4 The International Covenant on Economic, Social and Cultural Rights

Prof. Rehan Abeyratne

Introduction

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is one of the principal international human rights treaties. It is the primary international instrument that defines and seeks to enforce economic, social and cultural rights. These are rights aimed at fulfilling certain material needs, such as food, water, and shelter, as well as providing access to the cultural life of the community.

This chapter will introduce students to the text of the ICESCR, the debates surrounding its enactment, the nature of the obligations it sets forth, and some criticisms regarding its drafting and enforceability.

Learning Outcomes:

After completing this module, students should know and understand:

The ICESCR’s historical origins

The ICESCR’s structure and key provisions

State parties to the Convention and concerns with enforceability

1. The History of the ICESCR

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty, ratified by most of the United Nations (UN) member states, which sets forth and seeks to enforce a range of economic, social and cultural rights. This section sets out the Convention’s history and the debates surrounding its drafting.

Following the devastation of World War II, the United Nations was created in 1945 and given the task, among others, “to reaffirm faith in fundamental human rights.” This led to the creation of the UN Commission on Human Rights (CHR) in 1946. The Commission drafted the Universal Declaration of Human Rights, which was announced by the UN General Assembly in 1948. While the UDHR provided an aspirational and comprehensive declaration of rights, it did not have any legally binding force at the time. The CHR was therefore tasked with drafting a covenant (treaty) that would elaborate on the rights in the UDHR and give them legal authority. This covenant would require formal state ratification, meaning that states would have to consent to its terms before any binding obligations would be imposed on them.

However, due to political differences, the CHR was unable to develop a single, binding covenant. Negotiations over this instrument took place against the backdrop of the Cold War, which pitted the “Western” Bloc (comprised of the United States and Western Europe) versus the “Eastern” bloc (including the Soviet Union and other socialist states).

The delegations representing the Western bloc favored two separate covenants. They argued that civil and political rights were fundamentally different from economic, social and cultural rights (ESCRs). In particular, they believed that ESCRs were more difficult to implement and enforce. The Eastern bloc, however, sought to preserve ESCRs within a single covenant, arguing that all human rights are indivisible and interdependent.

The Western bloc eventually prevailed. The CHR drafted two separate conventions that were introduced and opened for signature in 1966 and came into force in 1976. They are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. Along with the UDHR, these two covenants form the “International Bill of Rights” – the core instruments of the international human rights framework.

II Structure and Key Provisions of the ICESCR

The ICESCR consists of a Preamble and 31 articles that define and establish a range of economic, social and cultural rights. The Preamble makes clear that the ICESCR builds on the purposes and aims of the UN Charter and the UDHR. Drawing on the UN Charter, it recognizes the “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” It then cites the UDHR to proclaim that the ideal world where all human beings enjoy “freedom from fear and want” can only be achieved if conditions exist wherein everyone can enjoy the full spectrum of human rights, including civil and political rights as well as ESCRs.

Article 1 of the ICESCR is identical to the corresponding article in the ICCPR. It provides, in relevant part, that “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.” Article 1 goes on to state, “in no case may a people be deprived of its own means of subsistence.” This provision was aimed at ending the colonial occupation; in particular, it targeted Western colonialism that had brought under European control large swathes of Africa, Asia, and Latin America since the nineteenth century.

Despite its noble intentions, this provision is problematic for at least two reasons. First, it grants the right to self-determination to “peoples.” This deviates from the UDHR and other articles within the ICESCR, which grants rights to individuals, not groups, and are premised on the notion that each individual is entitled to an equal and indivisible set of human rights based on their inherent human dignity. Article 1, therefore, poses some theoretical difficulties – what does it mean for “peoples” to have rights? Are “peoples” to be understood as simply an agglomeration of individuals? If so, why not declare that everyone has the right to self-determination?

The second problem with Article 1 is that it does not clarify which groups qualify as a “people” to be granted the right to self-determination. This provision must be read in conjunction the UN Charter, which makes clear that the territorial integrity of UN member states is a priority. Thus, while Article 1 prohibits colonialism, it does not seem to authorize groups within existing nation-states to secede and form new states. Take, for example, an oppressed minority group within a state that seeks its independence. This group might have strong arguments in favor of secession, but it would not qualify as a “people” under Article 1 of the ICESCR. Interestingly, India ratified the ICESCR with a reservation that confirmed this narrow interpretation of Article 1. India declared that it understood Article 1

“apply only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of people or nation–which is the essence of national integrity.”

Article 2 of the ICESCR sets forth the general obligations of each state party to the Covenant. These obligations are very broad and leave much room for differences in development and capacity. For instance, Article 2 (1) establishes that every 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.” Thus, states are not required fulfill the economic, social and cultural rights of their citizens immediately or even in a specified amount of time. They must simply “undertake to take steps” towards fulfilling those rights in the future.

This notion of progressive realization is central to the conception and enforcement of economic, social and cultural rights. It is based on a distinction between “negative” and “positive” rights. In short, civil and political rights, such as the right to free speech and the right to life, are considered “negative” rights because they can be largely fulfilled through state inaction. For instance, if the state refrains from passing laws that limit speech, then the right to free speech is largely upheld. By contrast, ESCRs are viewed as “positive” rights, meaning that the state must take affirmative steps to fulfill them. Take, for example, the right to food. If the state does not provide food or access to food, to those in need, their right to food will be violated. Thus, unlike the right to free speech, mere state inaction will not suffice – the state must act positively towards fulfilling this right.

The distinction between “negative” and “positive” rights are contested and, in many ways, is problematic. Nonetheless, it is important to understand this distinction in the context of Article 2 of the ICESCR. Since ESCRs as “positive” rights require greater state resources for their fulfillment, the drafters of the Covenant inserted into Article 2 the language of progressive realization to take into account differences in state development and capacity.

The core rights protected by the ICESCR are located in Articles 6-15. They include: the right to work (art. 6), the right to just and favorable working conditions (art. 7), the right to form and join trade unions (art. 8), the right to social security (art. 9), the right to family protection (art. 10), the right to an adequate standard of living, which includes adequate food, clothing, and housing (art. 11), the right to health (art. 12), the right to education (art. 13), and the right to engage in, and benefit from, culture life (art. 15).

Each of these rights is phrased in broad terms. For instance, Article 10 protects not only the freedom to marry who one chooses but extends special protection to mothers “during a reasonable period before and after childbirth” and to children, who are to be “protected from economic and social exploitation.” Article 11 requires states to recognize that adequate food, clothing, and housing constitute part of the right to an adequate standard of living and calls upon states to take several measures, including improvements to food production, distribution and trade, in an effort to recognize “the fundamental right of everyone to be free from hunger.”

III. State Parties to the Convention and Concerns of Enforceability A. State Parties to the Convention

The ICESCR was adopted during a tense and divisive period in international relations. As discussed, political disagreements during the Cold War led the UN Commission on Human Rights to draft two separate human rights covenants rather than a single, comprehensive instrument. Though the Cold War has ended, concerns about the implementation and enforceability of the ICESCR still persist today. The United States, a prominent member of the Cold War “Western” bloc, signed the ICESCR in 1977, but has still not ratified or acceded to the Convention. Meanwhile, China, whose state policies aligned with the “Eastern” bloc, signed the ICCPR in 1998 but has not ratified or acceded to that treaty.

Still, both treaties have been widely adopted by UN member states. It is important to note that, before they were finalized, the UN General Assembly stressed that the rights set forth in the two Covenants should be regarded as interconnected and interdependent.6 For the most part, states have adoption this vision and have ratified both the ICCPR and ICESCR: the ICCPR has 168 state parties,7 while the ICESCR has 162.8 The map below illustrates how widely the ICESCR has been adopted.9 The countries marked dark blue are parties to the Covenant; those marked light blue have signed, but not ratified or acceded to the Covenant, and those marked orange have not signed the Covenant.

Enforcement Mechanisms of the ICESCR

The ICESCR originally contained a single enforcement mechanism, which is set forth in Articles 16 and 17 Article 16 requires state parties to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” in the Covenant. Article 17 elaborates on this reporting requirement, providing that states will file their reports in stages, in accordance with a programme established by the Economic and Social Council, and that these reports may include “factors and difficulties” affecting the fulfillment of the Covenant’s provisions.

