America’ in Joseph E Stiglitz and Daniel
Heymann (eds), Life After Debt: The Origins and Resolutions of Debt Crisis (International Economic
Association 2014) 145.
67 HRC, ‘Concluding Observations on the Fourth Periodic Report of Argentina’ (31 March
2010) UN Doc CCPR/C/ARG/CO/4.
68 CESCR, ‘Concluding Observations on the Third Periodic Report of Argentina’ (14 December
2011) UN Doc E/C.12/ARG/CO/3.
69 ibid para 15. 70 HRC, ‘IE Foreign Debt, Mission to Argentina’ (n 62) paras 49–74.
71 ibid paras 75–82. 72 ibid paras 83, 86.
314

314 The Covenants and Financial Crises

offers procedural suggestions for reaching coherence between human rights and eco-
nomic interests.73

2. Greece
In October 2009, Greece announced that it had understated its deficit information for
years. Since this announcement coincided with the peak of the 2008 financial crisis,
the markets reacted quickly, which led to the exclusion of Greece from access to credit
facilities. As a result, Greece was faced with a debt crisis74 followed by a severe reces-
sion. The country’s default could only be avoided with support from European and
international financial institutions, which started in 2010.75 After difficult discussions
among the Euro-area Member States, an agreement was reached. It contained a package
that combined bilateral governmental loans to Greece with support from the IMF.76
As in Argentina, a set of austerity measures, including fiscal reform and restructuring
the labour and product market as well as the financial sector, were set as conditions for
financial support.77 The support mechanism was first set up as the temporary European
Financial Stability Facility (EFSF). However, it quickly became apparent that this ar-
rangement would not be sufficient to overcome the legal constraints for bailing out
members of the Euro area. Therefore, based on an amendment of Article 136 of the
Treaty on the Functioning of the European Union,78 a new, permanent crisis-resolution
institution, the European Stability Mechanism (ESM), was established to replace the
EFSF in 2011.79
At the time of writing, despite some progress, sustainable economic recovery is
not yet in sight and the effects on individuals are severe, with very high unemploy-
ment rates80 and a substantial part of the population at risk of poverty or social
exclusion.81 Various reports criticize the negative impact of the economic rescue

73 See also Aoife Nolan, Nicholas J Lusiani, and Christian Courtis, ‘Two Steps Forward, No Steps
Back?: Evolving Criteria on the Prohibition of Retrogression in Economic and Social Rights’ in Aoife
Nolan (ed), Economic and Social Rights after the Global Financial Crisis (CUP 2014) 121, 126–27.
74 See Section II.A, Table 13.1, scenario (3).
75 For an excellent account of the different stages, see Olivier De Schutter and Margot E Salomon,
‘Economic Policy Conditionality, Socio-Economic Rights and International Legal Responsibility: The
Case of Greece 2010–2015’ (legal brief prepared for the Special Committee of the Hellenic Parliament
on the Audit of the Greek Debt (Debt Truth Committee), 15 June 2015; European Commission,
Economic Adjustment: Greece (n 26).
76 Brunnermeier, James, and Landau, The Euro (n 7) 20–24.
77 European Commission, Economic Adjustment: Greece (n 26); it however needs to be emphasized
that the negotiations between Greece and its international lenders are ongoing and thus constantly
changing.
78 European Council Decision 2011/199/EU of 25 March 2011 amending Article 136 of the Treaty
on the Functioning of the European Union with regard to a stability mechanism for Member States
whose currency is the euro [2011] OJ L 911.
79 Treaty Establishing the European Stability Mechanism (signed on 2 February 2012, entered into
force 27 September 2012) <www.esm.europa.eu> accessed 11 July 2017; Brunnermeier, James, and
Landau, The Euro (n 7) 24–27.
80 Eurostat, ‘Unemployment Statistics’ (June 2017) <http://ec.europa.eu/eurostat/statistics-
explained/index.php/Unemployment_statistics> accessed 18 May 2017.
81 Eurostat, ‘People at Risk of Poverty or Social Exclusion’ (December 2016) <http://ec.europa.eu/
eurostat/statistics-explained/index.php/People_at_risk_of_poverty_or_social_exclusion> accessed 18
315

Anatomy of Financial Crises: Who, How, and What? 315

package on economic and social rights in general and the health system in par-
ticular.82 In addition, as is quite common in debt crises,83 the closure of the State-
owned public broadcasting company ERN negatively affected media freedom.
While the Greek government argued that the shutdown was necessary to reduce the
number of public employees and therefore a required element of the rescue package,
the European Commission, in its reply to a related question of a member of the
European Parliament, did not mention human rights but seemed to hide behind
rather technical language:
While the Commission cannot prescribe Member States how to organise their public service
broadcaster, the Commission highlights the role of a dual system of public and commercial ser-
vice in promoting European values in all economic circumstances.84
In the reporting procedure before the CESCR, in 2015, Greece emphasized the inter-
national dimension of the implemented austerity measures, and particularly the roles
of European and international financial institutions as well as the lack of a human rights
dimension in austerity programmes:85
It is clear that the international community and its institutions have not been able to design and
implement a human rights-based response to debt crises. It has widely been acknowledged that
economic, social and cultural rights have not been systematically integrated into the relevant
policies and programs, while no comprehensive assessment of the impact of austerity meas-
ures on the promotion, protection and respect of economic, social and cultural rights has been
conducted.
While Greece had unsuccessfully tried to justify restrictions of the right to social se-
curity before the ECSR by referring to its obligations towards IFIs,86 it mentioned
specific domestic measures taken to mitigate negative human rights impacts, but did
not provide a clear view of the role the government should play for systematically inte-
grating human rights into the rescue scenarios.87
In its List of Issues, the CESCR first asked the Greek authorities to provide a
human rights impact assessment of the austerity programme and to present the

May 2017; Greek National Commission for Human Rights, ‘Urgent Statement on Labour and Social
Security Rights in Greece’ (28 April 2017) <www.nchr.gr> accessed 30 July 2017.
82 For a summary, see De Schutter and Salomon, ‘Economic Policy Conditionality’ (n 75); CESCR,
‘List of Issues in Relation to the Second Periodic Report of Greece, Addendum: Replies of Greece to the
List of Issues’ (22 July 2015) UN Doc E/C.12/GRC/Q/2/Add.1, paras 5–8; Alexander Kentikelenis
and others, ‘Greece’s Health Crisis: from Austerity to Denialism’ (2014) 383 The Lancet 748, and the
authors’ reply to critical comments in Alexander Kentikelenis and others, ‘Austerity and Health in
Greece: Authors’ Reply’ (2014) 383 The Lancet 1544–45.
83 See Section II.A, Table 13.1 scenario (3).
84 Question for written answer E-007274/13 to the Commission by Inês Cristina Zuber (GUE/
NGL) (20 June 2013) and joint answer given by Mr Rehn on behalf of the Commission (2 August
2013), [2014] OJ C48 E, 297-98. See also Afroditi Marketou, ‘Greece: Constitutional Deconstruction
and the Loss of National Sovereignty’ in Thomas Beukers, Bruno de Witte, and Claire Kilpatrick (eds),
Constitutional Change through Euro-Crisis Law (Cambridge University Press 2017) 179, 184–85.
85 CESCR, ‘Greek Replies 2015’ (n 82) paras 2 and 10.
86 ECSR, Federation of Employed Pensioners of Greece (IKA-ETAM) v Greece (n 32).
87 CESCR, ‘Greek Replies 2015’ (n 82) paras 3–11.
316

316 The Covenants and Financial Crises

principles on which the measures taken were based.88 Following this line of rea-
soning, it then declared the human rights effects of the financial crisis a principal
subject of concern in the Concluding Observations and reminded Greece to review
the adopted austerity measures, including the programmes under the Memoranda
of Understanding with the European Commission.89 It called on the country to ‘en-
sure that its obligations under the Covenant are duly taken into account when nego-
tiating financial assistance projects and programmes, including with international
financial institutions’.90 Yet, no complimentary statement with regard to IFIs—at
least those that are part of the UN system, ie the IMF and the World Bank—was
issued.
Overall, the CESCR scrutinized the measures adopted by Greece more thor-
oughly than in its observations on Argentina, but it again failed to provide a thor-
ough analysis of which ICESCR rights were affected. Accordingly, it did not take a
more active role in promoting the rights enshrined in the Covenant across the whole
UN system.
Similar discussions took place in the HRC when Greece presented its second
periodic report. Unemployment and its effects on human rights were one of the
main topics. Greece emphasized the profound adverse impact of the financial crisis
on vulnerable groups and its intention to distribute the burden in a fair manner re-
spectful of human rights.91 Unlike the CESCR, the HRC did not issue a specific rec-
ommendation to include human rights into negotiations with IFIs, but in a rather
general way expressed its concern about the impact of the financial crisis on women
and disabled people.92
A more comprehensive analysis was conducted by the UN Independent Expert
on the effects of foreign debt. He confirmed that the measures implemented by
Greece in the course of the financial crisis ‘have had the overall effect of comprom-
ising the living standards of the population and the enjoyment of human rights’
and that the burden of the adjustment was not allocated in a fair manner among the
whole population, but disproportionately affected the most vulnerable, such as the
poor, older persons, pensioners, women, children, people with disabilities, and im-
migrants.93 He thus complemented the IMF’s identical economic findings with an
at least partially human rights-based analysis.94
Finally, from a procedural perspective, the Independent Expert made a first small
step towards a more holistic approach to implementing human rights in times of
economic constraints by also including the obligations of Greece’s international

88 CESCR, ‘List of Issues in Relation to the Second Periodic Report of Greece’ (1 April 2015) UN
Doc E/C.12/GRC/Q/2, para 2.
89 CESCR, ‘Concluding Observations on the Second Periodic Report of Greece’ (9 October
2015) UN Doc E/C.12/GRC/CO/2, para 8, expressing specific concerns about the impacts of reduced
social benefits and the cuts in staff and expenditures in the health sector (paras 23–24 and 35–36).
90 ibid para 8.
91 HRC, ‘Second Periodic Report of Greece’ (26 February 2014) UN Doc CCPR/C/GRC/2, para 4.
92 HRC, ‘Concluding Observations on the Second Periodic Report of Greece’ (3 November
2015) UN Doc CCPR/C/GRC/CO/2, para 7.
93 HRC, ‘Report on Foreign Debt: Greece’ (n 43) paras 41 and 42.
94 IMF, ‘Report on Greece’ (n 43) 18.
317

States’ Human Rights Obligations in Times of Financial Crises 317

lenders in his report.95 Still, a more active, coherence-driven role of the treaty bodies
will be decisive for advancing this agenda. Such an approach should include a sys-
tematic assessment of economic recovery programmes’ impacts on human rights
and—where available—relate to human rights commitments issued by IFIs. With
resolution 34/3, the Human Rights Council requested the Independent Expert to
develop guiding principles for human rights impact assessments for economic re-
form policies.96 Such principles could serve as a starting point for the holistic ap-
proach mentioned afore. Another interesting recent development in this regard is
the decision of the European Council on the revised macroeconomic adjustment
programme for Greece under the ESM:97
(10) Any form of financial assistance received by Greece to help it implement the policies
under its Programme should be in line with the legal requirements and policies of the Union,
in particular the Union’s economic governance framework and the Charter of Fundamental
Rights of the European Union (‘the Charter’). To the extent that any of the measures en-
visaged in the macroeconomic adjustment programme limit the exercise of the rights and
freedoms recognised by the Charter, those limitations are98 in conformity with Article 52(1)
thereof. Any intervention in support of financial institutions should be carried out in ac-
cordance with the Union’s rules on competition. The commission should ensure that any
measures laid down in a Memorandum of Understanding in the context of requested ESM
financial assistance is fully consistent with this Decision.
In sum, the CESCR’s call on Greece to ensure the Memorandum of Understanding’s
compliance with its obligations under the Covenant is still far from being fully im-
plemented, but ongoing work by the Independent Expert on guiding principles for
human rights impacts assessments for economic reform policies and the European
Council’s decision are first steps in this direction.

III. States’ Human Rights Obligations in Times of Financial Crises

The two case studies illustrate the findings made in Section II.A, namely that, during
a financial crisis, and particularly when implementing austerity measures, States
face a complex web of actors, obligations, and responsibilities. This section will
look at the different roles of States in different contexts for ensuring a human-rights
based approach in addressing financial crises: States as duty-bearers under the UN
Covenants (Section III.A), States acting as members of IFIs or participants in rescue

95 HRC, ‘Report of the Independent Expert on the Effects of Foreign Debt’ (n 62) paras 12–16.
96 HRC, ‘Mandate of the Independent Expert on the Effects of Foreign Debt’ (6 April 2017) UN
Doc A/HRC/RES/34/3, 6 April 2017.
97 Council Implementing Decision (EU) 2017/1226 of 30 June 2017 amending Implementing
Decision (EU) 2016/544 approving the macroeconomic adjustment programme of Greece (2015/
1411), [2017] OJ L174, 22, 23. Emphasis added by the author.
98 Emphasis added. The wording ‘are in conformity’ implies a statement rather than a call on the re-
sponsible actors to make sure that measures are in line with art 52(1). The same wording can be found in
other versions of the Decision, for instance in German (‘ist vereinbar’), French (‘est conforme’), Italian
(‘sono in conformità’), but interestingly enough not in the Greek text. The Greek text uses the word
‘πρέπει’ and thereby correctly holds that the measures ‘should’ comply with art 52(1).
318

318 The Covenants and Financial Crises

programmes (Section III.B), and States’ responsibilities with regard to private actors
(Section III.C).

