and moving backwards along the causality chain to identify the policies that explain the outcomes, it
avoids falling into the trap of presupposing that there are certain policies valid across time and
geography to address social and economic deprivation. Instead, there is room for deliberation: where
one country from a group underperforms, the question must be asked why it does not succeed, and
whether, given the constraints that country faces and in the light of how other countries at a same
level of development address similar constraints, it could perform better.
However, even placing Felner's proposals under the best possible light, it fails on one point: it does
not take into account that certain obstacles that appear in a static perspective as being constraints
imposed on the State, can be treated in a dynamic perspective as a State's own creation. This is in
part compensated by Felner's proposal to develop cross‐country comparisons across time, in order to
show, for instance, that "while India had a much higher income growth than its neighbors in South
Asia, its reduction in the child mortality rate during the same period was one of the lowest in this
sub‐region", or that "the proportion of urban Kenyans with access to an improved water source has
been declining since 1990, in contrast to many of Kenya’s neighbors that have made progress during
the same period" (Chapter 11: 151). But even that would not address explicitly the question of the
shifting boundary between what the State may and may not be held responsible for in the
assessment of the duty of progressive realization: if India were to impute its failure to reduce child
mortality to the inadequate feeding practices by women, and if Kenya were to attribute its poor
record on access to water and sanitation to budgetary constraints, should these factors be treated as
exogenous or as endogenous? And if treated as exogenous in the short run (the State, say, was
surprised to find that increases in food availability did not result in improved nutritional outcomes
due to poor feeding practices), should they not be treated as endogenous in the long run (after the
State had time to conduct information campaigns towards the population about feeding infants)?
This is the challenge associated, in legal thought, with the realist school of jurisprudence (for
contemporary approaches in the same vein, see Sunstein 1987 or Tribe 1989) ; it is one that still must
be met in scholarship on economic and social rights.
IV. Economic globalization
Chapters 14 to 20 address the impacts of economic globalization on economic, social and cultural
rights, and how such impacts might be better taken into account. Economic globalization is both a
legal phenomenon, characterized by a web of international agreements that facilitate cross‐border
trade and investment flows, and the result of technological developments, including the reduced
costs of transportation and of communication. The international law of human rights is poorly
equipped to deal with these developments. It faces five major challenges in this regard.
1. The fragmentation of international law
A first challenge is the fragmentation of international law. International trade and investment law,
international environmental law, international human rights law, and other regimes of international
law, have increasingly developed in isolation from one another, each with their own set of norms,
specialized dispute‐settlement bodies, and communities (Simma 1985; International Law
Commission 2006). As a result, inconsistencies may emerge; and given the limits to the jurisdiction of
the International Court of Justice, they may never be addressed authoritatively. The implication is
that economic globalization ‐‐ as the product of trade and investment liberalization ‐‐ may be
insufficiently informed by human rights considerations. Trade and investment agreements may
either impose on States certain obligations that conflict directly with their obligations under human
rights instruments, or make it more difficult for them to comply with such obligations, particularly
those that concern the progressive realization of economic and social rights.
26
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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