Diane A. Desierto
Diane A Desierto
Diane A. Desierto and Colin E. Gillespie
From its entry into force in 1976 up to its present membership of 160 States Parties, the interpretation of the International Covenant on Economic, Social and Cultural Rights (hereafter, the Covenant) has always involved confronting normative and institutional complexities. Unlike the specific prohibitions contained in the International Covenant on Civil and Political Rights (ICCPR), Covenant norms purposely contemplate dynamic implementation over time, with the quality of treaty compliance expected to accommodate and adjust to States' governance capabilities, resource endowments, and fiscal contexts. Such interpretive variability, however, did not necessarily doom the Covenant to normative indeterminacy. Rather, as we show in Part I (A Normative Lattice: The Determinacy of Economic, Social, and Cultural Rights), the lattice-like normative system of the Covenant still enables a reasoned assessment of international responsibility and compliance by State and non-State actors with Covenant obligations. Covenant interpreters must first identify the legal social protection baseline applicable to the State (e.g. the ‘minimum core content of Covenant obligations’ that are jointly determined at the outset by each State Party with the Committee on Economic, Social, and Cultural Rights upon the State's accession to the Covenant), in conjunction with two overarching obligations flowing parallel with this baseline – the ‘principle of nondiscrimination’, which requires a State Party to guarantee non-discrimination in their implementation of Covenant rights; and the ‘principle of non-retrogression’, which commits a State Party to social protection conduct that will, at the very least, not fall below its pre-committed legal baseline of the ‘minimum core’ of Covenant rights. These two principles and the ‘minimum core’ baseline comprise the starting point for the periodic assessment of compliance with the Covenant. Beyond this point, Covenant interpreters have to assess the State's continuing obligation to ‘progressively realize’ Covenant rights as the State's fiscal, economic, and governance contexts and capabilities accordingly adapt and develop over time. We further note that the programmatic, evolutive, and transactional nature of economic, social and cultural rights inimitably involves a spectrum of actors – States as well as non-State actors (such as international organizations). As we show in Part II (Expanding Universes: Covenant Interpreters and Violations by State and non-State Actors), international responsibility for Covenant violations could attach, not just for conduct of States and non-State actors that breach individual substantive obligations in Articles 6 to 15 of the Covenant, but also from breach of the overriding ‘duty to cooperate’ that was built into the telos and design of Covenant obligations. The duty to cooperate, as recognized throughout the General Comments issued by the Committee, is an obligation that has particular salience especially in times of economic emergencies or resource scarcities impairing States Parties' abilities to ‘respect, protect, and fulfill’ economic, social and cultural rights. As is axiomatic with the law of international responsibility, Covenant violations give rise to a corollary duty to make reparations. However, the ultimate form of relief granted would depend on the actual jurisdictional remit of the forum chosen to adjudicate the Covenant violation. In this respect, the proliferation of authoritative institutions that now interpret the Covenant (e.g. the Committee on Economic, Social and Cultural Rights; States Parties; international, regional, and national courts and tribunals; other specialized agencies of the United Nations) explains the diversity of forms of relief recognized as sufficient reparations for Covenant violations. In the Conclusion (Reframing International Responsibility for Covenant Violations), we point out the convergence of various dialectical achievements throughout nearly five decades since the entry into force of the Covenant: 1) the sustained quasi-legislative work of the Committee throughout its General Comments; 2) the continuing interpretive practices of national, regional, and international courts and tribunals in regard to economic, social, and cultural rights; 3) the broad participation and interpretive praxis of States, international organizations, and other non- State actors in the settled reportage procedures before the Committee; and 4) the recent adoption of empirical methodologies for assessing human rights compliance. These developments helped ripen a modern interpretive paradigm for the authoritative determination of international responsibility for Covenant violations.