A. States’ obligations as parties to the UN Covenants

State parties to the UN Covenants remain bound by them in financial crises.99
The nature of States’ obligations under the ICESCR is essentially determined
by its article 2(1), by which each State commits to ‘take steps . . . to the maximum
of its available resources, with a view to achieving progressively the full realization’
of the Covenant rights. For the present purpose, two features of this concept are
of particular relevance: first, the principle of progressive realization (as opposed to
the immediate obligation contained in ICCPR article 2) obliges States ‘to move as
expeditiously and effectively as possible’100 towards the full realization of ESCR.101
This also entails that any deliberately retrogressive measure ‘would require the most
careful consideration’.102 Second, the maximum of available resources must be made
available, which according to the CESCR also refers to resources available from the
international community.103 Furthermore, in case of limited resources, priority has
to be given to the so-called minimum core obligations, that is, the minimum es-
sential levels of all Covenant rights,104 which are ‘crucial to securing an adequate
standard of living through basic subsistence, essential primary health care, basic
shelter and housing, and basic forms of education for all members of society’.105
Additionally, limitations of the Covenant rights need to be determined by law and
pursue the purpose of promoting general welfare in a democratic society.106
As a result, economic constraints will—first—not dispense States from their obli-
gation to dedicate the maximum of available resources to ensuring the realization of
human rights for everyone. It is thus decisive how scarce resources are allocated and
whether basic human rights are made a priority.107 Second, measures which lead to

99 ICESCR art 2; ICCPR art 2.

100 CESCR, ‘General Comment 3’ in ‘Compilation of General Comments’ (2008) (vol I) (n
29) para 9.
101 See, for a more detailed assessment, Philip Alston and Gerard Quinn, ‘The Nature and Scope of
States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’
(1987) 9 Human Rights Q 156, 172–77.
102 CESCR, ‘General Comment 3’ (n 100) para 9.
103 ibid para 13; see also Alston and Quinn, ‘States’ Obligations’ (n 101) 177–81.
104 CESCR, ‘General Comment 3’ (n 100) para 10; see for example, with regard to art 12
ICESCR, CESCR, ‘General Comment 14’ in ‘Compilation of General Comments’ (2008) (vol I) (n
29) paras 43–48.
105 HRC, ‘Report on Extreme Poverty’ (n 31) para 15.
106 ICESCR art 4; see Alston and Quinn, ‘States’ Obligations’ (n 101) 192–205.
107 CESCR, ‘Letter to States Parties from the Chairperson of the CESCR, Ariranga G Pillay’ (16 May
2012) UN Doc CESCR/48th/SP/MAB/SW. The OHCHR adds more criteria to this list: OHCHR,
‘Report on Austerity Measures’ (n 23) paras 15–21; see also CESCR, ‘General Comment 19’ (n 29) para
42. These criteria were reaffirmed eg in CESCR, ‘Concluding Observations: Fourth Portuguese Report’
(n 64) para 6. See also HRC ‘Report on Extreme Poverty’ (n 31) para 14; OHCHR, ‘Report of the High
Commissioner for Human Rights on Implementation of Economic, Social and Cultural Rights’ (8
June 2009) UN Doc E/2009/90, paras 44–54; Aoife Nolan, ‘Budget Analysis and Economic and Social
Rights’ in Eibe Riedel, Gilles Giacca, and Christophe Golay, Economic, Social, and Cultural Rights in
International Law: Contemporary Issues and Challenges (OUP 2014) 370.
319

States’ Human Rights Obligations in Times of Financial Crises 319

a lowering of previously achieved human rights standards, as may be the case in the
context of austerity programmes, are subject to heightened scrutiny and can only
be considered consistent with the ICESCR under special conditions.108 Both prin-
ciples have recently been applied to financial crises by the CESCR.109 In addition,
the Committee confirmed that positive obligations under the Covenant are also
applicable in times of financial crisis and may, for instance, require State measures
‘to combat the disproportionate impact of the economic crisis . . . on women’s right
to work’.110
According to ICCPR article 2(1), civil and political rights can only be restricted
when the measure is necessary and ‘proportionate to the pursuance of legitimate
aims in order to ensure continuous and effective protection of Covenant rights’.111
So far, little guidance exists on what these requirements entail in times of economic
crises. At least with regard to the obligation to take steps to give effect to Covenant
rights,112 the HRC has clarified that non-compliance cannot be justified by refer-
ence to economic considerations, as would be common during financial crises.113
Unfortunately, in its Concluding Observations on Greece,114 the HRC does not
seize the opportunity to clarify whether resource constraints can justify restrictions
of civil and political rights, and if so, to what extent.
Lastly, it is worth mentioning that, contrary to the ICESCR,115 the ICCPR in
its article 4 provides for the possibility of derogation from the Covenant in times of
an officially proclaimed public emergency.116 Until now, no State has invoked this
clause in order to justify human rights derogations as a financial crisis-related public
emergency.117

108 See CESCR, ‘Statement: An Evaluation of the Obligations to Take Steps to the ‘Maximum of
Available Resources’ under an Optional Protocol to the Covenant’ (10 May 2007) UN Doc E/C.12/
2007/1; CESCR, ‘General Comment 19’ (n 29) para 42. For a more detailed examination of retrogres-
sive measures in the context of financial crises, see Nolan, Lusiani, and Courtis, ‘Two Steps Forward’
(n 73).
109 CESCR, ‘Concluding Observations on the Fifth Periodic Report of Italy’ (28 October 2015) UN
Doc E/C.12/ITA/CO/5, paras 8–9, 34–35, and 38–39; CESCR, ‘Concluding Observations on the
Third Periodic Report of New Zealand’ (31 May 2012) UN Doc E/C.12/NZL/CO/3, para 17; CESCR,
‘Concluding Observations on the Fourth Periodic Report of Iceland’ (11 December 2012) UN Doc
E/C.12/ISL/CO/4, paras 6 and 16–18. However, in the first case addressed by the CESCR under the
Optional Protocol to the ICESCR ((opened for signature 10 December 2008, entered into force 5 May
2016) UN Doc A/RES/63/117, 48 ILM 256 (2009)), which concerned the protection of homeowners
in Spain in procedures for mortgage collection, it did not address the potential impacts of the financial
crisis (IDG v Spain CESCR Communication No 2/2014 (13 October 2015) UN Doc E/C.12/55/D/
2/2014).
110 CESCR, ‘LOI Greece 2015’ (n 88) para 8. Similarly, see the HRC ‘Report on Extreme Poverty’
(n 31) para 56.
111 See also HRC, ‘General Comment 31’ in ‘Compilation of General Comments’ (2008) (vol I) (n
29) paras 5–6.
112 ICCPR art 2(2). 113 See also HRC, ‘General Comment 31’ (n 111) para 14.
114 HRC, ‘Concluding Observations: Second Greek Report’ (n 92).
115 See Alston and Quinn, ‘States’ Obligations’ (n 101) 216–19.
116 HRC, ‘General Comment 29’ in ‘Compilation of General Comments’ (2008) (vol I) (n
29) para 2.
117 After declaring a public emergency in 2001, Argentina unsuccessfully tried to justify its non-
compliance with international investment agreements through their negative impact on human rights.
See eg International Centre for Settlement of Investment Disputes (ICSID), CMS Gas Transmission
Company v the Argentine Republic (award), 12 May 2005, ICSID case no ARB/01/8, paras 99 and
320

320 The Covenants and Financial Crises

B. State responsibilities as members of IFIs or

participants in rescue programmes
States may be indirectly involved in financial crises by their participation in assistance
or recovery programmes. Based on their obligations to cooperate internationally ac-
cording to ICESCR article 2(1) and its more general counterpart in articles 55 and 56
of the UN Charter, they are nevertheless required to contribute to mitigating a crisis’s
effects on human rights.118 Such obligations have also been reaffirmed by the CESCR
in its General Comment 2.119
A State that engages in bilateral rescue measures with other States or participates in
crisis-related decisions in international fora, such as IFIs, therefore needs to ensure that
the realization of ESCR is not obstructed or hindered.120
Whether this could be interpreted as adding an extraterritorial layer to this obliga-
tion remains controversial, however, as the negotiations on the Optional Protocol to the
ICESCR revealed.121 Yet, the undisputed substantial State obligations in the ICESCR,
together with the obligation to cooperate according to article 2(1) and the obligation
to fulfil international treaties in good faith, lead to the conclusion that States must
refrain from any measures that impair the ability of another State to comply with its
obligations regarding ESCR. The fact that States engage in international rescue meas-
ures or act in international fora does not change their responsibilities as parties to the
Covenant. In particular, the obligation to cooperate does not entail obligations vis-à-vis
rights-holders in other countries, but rather forms part of a country’s responsibilities
towards the international community. This finding corresponds with the judgment of
the ECtHR in Matthews.122
The CESCR shows, in its practice, that it is conscious of the role of IFIs, as it, for
instance, has recommended that Argentina should include its international human

114; for critics of the ICSID’s approach to these cases, see David Schneidermann, ‘Compensating for
Democracy’s ‘Defects’: The Case of International Investment Law’ in Christian Joerges and Carola
Glinski (eds), The European Crisis and the Transformation of Transnational Governance: Authoritarian
Managerialism versus Democratic Governance (Hart 2014) 47, 54–58.
118 See eg OHCHR, ‘Draft Background Paper on Rights- based Approaches to Financial
Regulation: Macroeconomic Policies and Economic Recovery’ (2013) <www.ohchr.org/Documents/
Issues/Development/RightsCrisis/OHCHR_Background_Paper.doc> accessed 31 May 2017, 9.
119 CESCR, ‘General Comment 2’ in ‘Compilation of General Comments’ (2008) (vol I) (n 29). See
also CESCR, ‘General Comment 3’ (n 100) para 14.
120 See, with regard to the right to water, CESCR, ‘General Comment 15’ in ‘Compilation of
General’ (2008) (vol I) (n 29) para 31; M Magdalena Sepúlveda, The Nature of the Obligations under
the International Covenant on Economic, Social and Cultural Rights (Intersentia 2003) 218–22, 237–38.
121 See ESC, ‘Report of the Open-ended Working Group to Consider Options Regarding the
Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights on its Third Session’ (14 March 2006) UN Doc E/CN.4/2006/47, paras 77–86; Fons Coomans,
‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights
in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 11
Human Rights L Rev 1, 17.
122 Matthews v the United Kingdom App no 24833/94 (ECtHR, 18 February 1999) para 32. For the
context of labour rights, see Kaufmann, Globalisation and Labour Rights (n 11) 280–81.
321

States’ Human Rights Obligations in Times of Financial Crises 321

rights obligations in the negotiations with these institutions.123 It does not, how-
ever, see only the State in crisis as responsible for preventing adverse impacts of
the practices of such institutions on the human rights of its population, but also
reminds other member States of their obligations in this regard.124 For example, in
2000 and 2001, reflecting the effects of the Asian and Argentine financial crises, it
encouraged several countries in their capacity as members of the IMF and the World
Bank ‘ . . . to do all [they] can to ensure that the policies and decisions of those or-
ganizations are in conformity with the obligations of States parties to the Covenant,
in particular the obligations contained in article 2.1 concerning international assist-
ance and cooperation’.125
Although this recommendation was not repeated in following years,126 the
Committee confirmed its approach in an open letter to the States parties.127 In sum,
States cannot free themselves from their human rights responsibilities by transfer-
ring competences to international organizations, which are seen as collectives of
States.128 This may require a clear framework for coordinating different policies at
the government level, as for instance developed by Austria.129

123 CESCR, ‘Concluding Observations: Second Argentine Report 1999’ (n 56) para 28; see
also CESCR, ‘Concluding Observations on the Second Periodic Report of Morocco’ (1 December
2000) UN Doc E/C.12/1/Add. 55, para 38.
124 Coomans, ‘Extraterritorial Scope’ (n 121) 24–29.
125 See eg CESCR, ‘Concluding Observations on the Second Periodic Report of Belgium’ (1
December 2000) UN Doc E/ C.12/1/
Add.54, para 31; CESCR, ‘Concluding Observations on
the Third Periodic Report of Italy’ (23 May 2000) UN Doc E/C.12/1/Add. 43, para 20; CESCR,
‘Concluding Observations on the Second Periodic Report of France’ (30 November 2001) UN Doc E/
C.12/1/Add.72, para 32; CESCR, ‘Concluding Observations on the Fourth Periodic Report of Sweden’
(30 November 2001) UN Doc E/C.12/1/Add.70, para 24; CESCR, ‘Concluding Observations on
the Second Periodic Report of Japan’ (24 September 2001) UN Doc E/C.12/1/Add.67, para 37;
CESCR, ‘Concluding Observations on the Fourth Periodic Report of the United Kingdom’ (5 June
2002) UN Doc E/C.12/1/Add.79, para 26; CESCR, ‘Concluding Observations on the Fourth Periodic
Report of Germany’ (24 September 2001) UN Doc E/C.12/1/Add.68, para 31; CESCR, ‘Concluding
Observations on the Fourth Periodic Report of Finland’ (1 December 2000) UN Doc E/C.12/1/
Add.52, para 24.
126 See eg CESCR, ‘Concluding Observations on the Third Periodic Report of Belgium’ (4 January
2008) UN Doc E/C.12/BEL/CO/3; CESCR ‘Concluding Observations on the Fourth Periodic Report
of Belgium’ (23 December 2013) UN Doc E/C.12/BEL/CO/4.
127 CESCR, ‘Letter from Chairperson Pillay’ (n 107); see, for a different interpretation by the former
General Counsel and Director of the Legal Department of the IMF, François Gianviti, ‘Economic,
Social and Cultural Rights and the International Monetary Fund’ (2001) <www.imf.org/external/np/
leg/sem/2002/cdmfl/eng/gianv3.pdf> accessed 27 October 2015, paras 26–27; see also Mac Darrow,
Between Light and Shadow: The World Bank, The International Monetary Fund and International Human
Rights Law (Hart 2003) 133–38.
128 See also CESCR, ‘General Comment 2’ (n 119) para 9; HRC, ‘Guiding Principles on Foreign
Debt and Human Rights’ (10 April 2010) UN Doc A/HRC/20/23; Maastricht Guidelines on Violations
of Economic, Social and Cultural Rights (22–26 January 1997) UN Doc E/C.12/2000/13, para 19;
Magdalena Sepúlveda Carmona, ‘The Obligations of “International Assistance and Cooperation” under
the International Covenant on Economic, Social and Cultural Rights: A Possible Entry Point to a
Human Rights Based Approach to Millennium Development Goal 8’ (2009) 13 The Intl J of Human
Rights 86, 91–92.
129 Austrian Federal Ministry of Finance, ‘Strategic Guidelines of the Austrian Federal Ministry
of Finance for International Financial Institutions’ (August 2015) <https://www.bmf.gv.at/
wirtschaftspolitik/int-finanzinstitutionen/Strategischer_Leitfaden_IFI_EN_.pdf?5s3q7u> accessed
19 May 2017, 9.
32

322 The Covenants and Financial Crises

In their reports to the CESCR, States are explicitly required to indicate the mech-
anisms in place to ensure that their obligations under the Covenant will feed into their
actions as members of international organizations and IFIs.130 So far, no corresponding
guidelines have been established by the HRC and no clear benchmarks for reconciling
the different levels of obligations from a human rights perspective have been developed
by the treaty bodies.

C. Obligations of States with regard to private actors

The horizontal obligation of States to protect human rights from violations by private
actors is accepted in international human rights law and confirmed in the first pillar of
the UN Guiding Principles on Business and Human Rights (UNGP).131 In the context
of financial crises, this obligation is particularly relevant given the role that commercial
banks and investors play in financial markets.132 Accordingly, their contribution to fi-
nancial crises can be substantial, as the 2008 crisis clearly indicates. At the same time,
regulatory failures and inadequate supervision of financial market actors are undisputed
potential triggers for financial crises.133
In the aftermath of the recent financial crisis, the lack of adequate regulation and
supervision has been extensively discussed by national legislators and in IFIs. Where
regulatory measures were adopted, they would generally focus on financial market
regulation and corporate law. Little has been undertaken to include the negative
impact of corporate behaviour on human rights in these regulatory processes. One
avenue for clarifying the scope of State obligations to regulate corporate behav-
iour could be a binding treaty. In 2014, the Human Rights Council established an
Intergovernmental Working Group with the mandate ‘to elaborate an international
legally-binding instrument to regulate, in international human rights law, the ac-
tivities of transnational corporations and other business enterprises’.134 Since this
process is still in its early stages and its outcome uncertain given that there is no clear

130 CESCR, ‘Guidelines on Treaty-specific Documents to be Submitted by States Parties under

Articles 16 and 17 ICESCR’ (24 March 2009) UN Doc E/C.12/2008/2, para 3(c).
131 HRC, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework: Report of the Special Representative of the Secretary-
General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’
(21 March 2011) UN Doc A/HRC/17/31, adopted by HRC resolution 17/4 (16 June 2011) UN
Doc A/HRC/17/4, para 9; HRC, ‘Report on Extreme Poverty’ (n 31) paras 82–85; see also Christine
Kaufmann, ‘International Law in Recession? The Role of International Law When Crisis Hits: Food,
Finance and Climate Change’ in Ulrich Fastenrath and others (eds), From Bilateralism to Community
Interest: Essays in Honour of Bruno Simma (OUP 2011) 1189, 1205; Olivier De Schutter, ‘Towards a
New Treaty on Business and Human Rights’ (2016) 1 Business and Human Rights J 41, 44, with fur-
ther references.
132 HRC, ‘Report on Extreme Poverty’ (n 31) paras 82–85.
133 See, for the United States, National Commission on the Causes of the Financial and Economic
Crisis in the United States, ‘The Financial Crisis Inquiry Report’ (January 2011) <http://fcic.law.stan-
ford.edu/report> accessed 31 May 2017.
134 HRC, ‘Elaboration of an International Legally Binding Instrument on Transnational
Corporations and Other Business Enterprises with Respect to Human Rights’ (26 June 2014) A/HRC
Res 26/9, para 9; De Schutter, ‘A New Treaty’ (n 131) 41–44.
32

Human Rights Obligations and Responsibilities of IFIs and Their Members 323
objective on what such a treaty should focus on,135 it is even more important to use
existing instruments. The UN treaty bodies, and in particular the CESCR, could
contribute to creating an adequate legal and institutional framework ‘which enables
markets to live up to their potential to contribute to the well-being of society and the
realization of human rights for everyone’.136

IV. Human Rights Obligations and Responsibilities

of IFIs and Their Members

A. Obligations and responsibilities

Discussions on the legal role of international organizations, including IFIs, in safe-
guarding human rights often neglect to distinguish between the respective obliga-
tions and responsibilities. The result is a flawed reflection of the complex relationships
between the individual human rights-holders, States, and non-State actors, as de-
scribed at the outset of this chapter, or in the words of Samantha Besson a ‘conflation
of global justice and human rights’.137 The main reason for this ‘conflation’ is the ab-
sence of human rights-holders from the equation: legal obligations are obligations to
somebody, so they by definition require a rights-holder as a counterpart. In contrast,
responsibilities are not framed as duties owed to rights-holders but as responsibilities
for something which may include different actors, both private and public. In the
following, human rights obligations to rights-holders and broader human rights-
related responsibilities are treated separately.