Two observations are worth noting about Articles 16 and 17. First, unlike the ICCPR which establishes a Human Rights Committee to monitor state compliance, the ICESCR vests this authority in the Economic and Social Council. While the Human Rights Committee is an expert body specifically charged with enforcing the ICCPR, the Economic and Social Council is a political organ of the UN and does contain such expertise. After the ICESCR came into force in 1976, it soon became clear that the Economic and Social Council did not have the capacity to effectively monitor state compliance with the Covenant. It, therefore, created the Committee on Economic, Social and Cultural Rights in 1985 to assist with the reporting process. The Committee is comprised of eighteen experts who officially meet for a single three-week session every year in Geneva. Under the current reporting procedure, states must submit reports every five years according to detailed guidelines set forth by the Committee.

Second, the ICESCR’s monitoring is limited to the self-reporting of state parties. There is no mechanism in the Covenant to receive or act upon complaints. This again deviates from the ICCPR; the Human Rights Committee may examine complaints filed against a state party either by other states or by individuals whose rights are violated by that state. On 10 December 2008, the UN General Assembly adopted the Optional Protocol to the ICESCR, which would allow the Committee on Economic, Social and Cultural Rights to hear individual complaints. The Protocol came into force on 5 May 2013 and today includes 45 signatories and 15 state parties. Thus, while the Committee now has greater enforcement power, it does not (yet) have the authority to receive individual complaints against a vast majority of states.

Summary

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is one of the core international human rights treaties and is part of the “International Bill of Rights.” Following the Universal Declaration of Human Rights (UDHR) in 1948, the UN Human Rights Commission originally planned to draft a single, comprehensive covenant to give legal authority to the rights within the UDHR. However, due to political disagreements between the “Western” and “Eastern” blocs during the Cold War, the Commission eventually drafted two separate treaties: the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR.

The ICESCR is divided into a Preamble and 31 articles. Article 1 declares a right of “all peoples” to self-determination, which raises some confusion because it is framed as a group right. It also does not specify what constitutes a “people.” This provision is generally understood to prohibit colonial occupation, but not to authorize subgroups within nation-states to declare their independence. India signed and ratified the ICESCR with a reservation that confirmed this narrow meaning of Article 1. Article 2 establishes the obligations of state parties to the Covenant. It requires states to “undertake to take steps” towards “achieving progressively the full realization” of the rights set forth in the Covenant. This broad, aspirational language accounts for differences in resources and capacity among state parties and responds to concerns from the “Western” bloc on the difficulty of implementing and enforcing economic, social and cultural rights (ESCRs). Articles 6-15 set forth the core rights of the Covenant, which includes the right to work, the right to health, the right to an adequate standard of living, and the right to culture, among others.

Concerns about the implementation and enforcement of ESCRs persist today. The United States has still not ratified the ICESCR, despite becoming a signatory in 1977. Still, most states in the international community have signed and ratified the Covenant. It has 162 state parties today. Articles 16 and 17 of the ICESCR require each state party to periodically report to the UN Economic and Social Council on their progress towards fulfilling the rights in the Covenant. Since 1985, the Council has been assisted by the expert Committee on Economic, Social and Cultural Rights, which has implemented guidelines for states to follow in their reports. However, unlike the ICCPR, the ICESCR does not include a mechanism through which individuals and other states may report violations. It only allows for self-reporting by individual state parties. However, on 5 May 2013, the Optional Protocol to the ICESCR came into force. It authorized the Committee on Economic, Social and Cultural Rights to hear individual complaints with respect to violations of the ICESCR. It currently has 45 signatories and 15 state parties, meaning that individual complaints cannot be reported against the majority of states.

Reference

1. United Nations Treaty Collection: Optional Protocol to International Covenant on Economic, Social and Cultural Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en.
2. Charter of the United Nation, art. 2.
3. United Nations Treaty Collection: International Covenant on Economic, Social and Cultural Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en – EndDec.