Drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Can an Ideal Become Reality?
Copyright (c) 1996 The Regents of the University of California
U.C. Davis Journal of International Law & Policy
Winter, 1996
2 U.C. Davis J. Int'l L. & Pol'y 111
LENGTH: 11431 words
NAME: Kitty Arambulo *
BIO:* Ms. Arambulo is a (second year) Ph.D. candidate in the field of international human rights, at the Netherlands
Institute of Human Rights (SIM) of Utrecht University. Professor Fried van Hoof rendered invaluable guidance during the writing of this article.
SUMMARY:
... The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the main international treaty setting forth economic, social, and cultural rights. ... The ICESCR's sole supervisory mechanism consists of a reporting procedure in which the Committee on Economic, Social and Cultural Rights (CESCR), the supervisory organ, monitors the compliance of the states parties with their obligations under the Covenant. ... THE IMPLEMENTATION SYSTEM OF THE ICESCR: THE REPORTING PROCEDURE ... This Article argues that the adoption of an Optional Protocol to the ICESCR would provide for more effective supervision of the Covenant's implementation in the member states.
Such an Optional Protocol would contain a complaints procedure open to individuals and groups claiming violations of their economic, social, or cultural right. ... A member state would be able to enhance the understanding of the normative contents of these rights by examining the question of justiciability in specific cases. ... Thus it was to be considered as "the intrinsic value of each human right." ... Following the same line of reasoning, the van Hoof draft noted that certain elements of economic, social and cultural rights are justiciable, an opinion which accords with that of the CESCR. ...
TEXT:
INTRODUCTION
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the main international treaty setting forth economic, social, and cultural rights. n1 Its sibling, the International Covenant on Civil and Political Rights (ICCPR), protects civil and political rights and freedoms. n2 Both the ICESCR and the ICCPR provide for the right of self--determination and prohibit discrimination. Examples of specific economic, social and cultural rights protected by the ICESCR include rights to housing, food, education, and health. n3 Article 2(1) of the ICESCR is specially formulated to enable the states parties to progressively achieve these rights over time. n4 Effective implementation of the ICESCR, however, has been thwarted by its failure to provide for an adequate means of supervision. The ICESCR's sole supervisory mechanism consists of a reporting procedure in which the Committee on Economic, Social and Cultural Rights (CESCR), the supervisory organ, monitors the compliance of the states parties with their obligations under the Covenant. The adoption of an Optional Protocol to the ICESCR containing a complaints procedure for individuals, groups and organizations, was the main topic of discussion during an Experts' Meeting held in Utrecht, the Netherlands, from January 26 to 28, 1995, and organized by the Netherlands Institute of Human Rights (SIM). Human rights experts from around the world convened to examine the feasibility of adopting such an Optional Protocol. This Article examines the supervisory mechanism of the ICESCR and methods for its improvement. The results of the recent Utrecht Experts Meeting are used as the basis for the proposed changes. Part I of the Article gives a brief overview of the history of the United Nations human rights system and the reasons the United Nations created two separate human rights covenants. n5 Part II details the present ICESCR reporting system and analyzes its current problems. Part III discusses the Optional Protocol and the complaints procedure and its implications. Finally, this Article draws conclusions regarding improvement of the implementation of the ICESCR through adopting a complaints procedure.
I. THE EVOLUTION OF THE INTERNATIONAL BILL OF HUMAN RIGHTS
A. The Universal Declaration of Human Rights
After the Second World War, the international community realized the necessity for standards to protect and promote human rights because of the atrocities associated with both World Wars. In 1948, the United Nations General Assembly adopted the Universal Declaration, marking the international human rights community's first major achievement. n6 The Universal Declaration became the foundation of the United Nations' human rights programme.
As a declaration of international standards, the United Nations did not intend for the Universal Declaration to be legally binding. During its drafting, Mrs. Eleanor Roosevelt, the United States representative to the General Assembly and Chairperson of the United Nations Commission on Human Rights, declared that the Universal Declaration was only to be a common standard of achievement for all peoples and nations. This statement was later incorporated into the preamble of the Universal Declaration. Roosevelt further stated the command of the General Assembly "would be of importance comparable to the 1789 proclamation of the Declaration of the Rights of Man, the proclamation of the rights of man in the Declaration of Independence of the United States of America, and similar declarations made in other countries." n7
The Universal Declaration guarantees civil and political rights, as well as economic, social and cultural rights. It does not distinguish between the two sets of rights, and instead emphasizes universal respect for and observance of all human rights and fundamental freedoms. n8 By becoming part of customary international law, the Universal Declaration has acquired a legally binding force, and provides basic obligations to which all signatory nations must adhere. n9 Moreover, it has served as a blueprint for the constitution of a number of newly independent states, and has been reaffirmed in a number of international and regional human rights treaties. n10
B. Human Rights Treaties: ICCPR and ICESCR
The rights and freedoms first set forth in the Universal Declaration were expressed more specifically in two separate international covenants adopted in 1966: the ICCPR and the ICESCR. The preamble of both covenants emphasizes the indivisibility and interdependence of the two categories of rights and thereby implicitly refers to the Universal Declaration. n11 Together, the Universal Declaration and the two covenants constitute the International Bill of Human Rights.
The member states of the United Nations (member states) have disagreed about the form and structure of the covenants since the commencement of the drafting process. The principles of indivisibility and interdependence described in the Universal Declaration are reaffirmed over and over again by the United Nations. However, the form and structure of the covenants have continuously been a source of disagreement among the member states. The member states were unable to conclude whether one or two covenants were necessary. The General Assembly initially adopted a resolution to draft one covenant, n12 but later decided to draft two separate covenants: one concerning civil and political rights and the other dealing with economic, social and cultural rights. n13
Two main reasons have been advanced for the creation of two separate covenants. First, member states were unable to agree on the nature of the two sets of human rights. Second, the clash between two main political ideologies, represented by the former Soviet bloc on the one hand and the United States and its allies on the other, prevented the creation of one major human rights covenant. These differences among the member states resulted in the creation of two human rights covenants.
C. Different Concepts of the Nature and Formulation of Human Rights
All member states agree that both sets of rights -- civil and political on the one hand, and economic, social and cultural on the other -- were interconnected and interdependent. The committee which met on the implementation of the International Covenant on Human Rights stated that "when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man." n14 However, profound discrepancies existed among the proposals to guarantee the promotion and protection of these two distinct sets of rights. These discrepancies were most clearly expressed during the discussion regarding the implementation of the covenants. The divergence of opinion was concentrated on the implementation of the rights contained in both covenants, rather than their intent and purpose which the member states agreed upon.
The ideal in the eyes of the General Assembly was to draft a single covenant in an effort to emphasize the indivisibility and interdependence of the two sets of rights. n15 This one covenant would protect all of these rights through a single implementation and supervisory mechanism. n16 However, those who favored drafting two separate covenants countered that civil and political rights essentially require abstention of state action. n17 Moreover, they argued that civil and political rights are legally enforceable and justiciable. Therefore, such rights could be clearly defined and implemented immediately. n18
Additionally, the proponents of drafting two separate covenants argued that economic,--social and cultural rights constitute a separate category of non--justiciable rights. n19 The emphasis of the discussion on this set of rights had been on the progressive implementation and creation of conditions in which those rights could be exercised. The state, therefore, was considered to have a certain discretionary competence to set priorities in the realization of economic, social and cultural rights, according to available resources and political policy agendas. n20 An important factor in the debate about whether to draft one or two covenants was the vagueness of the formulation of economic, social and cultural rights, and the opaque normative contents of those rights. There are several reasons for this lack of clarity. First, unlike the civil and political rights contained in the ICCPR, the content of the ICESCR is not based on existing national jurisprudence. Despite the fact that some of the provisions in the ICESCR seem no less susceptible to interpretation than those in the ICCPR, n21 the ICCPR provisions have been subject to more judicial interpretation, which in turn has resulted in greater understanding of their norms. Most of the ICESCR's provisions have never been thoroughly examined nor interpreted in any court of law. Indeed, many of the rights contained in the ICESCR, with the exception of labour--related rights, n22 were formulated in advance of most domestic legislation. n23 Second, the international community has failed to develop a jurisprudence on many of the rights since the ICESCR's adoption in 1966. n24 Third, some United Nations studies have found evidence that although economic, social and cultural conditions can be confirmed by statistical data, they fail to identify the substantive legal character necessary to turn such conditions into rights. n25
Even after the adoption of the covenants, the two major doctrinal camps continued to oppose each other on the nature of civil and political rights on the one hand, and economic, social and cultural rights on the other. Those opposing equal treatment of both sets of rights noted the distinct differences inherent in both the nature and scope of the two sets of rights.
They argued that it is impossible to consider the latter set as constituting rights. Several authors, among them Egbert Vierdag and Marc Bossuyt, have propounded their opinions on the legal nature of the two sets of rights. They either deny a legally binding character to economic, social and cultural rights, or assert differences between the two sets of rights that would then imply the legal superiority of civil and political rights to economic, social and cultural rights.
1. Opponents of the Equality of All Human Rights
Vierdag asserts that economic, social and cultural rights are not recognized by law. He argues that the word "right" should be reserved "for those rights that are capable of being enforced by their bearers in courts of law, or in a comparable manner." n26 He observed:
"Social rights are not directed at government action that can be described in terms of law. The creation of social and economic conditions under which social rights can be enjoyed is not yet describable in terms of law. In order to be a legal right, a right must be legally definable; only then can it be legally enforced, only then can it be said to be justiciable." n27
In Vierdag's view, then, economic, social and cultural rights articulated by the United Nations are merely programmatic guidelines for a government's national policies. Bossuyt claims that fundamental differences between civil and political rights and economic, social and cultural rights cannot be easily disregarded and merged into a single concept of human rights. n28 According to Bossuyt, the distinction between the two sets of rights lies in the specific nature of the rights. Civil and political rights are fundamental rights because they are inherent to human dignity. Economic, social and cultural rights are relative notions that states consider when making policy decisions. n29 They are highly discretionary and depend on the political and economic conditions. n30
2. Proponents of the Equality of All Human Rights
Critics of Vierdag and Bossuyt follow the approach taken in the Universal Declaration, which focuses on the indivisibility and interdependence of civil, political, economic, social and cultural rights. n31 They acknowledge that these rights cannot be completely implemented in a short period of time, but nevertheless believe that progressive realization, as embodied in Article 2(1) of the ICESCR, does not relieve the member states from the obligation to move as expeditiously and effectively as possible towards full realization of the rights recognized in the ICESCR. The CESCR has devoted attention to the issue of states' obligations in its Third General Comment. n32 Article 2 of both the ICESCR and the ICCPR obligates states parties to "undertake steps" to effectuate each Covenant's goals. The ICCPR mandates that member states give effect to the rights recognized therein. n33 In contrast, the ICESCR dictates that its rights be implemented with a view to achieving progressively their full realization. n34 This fundamental distinction in each Covenant's mandate reflects the differences in the nature of the two sets of rights.
To reconcile the differences between the political, economic and social systems of the states parties, Philip Alston developed the core content concept. n35 This concept identifies the normative content of the rights set forth in the ICESCR. This normative content is valid, irrespective of the differences in existing state systems, and must be adhered to as an absolute minimum. According to Alston, "each right must . . . give rise to an absolute minimum entitlement, in the absence of which a State Party is to be considered to be in violation of its obligations." n36
Another commentator, Asbjorn Eide, believes that "governments should establish a nation--wide system of identifying local needs and opportunities for the enjoyment of economic and social rights," particularly for the most deprived and vulnerable groups in the country. n37 By creating national minimum standards, governments can achieve progress in socioeconomic issues in accordance with the nature of their own national situation, economic and social conditions, and national habits and culture. n38 The CESCR, which Alston chaired, n39 echoes this core content concept. In its Third General Comment, the CESCR specified the existence of a "minimum core obligation" for states parties "to ensure the satisfaction of . . . minimum essential levels of each of the rights. . . ." n40
Fried Van Hoof has stated that it is realistic to assume that "justiciability is recognized with respect to 'at least some elements of the human rights in the [ICESCR].'" n41 These justiciable elements can be found in virtually all of the rights set forth in the ICESCR and constitute the basis upon which certain economic, social and cultural rights can be legally enforceable. n42
D. The Clash of Political Ideologies
The universalization of human rights inevitably became a political matter when it appeared as a major issue on the international community agenda. The clashing political ideologies of the various member states also contributed to the divergence of opinions concerning the two categories of rights. n43 The end of the Second World War marked the commencement of the Cold War between the United States and its allies, and the Soviet Union and socialist states. These two rival alliances stood at opposite ends of the political and ideological spectrums on drafting a common definition of human rights. Further, decolonization in the 1960s brought the newly independent Third World countries to the international scene. This added a third major voice to the discussion on human rights. Among these three groups, profound ideological differences existed on which rights were to be considered human rights. n44 Champions of the Western approach favoured guarantees for political and civil rights and freedoms of the individual.
The reason was that the state potentially represented the greatest violator of human rights, and therefore its actions must be regulated and controlled. n45 Proponents opined that civil and political liberties should prevail over all other human rights. The United States opposed the concept of economic, social and cultural rights as human rights, but this point of view was never explicitly expressed in the international arena. n46
At the other end of the political spectrum, socialist states advocated the indivisibility of economic, social and cultural rights as human rights. They argued that the state is the primary provider of community need. n47 As such, the state should protect and promote human rights in its territory.
Third World countries, mainly composed of newly independent states, were characterized by substandard economic and social conditions, as well as unstable political systems. Underdevelopment, combined with foreign and neo--colonialist exploitation, poverty, poor health conditions and illiteracy, were common features of this group. Thus, it was not surprising that these nations supported the concept of a far--reaching role for the state and the belief that the state should be permitted to act without impediment in order to achieve economic and social progress. n48 They advocated maximum goals which all states should endeavor to attain..
In view of these diverging concepts of human rights, it was an impossible task to try to compose a single international document for the protection and promotion of human rights. Also, states feared the infringement of their national sovereignty. As early as the 1920s, in the era of the League of Nations, the general perception was that formal participation in an international organization meant delegating some state's rights to the organization, thus limiting state sovereignty.
This rigid approach is commonly known as the self--limitation theory. World unity as represented by the United Nations represents a compromise of conflicting political and social systems. n49 Because the Commission on Human Rights is comprised of government representatives who individually represent their respective governments, the task of developing a uniform standard of human rights is difficult. Even though they pursue common international interests, these representatives cannot act independently of their government.
Consequently, the Commission often became a forum of political conflict. Western states traditionally favoured a flexible international law regime that did not enforce stringent standards limiting state power. Even the Soviet Union, which opposed the prevalence of civil liberties inherent to the Western approach, realized that support for economic and social rights could jeopardize important maxims of national sovereignty. n50 Thus, most states were reluctant to subject their national approach to human rights to the scrutiny of an international body. n51
In conclusion, the United Nations initially and idealistically sought to create an international instrument that would guarantee all human rights for all people in all nations. However, the member states could not find a solution to the differences of opinion on the nature of human rights, thus preventing the equal treatment of civil, political, economic, social and cultural rights. Furthermore, the member states were not able to rise above the harsh reality of the post--Second World War international political environment. The East--West polarization turned out to be such an divisive factor in the international arena that it overshadowed the common goal of securing the recognition and observance of all human rights.
The fear of infringing state sovereignty also impeded fulfillment of the pledge in the Universal Declaration.
In the end, the endeavors of the United Nations resulted in the creation of two separate covenants, with distinct implementation systems. The ICCPR was endowed with a reporting procedure, and an inter--state as well as individual complaints procedure. The ICESCR was merely furnished with the reporting procedure as a supervisory instrument.
II. THE IMPLEMENTATION SYSTEM OF THE ICESCR: THE REPORTING PROCEDURE
The ICESCR provides for only one means of supervision: the states parties reporting procedure. The reporting procedure directs the states parties to submit reports to the Secretary--General of the United Nations. The Secretary - General then transmits copies to the Economic and Social Council (Council) for its consideration. These reports detail the measures the states have adopted in their national legislation, administrative procedures and practice, and the progress
made in achieving the observance of the rights recognized in the Covenant. n52
The reports are submitted in accordance with a program established by the Council after consultation with the states
parties and the specialized agencies concerned. n53 They may contain factors and issues affecting the degree of the
state's fulfillment of obligations. n54 If relevant information has already been furnished to the United Nations or to any
specialized agency by any state party, it may be sufficient to merely refer to that information. n55 The Council may accept
reports from specialized agencies which, within the scope of their activities, observed the progress made in fulfilling the
Covenant's provisions. n56 The Council may also turn to the Commission on Human Rights for consideration and general
recommendations on the reports submitted by states parties and the specialized agencies, or for information concerning human rights. n57
The Council may submit general recommendations and a summary of the received information to the General Assembly. n58 Additionally, the Council may bring to the attention of other United Nations organs, their subsidiary organs and specialized agencies concerned with furnishing technical assistance, matters arising out of the reports that might contribute to the decision regarding international measures to ensure the progressive implementation of the Covenant. n59
A. The Problems Confronting Effective Implementation
Since its introduction, the reporting procedure has not functioned adequately to enable the Council to monitor the states' compliance with their obligations under the Covenant. The Council is formally empowered to consider and examine the state reports. However, because of the Council's heavy workload, it has created subsidiary bodies to assist in supervising the states' obligations under the Covenant.
For example, the Council established the Sessional Working Group of Governmental Experts (Group). n60 The Group was ineffective, however, due mainly to its political character, its limited meeting, and the lack of expertise among its members. n61 A revision of this supervisory body was conducted during a 1981 review of the Group. n62 In 1985, the United Nations established the CESCR to function as the supervisory body of the Covenant. n63
The bodies that supervise the ICESCR have encountered both general problems and problems related specifically to the reporting procedures. The general problems stem mainly from the poor financial condition of the United Nations system. n64 The machinery for the CESCR is completely funded from the regular budget of the United Nations, n65 which also funds, among other programmes, the Human Rights Committee, the Committee on the Elimination of Discrimination Against Women, and the Group of Three established under the Convention on the Suppression and Punishment of the Crime of Apartheid. n66 In sum, its resources are limited.
The financial difficulties of the United Nations and the failure of some member states to pay their contributions, coupled with the expanding needs of the treaty bodies to enable them to deal with a growing workload have led to financial problems that have seriously affected the functioning of the CESCR. n67 Common problems to supervisory bodies which lack adequate funding are the shortage of the necessary staff and facilities, and limited opportunities to convene in regular meetings.
