The Committee on Economic, Social and Cultural Rights

Abstract

Economic, social and cultural rights continue, in most contexts, to be treated as the Cinderella rights of the international human rights regime. But no international body has contributed more to trying to transform this second-class status than the Committee on Economic, Social and Cultural Rights (hereinafter ‘the Committee’). It was created in 1985, met for the first time in 1987, and has held 65 sessions as of February 2019. In addition to carrying out its principal mandate of monitoring States’ compliance with their obligations under the International Covenant on Economic, Social and Cultural Rights, it has put in place an important jurisprudential framework for a set of rights that was, and too often continues to be, poorly understood, even by those responsible for promoting them. Its contributions have significantly shaped the approach adopted to these rights by the overall international human rights system, as well as by constitutional and other courts around the world. In addition, the ESCR Committee has pioneered a great many of the procedural innovations that have subsequently transformed the UN human rights treaty body system as a whole into a force to be reckoned with. Thus, the Committee was the first: to adopt the system of ‘Concluding Observations’ on state reports; to organize days of general discussion; to formally recognize and make publicly available material submitted by civil society groups; to organize briefing sessions at which civil society could present parallel reports; to proceed to examine reports if states cancelled at the last minute; and to examine the situation in a chronically non-reporting state in the absence of a report and even a representative of the state concerned. Nevertheless, like the other treaty bodies, the Committee faces major challenges in the years ahead. Some of these come from the broader political context within which treaty bodies function, which includes an anti-rights backlash in many societies that in turn emboldens some states to seek to undermine, often under the guise of improving or reforming, crucial parts of the system. Shrinking resources available to the UN as a whole and especially to the Office of the High Commissioner for Human Rights appear likely to have a major negative impact on the resources directly available to support the work of the committee, including staffing, meeting time, and technological and other forms of support. In addition, the increasing embrace of neoliberal economic policies by states and international institutions poses major new challenges for the Committee, given its pre-eminent role in upholding the importance of ESCR and of ensuring an overall economic, social and political context in which those rights can be realized. In many respects the Committee has confronted problems which are common to all of the treaty bodies. In other respects, however, the challenges that confront it and the context in which it must work are significantly different from those of the other committees. Among the many factors that tend to distinguish its task are: the lack of conceptual clarity of many of the norms reflected in the Covenant; the ambivalence of most governments towards economic, social and cultural rights; the strong ideological undertones of the debate, especially in an age of the ascendance of neoliberal economic policies; the paucity of national institutions specifically committed to the promotion of economic rights qua rights; the complexity and scope of the information required in order to supervise compliance effectively; the largely programmatic nature of some of the rights; the more limited relevance of formal legal texts and judicial decisions; and the inadequate attention paid by most human rights groups to ESCR. The main thrust of this chapter is that the Committee has done a very impressive job in pioneering procedural innovations, developing an increasingly compelling jurisprudence surrounding ESCR, influencing the way in which national courts and other international bodies understand these rights, and in developing innovative responses to new and emerging problems, including climate change. It has, however, been less successful in terms of ensuring that its many initiatives and outputs have achieved commensurate impact and that task is a major challenge for the future.