The Committee on Economic, Social and Cultural Rights—The Power of Subjective Rights?

Abstract

Abstract The perception of the nature and standing of economic, social, and cultural rights (ESCR) has significantly changed and more than ever corresponds to the spirit and letter of the 1993 Vienna Declaration and Programme of Action. However, it would be difficult to overlook the residual impact of the scepticism towards these rights. From the very beginning of its existence, the Committee on Economic, Social and Cultural Rights has devoted continuous efforts to address said scepticism, focusing, inter alia, on three fundamental issues: the dependence of the implementation of ESCR on the resources available to states; the general articulation of relevant standards; and the related denial of subjectivity and justiciability of these rights. This article sketches out the Committee’s interpretation of some of the provisions of the International Covenant on ESCR and its Optional Protocol that are key to the legal standing of the Covenant rights, such as the obligation to use the maximum of available resources, the principle of progressive realization of ESCR, the standard of reasonableness, and the essential (core) content of rights and the minimum core obligations of states. The article concludes that the Committee has made a considerable contribution to the recognition of the subjective nature and justiciability of ESCR. Looking at the Committees approach over the years since its creation, it can be seen that it has consistently developed its doctrine of interpretation of the Covenant and its standards. The case law under the OP not only serves the protection of victims but has also enabled the Committee to expand its interpretation of ESCR and apply them as subjective and justiciable rights.