The current reporting procedure is also faced with a number of other problems, such as inadequate reporting procedures, the unsatisfactory character of many reports, and the delay of member states in submitting reports. n68 The original reporting procedure consisted of a three--phase cycle in which reports had to be submitted on three separate parts of the Covenant. n69 The initial report by a state party was required three years after entry into force of the Covenant for that specific state. The second and third reports had to be submitted consecutively in three--year intervals. Thus, the initial reporting cycle encompassed a period of nine years. The subsequent cycles only took six years to complete, and entailed reporting obligations for states every two years. The CESCR realized that this submission method unduly burdened states parties and resulted in a separation of the rights recognized in the Covenant. n70
This original structure underwent a drastic change from its initial reporting on parts of the Covenant to reporting on the entire Covenant. Under the original reporting procedure, the CESCR required an inordinate amount of time to evaluate the entire situation in a certain state.. Later, the United Nations replaced the original reporting procedure with one which required reporting on all of the rights in one single report. The new procedure requires states to submit an initial report on the entire Covenant within two years of the Covenant's entry into force for the state concerned. States then must submit one comprehensive report every five years. n71
The problems of the unsatisfactory character of the state reports and the excessive submission delays were caused by several circumstances enumerated by the Human Rights Committee as follows: (1) a cumulative burden on the states parties of having to submit reports to several international human rights treaty bodies; (2) an insufficient awareness that reporting is an obligation which states parties are required to fulfill according to the provisions of the Covenant; (3) a shortage of qualified government staff to prepare the reports in an adequate manner; (4) a lack of efficient administrative structure and co--ordination between different administrative bodies dealing with the relevant issues; and (5) a lack of political will. n72
While mindful of the problems discussed above, the CESCR had been executing its mandate in a creative and expansive manner. As a result of its relatively flexible mandate, the CESCR undertook a number of procedural innovations, enabling it to overcome several obstacles related to to the reporting procedure. First, in the footsteps of the Human Rights Committee for the ICCPR, the Committee assumed the practice of adopting general comments, which elucidated substantive rights contained in the ICESCR, thereby clarifying the provisions concerned. n73
Second, the CESCR began to accept additional information on a country's situation from alternative sources such as non--governmental organizations, in order to provide the Committee with a more complete and accurate picture of any given country's human rights environment. n74 Third, the CESCR has gone so far as to use this additional information, as well as previous reports, to consider the status of economic, social and cultural rights in states which have failed to submit
periodic reports. n75 The CESCR first used this technique during its eighth session with respect to the case of Kenya. n76
Finally, the concluding comments, which are formulated after consideration of the states' reports, often include recommendations and suggestions directed to the particular state party and go beyond what was envisaged in the CESCR mandate. n77 Since their implementation, these procedural innovations have essentially changed the previous non--confrontational character of reporting into an adversarial, quasi--judicial one. n78 This acquired quasi--judicial competence of the CESCR may help the reporting procedure to function more effectively, but the question remains whether the procedure was intended to function in this manner, and whether these practices can be considered to fall within the mandate of the CESCR.
While the reporting procedure has shortcomings, it is nevertheless a valuable instrument with which the CESCR can acquire a general knowledge of the situation in a certain country in a relatively short period of time. It also imposes on states parties the obligation to focus on factors and difficulties that affect the degree of fulfillment of economic, social and cultural rights for its population, and to take measures to achieve the observance of the rights contained in the ICESCR. n79 In an effort to respond to the issues faced by the current reporting procedure, a recent Experts Meeting in Utrecht drafted an Optional Protocol to the complaints procedure.
III. THE SIM EXPERTS MEETING: DRAFTING A COMPLAINTS PROCEDURE FOR INDIVIDUALS, GROUPS
AND ORGANIZATIONS
This Article argues that the adoption of an Optional Protocol to the ICESCR would provide for more effective supervision of the Covenant's implementation in the member states. Such an Optional Protocol would contain a complaints procedure open to individuals and groups claiming violations of their economic, social, or cultural right.
Important benefits of such a procedure were recently set forth in a paper submitted by the CESCR to the World Conference on Human Rights in Vienna in June 1993. According to the CESCR, the adoption of such a procedure would greatly enhance the understanding of economic, social and cultural rights in general for the following reasons: (1) a more detailed complaints procedure would be able to bring relief in concrete cases; (2) the focus on a particular case would provide a framework for inquiry which is otherwise absent in a report on the general situation; (3) the mere possibility that complaints might be brought in an international forum would encourage governments to ensure more effective local remedies with respect to economic and social rights; (4) the possibility of an adverse finding by an international committee would give economic and social rights political salience; (5) the existence of a potential remedy at the international level would provide an incentive to individuals and groups to formulate some of their economic and social claims more precisely; and (6) a complaints procedure would produce a tangible result, which is far more likely to generate interest in and understanding of the Covenant as a whole and of specific issues. n80
A. Drafting an Optional Protocol
The Vienna Declaration, adopted by the United Nations during the World Conference on Human Rights, encouraged the Commission on Human Rights, in cooperation with the CESCR, to continue to examine optional protocols to the ICESCR. n81 During the SIM Experts Meeting, creation of such a procedure was generally considered to be beneficial in view of the United Nations' maxim regarding the interdependence and indivisibility of all human rights. Although the United Nations system has always formally upheld the principles of interrelatedness, interdependence and indivisibility of all human rights, the actual level of protection of economic, social and cultural rights lags far behind that of civil and political rights.
There are possibilities and opportunities at the international and regional level to complain about violations of civil and political rights and freedoms. However, it is not currently possible to submit a complaint for violations of one's right to food, housing, education or healthcare. In light of the increased focus on the former set of rights since the late 1960s, it would only seem logical to alleviate the de facto discrepancy between the implementation of the two groups of human rights. n82
The purpose of the SIM Experts Meeting was to draft an Optional Protocol that would be acceptable from a political as well as human rights standpoint. To that end, the SIM Experts relied on two draft Optional Protocols as a basic text.
Philip Alston drafted an Optional Protocol to the Covenant (Alston draft) which served as a starting point. Fried van Hoof produced another draft Optional Protocol (van Hoof draft), from which solutions to the problems encountered in the Alston draft could be drawn. The final Optional Protocol proposed by the SIM Experts (Utrecht draft) is the result of discussions surrounding the Alston and van Hoof drafts.
