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ECONOMIC SOCIAL & CULTURAL RIGHTS
Equality of Rights
UDHR preamble: All rights are indivisible, interdependent
Preamble of both Covenants
Both Covenants came into force in 1976
Have roughly same number of States parties
Equal importance confirmed again in Vienna Declaration of 1993
Inequality of Rights
ICESCR is ‘poor cousin’ of ICCPR
CP rights have long history of legal recognition by national govts (eg Bills of Rights in late 18C)
With ESC rights, international law tends to ‘lead’ national laws
ARTICLE 2(1) ICCPR
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, ...
ARTICLE 2(1) ICESCR
Each State party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, … to the maximum of its available resources, with a view to achieving progressively the full realization of rights recognized in the present Covenant by all appropriate means ...
Article 2(1) ICCPR: immediate, clear, strong
Article 2(1) ICESCR: progressive, vague, weak
Positive/negative dichotomy
RESPECT, PROTECT, FULFIL TYPOLOGY
- expanded meaning of right to life
- see, eg, Arts 23, 24, 27 ICCPR
- freedom of expression + right to education
- Article 26 case law
Examples
Regional treaties
Domestic jurisdictions
eg Sth Africa, India, Latin America
indivisibility
OP to ICESCR
- adopted by consensus in December 2008 (60th anniversary of UDHR)
- entered into force May 2013
Justiciability
Sarah Joseph
Differences in Obligations
TREATY BODIES
Measuring Available Resources
Progressive Obligations
ICCPR has always had a monitoring body (HRC began in 1977)
Committee on ESCR only began in 1987 after ECOSOC proved plainly inadequate in monitoring ICESCR
Budget analysis
NGO FOCUS
- should move forwards
- presumption against retrogression
- benchmarks and goals
Advocacy NGOs (eg Amnesty, Human Rights Watch) have focused more on CP rights.
NGOs focused on ESC rights tend to have more facultative role rather than advocacy and holding govts to account (eg World Vision)
Changing – eg MSF, Oxfam
Normative developments
Violations
Immediate obligations
- identification of violations by commission and omission
- cf Maastricht Guidelines
- non-discrimination - Art 2(2)
- minimum core obligations
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