Securing Dignity and Freedom Through Human Rights : Article 22 of the Universal Declaration of Human Rights [1 ed.] 9789004224940, 9789004209398

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Securing Dignity and Freedom through Human Rights

The Universal Declaration of Human Rights Series Editor

Professor Hurst Hannum Human rights law has developed from the modest “common standard of achievement for all peoples and all nations,” proclaimed by the Universal Declaration of Human Rights in 1948, to a complex and rich substantive tapestry of international and national law. The provisions of the Universal Declaration have been codified and interpreted by a growing number of international bodies, most significantly by the committees created to oversee the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, each of which has over 140 state parties. In addition, the Declaration has served as a model for national constitutions and statutes, many specifically designed to reflect the Declaration’s provisions. Inspired by the fiftieth anniversary of the Declaration, the Universal Declaration of Human Rights Series analyzes the development of the Declaration’s norms and their status in contemporary international law. The Series consists of approximately 20 volumes, each dealing with a substantive right (or group of rights) set forth in the Universal Declaration of Human Rights. Each volume is authored by an expert in human rights generally and in the particular subject addressed. Each book provides a comprehensive, legally-oriented analysis of the rights concerned, understood within the political context in which implementation of human rights must occur. The issues addressed include an examination of the legislative history of each right at the time of its adoption, the right’s subsequent articulation and interpretation by international bodies and in subsequent international instruments, and, where feasible, a survey of state practice in defining and enforcing the right. When completed, the Series will constitute an encyclopaedic guide to the content of universally recognized human rights in the twenty-first century.

VOLUME 3

The titles published in this series are listed at brill.nl/udhr

Securing Dignity and Freedom through Human Rights Article 22 of the Universal Declaration of Human Rights

By

Janelle M. Diller

LEIDEN • BOSTON 2012

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Diller, Janelle M. Securing dignity and freedom through human rights : Article 22 of the Universal Declaration of Human Rights / by Janelle M. Diller. p. cm. -- (The Universal Declaration of Human Rights ; v. 3) Includes index. ISBN 978-90-04-20939-8 (hardback : alk. paper) 1. Human rights. 2. United Nations. General Assembly. Universal Declaration of Human Rights. I. Title. K3240.D55 2012 341.4’8--dc23 2011037368

ISBN 978 90 04 20939 8 (hardback) ISBN 978 90 04 22494 0 (e-book) Copyright 2012 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

CONTENTS Acknowledgments������������������������������������������������������������������������������������ ix List of Abbreviations�������������������������������������������������������������������������������� xi I. Introduction���������������������������������������������������������������������������������������   1 II.  Legal Context�������������������������������������������������������������������������������������    A.  Article 22 in Relation to the United Nations Charter������������     1. Conceptual Linkages: Human Rights, Development and Peace��������������������������������������������������������     2. Operational Linkages: International Co-operation for Progress and Human Rights�������������������������������������������    3. Concluding Remarks�������������������������������������������������������������    B.  Role of Article 22 within the Text of the Declaration������������     1.  Rights, Dignity, and Development as a Person������������������     2.  “Everyone”: Universality and Non-Discrimination�����������     3. Action to Implement ESC Rights by the State and by Non-State Actors�������������������������������������������������������    4. Concluding Remarks�������������������������������������������������������������

 9  9

III.  Textual Elements and Drafting Origins of Article 22�������������������    A.  The Drafting Process Leading Up to the Declaration������������    B.    The Idea of an Umbrella Article on Implementation of ESC Rights�������������������������������������������������������������������������������    C. Ordinary Meaning, Context, and Drafting History of the Article’s Components�����������������������������������������������������������     1.  “Everyone, as a member of society”������������������������������������     2.  “the right to social security”�������������������������������������������������     3. “entitled to … the economic, social and cultural rights indispensable for his dignity and the free development of his personality”����������������������������     4. “realization, through national effort and international co-operation and in accordance with organization and resources”�������������������������������������������������

33 34

12 16 23 24 24 27 28 32

37 44 44 46 65 71

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IV. Understanding the Entitlement to Security through ESC Rights�������������������������������������������������������������������������������������    A.  “… the right to social security”���������������������������������������������      1. Legal Nature of the “right to social security” as a Claim to Social Justice����������������������������������������������������      2. The Role of ESC Rights in Achieving Social Justice, Peace, and Development���������������������������������������������������      3.  Linkages with Social Justice Theory��������������������������������    B.  “Everyone, as a member of society”�������������������������������������      1. Universality�������������������������������������������������������������������������      2. Equality and Non-Discrimination�����������������������������������      3. Participation�����������������������������������������������������������������������      4. Solidarity�����������������������������������������������������������������������������    C. ESC Rights “indispensable” for “dignity and free development of … personality”�������������������������������������      1.  Dignity and Free Development of the Personality��������      2. Indispensable ESC Rights������������������������������������������������� V.    Realizing the Entitlement through National Effort and International Co-operation���������������������������������������������������������    A.  “entitled to realization”�����������������������������������������������������������      1.  Scope of the Duty to Realize the Entitlement����������������      2.  Types of Duties to Realize ESC Rights����������������������������    B.  “through national effort and international co-operation”���������������������������������������������������������������������������      1.  National Effort to Realize the Entitlement���������������������      2. International Co-operation to Realize the Entitlement�������������������������������������������������������������������������    C. “in accordance with the organization and resources of each State”����������������������������������������������������������      1.  Organization of Each State�����������������������������������������������      2.  Resources of Each State����������������������������������������������������� VI.    Conclusions�����������������������������������������������������������������������������������    A. Security for Human Dignity and Freedom through ESC Rights����������������������������������������������������������������      1.  Social Justice and “the right to social security”�������������      2. “realization … of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”����������������      3. Applying an Indispensable Rights Approach�����������������

79 84 85 90 100 110 111 112 117 121 126 126 130 135 135 136 145 149 151 159 190 191 193 197 197 197 199 200

contentsvii    B.  Everyone as a Member of Society: Shared Responsibility���������������������������������������������������������������������������        1.  UN Charter Pledge and Beyond���������������������������������������       2. Complementing State Action: Implications of Shared Responsibility���������������������������������������������������������    C. Claiming the Entitlement to ESC Rights������������������������������       1.  Defining the Entitlement: Duties and Typologies����������       2.  Measuring Progress to Realize ESC Rights���������������������    D. National Effort and International Co-operation: Emerging Frameworks������������������������������������������������������������       1.  National Effort��������������������������������������������������������������������       2.  International Co-operation�����������������������������������������������       3.  Co-operation Frameworks under Construction������������    E.  Enhancing Accountability for Conduct Affecting ESC Rights��������������������������������������������������������������������������������       1. Ensuring Respect for ESC Rights in Multilateral Economic and Financial Co-operation���������������������������       2. Protecting against Third-Party Violations of ESC Rights in International Co-operation���������������������    F.   Beyond Development: Human Rights as a Compass for Social Justice�����������������������������������������������������

204 204 205 207 207 208 209 210 212 213 218 219 220 223

Index�������������������������������������������������������������������������������������������������������� 225

ACKNOWLEDGMENTS This book has benefited from the thoughtful inputs of many colleagues and researchers over the years, and I am grateful to all of them. I wish to recognize, in particular, Eva Rieter and Nathalie Denaiejer for their invaluable and untiring contributions to the research and shaping of this study. In addition, John Bessonnette, David Etches, Andrea Garamfalvi, Kees Heesters, Susan Kilbourne and Laila Maher provided important assistance in preparing various chapters. Appreciation for encouraging me to pursue the study of article 22 is due to Walter Kälin and to the late Professor Louis Sohn who shared his own views so generously. I owe much to Hurst Hannum for his insightful and provocative comments and to Lindy Melman for her patient support of this long-promised volume. I gratefully acknowledge the generous research assistance provided by Georgetown University Law Center and the University of Virginia School of Law. Colleagues at the International Labour Organization, especially Rolph van der Hoeven and former Legal Advisers Anne Trebilcock and Guido Raimondi, facilitated an inspiring research environment. Nonetheless, the views in this book are my own and do not necessarily reflect those of the ILO. Finally, I am deeply thankful for the helping hands and hearts of my friends and family, and especially Luke and Simca, whose accompaniment along this journey has been a living reminder of the value set by article 22 on life shared with others, in dignity and freedom.

LIST OF COMMONLY-USED ABBREVIATIONS CESCR Committee on Economic, Social and Cultural Rights Economic, social and cultural rights ESC rights Economic and Social Council ECOSOC Food and Agricultrue Organization FAO Gross domestic product GDP Human Rights Committee CCPR IBRD International Bank for Reconstruction and Development ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IDA International Development Association IFC International Finance Corporation ILO International Labour Organization IMF International Monetary Fund ISO International Organization of  Standardization MDGs Millennium Development Goals MNE Multinational enterprise OAS Organization of American States OECD Organization for Economic Co-operation and Development OHCHR Office of the High Commissioner for Human Rights United Nations UN United Nations Development Program UNDP UNESCO United Nations Educational, Scientific and Cultural Organization World Food Programme WFP World Meteorological Organization WMO World Summit for Social Development WSSD WTO World Trade Organization

CHAPTER ONE

INTRODUCTION “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” – Article 22, Universal Declaration of Human Rights1

In the ongoing pursuit of social justice for a fair globalization,2 the farreaching vision of article 22 of the Universal Declaration of Human Rights offers insightful direction and a key point of reference. Over a half century ago, in the wake of the nightmare of the human deprivation of World War II, the article launched a universal rights-based standard to secure the economic and social opportunity and protection essential to human dignity and to freedom to develop as a person. It recognized an entitlement to “social security” belonging to every person, to be achieved by realization of an integral set of indispensable economic, social and cultural rights (ESC) rights. The article introduces guiding principles for putting the ambitious vision into practice at national and international levels. These principles offer a remarkably concrete response to the increasing demand today for economic and social security as a basis of social justice for all. The significance of article 22 for the realization of ESC rights as a whole has escaped attention during much of the life of the Declaration, in large part due to confusion over the article’s true meaning. The aim of this volume is to better understand the role and scope of the article, both within the text of the Declaration and in international law generally, in order to utilize its full potential, jurisprudentially and in practice. The article’s opening declaration that “Everyone has the right to 1   Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. GAOR, 3d Sess., Supp. No. 13, U.N. Doc A/810, at 71 (Dec. 10, 1948) (“Universal Declaration” or “Declaration”). 2   See, e.g., World Commission on the Social Dimension of Globalization, A Fair Globalization: Creating opportunities for all (2004).

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social security” is easily-misunderstood and has led some commentators to question whether the article reaches beyond the role of introducing the Declaration’s economic, social and cultural rights to actually defining any legal principles or rights while others have simply ignored its linkage with realization of ESC rights through national effort and international co-operation.3 This volume traces the journey of article 22 of the Declaration from the aftermath of World War II, through the Cold War years and into the era of the uneven gains and challenges of globalization. At its origin, the opening reference to everyone’s “right to social security” was interpreted broadly, in a formative meaning that generously denotes the social and economic freedoms and protections essential to human dignity and the development of one’s personality. To guarantee such a level of social and economic security, the “right to social security” was boldly linked to an “entitlement” to the realization of “indispensable” economic, social and cultural rights of an inherently normative character, to be achieved as an interrelated whole. The means of satisfying the  entitlement, expressed as “national effort and international co-operation and in accordance with the organization and resources of each State,” served to specify the realization of ESC rights as part of the expected commitments of States as obligations under the Charter of the United Nations.4 The radical transformation that the introduction of ESC rights through article 22 brought to the international law of human rights should not be underestimated. At the time, civil and political rights had long been familiar tenets in Western national legal systems. These  rights 3   On article 22, see, e.g., Bard-Anders Andreassen, Article 22, in The Universal Declaration of Human Rights: A Commentary, 319, 352 (Asbjorn Eide, Gudmundur Alfredsson, Göran Melander, Lars Adam Rehof, and Allan Rosas, eds., with the collaboration of Theresa Swinehart, 1992) (hereinafter UDHR Commentary) and in The Universal Declaration of Human Rights: a common standard of achievement, at 453, 488 (Gudmundur Alfredsson and Asjborn Eide, eds., 1999) (concluding that framers of article 22 avoided defining a minimum core of rights and corresponding obligations); Helle Kanger, Human Rights in the U.N. Declaration (1984) (arguing that “dignity and the free development of his personality” are extra-legal concepts). On ignoring article 22, see Christian Tomuschat, The Universal Declaration of Human Rights of 1948: Does it Need any Updating?, in The Universal Declaration of Human Rights: Its significance in 1988, SIM Special no. 9, at 75, 78–9 (Netherlands Institute of Human Rights, 1988) (criticizing article 28: “justice and peace presuppose a collective effort by all peoples and all nations and, even further, by every human being”). 4   U.N. Charter, art. 1, para. 3; art. 55; art. 56.

introduction3 reflected an emphasis on negative liberties, typified by the non-interference of government with innate human freedoms. Even equality was conceived in negative terms as the absence of special privilege before the law. The motto of the French Revolution of 1789 which had given voice to the “unstable equilibrium”5 of “Liberty, Equality and Fraternity” also held within it the embryo of positive liberty. Significantly, the Mexican and Russian Revolutions of the early 1900’s provided further impetus that gave shape to the concept of economic, social and cultural (ESC) rights, including at transnational level.6 From the start, such rights – to education, work, and assistance in the face of risks and contingencies, for example – did not conceive of the human being as separate from government and society but rather, spring from the relationships among the individual, society, State and world community.7 Social rights were seen to be guaranteed in action of the whole community designed to ensure rights (action de tous) and an equal chance for everyone to enjoy them. This instrumental relationship between society and the individual grounds the principles of solidarity and equality that underlie ESC rights. The government is there, not to abstain from but rather to coordinate action and, where necessary, provide support to the voluntary and local efforts of the community. The initiative of government and society thus play essential pro-active roles to enable the freedoms seen as inherent in every human being which, given the opportunity, develop and flourish or, faced with deprivation, degenerate.8 5   Serge I. Hessen, The Rights of Man in Liberalism, Socialism and Communism, in UNESCO, Human Rights: Comments and Interpretations, at 99, 100–14, UNESCO Doc. PHS/3 (rev.) (25 July 1948) [hereinafter UNESCO Study]. 6   Pieter H. Kooijmans, Human Rights – Universal Panacea? Some reflections on the so-called human rights of the third generation, XXXVII Netherlands International Law Review 315, 315–6 (1990). For transnational effects, see, American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX (April 1948), reprinted in OAS, Basic Documents Pertaining to Human Rights in the Inter-American System, OAS Doc. OAS/Ser.L.V/II.82 doc.6 rev. 1 at 17 (1992). The American Declaration predated the Universal Declaration by less than a year. 7   See, e.g., Don Salvador de Madariaga, Material Security and Spiritual Liberty, in UNESCO Study, supra note 5, at 35–7. The early welfare rights developed during the industrial revolution as a salve on growing radical labour movement but as the modern social and economic human rights evolved, the emphasis changed to aim at securing social equality and social justice. Bard-Anders Andreassen, Article 22, in UDHR Commentary, supra note 3, at 320–1. 8  For a striking resemblance of this vision to contemporary scholarship, see Amartya Sen, Development as Freedom 38–40 (1999) (presenting five types of instrumental freedoms as ends and means of development: political freedoms,

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Article 22 lifted the concept of ESC rights to the universal level of recognition for the first time, constructing a foundation of human dignity and opportunity to develop freely as a person, guaranteed through equality, participation, and accountability. Embedded in the article’s elements is the idea that ESC rights are far more than a focus on mere assets and material comforts to be received or enjoyed by individuals alone. Rather, the article conveys ESC rights as representing the fruits of a properly ordered relationship between the individual, the community, and the State. This approach is reflected in the drafting discussions, subsequent legal developments and philosophical and political theories of social justice discussed in later chapters. Chapter II of this volume explores the legal context in which article 22 was conceived and born in relation to both the UN Charter and the rest of the Declaration. It provides a backdrop for understanding its evolving role and contribution to national and international law in general, and UN law and practice in particular. The idea of a Universal Declaration surfaced in the historic debates that led to the Charter of the United Nations which was, at its heart, a pact for peace and prog­ ress. It is thus not surprising that the themes of the Declaration and, for purposes of this review, its article 22, find their roots in the framework of general principles that shaped the Charter. Part A examines the linkages between these themes and the general principles of the Charter, both conceptually and operationally. The review in relation to the Charter sets the context for Part B of the chapter, which examines the role of article 22 within the Declaration as a whole, and in the context of specific provisions of the Declaration. Chapter III examines the article’s terms, first looking at their ordinary meaning taken in relation to the instrument as a whole. While the Declaration is not a treaty, the rules of interpretation of treaties, reflective of general rules of interpretation of legal texts, bear on the approach to its examination. This exercise seeks to give the fullest possible effect to the text of the article by affirming both the significance of its particular provisions as well as their relevance to the aims of the Declaration as a whole. Where clarification is necessary, recourse is made to the historical context, including the travaux préparatoires. In doing so, the purpose is not to fix the meaning of the article’s elements by the “original intent” of the drafters but rather to clarify potentially ambiguous provisions and avoid an unreasonable reading that might otherwise result. An understanding of the concepts underpinning the building blocks of article 22 proves especially significant to theoretical

introduction5 foundations of social justice. It also offers guidance to practical efforts, within and among States, to achieve coherence in the pursuit of social justice, including in the relationship between human rights law and development, trade, investment, and other activities of international economic and social concern. Chapters IV and V examine how the meaning and scope of the principles introduced in article 22 have evolved over time. It examines subsequently-adopted international human rights treaties and other international instruments and the interpretation given the Declaration in relation to the Charter and to subsequent developments in international law. As an international human rights document, the Universal Declaration is a living instrument to be given a dynamic interpretation relevant to constantly evolving circumstances in which human rights are realized.9 The subsequent articulation and elaboration of the themes introduced in article 22 within the framework of progressively developing legal norms illuminate their ongoing legal impact today.10 Using a dynamic approach to interpretation and practice, the two chapters also review international institutional developments such as General Assembly resolutions, decisions of UN human rights organs and bodies, and States’ interaction with them. Such developments can serve as an autonomous element of interpretation that lends further clarity to the article’s terms and impact.11 The review of subsequent articulation and interpretation is carried out in two parts. Chapter IV reviews the reference in the article to a broad “right to social security”, including the legal nature of the term as economic facilities, social opportunities, transparency guarantees and protective security).  9   The view of the Declaration as a living document originated with the instrument itself and with an appreciation of the effects that might radiate from such a common statement of principles. See, e.g., Mary Ann Glendon, Knowing the Universal Declaration of Human Rights, 73 Notre Dame L. Rev. 1153, 1174–5 (1988). 10   On the dynamic-evolutionary method of interpretation of international instruments, see Georg Ress, The Interpretation of the Charter, in 1 UN Charter Commentary at 25, 36 n.92 (Bruno Simma, ed., 2d ed. 2002) [hereinafter UN Charter Commentary], citing 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 I.C.J .31 (June 21). 11   Subsequent practice may be used as an autonomous element of interpretation where subsequent institutional developments reveal a dynamic and consistent consensus of interpretation based on the organizational purpose. See Georg Ress, The Interpretation of the Charter, in 1 UN Charter Commentary, supra note 10, at 27–31. See also Bruno Simma and Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, in 12 Aust. Y.B. Int’l L. 82, 102–8 (1992).

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it has evolved and its relationship to other fundamental global values and objectives as well as the role that ESC rights and entitlements play in the conceptualization of social justice in philosophical, political and economic theory. In approaching the rights-bearer as “everyone, as a member of society”, the chapter also reviews the normative evolution of four key human rights principles: universality, equality/nondiscrimination, participation, and solidarity, and takes up the application of an ESC rights entitlement ultimately aimed at serving human dignity and the free development of the personality. Chapter V examines the scope and content of the duty to realize the entitlement to ESC rights. Developments in the understanding of how ESC rights are realized by means of national effort and international co-operation are presented, with specific attention to humanitarian assistance and development. The meaning of the reference to “the organization and resources of each State” is analyzed and emerges, not as a justification for limitations on action, but rather as a summons to an evolving framework in which responsibility is shared among various actors within the State and in the international community. In conclusion, Chapter VI assesses the development of the vision toward social justice proclaimed in article 22 and provides recommendations on the basis of the evolving status of its discrete concepts in international law. It examines the article’s potential for offering a minimum threshold of “indispensable rights” as an integrated whole, including in addressing the effects on ESC rights of the increasingly interdependent activities of States, international organizations, business and other actors in the international community. Particular focus is put on promoting the shared responsibility of those actors to respect, protect and fulfil ESC rights through international co-operation to supplement and complement national effort. Emphasis is placed on avoiding the danger in international development and policy initiatives of compromising full realization of all the rights by seeking to attain minimum levels of selected rights. The role of human rights monitoring to promote and measure real progress toward a rights-based social justice is examined, and adjustments to UN reporting systems and human rights indicators are recommended. New frameworks are considered for preventing and ensuring accountability for conduct that impedes the realization of indispensable ESC rights in the context of international organizations and transnational business and private activities. The chapter concludes that meeting the ongoing challenges of securing human dignity through an indispensable threshold of ESC

introduction7 rights requires more empirical knowledge and collaborative action, and an understanding that human dignity and freedom includes yet surpasses the achievement of minimum levels of selective rights across certain populations. The ultimate aim is no less than the achievement of opportunities, resources, and freedom as a basis of social justice for everyone – the vision that launched article 22 in the first place.

CHAPTER TWO

LEGAL CONTEXT The legal context of article 22 offers a means to understand the article’s evolving role, and its contribution to national and international law in general, and to UN law and practice in particular. The idea for the Universal Declaration surfaced in the historic debates that led to the Charter of the United Nations which was, at its heart, a pact for peace and progress. It is thus not surprising that the themes of the Declaration and article 22, in particular, are rooted in the framework of general principles that shaped the Charter. Part A of this chapter examines the linkages between the two instruments, both conceptually and operationally. It sets the context for Part B which examines the role of article 22 in relation to other provisions of the Declaration and in relation to the instrument as a whole. A. Article 22 in Relation to the United Nations Charter Article 22 of the Universal Declaration of Human Rights charts the path of ESC rights that emerged from the human rights consensus achieved in the wake of World War II.12 At the 1946 Conference convened to draft the UN Charter, many delegates were committed to the principle that human rights and fundamental freedoms were an essential and inseparable part of the shared values on which to build the new global alliance of nations dedicated to the common good of all peoples. The ultimate objectives of global peace and progress could only be achieved through means that affirmed the dignity of every human being. Thus, their goal was to ensure that the UN Charter itself embedded the objective of promoting fundamental human rights. A proposal to incorporate a declaration of human rights directly in the Charter13 12   For the evolution of the concept of ESC rights before the Declaration, see supra chapter I, text accompanying notes 5–8. 13  The UN Conference on International Organization: Selected Documents, Report of Committee I (Vol. VI) at 298 (U.S. Dept. of State, ed., 1946) [UNCIO], cited in Leland M. Goodrich and Edvard Hambro, Charter of the

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was ultimately not accepted, largely because it was considered that the Organization itself, once formed, could better draft such a Declaration.14 Nonetheless, a number of articles in the Charter were specifically inserted to promote action in that direction.15 These clauses were considered obligatory from their earliest days,16 and helped provide the impetus for the follow-up effort to draft an International Bill of Rights. Shortly after the creation of the United Nations, and pursuant to a mandate of the Economic and Social Council (ECOSOC), the Commis­ sion on Human Rights was established by the Council, and entrusted with the task of drafting an International Bill of Human Rights.17 By its third session, the Commission adopted a draft declaration which was submitted to ECOSOC together with a draft binding Covenant which had not been fully considered, and various diverse proposals for measures of implementation.18 After receiving the documents through ECOSOC, the General Assembly sent the draft Covenant and proposed United Nations: Commentary and Documents 90 (2d rev.ed., 1949) [hereinafter Goodrich and Hambro]. See also Jean-Bernard Marie and Nicole Questiaux, Article 55, alinéa c, in La Charte des Nations Unis, 865, 869 n.1 (Jean-Pierre Cot and Alain Pellet, eds., 1991) [hereinafter La Charte] (passed without a motion for a vote). 14  UNCIO, supra note 13, cited in Daniel Erasmus Khan and Wilhelm G. Grewe, Drafting History, in 1 UN Charter Commentary, supra note 10, at 10 n.35; UNCIO, supra note 13, Vol. VI at 296, Doc. 343, I7I/16, cited in Rudiger Wolfrum, Article 1, in 1 UN Charter Commentary, supra note 10, at 47 n.15; Goodrich and Hambro, supra note 13, at 97. Indeed, the U.S. Department of State had foreseen a Bill of Rights that preceded the UN Constitution. U.S. Department of State, Postwar Foreign Policy Preparation 1939–45, Publ. n° 3580 (Feb. 1950) at 472, cited in Mohammed Bedjaoui, “Préambule”, in La Charte, supra note 13, at 13 n.5. 15  Goodrich and Hambro, supra note 13, at 90 n.7, citing U.N. Charter, art. 1, paras. 2–3, arts. 8, 13, 55, 56, 62, 76. 16   The binding character of the human rights provisions of the Charter was affirmed as early as 1948. In the General Assembly Sixth Committee, Judge Spirapolous stated that “[a]s the obligation to respect human rights was placed upon Member States by the Charter, it followed that any violation of human rights was a violation of the provision of the Charter.” U.N. GAOR, 3rd Sess., 6th Committee, 138th mtg. at 765 (Dec. 7, 1948). Similarly, Judge Philip C. Jessup wrote that “[i]t is already the law, at least for Members of the United Nations, that respect for human dignity and fundamental human rights is obligatory. The duty is imposed by the Charter.” Philip C. Jessup, Modern Law of Nations 91 (1948). 17   The term reportedly first appeared in the resolution of the Economic and Social Council entrusting the Commission on Human Rights with the drafting of an “International Bill of Human Rights”. E.S.C. Res. 5(I), U.N. Doc. E/RES/1946/5(I) (16 Feb. 1946), cited in Eibe Riedel, Article 55(c), in 2 UN Charter Commentary, supra note 10, at 917, 925 n.55. 18   Rep. of the Comm’n H. R., 3rd Sess., May 24–June 18, 1948, paras. 12–17, U.N. Doc. E/800 (June 28, 1948). See also Rep. of the Drafting Comm’ee on International Bill of Human Rights [hereinafter Drafting Committee], Comm’n H. R., 2nd Sess., May 3–21, 1948, U.N. Doc. E/CN.4/95 (May 21, 1948). For the drafting of the Declaration by the Commission, see generally infra Chapter III.



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methods of implementation back for further examination, while taking up and ultimately adopting the Declaration.19 For more details on the process leading up to adoption of the Declaration, see Chapter III. Although the Declaration is not legally binding in nature,20 it serves powerfully as a tool for interpretation of the Charter; in connection with the conclusion of the Charter, all the parties agreed to draft a human rights declaration.21 The Charter provided for the first time at 19   E.S.C. Res. 151 (VII), U.N. Doc. E/1046 (Aug. 26, 1948) (ECOSOC transmittal to the General Assembly). The report of the implementation group to the full Commission had proposed the creation of an international human rights court and a UN agency to monitor the human rights situation in member states and to receive petitions from aggrieved individuals, but these measures were vehemently opposed by the Soviet delegation, among others. See Mary Ann Glendon, A World Made New 94–6 (2001). Following recommendations made by the Third Committee of the General Assembly relating to the preparation of a draft Covenant and draft measures of implementation, U.N. Doc. A/777, Rep. of the Third Committee (Dec. 7, 1948), the General Assembly requested ECOSOC “to ask the Commission on Human Rights to continue to give priority in its work to the preparation for a draft Covenant on Human Rights and draft measures of implementation.” Preparation of a Draft Covenant on Human Rights and Draft Measures of Implementation, G.A. Res. 217 (III) E, U.N. GAOR, 3d Sess., Supp. No. 13, U.N. Doc A/810, at 79 (Dec. 10, 1948). 20   Although certain provisions of the Declaration reflect legal obligations of the Charter (e.g., article 2 of the Declaration in relation to the non-discrimination clause of article 55, paragraph c) or reproduce existing customary law (e.g., article 4 of the Declaration prohibiting slavery), these facts do not render the Declaration as a whole binding. Despite the numerous mentions of the Declaration in other General Assembly instruments, the journey to the two binding International Covenants adopted in 1966 nearly 20 years after adoption of the Declaration, was long and treacherous, ending with entry into force of the treaties January 3, 1976 and March 23, 1976, respectively. See International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316, at 49 (Dec. 16, 1966) (hereinafter ICESCR); International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316, at 52 (Dec. 16, 1966) (hereinafter ICCPR). Indeed, at one stage in the drafting process, the General Assembly was obliged to overrule a decision of the Commission on Human Rights not to include any ESC rights in the Covenant. G.A. Res. 421 (V), U.N. GAOR, 5th Sess., Supp. No. 3, at 66–7 (Dec. 4, 1950), discussed in Mashood A. Baderin and Robert McCorquodale, The International Covenant on Economic, Social and Cultural Rights: Forty Years of Development, in Economic, Social and Cultural Rights in Action 5 (Mashood A. Baderin and Robert McCorquodale, eds. 2007). While incorporation of the provisions of the Declaration in the constitutions of countries could eventually lead, as in the case of widespread practice with a sense of legal obligation, to the development of peremptory norms, the entire Declaration, though itself without binding force, would have shown the effectiveness of an authoritative non-binding instrument.  For national constitutional references to the Universal Declaration, see Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287 (1995/96). For the role of the Declaration in relation to customary and general principles of law, see Simma and Alston, supra note 11. 21   Although the Declaration is not a treaty, it is notable that the context for the purpose of interpretation of a treaty comprises, in addition to its text, “any agreement

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international level a legal basis for requiring respect and protection of human beings under a positive international standard binding on all States by affirming faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women. As one commentator has observed, the Charter “transformed the metaphysical and moral notion of human rights into the positive international law of human rights” by linking “the original idea of natural rights to the nascent international law principle that decent treatment of human beings is a precondition of peace and of a just world order.”22 On this binding foundation, the Universal Declaration articulated, through declaratory guidance, the elements necessary to defining human rights and freedoms and, eventually, mechanisms for their implementation. By means of a dynamic and evolving interpretation, the Declaration continues to adapt and specify these fundamental principles of the UN Charter.23 1.  Conceptual Linkages: Human Rights, Development and Peace The values and principles which inspired the ESC rights recognized in the Declaration, and article 22 in particular, are rooted in the conceptual role played by human rights in the UN Charter. In an approach unprecedented at the time, the Charter linked universal respect for human rights and fundamental freedoms as an essential condition to the objectives of economic and social progress and world peace.24

relating to the treaty which was made between all the parties in connection with the conclusion of the treaty.” Vienna Convention on the Law of Treaties, art. 31(2)(a), 23 May 1969, 1155 U.N.T.S. 331. The mere fact that the Declaration arose from an agreement between the parties at the time of concluding the binding Charter does not itself render the Declaration as a whole binding, and the Declaration itself cannot be considered to amend the Charter. 22   Francesco Francioni, The Right of Access to Justice under Customary International Law, in Access to Justice as a Human Right: XVI Collected courses of the Academy of European law (Vol. 4) 1, 27 (Francesco Francioni, ed., 2007). 23   Georg Ress, The Interpretation of the Charter, in 1 UN Charter Commentary, supra note 10, at 23–5, noting that an evolving dynamic interpretation of the Charter is necessary to adapt it to the changing tasks since the instrument has formally remained almost unchanged and interpretation has significantly added to and modified the understanding of the Charter provisions, citing Eckart Klein, Statusverträge im Völkerrecht 339ff. (1980). 24  In an early reflection, the “intimate relationships between peace and human rights were not so keenly felt” in the League of Nations as in the Charter of the United Nations. South West Africa (Ethiopia v. South Africa joined with Liberia v. South Africa), 1966 I.C.J. 250, 286 (dissenting opinion of Judge Tanaka).



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These three main pillars of the UN system – development, peace and security, and human rights – have been recognized as “interlinked and mutually reinforcing”.25 The front-stage role for human rights reflected a deepened understanding of the injurious impact of human rights violations on both individuals and society as a whole. As a result, in the Charter and the Declaration, respect for human rights, and the associated concepts of freedoms and equality, play an imperative role in ensuring the well-being of the person and the community, from local to global levels. It is this dynamic which underlies the rationale for ESC rights introduced in article 22. The strengthened role for human rights in the Charter reflected lessons learned in the first half of the 20th century. While the Covenant of the League of Nations had sought peace by restricting the use of force, the two World Wars had demonstrated that economic chaos and social malaise were themselves threats to the peace that should be addressed by linking peace with development.26 The result was a Charter framework that surpassed the League’s Covenant. Along with restrictions on the use of force, the drafters of the UN Charter aimed to secure world peace through a system of economic and social cooperation in which the promotion of human rights and fundamental freedoms plays an integral part.27 One of the UN’s purposes, thus, is the promotion of “international co-operation”28 which encompasses a dual

  G.A. Res. 62/208, preamble, UN Doc. A/RES/62/208 (Dec. 19, 2007).   The essential relationship between human rights, justice, and freedom had been underscored by a number of publicized pronouncements at the time, including the Atlantic Charter. In the Declaration by the United Nations, agreed to in 1942 by 26 governments, a wartime coalition recognized that victory against the Axis powers in World War II was “essential … to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands.” Arcadia Conference, January 1, 1942, Declaration by the United Nations, reprinted in Executive Agreement series 236: IV Documents on American Foreign Relations, 1941–2, at 203, cited in Goodrich and Hambro, supra note 13, at 570. The coalition of signatories included Australia, Belgium, Canada, China, Costa Rica, Cuba, Czechoslovakia, Dominican Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Poland, South African, the United States, the United Kingdom, the Union of Soviet Socialist Republics, and Yugoslavia. 27   Mohammed Bedjaoui, supra note 14, at 27. 28   “International co-operation” in the Charter is said to have a double meaning, referring both to the decision-making process in UN organs, and the transformation of a society of States into a community of states by the sharing of common goals as well as by the means through which these goals are achieved. Rudiger Wolfrum, supra note 14, at 53. 25 26

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aim: “solving international problems of an economic, social, cultural, or humanitarian character,” and “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (article 1, paragraph 3). The new system of economic and social co-operation found concrete expression in the roles of the UN’s institutional organs, which function for the promotion of both international co-operation and human rights.29 The operational commitments of chapter IX of the Charter, including  the “human rights clauses” of articles 55 and 56, are discussed in the next section of this chapter. The essential role of human rights and fundamental freedoms was thus embodied in the spirit and structure of the new organization dedicated to progress and peace. Human rights and freedoms are inextricably connected with the principles of human dignity and equality in the Charter and their interdependence is further developed in the Declaration. The peoples of the United Nations determine in the Charter “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small …” (UN Charter preamble, paragraph 2). The preamble of the Declaration echoes and picks up the theme: “Whereas the peoples of the United Nations have in the Charter affirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women …” and “… recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace …” (Declaration preamble, paragraphs 5, 1). The reference to equal rights in both instruments emphasizes the equality of all human beings that is integrally connected with dignity and rights. The “friendly relations among nations” set out in the Charter as one of the purposes of the United Nations are “based on respect for the principle of equal rights … of peoples” (article 1, paragraph 2). Article 1 of the Declaration reflects this philosophical foundation of human rights by commencing: “All human

29   For relevant functions of the General Assembly, see U.N. Charter, art. 13, together with those of the Economic and Social Council in Chapters IX and X of the Charter (in particular, art. 62). For the objectives of the international trusteeship system of the United Nations, see Chapter XII (in particular, art. 76). The practice of the UN Charter machinery in areas affecting ESC rights, including through articles 57 to 63, is addressed in Chapters IV and V.



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beings are born free and equal in dignity and rights.” Thus, the principle of equality serves to motivate the universality of human rights and, in both the Charter and the Declaration, takes the specific form of gender equality.30 Equality of persons is also promoted by the recognition of the equality of the Members (Charter, article 2, para. 1). In the global community of nations, the principle of sovereign equality operates to prevent indirect prejudice which could result through unequal representation of peoples and individuals if their access to rights were dependent solely on their nationality or physical residence. While the Charter laid the foundation of human rights and fundamental freedoms as central to the UN’s purposes, it was left for the Declaration to specify more clearly the nature of these rights and freedoms. The annual message to Congress of U.S. President Franklin D. Roosevelt on January 6, 1941 had proclaimed four essential freedoms: freedom of speech and expression, freedom of every person to worship God in his own way, freedom from want, and freedom from fear – to be enjoyed everywhere in the world.31 Those “fundamental freedoms” had typically denoted protection against interference by public authorities. Now, respect for “human rights” brought, in certain ways, the demand for positive action.32 As a broader term than “freedoms”, the concept of human rights denotes claims, either in positive or negative sense – used in an offensive or defensive manner.33 The further recognition of social and economic rights, first at national level, imported guarantees that were to be ensured, where necessary, in the relationship between the individual in society and the State.34 This approach provides the starting point for examining article 22 of   The U.N. Charter affirms equal rights in relation to gender by providing for nondiscrimination and equality between women and men in the work of the UN organs (Charter, art. 8). The Covenant of the League of Nations adopted a similar approach in this respect, stating that “All positions under or in connection with the League, including the Secretariat, shall be open equally to men and women.” League of Nations Covenant, art. 7, para. 3. See Sabine von Schorlemer, Article 8, in 1 UN Charter Commentary, supra note 10, at 231. For equality in the Declaration, see the next section of this chapter. 31   87 U.S. Cong. Rec. (I) 44 (1941) (address delivered by President Roosevelt to the U.S. Congress on Jan. 6, 1941). 32   See, e.g., Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, April 11, 1950, as amended by Protocols Nos. 11 and 14 as from June 1, 2010, preamble, fourth paragraph, C.E.T.S. No. 194, 213 U.N.T.S. 222. 33   Eibe Riedel, Article 55 (c), in 2 U.N. Charter Commentary, supra note 10, at 921. 34   See supra notes 5–9 and accompanying text. 30

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the Declaration and subsequent developments within the UN human rights treaty system. Addressing the ESC rights recognized in the Declaration as a whole, article 22 connected the commitments of the Charter with their logical economic and social implications for the human person and consequently, for society. The article’s underlying dynamic of mutuality between society and everyone as its members motivates its recognition of an entitlement to security. Society facilitates the well-being of its members by providing each one a guarantee of security; with such freedom from want and access to opportunity, its members contribute in return to society through their personal development. The UN Charter’s linkage of human rights with economic and social progress at State to State level in the global community is thus made specific, through article 22, to individuals and local communities. Just as peace and stability in the world society cannot be achieved without human rights and economic and social progress, so the spirit of community in society as a whole cannot be achieved unless society ensures the social and economic security that provides dignity and opportunities for self-development. To put these principles into practice, the article postulates the interdependence between fundamental freedoms and rights-based demands for positive action. Freedom from want or insecurity, both individually and within society is enabled through realization of an integrated set of ESC rights which guarantee a level of social security in the form of social and economic freedom from want that permits well-being, including through development as a person with educational and cultural rights. As discussed further in the following chapters, the universal right to social security belongs to “Everyone, as a member of society” and calls for action by member States in two spheres of responsibility: national level of effort and international co-operation. 2.  Operational Linkages: International Co-operation for Progress and Human Rights The principle of mutuality between society and its members, woven into the rights-based guarantee of article 22, drives the dynamic between the UN’s human rights agenda and its economic and social programmes. The relevant commitments in article 55 of the Charter are taken “[w]ith a view to the creation of conditions of stability and well-being” which are “necessary for peaceful and friendly relations



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among nations based on respect for the principle of equal rights … of peoples.” (UN Charter, article 55, chapeau) In accepting the specific commitments formulated in the three sub-paragraphs of article 55, Member States assume obligations whose import is specified, at least in part, through the Declaration and subsequent human rights instruments.35 Article 22 of the Declaration gives particular significance and effect to the role that ESC rights play in Member States’ commitments under article 55 of the Charter. At the same time, the Charter’s wording is not limited to those rights and leaves open the possibility that conditions of human life and society may evolve in a way that would require the recognition of further means to ensure human dignity and the free development of the personality. For more thoughts on new frontiers for realizing ESC rights, see Chapter VI. 2.1  Article 55 (a): Ultimate Objectives Article 22 offers a concrete path for implementing the Charter commitment in article 55 (a) to “promote: (a) higher standards of living, full employment, and conditions of economic and social progress and development”. The right to social security as expressed in article 22 is, in essence, a guarantee to fulfil the type of social and economic conditions described in article 55 (a) as necessary for stability and well-being in human life and society. The references to standards of living, employment, and progress and development found in paragraph (a) of article 55 of the Charter are missing from the UN’s purposes in article 1, paragraph 3. Only the wording in paragraphs (b) and (c) of article 55 about international co-operation and human rights can be found in article 1, paragraph 3. Nevertheless, article 1’s terms invoke generally the Charter’s preambular determinations relevant to paragraph (a) of article 55. The preamble states the resolve of the international community to “promote social progress and better standards of life in larger freedom” (fourth preambular paragraph) and to employ international machinery “for the promotion of the economic and social advancement of all peoples” (eighth preambular paragraph). Even so, the preamble’s “larger freedom” is missing from article 55 (a), and article 55’s  While the content of the rights and principles included in the Universal Declaration are encompassed in the “human rights” in article 55, the catalogue of the Declaration is not necessarily exhaustive but exemplary. For example, it does not contain so-called “third generation” rights to self-determination, to peace, development and to sound environment. 35

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references to “full employment”, “economic progress” and “development” are missing from the preamble. Notwithstanding the lack of parallelism, a synthesis of article 1, paragraph 3 with article 55 (a) is achieved in practice, including through article 22 and the following articles on ESC rights (articles 23–27) in the Declaration.36 2.2  Article 55 (b): Working in Community The ESC rights introduced by article 22 and specifically recognized in articles 23–27 of the Declaration significantly parallel the fields identified in article 55 (b) of the Charter for promotion of solutions or cooperation. There, the UN mandate includes to promote “solutions of international economic, social, health and related problems; and international cultural and educational co-operation.” Articles 23 through 25 of the Declaration address rights related to the fields for promoting solutions in article 55(b), including rights relating to work (article 23); to rest and leisure (article 24); to conditions of life and health, and to security in the event of lack of livelihood (article 25). Articles 26 and 27 address rights in the fields for promoting “international … cooperation”, namely education (article 26); and cultural life and activity (article 27). Article 55 (b) distinguishes between, on the one hand, solving international problems in economic, social, health and related fields and, on the other hand, promoting international co-operation in cultural and educational fields. These two types of international co-operation are evident generally in the practice of the UN and its specialized agencies. The first is solution-oriented, seeking to improve conditions of development or address humanitarian disaster or health or economic crises.37 The second, in contrast, is an ongoing process in which the focus is not on a problem to be solved, but rather on nurturing 36   E.g., article 23 on work-related rights, article 25 on an adequate standard of living. As to “full employment”, the International Labour Organization seeks to achieve, as part of its constitutional mandate, “full employment and the raising of standards of living”. Constitution of the International Labour Organisation, June 28, 1919, 15 U.N.T.S. 35, Annex, Declaration concerning the aims and purposes of the International Labour Organisation, Part III (a), May 10, 1944 [hereinafter Declaration of Philadelphia]. In 2008, the ILO reaffirmed the promotion of employment as one of the Organization’s “strategic objectives”. ILO Declaration on Social Justice for a Fair Globalization, Int’l Labour Conf., 97th Sess. (June 10, 2008) in 97th Sess., I.L.C., ILO Doc. Prov. Rec. 13A/1 (2009), decided ILO Doc. Prov. Rec. 17, at 41. 37   For a discussion of human rights and international co-operation in this context, see generally infra chapter V.B.2.



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opportunities for the international community to develop freely through exchanges and co-operation of scientific, cultural and other ideas among States and their peoples.38 The distinction between these objectives is reflected in the dual goals at the end of article 22, which specify the aim of realizing ESC rights in referring to them as “indispensable for human dignity and for the free development of [the] human personality”. The reference to dignity evokes at least a baseline of decency of conditions of life and work for which the avoidance of deprivation in economic and social terms involves rights recognized in articles 23, 24 and 25 as needing “international solutions” within the scope of the first half of article 55(b) of the Charter. In contrast, the reference to “free development of [the] personality” recalls the spirit of international cultural and educational co-operation in the second half of article 55 (b) of the Charter. The right to education in article  26, and the rights relating to cultural life and activity in article 27, operate as enabling rights to provide the opportunities for actualization of the human personality, individually and in community. In this way, they serve a critical role in promoting the conditions that make possible “international cultural and educational co-operation” under article 55 (b). 38   Cultural diversity is considered as necessary for humankind as biodiversity is for nature. UNESCO Universal Declaration on Cultural Diversity, UNESCO Gen’l Conf., 31st Sess., Res. 25, Annex I, art. 4 (Nov. 2, 2001), reprinted in UNESCO Rec. Gen’l Conf., 31st Sess., Resolutions (Vol. I) (2002). While States bear the primary duty of ensuring to future generations the cultural and natural heritage, the international community as a whole has a duty to co-operate in recognizing that such heritage constitutes a world heritage. Convention concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, arts. 4–6, 1037 U.N.T.S. 15511. See also Convention on the Protection of the Underwater Cultural Heritage, Nov. 2, 2001, UNESCO Doc.31C/Resolution 24, 41 I.L.M. 37 (2002). Cultural diversity and human rights are interdependent, and the safeguarding of cultural property and promotion of free flow of ideas can be seen as human rights-oriented goals inspiring the framework of international economic law. E.g., Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, arts. XX(1), XX(f), 1867 U.N.T.S. 154, [Marrakesh Agreement] (protection of public morals and national treasures as legitimate nontrade related objectives); Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, Marrakesh Agreement, supra, Annex IC (safeguard clauses designed to protect social function of intellectual property); Florence Agreement on the importation of educational, scientific and cultural materials, June 17, 1950, 131 U.N.T.S. 25 and its Nairobi Protocol, Nov. 26, 1976, 1259 U.N.T.S. 3 (exemption from customs duties in connection with importation of educational, scientific and cultural  materials); World Bank, Operational Manual, Safeguard Policies, Operational Procedure (OP) 4.11: Physical Cultural Resources, 2006 (safeguard cultural property in bank-financed projects). See generally World Commission on Cultural and Development, Our Creative Diversity (1998).

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2.3  Article 55 (c): Universality In mandating that ESC rights are to be realized equally with all other human rights, article 22 give concrete application, in ESC rights terms, to the principles of universality and effectiveness set forth in article 55 (c ) of the Charter. Article 55 (c) engages the United Nations to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” In referring to “universal” respect and observance, the Charter has a dual aim: it extends to all persons the benefits of the protection of human rights and applies to all authorities the duty to respect and protect human rights of everyone. Following on article 1 of the Declaration which affirms that all persons are born free and equal in rights, article 22’s entitlement to “everyone, as a member of society”,39 emphasizes that the universality of article 55 (c) applies as much to indispensable ESC rights as to the other rights (in particular, those of a civil and political nature) recognized in the Declaration. It is natural that the non-discrimination clause would follow the principle of universality in article 55(c) which accompanies equality as a vital foundation of human rights law. While the Charter’s prohibited grounds of discrimination are limited to “race, sex, language, or religion”,40 the Declaration in article 2 significantly expands this short list by affirming that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 22 in turn applies the non-discrimination rule specifically to ESC rights which

39   Had there been no comma after “everyone”, a debate could have arisen on who might be a member of society. However, the use of a comma between “Everyone” and “as a member of society” seems to clarify that everyone is already a member of society. See infra Chapter III.C.1. 40   The non-discrimination clause in the U.N. Charter imports a legal obligation on member States to respect the principle of equality before the law, and has played a decisive role whenever direct legal obligations are based on the article. See, e.g., South West Africa (Ethiopia v. South Africa joined with Liberia v. South Africa), 1966 I.C.J. 250, 286 (dissenting opinion of Judge Tanaka), at 286–8, applying the equality principle as an integral part of the Charter and as an independent source of international law. The text of the non-discrimination clause which eventually was adopted as part of article 55, paragraph (c ) was proposed as an amendment by the four Powers at the San Francisco Conference in order to expand the scope and content of the provision which had been proposed by them at Dumbarton Oaks. See UNCIO, supra note 13, Vol. IV at 892, cited by Jean-Bernard Marie and Nicole Questiaux, supra note 13, at 867 n.13.



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belong to “everyone” as a member of society, thus permitting no distinction. While the Declaration’s reinforcement of non-discrimination in the context of ESC rights could be seen as unnecessary since “all the rights” are already included in the wording of article 2, the positive  action required to realize some ESC rights could have raised questions of distinction without the specificity of the reaffirmation found in article 22.41 The result leads to interpreting the Charter’s nondiscrimination clause as an affirmation of universality as a minimum standard of achievement of human rights including, in the light of article 22, ESC rights. 2.4  Article 56: Effectiveness of Action Perhaps the most striking achievement of article 22 in relation to the Charter is its advancement of the understanding that international economic and social co-operation under the Charter involves national as well as international action in the context of realizing ESC rights. The enhancement of the effectiveness of action expected of UN Member States in the context of ESC rights is linked to the Members’ pledge in article 56 “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”.42 Article 22 of the Declaration helps to specify both the purposes to be achieved by this pledge and the scope of action to be undertaken. Article 56 refers to the “purposes set forth in article 55” which include both “respect” and “observance” of human rights. These are distinct undertakings; “observance” is likely stronger than “respect”43 as it bears a practical sense of implementation that moves beyond the general purpose of “promoting and encouraging respect for human rights” (article 1, paragraph 3 of the Charter). It is evident that one of the aims of the Declaration was to specify the precise nature of the rights to be respected and observed, the Declaration aims to achieve 41   The reference to the open-ended “other status” was later reflected in article 2 of the ICESCR, supra note 20, but with a flexibility clause for developing countries that permits exclusion of non-nationals from the enjoyment of economic rights. See notes 359–60 and accompanying text. 42  Article 56 is more specific than article 2, paragraph 2 of the Charter, which requires all Members to “fulfil in good faith the obligations assumed by them in accor­ dance with the present Charter”. However, it is more limited than article 25 of the Charter which requires Members to “accept and carry out the decisions of the Security Council in accordance with the present Charter.” 43  The French text of the Charter renders “observance” as “respect … effectif ”, reflecting the principle of effectiveness.

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“a common understanding of [the] rights and freedoms … for the full realization of [the Charter] pledge” (Declaration, last preambular paragraph). To this end, article 22 specifies that ESC rights are to be realized in a manner that can be seen to encompass both “respect” and “observance”; it provides a concrete context in which to implement the indispensable rights, not selectively or partially, but in an integrated way for purposes of social security, human dignity and freedom to develop as a person. Article 22 also expands the scope of action pledged under the Charter. The undertaking in article 56 of the Charter by itself does not require Members to take unilateral action within their own country, nor to implement General Assembly decisions at national level.44 In the drafting of the article, a debate ensued among States about whether to include a pledge to take action both internationally and within their own countries to pursue the economic and social objectives of the Organization. The final wording that was adopted in article 56 requires the Members to co-operate only with each other, and together or separately with the United Nations as an Organization, but does not require that they each take separate national action.45 The wording of article 22, however, refers to “national effort” as a means by which ESC rights are realized, along with international co-operation. The concept of national effort was inserted to reflect the fact that, at least for certain elements of ESC rights, positive action at national level would be necessary.46 With this phrase in article 22, the pledge of article 56, at least in its relation to the human rights purposes under article 55 (c), took on the additional obligation of separate national action. This interpretation of article 56 was evident almost immediately 44  While article 56 had an early effect on the implementation of the Charter’s provisions on economic and social co-operation such as those under article 55, paragraph (b), most of its impact over the years concerns the human rights mandate of article 55, paragraph (c) For a review of UN practice under article 56, see Rudiger Wolfrum, Article 56, in 2 UN Charter Commentary, supra note 10, at 943–4. 45   The idea for such an article was introduced by Canada and Australia: Canada sought a provision by which Members would “agree to co-operate fully with each other and with the United Nations”; Australia supported a pledge by which Members would pledge to take action both internationally and within their own countries to pursue the economic and social objectives of the Organization. The United States, however, objected to a pledge for independent, separate national action, reflecting the view that such a pledge of separate national action went beyond the proper scope of the Charter in encouraging collective action and not infringing upon internal affairs. Goodrich and Hambro, supra note 13, at 322–4; Rudiger Wolfrum, supra note 44, at 942. 46  See infra Chapter V.B.1 (national effort).



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in the practice of States and the UN which launched a system to receive and review the reports of States on their national efforts in implementing the Charter commitments, especially in relation to human rights.47 Through article 22 of the Declaration, however, the Charter obligations are interpreted to extend to national effort in a step that had been sought but not achieved fully in relation to economic and social cooperation in the drafting of the Charter. 3.  Concluding Remarks Developing the correlation between human rights and international economic and social co-operation is one of the essential contributions of the Declaration to the Charter framework. Article 22 contributes to this task by underscoring the interdependence among ESC rights, dignity, and the individual entitlement to economic and social stability necessary for dignity and for freedom for self-development. The decision to include an article in the Universal Declaration linking the “new” ESC rights to dignity, personal freedom, and protection from insecurity drew upon the conviction, borne of the experience of World War II, that freedom from want was as important to human dignity and worth as all other fundamental human rights and freedoms. The linkage between the Declaration and the Charter remains highly relevant to the effectiveness of human rights law. Until such time as all member States have ratified both the human rights Covenants48 and have done so without reservations of controversial scope, the Declaration continues to offer a means to deal with the gaps in human rights treaty commitments by serving as a “remarkable” specification of the Charter’s reference to “human rights” and its related scope within the framework of the UN. Within this context, the explicit recognition in article 22 of an entitlement of everyone to positive action for the realization of indispensable ESC rights provides a basis on which to promote accountability through monitoring and reporting, and developing tools to ensure a human rights based approach to international assistance and co-operation for development among States, 47   The periodic reporting system under the Charter was initially founded on article 64 of the Charter which provides for ECOSOC to obtain reports from the member States and from specialized agencies. It later gave way to a reporting system under article 56 of the Charter to give effect to the Declaration. See infra notes 445, 503 (UDHR reporting system), 516 (Charter-based reporting system). 48  ICESCR, supra note 20; ICCPR supra note 20.

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international organizations, and the international community, as discussed in Chapter V. B.  Role of Article 22 within the Text of the Declaration Within the Declaration, article 22 introduces the section of articles recognizing specific economic, social and cultural (ESC) rights (articles 23–27).49 As such, it has been called an introductory, or umbrella, article. However, its placement at the start of the ESC rights section, rather than in the preamble of the Declaration, suggests that it plays a substantive role within the Declaration.50 While its clauses are general in nature, the article conveys a concreteness of meaning and function, alone and in relation to the preamble and the rest of the Declaration’s articles, including those of general scope (articles 1 and 2, 28–30) and those on civil and political rights (articles 3–21). This chapter examines the key themes of article 22 in relation to textual references found in the preamble51 and operative paragraphs of the Declaration. For further consideration of the article’s meaning and function, Chapter III sets out the drafting history of the terms, and subsequent articulation and interpretation are examined in Chapters IV and V. 1.  Rights, Dignity, and Development as a Person Structurally, article 22 connects the implementation of ESC rights, based on a guarantee of economic and social security available to every­one, with its logical consequence: facilitation of conditions indispensable to human dignity and freedom to develop one’s personality. The scene is set in the preamble to the Declaration, which recognizes 49   See, e.g., Bard-Anders Andreassen, Article 22, in UDHR Commentary, supra note 3; Helle Kanger, supra note 3, at 131, quoting Nehemiah Robinson, The Universal Declaration of Human Rights: Its Origin, Significance, Applicaiton, and Interpretation 133 (1958). On the reasons why the drafters decided to include an “umbrella article”, see Chapter III. 50   The placement of the article that eventually became article 22 was specifically discussed in the drafting process. See, e.g., chapter III.B (statements of representatives of Egypt and France rejecting preambular position for article). 51   The use of a preamble for interpretative purposes is beyond question as it is part of the text which forms the context for interpretation of the instrument; this does not mean that the preambular paragraphs have operative effect. See, e.g., Vienna Convention on the Law of Treaties, supra note 21, art. 31.



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that “freedom from want” is an essential part of “the highest aspiration of the common people”;52 this protection from insecurity is linked to the compelling response to “the disregard and contempt for human rights” reflected in “barbarous acts which have outraged the conscience of mankind”, a veiled reference to World War II atrocities. As discussed in section 1 of Chapter II.A, the interdependence of human rights, dignity and freedom motivate the Declaration as a whole, as an elaboration of their basis in the Charter. Article 22’s references to dignity and freedom of the personality in the context of the security from ESC rights, examined in operation with other provisions of the Declaration, offer a deeper understanding of the aim of UN action in relation to human rights and economic and social progress. Article 22 gives specific force to the principle of human dignity in relation to ESC rights by affirming that everyone is entitled to ESC rights indispensable for dignity. While the term “dignity” is an abstract concept, it serves as the fundamental source of the respect for every human being that demands an entitlement to all the rights and freedoms of the Declaration. Dignity has been referred to as “the common denominator in the interpretation and application of human rights”.53 The famous first article of the Declaration, which has been called the “cornerstone” of the Declaration, establishes this foundation: “All human beings are born free and equal in dignity and rights”.54 The wording resembles the preamble’s references to “inherent dignity” and “inalienable rights”55 yet expresses even more plainly that every person has an equal birthright to dignity and rights that cannot be given or taken away by authority.56 The term “dignity” appears twice in the ESC 52   Universal Declaration, supra note 1, preamble, second para. The freedom from want was one of the famously-proclaimed four freedoms of then recently-deceased U.S. President Roosevelt. See Address of President Roosevelt, 87 U.S. Cong. Rec. (I) 44, supra note 31. 53   Danilo Turk, The United Nations and the realization of economic, social and cultural rights, in The Implementation of Economic and Social Rights: National, International and Comparative Aspects 95, 105 (Franz Matscher, ed., 1991). 54   Article 1 drew more debate and attention in the final stage of the drafting process than any other article. See Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting & Intent 284–90 (1999); Glendon, supra note 19, at 148. 55   The terms “inherent”, “inalienable” and “born”, for example, were as close to the consensus as possible among the diversity of religious, philosophical, and political perspectives about the reasons for the existence of such attributes of humanity. See Morsink, supra note 54, at 290–6; Glendon, supra note 19, at 145–6. 56  Turk, The United Nations and the realization of economic, social and cultural rights, in The Implementation of Economic and Social Rights, supra note 53,

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rights articles of the Declaration, first generally in article 22 and then with specificity in article 23 which recognizes that “an existence worthy of human dignity” is ensured by the right to just and favourable remuneration for everyone who works and by supplementary means of social protection, if necessary. This dual appearance emphasizes the importance of ESC rights in relation to dignity. In this way, the concept of dignity takes on a normative significance in the field of human rights, at least to the extent that it suggests that all forms of deprivation of human dignity are unacceptable. Like dignity, the “free development of [one’s] personality” in article 22 depends on the realization of ESC rights. The reference to “development of [the] personality” appears, with certain variations, in articles 26 and 29 of the Declaration as well. Article 26 addresses the fundamental aims of education: “Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms” (emphasis supplied). Article 29 links the benefits of enjoying human rights with the responsibilities involved: “Everyone has duties to the community in which alone the free and full development of his personality is possible” (emphasis supplied). As reflected in the drafting history, a distinction in meaning exists between “free” development in article 22 and “full” development in article 26. “Free development” imports the sense of an enabling environment, both in terms of liberty from a lack of interference in the process of self-development and, as needed, positive assistance in ensuring the economic and social conditions essential for self-development. In contrast, “full development” connotes the breadth of personal possibilities which exist in self-development. The phrase “full development” emerged from the formulation “full physical, spiritual and moral development of the human personality” in an earlier draft version of article 26. Amidst the various cultural and religious traditions of the drafters, the simpler phrase was preferred after the complexity of agreeing on the various dimensions of the adjective “full” became clear. While articles 22 and 26 together provide the duality of “free” and “full” respectively in the context of ESC rights, article  29 applies generally to all human rights. The term “free and full at 105 n.14, citing Oscar Schachter, Human Dignity as a Normative Concept, 77 Am. J. Int’l L. No. 848 (1983) (editorial comment). The word “born” and “birth” were used by various delegations in different senses, to refer to physical births as well as moral birth into the human family of rights and duties. Morsink, supra note 54, at 291.



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development” of the personality in article 29 likely encompasses both the external environment that enables development as a person, and the interior dimensions of development within each individual. The centrality of the community to both aspects of development as a person is emphasized by the word “alone” in article 29 which, according to one commentator, “may well be the most important single word in the entire document”.57 2.  “Everyone”: Universality and Non-Discrimination The principles of universality and non-discrimination are at the heart of the idea of a proclamation of human rights for all. They come together in the human subject uniquely addressed in article 22: “everyone, as a member of society”. Like numerous references to “everyone” in the Declaration, article 22’s phrase is grounded in the concept of equality at birth of all human beings identified in article 1. While other references in the Declaration simply use the term “everyone”, the phrase “everyone, as a member of society” adds a further dimension central to its specific affirmation of ESC rights. With the words “as a member of society” separated by a comma, the human person addressed in article 22 is at once an individual and a member of the undefined boundaries of community called “society”. In this formulation, membership in society becomes the means by which the inherent and universal nature of ESC rights is realized in each person.58 The mere fact of being born as a member of society entitles the individual to rights that bring economic and social security, dignity and self-development. In its umbrella role for the ESC rights section of the Declaration, Article 22 thus specifically affirms the principle of universality of ESC rights by invocation of membership in society. In a similar way, the principle of non-discrimination that applies across the Declaration is given specific application to ESC rights in article 22. The Declaration’s list of prohibited grounds is three times the length of the Charter’s list; even so, all the grounds enumerated in article 2 of the Declaration are merely exemplary, as indicated by the use of the term “such as” before “without distinction of any kind”, including

57  Morsink, supra note 54 at 248. For the drafting history of “free” and “full”, see id. at 246–8. 58   For the drafting context of “everyone, as a member of society”, see infra Chapter III.C.1.

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in relation to their legal or geographical status.59 Similarly, article 7 of the Declaration extends “equal protection against any discrimination in violation of this Declaration” to all the rights of the Declaration. In this context, the term “everyone as a member of society” in article 22 is understood to encompass every human being without distinction, including as to nationality or location. While the rule of non-discrimination reflected in articles 2 and 7 encompass ESC rights as well as civil and political rights, the additional emphasis underlying article 22 may have been added since the entitlement to ESC rights was seen to involve positive action, including for development where necessary to realize those rights on an equal basis with all other rights recognized in the Declaration.60 3.  Action to Implement ESC Rights by the State and by Non-State Actors In one of the rare references to human rights implementation in the Declaration, article 22 stipulates that the realization of ESC rights comes “through national effort and international co-operation and in accordance with the organization and resources of each State”. As discussed in I.A.2.4, the reference to integrated effort at both national and international levels extends the UN Members’ pledge under article 56 of the Charter beyond international efforts alone, or co-operation with the UN Organization. The Declaration recalls the pledge in its preambular recognition that “Member States have pledged to achieve, 59   Article 2 of the Declaration provides that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Declaration, supra note 1, art. 2. The UN Charter, however, refers only to “human rights and … fundamental freedoms for all without distinction as to race, sex, language, or religion”. U.N. Charter, art. 1, para. 3. Article 2 of the Declaration further states that “no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs …” Declaration, supra note 1, art. 2. 60   The emphasis on positive action by the State distinguished the Declaration from the renown national human rights charters of the time, which proclaimed that all were born free and equal and that the purpose of government was to protect natural liberties. Such charters included the British Bill of Rights of 1689 passed by the English Parliament as An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (Dec. 16, 1689); the United States Declaration of Independence of 1776, passed in the Congress of the thirteen United States of America (July 14, 1776); and the French Declaration of the Rights of Man and Citizen of 1789, approved by the National Assembly of France (Aug. 26, 1789).