B. IFIs’ human rights obligations—Much ado about nothing?

Already in 1949, the International Court of Justice (ICJ) held that the scope of
international organizations’ obligations needs to be defined in relationship with
the constituent treaty of the organization concerned.138 In the context of a dis-
pute between Egypt and the World Health Organization (WHO) on the establish-
ment of a regional office in Alexandria, the Court seized the opportunity to clarify
that, as subjects of international law, international organizations ‘are bound by any
obligations incumbent upon them under general rules of international law, under
their constitutions or under international agreements to which they are parties’.139

135 See the critical comments by John Ruggie, ‘Life in the Global Public Domain: Response to
Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights’
(23 January 2015) <http://ssrn.com/abstract=2554726> accessed 19 August 2017.
136 HRC, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the
Impact of the Global Economic and Financial Crises on the Realization of All Human Rights and on
Possible Actions to Alleviate It’ (18 February 2010) UN Doc A/HRC/13/38, paras 30–31.
137 Samantha Besson, ‘The Bearers of Human Rights’ Duties and Responsibilities for Human
Rights: A Quiet (R)Evolution?’ (2015) 32 Social Philosophy and Policy 244, 246.
138 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ
Reports 174, 179.
139 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion)
[1980] ICJ Reports 73, 89–90, para 37. For an extensive discussion, see Jan Klabbers, ‘The EJIL
324

324 The Covenants and Financial Crises

Although it is easy to agree that international organizations should be bound to

respect human rights, establishing corresponding legal obligations is rather diffi-
cult: First, the two UN Covenants are only open to States for ratification.140 In
addition, international organizations, including IFIs, are generally not parties to
a substantial number of international treaties apart from host State agreements.
Second, with the exception of the European Union (EU), no other international
organization has established its own human rights regime.141
As a result, IFIs are not legally required to comply with the ICESCR and the
ICCPR, neither under international treaty law nor under their own constitutions.142
This leaves us with the third potential legal source for international organizations’
duties mentioned by the ICJ, namely ‘general international law’.
This then raises the question of the extent to which the human rights enshrined in
the two Covenants can be considered customary international law or general prin-
ciples of international law.143
With regard to human rights, the discussion focuses on the legal status of the
Universal Declaration of Human Rights (UDHR).144 So far, there is no broad con-
sensus on which specific rights enshrined in the UDHR can be considered cus-
tomary international law, and the ICJ has not issued a respective decision.145
Framing the consensus that was reached with the adoption of the UDHR as ac-
ceptance of human rights as general principles of international law therefore seems
more promising.146 Such an argument can be based on recent activities by States and
IFIs as well as the jurisprudence of the ICJ.147 A milestone in this development is
the unanimous adoption of the UNGP by the Human Rights Council in 2011. The
UNGP explicitly refer to ‘internationally recognized human rights—understood,
at a minimum, as those expressed in the International Bill of Human Rights and
the principles concerning fundamental rights set out in the International Labour
Organization’s Declaration on Fundamental Principles and Rights at Work’.148
The International Bill of Human Rights includes the UDHR.149 A number of

Foreword: The Transformation of International Organizations Law’ (2015) 26 European J of Intl L

9, 59–63.
140 ICESCR art 26 and ICCPR art 48.
141 TEU art 6(1); Besson, ‘Quiet (R)Evolution’ (n 137) 257.
142 For a detailed discussion of the IMF and the World Bank, see Kaufmann, Globalisation and
Labour Rights (n 11) 123–27.
143 ibid 133.
144 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).
145 Olivier De Schutter, ‘Human Rights and the Rise of International Organisations: The Logic of
Sliding Scales in the Law of International Responsibility’ in Jan Wouters and others (eds), Accountability
for Human Rights Violations by International Organizations (Intersentia 2011) 55.
146 Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles’ (1989) 12 Australian YB of Intl L 82, 107.
147 United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, 42, para 91; Hurst
Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’
(1995-96) 25 Georgia J of Intl and Comparative L 287, 292–312, and 351–52. For the EU: Andreas
Fischer-Lescano, Human Rights in Times of Austerity Policy: The EU Institutions and the Conclusion of
Memoranda of Understanding (Nomos 2014) 35.
148 HRC, ‘UN Guiding Principles’ (n 131) para 12. 149 ibid commentary to para 12.
325

Human Rights Obligations and Responsibilities of IFIs and Their Members 325
international economic and financial institutions have adopted this approach;
among them are the Organisation for Economic Co-operation and Development
(OECD),150 the International Finance Corporation (IFC),151 and the World
Bank.152 Similar developments can be found in the EU153 and at the State level.154
All of these instruments recognize the relevance of the UDHR in a business con-
text. Finally, the Leaders’ declaration at the G7 summit in June 2015 endorsed the
UNGP and the OECD Guidelines and the G20 Leaders’ Declaration of July 2017
commits to fostering the implementation of labour, social, and environmental
standards as contained in the UNGP and other internationally recognized instru-
ments to achieve sustainable global supply chains.155
While it can therefore safely be stated that the human rights contained in the
UDHR are broadly recognized as general principles of international law today,
this does not—as proposed by some authors156—imply that the UDHR may serve
as a legal basis for deriving human rights obligations of IFIs towards individual
rights-holders. Instead, the UDHR will play an important role in framing IFIs’ re-
sponsibilities. The recent Decision of the European Council to approve the revised
adjustment programme for Greece, which refers to the Charter of Fundamental
Rights of the EU, may be a first (small) step in this direction.157 In fact, according
to the European Court of Justice (ECJ)’s jurisprudence, the Charter’s obligations
do not apply to member States in the context of the ESM because they do not im-
plement EU law in this context.158 However, the Charter is binding on EU institu-
tions, also when they act outside the EU legal framework. As a result, the European
Commission, when acting on behalf of the ESM, has a legal obligation to ensure
that a memorandum of understanding is consistent with the rights enshrined in the
Charter.159 In addition, the ECJ’s reasoning could be interpreted as mirroring the
unclear position of the ESM with regard to the EU and its fundamental values, par-
ticularly human rights. In other words, the technical legal arrangements to establish

150 OECD, ‘OECD Guidelines on Multinational Enterprises’ (2011) Chapter IV: Human Rights.
151 IFC, ‘Sustainability Framework’ (2012 edition) <www.ifc.org/wps/wcm/connect/topics_
ext_ c ontent/ i fc_ e xternal_ c orporate_ s ite/ i fc+sustainability/ o ur+approach/ r isk+management/
ifcsustainabilityframework_2012> accessed 18 May 2017.
152 The current state of the World Bank’s implementation of its new environmental and social frame-
work is available at < http://www.worldbank.org/en/programs/environmental-and-social-policies-for-
projects/brief/the-environmental-and-social-framework-esf > accessed 8 February 2018.
153 European Commission, ‘A Renewed EU Strategy 2011–14 for Corporate Social Responsibility’
(25 October 2011) COM/2011/0681 final; for an update see European Commission, ‘Commission
Staff Working Document on Implementing the UN Guiding Principles on Business and Human
Rights: State of Play’ (14 July 2015) SWD(2015) 44 final.
154 A list of national action plans to implement the UNGP can be found here: <www.ohchr.org/EN/
Issues/Business/Pages/NationalActionPlans.aspx> accessed 31 May 2017.
155 G7, ‘Leaders’ Declaration G7 Summit’ G7 Summit (Elmau 7–8 June 2015) 6; G20, ‘Leaders’
Declaration: Shaping an Interconnected World’ G20 Summit (Hamburg 7–8 July 2017) para 7.
156 eg De Schutter and Salomon, ‘Economic Policy Conditionality’ (n 75) 12.
157 Council Implementing Decision (EU) 2017/1226 (n 97).
158 ECJ, Case C-370-12 Pringle v Government of Ireland [2012] EU:C:2012:756, paras 178–81.
However, member States remain bound by their obligations under the ECHR and the UN Covenants;
Fischer-Lescano, Human Rights (n 147) 23–26.
159 ECJ, Joined Cases C-8/15 P to C-10/15 P Ledra Advertising Ltd and others v European Commission
and European Central Bank [2016] EU:C:2016:701, para 67.
326

326 The Covenants and Financial Crises

the ESM as an independent institution do not adequately address the underlying

identity question, but add to existing regulatory fragmentation.160

C. Human rights-related responsibilities of IFIs?

As outlined above, under current international law, States are the primary duty-
bearers with regard to human rights, and clear-cut legally binding human rights
obligations of international institutions vis-à-vis rights-holders, as they can be found
in the EU system, are a rare exception. While this result may—at least partially—be
traced to the insufficiencies of functionalism as a conceptual underpinning of the
law of international organizations,161 rejecting the role of human rights law for IFIs
altogether and deploring the supremacy of politics overlooks the twofold role of States
as duty-bearers vis-à-vis individuals within their jurisdiction, on the one hand, and
their responsibilities as members of international organizations and IFIs, on the
other.162
Today, all members of the IMF have ratified at least one of the two UN Covenants.
These obligations do not end at the doorstep to the IMF’s or any other IFI’s board-
room, but include—as stated by the ECtHR in Matthews163—an obligation of
States to ensure that IFIs of which they are members do not infringe on their obliga-
tion to protect, respect, and fulfil human rights.
While States are responsible for acting in a human rights-compatible manner in
their capacity as members of an IFI, IFIs as collective organizations comprised of
States have a responsibility not to jeopardize States’ obligations to comply with the
two Covenants.
However, it seems that this concept was somewhat turned on its head when
Greece was required to provide legal evidence of the compatibility of its package
of fiscal measures as requested by the ESM.164 Accordingly, the Greek government
submitted a legal opinion that, in the view of the European Commission, con-
firms that the pension reform is in line with the Greek Constitution, the Charter of

160 For an excellent account of the role identity plays in a EU context, see Moshe Hirsch, Invitation
to the Sociology of International Law (OUP 2015) 109–14.
161 Klabbers, ‘The EJIL Foreword’ (n 139).
162 For a similar argument, see André Nollkaemper, ‘Saving the Scarecrow’ (2015) 26 European J
of Intl L 957, 962.
163 Matthews v the United Kingdom (n 122) para 32.
164 ‘Supplemental Memorandum of Understanding (second addendum to the Memorandum
of Understanding) between the European Commission Acting on Behalf of the European Stability
Mechanism and the Hellenic Republic and the Bank of Greece’ (5 July 2017) para 2.1.1: ‘The au-
thorities will provide a written independent legal opinion confirming that the contingent nature of
both the income tax reform and the expansionary package to be enshrined in legislation is feasible
under the Greek Constitution. The authorities will provide a legal opinion that the pension reform is
in line with the Greek Constitution and the Charter of Fundamental rights. The authorities will also
provide a detailed quantitative assessment of the redistributive impact of pension reforms.’ Another
legal opinion was required on the role of arbitration in collective bargaining in para 4.1. See also the
Greek government’s statement in its letter of intent to the IMF of 7 July 2017: IMF, ‘Greece: Request
for Stand-By Arrangement’, IMF Country Report 17/229, Staff Report, Appendix I: Letter of Intent,
footnotes 1 and 2.
327

Human Rights Obligations and Responsibilities of IFIs and Their Members 327
Fundamental Rights of the EU, and the European Convention on Human Rights
(ECHR). The legal opinion, which has not been published so far, concludes that the
proposed reform rescues the core of the pension rights at stake by making the min-
imum possible necessary cuts, and is therefore in line with the Greek constitution
and the ECHR.165

D. The role of the UN human rights bodies

The two Covenants do not operate in clinical isolation from financial crises, but
need to be situated in a country’s specific legal context. The treaty bodies must there-
fore consider the anatomy of a financial crisis as well as the respective State obli-
gations under international rescue programmes when evaluating compliance with
the Covenants. Understanding the specific features of a financial crisis will lead to a
more thorough assessment of the related human rights impacts by the Committees.
Most importantly, it will allow the Committees to engage in a substantive debate on
how to reconcile economic rescue programmes with existing human rights obliga-
tions. Such a debate will be facilitated by the two Committees’ relatively broad scope
of examination possibilities in the reporting procedures.
In the case studies, a development in the approach of the CESCR can be ob-
served: while, at first, it only voiced general concern about the adopted structural re-
form,166 it subsequently started to criticize the modifications more specifically. The
Committee referred, for example, to the Argentine legislation with regard to pro-
visions of collective agreements, and doubted its conformity with the ICESCR.167
Similar concerns were expressed regarding Greece.168 Due to their specificity, the
recommendations serve as an important argument in negotiations with IFIs. This
significant role could be strengthened with more explicit references to the fact that
these legislative changes were part of a broader structural reform influenced by sev-
eral players, such as other States, international institutions, and private actors.169
Ignoring such constraints can lead to recommendations that are difficult to im-
plement and will eventually undermine the legitimacy and credibility of the re-
porting process and the treaty bodies. It is thus essential to address financial crises’
human rights impacts not only in recommendations to directly affected States but
also to States in their capacity as members of IFIs or as home or host States to in-
fluential private financial actors and institutions. This does not shift the responsi-
bility for complying with the Covenants from States to international institutions,170

165 European Commission, ‘Compliance Report: The Third Economic Adjustment Programme for
Greece, Second Review June 2017’ (16 June 2017) 10–11.
166 CESCR, ‘Concluding Observations: First Argentine Report 1994’ (n 52).
167 CESCR, ‘Concluding Observations: Second Argentine Report 1999’ (n 56) para 31.
168 CESCR, ‘LOI Greece 2015’ (n 88) para 14.
169 See also Nolan, Lusiani, and Courtis, ‘Two Steps Forward’ (n 73) 129–30. Steps in this direction
can be found in HRC, ‘Report on Foreign Debt: Greece’ (n 43); HRC, ‘IE Foreign Debt, Mission to
Argentina’ (n 62); and HRC, ‘Guiding Principles on Foreign Debt’ (n 128).
170 See also Magdalena Sepúlveda Carmona, ‘Alternatives to Austerity: A Human Rights Framework
for Economic Recovery’ in Aoife Nolan (ed), Economic and Social Rights after the Global Financial Crisis
(CUP 2014) 23, 40.
328

328 The Covenants and Financial Crises

but will produce recommendations that can contribute to ensuring human rights-
compatible responses to financial crises.

V. Conclusion: People, Process, and Paradigm

States that are parties to the ICCPR and the ICESCR are bound by them also in
times of financial crisis. This chapter has, first, shown that financial crises and related
recovery programmes, particularly austerity measures, may result in human rights
violations, with already vulnerable groups being at higher risk. While all financial
crises share some common features, their triggers, involved actors, and effects may
vary substantially and lead to a complex web of actors, relationships, and responsi-
bilities as well as a fragmented body of norms.
This chapter identifies three key elements for effectively implementing the
Covenants in times of financial crisis: a people-oriented, rights-based perspective,
a process to foster coherence, and a new paradigm for bridging the gap between
human rights and international financial regulations.