The SIM Experts Meeting discussed substantive rights as well as procedural matters. The possibility of filing complaints for violations of economic, social and cultural rights was extensively discussed within the framework of four substantive rights contained in the ICESCR: (1) the right to education; (2) the right to housing; (3) the right to food; and (4) the right to healthcare. The SIM Experts selected these core rights because they can be considered as rights to subsistence. n83 The SIM Experts considered the justiciability of these economic, social, and cultural rights, the concept of the minimum core contents of these rights, and the different types of obligations these rights imposed on the states parties.
B. Justiciability and the Minimum Core Contents of Economic, Social and Cultural Rights
Not surprisingly, an important issue which arose during the Experts Meeting was the justiciability of economic, social and cultural rights, and the suitability of monitoring these rights by means of a complaints procedure. Many participants accepted the notion that justiciability is a fluid concept, which is determined by the specific circumstances of a case and the supervisory organ dealing with it. n84 The evolution of the justiciability of economic, social and cultural rights, according to these participants, would be well--served by a complaints procedure. A member state would be able to enhance the understanding of the normative contents of these rights by examining the question of justiciability in specific cases.
In connection with justiciability, the benefits of the concept of minimum core contents were clearly illustrated in the discourse on the right to education. n85 The term "minimum core content" was defined as "that essential element without which a right loses its substantive significance as a human right." Thus it was to be considered as "the intrinsic value of each human right." n86 Although the minimum core content would not always coincide with justiciability, it could be used as an instrument to establish those elements that could form the threshold of violations of economic and social rights.
Using the right to education as an example of an economic, social and cultural right, several elements of this right that merely entailed freedoms of the individual, and therefore negative obligations for the state, were considered to be justiciable. n87 An important instrument in this context was the type of obligations developed by Asbjorn Eide, initially in relation to the right to food. n88 The typology consists of different levels of obligations to be met by the states parties.
The first level, the obligation to respect, requires the state to refrain from interfering with or restricting the rights and freedoms of individuals under its jurisdiction. The second level, the obligation to protect, requires the state to undertake steps to prevent violations of an individual's rights and freedoms by a third party. The third level, the obligation to fulfill, directs the state to act to realize the rights and freedoms of individuals. This last type of obligation may be seen as a programme obligation and would require long--term policies. n89
By categorizing an element of a right as an obligation, it would be possible to distinguish whether an individual has the right to complain about the non--fulfillment or violation itself by the state as an element of a right. For instance, a state's obligation to respect, which usually requires non--interference, could have immediate effect, and its non--fulfillment, therefore, could be subjected to a complaints procedure. Following the same line of reasoning, the van Hoof draft noted that certain elements of economic, social and cultural rights are justiciable, an opinion which accords with that of the CESCR. The fact that "at least some elements of the social rights recognized in the ICESCR are justiciable," renders them "susceptible to further elaboration and determination within the framework of remedies of a (quasi) judicial character on the international level." n90
Similarly, the CESCR has stated that "the most compelling response to the argument that economic rights are not justiciable is that this [complaints] procedure would only apply to those [rights] that are deemed to be justiciable, at least in part." n91 Thus, the argument opposing acceptance of a complaints procedure that advocated a non--justiciable position for economic, social and cultural rights was considered to be untenable. With the aid of the concept of minimum core contents and the typology of obligations, a step was taken towards establishing justiciability of the rights contained in the ICESCR.
C. Procedural Matters
The Experts also discussed a number of procedural matters which might arise, such as the role of the supervisory body, who should have standing to file the complaint, and the included rights. Most agreed that the CESCR should continue to act as the supervisory body under the Optional Protocol. The CESCR had so far performed its present duties in an exemplary manner. Moreover, the creation of yet another international supervisory body in the field of human rights was not a desirable objective, given the complexities and obstacles faced by the United Nations human rights system. The Optional Protocol could provide the basis for this new function of the CESCR that is obviously not included in its present mandate. n92
1. Standing Requirements
The discussion on the standing requirements centered on who should be allowed to submit a complaint. Possibilities included: (1) only individuals, groups and organizations who themselves are alleged victims of a violation; or (2) individuals, groups and organizations who act on behalf of others claiming to be victims. Since liberal standing requirements might hinder political acceptance of an Optional Protocol, it was deemed sufficient to use the term "victim," leaving it up to the supervisory body to define its scope. Bearing in mind that the main purpose of a complaints procedure is to allow a supervisory body to clarify and elaborate on the provisions of the ICESCR, the SIM Experts believed that procedural requirements should be formulated broadly "to enable [the CESCR] to be flexible and make creative use of its competence." n93
2. Included Rights
The SIM Experts decided to include all rights in the complaints procedure in conformity with the Alston and van Hoof drafts. The supervisory body was given the authority to establish the justiciability of a certain right without being restrained by the Optional Protocol. The issue of self--determination, embodied in Article 1 of the ICESCR, provoked discussion whether this authority fell within the scope of the complaints procedure. The participants were faced with the difficult dilemma of having to choose between the unity of the Covenant and the political acceptability of the Optional Protocol. n94 Ultimately, the Experts decided that the CESCR should have the discretion to interpret the term "self--determination," despite the difficulty of this task. Allowing the Committee such discretion meant that the anticipated political difficulties that could result from the inclusion of all substantive rights in the Optional Protocol were superseded by the desire to keep intact the unity of the Covenant's provisions.
3. Language
The Experts also extensively debated the type of language that was to be employed in the Optional Protocol. Recourse to "hard" language refers to "violations" and therefore entails a judicial--type of procedure. In contrast, "soft" language means using terms such as "failure to give effect to obligations," which may result in a less contentious and confrontational procedure.
Although the majority of the participants favoured the hard language, a settlement was reached: hard language was used in the preamble and in the initial articles setting forth the right of complaint, n95 but softer terminology was preferred for the later provisions dealing with the admissibility and examination of communications. n96 After all, there was a significant risk of encountering political resistance to the use of hard language. Moreover, this compromise was designed to enable the supervisory body to take a flexible approach in practice.
