later; but the damage caused to the understanding of human rights and to how they relate to States'
duties took half a century to repair.
I. The nature of economic, social and cultural rights
The essays collected in this volume are a chronicle of the efforts that developed over the past two
generations to bridge the gap between the two categories of rights. The battle was fought on
different fronts. The controversies initially centered on the nature of civil and political rights, on the
one hand, economic, social and cultural rights, on the other hand, and whether the two families of
rights could be assimilated to one another. The dispute first unfolded in the 1970s and 1980s.
Together with the Belgian jurist, Mark Bossuyt (Bossuyt 1978), the Dutch lawyer E.W. Vierdag from
the University of Amsterdam was among the most vocal opponents to the assimilation of both sets of
rights. Vierdag's article reproduced in this volume (Chapter 1) is significant not only for the summary
of the arguments it provides, that helps understand the widespread scepticism that�� existed then
towards economic, social and cultural rights as human rights, but also for the time at which it
appeared: by 1978, the two 1966 covenants had only recently entered into force, forming together
with the Universal Declaration of Human Rights the "International Bill of Rights", and the national
authorities ‐‐ including courts ‐‐ were confronted with the first time with the question of which duties
were imposed under these respective instruments. The position of Vierdag was that the "rights"
listed in the Economic, Social and Cultural Rights Covenant were neither enforceable in a court of
law, nor sufficiently well‐defined ‐‐ though it was unclear whether the lack of definability of
economic and social rights was considered a cause of their lack of justiciability, or rather a
consequence of courts being denied the power the adjudicate such rights. Though contested by
some (in particular van Hoof 1984), that position was consistent with the prevailing opinion at the
time : it was, to a large extent, conventional wisdom. It was said by a law and development scholar
that though the International Covenant on Economic, Social and Cultural Rights "speaks in the
language of rights, [it] refers to the realities of programs" (Trubek 1984: 231); Brownlie, a leading
international law scholar, described the Covenant as "programmatic and promotional" in the third
edition of his Principles of Public International Law, published in 1979 (Brownlie 1979: 572‐3).
In parallel however, efforts developed to overcome the apparent vagueness of the International
Covenant on Economic, Social and Cultural Rights, and to bridge the gap between the two sets of
rights. A first major doctrinal contribution in this direction was the introduction by Asbjørn Eide, in
the early 1980s, of a threefold typology of States' duties corresponding to the rights of the individual.
By the late 1970s, Eide had come to the conclusion that an effective guarantee of human rights
required that the individual be protected from interference by the State in the exercise of certain
freedoms ; that the State protect the individual from interference by other actors, whose conduct
the State is in a position to control ; and that the State provide certain public goods that would be
undersupplied if their provision were left to market mechanisms. Eide presented this tripartite
typology of obligations in 1981 at a United Nations Seminar (Eide 1984); at about the same time, a
similar framework for the definition of States' obligations was being put forward separately by Henry
Shue, a political philosopher at Princeton, in a book dedicated to the role of human rights in U.S.
foreign policy (Shue 1980).
The tripartite typology of States' obligations gradually gained broad acceptance, first among scholars
working on the right to food, and then in the broader area of economic, social and cultural rights. It
was imported into the UN system by Eide himself, after he joined in 1981 the Sub‐Commission on the
Promotion and Protection of Human Rights (then called the Sub‐Commission on Prevention of
Discrimination and Protection of Minorities), as the distinction was elaborated upon in a series of
reports he prepared on the right to food at the��request of the Sub‐Commission (United Nations Sub‐
Commission on Prevention of Discrimination and Protection of Minorities, 1983, 1987 and 1999). The
mental view of jurists working on economic, social and cultural rights gradually came to resemble a
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CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction