148 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 33: 113 social rights are and what they should be. Moreover, the Consensus Approach founders on its inability to give appropriate guidance on the decision as to whose consensus is to count: judicial consensus as a special place for unfolding reason; governmental and intergovernmental declarations as a more appropriate test for legitimate law ( captured at a particular, normatively charged moment or subject to ongo ing development); or the consensus established between special experts in policy areas influencing economic and social rights (such as those drawn from public health, education, housing, or land reform areas), who are more familiar with the institutions and organizations that constitute the concret e efforts to deliver on the material requirements behind rights. The “lowest common denominator” implication is pa rticularly problematic for approaching the content of economic and social rights. The dearth of consensus is due in part to the late secularization of the protection of material interests in human rights hist ory compared with other categories (or “generations”) of rights.201 It is also a feature of the ideological disagreements of the Cold War period, when West ern governments worked actively to demote the importance of economic and social rights 202 and when the human rights nongovernmental organizations hea dquartered in the West, including Human Rights Watch and Amnesty International, followed suit.203 Yet even with the end of this polar ization, consensus continues to lead t o conservative and abstract expressions of the content of econom ic and social rights. Especially in the case of the justification for self-government, the most comprehensive version of agreement represents the thinnest or broadest (as well as lowest) common d enominator. As a long-st anding criticism of the treaty system makes clear, the requirement for consensus across different legal systems will impede a norm’ s progress and development. 204 Practically, this leads to a bias towar ds the stat us quo, as well as to de liberately vague, uncontroversial, and uni maginative expressions. As o ne observer notes, the choices for an international organizati on to develop a norm across widely variant legal, cultural, and economic refe rence points are to do nothing, or to do very little. 205 Consensus on rights may negl ect or dist ort the duties 201. See, e.g., THE HUMAN RIGHTS READER: MAJOR POLITICAL WRITINGS, ESSAYS, SPEECHES, AND DOCUMENTS FROM THE BIBLE TO THE PRESENT (Micheline R. Ishay ed., 1997) [hereinafter T HE HUMAN RIGHTS READER] (emphasizing the humanism within religious expressions of rights, their later secularization into c ivil and politic al rights, the socialist challenge, a nd adaptations into th e rights discourse of new social movements). 202. Alston & Quinn, supra note 27. For a description of this tension as far back as the UDHR, see GLENDON, supra note 113, at 115-17. 203. David P. Forsythe & Eric A. Heinze, On the Margins o f the Human Rights Discourse: Foreign Policy and International Welfare Rights , in ECONOMIC RIGHTS IN CANADA AND THE UNITED STATES 55, 63 (Rhoda E. Howard-Hassman & Claude E. W elch, Jr. eds., 2006). A lack of m otivation is still discernable. See Kenneth Roth, Defending Economic, Social and Cultur al Rights: Practical Issues Faced by an International Human Rights Organization , 26 HUM. RTS Q. 63, 65-72 (2004) (suggesting methodological challenges and a sense of futility as the cause). 204. See Bruno Simma, Consent: Strains in the T reaty System, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW 485, 494 (R. St. J. Macdonald & Douglas M. Johnston eds., 1983) (contending that the “lowest com mon denominator” provisions deem ed necessary to encourage widespread ratification may diminish the entire exercise). 205. Andrew Byrnes, Toward More Effective Enforcement of Women's Human Rights thr ough the Use of International Human Rights Law and Procedures , in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 189, 202 (Rebecca J. C ook ed., 1994) (“Under a universal hum an