Participants discussed two options with regard to the nature of the complaints procedure. Some participants favoured a quasi--judicial form of procedure, while others were inclined to give the procedure the character of a constructive dialogue. The participants ultimately modeled the draft Optional Protocol after the complaints procedure of the Optional Protocol to the ICCPR, which is similar to the procedures proposed in the CESCR n97 and van Hoof drafts. n98 The quasi--judicial character is inherent to a complaints procedure. The drafters adopted an approach in which the CESCR and the state party concerned could engage in a constructive dialogue within this quasi--judicial framework. Under this approach, the CESCR gives its views, suggestions and recommendations on the violations as well as adequate reparation.
n99 In turn, the state must give due regard to any of these suggestions and recommendations. After a period of three months, the concerned state must notify the CESCR on the measures taken. n100 The constructive dialogue character is particularly noticeable in Article IX, paragraph 1 of the Utrecht draft, according to which the CESCR may invite the state party concerned to discuss with it the measures the state party has taken. n101
4. Results of the Experts' Meeting
The final outcome of the SIM Experts Meeting was the adoption of a draft Optional Protocol acceptable to all participants. Given the obstacles that arose during the discussion, such as the justiciability of economic, social and cultural rights, the political feasibility of a complaints procedure, and problems concerning procedural matters, the Optional Protocol reflects the strong willingness of states parties to enhance the promotion and protection of human rights.
Specific reference to the issue of justiciability has in fact been avoided in the text of the draft Optional Protocol, in accordance with the principle of pragmatism brought forward during the Experts Meeting which calls for the exclusion of unresolved doctrinal issues. The discussion on this matter is still unresolved in the international political and academic arena, and will probably not be solved in the near future. It must also be noted that currently the main issue has moved from the legal character and validity of economic, social and cultural rights, to the problem of their application before quasi--judicial bodies. n102 In an effort to adequately deal with these issues in the future, the Experts agreed that the wording of the Optional Protocol should leave room for the interpretation of economic, social and cultural rights and the development of their normative implications by the CESCR.
The draft Optional Protocol adopted by the SIM Experts Meeting is not a perfect document. However, the adoption of such a document by a distinguished group of scholars and human rights experts demonstrates the strong need to improve the protection and promotion of human rights, especially economic, social and cultural rights.
CONCLUSION
Almost fifty years after the adoption of the Universal Declaration of Human Rights, which was to set "a common standard of achievement for all peoples and all nations," the international community has come a long way in addressing human rights issues. Today, the United Nations human rights programme encompasses a broad spectrum of violations to promote universal respect for and observance of human rights and fundamental freedoms. Since the late 1960s, increasing attention has been devoted to economic, social and cultural rights. Poverty, hunger, homelessness and wide--spread diseases have been acknowledged as problems that must be addressed by the global community as a whole. However, it is not enough to merely recognize the problems; procedures must be implemented to assure that the issues will be adequately resolved.
One important matter with which the United Nations human rights programme has not adequately dealt is the realization of economic, social and cultural rights to the same extent as civil and political rights. This is most clearly visible in the ICESCR's means of implementation. The main problems the member states faced while drafting the international human rights covenants were the conflicting concepts of human rights advocated by the different member states and the concomitant clashing of political ideologies. This disagreement has contributed to the creation of an international human rights instrument for economic, social and cultural rights that fails to provide for an implementation mechanism that is as extensive as that for civil and political rights. The Utrecht Draft Optional Protocol should be seen as an appeal to the international community to make a change.. The right to complain about economic, social and cultural rights should not be withheld from the people of the world, considering that they indeed do suffer from the violation of these rights.
It will undoubtedly be difficult to muster support from states for the acceptance of an Optional Protocol to the ICESCR, as governments are reluctant to render competence to an international organ to examine alleged violations of economic, social and cultural rights or non--compliance to the obligations under the ICESCR. However, it is of the utmost importance to give actual effect to the United Nations' principle of indivisibility and interdependence of human rights by acknowledging the status of economic, social and cultural rights as equal to that of civil and political rights. The adoption of a complaints procedure is a major step in that direction.
FOOTNOTES:
n1 G.A. Res. 2200A, U.N. GAOR 3d Comm., 21st Sess., Supp. No. 16, at 48, U.N. Doc. A/6316 (1966).
n2 Id. at 52.
n3 Id. at arts. 1, 1(2), 3, 6, 11--13.
n4 Id. at art. 2(1) (promoting "view to achieving progressively" Covenant's enumerated rights).
n5 The International Bill of Human Rights constitutes the basis for the entire United Nations Human Rights
programme. It consists of the Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810, at 71--79
(1948) [hereafter Universal Declaration], the International Covenant on Civil and Political Rights, supra note 1, at
52, and the International Covenant on Economic, Social and Cultural Rights, id. at 49.
n6 G.A. Res. 217A, supra note 5, at 71.
n7 A. H. ROBERTSON & J.G. MERRILLS, HUMAN RIGHTS IN THE WORLD: AN INTRODUCTION TO
THE STUDY OF THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS 26 (3d ed. 1992), quoted in
L.B. Sohn, A Short History of United Nations Documents on Human Rights, in THE UNITED NATIONS AND
HUMAN RIGHTS, EIGHTEENTH REPORT OF THE COMMISSION TO STUDY THE ORGANIZATION OF
PEACE 70 (1968).
Page 11
2 U.C. Davis J. Int'l L. & Pol'y 111
n8 G.A. Res. 217A, pmbl., supra note 5, at 71.
n9 See United Nations World Conference on Human Rights: Vienna Declaration and Programme of Action,
June 25, 1993, 32 I.L.M. 1661, 1663--64 (1993) [hereafter Vienna Declaration].
n10 ROBERTSON & MERRILS, supra note 7, at 27.
n11 The relevant text of the preamble of both covenants reads:
"In accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy economic, social and cultural rights as well, as well as his civil and political rights."
G.A. Res. 2200A, supra, note 1, at 49, 52.
n12 G.A. Res. 421(V), subsec. E, U.N. GAOR, 5th Sess., Supp. 20, at 43, U.N. Doc. A/1775 (1950).
n13 G.A. Res. 543 (VI), U.N. GAOR, 6th Sess., Supp. No. 20, at 36, U.N. Doc. A/2119 (1952).
n14 Id. at pmbl.
n15 Draft Report of the Working Group on Implementation, U.N. ESCOR Comm. on Hum. Rts., 2d Sess., U.N.
Doc. E/CN.4/53 (1947).
n16 Id.
n17 Draft International Covenant on Human Rights and Measures of Implementation, U.N. ESCOR Comm. on
Hum. Rts., 7th Sess., 248th Mtg., at 8, U.N. Doc. E/CN.4/SR.428 (1951).
n18 Id.
n19 Id. at 6--8.
n20 Marc Bossuyt, International Human Rights Systems: Strengths and Weaknesses, in HUMAN RIGHTS IN THE TWENTY--FIRST CENTURY: A GLOBAL CHALLENGE 47, 52 (K.E. Mahoney & P. Mahoney eds., 1993).
n21 Reference is made to the case law that has been produced by the Human Rights Committee in the framework of the individual complaints procedure of the ICCPR, and the General Comments made pursuant to Article 40(4) of the ICCPR regarding the interpretation of ICCPR provisions. See MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY, xxiv (1993).
n22 These have been extensively dealt with by the International Labour Organization since 1919. See Nicolas
Valticos, The International Labor Organization, in THE INTERNATIONAL DIMENSIONS OF HUMAN RIGHTS
363, 363--400 (K. Vasak & P. Alston eds., 2d ed. 1982); LAMMY BETTEN, INTERNATIONAL LABOUR LAW:
SELECTED ISSUES, xix, 467 (1993).
n23 Philip Alston, Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social
and Cultural Rights, 9 HUM. RTS. Q. 332, 351 (1987).
n24 Id.
n25 The Realization of Economic, Social, and Cultural Rights: Problems, Policies, Progress, U.N. ESCOR
Comm. on Hum. Rts., 31st Sess., U.N. Doc. E/CN.4/1108/Rev.1 (1975).
n26 Egbert W. Vierdag, The Legal Nature of the Rights Granted by the International Covenant on Economic,
Page 12
2 U.C. Davis J. Int'l L. & Pol'y 111
Social, and Cultural Rights, 9 NETH. Y.B. INT'L L. 69, 73 (1978). Vierdag did not confirm this opinion during the SIM Experts' Meeting, but he did take a cautious position on the (partial) justiciability of economic, social, and cultural rights. See Egbert Vierdag, Comments on the Draft Optional Protocols, in SIM SPECIAL NO. 18: THE RIGHT TO COMPLAIN ABOUT ECONOMIC, SOCIAL AND CULTURAL RIGHTS 199, 200 (Fons Coomans et al. eds., 1995) [hereafter THE RIGHT TO COMPLAIN ABOUT ECONOMIC, SOCIAL AND CULTURAL RIGHTS].
n27 Vierdag, supra note 26, at 73.
n28 Bossuyt, supra note 20.
n29 Marc Bossuyt, La Distinction Juridique Entre les Droits Civils et Politiques et les Droits Economiques,
Sociaux et Culturels, 8 REVUE DE DROIT DE L'HOMME 783, 790 (1975).
n30 Id.
n31 This camp includes scholars such as Philip Alston, Asbjorn Eide and Fried van Hoof.
n32 Report on the Fifth Session of the Committee on Economic, Social and Cultural Rights, U.N. ESCOR, 46th
Sess., Supp. No. 3, at 85, U.N. Doc. E/1991/23, E/C.12/1990/8 (1991) [hereafter Report on the Fifth Session]
n33 G.A. Res. 2200A, supra note 1, at 52.
n34 Id. at 49.
n35 Alston, supra note 23, at 353.
n36 Id.
n37 Asbjorn Eide, Realization of Social and Economic Rights and the Minimum Threshold Approach, 10 HUM.
RTS. L.J. 35, 46 (1989).
n38 Id. at 46--47.
n39 From the seventh session (April 1993) to the twelfth session (May 1995) of the Committee.
n40 Report on the Fifth Session, supra note 32, at 86.
n41 Fried van Hoof, Explanatory Note on the Utrecht Draft Optional Protocol, in THE RIGHT TO COMPLAIN,
supra note 26, at 147, 153.
n42 Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N.
GAOR 3d Comm., 48th Sess., Annex 2, Agenda Item 3, U.N. Doc. A/Conf. 157/PC/62/Add.5 (1993) [hereafter
Towards an Optional Protocol].
n43 H. Gros Espiell, The Evolving Concept of Human Rights: Western, Socialist and Third World Approaches, in HUMAN RIGHTS: THIRTY YEARS AFTER THE UNIVERSAL DECLARATION 41, 41 (B.G. Ramcharan ed., 1979).
n44 See W.J.M. VAN GENUGTEN, IN NAAM VAN DE VRIJHEID -- EEN ONDERZOEK NAAR
OVEREENKOMSTEN EN VERSCHILLEN TUSSEN DE MENSENRECHTENOPVATTINGEN VAN OOST EN
WEST [IN THE NAME OF FREEDOM -- A STUDY OF THE SIMILARITIES AND DIFFERENCES OF THE
HUMAN RIGHTS IDEAS OF EAST AND WEST] 36--37 (1988).
n45 Espiell, supra note 43, at 62.
n46 Philip Alston, The Committee on Economic, Cultural and Social Rights, in THE UNITED NATIONS AND
HUMAN RIGHTS: A CRITICAL APPROACH 473, 487 (Philip Alston ed., 1992).
n47 HOWARD TOLLEY JR., THE U.N. COMMISSION ON HUMAN RIGHTS 21 (1987)..
n48 Espiell, supra note 43, at 62.
n49 Imre Szabo, Historical Foundations of Human Rights and Subsequent Developments, in THE
INTERNATIONAL DIMENSIONS OF HUMAN RIGHTS, supra note 22, at 11, 26.
n50 Tolley, supra note 47, at 21.
n51 See Alston, supra note 23, at 336--37 (drafting implementation procedures proved to be most arduous task of forming Covenant).
n52 ICESCR, supra note 1, art. 16(1), at 51.
n53 Id. at art. 17(3).
n54 Id. at art. 17(2).
n55 Id. at art. 17(3).
n56 Id. at art. 18.
n57 Id. at art. 19.
n58 Id. at art. 21.
n59 Id. at art. 22.
n60 E.S.C. Dec. 1978/10, U.N. ESCOR, 1st Reg. Sess., Supp. No. 1, U.N. Doc. E/1978/78 (1978).
n61 Commentary, Implementation of the International Covenant on Economic, Social and Cultural Rights:
ECOSOC Working Group, 27 INT'L COMM'N JURIST REV. 26, 28--29 (1981).
n62 E.S.C. Res. 1978/19, U.N. ESCOR, 1st Reg. Sess., Supp. No. 2, at 27, U.N. Doc. E/1978/19 (1978).
n63 E.S.C. Res. 1985/17, U.N. ESCOR, 1st Reg. Sess, Agenda Item 3, at 1, U.N. Doc. E/1985/17 (1985).
n64 Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations
Under International Instruments on Human Rights, U.N. GAOR, 44th Sess., Agenda Item 109, at 26--27, U.N. Doc.
A/44/668 (1989) (containing Philip Alston study) [hereafter Implementation of International Instruments].
n65 Statistical and Cartographic Questions, U.N. ESCOR 1st Reg. Sess., Agenda Item 6, at 1, U.N. Doc.
E/1989/85 (1989).
n66 G.A. Res. 3068(XVIII), U.N. GAOR 3d Comm., 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/9030 (1973).
n67 Implementation of International Instruments, supra note 64, at 27.
n68 Id. at 20.
n69 The procedures were established by E.S.C. Res. 1988(LX) (1976).
n70 Philip Alston, The International covenant on Economic, Social, and Cultural Rights, in MANUAL ON
HUMAN RIGHTS REPORTING UNDER SIX MAJOR INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
39, 40 (1991).
n71 Id.
n72 U.N. GAOR Hum. Rts. Comm., 47th Sess., Supp. No. 40, § 39, at 201, U.N. Doc. A/47/40 (1992).
n73 Report on the Fifth Session, supra note 32, § 43.
n74 Id. § 280.
n75 See Report on the Sixth Session of the Committee on Economic, Social and Cultural Rights, U.N. ESCOR,
47th Sess., Supp. No. 3, at 98--99, U.N. Doc. E/1992/23, E/C.12/1991/4 (1992).
n76 Report on the Eighth and Ninth Session of the Committee on Economic, Social, Cultural Rights, U.N.
ESCOR, 49th Sess., Supp. No. 3, at 22--23, U.N. Doc. E/1994/23, E/C.12/1993/19 (1994).
n77 Report on the Seventh Session of the Committee on Economic, Social, and Cultural Rights, U.N. ESCOR,
48th Sess., Supp. No. 2, at 68, U.N. Doc. E/1993/22, E/C.12/1992/2 (1993).
n78 Matthew Craven, Towards an Unofficial Petition Procedure: A Review on the Role of the UN Committee
on Economic, Social and Cultural Rights, in SOCIAL RIGHTS AS HUMAN RIGHTS -- A EUROPEAN
CHALLENGE 91, 91 (Krzysztof Drzewicki et al. eds., 1994).
n79 See G.A. Res. 2200A, supra note 1, arts. 16(1), 17(2), at 51.
n80 Towards an Optional Protocol, supra note 42, at 25.
n81 Vienna Declaration, § II, P75, supra note 9, 32 I.L.M. at 1673.
n82 See, e.g., Declaration of Teheran, May 13, 1968, U.N. Doc. ST/HR/1Rev.4 (1968).
n83 Fons Coomans & Fried van Hoof, Preface to THE RIGHT TO COMPLAIN ABOUT ECONOMIC,
SOCIAL AND CULTURAL RIGHTS, supra note 26, at vii, vii--viii.
n84 Scott Leckie, The Justiciability of Housing Rights, in THE RIGHT TO COMPLAIN ABOUT ECONOMIC,
SOCIAL AND CULTURAL RIGHTS, supra note 26, at 35, 36--37.
n85 See Fons Coomans, Clarifying the Core Elements of the Right to Education, in THE RIGHT TOCOMPLAIN
ABOUT ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 26, at 11, 17--22 (identifying minimum
core contents and justiciable elements of right to education).
n86 Id. at 17.
n87 Certain aspects of the right to education, such as the freedom of the school choice, imply negative
obligations for the State, and do not require large financial commitments on its part. G.A. Res. 2200A, supra note
1, art. 13(3), at 51.
n88 See generally The New International Economic Order and the Promotion of Human Rights, Report on
the Right to Adequate Food as a Human Right, Commission on Human Rights, Subcommission on Prevention
of Discrimination and Protection of Minorities, 39th Sess. Provisional Agenda Item 11, at 14--15, U.N. Doc.
E/CN.4/Sub.2/1987/23 (1987) (enumerating types of obligations included to respect, protect and fulfill food
obligations).
n89 Coomans, supra note 85, at 22--34.
n90 van Hoof, supra note 26, at 172.
n91 Towards an Optional Protocol, supra note 42, § 76.
n92 E.S.C. Res. 1985/17, supra note 63, at 2--3.
n93 Fried van Hoof, Discussion on the Draft Optional Protocols, in THE RIGHT TO COMPLAIN ABOUT
ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 26, at 209, 212.
n94 Id., at 212--13.
n95 See Final Utrecht Draft Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, pmbl., art. II (1), adopted Jan. 28, 1995, in THE RIGHT TO COMPLAIN ABOUT ECONOMIC, SOCIAL
AND CULTURAL RIGHTS, supra note 26, at 233, 233--34 (providing examples of sections of Protocol using hard
language) [hereafter Utrecht Draft].
n96 Id. at 234--39.
n97 See Draft Optional Protocol Providing for the Consideration of Communications, U.N. ESCOR Comm. on
Economic, Social and Cultural Rts., 11th Sess., U.N. Doc. E/C.12/1994/12 (1994), reprinted in THE RIGHT TO
COMPLAIN ABOUT ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 26, at 179, 195--96.
n98 van Hoof, supra note 26, at 176.
n99 Utrecht Draft, art. VIII(2), supra note 95, at 236.
n100 Id. art. VIII(3).
n101 Id. art. IX(1).
n102 Martin Scheinin, Economic and Social Rights as Legal Rights, in ECONOMIC, SOCIAL AND
CULTURAL RIGHTS: A TEXTBOOK, 41, 41 (Asbjorn Eide et al. eds., 1995).