A. People-oriented, rights-based perspective

Under a people-oriented, rights-based perspective, human rights play an active role
instead of being banned to the sidelines and addressed as collateral damage. By
expanding the focus from economic and financial facts to the impact of a finan-
cial crisis on people, conducting a human rights and equality impact assessment
becomes a natural component of financial crisis management and recovery pro-
grammes. A step in this direction was undertaken at a rather late stage by Greece
when its Parliament installed a Debt Truth Committee to look into the negative
impact of macroeconomic adjustment measures since 2010.171
Parties to the ICESCR that are not immediately faced with a financial crisis will
be required to integrate a human rights perspective into assistance or recovery pro-
grammes in which they participate based on their obligation to cooperate internation-
ally. This obligation holds true for both unilateral as well as multilateral programmes,
and regardless of whether such programmes are established in the framework of an
international (financial) organization or outside of one. Participation in rescue plans
such as the programmes concerning Greece established by the ESM therefore comes
with the corresponding obligation to assess and consider such programmes’ effects
on the human rights enshrined in the Covenants.172
Contracting States’ obligation to protect also extends to private actors, particularly
commercial banks and investors, in the sense that States have to take measures to
prevent or at least mitigate negative human rights impacts caused by private actors’
activities. This obligation has been specified by the UNGP, which call on States to

171 De Schutter and Salomon, ‘Economic Policy Conditionality’ (n 75).

172 For a detailed discussion of the Rescue Plans for Greece, see De Schutter and Salomon, ‘Economic
Policy Conditionality’ (n 75) 4–9.
329

Conclusion: People, Process, and Paradigm 329

‘set out clearly the expectation that all business enterprises domiciled in their terri-
tory and/or jurisdiction respect human rights throughout their operations’.173 As
seen in the Argentine case, this obligation may become particularly relevant in the
aftermath of a financial crisis, when debt restructuring packages are tailored.

B. Processes for ensuring coherence

The second element is establishing a process to provide for coherence among different
bodies of law and different institutions. This calls on international institutions, both
in the realm of human rights and international finance, to include a country’s regu-
latory context into their considerations. While IFIs are not parties as such to the UN
Covenants, they are nevertheless required to apply a human rights-based approach
when addressing financial crises. This conclusion is based on the UDHR, which, as
this chapter suggests, can be understood as a consensus on a set of general principles
of international law, and on the fact that the vast majority of IFIs’ members have
ratified at least one of the UN Covenants. In other words, member States’ obligation
not to engage in activities in IFIs that would jeopardize their human rights obliga-
tions under the Covenants translates into a corresponding responsibility of IFIs not
to impede their members’ human rights compliance. Given their broad acceptance,
the two Covenants can play an important role, particularly in financial crises, be-
cause they not only allow but—especially in the context of the ICESCR—require a
dialogue between human rights and economic theory. On the one hand, it is undis-
puted and confirmed both empirically and in economic studies that financial crises
have a negative impact on human rights. On the other hand, human rights and
economic recovery are clearly mutually beneficial. Strikingly, a look at the Atlantic
Charter, which paved the way for the institutional post-war order, including the
establishment of the UN as well as the IMF and the World Bank, reveals that such
considerations were already seen as the very fabric of a coherent institutional frame-
work for a peaceful world order in 1941.174 Finally, it is important to note that
EU institutions are legally bound by the EU Charter of Fundamental Rights when
acting in the context of economic recovery programmes such as the ESM, and there-
fore have to ensure that any measures taken will not jeopardize the rights enshrined
in the Charter. This obligation also extends to cooperation with the IMF in the
context of the ESM.

C. Paradigm reloaded: Emancipation and translational human rights

The result of these two elements, a people-oriented, rights-based approach and the
need for coherent processes, is a call for a fresh paradigm. It entails emancipating the
Covenants and the respective treaty bodies from their role as handling the ‘clean-up’
during and after a financial crisis so they can become actors on equal footing with

173 HRC, ‘UN Guiding Principles’ (n 131) Guiding Principle 2.

174 Reprinted in Samuel I Rosenmann (ed), The Public Papers and Addresses of Franklin D Roosevelt
(Macmillan 1938) 314.
30

330 The Covenants and Financial Crises

the principles of international economic law and the respective institutions, par-
ticularly IFIs. This will require additional knowledge and expertise in all institutions
involved, and accordingly an institutionalized dialogue between the treaty bodies
and the relevant IFIs.
However, this will not be sufficient to keep the Covenants alive in future crises.
Therefore, an interface to bridge the conceptual gap between human rights and fi-
nancial regulations needs to be developed. In borrowing a term from the medical
sciences, I call this interface translational human rights. The objective of transla-
tional medicine is to transfer results from basic research into medical treatment from
which patients can benefit. With regard to human rights, recent developments con-
cerning the UNGP and the related OECD Guidelines for Multinational Enterprises
are important steps in this direction, as they translate human rights into business
language and principles that can be operationalized in a business context. Yet, at
this stage, they still lack an important element which links to the first point about
emancipating the Covenants and the treaty bodies: any translational instruments
need to be firmly anchored in sound normative principles which give the Covenants
and the treaty bodies a key if not leading role in actively shaping and defining the
specific content of what human rights mean in a financial crisis. While the CESCR
seems to have undertaken first steps in this direction, these attempts are still far from
complying with the prerequisites for a legitimate and transparent normative process.
Thus, in order for translational human rights law to perform its function as an inter-
face between different regulatory worlds and the respective roles and responsibilities
of the different actors involved in triggering and cleaning up a crisis, further work
is necessary. In this sense, this chapter serves as a first step on a road to discovery be-
yond the traditional human rights discourse. It may not lead to exotic destinations
but it will certainly offer new perspectives once we are ready to leave our comfort
zone and engage with other—yet unfamiliar—concepts and disciplines: ‘[o]‌n ne
peut découvrir de nouvelles terres sans consentir à perdre de vue le rivage pendant
une longue période.’175

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34

14
The Institutional Future of the Covenants
A World Court for Human Rights?

Felice D Gaer*

The vision I have grounded in the treaties themselves, is nothing less than the
operationalization of the principles of the universality and the indivisibility of
human rights as well as the States’ primary responsibility to ensure the imple-
mentation of these principles. This requires that States ratify treaties, but, more
importantly, implement them.1

I. Introduction

At a March 2016 panel discussion commemorating the fiftieth anniversary of

the two overarching UN human rights Covenants2 at the United Nations (UN)
Human Rights Council, Choi Kyonglim, its President, suggested that ‘ensuring
the justiciability’ of all human rights could strengthen their implementation.3
Exploration of better ways to implement human rights treaty norms has received
attention over the years as an increasing number of human rights treaties have
come into force. Yet proposals for institutional reform, such as President Choi’s
call for consolidation of the two Covenant committees into a single body, or a pro-
posal to create a ‘world court of human rights’, have rarely addressed the substan-
tive issues involved in such integration, focusing instead on a series of procedural
concerns.

* All views expressed are the author’s and do not represent those of the Committee against Torture.
1 Navanethem Pillay, ‘Strengthening the UN Human Rights Treaty Body System’ (June
2012) <www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf> accessed 7
April 2017, 12.
2 The International Covenant on Civil and Political Rights (opened for signature 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171, and the International Covenant on Economic,
Social and Cultural Rights (opened for signature 16 December 1966, entered into force 3 January
1976) 993 UNTS 3.
3 ‘Human Rights Council Holds High-level Panel Discussion Marking the Fiftieth Anniversary
of the Two Human Rights Covenants’ (1 March 2016) <www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=17114&LangID=E> accessed 7 April 2017.

Introduction 335
‘Human rights is the idea of our time,’ Professor Louis Henkin reminded us in
introducing his 1981 volume on the International Covenant on Civil and Political
Rights (ICCPR).4 Yet, despite the appeal of the ‘rights’ idea, it took eighteen years
for UN diplomats to move from approving the Universal Declaration of Human
Rights (UDHR) in 19485 to adoption of the Covenants in 1966. A key reason, as
Henkin explained, was that none of the negotiating States wanted a Covenant that
would later reveal ‘their behavior . . . to be wanting’.6
Ever since, constructing effective oversight of the implementation of the
Covenants has been a focus of attention for policy makers and human rights
experts at the UN and its human rights programmes. Some advocates have
focused on substance (ie whether the treaties should have greater judicial au-
thority), while others have focused on procedure (whether the treaty moni-
toring bodies could do a better job through consolidation, harmonization, or
otherwise tinkering with their powers). Some of the ideas proposed have been
grand ones, such as the proposal of High Commissioner for Human Rights
Louise Arbour to create a single unified standing treaty body.7 Other proposals
have been modest, raising procedural points about consolidating State reports,
or aimed at reducing operational costs, such as whether and how to limit docu-
ment length and the languages into which committee reviews of periodic re-
ports are translated.8
Most observers begin with the assumption that the treaty bodies can indeed
be effective, reasoning that (1) they supervise binding agreements—authoritative
instruments adopted by the members of the UN, a global body; (2) the treaties
are ratified freely by States parties, which knowingly incur legal obligations
through the ratification processes; and (3) the ratification of instruments by a
large number of States parties implies the States themselves will demand proper
levels of compliance by their fellow States. However, as pointed out in 2006 by
the UN Secretariat, ‘[t]‌he system . . . faces challenges because many states accept
the human rights treaty system on a formal level, but do not engage with it, or
do so in a superficial way, either as a result of lack of capacity or lack of political
will.’9
Other concerns abound, including: (1) issues of duplication (due to the overlap
of provisions and competencies in the various treaties), (2) growth of ratifications,

4 Louis Henkin (ed), The International Bill of Human Rights: The Covenant on Civil and Political
Rights (Columbia University Press 1981) 1.
5 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).
6 ibid 9.
7 See HRI (UN International Human Rights Instruments), ‘Concept Paper on the High
Commissioner’s Proposal for a Unified Standing Treaty Body’ (22 March 2006) UN Doc HRI/MC/
2006/2.
8 See eg the reports of the Annual Meetings of Chairpersons of the Human Rights Treaty Bodies
<http://www.ohchr.org/EN/HRBodies/AnnualMeeting/Pages/MeetingChairpersons.aspx > accessed
4 July 2017 or the first report by Philip Alston prepared for the UN General Assembly (Philip Alston,
‘Effective Implementation of International Instruments on Human Rights, Including Reporting
Obligations Under International Instruments on Human Rights’ (8 November 1989) UN Doc A/44/
668.
9 HRI, ‘Concept Paper (n 7) para 16.
36

336 The Institutional Future of the Covenants

reports, complaints, and resource requirements, (3) low public awareness of

the treaty bodies, (4) uneven levels of expertise and competence of treaty body
members, (5) inadequate coordination among the treaty bodies and the risk of
conflicting jurisprudence, (6) inadequacies in the State reports, and insufficient
information available to the treaty body members to assess these reports appropri-
ately and prepare concise concluding recommendations to States, (7) substantial
backlogs in reviewing reports and complaints, and (8) the absence of adequate
follow-up mechanisms regarding concluding observations and decisions on indi-
vidual cases.10
Manfred Nowak and Martin Scheinin, both academics based in Europe who have
served as UN special procedure mandate holders in human rights, have proposed
a ‘world court of human rights’ as the solution to the problem of non-enforcement
of UN treaty norms by the UN machinery, which they argue is the single most
important problem.11 Manfred Nowak reminds us that the ‘weaknesses of this
system . . . are well known,’ citing delayed reports, slow handling of individual com-
plaints ‘leading to non-legally binding’ decisions by ‘quasi-judicial bodies’, and a
lack of will by States parties to comply with these decisions.12 Nowak and Scheinin
argue that a ‘world court’, on the other hand, would ensure an effective remedy for
individuals suffering violations of rights.
As this chapter will explain, this proposal is not altogether new. It is merely the
latest variation on a longstanding proposal to create a stronger petition mech-
anism by consolidating all of the optional procedures for individual complaints
into a single body. The idea of breaking off individual petitions from the nine
relevant treaty bodies has surfaced from time to time as one of the ways of re-
structuring the system. This proposal has rightfully focused attention on the
option of consolidating the treaty bodies into a single entity, but the potential
impact of such restructuring has not been fully explicated. Moreover, the focus on
non-enforcement may be over-emphasized in comparison to other reform efforts
needed to maintain compliance with the human rights obligations of the States
parties.
Before rushing to adopt something shiny and new, we should carefully consider
what has been tried with respect to reform and evaluate how best to ensure that the
human rights treaty system effectively upholds the hard-won and well-established
rights guaranteed in the treaties themselves.

10 ibid and Michael O’Flaherty, ‘The High Commissioner and the Treaty Bodies’ in Felice D Gaer
and Christen L Broecker (eds), The United Nations High Commissioner for Human Rights: Conscience for
the World (Brill 2014) 111–12.
11 See Manfred Nowak, ‘The Need for a World Court of Human Rights’ (2007) 7 Human Rights
L Rev 251, 251–52, and Martin Scheinin, ‘Towards a World Court of Human Rights’ (2009) Swiss
Initiative to Commemorate the 60th Anniversary of the UDHR <www.enlazandoalternativas.org/
IMG/pdf/hrCourt_scheinin0609.pdf> accessed 9 May 2017, 63.
12 Manfred Nowak, ‘It’s Time for a World Court of Human Rights’ in M Cherif Bassiouni and
William A Schabas (eds), New Challenges for the UN Human Rights Machinery: What Future for the UN
Treaty Body System and the Human Rights Council Procedures? (Intersentia 2011) 17, 21.
37

Human Rights Treaty Implementation and the Covenants 337

II. Human Rights Treaty Implementation and the Covenants

In the dozen years between the drafting of the ICCPR and the International
Covenant on Economic, Social and Cultural Rights (ICESCR) (1954) and their
adoption (1966), the shape of a body to monitor implementation of the two treaties
became a considerable point of contention, and has remained so ever since.13
The composition of the committees established to oversee compliance with the
Covenants, their functions, as well as the nomination and selection processes were
changed multiple times during the drafting process. As finalized, the ICCPR was to
be monitored by an independent committee of eighteen State-nominated experts
authorized to receive reports and to request additional ones, if needed; the ICESCR
would be monitored by the members of the UN’s Economic and Social Council
(ECOSOC), a key UN body composed of State representatives. This meant that,
for economic and social rights, serving diplomats, rather than independent experts,
were initially designated as the persons to conduct the ‘oversight’ of compliance.
Later, in 1985, ECOSOC would establish a separate eighteen-member monitoring
committee for this purpose, on which persons elected by ECOSOC would serve in
their personal capacities. Some have been independent scholars and experts, others
have been serving or former diplomats.
Other treaty monitoring mechanisms, on the model of the independent com-
mittee, have been established since then. In all, there are now ten treaty bodies
monitoring nine core human rights treaties and their optional protocols.14 This pro-
liferation of normative instruments and monitoring bodies has drawn attention to
whether the system of implementation established is effective, efficient, or sensible.

13 AH Robertson, ‘The Implementation System: International Measures’ in Henkin, Bill of Human

Rights (n 4) 334.
14 The Covenants were adopted in 1966 and came into force ten years later. By then, the Convention
on Elimination of Racial Discrimination had already been adopted in 1965 (Convention on the
Elimination of All Forms of Racial Discrimination (opened for signature 7 March 1966, entered into
force 4 January 1969) 666 UNTS 195) and there were others in relatively short order: the Women’s
Convention (Convention on the Elimination of All Forms of Discrimination against Women (opened
for signature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13), the Convention
against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS
85), the Convention on the Rights of the Child (Convention on the Rights of the Child (opened for sig-
nature 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3), and the Convention
on Migrant Workers (International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families (opened for signature 18 December 1990, entered into force 1 July
2003) 2220 UNTS 3), totalling seven treaties at the time when Louise Arbour made her proposals
for a unified body. These instruments were followed more recently by three others: the Convention
against Disappearances (International Convention for the Protection of All Persons from Enforced
Disappearance (opened for signature 20 December 2006, entered into force 23 December 2010) 2716
UNTS 3), the Convention on Rights of People with Disabilities (Convention on the Rights of Persons
with Disabilities (opened for signature 13 December 2006, entered into force 3 May 2008) 2515 UNTS
3), and the Optional Protocol establishing the Subcommittee on Prevention of Torture (Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (opened for signature 18 December 2002, entered into force 22 June 2006) 2375 UNTS
237), for a total of ten ‘core’ human rights treaty bodies.
38

338 The Institutional Future of the Covenants

It further encouraged efforts to review and revise the institutional treatment of, and
monitoring by, all of these human rights entities.
Institutionally, the UN Secretariat was initially limited to providing meeting rooms
and minimal secretariat services (translation etc). Financially, some treaty bodies were
to be supported by the treaty-ratifying States, and others by the UN itself; later, as
some countries neglected payments, a so-called temporary solution was found—for the
funding to come from the UN’s regular budget for all of the treaty monitoring bodies,
while formally proposed amendments were circulated to States parties for adoption.
(Some of these amendments, such as one for the Committee against Torture, continue
in that form until the present.) It was expected, however, that the experts serving as
members of the treaty bodies would do the analysis of compliance and raise any ques-
tions with States parties.15

III. Past Treaty Reform Efforts

Reform proposals—and criticism of the committee implementation model—have

grown over the years. In 1984, in response to a request by the UN General Assembly
(UNGA),16 the UN’s Human Rights Office began to facilitate meetings of the chairs
of the different human rights treaty bodies to help improve coordination. In 1988,
the UNGA asked for an independent expert to advise on long-term approaches to
the supervision of new instruments. Australian professor Philip Alston was appointed
and later submitted three reports between 1988 and 1997.17 During and after this,
numerous academic meetings and publications addressed the treaty reform issue.
The UN Secretary General expressed his views on the need for reform, and two High
Commissioners for Human Rights offered ideas for specific changes.18
A review of the literature on human rights treaties suggests that scholars and dip-
lomats have spent a huge amount of time and space discussing how to reform or
strengthen the treaty monitoring bodies. To observers, it may seem that they have
spent less effort working to assess the substantive impact of the actual reviews exam-
ining compliance by specific countries with the treaty provisions, or to assess the re-
sults of individual complaint and other treaty procedures.19 Indeed, the main issues

15 See O’Flaherty, ‘The High Commissioner’ (n 10) 101, for a reflection on what was and was not
considered appropriate for UN secretariat servicing of the treaty body members, and how this has
changed.
16 UNGA Res 38/117 (16 December 1983) UN Doc A/RES/38/117.
17 Philip Alston wrote three reports for the UNGA between 1989 and 1996: Alston, ‘1989 Report’
(n 8); ‘Interim Report on Updated Study by Mr. Philip Alston’ (22 April 1993) UN Doc A/Conf.157/
PC/62/Add.11/Rev.1; and ‘Effective Functioning of Bodies Established Pursuant to UN Human
Rights System: Final Report on Enhancing the Long-term Effectiveness of the UN Human Rights
Treaty System’ (27 March 1996) UN Doc E/CN.4/1997/74.
18 UNGA, ‘Strengthening of the United Nations: An Agenda for Further Change—Report of the
Secretary-General’ (9 September 2002) UN Doc A/57/387, paras 52–54.
19 eg the new ‘Inter-Committee Meeting’ (ICM) convened in June 2002 discussed State reporting
and sharing of information, but did not address communications. The ICM brought together the chairs
and two other members of the then six treaty bodies to discuss reform measures. See HRI, ‘Report of
39

Alston’s Recommendations for Reform, and Others’ 339

discussed have been various matters to simplify the reporting ‘burden’ on States, to
strengthen the membership of the treaty bodies, to properly resource the secretariat
staffing and the treaty bodies, and to decide whether or not to consolidate the mul-
tiple treaty bodies. From time to time, issues of the capacity of States to report, as
well as the quality of the actual treaty body review—the questions asked, the time
devoted to the review, and so on—were also raised.

IV. Recommendations for Reform by Alston, and Others

As early as 1988—when there were only four treaties in force—Philip Alston warned
that the human rights treaties were at a ‘critical crossroads’.20 States complained
of a reporting ‘burden’,21 secretariat assistance was minimal, and there were crip-
pling, acute funding problems.22 He expressed serious concerns about membership,
doubting that non-governmental organizations (NGOs) could maintain interest in
the treaty bodies much longer due to the low quality of the diplomatic representa-
tives then serving on the treaty bodies.
Alston pointed to four major problems with the treaty bodies: capacity, efficiency,
quality, and the reporting burden. The proliferation of instruments might require
more serious measures to be adopted by the General Assembly, he explained, such
as a formal moratorium on new instruments, establishment of a new and separate
standard-setting body, or setting priorities for any future instruments. However, he
concluded, none of these seemed likely.23 Alston also called for eliminating over-
lapping competences, for obtaining greater consistency between treaty bodies es-
pecially on the interpretation of norms, and for procedural standardization. With
enhanced competence, he said, he hoped for greater credibility and visibility of the
treaty bodies.
Alston proposed three options: to consolidate existing treaty bodies, to give new
functions provided for in new treaties to existing treaty bodies, or to attach new
instruments to existing treaties.24 To a large degree these remain the options con-
sidered in most of the proposals and reform plans since. He noted that a single, con-
solidated committee might expand the capacity of the treaty bodies to keep up with
the large quantity of reports submitted for review and individual cases requiring
decisions, but would likely overlook important issues examined currently by treaty
bodies, making it risky.25
In 1996, Alston conceded that many procedural changes had in fact been made,
but found that the larger long-term issues remained. Consolidation had not been
seriously considered by those treaty body members who were busy trying to make
the existing system work, he noted. Changes were now urgent, he argued, but

the First Inter-Committee Meeting’ (24 September 2002) UN Doc HRI/ICM/2002/3. It followed and
partially overlapped with a treaty reform-focused meeting convened by Australia.
20 This warning appeared in Alston, ‘1989 Report’ (n 8) para 1. 21 ibid para 8.
22 ibid paras 54–99. 23 ibid paras 150–59. 24 ibid para 178.
25 ibid paras 181 and 183.
340

340 The Institutional Future of the Covenants

should not be ad hoc or reactive, and instead needed to be planned carefully and
systematically.26
Alston examined certain ideal scenarios for reform, but in the end expressed
doubts about their feasibility. Costs and budgets loomed large in his analysis. As
for consolidation, he emphasized how much this depended on political will—if it
was present, he called for an expert working group to begin to explore options for
consolidation.
Alston made many suggestions about what needed to be done, but his recom-
mendations ultimately tended toward the practical: addressing chronic non-
reporting by introducing flexibility, including consolidation of reports; addressing
documentation issues more transparently and utilizing electronic databases more ef-
fectively; ensuring better coordination among treaty bodies; and engaging the High
Commissioner to bring committee experts together to develop better cooperation.27

V. Consolidation Ideas: Stakeholder Meetings and Beyond

The idea of a ‘super-committee’—or of some form of unification or consolidation—

has been a favourite in the many recommendations that were made by academics,
NGOs, and other observers in the years in which Alston was examining the effect-
iveness of the treaty bodies and thereafter.28
I attended many of the treaty reform meetings, including the initial Inter-
Committee meeting, Malbun I and II, and other specialized sessions that followed.29

26 Alston, ‘1996 Report’ (n 17) para 80. 27 ibid paras 110–22.

28 While there were many meetings and articles that discussed the impact of and reform of treaty
bodies, the following were noteworthy in discussions and policy debates that followed: Anne F Bayefsky,
The UN Human Rights Treaty System: Universality at the Crossroads (Martinus Nijhoff 2001); a collection
by Anne F Bayefsky (ed), The UN Human Rights System in the 21st Century (Kluwer 2000); and a volume
by Philip Alston and James Crawford (eds), The Future of Human Rights Treaty Monitoring (CUP 2000).
Additionally, a lengthy article by Christof Heyns and Frans Viljoen summarized their major project,
which attempted to assess the impact of the human rights treaties in many different countries (Christof
Heyns and Frans Viljoen, ‘The Impact of the United Nations Human Rights Treaties on the Domestic
Level’ (2001) 23 Human Rights Q 483).
29 Treaty reform meetings in which I participated included six of the eleven Inter-Committee meet-
ings (namely the 1st, 4th, 7th, 9th, 10th, and 11th ICMs: see HRI, ‘Report of the First Inter-Committee
Meeting’ (n 19); UNGA ‘Effective Implementation of International Instruments on Human Rights,
Including Reporting Obligations under International Instruments on Human Rights’ (19 August
2005) UN Doc A/60/278, Annex: Report on 4th Inter-committee Meeting of Human Rights Treaty
Bodies, 10; UNGA, ‘Report of the Chairpersons of the Human Rights Treaty Bodies on their Twentieth
Meeting’ (13 August 2008) UN Doc A/63/280, Annex: Report on 7th Inter-committee Meeting of
Human Rights Treaty Bodies, 9; UNGA ‘Report of the Chairpersons of the Human Rights Treaty
Bodies on their Twenty-first Meeting’ (10 August 2009) UN Doc A/64/276, Annex II: Report on 9th
Inter-committee Meeting of Human Rights Treaty Bodies, 24; UNGA, ‘Report of the Chairpersons of
the Human Rights Treaty Bodies on their Twenty-second Meeting’ (6 August 2010) UN Doc A/65/
190, Annex I: Report on 10th Inter-committee Meeting of Human Rights Treaty Bodies, 11, and Annex
II: Report on 11th Inter-committee Meeting of Human Rights Treaty Bodies, 24), as well as the two
Malbun meetings and a variety of subsidiary working groups that focused on harmonization of guide-
lines, core reports, and follow-up. I also participated in the Dublin meeting, which began the treaty
strengthening process, in November 2009, and a specialized inter-committee consultation on petitions.
341

Consolidation Ideas: Stakeholder Meetings and Beyond 341

In this capacity, I observed how earnestly the Secretariat members pressed to estab-
lish harmonized procedures and coherence in the treaty system.
In an extensive report on treaty reform produced shortly after Alston’s third re-
port, in 2000, Anne Bayefsky recommended establishing two consolidated treaty
bodies, one for review of State reports and another for examining communications,
interstate complaints, and inquiries.30 She argued that the procedural requirements,
concerns, and functions for handling communications sent to different treaty bodies
‘are very similar and call for the same expertise’ and that the substantive outcomes of
the cases would be improved if staff concentrated only on communications or State
reports.31
The UN Secretariat began to organize a new kind of treaty reform conference
after this: so-called ‘Inter-Committee Meetings’, which consisted of the chairs of
the existing human rights treaty bodies plus two other members of each committee.
While ostensibly aimed at having broader discussions of reform options, Secretariat
officials privately acknowledged that the Inter-Committee meetings also had the
goal of breaking the stranglehold that committee chairs had had on the harmoniza-
tion and reform efforts to that date.32 Numerous interested parties were invited to
weigh in with treaty reform proposals at these meetings, which began in 2002 and
continued until 2011. A wide array of subsidiary meetings and discussions were also
incorporated in these sessions.
In 2002, consolidation supporters picked up another influential ally in UN
Secretary General Kofi Annan. Citing the ‘growing complexity’ of the diverse UN
treaty committees and the ‘burden of reporting obligations’ as straining resources,
Annan surprised human rights experts by calling for a simplification for States
through the submission of a single comprehensive report that would, in turn, be
reviewed by each relevant treaty body.33
After Annan’s proposal for a single report, treaty reform efforts became more
focused. At the invitation of Liechtenstein, in 2003, a large and high-level ‘brain-
storming’ meeting was convened in Malbun with a wide range of stakeholders.34
The Malbun I meeting in 2003 rejected Annan’s proposal for a single report to all

30 Bayefsky, Universality (n 28).

31 ibid. Bayefsky also noted that a petitions unit had been created only a short time before her re-
port. Indeed, the former Deputy High Commissioner for Human Rights, Bertrand Ramcharan, has
explained that he considered the management consultants’ recommendation to eliminate the special
unit for human rights communications (including those outside the treaty system, eg under Resolution
1503 [UN Security Council Res 1503 (28 August 2003) UN Doc S/RES/1503(2003)]) to have been ‘a
notorious error’ that he (successfully) sought to correct (Bertrand Ramcharan, A UN High Commissioner
in Defence of Human Rights (Brill 2004)). Ramcharan has noted that a communications unit (upgraded
to a ‘section’) existed at least from the 1970s. It was upgraded to a Communications Branch under
former UN Under-Secretary-General Jan Martenson, but abolished under the management reform
overseen by José Ayala Lasso, the first High Commissioner for Human Rights. As recounted in his book,
Ramcharan worked successfully in 1998 to re-establish a separate petitions team during his tenure as
Deputy High Commissioner.
32 Based on confidential interviews conducted by the author on the basis of anonymity.
33 UNGA, ‘Strengthening the United Nations: An Agenda for Further Change’ (9 September
2002) UN Doc A/57/387, paras 52–54.
34 UNGA, ‘Letter Dated 13 June 2003 from the Permanent Representative of Liechtenstein to the
UN’ (8 July 2003) UN Doc A/58/123 (hereafter ‘Malbun I report’).
342

342 The Institutional Future of the Covenants

treaty bodies, citing the difficulty both of preparing and examining a single report.
Not only would it not solve the problem of non-reporting, participants concluded,
it would probably make things worse by slowing down individual submissions of
State reports. Participants called instead for an expanded ‘core document’ with basic
information that could be reviewed by all the treaty bodies, and for other efforts to
‘harmonize’ the format of the reports submitted.35
In response to another, more comprehensive reform report by Secretary-General
Annan, entitled ‘In Larger Freedom: Towards Development, Security and Human
Rights for All’,36 Louise Arbour, the new High Commissioner for Human Rights,
issued a Plan of Action in which she indicated how she would expand and improve
the UN’s human rights programme. She affirmed that she would develop proposals
for a ‘unified standing treaty body’ and that she would invite States parties to an
intergovernmental meeting in 2006 ‘to consider options’.37
Arbour also discussed her Plan of Action with members of the Human Rights
Committee (HRC), explaining that treaty body reform was then at what she termed
an ‘embryo stage’.38 In a one-hour discussion, several members of the HRC men-
tioned the need to consider the individual petitions, or communications, as the
reform proceeded, but none offered any specific suggestions for doing so. Despite
earlier suggestions, the idea of a separate entity for all treaty-related petitions was not
discussed at the session with Arbour. It became clear in this discussion that there was
ongoing concern with preventing the loss of the specialized expertise of each of the
treaty bodies while continuing to protect rights-holders.
Arbour’s reform plans were discussed with lower-ranking Secretariat officials in
other treaty bodies. At the Committee on the Elimination of Racial Discrimination
(CERD), a Secretariat official was told that the CERD, as a whole, was not con-
vinced that a single unified standing body was the most effective way to reform
the treaties, as members were concerned that it might end up marginalizing many
subjects, such as racial discrimination. It was therefore argued that alternatives to
the unified body might be better. The CERD suggested that a strengthened petitions
unit might speed up processing the backlog,39 as might ‘establishing a single body
entrusted with considering individual communications.’40 Only one member of
the CERD actually mentioned the petitions unit, and did so solely in the context
of whether it could increase visibility of petitions.41 Other members questioned the
solution offered by Arbour—the creation of a unified standing treaty body—by
suggesting it was ‘ill-suited’ to the specific problems of the system that had been

35 ibid paras 23–30.

36 UNGA, ‘In Larger Freedom: Towards Development, Security and Human Rights for All: Report
of the Secretary-General’ (21 March 2005) UN Doc A/59/2005.
37 ibid para 147.
38 HRC, ‘Summary Record (Partial) of the 2296th Meeting’ (26 July 2005) UN Doc CCPR/C/
SR.2296, para 4.
39 ibid para 6.
40 CERD, ‘Summary Record of the 1726th Meeting’ (9 September 2005) UN Doc CERD/C/
SR.1726.
41 HRC, ‘Summary Record of July 2005’ (n 38) para 24.
34

Arbour's Proposal Deferred: A Unified Standing Treaty Body 343

outlined.42 The Secretariat said consultations would continue as no decision had
been reached yet.43
At the Committee on the Rights of Migrant Workers (CMW), Secretariat mem-
bers also heard a variety of views, most of which also emphasized the need to main-
tain specific treaty bodies even as the plan for a unified body proceeded. However,
one member, Ms Cubias Medina, stated that ‘the only way that the treaty bodies
would achieve greater political or judicial authority would be through the creation
of a world court of human rights’ and she asked whether this had been discussed as
a possibility. She stated that the authority carried by decisions of the body were key.
Other members expressed regret that no State party had yet ratified or accepted the
optional individual complaint procedure as set forth in article 77 of the Migrant
Workers Convention.44

VI. Arbour’s Proposal Deferred: A Unified Standing Treaty Body

In March 2006, a Concept Paper was issued by the Secretariat, following up on High
Commissioner Arbour’s proposal to establish a unified standing treaty body.45 It was
aimed for consideration at the meeting of chairpersons of the human rights treaty
bodies in late June and at an intergovernmental meeting to be scheduled thereafter.
The Concept Paper cited a variety of by now familiar shortcomings.46 It also brought
up the issue of differing interpretations of human rights standards and inconsistent
jurisprudence, and it offered a wide range of proposals for improvement—from
examining reports of States parties jointly to convening joint thematic working
groups and issuing joint General Comments, along with other kinds of harmoniza-
tion proposals.
In the end, the Concept Paper concluded that the best way to address these chal-
lenges fully would be to create a unified standing treaty body to cover all the treaties,
rights, and groups concerned. It offered several different models for such a body—
from a single body that would consider every treaty provision together to one with
multiple chambers, operating perhaps along the lines of each treaty, or with clus-
tered rights, or perhaps divided along geographic lines. In addition, the Concept
Paper offered assurances that the new body would take measures to ensure that
‘specialized expertise’ would not be lost in the new structure. Also proposed were
measures to ensure the quality of the new body’s members.

42 ibid. 43 ibid.
44 CMW, ‘Summary Record of the 23rd Meeting’ (19 Dec 2005) UN Doc CMW/C/SR.23, para 9.
45 See HRI, ‘Concept Paper’ (n 7) 30.
46 Such as the failure of States to submit reports or to send them in on time, the low quality of many
of the reports, the uneven expertise of treaty body members, and the increased burden on the treaty body
members because of the increase in ratifications and new treaties, as well as the backlog in consideration
of reports and individual complaints. The lack of financial resources and meeting time was said to con-
tribute to the low visibility of the treaty bodies and to the absence of follow-up on the recommendations
of the treaty bodies.
34

344 The Institutional Future of the Covenants

The proposal was breath-taking not simply in its critique of shortcomings (as in
prior written submissions on the treaty body system), but particularly in its pro-
posals for change. But neither the reasoning of the Concept Paper nor the polit-
ical initiatives pursued by the High Commissioner and her supporters resulted in
the changes she proposed. Indeed, Arbour’s proposals obtained very little support
from the participants in a second ‘brainstorming’ meeting convened in Malbun.47
Nearly every aspect of the proposal was criticized by one or another of the partici-
pants, who again included government representatives, treaty body members, and
NGOs. However, many suggestions were proposed for further harmonization of
working methods—such as the preparation of Lists of Issues for the oral dialogue
with representatives of States being reviewed. Among the many suggestions voiced
by participants at Malbun II was a proposal to create a separate system—an extra
chamber—for individual communications lodged with any of the treaty bodies.48
The High Commissioner recommended the designation of members to handle new
complaints and authorize ‘interim measures’ to prohibit irreparable harm to the
complainant, expedited procedures for manifestly unfounded complaints, and even
giving treaty bodies the capacity to consider and decide that a violation in one case
may involve provisions of more than one treaty.
Despite the absence of support for Arbour’s proposed consolidation of treaty
bodies, her effort was not a total failure. Participants in Malbun II and subsequent
meetings engaged more actively in various ‘harmonization’ activities, including the
preparation of guidelines for core documents, periodic reports, and greater stand-
ardization of the dialogue procedure. I participated in many of these sessions, which
were often intense. These meetings would lead, once a new High Commissioner
came to office in 2008, to a renewed effort to bring about reforms starting in 2009.

VII. The Dublin Statement and Treaty Body Strengthening

In November 2009, Navi Pillay, the new High Commissioner for Human Rights,
began the ‘treaty strengthening process’ and continued it through April 2012, when
she issued a major report and recommendations.49 More than twenty consultations
were convened worldwide, from Dublin (where they began) to Marrakesh, Poznan,
Seoul, Pretoria, and Geneva, involving all kinds of stakeholders. Written submis-
sions were received and posted online.50
Pillay reported that the treaty body ‘system’ doubled in size from 2004 to June
2012. During this period, four new treaty bodies came into existence, along with
three new complaint procedures for other existing bodies.51 In 2000, there were 97

47 ‘Chairperson’s Summary of a Brainstorming Meeting on Reform of the Human Rights Treaty

Body System’, annex to UNGA, ‘Letter Dated 14 September 2006 from the Permanent Representative
of Liechtenstein to the UN’ (18 September 2006) UN Doc A/61/351 (hereafter, ‘Malbun II report’).
48 Reference was made to the CERD’s proposal on this matter.
49 Pillay, ‘Strengthening’ (n 1). 50 ibid 29 (where a full list can be found).
51 ibid 17.
345

The General Assembly Concludes the Treaty Strengthening Process 345

experts serving on treaty bodies; in 2010 there were 125, and by 2012 there were
172.52 Today, there are three more human rights treaties under negotiation—on
multinational corporations, on the rights of ‘the aging’, and on the rights of peas-
ants. Each new treaty may well establish a separate new entity to monitor its im-
plementation. Observers have expressed concern over duplication in these treaties,
as well as anxiety about differences in norms, which may create problems of con-
sistency in interpretation and jurisprudence by the oversight bodies. A 50 per cent
increase in ratifications, with the substantial backlogs in reporting and in review of
individual communications remaining,53 has created numerous pressures on the al-
ready thinly-stretched infrastructure supporting the treaty bodies.
Faced with this growth in number of instruments and of reports due, as well as
the huge growth in independent experts and diverse committees monitoring com-
pliance by States, new and huge institutional challenges for the UN and the moni-
toring bodies have been created. The High Commissioner’s report included a bevy
of recommendations developed during the many meetings and discussions con-
vened by her. Most prominent was a proposal to develop a single five-year calendar
with fixed dates for countries to report to diverse committees, which was aimed at
bringing predictability to State reports.

VIII. The General Assembly Concludes

the Treaty Strengthening Process

In 2012, before the High Commissioner completed her report, the UNGA inter-
vened directly to take the process over from Geneva, eventually adopting Resolution
68/268 in April 2014.54 Led by Russia and a ‘cross-regional group’ including China,
Cuba, Iran, Syria, North Korea, Venezuela, and others, the Assembly’s intervention
seemed initially to threaten the independence of the treaty bodies, not to men-
tion the proposals launched by Pillay. But the Resolution, after almost two more
years of this process, endorsed many of the proposals made by Pillay for harmoniza-
tion and simplification of working methods. Resolution 68/268 directed the UN
Secretariat and the independent committees to reconsider the country-specific re-
porting system by adopting a simplified procedure, and suggested numerous other
actions that should be taken to address institutional aspects of the system—from
the languages used to the need for a training component for States burdened by
numerous reports.
Although the UNGA intergovernmental process began as an effort by a group of
States to instruct the treaty bodies how to conduct their affairs, it ended up tech-
nically respecting the competencies of independent treaty bodies and only ‘recom-
mended’ a variety of measures, leaving it to the treaty bodies to decide whether to
adopt or implement them. Its most visible output were decisions on reallocation

52 ibid. 53 ibid.
54 UNGA Res 68/268 (21 April 2014) UN Doc A/RES/68/268.
346

346 The Institutional Future of the Covenants

of financial resources, producing cost savings by curtailing the translation, inter-

pretation, and production of documents, which account for some 65 per cent of
the treaty body costs. Pocketing these savings, the UNGA authorized additional
meeting time for the treaty bodies to address the reporting backlog and increase
the review of reports, and allocated some five million dollars previously used for
Secretariat expenses for ‘capacity building’ to assist States in preparing their reports
to the treaty bodies.
However, a wide range of the High Commissioner’s proposals were not endorsed—
such as the recommendation to establish national mechanisms to coordinate with
treaty bodies. Similarly, Pillay noted that the CERD recommended the creation of a
joint treaty working group for communications consisting of experts from different
treaty bodies whose recommendations would be presented to the plenary of the
committee to which the complaint was initially directed. While she included this
proposal in her 2012 report, the UNGA did not comment on it.55

IX. A ‘World Court’ for Human Rights?

Discussion of the proposal to create a ‘world court’ for human rights, originally made
by Australia in 1947, has been revived from time to time since then by scholars.56
The current proposal, by Manfred Nowak and Martin Scheinin, is essentially an ex-
pansion of the proposal to create a separate petition unit for treaty-based complaints
by individuals.57 The ‘court’ would place all treaty-related individual complaints,
together with inquiries, into a new and separate unit. States would be free to des-
ignate which treaties and which rights would be subject to the binding jurisdiction
of the court, and new ratification of the ‘world court’ statute would be all that is
needed to establish such jurisdiction, they claim. Treaty bodies would continue to
exist, reviewing reports on country compliance but not the individual complaints.
States parties accepting the new ‘world court’ would thus opt out of the complaints
procedures under the existing human rights treaties. Twenty-one separately selected
judges would preside over the cases, which would come from all parts of the world.
The proposal has gained the support of Norway, Austria, and Switzerland, and was
endorsed by the Swiss Initiative for the sixtieth Anniversary of the UDHR.58
When participants in earlier UN treaty reform discussions addressed the matter
of creating a separate body to handle all treaty-related communications, most of

55 Pillay, ‘Strengthening’ (n 1) 68.

56 Stefan Trechsel, ‘A World Court for Human Rights?’ (2004) 1 Northwestern J of Intl Human
Rights 1, 3; Jesse Kirkpatrick, ‘A Modest Proposal: A Global Court of Human Rights’ (2014) 13 J of
Human Rights 230.
57 Most of the ten human rights treaties now have optional individual complaint procedures, al-
though as many as 94 per cent of all complaints are still processed by the HRC and Committee against
Torture (information obtained from the UN in response to an inquiry by the author). See also Report of
the Secretary-General, Status of the Human Rights Treaty Body System, UN Doc A/71/118, Annexes
VIII and IX, 18 July 2016.
58 Scheinin, ‘World Court’ (n 11) 63.
347

A ‘World Court’ for Human Rights? 347

those who expressed a view about such consolidation spoke positively, often citing
the fact that, while States parties have obligations to give victims of violations access
to an effective remedy,59 this right remains ineffective and unenforceable at the na-
tional level. Those advocating a ‘world court’ seem to cite, as reasons for failure of
the current system, one of two arguments: (1) the current lack of power to enforce
the decisions on individual complaints under the ICCPR or other human rights
treaties, or (2) the structural or organizational shortcomings of the current inter-
national supervisory system, such as the lack of visibility about decisions made and
the lack of efficiency in processing cases as they come to the treaty bodies.60
The ‘world court’ proposal, its proponents argue, would correct these problems
and provide victims of violations with a more effective way to pursue remedies than
currently exists. Decisions on individual complaints by the treaty bodies are not
binding and rarely implemented. One reason for non-implementation is that the
authority of these decisions is poor,61 in part due to low visibility, low quality of the
decisions reached, and a lack of efficiency.62 The UN devotes very minimal resources
to the petition system, employing only fifteen lawyers for the unit which examines
cases from all of the human rights treaties.63
Manfred Nowak’s long list of reasons in favour of the ‘world court’ proposal be-
gins by affirming the core principle that, to protect individuals, human rights must
be accompanied by remedies that can be enforced. Legally binding judgements and
decisions, as proposed in the ‘world court’, would surely be better than the current
non-binding Views adopted by the HRC, Committee against Torture, and other
treaty bodies. The subject matter covered in complaints to the new body could be
extended to include violations by non-State actors, and the new setup could also
address the matter of extraterritoriality. Nowak argues that the times have changed,
as the Cold War is over and the Arab Spring has brought a new openness, and that

59 See ICCPR art 2(3): ‘Each State Party to the present Covenant undertakes: (a) To ensure that
any person whose rights or freedoms as herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To
ensure that any person claiming such a remedy shall have his right thereto determined by competent
judicial, administrative or legislative authorities, or by any other competent authority provided for by
the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the
competent authorities shall enforce such remedies when granted’.
60 See Trechsel, ‘World Court’ (n 56); Kirkpatrick, ‘A Global Court’ (n 56); Rosa Freedman, Failing
to Protect: The UN and the Politicisation of Human Rights (OUP 2014) 141–49; and Philip Alston,
‘Against a World Court for Human Rights’ (2014) 28 Ethics & Intl Affairs 197. See also a simplified
argument by Alston entitled ‘A Truly Bad Idea: A World Court for Human Rights’ (Open Democracy,
13 June 2014) <www.opendemocracy.net/openglobalrights-blog/philip-alston/truly-bad-idea-world-
court-for-human-rights> accessed 7 April 2017.
61 Trechsel, ‘World Court’ (n 56) and Freedman, Failing to Protect (n 60).
62 Geir Ulfstein, ‘Do We Need a World Court of Human Rights?’ in Ola Engdahl and Pål Wrange
(eds), Law at War: The Law as it Was and the Law as it Should Be (Martinus Nijhoff 2008) 261. High
Commissioner Louise Arbour is associated with earlier criticism of the system for lacking accessibility
and visibility to victims, and deficits in its effectiveness and authority (HRI, ‘Concept Paper’ (n 7) paras
21 and 27).
63 As stated at the Oslo Conference on the Individual Communications Practice of the UN Treaty
Bodies, 8–9 September 2015. The unit consists of twelve ‘drafters’ (P2/3 level) and three supervisors/
secretaries communications procedures (P4 level). In addition, the unit was given one drafter (P3 level)
on a temporary basis to help deal with the backlog.
348

348 The Institutional Future of the Covenants

States would more readily submit themselves to binding court decisions on a wide
range of human rights issues. He points to their willingness to do this in the regional
courts, whose experiences he believes would offer much insight into the new ‘world
court’. Enforcement of treaty body decisions could therefore be aided by actions of
the Human Rights Council directly, he argues, rather than having the treaty bodies
conduct their own follow-up efforts on their own decisions. A legally binding ‘court’
can also provide reparation to victims, pecuniary or otherwise.64
According to Martin Scheinin, who, together with Julia Kozma and Manfred
Nowak, has developed a draft statute of the ‘world court’, realization of the proposal
to create this new body would demonstrate the commitment of States to human
rights and their universality. A ‘world court’ would enhance the coherence and con-
sistency of the decisions and interpretations of norms by the committees. In this
way, he argues, it would expand the binding force of the treaties worldwide.65
To make it happen, Nowak and Scheinin suggest that States should be free to
designate which treaties, and which rights in the treaties, would be subject to the
jurisdiction of the ‘world court’ and to its judgments, which would become binding.
Nowak argues also that no treaty amendments are needed to make the institutional
change to establish a ‘world court’ handling all petitions. A new statute, however,
would need to be authorized, and a new institution, properly staffed and capable of
following up on enforcement, should then be built around it.
Critics of the ‘world court’ cite many concerns about whether the proposed body
could achieve all that it is claimed it would do to improve the binding nature of de-
cisions on individual complaints and, more broadly, the effective implementation
of human rights norms at the national level. While the visibility of the ‘world court’
may be its most obvious and positive added feature, there are questions whether the
new body would in fact broaden the subject matter under scrutiny or, in the course
of its actual development, narrow the scope of rights to those to which States subject
themselves. The ability of States to pick and choose which rights in which treaties
they would subject themselves to under the new ‘world court’ raises concerns: would
this diminish existing obligations under the human rights treaties, and would it
at the same time enable States to ‘capture’ the court’s jurisprudence in ways more
friendly to States than to rights-holders?66 Similarly, it may not be feasible to assume
that States would agree to have the new ‘world court’ cover extraterritorial acts and
abuses by non-State actors.
This leads to the question whether, indeed, the times have changed in the ways
Nowak suggests. Regressive trends in the former ‘eastern bloc’ and the collapse of the

64 See Nowak, ‘It’s Time’ (n 12); Manfred Nowak, ‘The Right of Victims of Human Rights Violations
to a Remedy: The Need for a World Court of Human Rights’ (2014) 32 Nordic J of Human Rights 1,
10–11; and Nowak, ‘World Court’ (n 11). Non-pecuniary forms of reparation could include rehabili-
tative care, satisfaction, guarantees of non-repetition, etc.
65 Scheinin, ‘World Court’ (n 11). See also Julia Kozma, Manfred Nowak, and Martin Scheinin, ‘A
World Court of Human Rights: Consolidated Draft Stature and Commentary’ (2010) <www.eui.eu/
Documents/DepartmentsCentres/Law/Professors/Scheinin/ConsolidatedWorldCourtStatute.pdf>
accessed 7 April 2017.
66 Alston, ‘Against a World Court’ (n 60).
349

A ‘World Court’ for Human Rights? 349

‘Arab Spring’, together with a crackdown on human rights defenders and principles
worldwide, may be the more relevant context in which this debate is unfolding. As
for the possible role of the Human Rights Council in overseeing enforcement, the
Council remains a highly political body, with a membership that is less respectful of
human rights than earlier in its history.67 Its Universal Periodic Review procedure
has not, to date, developed an expert component, and it remains unlikely to take on
an impartial follow-up role for treaty body decisions as proposed by Nowak.
As a practical matter, there are also serious questions about whether the new ‘court’
would result in greater implementation of decisions. Under the current complaints
procedures of the treaty bodies, there is presently no independent fact-finding, and
only a rudimentary, largely unexplored capacity for examination of witnesses and
experts.68 The authority of the treaty body decisions is in part limited because they
lack a reliable means for assessing the facts. It is unclear if the will and resources exist
to change this. If it is not changed, there are questions about whether national au-
thorities are likely to implement the new ‘court’s’ judgements when based on such
procedural rules.
A large array of other practical problems with the proposed ‘world court’ have
also been noted, ranging from whether its worldwide focus would result in an un-
manageable overload of cases69 to whether the substantial resources it would require
would actually be allocated. In view of the UNGA’s recent action to cut support for
the treaty system following the ‘treaty strengthening process’,70 the ‘world court’
seems likely to encounter significant resource roadblocks at its outset.
Scheinin has raised the importance of ensuring coherence and consistency of the
decisions reached. Previously, advocates of a single unified treaty body questioned
whether the distinct and separate treaty bodies, with differing legal instruments
governing their decisions and staff dedicated to their separate entities, would main-
tain consistency.71 In an important article, Geir Ulfstein has asked whether creating
a separate ‘world court’ for complaint procedures under the treaty bodies, but sep-
arate from these bodies, might in fact fracture the movement towards the coherence
of the international legal regime for human rights.72 Nowak and Scheinin do not
address this matter in their proposal.73
Among the factors relevant to this is whether the new ‘court’ would operate on a
basis of deference (complementarity) with regional human rights courts, or function
instead as the top of a hierarchy. It remains uncertain what authority the decisions
of other treaty bodies and regional courts would have for the new ‘world court’ and
what the screening process for taking up decisions from other courts for further re-
view would look like. All these matters would be up for negotiation and decision in
a new structure.

67 Freedman, Failing to Protect (n 60) 147.

68 Ulfstein, ‘Do We Need a World Court?’ (n 62) 265. 69 ibid 263.
70 Christen Broecker and Michael O’Flaherty, ‘The Outcome of the General Assembly’s Treaty Body
Strengthening Process’ (Universal Rights Group, June 2014) <www.universal-rights.org/wp-content/
uploads/2015/02/URG_Policy_Brief_web_spread_hd.pdf> accessed 7 April 2017.
71 HRI, ‘Concept Paper’ (n 7) para 42.
72 Ulfstein, ‘Do We Need a World Court?’ (n 62). 73 ibid 271.
350

350 The Institutional Future of the Covenants

This brings us to ask whether the ‘world court’ is a politically feasible option in
today’s world. Would States consent to broad and binding jurisdiction by such a
court and would it be applicable, as well as enforceable, worldwide? Rosa Freedman
recalls that a diverse set of issues—such as sexual orientation or the treatment of
migrants—still divide the member States of the UN and are likely to continue to
inhibit broad consent to the ‘world court’ decisions on controversial matters.74 As
long as adherence to the court’s jurisdiction is voluntary, she questions the feasibility
of enforcing human rights treaty guarantees.
Philip Alston, whose earlier work on treaty reform was so central, believes the
‘world court’ proposal is not merely utopian, but is actually misconceived. Citing
the ‘world’s deep-rooted human rights dysfunctions’, Alston emphasizes the need
to have nationally-based legal systems in place, including national accountability
mechanisms, in order to bring about implementation of human rights decisions
stemming from the treaty-based complaint procedures. He further notes the weak-
ness or absence of effective regional systems in Asia, the Pacific, and the Arab world.
‘These complex challenges cannot be dealt with in a meaningful way by seeking to
bypass them all and create a [world court for human rights] as if it were some magical
panacea.’75

X. Improving Individual Communications: What Should be Done?

In considering the ‘institutional future of the Covenants’, the present chapter

has drawn attention to the history of UN treaty reform efforts, which have been
longstanding and extensive. Much attention has historically been paid to the ques-
tion of reforming State reporting procedures under the treaties, and, in marked
contrast, very little to the matter of how to handle individual communications
(complaints) procedures that are also part of the same instruments. Despite the
interest in justiciability expressed by the President of the Human Rights Council
in March 2016,76 there has been, for the most part, a dearth of serious discussion
of how to examine such communications and to implement the rights guarantees
of the treaties. It has only been with the proposal to create a ‘world court’ of human
rights that the issue of effectiveness of the individual complaints procedures has
gained attention, and raised questions. For this, Nowak and Scheinin deserve credit.
In general, discussions about reform of the communications procedures in the
context of treaty reform have largely focused on follow-up to decisions on cases—
not the admissibility, adjudication, staffing, identification of facts or evidence,
standards of proof, normative consistency, or other aspects of the communications
proceedings themselves. Yet these issues need attention to enable the work and de-
cisions of any new body on complaints to ensure the availability of redress to indi-
vidual complainants and the enforcement of the treaty norms.

74 Freedman, Failing to Protect (n 60) 147–49. 75 Alston, ‘A Truly Bad Idea’ (n 60).
76 ‘HRC High-level Panel Discussion’ (n 3).
351

Improving Individual Communications: What Should be Done? 351

One exception to this pattern took place when the CERD raised the issue of a
creating a new and separate institution to deal with communications. In 2006, the
CERD had proposed that the High Commissioner create a joint body to handle all
individual complaints submitted to all treaty bodies, arguing this would add visi-
bility to the complaints proceedings. In October 2011, in a discussion at a small
and rather narrowly-focused meeting on petitions organized by the Office of the
UN High Commissioner for Human Rights (OHCHR) within the ‘treaty strength-
ening process’, the CERD suggested a different approach which would not require
treaty amendment. It proposed that the joint body could be an ‘Inter-Committee’
working group to prepare decisions on individual cases. It would be composed of
persons from each of the ten treaty bodies who would reach recommendations on
the complaints and then present them, in turn, for formal approval to the plenary of
the treaty body to which the complaint was initially sent.
The meeting where this idea was presented included only seven representatives
from five treaty bodies. The member from the CERD, urging a holistic approach
to treaty implementation, stated that the proposed joint body would offer oppor-
tunities to harmonize registration of cases and rules of procedure, and provide
consistency in the application of admissibility criteria for complaints and in the
interpretation of substantive norms. Key to the argument was the idea that this
joint body would help bring about some cross-fertilization between treaty bodies,
allowing additional expertise on the norms in question to be brought to bear by
members of other treaty bodies. Later, as noted above, in 2012, the CERD formally
proposed creating a joint body, and the High Commissioner endorsed the idea,
though no action on it was taken by the UNGA.
There are obviously serious drawbacks that would come about if one were to
consolidate all of the communications under all of the treaties into a single body,
some of which were raised in the OHCHR-organized discussion in 2011. Such
disadvantages could be legal, organizational, logistical, and/or financial. Because
each treaty only authorizes its members to deal with that specific treaty, it is unclear
whether there are legal obstacles to members of one treaty body acting to decide
complaints submitted to another body. Similarly, there may be difficulty in agreeing
to the optimal composition of a joint body, given that the overwhelming number
and proportion of complaints presently submitted to the UN human rights treaties
are directed to the HRC, with the Committee against Torture in a distant second
place. Other treaty bodies have complaints procedures that have rarely if ever been
employed, and they have little expertise on deliberating on complaints. This raises
the question of whether membership in the proposed joint body should be weighted
or not. Alternatively, there needs to be consideration of whether an equal number
of members from each treaty body should routinely serve on the joint body. No one
has yet examined what might be the outcome of such composition on the decisions
reached, but it cannot be assumed it would constitute an ideal outcome. Since the
plenary sessions of each treaty body could overrule the joint working group’s deci-
sions, there is also concern about whether such an arrangement would lessen one
committee’s ‘ownership’ of final decisions that will be taken by a different body.
Additionally, there are logistical and financial matters to be sorted out to be able to
352

352 The Institutional Future of the Covenants

convene such a body in a timely fashion, given the staggered meeting schedule of the
different committees, not to mention staffing issues.
In considering the institutional future of the Covenants and the other human rights
treaties more broadly, the likely size and role of individual complaints proceedings
clearly needs more attention. There are already signs that the number of complaints is
growing. Among other issues meriting attention are how to ensure the independence of
the treaty bodies handling complaints and the impartiality of their members; whether
there are inconsistent outcomes and unconvincing reasoning in cases; whether there are
adequate procedural guarantees (and whether others, such as a fact-finding mechanism,
should be added); whether some cases have been unduly prolonged or too expeditiously
addressed; and the degree to which complainants conduct ‘forum shopping’ and play
off international institutions against one another. Yet another area of concern is the lan-
guage about complaints and remedies in the treaties themselves, which differs; the rem-
edies in specific cases are also treated differently by the relevant treaty bodies, sometimes
because of the specific and differing language of the treaties themselves. How to handle
the backlog of cases remains a key concern, too. The ‘world court’ proposal should focus
attention on whether or not there is compliance or non-compliance by ratifying States
with the decisions of the treaty bodies. Clearly there is much more to be examined re-
garding the operation and handling of individual complaints procedures, whether by a
joint entity or the original, separate committees.
Bringing together representatives of ten different treaty bodies into a special
‘working group’ or new committee to reach a decision on a case involving a human
right in one of the treaties raises very serious questions about the likely compe-
tence and experience of the persons chosen to serve on the proposed unified body.
This is a reality whether or not the new body is called a working group or a ‘world
court’. Most human rights complaints to the UN (74 per cent) are handled by one
Committee, the HRC. The Committee against Torture, in second place, receives
20 per cent.77 It seems inconceivable that a majority of experts deciding cases sent

77 According to the Office of the High Commissioner for Human Rights, as of December 2016, the
HRC, which first met some forty years ago, had dealt with a total of 2282 individual complaints (out of a
total of 2924 received), of which 1084 had been considered inadmissible or discontinued, and 1198 had
been the subject of merits decisions. By comparison, as of the end of December 2016, the Committee
against Torture had dealt with a total of 623 cases (out of a total of 892 received), of which 314 were
inadmissible or discontinued, and 309 had been the subject of merits decisions. The CERD—in its
more than forty-five-year history—had dealt with a total of only 55 communications as of the end of
December 2016, of which 21 were inadmissible or discontinued and 34 had been the subject of merits
decisions. The CEDAW Committee, whose experience with complaints is much more recent, had dealt
with only 67 communications in total by the end of 2016 (out of a total of 110 received), of which 42
were declared inadmissible or discontinued, and 25 have been the subject of merits decisions, 23 of
which were violations. In recent years, other treaties have added complaints procedures, although not all
of them are yet in force nor have all bodies adjudicated such cases. For the HRC, see ‘Statistical Survey
of Individual Complaints Dealt with by the Human Rights Committee under the Optional Protocol to
the International Covenant on Civil and Political Rights’ (March 2016) <www.ohchr.org/Documents/
HRBodies/CCPR/StatisticalSurvey.xls> accessed 9 May 2017. For the Committee against Torture, see
‘Status of Communications Dealt With by CAT Under Art. 22 Procedure’ (15 August 2015) <www.
ohchr.org/Documents/HRBodies/CAT/StatisticalSurvey.xls> accessed 9 May 2017. For the CERD,
see ‘Statistical Survey of Individual Complaints Dealt With by the Committee on the Elimination of
Racial Discirmination (sic) under Article 14 of the Convention for the Elimination of all forms of Racial
35

Improving Individual Communications: What Should be Done? 353

to one specific treaty body would actually come from another entity, and possibly
operate without substantive knowledge of the subject matter of the other treaty (or
treaties)—or that they should. Yet that is one of the options that would exist if the
proposal for a joint petitions body were to be implemented.
The fiftieth anniversary of adoption of the International Covenants on human
rights is a fitting moment not only to ask whether the nations of the world that have
ratified them are implementing the norms contained in these instruments, but also
to ask whether institutional changes can bring about better compliance. While the
proposal for a new ‘world court’ to implement the human rights guarantees in the
ICCPR and other human rights treaties has drawn attention to the petition system,
there remain many questions about the feasibility or desirability of such a new mech-
anism. Instead of arguing about the details presented in the draft statute prepared by
advocates, energy and advocacy would be better devoted to examining the current
system, exploring proposals developed during the treaty body strengthening process
and thereafter. In searching for an institutional future, it is essential to keep in mind
the need to ensure that the victims of violations have an effective remedy if the rights
in the Covenants are violated. Currently, the decisions under individual petition
procedures are little known and less observed by the States concerned.
When, in March 2016, the Human Rights Council’s President spoke of making
all rights justiciable and consolidating the two Covenant committees into a single
body, he did not offer suggestions about how this might be achieved. It seems im-
portant to explore whether the different treaty bodies—the two Covenant commit-
tees as well as the other treaty monitoring committees—differ in their treatment of
the normative standards they consider in individual cases.
Institutional reforms of the treaty bodies should meet several overarching con-
cerns. In principle, any change should bring about better implementation of sub-
stantive obligations and enhance the level of protection afforded to rights-holders
by States parties to the human rights treaties. Similarly, any such change should
maintain, or intensify, the scrutiny of implementation of the treaty guarantees by
the treaty bodies. At a minimum, any institutional changes in the future should
not weaken or dilute their implementation. In recent years, a plethora of indi-
vidual complaints procedures have been added to the treaties, including before
the Committee on Economic, Social and Cultural Rights. New treaty bodies, such
as the Committee on the Rights of Persons with Disabilities, not to mention the
Committee on the Elimination of Discrimination against Women, bring new per-
spectives to bear on some rights issues.
Therefore, it would seem that there is room and time for another modest pro-
posal: to explore whether there have been differences in treatment of human rights
norms depending on which treaty body examines an individual complaint. One way
forward might be to conduct studies to review and reassess decisions in individual

