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[Vol. 33: 113
Committee (and the General Comments
it issues) likewise loses legal
authority.
The focus on consensus is endorsed by many commentators, who are
eager to establish mechanisms that mo nitor economic and so cial rights and
can operate without the cooperation of pa rticular state parties in delivering
reports.176 An international group of experts gathered in 1997 to assess the
implementation of the Covenant. Sim ilarly, they reite rated the continued
importance of consensus, registered by state practice, holding that “the
application of legal norms to concret e cases and situations by international
treaty monitoring bodies as well as by domestic courts have contributed to the
development of universal minimum st andards and the common understanding
of the scope, nature and limitation of economic, social and cultural rights.” 177
To understand this dynamic, it is impo rtant to evaluate the operation of
consensus as constitutive of the minimum core.
B.
Consensus as a Normative Co
Government
ncept: Sovereignty and Self-
I argue that the Consensus Appro ach is no less normative than the
Essence Approach, differin g only because it reache s for cons ensus—itself a
norm—over the val ues of human dignity or basic needs. In the sense that
consensus is valued as a norm for
its own s ake (rather than valued
instrumentally, for its ability to guide what will satisfy some norms that resist
direct articulation or clarification), its importance lies in its ability to deliver
legitimacy to the operation of both international and constitutional law. In this
sense, consensus bears a relation to—and may be a proxy for—the more
stringent requirement of st ate consent, itself the basi c creed of in ternational
self-rule in constitutional law. 179
law, 178 and to the ideal of democratic
(formerly the United Nations Comm ission for Human Rights) was a resolution on an Open-Ended
Working Group on an Optional Pr otocol to the Covenant. See U.N. Econ & Soc. Council [ECOSOC],
Comm’n on Human Rights, Economic, Social and Cultural R ights: Report of the Open-Ended Working
Group to Consider Options Regarding the E laboration of an Optional Protocol to the International
Covenant on Economic, Social and Cu ltural Rights on Its Third Session , U.N. Doc. E/CN.4/2006/47
(Mar. 14, 2006) ( prepared by Catarina de Albuquerque). But cf. Dennis & Stew art, supra note 158
(criticizing attempts to establish a complaints mechanism).
176. Eibe Riedel, New Bearings to the State Reporti
ng Procedure: Practical Ways to
Operationalize Economic, Social and Cultural Ri ghts—The Example of the Right to Health
, in
PRAXISHANDBUCH UNO: DIE VEREINTEN NATIONEN IM LICHTE GLOBALER HERAUSFORDERUNGEN [UN
MANUAL, THE UNITED NATIONS IN THE LIGHT OF GLOBAL CHALLENGES (author’s trans.)] 345, 347
(Sabine von Schorlemer ed., 2003) (noting the r ecent trend by the Co mmittee to undertak e country
analyses in the absen ce of the State Party and to offer Concluding Observ ations on the basis of
information presented by specialized agencies and nongovernmental organizations).
177. Maastricht Guidelines on Violations of Economic, Social and Cultural R ights, supra note
41.
178. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 4 (6th ed. 2003)
(describing the sources of intern ational law as what count as “ evidences of the existences of consensus
among States concerning particular rules
and practices” (em phasis removed)); J.G. MERRILLS,
ANATOMY OF INTERNATIONAL LAW: A STUDY OF THE ROLE OF INTERNATIONAL LAW IN THE
CONTEMPORARY WORLD 1-5 (describing international law as “an agreement” between states).
179. For a classic expression, see S tephen Holmes, Precommitment and the Parad ox of
Democracy, in CONSTITUTIONALISM AND DEMOCRACY 195, 195-97 (Jon Elster & Rune Slagstad eds. ,
1988). See also Bruce A. Acker man, Discovering the Cons titution, 93 Y ALE L.J. 1013, 1022 (1984)
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