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in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms” (Declaration, sixth preambular paragraph). The steps to fully realize the pledge in relation to human rights began with the Declaration itself, which states that “a common understanding among States of these rights and freedoms is of the greatest importance for the full realization of this pledge” (Declaration, seventh preambular paragraph). While the Charter pledge focuses on action at the international level – whether jointly or separately in co-operation with the Organization, the Declaration calls UN member States to “progressive measures, national and international” to secure universal and effective recognition and observance of the rights and freedoms of the Declaration (Declaration, Proclamation clause). Through article 22, “national effort” by and within Member States is supplemented by “international co-operation” to realize ESC rights commitments underlying the Charter’s human rights commitments (see Chapter II.A). Along with action by the State, the implementation of ESC rights in article 22 also depends on the efforts of non-state actors. The choice of the phrase “member of society” in article 22 implies the duties of membership even while proclaiming its rights, invoking the theory of mutuality of rights and duties that motivates the Declaration as a whole.61 The Proclamation clause expresses that “every individual and every organ of society” is to “promote respect for these rights and freedoms [and] to secure their universal and effective recognition and observance …” Article 29 declares that “[e]veryone has duties to the community in which alone the free and full development of his personality is possible” (paragraph 1). While various interpretations of the reference to “community” in article 29 are possible, the article’s further provision that the exercise of one’s own rights entails “due recognition and respect for the rights and freedoms of others” reveals that “the community” in this sense is the social context or group in which one lives and interacts.62 This mutuality of relationship between a person and his   The correlation between rights, on the one hand, and duties of individuals and of society, on the other hand, was recognized and developed extensively in the foundational inquiry that informed the drafting of the Universal Declaration. E.g., John Lewis, On Human Rights, in UNESCO Study, supra note 5, at 43, 45. 62   The principal author of the French Government draft of the Declaration, Professor Cassin, had suggested an Article 4: “In the exercise of his rights, everyone is limited by the rights of others.” On duties and communities, see generally Morsink, supra note 54, at 246–52. 61

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or her community thus gives deeper meaning to the term “member of society” in article 22. In this way, article 22 makes no doubt that the solidarity that is integral to the enjoyment of human rights applies specifically in the context of ESC rights. Each person possesses human rights, not in an individualistic way, but in a manner that is balanced with the rights of others and the legitimate interests of the community.63 Article 22 is one of only two articles in the Declaration that address  the realization, or implementation, of the entitlements that correspond to the rights recognized in the Declaration; the other is article 28.64 Article 28 provides that “[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” While their content has been confused, the two articles in fact play distinctive roles within the Declaration. Article 22 exclusively addresses ESC rights “indispens­ able for [human] dignity and the free development of [the] personality” and explicitly recognizes that the entitlement of everyone to their realization involves “national effort and international co-operation”. In contrast, article 28 encompasses all the Declaration’s rights and freedoms and the entitlement of everyone is presented as “a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Nonetheless, despite the explicit distinction in scope between the two articles and the express reference in article 22 to economic, social and cultural rights, some scholarly commentaries have relied on article 28 in pointing to the specific obligations of the international community in connection with economic, social and cultural rights, a view which deprives article 22 of its practical effect.65 63   For a discussion of the individual’s duties to the community under Article 29 of the Universal Declaration of Human Rights, see infra Chapter III.C.1. 64  The drafters intended to address only rights, and not obligations, in the Declaration. See text accompanying note 88. 65   E.g., The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17, Annex, para. 30 (January 8, 1987) [hereinafter Limburg Principles] (international co-operation and assistance must be directed towards the establishment of a social and economic order in which the rights and freedoms set forth in the ICESCR can be fully realized, noting article 28 of the Universal Declaration). See also Fons Coomans, Application of the International Covenant on Economic, Social and Cultural Rights in the Framework of International Organisations, in II Max Planck Yearbook of United Nations Law 359, 366 (A. Von Bogdandy and Rudiger Wolfrum eds., 2007) (the idea of international co-operation and a fair international order from article 28 has been elaborated in the



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While differing in scope, articles 22 and 28 complement each other. Both articles encompass the need for action separately within the State (though not necessarily by the State) and at the international level. While article 22 refers explicitly to “realization, through national effort and international co-operation and in accordance with the organization and resources of each State”, the concept of action at the level of the State arises in article 28 from the term “social … order” embedded into the broader reference to a “social and international order”. The interpretation of the term “social order” to extend to national action to realize the rights of the Declaration is largely confirmed by the travaux préparatoires66 and subsequent articulation.67 Scholarly interpretation differs, however, on whether the entitlement to “a social and international order” recognized in article 28 bears a normative character or is merely aspirational in nature.68 In this respect, article 22’s direct references to national effort and international co-operation may contribute to understanding the measures necessary to achieve the social and international order of article 28, at least in so far as ESC rights are concerned. For a discussion of the common origin of articles 22 and 28, see Chapter III.B. ICESCR); Philip Alston, The Universal Declaration at 35: “Western and Passé or Alive and Universal?, 31 Int’l Comm’n Jurists Review 60, 67–8 (1983); Asjborn Eide, The International Human Rights System, in Food as a Human Right 152, 160 (Asbjorn Eide, Wenche Barth Edie, Susantha Goonatilake, Joan Gussow, and Omawale, eds., 1984). In the earlier works, the reliance on article 28 may have reflected a concern to ensure equal priority in the implementation of the two groups of human rights, a question which may have been considered politically outstanding at the time. See, e.g., Turk, , The United Nations and the realization of economic, social and cultural rights, in The Implementation of Economic and Social Rights, supra note 53, at 98–106. 66  In discussion of the draft of the wording that became article 28, the Third Committee of the General Assembly rejected a proposal that “social” include the concept “international” in the draft provision. For a general discussion of the travaux préparatoires of article 28, see Asbjorn Eide, Article 2, in UDHR Commentary, supra note 3, at 433–8. For the drafting of the specific terms of article 22, see chapter III. 67   See, e.g., Declaration on the Right to Development, G.A. Res. 41/128, preamble, third paragraph, 41 U.N. GAOR, Supp. No. 53, U.N. Doc. A/41/53 at 186 (Dec. 4, 1986) (“considering that under the provisions of the Universal Declaration of Human Rights everyone is entitled to a social and international order in which the rights and freedoms set forth in that Declaration can be fully realized”); Declaration on Social Progress and Development, G.A. Res. 2542 (XXIV), preamble, fifth paragraph, 24 U.N. GAOR, Supp. No. 30, U.N. Doc. A/7630, at 49 (Dec. 11, 1969) (“man can achieve complete fulfilment of aspirations only within a just social order”). 68   For a discussion of the “normative framework for the transformation of the right contained in article 28 … to social reality,” see UDHR Commentary, supra note 3, at 438–46. Cf. Hannum, supra note 20, at 349 (article 28 is “clearly hortatory and not sufficiently precise to constitute an international legal norm”).

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chapter two 4.  Concluding Remarks

In conclusion, the context of article 22 within the Declaration suggests that the article plays a formative role for the other articles on specific ESC rights in the Declaration. It recognizes the inalienable nature of ESC rights as “indispensable” to human dignity and free development as a person. It establishes a universal entitlement to realization of those rights as a safeguard belonging to all human beings, without discrimination, by reason of their personal and social natures. The mutuality of relationship between the claims on society and concomitant responsibilities to society, introduced in the article’s framework, reflects the solidarity that motivates the Declaration’s general approach to human rights. Even if the article could be considered as having no identity of its own in relation to the nature of ESC rights, which some have argued, its references to implementation import more than a mere introduction. The article transforms, into normative elements, the distinctive means by which ESC rights are implemented and rejects a pick-andchoose approach to ESC rights, requiring their integrated implementation as a starting point. The article also affirms that national effort within a State, including through positive action, is a necessary part of realization of ESC rights expected under the pledge of article 56 of the Charter.

CHAPTER THREE

TEXTUAL ELEMENTS AND DRAFTING ORIGINS OF ARTICLE 22 This chapter examines the principal clauses of article 22, separately and in relation to one another : i) “everyone, as a member of society” ii) “has the right to social security”; iii) “and is entitled to realization … of the economic, social and cultural rights indispensable for his dignity and free development of his personality”; and iv) “through national effort and international co-operation, and in accordance with the organization and resources of each State”. The exercise seeks to give the fullest possible effect to the text by affirming the significance of its provisions and their relevance to the aims of the Declaration as a whole.69 The wording is reviewed on the basis of its ordinary meaning,70 taken in relation to the instrument as a whole,71 as discussed in Chapter II. The 69   The interpretative principle of effectiveness (ut magis valeat quam pereat), also known as the effet-utile rule, directs interpretation with reference to an instrument’s declared or apparent object and purpose, and interpretation of its particular provisions so as to give them the fullest effect consistent with the normal sense of the work and with the text as a whole in such a way that a reason and meaning can be attributed to every part of the text; it seeks to avoid as much as possible depriving any clause of practice effect for the benefit of others For a discussion of the use of this principle by the ICJ and the ILC, see Malgosia Fitzmaurice, The Practical Working of the Law of Treaties, in International Law 189–90, nn.45–47 (Malcolm D. Evans, ed., 2003). 70   The ordinary meaning rule is paramount: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and the light of its object and purpose.” Vienna Convention on the Law of Treaties, supra note 21, art. 31, para. 1. The ICJ has acknowledged that some of the rules laid down in the Convention might be considered as codification of existing international customary law. See, e.g., Gabcikovo-Nagymaros Project (Hungary/Slovakia), 1997 I.C.J. 35, para. 46 (Sept. 25). The separate tenets of the rule are reflected in the three primary principles of interpretation drawn up by the International Law Commission on the basis of the jurisprudence of the ICJ: the actuality of textuality (to use as a basis the actual texts); the natural and ordinary meaning (to avoid unreasonable or absurd results absent direct evidence to the contrary); and integration (to interpret the instrument as a whole). See Fitzmaurice, The Practical Working of the Law of Treaties, in International Law, supra note 69, at 185, citing 2 Int’l Law Comm’n Yearbook (Part Two) (1966). 71   The systematic interpretation method explores the meaning by comparing various provisions of the instrument, distinguishing different parts, and considering the instrument as a whole. See, e.g., Competence of the ILO in regard to International

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drafting origins of the article’s provisions are used where necessary for clarification of the meaning.72 The purpose is not to fix the meaning of the article’s components by the “original intent” of the drafters but rather to explain provisions which may otherwise remain ambiguous or be given an unreasonable meaning.73 This approach provides a basis for understanding the impact of the various elements of article 22 across time, since only parts of the article, and not the article as a whole, appear in provisions of later instruments and authoritative interpretations adopted by international bodies. (See Chapter IV.) A.  The Drafting Process Leading Up to the Declaration Article 22 evolved late in the course of drafting of the Universal Declaration, a process which lasted from early 1947 to late 1948.74 The question of including an international bill of rights in the UN Charter had been discussed during the drafting of the UN and this task was deferred for the Organization itself to do, once it was created.75 Thus,

Regulation of the Conditions of the Labour of Persons Employed in Agriculture, Advisory Opinion, 1922 P.C.I.J. (ser. B) No. 02, at 23 (August 12). 72   The three primary methods of treaty interpretation, relevant by analogy to other authoritative texts, consist of the objective, or textual, approach; the teleological approach resorting to “object and purpose”, and the subjective approach that draws upon the travaux preparatoires to shed light on the intention of the parties to the instrument. For an approach to reconciliation of the three schools of interpretation, see Fitzmaurice, The Practical Working of the Law of Treaties, in International Law, supra note 69, at 185–6. 73   As a supplementary means of interpretation of treaties, recourse to the preparatory works, and the circumstances surrounding conclusion of the text, is used in practice where, in using the ordinary meaning rule, the text remains ambiguous or obscure, or an unreasonable result would be had. Vienna Convention on the Law of Treaties, supra note 21, art. 32. See Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 1950 I.C.J. 4, 8 (March 3) (if relevant words in natural and ordinary meaning make sense in their context, there is no need to resort to other methods of interpretation); Aerial Incident (Israel v. Bulgaria), Preliminary Objections, 1959 I.C.J. 127 (May 26, 1959) (resort to travaux even though none of litigants was represented in drafting so long as preparatory works were accessible for joining state at time of admission). For a comprehensive review of the drafting process of the Universal Declaration, see generally Morsink, supra note 54. 74   For a detailed look at the drafting phases of the Universal Declaration, see David Weissbrodt, The Right to a Fair Trial 5–11 (2001). See generally Glendon, supra note 19. 75   Committee I/1 of the UN Conference on International Organization decided that, if for no other reason, time did not permit the preparation and incorporation of a bill of rights into the Charter. See supra text accompanying notes 12–16.

textual elements and drafting origins of article 2235 the Preparatory Commission of the United Nations, meeting immediately after the closing of the United Nations Conference on International Organization in 1945, recommended that the Economic and Social Council (Council) establish a commission for the promotion of human rights as envisaged in Article 68 of the Charter in order to begin work. The Council entrusted the Commission with the drafting of an “International Bill of Human Rights”.76 After some preparatory phases,77 a standing Commission on Human Rights composed of 18 Member States established, at its first session, a Drafting Committee to formulate a preliminary draft of such a bill. The Drafting Committee, with representatives from Australia, Chile, China, France, Lebanon, the Soviet Union, the United Kingdom, and the United States, began its work, assisted by the UN Secretariat which initially prepared a Draft Outline of the International Bill of Human Rights.78 On the basis of texts submitted to the Human Rights Commission by the Drafting Committee,79 it was decided in December 1947 that the International Bill of Human Rights should not be limited to a declaration, but should also contain a convention or Covenant, and implementation measures.80 In June 1948, at its third session, the Commission adopted a new revised text of the Declaration for submission to the Council, together with a draft for a Covenant, which had not been definitively considered, and proposals for measures of implementation which were as yet uncoordinated.81 In late August 1948, the Economic  See supra note 17.   On February 16, 1946, at its first session, the Council established a Commission on Human Rights in nuclear form which recommended the preparation of an international bill of rights, and added this mandate to the terms of reference of the permanent Commission on Human Rights. E.S.C. Res. 5(I), supra note 17. 78  U.N. Secretariat, Commission on Human Rights Drafting Committee: Draft Outline of International Bill of Rights (prepared by the Division of Human Rights), U.N. Doc. E/CN.4/AC.1/3 (June 4, 1947). This draft outline of rights is commonly called the “Humphrey Draft” after John Peters Humphrey, the first Director of the Division of Human Rights of the U.N. Secretariat. See also infra note 225. The Drafting Committee had evolved from a smaller drafting group that worked together with the Secretariat Division of Human Rights in compiling the original proposals for a draft declaration. For details, see Weissbrodt, supra note 74, at 6–7 and nn.33–40. 79   The Drafting Committee had prepared a preliminary draft declaration and an international convention. Rep. of the Drafting Comm’ee, Comm’n H. R., 1st Sess., June 9–25, 1947, U.N. Doc. E/CN.4/21 (July 1, 1947). 80   Rep. of the Comm’n H. R., 2nd Sess., Dec. 2–17, 1957, U.N. Doc. E/600, ESCOR, Supp. No. 1, at 1 (Dec. 17, 1947). 81  The Commission adopted the re-drafted Declaration with 12 votes in favour and 4 abstentions. Comm’n H. R., 3rd Sess., May 24–June 18, 1948, Summary Record 76 77

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and Social Council considered the report of the Commission’s third session containing the text of the draft International Declaration of Human Rights.82 By that time, the final result of the inquiry launched by the United Nations Educational, Scientific and Cultural Organization (UNESCO) on the theoretical bases of human rights had also been published to inform the UN effort to draft a human rights declaration. This report had been drafted by a committee of experts appointed in 1947 to obtain the views of leading public figures and scholars across the world. The responses spanned divergent philosophical, religious, cultural, economic, social and politi­cal perspectives. In their final report, the experts found surprising convergence across the lists of basic rights and values received from around the world. The report concluded that it was “possible to draw a list of fundamental rights on which … all … are agreed” and that the rights “may be seen to be implicit in man’s nature as an individual and as a member of society and to follow from the fundamental right to live.”83 Upon ECOSOC’s transmission of the Commission’s report to the General Assembly,84 the Third Committee had an intensive discussion  before submitting the proposed Declaration to the plenary.85

of the 81st Mtg., U.N. Doc. E/CN.4/SR.81 (June 18, 1948). The Commission based its work on the report of the second session of the Drafting Committee. Rep. of the Drafting Comm’ee, Comm’n H. R., 2nd Sess., supra note 18, Add. B. For details, see note 19 and accompanying text. 82   Rep. of the Comm’n H. R., 3rd Sess., May 24-June 18, 1948, U.N. Doc. E/800, Add.1, Add.2 (June 28, 1948). 83   UNESCO Study, supra note 5, Add. II at 11, transmitting the final result of the UNESCO enquiry on the theoretical bases of human rights, drafted by a committee of experts on the basis of the various contributions to the enquiry and entitled “The Grounds of an International Declaration of Human Rights”. See also Glendon, supra note 9, 1153, 1156. 84   E.S.C. Res. 151 (VII), ESCOR, Supp. No. 2, U.N. Doc. E/1046 (Aug. 26, 1948), transmitting the draft International Declaration of Human Rights to the General Assembly together with the remainder of the report of the Commission on Human Rights which contained proposals for a petition process, draft Covenant on human rights and draft implementation measures. 85   G.A. Third Comm’ee, Rep. of the 3rd Sess., U.N. Doc. A/777, para. 12 (7 December 1948), reprinted in 1948–49 U.N.Y.B. 526–9 (recommending adoption of the draft universal declaration of human rights as Resolution A). The discussion covered more than 100 amendments in 84 meetings. Id. para. 5. For views of the process, see Eibe Riedel, Article 55(c), in 2 UN Charter Commentary, supra note 10, at 925 n.59, citing Charles Malik, The Drafting of the Universal Declaration, 86 UN Bulletin of Human Rights, No. 1, at 20–5 (1986); John Humphrey, The Universal Declaration of Human

textual elements and drafting origins of article 2237 On 10 December 1948, the General Assembly adopted the Declaration86 but sent the draft Covenant and implementation proposals back to the Council for further examination by the Commission.87 B.  The Idea of an Umbrella Article on Implementation of ESC Rights In light of the agreement that State obligations would be left out of the Declaration and reserved for a treaty, or Covenant, on human rights,88 the need for a general reference to implementation of the Declaration arose during the drafting process. In the ensuing discussion, two proposals emerged, reflecting language that ultimately became article 22 and article 28. Although there was some debate as to whether the two articles were redundant since both served as umbrella articles, support Rights: Its History, Impact and Juridical Character, in Bertrand Ramcharan, Human Rights and the United Nations – A Great Adventure 17–22 (1984). At the time the General Assembly submitted the text of the draft International Declaration of Human Rights to the plenary, article 22 was numbered 23; a single revision during adoption in the plenary re-numbered all the articles. Weissbrodt, supra note 74, at 10. 86   G.A. Res. 217 (III) A, supra note 1. 87  G.A. Res. 217 (III) E, U.N. GAOR, 3d Sess., Supp. No. 13, U.N. Doc A/810 (10 Dec. 1948), requesting ECOSOC “to ask the Commission on Human Rights to continue to give priority in its work to the preparation for a draft Covenant on Human Rights and draft measures of implementation.” In so doing, the Commission was also to give further examination to the problem of petitions to determine what action should be taken. G.A. Res. 217 (III) B, UN GAOR, 3d Sess., Supp. No. 13, U.N. Doc A/810 (10 Dec. 1948). It was not until 1966 that two treaties were adopted to address the implementing measures and obligations corresponding, respectively, to the civil and political rights and the economic, social and cultural rights recognized in the Universal Declaration. While the two treaties were adopted separately in view of the different types of implementing measures to be used, the result sought to avoid implying any divisibility or hierarchy among the rights concerned. See Turk, The United Nations and the realization of economic, social and cultural rights, in The Implementation of Economic and Social Rights, supra note 53, at 100 n.7, citing Vladimir Kartashkin, Economic, Social and Cultural Rights, in The International Dimensions of Human Rights (Vol. I) 112 (Karel Vasak and Philip Alston, eds., UNESCO 1982). 88   See Rep. of the Comm’n H. R., 2nd Sess., supra note 80. At its first meeting in September 1948, the Third Committee of the General Assembly further narrowed the scope for references to States’ obligations to implement the rights in the Declaration by adopting a resolution proposed by Egypt to limit the declaration of human rights “to the formulation of principles relating to human rights which presuppose the existence of corresponding duties on the part of States and [to] defer[] the formulation of principles relating to the duties of States for incorporation to an appropriate instrument.” G.A. Third Comm’ee, UN Doc. A/C.3/222 (Sept. 30, 1948), cited in Morsink, supra note 54, at 239–40.

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was expressed for maintaining the language of article 22 separately due to its focus on ESC rights. Although ESC rights were included in the bill of rights project from the earliest drafts of the Declaration, it was generally thought useful to ensure that the Declaration had a separate and distinctive emphasis on the implementation of ESC rights. The proposed article stressed economic, social and cultural rights which were considered to be less well known than civil and political rights, and distinguished such rights by its reference to human beings as members of organized society. The proposal was also deemed useful because it called attention to the practical implementation of ESC rights as compared generally to civil and political rights: to be fully realized, ESC rights required material assistance to be furnished by the State.89 Commission on Human Rights The idea to have an umbrella article specific to ESC rights was first suggested in the course of the examination of specific ESC rights to be included in the Declaration. In 1948, the proposal for a paragraph of that nature arose in the context of discussion within the Commission of Human Rights of a draft article on the right to work (which ultimately became article 23 of the Declaration) prepared by the Drafting Committee. One of the members of that Committee, the Indian representative, recalled some members of the Draft Committee had considered that the following should constitute a separate article or be inserted in the preamble: “(t)he State has a duty to take such measures as may be within its power to ensure that all persons ordinarily resident in its territory have an opportunity for useful work.”90 The Australian represen­ tative perceived that the question of measures to be taken would have to be examined in the light of all the economic and social rights, and not only the right to work.91 According to the Lebanese representative, the Declaration should clearly state somewhere that it was not enough to enumerate economic and social rights “but that society itself should 89   For a comparison of negative and positive obligations inherent in civil and political as well as ESC rights, see Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights 126–8 (2003). 90   Comm’n H. R., 3rd Sess., 65th mtg., June 9, 1948, at 3, U.N. Doc. E/CN.4/SR.65 (June 24, 1948) (Mrs. Mehta, India). 91   Id. at 10 (Mr. Hood, Australia).

textual elements and drafting origins of article 2239 be of such a nature as to ensure the observance of those rights. Favourable social conditions were necessary for that purpose.”92 The Egyptian delegate suggested placing the paragraph as a separate article at the beginning of the section laying down the economic and social rights, “thus establishing a general principle.”93 A discussion followed about where the provision should be included. The representative from France did not think it would be possible to include it in the preamble or in articles 2 or 3. He believed that it was “necessary to establish that the individual was entitled to demand that the State, society and international co-operation” should guarantee the rights in question. As an amendment he proposed: “… ensured by such measures taken by the State and by international co-operation.”94 The delegate from the United Kingdom likewise said that, if it was decided not to keep the paragraph in the article, a completely new text could be drafted to cover all the other economic and social rights as well.95 The delegate from Lebanon said he agreed with the French representative that greater emphasis should be given to action within the State than action by the State.96 He suggested the insertion of an article at the beginning or end of the section dealing with economic and social rights which would provide that “everyone had a right to a good social order ensuring the enjoyment of …” However, one objection to this suggestion was that it appeared to encompass all the rights in the Declaration and thus would mean that the Commission “abandoned the idea of a general article on measures to be taken to ensure the enjoyment of social and economic rights.”97 In order to pursue the idea, a drafting sub-committee was appointed to formulate a special article “concerning the measures to be taken in

  Id. at 3 (Mr. Malik, Lebanon).   Id. at 4 (Mr. Loutfi, Egypt). 94   Id. (Mr. Cassin, France). 95   Id. (Mr. Wilson, United Kingdom). 96   Id. at 5 (Mr. Malik, Lebanon). 97   Id. at 10 (Mr. Fontina, Uruguay). Another disputed matter was whether all economic and social rights should be grouped together in a single article, preceded by a provision similar to that just discussed. The representative of the Ukrainian SSR thought this was not acceptable “in view of the fact that a separate article was devoted to each separate right throughout the other parts of the Declaration. Id., at 6; Mr. Hood (Australia) had suggested the grouping together of these rights. Mr. Lopez (Philippines) had no objection to “the insertion of a new article covering all economic and social rights.” Id. at 6. 92 93

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order to ensure enjoyment of economic and social rights.”98 The Committee reported out a unanimously-adopted text to serve “as an article of general principle to be added at the end of the Declaration” which did not specifically refer to economic, social and cultural rights.99 However, the sub-Committee also forwarded to the Commission a second article suggested by the French member of the sub-committee who, dissatisfied with the result of the subcommittee, had proposed a specific text to precede the articles on social and economic rights. Serving as the embryo of article 22, that text read: “Everyone as a member of society has the economic, social and cultural rights enumerated below, whose fulfilment should be made possible in every State separately or by international collaboration.”100 On 10 June 1948, a debate on the French text followed. Opinion was divided on whether to adopt a distinctive article addressing the method of fulfilment of social and economic rights separately from the text proposed by the sub-committee that covered all rights in the Declaration. While the representative from Lebanon believed it should be clearly stated somewhere in the Declaration that it was not enough to enumerate ESC rights but that society itself should be of such a nature as to ensure their observance through favourable social conditions, he and the representative of the United Kingdom stated that a majority of the sub-committee felt that the first text covered the second and, therefore, made it redundant; a special reference to ESC rights would have the unacceptable effect of favouring them in comparison with other rights and freedoms in the Declaration.101 “To introduce     98   Id. at 11. The sub-committee consisted of the representatives of France, Lebanon, the United Kingdom, the Union of Soviet Socialist Republics (USSR), and the United States. No summary records of its discussions are available.     99   The text, which eventually became article 28, read: “(e)veryone has the right to a good social and international order in which the rights and freedoms set out in this Declaration can be fully realized.” For the meaning and role of article 28, see infra Chapter II.B. 100   Comm’n H. R., Report of the Sub-Comm’ee on Additional Articles for the Draft International Declaration, 3rd Sess., May 24-June 18, 1948, at 2, U.N. Doc. E/CN.4/120 (June 10, 1948). The original proposal of the French member, Mr. Cassin, had been drafted in English and was read into the record. Comm’n H. R., 3rd Sess., 67th mtg., June 10, 1948, at 2, U.N. Doc. E/CN.4/SR.67 (June 25, 1948). The proposal was submitted along with a text proposal that eventually became article 28. The Sub-Committee consisted of the representatives of France, Lebanon, United Kingdom, United States, and Uruguay. 101   U.N. Doc. E/CN.4/SR.65, supra note 90, at 3 (Mr. Malik, Lebanon); Comm’n H. R., 3rd Sess., 71st mtg., June 14, 1948, at 3–4, U.N. Doc. E/CN.4/SR.71 (June 28, 1948) ) (Mr. Wilson, United Kingdom).

textual elements and drafting origins of article 2241 into a covering article on social and economic rights the question of the method of applying those rights gave them priority.”102 The Commission, in their view, “should avoid giving the impression that the fulfilment of social and economic rights was more important than that of other rights.”103 While there was a “declaratory statement of the rights and freedoms of human beings, there was no statement to the effect that society must be so organized as to guarantee those rights and freedoms to the individual … Consequently, the adoption of the French proposal would mean that economic and social rights, the importance of which none could deny, would be given preferential treatment over rights of equal importance.”104 Supporting the proposal for an article specific to the realization of ESC rights, the representative of the American Federation of Labor, as a recognized non-governmental organization, emphasized that the French text corresponded more closely to the task of the subcommittee, which had been to formulate an article dealing specifically with ESC rights.105 The Australian delegation expressed itself in similar terms, finding the text proposed by France of greater importance and scope than the one agreed upon by the sub-committee. It would only vote for the first text, that of the sub-committee, when that did not exclude the French proposal. The importance of the economic, social and cultural rights of the individual should be established by the introduction of a “prefatory” article. The text proposed by the French representative was “very complete in the sense that it stated the rights of the individual and indicated the State, as an entity or in collaboration with other States, as the guarantor of such rights.”106 The Belgian representative likewise supported the French text (leading to article 22), saying that his delegation would regret it if only the first article were adopted. The first article had “an altogether general bearing while the second stressed, to some extent, social, economic and cultural rights which were less well known.”107 In response to the concerns expressed by   U.N. Doc. E/CN.4/SR.71, supra note 101, at 4 (Mr. Wilson, United Kingdom).  U.N. Doc. E/CN.4/SR.67, supra note 100, at 5–6 (Mr. Malik, Lebanon and Mr. Wilson, United Kingdom: this represented the view of the majority of the sub-committee). 104   Comm’n H. R., 3rd Sess., 72nd mtg., June 14, 1948, at 4–5, U.N. Doc. E/CN.4/ SR.72 (June 24, 1948) (Mr. Malik, Lebanon). 105   U.N. Doc. E/CN.4/SR.67, supra note 100, at 6 (Ms. Sender, American Federation of Labor). 106   U.N. Doc. E/CN.4/SR.67, supra note 100, at 6 (Mr. Jockel, Australia). 107   Id. at 7 (Mr. Steyaert, Belgium). 102 103

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Lebanon and the United Kingdom, the representative of the Government of Australia called attention to a basic difference between the articles on social and economic rights, which “viewed human beings as members of organized society,” and the other articles, and believed that difference should be noted in the Declaration. He supported the French proposal, and suggested that it be strengthened by replacing “should be made possible” by “should be ensured”,108 resulting in the wording “whose fulfilment should be ensured in every State.” In further justification of a separate article to address the particular nature of ESC rights, the French representative maintained that “economic and social rights, in order to be fully realized, required material assistance to be furnished by the State – a practical difference which the Declaration could not ignore.”109 The full realization of economic and social rights “required material assistance to be furnished by the State – a practical difference [from civil and political rights] which the Declaration could not ignore.” While the draft text on “fundamental human rights did not contain a guarantee because rights to life and liberty were unconditional, the realization of economic and social rights, on the other hand, involved material assistance on the part of the State, and therefore required a guarantee.” He believed that “the Commission should follow the example to be found in all constitutions adopted in recent years, and should treat those rights separately from the rights of the individual.” He said there was no intention to “place undue emphasis on such rights; the intention was merely to recognize their importance.”110 Following a skilled initiative led by the French and United States representatives through which a number of other delegations’ suggestions were incorporated,111 the Commission put to the vote an article with the following wording: “Everyone as a member of society has the right to social security and is entitled to the realization of the economic, social and cultural rights enumerated below, in accordance with the

  U.N. Doc. E/CN.4/SR.72, supra note 104, at 2–3 (Mr. Hood, Australia).   Id. at 4. 110   Id. at 4–5 Mr. Cassin (France). A compilation of the constitutions of almost all U.N. member governments was appended to the Secretariat Outline of a draft declaration prepared by the Division of Human Rights of the U.N. Secretariat, along with proposals of governments, non-governmental organizations and trade unions, and scholarly individuals. The Secretariat’s document was prepared for use by the Drafting Committee. See supra note 78. 111   For details, see Chapter III.C.2.2. 108 109

textual elements and drafting origins of article 2243 organization and resources of each State, through national effort and international co-operation.”112 The article that evolved into article 22 thus appeared in this form in the draft international declaration of human rights sent to the Council, which was forwarded on to the General Assembly for consideration.113 Third Committee By the time the ESC rights “umbrella” article of the draft Declaration reached the Third Committee of the General Assembly, it had been clarified that only the Declaration, and not the draft Covenant and proposals for implementation measures, were to be considered by that session of the General Assembly. Professor Cassin, again delegated by France, explained the discussions within the Commission and pointed out that the social rights which the Commission had had before it were “different in character from any rights outlined in earlier declarations of the rights of man … They all had in common the fact that national effort and international co-operation were needed for their ­realization.” He further asserted that “[i]n order to avoid repetition of some such statement in every article, the Lebanese and French delegation had proposed the text of article 20 [now 22], to serve as an introduction to the subsequent articles. It was not intended as a statement of any right but as an “umbrella” article.”114 Prior to the Third Committee’s adoption of the article which became article 22,115 the Ukrainian SSR delegate 112   The phrase “Everyone … has the right social security” was adopted separately by 15 votes (yes), with two abstentions, and then the text of the entire draft article was adopted by 12 votes (yes), with 5 abstentions. U.N. Doc. E/CN.4/SR.72, supra note 104, at 10. 113  In the so-called Lake Success Draft prepared at the third session of the Commission on Human Rights in 1948 and sent to the Third Committee of the General Assembly, the word “enumerated” had been replaced with “set out below” and the second half re-ordered to read” and is entitled, through national effort and international co-operation, and in accordance with the organization and resources of each state, of the economic, social and cultural rights set out below.” Rep. of the Comm’n H. R., 3rd Sess., supra note 82, at Annex A, article 20. 114   G.A. Third Comm’ee, U.N. GAOR, 3rd Sess., 137th mtg., at 499, U.N. Doc. A/C.3/ SR.137 (Nov. 15, 1948) (Mr. Cassin, France). The reference to not being “a statement of any right” appears in context as an attempt to clarify that article 22, unlike the articles which followed, did not address any one specific ESC right but rather addressed the nature and realization of ESC rights as a whole. 115   The Canadian representative explained that his delegation had decided to abstain in the vote on the umbrella article and the three articles following it but wished to emphasize that this abstention should not be interpreted as opposition to the principles set forth in these articles. G.A. Third Comm’ee, U.N. GAOR, 3rd Sess., 138th mtg., at 500–1, U.N. Doc. A/C.3/SR.138, 15 November 1948, at 500–1 (Mr. Maybank, Canada, a federalism problem).

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pointed out that the article, because of its unique position, provided a link between the political rights and the social and economic rights in the Declaration. Such a position, in his view, would best ensure the practical application of the social and economic rights recognized in the Declaration.116 Following a series of discussions, the idea was approved to have an umbrella article on ESC rights in addition to an article (now 28) on realization of all the rights in the Declaration. C.  Ordinary Meaning, Context, and Drafting History of the Article’s Components This section traces the drafting origins of the phrases and terms that became the building blocks of article 22. The phase of drafting at the Commission of Human Rights and its working groups are dealt with separately from the discussions upon review of the draft at the Third Committee of the UN General Assembly. 1.  “Everyone, as a member of society” Article 22 opens with the phrase “everyone, as a member of society” in a bold recognition of a universal right to “social security” (the latter term is discussed in the next section). The phrase “as a member of society” seems to explain rather than limit the word “everyone.” Had the formulation been “every member of society” instead of “everyone, as a member of society,” the issue of what a society entails and who belongs to it could arise. However, the use of a comma with “as a member of society” after “everyone” seems to partially resolve this by clarifying that everyone is already a member of society. In the view of the Argentine representative during the drafting process, the words “were superfluous since everyone was automatically a member of society.”117 Nonetheless, the expression lends a sense of commonality and shared societal objectives to be achieved in the realization of a universal right to social security based on an entitlement to certain indispensable ESC rights. It also implicitly invokes the duties of membership in society that cut across the rights recognized in the Declaration, as particularly emphasized in article 29. Article 29 recognizes that it is the “community alone in which the free and full development of the personality is   Id. at 510 (Mr. Demchenko, Ukranian SSR).   U.N. Doc. A/C.3/SR.137, supra note 114, at 497 (Mr. Corominas, Argentina).

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textual elements and drafting origins of article 2245 possible,” and explains, in its paragraphs 2 and 3, the corollary that “[e]veryone has duties to the community”. As discussed in Chapter II, the article’s recognition that respect for one’s own rights entails a duty of respect for the rights of others reveals that society in this sense is the community. The mutuality of relationship between a person and the community similarly lends the context for understanding that “everyone, as a member of society” in article 22 refers to the individual yet universal claim to a guarantee of protection from society through the realization of ESC rights “indispensable” to dignity and self-development (for example, provision of means for subsistence if one’s own efforts are insufficient). The reference to “member of society” likewise invokes the sense of duties owed by members to their society. At the time the Declaration was drafted, the principle of mutuality in human rights had emerged as a central theme of the report concluded by the experts who participated in the UNESCO inquiry into perceptions on the functioning and scope of human rights around the world. In drawing up a list of fundamental rights on which “all men are agreed”, the experts famously concluded, as noted above, that the rights “may be seen to be implicit in man’s nature as an individual and as a member of society and to follow from the fundamental rights to live.” In the expert committee’s view, the dual nature of the well-spring of these rights – that of being an individual, and a member of society – was to bring not only self-fulfilment but also the capability and duty to respect the rights of others and advance the common good. The final report stated that the rights “are claims which all men and women may legitimately make, in their search, not only to fulfil themselves at their best, but to be so placed in life that they are capable, at their best, of becoming in the highest sense citizens of the various communities and in those communities of seeking to respect the rights of others, just as they are resolute to protect their own.”118 For some delegates who participated in the drafting process, the relationship of the individual to society was even more compelling in the context of ESC rights than of civil and political rights. This  UNESCO Study, supra note 5, App. II, at 3 (English). Among those who responded to the UNESCO inquiry, Mahatma Gandhi wrote that “the very right to live accrues to us only when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define the duties of Man and Woman and correlate every right to some corresponding duty to be first performed.” Id., at 3. See also Richard McKeon, The Philosophic Bases and Material Circumstances of the Rights of Man, in UNESCO Study, supra note 5, discussed in Glendon, supra note 9, at 1156. The wording of the report invokes the balance in article 29 of the Declaration. 118

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­ erception was associated with a widely shared understanding that ESC p rights required guarantees that society would take affirmative m ­ easures by, for example, providing material assistance where necessary to realize those rights. In the discussion that eventually led to article 23 (workrelated rights), the Rapporteur of the Commission remarked that, in contrast to the rights of the individual as such, by which he meant the civil and political rights, the Commission was now engaged in discussing the rights of the individual as a member of society. He found it desirable to have a preambular statement or separate article in the Declaration calling attention to the need for establishing the kind of economic and social conditions that would guarantee those rights. In his view, what was necessary was to define the standard of an ideal society in which the individual could develop and in which his rights could be guaranteed.119 The representative of the Government of Australia called attention to a basic difference between the articles on social and economic rights, which “viewed human beings as members of orga­ nized society,” and the articles on civil and political rights. He believed that difference should be noted in the Declaration.120 From such statements, we can understand that the reference to “society” serves to underscore the Declaration’s emphasis that, not only governments, but also individuals, groups, and social institutions play a role in the implementation of human rights in general, and ESC rights in particular.121 2.  “the right to social security” The reference to “social security” in the opening phrase that “everyone … has a right to social security” is perhaps the most puzzling and easily misunderstood clause of article 22. It raises the question whether the drafters meant to refer to “social security” in a technical sense or whether there is some overarching meaning connoted. A consideration of its plain meaning does not resolve the question, although the umbrella position of the article in the context of the Declaration, and its invocation of fundamental values like dignity and free development of the personality, suggest that this opening reference has a broader 119   Comm’n H. R., 3rd Sess., 64th mtg., June 8, 1948, at 17, U.N. Doc. E/CN.4/SR.64 (June 17, 1948) (Mr. Malik, Lebanon). While the context of these statements led first to the mitosis of article 28 from article 23 (see U.N. Doc. E/CN.4/SR.65, supra note 90), article 28 covered all rights, not only ESC rights. For the further decision to have a separate covering article for ESC rights, see supra Chapter III.B. 120   U.N. Doc. E/CN.4/SR.72, supra note 104, at 2 (Mr. Hood, Australia). 121   See Glendon, supra note 9, at 1169–70. For further discussion, see infra Chapter IV.B.

textual elements and drafting origins of article 2247 meaning than would be commonly understood by the term “social security”. As a bridge to the articles that follow on specific ESC rights, the concepts of article 22 cut across a range of specific rights and this face suggests that the term could have some overarching or crosscutting role. The sweeping affirmation of an entitlement to realization of a whole set of ESC rights – those indispensable to dignity and free development of the personality – reinforces the sense that “social security” should not readily be taken in a limited, technical meaning since the article appears to address the realization, through national and international means, of a number of rights beyond one specific cluster dealing with technical aspects of protection against contingencies. Rather, its juxtaposition between the right to “social security” and the entitlement to ESC rights suggests that the realization of all the ESC rights somehow follows from the opening right. In this sense, the implication arises that “social security” must be the security that flows from the assurance of certain conditions incumbent for dignity and the human personality. 2.1  Relationship of Article 22 and Article 25 Nor is the meaning of “social security” in article 22 resolved by reference to article 25 of the Declaration. In wording that may even appear to present duplication, or at least ambiguity, with article 22, article 25 refers to the “right to security” in the event of contingencies that result in the loss or reduction of income or other subsistence support, as follows: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” The historical legal context and travaux préparatoires clarify that, in contrast to article 25’s technical references, the term “social security” in article 22 was intended to be used in a general principled sense, partly as a way of compensating for lack of use of the term in a technical sense in article 25.122 Indeed, the term “social 122   In the first paragraph of article 25, the first clause referring to a standard of living may be seen as implying a general right to assistance to meet basic subsistence needs, while the second clause using the term “security” may be read to refer to the technical concept of social security without directly using the term. The term in its context appears to invoke a right to some means of income or other assistance in conditions of unemployment or other lack of livelihood in circumstances beyond the individual’s control. However, strictly speaking, it may be more precise to regard article 25

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security” generated significant debate in the drafting process of the texts that became article 22 and article 25. In the end, the “right to social security” in article 22, while encompassing the concept of income security embedded in article 25, carries an independent significance approaching the order of social justice. As the discussions reported in this section infer, the reference “social security” aimed to guarantee the social protection from insecurity, or injustice, that is necessary for well-being.123 Prior to the drafting of the Declaration, the term “social security” had featured in both general and technical meanings in several notable pronouncements. In the growing context of World War II, the 1941 joint declaration issued by the United States and the United Kingdom commonly known as the Atlantic Charter, which largely contributed to the post-war international legal framework involving the birth of the United Nations, established a vision for the post-war world based upon a set of common principles. Among these principles was the “desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor stan­ dards, economic advancement and social security”.124 Several years later in 1944, the International Labour Organization adopted its authoritative Declaration of Philadelphia, which became annexed to its Constitution, reaffirming the war against want and aiming to achieve, among other goals, the extension of social security measures to provide a basic income to all in need.125 That same year, the International Labour Organization (ILO) adopted a guidance instrument on the subject, the ILO Recommendation on Income Security (No. 67),126 which as a whole as recognizing the right to an adequate standard of living, to be realized when necessary through social assistance and, as an additional aspect, through the related right to social security, to be realized through social insurance or other means of income security. 123   For the legal nature of the reference, and comparisons of this conclusion with previous commentaries, see infra Chapter IV.A.1. 124   Declaration of Principles, Known as the Atlantic Charter, by the President of the United States and the Prime Minister of the United Kingdom, Aug. 14, 1941, in Message of the President (Roosevelt) to the Congress, Aug. 21, 1941, House Doc. No. 358, 77th U.S. Cong., 1st sess., reprinted in IV Documents on American Foreign Relations, supra note 26, at 10, cited in Goodrich and Hambro, supra note 13, at 569. 125   Declaration of Philadelphia, supra note 36, Parts I(d), III(f). 126  Recommendations of the International Labour Organization (ILO) serve to guide the law and practice of member States and elaborate, in many instances, the provisions of Conventions which constitute binding obligations when ratified. Under the ILO Constitution, Recommendations can be the basis of reports submitted by states at the request of the Governing Body of the ILO. ILO Constitution, supra

textual elements and drafting origins of article 2249 recognized that “income security schemes should relieve want and prevent destitution by restoring, up to a reasonable level, income which is lost by reason of inability to work (including old age) or to obtain remunerative work or by reason of the death of a breadwinner” through compulsory social insurance schemes or other social assistance to provide for needs not otherwise covered. The drafting history surrounding articles 22 and 25 of the Declaration reveals that the term “social security” in article 22 was proposed in a general humanitarian sense after the drafters decided not to keep it in its technical sense in article 25.127 When the representative of France reintroduced the term “social security” during the discussion of what eventually became article 22, a large number of delegations supported its use on the understanding that “social security” in the context of the umbrella article had a distinctive meaning of its own, and was not intended in the limited sense of social insurance and social assistance schemes alone. Indeed, the various proposals for amendment of the term in the course of discussing the draft of what became article 22 all sought a formulation that would more accurately signal the fundamental and general meaning intended of “social security” in its new placement in the Declaration (no longer in article 25). Although none of the specific proposals to refine the reference met with success, all of them sought to clarify that the term “social security” had a broad scope encompassing a fundamental guarantee of economic and social circumstances that would protect the individual’s well-being. As discussed note 36, art. 19 (b). The ILO Income Security Recommendation, 1944 (No. 67) and ILO Medical Care Recommendation, 1944 (No. 69) establish guiding principles for a universal approach to social security contingencies involving loss of income and medical care, respectively. The International Labour Conference in 2011 decided to consider the possibility of a new Recommendation that could contribute to a process of advancing access to essential social services and income security for all by providing for comprehensive social security coverage on the basis of specific fundamental principles and objectives including universality of coverage, social solidarity, certainty and regularity of support, oversight by the persons protected, and the primary role of the State. ILO, Resolution concerning the recurrent discussion on social protection (social security), I.L.C. Prov. Rec. 24, at 66, 100th Sess. (2011); see also ILO, General Survey concerning social security instruments in light of the 2008 Declaration on Social Justice for a Fair Globalization, I.L.C. Report III (1B) and Add., at 20–2, 100th Sess. (2011). See also ILO, Report of the Tripartite Meeting of Experts on the Right to Social Security, discussed in ILO Doc. No. GB.306/17/2 (ILO, 2009), Add. (summarizing the fundamental right to social security for everyone in relation to certain needs and risks). 127   The concept remained in article 25, however, and more closely conforms to the traditional meaning of social security as insurance against risk and welfare schemes, and to the subsequent use of the term in practice.

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below, the term was studied rigorously, submitted to a vote both at Commission level and in the Third Committee, and ultimately emerged as one of the leading elements of the vision in article 22 of a socially just world in which everyone was to be guaranteed protection from insecurity through economic and social conditions enabling a life of dignity and well-being. Commission on Human Rights The circumstances surrounding deletion of the term “social security” in what is now article 25 shed some light on the perspective in which it was eventually reintroduced into article 22. In May 1948, the Drafting Committee considered various dimensions of the term “social security” for the purpose of an article on social security (now article 25). The Committee had before it a draft for that article submitted by the representative of France, which read as follows: “Everyone has a right to social security. The State has a duty to maintain or ensure the maintenance of comprehensive measures for the security of the individual against various social risks. In particular, the individual shall be guaranteed against the consequences of unemployment, disability, old age, and the loss of livelihood in circumstances beyond his control. Mothers and children shall be granted special care and assistance. Everyone without distinction as to economic or social conditions has the right to protection of his health by all the appropriate means relating to food, clothing, housing and medical care to as great an extent as the resources of the State or community permit. It is the duty of the State and the community to take all adequate health and social measures to meet the responsibilities incumbent upon them.”128 Building on this draft, the Chilean representative, among others, supported the suggestion that the right to health should be mentioned in the context of the article on social security.129 The representative of the Union of Soviet

128  U.N. Secretary-General, Comments from Governments on the Draft International Declaration on Human Rights, draft International Covenant on Human Rights and the Question of Implementation, Communication received from the French Government, at 5, U.N. Doc. E/CN.4/82/Add.8 (May 6, 1948). 129   Comm’n H. R., Drafting Committee, 2nd Sess., 42nd mtg., May 20, 1948, at 13, U.N. Doc. E/CN.4/AC.1/SR.42, at 12 (27 May 1948) (Mr. Santa Cruz). Mr. Cassin pointed out that the French Government in its draft had linked the right to health and social security. Id. at 13, referring to the French draft article, E/CN.4/82/Add.8, supra note 128. The United States delegation also supported a reference to the right to health under the article on social security. “Social security might however not be understood to include all public health measures.” Id. at 14 (Mrs. Roosevelt, United States).

textual elements and drafting origins of article 2251 Socialist Republics (USSR) stressed that the Declaration must contain clauses recognizing the right of the family to a “dignified standard of living”, the right to medical care and to adequate housing.130 While a certain level of consensus eventually emerged on the scope of the protections to be covered by the article (now 25), the diverse means for ensuring social security generated a good deal of controversy and debate. In favouring the approach of the French delegation, the Chilean representative stressed that social security meant much more than social insurance and “could be secured by direct state action without social insurance.” Protection against social risks, which he saw reflected in the French draft, was one form of social security while protection against disease was another. He stated that the article, as drafted by the French delegation, “was especially important for countries where the standard of living was low and the rate of disease and mortality very high, as in post-war Europe, many parts of Asia and the majority of the Latin American States.”131 In a veiled criticism of certain schemes that required workers’ contributions, the representative of Byelorussia “disagreed with the practice followed in certain countries whereby workers themselves were required to pay their share of the cost of social insurance.”132 In June 1948, a debate on the varying national systems of “social security” and the precise scope of the term “social security” marked the Commission’s discussion of a new draft of the article (now article 25), prepared by the drafting sub-committee. The new draft read: “Everyone has the right to social security. This includes the right to a standard of living and social services adequate for the health and well-being of himself and his family and to security in the event of (against the consequences of) unemployment, sickness, disability, old age or other lack of livelihood in circumstances beyond his control.”133 Upon a request for clarification of the word “security” by the USSR representative who 130   Id. at 14 (Mr. Pavlov, USSR). The Chairman said that the drafting sub-committee would take his suggestions into account, and pointed out, as a representative of the United States, that, in her country, the poor received free medical aid and, although the idea of socialized medicine was not generally accepted, several hospital insurance schemes were being tried out. Id. at 15. 131   Mr. Santa Cruz (Chile), E/CN.4/AC.1/SR.42, at 13, 14. He believed the article “would not greatly affect States where a higher standard of living existed.” 132   Comm’n H. R., 3rd Sess., 66th mtg., June 9, 1948, at 13, U.N. Doc. E/CN.4/SR.66 (Mr. Stepanenko, Byelorussian SSR). 133   Comm’n H. R., 3rd Sess., 70th mtg., June 11, 1948, at 7, U.N. Doc. E/CN.4/SR.70 (June 21, 1948).

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believed there should be a mention of the term “social insurance”,134 the Chair considered that the words “everyone has the right to social security” meant that “everyone had a right to a standard of living and social services adequate for the health and well-being of himself and family.” The representative of the United Kingdom (U.K.) understood that medical assistance and housing were included in the broad terms used in the new text135 while the term “security”, he said, referred to security against unemployment and the like. However, he was against use of the term ‘social security’ because, in his country, the meaning of that term went far beyond that of the word “security.” Following along these lines, the representative of the United States suggested that the words “necessary social services and” should be inserted before the word “security” to make clear that the term “social security” encompassed “the right to services as well as to economic protection.”136 The U.S. amendment was supported by the Australian, Belgian, Indian and British representatives.137 Referring to the new text of what was to become article 25, the representative of the International Labour Office, the Secretariat organ of the ILO, believed that the reference at the start to social security was placing a new definition on the words “social security” by giving it “the same meaning as the right to a standard of living and adequate social services, etc.” He considered that the words “social security” had “too wide a definition only when they appeared at the beginning of the paragraph … [a]s they at present appeared in the middle of the paragraph they covered what was simply a fact in the legislation of most countries. The Declaration was not defining social security, it was merely saying what should be provided under social security.” The words “social security” as used in the draft text included all measures of social insurance. He suggested that the words “protection in the event of ” replace the words “security in the event of,” so that the paragraph would read: “Everyone has the right to a standard of living, and to social services adequate for the health and well-being of himself and family, and to social security including protection in the event of unemployment,

  Id. at 8, 11 (Mr. Pavlov, USSR).   Id. at 7 (Mr. Wilson, United Kingdom). 136   U.N. Doc. E/CN.4/SR.66, supra note 132, at 13 (Mrs. Roosevelt, United States). 137   Id. at 13, 14. 134 135

textual elements and drafting origins of article 2253 sickness, invalidity, old age and the loss of livelihood in circumstances beyond his control.” (Suggested change italicised.)138 The Chairman thought it “unwise” to use the term “social security” with a different meaning than that used by the ILO.139 While the Belgian representative supported the amendment suggested by the ILO, the United Kingdom representative stressed that “it might be dangerous to use the term “social security” as it did not mean the same thing in all countries.” However, according to the representative of France, “(t)he Commission would not be carrying out its task in a proper manner if those words were omitted from the Declaration.”140 In its next meeting, the Commission had before it a revised draft prepared by the ILO, with the words “and to social security” appearing in brackets. The ILO-revised draft read: “Everyone has the right to a standard of living, and to social services adequate for the health and well-being of himself and family, [and to social security] including protection in the event of unemployment, sickness, invalidity, old age and the loss of livelihood in circumstances beyond his control.”141 The representative of the USSR proposed that the draft be amended to reflect the words “social insurance, housing and medical care” and “the right to social security at the expense of the State or of the employer”.142 These proposals eventually led to rejection of both the terms “social insurance” and “social security”. In the discussion on the drafts tabled, it became clear that various countries took different approaches to social security and, more particularly, to social insurance.143 The representative of France observed 138  U.N. Doc. E/CN.4/SR.70, supra note 133, at 9, 11 (Mr. Metall, International Labour Organisation). 139   Id. at 9. 140   Id. at 11. 141   U.N. Doc. E/CN.4/71, supra note 101, at 2. 142   U.N. Doc. E/CN.4/SR.70, supra note 133, at 8, 11 (Mr. Pavov, USSR). The full text proposed by the USSR was read into the record and discussed with the ILO proposed text. U.N. Doc. E/CN.4/71, supra note 101, at 4–5. 143   Id. at 2, 3 (representatives of United States, United Kingdom, France and others). The ILO representative viewed the USSR amendment as raising “insurmountable difficulties” because methods of social insurance varied by country. He said that “social insurance could be financed in at least seven distinct ways, by the State, the employer, the employee or by part contributions by two or all three of the above.” He suggested the wording: “and to social insurance including protection in the event of unemployment” since the reference to “social insurance” seemed appropriate when defining “the means by which it was proposed to put social security into effect. Id. at 9.

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that, while his earlier proposal that used the term “social insurance” had been rejected by the Commission as too narrow, the term “social security” used in the ILO text was broader and thus preferable.144 While the U.K. representative agreed that the term “social insurance” had a much narrower meaning than “social security,” the meaning of the latter term differed in various countries and the group’s discussion on social security and insurance had convinced him “that it was inadvisable to include those concepts in the Declaration in view of the difficulties of interpretation to which they were bound to give rise … If it had only a vague meaning it could be accepted, but in practice it was not universally applied, as the ILO representative had pointed out to the Commission.”145 However, the Australian representative, like his French counterpart, thought the term “social security” should be retained because it was “very useful and, if it were left out, the clearness of the rest of the text would suffer, and it would be left uncertain where the protection would come from in the cases listed at the end of the paragraph. The article should contain the concept of social security which should, in every State, be the basis of the “protection” mentioned in the text.”146 Upon a vote, the ILO text for the article (now 25) was adopted by the Commission in its amended form, without the term “social security”, by 8 votes to none and 6 abstentions. It has been suggested that the deletion of “social security” from the final version of article 25, upon which the vote was taken, was due to a clerical error that deleted the word “social” before “security” in the wording of an amendment proposed by the U.K. representative. Nonetheless, the delegates’ statements following the vote reflected a shared opinion that the U.K.’s proposed amendment had omitted the term “social security”, and no clarification or correction on this point was made by the U.K. proponent in the summary of the meeting.147 The French representative,   Id. at 5 (Mr. Cassin, France).   Id. at 6, 11 (Mr. Wilson, United Kingdom). At this point, the Summary Record reflects that Mr. Wilson proposed as a “compromise” to replace the words “including protection” in the ILO text by “and to social security”, a result at odds with his statement that it was inadvisable to include the term. While various interpretations of his meaning have been suggested it may simply be that, as at other points in the discussion, the U.N. Secretariat erred in drafting the summary record and the error was not corrected by the alternating U.K. representatives. See supra text accompanying note 145. 146   Id. at 6 (Mr. Hood, Australia). 147   See Morsink, supra note 54, pp. 201–3, concluding that, in proposing a compromise, the U.K. representative suggested to keep the term “social security” while deleting “including”, a result which would have linked social security with unemployment and a list of other contingencies for income security schemes. However, in light 144 145

textual elements and drafting origins of article 2255 Mr. Cassin, explained that he had abstained from voting because the text contained no reference to social security, to which the Australian representative agreed. Mr. Cassin declared that “world public opinion would fail to understand why such an omission had been allowed to occur,” and he reserved the right to raise the whole question again when the “umbrella” clause came under discussion.148 2.2  “social security” in Article 22 In view of the deletion of “social security” in the text that had become article 25, the French representative brought up again the need for such a term during the deliberations of the Commission on the French proposal for the “umbrella clause” which has become article 22. The French proposal was to have an article that preceded the articles on economic and social rights which read as follows: “Everyone as a member of society has the economic, social and cultural rights enumerated below, whose fulfilment should be made possible in every State separately or by international collaboration.”149 In the French representative’s view, “it would be a grave error to omit from the Declaration the modern and widely accepted concept of social security.” He believed that mention of it could be made in the umbrella article and, since that article was “of a general nature, the precise interpretation of the concept would be left to the individual states.”150 The French proposal for article 22 arrived at the Commission for discussion together with another text, unanimously accepted by the drafting sub-Committee, which, as amended, eventually became of the report of the discussion that followed the proposed amendment of the U.K. representative, it seems plausible that the clerical error slipped into the record of proceedings recounting the proposal for the amendment, rather than into the text of the amended wording. As the proponent had specifically objected to the term several times during the debate, its use would have been an abnegation rather than a “compromise”. The ILO position is also notable, holding that the simultaneous adoption of the Chinese proposal to add “food, clothing, housing and medical care” would make it inapposite to use the phrase “and to social security” “as the principal elements of social security would have been listed already.” U.N. Doc. E/CN.4/SR.71, supra note 101, at 9. 148   Id. at 15 (Mr. Cassin, France). 149   U.N. Doc. E/CN.4/120, supra note 100 (original in English). The proposal was submitted to the Commission as an additional suggestion of the French representative from a drafting sub-committee composed of the representatives of France, Lebanon, the United Kingdom, the United States, and Uruguay. 150   U.N. Doc. E/CN.4/SR.72, supra note 104, at 4. See text accompanying note 138 (ILO representative noting that beginning an article with a reference to social security would lend a broad meaning to the term).

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article 28: “Everyone has the right to a good social and international order in which the rights and freedoms set out in this Declaration can be fully realized.”151 Following a debate on whether a separate article on the implementation of ESC rights was desirable and an affirmative vote,152 the discussion focused on whether the term “social security” should be included in the text. The United States representative, having forwarded a proposal to amend the French proposal,153 agreed that the words “social security” should be included in the text of the umbrella clause since they did not appear in any of the articles dealing with social and economic rights. She suggested that the covering article should start with the words “Every person has the right to social security and … etc.”154 However, the representative of China, supported by the representative of Lebanon, preferred the original phrase “economic, social and cultural rights enumerated below” which, in their view, contained a general statement, “the meaning of which was wider than social security.”155 The reasons expressed for maintaining a reference to “social security” revealed that the Commission members in support of the term intended to give it a broad meaning. Professor Cassin, the French representative, said that the term “social security”, which had originated in English-speaking countries, marked a phase in human progress and its inclusion would strengthen the whole document.156 The Uruguayan representative indicated that he  had voted for a covering article “in the hope that it would contain a reference to social security” since, in his view, the concept was of paramount importance and had been 151   See supra Chapter III.B. The original version of article 28 had been unanimously accepted by the Sub-Committee to come at the end of the Declaration. U.N. Doc. E/ CN.4/120 supra note 100. 152   The idea of a covering article for the ESC rights was accepted by a vote of 10 (yes) to 6 (no). The fear that a separate article would indicate a bias for ESC rights (Lebanon) was countered by the insistence that, consistently with constitutional treatments of these rights, some guarantees were required since, unlike civil and political rights, material assistance was needed for their implementation (France). U.N. Doc. E/CN.4/ SR.72, supra note 104, at 4–5. See discussion of articles 22 and 28 in text accompanying notes 64–8. 153   The original U.S. proposal of amendment read: “Every person, as a member of society, has the economic, social and cultural rights enumerated below, and is entitled to their realization, through national effort and international co-operation, in accor­ dance with the social system and economic and political organization in each State.” U.N. Doc. E/CN.4/SR.72, supra note 104, p. 7. 154   Id. at 9 (Mrs. Roosevelt, United States). 155   Id. at 7–8 (Mr. Chang, China, supported by Mr. Malik, Lebanon). 156   U.N. Doc. E/CN.4/SR.72, supra note 104 (French version: « qui correspond à une phase des progrès humains »). The French representative intended the term to carry a humanitarian rather than technical meaning. See infra text accompanying note 168.

textual elements and drafting origins of article 2257 recognized as such in the Bogotá Declaration.157 He said that he would vote for a reconsideration of the previously discussed articles on social rights if no reference was made to the concept in the covering article.158 The representatives of the Philippines and Yugoslavia supported this statement.159 It was thought, however, that it would be better to include a reference in the covering article than to rekindle the controversies over a previously discussed article again (see discussion of article 25 earlier in this section). The Chairman then read the proposed text, as amended by the representatives of India, the United Kingdom and China which, in pertinent part, started the umbrella article with the phrase: “everyone as a member of society has the right to social security and is entitled to the realization of the economic, social and cultural rights …”160 The representative of China wondered “whether it was the intention of the Commission, by placing the covering article at the head of the articles dealing with economic and social rights, to create for them the name of “social security articles”.”161 Upon a separate vote requested on the clause referring to social security, the phrase “Everyone … has the right to social security” of the amended French proposal was adopted in the Commission on Human Rights by fifteen votes (yes), with two abstentions.162 Third Committee Deliberations At the Third Committee of the General Assembly, a surprising convergence toward a broad meaning for the term emerged in the discussion of the opening reference to “social security” in the article forwarded by the Commission. Delegates raised concerns that the reference might be misconstrued. Some feared that, in the future, it might be viewed in a 157   The first draft outline of the Declaration had drawn some of its language, particularly on economic, social and cultural rights, from the 1948 American Declaration on the Rights and Duties of Man, known also as the Bogotá Declaration. See Humphrey Draft, supra note 78. That declaration was adopted by the nations of the Americas at the Ninth International Conference of American States in Bogotá, Colombia in April 1948, at the same meeting that adopted the Charter of the Organization of American States. The Bogotá Declaration was perhaps the first inter-State declaration recognizing economic and social human rights. 158   U.N. Doc. E/CN.4/SR.72, supra note 104, at 8 (Mr. Fontaina, Uruguay). 159   The idea that the term “social security” was integral to a broader recognition of ESC rights was revealed in the statements made by representatives of the Philippines (Mr. Lopez) and Yugoslavia (Mr. Vilfan). U.N. Doc. E/CN.4/SR.72, supra note 104, at 9. 160   Id. at 10. 161   Id. Mr. Chang (China) 162   Id. The text of the entire article was then adopted by 12 votes (yes), with 5 abstentions.

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technical sense even though its function in the umbrella article was to introduce a set of articles addressing a range of economic and social risks, including contingencies like unemployment addressed by technical social security schemes. According to a number of delegates, the term meant “social justice in the broad sense and not the protection of the individual from want in the narrow technical sense.”163 In various proposals for amendment concerning the term, the Third Committee sought a reformulation that could clarify the fundamental and general meaning intended. The proposals all had in common the sense that the reference to “social security” in the umbrella article should have a broad scope, underpinning the ESC rights of the Declaration with a fundamental guarantee of economic and social circumstances – through material assistance, if necessary – to protect and ensure the individual’s well-being. In the end, however, the fears of being misunderstood were not unjustified.164 At the outset of the Third Committee discussion, it was considered “most important” for the Committee to understand the meaning of the term as intended by the Commission on Human Rights.165 The representative of the USSR explained that the French and Lebanese delegations had proposed the article to serve as a preamble to emphasize the importance of the economic and social rights stated in the articles following it. He said the article “did not attempt to give a definition of social security, but merely stressed its importance.”166 The representative of Ecuador favoured the term “social security.” This was a principle recognized by the majority of Latin American States and should not be confused with social insurance, “by which was understood the solution adopted by Great Britain in regard to the problem of social security.” The representative of Argentina agreed that social security in the umbrella article would be generally understood as social security in the broad sense.167 The French representative explained that his government had proposed the insertion of the words social security “in a broadly 163   U.N. Doc. A/C.3/SR.137, supra note 114, at 497 (Mr. Alvarado, Peru, supported by Mr. Cassin, France and Mr. Sagués, Chile). For the Syrian proposal, see infra text accompanying notes 173–74. 164   See, e.g., Bard-Anders Andreassen, Article 22, in UDHR Commentary, supra note 3, at 321 (article 22 “entitles everyone to access to welfare state provisions”). 165   U.N. Doc. A/C.3/SR.137, supra note 114, at 497 (Mr Pérez Cisneros, Cuba and Mr. Alvarado, Peru). 166   Id. at 498–9 (Mr. Pavlov, USSR). 167   Id. at 498 (Mr. Corominas, Argentina).

textual elements and drafting origins of article 2259 humanitarian rather than in a technical sense” in the umbrella article. He considered it “inconceivable that an international declaration of human rights drafted at the present moment in history should not contain a single mention of [social security].” He opposed the idea of using the words “social security” in their technical sense (as had been proposed by the New Zealand representative) in the article on the right to an adequate standard of living (now art. 25). If the Committee decided to do so, he believed that some phrase of a general nature, such as “protection against social insecurity” or “social justice”, should be used in article 20 (now art. 22) to avoid confusion between the two articles.168 Eventually, the two strands of meaning of the term expressed by the French representative – a negative protection against insecurity and a positive entitlement to social justice – became interwoven as the Third Committee contemplated the term “social security.” In the view of the representative of Argentina, the term referred to the right of the individual to be protected against “the consequences of a reduction, suspension or loss of ability to earn a livelihood.” It was not in itself a new kind of right but “it differed from and was independent of all other rights … It should not be made dependent upon other rights. The defect of the basic text was that it suggested that social security was dependent.”169 The representative of Chile considered that social security in the umbrella article, which was intended as a preamble to the articles dealing with economic and social rights, was used in a much broader sense than only as protection of the individual “in any circumstances which made it impossible for him to earn his living.” It referred also to “the right to subsistence, the right to work, the right to medical services not only of those who, through some circumstance, lost their capacity to work but of all human beings in all circumstances.”170 According to the Lebanese representative, it would be better to use a different term since nothing in the article made it possible to distinguish between social security in the broad sense and social insurance. He thought that social security “was dependent upon the implementation of economic, social and cultural rights and should not be considered on the same level as those rights.” In order to give the concept its full meaning, he proposed to move the term “social security” to the phrase referring to the other fundamental concepts, those of dignity   Id. at 499–500 (Mr. Cassin, France).   Id. at 497 (Mr. Corominas, Argentina). 170   U.N. Doc. A/C.3/SR.138, supra note 115, at 500 (Mr. Santa Cruz, Chile). 168 169

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and the free development of the personality for which the realization of ESC rights were considered essential.171 The Lebanese amendment would have deleted the first part of the article and rendered the last part “essential for his social security, his dignity and the free development of his personality.” The representative of Greece, building on this proposal, suggested that the problem of the two meanings of the term – a limited, technical, meaning and a general meaning – could be solved by adding the words “in general” to “social security” and phrasing the provision as follows: “essential for his dignity, to the free development of his personality and his social security in general.”172 In another proposal, the representative of Syria suggested replacing the phrase “social security” with “social justice” to express the broader concept, and deleting the reference to economic, social and cultural rights in the article since those rights were the subject of later articles.173 With the Syrian amendment, the article would have read: “Everyone as a member of society, has the right to social justice and is entitled to the realization of that right, through national effort and international co-operation, and in accordance with the organization and resources of each State.” In an attempt to ensure that the broad scope of the idea was clear, the representative of Belgium supported adding the words “social justice” to “social security” in order to widen the meaning since the words “social security” should not be used in the narrow sense “because, as used currently in French-speaking countries, they had a very special meaning.”174 However, the United Kingdom representative did not support the suggestion of “social justice” because that term was derived from a more complex idea (upon which she did not elaborate) and suggested that the reference to social security be deleted from the umbrella article and inserted in article 22 (now 25).175 Some delegations emphasized the view that the term “social security” implied a set of freedoms or conditions that facilitated   Id. at 503 (Mr. Azkoul, Lebanon).   Id. at 506–7 (Mr. Contoumas, Greece). See infra Chapter III.C.3. 173   Id. at 504 (Mr. Kayaly, Syria). 174   Id. at 511–2 (Count Carton de Wiart, Belgium, supported by Mr. De Athayde, Brazil). 175   Id. at 504. Ms. Corbet (United Kingdom). The U.K. representative explained that in Great Britain the words “social security’ had a precise technical meaning. “It was not a question of social insurance. Great Britain had a system of family allowances, which had no connexion with insurance, but which formed part of the social security programme.” This position may explain the ambiguity in the Summary Record relating to the proposed amendment of her colleague, Mr. Wilson, in the Commission on this point. See supra note 147 and accompanying text. 171 172

textual elements and drafting origins of article 2261 achievement of the goals sought by the articles on economic, social and cultural rights that followed. The United States representative affirmed that the article had been conceived as an introduction to subsequent articles and thus referred to both economic, social and cultural rights and social security; she believed the introductory function should be retained, a position supported by the Mexican representative.176 According to the representative of Czechoslovakia, the idea of social security covered all the social, economic and cultural freedoms in the articles following the umbrella article. Social security, he said, represented “all economic and, therefore, social conditions which ensured man a decent standard of living”.”177 Along the same lines, the representative of the Netherlands believed the expression “social security” should be “construed in a very broad sense which included all the social and economic freedoms necessary to ensure the individuals’ well-being.” For that reason the following draft was proposed: “(e)veryone, as a member of society, has the right to social security and, in consequence, to the realization … of the economic, social and cultural rights set out below …” His delegation understood the objections against the words “set out below”, but thought it necessary to maintain the “prefatory character” of the article. The clause could be replaced by: “… of which the essential aspects are set out below.”178 In contrast, other delegations believed that, by standing on its own, the phrase “right to social security” should be understood as an independent right to protection against social and economic insecurity. The representative of Argentina underscored that the right to social security should be clearly set forth “independently of the other economic and social rights.” He said that the idea of social security was now universal and was “both a doctrine and the realization of that doctrine in practice … To guarantee it while making it dependent on other economic, social or cultural factors would be to diminish it.” He observed that “(a)ll national legislations guaranteed the essential rights set forth in the preceding articles of the draft declaration, such as the individual’s right to life and to work. But when that same individual suffered a 176   Id. at 501, 502 (Mrs. Roosevelt, United States and Mr. Campos Ortiz, Mexico, respectively). 177   Id. at 505 (Mr. Nosek, Czechoslovakia). His statement focused largely on the need for an economic basis to guarantee the right to social security as broadly conceived. 178   Id. at 507 (Mr. Beaufort, Netherlands).

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decline in his physical strength, due to illness or old age, society had no right to lose interest in his fate and to leave him to destitution. The aid given to those in need should not be considered as an act of charity on the part of society, but as a right which is owed to the individual.”179 The representative of Peru also stressed the important difference between social security, in the broad sense of the term, and “technical measures such as social assistance, aid to mothers and children, etc., which formed part of the social security programme of most countries.” The phrase “to be protected against social and economic risks” would more accurately express the broad meaning of social security.180 The representative of Brazil found social security, as the fundamental idea of the article, to be one of the aims of democracies, and in it the contribution of the present generation to the social progress of mankind.181 The practical point was also raised that “social security” simply needed to be accepted as having a broad meaning covering all ESC rights since there was no guarantee that it would find its way for adoption in the more technical sense in the article (now 25) on that subject. The New Zealand delegate recalled that the Third Committee was now dealing with “the most important part of the Declaration, namely, the part which recognized the economic, social and cultural rights of the individual … There seemed to be no difference of opinion in the Committee on that point.” She said her delegation had withdrawn the amendment to include “social security” in article 22 (now 25) with its exact technical meaning “because it attached such great importance to the words “social security” that it did not wish to see them deleted from article 20 without being sure that they would be inserted in article 22.”182 The representative of Australia acknowledged the criticism that the term “social security” was ambiguous but reminded the Committee that it was “faced with a dilemma because, if it agreed to delete those words from [the] article … there was nothing to guarantee that they would be included in [the article that is now 25].” The representative of France concluded that the members of the Committee were in complete agreement on the substance; they only differed in the way they “wished to express that common idea.” Although he agreed with New Zealand that it would be better to include   Id. at 507–8 (Mr. Corominas, Argentina).   Id. at 506 (Mr. Alvarado, Peru). 181   Id. at 511 (Mr. De Athayde, Brazil). 182   Id. at 504–5 (Ms. Newlands, New Zealand). 179 180

textual elements and drafting origins of article 2263 the term twice than to lose it altogether, he would prefer, however, the words “social justice” in article 20 (now 22), a term which was also used in the Constitution of the International Labour Organization. It was the most general term “because there could be no social justice without social security …”183 Notably, upon a vote, the Syrian amendment to replace the words “social security” with “social justice” was rejected.184 The Belgian amendment to replace “social security” with “social security and social justice” was rejected,185 as was (narrowly) the Lebanese amendment to place the reference to social security immediately before “dignity and the free development of his personality”; a related Greek amendment would have added “in general” after “social security”.186 Following a number of other votes on proposals concerning the other elements of article 22, the first part of the article, reading “Everyone, as a member of society, has the right to social security …” was voted on separately and adopted by 38 votes to one. After a separate vote on the second part of the article, the entire article was adopted by an overwhelming majority of 36 votes to one, with 3 abstentions.187 Following the vote, the representative of Uruguay recalled that he had suggested a reference to social security in article 3 (right to life, liberty and security of person – this would have rendered the article of general application to the Declaration, covering ESC rights as well), and that there was no danger that the expression “social security” in article 20 as amended would be interpreted to mean “social insurance.” The Lebanese delegation explained that it had voted against the article (the only delegation to do so) because, in its opinion, social security separated from the various economic and social rights had no meaning. In his view, the “article could have been improved by indicating that social security included the realization of ESC rights instead of referring separately to “social security,” on the one hand, and on the other to “the realization … of the rights … set out below.”188   Id. at 509–10 (Mr. Grumbach, France).   The Syrian amendment was rejected by 26 votes to 8, with 8 abstentions. Id. at

183 184

513.

  The Belgian amendment was rejected by 22 votes to 11, with 7 abstentions. Id.   The Lebanese amendment was rejected in a very close vote, by 18 votes to 17, with 4 abstentions. The Greek amendment was rejected by 21 votes to 4, with 12 abstentions. Id. at 513. 187   Id. at 514. The only vote against was cast by Lebanon. Third Comm’ee, U.N. GAOR, 3rd Sess., 139th mtg., at 515, U.N. Doc. A/C.3/SR.139, November 16, 1948. 188   Id. (Mr. Azkoul, Lebanon). 185 186

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The representative of Saudi Arabia explained that he had voted for the rejected Syrian amendment to use the term “social justice” because it “conformed to Islamic law, under the terms of which “social justice” had a broader and more comprehensive meaning than “social security.” He said that in Saudi Arabia, the institution of zaka, a voluntary tax levied for the purpose of assisting the poor and unemployed, was one of the five pillars of Islam. Social security was a recent historical development in Western society, while zaka had been an article of faith in actual operation in Moslem countries for almost fourteen centuries. Furthermore, in Saudi Arabia, as in all Moslem countries, there was the “institution of waaf, a system whereby the income from property placed in trust was frequently used for the relief of the poor or the unemployed.” There also existed other institutions for the same purpose. Those Islamic institutions were not only the equivalent of a social security system, their machinery was simpler, their administration less costly and their effectiveness had stood the test of fourteen centuries. For that reason he had abstained in the vote on article 20.189 Overall, the common thrust of the Third Committee discussion relating to the term “social security” sought to clarify that “social security” in the umbrella article was to be given a broad, expansive meaning signifying an interdependent coherence among the series of the ESC rights that followed. No delegation spoke in favour of using “social security” in the article in its technical limited sense, but the failure to find a more effective term may have been due primarily to extraneous factors. Some may have voted against other proposals because they were so intent on using the term “social security” somewhere in the Declaration. Others seem to have believed that the term “social security” already imported a fundamental character in the nature of social justice. Since the term “social justice” did not appear as such in the newly-adopted UN Charter, it may have seemed difficult to accept the proposal for its use since the Declaration was to be rooted in the Charter of the fledgling Organization. Nonetheless, as the French representative had recalled,190 “social justice” had already been acclaimed as a fundamental and universal value underlying the establishment of the International Labour Organisation in the Treaty of Versailles of 1919.191 Whatever the various reasons may have been, the travaux   Id. at 515 (Mr. Baroody, Saudi Arabia).  See supra note 114. 191   The term appeared as early as the original text which constituted the ILO in 1919. See Treaty of Versailles, adopted June 28, 1919, at Part XIII (Labour), Sec. 1, 189 190

textual elements and drafting origins of article 2265 préparatoires make clear that the opening reference to the “right to social security” in article 22 was intended to root in the Declaration a fundamental guarantee of protection from insecurity that enabled the positive realization of ESC rights necessary for well-being. 3.  “entitled to … the economic, social and cultural rights indispensable for his dignity and the free development of his personality” In asserting that everyone is “entitled to realization of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”, article 22 recognizes a fundamental entitlement to a minimum level of protection that underlies ESC rights as a whole. In the discussion on whether to have an umbrella article in the Declaration (see Part B of this chapter), the French representative, Mr. Cassin, emphasized the necessity of establishing “that the individual was entitled to demand that the State, society and international cooperation” guarantee the right in question. Similarly, the experts convened by UNESCO to report on the scope of human rights recognition around the world, after summarizing civil and political rights, described ESC rights as “another set of fundamental human rights which grew out of the recognition that to live well and freely man must have at least the means requisite for living”. In the list of rights considered commonly recognized by the world’s peoples, the experts included a group of rights which was “essentially connected with the provision of means for subsistence, through [an individual’s] own efforts or, where they are insufficient, through the resources of society”.192 The recognition in article 22 of such an entitlement concretizes the integral connection between rights, dignity and well-being already emphasized as a fundamental principle within the Declaration and in the UN Charter (see chapters 1 and 2). In article 22, the phrase lends a specificity to the principle in the context of ESC rights. By linking the preamble, which reads: “Whereas the League of Nations has for its object the establishment of universal peace, and such a peace can be established only if it is based upon social justice …” After the League of Nations, the ILO Constitution retained the phrase “Whereas universal and lasting peace can be established only if it is based upon social justice”. ILO Constitution, supra note 36, preamble, first paragraph, reprinted as amended in ILO, Constitution of the International Labour Organisation and selected texts (2009). For the role of ILO standards and practice in the concept of social security in its broad sesnse as social justice under article 22 of the Declaration, see infra Chapter IV.A.2. 192   UNESCO Study, supra note 5, at 8, 11.

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entitlement to economic, social and cultural rights” to “dignity” and “the free development of … personality” so tightly that the former are “indispensable” to the latter, the article promotes an essential operational linkage between a requisite set of conditions, obtained through the realization of ESC rights, and the commitment to fulfil, in practice, the Charter’s affirmation of the values of human dignity and opportunities and freedoms for self-development. 3.1 “indispensable” The wording leaves open the question which ESC rights are indispens­ able to this minimum level of protection. Taken together with the article’s umbrella position in relation to the ESC rights section of the Declaration, the phrase seems to imply that at least all the ESC rights enumerated in articles 23 to 27 are indispensable for human dignity and freedom to develop as a person. Whether the reference could independently support the incorporation of ESC rights other than those explicitly recognized in the Declaration is not immediately evident from a plain reading. The resolution of this question may depend on the evolution of further grounds of universally-recognized ESC rights, perhaps in response to changing circumstances in the world (see Chapter VI). It is clear that the drafters, at the least, intended to leave the list of rights open-ended by specifically deleting wording which linked the reference to the ESC rights “set out below” (discussed below in this section). In any event, the current context in which the Declaration operates is largely focused on implementation of the already enumerated ESC rights, and the phrase in the article directly offers an additional dimension to employ in relation to implementation as discussed in chapters 4 and 5. By referring to ESC rights altogether as “indispensable”, the phrase supports the principle that all ESC rights are interdependent in their impact, including in safeguarding human dignity and the free development of the personality. Their effect in operation in this sense is intertwined. It is not enough to selectively give priority to some over others: advancement in a particular area facilitates progress in another; for example, access to education would facilitate awareness of measures to help attain a higher health standard. Conversely, failure to advance in one field of ESC rights could become an obstacle to progress in another area; for example, lack of employment would impede achieving an adequate standard of living. The catch-all reference in article

textual elements and drafting origins of article 2267 22 to the realization of indispensable ESC rights thus recognizes the need for an integrated approach to implementing ESC rights in both national effort and international co-operation. For current UN efforts to build a “social floor” on the basis of this principle, see Chapter V. Third Committee Deliberations The reference to ESC rights as “indispensable” to dignity and the free development of the personality was added to the article only at a late stage in the Third Committee’s consideration of the text submitted by the Commission. At that point, the draft text of the article referred only to the ESC rights “set out below” and read as follows: “Everyone, as a member of society, has the right to social security and is entitled to the realization, through national effort and international co-operation, and in accordance with the organization and resources of each state, of the economic, social, and cultural rights set out below.” (emphasis supplied)193 The issue whether to qualify the reference to ESC rights was raised during the Third Committee deliberations when concerns were expressed that the term “social security” might be misconstrued in a technical sense rather than with a broad meaning, as discussed earlier in this chapter (see section C.2 of this chapter on “social security”). The Cuban representative found the wording “set out below” to be problematic; he thought a reference to later articles would weaken the article which should stand by itself. In order to give the “new” economic and social rights parity with the civil and political rights, he suggested to refer to everyone’s ESC rights as “essential for his dignity and the free development of his personality”.194 The representative of France agreed that the umbrella article should be independent, and the phrase “set out below” should be replaced. In his view, “the rights ‘set out below’ were only some of the rights to which the broad general statement should apply; that statement should not be bounded by the

193   Draft International Declaration of Human Rights adopted by the Commission on Human Rights and forwarded by the Economic and Social Council to the General Assembly, Third Committee, commonly called the “Lake Success Draft”, reprinted in M.A. Glendon, World Made New, p. 297. 194   Mr. Pérez Cisneros (Cuba), A/C.3/SR.137, at 498; A/C.3/232 (7 Oct. 1948), Draft Declaration of Human Rights, Cuba: Amendments to Article 10–22 of the Draft Declaration. The original language of Cuba’s amendments was French, in which the text of the amendment for article 20 read: “… indispensables à sa dignité et au libre développement de sa personnalité.” The Third Committee later adjusted the text of the English version “essential” to reflect the French version which used the word “indispensable”.

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limited attainments of contemporary society.”195 The Cuban amendment to replace the words “set out below” by “indispensable for his dignity and the free development of his personality” was adopted.196 The deletion of the wording “set out below” is significant for several reasons. The result rendered the article free-standing, rather than one that solely introduced a series of articles that followed “below”. Article 22 thus became an independent foundation for addressing both the ultimate goals of the ESC rights regime and their implementation. While the deletion of “set out below” could also support the use of article 22 to cover concepts not included specifically in the articles following it, it should be remembered that various supporters of deletion believed the article was intended as an “umbrella” article with the primary function of introducing the ESC rights in the articles that followed.197 The tension between the umbrella function suggesting a restrictive approach limited to the enumerated ESC rights, on the one hand, and the replacement of “set out below” with open-ended wording, on the other hand, may be resolved, at least partially, by interpreting the phrase in the light of its underlying objectives (dignity and personality). In this way, the rights identified as “indispensable” would be limited to those which are essential to dignity and personality. This approach could rely on the current recognition of ESC rights in articles 23 to 27 while still accepting, in line with the view of the Declaration as a living document, that the scope of those indispensable rights may develop in accordance with the objectives of dignity and personality over time and according to circumstances. 3.2  “dignity” and “free development of … personality” Understanding the intended import of “dignity” and “free development of personality” as underlying objectives of article 22 requires a look beyond the discussion at the time of their insertion into the article. While the Cuban proposal that replaced “set out below” with expansive principles linking ESC rights to human dignity and free development of the person received little discussion in the Third Committee, these concepts had already been vetted in several forms during the drafting journey toward the Universal Declaration. The   A/C.3/SR.137, at 499–500.   A/C.3/SR.137, at 513–4. 197   See Parts B and C.2 (umbrella article and “social security”). 195 196

textual elements and drafting origins of article 2269 principle of human dignity, foundational to the ethical and political conceptualization of human rights, had received already a prominent place in the preamble and text of the Declaration.198 In 1947, in the second of the early draft articles of the Declaration proposed by the French representative, Professor Cassin, within the Drafting Committee (see Chapter II), the text provided that “The object of society is to afford each of its members equal opportunity for the full development of his spirit, mind and body.” (emphasis supplied)199 Again, in May 1948, the French Government submitted a a draft declaration to the third session of the Commission on Human Rights containing an article 2 which read, “Man owes duties to the society which allows him to shape and freely develop his personality. In their discharge, the right of each is limited only by the rights of others and by the just laws of the democratic State.”200 While these formulations did not survive as such,201 the fundamental nature of the principle of development of the personality in relation to human rights was largely recognized in the drafting process, and in particular in relation to all the ESC rights in the Declaration. At an earlier stage of the Third Committee discussion of the Declaration, several Latin American delegations had proposed an amendment that would have expanded article 3 of the Declaration to cover ESC rights, as follows: “Everyone has the right to life, liberty, security of person and to the economic and other conditions necessary to the full development of the human personality” (emphasis supplied).202 Following the rejection of this amendment, most apparently on formal grounds,203 Cuba reintroduced wording relating to development of the personality in the discussion of article 22. The lack of debate at that stage of the proposal which led to the wording now in article 22 likely reflected an acceptance of the view that ESC rights played an essential role in  See supra chapter II, B, 1.   E/CN.4/AC.1/SR.10, p. 13 and W.2/Rev.2, in J. Morsink, supra note 19, at 9, 211,

198 199

243.

  E/CN.4/82/Add.8, at p. 2 (emphasis supplied).   The recognition in Cassin’s second article of the essential role of society in the individual’s development ended up in what is now article 29. See J. Morsink, supra note 19, at 210–3. 202   The amendment was proposed jointly by the delegations of Cuba, Lebanon and Uruguay. A/C.3/274/Rev.1, cited in J. Morsink, supra note 19, at 211. 203   J. Morsink, supra note 19, at 211–2. The proposal was seen to conflict with the logical flow of the articles of the Declaration and to unacceptably express two sets of ideas in a single paragraph. 200 201

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“development of [the] personality”, and a consensus that such a reference could capture the aim of all the ESC rights in the Declaration. Consensus on the relevance of human rights to “development of [the] personality” was sufficient to embed the reference in three articles of the Declaration: articles 22, 26 and 29 (see Chapter II). While article 22 uses the phrase “free development” of the personality, article 26 uses “full development” of the personality and article 29 refers to “free and full development” of the personality. The distinction between “free” and “full” development of the personality appears to contrast, roughly speaking, the community and conditions in which development as a person may occur and the dimensions of possibility within oneself for actualization. The reference “free” seems to connote the social, economic, and cultural environment instrumental to one’s freedom and capacity to develop as a person204 while the term “full” appears to refer to the personal initiative of each individual to use the opportunities available in developing personal capabilities which in turn contribute to society.205 Although the word “free” used in article 22 was not debated, both “free” and “full” appear together in one of the earliest drafts of the Declaration, submitted by the American Federation of Labor. In substance akin to the 1947 French draft article above,206 the AFL’s draft preamble stated that the “state has no good other than the good of its individual member [sic], present and prospective – its supreme test is the way in which it provides for the full and free development of each individual. The more rights enjoyed by individuals and the more individuals for whom these rights of free development are safeguarded, the more democratic any society will be”(emphasis supplied).207 In this context, the adjective “free” in “free development of the personality” in article 22 imports a sense of an “enabling” environment, both in terms of liberty from a lack of interference in the process of self-development, and positive assistance, as necessary, in ensuring the economic and social conditions essential to self-development. In contrast, the term “full development” appears to connote the vast breadth of possibilities in self-development, without seeking to describe them. While earlier 204  The concept resembles the “instrumental freedoms” articulated by scholar Amartya Sen. See Sen, supra note 8. 205   For general historical context, supra notes 3–6 and accompanying text. For subsequent articulation, see infra Chapter IV.C.1. 206  See supra note 127 and accompanying text. 207   J. Morsink, supra note 19, at 210, citing “W.8, p. 2”.

textual elements and drafting origins of article 2271 versions of article 26 had specified the “full physical, spiritual and moral development of the human personality”, the long version of this phrase was eventually dropped after a proposal to add “intellectual” highlighted the complexity of identifying the various dimensions of “full” self-development.208 Thus, article 22’s reference to “free development” of the personality seems to adhere strongly to the enabling dimension provided by security attained through a comprehensive realization of ESC rights. 4.  “realization, through national effort and international co-operation and in accordance with organization and resources” In recognizing an entitlement to “realization” of indispensable ESC rights, article 22 aims at nothing less than fulfilment of the economic and social security that results from a just working of society. The entitlement to realization of indispensable ESC rights under article 22 is to be satisfied “through national effort and international co-operation and in accordance with the organization and resources of each State”. The original French text presented to the Commission on Human Rights referred to “the economic, social and cultural rights …, whose fulfilment should be made possible in every State separately or by international collaboration.”209 In the course of discussion, the Australian representative suggested that the text be strengthened by replacing “should be made possible” by “should be ensured”,210 resulting in the wording “whose fulfilment should be ensured in every State.” Following an intervention by the representative of the USSR in support of an article dealing with the realization of rights,211 the Chairperson, speaking as the representative of the United States, proposed the wording, in relevant part: “Every person, as a member of society, has the economic, social and cultural rights enumerated below, and is entitled to their realization, through national effort and international cooperation …” (emphasis supplied)212 From the start, the means in article 22 for guaranteeing realization of ESC rights had a dual emphasis on unilateral State action and international co-operation. At the Commission, the original text proposed by   E.g., J. Morsink, supra note 19, at 215–6.   U.N. Doc. E/CN.4/120 supra note 100. 210   U.N. Doc. E/CN.4/SR.72, supra note 104, at 2,3 (Mr. Hood, Australia). 211   Id. at 6 (Mr. Pavlov, USSR). 212   Id. at 7 (Ms. Roosevelt, U.S.). 208 209

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the French representative from the drafting sub-committee read: “Everyone as a member of society has the economic, social and cultural rights enumerated below, whose fulfilment should be made possible in every State separately or by international collaboration.”213 In the discussion that followed, the Australian representative emphasized the two strands of action in describing the text as “very complete in the sense that it stated the rights of the individual and indicated the State, as an entity or in collaboration with other States, as the guarantor of such rights.”214 (see also Part B of this chapter). As the umbrella article’s text evolved, the USSR representative advanced a text which recognized that it was “desirable to have ESC rights “implemented both through material national efforts and through international cooperation …”215 The Commission ultimately adopted the original text with “national effort and international co-operation”.216 The dual emphasis was reinforced at the Third Committee review of the ESC umbrella article of the Declaration. There, the French representative pointed out that the economic and social rights subject of the article were “different in character from any rights outlined in earlier declarations of the rights of man … They all had in common the fact that national effort and international co-operation were needed for their realization.”217 At both Commission and General Assembly levels, consensus supported the view that the duty to ensure the observance of ESC rights was addressed not just to States but also to society at large. As noted above, the UNESCO expert inquiry concluded that a group of rights appearing first on the list after the right to live was “essentially connected with the provision of means for subsistence, through [an individual’s] own efforts or, where they are insufficient, through the resources of society”.218 In the original discussion of the subject on the right to work article, the Lebanese representative, Professor Malik, believed that the Declaration should clearly state somewhere that “society itself should be of such a nature as to ensure the observance of those [economic and social] rights.”219 The Yugoslav representative proposed   U.N. Doc. E/CN.4/120 supra note 100.   Mr. Jockel (Australia), E/CN.4/SR.67, at 6. 215   U.N. Doc. E/CN.4/SR.72, supra note 104, at 9 (Mr. Pavlov, USSR). 216   Id. at 10. 217   Mr. Cassin (France), A/C.3/SR.137, at 499. 218   UNESCO Study, supra note 5, pp. 8, 11. 219   U.N. Doc. E/CN.4/SR.65, supra note 90, at 7 (Mr. Malik, Lebanon). 213 214

textual elements and drafting origins of article 2273 an amendment adding the words: “taken by the State or society” after the word “measures” in the text under debate.220 At the Third Committee, the Belgian representative remarked that the State was not alone in having duties, but individuals and professional groups had duties as well.221 Similarly, the New Zealand representative recognized that the “type of rights enumerated in articles 20 to 26 stressed the question of responsibility of the community towards the individual even more definitely than had the rights so far set forth.”222 4.1  “through national effort” As noted in the preceding section, the origin of the concept of “national effort” in article 22 began as a reference in the text proposed by the French representative to fulfilment being made possible “in every State separately”. The focus on positive action to realize ESC rights was at the very heart of the initiative to have an umbrella article specific to ESC rights (see Part B of this chapter). A number of the delegates were convinced that, somewhere in the Declaration, they should recognize the duty of the State to take measures to ensure ESC rights. Originally a reference had been inserted in the draft article on the right to work providing that “(t)he State has a duty to take such measures as may be within its power to ensure that all persons ordinarily resident in its territory have an opportunity for useful work.”223 Upon reflection, the Australian representative perceived that the question of measures to be taken would have to be examined in the light of all the economic and social rights, not only the right to work.224 In the discussion that ensued, the view that these measures involved positive action by the State was widely accepted. As the French representative maintained, “economic and social rights, in order to be fully realized, required material assistance to be furnished by the State – a practical difference which the Declaration could not ignore.” For this reason, the realization of economic and social rights “required a guarantee.”225 The idea that “national   Id. Mr. Vilfan (Yugolavia).  U.N. Doc. A/C.3/SR.138, supra note 115, at 512 (Count Carton de Wiart, Belgium). 222   Id. at 505 (Ms. Newlands, New Zealand). 223   U.N. Doc. E/CN.4/SR.65, supra note 90, at 3 (Mrs. Mehta, India). 224   Id. at 10 (Mr. Hood, Australia). 225   U.N. Doc. E/CN.4/SR.72, supra note 104, at 4–5 (Mr. Cassin, France). For justification, the French representative referred to the separate treatment of ESC rights by all States which had rewritten their constitutions during the past thirty years”. A compilation of the constitutions of almost all U.N. Member States had been appended to the 220 221

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effort” was not limited to State action, but also included the society at large and non-state actors, had already been accepted in the context of deciding to include an umbrella article specific to ESC rights.226 On the basis of these views, the Chairperson, as the representative of the United States, proposed an amendment to the French text which replaced “in every State separately” with “national effort”. As discussed in Chapter II,227 the inclusion of “national effort” with “international co-operation” is a striking achievement of article 22. By calling for separate national action for the fulfilment of ESC rights, the reference moves beyond the obligations of the UN Charter which commit States to act at international level, jointly or separately, with the Organization. The very reference implies consequential action at the level of each State, though the drafters of the Declaration knew there could be no direct reference to State obligations as this was to await a later treaty. Indeed, association of the reference with the two other phrases, “international co-operation” and “in accordance with the organization and resources of each State”, seems to have been necessary to strike a balance acceptable to all participating states. At the Third Committee discussion, the United States representative stressed that “the essential elements” of the article were the two phrases “through national effort and international co-operation” and “in accordance with the organization and resources of each State.” By use of those phrases, she said, the Commission on Human Rights had intended the article “as something of an introduction to the subsequent articles” and had found a compromise between those States that wished to emphasize the special protection that States should give in regard to ESC rights and those States, such as the United States, which thought the obligations of the State should not be specified.228 4.2  “… and international co-operation” By adding the reference to “international co-operation”, the drafters recognized that the commitment of the UN Charter to efforts at Secretariat Outline of a draft declaration prepared by the Division of Human Rights of the U.N. Secretariat at the start of the process of drafting the Declaration, along with proposals of governments, non-governmental organizations and trade unions, and scholarly individuals. U.N. Secretariat, Commission on Human Rights Drafting Committee: Documented Outline, U.N. Doc. E/CN.4/AC.1/3/Add.1 (June 11, 1947). 226   See infra preceding paragraph and Chapter III.B. 227   See supra chapter II.A.2.4 (effectiveness of action). 228   U.N. Doc. A/C.3/SR.138, supra note 115, at 501 (Mrs. Roosevelt (United States).

textual elements and drafting origins of article 2275 international level was necessary to ensuring indispensable ESC rights within States as well. The term “international co-operation” evolved from its original form, “international collaboration” in the French text proposed to the Commission.229 The discussion within the Commission recognized the competence of international organizations entrusted with relevant mandates and the importance of action at an international level. The representative of Egypt stated that it was to be understood that “the question was within the competence not only of the State, but of any organization which might be entrusted with those functions.”230 Consultation with the International Labour Organization, in existence since 1919, was cited as one example.231 The United States representative suggested the wording “… be made possible in every State separately or in collaboration with other States.”232 The concept to be captured seemed to invoke at least the boundaries understood by the wording “joint and separate action in co-operation with the [UN] Organization” in the already-accepted context of article 56 of the UN Charter. The reference, taken in this context, implied both State to State collaboration, and Member States, or a single Member State, working together with the United Nations. (See discussion in Chapter 1.) The drafters placed a high importance on combining international co-operation with national effort in realizing ESC rights; in their view, effectiveness required that international co-operation be undertaken together with national measures. In the debate on the right to work article which laid the foundation for article 22 as discussed above, the French representative, Mr. Cassin, proposed to add the words “taken by the various States, and with international co-operation” after the word “measures” in the text before the drafting committee.233 The Chinese representative could not accept that wording,234 and an explanation of the meaning of the French amendment was requested: “(d)id it imply that, without international co-operation, States would take no measures against unemployment?”235 Mr. Cassin replied that such an interpretation was incorrect but perhaps due to a certain ambiguity in   See section C.4 at note 140 and accompanying text.   U.N. Doc. E.CN.4/SR.71, supra note 101, at 3 (Mr. Loutfi, Egypt). 231   See statement of representative of Australia (below). 232   E/CN.4/SR.71, at 3. 233   U.N. Doc. E/CN.4/SR.65, supra note 90, at 7 (Mr. Cassin, France) (the word “measures” was left behind by subsequent decisions). 234   Id. at 7 (Mr. Chang, China). 235   Id. at 9 (Mr. Klekovkin, Ukrainian SSR). 229 230

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the wording. He proposed, therefore, the following change: “in the different States, separately, or with international co-operation.”236 The French amendment was supported by the representative from Uruguay as implying consultation with existing international organizations, in particular, with the International Labour Organization.237 The importance of international action was emphasized by Mr. Cassin who said, in a statement evocative of today’s debates on the social dimension of globalization,238 that “the welfare of workers had long since ceased to be a purely national concern; the mass unemployment of 1932 showed that action was needed on an international level.” In the Third Committee deliberations, the New Zealand delegation was glad to see that the umbrella article emphasized the “necessity not only for national effort but for international co-operation in order to achieve the social security of the individual.”239 In stressing the special importance of international co-operation to social, economic and cultural rights, the Australian representative recalled that, when article 3 (right to life, liberty and security of person) of the draft declaration had been discussed, “it had been quite rightly pointed out that those (ESC) rights had been recognized in theory for a long time, and that it was those rights above all that everybody in the world would expect to find embodied in the declaration.” In view of this expectation, he believed an introductory article before the proclamation of these rights was justifiable because it placed the problem “in its true light by emphasizing the need for international co-operation as well as for national action, in accordance with Article 56 of the United Nations Charter.”240 While the wording “international co-operation” certainly implied a scope of action akin to that accepted by Member States under the obligations of articles 55 and 56 of the Charter,241 the approach to realization of ESC rights in relationship between the individual and society motivates the understanding that the term “international co-operation” in article 22 encompassed a wide range of actors, including not only

  Id. (Mr. Cassin, France).   Id. (Mr. Fontina, Uruguay). 238   For a discussion of workers and globalization, see infra Chapter IV.A.2. 239   U.N. Doc. A/C.3/SR.138, supra note 115, at 505 (Ms. Newlands, New Zealand). 240   Id. at 508 (Mr. Watt, Australia). It could be that the delegate was referring to international co-operation in accordance with Article 56 of the Charter, or that the interpretation that unilateral national action did not come within the scope of article 56 was not widely understood as of that date. 241  See supra chapter II.A.2.4. 236 237

textual elements and drafting origins of article 2277 States and international organizations, but also non-state actors to the extent they operate at international level, such as multinational enterprises (MNEs).242 A discussion of the obligations incumbent in the duty of “international co-operation” for the realization of ESC rights can be found in Chapter V.C. 4.3  “and in accordance with the organization and resources of each State” As its plain meaning reveals, the phrase “and in accordance with the organization and resources of each State” was intended to qualify the measures taken to implement ESC rights. It suggests that a diversity of measures could be acceptable in states’ efforts to achieve the maximum possible enjoyment of the indispensable rights; there was no need for the measures to fit any particular national system. The phrase evolved from an amendment suggested by the Egyptian representative to the original French text of article 22, who proposed that the fulfilment of rights should be guaranteed “in accordance with economic and social possibilities …”243 In contrast, the United States representative proposed the wording “in accordance with the social and economic system and political organization.”244 Comparing the two amendments, the French representative, Mr. Cassin, observed that, “(w)hile the Egyptian representative wished to obtain the maximum possible rights compatible with the potentialities of the social, economic and political system of each country, the text proposed by the United States tended rather to insist on the need for such measures to be fit in with the prevailing system.”245 The Australian delegate supported the proposed Egyptian amendment that States should take such action as was within the limits of their possibilities. Mr. Cassin was prepared to accept the amendment which, in his view, qualified the execution of the principle involved.246 In suggesting an amendment to replace the French proposal, the U.S. representative proposed the wording “through national effort … in accordance with the social system and economic and political 242   For a discussion of the scope of actors in international co-operation, see chapter V.C.2 infra. 243   U.N. Doc. E/CN.4/SR./71, supra note 101, at 3 (Mr. Loutfi, Egypt). 244   Id. at 3 (Mrs. Roosevelt, United States). 245   Id. (Mr. Cassin, France). 246   U.N. Doc. E/CN.4/SR.72, supra note 104, at 3,4.

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organization in each State.” In the end, with agreement of the U.S. representative, a proposal for “in accordance with the organization and resources of each State”, jointly forwarded by the Egyptian and United Kingdom representatives, was accepted.247 The wording “in accordance with the organization and resources of each State” proposed by the Commission on Human Rights met approval in the Third Committee of the General Assembly. There, the delegate from Argentina agreed that the “social and economic resources of each State” should condition the implementation of ESC rights.248 Likewise, the USSR representative mentioned that due regard should be paid to the qualification covered by the reference to the organization and resources of each State.249 As a matter of syntax, the reference to the “organization and resources of each State” qualifies “international co-operation” as well as “national effort” although the phrase is more aptly discussed in conjunction with “national effort”. Whether and how the “organization and resources of each State” applies to “international co-operation” was not addressed explicitly at the time of drafting. However, the emphasis on “in accor­ dance with … resources” supports an interpretation that international co-operation is inspired by solidarity between countries, a principle under which States with more resources give assistance, through international organizations or directly, to States with fewer resources. The world of the drafters of the Declaration was still marked by colonial era relations, and had not yet emerged as a world of equal States with varying levels of development and need. While the roots for pledging solidarity between countries had been established in the UN Charter as reflected in, for example, articles 2, paragraph 5 and article 74 of the Charter, subsequent articulation and practice draw out the potential application of the reference to the State’s organization and resources. This aspect of “international co-operation” in article 22 is discussed in Chapter V.

  Id. at 7.   U.N. Doc. A/C.3/SR.137, supra note 114, at 498 (Mr. Corominas, Argentina). 249   Id. (Mr. Pavlov, USSR). 247 248

CHAPTER FOUR

UNDERSTANDING THE ENTITLEMENT TO SECURITY THROUGH ESC RIGHTS This chapter explores the scope and content of article 22’s recognition of universal ESC rights through subsequent articulation and interpretation of the concepts related to the constitutive elements in the first part of the article. International treaties and declarations, as well as political commitments and resolutions in the practice of the UN and other organizations, elucidate the article’s underlying rationale for recognizing ESC rights and specifying how they should be realized. The purpose is to clarify the role that the conceptual elements of article 22  have played in normative human rights theory and practice, and their evolving impact on the pursuit of social justice and development within States and at global level. In so doing, subsequent practice is used where appropriate to give additional meaning,250 keeping in mind the distinction between the binding practice of Member States and the practice of the UN and other international organizations.251 While the 250   Agreement between the parties established by subsequent practice in the application of a treaty regularly illustrates, especially through the participation of new member states, a dynamic consensus of interpretation based on the organizational purpose. Georg Ress, The Interpretation of the Charter, in 1 UN Charter Commentary, supra note 10, at 39. See also Vienna Convention on the Law of Treaties, supra note 21, art. 31, para. 3(b). The ICJ first emphasized the significance of subsequent practice in its advisory opinion concerning Reparations for Injuries in which the Court held that the rights and duties of an entity such as the UN Organization must “depend on its purposes and functions as specified or implied in its constituent documents and developed in practice”. Georg Ress, The Interpretation of the Charter, in 1 UN Charter Commentary, supra, at 41, referring to Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 180 (April 11) (emphasis supplied). In its advisory opinion on Namibia, the International Court of Justice went beyond the ordinary meaning of the term and gave broad consideration to practice in what a leading scholar considered as exceeding the scope of treaty interpretation and entering the field of implied modification, which in principle is legally possible. The statement of the Court is the only one that does not stress that the result gained from scrutinizing the practice could have been achieved just the same by other means of interpretation. Georg Ress, The Interpretation of the Charter, in 1 UN Charter Commentary, supra, at 40–1. 251   The practice is taken as the starting-point for a consistency argument, yet questions remain as to how to evaluate a consistent and permanent practice on the part of the organs. Questions include which practice of the organs (and expressed by what

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practice of UN organs has gained an autonomous, objective significance for the interpretation of the Charter, opinions differ on its legal effect. The principles expressed in General Assembly resolutions generally do not purport to be legal prescriptions, but their language and form suggest that governments regard them as de lege ferenda and in some cases as evidence of existing law; in any event, the potential for international law-making through treaty or practice is relevant to judging their significance.252 Since adoption of the Declaration, a “literal avalanche” of UN General Assembly resolutions and decisions of Charter organs and treaty bodies have invoked the Declaration as a universally applicable basis for conduct, contributing to what has been called a corpus of “soft law” on human rights.253 The use of this “extension” method for understanding the meaning and application of article 22 is based on an approach to the Declaration which treats the Declaration and the body of soft law built on it as an authoritative interpretation of the human rights provisions of the Charter.254 Under the authoritative interpretation approach, subsequent articulations and interpretations have infused the Declaration with a powerful ethical and legal force beyond that of a single resolution of the General Assembly so that over time certain of its rights have reached the status of general, if not customary, international law. The

kinds of legal acts) may be attributed to the member states and from which institutional practice a consensus of the parties to the treaty may be concluded. Just how much of a consensus among UN members is reflected in General Assembly resolutions remains unsettled. Id. For the role of non-binding international legal agreements in shaping « global public policy », see Wolfgang H. Reinicke and Jan Martin Witte, Interdependence, Globalization, and Sovereignty: The Role of Non-binding International legal Accords, in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System 75, 89–91 (Dinah Shelton, ed., 2000). 252   Oscar Schachter, Principles of International Social Justice, in Jus et Societas: Essay in Tribute to Wolfgang Friedmann 249, 250 (1979). 253   Simma and Alston, supra note 11, at 98. Setting aside the question of the independent effect of such resolutions and decisions, acceptance of the UN’s entitlement to examine human rights practices under the Charter is firmly established. Simma and Alston, supra, at 98 n.71 (“droit de regard” entitling UN to respond to human rights violations as customary international law norm). 254   UN Charter, arts. 1(3), 55 and 56. Early recognition of the authoritative interpretation approach is found in Louis Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, in 32 Am. Univ. L. Rev. 1, 17 (1982) and Thomas Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects”, in 63 Wash. L. Rev. 1 (1988), cited in Simma and Alston, supra note 11, at 100 n.77. Nonetheless, the approach is limited to identifying only the present state of international law and practice on the subject.



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consensus that evolves from such dynamic interpretation of the Declaration can also be viewed as a means for articulating and accepting obligations of international human rights law as general principles of international law.255 By invoking principles of interpretation commonly accepted for legal analysis,256 this chapter and Chapter V examine the influence of the Declaration as the predominant moral and ethical foundation of the legal and political initiatives reviewed here.257 The legal status of the work of UN treaty bodies should be considered in its broader legal context. On the basis of mandates in their constituent instruments, the treaty bodies issue collectively-agreed views on thematic issues in the form of general comments or recommendations, and reporting guidelines; these views derive to some extent from the treaty bodies’ review of State practice provided in the periodic reports submitted by ratifying States and are included in their annual reports submitted to the General Assembly either directly or through the Economic and Social Council.258 By virtue of 255   Statute of the International Court of Justice, art. 38, para. 1(c), June 26, 1945, 33 U.N.T.S. 993. By definition, general principles may be recognized by States as duly accepted authoritative norms even though, in practice, violations of the norms still occur. See also text accompanying notes 275–7. 256   The choice of interpretative methods is not a value-neutral exercise and can generate different outcomes depending on policy preferences. Mac Darrow and Louise Arbour, The Pillar of Glass: Human Rights in the Development Operations of the United Nations, 103 Am. J. Int’l L. 446, 462 n.65 (2009), citing Robert Y. Jennings, General Course on Principles of International Law, 121 Recueil des Cours (II) 327, 544 (1967) (interpretation of treaties is an art “though it is a part of the art that it should have the appearance of a science”). On choices in U.S. constitutional interpretation, compare William Michael Treanor, Against Textualism, 103 Nw. U. L. Rev. 983, 985 (2009) (textualism as an approach with historically incorrect interpretive conventions in context of U.S. Constitution). 257   For a discussion of the interaction between the ethical character and legal status of human rights, see, e.g., Amartya Sen, The Idea of Justice 357–67 (2009). See also Arjun Sengupta, The Human Right to Development, in 32 Oxford Development Studies 179 (2004) and Joseph Raz, Human Rights without Foundations, in The Philosophy of International Law 321 (Samantha Besson and John Tasioulas, eds., 2010). 258   The mandates to issue general comments or general recommendations, as the case may be, are provided separately in the constituent treaties for eight of the nine treaty bodies currently in existence. In a singular situation, the Committee on Economic, Social and Cultural Rights is not created under the ICESCR but rather by decisions of the Economic and Social Council to which the Covenant grants oversight and authority to issue recommendations of a general nature. As a result, the CESCR submits its annual report to the Economic and Social Council; the others submit their reports, with any general comments or recommendations, to the General Assembly, directly or through ECOSOC, as well as to the States Parties. See Interna­ tional Convention on the Elimination of All Forms of Racial Discrimination,

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the treaty-based authority for such comments or recommendations, they are to be given due regard by ratifying States in fulfilling their treaty obligations. The treaty bodies’ pronouncements thus carry authoritative value for states parties, which may grow as particular guidance is given effect in law and practice of States. More generally, the fact that the treaty bodies’ recommendations and reporting guidelines are transmitted to the General Assembly presents a factor relevant to assessing their importance for all UN member States.259 In the long term, the potential for the treaty bodies’ views to inform the meaning of the Charter’s human rights clauses cannot be overlooked. This is particularly so with the committees for the Covenants, since the Covenants are organically related to the Declaration as an elaboration of the Charter’s human rights obligations. Strictly speaking, however, it is not the treaty bodies’ views art. 15, paras. 2–3, Dec. 21, 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess. Supp. No. 14, at 47, 660 U.N.T.S. 195 [hereinafter Race Discrimination Convention]; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 19, para. 4, Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/46, at 197, 1465 U.N.T.S. 85; Convention on the Rights of the Child, art. 45 (d), Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/25, at 166, 1577 U.N.T.S. 3 [hereinafter Rights of the Child Convention]; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, art. 74, para. 7, Dec. 18, 1990, U.N. GAOR, 45th Sess., UN Doc. A/RES/45/158, 2220 U.N.T.S. 3 [hereinafter Migrant Workers Convention]; and International Convention for the Protection of All Persons from Enforced Disappearances, arts. 28 para. 2, 29, 36 (1), Dec. 20, 2006, U.N. GAOR 61st Sess., U.N. Doc. A/61/488; ICCPR, supra note 20, art. 40, para. 4; ICESCR, supra note 20, art. 21 (ECOSOC to report), Convention on the Elimination of All Forms of Discrimination Against Women, art. 21, para. 1, Dec. 18, 1979, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46, at 193, 1249 U.N.T.S. 13 [hereinafter Women’s Discrimination Convention] and Convention on the Rights of Persons with Disabilities, art. 39, Dec. 13, 2006, U.N. GAOR, 61st Sess., U.N. Doc. A/RES/61/106. The observations of treaty bodies on individual States’ reports present a different situation than the general comments or reporting guidelines. Concluding observations address particular States’ compliance upon review of their reports and thus have no general applicability. However, while they do not directly address all States, their underlying considerations may contribute to independent expressions of the meaning of the provisions concerned. Recently, at the request of the General Assembly, the treaty bodies have coordinated their reporting guidelines to consist of a set of Harmonized Guidelines covering a common core of questions, together with treaty-specific questions for States Parties concerned. U.N. Secretary-General, Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International Human Rights Treaties, U.N. Doc. HRI/GEN/2/Rev.6 (June 3, 2009) [hereinafter Compilation of Reporting Guidelines]. The result contributes to the effort to streamline and reduce reporting work of States Parties. See generally A. Bayefsky, The UN Human Rights Treaty System in the 21st Century (2000). 259   See supra text accompanying notes 250–1 (legal status of General Assembly resolutions and practice of UN organs).



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themselves which apply to non-States Parties; rather, the interpretations of the treaty committees reflect upon the underlying human rights principles common to the treaties, the Declaration and the Charter. Thus, where sufficiently developed, a consensual process between States and within the UN can give certain principles enunciated by the treaty bodies “sufficient expression in legal form” through a process of law-making based on international acceptance of general principles.260 This process is one of building up a corpus of legal conviction on human rights principles – not necessarily or wholly fulfilled in practice. As such, it is distinct from customary international lawmaking which requires, not only opinio juris, but also consistent State practice. In this way, the treaty bodies’ work may contribute, not only an immediate influence with states parties concerned, but also a potential for international lawmaking as lex ferenda through State practice and Charter interpretation. This legal effect of lex ferenda can be applied equally to the work of the Committee on Economic, Social and Cultural Rights (CESCR, or Committee) which is referenced in this volume, since its mandate under decisions of the Economic and Social Council reflects a delegation of the Council’s own authority under the ICESCR to conduct oversight functions and issue “recommendations of a general nature”.261 260   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 I.C.J .31, 34 (21 June), cited in Simma and Alston, supra note 11, at 105 n.103, 107. 261  ICESCR, supra note 20, Part IV, art. 21 (quoted). The Committee on Economic, Social and Cultural Rights (ESC Committee) developed distinctively from the UN bodies created directly by human rights treaties. In the absence of a provision in the Covenant establishing a monitoring body with clearly defined functions, “the [Economic and Social] Council undertook very soon after the entry into force of the Covenant, on 3 January 1976, to fill these lacunae in the text of the treaty … In [a series of] resolutions and decisions, the Council dealt with the following procedural issues relating to the implementation of the Covenant: (a) Reporting obligations of States parties (resolution 1988 (LX), decision 1985/132, resolutions 1988/4 and 1995/39); (b) Establishment of a special monitoring body (initially, the sessional working group on the implementation of the International Covenant on Economic, Social and Cultural Rights; then the Committee on Economic, Social and Cultural Rights) in order to assist the Council in the consideration of reports submitted by States parties and in fulfilling other responsibilities, particularly those under articles 21 and 22 of the Covenant (decisions 1978/10 and 1981/158, resolutions 1982/33 and 1985/17); (c) Methods of work of the Sessional Working Group/Committee on Economic, Social and Cultural Rights (resolution 1979/43, decision 1981/158, resolutions 1982/33, 1985/17 and 1988/4); and (d) Sessions of the Sessional Working Group/Committee on Economic, Social and Cultural Rights (resolutions 1979/43, 1985/17 and 1995/39) …” U.N. Secretary-General, Follow-up and monitoring of the International Covenant on Economic, Social and Cultural Rights, paras. 2–3, U.N. Doc..E/1996/110 (Sept. 30,

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Part A of this chapter reviews the legal nature of the article’s broad invocation of a “right to social security”, noting that the narrow technical meaning of “social security” was rejected by the drafters during discussion of the corresponding article (now 25). The role of the “right to social security” in introducing the ESC rights of the Declaration is examined in the context of the broader notion of social justice, and the relationships between human rights and other fundamental global values and objectives such as peace and development. The last section probes the role that legal concepts of ESC rights and entitlements have played in the conceptualization of social justice in philosophical, political and economic theory. Part B examines the conceptual developments relating to the claim that “everyone, as a member of society” is entitled to ESC rights “indispensable for his dignity and free development of his personality”. The normative scope of the entitlement to indispensable rights is reviewed in light of subsequent treaties and other instruments. Its application at all times and in all circumstances is examined through subsequent interpretation. The implication of the rights-bearer as “everyone, as a member of society” is then reviewed in light of four key principles: uni­ versality, equality/non-discrimination, participation, and solidarity. A.  “… the right to social security” The association of the term “social security” with “social justice” in the context of article 22 provides a vital force to the rationale supporting ESC rights, and the umbrella article for the ESC rights of the Declaration was a good place to do that. The conceptual linkage was reinforced by UN-sponsored World Conferences which reaffirmed the principle of social justice reflected in the UN Charter and acclaimed social justice as “a fundamental value of all societies” and an underlying principle for social development and progress.262 As discussed in Chapter III, the drafters of article 22 had struggled in vain to find a single term that would convey their recognition of a universal guarantee to the social opportunities, freedoms and safeguards essential to the dignity and development of the human being.263 In the end, the term “social 1996). For the review of state reports under the ICESCR from its entry into force in 1976, see Mashood A. Baderin and Robert McCorquodale, supra note 20, at 7–9. 262  See infra Chapter IV.A.2. 263  Unfortunately, the fact that no better term than “social security” could be agreed upon has subsequently distracted commentary on the far-reaching effect of the



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security” in the opening phrase of the article was inserted with a broad meaning associated with social justice; indeed, the use of “social security” in its technical meaning had been rejected in the drafting of the Declaration.264 The drafting discussions and the resulting text of article 22 exemplify the depth of the “transformation in radical social thought”265 launched by including ESC rights in the international declaration of human rights at the time. 1.  Legal Nature of the “right to social security” as a Claim to Social Justice Although the “right to social security” is closely associated in the text of article 22 with the entitlement to realization of indispensable ESC rights, the text should be read in a way that avoids redundancy (consistent with the principles of interpretation). This suggests that the reference to a “right to social security” is a separate concept from the  entitlement itself as well as from the concept of social security embedded in article 25, for which subsequent articulations provide specific meaning. The distinctive meaning of the term emerges from drafters’ statements involving an amendment that would have moved reference in article 22. Scholars and international commentators have confused the term used in this article with technical social security schemes, unaware that the Declaration drafters themselves rejected the use of the term (in article 25) when it was proposed. See infra Chapter III.C.2. The confusion is compounded by the fact that the reference to everyone having a “right to social security” first appeared in draft article 41 together with specific social insurance aspects. See, e.g., Bard-Anders Andreassen, Article 22, in UDHR Commentary, supra note 3, at 331 (referencing the original 48 articles presented in the UN Secretariat Outline). 264   Among the drafters, the view prevailed that a technical reference to “social security” was capable of too many variations at national level to use in the human rights declaration. See infra Chapter II.B.1 for textual interpretation and Chapter III.C.2 for the drafters’ discussions of the term “social security” proposed but rejected for article 25 and then proposed for article 22. For a typology of current social security schemes, see ILO, World Social Security Report 2010/11: Providing coverage in times of crisis and beyond (2010). For the evolution of international and State law and practice in social security in the technical sense, see ILO, General Survey concerning social security instruments, supra note 126. As in its early reports under the Declaration, the ILO approach to the right to social security “in a human rights perspective” continues to ignore the primary relevance of article 25 and to limit the reference in article 22 to social security in a technical sense, concluding that the meaning imports only an individual right. Id. at paras. 154, 159. In practice, the ILO emphasis on social security “as a social institution regulated by its own legislative framework” provides a complementary executing role to the human rights principles of universality, equality, participation and solidarity embedded in article 22, which are given concrete form through ILO standards. See Chapter IV.B and text accompanying notes 564–8 (the role of specialized agencies in economic, social and cultural rights). 265  Sen, supra note 257, at 380.

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the reference to “right to social security” from the front of the article to join the references to dignity and free development of the personality that qualify which ESC rights are “indispensable”. Had the amendment passed, the “right to social security” would have had a meaning more specific to the human condition, as do dignity and development of the personality, rather than broadly stating a general principle. The opposing delegates explained that they voted against the amendment in order to maintain the reference to “social security” as an overarching principle which addressed social justice or the right ordering of society rather than simply the human condition.266 In this context, the “right to social security” emerges as a guarantee to an ESC rights-based ordering of society that secures human dignity and well-being. The “right to social security” in the broad sense of the umbrella article was thus of a different order than any single right. The reference was interpreted soon after its adoption to be “employed … not in the technical sense of social insurance and other social assistance but as including all the social and economic freedoms necessary to ensure the individual’s well-being”267 as a member of society. As a reference intended to usher in the ESC rights of the Declaration, the underlying general concept signifies at least a guarantee to not be deprived of the minimum level of ESC rights necessary to live in dignity and develop one’s own personality. The declaration in the text that everyone has the “right to social security” leads to the recognition of an “entitlement” to the realization of ESC rights. The result encompasses, at a minimum, the fulfilment of the human rights most essential to economic, social and cultural survival, including the right to life recognized in the Declaration and the International Covenant on Civil and Political Rights (ICCPR),268 which has been called “basic to all human rights”.269

  See supra Chapter III.C.2.2 (explanations given following narrow defeat of an amendment). See Helle Kanger, supra note 3, referring to Albert Verdoodt, Naissance et signification de la Déclaration Universelle des Droits de l’homme (1964) (« la justice sociale » in article 22). 267  Robinson, supra note 49, at 353. The purpose of the article, in a view expressed within the first decade of the life of the Declaration, “is to call for action by nations and international bodies with a view to providing “social security” for everyone in the future rather than to require immediate measures for granting the individuals any right or freedom, as do the rest of the articles.” Id. (footnote eliminated). 268   Universal Declaration, supra note 1, art. 3; ICCPR, supra note 20, art. 6, para. 1. 269   Human Rights Committee (hereinafter CCPR), General Comment No. 14: Right to life (article 6), para. 1 (1984), in Compilation of General Comments and General Recommendations adopted by Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 9 (Vol. I) (May 27, 2008) [hereinafter 2008 Compilation]. The General Comments of the Human 266



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The right to life in turn depends upon other specific ESC rights, such as the right to food; its protection requires that States adopt positive measures including measures to eliminate malnutrition and epidemics.270 A deprivation of the minimum levels of ESC rights to food, housing and health care, for example, would directly affect enjoyment of the rights to life and security as well as other internationally-recognized human rights since they are all interdependent.271 Article 22’s general sense of social security serves as a basket supporting these interdependent ESC rights. The broadly-conceived “right to social security” in article 22 thus bears the status of a moral norm272 underlying the ESC rights regime in the articles that follow, yet the question remains whether the reference to this broad “right” itself signifies an independent legally-enforceable right. While competing approaches to norms creation in human rights law are far from settled, it is generally considered difficult to conceive of a “human right” in the legal sense in the absence of obligatory compulsion. A legally-binding human right carries with it a corresponding obligation of the State to act within its own territory273 as Rights Committee cited in this volume are reproduced in the 2008 Compilation unless otherwise noted. 270  CCPR., General Comment No. 6: Right to life (article 6), para. 5 (1982). In the context of drafting the article in the ICCPR, several delegations mentioned positive obligations as necessary to ensuring the right. 271   As early as 1950, the General Assembly recognized “man as a person, to whom civil and political freedoms as well as economic, social and cultural rights indubitably belong” and the enjoyment of which “are interconnected and interdependent.” G.A. Res. 421(V), supra note 20, Part E, preamble, second and third paragraphs. See also G.A. Res. 32/130, para. 1(a), U.N. GAOR, 32nd Sess., at 150–1 (Dec. 16, 1977) (work on human rights questions should take into account the concept that “[a]ll human rights and fundamental freedoms are indivisible and interdependent”). The interdependence of all human rights was reinforced in the World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, para. I.5, U.N. Doc. A/CONF.157/23 (July 12, 1993) (“all human rights are universal, indivisible, and interdependent and interrelated”). 272   A moral norm expressed in terms of a “human right” may increase its force when given social recognition and an acknowledged status, even when no enforcement may be possible. See, e.g., Special Rapporteur, Right to Adequate Food as a Human Right, Final report by Asbjorn Eide, U.N. Doc. E/CN.4/Sub.2/1987/23 (July 7, 1987) (by Asbjorn Eide) [hereinafter Eide, Right to Adequate Food as a Human Right], updated in Asjobrn Eide, The right to adequate food and to be free from hunger, Updated study on the right to food, submitted by Mr. Asbjorn Eide in accordance with Sub-Commission decision 1998/106, U.N. Doc. E/CN.4/Sub.2/1999/12 (June 28, 1999). In that case, the claim represents a compelling moral conviction about a social interest motivated by personal or interpersonal conviction. A. Sengupta, The Human Right to Development 31 (2004). 273  Eide, Right to Adequate Food as a Human Right, supra note 272, at 12–6. See also Onora O’Neill, The Dark Side of Human Rights, 81 Int’l Affairs (Vol. 2) 427, 430

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well as in relation to other States, and acceptance of the right of international organizations and other States to get involved in ensuring compliance.274 Applying these criteria, it is difficult to consider the “right to social security”, in the general article 22 sense of an ESC rights-based ordering of society, as an independent right. Nonetheless, the guarantee of an indivisible set of ESC rights indispensable for one’s dignity can be seen to operate in legal terms primarily as a fundamental principle of international law, within the field of human rights and beyond.275 While no single definition of “fundamental principles of international law” or even “general principles of law” exists,276 it is generally agreed that certain basic principles underlie international law. These general principles of law are considered as motivating influences which, in legal terms, guide the course of normative development within and across specific fields of international law. In relation to principles of humanitarian law, for example, it has been noted that “as in every other juridical sphere, principles are of capital importance. Principles motivate the whole by offering solutions to unforeseen cases by extrapolation; they contribute to filling gaps in the law and they assist its future development by indicating the course which should be followed.”277

(2005) (a normative view of rights claims has to take obligations seriously). According to one school of thought, the State’s duty to respect or protect can only exist if social conditions exist to satisfy the moral right. Raz, supra note 257, at 336. 274   Id. Another model considers States as the bearers of the primary responsibilities to respect and protect human rights, and the international community and those acting as its agents as the guarantors of these responsibilities for a “second-level” accountability. C. Beitz, The Idea of Human Rights 108–12 (2009). 275   Fundamental principles operate in the interstitial spaces of coordination between the moral and legal spheres of norms of conduct. I do not mean to imply that there is synchronization between the moral and legal spheres but merely that there are areas in which law and morality appear to work together. 276   The Statute of the International Court of Justice, supra note 255, art. 38(1)(c) describes “general principles of law recognized by civilized nations” as a source of international law. Nonetheless, the meaning of this phrase has been disputed even during its preparation and the Court’s use of this concept since has avoided expressly indicating that it was applying the article as such. Compare Maurice Mendelson, The ICJ and Sources of International Law in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings 63, 79 (Vaughan Lowe and Malgosia Fitzmaurice, eds, 1996) with Simma and Alston, supra note 11, at 102–7. 277  Jean Pictet, Humanitarian Law and the Protection of War Victims 28 (1975). See also Oscar Schachter, International Law in Theory and Practice 51 (1991); Ian Brownlie, Principles of Public International Law, 4th ed. 16 (1990); Bin Cheng, General Principles of Law as Applied by International courts and Tribunals 6–21 (reprint 1987( (1953). A principle is open to different



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Drawing upon the above distinctions, the “right to social security” in the sense of a right to social justice in article 22, while not itself an independent right, may be viewed as shaping the course of legally binding international norms in several ways. First, the principle of a right to social security/justice has already motivated the recognition of a set of discrete legally binding ESC human rights as discussed above, and the article itself may continue to influence the realization of such rights as well as the development of other specific rights or standards which are, or are becoming, capable of enforcement. Second, as discussed in the next section (IV.A.2), the article’s broad “right to social security” calls for an integrated approach to ESC rights which complements the operation of the fundamental principle recognizing the interrelated and interdependent nature of human rights in society. The concept continues to inform a reasonable and practical view of what constitutes fair conduct in relations by States and non-State actors in line with human dignity and the opportunity for human development. Third, the reference expresses a morally authoritative claim that aims at human freedom from deprivation through an inter-connected realization of ESC rights that are indispensable to the idea of social justice. Freedom to live in dignity and to develop as a person rests in the security of some core of inter-connected rights, the absence of which would prevent the opportunity for a life with dignity and personal meaning. The article’s rationale thus sets the mark far beyond an approach to ESC rights as social and economic assets for subsistence, possession, or consumption, although these aspects remain altogether relevant in the face of persistent poverty and conflict. While fully insisting on concrete results that bring equitable distribution of opportunities and access to every person, the article lifts the underlying rationale for ESC rights to one in which ESC rights are recognized as dynamic enabling factors at work in the life of each person, alone and in relation to others and to society, to be received freely and responsibly. This distinctive rationale for the implementation of ESC rights gives meaning to other rights, especially the right to life itself. The article’s “right to social security” as the means to dignity and personal development motivates the integrated realization of a set of ESC rights that have come to be recognized as legally enforceable, yet stretches beyond the distribution of mere

adaptations within the limits of a core content that must be preserved in all cases. See Ronald Dworkin, Taking Rights Seriously 22–8 (1977).

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utilities to facilitate the well-being of the individual and society. As such, the article serves as a normative specification in ESC rights terms of the process and the results expected of social justice.278 2.  The Role of ESC Rights in Achieving Social Justice, Peace, and Development The right to social security in its broad article 22 sense operates as a principle connecting indispensable ESC rights to social justice. The fundamental concept of social justice has played a formative role in normative and institutional developments linking human rights and other key principles of the UN Charter, particularly social progress and development, and peace.279 While its impact continues to evolve, this rationale of a rights basis for social justice also motivates the idea that the pursuit of human rights and social and economic development should be accomplished together. The article 22 sense of social justice and security is also evident in other evolving normative and institutional concepts reviewed in this section, notably the idea of human security, social protection for all, and the approach to human rights and extreme poverty. The modern international legal roots for an ESC rights approach to social justice predate the Universal Declaration. After World War I, the Treaty of Versailles connected the aim of “maintenance of justice” with human well-being.280 To give effect to this aim, the League’s Members sought “to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organisations.”281 The international entitlement to act in the pursuit of social justice was grounded in the impact of social justice on   For the relationship of article 22 to social justice theory, see Chapter V.A.3.   On the principles of the Charter, see Chapter II.A. For linkages with the UN’s development operations, see Darrow and Arbour, supra note 256, at 450 (consensus has so far proven possible on recognition of “interlinked and mutually reinforcing” nature of UN system’s three principal pillars: human rights, development, peace and security). 280   See League of Nations Covenant, preamble. The term “justice” was left undefined. 281   Id. art. 23 (in pertinent part). In the same article, the League’s Members agreed to use their association in the League to address trafficking in women and children and take steps in matters of international concern for the prevention and control of disease. 278 279



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interstate relations and across borders in other countries: “universal and lasting peace can be established only if it is based upon social justice”.282 While “social justice” itself was not defined,283 the term was linked to a rights-based context: humane conditions of labour and the elimination of conditions that involve injustice, hardship and privation.284 Upon demise of the League, the Versailles approach to social justice was retained in the constitutional mandate of the independent ILO.285 In 1944, the ILO’s International Labour Conference issued a resolution, commonly called the Philadelphia Declaration, which presaged article 22 with remarkable precision. The Conference declared that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.”286 This “fundamental objective” of the ILO was declared the “central aim of national and international policy” against which all national and international policies and measures, in particular those of an economic and financial character, should be judged … and accepted only in so far as they may be held to promote and not to hinder [its] achievement.”287 282   Treaty of Versailles, supra note 191, at Part XIII (Labour), Sec. 1, first premabular paragraph. 283  During the drafting of the article that became article 22 of the Universal Declaration, the French representative on the drafting committee referred to the ILO’s approach to social justice in supporting an amendment to use the term “social justice” in place of the term “social security” which he had originally proposed. The amendment ultimately failed and the term “social security” was retained. See text accompanying note 191. 284   “… [t]he failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries.” Treaty of Versailles, supra note 191, at Part XIII (Labour), Sec. I, preamble, third paragraph. This wording remains in the preamble of the ILO Constitution. ILO Constitution, supra note 36, preamble, third paragraph. 285   Id, preamble, first and third paragraphs, and Annex, Declaration of Philadelphia, Part II, chapeau. 286   Id. Declaration of Philadelphia, Part II, para. (a). 287   Id. Part II, paras. (b), (c). The Philadelphia Declaration calls for ILO’s full cooperation with international bodies entrusted with responsibilities for economic, financial and trade relations and the promotion of health, education and well-being of all. Id. Part IV. While standing relationship agreements facilitate ILO co-operation with other international organizations in the fields of health, education and development, ILO co-operation with international economic, financial and trade organizations has proceeded mainly on an ad hoc basis without standing agreements. Joint research and policy initiatives are conducted with the World Bank, IMF and the WTO and the ILO has played a role especially on employment aspects in several G-8 and G-20 meetings. E.g., Int’l Labour Office, Policy coherence for strong, sustainable and balanced growth,

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ILO pursuit of this objective, notably through its “unique corpus juris of social justice”288 has focused on areas relevant to the ESC rights later recognized in articles 23–27 of the Universal Declaration: opportunities for employment, higher standards of living, guarantees for education and training with equality of opportunity, just wages and freedom of association, social security measures for a basic income for all in need and medical care, occupational safety and health, and affirmative provisions for nutrition and housing and cultural rights of all. The pursuit of social justice through rights-based principles has continued to mark ILO’s action within its specialized mandate of the world of work. Notably, through reference to the principles underlying its so-called “human rights Conventions” in 1998, the ILO Declaration on Fundamental Principles and Rights at Work sought to “maintain the link between social progress and economic growth” through the guarantee of fundamental principles and rights at work.289 Ten years later paras. 36–46, ILO Doc. GB.309/WP/SDG/1 (Nov. 2010) (“policy coherence has never been more important or more difficult”). 288   C. Wilfred Jenks, Human rights, social justice and peace: The broader significance of the I.L.O. experience in International Protection of Human Rights: Proceedings of the Seventh Nobel Symposium, Oslo, Sept. 25–27, 1967, at 234 (Asbjorn Eide and August Schou, eds., 1971) [hereinafter Nobel Symposium]. “Virtually all of the ILO Conventions and Recommendations are in some measure a contribution to the promotion and protection of human rights in the broad sense in which the term is used in the Charter of the United Nations, the Universal Declaration of Human Rights, and the United Nations Covenant on Economic, social and Cultural Rights, for even the most technical of them may be regarded as measures for the implementation of the right to just and favourable conditions of work affirmed by [the Declaration and Covenant].” Id., at 235–6. See also Nicolas Valticos, International labour standards and human rights: Approaching the year 2000, 137 Int’l Labour Rev. 174 (1998). See also Declaration of Philadelphia, supra note 36, at Part III, secs. (a)-(j) (ILO fields identified in text), with Declaration, arts. 23–27 (rights concerning work and leisure, health and well-being, education, and freedom and advancement of cultural life). 289   ILO Declaration on Fundamental Principles and Rights at Work, preamble, fifth paragraph, Int’l Labour Conf., 86th Sess. (June 18, 1998) in I.L.C. Proceedings, 86th Sess. Prov. Rec. 20A/1, adopted Prov. Rec. 22 at 29 (1998) (Annex revised, Int’l Labour Conf., 99th Sess., June 15, 2010). The fundamental principles and rights at work involved principles concerning the fundamental rights which are the subject of the human rights Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. Since the principles of the ILO Constitution that underlie the corresponding Conventions, and not the provisions of the Conventions themselves, are the direct subject of the Declaration, it applies to all member States on the basis of their constitutional commitments. Id. Sec. 1(a). The “Conventions in question” “all have a close bearing on personal freedom, not only in the enlarged sense of freedom from fear and from want (fundamental as such



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the ILO reformulated its pursuit of social justice as the promotion of a broader set of “strategic objectives” that included the 1998 Declaration’s aims as well as employment promotion, social protection, and social dialogue.290 While the term “social justice” does not appear as such in the UN Charter, its integral relationship with human rights and the other principal purposes of the UN is implicit in the text of the Charter. As discussed more fully in Chapter II, the Charter’s preamble refers to a determination to reaffirm faith in human rights, promote social prog­ ress and better standards of life in larger freedom, and establish conditions under which justice can be maintained.291 It envisions the use of “international machinery for the promotion of the economic and social advancement of all peoples”.292 The UN’s purposes include taking “appropriate measures to strengthen universal peace”, a phrase that uses the familiar wording linking “universal and lasting peace” to social justice in the Treaty of Versailles and the ILO Constitution.293 In order to “create conditions of stability and well-being necessary for peaceful and friendly relations among nations based on equal rights and selfdetermination of peoples”, a combination of commitments were made: to promote higher standards of living and economic and social prog­ ress along with solutions to economic and social problems, cultural and educational co-operation, and human rights.294 The implicit role of social justice in the UN Charter has subsequently been acknowledged and linked closely with human rights and development in a number of General Assembly resolutions which, by consis­ tent elaboration, may contribute to the development of international freedom may be) but in the primary sense of freedom from arbitrary restraint upon the action and opportunities of the individual”. ” C. Wilfred Jenks, in Nobel Symposium, supra note 288, at 236 and n.15. 290   ILO Declaration on Social Justice for a Fair Globalization, supra note 36, Part I (A). The four objectives are based in the constitutional aims of the Organization and further specified in ILO Conventions and Recommendations. Their application is aided through reports of States for review by the ILO supervisory machinery, and ILO technical assistance and advisory services, in a process that is coordinated with a recurring review of efforts of the Organization and its Members to achieve the strategic objectives provided for in the Follow-up to the Declaration. Id. Annex, Part II, B (introducing a “scheme of recurrent discussions by the International Labour Conference to better understand the realities and needs of the Members in order to respond with ILO means of action, and assess results of ILO activities). 291   UN Charter, preamble, second to fourth paragraphs. 292   Id. preamble, eighth paragraph. 293   See supra text accompanying notes 282–5. 294   UN Charter, art. 55.

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law through the operation of treaty or custom.295 In the authoritative Declaration on Social Progress and Development, the General Assembly affirmed in 1969 that “[s]ocial progress and development shall be founded on respect for the dignity and value of the human person and shall ensure the promotion of human rights and social justice …”296 Subsequent resolutions reaffirmed “the principle[] … of social justice proclaimed in the Charter”, even though the term social justice does not itself appear in the text of the Charter; such references placed social justice with “human rights and fundamental freedoms” and “the principles of peace [and] of the dignity and worth of the human person”297 as a pivotal principle in understanding and implementing the UN mandate. In the Copenhagen Declaration and Programme of Action adopted at the World Summit for Social Development (WSSD) in 1995, the participants shared “the conviction that social development and social justice are indispensable for the achievement and maintenance of peace and security within and among our nations. In turn, social development and social justice cannot be attained in the absence of peace and security or in the absence of respect for all human rights and fundamental freedoms. This essential interdependence was recognized 50 years ago in the Charter of the United Nations and has since grown ever stronger.”298 Invoking the same key themes as article 22, the WSSD recognized in its Programme of Action that “[h]uman dignity, all human rights and fundamental freedoms, equality, equity and social justice constitute the fundamental values of all societies … the pursuit of [which] … promotes an environment in 295   The General Assembly itself has no legislative power per se. Michel Virally, The Sources of International Law in Manual of Public international Law, 143, 145–6 (Max Sorenson, ed., 1968). 296   Declaration on Social Progress and Development, supra note 67, art. 2. Ensuring the promotion of social justice and human rights through social progress and development requires “elimination of all forms of … exploitation of peoples and individuals”, Id. 297   See, e.g., Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), U.N. GAOR Supp. No. 34, U.N. Doc. A/10034, at 88 (Dec. 9, 1975), preamble, second paragraph; Declaration on the Rights of Mentally Retarded Persons, GA Res. 2856 (XXVI), U.N. GAOR Supp. No. 29, U.N. Doc. A/8429, at 93 (Dec. 20, 1971), preamble, second paragraph. 298  World Summit for Social Development, March 6–12, 1995, Copenhagen Declaration on Social Development, Annex I, Introduction, para. 5, U.N. Doc. A/ CONF.166/9 (March 12, 1995). The heads of State and Government at the World Summit for Social Development (WSSD) committed to promote “democracy, human dignity, social justice and solidarity at the national, regional and international levels” Id. Part B (Principles and Goals), para. 26(f).



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which human beings are at the centre of concern for sustainable development”.299 As articulated by the WSSD, the pursuit of social development aims at a social justice that operates as a rights-based entitlement of individuals, communities, peoples, and nations and as a rule for ordering relations within and among nations.300 Economic growth is considered necessary but not sufficient to achieve social justice.301 The principle of development that entitles people to progress has evolved as a principle based in human rights and social justice, notably through a series of international conferences and summits.302 At a 299   World Summit for Social Development, March 6–12, 1995, Programme of Action of the World Summit for Social Development, Annex II, Chapter 1, para. 4, U.N. Doc. A/ CONF.166/9 (March 12, 1995). 300   Copenhagen Declaration, supra note 298, Part C, para. 29 (social development aims at social justice, solidarity, harmony and equality within and among countries), Commitment 1(f) (to create the environment to enable people to achieve social development, ensure realization of rights in International Bill of Rights and Declaration on Right to Development, including rights of education, food, shelter, employment, health and information, particularly for people in poverty), Commitment 4 (f) (support indigenous people’s aspirations for social justice). The goals of the WSSD included action to “[s]upport progress and security for people and communities whereby every member of society is enabled to satisfy basic human needs and to realize his or her personal dignity, safety and creativity”. Copenhagen Declaration, supra, Part B, para. 26(l). The common pursuit of social development seeks to “promote … social justice … at the national, regional and international levels.” Id. Part B, para. 26(f). 301   Id. para. 6 (“broad-based and sustained economic growth in the context of sustainable development is necessary to sustain … social justice”); Programme of Action, supra note 299, Chapter I, para. 6 (“social progress will not be realized simply through the free interaction of market forces …[economic] growth should promote equity and social justice, tolerance, responsibility and involvement.”). See also ILO Declaration on Fundamental Principles and Rights at Work, supra note 289, preamble (“whereas economic growth is essential but not sufficient to ensure equity, social progress and the eradication of poverty, confirming the need for the ILO to promote strong social policies, justice and democratic institutions”). See also Copenhagen Summit of the European Community Member States, Document on the European Identity published by the Nine Foreign Ministers, para. I, 1 (Dec. 14–15, 1973), 12 Bulletin of the European Communities (EC) 118–22 (Dec. 1973) (recognizing that the “ultimate goal of economic progress” is social justice). 302   The lack of development was seen to present persistent obstacles that impeded the full realization of ESC rights. In 1968, the Teheran Conference on Human Rights recognized that universal enjoyment of human rights would remain a “pious hope” if the development gap were not addressed and called urgently for “immediate effective action with a view to establishing economic and social justice” by all members of the international community. International Conference on Human Rights, Apr. 22-May 13, 1968, Final Act, at 14, Res. XVII, Economic Development and Human Rights, preamble, first and fifth paragraphs, para. 5 (May 12, 1968), UN Doc. A/CONF.32/41, Part III, U.N. Sales No. E.68.XIV.2 (1968) (“there is a profound inter-connexion between realization of human rights and economic development”); Vienna Declaration and Programme of Action, supra note 271, paras. 6, 8 (democracy, human rights and development are interdependent and mutually reinforcing).

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conceptual level, development is joined together with human rights and peace as the “interlinked and mutually reinforcing” pillars of the UN system.303 The principle of development became regarded as a necessary enabling condition for the enjoyment of many human rights, and increasing support for national and international action for development led to recognition of an international right to development in the 1986 Declaration on the Right to Development,304 although its legal implications remain unsettled.305 In certain key aspects, the general right to social security as social justice in article 22 accompanies the right to development, conceptually and practically.306 Both concepts operate as frameworks within which ESC rights can be realized; both recognize the need for a comprehensive, interdependent and continuous effort to realize human rights.307 Under both systems, all human 303   2005 World Summit, Sept. 14–16, 2005, World Summit Outcome, Chapter I (Values and principles), para. 9, G.A. Res. 60/1, U.N. GAOR, 60th Sess., Supp. No. 49, U.N. Doc A/RES/60/1 at 3 (Sept. 16, 2005). 304   Declaration on the Right to Development, supra note 67. The UN Commission on Human Rights had earlier recognized that social and economic development was a prerequisite to implementation of ESC rights, especially in developing countries and that, due to the interdependence of all human rights, “the full implementation of [ESC] rights is of crucial importance for the real and meaningful enjoyment of civil and political rights”; in so doing, the Commission stressed “the responsibility and duty of all members of the international community to create the conditions” to fully realize ESC rights and called on States to take effective measures at national and international level to that end. Comm’n H. R., U.N. Doc. E/CN.4/RES/4 (XXXIII), U.N. ESCOR, 62nd Sess., Supp. No. 6, U.N. Doc. E/CN.4/1257, at 74–5 (21 Feb. 1977). In 1993, the World Conference on Human Rights reaffirmed the right to development as a universal and inalienable right and an integral part of fundamental human rights. Vienna Declaration and Programme of Action, supra note 271, para. 10. 305   In disputing the character of the right to development as a legal right, one commentator has rejected the idea that article 22 could be the source since that article could imply “at most a right to a fair share of available resources, not a right to development.” Jack Donnelly, In search of the Unicorn: the jurisprudence and politics of the right to development, 15 Calif. Western Int’l L. J. 473, at 482 (1985). On U.S. opposition to the evolving recognition of a right to development, see Russel Lawrence Barsh, The right to development as a human right: Results of the Global Consultation, 13 Human Rights Quarterly 322–38 (1991). 306   Article 28 of the Universal Declaration, which calls for a social and international order in which human rights and freedoms can be realized, has been dubbed the embryo of the Declaration on the Right to Development. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Asbjorn Eide, Preparatory document on the relationship between the enjoyment of human rights, in particular economic, social and cultural rights, and income distribution, U.N. Doc. E/CN.4/ Sub.2/1994/21, para. 1 (1994) [hereinafter Eide, Human rights and income distribution]. For the relationship between articles 22 and 28 of the Declaration, see supra Chapter II.B. 307   Compare Declaration on the Right to Development, supra note 67, preamble, articles 1, 2, 6 and 10, with Chapter V.A infra (scope and duties involved in realizing the entitlement under article 22).



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beings have a responsibility and right to their own progress, individually and collectively.308 As with article 22, the Declaration on the right to development also specifies that, in pursuing its goals, the human person is the central subject and an active participant and human rights inform both the means and ends of development.309 Nonetheless, the concept of a right to development and that of a right to social justice are distinct. Development is described as “a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom”.310 In contrast, the social justice concept implicit in the “right to social security” of article 22, requires conditions of development in many cases but is not limited to development. As discussed further in section A.3 of this chapter, social justice in the article 22 sense enables the possibility for well-being rooted in dignity and the “free development of [the] personality” that depend on the relationship to oneself as well as to others and to society. The ultimate aims of social justice, which require the realization of ESC rights, secure the potential for an ongoing fruitful human experience, with oneself and in society.311 The right to social security in the nature of social justice also appears implicitly in the evolving concept of “human security” under debate in scholarly literature and official fora.312 Based in a 1994 Human Development Report, the concept of human security stresses the right of people to live in freedom and dignity, free from poverty … and recognizes that freedom from fear and freedom from want provides “an equal opportunity to enjoy all [human] rights and fully develop their 308   Compare Declaration on the Right to Development, supra note 67, art. 2, para. 2 with Chapter IV.B infra (participation and solidarity in benefitting and contributing through ESC rights to society). 309   Compare Declaration on the Right to Development, supra note 67, articles 1, 2, 8 with Chapter V.B. (elements of article 22 operative in the human rights approach to development). 310   Declaration on Right to Development, supra note 67, preamble, third paragraph. 311   See infra Chapter IV.C (dignity and free development of the personality, meaning of indispensable rights). 312  There is no internationally-agreed definition of human security to date. See Keeping the promise: united to achieve the Millennium Development Goals, G.A. Res. 65/1, para. 25, U.N. Doc. A/RES/65/1 (Sept. 22, 2010) (discussion to continue in the General Assembly), reviewing 10 years of effort under the Millennium Declaration, see infra note 380. For a view that human security discourse may offer a working alliance between rights, development, and need, see Des Gasper, Human Rights, Human Needs, Human Development, Human Security, in Forum for Development Studies 9 (2007).

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human potential.”313 Among the conclusions reached by the recentlyconvened Commission on Human Security,314 more than half directly covered goals related to the ESC rights in articles 23–27 of the Declaration; these included economic reforms to benefit the extreme poor, promotion of minimum living standards, universal access to basic health care, universal basic education, a global system for patent rights and a global human identity while respecting individual freedom and diversity.315 Any final result in conceptualizing human security, while targeting efficiencies of integrated action, should not fail to ensure that all the indispensable ESC rights are progressively achieved in their entirety. Similarly, growing international recognition that “social protection is not only an instrument of social justice but also a major tool of economic stabilization”316 has initiated a UN-led effort to establish a “social protection floor”.317 While the usage and scope of the term « social protection » varies, the social protection concept encompasses ESC rights within the meaning of articles 25 and 26 of the Declaration as 313   U.N. Development Programme (UNDP), Human Development Report 1994, at 22–38 (1994). 314  Commission on Human Security, Human Security Now, Report of the Commission on Human Security (2003). 315   Id. at 133–43. The other conclusions of the Commission on Human Security covered aspects of “freedom from fear” in relation to violence, arms, migration, post-conflict reconstruction. 316  President of the 63rd Session of the U.N. General Assembly, Report of the Commission of Experts of the President of the United Nations General Assembly on Reforms of the International Monetary and Financial System, para. 47 (Sept. 21, 2009). Id. paras. 48, 90 (recommending measures including a special facility to restore and expand social protection in countries of need; social spending could “crowd in” private investment and raise the economy’s current and future growth rates while decreasing its volatility). The leaders of the Group of 20 (G-20) announced a financing programme to support social protection, boost trade and safeguard development in low-income countries. U.N. Secretary-General, The World Financial and Economic Crisis and its Impact on Development, paras. 46–47, 50, U.N. Doc. A/CONF.214/4 (June 22, 2009). 317   Keeping the promise, supra note 312, paras. 23(f), 51, 70(g) (promoting universal access to public and social services and providing social protection floors; social protection systems to address and reduce inequality and social exclusion are essential for development); Implementation of the outcome of the World Summit for Social Development and of the twenty-fourth special session of the General Assembly, G.A. Res. 64/135, U.N. Doc. A/RES/64/135, paras. 24, 29, 32, 35 (Dec. 18, 2009), (need to strengthen “social protection and health systems” to reduce inequality and social exclusion); Outcome of the Conference on the World Financial and Economic Crisis and Its Impact on Development, June 24–26, 2009, G.A. Res. 63/303, U.N. Doc. A/ RES/63/303, Annex, para. 22 (calling for mobilization of additional resources for social protection, food security and human development).



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further articulated in the ICESCR. It consists of two main elements: (a) ensuring access to basic social services and (b) creating universal access to social transfers to provide minimum income security (including through cash transfers and enhancing social security coverage). The “services” element involves food and water security, sanitation and health, and education; the “transfers” element targets a minimum income security and access to health care; rights relating to work and employment are closely associated, at least at the minimum essential levels of rights embodied in human rights treaties.318 While relevant to realizing human rights for people in extreme poverty, the social protection measures do not necessarily incorporate a rights-based approach in their design, implementation and evaluation of social protection measures. According to the independent expert on human rights and extreme poverty, the incorporation of a rights-based approach to social protection could serve as a means to maximize synergies across development goals and have greater effect in reducing extreme poverty and inequality.319 Such an approach would recognize State human rights obligations to provide social protection and ensure an adequate legal and institutional framework, and respect principles of equality (including gender equality) and non-discrimination, and guarantee participation, transparency and accountability.320 This type of rights-based approach, which closely resembles the structure and meaning embodied in article 22 of the Declaration,321 could also be applicable to the human security initiative discussed above. In practice, however, the human security and social protection initiatives, and their relationship to the fulfillment of human rights obligations, are still evolving.

318   UN System Chief Executives Board for Coordination (CEB), CEB Issue Paper: The global financial crisis and its impact on the work of the UN system, U.N. Doc. CEB/2009/HLCP-SVII/CRP.1, at 24 (April 22, 2009) (Juan Somavia). Leading the initiative are the ILO and the World Health Organization (WHO); among the co-operating agencies are FAO, IMF, UNDP, UNESCO, WFP, WMO and the World Bank. Id. See also The World Financial and Economic Crisis and its Impact on Development, supra note 316, para. 42 n.20 (initiative agreed in CEB communiqué of 5 April 2009). 319   Independent expert on the question of human rights and extreme poverty, Report on Human rights and extreme poverty, in Note by the U.N. Secretary-General, U.N. Doc. A/65/259 (Aug. 9, 2010) (by Magdalena Sepúlveda). 320   Id. paras. 67–96. 321   See infra Chapter IV.B and Chapter V.

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This section assesses the influence of the idea of indispensable ESC rights on the concepts of social justice presented in philosophical, political and economic discourse. While a full examination is beyond the scope of this volume, it is evident that the approach of article 22 bear a close resemblance to basic concepts of social justice developed in both scholarly discourse and global legal and political commitments.322 As discussed below, the ESC rights introduced in article 22 are integral to a reasonable conceptualization of social justice, and the use of the legal concepts of rights and entitlements, together with duties of individuals, society and the States in national effort and international co-operation, permit a practical, objective identification of real progress toward social justice. Further consideration of the role of human rights, especially ESC rights, in theories of social justice could relate the claim of human rights for every individual to the common good of society, in particular through the idea of a human rights-based social ordering. This approach would exploit the remarkable alignment between the conceptual foundations of social justice, on the one hand, and the human rights framework based on article 22’s “right to social security”, on the other hand. The two frameworks share philosophical roots in the broader principle of justice. Aristotle’s division of legal justice into horizontal and vertical dimensions, for example, is foundational to both human rights and social justice theory. In Artistotelian thought, commutative justice operates within the sphere of relations between private individuals or groups involving individual well-being in community while distributive justice regulates the actions between the social whole and the citizens and groups which are its parts.323 The emphasis on distributive justice developed further theories for the distribution of

322   The dual focus of this chapter reflects the complementary relationship between philosophical debate and global public deliberative processes. See Allen Buchanan, Human Rights and the Legitimacy of the International Legal Order, 14 Legal Theory 39 (2008). The present review seeks to contribute to understanding the impact of human rights on the operative conceptions of social justice and development. 323  Aristotle, The Nicomachean Ethics, Book V: Justice 3–5 (Lesley Brown, ed., 2009), discussed in Fred Dycus Miller, Nature, Justice, and Rights in Aristotle’s Politics 69–70 (1995). For a study of the evolution of the term “social justice” in relation to different philosophical understandings of the individual, society and the State, see Leo Shields, The History and Meaning of the Term Social Justice (1941).



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resources, opportunities, profits and advantages, responsibilities, taxes and burdens. These theories supported the conceptualization of a new term, social justice.324 As discussed below, their modern counterparts approach the organization of opportunities and benefits to build capabilities and freedoms in a way reminiscent of the purpose and means of the universal entitlement to ESC rights in article 22. 3.1  Claim to a Human Rights Ordering of Social Justice The theoretical foundations of human rights and social justice share common roots in the principles of equality and mutuality, and relationships based on duties and rights between human beings, and between society and its members.325 These principles reflect the three Thomist dimensions of justice identified as (1) “other-directedness”, dealing with one’s relations with other persons, (2) duty, what is owed or due to another, and correspondingly a right of another, and (3) equality.326 Cutting across these approaches is an emphasis on the role of the individual in society which, in article 22, is further promoted in using the membership of the individual to society as the justification for the universal entitlement to “indispensable” rights. In social justice theory, attention to the individual in relation to the common good motivates the proposal of pioneering work of John Rawls in which each person “possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”327 In contrast to utilitarian theory,328 324   The term “social justice” came into use in the mid-19th century, particularly in Catholic thought. The term reportedly first appeared in 2 A. Taparelli d’Azeglio, Saggio Teoretico di Dritto Naturale 347–56 (1845), cited in Shields, supra note 323, at 26 and 2 Friedrich A. von Hayek, Law, Legislation and Liberty: The Mirage of Social Justice 66 n.8 (1976). Later, in the 20th century, the term was used in papal encyclicals regarding social affairs and in socialist circles. For a discussion of distributive justice in Marxist thought, see Ziyad I. Husami, Marx on Distributive Justice, 8 Philosophy & Public Affairs 27 (1978). 325   For the legal articulation of equality, participation and solidarity related to mutuality, see infra Chapter IV.B. 326  St. Thomas Aquinas, Summa Theologica IIaIIae 61.1–61.2 (Ency. Brit. ed. 1990); John M. Finnis, Natural Law and Natural Rights 161–3 (1988). 327  David Miller, Social Justice 40 (1976). 328   Critics have cast doubt on the practical feasibility of mechanisms for distributing justice or the right of the state to take from one and give to another. E.g., Friedrich A. von Hayek, supra note 324, arguing that a free society is based on the market and a system of justice compatible with freedom controls only the behaviour of individuals not the result; Robert Nozick, Anarchy, State and Utopia (1974), valuing liberty in property ownership as paramount. Amartya Sen describes two divergent approaches to social justice in the 18th and 19th centuries: “transcendental institutionalism”

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Rawls’ approach to justice is individualizing. The results of cooperation within society’s institutional frameworks to ensure a wellordered society were founded on two basic principles: the priority that everyone has equal rights to liberty, and the equitable arrangement of social and economic goods in order to give the greatest benefit to the least advantaged and offer equal opportunity to all.329 These two principles mirror, in theory, two aspects of State obligations to realize ESC rights founded in article 22 of the Declaration and interpreted as nonderogable immediate obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR):330 to ensure equality and non-discrimination in realizing the entitlement to the ESC rights introduced in article 22 and, in so doing, to ensure priority to the most vulnerable.331 While the individual plays a central role in social justice theory, most philosophical conceptions of social justice do not place universallyrecognized human rights as a central principle for organizing society, at least not to the extent envisioned in article 22 and the ESC rights regime. Philosopher John Finnis, for example, approached social justice as what is required for the common good as defined in community terms.332 In his approach, just distribution is determined on the basis of criteria such as the need, capacity and merit of particular persons333 interested in getting the right institutions, not on the consequences in actual societies; and realization-focused comparison, concentrating on removal of manifest injustice and on actual realizations in societies involved. Sen, supra note 257, at 31–152. 329  John Rawls, A Theory of Justice 53 (Revised ed.,1999). 330  ICESCR, supra note 20. 331   See supra chapter V.A.1. The human rights association with Rawls’ emphasis on fairness and equity does not imply that his approach accepts a naturalist, or even a consensual approach, to human rights which play a special role in the public reason of his constructed Society of Peoples. See infra text accompanying note 337. For a political science view of Rawls’ human rights theory, see C. Beitz, supra note 274, 96–102. 332   The common good is understood as a set of conditions enabling the members of a community to attain reasonable objectives or realize reasonably for themselves the value(s) for the sake of which they have reason to collaborate with each other in a community. See, e.g., Germain Grisez, Joseph Boyle, and John Finnis, Practical Principles, Moral Truth, and Ultimate Ends, Am. J. Juris. 99 (1987) (elaborating theory of “basic goods”). 333  John M. Finnis, Natural Law and Natural Rights (5th ed., 1988), p. 165. Practical reason guides criteria for determining what distribution is just: listed in priority, need relative to basic goods; need relative to roles and responsibilities in society; capacity relative to individual opportunity for advancement; deserts and contributions  based on self-sacrifice or other meritorious efforts; distribution of costs and losses when some have foreseen risks and others have not (through, for example, insurance).



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and leads to conditions of “human flourishing”, defined as the full and free development of every one made possible by participating in basic human goods.334 Human rights are seen as benefits received as a result of fulfilment by others of their duties but these rights may be subjected to or limited by each other or by other aspects of the common good, such as public health, public order, or public morality.335 This approach to limitation of human rights is itself recognized within human rights doctrine but only in relation to certain rights and subject to strict safeguards against abuse of the rights. In contrast, the approach to social justice exemplified by Finnis fails to recognize an indispensable minimum threshold as a rightful claim of the individual on justice across all societies. In this sense, the theory differs fundamentally from the human rights approach to “social security” as social justice in article 22 which affirms an absolute entitlement to a threshold of indispensable ESC rights.336 In describing a “special class of urgent rights” relevant to the conception of justice, John Rawls approaches the idea of human rights as indispensable to any “common good idea of justice” but falls short of accepting the Declaration as an experiential verification, or real expression, of the will of his “reasonably just Society of Peoples”. In Rawls’ view, human rights have had profound changes on the powers of sovereignty since World War II by limiting the justification for war and specify limits to a regime’s internal autonomy. The “urgent rights” are distinct from constitutional rights or other legally-recognized rights and represent “a necessary, though not sufficient standard” for decency in society that set “a limit to the pluralism among peoples.” However, Rawls excludes from the “special class” the ESC rights recognized in the Declaration in defining “human rights connected with the common good” as the rights recognized in articles 3–18 of the Declaration 334   The term “human flourishing” is used by J. Finnis as the goal of ethics. See, e.g., Robert P. George, Human Flourishing as a Criterion of Morality: A critique of Perry’s Naturalism, 63 Tulane L. Rev. 1473 (1989). 335  Finnis, supra note 333, at 165, 210, 218. See also Joseph Raz, The Morality of Freedom 180 (1986), discussed in Sen, supra note 257, at 376–7 (contrasting rights as freedoms with interest-based theory of human rights as grounding action in the interest of others). 336   Compare, e.g., Sen, supra note 257, at 372–5 (rights as freedoms leads to a universal ethical demand but choice of action remains with considerable variations) with conclusions of the 1949 UNESCO Study on perceptions of human rights around the world (it is “possible to draw a list of fundamental rights on which … all … are agreed” and that the rights “may be seen to be implicit in man’s nature as an individual and as a member of society”), in note 83 and accompanying text.

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(“human rights proper”) and rights implied from them, notably involving “extreme cases” of genocide and apartheid. He rejects for this purpose the ESC rights recognized in articles 22–27 of the Declaration as an entitlement of everyone in society as “liberal aspirations” that “presuppose specific kinds of institutions”; an express reference to article 22 appears to misconstrue the “right to social security” as having a technical meaning.337 In contrast to the approaches which either ignore or minimize internationally-recognized rights, the “right to social security” in article 22 offers primary guiding principles for the human rights ordering of social justice. The first concerns the role of human rights in relation to the common good. It asserts the primacy of human rights in distributive decision-making and other choices taken in pursuit of social justice. Under this view, the recognition that every member of society has a right to social security means that the entitlement to certain indispensable rights is, in a fundamental sense, non-derogable in nature, regardless of the circumstances within any State or society. To be available to everyone, such rights operate as pre-emptive claims on the process and systems that aim at social justice.338 Some might view this constraint as subjecting the “common good” to an outside force – in the form of the human rights of the individual. However, a more integrated result is achieved by understanding the very goal of the “common good” as unattainable in the absence of respect, protection and fulfilment of human rights. In recognizing that there are universal basic requirements of social justice (or on social justice, depending on whether one adopts an integrationist or external constraints view of the interaction of human rights and social justice), one accepts the idea that certain fundamental entitlements exist for all autonomously from what may be the case in practice, and that these entitlements should function as constraints on the pursuit of collective well-being commonly called “social justice”. This approach understands the concept of law as a social force distinct from any particular morality or values although, in many cases, law reflects and even complements such social conduct or convictions. Law operates as an autonomous system of norms, establishing the  John Rawls, The Law of Peoples, 37, 78–80 n.23 (1999).   This discussion is limited to ESC rights but its conclusions do not imply that non-derogable civil and political rights would not be subject to a separate analysis of this nature. 337 338



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outwardly-enforceable conditions by which social life takes place.339 The normative practice is conceived as an archetype of what a practically reasonable person would select.340 By replacing individuated moral action with an artificial set of norms, a system of law avoids unilateral judgments about what is morally imperative. Rather, a set of objective conditions is established to serve human choice and action. Each human agent can act autonomously; such action, for one’s own survival, involves respect for the autonomy of other human agents. This general concept of law underlies the system of global law which is made up of the legal order governing relationships between human agents as well as the international legal order of standards developed for the sovereignty of states’ conduct with each other and with human agents, including in the form of international human rights law. Such a view supports the idea of the universality of human rights as objective principles of basic conduct within and across societies. From the general understanding outlined above, article 22’s incorporation of a human rights threshold into the conception of social justice is philosophically defensible.341 Each human being has the capacity to will and act; human dignity means humans have autonomy, that is, are empowered to act to achieve their self-chosen purposes. To avoid self-contradiction and because we are each affected by the actions of others, certain categorical moral obligations to respect the fundamental interests of each other’s agency, individually or in community, arise from our own capacity to will and act.342 Thus, if dignity is understood as the capacity of each human being to have autonomy as a 339   In contrast, morality involves personal, or interpersonal, convictions and states of mind that are not legislated per se except where necessary to safeguarding social life as, for example, in codifying criminal conduct. 340   Such a view of law finds support in Hobbes’ sovereign, Kant’s omnilateral will, and Rousseau’s general will. By replacing unilateral judgments of how one should act and what one owes to another, a system of law replaces the system of natural moral community (often called a state of nature) based on unilateral willing which is “notrightful” with a system of law based on the view point of practical reasonableness. See P. Capps, Human Dignity and the Foundations of International Law, 157–86 (2010). I am indebted to Patrick Capps for his innovative work. 341   This sense of empowerment through dignity, as embodied in article 22, is contrasted with Kantian dignity as a constraint on one’s action in relation to the other. Human Dignity, supra note 331, at 115–7. 342   For a view of the Kantian philosophy of Gewirth in relation to the values orientation of international law, and the conceptualization of international law through approaches to law as a general concept, see id. 106–122, 157–59, citing Gerald Postema, Law’s Autonomy and Public Practical Reason, in The Autonomy of Law: Essays ion Legal Positivism at 79, 80 (Robert P. George, ed., 1999).

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self-determining author, then rights to freedom and well-being are essential for human beings to have this capacity. The autonomous norms that protect the dignity of each agent form the internationallyrecognized system of human rights that expresses, in a legal form, the functional basis for coherent public action and coordinated social interaction. The ESC rights recognized as indispensable for human dignity in article 22 thus place a pre-emptive claim on social organization and resources and compose a minimum absolute threshold of justice for any society. A society which fails to recognize such a threshold as the basis for its organization cannot be considered just, no matter how high its GDP or other wealth indicators may be or how “decent” it may seem in political terms.343 3.2  Process for Human Rights Ordering of Social Justice Along with the priority claim that indispensable rights place on social justice, the idea of “social security” as social justice in article 22 addresses a process or system for the human rights ordering of social justice. Early conceptions of social justice focused on prescribing formal institutions and rules that were assumed to deliver justice, and on examining actual realities across societies in a comparative assessment of states of social justice.344 A more integrated approach posits the establishment of institutions and rules, not as ends in themselves, but as a part of the broader goal of justice; in a more utilitarian sense, the institutions and rules are considered a means for concretely realizing justice.345 This orientation complements the approach of article 22. As discussed further in Chapter V, the article in effect links the delivery of social security as social justice with the organization of institutions, rules, and measures through national effort and international cooperation aimed at realizing ESC rights. In particular, the meaning and 343   This conclusion differs from those discussed in this section that would accept substantively differing conceptions of human rights as possible in interpreting the fundamental concept that human rights should play a significant role in society. 344   For a review of such approaches, see, e.g., Sen, supra note 257, 4–10 (two divergent approaches to social justice emerged in the 18th and 19th centuries: “transcendental institutionalism” of Thomas Hobbes, Jean-Jacques Rousseau, John Locke, Immanuel Kant, and “realization-focused comparison” of Adam Smith, Marquid de Condocrcet, Jeremy Bentham, Mary Wollstonecraft, Karl Marx, and John Stuart Mill). The approaches resemble the dual notion of justice in Indian philosophy: niti, or organizational propriety and behavioural correctness, and nyaya, a realized justice or world that emerges from the institutions or rules. Id. 20–22. 345   Id. 82.



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operation of national effort and international co-operation in the normative practice of international law are explained in Chapter V.B. 3.3  Measuring Progress toward Social Justice Recent theoretical approaches to identifying and measuring the results of social justice have moved in the direction of article 22’s formulation of “realization” of rights as a safeguard for social security as social justice. In recognizing ESC rights as fundamental entitlements to access to certain states of being (freedom) and doing (capacity), the article presents the “right to social security” in its broad sense as a rights-oriented interpretation of the global pursuit of social justice and development. Earlier approaches to social justice and development sought to remove poverty through the provision of primary social and economic goods and resources while more recent outlooks reject the identification of well-being solely through wealth, acquisition or utilities.346 Rather, the emphasis is put on whether people have the capabilities and freedoms necessary to convert such primary goods into well-being.347 While not directly invoking rights or fundamental entitlements, the approach calls for the realization of capabilities and responsibilities for “good living” rather than merely having goods. This “capability approach” is strikingly similar to that of article 22 insofar as that article treats social and economic benefits and growth, realized through an entitlement to ESC rights, not as ends of their own, but as means for realization of a state indispensable to dignity and free development of   Social justice is commonly conceived as a just ordering of society that reflects the dignity of the human being by meeting material conditions necessary to enjoy life. E.g., Robert E. Rhodes, Social Justice and Liberation, 71 Notre Dame L. Rev. 619 (1996). John Rawls’ “primary goods”, for example, comprise liberties and opportunities defined by the rules of major institutions, and income and wealth regulated by them; the concept includes powers and prerogatives of offices, and the social bases of self-respect. Rawls, supra note 329, at 78–81,386–7. In contrast, Amartya Sen argues that, while primary goods are, at best, means to the valued ends of human life, in the Rawlsian formulation of principles of justice they become the central issues in judging distributional equity which is “a mistake, for primary goods are merely means to other things, in particular freedom …” Sen, supra note 257, at 233–4. 347   See, e.g., Sen, supra note 257, at 225–317 (Part III), proposing a method for assessing social realizations in terms of capabilities, that is “the power to do something” that a person actually has, and recognizing the accountability that results from capabilities that can permit demands of duty. See also Mahbub Ul Haq, Human Development Report 9 (UNDP, 1990) (“the purpose of development is to create an enabling environment for people to enjoy long, healthy, and creative lives. This … truth is too often forgotten in the pursuit of material and financial wealth”). 346

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the personality (autonomy to act). Article 22, however, reaches farther than the “capability approach” which places value largely on individual achievement; the mutuality principle underlying human rights and, in particular the ESC rights introduced in this way in article 22, finds value in collective capabilities, that is, one’s own capability connected with others through solidarity is a source of worth. These concepts are further discussed in Chapter IV.B.4. Along with its orientation to actual freedoms and capabilities, article 22 presages the content of a set of minimum rights that define what people should actually be able to be and to do as a result of realization of their indispensable ESC rights. The entitlement to not be deprived of one’s rights provides a concrete reference point for an internationallyrecognized minimum threshold of social justice. Articles 23 through 27 of the Declaration, which serve as benchmarks for the “indispens­ able” rights in article 22, recognize rights to earn a living under fair terms and conditions, freely associating, rest and play, enjoy a standard of adequate living for health and well-being physically, with care given to and received by those dependent or in need due to their stage of life, develop oneself through education, and participate in cultural life and  pursuits.348 The content of the Declaration’s ESC rights articles correlates closely with the majority of the “Human Capabilities” developed by philosopher Martha Nussbaum as fundamental entitlements based on a conception of human dignity and a life worthy of that dignity.349 While the closeness between human rights law and the list of   See supra Chapter III.C.1.   The list of minimum entitlements defining a fundamental level of social justice to be applied across all societies covers capabilities relating to life; bodily health; bodily integrity; senses, imagination and thought; emotions; practical reason; affiliation; relations with other species; play and recreation; and control over one’s environment politically and materially. See Martha Nussbaum, Women and Human Development: The Capabilities Approach, Introduction and Chapter 1 (2000) (life worthy of dignity with “truly human functioning” is described by Karl Marx in 1855 Economic and Philosophical Manuscripts). The list is intended both for comparative quality-of-life measurement and for the formulation of basic political principles which she acknowledges may be helpful as rights to import the idea of an urgent claim based on justice. Martha Nussbaum, Capabilities as Fundamental Entitlements: Sen and Social Justice, 9 Feminist Economics 33, 36, 41–2 (2003); Martha Nussbaum, Poverty and Human Functioning: Capabilities as Fundamental Entitlements, in Poverty and Inequality 47, 52 (David Grusky and Ravi Kanbur, eds., 2006). But see David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of SocioEconomic Rights 10–23 (2007) (criticizing the factual and evaluative notions of human life and dignity propounded in Nussbaum’s theory as defective in methodology and in its principles for determining value, and evaluating Rawls’ theory as incomplete due to omission of the experiential dimension of what is valuable). 348 349



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capabilities to inform constitutional rights at national level is acknowledged, the approach appears to ignore the concept of law as a distinct form of social ordering and, in the form of internationally-recognized legal status of human rights, the special relevance of international law as a guiding ideal, in its diverse forms of relation, to social ordering under domestic law.350 Despite its shortcomings in relation to human rights law, by focusing progress toward social justice on forms of human being and doing, the capability approach takes into account inequalities and variations in access to opportunities and in capabilities among individuals and groups. In this way, the approach provides a philosophical semblance of the context for operation of the equality principle fundamental to human rights and in particular the realization of ESC rights derived from article 22. The equality principle, discussed further on in this chapter, legitimates the use of unequal treatment to the extent necessary to permit those in differing circumstances to achieve the same opportunities for enjoyment of human rights.351 The mutuality principle likewise plays a dynamic role in both capability theory of social justice and the rights-based approach to social security as social justice. In both streams, a prominent dimension of mutuality consists of care, received and given, between the community and the individual and from one individual to another, as the need may be.352 3.4 Conclusion By using legal rights to establish objective conditions for socially just conduct befitting human dignity, article 22 offers an additional element to the conception of social justice in the form of a minimum threshold entitlement to a set of indispensable ESC rights. This entitlement operates as a pre-emptive claim in determining the processes and results of social justice, and replaces the unilateral and often conflicting individuated approaches where they exist. In this way, ESC rights do not operate simply as “side-constraints”353 on the pursuit of overall well-being 350   See, e.g., Nigel E. Simmonds, Law as a Moral Idea, 55 U. Toronto L. J. 61. 66–71 (2005) 351  See infra Chapter IV.B.2. 352   For mutuality in human rights, see infra Chapter IV.B.3 and IV.B.4. For mutuality in relation to social justice and care, see Martha Nussbaum, Capabilities as Fundamental Entitlements, supra note 349. 353   Id. at 37. The approach envisions rights as operating from outside the system on it.

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but are integral to the very conceptualization of social justice. They function in international and domestic legal orders to guide and, where necessary, motivate or restrain public and private (society-wide) action. The internationally-recognized ESC rights announced through article 22 form part of international law functionally distinct from any particular set of moral and political values. As such, they are capable of catalyzing public and private action in the service of social justice at international and national levels. The rights-base to social security as social justice in the nature of its usage in article 22 enhances the opportunity for well-being, not only for the individual but also for society as a whole, through legal means. It permits a practically reasonable, objective identification of real progress towards social justice. In cases of widespread deprivation of the indispensable ESC rights, it becomes impossible to consider the relationships between the individual and society, or among individuals, as socially just. B.  “Everyone, as a member of society” In article 22, an entitlement of “everyone, as a member of society” to ESC rights follows recognition of the general right to social security as social justice. This dualist reference to the rights-bearer, not simply as “everyone” but “as a member of society”, carries both individual and collective, or societal, dimensions. The dualist nature is consistent with the character of ESC rights generally; while ESC rights belong to each individual, their realization is only possible as the individual relates to collective economic, social and cultural structures. The entitlement held by “everyone, as a member of society” thus forms the fundamental rationale for what it means to achieve social justice in terms consistent with human rights principles. The dual nature of the rights-bearer as both an individual and a member of society in a human rights-based order for social justice bears radical implications, not only for the ultimate aims of a system of “social security” to ensure realization of ESC rights, but also for the ways and means to achieve those rights. The concept of “everyone, as a member of society” motivates the general principles that contribute to defining both the process and result of the implementation of human rights. These principles include universality, equality and its corollary non-discrimination, participation and solidarity. They apply not only to guide States in their national efforts and international co-operation



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to realize the indispensable ESC rights but are increasingly recognized as applicable directly to the conduct of international organizations and private actors concerned.354 1. Universality The universality principle, which originated as a clause in the Draft Covenants,355 operates as a presumption for the application of human rights to everyone in any society. In the Universal Declaration, it emerges in the provision making clear that “no distinction [to entitlement to all the rights and freedoms set forth in this Declaration] shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs …”356 The principle is now understood as encompassing rights protection, in each country or area, for “all individuals within its territory and subject to its jurisdiction” as formulated in the ICCPR.357 The IESCR does not contain the same formulation as the ICCPR, but contextual interpretation could draw some support for the same result from the preamble which refers to the “obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms”358 Only in the case of “economic rights” for non-nationals do “developing countries” have the option under the ICESCR to determine to what extent such rights may be guaranteed.359 Neither “economic rights” nor “developing country” are defined in the treaty.360 While “economic   See infra Chapter V.B.2.   Eibe Riedel, Article 55(c), in 2 UN Charter Commentary, supra note 10, at 923–4. 356   Universal Declaration, supra note 1, art. 2 (in pertinent part). 357  ICCPR, supra note 20, art. 2, para. 1. This phrase should be read as a disjunctive conjunction with a meaning equivalent to “or” covering either situation. See Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill of Rights 73 (Louis Henkin, ed., 1981). See also CCPR, Sadias de Lopez v. Uruguay, Comm. No. 52/279 (July 29, 1981), U.N. Doc. CCPR/C/ OP/1 at 88 (1984). 358  ICESCR, supra note 20, preamble, fourth paragraph (referring to U.N. Charter, art. 55). 359   Article 2(3) of the ICESCR states that “[d]eveloping countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.” ICESCR, supra note 20, art. 2, para. 3. 360   While economic rights may be those that enable a person to earn a living or relate to that process, many such rights are also social in nature. See E. Victor O. Dankwa, 354 355

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rights” would reasonably refer to those rights enabling a person to earn a living or relating to the process of income contingencies, the right of the developing country concerned is, in any event, to be exercised “with due regard to human rights and their national economy”. This provision is considered a restrictive exception to be interpreted narrowly in the light of the object and purpose of the Covenant,361 and States parties are required to report “information on any restrictions imposed under article 2, paragraph 3, of the Covenant, on the enjoyment by non-nationals of the economic rights recognized in the Covenant”.362 However, many developing countries already exclude this option through commitment to a higher standard in their own regional human rights system.363 2.  Equality and Non-Discrimination The right of everyone to “social security” in the sense of social justice is based on the principle of equality which, together with non-discrimination, plays a fundamental role in international law.364 Equality in the Working Paper on Article 2(3) of the International Covenant on Economic, Social and Cultural Rights, Human Rights Quarterly, 230, 239–40 (1987) (arguing for narrow interpretation and safeguards on taking property of non-nationals). The Committee on Economic, Social and Cultural Rights (CESCR, or the Committee) has made clear that economic rights do not include the right to education, which “extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status.” CESCR, General Comment No. 13: The right to education (article 13), para. 34 (1999) in 2008 Compilation, supra note 269. [CESCR General Comments cited in this volume are reproduced in the 2008 Compilation unless otherwise noted]. In relation to “developing country”, the Limburg Principles state that the term in the ICESCR means “those countries which have gained independence and which fall within the appropriate United Nations classifications of developing countries”. Limburg Principles, supra note 65, para. 44. For the drafting history of article 2(3), see Dankwa, supra. 361   Limburg Principles, supra note 65, paras. 42–44. The CESCR has left open the meaning of this provision while favouring access to Covenant rights for all. See CESCR, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (article 2, para. 2), para. 30 and n.22, U.N. Doc. E/C.12/GC/20 (June 10, 2009) (“without prejudice to the application of article 2(3) of the Covenant”). 362   Compilation of Reporting Guidelines, supra note 258, Chapter II, Annex, Part (A), para. 11. 363   The African [Banjul] Charter on Human and Peoples’ Rights provides for the right to work to everyone without limitation to nationals. See African [Banjul] Charter on Human and Peoples’ Rights, art. 15, Chapter II (articles 27–29), June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). 364   See, e.g., UN Charter, art. 1, paras. 2 and 3, art. 13, para. 1(b), art. 55(c), art. 76(c); ICCPR, supra note 20, art. 2, para. 1, art. 3, art. 26; ICESCR, supra note 20, art. 2, para. 1; Race Discrimination Convention, supra note 258, arts. 1, para. 4, art. 2, para. 2;



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enjoyment of “social security” in the broad article 22 sense encompasses at least the right to equal access to a certain critical mass of freedoms and conditions (some secured by public measures) which are achieved by realization of the “indispensable” ESC rights. A similar emphasis on promoting social justice through the elimination of all forms of inequality and exploitation of peoples and individuals can be found in a number of UN General Assembly Declarations.365 The principle of equality invoked in article 22 and as further articulated in the ICESCR obliges the State to respect, to protect and to fulfil ESC rights for everyone.366 Equality and non-discrimination can be understood as positive and negative statements, respectively, of the same principle.367 Since a right to equality in realization of ESC rights means at least equal access to opportunities in such forms as goods, Rights of the Child Convention, supra note 258, art. 2; Convention relating to the Status of Refugees, arts. 20–24, 189 U.N.T.S. 150 (July 28, 1951); ILO Equal Remuneration Convention (No.  100), June 29, 1951, 165 U.N.T.S. 303; ILO Discrimination (Employment and Occupation) Convention (No. 111), June 25, 1951, 362 U.N.T.S. 31 [ILO Employment Discrimination Convention]; ILO Convention concerning Workers with Family Responsibilities (No. 156), June 23, 1981, 1331 U.N.T.S. 295; Migrant Workers Convention, supra note 258, arts. 27, 28, 30, 43, 45, Dec. 18, 1990, UN Doc. A/RES/45/158, 2220 U.N.T.S. 3; Geneva Convention relative to the Protection of Civilian Persons in Time of War, art. 27, para. 3, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention]; Protocol Additional relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 75(1), June 8, 1977, 1125 U.N.T.S. 3. 365  Declaration on Social Progress and Development, supra note 67, art. 2(a). Declarations promoting the rights of vulnerable groups such as people with disabilities, and indigenous peoples, are explicitly founded on “the principle of social justice proclaimed in the UN Charter.” Declaration on the Rights of Mentally Retarded Persons, G.A. Res. 2857 (XXVI), preamble, Dec. 20, 1971, U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429, at 93; Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), preamble, Dec. 9, 1975, U.N. GAOR, 30th Sess., Supp. No. 34, U.N. Doc. A/10034, at 88; Copenhagen Declaration, supra note 298, Commitment 4 (supporting aspirations of indigenous people for social justice). 366   See CESCR, General Comment No. 12: The right to adequate food (article 11), para. 15 (1999), introducing three types or levels of obligations on States parties, and referring to the original proposal for the three obligations in Eide, Right to adequate food as a human right, supra note 272. In developing the now-established framework some 20 years ago, Professor Eide explained that, rather than examining the different categories of rights, the different levels of obligations of the State should be the focus, since the obstacles to be overcome were the lack of precision in regard to the obligations corresponding to the rights and the lack of recourse procedures. Right to adequate food as a human right, supra, at paras. 112–114, 169–81. Since then, the obligation to fulfil was divided conceptually by the Committee into duties to provide, prompt and facilitate. CESCR, General Comment No. 12, supra. 367   See, e.g., Ann Bayefsky, The principle of equality or non-discrimination in international law, 22 Hum. Rts. L. J. 1 (1990).

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services, and freedoms, the state’s obligation to respect, protect and fulfil includes both negative and positive obligations, such as refraining from discriminatory acts, remedying past discrimination, and making available meaningful opportunities to people for their life and wellbeing.368 The first step toward equality typically requires a legal prohibition on discrimination, except as specially and temporarily justified in order to provide equality among those differently situated.369 The dual aspects of equality and non-discrimination in realization of ESC rights are incorporated into articles 2 and 3 of the ESC Covenant. In the primary commitment found in Part II, States Parties to the ICESCR “undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (ICESCR, article 2, paragraph 2)370 This rule of non-discrimination applies to all 368  CESCR, General Comment No. 20, supra note 361, para. 17–31; Limburg Principles, supra note 65, para. 39. See, e.g., T. Loenen, Rethinking Sex Equality as a Human Right, in 3 Neth. Quarterly of Human Rights 253 (1994); Amartya Sen, Inequality re-examined (1992). This is an obligation to refrain from something, and likely also to remedy past discrimination. E.g., CCPR, General Comment No. 4: Equal right of men and women to the enjoyment of all civil and political rights (Article 3), para. 2 (1981) (affirmative action designed to ensure positive enjoyment of rights required as well as measures of protection for gender equality). See also CCPR, General Comment 18: Non-discrimination, para. 10 (1989) (in relation to art. 26 and 2, para. 1 of the ICCPR, the principle of equality sometimes requires affirmative action as long as action is needed to correct discrimination in fact, preferential treatment is legitimate differentiation). Accord Committee on the Elimination of All Forms of Racial Discrimination, General Recommendation XIV on article 1, paragraph 1, of the Convention, para. 2 (1993), in Compilation of General Comments and General Recommendations adopted by Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 9 (Vol. II) (May 27, 2008). 369  CESCR, General Comment No. 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (article 3), paras. 50–58 (2005) (States to include information on whether the principle of non-discrimination is included as a general binding principle in national law, including penal laws, as well as on any temporary special measures taken). See also Warwick McKean, Equality and Discrimination under International Law (5th ed. 1983), 287–8; Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64, at 19 (Apr. 6) (“[e]quality in law precludes discrimination”). 370   The “philosophy of the Covenant [is] based on the principle of non-discrimination which is “of the utmost importance in international law”. CESCR, Concluding Observations: Algeria, para. 16, UN Doc. E/CN.12/1995/17 (Dec. 28, 1995). See supra note 365. In an overview and clarification of its practice, the CESCR reviewed the scope of the prohibited grounds under article 2, para. 2, and distinguished the “express grounds” (race and colour, sex, language, religion, political or other opinion, national or social origin, property, birth) from “other status” which, in its view constitute a



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the substantive rights recognized in the ICESCR (articles 6–15 of the Covenant), just as the non-discrimination provision of the Declaration applies to all the rights and freedoms set forth there.371 Combined with the undertaking in Article 3 of the ICESCR to ensure gender equality in the enjoyment of all ESC rights, the two provisions together are to be read in conjunction with each specific right under Part III.372 As guidance to States Parties, the CESCR has noted that these “guarantees of equality and non-discrimination should be interpreted, to the greatest extent possible, in ways which facilitate the full protection of economic, social and cultural rights”.373 The obligation of States under the ICESCR to guarantee substantive ESC rights without discrimination, as envisioned in article 22, is considered an obligation of immediate and cross-cutting application, a reflection of the imperative of non-discrimination in customary international law. The immediate requirement is to eliminate de jure discrimination (“formal” discrimination in laws, regulations and practices) without delay, and to take effective steps to combat de facto (“substantive”) discrimination, whether direct or indirect (disproportionate impact of facially neutral measures) and whether arising from public

“flexible approach” necessitated by the nature of discrimination which “varies according to context and evolves over time.” CESCR, General Comment 20, supra note 361, paras 18–27. The Committee gave examples of other status as being in prison, in psychiatric hospital or at intersection of multiple prohibited grounds, and recalled statuses that it had recognized already – disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, and economic and social situation. 371   Article 2 of the Declaration affirms that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Declaration, supra note 1, art. 2. The ICESCR list of prohibited grounds, which is identical with that of the Declaration, significantly expanded on the short list in the Charter. See supra Chapter II, note 29, and accompanying text. For a comparison of the Covenant and Declaratio provisions on non-discrimination and equality, see Yvonne Klerk, Working Paper on Article 2(2) and Article 3 of the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 250 (1987). Specific prohibited grounds are also addressed in the Race Discrimination Convention, supra note 258, and the Women’s Discrimination Convention, supra note 258, as well as in the ILO Employment Discrimination Convention, supra note 365 (in exercise of right to work) and the UNESCO Convention against Discrimination in Education, Dec. 14, 1960, 429 U.N.T.S. 93 (in education). 372  CESCR, General Comment 16, supra note 367, para. 2. The treatment is distinguished from article 26 of the ICCPR, which is a stand-alone provision. 373  CESCR, General Comment No. 9: The domestic application of the Covenant, para. 15 (1998).

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or private action.374 Effective steps must be taken under Part II of the Covenant, without excuse of lack of resources, to place a priority on the protection of vulnerable, disadvantaged and marginalized individuals and groups. These steps include regular monitoring of the extent of realization or non-realization of ESC rights and the nature and scope of the problems, and devising of strategies and programs for elimination of de facto discrimination and promotion of their rights as speedily as possible; in some cases special measures of a temporary nature may be needed to redress the discrimination and achieve equality in fact.375 Similar steps to ensure the “equal right of men and women to enjoyment of ESC rights” are also considered to be a “mandatory and

374   In keeping with other treaties, the term “discrimination” in article 2, paragraph 2 is considered as any “distinction, exclusion, restriction, preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights” – as well as incitement to discriminate and harassment – all on prohibited grounds. General Comment No. 20, supra note 361, para. 7, n.6 (following the interpretation given to the ICCPR, the Race Discrimination Convention and referring also to the Women’s Discrimination Convention – though going beyond it in relation to adding “preference” – and the Convention on the Rights of Persons with Disabilities, cited supra note 258, as well as the Convention against Discrimination in Education, supra note 371). The Committee considered that the ICESCR went beyond the ILO Employment Discrimination Convention, supra note 365, in this respect by adding “restriction”. 375  CESCR, General Comment No. 20, supra note 361, paras. 7–13; CESCR, General Comment No. 3: The nature of States parties’ obligations (Article 2, para. ), paras. 2, 12 (1990); CESCR, General Comment No. 13, supra note 360, para. 43; CESCR, General Comment No. 14: The right to the highest attainable standard of health (article 12), para. 30. See also Compilation of Reporting Guidelines, supra note 258, Chapter II, Annex, Part A, para. 10 (for ICESCR, in addition to information provided in the core document in common paras. 50 to 58, requesting that States parties provide disaggregated and comparative statistical data on the effectiveness of specific anti-discrimination measures and the progress achieved towards ensuring equal enjoyment of each of the Covenant rights by all, in particular the disadvantaged and marginalized individuals and groups); Limburg Principles, supra note 65, paras. 35–41. See also CESCR, General Comment No. 3, supra note 375, para. 1; CESCR, General Comment No. 11: Plans of action for primary education (article 14), para 10 (1999); CESCR, General Comment No. 13, supra, paras. 31, 43; CESCR, General Comment No. 14, supra, para. 30. “Special measures” refer to differential treatment intended to bring about de facto equality by attenuating or suppressing conditions that perpetuate discrimination; the measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination. They must be discontinued when substantive equality sustainably achieved, except where needed to be of a permanent nature such as linguistic services for minorities. CESCR, General Comment 20, supra note 361, paras. 9, 13. Such measures are not to lead to the maintenance of unequal or separate standards for different groups. CESCR, General Comment No. 13, supra, para. 32.



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immediate” obligation of States parties and to cross-cut all the substantive ESC rights in the ICESCR.376 The principle of article 22 that the entitlement to ESC rights belongs to “everyone” has grown into an enforceable right recognized under the Covenant in relation to direct actions or omissions by States when the conduct constitutes a failure to act in good faith to comply with article 2, paragraph 2 and article 3 of the Covenant, whether undertaken in national effort or international co-operation.377 In international law, ESC rights are both fundamental rights and equal opportunity rights, and the right to equality in the enjoyment of human rights can be used as a tool for their implementation, including in the context of development activities378 as discussed in Chapter V.B. 3. Participation The principle of participation is implied in the phrase “as a member of society” and is motivated by the very purpose of the Declaration itself. The concepts of “dignity” and “free development of [one’s] personality”, which underlie not only article 22 but the whole Declaration, connote a freedom of choice by individuals about how to pursue their ESC rights. This freedom to choose necessarily involves the right of access to information, and to opportunities to participate in the decisions that affect them, as well as the capabilities to take advantage of those opportunities. Without participation by the people concerned, national effort 376  CESCR, General Comment No. 16, supra note 367, para. 16, 22–31. In the context of the right to education, see also CESCR, General Comment No. 13, supra note 360, paras. 31–37, reviewing the rights under article 2, paragraph 2 and article 3 in light of the UNESCO Convention against Discrimination in Education and relevant provisions of the Women’s Discrimination Convention, Race Discrimination Convention, Rights of the Child Convention, and the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169), June 27, 1989, 72/A ILO Official Bull. (No.2) 59 [hereinafter Indigenous Peoples’ Convention]. 377  CESCR General Comment No. 18: The right to work (article 6), para. 32 (2005). See also Martin Scheinin, Economic and Social Rights as Legal Rights, in Economic, Social and Cultural Rights 41 (Asjborn Eide, Catarina Krause, Allan Rosas, eds., 1995). 378   For example, in reviewing progress toward the Millennium Development Goals set in 2000, the World Summit Outcome 2005 emphasized “the responsibilities of all States in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status.” World Summit Outcome 2005, supra note 303, para. 122. For the Millennium Declaration, see infra note 380.

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and international co-operation are not only contradictory in spirit to the underlying respect for dignity, but often do not prove very effective in practice. It is not possible to effectively achieve or sustain even the minimum essential level of ESC rights without establishing ways to ensure the right of everyone to participate meaningfully in the processes that affect the life of the community and the individuals involved. To be meaningful, participation requires a level of transparency and access for everyone to information about and involvement in the decisions to be taken that will affect ESC rights as well as contributing to the effort and sharing in the benefits derived. These general aspects of the principle of participation as the “voluntary and democratic involvement of people”379 have been articulated in the UN Charter and further elaborated in UN treaties, declarations and other resolutions. The indispensable role of popular participation in realizing human rights of an economic, social and cultural nature has repeatedly figured in authoritative instruments which affirm the freedom of choice of all peoples to pursue their ESC rights through development, while nonetheless specifying that the collective choice must serve the mutual benefit and well-being of the peoples concerned.380 The right to popular participation has been acclaimed as “an important factor in the full realization of all human rights”381 and “indispens­ able to achieving progress in realizing [ESC] rights … required at all 379   E.S.C. Res. 1929 (LVIII), para. 1, U.N. ESCOR, Supp. No.1, at 34–5 (May 6, 1975) (“popular participation connotes the voluntary and democratic involvement of people in contributing to the development effort; sharing equitably in the benefits derived; and decision-making in respect of goals, policies, and programmes). 380   At the turn of the Millennium, the United Nations resolved to allow genuine participation by all citizens in all countries. Millennium Declaration, G.A. Res. 55/2, U.N. GAOR, 55th Sess., Supp. 49, U.N. Doc. A/55/49, at 4, para. 25 (Sept. 8, 2000). See also Permanent sovereignty over natural resources, para. 1, G.A. Res. 1803 (XVII), U.N. GAOR Supp. No. 17, U.N. Doc. A/5217, at 15 (Dec. 14, 1962) (“right of peoples … over their natural wealth and resources must be exercised in the interest of … the wellbeing of the people … concerned). See also Oscar Schachter, supra note 252, at 273–7 (international social justice demands development of new obligations and procedures in context of inability of host developing countries to deal on equal basis). In the context of democratic development, see Comm’n H. R., Res. 2005/29, Strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy, preamble, fifth paragraph, U.N. Doc. E/CN.4/RES/2005/29 (Apr. 19, 2005). 381   E.g., Popular participation in its various forms as an important factor in the development and in the realization of human rights, G.A. Res. A/RES/37/55, U.N. GAOR Supp. No. 51, at 189 (Dec. 3, 1982). The early resolution led to a number of follow-up resolutions in the Economic and Social Council and Human Rights Commission, as well as reports of the U.N. Secretary-General on progress and



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stages, including the formulation, application and review of national policies.”382 Various forms of the right include the specific human rights relating to association, assembly, education and political rights, which are interpreted to be critical to realizing all other rights, in particular ESC rights provided in the Covenant.383 The need to ensure an environment that make participation possible has been globally recognized and is addressed through transparent and accountable public institutions, publicly available objective data to enable people to make informed decisions,384 strengthened involvement of civil society in decisions determining the functioning and well-being of society, and the elimination of physical and social barriers for those who face obstacles in participating fully in society, such as persons with disabilities, indigenous peoples and minority communities.385 For example, obstacles on realizing the right to popular participation as an important factor in the full realization of all human rights. E.g., U.N. Secretary-General, Study on the Right to Popular Participation in Its Various Forms as an Important Factor in the Full Realization of All Human Rights: Preliminary Report, U.N. Doc. E/CN.4/1984/12 and Add. 1 (Jan. 24, 1984); U.N. Secretary-General, Study on the Right to Popular Participation in Its Various Forms as an Important Factor in the Full Realization of All Human Rights U.N. Doc. E/CN.4/1985/10 and Adds. 1, 2 (Sept. 1985) in 1985 U.N.Y.B. 882. 382   Limburg Principles, supra note 65, para. 11. The role of participation in achieving the Millennium Development Goals has been called “transformative”. U.N. Office of the High Commissioner for Human Rights [hereinafter OHCHR], Claiming the Millennium Development Goals: A human rights approach, 11–2, U.N. Doc. HR/PUB/08/3, U.N. Sales No. E.08.XIV.6 (2008). For the Millennium Declaration, see supra note 380. 383   Relevant rights includes those recognized in the ICESCR, supra note 20, articles 8, 13, 14 (trade union rights, right to education respectively) and the ICCPR, supra note 20, articles 19, 21, 22, and 25 (freedom of expression, assembly and rights to vote and participate in public life respectively). See also ESC Res. 1929 (LVIII), supra note 379, para. 2 (May 6, 1975) (to be effective, popular participation should be consciously promoted by Governments, … including … through the encouragement of all forms of education).The “full enjoyment of other rights – such as the right to freedom of expression, the right to freedom of association … the right to freedom of residence and the right to participate in public decision-making – is indispensable if the right to adequate housing is to be realized … by all groups in society.” CESCR, General Comment No. 4: the right to adequate housing (article 11, paragraph 1), para. 9 (1991). 384   See World Summit on the Information Society, First phase, Dec. 10–12, 2003, Geneva Declaration of Principles: building the Information Society: a global challenge in the new Millennium, para. 19, ITU Doc. WSIS-03/GENEVA/DC/4-E (Dec. 12, 2003) (to ensure that everyone can benefit from the opportunities offered by information and communication technologies, so that all citizens in every country can participate in the information society). 385   E.g., Millennium Declaration, supra note 380, para. 25 (ensuring the right of the public to have access to information); Copenhagen Declaration, supra note 298, Commitments 1, 2, 5 (people participating in policies, programmes, decision-making, with gender balance); Copenhagen Programme of Action, supra note 299, Chapter 1,

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a declaration now endorsed by all UN member states provides for the right of indigenous peoples to full participation and informed consent in all decisions affecting their economic, social and cultural life, including land ownership, as the “minimum standards for [their] survival, dignity and well-being”.386 The right to participation thus plays a key role in connecting human rights with democracy and development. As reflected in the political participation rights proclaimed in the Universal Declaration, “democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives”.387 Popular participation in all spheres is an “important factor in development and in the full realization of all human rights”388 and “development can only be sustain­ able … if development policies … ensure people’s participation both in their design and implementation, while … meeting the basic human needs essential for survival is a sine qua non condition for an effective

paras. 7, 12(g), 14, 15; Chapter IV, Social integration, sec. A (responsive government and full participation in society) and sec. B (involvement of civil society); Vienna Declaration and Programme of Action, supra note 271, at I.22 (disabled persons); II(C), para. 67 (“equally important is the … real and effective participation of the people in the decision-making processes); Indigenous Peoples’ Convention, supra note 376, art. 2, para. 1 (“Governments shall have the responsibility for developing the participation of the peoples concerned …); art. 7, para. 1 (“indigenous peoples shall have the right to decide their own priorities for the process of development as it affects their lives”); CCPR, General Comment No. 23: Article 27 (Rights of minorities), para. 7 (1994) (enjoyment of cultural rights “may require … measures to ensure the effective participation of members of minority communities in decisions that affect them”). 386  United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, Annex, U.N. GAOR, 61st Sess., Supp. No. 49, at 15 (Sept. 13, 2007), arts. 3, 5, 18, 19, 27. International organizations, including those in the UN System, are to establish “[w]ays and means of ensuring participation of indigenous peoples on issues affecting them.” Id., article 41. As of December 2010, all Member States had endorsed the Declaration, including the four which had voted against it in 2007. OHCHR, News and Events: Indigneous rights declaration endorsed by States (Dec. 23, 2010), http:// www.ohchr.org/EN/NewsEvents/Pages/Indigenousrightsdeclarationendorsed.aspx (last visited Dec. 27, 2010). 387   Promoting and consolidating democracy, G.A. Res. 55/96, preamble, U.N. Doc. A/RES/55/96 (Dec. 4, 2000), reaffirming commitment to democracy as based on full participation of people in all aspects of their lives. The reference to the will of the people is based on article 21, para. 3 of the Universal Declaration. See also World Summit Outcome, supra note 303, para. 135 (referring to the “indissoluble link between human rights … and the foundation of any democratic society” and reaffirming that “democracy, development and respect for human rights … are interdependent and mutually reinforcing”). 388   U.N., Declaration on the Right to Development, supra note 67, art. 8(2).



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democracy.”389 The critical path to participation includes the elimination of such barriers as illiteracy, poverty and discrimination, and the promotion of transparency of public institutions and accountability of public officials, and public access to information.390 4. Solidarity The principle of solidarity invoked by article 22’s reference to membership in society is rooted in the human person’s social identity and responsibility in relation to others. The concept takes concrete and specific form in national social security legislation and in a range of provisions in European community law.391 In international human rights theory, the principle of solidarity is closely connected to mutuality,392 and has come to be reflected in a variety of dimensions in a number of universal legal instruments and political declarations as well as in global popular pronouncements of commitment. Article 22’s concept of a person “as a member of society” invokes the principle of solidarity in action between persons, families and groups of persons and peoples, such as communities, as well as between members within organizations such as unions, co-operatives and corporations, and politically within countries. The concept of the rights-bearer “as a member of society” in article 22 moves beyond the classic reciprocity model of “trading” in benefits and burdens; individuals are understood to be embedded in society in the sense that individual identity depends meaningfully on the social framework.393 Subject to  Comm’n H. R., Res. 2005/29, Strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy, U.N. Doc. E/CN.4/2005/L.10/Add.11 (April 19, 2005). See also U.N. Secretary-General, An Agenda for Development, U.N. Doc. A/48/935 (May 6, 1994) (people’s participation in the decision-making processes which affect their lives is a basic tenet of development). 390   Id., paras. 10, 11, 15; G.A.Res. 55/96, supra note 107, para. 1. 391   The context between the two World Wars was characterized by a rapid extension of social security legislation within Nordic countries and Europe as well as North American and, to some degree, Latin America and the British Dominions. BardAnders Andreassen, Article 22, in UDHR Commentary, supra note 3, at 322–9. See also Charter of Fundamental Rights of the European Union, Chapter IV (Articles 27–38), C 303/2 Official Journal of the European Union (Dec. 14, 2007), entitled “Solidarity” and addressing workers’ rights and protections, health care, and environmental and consumer protection. 392   See supra Chapter III.C.1 (mutuality recognized by drafters). For the role of personal responsibility in development of the person, see Wilfried Brugger, The Image of the Person in the Human Rights Concept, 18 Hum. Rts. Q. 594, 602–5 (1996). 393   See Sandra Fredman, Human Rights Transformed 16–7, 27 (2008). The understanding of the individual embedded in society brings an appreciation that 389

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safeguards to preserve the freedom of the individual, solidarity thus plays a pivotal role in the shaping of human rights principles that recognize the individual’s interaction with the community and to other individuals. Article 29 of the Declaration recognizes the principle that the exercise of individual rights and freedoms is subject to specificallyproscribed limitations and must not be contrary to the purposes and principles of the United Nations.394 The individual is “under a responsibility to strive for the promotion and observance of the rights recognized” in the human rights Covenants.395 Along with the general concept of duties found in the Declaration, specific articulations include protection of the family by “society”, and ensuring to everyone the necessary security in the event of lack of livelihood beyond one’s individual achievement is not the only value behind human rights and that other values like solidarity and dignity accommodate perspectives beyond the capabilities of the individual. Id., at 30. See also Alain Supiot, l’esprit de Philadelphie: la justice sociale face au marché total, 45–9 (2010) (selon le père de déconstruction du Droit, l’idée de justice n’était au fond rien d’autre que l’expression d’un désir individuel; cette déconstruction fait perdre au Droit social sa capacité de rendre les citoyens soli­ daires). Some have challenged the author’s assertion that the principle of solidarity in the Universal Declaration only takes the form of individual rights. Id., at 162–3 (referring to articles 22–25). 394   Universal Declaration, supra note 1, art. 29, para. 1 (everyone has duties to the community in which alone the free and full development of the personality is possible), art. 29, para. 2 (limitations solely for the purpose of securing the rights and freedoms of others and morality, public order and general welfare). The Declaration preamble refers, in pertinent part, to the instrument as “… a common standard of achievement for all people and all nations, to the end that every individual and every organ of society … shall strive by teaching and education, to promote respect for these rights and freedoms and by the progressive measures, national and international, to secure their universal and effective recognition and observance”; ICESCR and ICCPR, supra note 20, preambles, fifth paragraphs. See also African [Banjul] Charter on Human and Peoples’ Rights, supra note 363; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 32, preamble, art. 10 (exercise of freedoms carries with it duties and responsibilities). See Special Rapporteur, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities (U.N. Sub-Commission), The individual’s duties to the community and the limitations on human rights and freedoms under article 29 of the Universal Declaration on Human Rights: A contribution to the freedom of the individual under law, U.N. Doc. E/CN.4/ Sub.2/432/Rev.2 (June 1980) (by Erica-Irene A. Daes). 395   For a specification of the duties of the individual to the community under the Declaration and Covenants, and to other individuals, see id. paras. 230–303. The duties include the “duty of mutual help and solidarity” based mainly on the second sentence of article 1 of the Declaration which provides that all should “act towards one another in a spirit of brotherhood”, interpreted by the author as a “duty to protect the weaker against the stronger and the oppressed against the oppressor.” Id. para. 303. Horizontal positive duties that arise in human rights law have been viewed as acceptable constraints insofar as they advance human rights values. Sandra Fredman, supra note 393, at 30.



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control.396 These concepts also provide a theoretical basis for various authoritative guidelines for business and private sphere activity that draw upon internationally-recognized human rights and labour stan­ dards for their content.397 In yet another permutation, through and beyond the civil, political, economic, social and cultural rights recognized in the Declaration, “solidarity rights” have also been pronounced as a separate “third generation” of rights, which are said to include the right to peace, right to development, and the right to a healthy environment.398 The principle of solidarity in the form of shared responsibility for the common good forms the moral basis for a number of popular nonstate declarations and commitments.399 Across global production networks among business and other economic actors, solidarity is expressed in inter-sectoral and cross-border union initiatives, and global agreements between multinational companies and sectoral global unions.400 In 2010, the world’s leader in international private 396   Universal Declaration, supra note 1, arts. 16, 25, 29; ICESCR, supra note 20, articles 10, 9; ICCPR, supra note 20, article 23; Rights of the Child Convention, supra note 258, articles 9, 10, 26; Race Discrimination Convention, supra note 258, article 5; Women’s Discrimination Convention, supra note 258, article 11; Migrant Workers Convention, supra note 258, article 27. 397   See, e.g., ILO, Tripartite Declaration of Principles on Multinational Enterprises and Social Policy (rev. 2006), ILO G.B. Doc. GB.295/11/Add. and ILO Doc. GB.295/ PV, para. 212(d) [hereinafter MNE Declaration]; Organization for Economic Co-operation and Development (OECD), The OECD Declaration and Decisions on International Investment and Multinational Enterprises: Basic Texts, Annex I: The OECD Guidelines for Multinational Enterprises, OECD Doc. No. DAFFE/ IME(2000)20, at 22 (rev. 2000) [hereinafter OECD Guidelines for Multinational Enterprises]. The OECD instrument draws on recognized standards for protection of the environment, anti-corruption and other social issues. See infra notes 610–11 and 617 and accompanying text. 398   E.g., U.N. Sub-Commission, Interim report on opposition to the impunity of perpetrators of human rights violations (economic, social and cultural rights), prepared by Mr. Hadji Guissé, UN Doc. E/CN.4/Sub.2/1995/19 (27 June 1995), para. 10 (a third category of rights … has recently appeared). Karl Vasek is commonly attributed as inventing the notion of generations of human rights, which has received critical assessments. E.g., Bard-Anders Andreassen, Article 22, in UDHR Commentary, supra note 3, at 321 n.4. The term “generations” implies, not priority among rights, but rather historical sequence of their recognition at international level. 399   E.g., Forum 2000, Fifth Forum, Oct. 15–19, 2000, The Prague Declaration, sec. 28 (Oct. 17, 2001) (Principal challenges; forum attended by eminent world figures); Council of the Parliament of the World’s Religions, Declaration Toward a Global Ethic, introduction and sec. II (Sept. 4, 1993); Commission on Global Governance, Our Global Neighborhood, The Report of Commission on Global Governance 353–4 (1995). 400   E.g., Caux Round Table, Principles for Responsible Business (2010) (seven core principles “rooted in three ethical foundations for responsible business and for a fair

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standardization adopted a guidance standard on social responsibility to guide all organizations in the private and public sector which aims to promote conduct involving human rights including labour rights, human resources, health and safety in the workplace and beyond, product/service issues, environment issues, community issues, stakeholder issues, anti-corruption issues, and governance issues. The ISO Standard makes recommendations on the relation between social responsibility and international and domestic law and policy, and regional and cultural differences.401 The solidarity principle is evolving with a further measure of definition in the context of state-to-state relations and recognition of human rights, peace and development as global values. Solidarity served as a fundamental constitutional principle of the International Labour Organization, born to the League of Nations; in its tripartite structure, governments share power with trade unions and employers’ organizations, acting to set international labour standards and other guidance at international level with the conviction that “poverty anywhere constitutes a danger to prosperity everywhere”.402 As reflected in the Preamble to the UN Charter, the principle motivated the United Nations’ creation as the “peoples of the United Nations” recognized the duty and responsibility “to save succeeding generations from the scourge of war” and thus to undertake “to promote social progress and

and functioning society more generally, namely: responsible stewardship; living and working for mutual advantage; and the respect and protection of human dignity”); World Business Council for Sustainable Development, The Business Case for Sustainable Development, sec. 6 (2nd reprint, 2002). For an overview of non-state business initiatives to demonstrate social responsibility, see Int’l Labour Office, Overview of global developments and Office activities concerning codes of conduct, social labelling and other private sector initiatives addressing labour issues, ILO Doc. GB.273/WP/SDL/1 (Rev. 1) (Nov. 1998). 401   Int’l Org. of Standardization (ISO), ISO 26000:2010 – Guidance on social responsibility (Oct. 28, 2010), established as part of ICS 03.100.01: Company organization and management in general [hereinafter ISO 26000]. The organization, which uses the name ISO in all languages (derived from the Greek isos (equal), was created in 1946 in a meeting of delegates of national standards bodies from 25 countries in London “to facilitate the international coordination and unification of industrial standards”. http:// www.iso.org/iso/about/discover-iso_isos-origins.htm (last visited April 7, 2011). Although ISO standards are voluntary in principle, they may accrue a compulsory market effect in practice if they become widely accepted by the industry concerned. http://www.iso.org/iso/about/discover-iso_the-iso-brand.htm (last visited April 7, 2011). 402   ILO, Declaration of Philadelphia, supra note 36, Part II, paragraph (a), Annex to ILO Constitution, Part I.



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better standards of life in larger freedom.”403 A half-century later, the principle of solidarity was reaffirmed in the Millennium Declaration as “a fundamental value essential to international relations in the 21st century” and linked with equity and social justice.404 The extent to which solidarity functions as a structural principle of international law between and among nation States, particularly in the context of international development and other co-operation, is subject to debate.405 On the implications of the concept of international solidarity, normative efforts within the UN to draft an international declaration focused on the subject remain contested.406 403   UN Charter, preamble, first and fourth paras. In adopting the Charter, the peoples of the United Nations determine “to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples.” UN Charter, preamble, fifth through eighth paras. In so doing, they “implicitly recognized their duty and undertook the responsibility “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom”.” Erica-Irene A. Daes, The Individual’s duties to the community and the limitations on human rights and freedoms under article 29 of the Universal Declaration on Human Rights, supra note 394, at para. 230. 404   The Millennium Declaration’s “values and principles” include solidarity: “Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most.” Millennium Declaration, supra note 380, para. 6. See also 2005 World Summit Outcome, supra note 303, Chapter I, Values and principles, para. 4 (reaffirming common fundamental values, including solidarity). One concrete manifestation arising from this commitment has been the establishment of a Digital Information Solidarity Fund. U.N. Secretary-General, In larger freedom: towards development, security and human rights for all, para. 68, U.N. Doc. A/59/2005 (March 21, 2005). 405   For details, see Chapter V.B.2. For scholarly views on the extent to which solidarity has become a full-fledged legal principle and its operation in various branches of international law, see Max Planck Institute for Comparative Law and International Law, Solidarity: A Structural Principle of International Law, 213 Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, XIII (Rüdiger Wolfrum, C. Kojima, eds., 2010) 406   See H.R.C., Report of the independent expert on human rights and international solidarity, U.N. Doc. A/HRC/15/32 (July 5, 2010) (by Rudi Muhammad Rizki); H.R.C. Res. 15/13, Rep. of the Hum. Rts. Council, 15th Sess., Sept. 13-Oct. 1, 2010, U.N. Doc. A/HRC/RES/15/13 (Sept. 30, 2010) (requesting further work by the independent expert on human rights and international solidarity. The mandate was temporarily extended as the result of a decision to postpone renewal of the mandate. H.R.C. Dec. 16/118, Rep. of the Hum. Rts. Council, 16th Sess., Feb. 28-March 25, 2011, U.N. Doc. A/HRC/DEC/16/2 (March 25, 2011). The decisions were adopted by a vote of 32 in favour and 14 against.

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chapter four C.  ESC Rights “indispensable” for “dignity and free Development of . . . personality”

While the relationship between the separate references in article 22 to the “right to social security” and “indispensable [ESC] rights” is implicit, the logical consequence of the universal right to social security as social justice is an entitlement for everyone to realization of the ESC rights indispensable to dignity and self-development. The guarantee in article 22 is to more than fulfilment of basic needs, although it includes them.407 The scope of this entitlement and of the rights concerned receive a degree of definition in connection with the references to the underlying aim of the text, which refers to “everyone” as a person living in dignity and freely developing in relation to self and others, capable of exercising the choices and responsibilities involved in being a member of society. This section examines the subsequent articulation and interpretation of the terms “dignity” and “free development of the personality” and highlights several aspects relevant to the concept of indispensable ESC rights as found in article 22. 1.  Dignity and Free Development of the Personality Human “dignity” and “free development of [the] personality” provide the fundamental points of reference in article 22 for the concept of indispensable rights. The drafters inserted these terms in the article as a way of identifying the ESC rights to which everyone is entitled, as discussed in Chapter III. The inherent dignity of the human person is recognized as a motivating principle408 in the UN Charter preamble in the determination of “the peoples of the United Nations” to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations 407   The “basic needs approach” affiliated with the 1960s-1980s development strategies to minimize poverty in less-developed countries has evolved into “human discourses” relating human needs to development, human rights and the still emerging concept of human security. See, e.g., Richard Jolly, Human Development and NeoLiberalism: Paradigms Compared, in Readings in Human Development 106–16 (Sakiko Fukuda-Parr and A.K. Shiva Kumar, eds. 2002). For a view of anthropologic basic needs and interests that every legal order must take into account in order to influence human behaviour, see Wilfried Brugger, supra note 392, at 597–8, citing ErnestJoachim Lampe, Herbert L.A. Hart, and John Rawls. See also John Rawles, supra note 346 and accompanying text (“primary goods”). 408   For the motivating role of general principles, see supra text accompanying notes 275–7.



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large and small”.409 The reference, proposed by the representative of Cuba during the drafting process,410 resembled the thematic emphasis familiar at the time in the regional context of the Americas. The then recently-adopted American Declaration of the Rights and Duties of Man speaks of the human being in terms similar to the Universal Declaration as “born, free and equal, in dignity and rights” and refers to the individual’s duty to “fully form and develop his personality”.411 Moreover, the ILO standards and procedures in place represent “a main thrust in the freedom and dignity campaign of twentieth-century man.”412 While the concept of human dignity is historically traceable in varying forms and functions across cultures, religions and civilizations, its content and operation as a legal norm and moral or philosophical concept remain debated.413 In the Universal Declaration and subsequent articulation, dignity remains as a separate concept but closely related to human rights, motivating its recognition for both positive action and negative restraint. The Universal Declaration recognizes the “inherent dignity … of all members of the human family”, reaffirms that all human beings “are born free and equal in dignity and rights” and declares everyone’s right to earn “an existence worth of human dignity”.414 This conviction is confirmed in the two Covenants which affirm that “recognition of the inherent dignity and of the equal and inalienable rights of all   UN Charter, preamble, second paragraph.   For the late stage drafting change that replaced the words “set out below” with “indispensable for his dignity and the free development of his personality”, see supra Chapter III, notes 176–181 and accompanying text. 411   American Declaration of the Rights and Duties of Man, supra note 6, preamble, first paragraph, art. XXIX. 412   Wilfred Jenks, in Nobel Symposium, supra note 288, at 245 (ILO standards and procedures “represent one of the most imaginative and determined contributions of the last fifty years to the quest for human rights, social justice and peace”). 413   See Milton Lewis, A Brief History of Human Dignity: Idea and Application, in Perspectives on Human Dignity: A Conversation (Jeff Malpas and Norelle Lickisi, eds., 2007) (surveying Judeo-Christian, Graeco-Roman roots as well as Islamic, Buddhist, Hindu). According to one commentator, the concept of human dignity has no fixed content, though discrete elements can be “mapped”; rather, the concept functions to justify political agreements that vary between each other to the extent of the regional and cultural specificities applied to the concept. Doron Shultziner, Human Dignity: Functions and Meanings, in Perspectives on Human Dignity: A Conversation, supra note 412, 73–92. For a contrasting five-part formulation of the image of the person in human rights that balances competing interests and is intended to be capable of cultural adaptations, see Wilfried Brugger, supra note 392, at 601–6 (self-determination, meaningfulness, responsibility, protection of life, and lifestyle). 414   Universal Declaration, supra note 1, preamble, arts. 1 and 23, para. 3. 409 410

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members of the human family is the foundation of freedom, justice and peace in the world” and that “these rights derive from the inherent dignity of the human person”.415 The ICCPR applies human dignity as a check on the abuse of power in providing that “[a]ll persons deprived of their liberty shall be treated with … respect for the inherent dignity of the human person”.416 Other articulations, nearly contemporaneous with the Universal Declaration, affirm the centrality of dignity. The Charter of the Organization of American States (OAS Charter) stated agreement to the principle which had been adopted by the ILO in its Philadelphia Declaration of 1944, namely, that “All human beings, without distinction as to race, sex, nationality, creed, or social condition, have a right to material well-being and to their spiritual development, under circumstances of liberty, dignity, equality of opportunity, and economic security”.417 In concomitant developments in international humanitarian law, the Geneva Conventions on the laws of war rested on the principle of respect for the human being and his/her dignity; common article 3 of the Conventions binds the parties to prohibit “outrages upon personal dignity” (paragraph c, in pertinent part), a principle also included as a fundamental guarantee in situations of non-international armed conflict in article 4 of Protocol II to the Geneva Conventions.418 The ideas of dignity and freedom of the personality interact closely and together guide the interpretation of human rights and duties, balancing the claim of society on the individual in this regard with the freedom essential to human dignity. The logical requirement to grant the same rights and freedoms to others as one claims for oneself underlies the dignity concept in human rights claims. As observed by one scholar, “no one may pretend to stand above other human beings, because all persons as persons have the same dignity and worth.”419   ICCPR and ICESCR, supra note 20, preambles, first and second paragraphs.  ICCPR, supra note 20, art. 10, para. 1, discussed as non-derogable and not subject to limitation due to lack of resources, in CCPR, General Comment No. 21: Article 10 (Humane treatment of persons deprived of their liberty), para. 4 (1992). 417  Organization of American States, Charter of the Organization of American States, article 45 (a), April 30, 1948, 119 U.N.T.S. 3 (amended by subsequent Protocols) [hereinafter OAS Charter]. 418   Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 4, para. 2(e), June 8, 1977, 1125 U.N.T.S. 609. 419   Wilfried Brugger, supra note 392, at 603. The approach in principle takes note of the tension between competing private interests and the tensions between private and public interests (the individual and the community). Id. at 600. 415 416



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Along with the reference to “free development of the personality” in article 22, the Declaration refers in article 26 to “full development of the personality” as the aim of education and in article 29 it recalls, in a provision resembling the American Declaration reference above, that everyone has duties to the community in which alone the free and full development of his personality is possible. The mutuality of roles between society and the individual personality420 is further reflected in the OAS Charter in which the parties are convinced that “the historic mission of America is to offer to man a land of liberty and a favorable environment for the development of his personality and the realization of his just aspirations,”421 and the American Convention of Human Rights grants related protections to private life and family life.422 A protective approach has also been taken by the European Court on Human Rights. In interpreting article 8 of the European Convention on Human Rights,423 the Court has held that the guarantee afforded by respect for private life under that article “is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”424 Thus, the freedom to develop one’s personality in article 22 may be understood to encompass both freedom from outside restraints or obligations (negative freedom) as well as freedom of choice to lead or shape one’s life in relation to the opportunities in social, political, and other spheres of human existence (positive freedom).425 The concept of human personality is recognized as a supra-legal basic value of law in a number of national legal systems in various regions and is associated with human dignity in many instances. Of particular note among national legal systems is the German constitutional protection granted to human dignity and the right to free development of the personality and, in that context, protection of the inner

420  See supra Chapter III.C.3.2 (concept of personality of the individual in relation to society in drafting process). 421   OAS Charter, supra note 417, preamble, first paragraph. 422   OAS, American Convention of Human Rights, art. 11.2, Nov. 22, 1969, O.A.S.T.S: No. 36, 1144 U.N. T.S. 123. 423   European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 32, art. 8 (right to respect for private and family life). 424   Private life includes a person’s physical and psychological integrity and, in some instances, may require positive as well as negative obligations. Botta v. Italy, 1998-I Eur. Ct. H.R. 66, 26 EHRR 241 (Feb. 24) (art. 8 not applicable). 425   See generally Sen, supra note 8, at 10–1.

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realm of the personality as a basis for free and responsible self-determination of the individual in society.426 2.  Indispensable ESC Rights The scope of the entitlement in article 22 to ESC rights indispensable to dignity and free development of the personality receives a measure of definition in the ESC rights in articles 23–27 of the Declaration introduced by the umbrella article.427 Indeed, many of the rights and freedoms can only be realized in the presence of each other and thus form an inter-linking set of socio-economic and civil-political factors resembling what one scholar has dubbed “instrumental freedoms”.428 The ESC rights introduced in the Declaration receive more specific definition in the substantive articles of the ICESCR and other human rights treaties429 and the interpretations of those texts. At times, the   Grundgesetz für die Bundesrepublik Deutschland [Basic Law], May 23, 1949, art. 1(1), BGBl. I (Ger.) (human dignity is inviolable; to respect and protect it by all means), art. 2(1) (everyone has the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law) (Ger.; unofficial translation). In interpretation of the concept of the human person in German constitutional law, the Federal Constitutional Court has stated that “[t]he image of the human person that underlies the Basic Law [the German Constitution] is not the isolated individual. Instead, the Basic Law has solved the tension between the individual and the community in such a way as to emphasize the communitarian ties and obligations of the person without intruding on the latter’s intrinsic and autonomous worth.” Wilfried Brugger, supra note 392, at 600, quoting 4 Entscheidungen des Bundesverfassungsgerichts [Decisions of the Federal Constitutional Court] 7, 15–6 (1954). This has given rise to recognition of personality rights as civil rights as well as actionable elements in criminal and tort law. See generally Hans Stoll, The general right to personality in German law: An outline of its development and present significance, in Protecting Privacy 29 (Basil S. Markesinis, ed., 1999). 427   See supra Chapter III.A. The linkage between article 22 and the specific ESC rights articles was noted by the U.N. Secretary-General several years after the Declaration was adopted. See U.N. Secretary-General, Activities of the United Nations and of the Specialized Agencies in the Field of Economic, Social and Cultural Rights, para. 10, U.N. Doc. E/CN.4/364/Rev.1, U.N. Sales No. 1952.IV.4 (1952) (“the “economic, social and cultural rights” referred to in article 22 receive a measure of definition in articles 23–27 of the Universal Declaration”). 428  Sen, supra note 8, at 38–4 noting five “instrumental freedoms” in human development: political freedoms, social opportunities, economic facilities, transparency guarantees, and protective security. In the human rights context, see, e.g., ICESCR, General Comment No. 14, supra note 375, paras. 3–4 (right to health realized in context of other rights); Wilfried Brugger, supra note 392 (five-part formulation discussed supra note 413). 429  ICESCR, supra note 20, arts. 2–15; Race Discrimination Convention, supra note 258; Women’s Discrimination Convention, supra note 258; Rights of the Child Convention, supra note 258; Migrant Workers Convention, supra note 258. Various 426



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underlying aims of human dignity and development of the personality are drawn upon explicitly to give those later provisions their present meaning. Similarly, the ESC rights addressed in articles 23–27 of the Declaration are further specified, without exclusion to due application of human rights law, in the provisions of international humanitarian law relating to the protection of victims of war and international and non-international armed conflicts.430 As to subsequent articulation, the rights in articles 23 and 24 of the Declaration relating to work and trade unions are specified in greater detail in articles 6–8 of the ICESCR and elaborated in other international legal instruments, in particular international labour standards adopted by the ILO and international Conventions and other instruments adopted by UNESCO. Additional elements include fair wages and equal remuneration for work of equal value, safe and healthy Conventions of the UN specialized agencies, in particular the ILO and UNESCO, also address specific ESC rights. See supra note 288 (ILO standards), note 371 (UNESCO Convention against Discrimination in Education). For regional instruments with ESC rights provisions, see African[Banjul] Charter, supra note 394; Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (“Protocol of San Salvador), Nov. 17, 1988, OAS Treaty Series, N° 69 (1988), reprinted in Basic Documents Pertaining to Human rights in the InterAmerican System, OEA/Ser.L.V/II.82 doc. 6 rev. 1 (1992); European Social Charter, Oct. 18, 1961, revised May 3, 1996, CETS No. 163, 529 U.N.T.S. 89. 430   Convention for the Amelioration of the Condition of the wounded and Sick in Armed Forces in the Field, Aug. 12, 1949; Convention for the Amelioration of the Condition of wounded, Sick and shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949; Convention relative to the Treatment of Prisoners of War, Aug. 12, 1949; Fourth Geneva Convention, supra note 364, common art. 3(2); Fourth Geneva Convention, supra note 364, arts. 14, 24 (take necessary measures to ensure that children under 15 who are orphaned or separated from families are not left to their own resources); art. 39 (protected persons shall be granted the opportunity to find paid employment; where a party to the conflict imposes methods of control which result in a protected person being unable to support himself, the said Party shall ensure his support and that of his dependents), art. 52 (all measures aiming at creating unemployment or restricting opportunities offered to workers in an occupied territory in order to induce them to work for the occupying Power are prohibited), art. 53 (destruction of property is prohibited except where absolutely necessary by military operations), art. 56 (duty of ensuring public health and hygiene in the occupied territory); art. 59 (occupying Power shall agree to relief schemes); art.60 (relief consignments); Protocol I, supra note 364, art. 10 (medical care and humane treatment to all wounded, sick and shipwrecked with no distinction on any grounds other than medical ones), art. 54 (starvation of civilians as a method of warfare is prohibited), art. 69 (occupying Power to ensure provision of clothing, bedding, means of shelter, and other supplies essential to the survival of the civilian population without any adverse distinction); Protocol II, supra note 418, art. 4 (children shall be provided with the care and aid they require and in particular they shall receive an education), art. 14 (starvation of civilians as a method of combat is prohibited).

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working conditions, equal opportunity for promotion, remuneration for public holidays, and rights of trade unions themselves.431 Similarly, the rights in article 25 of the Declaration to a “standard of living adequate for the health and well-being of the individual and … family”, to security in event of loss of livelihood, and to special care in motherhood and childhood are significantly elaborated in articles 9–12 of the ICESCR. The treaty text refers to “an adequate standard of living … including adequate food, clothing and housing as well as “continuous improvement of living conditions” and “freedom from hunger” through specific programmes (article 11). It also covers technical schemes of “social security, including social insurance” (article 9),432 and protection of the family and marriage with free consent and special protections for children and young persons (article 10). In place of the phrase with “adequate … health”, the ICESCR recognizes the right to enjoyment of “the highest attainable standard of physical and mental health” and includes specific steps in this regard (article 12). As to the right to education in article 26 of the Declaration, articles 13 and 14 of the ICESCR have added, among other things, that education shall be directed, not only to the “full development of the human personality,” but also to “the sense of its dignity”. In adding further to the Declaration, article 13 (1) provides that education is to enable “all persons to participate effectively in a free society”, primary education is to be “available free to all” and free secondary education progressively introduced. 431   The ILO has adopted nearly 200 international labour Conventions, including key Conventions relating to fundamental rights, employment policy, social security, conditions of work, occupational safety and health, social dialogue, migrant workers and the maritime and fishing sectors. Many Conventions are complemented by a Recommendation which provides guidance to all ILO Members, irrespective of ratification of the Convention concerned. The resulting International Labour Code “is not primarily a code of international obligations, but a code of internationally approved standards, certain of which are capable of becoming, and have in many cases become, binding upon States by reason of … ratification … and in respect of all of which members … have an obligation to report on the position of their national law and practice …” Wilfred Jenks, supra note 288, at 234–5 and n.14. 432   Along with the Declaration of Philadelphia, supra note 36, more than 20 ILO Conventions address the subject of social security, including the Social Security (Minimum Standards) Convention, 1952 (No. 102), June 28, 1952, Int’l Labour Conf., 35th Sess., I.L.C. Prov. Rec. 409 (vote), Add. XVI (authentic text); Equality of Treatment (Social Security) Convention, 1962 (No. 118), June 28, 1962, Int’l Labour Conf., 46th Sess., I.L.C. Prov. Rec. 455 (vote), Add. XVII (authentic text); and Maintenance of Social Security Rights Convention, 1982 (No. 157), June 21, 1982, 65/2 ILO Official Bull. 61. Guidance to all ILO member States is provided by the Income Security Recommendation, 1944 (No. 67), May 12, 1944, 26 ILO Official Bull. 4 (1944).



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Article 27 of the Declaration recognizing cultural rights and freedoms has been elaborated through article 15 of the ICESCR with reference to protection of moral and material interests of authorship, and freedoms indispensable for scientific research and creative activity, and through other international instruments.433 Compared with the texts of articles 23 to 25 of the Declaration, the interpretation given to the ICESCR rights suggest that the rights under the ICESCR are not to be construed restrictively and that the aims of dignity and development of the personality are important guides to their meaning.434 Guiding criteria for realizing the essential aspects of certain rights, such as those to housing, food and education and health, apply an object and purpose perspective.435 For example, the right to adequate food is considered “indivisibly linked to the inherent dignity of the human person” and “indispensable for the fulfilment of other human rights enshrined in the International Bill of Human Rights”.436 Food must be “acceptable within a given culture” and accessible in ways that “do not interfere with the enjoyment of other human rights”.437 Likewise, the right to housing “the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity … The “inherent dignity of the human person” from which the rights in the 433   UNESCO adopts Conventions, Recommendations and Declarations, alone and jointly with other organizations, in the fields of education, science and culture, including sports, cultural heritage and related intellectual property issues. See generally Standard-setting in UNESCO, Normative Action in Education, Science and Culture (Vol. I) (Abdulqawi A. Zusuf, ed. 2007). UNESCO also launched the ongoing Education For All movement for which two notable world conferences have been held. World Education Forum, April 26–28, 2000, Education for All: Meeting Our Collective Commitments, UNESCO Doc. No. 2000/WS/27 (2000); World Conference on Education for All, March 5–9, 1990, World Declaration on Education for All: Meeting Basic Learning Needs, http://www.unesco.org/education/efa/ed_for_all/background /jomtien_declaration.shtml (last visited April 7, 2011); CESCR, General Comment No. 13, supra note 360, para. 5 (referring to elements implicit in article 13(1) such as gender equality and respect for the environment). See also World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, supra note 271, para. 5. 434   The CESCR issues general comments to provide guidance on the interpretation and application of the treaty’s provisions. On their legal status, see supra text accompanying notes 250–61. 435  See infra Chapter V.A.1.1 (immediate obligations). 436  CESCR, General Comment No. 12, supra note 368, para. 4. 437   Id. paras. 8–13.

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Covenant are said to derive requires that the term “housing” be interpreted so as to take account of a variety of other considerations, most importantly that the right to housing should be ensured to all persons irrespective of income or access to economic resources.”438 Like food, the right to housing is read as a right to adequate housing, with similar factors determining cultural adequacy, affordability, habitability, and accessibility.439 The right to social security in article 9 of the ICESCR is “of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realize their Covenant rights.”440 To pay full respect to this principle and that of non-discrimination, the levels of benefits and the form in which they are provided must be adequate and accessible.441 The ultimate aims of dignity and free development of the personality also guide subsequent interpretation of the ESC rights relating to education and culture introduced in articles 26 and 27 of the Declaration. In describing the right to education in article 13 of the ICESCR, the Committee observed that education is both a human right in itself and an indispensable means of realizing other human rights, such as participating fully in communities, education was interpreted as “not just practical: a well-educated, enlightened and active mind, able to wander freely and widely, is one of the joys and rewards of human existence.”442 Similarly, the starting point for cultural rights is to understand that “[t] he full promotion of and respect for cultural rights is essential for the maintenance of human dignity and positive social interaction between individuals and communities in a diverse and multicultural world.”443

 CESCR, General Comment No. 4, supra note 383, para 7.   Id. paras. 7–8. 440  CESCR, General Comment No. 19: The right to social security (article 9) (2007), para. 1. 441   Id. paras. 22–28. 442   General Comment No. 13, supra note 360, para. 1. 443   General Comment No. 21: Right of everyone to take part in cultural life (article 15, paragraph 1(a) ), UN Doc. E/C.12/GC/21 (2009), para. 1. 438 439

CHAPTER FIVE

REALIZING THE ENTITLEMENT THROUGH NATIONAL EFFORT AND INTERNATIONAL CO-OPERATION This chapter addresses the scope and content of the second part of article 22 which recognizes that everyone is entitled to realization, through national effort and international co-operation, of the ESC rights recognized as indispensable. The examination draws upon international treaties, political declarations, and institutional interpretation and practice in the UN and other international organizations.444 The scope of action to realize the entitlement is reviewed, both in relation to the different levels of achievement and the principle that the duty to realize the rights applies in all circumstances. The implications for action are reviewed in the context of national effort and international co-operation, particularly as relates to relief and humanitarian assistance and development co-operation. The implications of the parameters referred to as the “organization and resources of each State are reviewed, and their enabling character clarified. A.  “entitled to realization” In an approach that distinguishes article 22 from other provisions of the Declaration, the article recognizes not only the ESC rights themselves but also an entitlement to realization of those rights. The entitlement is to be realized through means of national effort and international co-operation, conducted in accordance with the organization and resources of each State. The meaning of how to realize the entitlement, and assess progress toward doing so, is developed in this section which examines the legal nature of the duty to realize the entitlement, and the types of actions expected.

  For the use of the “extension” method for understanding the meaning and application of this part of article 22, see supra notes 250–59 and accompanying text. In the context of this chapter, practice relating to State reporting on progress in realizing human rights is particularly relevant. 444

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States’ recognition of an underlying commitment to realize the human rights recognized in the Declaration, including the ESC rights introduced in article 22, was demonstrated in the context of a periodic reporting system instituted soon after the Declaration was adopted to monitor progress to give concrete effect to the vision proclaimed. The system of periodic reporting on progress in realizing the rights of the Universal Declaration initially took the form of annual reports. The system had its juridical basis in the UN Charter (articles 55, 56, 64) and connected the human rights efforts of States with the action of the UN System, including the specialized agencies, using the goals set by the Universal Declaration.445 A system of implementation had been 445  In its decision proposing the periodic reporting system under the Universal Declaration, the Human Rights Commission pointed out that the Universal Declaration set forth goals toward which all States Members “should strive, both by their own efforts and through international co-operation …” Rep. of the Comm’n H. R., 12th Sess., March 5–29, 1956, Res. I, Annual reports on human rights, U.N. ESCOR Supp. No. 3, at 3–8 (1956); E.S.C. Res. 624 B (XXII), U.N. ESCOR, 22nd Sess., Supp. No. 1, at 12 (1 Aug. 1956). See also U.N. Doc. A/3154, U.N. GAOR, 11th Session, Supp. No. 3, at 61–2. The periodic reports were conceived as tools to show progress and obstacles in implementing the Declaration over time to deal more effectively with problems in the field of human rights. ECOSOC initiated a triennial basis for State reporting, considering the proposed annual basis to impose too great a burden on Governments and on the UN Secretariat. See Commission to Study the Organization of Peace, Eighteenth Report of the Commission to Study the Organization of Peace in The United Nations and Human Rights 74 (1968) (travaux preparatoires of the UDHR reporting system). The system was revised to become a continuous three-year reporting cycle in which reports were on civil and political rights the first year, ESC rights the second year, and freedom of information the third year. E.S.C. Res. 1074 C (XXXIX), U.N. ESCOR, 39th Sess., Supp. No. 1, U.N. Doc. E/4117, at 24 ( July 28, 1965). The periodic reporting system under the Declaration was formally terminated 25 years later. E.S.C. Dec. 1981/151, May 8, 1981, noting Decision 10 (XXXVII) of the Commission on Human Rights (March 13, 1981) based on G.A. Res. 35/209 (Dec. 17, 1980) providing that resources for activities considered completed, obsolete, of marginal usefulness or ineffective should be redeployed to finance new U.N. activities, in U.N. Repertory of Practice of United Nations Organs, Supp. No. 6, Vol. 4 (1979–1984), Article 62(2), para. 14, Article 55, para. 202, and Article 17(1), para. 41 and n.43. The Secretary-General had identified the periodic reporting system under the Declaration as one such activity. U.N. Secretary-General, Identification of activities that have been completed or are obso­ lete, of marginal usefulness or ineffective, U.N. Doc. A/C.5/35/40 and Add. 1, table 1 (1980) (concluding that the reporting procedure, while yielding “modest results”, was of “marginal usefulness and somewhat ineffective”). “Changing circumstances” have been identified as the reason for most of the determinations to discontinue activities under this program set up by the U.N. for budgetary reasons. U.N. Secretary-General, Proposed programme budget for the biennium 2006–2007, Add. 3, para. 19, U.N. Doc. A/60/6 (May 9, 2005). After entry into force of the ICCPR and ICESCR, ECOSOC estab­ lished a Sessional Working Group and, thereafter, the Committee on Economic, Social and Cultural Rights to review the reports required of States Parties under articles 16



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proposed from the start but postponed until adoption of the Covenants.446 Notably, under the ICESCR, a States party recognizes a treaty ­obligation “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 … by all appropriate means, including particularly the adoption of legislative measures.”447 (emphasis supplied) This general undertaking in the Covenant applies to all the ESC rights in the ICESCR and thus builds on the foundation of “indispensable rights” introduced in the Universal Declaration. This section focuses on the meaning given to the term “full realization” in the ICESCR as the fountainhead of a number of subsequent treaties and political declarations that continue to develop and elucidate the concept of “realization” of indispensable ESC rights introduced in article 22.448 1.1  Immediate and Progressive Achievement While “[t]here is no single road to … full realization”,449 the general undertaking of article 2, paragraph 1 of the ICESCR is understood to be achieved in two ways: by action with immediate effect and by progressive achievement (“with a view to achieving progressively the full realization”). The obligations of immediate effect are a necessary part of the concept of “realization” as, without them, the rights would have no meaning.450 They apply to specific rights that are to be realized immediately, as well as to actions that are to be taken immediately as a basis for ensuring progress toward the realization of all ESC rights. The principle of progressive realization thus embodies the obligation to take steps immediately and also imposes a “specific and continuing and 17 of the ICESCR. E.S.C. Res. 1988 (LX), U.N. ESCOR, 60th Sess., Supp. No. 1, U.N. Doc. E/5850, at 11 (May 11, 1976). One contemporaneous view considered that the examination of the reports by governments “remained too general, and in particular too unequal, to have any substantial influence on opinion or action.” C. Wilfred Jenks, in René Cassin, Amicorum Discipulorumque Liber (Vol. I) Extraits, 118 (1971). 446  See supra Chapter III.A. 447  ICESCR, supra note 20, art. 2, para. 1 (emphasis supplied). 448   E.g., Rights of the Child Convention, supra note 258, arts. 4; Indigenous Peoples Convention, supra note 376, art. 2 (2)(b). See generally Vienna Declaration and Programme of Action, supra note 271; Copenhagen Declaration and Plan of Action, supra note 298; Millennium Declaration, supra note 380 (commitments to realize all ESC rights). 449   Limburg Principles, supra note 65, para. 6. 450  See infra notes 463–69 (minimum essential levels).

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obligation … to move as expeditiously and effectively as possible” towards the full realization of the remaining ESC rights.451 The balance between the immediate and progressive aspects of realization has been the subject of much attention. The CESCR has recognized that “full realisation of all economic, social and cultural rights will generally not be able to be achieved in a short time”.452 However, it is important not to overstate the principle of progressive realization453 as this could lead to unwarranted delays and violation of the obligation to realize the rights. In assessing States parties’ compliance with their obligations to take action, the CESCR looks to whether implementation is reasonable or proportionate with respect to the attainment of the relevant rights, complies with human rights and democratic principles and whether it is subject to an adequate framework of monitoring and accountability.454 This result provides specificity to the formulation in article 22, which speaks singly of “realization … in accordance with the organization and resources of each State”.455 Obligations of immediate effect are not eliminated as a result of resource constraints.456 The CESCR has identified certain rights which  CESCR, General Comment No. 3, supra note 375, para. 9. The CESCR has systematically applied this principle to particular rights. See, e.g., CESCR, General Comment No. 14, supra note 375 (highest attainable standard of health), CESCR, General Comment No. 17: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (Article 15) (2005) (right to take part in cultural life and enjoy benefits of scientific progress), CESCR, General Comment No. 18, supra note 377 (right to work), CESCR, General Comment No. 19, supra note 440 (social security). The CESCR has taken the view that the principle of progressive realization differs significantly from that in article 2 of the ICCPR which embodies an immediate obligation to respect and ensure all of the relevant rights. CESCR, General Comment No. 3, supra, para. 9. 452  CESCR, General Comment No. 3, supra note 375, para. 9. 453  Magdalena Sepúlveda, supra note 89, at 312. 454   CESCR, General Comment No. 19, supra note 440, para. 63 (of general application). The reference draws upon principles ensuring equality, meaningful participation, access to information, and transparent and accountable institutions previously invoked by the CESCR. See supra Chapter IV.B.2. and V.B.3. 455  See infra Chapter V.C. (organization and resources). However, the formula has been critically assessed as functioning relative to levels of development and available resources, thereby necessitating “the development of a multiplicity of performance standards for each enumerated right in relationship to the varied social, d ­ evelopmental, and resource contexts of specific countries.” Audrey R. Chapman, The Status of Efforts to Monitor Economic, Social, and Cultural Rights, in Economic Rights: Conceptual, Measurement, and Policy Issues 143, 158 (Shareen Hertel and Lanse Minkler eds., 2007). 456  CESCR, General Comment No. 3, supra note 375, paras. 11 (monitoring, plan of action) and 12 (non-discrimination). Inadequate resources simply mean that the State party must strive to ensure the widest possible enjoyment of the relevant rights under 451



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are capable of immediate implementation in full; these may be considered self-executing in most States, subject to judicial determination. These provisions include the equal right of men and women (article 3); equal remuneration for work of equal value (article /(a)(i) ), the right to form and join trade unions and the right to strike (article 8), protection of children and young persons, particularly against economic and social exploitation (article 19(3) ), compulsory primary education and the liberty of parents to choose their children’s school, and freedom to establish educational institutions (article 13(2)(a),(3) and (4) ), freedom for scientific research and creativity (article 15(3) ).457 While many of these represent obligations of non-interference, they include positive action as well. Two cross-cutting obligations are of particular importance in understanding the nature of the duty to fully realize the ESC rights recognized in the ICESCR and rooted in the “indispensable rights” of the Declaration. The undertaking in article 2(2) to “guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind”458 and the undertaking in article 2(1) to “take steps … with a view to achieving progressively the full realization of the rights recognized in the present Covenant”459 both apply with immediate effect to all the ESC rights in the ICESCR. The obligation to “take steps” involves monitoring the extent of realization of the rights and the nature and scope of the problems and devising a plan of action, strategies and programmes for their promotion; the Committee has more recently interpreted this obligation as requiring the State to identify indicators and set benchmarks against which to measure progress.460 the prevailing circumstances. See infra Chapter V.C (in accordance with the organization and resources of each State). See also Limburg Principles, supra note 65, para. 25; Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, adopted Jan. 26, 1997, Guideline No. 10, reprinted in U.N. Doc. E/C.12/2000/13 (Background paper submitted by the Int’l Comm’n of Jurists) presented at CESCR, 24th Sess., Nov 13-Dec. 1, 2000, U.N. Doc. E/2001/12, U.N. Doc. E/C.12/2000/13, U.N. ESCOR, Supp. No. 2, at 92, 189 (2001). 457   See, e.g., CESCR, General Comment No. 3, supra note 375, para. 5; CESCR, General Comment No. 9, supra note 373, para. 10. 458  CESCR, General Comment No. 3, supra note 375, para. 1; CESCR, General Comment No. 13, supra note 360, para. 31 (applied to education). For the principle of equality and non-discrimination, see supra Chapter IV.B.2. 459  The French and Spanish texts, which are equally authentic versions of the Covenant, lend depth to the meaning: in French the phrase is “s’engage à agir” (“to act”) and in Spanish it is “a adopter medidas” (“to adopt measures”). 460   E.g., CESCR, General Comment No. 1, supra note 461, paras. 1, 4 (the essential  first step towards promoting the realization of [ESC] rights is diagnosis and

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In doing so, special attention and priority are to be given to those which appear particularly vulnerable or disadvantaged.461 The monitoring is to continue as a means for evaluating progressive achievement. These steps are to be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.462 For ESC rights which predominantly involve progressive realization by their nature, immediate obligations have been interpreted to require the realization of a “minimum core obligation” that ensures “the satisfaction of, at the very least, minimum essential levels of each of the rights”.463 This embedded core obligation thus achieves “the essential elements without which a right loses its substantive significance as a human right” and cannot be said to be realized.464 It is viewed as “the absolute minimum entitlement, in the absence of which a State party is  to be considered to be in violation of its obligations”;465 reading the ICESCR any other way would largely deprive it of its raison d’être.466 knowledge of the existing situation); CESCR, General Comment No. 3, supra note 375, CESCR, General Comment No. 5: Persons with disabilities (1994), para. 13. This obligation is to be implemented immediately after ratification or accession. Failure to monitor, including developing criteria for assessing compliance constitutes a violation of the Covenant under the Maastricht Guidelines, supra note 456, Guideline No. 15(f). The obligation includes identifying appropriate indicators and national benchmarks with regard to each of the substantive rights. E.g., CESCR, General Comment No. 14, supra note 375, para. 58; CESCR, General Comment No. 12, supra note 368, para. 29 (verifiable benchmarks for monitoring the right to food); CESCR, General Comment No. 15: The right to water (Articles 11 and 12) (2002), paras. 37(f), 44(c), 47, 53–54 (national water strategy plan should include indicators and benchmarks to measure progress; failure to identify constitutes violation of the obligation to fulfil). 461  CESCR, General Comment No. 1: Reporting by States parties (1989), para. 1. This priority is repeated in context of specific rights as well: the right to adequate food (CESCR, General Comment No. 12, supra note 368, para. 31), the right to education (CESCR, General Comment No. 13, supra note 360, para. 49), the right to highest attainable standard of health (CESCR, General Comment No. 14, supra note 375, para. 53), the right to water (CESCR, General Comment No. 15, supra note 460, paras 21–29). See also Limburg Principles, supra note 65, para. 14. For a critical assessment of the methods available to identify the groups subject to priority, see Audrey Chapman, in Economic Rights, supra note 455, at 158–9. 462  CESCR, General Comment No. 3, supra note 375, para. 2. 463  CESCR, General Comment No. 3, supra note 375, para. 10. 464  Fons Coomans, Economic, Social and Cultural Rights, 16 SIM Special 3, 17 (1995). 465   Philip Alston, Out of the abyss: the challenges of confronting the new UN Committee on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 331, 351–5 (1987). A State party in which any significant number of individuals were 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.” CESCR, General Comment No. 3, supra note 375, para. 10. 466  CESCR, General Comment No. 3, supra note 375, para. 10.



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The changing scope and substance of the entitlement and the corresponding core obligations reflect the principle of evolving interpretation of rights and are a natural outgrowth of the change over time in the notion and context for realization of the rights.467 Exactly what constitutes the minimum essential level of each right which States parties must meet as their minimum core obligation is subject of evolving international interpretation.468 The CESCR has developed some guiding criteria in relation to certain rights including the rights to housing, food and education and health. Those criteria include availability (sufficient quantity and quality); affordability; accessibility; and adequacy/ acceptability including in cultural dimensions.469 While the principle of progressive realization is seen as a “necessary flexibility device, reflecting the realities of the real world and the difficulties involved … in ensuring full realization of [ESC] rights”, the obligation remains one of continuous improvement and acts of omission constitute violations of human rights when there is a need for positive action.470 This involves immediate steps, as discussed above, to work out a detailed plan of action for the progressive implementation of each of the rights.471 Progress over time is to be included in the periodic

467   For example, new obstacles to realization of the highest attainable standard of health in the forms of epidemics or threats resulting from terrorism could give rise to implications for the scope of the rights and freedoms involved, including the minimum core entitlement, and for the means of their implementation. 468   Core obligations and minimum essential levels of each of the following rights have been developed by the CESCR in General Comment No. 4 for the right to adequate housing; General Comment No. 12 for the right to food; General Comment No. 13 for the right to education; General Comment No. 14 for the right to the highest attainable standard of health, General Comment No. 18 for the right to work; General Comment No. 19 for the right to social security; General Comment No. 21 for the right to participate in cultural life. See CESCR, General Comment No. 4, supra note 383, para. 8; CESCR, General Comment No. 12, supra note 368, paras. 7–13; CESCR, General Comment No. 13, supra note 360, para. 57; CESCR, General Comment No. 14, supra note 375; CESCR, General Comment No. 18, supra note 377, para. 31; CESCR, General Comment No. 19, supra note 440, paras. 59–60; CESCR, General Comment No. 21, supra note 443, para. 55. 469   See supra notes 140–46 and accompanying text (C.1 – dignity) for application of the criteria to specific ESC rights. 470   E.g., CESCR, General Comment No. 14, supra note 375; Maastricht Guidelines, supra note 456, Guideline No. 15. For application in particular country cases involving health and natural resources cases, see Magdalena Sepúlveda, supra note 89, at 321–2. 471   E.g., CESCR, General Comment No. 1: Reporting by States parties, para. 4 (1989); CESCR, General Comment No. 2: International technical assistance measures (Article 22), para. 2 (1990) (deliberate, concrete and targeted. Under no circumstances shall

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reports of States under corresponding treaty provisions, including disaggregated statistics to show the extent of realization of the right to specific groups and sub-groups.472 The principle of progressive realization also entails a strong presumption against deliberately taking any retrogressive measures; such measures would need to be justified by reference to the totality of the rights in the Covenant and in the context of the full use of maximum available resources, including those available through international co-operation.473 A measure that affects the core content of the obligations imposed by a particular right is deemed a violation.474 While this be interpreted as implying for States the right to defer indefinitely efforts to ensure full realization. Limburg Principles, supra note 65, para. 21. 472  CESCR, General Comment No. 1, supra note 466, para. 7; Compilation of Report­ ing Guidelines, supra note 258, Chapter I, para. 26 (reports under all treaties should pro­ vide relevant statistical data, disaggregated by sex, age,29 and population groups, which may be presented together in tables annexed to the report. Such information should allow comparison over time and should indicate data sources). General Comment No. 16, supra note 367, para. 39 (disaggregated by men and women). States were invited “in conformity with article 2, paragraph 1, of the [ICESCR] to consider identifying benchmarks to measure achievements in the progressive realization”. E.S.C. Res. 1990/45, U.N. Doc. E/RES/1990/45, E/1990/INF/6 (May 25, 1990). The current Guidelines on Treaty-Specific Documents to be submitted by States Parties under Articles 16 and 17 of the ICESCR, provide that States reports should indicate “[a]ny mechanisms in place to monitor progress towards the full realization of the Covenant rights, including identification of indicators and related national benchmarks in relation to each Covenant right”. Compilation of Reporting Guidelines, supra note 258, Chapter II, Annex, Part A, para. 3(b). In a prolonged process to identify a methodology for specific benchmarks and indicators, States were requested to include information taking into account the illustrative indicators developed by the UN and provided under appendix 3 of the harmonized guidelines; these spell out structural, process and outcome indicators for each right in the Universal Declaration correlated with the Millennium Development Goals. For a description of the process leading to the tripartite typology of the illustrative indicators, see Audrey Chapman, in Economic Rights, supra note 455, at 161–2. In a perpetuation of the limited understanding of article 22, the table of illustrative indicators places Article 22 as the basis for the right to (technical) social security and ignores the relevance of Article 25 of the Declaration to the issue of social security. See Office of the U.N. High Commissioner for Human Rights, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, Annex I (Lists of illustrative indicators), UN Doc. HRI/MC/2008/3 (June 6, 2008) [hereinafter Report on Indicators]. 473   E.g., CESCR, General Comment No. 3, supra note 375, para 9. For specific applications, see, e.g., CESCR, General Comment No. 4, supra note 383, para 11 (housing), CESCR, General Comment No. 13, supra note 360, para. 45 (right to education); CESCR, General Comment No. 14, supra note 375, para. 32 (right to health). On the meaning of “maximum available resources” in relation to international co-operation, see infra Chapter V.C.2. 474   Maastricht Guidelines, supra note 456, Guideline No. 14. Under the Guidelines, this type of direct action of States could lead to violations if the measures reduce the



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­ itigating factors such as crisis situations may be taken into account, m the State concerned has the burden to prove use of all available resources at its disposal, show that its limitations do not violate article 4 of the Covenant and are rescinded as soon as possible, and demonstrate that it gives priority to vulnerable groups and complies with underlying human rights and democratic principles.475 1.2  Realization of ESC Rights in All Circumstances Subsequent articulation and interpretation clarify that the right to realization of indispensable ESC rights, and its corresponding obligations, apply in all circumstances, including strife, armed conflict, public emergency, and natural disaster. A distinction between inability and unwillingness of a State to carry out its obligations for reasons beyond its control is relevant in determining whether actions or omissions of a State amount to a violation of ESC rights.476 The flexibility built into States’ obligations to realize ESC rights, chiefly by means of the principle of progressive realization, renders it unnecessary to permit derogation in cases of emergency. This conclusion is even more confirmed by the absence of any derogation clause in the ICESCR and other international and regional treaties that recognize ESC rights.477 In addition, the right to life, from which no derogation is permitted,478 depends on

extent to which the rights are guaranteed as may occur, for example, in cases of reduction in budgets allocated for education, scientific research or realization of other ESC rights. 475   On the CESCR’s systematic monitoring of deliberately retrogressive measures, see Magdalena Sepúlveda, supra note 89, at 325–32. The process requires high levels of expertise and knowledge of country situations. For the priority to be given vulnerable groups and human rights and democratic principles, see this section infra. 476   Maastricht Guidelines, supra note 456, Guideline No. 13 (example of temporary closure of school due to an earthquake). This distinction gives effect to the force majeure principle in international law. Victor Dankwa, Cees Flinterman and Scott Leckie, Commentary on the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 20 SIM Special 13, 24 (1997) [hereinafter Maastricht Guidelines Commentary]. States Parties to the CESCR, for example, are asked to report on structural or other obstacles arising from factors beyond their control which impede the full realization of Covenant rights. Compilation of Reporting Guidelines, supra note 258, Chapter II, Annex, para. 3(f). 477   A notable exception is the European Social Charter. See Magdalena Sepúlveda, supra note 89, at 294–5. The travaux préparatoires of the ICESCR do not reveal any specific discussion on the issue. Manisuli Ssenyonjo, Economic, Social and Cultural Rights in international Law 40 (2009). 478  ICCPR, supra note 20, art. 4, para.2. Derogation of the right to life would be irreversible in the case(s) concerned.

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at least the minimum essential levels of the right to food, shelter, and other ESC rights.479 Even in situations of permissible derogation of civil or political rights, the continuing application of the right to realization of ESC rights has been affirmed. In considering States’ reports on the application of permissible derogations under article 4, paragraph 1 of the ICCPR, the Human Rights Committee requests information on the State’s compliance with other international obligations that remain applicable in times of emergency, including those relating to ESC rights.480 The UN General Assembly asserted in 1970 that fundamental human rights accepted in international law and laid down in international instruments apply fully in situations of armed conflict.481 The International Court of Justice has affirmed the non-derogable nature of ESC rights in relation to its review of the conduct of a State party to the ICESCR.482 The very nature of ESC rights renders it difficult to imagine a case where derogation would assist rather than worsen a situation.483 Even in providing for the possibility of imposing limitations on ESC rights, the ICESCR restricts such limitations to those “as are determined by law only in so far as … compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”484 The phrase has been interpreted to require that “a limitation shall not be interpreted or applied so as to jeopardize the essence of the 479   E.g., CESCR, General Comment No. 15, supra note 460, paras. 2–3 (2002) (interdependence of right to water with right to life and other human rights). 480  CCPR, General Comment No. 29: Article 4: Derogations during a state of emer­ gency, para. 10, nn. 5–6 (2001). The Human Rights Committee noted the absence of a derogation clause in the Convention on the Rights of the Child and in soft law involving ESC rights in the framework of minimum humanitarian standards. 481   Basic Principles for the Protection of Civilian Populations in Armed conflicts, UN General Assembly Resolution 2675 (xxv), 9 December 1970, para. 1. 482   See, e.g., Legality of the Threat or Use of Nuclear Weapons (Request by the General Assembly), Advisory Opinion, para. 25, 1996 ICJ 226 (July 8); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, paras. 106, 112, 2004 ICJ 136 (July 9) (protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind in Article 4 of the ICCPR). In circumstances of alien domination, the dominating or occupying power bears responsibility for violations of ESC rights. Maastricht Guidelines, supra note 456, Guideline No. 17. 483  Sepulveda, supra note 73, at 297. 484  ICESCR, supra note 20, art. 4 (emphasis added). The reference to compatibility with the nature of ESC rights reveals that the limitations in article 4 of the ICESCR were “primarily intended to be protective of the rights of individuals rather than permissive” for States. Limburg Principles, supra note 65, Principle 46.



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right concerned.”485 While the phrase addresses limitations and not derogations, its content emphasizes that the very nature of ESC rights informs the balance between States’ exercise of their sovereign rights to maintain peace and order during public emergencies, and compliance with their responsibilities to protect the rights of the individual from abuse. The CESCR has stressed that these core obligations are nonderogable and continue to exist in situations of conflict, emergency and natural disaster.486 However, all ESC rights are non-derogable, and the case may be that limitations may only be justified as to the non-core obligations, those to be entered into after the core are reached, under the terms of article 4 of the Covenant since the deprivation of core obligations would not “be compatible with the nature of the rights”. 2.  Types of Duties to Realize ESC Rights Distinctions in the types of conduct relevant to realizing ESC rights have developed on the basis of interpretation of human rights Charter obligations (and hence the Declaration) as well as related human rights treaties. While there is no single approach to classi­ fying   obligations, a leading typology, developed by Asjborn Eide as a Special Rapporteur in the context of the UN Charter-based human rights machinery, distinguishes three general categories of obligation as conduct to “respect, protect, fulfil” ESC rights.487 States have a duty to “respect” everyone’s ESC rights by avoiding measures that would hinder or prevent enjoyment of the rights; this duty of restraint includes an obligation to prevent corruption or arbitrary acts of state officials that would deprive a person of available goods and services, such as arbitrary forced evictions or restrictions on the right

485   Limburg Principles, supra note 65, paras. 55–56. The limitations clause of article 4 of the ICESCR also requires that the action not be arbitrary, unreasonable or discriminatory, follow clear rules accessible to all, and permit effective remedies against illegal or abusive limitations. Id. paras. 49–51. 486  CESCR, Statement on Poverty and the ICESCR, U.N. Doc E/C.12/1/Add.59, para. 18 (May 21, 2001). 487   The fact that the terminology originated in work of the UN Sub-Commission on the Promotion and Protection of Human Rights, which was a Charter-based human rights body, links it all the more closely to the Declaration and article 22. See Eide, Right to Adequate Food as a Human Right, supra note 272, at paras. 112–14, 169–81. Subsequent UN rapporteurs, including those working on ESC rights (Danilo Türk) and the right to adequate housing (Rajindar Sachar) also applied this methodology. Maastricht Guidelines Commentary, supra note 476, at 20.

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to freedom of association.488 The duty to “protect”, in contrast, requires that States parties take measures to prevent third parties from interfering with enjoyment of the rights, including due diligence in controlling the behaviour of non-state actors and use of their influence in international organizations, where they act collectively, to protect ESC rights.489 The duty to “fulfil” involves positive action to ensure rights are actually enjoyed. According to the CESCR, the duty to fulfil may be exercised through action either to “facilitate”, that is, using positive measures to enable or assist individuals and communities to realize the right, or to directly “provide” the means for realization when an individual or group is unable, for reasons beyond their control, to realize the right themselves by means at their disposal.490 A further variation to the duty to fulfil involves a duty to “promote”, which can include research, training, and information dissemination and public education on ESC rights.491 The elements of solidarity and duties as well as rights of the individual to the community and to other individuals, are implicit in the classifications relating to “protect” and “fulfil”, respectively.492 The choice of type of obligation depends partly on the particular right involved and even on the different aspects of that right. For example, States have the primary responsibility for direct provision of education in most circumstances, yet parameters of the obligation to fulfil (provide) are not the same for all levels of education.493 Since its explicit adoption of the Charter-based doctrine of respect, protect, fulfil, the CESCR has applied the “tripartite” typology, 488   Id. at 20. This duty of restraint that is intimately connected with ESC rights is generally associated with civil and political rights. 489   Maastricht Guidelines, supra note 456, Guideline Nos. 18, 19. As to non-state actors, the horizontal effectiveness of human rights is sometimes referred to as Drittwirkung. Maastricht Guidelines Commentary, supra note 475, at 20. 490  CESCR, General Comment No. 12, supra note 368, para. 15 (right to adequate food, like any other human right, imposes three types or levels of obligations on States parties); CESCR, General Comment No. 13, supra note 360, paras. 46–48 (right to education). Under the Maastricht Guidelines, the obligation to fulfil requires a “comprehensive set of interventionary measures” including appropriate legislative, administrative, budgetary, judicial an dother measures towards the full realization of the relevant rights. Maastricht Guidelines, supra note 456, Guideline No. 6; Maastricht Guidelines Commentary, supra note 476, at 21. 491  CESCR, General Comment No. 14, supra note 375, para. 37 (right to highest attainable standard of health). 492  See supra Chapter IV.B.3 (participation) and IV.B.4 (solidarity). 593  CESCR, General Comment No. 13, supra note 360, para. 48, and CESCR, supra note 20, art. 13(2)(3).



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maintaining the further three subcategories to “fulfil” in every General Comment relating to specific rights.494 However, the addition of an “obligation to promote” under “fulfil” has been criticized as unduly confusing given the more general meaning of the term “promote” in relation to human rights in general.495 Other bipolar typologies have been advanced from time to time, including the obligations of conduct and result, and the acts of omission and commission.496 These typologies are based on general international law principles rather than human rights law in particular, and their application presents some difficulty conceptually.497 Acts of commission involve direct action of States or other entities insufficiently regulated by States while acts of omission involve the failure of States to take necessary measures stemming from legal obligations, including those of immediate effect discussed above.498 Acts of omission include the failure of a State to take into account its international legal obligations in the field of ESC rights when entering into bilateral or multilateral agreements with other States, international organizations or non-state actors such as multinational corporations.499 While there are recognized limitations on application of such typologies, in certain instances they aid in promoting the synergy between the dual means of national effort and international co-operation anticipated in article 22. The normative development of typologies for the obligations to realize ESC rights bears consequences for the indicators to be used in 494   Along with General Comments Nos. 12–14 discussed supra notes 490 and 491, see CESCR, General Comment No. 15, supra note 474, paras. 20–29 (right to water); CESCR, General Comment No. 16, supra note 367, paras. 17–21 (equal rights of men and women); CESCR, General Comment No. 17, supra note 451, paras. 28–29 (2005) (right to benefit from protection of scientific, literary or artistic production); CESCR, General Comment No. 18, supra note 377, paras. 22 (right to work); CESCR, General Comment No. 19, supra note 463, paras. 43–51(2007) (right to social security); CESCR, General Comment No. 21, supra note 463, paras. 48–54 (right to take part in cultural life, stating at para 51:” The obligation to fulfil can be subdivided into the obligations to facilitate, promote and provide.”) 495   See Magdalena Sepúlveda, supra note 89, at 207. 496   E.g., CESCR, General Comment No. 3, supra note 375, para.1 (conduct and result). See Matthew Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development 107–9 (1995). 497   In some cases, the specificity of responsibility for multiple types of conduct or actors involved in fully realizing a particular right is compromised by attempts to analyze State conduct as wholly or continuously only one or the other type of conduct. Magdalena Sepúlveda, supra note 89, at 189–96. 498   For examples of both types of acts, see Maastricht Guidelines, supra note 456, Guideline Nos. 14, 15. 499   Id., Guideline 15, para. (j).

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reporting on realization of the rights. While the tripartite typology was explicitly adopted as part of an evolving framework for developing indicators for promoting and monitoring the implementation of human rights500 the correlation between these elements and the “tripartite” schema for the illustrative indicators is not complete. The illustrative indicators identify structural, process and outcome indicators; some have aligned such indicators to obligations of conduct and result involved in each of the obligations to respect, protect and fulfil.501 Activity to respect, protect and fulfil could be considered to also involve systemic indicators that assist in detecting, correcting and preventing violations, especially in relation to private actors. The indicators schema is a descriptive one identifying types of measures relevant to particular situations in States; in contrast, the tripartite typology of obligations is analytically driven by the purpose intended. In summary, over time the meaning of “realization” of the indispens­ able ESC rights in article 22 has encompassed both immediate and progressive facets. The two aspects are interrelated since the immediate obligations include taking steps toward progressively achieving the full realization of the right. It follows that “realization” of the indispensable rights is not limited only to the immediate obligations of “essential features”502 or “minimum essential levels” of the rights discussed in the preceding section of this chapter. Keeping in mind the ultimate aims of human dignity and free development of the personality, the entitlement of article 22 to indispensable rights logically encompasses the “full” realization of the rights and not only a minimum core. This realization is to be achieved progressively, and its achievement for everyone is the ultimate goal of the article’s “social security” as social justice. This clearer understanding of the Declaration’s “right to social security”   Report on Indicators, supra note 472, paras. 5, 9.   The obligation of conduct requires action reasonably calculated to realize the enjoyment of a particular right while the obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard. Maastricht Guidelines, supra note 456, Guideline No. 7. The distinction seeks to reverse the somewhat prejudicial interpretation of the International Law Commission in 1977 which maintained that Article 2(1) of the Covenant imposed solely obligations of result. Maastricht Guidelines Commentary, supra note 475, at 21. 502   The term “essential features” is used to apply the requirements of availability, accessibility, acceptability, and adaptability in the context of the right to education, upon which States have obligations to respect, protect and fulfil. CESCR, General Comment No. 13, supra note 360, para. 50. 500 501



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as social justice, and the “realization” of ESC rights indispensable for dignity and personality, could enhance the renewed Charter-based review of all UN Members’ ESC rights performance.503 B.  “through national effort and international co-operation” Along with the results-based entitlement to the rights themselves, article 22 provides that everyone is entitled to realization of indispensable ESC rights “through national effort and international co-operation”. “National effort” and “international co-operation” thus identify the general categories of action for implementation of the specific ESC rights in articles 23–27. The use of “and” between the two means would suggest that the full spectrum of indispensable ESC rights for everyone at a global level can only be realized by measures taken within States and at the international level. As discussed in Chapter II, the separate reference in article 22 to “national effort” to realize ESC rights provided the basis to imply a duty of positive action within States into article 56 of the UN Charter, reflecting the compromise between the majority  position that there should be no reference to the obligations of states  in the Declaration, and the other that obligations should be spelled out in detail.504 The terms “national effort” and “international co-operation” in turn evoke action with respect to human rights, not only of States, but also of society’s actors in general, including 503   The recently-established Universal Periodic Review process of the Human Rights Council is based on the Declaration, as was the system of periodic reports by States to review progress in realizing the rights proclaimed in the Universal Declaration which operated from 1956–1973 that was formally terminated in 1981. See supra note 445. However, the earlier system looked to the specialized agencies directly to report on certain of the ESC rights articles which were deemed within their primary mandates. See infra note 565 and accompanying text. For efforts to integrate normative human rights obligations into the recently-adopted Millennium Development Goals, a policy instrument of the General Assembly, see “international co-operation” at Chapter V.B.2. 504   While Article 56 already contained the obligation of States to act at international level, jointly or separately, with the Organization, the inclusion of obligations to correspond to the rights formulated in the Declaration was debated intensively, and the result was seen as unsatisfactory by some countries that wished to have duties of States expressly mentioned. For the drafting history, see Chapter III; see also Eide, Right to Adequate Food as a Human Right, supra note 262, at paras. 97–98, nn.61–63. On the additional meaning given to article 56 of the Charter by the reference in article 22 to national effort for human rights, see supra chapter II, A, 2.4.

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international organizations, business and non-governmental organizations, and civil society.505 The review in this section506 demonstrates that the two concepts have evolved in international treaty law and practice much in line with the object and purpose of their original inclusion. The primary undertaking of the CESCR, for example, involves States parties’ commitment to take steps on two fronts. “individually” and “through international assistance and co-operation, especially economic and technical”.507 The wide sweep of “international assistance and co-operation” has been interpreted to include, consistently with the drafters’ discussions, State to State collaboration, co-operation between States and international organizations with relevant mandates, and private action, alone or in relation with public actors. By articulating the implementation framework as an “entitlement”, article 22 recognizes a right to have the State and the international community organized in such a way that ESC rights are effectively respected, protected and fully realized, just like civil and political rights. From this entitlement come related normative principles, particularly the right to economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realized.508 The right to development proclaimed by General Assembly resolution envisages a process of realization that mirrors article 22’s two pronged framework and underlying general principles.509 As affirmed in the Declaration, States have the primary responsibility for their own development and for co-operating with each other to ensure international conditions favorable to development and elimination of obstacles.510 In a reflection of the principles underlying article 22’s   For the import of the terms at the time of drafting, see supra Chap. III.C.4.   For use of the extension method to explore the meaning of the elements of article 22, see supra notes 250–59 and accompanying text. 507  ICESCR, supra note 20, article 2(1). 508   For the relationship between the ESC rights introduced in article 22 and the process of development, see Part C of this chapter infra (organization and resources of each State). Some commentators have considered article 28 as an “embryo” for the right to development due to its reference to a social and international order in which all “the rights and freedoms set forth in the Declaration can be fully realized”. See supra note 306. While aspirational in nature and encompassing all human rights, article 28 was not included in the UDHR reporting procedure which the UN conducted, together with reporting from relevant specialized agencies, from 1956 to 1974. See supra notes 445, 503. 509   See supra notes 306–311 and accompanying text. 510   Declaration on the Right to Development, supra note 67, art. 3(1) and 3(3). See also Vienna Declaration, supra note 271, para. 10. As stated by a U.N. Special 505 506



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reference to “everyone, as a member of society”,511 all human beings have a responsibility for development, individually and collectively, and “should promote and protect an appropriate political, social and economic order for development” with “full respect for their human rights … as well as their duties to the community, which alone can ensure the free and complete fulfillment of the human being.”512 The primary reference points for realizing the right to development within and between States are found in a series of international conferences that led up to the Millennium Declaration. At these conferences, the members of the international community made political commitments to national effort and international level co-operation to seek to realize human rights and development goals in specific fields and for specific groups of people, including women, children, youth and aging populations.513 1.  National Effort to Realize the Entitlement The first step to realizing the conditions necessary for ESC rights is through national effort, just as the term itself precedes international co-operation in the text of article 22.514 The Declaration does not itself specify the form of “national effort” apart from the fact that it should be

Rapporteur, “these rights are not merely vague development goals; they constitute immediate obligations for States and for the international community to take concrete and specific steps now towards their realization.” Eide, Human rights and income distri­ bution, supra note 306, Annex VIII, para. 93. 511   For a discussion of the normative bases for the principles of universality, equality, participation and solidarity, see supra Chapter IV.B. 512   Declaration on the Right to Development, supra note 67, art. 2(3). 513   See infra Chapter V.B.2. For a look at the various international conferences and their role leading up to the Millennium Summit Declaration, see Darrow and Arbour, supra note 256. 514   The primacy of national effort has been affirmed repeatedly in General Assembly resolutions and World Summit declarations. See, e.g., Declaration on the Right to Development, supra note 67, art. 8, para. 1; Copenhagen Declaration, supra note 298, Commitment 2(b). At the World Food Conference in 1974, the participating states declared that (j) “[d]eveloping countries reaffirm their belief that the primary responsibility for ensuring their own development rests with themselves. They declare, therefore, their readiness to continue to intensify their individual and collective efforts with a view to expanding their mutual co-operation in the field of agricultural development and food production, including the eradication of hunger and malnutrition …” World Food Conference, Nov. 5–16, 1974, Universal Declaration on the Eradication of Hunger and Malnutrition, U.N. Doc. E/CONF.65/20 (U.N. Sales No. E.75.II.A.3 (1974), endorsed by GA Res. 3348 (XXIX), U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631, at 75 (Dec. 17, 1974).

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in accordance with the organization and resources of each State.515 The efforts of States to realize ESC rights under the Charter, and hence the Declaration, have been interpreted to encompass conduct to “respect, protect and fulfil” the rights, as discussed earlier.516 The tripartite typology has likewise been applied to the general undertakings of States parties in Part II of the ICESCR as to both obligations of immediate effect and progressive realization. The provisions in Part II of the Covenant involve taking “steps … with a view to achieving progressively the full realization of the rights recognized … by all appropriate means”(article 2, para 1), guaranteeing non-discrimination in the exercise of those rights (article  2, para. 2) and ensuring the equal right of men and women to the enjoyment of all the rights (article 3). This review of the meaning of the term “national effort” identifies the parameters and challenges in making and assessing real progress. 1.1  Nature and Scope of National Effort Consistent interpretations of obligations relating to ESC rights shed light on the meaning of the term “national effort” in article 22. From the start of the periodic reporting system under the Declaration and even its precursor system for review of action taken under the human rights clauses of the Charter,517 UN Members States have enjoyed a margin of discretion in selecting the means for implementation of their ESC rights obligations similar to the situation in relation to their civil and political rights. The principles of participation and freedom of information as well as accountability, non-discrimination, and attention to the most vulnerable have developed to guide State discretion, albeit in a general manner.518 Similarly, States parties to the CESCR 515   For the implications of the phrase « organization and resources of each State », see infra Chapter V.C. 516   See supra Chapter V.A (respect, protect, fulfil, and immediate/progressive obligations). 517   See supra note 445. The first attempt to establish a system for monitoring states’ efforts with regard to their economic and social Charter commitments pre-dated the adoption of the Universal Declaration and was based on Article 64 of the Charter. G.A. Res. 119 (II), U.N. GAOR, 2nd Sess., Resolutions, at 24–5 (Oct. 31, 1947). The General Assembly provided that ECOSOC may “obtain reports from the member states on the steps taken to give effect to its own recommendations and to recommendations on matters falling within its competence made by the General Assembly.” The practice was discontinued in 1952 in favour of specific timeframes for implementation of resolutions. The United Nations and Human Rights, supra note 445, at 75. 518   See supra Chapter IV.B (equality/non-discrimination, and participation). The periodic reporting system under the Declaration dedicated one of the years in the



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may select the steps they consider most appropriate for the full realization of the right; however, appropriate steps must include acting immediately to guarantee access by everyone, without discrimination, to all the rights, and to guarantee at least the minimum content of the core obligations.519 In exercising discretion, States are to ensure that the means selected are adequate and the most effective to fulfil the right in the country concerned unless a compelling justification exists for departure; in this regard, the means of direct incorporation of the right into the legal order is favoured.520 In national effort at all stages, the full participation of all sectors of society is considered indispensable to achieving progress in realizing ESC rights.521 In line with the general deference to States, the phrase “by all appropriate means” in the CESCR has been given its full and natural meaning.522 In assessing States’ progress, the CESCR has relied on “all appropriate means” to take into account the particularities of the legal, administrative, financial, educational and social systems and measures of each State523 as well as the religious, cultural, historical and developmental distinctions among States.524 Factors beyond the State’s reasonable control are recognized in evaluating the capacity to implement particular rights while, at the same time, a violation of ESC rights occurs where there is a wilful failure to satisfy the generally accepted minimum standard within the State’s power to meet.525 Thus, the flexibility granted States in their selection of means of effort coexists with three-year reporting cycle to freedom of information reporting, and declared participation in enjoyment of the rights a benchmark against which States were asked to report. See Rep. of the Comm’n H. R., 42nd Session, Third Reporting Guidelines, Part B, para. 1(e), UN Doc. E/CN.4/940, U.N. ESCOR, Supp. No. 6 (March 22, 1967) (freedom of information in three-year cycle). For the reporting process based on the Declaration, see supra note 445. 519   E.g., CESCR, General Comment No. 9, supra note 373, para. 1; CESCR, General Comment No. 21, supra note 463, paras. 67–68 (cultural life); Limburg Principles, supra note 65, paras. 71–72. For core obligations, see supra Chapter V.A.1. 520  CESCR, General Comment No. 9, supra note 373, paras. 7–8. The Government has the duty to invoke ESC rights obligations in relevant court proceedings while in most states it is up to the courts to determine whether a treaty obligation is selfexecuting. Id., para. 11. 521   Limburg Principles, supra note 65, para. 11. 522  CESCR, General Comment No. 3, supra note 375, para. 4. 523  CESCR, General Comment No. 9, supra note 373, para. 1; CESCR, General Comment No. 3, supra note 375, para. 7. 524   Maastricht Guidelines, supra note 456, Guideline No. 8; Maastricht Guidelines Commentary, supra note 475, at 21–2. 525   E.g., Limburg Principles, supra note 65, paras. 71–72.

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the State’s obligation to use all means at its disposal to give effect to the rights recognized, while bearing in mind the fundamental requirements of international human rights law including ensuring legal remedies and governmental accountability.526 The latitude offered a State in its organization for achieving ESC rights is well-established: “the undertaking “to take steps … by all appropriate means …” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is silent and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any other particular approach … the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems …”527 Ultimately, it is the Committee that makes the assessment whether the means chosen are adequate, a difficult task which is aided in principle by States’ provision of information on a range of indicators encompassing demographic, political and criminal justice realities and social, economic and cultural contexts.528 Whether States themselves and the CESCR have the statistical and other expert capability needed for this task remains debatable.529 National effort to realize ESC rights involves giving “due priority” in the allocation of available resources; every effort is to be made to use all available resources at the State’s disposal to satisfy “as a matter of priority” the obligations to realize the right, particularly the minimum

526   Id., para. 2. Similarly, the means must be “consistent with the nature of the rights in order to fulfil their obligations under the Covenant.” Limburg Principles, supra note 65, Principle no. 17; Maastricht Guidelines, supra note 456, Guideline No. 2. 527  CESCR, General Comment No. 3, supra note 375, paras. 4, 8. 528   Compilation of Reporting Guidelines, supra note 258, Appendix 3 (Indicators for assessing the implementation of human rights, for reporting on all the human rights treaties). 529   Quality statistical data may not be available in countries with a weak statistical system; even if available, countries may be reluctant to take the time to compile or to share the reports, because the data would reveal significant problems and efforts to use the data to evaluate a country’s performance could likely overwhelm the UN monitoring committees as it would require sophisticated computerized information systems and a level of statistical expertise which members of the CESCR and the OHCHR lack. See Audrey Chapman, in Economic Rights, supra note 455, at 158–9.



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essential level of each right.530 States themselves are to regularly assess whether the measures chosen, including resource allocations, are effective in practice, and determine the appropriateness of the means applied.531 If a State argues that it is unable to comply fully with its obligations due to resource constraints, it bears the burden of proving that every effort has been made to use all available resources “as a matter of priority”532 but the independent assessment by the Committee of this claim remains a complex and sophisticated task. In the process of reporting on ESC rights to the international community, States have the opportunity, including at inter-agency level within a State, to take stock of progress in relation to all relevant treaty obligations and to analyze the causes and factors impeding realization of the rights with solutions indicated where possible.533 The reporting process also affords an opportunity to coordinate progress toward human rights and toward globally recognized goals, such as the Millennium Development Goals (MDGs).534 While the State retains responsibility for realization of ESC rights, its national effort to realize ESC rights, to be effective, includes engagement across the members of society – individuals, families, local communities, inter-governmental organizations, non-governmental organizations, civil society organizations and the private business sector.535 This basic premise echoes the mutuality of responsibility introduced in article 22’s reference to everyone “as a member of society”.536 In their efforts to facilitate the discharge of these responsibilities, States should provide the economic, social and cultural environments through a wide and diverse span of actions that aim to prevent discrimination or other abuses in the private sphere, and enable private sector measures that help to realize the rights, such as promoting access to credit where not produced by market forces alone.537   E.g., Limburg Principles, supra note 65, para. 28 (due priority mindful of need to assure everyone subsistence requirements and essential services). 531   E.g., CESCR, General Comment No. 20, supra note 361, para. 36 (nondiscrimination). 532   E.g., CESCR, General Comment No. 12, supra note 368, para. 17; CESCR, General Comment No. 14, supra note 375, para. 47; Limburg Principles, supra note 65, para. 20. See also Magdalena Sepúlveda, supra note 89, at 334. 533   Compilation of Reporting Guidelines, supra note 258, paras. 9, 13. 534   Id., para. 14. 535  CESCR, General Comment No. 14, supra note 375, para. 42. 536   See supra Chapter IV.B.4 (mutuality and solidarity). 537  CESCR, General Comment No. 3, supra note 375; CESCR, General Comment No. 5, supra note 460, para. 5 (Governments continue to bear primary responsibility). 530

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1.2  Types of National Effort National effort to realize ESC rights spans a variety of measures, including establishing legislation and institutions to implement laws as well as policies, plans and strategies of administrative, financial, educational and social nature.538 Which measures are considered “appropriate” depends on the right concerned,539 but legislative measures are given priority and indeed are considered indispensable for ensuring certain rights and guarantees. This priority is reflected textually in the general undertaking of article 2(1) of the CESCR to take steps by “all appropriate means, including particularly the adoption of legislative measures.”540 Adoption of legislation to address discrimination, for example, is now considered indispensable for States parties to the CESCR.541 In practice, from the earliest days of the UN’s review of States’ progress in implementing the Universal Declaration, priority was given to legislation and measures taken to implement laws.542 The legal framework of States continues to be of paramount importance in assessing national effort to implement States’ obligations under seven major human rights treaties, including the CESCR.543 Where national human rights institutions are set up, Governments are urged to include ESC rights in their legal mandates.544 E.g., CESCR, General Comment No. 4, supra note 383, para. 14 (right to housing – private sector financing becomes part of available resources); CESCR, General Comment No. 5, supra, paras. 11–12 (non-discrimination and equality for persons with disabilities through awareness raising and other measures). 538   See, e.g., CESCR, General Comment No. 3, supra note 375, para. 6. 539  See, e.g., measures for reporting on the rights to housing, health, education and culture provided in the Compilation of Reporting Guidelines, supra note 258, paras. 50–54 (housing), 55–57 (health), paras. 67–73 (cultural life). 540   See also Rights of the Child Convention, supra note 258, art. 4 (States parties undertake all appropriate legislative, administrative and other measure for the implementation of the rights recognized). 541  CESCR, General Comment No. 20, supra note 361, para. 37 (indispensable in complying with Article 2(2) ); CESCR, General Comment No. 3, supra note 375, para. 3. 542   See supra note 445 (early periodic reporting system under the Declaration). 543   Compilation of Reporting Guidelines, supra note 258, Chapter I, para. 42 (in reporting on all human rights treaties, States requested for information on protection of treaty rights in the constitution, a bill of rights, a basic law, or other national legislation and, if so, what provisions are made for derogations, restrictions or limitations; whether treaty provisions are directly incorporated in national law and can be invoked before a court or other tribunals, as well as details on competent judicial, administrative and other authorities, remedies for violations, national human rights institutions). 544  CESCR, General Comment No. 10, The role of national human rights institutions in the protection of economic, social and cultural rights, para. 4.



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Remedial measures represent another important aspect of national effort,545 as all ESC rights are considered to possess at least some significant justiciable dimensions in the great majority of legal systems.546 While the ICESCR does not itself contain a provision for remedial action, unlike the ICCPR, article 8 of the Universal Declaration recognizing the right of everyone to an effective remedy for rights granted under law served as the original basis for ESC rights remedies.547 The justiciability of ESC rights generally was recently reinforced by the adoption of the Optional Protocol to the ICESCR providing for an international level remedy where efforts to achieve a domestic remedy have failed.548 The use of remedial measures, whether of an administrative or judicial nature, complements other non-judicial measures.549 This type of effort requires States to develop or strengthen mechanisms to grant remedies to people and empower individuals to know about and use the mechanisms for redressing or claiming their rights.550 States have developed judicial and non-judicial remedies for violations of ESC rights, some at the level of constitutional guarantees and others in statutory or other measures, even criminal sanctions.551 The effectiveness of the remedy depends on the situation and forms include compensation, reparation, restitution, rehabilitation, guarantees of

545   See, e.g., Compilation of Reporting Guidelines, supra note 258, Chapter I, para. 59 (for all human rights treaty obligations, general information in the common core document on the nature and scope of remedies provided in their domestic legislation against violations of human rights and whether victims have effective access to these remedies). 546  CESCR, General Comment No. 9, supra note 373, para. 10. 547   Id. para. 3. Under the ICCPR, States Parties undertake to ensure an effective remedy for violations of the rights and freedoms recognized, as well as competent institutions to give it effect when invoked by an aggrieved person. See ICCPR, supra note 20, art. 2. See also Martin Scheinin, Economic and Social Rights as Legal Rights, in Economic, Social and Cultural Rights, supra note 377. 548  Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, G.A. Res. 63/117, U.N. Doc. A/RES/63/117 (Dec. 10, 2008) (not yet entered into force). The Optional Protocol provides for submission of communications to the CESCR by or on behalf of individuals or groups of individuals claiming to be victims of a violation of any of the ESC rights set forth in the Covenant by the State Party which exercises jurisdiction. Id. art. 2. 549  CESCR, General Comment No. 9, supra note 373, para. 3; Maastricht Guidelines, supra note 456. 550   See, e.g., Report of the Special Rapporteur on human rights and extreme poverty, supra note 319, para. 11. 551   In some instances, promotional and monitoring bodies such as national ombudsman institutions and human rights commissions, address violations or seek preventive action. See Maastricht Guidelines, supra note 456, Guideline Nos. 22–32.

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non-repetition, and public apology.552 Administrative remedies may be adequate in many cases and should be accessible, affordable, timely and effective.553 In the case of a failure to provide domestic legal remedies for violations of ESC rights under the CESCR, a State party is obliged to show either that such a remedy is not appropriate within the terms of article 2(1) or that it is unnecessary.554 To be effective in national effort, States must initially and periodically monitor the situation to evaluate the extent and distribution of problems in realization of the rights. Thus, part of national effort itself involves elaborating national measurements, criteria and indicators, and monitoring the situation, including through the use of disaggregated data to detect discrimination in enjoyment of the rights and the effectiveness (or not) of steps taken and results achieved.555 The importance of indicators was already noted by States and the international community in their early efforts to assess national effort under the Universal Declaration; the need was then linked to the lack of any binding criteria for reporting and the difficulty to assess progress otherwise.556 This same priority has been noted regularly since the beginning of the work of the CESCR on monitoring and evaluating progress.557 After a prolonged journey, illustrative indicators were developed by the UN human rights system to provide guidance to States parties to identify a national approach to benchmarks in relation to each Covenant right.558 ICESCR States Parties report on the monitoring mechanisms they have put in place to monitor progress towards the full realization of the Covenant rights, including identification of

 CESCR, General Comment No. 20, supra note 361, para. 40.  CESCR, General Comment No. 9, supra note 373, para. 9. 554   Id. para. 3 (a difficult burden). Primacy is given to national remedies over international procedures for individual claims. Id. para. 4. 555   E.g., CESCR, General Comment No. 20, supra note 361, para. 41. At the World Summit for Social Development, participating Heads of State and Government committed to “[e]laborating at the national level, the measurements, criteria and indicators for determining the extent and distribution of absolute poverty. Each country should develop a precise definition and assessment of absolute poverty, preferably by 1996, the International Year for the Eradication of Poverty …” Copenhagen Programme of Action, supra note 299, at II(A), para. 26(d). 556   See Rep. of the Comm’n H. R., 16th Sess., Apr. 7-May 30, 1953, para. 277, U.N. Doc. E/CN.4/689, U.N. ESCOR, Supp. No. 8 (June 6, 1953). 557  CESCR, General Comment No. 1, supra note 461, para. 6 (for evaluating, it may be useful to identify specific benchmarks). 558   For the framework and tables of illustrative indicators outlined by the OHCHR, see Report on Indicators, supra note 472, at Add. I (Lists of Illustrative Indicators). 552 553



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indicators and related national benchmarks in relation to each Covenant right.559 2.  International Co-operation to Realize the Entitlement The Universal Declaration’s only reference to “international cooperation” is found in article 22, underscoring the relevance of this principle to the realization of ESC rights.560 The reference reflects the Charter’s emphasis on the role of international co-operation in promoting conditions which help to realize ESC rights or the conditions necessary for their realization. The aim under the Charter “to employ international machinery for the promotion of the economic and social advancement of all peoples”561 is linked with finding solutions to international problems of an economic, social, cultural or humanitarian character.562 A key normative building block for this responsibility is the Charter pledge of Member States to take “joint and separate action in co-operation with” the UN to achieve the aims set out in article 55 of promoting higher standards of living, employment, and economic and social progress and development; solutions to international economic, social, health and related problems and international cultural and educational co-operation; and universal respect for and observance of human rights and fundamental freedoms for all.” This duty to co-operate has been reaffirmed as a basic principle of international law, but its

  Compilation of Reporting Guidelines, supra note 258, Annex ESCR, para 3.   Despite the explicit reference to “international co-operation” in article 22, commentators have turned to article 28 to emphasize the aim of international co-operation and assistance to realize ESC rights. See, e.g., Limburg Principles, supra note 65, para. 30. Generally accepted to be hortatory in nature, article 28’s broader reference to an international and social order covering all the rights and freedoms in the Declaration can be interpreted to visualize the type of society in which the article 22 “indispens­ able” rights are fully realized. Article 28 has been considered a “provision of wideranging potential significance … The responsibility to create and to maintain that social order must be on the State and on all members of society acting together … in interplay with non-governmental organizations and (other) transnational groupings working towards the common goal.” Eide, Right to Adequate Food as a Human Right, supra note 262, at para. 99. 561   U.N. Charter, preamble, eighth paragraph. 562   U.N. Charter, arts. 1(3), 56. The Charter also provides for the Organization’s internal coordination to promote and guide international co-operation to achieve its aims. U.N. Charter, art. 13 (General Assembly recommendations for the purpose of promoting international co-operation and assisting in the realization of human rights); arts. 62–68 (coordination between ECOSOC and specialized agencies for such purposes), art. 76 (such purposes applied to trusteeship system). 559 560

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precise legal implications remain unsettled, particularly in relation to promoting human rights.563 In emphasizing international co-operation, article 22 clarified the role of international co-operation in the Charter as a necessary com­ ponent to realizing ESC rights. While States maintain the primary responsibility to ensure the realization of ESC rights within their own jurisdictions and to define and achieve the aims of international co-operation, international organizations and, in particular the specialized agencies of the United Nations, play a critical role in giving concrete expression to the human rights goals, and in guiding and enabling States in achieving them. As early as 1952, the UN SecretaryGeneral noted that the constitutions of a number of specialized agencies “and their functioning in practice indicate a recognition of the need for “international co-operation” for the realization of economic, social and cultural rights.”564 In recognition of their special relevance, specialized agencies were integrally involved and provided periodic reports to the UN Secretary-General based on their work with member States on law and practice in areas relevant to the articles of the Declaration that concerned them. Along with the ILO which reported on article 22 as well

563   See, e.g., Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, G.A. Res. 2625, Annex, 25 U.N. GAOR, Supp. No. 28, U.N. Doc. A/5217, at 121 (1970). The Declaration affirms the duty of States to co-operate with each other “to promote international economic stability and progress, the general welfare of nations and international co-operation [and] … To this end … (b) … co-operate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all, … (d) … co-operate in the economic, social and cultural fields as well as in the field of science and technology and for the promotion of international cultural and educational progress … co-operate in the promotion of economic growth throughout the world, especially that of the developing countries …” The duty of co-operation is interrelated with, and is to be construed in the context of, other fundamental principles based on the Charter, including the equal rights and self-determination of peoples, sovereign equality, and the duty to fulfil in good faith the obligations of the Charter, which “constitute basic principles of international law, and [the UN] consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles.” Id. General Part, paras. 2, 3 (in pertinent part). For commentary on the legal implications of the duty of co-operation, see Philip Alston and Gerard Quinn, The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and cultural Rights, Hum. Rts. Q. 9 (1987), 156, 187–9. 564   Activities of the United Nations in the field of ESC rights, supra note 427, para. 7. The agencies included the ILO, FAO, UNESCO, IBRD, IMF, WHO and the International Refugee Organization, which has since been replaced in function by the Office of the UN High Commissioner for Refugees.



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as a number of other articles of the Declaration,565 UNESCO and the World Health Organization (WHO) regularly contributed reports from the first reporting cycle (1954–56) on the rights concerning educational and cultural rights, and health-related rights, respectively. Other agencies which also submitted reports in the fifth and sixth reporting cycles (1966–69, 1969–73) included the Intergovern­mental Maritime Organization (now the International Maritime Organization, or IMO), the Universal Postal Union (UPU), the General Agreement on Tariffs and Trade (GATT) which has since been succeeded by the World Trade Organization, the Food and Agriculture Organization (FAO), and the World Meteoro­logical Organization.566 In addition, the 565   The UN requested the ILO to report on the effect given by States to article 22 as well as to other articles of the Declaration, notably prohibition of discrimination, right to social security (in the sense of contingencies), rights involving work, and special protection for motherhood and childhood (articles 2, 22, 25(1), 23(1)-(4), 24 and 25(2). The listed areas for reporting arose from an exchange between the UN and the ILO about which areas fell directly within the competence of the ILO. In the ILO’s view, the rights within its competence included “social security, the right to which was affirmed in general terms in Article 22 of the Declaration and confirmed in several of its aspects in Article 25, paragraph 1.” Comm’n H. R., Periodic reports on human rights: Report by the International Labour Office, transmitted by U.N. Secretary-General, UN Doc. E/CN.4/758/Add.1 (Jan. 6, 1958). This approach was reflected in each triennial cycle of reporting, both in the ILO’s periodic reports, and in the Secretary-General’s guidelines listing the ILO Conventions relevant to the subjects identified. E.g., Rep. of the Comm’n H. R., 15th Sess., March 16-April 10, 1959, U.N. Doc. E/3229, U.N. Doc. E/CN.4/789, U.N. ESCOR, 15th Sess., Supp. No. 8, at 14. ILO Member States’ reports to the ILO under its own reporting processes (based on its Constitution, articles 19 and 22) formed the basis from which the ILO submitted reports to the UN during this period. Other specialized agencies concerned with ESC rights provided similar information corresponding to their competence, particularly UNESCO and WHO. E.g., Comm’n H. R., Periodic reports on human rights: Reports by the specialized agencies, transmitted by U.N. Secretary-General, UN Doc. E/CN.4/758 and Add. 2 (UNESCO), 3 (WHO) (Jan. 24, 1958); Comm’n H. R., Periodic reports on human rights: Memorandum by the Secretary-General, UN Doc. E/CN.4/776/Add. 1 (6 March 1959) (UNESCO). 566   The IMO acknowledged that some of its work indirectly related to ESC rights to the extent that it may have a bearing on the improvement of living conditions and environmental and industrial hygiene. See Comm’n H. R., Periodic reports on human rights: Reports by the specialized agencies, communicated by U.N. Secretary-General, U.N. Doc. E/CN.4/1012/Add., at 2 (Dec. 8, 1969). The UPU noted that the ­improvement of the postal services was instrumental to ensure better distribution of information which related to ESC rights. Id. at 5. The GATT noted that its aims included ­conducting the relations of contracting parties in trade and economy “with a view to raising stan­ dards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, developing the full use of the resources of the world and expanding the production and exchange of goods.” Id. at 6. GATT reported on trade concessions negotiated during the reporting period and on the adoption of a Protocol Amendment introducing a Part IV to GATT (June 27, 1966) which aimed at promoting “positive efforts designed to ensure that less developed contracting parties secure a share in the growth of the international trade commensurate with the needs of

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International Civil Aviation Organization (ICAO), the International Bank for Reconstruction and Development (IBRD), the International Telecommunications Union (ITU), and the International Atomic Energy Agency (IAEA) informed the Secretary-General that they were not in a position to send the information requested by the SecretaryGeneral.567 Upon adoption of the ICESCR, the close connection between its aims and those of specialized agencies led the then-ILO Director General to observe that the “effect of these provisions of the Covenant is that potentially the specialised agencies, and in particular the ILO by reason of the number and importance of the economic, social and cultural rights falling within its field, become the executing agencies of the [ICESCR].”568 2.1  International Co-operation as a Supplement to National Effort The principle of international co-operation in relation to “national effort” to realize ESC rights in article 22 is not only an end to be achieved for friendly relations among nations but a vital means to complement the primary responsibility of States to meet their obligations to realize ESC rights through national effort. The role of international co-operation as a means to enhance domestic implementation of ESC rights, particularly in developing countries, is developed further through treaty and soft law and policy instruments.569 Under the ICESCR, States parties their economic developments.” Id. While GATT’s report did not contain direct references to rights or to specific articles of the Declaration, its content indicated that “international co-operation” under the Declaration (and thus article 22) included economic co-operation and trade. In its reporting, the FAO noted that its activities as mandated by its Constitution made a wide-ranging contribution to the promotion of human rights, including agrarian reform, rural employment, food production, nutrition, and general improvement of rural living conditions. Comm’n H. R., Periodic reports on human rights: Reports received from the specialized agencies, transmitted by U.N. Secretary-General, U.N. Doc. E/CN.4/1156/Add.2, at 1, 3 (May 8, 1974). 567   No explanation was provided. See Comm’n H. R., Periodic reports on human rights: Reports and information submitted by ILO and UNESCO, transmitted by U.N. Secretary-General, U.N. Doc. E/CN.4/918/Add.2 (Nov. 11, 1966). 568   Wilfred Jenks, supra note 288, at 250. 569   States participate collectively within an increasingly wide framework of global, regional and other organizations and in groupings of multilateral and bilateral arrangements. While most such arrangements could be considered in the nature of lex ferenda or international public policy (rather than lex lata), the consistency of practice informs the progressive development of international law on international co-operation which some suggest provides evidence of the existence of an emerging customary law principle of international solidarity. U.N. High Commissioner for Human Rights, Human rights and international solidarity, paras. 12–15, U.N. Doc. A/HRC/12/27 (July 22, 2009), referring to Special Rapporteur on Human Rights and International Solidarity, Human rights and international solidarity, Working paper, Sub-Comm’n on the



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commit to taking steps “individually and through international assis­ tance and co-operation, especially economic and  tech­ nical, to the ­maximum of [their] available resources, with a view to achieving progres­sively the full realization of the rights” recognized in the treaty (emphasis supplied).570 More specifically, under article 11 of the Cove­ nant, the essential importance of international co-operation based on free consent is recognized in ensuring the right to an adequate standard of living and States agree to take relevant measures including “through international co-operation” to give effect to the fundamental right of everyone to be free from hunger (art. 11(1), (2) ). Similarly, States Parties to the Convention on the Rights of the Child recognize the “importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries” and “undertake … measures [in regard to ESC rights recognized under that Convention] to the maximum extent of their available resources and, where needed, within the framework of international co-operation.571 In their approach to international co-operation, both treaties assure a key role for the UN system and particularly the specialized agencies in promoting international co-operation for the purpose of implementing the recognized rights.572 The contributions of non-governmental organizations and other actors of civil society, including business, have also been recognized for their complementary role as part of international co-operation.573 Numerous international resolutions and other instruments, and in particular the outcomes of international conferences, give witness to the consistent acceptance by the international community that international co-operation, and particularly assistance for economic and social development, should supplement national effort in order to

Promotion and Protection of Human Rights, U.N. Doc. E/CN.4/Sub.2/2004/43 (June 15, 2004) (by Rui Baltazar Dos Santos Alves). 570  ICESCR, supra note 20, art. 2(1). 571  Rights of the Child Convention, supra note 258, preamble and art. 4. The Convention recognizes the “importance of international co-operation for improving the living conditions of children in every country, in particular the developing countries”, and re-emphasizes the point in relation to international co-operation to realize children’s right to health and education. Id. at preamble, eleventh paragraph and arts. 23(4), 24(4), 28(3). 572  CESCR, supra note 20, arts. 20–24 ; Rights of the Child Convention, supra note 258, art. 45. The contributions include commenting upon request, submitting reports on realization or obstacles in realizing rights, and providing technical advice or assistance to States Parties. 573   E.g., Limburg Principles, supra note 65, para. 34. See infra Chapter V.B.2.2.2.

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achieve outcomes that help to realize human rights as well as development.574 In 1969, the international community solemnly committed to “supplement, by concerted international action, national efforts to raise the living standards of peoples.”575 The 1986 Declaration on the Right to Development proclaimed that effective international co-operation was   For outcomes of international conferences related to specific categories of people, see Comprehensive implementation of and follow-up to the Vienna Declaration and Programme of Action, G.A. Res. 53/166, para. 1, U.N. Doc. A/RES/53/166 (Dec. 9, 1998), noting U.N. High Commissioner for Human Rights, The Five-Year Implementation Review of the Vienna Declaration and Programme of Action, U.N. Doc. A/53/372 (1998). See also World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Aug. 31-Sept.8, 2001, Durban Declaration and Programme of Action, at 5–66, U.N. Doc. A/CONF.189/12 (2001); Fourth World Conference on Women, Sept. 4–15, 1995, Beijing Declaration and Plan of Action on the Advancement of Women, at 1–132, U.N. Doc. A/CONF. 177/20/Rev. 1, U.N. Sales No. 06.IV.13 (1996); Further actions and initiatives to implement the Beijing Declaration and Platform for Action, G.A. Res. S-23/3, U.N. Doc. A/RES/S-23/3 (Nov. 16, 2000), Commission on the Status of Women (CSW), Rep., 54th Sess., March 13, Oct. 14, 2009 and March 1–12 2010, Declaration on the occasion of the fifteenth anniversary of the Fourth World Conference on Women, U.N. Doc. E/2010/27, U.N. Doc. E/CN.6/2010/11 Add., U.N. ESCOR, Supp. No. 7, at 2 (2010). For efforts at development in relation to specific ESC rights, see Second United Nations Conference on Human Settlements, June 3–14, 1996, U.N. Doc. A/CONF.65/14 (Aug. 7, 1996) (known as “Habitat II, Habitat Agenda” and Declaration on Cities and other Human Settlements on the New Millennium); General Assembly Ad Hoc Comm’ee of the Whole, G.A. Res. S-25/2, UN Doc. A/RES/S-25/2/Rev. 1, U.N. GAOR, Supp. No. 3, at 1 (2001) (housing); International Conference on Nutrition, December 1992 (dates unspecified), World Declaration on Nutrition and Plan of Action for Nutrition, FAO/WHO Doc. No. W/U9260/E (1992); World Food Summit, Nov. 13–17, 1996, Rome Declaration on World Food Security and World Food Summit Plan of Action, FAO Doc. WFS 96/REP, Part One, Add. (Nov. 13, 1996); World Food Summit: five years later, June 10–13, 2002, Declaration of the World Food Summit: five years later, FAO Doc. WFS:fyl/2002/REP (June 13, 2002); Committee on World Food Security, Rep., 30th Sess., Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, FAO Doc. Cl 127/10-Supp. 1, Add.1 (2004) (food); World Conferences on Education, supra note 433. One of the early international outcomes of the human rights conferences was the establishment of a High Commissioner for Human Rights as the UN official with principal responsibility for UN human rights activities under the direction and authority of the UN Secretary-General under G.A. Res. 48/141, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc. A/RES/48/141, at 261 (1994). The proposal had originated in 1963 by Jacob Blaustein in his Dag Hammarskjöld Memorial Lecture and was supported by Costa Rica at the twenty-first session of the Commission on Human Rights in 1965. See The United Nations and Human Rights, supra note 445, at 94–5. 575   UN Declaration on Social Progress and Development, supra note 67, art. 9. In the context of international co-operation for development, the guiding principles of equality and the right to self-determination of peoples and nations have been long affirmed. See, e.g., Permanent sovereignty over natural resources, G.A. Res. 1803 (XVII), preamble, U.N. GAOR, 17th Sess., U.N. Doc. A/5344/Add.1 and Add.1 Corr.1, at 15 (Dec. 14, 1962). 574



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“a complement to the efforts of developing countries” and that “in order to promote development, … urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights”.576 In 1993, the World Conference on Human Rights stressed that international co-operation was central to achieving the priority of human rights, recognizing that this required “effective development policies at the national level as well as equitable economic relations and a favourable economic environment at the international level.”577 In a 21-point framework for action in 1995, the World Summit on Social Development committed to realize “social development that is based on human dignity, human rights, equality, respect, peace, democracy, mutual responsibility and co-operation”. In doing so, it acknowledged “the primary responsibility of States to attain these goals.” It also acknowledged that “these goals cannot be achieved by States alone. The international community, the United Nations, the multilateral financial institutions, all regional organizations and local authorities, and all actors of civil society need to positively contribute their own share of efforts and resources in order to reduce inequalities among people.”578 Nonetheless, repeated efforts toward development action, jointly and individually, by UN member States, have faced obstacles impeding progress.579 576   Declaration on the Right to Development, supra note 67, art. 4(2); preamble, tenth paragraph. Specific declarations followed on the eradication of hunger, and the use of technological and scientific progress to benefit humankind. See Universal Declaration on the Eradication of Hunger and Malnutrition, supra note 514; Declaration on the Use of Scientific and Technological Progress in the interests of Peace and for the Benefit of Mankind, G.A. Res. 3384 (XXX), U.N. GAOR, 30th Sess., U.N. Doc. A/10330, at 86 (Nov. 10, 1975). 577   Vienna Declaration, supra note 271, preamble, fourth and tenth paragraphs. 578   Copenhagen Declaration, supra note 298, paras. 25–27 (in pertinent part). The approach integrates human (in particular ESC) rights and social development. See id. Chapter II (eradication of poverty), Parts A-D (integrated strategies and improved access to productive resources and infrastructure, meeting the basic human needs of all, enhanced social protection system). The next year, the OECD issued goals for “Development Partnerships in the New Global Context” annexed to an agenda for development co-operation in the 21st century, affirming that “[s]upport for development reflects our enduring concern for the human dignity and well-being of others” and that “[d]eveloping countries themselves are ultimately responsible for their own development.” OECD, Development Assistance Committee, Shaping the 21st Century: The Contribution of Development Co-operation (May 1996). 579   See, e.g., International Development Strategy for the Fourth United Nations Development Decade, GA Res. 45/199, Add., U.N. GAOR, 45th Sess., Supp. No. 49A, Annex, U.N. Doc. A/RES/45/199, at 124 (Dec. 21,1990), Adda. (para. 2 explaining why the Third UN Development Decade goals were “for the most part unattained” and

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In 2000, upon embarking on an ambitious agenda of Millennium Development Goals (MDGs),580 the General Assembly reaffirmed the relevance of international co-operation and human rights to solve international problems in the 21st century and achieve development at national and global levels alike. In the Millennium Declaration, the member States acknowledged that, “in addition to our separate responsibilities to our individual societies, we have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level”.581 Despite the values-based premises, many viewed the MDG agenda as defective. By setting minimum overall targets for goods and services at national level, the MDGs diverged from both a human rights-oriented approach to development that seeks equality for all in the realization of rights, and from approaches to development that focus on people’s capabilities and freedoms as the desired outcomes.582 However, after the first decade, the MDG agenda underwent a striking reorientation in 2010 which reflects a more positive direction. Upon a 10-year review of the Millennium Declaration, the World Summit declared that the MDG outcomes needed to respect, promote and protect “all human rights, including the right to development” and their realization should include participatory processes, transparent and accountable systems of governance, and emphasis on equality and giving priority to the most vulnerable.583 In addition, while affirming national ownership and leadership as “indispensable in the d ­ evelopment singling out areas of special priority as eradicating poverty and hunger, human resources and institutional development, population, the environment and food and agriculture). 580   Major outcomes from UN conferences and summits in the economic, social and related fields were consolidated into an action agenda to achieve certain development outcomes by 2015, subsequently denominated as the Millennium Development Goals. Millennium Declaration, supra note 380, paras.19–21. For example, the commitment in the 2002 World Summit on Sustainable Development Plan of Implementation to halve, by the year 2015, the proportion of people without access to safe drinking water became a goal outlined in the Millennium Declaration. General Comment No. 15, supra note 460, at n.28, citing Eibe Riedel, New bearings to the State reporting procedure: prac­ tical ways to operationalize economic social and cultural rights – The example of the right to health, in Praxishandbuch UNO 345 (Sabine Von Schorlemer, ed., 2002). 581   Millennium Declaration, supra note 380, para.2 (quoted). Along with affirming the values underlying human rights such as freedom, equality, solidarity and shared responsibility (para. 6), the Summit expressly resolved to “respect fully and uphold the Universal Declaration of Human Rights” and undertook related commitments.. 582   For human rights and people-centred development approaches, see supra text and accompanying notes 302–311, 346–47. Accord Declaration of Philadelphia, supra note 36 (material well-being and spiritual development). 583   Keeping the promise, supra note 312, para. 3.



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process”, the review Summit stressed again that “efforts at the national level need to be supported by an enabling national and international environment that complements national actions and strategies.”584 2.2  Impact of a Human Rights Approach to International Co-operation The role of international co-operation in complementing national human rights effort brings with it the recognition that international co-operation must be oriented as a priority to the realization of human rights.585 The human rights orientation has far-reaching implications for both the aims and processes of international co-operation. As a specification of the Charter pledge of “joint and separate action in cooperation with the Organization”,586 article 22 signals that the realization of ESC rights should be a priority in the international co-operation efforts of States, international organizations, and other actors.587 Furthermore, under article 2(1) of the ICESCR, the reference to “international assistance and co-operation” offers an important means through which States parties undertake to respect, protect and fulfil ESC rights, along with acting individually. This reference has been interpreted by some to apply to States acting externally or collectively at international level as, for example, through foreign policies, aid   Id. para.10.   See Limburg Principles, supra note 65, paras. 29–34 (ICESCR). “By virtue of Articles 55 and 56 of the [UN Charter] and Article 2(1) of the Covenant, states may extend assistance to other states in many areas of national life, and co-operation shall take place among states. The idea … is that the realization of fundamental freedoms and human rights at the national level should be a prime purpose in international assistance and co-operation. States offering assistance may require that the receiving nations utilize the assistance in a way that will contribute to the realization of the objective and purpose of the Covenant.” E. Victor Dankwa and Cees Flinterman, Commentary by the Rapporteurs on the Nature and Scope of Stats Parties’ Obligations, 9 Hum. Rts. Q. 136, 140 (1987). States Parties to any of the seven main human rights treaties are required to report, for example, on the proportion of international assistance provided in relation to the State budget and to Gross National Income. Compilation of Reporting Guidelines, supra note 258, Appendix 3. 586   UN Charter, arts. 55, 56. 587   As a Charter-originated body, the CESCR has emphasized that international cooperation for development and for the realization of ESC rights is an obligation of all States under articles 55 and 56 of the Charter and under established principles of international law. General Comment No. 3, supra note 375, para. 14. The priority given to ESC rights does not compete but, in principle and as should be borne out in practice, operates in coordination with the promotion of other human rights in accordance with the indivisibility and interdependence of all human rights. On the need to harvest the synergies in implementation of various ESC and other human rights, see infra Chapter VI.A.3, and VI.F. 584

.

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programs, or positions taken as members of international organizations, or in multilateral groupings such as the G-20 or Paris Club.588 Thus, like national effort, international co-operation should be guided by human rights law and principles, including participation, nondiscrimination, accountability, and priority to the most vulnerable or marginalized.589 These guiding principles apply to all forms of international co-operation and assistance, including international agreements and policies, development programs, and relief and humanitarian assistance as discussed in Chapter V.B.2.2.3. The priority claim of human rights on the processes and outcomes of international co-operation extends beyond States to apply to the action of international and regional organizations involved in international co-operation.590 To conclude that international organizations, for example, operate outside human rights principles would permit the functioning in principle of a set of international actors which could defeat, with impunity, the aims and order of the international community that they are created to serve, in various ways, through their specific mandates.591 In legal terms, as subjects of international law, 588   See, e.g., Limburg Principles, supra note 65, para. 32, and General Comment No. 3, supra note 375, paras. 13, 14 (noting, in the context of reports under article 22 of the ICESCR, the reference in General Comment No. 2 to opportunities and responsibilities relating to international co-operation). One scholarly view emphasizes that support for human rights should be part of the foreign policy of well-ordered societies. Rawls, supra note 337, at 65, citing Theresa M. Scanlon, Human rights as a Neutral Concern, in Human rights and U.S. Foreign Policy (Peter G. Brown and Douglas E. MacLean, eds., 1979). The undertaking to respect ESC rights elsewhere does not necessitate extraterritorial action contrary to international jurisdictional rules. See Int’l Council for H. Rts., Duties sans Frontières: Human rights and global social justice 37–9 (2003) (states have an obligation to ensure that their policies and practices do not lead to ESC rights violations in other countries is less clearly recognized, but increasingly so in debates concerning access to medicines, debt relief and the response to the AIDS pandemic). 589  On the principles applied to national effort, see supra text at note 518 and Chapter IV.B. See also Sen, supra note 8, at 3–4, 17 (important to balance attention to appropriate procedures as well as to impact or effect of action in order to achieve substantive freedoms including freedom from deprivation). 590   The underlying principle that international organizations serve the international community’s goals operates implicitly in the aims of many international declarations, including outcomes of international conferences and summits. See, e.g., Copenhagen Programme of Action, supra note 299, para. 92 (urging international financial institutions to mobilize resources to implement the Declaration and Programme of Action). 591   On the duty of the United Nations to act internally in accordance with the aims of its constituent Charter, see, e.g., Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 1954 ICJ 47, 57 (July 13) (UN competent to set up an administrative tribunal for staff disputes; it would “hardly



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international organizations are themselves bound by any obligations incumbent upon them under general principles and rules of international law as well as under their constituent instruments and specific international agreements to which they are parties.592 This rule extends in principle to both the external and internal accountability of international organizations.593 The obligation of organizations to co-operate in good faith with their member States under their specific constituent instruments involves not only the duty to fulfil the aims of the organizations’ mandates within the larger order of the international community, but also the duty to not place their members in contradiction with be consistent with the expressed aim of the Charter to promote freedom and justice for individuals” if the UN afforded no remedy to its own staff). A legal opinion of the World Bank Legal Counsel concluded that “the Articles of Agreement permit, and in some cases require, the Bank to recognize the human rights dimensions of its development policies and activities since it is now evident that human rights are an intrinsic part of the Bank’s mission.” Senior Vice President and General Counsel [World Bank], Legal Opinion on Human Rights and the Work of the World Bank (27 Jan. 2006), cited in Darrow and Arbour, supra note 256, 1, n. 120 (opinion not requested or approved by World Bank Executive Board). Cf. U.N. Secretary-General, Consultation with the International Bank for Reconstruction and Development, U.N. Doc. A/6825, add., U.N. GAOR, 22nd Sess., reprinted in U.N. Juridical Yearbook, at 108, 117 (1967) (Bank’s Articles of Agreement do not preclude a consideration by the Bank of the international conduct of a member country condemned in relevant General Assembly resolutions as being in violation of its fundamental Charter obligations and as threatening international peace and security). 592   Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 1980 ICJ 73, paras. 37, 42, 49 (Dec. 20), referring also to Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 179 (April 11) (“there is nothing in the character of international organizations to justify their being considered as some form of “super-State”). Relevant principles and rules underlying the customary law of human rights provide a leading basis for the application of human rights-related obligations to the conduct of international organizations. For a compelling argument that a significant range of socioeconomic rights has acquired the status of customary law, see Darrow and Arbour, supra, at 470 and n.109 citing Thomas Buergenthal, The World Bank and Human Rights, in The World Bank, International Financial Institutions and the Development of International Law 95, 96 Edith Brown Weiss et al., eds., 1999). 593   Without doubt, the application of the rule of lex specialis provides the primary regulatory framework for the Organization’s functioning within its governance organs and with staff members. See, e.g., Rep. of the Int’l law Comm’n, 61st Sess., May 4-June 5, July 6-Aug. 7, 2009, UN Doc. A/64/10, Text of the draft articles on responsibility of international organizations adopted by the Commission on first reading, at 38; GAOR, 64th Sess., Supp. No. 10 (2009) (proposed article 63 provides that the draft “articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or a State for an internationally wrongful act of an international organization, are governed by special rules of international law, including rules of the organization applicable to the relations between the international organization and its members”).

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obligations which they have undertaken in other international instruments and treaties.594 In addition, international organizations have a duty, in the exercise of their mandates, to interpret them as far as possible in harmony with the mandates of other international organizations, and in line with ultimate goals of the international community, in particular with respect to erga omnes obligations affecting human rights.595 Thus, as a function of their duty of good faith co-operation with member States and with other international organizations in the international community, international organizations must also act, within the exercise of their special jurisdiction, consistently with the duties to respect, protect and fulfil human rights incumbent in the principle of international co-operation. As a core element of article 22, it is evident that international cooperation plays a vital role in the entitlement to ESC rights indispens­ able to human dignity and freedom of personality. At legal and political level, international co-operation has been closely linked with the core obligations of States to ensure the minimum essential levels of ESC rights.596 Under the ICESCR, the Committee has stated that, if a State Party’s own resources are insufficient to meet its immediate obligations to realize the ESC rights concerned, the country is expected to request international assistance and co-operation; not doing so would itself 594   Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, supra note 592, paras. 37–49. Similarly, the International Law Commission has reasoned that peremptory norms of international law apply to international organizations as well as to States since States cannot be permitted to avoid compliance with such norms by creating international organizations. Rep. of the Int’l Law Comm’n, 34th Sess., May 3-July 23, 1982, UN Doc. A/CN.4/SER.A/1982/Add.1 (Part 2), Draft articles and commentary on the law of treaties between States and international organizations or between international organizations, at 17, 1982 I.L.C. Yearbook 5, Vol. II, Part Two, U.N. Sales No. E.83.V.3 (Part II). 595   For human rights as erga omnes obligations, see Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase), 1970 ICJ 3, para. 33 (Feb. 5). This result arguably arises from the minimum “duty of diligence” owed by any subject of international law to ensure that its own policies, actions or omissions do not undermine the human rights obligations of other subjects of international law. See, e.g., Pierre Klein, La responsabilité des organisations financiers et les droits de la personne, Revue Belge de Droit International 97, 113 (1999), cited in Darrow and Arbour, supra note 256, n.128. See also A Fair Globalization, supra note 2, at para. 602 (moving towards a values-based globalization requires coherence … between different international organizations … all international organizations should apply their mandates in ways that respect human rights consistent with their obligations under international law”). 596   See, e.g., Magdalena Sepúlveda, supra note 89, at 370–2. For discussion of the obligations to “respect, protect and fulfil” in ESC rights, see supra Chapter V.A.2.



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constitute a violation of the Covenant.597 This interpretation derives from the essential role of international co-operation and assistance in articles 11, 15, 22 and 23 of the Covenant as well as articles 55 and 56 of the UN Charter, and the Declaration on the Right to Development.598 To avoid a violation of the Covenant, a State claiming that it is unable to carry out its obligation for reasons beyond its control must show that it has unsuccessfully sought to obtain international support to ensure the minimum level of the ESC rights concerned.599 The duty to request aid which is placed on States whose resources are insufficient should imply the corollary obligation on “States Parties and other actors who are in a position to assist”. These entities are called upon to provide “international assistance and co-operation, especially economic and technical” which enable developing countries to fulfil their core and other obligations”; indeed, where the right is affected by factors transmissible beyond the frontiers of any one state, there is a collective responsibility to address the problem.600 In doing so, the obligations to “respect, protect, and fulfil” ESC rights through international means implicate different levels of action depending upon a country’s specific level of development and situation, and depending upon the international actors involved, as discussed below. 2.2.1  Respecting ESC Rights in International Co-operation In relation to the duty to respect the enjoyment of ESC rights through international means, all States are considered to be in a position to refrain from interfering, directly or indirectly, with enjoyment of ESC rights in other countries. Respect includes abstaining from engaging in agreements, policies or other action on a bilateral or multilateral level 597  CESCR, General Comment No. 4, supra note 383, para. 10 (abstention and planning measures for housing in accordance with articles 11(1), 22, 23); CESCR, General Comment No. 5, supra note 460, para. 13 (ensure budget support for disabilities); CESCR, General Comment No. 6, supra note 270, para. 18 (ensure budget support for older persons), CESCR, General Comment No. 11, supra note 375, para. 9 (plan of action for primary education), CESCR, General Comment No. 19, supra note 440, para. 41 (adequate fiscal resources for implementing right to social security). The reporting process under article 22 of the Covenant provides an important opportunity to identify such needs. CESCR, General Comment No. 2: International technical assis­ tance measures (Article 22), para. 10 (1990). 598   Declaration on the Right to Development, supra note 67. 599  CESCR, General Comment No.12, supra note 368, para. 17 (failure to ensure necessary food). 600  CESCR, General Comment No. 14, supra note 375, paras. 40, 45 (right to health); see also General Comment No. 11, supra note 375, para. 9; Sepúlveda, supra note 89, 370–71.

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that would impede or negate the realization of ESC rights.601 States must also ensure that their actions with other States and as members of international organizations take due account of the rights enjoyed by others; failure of a State to take into account international human rights obligations when entering into agreements with other States or with international organizations can lead to a violation of ESC rights.602 This specific rule is consistent with general international law in which States as signatories are obliged to perform their treaty obligations in good faith in compliance, as parties, with the rule of pacta sunt servanda.603 In turn, international (and regional) organizations bear a responsibility to ensure that they do not act in a way that results in the deprivation of ESC rights in their policies and operations, either in their own operations or by interfering in the efforts of other organizations or States to respect ESC rights.604 The good faith obligation of the organizations to their member States, which includes not placing their Members in contradiction with obligations which they have undertaken in other international instruments and treaties, also implies that organizations act to fulfil their mandates as far as possible in ways that respect the aims of the international community reflected in the mandates of other organizations as well as in the principles recognized as constituting peremptory norms such as those affecting certain human rights.605 From the start, the CESCR observed that “the whole range of issues dealt with in the Covenant should … be given specific and careful consideration” by international agencies in their development work. In particular, agencies should “scrupulously avoid involvement” 601   Maastricht Guidelines, supra note 456, Guideline No. 15(j). Examples include refraining from embargos or similar measures that endanger the conditions, goods or services needed for enjoyment of the right in other countries. CESCR, General Comment No.12, supra note 368, paras. 36, 37 (food); CESCR, General Comment No. 14, supra note 375, para. 41 (medicines, supplies); CESCR, General Comment 15, supra note 460, para. 32 (goods, services and supply for access to water). Such actions may concern unilateral or multilateral sanctions. See also CESCR, General Comment No. 8: The relationship between economic sanctions and respect for economic, social and cul­ tural rights (1997) (sanctions and ESC rights). 602  CESCR, General Comment No.12, supra note 368, para. 19 (right to food); CESCR, General Comment 15, supra note 460, para. 44(c) (right to water); CESCR, General Comment No. 18, supra note 377, para. 33 (right to work, including agreements with multinational entities as well as in international organizations); CESCR, General Comment No. 19, supra note 440, para. 65 (right to social security affected by agreements with other States, international organizations or multinational corporations). 603   Vienna Convention on the Law of Treaties, supra note 21, art. 26. 604   Maastricht Guidelines, supra note 456, Guideline No. 19. 605   See supra notes 594–95 and accompanying text.



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in projects which would negatively affect human rights, and give consideration to preparing a “human rights impact statement” in connection with all major development co-operation activities, training or briefing project personnel on human rights standards and principles, and making every effort to ensure at each phase of a development proj­ ect human rights are duly taken into account.606 2.2.2  Protecting ESC Rights through International Co-operation The duty to protect ESC rights in other countries through international co-operation is incumbent upon States when they are in a position, through legal or political means in accordance with international law, to prevent or correct violations of ESC rights committed by third parties. This may be done by influencing their own citizens, companies or other non-state actors over which they have jurisdiction, or by ensuring that the acts of international organizations in which they participate do not adversely impact upon any ESC rights and are in conformity with their obligations under the CESCR.607 By so doing, States protect

606   General Comment No. 2, supra note 597, paras. 6–8. For example, UN agencies should ensure that development projects do not involve the use of forced labour in contravention of international standards, or promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or involve large-scale evictions or displacement of persons with the provision of all appropriate protection and compensation. In a leading example of self-imposed accountability, the World Bank created an independent Inspection Panel in 1993 to offer third parties a forum to hold the Bank accountable for violation, or impending violation, of its own mandatory safeguards against adverse impact on human rights-related grounds, such as forced displacement, and environmental damage. International Bank for Reconstruction and Development (IBRD) and International Development Association Boards of Dirs., Resolution establishing the Inspection Panel (IBRD Resolution No. 93–10, IDA Resolution No. 93–6 of September 22, 1993), and its 1996 and 1999 Clarifications, reprinted in World Bank Inspection Panel, Accountability at the World Bank: The Inspection Panel at 15 Years, Appendixes VI, VII (2009). See infra note 618. 607   E.g., CESCR, General Comment No. 13, supra note 360, para. 56 (education); CESCR, General Comment No. 14, supra note 375, para. 39 (health); CESCR, General Comment 15, supra note 460, para. 33, 36 (water); CESCR, General Comment No. 17, supra note 451, para. 56 (esp. members of WIPO, UNESCO, FAO, WHO and WTO to ensure conformity with CESCR protection of moral or moral interests in scientific, literary or artistic production); CESCR, General Comment No. 19, supra note 440, para. 54 (social security), CESCR, General Comment No. 20, supra note 361, para. 59, 75 (structural adjustment programs should not interfere with core obligations, especially for disadvantaged and marginalized, to take part in cultural life; especially member States of UNESCO, WIPO, ILO, FAO, WHO, WTO have an obligation to adopt whatever measures they can to ensure that policies and decisions of those organizations in the field of culture and related areas are in conformity with the Covenant).

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against impediments to the object and purpose of the Covenant by legal actions within their own power. The need for coordination at the international level of action taken by States with private actors at the national level is evident in the context of action to ensure against human rights violations by business enterprises operating in their territory, or operating outside the territory but with their principal place of business in the State. Authoritative guidelines developed within the ILO and the Organization for Economic Co-operation and Development (OECD) focus on MNEs and social policy, including commitments to conduct business in a way that respects human rights.608 Follow-up of such guidelines is ultimately monitored by States and, through them, the international organizations concerned.609 A set of Guiding Principles on Business and Human Rights developed within the UN System by the Special Representative of the Secretary-General is intended to apply to all States and all businesses, whether multinational or local. The framework seeks coherence between State and international organizations on positions to ensure business respect for human rights.610 However, the initiative appears to risk selectivity in implementing ESC rights; the Guidelines suggest that, where necessary, the responsibility of business actors could be limited to “human rights impacts” where they “would be most severe, or where a delayed response would make them irremediable”; the term “severity” is not defined nor is   See supra note 397 and accompanying text (Chapter IV.B.4).   The ILO has reviewed the effect given to the MNE Declaration within its member States in periodic surveys based on reports invited from all member States; representatives of governments, employers’ and workers’ organizations may reply separately or in tripartite fashion. See Int’l Labour Office, Eighth Survey on the effect given to the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, ILO Doc. GB.294/MNE/1/1 (Nov. 2005) (65 countries responded in contrast to 100 countries in Seventh Survey). In 2000, the OECD launched a network of National Contact Points to build public awareness of the OECD Guidelines, and to contribute to the resolution of issues that arise relating to implementation by receiving, assessing, and examining “specific instances” of disagreements in the application of the Guidelines, and report annually to the OECD on its activities. OECD, Decision of the Council on the OECD Guidelines for Multinational Enterprises, 982nd Sess., June 26–27, 2000, OECD Doc. C(2000)96/FINAL (Procedural Guidance). 610   See Special Representative of the Secretary-General, Report on the issue of human rights and transnational corporations and other business enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations’ “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31, Annex, para. 10 (March 21, 2011) (by John Ruggie) (states acting as members of multilateral institutions that deal with business-related issues should seek to ensure that the institutions do not restrain States’ ability to meet their duty to protect nor hinder business from respecting human rights). 608 609



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the term “irremediable” associated with non-derogability standards in human rights law.611 The experience of States with the International Organization of Standardization (ISO) further demonstrates the effectiveness of coordination on the international level of national level action taken by States with private actors in their territory or under their jurisdiction. Recent ISO initiatives focus on developing voluntary private standards on subjects typically defined by public policy, such as social responsibility, labour practices, occupational safety and health management systems, and human resourc­es management.612 Where the definitions fixed through public processes, at national or international level, are re-opened for negotiation in a private standardization effort, ISO’s processes for participation, transparency and decision making at international level have met with criticism. Observers suggest that the ISO processes operate on an ad hoc basis and bear little resemblance to the representativity and accountability found in public international organizations’ structures requiring accreditation and parliamentary procedure.613 State actors that participated directly in the development of the ISO 26000 standard on social responsibility, for example, found their voices as democratically elected representatives diluted by the national member bodies from the very societies the State agents were elected or appointed to represent.614 Like­wise, international organizations were obliged to seek re-incorporation of the very standards which their member States had adopted as universal minimum thresholds for conduct involved in the standard, including human rights, labour and 611   Id. para. 24, stating that severity “is not an absolute concept in this context, but is relative to the other human rights impacts the business enterprise has identified.” The explanation apparently assumes the necessity of trade-offs which is arguable and dependent on sufficient empirical evidence. See note 694 and accompanying text and Chapter VI.F. 612   See, e.g., ISO 26000, supra note 401 (social responsibility). Technical committees of ISO consider standardization initiatives in the other areas. ISO works through private national standards institutes and a privately-recruited International Secretariat. 613   See Janelle Diller, Private Standardization in Public International Lawmaking, 33 Mich. J. Int’l Law (forthcoming 2012). In contrast to ISO’s “multi-stakeholder” consensus model of privately selected representatives, the procedures of the International Labour Organization accredit representatives of employers and workers organizations to participate in the Organization’s standard-setting and other work on an equal basis with Governments in decision making. See, e.g.,Wilfred Jenks, A New World of Law? 186–9 (1969). 614   See Halina Ward, Fdtn. for Democracy & Sustainable Development, The ISO 26000 international guidance standard on social responsibility: implications for public policy and transnational democracy 21–2 (2010) (2nd draft).

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corruption ­standards.615 States’ exercise of their primary responsibility for action at national level to ensure that their member bodies protect ESC rights in the positions they take at international level in the ISO processes would contribute to guaranteeing that ISO approaches in public policy do not violate internationally-recognized ESC rights. Within the exercise of their special jurisdiction, public international organizations also bear responsibility to protect ESC rights where the opportunity arises, in the course of their policy making or operations. The exercise of this responsibility aims to prevent third parties from acts which would violate human rights of others or ensure that the ability of member States to meet their duty to protect is not hindered by the orga­ nizations’ action. At international level, political declarations and the work of UN human rights bodies have repeatedly drawn attention to the need for debt relief and for corrective measures for programs of structural adjustment seen as having an adverse impact on the most basic ESC rights.616 In recent years, international financial institutions have initiated several significant mechanisms within their sphere of operation and influence to prevent third parties from committing human rights violations. For example, the International Finance Corpora­tion (IFC), an agency of the World Bank Group, requires a human rights impact assessment in certain circumstances that assures non-interference with a limited number of human rights before granting financial support to private sector entities; the aim is to avoid ­giving support to business activities that might contravene human rights.617 Similarly, two other World Bank 615   On the legal aspects of the development of ISO’s social responsibility standard, ISO26000, see, e.g., Diller, supra note 613. 616   E.g., CESCR, General Comment No. 2, supra note 597, para. 9 (“the goal of protecting the rights of the poor and vulnerable should become a basic objective of economic adjustment”); Vienna Declaration, supra note 271, para. 12; Copenhagen Declaration, supra note 298, Commitment 7; International Conference on Financing for Development, March 18–22, 2002, Rep. of the International Conference on Financing for Development, Chapter I, sec. 1, U.N. Doc. A/CONF.198/11, U.N. Sales No.E.02.II.A.7 (2002); Follow-up to the International Conference on Financing for Development, G.A. Res. 65/145, U.N. Doc. A/RES/65/145 (Dec. 20, 2010) (with other G.A. resolutions, 65th Sess., on financing issues); Declaration on the Right to Dev., supra note 67, art. 3(3); Millennium Declaration, supra note 380, Part III, para. 15 (3), 16, 28 A human rights thematic mandate was established in 2000 to follow up on similar work on policy guidelines in the 1990s on structural adjustment policies, and reformulated in 2008 as the Independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights. H.R.C. Res. 7/4, U.N. Doc. A/ HRC/16/2 (March 27, 2008) (extending Comm’n H. R., Res. 2000/82). 617   The human rights approach of the International Finance Corporation (IFC) is reflected as part of a package of “performance standards” that address business impact



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agencies, namely the International Bank for Reconstruction and Develop­ ment (IBRD) and the International  Develop­ment Association (IDA), operate an independent Inspection Panel to hear claims by affected persons that development plans or projects to be supported by the Bank violate certain safeguards built into the Bank’s operating directives.618 relating to social and environmental assessment and management systems; labor and working conditions; pollution prevention and abatement; community health, safety and security; land acquisition and involuntary resettlement; biodiversity conservation and sustainable natural resource management; indigenous peoples; and cultural heritage. IFC, International Finance Corporation’s Policy on Social & Environmental Sustainability (2006). The standards, which reflect revisions in process since 2009, acknowledge the responsibility of the private sector to respect human rights by “undertaking due diligence in order to identify adverse risks and impacts of their actions, and by avoiding or addressing them as appropriate”; access to “an effective grievance mechanism” for prevention or “prompt remediation” is contemplated. IFC, Policy on Social and Environmental Sustainability – V2 (Dec. 1, 2010) http://www.ifc.org/ifcext/policyreview.nsf/Content/Home (last visited May 15, 2011). The developing approach complements the duty of private actors under international human rights law (see supra Chapter IV.B.4) to respect and protect ESC rights, including by avoiding the risk of being complicit in third parties’ actions or omissions including in supply chain relationships. It also promotes the universality and equality principles underlying human rights law, discussed supra Chapter IV.B, by suggesting that differentiated benefit-sharing processes and levels may be required to ensure that vulnerable or disadvantaged individuals or groups benefit equally from project opportunities; attention to gender and disability grounds is also included. IFC, Guidance Note 1 – V 2: Assessment and Management of Social and Environmental Risks and Impacts G2, G51-G54 (Jan. 7, 2011) http://www.ifc.org/ifcext /policyreview.nsf/Content/Home. However, the standards risk divergence in practice from the indivisibility of human rights by asserting that only certain human rights are relevant to business practices, as do the UN’s own Draft Guiding Principles on Business and Human Rights (G46), supra notes 610–11. For a critical assessment of this approach, see infra Chapter VI (text accompanying note 694). Moreover, while the evolving standards helpfully state that business relationships with host governments should not interfere with enjoyment of human rights (Guidance Note 1 - V 2, supra, G49), it would be helpful for the Performance Standards to acknowledge the potential for business to contribute positively to human rights and development, as do the ILO guiding principles for multinational business and social policy. The aim of those principles “is to encourage the positive contribution which multinational enterprises can make to economic and social progress and to minimize and resolve the difficulties to which their various operations may give rise …” MNE Declaration, supra note 397, at para. 2. 618   IBRD Resolution No. 93–10, IDA Resolution No. 93–6 and its 1996 and 1999 Clarifications, supra note 606. Under the procedure, an affected party must demonstrate that its rights or interests have been or are likely to be directly affected by an action or omission of the Bank as a result of a failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank. These require the application of certain due diligence steps concerning such areas as environmental assessment impact, involuntary resettlement, and indigenous peoples. The operational procedures are set out in the World Bank’s Operational Manual. See Shihata, The World Bank Inspection Panel: In Practice 271–7 (2d ed. 2000). In 1996, the Board reviewed the Resolu­ tion and, on October 17, 1996, it issued the “Clarification of Certain Aspects of the

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While the safeguards do not directly invoke the minimum levels of internationally-recognized ESC rights,619 the Inspection Panel operates as a valuable voluntary means for accountability through its powers of fact-finding, early warning, and recommendation to Bank management of remedies in the case of violation of operational policies and procedures of the Bank. Regional development banks have developed similar mechanisms that vary in substantive scope and in degrees of independence and effect.620 In some instances, the possibility of third party violations of ESC rights arises from actions of the international community or States that are not directly related to development yet have the potential to affect the human rights of people in specified States. In the context of sanctions, the States, international organizations and the international com­ munity are responsible, commensurate with their various roles, to protect against adverse effects in the design and implementation of sanctions regimes. As noted by the CESCR, “[w]hen an external party takes upon itself even partial responsibility for the situation within a country (whether under Chapter VII of the Charter or otherwise), it also unavoidably assumes a responsibility to do all within its power to protect the economic, social and cultural rights of the affected population.”621 The feasibility of such an approach would be enhanced by applying a standard of due diligence to monitor the human rights impact of the sanctions or other action, and of accountability to take action proportionate to the level of influence or control, as is suggested by the reference to “all within its power”, and in accordance with international law. Resolution”. Following a second review, on April 20, 1999, the Board issued “Conclusions of the Board’s Second Review of the Inspection Panel” referred to as the “1999 Clarification”. 619   The Bank’s legal position has traditionally been that only economic considerations can be included in lending decisions under its Articles of Agreement; the environmental and social safeguards have been established in response to outside pressures from the donor community and non-governmental organizations. E.g., id. 620  On the Asian Development Bank Inspection Policy developed in 1995, see Eugenia McGill, The Inspection Policy of the Asian Development Bank, in The Inspection Panel of the World Bank: A Different Complaints Procedure 191 (Gudmundur Alfredsson and Rolf Ring, eds., 2001). On the Inter-American Development Bank’s Independent Investigation Mechanism developed in 1994, see Gay Davis Miller, The Independent Investigation Mechanism of the Inter-American Development Bank, in The Inspection Panel of the World Bank: A Different Complaints Procedure, supra, at 209. 621  CESCR, General Comment No. 8, supra note 601, paras. 13, 14 (calling for effective monitoring during sanctions, and taking steps to respond to any disproportionate suffering by vulnerable groups within targeted country).



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2.2.3  Fulfilling ESC Rights through International Co-operation The legal implications of the duty of States to fulfill ESC rights in the context of international co-operation are less well-settled. In a not-sohelpful development, the CESCR determined that the duty to fulfil actually includes a three-part distinction: aspects to promote ESC rights in other countries and the increasingly positive dimensions of the parts of the duty to facilitate and ultimately to provide.622 In relation to the duty to promote, economically developed countries face a special responsibility and interest to assist the poorer developing States where the latters’ own resources are insufficient to meet their immediate obligations to realize the minimum essential levels of ESC rights.623 This principle, derived from consistent and ongoing Charter-based practice generally accepted by UN Members, arguably constitutes an interpretational consensus of the Charter pledge.624 As a matter of treaty law, States parties to the ICESCR are to use international means to ensure that specific ESC rights are given due attention as, for example, in international agreements and through their membership in multilateral institutions which adopt lending policies, credit agreements and other international measures of the international and regional financial institutions.625 Those who are in a position to assist should provide international economic and technical assistance and development aid to enable developing countries to fulfil their core obligations, and should facilitate access to essential goods and services where possible.626 The use of the word “should” in many of the General Comments   For discussion of these duties, see supra Chapter V.A.1.   E.g., CESCR, General Comment 15, supra note 460, para. 34 (realization of right to water). For discussion of immediate obligations and minimum essential levels, see supra Chapter V.A.1.1. 624  On the use of subsequent practice and General Assembly resolutions in interpretation of the UN Charter, see supra notes 250–52 and accompanying text. 625   E.g., CESCR, General Comment No.12, supra note 368, para. 36 (food), CESCR, General Comment No. 13, supra note 360, para. 56 (education), CESCR, General Comment No. 14, supra note 375, para. 39 (health), CESCR, General Comment 15, supra note 460, para. 35 (right to water); CESCR, General Comment No. 18, supra note 377, para. 30 (right to work, including co-operation in structural adjustment programs). Promoting the right to social security through international co-operation may take the form of establishing reciprocal bilateral and multilateral international agreements for coordinating or harmonizing contributory social security schemes for migrant workers and ensuring adequate social security in the context of structural adjustment measures taken by international financial institutions. See CESCR, General Comment No. 19, supra note 440, paras. 56, 58. See also Copenhagen Declaration, supra note 298, para. 38(i) (safety net for structural adjustment). 626   See, e.g., CESCR, General Comment No. 14, supra note 375, para. 39 (facilitate access to essential health facilities, goods, services in other countries); CESCR, General 622 623

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in this context reveals that the call to solidarity through this level of international co-operation between States is to be taken into account yet remains to be recognized as a binding legal duty as between the States concerned. The duty of international organizations to fulfil ESC rights applies when the exercise of their mandates directly or indirectly involves promoting, facilitating or providing the necessary resources to realize ESC rights. The CESCR has repeatedly emphasized the essential role of the specialized agencies, including the World Bank, in assisting member States in their efforts to realize ESC rights, and in reporting to the Committee on such activities.627 One of the aims of its General Comments is to “stimulate the activities of … the international organizations and the specialized agencies concerned in achieving progressively and effectively the full realization of the rights recognized in the Covenant”.628 International organizations are to be guided in their programs, policies, and processes by human rights law and principles, including participation, non-discrimination and equality, including for the most vulnerable, and accountability.629 Where an international organization’s mandate is likely to have a direct effect on conditions necessary to realizing ESC rights, the organization’s decision making Comment No. 19, supra note 440, para. 55 (facilitating realization of the right to social security). 627   See, e.g., CESCR, General Comment No. 1, supra note 461, para. 9 (reporting identifies where international community can help states); CESCR, General Comment No. 3, supra note 375, paras. 13–14 (reporting and assistance connection); CESCR, General Comment No. 11, supra note 375, para. 11 (comments reflecting CESCR’s broad-based mandate from ECSOC); CESCR, General Comment No. 14, supra note 375 (technical assistance and co-operation on right to health by inter-governmental organizations in helping states with national strategies, information and advisory services on data collection, indicators, analyses and reporting); CESCR, General Comment No. 18, supra note 377, paras. 52–53 (ILO, World Bank, IMF, WTO and others in the right to work); CESCR, General Comment No. 19, supra note 440, para. 82 (expertise to help implement right to social security). 628   Compilation of Reporting Guidelines, supra note 258, at 1, para. 3 (Introduction: the purpose of general comments of the CESCR). 629   See discussion of international organizations supra Chapter V.B., secs. 2.2.1 and 2.2.2. Recent general comments of the CESCR systematically address the duties of international organizations as well as States in achieving the right(s) concerned. E.g., CESCR, General Comment No. 14, supra note 375, paras. 64 (right to health); CESCR, General Comment 15, supra note 460, para. 60 (right to water); CESCR, General Comment No. 17, supra note 451, para. 57 (protection of benefits of scientific, literary and artistic productions); CESCR, General Comment No. 19, supra note 440, para. 84); CESCR, General Comment No. 21, supra note 443, para. 76 (intensify their efforts to take into account human rights principles and obligations in their work concerning the right to take part in cultural life).



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process should take into account the dual obligations to not compromise and to promote the right.630 2.2.3.1 Relief and Humanitarian Assistance. The duty to fulfil ESC rights by facilitating or even providing for their realization through relief and humanitarian assistance is the subject of increasing recognition, although unsettled questions remain whether States have a duty to act individually as well as collectively, where resources permit, to assist in situations of dire need in other States. The pledge of States under article 56 of the UN Charter to act jointly in co-operation with the Organization has provided a leading basis for such action as an expression of the collective duty of the international community to act.631 The Charter-based pledge has served as a primary basis for development of UN guiding principles for action to assist internally displaced persons in situations of humanitarian need;632 in that context, article 22 of the Universal Declaration was noted as “connot[ing] at least the necessity of international co-operation for developing countries in the discharge of their obligations” in relation to ESC rights.633 While treaty law incorporates much the same basis of collective action to realize ESC rights through relief and humanitarian assistance, the undertaking of international assistance and co-operation under the ICESCR holds a State party, depending on availability of resources, not 630  CESCR, General Comment No. 19, supra note 440, para. 83 (IMF and World Bank in lending, credit agreements structural adjustment programs). 631   UN Charter, arts. 1(3), 55, 56. See, e.g., World Summit Outcome 2005, supra note 303, para. 139 (international community has responsibility to help protect populations through collective action in accordance with the Charter and in co-operation with regional organizations); S.C. Res. 1674, U.N. Doc. S/RES/1674 (April 28, 2006), affirming paragraphs 138–39 of the World Summit Outcome 2005 (international community should encourage States to exercise responsibility to protect and support United Nations in early warning capability) ; G.A. Res. 131, preamble, first paragraph, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc. A/43/49, at 207 (Dec. 4, 1988); G.A. Res. 100, preamble, second paragraph, U.N. GAOR, 54th Sess., Supp. No. 49A, U.N. Doc. A/45/49, at 183 (Dec. 14, 1990). 632  Representative of the Secretary-General, Guiding Principles on Internal Displacement, U.N. Doc. E/CN.4/1998/53/Add.2 (Feb. 11, 1998) (by Francis M. Deng). See also U.N. Secretary-General, Implementing the responsibility to protect, U.N. Doc. A/63/677 (Jan. 12, 2009) (right to protect). For a discussion of the right to seek and receive assistance by persons in need and the right of external actors to offer humanitarian relief, see Representative of the Secretary-General, Compilation and analysis of legal norms, paras. 36, 59–81, U.N. Doc. E/CN.4/1996/52/Add.2 (Dec. 5, 1995) (by Francis M. Deng). 633   Id. at note 463, citing Philip Alston and Gerard Quinn, supra note 563, at nn.119, 120 and accompanying text.

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only to joint but also to an “individual responsibility, in accordance with the Charter and relevant UN resolutions, to provide disaster relief and emergency assistance, including to refugees and internally displaced persons to the maximum of its capacities,” with priority given to the most vulnerable or marginalized groups of the affected population.634 Under humanitarian law, states offered international assistance also bear duties to respect, protect and fulfil ESC rights by facilitating free passage of life-sustaining assistance in such situations and by not arbitrarily refusing access for the delivery of humanitarian and impartial assistance; this result also conforms to well-established humanitarian law and is recognized under numerous soft law instruments.635 2.2.3.2 Development Co-operation. Recognition of the duty to fulfil ESC rights through international development co-operation has failed to reach international consensus as a legal principle and proven problematic in practice. Nonetheless, the connection between human rights and international development co-operation has long been acknowledged. As early as 1944, the ILO proclaimed that all national and international policies and measures, in particular economic and financial, should be accepted only to the extent they promoted and did not hinder the right of everyone to “pursue their material wellbeing and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity”.636 From the start of human rights reporting in the 1950s, development was identified 634  CESCR, General Comment No. 14, supra note 375, paras. 39–40 (right to health through access to food, water, medical supplies, financial aid). See also Vienna Declaration, supra note 271, para. 23 (burden-sharing to coordinate and co-operate with countries concerned in global refugee crisis); S.C. Res. 1674, supra note 631, para. 22. 635   E.g., Geneva Convention relative to the Protection of Civilian Persons in time of War, supra note 364, art. 59; Protocol I, supra note 364, arts. 68–70; Protocol II, supra note 418, art. 18 (where needed for the benefit of the civilian population); Vienna Declaration, supra note 271, para. 29 (reaffirming right of victims to be assisted by humanitarian organizations with safe and timely access). See also S.C. Res. 1674, supra note 631, para. 2 (urging co-operation of Member States in comprehensive approach to prevention of armed conflict through respect for human rights and other steps); Guiding Principles on Internal Displacement, supra note 631, Principles 3, 25; Compilation and analysis of legal norms, supra note 632, paras. 369–79. 636   Declaration of Philadelphia, supra note 36, Parts II (a) and II (c) (in pertinent part). In 1962, the Social Policy Convention emphasized that the “improvement of standards of living shall be regarded as the principal objective in the planning of economic development.” ILO Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117), June 22, 1962, 494 U.N.T.S. 7237. In 1987, the Limburg Principles included a guideline that “[t]rends in international economic relations should be taken into



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as a critical factor in securing the realization of many human rights, and the desire to identify the needs of developing countries for international assistance in order to address difficulties in realizing human rights was a factor that motivated the periodic reporting system under the Declaration.637 The analysis of reports received under the Declaration, including in relation to article 22, confirmed that the enjoyment of ESC rights was directly linked to the overall economic situation of each country.638 The topic received attention early on in the reviews of States reports under the ICESCR which, as a treaty, operated to normatively link human rights and development in the duty of States parties, depending on the resources available, to co-operate with each other to realize ESC rights. In reviewing effect given to the ICESCR, the Sessional Working Group appointed by ECOSOC before establishment of the CESCR stressed the importance of strength­ ening international co-operation for development since the progressive implementation of the Covenant was closely linked to each country’s development process, and thus required a favorable international context.639 Political commitments of the international community have repeatedly affirmed that the enjoyment of human rights is inherently connected with improvement in conditions conducive to development, at national and international level. In this regard, international organizations with relevant mandates in such areas as international trade, commodity pricing, and technological advances have been called on to play account in assessing efforts of the international community to achieve the Covenant’s objectives.” Limburg Principles, supra note 65, para. 15. In 2003, the ILO-sponsored World Commission called for congruence between States and international organizations in the exercise of their mandates. A Fair Globalization, supra note 2, paras. 603–611. 637   In 1953, the United States renewed the idea of annual reports by member States “on results achieved and difficulties encountered in its country in the promotion and development of human rights.” Eighteenth Report of the Commission to Study the Organization of Peace in The United Nations and Human Rights supra note 445, at 77, and nn.40–41. The idea had been discussed and postponed from 1950. Id. at 75–6, and nn.27–28. The periodic system was adopted by ECOSOC upon proposal of the Commission on Human Rights three years later. See supra note 445. 638   Rep. of the Ad Hoc Comm’ee on Periodic Reports to the Comm’n H. R., 31st Sess., Feb. 3-March 1975, para. 15, UN Doc. E/CN.4/1167 (Feb. 5, 1975). Advances in ESC rights could not be assessed only as reflected in legislation (de jure) but required actual application of legislation (de facto). 639   For a critical assessment of the Sessional Working Group, and the struggle to integrate the approach of the UN and the specialized agencies toward effective cooperation in the broader context, see Philip Alston, supra note 465, at 334–49, 362–7.

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a facilitating role.640 In a further step in 1986, the General Assembly declared that everyone has a “right to development is an inalienable human right” and is entitled to “economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”.641 While debate continues on the legal nature and scope of the right to development,642 the Declaration regards States as the primary duty bearers “for the creation of national and international conditions favourable to the realization of the right to development”, including “the duty to co-operate with each other in ensuring development and eliminating obstacles to development” (art. 3). This duty includes formulating international development policies, taking steps to eliminate egregious violations of human rights, and promoting universal respect for all human rights, and international peace and security (arts 4–8). Whether this approach encompasses an affirmative duty

640   To achieve better standards of living, the UN called for improvement in the position of developing countries in relation to terms of international trade and commodity pricing and transfer of technology. Balanced and integrated economic and social development, G.A. Res. 1161 (XII), U.N. GAOR, 12th Sess., Supp. (Nov. 26, 1957); Declaration on Social Progress and Development, supra note 67, art. 7; Universal Declaration on the Eradication of Hunger and Malnutrition, supra note 514, para. 11; Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, supra note 576, preamble and para. 1. See also Teheran Conference, supra note 302. 641   Declaration on the Right to Development, supra note 67, art. 1(1). The Declaration resulted from work begun years before, including that of the UN Working Group on  the Right to Development established in 1981 and commissioned to study the scope  and content of the right to development and the most effective means to ensure  the universal realization of internationally-recognized economic, social and cultural rights, paying particular attention to the obstacles encountered by developing countries. Comm’n H. R., Res. 36 (XXXVII), U.N. ESCOR, 37th Sess., Supp. No. 5, at 237, U.N. Doc. E/CN.4/1475 (1981), cited in Stephen P. Marks, 17 Harv. H. Rts. J. 137, n.31 (2004). 642   Compare, e.g., Philip Alston, Revitalising United Nations Work on Human Rights and Development, 18 Melb. U.L. Rev. 216 (1991), at 218, with Georges Abi-Saab, The Legal Formulation of a Right to Development, in Academy of International Law, The Right to Development at the International Level 159 (1980), at 163, both reprinted in part in Henry Steiner, International Human Rights in Context: Law, Politics, Morals, 1112–17 (1996). On guidelines for developing human rights instruments, see GA Res. 41/120 (1986), U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc. A/RES/41/121, at 178 (Dec. 4, 1986) (instruments should be consistent with existing international human rights law, be fundamental in character and derive from inherent dignity and worth of the human person, be sufficiently precise so as to give rise to identifiable and practicable rights and obligations, provide where appropriate realistic and effective implementation machinery including reporting systems, and attract broad international support. Id. para. 4(a)-(e).



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on States and international organizations in a position to assist developing countries in great need remains a controversial question.643 In practice, the application of human rights law and principles to international co-operation for development and the follow-up to the Declaration on the Right to Development have been hampered by multiple factors. Chief among these has been a lack of coherence among development efforts, whether initiated by States or by and with international organizations. The inconsistency in principles, goals and processes is exacerbated by, and perhaps attributable in part to, an all-too-prevalent failure to give priority to human rights law and principles in the international co-operation for development.644 The resulting divergence in development approaches has been evident not only between the UN and the international financial institutions but even within the UN’s own operations, and with the specialized agencies. Success is made more elusive by the intractable and pervasive nature of the obstacles to development,645 which differentiates international cooperation for development from the more limited and acute aims of co-operation to address humanitarian and relief disasters. Recent developments, however, show some potential for progress toward human rights coherence in development co-operation. Initially, the UN Millennium Development Goals, the agenda for development action launched in 2000, failed to incorporate essential human rights   See Hans-Otto Sano, Development and Human Rights: The Necessary, but Partial Integration of Human Rights and Development, 22 Hum. Rts. Q. 734, 735 (2000); Darrow and Arbour, supra note 256, nn.150–61 and accompanying text. The question of such a duty lurks alongside the more accepted meaning given to the scope of the obligation of international co-operation to realize ESC rights conveyed in article 22 of the Declaration and article 2(1) of the Covenant. In discussing the two provisions at the time of their drafting, the French representative “stopped well short of identifying any formal legal obligation to provide assistance”. Alston and Quinn, supra note 563, at 188, n.118, citing to 7 U.N. ESCOR C.4 (233rd mtg.), U.N. Doc. E/CN.4/SR.233, at 8 (Mr. Cassin, France). The reference to international assistance and co-operation reflected the views of virtually all delegations that the developing countries would require some forms of international assistance if they were to be able to effectively promote the realization ESC rights. Id. at 188. 644   For an overview of the problems engendered, see James C.N. Paul, The Human Right to Development: Its Meaning & Importance, 25 J. Marshall L. Rev. 235 (1992). 645   Compare, e.g., Copenhagen Declaration, supra note 298, Commitment 9 (“strive for fulfillment of the agreed target of 0.7 percent” of GNP) with U.N. Secretary-General, Agenda for Development: Recommendations, UN Doc. A/49/665, para. 24 (Nov. 11, 1994) (“it is distressing” that ODA target of 0.7 percent of GNP adopted in 1970 has been achieved in 1993 by only four countries: Denmark, the Netherlands, Norway and Sweden). 643

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law and safeguards in relation to non-discrimination and equality, participation, accountability, and priority to be given to the most vulnerable.646 Following 2000, a decade-long series of initiatives by concerned member States, UN entities, and civil society actors647 led to the reformulation of the MDGs at the ten-year review Summit that integrated human rights law and principles into the outcomes and processes of efforts to achieve the MDGs, with the recognition “the respect for and promotion and protection of human rights is an integral part of effective work towards achieving the Millennium Development Goals.”648 Among the five Guiding principles presented for a (new) action agenda on the MDGs was the principle that the “norms and values embedded in the Millennium Declaration and international human rights instruments must continue to provide the foundation for engagement, in particular the key human rights principles of non-discrimination, meaningful participation and accountability.”649 Concurrently, new initiatives to build greater coherence with human rights were signaled in key international development institutions.650 The powerful contribution of the human rights-based approach to international development co-operation is increasingly recognized but remains to be fully realized. The use of human rights to assess whether development goals are being achieved equitably requires attention to potential need for differentiated action to ensure benefits equally to the marginalized and vulnerable651 so that they are not left suffering after overall development targets for the majority are met. Since human 646   The targets set overall goals for the world’s population, without adopting the human rights approach to ensure that the outcomes sought would be equally and equitably enjoyed. See, e.g., Philip Alston, Ships Passing in the Night: The Current State of the Human Rights and Development Debate as Seen Through the Lens of the Millennium Development Goals, 27 Hum. Rts. Q. 755 (2005). 647   See, e.g., U.N. Development Group (UNDG), UN Statement of Common Understanding on Human Rights-based Approach to Development Co-operation and Programming, UNDG workshop on a human rights-based approach in the context of UN reform, 3–5 May 2003, reprinted in UNICEF, State of the World’s Children, Annex B (2004) [UN Common Understanding]; U.N. Development Program, Human Rights and the Millennium Development Goals: Making the Link (Oslo Governance Group, undated, 2006–07); Claiming the Millennium Development Goals, supra note 382. See also In Larger Freedom, supra note 404. 648   Keeping the Promise, supra note 312, para. 23. 649   U.N. Secretary-General, Keeping the promise: a forward-looking review to pro­ mote an agreed action agenda to achieve the Millennium Development goals by 2015, UN Doc. A/64/665, para. 99(4) (12 February 2010) [hereinafter Reviewing the promise]. 650   See supra notes 592, 606, 617 and accompanying text. 651   See supra note 617 (IFC Performance Standards revision).



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rights obligations apply to all forms of state action – whether directly related to human rights efforts or not, human rights law offers a common framework of methodology to guide national strategies for setting and achieving development goals. The human rights principles guiding popular participation, information, expression and assembly give rise to duties incumbent on development actors, thus building consistency and legitimacy to development processes and outcomes in national effort and international co-operation. In addition, the human rights principles of mutuality and shared responsibility that underlie article 22 and the Declaration as a whole652 motivate the human rights-based processes for planning, designing, executing and evaluating development projects. The approach empowers people to take the responsibility and benefits of the process to realize ESC rights, and promotes State accountability for setting goals that advance human rights. Along with recognition of the collective responsibility for realizing ESC rights through development, progress is evolving toward a common understanding of how to apply human rights to development. The “global partnership for development” under the MDGs (MDG 8) calls for coherence across the policies and programs of international organizations as well as States, NGOs, business and civil society actors, who have common but differentiated responsibilities.653 There is a growing recognition that the obligation to co-operate includes, at a minimum, dialogue and steps to coordinate approaches and action, including between international organizations, to operate more functionally in a coordinated system at national and international levels.654 After decades of study,655 the UN’s recently-launched “illustrative” human rights indicators offer a guide for States in reporting on progress toward realization of human rights, including through development efforts at national and international levels. The illustrative indicators balance a   See supra Chapter IV.B.   On collective responsibility to advance sustainable development, see, e.g., Int’l Law Assoc., New Delhi Declaration of Principles of International Law relating to Sustainable Development, Res. 2002/3 (6 April 2002); World Summit on Sustainable Development, Aug. 26-Sept. 4, 2002, Johannesburg Declaration on Sustainable Development, principle 5, U.N. Doc A/CONF.199/L.6/Rev.2 (Sept. 4, 2002). 654   See, e.g., Copenhagen Declaration, supra note 298, Commitment 10( c) (UN and Bretton Woods institutions should establish regular and substantive dialogue, including at field level, for more effective and efficient coordination of assistance for social development). 655   For the process leading up to the development of indicators through the tripartite typology of “respect, protect and fulfil”, see supra note 472. 652 653

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core set of universally relevant human rights indicators with more detailed and focused assessment on certain attributes that may be relevant to a particular situation and participating rights-holders concerned.656 As a work in progress, the indicators may offer some point of reference but their definition and use has been criticized as flawed for practical application.657 The development and use of human rights indicators in development co-operation offer a potential source of interpretative guidance as well as practical assistance in achieving coherence in development policy and activities across international organizations and member States. The widely-divergent approaches to indicators in development practice across States, NGOs and international organizations reflect, in turn, the divergent ways of applying human rights to development; approaches range from implicit to explicit integration of human rights in development policy and activities.658 Within the UN system alone, no single institutionalized approach yet exists. The Universal Periodic Review (UPR) approach used by the UN Human Rights Council requests only developing countries to provide information on technical assistance,659 while the harmonized reporting guidelines for States parties to the major UN human rights treaties request all States to report on the extent to which they benefit from, or provide development

656   Compilation of Reporting Guidelines, supra note 258, Appendix 3; Report on Indicators, supra note 472, at Annex I (Lists of Illustrative Indicators). 657   See, e.g., Audrey Chapman, in Economic Rights, supra note 454. 658   E.g., Siobhán McInerney-Lankford and Hans-Otto Sano, World Bank, Human Rights Indicators in Development: An Introduction 27–44 (2010). Three levels of programs are proposed: programs which do not explicitly integrate human rights yet aim at goals related to human rights; activities for which human rights may serve as organizing principles, like equality and on-discrimination, participation and inclusion, and accountability; and, at a third level, programs for development co-operation that explicitly seek to realize human rights and not undermine them; it is proposed that these programs directly connect with the legal obligations of donors and recipients, either states or non-state actors. 659   The Universal Periodic Review is the current periodic Charter-based reporting system under the Human Rights Council. See Institution-building of the United Nations Human Rights Council, H.R.C. Res. 5/1 and Annex, U.N. Doc. A/HRC/ RES/5/1 (June 18, 2007). See also H.R.C. Dec. 6/102, Follow-up to Human Rights Council resolution 5/1, U.N. Doc. A/HRC/DEC/6/102, para. I sec. (F), (Sept. 27, 2007) (General Guidelines for the preparation of information under the Universal Periodic Review include reporting on expectations of the State in terms of capacity-building and requests, if any, for technical assistance).



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co-operation and assistance.660 In follow-up to the Declaration on the Right to Development, the UN Working Group on that subject has prepared draft criteria and indicators to assess how States observe the rights through development co-operation in “global partnership”.661 As the MDGs become more oriented to human rights outcomes and processes, coordination and even some convergence of the separate processes to review human rights and development efforts could be envisioned, with practical outcomes of mutual benefit. The harmonized reporting guidelines already encourage States parties to integrate relevant information into their reports from that which they provided under procedures for reporting progress in implementing international conferences’ follow-up.662 In time and with sufficient expertise, the periodic reporting under the MDGs may prove useful to UN assessment of human rights progress, and the human rights reporting and other procedures of the Human Rights Council engage human rights institutions and stakeholders at national level that are useful to participatory development processes. Among the emerging initiatives to test the power of the humanrights approach to development is the UN’s work on extreme poverty, a circumstance recognized as severely inhibiting the enjoyment of human rights.663 Draft Guiding Principles on extreme poverty and human rights, under development at time of writing, remarkably 660   Compilation of Reporting Guidelines, supra note 258, para. 43(i) and Annex, Part A, para. 9. The Guidelines refer to article 2 of the ICESCR, impact of international economic and technical assistance and co-operation received or provided by State party on full realization of each ESC right under the Covenant in the State party or, as the case may be, in other countries, especially developing countries. 661   H.R.C., Rep. of the high-level task force on the implementation of the right to development, 6th Sess., Jan. 14–22, 2010, Right to development, UN Doc. A/HRC/15/ WG.2/TF/2/Add.2 (March 8, 2010). The proposals have received endorsement from the CESCR. The High-level task force on the implementation of the right to development, appointed in 2004 by the intergovernmental Working Group on the Right to Development was created in 1998 as a Charter-based thematic human rights mechanism to help promote and implement the Declaration on the Right to Development. Comm’n H. R. Res. 2004/7, U.N. Doc. E/CN.4/2004/7 (April 13, 2004). In its resolution 2005/4, the Commission on Human Rights requested the task force to suggest criteria for periodic evaluation of the MDG 8 on a global partnership for development. Comm’n H. R. Res. 2005/4, U.N. Doc. E/CN.4/RES/2005/4 (April 12, 2005). 662   Compilation of Reporting Guidelines, supra note 258, para. 48. 663   E.g., Vienna Declaration, supra note 271, para. 14. The Human Rights Commission appointed an Independent Expert on Extreme Poverty and Human rights which has operated under a Charter-based mandate since 1998. Comm’n H. R. Res. 1998/25, U.N. ESCOR, 54th Sess., Supp. No. 3, U.N. Doc. E/CN.4/RES/1998/25, at 97 (April 17, 1998).

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embody the thrust and spirit of article 22 of the Declaration. Using human dignity as their cornerstone, the draft Guiding Principles aim to realize, in an interrelated and indivisible way, the indispensable rights introduced in article 22; to this set is added the enabling human rights of recognition as a person before the law, right to privacy, rights to life, personal security and physical integrity, and access to justice.664 The principles underlying human rights law generally, and implicit in article 22 as discussed in Chapter IV.B, are proposed as an overarching framework, namely equality/non-discrimination, meaningful participation, transparency and access to information, and accessible and accountable mechanisms for an effective remedy. For their implementation, the principles turn to national effort and international co-­ operation,665 as well as protection against interference from third parties, including other States, international organizations and transnational corporations, and the duty of States to build coherence with their human rights obligations in their international relations including in relation to international business.666 In sum, the draft Guiding Principles, as an interpretative and practical tool, hold potential for more clearly understanding the use of human rights to address development and humanitarian obstacles to human dignity and freedom through “global partnership” involving all members of society. C.  “in accordance with the organization and resources of each State” Along with “national effort and international co-operation”, article 22 provides that entitlement to realization of ESC rights “in accordance with the organization and resources of each State”. The two terms, “organization” and “resources” were assembled in a single phrase by the 664   Independent expert on the question of human rights and extreme poverty, Rep. on the draft guiding principles on extreme poverty and human rights, paras. 34–91, UN Doc. A/HRC/15/41 (Aug. 6, 2010) (by Magadalena Sepulveda Carmona). 665   Public goods and services are to be universally available and accessible for those with greatest need; the duties of both recipient and donor States are addressed in the context of international co-operation and assistance as well as the coherence of “appropriate action in international trade, market and investment promotion, and labour market regulation, to ensure that they reinforce rather than undermine each other.” Id. para. 59 666   Note is taken of the work of the UN Special Representative on human rights and transnational corporations and other business enterprises, who is drafting Guiding Principles on that theme. See supra note 610.



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drafters in a discussion of the particular social, political and economic realities in each country seeking to realize the universally-recognized ESC rights. The phrase developed in the text in response to two distinct impulses: one to obtain the maximum possible rights compatible with the potentialities of the social, economic and political system of each country” and the other to ensure that measures to realize ESC rights “fit in with the prevailing system” in each country.667 These two dimensions became interwoven in the text of the ICESCR and subsequent Charter and treaty-based interpretation, as discussed below. Whether and how the phrase applies to “international co-operation” was not addressed explicitly at the time of drafting. As shown below, the concept of “in accordance with the organization and resources of each State” is not a static reference intended to limit national effort and international co-operation to national particularities. Rather, it is an invitation to an evolving framework both at national level, as development occurs and organization and resources improve, and at international level, importing responsibility and solidarity among the various actors of the international community to act in accordance with the requirements of social justice. Developing countries exercise responsibility to request and use assistance to progressively achieve the realization of the internationally-recognized ESC rights; developed countries are to practice solidarity in offering assistance bilaterally or through international organizations who in turn, are responsible for acting to help respect, protect and fulfil ESC rights within the exercise of their special jurisdiction. 1.  Organization of Each State The concept of the “organization … of each State” underlies the realization of ESC rights in several ways. It is understood to connote a country’s social and political order that operates in a way that enables personal effort to realize one’s own ESC rights and, where that is not possible, invokes the responsibility of the State and the community to assist in fulfilling the rights.668 In this sense, “organization … of each State” in article 22 bears a resemblance to “a social … order” in article

667   See supra notes 243–47 and accompanying text (quoting from Cassin’s synopsis of the proposals under discussion). 668   See supra notes 198–202 and accompanying text (duty of State and national effort), and supra text accompanying notes 391–406 (mutuality, solidarity).

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28 of the Declaration. The phrase also serves as a reminder of the specific country contexts in which ESC rights are realized, and the diversity of measures that may be used to accommodate the particularities of national conditions while maintaining the universality of the entitlement to realization of ESC rights. The variability in meaning of the reference to “organization” reflects the aim of its inclusion in the text – that of flexibility for different country situations and systems. The systems through which the rights are given effect are as diverse as the conditions in the countries concerned. The term “social security” in the Declaration gives witness to the dynamic at play: the term was left out of article 25 where it would have referred to country-specific schemes to address the risks and contingencies listed in that article, and placed instead in article 22 as a broad principle. The result in article 25 enables space for each country to realize the right to an adequate standard of living and social protection through measures appropriate to its context, and in article 22 the reminder of an underlying right to social justice that motivates the choice of means. For example, the right to equality of access gives rise to special obligations to provide the necessary facilities and opportunities for those without sufficient means before providing more to those already privileged. The term “organization” in relation to the State does not appear explicitly in the ICESCR. Nonetheless, the use of “all appropriate means” under article 2(1) imports an approach to national level systems and measures that resembles the thrust of “the organization … of each State” in article 22.669 While national level application is quite evident in article 22, the phrase “organization … of each State” also involves international cooperation.670 In assessing States’ progress, the Sessional Working Group that preceded the CESCR expressly took into account the negative effect of the international economic context, as well as the level of development.671 The duty of international co-operation incumbent upon all States and other international actors includes, as discussed   See supra Chapter V.B.1.1.   The ILO Constitution acknowledges the effect that one country’s failure to adopt humane conditions of labour can have on others. See supra note 284 and accompanying text. 671  See Sessional Working Group of Governmental Experts, Rep. on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 7th Sess., UN Doc. E/1985/18, paras. 22–26 (1985). 669 670



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above, the duty to ensure that positions taken at multilateral level do not interfere with the capability of and systems used by other States to realize ESC rights.672 International organizations owe similar deference in their policies and activities to States’ own policy space in order to enable the flexibility of the organization of each State.673 In a positive light, the effect of the organization of each State, when combined through international co-operation, influences global realization of ESC rights as noted by the World Food Conference: “[s]ociety today already possesses sufficient resources, organizational ability and technology and hence the competence to achieve … the right of [everyone] to be free from hunger and malnutrition.”674 2.  Resources of Each State The realization of ESC rights “in accordance with the resources of each State” plays a pivotal role in subsequent effect given to the entitlement to ESC rights in article 22. States parties to the ICESCR agree, in its article 2(1), to take steps “to the maximum of its available resources”. The reference resembles the proposal made during the drafting of the clause in article 22 to ensure “the maximum possible rights compatible with the potentialities of the social, economic and political system of each country”.675 The concept of “resources” encompasses not only financial or economic resources but also “societal resources”,676 a term which captures the broader opportunities and capabilities that arise in the course of sustainable development.677 Moreover, the term “available resources” has been given an expansive meaning, referring to both resources within a country and those available through international co-operation and assistance by the international community or other States.678

  See supra notes 601–603 and accompanying text (duty to respect).   See supra notes 604–696 and accompanying text (structural adjustment debate). 674   Universal Declaration on the Eradication of Hunger and Malnutrition, supra note 514. 675   See supra notes 243, 245. 676   See, e.g., Limburg Principles, supra note 65, para. 24. 677   See Sen, supra note 8. 678  CESCR, General Comment No. 3, supra note 375, paras. 10, 13. The CESCR took the view that international co-operation for development and thus for realization of ESC rights is an obligation of all States under Articles 55 and 56 of the UN Charter and well-established principles of international law and the ICESCR. For international cooperation in the context of article 22, see infra Chapter V.B.2. 672 673

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The article 22 reference to realizing ESC rights “in accordance with” a State’s resources points to the general framework in which States manage resources in taking steps to realize ESC rights. The method for doing so is further addressed in the ICESCR which specifies that States parties progressively achieve ESC rights “to the maximum extent” of available resources. The idea of “maximum extent” does not require devoting all resources but rather allocating the available resources effectively and equitably.679 Due priority is to be given to ESC rights among other government priorities, being “mindful of the need to assure to everyone the satisfaction of subsistence requirements as well as the provision of essential services”.680 When juxtaposed with the reference to “international assistance and co-operation”, this management of resources can be seen to also encompass the obligation of States to give, directly or indirectly, of their resources, especially financial and technical, to other States in need, when they are in a position to do so. Although the use of resources to their “maximum extent” is considered an independent obligation under the ICESCR, supervising its application (or breach) effectively at international level has proven difficult since it requires an accurate understanding of the factors underlying national level decision making and balancing of priorities under sometimes complex factual situations.681 The obligation of progressive achievement exists independently of the level of resources but its implementation can be affected by increase in resources, including development of societal resources.682 When levels of resources within a State are insufficient, the State party to the ICESCR is obliged to actively seek assistance to ensure enjoyment of essential minimum levels of the right.683 Importantly, a lack of resources 679   Limburg Principles, supra note 65, para. 27. See also Alston and Quinn, supra note 563, at 38. 680   Limburg Principles, supra note 65, para. 28. See supra notes 530–34 and accompanying text (due priority). 681   Maastricht Guidelines, supra note 456, Guideline No. 15(3). See also Robert E. Robertson, Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social, and Cultural Rights, 16 Hum. Rts. Qtrly. 693, 703 (1994) (“confronted with the need to measure state performance with the impossible task of defining and calculating the state party’s maximum available resources”). 682   Limburg Principles, supra note 65, paras. 23–24. 683   See supra notes 473, 676–77 and accompanying text (international co-operation). Together with the generally-applicable priorities to meet minimum core obligations and give priority to the most vulnerable and disadvantaged groups, specific conditions also apply when receiving assistance, such as to refrain from obstructing international



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does not excuse “taking steps” to achieve those rights, nor to meet immediate obligations.684 The application of the rule of respect for dignity and humanity is a “fundamental and universally applicable rule [which] cannot be dependent on the material resources available in the State party”.685 The minimum core obligations thus apply irrespective of the availability of resources of the country concerned or any other difficulties.686 This position has been applied even in the context of sanctions. Whatever the difficulties caused by an economic embargo, the State party concerned is expected to do everything possible to promote realization of the ESC rights recognized in the Covenant.687 Even where available resources are demonstrably inadequate, the State still has an obligation to take certain steps immediately to try to ensure the widest possible enjoyment of the relevant rights. These steps include effectively monitoring the realization (or violation) of ESC rights and devising strategies and programmes for their promotion, as well as ensuring non-discrimination and protecting the vulnerable members of society.688 To the extent immediate steps are beyond the

organizations in their legitimate efforts, providing mechanisms to monitor and to ensure that assistance reaches the intended recipients. See Magdalena Sepúlveda, supra note 89, nn.299–301 and accompanying text (discussing CESCR Concluding Observations). 684   See supra notes 449–51, 456–62 (immediate obligations, minimum essential levels). 685   CCPR, General Comment No. 21, supra note 416, paras. 3–4 (interpreting article 10(1) of the ICCPR in context of conditions of detention). See also CCPR, Mukong v. Cameroon, Comm. No. 458/1991, para. 9.3 (Feb. 26, 1991), U.N. Doc. CCPR/C/51/D/458/1991 (1994) (certain minimum standards must be observed regardless of a State party’s level of development). 686   Maastricht Guidelines, supra note 456, Guideline No. 9. Regional human rights bodies have affirmed that this minimum threshold applies in all situations to all people, regardless of the level of economic development. E.g., Inter-American Com’n H. Rts, Annual Report, 1993, OEA/SER..L/V/II.85 Doc. 9 rev. at 603–4 (1994); African Com’n Hum. Rts., The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm 155/96 (2001) AHRLR 60, paras. 65–6, discussed in Ssenyonjo, supra note 477, at 66. 687   Rep. of the CESCR, 11th Sess., Nov. 21-Dec. 9, 1994, U.N. ESCOR, Supp. No. 3, para. 130, U.N. Doc. E/1995/22, U.N. Doc. E/C.12/1994/20 (Jan. 1, 1995) (situation in Iraq: “whatever the difficulties caused by the economic embargo, the State party should none the less do everything possible to promote the realization of the Covenant to the maximum of its available resources”). This position in relation to the duty of the country under sanctions does not alleviate the obligation of the international community to do everything possible to protect at least the core content of ESC rights of the people affected by the sanctions. See supra text accompanying note 621. 688   E.g., CESCR, General Comment No. 3, supra note 375, paras. 10–12 ; Limburg Principles, supra note 65, para. 25. As applied to housing, for example, see CESCR,

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maximum resources available, a State is expected to request international co-operation.689 In alleging that a failure to meet minimum core obligations is due to a lack of available resources, a State party must demonstrate that every effort has been made to use all resources that are at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. Any such justifications for failure to comply with minimum obligations, or retrogressive steps in diminishing rights, must comply with the conditions for limitations set out in article 4 of the ICESCR, including that such situations are temporary and full action is undertaken once the situation causing the constraints is alleviated.690

General Comment 4, supra note 369, para. 10 (immediate measures may require only abstention from certain practices). 688   For States parties to the ICESCR, this obligation to request assistance from the international community to ensure realization of ESC rights is exercised in accordance with articles 11(1), 22 and 23 of the Covenant. 690  CESCR, General Comment No. 13, supra note 360, para. 42.

CHAPTER SIX

CONCLUSIONS Hindsight confirms the well-founded nature of the instinct to embed in article 22 of the Declaration a comprehensive rationale for ESC rights as universal and indispensable human rights, even though the article’s formative role in this regard continues to be largely ignored or misunderstood. This chapter draws conclusions and observations from the preceding analysis of the vision proclaimed in article 22 and the continuously evolving status of its discrete concepts in international law. The perspective gained from reviewing subsequent law and practice provides a lens for examining the ongoing relevance of these concepts to realize ESC rights and social justice amidst the present day challenges of globalization. The opportunity remains to take advantage of the significance of article 22 as a whole for use in efforts to correlate economic and social progress and development with the achievement of conditions essential to security for human well-being. Doing so will promote real progress toward a human rights-ordered social justice to help secure peaceful relations in society at local and global levels. A.  Security for Human Dignity and Freedom through ESC Rights 1.  Social Justice and “the right to social security” Article 22’s opening reference to the “right to social security” emerges from this study as a fundamental guarantee to the social and economic conditions and freedoms which prevent insecurity and are essential to the well-being of the individual and society as a whole. As the first recognition of ESC rights at global level, Article 22 established that everyone’s dignity and freedom to develop as a person are secured through ESC rights, embedding a purpose for the rights that includes yet surpasses social protection from economic and financial insecurity, important as that negative goal remains. The dual source of the rights, expressed in the references to the human being as an individual (“everyone”) and “as a member of society”, codified the principle of

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mutuality that motivates human rights law. The security of ESC rights, provided by society where it cannot be achieved by the individual alone, is seen to offer not only self-fulfilment but also the capability and duty to respect the rights of others and to benefit society as a whole. The article’s text, context, and travaux préparatoires convey the security of ESC rights as the fruit of a properly-ordered relationship among the government, society, and the individual, an order likened to “social justice” in the context of drafting of the article. There is no doubt that the drafters collectively sought a meaning similar to “social justice” but, for various reasons, agreed to the term “social security” with a broad meaning covering all ESC rights. The drafters expected that the interpretation of the term, which was admittedly left open, would be guided by the general thrust of the article as an umbrella introduction for specific ESC rights provisions of the Declaration that followed, and by its role in the context of the Declaration as a whole. The broadly-conceived “right to social security” in article 22 is thus of a different order than any single right in the Declaration. While it is difficult to consider it as an independent right, the guarantee in the article of a rights-based ordering of society for the dignity and wellbeing of everyone specifies, in human rights terms, the process and results expected of social justice. The concept has implicitly shaped the course of international norms by motivating the development of specific human rights and an integrated approach to those rights in society, and by informing what is expected of governments and other actors in society. As such, the guarantee to a rights-based social order serves as a basic principle underlying international law which resembles the nature of a fundamental principle of international law or a general principle of law for which no single definition exists. By using legal rights to establish objective conditions for defining socially just conduct in reference to human dignity, article 22 reorients the conceptualization of social justice in philosophical theory. In determining the processes and results of social justice, the entitlement to a set of indispensable ESC rights operates as a pre-emptive claim distinctive from any particular set of moral and political values. As such, the use of the legal concepts of rights and entitlements, together with duties of individuals, society and governments, permit a practical, objective and reasonable identification of action and results that are socially just. The tendency persists to confine the “right to social security” in article 22 to usage in a technical sense, ignoring the textual elements and context of the article. This mistake is particularly apparent in references equating article 22 to article 25 of the Declaration, even though

conclusions199 the Declaration’s drafters had rejected as a whole the technical use of the term “social security” due to its differing technical meanings at national level.691 This misinterpretation of the general nature of the opening reference in article 22 continues to largely deprive the broad “right to social security” in article 22 of its meaning and purpose, and its powerful potential for using ESC rights to mark real progress toward social justice. Nonetheless, the legal and normative potential to build on the inclusive foundation of article 22 is quite evident, as presented in previous chapters, and remains to be fully realized. 2.  “realization … of the economic, social and cultural rights indispensable for his dignity and the free development of his personality” Even if article 22 could be considered as having no independent substantive content, its role in implementation imports more than a mere introduction of the specific ESC rights that follow. The article establishes that “indispensable” ESC rights must be implemented as a whole, not selectively, in order to achieve their dual purpose of securing dignity and the opportunity for free personal development. The original draft reference to rights “set out below” was replaced with the reference to rights indispensable for dignity and personality, a change which rendered the article free-standing, rather than a mere introduction to a series of articles that followed. While in principle the wording is open-ended, in practice the objectives of dignity and personality have been used to guide the meaning of the indispensable rights identified in articles 23-27 of the Declaration in subsequent articulation and interpretation. The entitlement to a set of “indispensable” ESC rights, originally set out in article 22, is now indisputably recognized as a normative foundation of international human rights law. The ESC rights introduced in the Declaration have received more specific definition in the substantive articles of the International Covenant on Economic, Social and Cultural Rights, and the undertaking to progressively achieve their full realization and guarantee their exercise without discrimination is the heart of the Covenant. A number of specific human rights treaties, at 691   See supra chapter III.C.2.2. The breadth of article 22’s right to social security continues to be ignored, and its meaning limited to a technical sense of insurance and other welfare schemes. See, e.g., Report of the independent expert on the question of human rights and extreme poverty, note 28, in Note by the Secretary-General, UN Doc. A/64/279 (11 Aug. 2009).

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international and regional level, have provided further meaning to the  entitlement in relation to specific situations and categories of people. While there is no single road to realization, the entitlement is realized by obligations to take action with immediate effect and through  progressive achievement. For ESC rights which predominantly involve progressive realization by their nature, a minimum core obligation requires realization of at least minimum essential levels of each of the rights necessary to ensure their substantive significance as human rights. Recognition of the indivisibility of the rights, despite their varying degree of immediate and progressive fulfilment, serves a practical purpose since the realization of each of the rights is largely dependent on the others in operation. In practice, failure to advance in one field of ESC rights can be an obstacle to progress in another area.692 The flexibility built into States’ obligations to realize ESC rights, chiefly by means of the principle of progressive realization, renders it unnecessary as well as undesirable to permit derogation. Thus, the obligation to realize the entitlement to indispensable ESC rights has gradually been considered to apply in all circumstances including war and other public emergency. The ESC rights addressed in articles 23 to 27 of the Declaration are further reflected in the underlying principles and provisions of international humanitarian law. 3.  Applying an Indispensable Rights Approach The power of the inclusive approach of article 22 to combine ESC rights with security for human dignity and development should be used more effectively to capture the synergies among ESC rights, and between ESC rights as a whole, and economic and social progress and social justice. The indivisibility of the “indispensable” ESC rights presented in the article offers a minimum threshold for all government and UN action. There is, however, a tendency in practice to fragment the rights into separate and uncoordinated initiatives, which should be corrected. The article’s “right to social security” should be recognized in its true sense – as the result of an approach to realize all the rights equally as an integrated whole. Applying an “indispensable rights assessment” in national and international policies and programs would result in 692   For the mutually reinforcing nature of ESC rights conditions on human development, see supra notes 8, 204, and 428 and accompanying text (discussing Amartya Sen conception of instrumental freedoms of political freedoms, social opportunities, economic facilities, transparency guarantees, and protective security).

conclusions201 reorienting current approaches that only partially address the indispensable ESC rights recognized in article 22. With an integrated implementation of all indispensable ESC rights as a baseline, ongoing international efforts could be evaluated to correct for selective implementation of only certain of the rights in relation to their effects as a whole. This approach would likely lead to, at least, greater coordination among efforts that espouse partial solutions, such as the ongoing search for a focused pursuit of “human security”, the construction of a “social  protection framework”, the development of guidance for the effects of business on human rights, and the continuing pursuit of the Millennium Development Goals.693 Fixing the achievement of a minimum level of all ESC rights as a starting point could help to build consistency in the initiatives taken by States to fulfil their individual human rights obligations at national level and carry out their duty of international co-operation. Following an approach that treats all ESC rights as indispensable to social justice implies adjustments to the methods used for evaluation of progress to include the situation with respect to all ESC rights, individually and in relation to each other. The current indicators used in UN human rights reporting on ESC rights, for example, are primarily focused sectorally on specific fields such as health, education or work. The human rights approaches of the international financial institutions in turn risk partiality by selectively focusing only on certain ESC rights considered most relevant. To evaluate progress toward an indispens­ able minimum set of all ESC rights, human rights indicators should be developed to report the impact of States’ choices in allocating resources and efforts among specific rights and to analyze the resulting alleged “trade-offs”.694 In the context of the UPR, such an effort in relation to 693  See supra text accompanying notes 312-15 (human security); notes 316-18 (social protection). On human rights effects of business activities, see supra note 610 (Guiding Principles on Business and Human Rights), supra note 617 (draft revised IFC Performance Standards); note 397 (ILO and OECD business guidelines). On the evolution of the MDGs, see supra text accompanying notes 580-84 and 646-50. 694   The claims that selective implementation of rights is necessary from an economic point of view may be tested analytically if reporting provided sufficient reliable data. See Claiming the Millennium Development Goals, supra note 382; Amartya Sen, Work and rights, 139 Int’l Lab. Rev. 119 (2000). The right to education, for example, assists in building capability and awareness for public health purposes, and promotes skills acquisition for employment which aids in individual ability to provide adequate standard of living. A similarly integrated approach in the ILO seeks to build synergies among four inter-related objectives of constitutional stature: promoting fundamental principles and rights at work, employment, social protection, and social dialogue.

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ESC rights could directly invoke article 22 of the Universal Declaration. This use of article 22 would draw upon the early interpretations given the article, and its application in the pre-Covenant reporting process under the Declaration. The approach would require revision of the current UN indicators which undesirably restrict article 22 to the technical right to social security.695 Greater attention to the integrated implementation of ESC rights in the context of international development co-operation would not only contribute to realizing the rights themselves but also promote coherence among donor-driven development initiatives. For example, the current UPR approach focuses only on receiving States by asking how they use the assistance received; donor States could be asked to report on the human rights-related effects of their development assistance to other States or through international organizations;. This type of oversight in the use of economic resources for coherence in realizing all indispensable ESC rights could help avoid so-called “donor capture” in which international organizations are criticized for the tendency to design projects to suit the interests of economically powerfully donor states rather than setting priorities for development projects in a participatory and accountable way within the countries concerned. As discussed in section 2.2.3 of this chapter, an integrated approach to ESC rights, applied to humanitarian assistance efforts, could assist in building continuity and effectiveness in human rights implementation as relief operations shift to development efforts. Adopting an indispensable ESC rights threshold would also have implications for the action of specialized agencies, including international financial institutions, which play a critical role in giving concrete expression to the human rights goals, and in guiding and enabling States in achieving them. The linkage between human rights and the work of the specialized agencies was built into the early periodic reporting system in place under the Charter from 1954 to 1973 which, along with States’ reports, called for information from the specialized agencies under specific articles of the Declaration.696 Such an approach in current international institutional context would have ramifications for   See Report on Indicators, supra note 654, Annex I. For the UPR, see supra notes 503 and 659 and accompanying text. 696   A wide breadth of specialized agencies responded under the early reporting process, including the ILO, WHO, UNESCO, IMO, UPU, the GATT, FAO and WMO. See supra notes 564-568 and accompanying text. 695

conclusions203 both internal and external functioning of the specialized agencies and  institutions. First, each organization would need to ensure that the means by which it is fulfilling its own mandate is consistent with  the principles concerning the particular rights involved. Second, each organization would have to take care that its activities respect and do not interfere with the fulfilment of the mandates of other agencies that address aspects of the indispensable rights. Such an approach could result in a more effective correlation between international organizational action and States’ human rights obligations which crosscut the various mandates of the international organizations in which they participate as members. It could also lead to closer collaboration across international organizations that would result in conceptual and operational efficiencies between the various rights. This renewal of coordinated functioning would begin to approximate that pioneered by the UN Secretary-General in the early reporting system under the Charter, and contrasts starkly with the current situation in which the UN specialized agencies, and other international organizations, largely function autonomously, connecting primarily through ad hoc relationship agreements. An increase in horizontal action across agencies at international level for a full and integrated realization of indispens­ able ESC rights would likely encourage the efforts within States to promote inter-agency coordination among the departments or ministries charged with mandates affecting ESC rights. Increased recognition of an indispensable rights threshold could also be achieved through scholarly initiative to independently inform the international political and lawmaking directions. Further consideration of the role of human rights, especially ESC rights, in theories of social justice could explore the relationship between the individual’s claim of human rights and the common good of society, through the idea of a human rights-based social ordering. Scholarly work on social justice should further exploit the remarkable alignment between the conceptual foundations of social justice, on the one hand, and the human rights framework based on article 22’s “right to social security”, on the other hand. International human rights should not be ignored but rather accepted as an objective manifestation of reasonableness across cultures; the consequences of such an approach for theoretical models should be explored openly. Such scholarly inquiry could significantly contribute to governmental and international efforts to identify the meaning of social justice, social protection, and human security, and the conduct and results necessary to achieve such ultimate aims.

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This sort of scholarly inquiry would be immediately relevant to initiatives such as the proposals for guiding principles to fight extreme poverty, the social protection floor, and operational programs to achieve social justice. B.  Everyone as a Member of Society: Shared Responsibility The dual nature of the rights-bearer in article 22 as both an individual and a member of society carries with it fundamental implications for the implementation of ESC rights. As reflected in subsequent treaties and other instruments, the cornerstone of “everyone, as a member of society” provides a basis for human rights principles that guide the processes and results of implementation of human rights. These principles call for approaches that incorporate universality of enjoyment of all the recognized rights by everyone,697 equality and its corollary nondiscrimination which involve obligations of immediate effect,698 participation that connotes a freedom of choice by individuals about decisions affecting their ESC rights, and solidarity, a concept closely connected with mutuality, which recognizes the individual’s duties to the community and to other individuals. 1.  UN Charter Pledge and Beyond While the indispensable rights of article 22 provide security and belong to each individual, their realization is only possible in active relation to society and indeed offers benefits to society generally. The fulfilment of human rights that brings economic and social security and the capability to contribute to society reinforces the inter-relationship of human rights, economic and social opportunities and freedoms, and peaceful relations in society. In this way, article 22 specifies, at the level of the individual in society, the correlation built into the UN Charter among the three interlinking “pillars” of human rights, economic and social progress, and peace and security.699 Along with restrictions on the use

  For the restrictive interpretation given the singular exception under the ICESCR in relation to the “economic rights” of “non-nationals in developing countries”, see notes 359-63 and accompanying text. 698   See supra notes 374-76 and accompanying text. 699   See supra notes 24-25 and accompanying text. 697

conclusions205 of force like its predecessor the League of Nations, the UN Charter aims to secure world peace through a system of economic and social co-operation in which the promotion of human rights and fundamental freedoms plays an integral part. Article 22 brought new clarity to this connection in helping to define, through ESC rights, the Charter’s guarantees of social and economic progress and co-operation, and solutions for international problems described in article 55. Through the term “national effort”, article 22 also added the duty of “national effort”  to the pledge in article 56 for co-operation between member States and the Organization. By further motivating national action with the mutuality principle, the Declaration, and article 22 in particular, surpass the Charter pledge largely addressing public authorities and convoke all members of society, including non-state actors, to share responsibility for realizing the human rights of everyone. As reflected in article 22, the concept of shared responsibility for human rights has expanded the international legal understanding of the UN Charter’s call to action to promote human rights and progress. The entitlement in article 22 of “everyone, as a member of society”, together with the corresponding duties of everyone to the communityin article 29, embraces the responsibility of all actors in society, ­including non-state actors. As consistently emphasized by the authoritative interpretative comments of the CESCR, while States are “ultimately accountable for compliance with the Covenant, all members of society – individuals, including health professionals, families, local communities, intergovernmental and non-governmental ­organizations, civil society organizations, as well as the private business sector – have responsibilities regarding the realization” of the ESC rights recognized. States should therefore provide an environment which facilitates the discharge of these shared responsibilities.700 2.  Complementing State Action: Implications of Shared Responsibility The role of transnational non-State actors in complementing the efforts of the State as the primary human rights duty-bearer has become increasingly relevant, particularly in relation to trans-border effects on ESC rights from multinational enterprise and supply chain operations. Under human rights principles, the private business sector – national and multinational – should promote respect for ESC rights in the  CESCR, General Comment No. 14, supra note 375, para. 42.

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conduct of their activities and in their own internal policies.701 The social effects of transnational business operations have been the subject of international co-operation through soft law standards since the rise in influence of MNEs in the 1970s. As globalized economic activity is accompanied by situations where business conduct outside a State’s territory affects human rights within its borders, attempts by any one State to regulate such conduct inevitably create international jurisdictional conflicts. In contemporary contexts, the principle of shared responsibility between public and private actors offers new ways of approaching these challenges by invoking the responsibility of international organizations and non-state actors directly, as well as through the coordinated regulation of States. Even so, recent UN guidelines on human rights and business, like their older multilateral counterparts,702 depend on the obligations and action of States to control and guide business conduct within their own borders and through international co-operation, including when acting as members of multilateral institutions.703 While State responsibility remains the primary reference point, international co-operation should focus more directly on the obligations of international institutions themselves in relation to transnational effects of business activities.704 Global partnerships for development, including international development projects involving business partners, could design programs and assess partnership aims with the realization of ESC rights as a priority. By so doing, consistency with and promotion of internationally-recognized human rights would be incorporated into the conduct of business and its relationship to State human rights policy and action.705

701   E.g., CESCR, General Comment No.12, supra note 368, para. 20 (right to food); CESCR, General Comment No. 18, supra note 377, para. 52 (right to work). 702   For the UN’s recently developed Guiding Principles for business, see supra notes 610-11, 693. For earlier instruments, see ILO MNE Declaration and OECD Guidelines for Multinational Enterprises, supra note 397. 703   Guiding Principles for Business and Human Rights, supra note 610, at para.11 and Commentary. 704   See chapter V.B.2.2.2. 705   See chapter V.B.2.2.3. Filters for good practice have been added to some of the organization’s methods for selecting business partners, such as the Guidelines on Co­-operation between the United Nations and the Business Sector (rev. 2009), issued by the U.N. Secretary-General on Nov. 20, 2009, discussed in U.N. Secretary-General, Enhanced co-operation between the United Nations and all relevant partners, in particular the private sector, U.N. Doc. A/64/337 (Sept. 1, 2009), but there is no systematic approach to link such efforts to ensure respect for all indispensable ESC rights.

conclusions207 C.  Claiming the Entitlement to ESC Rights The building blocks of article 22 have proven to be remarkably wellengineered for conveying the Charter commitments to human rights and economic and social progress through national effort and international co-operation to realize ESC rights for all. Article 22’s reference to “entitled”, articulated further through the ICESCR and other international human rights treaties, offers a basis for people to claim these rights from States as primary duty-bearers. Subsequent articulation and interpretation has helped define the obligations and conduct incumbent on States in realizing the entitlement, which in turn informs the efforts at accountability, including through reporting processes for which fledgling indicators are taking shape. 1.  Defining the Entitlement: Duties and Typologies The entitlement to realization of the article’s indispensable ESC rights, as subsequently articulated, requires action with immediate and progressive effects. The two aspects are interrelated since immediate obligations also include taking steps toward progressively achieving the full realization of the rights. Certain rights are to be realized through action with immediate effect, such as non-discrimination and aspects of the rights involving work, education, culture, and protection of children. Other immediate obligations involve actions to enable progress toward realizing other ESC rights, such as monitoring the extent of realization (or not) of the rights and devising a plan of action to promote them, with special attention to the most vulnerable and disadvantaged. The principle of progressive realization thus embodies both immediate steps and an ongoing duty to move as expeditiously and effectively as possible toward full realization, without omissions or deliberate retrogressive steps. For ESC rights which by their nature involve progressive achievement, authoritative interpretation has recognized an immediate “minimum core obligation” to ensure the satisfaction of at least the “minimum essential level” of the right; without this core obligation, the human right would lose its significance. Guiding criteria have been developed to help identify the “absolute minimum entitlement” for any particular right. As applied to rights to housing, food, education, and health, the criteria involve availability, affordability, accessibility, and adequacy or acceptability (for example, in cultural terms).

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The duty to act for immediate and progressive achievement of ESC rights is generally considered to involve various types of conduct which can apply to either State or non-state actors. While there is no single approach to classifying obligations, a leading typology applicable to both Charter and treaty obligations distinguishes three general categories of conduct to “respect, protect, fulfil” ESC rights. States have a duty to “respect” ESC rights by avoiding measures that would hinder, deprive or prevent anyone from enjoyment of the rights. The duty to “protect” requires States to take measures to prevent third parties from interfering with enjoyment of the rights; this includes the behaviour of non-state actors as well as States’ own influence in international orga­ nizations. The duty to “fulfil” involves positive action to ensure that ESC rights are actually enjoyed. Under guidance issued for States Parties to the ICESCR, the duty to fulfil is further differentiated into action to “facilitate” others to realize the rights, or positive measures to directly “provide” the means for realization when an individual or group is unable to do so for reasons beyond their control. A third variant of the duty to fulfil has been identified as action to “promote” the right through research, training, public education and such activities; this is seen as unduly confusing given the more general meaning of the duty to “promote” human rights in general. Other typologies based on general international law principles have been advanced from time to time, such as the obligations of conduct and result, and acts of omission and commission. These typologies may create confusion in some instances where State conduct may not fall into only one or the other category across time. Nonetheless, in other cases, they may also aid in linking States’ obligations of national effort and international co-operation as, for example, where a State fails to take into account its ESC rights obligations when entering into agreements with other States, international organizations, or MNEs. 2.  Measuring Progress to Realize ESC Rights The tripartite typology of “respect, protect, fulfil” originated in the context of an initiative to develop indicators to report on and assess the action within countries to realize ESC rights. However, more effort is needed to achieve a full correlation between the “illustrative indicators” recently launched by the UN and the normative results of the tripartite types of action to attain the immediate obligations, such as  essential levels of ESC rights, and to progressively achieve full

conclusions209 realization of the rights. The UN’s current human rights indicators focus largely on institutional and structural factors and programmes, and a quantitative approach has deliberately been adopted to measure action and results. More consideration should be given to building indicators for assessing not only fixed structures and processes but also active systems that detect, correct and prevent violations, in some ways like systems used in private sector auditing and certification. In  addition, the resort to quantitative methods without a sufficient balance of qualitative approaches risks compromising the normative content and may distort the ability to identify achievement of the purpose of the rights. Assessing progress toward the full realization of an  integrated set of ESC rights indispensable for dignity and freedom calls for a deeper level of multi-disciplinary inquiry that leverages statistical approaches with analytic methods of political and social science inquiry. D.  National Effort and International Co-operation: Emerging Frameworks In practical terms, realisation of ESC rights is achieved on the territory of States but it increasingly has international dimensions. Even in article 22, the terms “national effort” and “international co-operation” are connected by the word “and”, suggesting that ESC rights can only be realized universally if both measures are employed. In a globalizing world, the rule that States have primary responsibility to realize ESC rights within their territory functions at its best when combined with  action of the international community to address trans-border effects of obstacles to realizing ESC rights.706 As a result of the growing sphere of globalized activities affecting ESC rights, the scope of the relationship between “national effort” and “international co-operation” is evolving. By articulating the dual framework as an entitlement, article 22 recognizes a right to have the State and the international community organized in such a way that ESC rights are fully realized. International treaty law and practice have reinforced the dual means planted in 706   See, e.g., CESCR, General Comment No. 14, supra note 375 (right to health), recognizing the “primary responsibility” of the international community in relation to trans-border effects of obstacles to realizing the right to health in the context of communicable diseases.

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article 22. States parties to the ICESCR, for example, undertake to take steps “individually and through international assistance and cooperation” toward full realization of the recognized ESC rights. The dual entitlement can also be seen in normative principles articulated through international declarations. Of particular note is the right to economic, social, cultural and political development in which all human rights can be fully realized, as recognized by the 1986 UN Declaration on the Right to Development. In the series of international conferences leading up to the Millennium Declaration, States set human rights and development goals in specific fields and groups of concern as benchmarks toward realizing development through specific commitments to national effort and international co-operation. In specifying the means for realizing the entitlement to ESC rights, the phrase “in accordance with the organization and resources of each State” is joined with “national effort and international co-operation” in article 22. As developed by the drafters and subsequent articulation, the phrase merges two distinct impulses: to obtain the maximum possible rights within a particular country’s social, political and economic potential, and to ensure that measures to realize ESC rights fit with the prevailing national policy and system. Rather than imposing State limitations on the exercise of national effort and international co-operation as could be construed, the phrase actually invokes the potential to satisfy ESC rights through a continuously improving framework  – at national level, as development and resources evolve, and at international level as each State interacts with others and with the international community as a whole. The supplementation of national effort with international co-operation provides a practical support to the rule of respect for dignity and humanity as “a fundamental and universally applicable rule [which] cannot be dependent on the material resources available in any one State.” 1.  National Effort Effort at the national level is the first step in realizing conditions for the enjoyment of ESC rights. As primary human rights duty-bearers, States exercise a margin of discretion in selecting the means for implementation of ESC rights under a principle recognized at the start of the periodic reporting system under the Declaration in 1956. The State is free to use “all appropriate means”, a phrase that takes into account variations among legal, administrative, financial, educational and social

conclusions211 systems and measures as well as religious, cultural, historical and developmental distinctions. This flexibility co-exists with the State’s obligation to use all means at its disposal to give “due priority” in the allocation of available resources to satisfy the obligations to realize the rights, especially their minimum essential levels. The reference “in accordance with the … resources of each State” in article 22 and as subsequently articulated has been interpreted as referring to the manner in which States manage resources in taking steps to realize ESC rights. Not all resources need to be devoted but available resources should be allocated effectively and equitably, giving due priority to ESC rights among other government priorities and mindful of the need to achieve minimum essential levels of the rights immediately. Under this approach, a lack of resources alone cannot excuse taking steps to realize the indispensable rights. Reflecting the particular value placed on legislative and remedial measures, the entitlement to ESC rights for everyone within a State’s own borders is affirmed in the national constitutions or laws of nearly all UN member States. Remedial measures represent another important aspect of national effort. The right to a remedy for victims of violations of ESC rights is reflected in legal provisions for invocation of claims involving ESC rights in national courts as well as through complaints at international level alleging violations of the ICESCR under its recently-adopted Optional Protocol. As discussed in Part C of this chapter, while the State retains primary responsibility, “national effort”, as originally intended and as affirmed, involves all members of society. In undertaking national effort, States have overwhelmingly recognized the contribution of the international system in helping them achieve ESC rights domestically. This is evident, for example, in the number of states that have ratified the major international treaties and committed to progressively realize ESC rights, individually and through international co-operation, and to immediately provide minimum essential levels of the rights in their own jurisdictions.707 These commitments encompass the duty to report to the international community, to actively seek aid from the international community when 707   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, supra note 482, paras. 106, 112 (State that holds effective control as the occupying Power has territorial jurisdiction for purposes of human rights obligations under the Covenant).

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needed to realize ESC rights or to give to those in need, directly or indirectly, when in a position to do so. As addressed in the next section, States also have a duty to co-operate with international organizations whose mandates would assist in achieving the conditions necessary for ESC rights. 2.  International Co-operation The vital role that international co-operation plays in realizing the entitlement to ESC rights is underscored by the fact that the only reference to “international co-operation” in the Universal Declaration is found in article 22. In emphasizing the principle, article 22 clarifies that the duty of international co-operation, as a basic principle of international law and part of the Charter pledge, plays a fundamental and necessary role in realizing ESC rights. The realization of human rights through international co-operation applies not only to States but to international organizations and the international community. As early as 1952, the UN Secretary-General noted that the mandates and functioning of the UN specialized agencies depended on international co-operation and involved the realization of ESC rights.708 In joining “international co-operation” with “national effort”, article 22 demonstrates that the principle of international co-operation in the Charter is not only an end in itself but also an essential means to complement the primary responsibility of States to realize ESC rights through national effort. The use of international co-operation to supplement national effort in achieving human rights outcomes has been consistently and repeatedly affirmed in UN General Assembly Declarations and World Conferences and Summits. Most recently, in 2010, the General Assembly explicitly integrated human rights principles and goals into the ambitious agenda of the Millennium Declaration and reaffirmed the need for an enabling international environment to support national efforts. To effectively complement national effort to realize ESC rights, international co-operation must be oriented as a priority to the realization of human rights. This orientation has far-reaching implications for the processes and outcomes of international co-operation, including international agreements and policies, development programs, and   See supra note 564 and accompanying text.

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conclusions213 relief and humanitarian assistance. Like national effort, action to give priority to human rights in international co-operation should be guided by human rights law and principles, including participation, nondiscrimination, accountability, and priority to the most vulnerable. Thus, the reference in article 22, subsequently articulated to grant priority to human rights in international co-operation, applies to States acting externally through their foreign policies, aid programs or positions taken as members of international organizations. It applies in like manner to States acting collectively in multilateral groupings without independent legal personality, such as the G-20 or Paris Club. The priority claim of human rights in international co-operation applies not only to States but also to international organizations as international legal actors created to serve the aims and order of the international community, in various ways, through their specific mandates. As subjects of international law, international organizations are bound by their constituent instruments, specific international agreements to which they are parties, and any obligations incumbent on them as a result of general principles and rules of international law. As a function of their duty of good faith co-operation with member States and with other international organizations, they bear a responsibility to ensure that their action does not result in the deprivation of ESC rights in their own policies and operations or by impact on the efforts of other organizations or of States under their international human rights obligations. The responsibility of international organizations in relation to human rights, constructed in this manner, provides  a normative framework for conceptualizing the role of the international community as a whole in addressing situations where ESC rights are affected by factors transmissible beyond the frontiers of any one state. 3.  Co-operation Frameworks under Construction The duty of States to help realize ESC rights beyond their own borders through international co-operation, and the related responsibilities of international organizations and non-state actors, is a legal framework still under construction. This section draws conclusions and makes recommendations for States, international organizations, and private actors in their efforts to respect, protect and fulfil the indispensable ESC rights of article 22 in the context of international co-operation.

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3.1  Respecting ESC Rights through International Co-operation While the scope and application of the obligation to positively assist the needs of people in other States or difficult situations remain unsettled as a matter of law, there is growing recognition of a duty to respect the enjoyment of ESC rights in international relations and co-­operation. In this regard, all States are considered to be in a position to refrain from interfering, directly or indirectly, with enjoyment of ESC rights in other countries. The responsibility of a State to ensure that its actions with other States and in multilateral fora respect ESC rights everywhere in the world has been affirmed by authoritative interpretation, particularly through the UN treaty bodies which, though nonbinding, has obtained some acceptance by States. Action taken by international organizations should be measured by a similar standard; the question of whether (and how) an international organization bears responsibility for a decision in violation of ESC rights is as yet unsettled, but the answer will be reasonably determined in part by reference to any undue influence that member States may have had on the action of the organization.709 The implications of this duty for actions taken among the most powerful States of the world are striking. In multilateral fora like the Group of Seven (G-7) or the Group of Twenty (G-20)710 which have no independent legal personality, States acting collectively bear individual responsibility under human rights treaty obligations to take decisions and act in ways that do not adversely affect ESC rights in other States. Additionally, as multi-State groupings increasingly act jointly with the UN, its specialized agencies including the Bretton Woods Institutions,711 the states of the grouping could be considered to be taking “joint and separate action in co-operation with the Organization” under article 56 of the Charter, directly applying human rights Charter commitments 709   For a review of the joint and several liability of States in relation to international organizations, see UN Doc. A/64/10, supra note 593 (draft ILC articles on responsibility of international organizations, and commentary). 710   The G-20 was formally established in 1999, through the regular consultative process started in 1975 by the world’s seven major industrial countries to discuss economic and financial issues (G-7). The G-20 has assumed an increasingly active role on global economic issues. See generally, e.g., Richard Samans, Marc Uzan, Augusto López-Claros, World Economic Forum, The international monetary system, the IMF, and the G-20: a great transformation in the making? (2007). 711   The IMF and the World Bank regularly participate on an ex-officio basis in meetings of the G-20. Id. Since 2009, the International Labour Organization has also participated on an ex-officio basis. See supra note 287.

conclusions215 to the activity. In turn, the UN, its specialized agencies, and international financial institutions, if acting collectively with the G-20 or other grouping, would be bound to exercise their responsibilities in keeping with their own mandates and with the purposes of the UN, including those found in Chapter IX of the Charter. Without such accountability, the action of groups of States like the G-20 risk competition and even conflict by operating in parallel to the UN System and affiliated organizations accountable to promote human rights as well as economic and social progress and peace, including in co-operation with its Member States including those in the G-20. Mechanisms for strengthening accountability of both Member States and international organizations’ activity are addressed in Part E of this chapter. 3.2  Protecting ESC Rights through International Co-operation The question of States’ obligations to co-operate to protect ESC rights outside their territory from abuses by third parties is less settled in international law but is growing increasingly relevant with the rising number and effect of transnational activities on the realization of ESC rights within States, including those driven largely by non-state actors such as MNEs. States are encouraged to regulate actors in their territory that are engaged in transnational activities in order to influence their conduct and thus to ensure protection of human rights. Nevertheless, the fact that such activities escape the jurisdiction of any single State highlights the limits of the inter-state structures of international law as well as the need for coordinated international initiative to counteract the limits of the general territorial jurisdiction of States. The expanding public policy role of the International Organization of Standardization (ISO), for example,712 demonstrates the need for States to act at national level to ensure that their national standards institutes which serve as ISO member bodies protect ESC rights in the positions taken in the private standardization fora at international level. The discharge of this primary responsibility of States could contribute to make sure that ISO respects ESC rights in its standardization activities, a result which is consistent with ISO’s own duty as a private actor.713

712   For ISO’s standardization initiatives in public policy areas, see supra text accompanying notes 612-15. 713   For human rights duties of private actors, see supra chapter IV.B.4 (solidarity).

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Within the exercise of their special jurisdiction, international orga­ nizations also bear responsibility to protect ESC rights when the opportunity arises. In the course of their policy making or operations, action should be taken to ensure that the ability of States to protect ESC rights is not hindered by collective decisions taken by international organizations to which they are members. Indeed, the decisions of international organizations, to the extent implicated by their mandate, should operate to prevent States or third parties from acts that would violate human rights of others. International organizations together with their member States are responsible, commensurate with their various roles, to protect against adverse effects in the design and implementation of such economic and financial regimes as debt relief programs, structural adjustment policies, and international sanctions decisions. For mechanisms to strengthen accountability of Member States and international organizations, see Part E of this chapter. 3.3  Fulfilling ESC Rights through International Co-operation The legal implications of the duty to fulfil ESC rights in the context of international co-operation are less well-settled, particularly in relation to the duty of States to act individually to assist in situations of dire need in other countries, whether in the context of humanitarian relief or development aid. In humanitarian situations involving internal displacement, article 22 has been interpreted as connoting at least the need for international co-operation to assist developing countries to meet their obligations in relation to ESC rights. Under humanitarian and human rights treaty law, as well as numerous soft law instruments, states that are offered humanitarian assistance bear duties to fulfil ESC rights by facilitating free passage of life-sustaining assistance and not arbitrarily refusing access for delivery of such aid. Where obstacles to development are at the root of the deprivation of ESC rights, the inherent connection between human rights and international co-operation to aid development has been recognized from the earliest reporting on the effect given to the Universal Declaration. The right to development as a principle and a process of progressive achievement of human rights through international co-operation is recognized as implying duties on those providing and those receiving development assistance. Nonetheless, debate continues on the legal obligations of developed countries to fulfil the right to development declared by the General Assembly in 1986. While policy goals for doing so have been agreed in

conclusions217 subsequent international conferences and summits, in practice, achievement of the goals has been hampered by a lack of coherence among development efforts, both among States and between States and international organizations. All too often, failure to give priority to human rights in development action is reflected in diverging goals and approaches in country. The fault lines are evident horizontally in development efforts among international organizations, as well as between the UN and the international financial institutions and even within the UN’s own operations and with the specialized agencies. Even as strides toward coordination of action emerge in UN efforts at country level, the powerful contribution of the human rights-based approach to international co-operation to achieve conditions of development is far from realized. The use of a human rights based approach to economic, financial and social policies and programs can bring a number of advantages. It can achieve greater equality in the enjoyment of human rights by helping to ensure that the marginalized and vulnerable are not left aside while overall development targets are met. It also offers a common methodology to guide national strategies for setting and achieving development goals. The application of such human rights principles of participation, information, and expression build legitimacy and consistency into development process and outcomes, making them more sustainable. They also empower people to be at the centre of the development processes and decision making affecting the realization of ESC rights, and promote State accountability for setting goals that advance human rights. Progress toward a common understanding of how to apply human rights to development requires greater use of the internationallyrecognized minimum threshold of ESC rights as a common point of reference, and adherence to the minimum essential levels of those rights as non-negotiable targets for development action. Such an approach offers a chance to build consistent and coherent action among all development actors. As reflected in recent institutional and scholarly studies, the effective development co-operation involves dialogue among States, international organizations and other development actors, and steps to coordinate approaches and action at national and international levels. The growing attention to human rights indicators in development co-operation offers a potential for interpretative guidance as well as for greater coherence among the currently divergent practices of development policy and activities. Nonetheless, the current state of development of human rights indicators reveals a wide

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divergence of methods and points of reference, starting with the question whether human rights goals and processes should be implicitly or explicitly integrated into development action. Although uniformity of approach is not itself necessary to arrive at coherence, the acknowledgement of the State’s primary responsibility to respect, protect and fulfil internationally-recognized human rights does lead to certain fundamental and non-derogable premises. Among these, all actions of a State must conform to the obligations it has undertaken to realize ESC rights for all and to not derogate or diminish those rights. Thus, whether human rights goals and processes are implicit or explicit, human rights indicators should be capable of measuring, through human rights assessments, the human rights impact of State development plans or action, independently and in coordination with development activities involving private sector or international actors in the country. Among the emerging international initiatives to test the practical power of the human rights approach to development is the UN work on extreme poverty. The situation of extreme poverty is recognized as inhibiting the enjoyment of human rights. The draft Guiding Principles on extreme poverty and human rights, which are being developed as an interpretative and practical tool, hold potential for more clearly understanding the meaning and application of human rights to address development and humanitarian obstacles to indispensable ESC rights through, in the MDG terms, a “global partnership” involving all members of society. The draft Guiding Principles remarkably embody the thrust and spirit of article 22 in emphasizing human dignity as its cornerstone, the enabling rights to freedom from poverty and access to security, and the balance between national effort and international co-operation. With sufficient political will and progress through dialogue and further development of human rights indicators, the draft Guiding Principles on extreme poverty and human rights may achieve a balance of indivisibility among the ESC rights together with flexibility in methods for their application and assessment. E.  Enhancing Accountability for Conduct Affecting ESC Rights Recent normative and policy developments point to an increasing awareness that the universal realization of ESC rights depends on the development of transnational mechanisms for addressing ESC rights

conclusions219 abuses that cannot be regulated or controlled by any one State. Global public policy instruments, as well as proclamations by civil society and non-state market actors and others in the international community, acclaim human rights as essential to social justice, and call for mechanisms to ensure accountability for their promotion, both within and across States. As discussed in the preceding section, international organizations and multi-state groupings like the G-20, as well as transnational non-state actors, should be accountable for conduct affecting ESC rights attributable to them, or failure to take ESC rights duly into account in co-operation at international level. This section suggests possible approaches for monitoring, reporting and assessment which could enhance accountability for conduct affecting ESC rights. 1.  Ensuring Respect for ESC Rights in Multilateral Economic and Financial Co-operation As discussed above,714 groupings of States acting together, such as the G-20, bear responsibility at the individual level of each State concerned to take positions that do not adversely affect the realization of ESC rights in other States affected.715 While mechanisms for accountability at individual State level exist, systems to hold a group of States accountable when acting together or with international organizations for the human rights effects of its decisions are yet to be developed. To voluntarily diminish the risk of conflict with human rights norms, States operating in such groups should adopt proactive procedures to ensure that human rights principles and goals are integrated into the group’s functioning. For example, human rights impact assessments and policy analyses could precede and inform group decisions, and measures could be instituted to take account of the views of those likely to be affected by such decisions. Independently, existing international mechanisms should extend their monitoring to cover the functioning and effects of the decisions taken in multilateral fora which fall out­side the scope of regional arrangements in affiliation with the United Nations. UN human rights bodies and mechanisms could consider ­assessing the human rights impact of international co-operation among such multi-State groupings through fact-finding mandates or at the   See supra Chapter VI.D.3.1.   The effect that each State’s position had on the ultimate decision taken by the grouping of States would be a question of fact relevant to imputation of the conduct to the violation. 714 715

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level of State r­ eporting procedures, given that the group’s proceedings are themselves non-transparent. Specialized agencies, including the international financial institutions that work with the G-20 or other groupings or clubs, should be asked to provide information to the human rights bodies on their relevant work with such groupings. As for the use of complaints-based procedures, and in particular the Optional Protocol to the ICESCR which has yet to enter into force, it is unclear whether a communication alleging a violation of ESC rights arising from decisions of the G-20 or other such grouping could be heard. Difficult issues of attribution and causality would arise, whether the alleged violation occurred in a State Party recognizing the competence of the Committee under the Protocol which was itself affected adversely by the group’s decision or whether the communication concerned a State participating in the decision. In the latter case, it is arguable whether such a violation would fall within the scope of article 2 of the Protocol since it would relate to the State’s obligations of international co-operation rather than realization of the rights on its territory. 2.  Protecting against Third-Party Violations of ESC Rights in International Co-operation 2.1  Accountability of International Organizations for Action at Country Level As discussed above,716 international organizations acting within their mandates, together with their member States, are responsible to protect against third-party violations of ESC rights in the design and implementation of their development, relief, and other policies and programs, including structural adjustment and collective sanctions. To build human rights coherence into the action of international organizations, the World Bank’s Inspection Panel and similar initiatives offer a model for early warning and voluntary accountability which could usefully be considered for all country-based development action, including across the UN System.717 The World Bank’s safeguards trigger Inspection Panel review which in some instances serves – albeit indirectly – to prevent or remedy ESC rights violations in country projects sponsored by the Bank. In like manner, a UN System development   See supra Chapter VI.D.3.2.   For the World Bank’s Inspection Panel and similar initiatives of the regional development banks, see supra notes 606, 619-20 and accompanying text. 716 717

conclusions221 inspection mechanism should be developed that would include all the “indispensable” ESC rights envisioned under the Universal Declaration as the threshold for human well-being.718 Such an approach could be, adopted by the United Nations Development Program (UNDP) and other funds, programs and the UN specialized agencies active in development, as an independent voluntary mechanism that would permit the agencies’ actions to be reviewed at international level for human rights impact. The result would and would promote human rights coherence in country-based action of all the international organizations concerned. To put such a system in place, a Statute could be adopted to define the procedures and composition of a UN System Inspection mechanism, as well as internationally-recognized human rights safeguards to be assessed in taking development action. Each international organization would be free to independently recognize the competence of the mechanism to investigate third-party claims involving its activities. By accepting the Statute, each organization would ensure that the necessary procedures safeguarding against adverse human rights impact are incorporated into its internal governance system to guide its officials in their conduct, as do relevant binding procedures in the World Bank Operational Manual. The method and mechanism proposed have been used in similar ways to build accountability of international organizations for responsibility to member States or to staff members; examples within the UN System include the Statutes for the Joint Inspection Unit of the UN Common System and for international administrative tribunals of the United Nations and of the ILO. The tribunal Statutes are recognized by a number of international organizations for purposes of receiving claims by staff members alleging violations of the duties of the organizations under internal staff procedures.719 While ambitious, such a system offers enormous potential for 718   The economic security derived from indispensable rights may be seen as equally necessary to achieve the Bank’s own objectives under its Articles of Agreement, a view that challenges the Bank’s traditional legal position that human rights are “political” in nature and have no economic impact. See, e.g., Ibrahim Shihata, Political Activities Prohibited, in World Bank Legal Papers 222 (2000). For a different view, see Legal Opinion on Human Rights and the Work of the World Bank, supra note 591. A UN System independent inspection mechanism should logically be based on all the human rights recognized in the Declaration, not just ESC rights, whether the mechanism operates from a development vantage point (UN Development Program, for example) or a human rights perspective (UN Human Rights Council). 719   A UN Common System procedure exists for recognition of the Joint Inspection Unit Statute. See Statute of the Joint Inspection Unit, G.A. Res. 31/192, annex, U.N.

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promoting coherence of action toward a minimum threshold of ESC rights, not just in the conduct of international organizations, but also across countries of operation and donor countries. 2.2  Role of the Private Actor in Public Policy and Lawmaking No binding international mechanism yet exists to hold transnational business activities directly accountable under international human rights principles or provide remedies for human rights injuries. Faced with the challenge of influencing private transnational activity affecting human rights and the limitations of the inter-State structures of existing international legal frameworks, some have suggested that a new set of “norms” could evolve jointly between public and private sectors to supplement traditional legal norms. Such a development should not diminish the primary jurisdiction and responsibility of States for the realization of ESC rights in their own borders; it should rather respond to the growing sphere of transnational activities which have direct (and sometimes adverse) effects within States that are, nonetheless, beyond the control of any one State. The risk posed by publicprivate norm creation is establishment of a less legitimate, parallel system for so-called “lawmaking” that risks confusion and conflict with the laws and regulations derived from the inter-State-based system international law. In that system, private actors play a role through government representatives whose authority derives from representing the will of the people.720 Experience to date reveals that the capacity for a genuine system of shared responsibility in norm creation is limited to a selective number of structures which, by their nature or subject matter, require the presence of private actors in their midst, such as the ILO.721 In the context of privately-driven standards, such as GAOR, 31st Sess., Supp. No. 39, U.N. Doc. A/RES/31/192/A, at 163 (Dec. 22, 1976) establishing the Joint Inspection Unit as a standing subsidiary organ and approving the Statute of the Unit, with effect from 1 January 1978. The Unit is responsible to the General Assembly and similarly to the competent legislative organs of those specialized agencies and other international organizations within the UN System which have accepted its statute as participating organizations. See also Statute of the ILO Administrative Tribunal, Oct. 9, 1946, 29th Sess. ILC, Res. IV, as amended (last rev. June 11, 2008); Statute of the UN Administrative Tribunal, G.A. Res. 351 A (IV), U.N. doc. A/RES/351 A (IV) (Nov. 24, 1949), as amended (last rev. A/Res/59/283 (April13, 2005) 720   See Universal Declaration, supra note 1, art. 21, para. 3. 721   The ILO presents a unique example at international level of “mixed regulation” pursued through a system of equal power sharing between public and private actors due to its discipline, and complaints safeguards, concerning accreditation of the “most representative” organizations of employers and workers to its International Labour

conclusions223 the technical implementation of publicly-set standards through private standardization of ISO, States must still protect against third-party violations of ESC rights by taking efforts to ensure that the standard bodies or other private actors on their territory are effectively held accountable for human rights abuses at international level. In this light, the balance struck in article 22, with States as primary human rights duty-bearers acting to realize ESC rights in the ultimate context of everyone as a member of society remains highly relevant as a principle for the realization of the rights indispensable to everyone’s dignity and freedom of personality. F.  Beyond Development: Human Rights as a Compass for Social Justice The debate over a human rights-based approach to development in the context of the Millennium Development goals is reshaping the practice of international development co-operation. The original targets of a minimum level of development regardless of who benefits and how it is achieved have been shown to be insufficient as a human rights approach. Development success is being redefined in terms of eliminating inequality among people and attention to the needs of the most vulnerable and marginalized. The process is becoming an integral part of the outcome: participatory, informative, and accountable for human rights impact in the country concerned. However, much remains to be done to ensure, through attention to processes and outcomes, the indivisibility of human rights in concrete terms as well as theoretically. More empirical knowledge is needed to uncover experiences in harvesting the synergies among rights in order to avoid the alleged need for so-called “trade-offs” among human rights due to competing limited resources. Principles of participation and information dissemination may help to promote understanding of particular contexts in which indispensable rights are  being realized. Yet the participatory process, democratic as it may be, is surely no guarantee that ESC rights will be taken seriously. Indeed, the process itself may not lead to the full elimination of economic and social inequality envisioned. Human rights mean more than democratic processes; their Conference. Cf. Brian Langille, Imagining Post “Geneva Consensus” Labor Law for Post “Washington Consensus” Development, Comparative Labor Law & Policy Journal, Vol. 31, No. 3, 2010 (challenging the system as inadequately representative in relation to all interests concerned in the world of work).

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judicial enforcement and other methods of fulfilment are equally important to the dignity and freedom that inspire the recognition and realization of human rights. As article 22 conveys, the recognition of ESC rights should act as a compass in the pursuit of social justice. The rights, individually and as an integrated package, give some definition to intermediate goals and means. Article 22 also imports a meaning of ESC rights that encompasses a reality beyond mere assets and material comforts to be received or enjoyed by individuals alone, and beyond economic assessments of equality and non-discrimination, critical as these are. The realization in article 22 of the indispensable rights for everyone that secure dignity and freedom for development of the personality is not ultimately reducible to quantitative measurements of per capita income or similar indicators, important as reducing income disparity is. The right to social security as social justice, secured by an indispensable set of ESC rights, ultimately represents the fruit of properly ordered relationships between the individual, the community and the State. Progress toward social justice through realization of ESC rights is measured by a functional assessment of whether the opportunities, resources and freedoms one has, and the way one is treated in and by society, are sufficient to facilitate one’s full development as a human being. An approach limited to reaching minimum levels of selective rights across certain populations could seriously endanger the recognition at international level that all ESC rights are indivisible. What the Declaration is really after in article 22 is not a bare minimum of any kind and not even wealth of all kinds. It is, in the end, an affirmation of freedom of the human personality, and a guarantee of human dignity and the opportunity for wellbeing. If the vision of article 22 is heeded, the security of social justice will become equally available some day for everyone in society.

index Accountability international organizations  168–70, 220–2 multilateral economic and financial co-operation 219–20 private standardization  175–6 public policy and lawmaking  222–3 African [Banjul] Charter on Human and Peoples’ Rights  112, 122 Bogotá Declaration  57 Committee on Economic, Social and Cultural Rights (CESCR)  83 Convention against Torture  82 Convention on the Rights of Persons with Disabilities  82, 116 Convention on the Rights of the Child  82, 163 Cultural rights  133 Declaration on Social Progress and Development  94, 113, 164, 184 Development ESC rights and  159, 171, 174, 179, 182–90 human rights and  12–14 human rights indicators and  188 international co-operation  159, 165, 168, 179 MDGs (see Millennium Development Goals (MDGs) ) personality  17, 24, 26, 27, 126–9 right to  97, 150–1 Summit Millennium Summit  166 Ten-Year review Summit  186 World Summit on Social Development (WSSD)  94, 95, 165 UN Charter  12–16 UN Working Group on the Right to 184 Dignity  19, 24–6, 69, 126–8 Geneva Conventions  128 ILO standards and procedures  127 Philadelphia Declaration  128 Universal Declaration and  127

Dignity and free development of the personality (see also Dignity; Personality, development of) drafting process  127 indispensable rights  126 Drafting process International Bill of Human Rights (see International Bill of Human Rights) UN Charter (see UN Charter) Universal Declaration of Human Rights (see Universal Declaration of Human Rights) Duties of the individual  122, 149–50 International organizations  170, 172–3, 176–7, 180 to realize ESC rights acts of omission and commission 147 corruption/arbitrary acts  145 duty to fulfill  146, 179 duty to protect  146, 173 duty to respect 145, 171 illustrative indicators  148 indispensable rights 65–8, 130–4, 148 (see also Indispensable ESC rights) recognized limitations  147 of the States  38, 50, 73, 179, 183, 190, 191 systemic indicators  148 tripartite typology  146 UN Charter-based human rights machinery 145 Economic rights  15, 40–1, 204 Economic, social and cultural (ESC) rights accountability (see Accountability) co-operation frameworks duty to fulfill  179, 181, 182, 216–18 duty to respect  171, 214–15 duty to protect  173, 176, 215–16 derogation and  143–5 dual entitlement  210

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Economic and Social Council  83 education, right to  19, 112, 117, 119, 132, 148, 201 acts of commission, omission  147 content 108 derogation and  143–5, 200 development and  65–71, 90–9 dignity 25–6 equal opportunity rights  117 free and full development of personality 26–7 free development of personality 68–71 fundamental rights  117 human dignity  68–71 human security and  98 implementation  37–44, 135–96 integrated  16, 67, 89, 201, 202 international co-operation  74–7, 159–90 limitations to  144–5 national effort  73–4, 151–9 non-state actors  28–31, 121–5, 204–6 organization and resources of each state  77–8, 190–6 peace and  90–9 realization  71–8, 135–96 recognition  65, 68, 86 role of wealth  106, 107 scope  58, 79, 130 Third Committee Deliberations 67–8 Umbrella article (see Umbrella article) universality and non-discrimination 27–8 violations approach  220–3 entitlement duties and typologies  135–48, 207–8 realization  135–96, 208–9 human rights principles  83 indispensable rights  65–8, 130–4 indispensable rights approach (see Indispensable rights approach) international co-operation and  159–90, 212–13 article 55 (a)  17–18 article 55 (b)  18–19 article 55 (c)  20–1 article 56  21–3 duty to fulfill  179–90, 216–18 duty to protect  173–8, 215–16

duty to respect  171–3, 214–15 human rights approach to  167–71 national effort and  162–7 legal analysis  81 lex ferenda  83 national effort  210–12 progressive realization  199–200 right to social security (see Social security, right to) shared responsibility Millennium Declaration  166 state action  205–6 UN Charter  204–5 social justice (see Social justice) treaty obligations  82, 83 UN treaty bodies  81, 82, 83, 86, 114 Effort, national (see National effort) Entitlement duties and typologies  136–48, 207–8 duty of positive action  149 duty to realize early periodic reporting system 136–7 full realization  137 treaty obligation  137 types of  145–9 Universal Declaration  136 ESC rights, realization of derogation clause  143 non-core obligations  145 permissible derogations  144 states obligations  143 UN General Assembly  144 immediate and progressive realization absolute minimum entitlement  140 CESCR 137–9 human rights, violations of  141 immediate effect  137–40 indispensable rights  139 international interpretation  141 judicial determination  139 minimum core obligation  140 obligations of  137 principle of progressive realization  138, 141–3 retrogressive measures  142 international co-operation and (see also International co-operation) early periodic reporting  161 (see also Reporting systems) economic and social advancement 159

index227 realization of ESC rights  160 specialized agencies  160, 162 minimum threshold entitlement  109 national effort (see National effort) organization of each State  191–3 political commitments  151 realization of  135–96, 208–9 resources of each State  193–6 right to development  150–1 (see also Development) Equality and non-discrimination principle of  112–16 ICESCR and  114 in ESC rights  113 gender equality  15, 115 immediate and cross-cutting application 115 international law  112 UN General Assembly Declarations 113 Everyone  44–5, 110–25 equality and non-discrimination, principle of (see Equality and non-discrimination, principle of) participation, principle of (see Participation, principle of) rights-bearer 110 social security  110 solidarity, principle of (see Solidarity, principle of) subsequent articulation  130–4 textual meaning  65–70 universality, principle of (see Universality, principle of) FAO  99, 161 Food, right to  87, 140, 141, 144, 172, 206 Freedom to develop the personality  24–7, 126–30 (see also Personality, development of) from discrimination  115 four freedoms  25 General Agreement on Tariffs and Trade (GATT) 161 Globalization ILO Declaration on Social Justice for a Fair Globalization  93 World Commission on the Social Dimension of Globalization  1 Group of 20 (G20)  98, 214, 215

Health, right to  50, 130, 142, 166, 182, 209 Housing, right to  133, 134, 156 Humanitarian assistance (relief) 181–2 Human rights  12–24, 34, 36 compass 223–4 development and  12–16 fundamental freedoms and  94 human rights ordering  101–7 international organizations and  169, 180, 220 operational linkages article 55 (a)  17–18 article 55 (b)  18–19 article 55 (c)  20–1 article 56  21–3 peace and  12–16 progress and  16–23 role of  6 social justice and (see Social justice) UN Charter  13–15 article 1  14 article 55  17–21 article 56  21–3 human rights and fundamental freedoms 15–16 human dignity  14 principle of equality  15 security 16 society 16 Human Rights Committee  86, 87, 111, 114, 120, 128, 144, 195 Human rights indicators  6, 187, 188 Human security Commission on Human Security  96, 97, 98 concept 97–8 ESC rights  90, 97, 98, 126, 201, 203 IAEA 162 ICAO 162 ILO Constitution  91–3, 124, 192 ILO Conventions  92, 93, 117, 132, 161 ILO Declarations Declaration of Philadelphia  124 ILO Declaration on Fundamental Principles and Rights at Work (1998)  92, 95 ILO Declaration on Social Justice for a Fair Globalization (2008)  93 IMF 99

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Immediate effect, obligations of (see Entitlement - immediate and progressive realization) IMO 161 Indispensable ESC rights cultural rights and freedoms  133 duties and  148 education rights  132 ICESCR, 132 instrumental freedoms  130 International Bill of Human Rights 133 international labour standards  131 standard of living rights  132 subsequent articulation  130–4 textual meaning  65–70 work and trade unions  131 Indispensable rights approach donor-driven development initiatives 202 evaluation of progress, adjustments to 201 human dignity and development  200 human rights-based social ordering 203 individual human rights obligations 201 inter-agency coordination  203 international financial institutions 201 pre-Covenant reporting process  202, 203 (see also Reporting systems) human rights indicators  201 Universal Periodic Review  201 scholarly initiative  204 specialized agencies  202 International Bill of Human Rights drafting  10–11, 13, 35 right to food  133 International Conferences  164 Copenhagen Declaration and Programme of Action  94 Millennium Summit Declaration  151 International Convention on Enforced Disappearances  82, 83 International Convention on Migrant Workers  82, 113 International Convention on the Elimination of all Forms of Racial Discrimination 81 International Convention on the Elimination of Discrimination against Women 82

International co-operation  1135–96 development cooperation  182–90 duty to fulfil  179–90 Charter pledge  179 development co-operation  164, 182 Drafting Guiding Principles  189 General Assembly  184 global partnership  189 interpretative guidance and practical assistance  188 MDGs  166, 186 mutuality and shared responsibility 187 periodic reporting system  183 political commitments  183 relief and humanitarian assistance 181–2 specialized agencies, role of  160, 163, 180 duty to protect  173–8 authoritative guidelines  174 business respect  174 CESCR, 173 international financial institutions 176 ISO process  175 social responsibility  175 duty to respect, ESC rights  171–3 Entitlement and (see Entitlement international co-operation) ESC rights (see Economic, social and cultural (ESC) rights) human rights approach to  167–90 corollary obligation  171 erga omnes obligations  170 ESC rights  170 G-20/Paris Club  168 joint and separate action  167 organizations mandates  169 priority claim  168 international organizations  168–70 national effort, as a supplement to ICESCR, 162 Declaration on the Right to Development 164 economic and social development 163 ESC rights  162 inequalities 165 MDG agenda  166 non-governmental organizations 163 World Summit  166 non-State actors  163

index229 relief and humanitarian assistance 181–82 solidarity 121–5 International Covenant on Civil and Political Rights (ICCPR)  86 International Covenant on Economic, Social and Cultural Rights (ICESCR) 102 article 2(1)  167 article 2(3)  111 article 3  115 article 4  145 article 9  134 article 13  134 article 15  133 article 22  193, 194, 207 article 2, paragraph 1  137 articles 6–8  131 articles 9–12  132 articles 13 and 14  132 Economic and Social Council  83 ESC rights  137 Optional Protocol  157, 220 International Labour Organization (ILO) 48 International organizations accountability inspection mechanisms  221 tribunal mechanisms  221 human rights and  168–81 in relief and humanitarian assistance 181–2 in development co-operation 182–90 responsibility 172 International Organization of Standardization (ISO)  175–6, 215 Interpretation authoritative interpretation approach 80 dynamic interpretation  5, 12, 81 rules of interpretation  4 subsequent interpretation  84, 134 ITU 162 Judicial role  157 League of Nations  90, 124, 205 lex ferenda  83 Life, right to  61, 63, 69 Limburg Principles  137, 139, 140, 142, 144, 145, 153–5, 159, 163, 167, 168, 182, 183, 193–5

Linkages conceptual article 1, 14 fundamental freedoms  15–16 human dignity  14 principle of equality  15 social security  16 society 16 operational article 55 (a)  17–18 article 55 (b)  18–19 article 55 (c)  20–1 article 56  21–3 Maastricht Guidelines  139–44 Millennium Declaration  97, 117–19, 125, 137, 151, 166, 176, 186, 210, 212 (see also Development) Millennium Development Goals (MDGs)  155, 166, 186–7, 189 (see also Development) Minimum core obligations  194, 195, 196 Multinational enterprises  123, 174, 177, 205 ILO Tripartite Declaration on Multinational Enterprises and Social Policy  123 OECD Declaration on Multinational Enterprises 123 National effort nature and scope “all appropriate means,” 153 available resources  154 CESCR, 153 Covenant 154 discrimination 155 economic and political systems  154 ESC rights obligations  152 inter-agency level  155 mutuality of responsibility  155 reporting process  155 UN Members States  152 types of  151–8 administrative remedies  158 Covenant rights  158, 159 judicial and non-judicial remedies 157 legislative measures  156 monitoring mechanisms  158 Optional Protocol to the ICESCR 157 States’ obligations  156

230

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Non-discrimination and equality, principle of (see Equality and non-discrimination, principle of) Non-nationals  111, 112, 204 Non-state actors  28–31, 121–5, 204–6 OAS instruments  3, 131 Original intent  4, 34 Participation civil society  119 development policies  120 freedom of choice  117 physical and social barriers  119 popular participation  120 principle of civil society  119 development policies  120 freedom of choice  117 physical and social barriers  119 popular participation  120 transparency 118 voluntary and democratic involvement 118 transparency and access to information 118 UN Charter  118 voluntary and democratic involvement 118 Peace conceptual linkages  12–16 ESC rights  90–9 Personality, development of  19, 26–7, 68–71, 128–30 American Convention on Human Rights 129 European Convention on Human Rights 129 German law and  130 national legal systems  129 protective approach  129 Pictet, Jean  88 Poverty, extreme  99, 189–90 Principle in international humanitarian law  128, 200 of international law  12, 147, 208 Progressive realization (see Entitlement - immediate and progressive realization) Reporting systems early pre-Covenant periodic reporting  23, 136–7, 152, 161, 202, 203

treaty body reporting  82 Universal Periodic Review  149 Revolution French Revolution  3 Mexican Revolution  3 Russian Revolution  3 Rights-bearer (see Everyone) dual nature (individual and member of society)  110–11 duties of  210, 223 entitlements of  6 Right to complain Optional Protocol on the ICESCR, 157 Shared responsibility state action  205–6 UN Charter  204–5 Social justice article 22  106, 197–205, 223–4 autonomous norms  106 capability approach  107–9 capability theory  108 claims on  85–90 commutative justice  100 development and  90–9 dignity 106 distributive justice  100 equality and non-discrimination  102 evolution of the term social justice 100 fundamental entitlements  107 General Assembly Resolutions  93–5 human agents  105 human rights and  101–10 human security and  97–8 inequalities and variations  109 International Labour Organization  92, 93 international machinery  93 liberal aspirations  104 measuring progress toward  107–9 minimum rights  108 moral obligations  105 mutuality principle  101, 108 pre-emptive claims  104 social protection and  98–9, 197 State obligations  102 theoretical foundations  101 Treaty of Versailles  90 UN Charter  84, 93 utilitarian theory  101 Social protection  192, 202–203 extreme poverty and  99 social protection floor  98–9, 204

index231 Social responsibility  123, 124, 174, 206 Social rights  3, 39, 42 Social justice theory Aristotle 100 Finnis, John  102 “human rights in”, 100, 102–4 measuring progress towards  107–9 Nussbaum, Martha  108–9 Rawls, John  102 Sen, Amartya  101 Social security in article 22  46–64 in article 25  47–50 broad meaning  57, 62, 84–5, 198 International Labour Organization and 91–3 Conventions and Recommendations (on social security) 48 drafting of Declaration (treatment of social security)  34–7 principle of international law  89–90 right to in article 22  85–90 Copenhagen Declaration and Programme of Action  94, 95 dignity and personal development 89 drafters, statements  63–5, 85 economic and financial insecurity 197 economic growth  95 entitlement 86 extreme poverty and inequality  99, 189–90 fundamental principles and rights at work  92 human security (see Human security) ILO 48–49 inter-connected rights  89 international machinery  93 legal implications  96 legal nature  85–9, 198–9 linkage with ESC rights  84 Philadelphia Declaration  91 principle of mutuality  109, 197–8 principles of humanitarian law  88 Programme of Action  94 rights-based approach  99 rights-based social order  104–7, 198 right to life and  87 social protection (see Social protection)

Treaty of Versailles  90 UN Charter  90, 93–4 technical meaning  48 Solidarity, principle of article 29  122 business and private sphere activity 123 equity and social justice  125 global agreements  123 human rights Covenants  122 individual identity  121 Millennium Declaration  125 mutuality 121 social responsibility  124 state-to-state relations  124 Subsequent articulation  5, 131, 143, 207 Travaux préparatoires ESC rights  198 original intent (see Original intent) Universal Declaration drafting (see Universal Declaration of Human Rights - drafting process) Treaty bodies authority 82 human rights treaty bodies  16, 23, 214, 216 legal effect of recommendations and reporting guidelines  81, 82 lex ferenda and 83 opinio juris and 83 relation to UN Charter article 1  14 article 55 (a)  17–18 article 55 (b)  18–19 article 55 (c)  20–1 article 56  21–3 fundamental freedoms  15–16 human dignity  14 principle of equality  15 social security  16 society 16 State reporting  82 Treaty of Versailles  64, 90, 91, 93 Umbrella article Commission on Human Rights drafting 37–42 economic and social rights  39, 197, 199–200 French proposals  41 right to work  38 Third Committee  43–4 UNDP  99, 221

232

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United Nations Charter article 1  17 article 1  80 article 22  65 article 55  93, 136, 167, 171, 193 article 56  136, 149, 167, 171, 181, 193 article 68  35 article 74  78 articles 2  78 articles 55 and 56  76 conceptual linkages article 1  14 fundamental freedoms  15–16 human dignity  14 principle of equality  15 social security  16 society 16 Covenants 82 drafting process  34 development (see Development) ECOSOC 10 human rights and development  93 International Bill of Human Rights  10 international co-operation  74 objectives  9, 12 operational linkages article 55 (a)  17–18 article 55 (b)  18–19 article 55 (c)  20–1 article 56  21–3 paragraph 5, 78 peace (see Peace) principle of participation  118 principle of social justice  84, 93 United Nations Educational, Scientific and Cultural Organization (UNESCO)  19, 36, 99, 131–3, 161 UNESCO study on human rights (see Universal Declaration of Human Rights - drafting process) Universal Declaration of Human Rights Covenants 82 drafting process  4 article 22 in relation to article 25  47–50 Commission on Human Rights 50–5

drafting sub-committee  39–40 economic and social rights  39 ECOSOC 36 ESC rights (see ESC rights) French proposals  41 General Assembly  34–7 International Bill of Rights  34 member of society  44–6, 86 right to work  38 social insurance  52, 54 social security  46–7, 50–4, 55–7, 86, 91, 92, 202 Third Committee Deliberations 57–65 umbrella article (see Umbrella article) UNESCO study  36, 45, 65, 72 General Assembly resolutions 80 International Bill of Rights and  34 rights, dignity, and personality development 24–7 State and Non-State Actor  28–31 UN Charter  34 UNESCO 36 universality and non-discrimination 27–8 Universality, principle of  20–1, 111–12 Universal Postal Union (UPU)  161 WFP 99 WHO  99, 161 WMO 161 Work, rights relating to International Labour Organization and  18, 131, 132 World Bank (IBRD) early periodic reporting  162 human rights indicators  169, 220 inspection panel  173, 177 World Commission on the Social Dimension of Globalization 1 World Food Conference  193 World Summit for Social Development (WSSD)  94–5, 165