Discrimination’ (May 2014) <www.ohchr.org/Documents/HRBodies/CERD/StatisticalSurvey.xls>

accessed 9 May 2017. Finally, for the CEDAW Committee, see ‘Status of Communications Dealt With
by CEDAW Optional Protocol’ <www.ohchr.org/Documents/HRBodies/CEDAW/StatisticalSurvey.
xls> accessed 9 May 2017.
354

354 The Institutional Future of the Covenants

cases that have already been decided by the committees. Experimentation and simu-
lations of how the cases might be decided differently by differently structured treaty
bodies or joint committees could be conducted in an academic or think-tank set-
ting. Alternatively, some model cases could be prepared and given to differently
constructed joint committees to see whether each comes up with similar or different
outcomes.
Similarly, there is also a need to look into the ways different States have (or have
not) upheld the individual complaints decisions of the treaty monitoring commit-
tees. While the UN Secretariat has been fostering a variety of efforts aimed at har-
monizing the approaches of the committees for the review of State reports, there has
been little effort to examine why some States are more or less likely to comply with
individual complaints decisions and proposed remedies on different topics.
It is also important to ask what will happen to the jurisprudence of the treaty
bodies and to human rights more generally if the Covenant committees and/or
other human rights treaty bodies are left to work solely on State reports, as the
‘world court’ proposal suggests they would. Would separating consideration of gen-
eral compliance by a State from the consideration of individual cases lead to incon-
sistency and incoherence in the normative development of human rights?
To date, there has been substantial progress in adopting reforms proposed
for State reporting under the human rights treaties. But there remains, by and
large, a dearth of attention to the individual petition proceedings and the en-
forcement of their outcomes. When we look back at the treaty reform proposals
that have seized reformers at the UN, very many of them concerning State re-
porting (including those in Alston’s and Bayefsky’s earlier studies) have already
been implemented. This reminds us that academic proposals and subsequent
advocacy have the potential to create real improvements. More attention to
the individual complaints procedures could also have a substantial and institu-
tional impact on the future efficacy of the Covenants and other human rights
treaty bodies.
It seems that a proposal to abandon current human rights treaty implementation
structures and start anew in favour of creating a ‘world court’ is based less on an ana-
lysis of what has transpired than on a desire to create the next ‘big idea’ in human
rights in the form of a court. It also seems that questions of consolidation of staff into
a single petitions unit are not based on specific data. While there are surely econ-
omies of scale to be found and expertise can be better focused in the treaty branch,
it seems clear that more study is needed—the questions posed above are in need of
attention, as are questions of optimal staffing requirements.
Surely the ultimate goal—to provide greater human rights protection and en-
forcement of decisions on individual complaints—merits exploring such approaches
before forging forward too quickly with new institutional structures. Rather than
rushing to tear down the treaty body system that currently exists, there is a need to
do the work either to correct it or prove that it is broken beyond repair. Anything less
would be a dangerous sacrifice of the institutional and legal foundations upon which
35

Bibliography 355
the human rights treaties have been constructed. In short, there is a need for greater
due diligence. Supporters of the Covenants and advocates for human rights—still
the ‘idea of our time’—owe it not just to ourselves but to the members of commu-
nities around the world seeking to implement the Covenants and related treaties in
ways that are more effective.

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357

Index
Afghanistan 185, 195, 196, 198, 203–5, 208 derogations 40, 64, 125, 141–42,
African Charter on Human and Peoples’ 253, 271, 296–98, 319
Rights 101–06, 111, 121 development 12, 21, 104, 224,
African Court on Human and Peoples’ 285–89, 296, 299
Rights 36–37, 103–05 discrimination 11, 14, 44–45, 54, 55,
Algeria 120 63, 106, 110–11, 127, 134, 135,
Alston, Philip 350, 354 144–45, 145–46, 176–78, 221–22,
Arab Charter on Human Rights 129, 148–49 232, 257–58, 296, 310–11, 342
Arab Human Rights Committee 129 domestic law, the Covenants, and
Arbour, Louise 342–44, 355 enforcement 7–27, 49–50, 56, 118, 121,
Argentina 153–54, 154–55, 157, 175, 186, 226, 229, 260, 348–50
162, 163–65, 311–14 federalism 8, 253, 257–58, 259
austerity 224, 235–38, 304–11, 314–19 implementation 8, 16, 17, 18–23, 25–26,
Australia 16, 24–25, 203, 346 34–36, 87–92, 88–93, 107–8, 110, 118–19,
132–33, 136–37, 158, 163, 166–67, 174,
Bangladesh 185, 187, 190, 192, 193, 179–80, 186, 187–89, 190, 193, 208,
195, 197, 201, 204, 205, 209 209, 232–33, 248–49, 257–58, 335
Brazil 154, 155–56, 162, 165–66, 304 State sovereignty, see sovereignty
status of treaties, see monism and dualism
CESCR, see Committee on Economic, dualism 17, 101, 109–17, 193,
Social and Cultural Rights (CESCR) 198, 227, 255–56,
Charter of the United Nations, see
United Nations Charter East–West conflict 10–12, 22, 24, 26, 216, 348
China 185, 187, 188, 192, 203, 296, 345 economic, social, and cultural rights
climate change 106, 162, 279–300 direct effect 216, 218–31, 256
collective rights 104, 151–52, 161–62, 164 justiciability 107–8, 116, 121–22,
Colombia 162, 166–68, 178 157–62, 179–80, 232, 256, 353
Committee on Economic, Social and maximum available resources 18, 44, 102,
Cultural Rights (CESCR) 107, 158, 164–65, 170, 180, 318–19
concluding observations 50, 63, 69–70, 77, minimum core obligations 59–60,
83–84, 87–93, 162–70, 225–31, 262–64 64–65, 67, 114–15, 219
General Comments 63, 69–70, progressive realization 19–20, 24,
84–86, 87–93, 262–64 115, 159–60, 166–67, 170, 219,
Views 48–49, 68, 87–93 222, 226, 297–98, 318
constitutional supremacy 154, 192, 259 retrogressive measures 142–43, 159, 166–68,
consensus 4, 14, 16, 26, 49, 61, 63–64, 174, 232–33, 236–37, 253, 318
65–66, 69, 249, 263–64, 266–73 Egypt 131–33, 134, 135, 136,
consent, see State consent 140–42, 145–46, 147
Convention on the Elimination of All emergencies, see states of emergency
Forms of Racial Discrimination European Court of Human Rights (ECtHR)
(ICERD) 27, 125, 130–31, 351 54, 56, 58, 61, 217–18, 220–21,
Convention on the Rights of Persons with 228–29, 229, 265–66, 310–11
Disabilities (CRPD) 130–31, 220, evictions 44–45, 224, 234, 235–36, 307
225, 228–29
Cuba 151 fair trial rights 141, 143–44
cultural diversity 38, 146, 247 financial and economic crises 235–38, 303–30
customary international law 40–41, 52, 324 first-and second-generation rights 15–21
and the ICCPR 40–41, 138 freedom of expression 31, 147, 208
and treaty interpretation 52, 60, 70, 263–64
gender 55, 129, 145, 198
death penalty 124–25, 129, 132, 134, discrimination and stereotyping 128–29,
142–43, 199–200, 206, 210 145, 198
democracy 127, 147, 148 representation in treaty bodies 38
358

358 Index
Germany 218–21, 224, 225–26, International Covenant on Economic, Social
229–30, 234, 237 and Cultural Rights (ICESCR)
Greece 21, 309, 310, 314–17, 319 drafting history 7–27
entry into force 9, 52, 100,
Hong Kong 185, 188, 190, 193, 195, 200, 203 115, 117, 220, 255–57
HRC, see Human Rights Committee (HRC) influence 251–62
human rights education 262 jurisdiction 230, 291–96
human rights treaty bodies 335–55 Optional Protocol 27, 49, 86–87, 100,
proportionate representation 38, 122, 152, 164–65, 175, 238, 261, 320
247, 262, 272 reservations 99, 108, 253
reform 335–55 international financial institutions
strengthening 264–73, 344–46 (IFIs) 303–30
Human Rights Committee (HRC) 31–46 International Monetary Fund (IMF)
concluding observations 32–38, 77, interpretation, see treaty interpretation
83–84, 87–93, 124–25, 135–37, Iran 131–39, 142, 146, 147
140–48, 205–6, 262–64 Iraq 131–46, 189–90
functions 31–37 Israel 50, 125, 127, 131, 134, 136,
General Comments 38–39, 138, 140–42, 144, 145, 149
84–86, 87–93, 262–64
interpretation 40–46 Japan 187, 191, 192–93, 197, 201,
members 37–40 204–06, 208–09, 210
Views 33–35, 38, 87–93, 206–7, 262–64 justiciability of human rights 19–21, 107–8,
workload 352–53 114, 118, 120–21, 151–52, 154,
Human Rights Council 92, 247, 157–62, 232
254, 259, 322–24, 349
Kenya 103, 104, 113, 116–17
ICCPR, see International Covenant on Kuwait 125, 131–39, 142, 144, 145, 147, 148
Civil and Political Rights (ICCPR)
ICESCR, see International Covenant limitation of rights 13–14, 52, 114,
on Economic, Social and 137, 144, 166, 296–98, 318
Cultural Rights (ICESCR) linguistic minorities 137, 145–46
IMF, see International Monetary Fund (IMF)
implementation 8, 12, 16–27, 34–43, Malaysia 185, 187, 188, 192,
50–51, 55, 87–93, 337–38, 345–50 193, 203, 208, 211
India 21, 185, 187–99, 202–3, 208, 209, 210 margin of appreciation 36, 108,
indigenous peoples’ rights 102, 104, 115, 265–67, 271–72
145–46, 161, 162, 172 marginalized groups 112, 120–21, 161, 313
individual communications 38, 350–55 Mexico 170, 304
non–binding nature 248, 347 minority rights, see rights of minorities
role of NGOs 86–87 monism 17, 101, 109, 117–21, 193, 255–56
suggestions for reform 350–55
Inter-American Court of Human Namibia 110–11
Rights 161–62, 171–74, 265 national human rights institutions
interstate complaints 12, 21, (NHRIs) 118–19, 201–3, 209, 211, 259
23, 25–26, 32, 341 natural resources 104, 287–91
international cooperation 21, 171, 320 Nepal 86, 185, 189, 192, 199, 202, 207, 210
International Court of Justice (ICJ) 34–35, NGOs, see non-governmental organizations
50–51, 58, 60, 254–55, 263, 323–24 NHRIs, see national human rights
International Covenant on Civil and institutions (NHRIs)
Political Rights (ICCPR) Nigeria 107–8, 111
accession 130–34, 188–89 non-governmental organizations
drafting history 7–27, 187 (NGOs) 25, 32, 65, 76–94, 260–61
entry into force 9, 255–57 role in implementation 87–92, 260–61
First Optional Protocol 23, 33, 34, 35, role in the individual communications
86–87, 132–33, 187, 206–07, 210, 261 procedure 86–87, 120
influence 162–72, 195–201, 251–62 role related to reporting 77–86, 260–61
jurisdiction 142, 291–96 non-state actors 66, 260–61, 323, 347–48
reservations 125, 133–35, 134–35, North Korea 185, 192–93, 194, 199, 201,
189–91, 204, 253 202–3, 204, 206, 209, 210–11
Second Optional Protocol 132–33, 208, 210 Nowak, Manfred 349–50
359

Index 359
occupation 45–46, 140, 252, 293 shadow reports 124, 180, 210
Organization of American States Sharia law 189–90, 257–58
(OAS) 159–60 South Africa 113, 115–16
Inter-American Court of Human Rights, see South Korea 78, 191
Inter-American Court of Human Rights sovereignty 8, 12–13, 23, 25–26, 62
San Salvador Protocol, see San Spain 218–31, 235–38
Salvador Protocol special procedures 38, 90, 206, 300, 308
Special Rapporteurs, see special procedures
Pakistan 185, 187, 188, 189, 190–91, 192–93, Sri Lanka 185, 189, 192, 193, 195, 198,
197–98, 199–200, 201, 202–04, 208, 210 202–03, 206, 207, 208, 210
Peru 170, 174 State consent 58–71, 350
pluralism 260–61 State obligations
legal 14, 146, 257 binding nature 106, 216, 228
political 147 justification of non-compliance 64–65,
value pluralism 185, 211, 262 175, 180, 319
post-colonial critiques 11–12, 15, 187, 287–88 negative obligations 285
poverty 112, 152, 175–79, 258, 280, positive obligations 42, 163, 319
282, 286, 295–96, 308 respect, protect and fulfil 100, 104, 114, 116
as a human rights violation 152, State reporting 91, 203–05, 253, 327–28, 336
175–79, 225–26 evaluation of reports 81–84, 315–16
reduction 122, 222, 225–26 failure to report 203–05, 210
public emergency, see states of emergency procedure 188–89, 253, 327–28,
335, 337–38
ratification 100, 125, 127–29, 130–33, reform efforts 204–5, 210, 338–40
186, 188, 218, 251–54, 335–36 role of NGOs 81–84
legal effects 22, 100, 110, 118, states of emergency 124–25, 140–42, 143, 157
125, 137–39, 193 subsidiarity 265–67, 273
motivations 14, 131–32 Syria 131–47, 189–90, 297
regional human rights systems 101–06,
129, 171–74, 178, 211 terrorism 137, 140–43
courts 36, 217–18, 161, 171–74 torture 42–43, 92, 143–44
instruments 36, 101–02, 129, treaty interpretation 40–46, 49–72, 262–73
148–49, 217–18, 265 binding nature 263–64
relativism, see pluralism legitimacy 65–71, 262–73
religion 144–46, 185, 209, 257–58 methods 52–58
religious minorities 127–28, 144–45, 146 morality 58–61
reservations 22, 108, 125, 130–35, Turkey 125, 131–42, 148–49
154, 186, 188–91, 253
objections 190–91, 135, 208 Uganda 79, 113
religion-based 133–35 Ulfstein, Geir 349
special nature of human rights treaties 56 United Kingdom 12–18, 22, 24,
stealth reservations 135 78, 153, 218–32, 235–38
to reporting obligations 204 United Nations Charter 52, 128, 284, 285, 320
withdrawal 34, 191, 200, 204, 208 United Nations Convention against Torture
right to self-determination, see (UNCAT) 42–43, 143–44, 203, 209
self-determination United Nations Convention on the Elimination
rights of minorities 14–15, 59, 134–35, 144, of all Forms of Discrimination
145–46, 147–48, 199–200, 232–33 Against Women (CEDAW) 119, 125,
Russia 78, 218–24, 225–28, 234– 130–31, 134, 203, 220, 228, 244
35, 237–38, 239, 345 United States of America 12–13, 15–17,
Rwanda 119 22, 24, 26, 36, 190, 250
Universal Declaration of Human Rights
San Salvador Protocol 151, 159, 171–72 (UDHR) 2, 7–11, 13, 14–18,
Scheinin, Martin 349–50 21, 26–27, 52, 62, 194, 195,
self-determination 11–12, 14, 16, 284–85, 300, 324–25, 329
101, 104, 189, 286–91 Universal Periodic Review
self-executing norms 62, 110, (UPR) 92–93, 128, 349
118, 155–56, 193, 197 criticism 92–93
ICCPR 197 influence 207–08
ICESCR 62, 118 universality of rights 99–100, 268, 271, 348
360

360 Index
Venezuela 78, 156, 168–70, 306 withdrawal
Vienna Convention on the Law of from the ICCPR 199, 204
Treaties (VCLT) 49, 51–54, 56–58, of reservations 34, 135, 190–91, 200, 208, 253
60–64, 67–72, 264, 269, 273 World Bank 313, 321, 324–25, 329
vulnerability 104, 112, 127, 161, 175–77,
223, 285, 286, 310, 316, 328 Yemen 89, 131–46, 190
361
362
36
364
365
36
367
368