economic and social rights based on States' reports, and allows the Inter‐American Commission and
Court of Human Rights to receive individual petitions alleging violations of trade union rights or the
right to education (respectively protected under articles 8(1) and 13 of the Protocol) (see Melish
(2002)).
This evolution was further strengthened at universal level by the agreement on the Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol was
adopted by the United Nations General Assembly, symbolically, on 10 December 2008, sixty years
after the Universal Declaration of Human Rights. It was the result of a long battle, that really began in
the course of the preparation of the World Conference on Human Rights held in Vienna between 14
and 25 June 1993. The World Conference on Human Rights stated its support for the elaboration of
such a protocol, encouraging "the Commission on Human Rights, in cooperation with the Committee
on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the
International Covenant on Economic, Social and Cultural Rights" (Vienna Declaration and Programme
of Action (1993): para. 75). The contributions of Michael Dennis and David Stewart and of Beth
Simmons, that appear respectively as chapters 6 and 7 of this volume, are representative of a range
of views that have been expressed on the usefulness of attributing this new competence to the
Committee on Economic, Social and Cultural Rights: though most authors have taken the position
that, thanks to the adoption of the Optional Protocol, the Committee henceforth would be in a
position to define with greater clarity the implications of the rights of the Covenant, thus overcoming
the suspicion that such rights are too vague to form the basis of monitoring by independent experts
(Alston (1996); Coomans and van Hoof (1995); Vandenhole (2003); De Schutter (2006); Mahon
(2008); Langford (2009); de Albuquerque (2010)), some, like Dennis and Stewart or, in another vein,
Tomuschat (2005), have denounced this as an illusion : the enforcement of economic and social
rights at international level, according to these authors, should not be seen as a substitute for
development policies that will only produce results in the long term.
It is of course true that uncertainties remain as to the precise significance of some of the rights listed
in the Covenant, particularly in the context of individual communications where the framing may be
different than that used in State reporting procedures. Yet, as remarked by Philip Alston in the plea
he presented in 1995 for a communications procedure before the Committee on Economic, Social
and Cultural Rights, we should avoid being caught into a "vicious cycle" in which "no innovative
procedures are adopted on the grounds that the rights remain normatively under‐developed and no
normative development occurs because new procedures are studiously avoided" (Alston (1996): 51‐
52). It is this vicious cycle that may now be broken. Instead, as Langford notes in Chapter 4 of this
volume, a virtuous cycle is emerging, in which advances of the jurisprudence on economic and social
rights before domestic courts make the development of international monitoring mechanisms to
enforce these rights increasingly plausible ; this in turn shall gradually allow the emergence of tools
that national courts may use to adjudicate claims based on the rights to adequate housing, to food,
to healthcare, or to education. And, as regards the argument that the recognition of rights to health,
to education or to housing are not a substitute for development policies that seek to create these
outcomes, it is clear that we are not facing mutually exclusive alternatives. Quite to the contrary: as
discussed further in the introduction and in Part V of this volume, economic and social rights can
support development, and ensure that policies that seek to overcome deprivation of whole
population will be better informed, better implemented, and ultimately more effective.
Unfortunately, these responses are not sufficient. In a way, they still beg the question of justiciability:
even if we agree that the emergence of a jurisprudence on economic and social rights shall, in time,
concretize sufficiently rights such as the right to food or the right to housing, which tools shall allow
such jurisprudence to emerge? How are jurists to use these rights in their practice? The question of
the indeterminate character of many so‐called "social" rights is central to this discussion. According
to the argument of indeterminacy, such rights are not sufficiently well‐defined in order to lend
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CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction