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Measuring Compliance
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rise to rights that are “next to empty”9 since the phrase gives no guidance
as to what is required by the duty-bearer. In Thomas Pogge’s edited volume
on poverty and human rights, Tom Campbell argues that the absence of a
systematic mechanism for guiding resource redistribution affects “not only
the problem of identifying precise human rights obligations . . . but also the
prospect of establishing legal claims.”10 These, and other examples,11 serve
only to highlight the intractability of determining the exact scope of social
rights and their corresponding obligations.
I argue in this article, however, that there are difficulties involved in
dealing with the dilemma does not mean that the task is impossible or that it
should be abandoned; on the contrary. In setting out to deal meaningfully with
the dilemma, the essential challenge rests on developing an understanding
of how the notion of maximum available resources can be operationalized
so that it is then possible to arrive at a standard by which a judgment can
be made as to when and why the identification of a particular unsatisfied
social need indeed signals a violation of social rights. This article argues
that such a challenge is potentially surmountable. But, in so doing, the challenger will require multi-disciplinary tools; namely, those from economics.
While a research position that advocates quantitative empirical approaches to normative questions about human rights is by no means novel,12
what this research does specifically is go beyond the general assertion that
empirical methods to normative questions can be useful. What it adds to
the existing discussion is essentially two things. First, the article provides
an unraveling of the elusive notion of maximum available resources. And
second, by turning to economics to provide a stylized way of thinking about
compliance, it provides a methodological sketch for determining the type
and standard of social welfare that social rights guarantee for individuals
under resource scarcity and offers a way of signaling the degree to which
this standard is in fact being met. The argument has four parts. First, Section
II sets the scene within which social rights are to be analyzed and traces
their foundations. It argues that social rights are conditioned or limited by
9. Id.
10. Tom Campbell, Poverty as a Violation of Human Rights: Inhumanity or Injustice? in
Freedom From Poverty as a Human Right: Who Owes What to the Very Poor? 58 (Thomas
Pogge ed., 2007).
11. See, e.g., Economic, Social And Cultural Rights: A Textbook (Asbjørn Eide, Catarina Krause,
& Allan Rosas eds., 2d ed., 2001); Magdalena Sepúlveda, The Nature of the Obligations Under
the International Covenant on Economic, Social and Cultural Rights (2003); Core Obligations:
Building a Framework for Economic, Social and Cultural Rights (Audrey Chapman & Sage
Russell eds., 2002); Matthew C. R. Craven, The International Covenant On Economic, Social,
And Cultural Rights: A Perspective on its Development (1995).
12. Todd Landman, Rigorous Morality: Norms, Values and the Comparative Politics of Human Rights, 38 Hum. Rts. Q. 1 (2016) (providing a thoughtful note tracing the history
of examples of empirical analyses of normative questions).