By the mid‐nineties, the advantages of such an approach were increasingly recognized. Focusing on
the obligations of the State obligations rather than simply on the rights of the individual, makes it
possible to move economic and social rights away from their initially "programmatic" nature to
becoming enforceable rights, determinate enough for a "violations" approach to become plausible.
However, useful though as it is as an analytical tool, the respect‐protect‐fulfil typology of States'
obligations does not provide all answers. For the typology remains essentially static. It does clarify
what conduct may be expected from States given a certain level of enjoyment of the right to food,
the right to education, or the right to housing. It is consistent with the idea, put forth already in the
late 1970s, that at a minimum, a good faith interpretation of the Covenant requires that States move
towards the realization of the economic and social rights that it enumerates, which renders highly
suspect any deliberately retrogressive steps. But the typology is unhelpful, in and of itself, to
determine how much efforts the State must make in order to gradually improve the level of
enjoyment of the right in question, or the speed at which the State must go about "progressively
realizing" the right. Moreover, it presents a major disadvantage: in low‐income countries, where the
rights of the Covenant are only realized to a weak degree, it clearly cannot be enough to demand
from the government that it "respects" existing levels of enjoyment of the right, and that it
"protects" such enjoyment by controlling private actors, while leaving it to the State's appreciation
how much more it should do beyond that. The respect‐protect‐fulfil typology, in sum, provides a grid
of analysis; but it remains insufficient to provide a benchmark.
II. The question of justiciability
The apparent vagueness of economic and social rights still constitutes the main obstacle to their
enforcement by courts or quasi‐judicial mechanisms. The contributions collected in Part II of this
volume provide a summary of the debate on this issue, focusing successively on justiciability at the
domestic level (Chapters 3 to 5) and on enforcement by the Committee on Economic, Social and
Cultural Rights at international level (Chapters 6 and 7). There is general agreement that effective
remedies both at national and at international level are indispensable for the safeguard of the
human rights of the individual. And the progress made in this area over the past few years is
impressive.
At domestic level, a rich jurisprudence in the area of economic and social rights is emerging. This is
encouraged by the Committee on Economic, Social and Cultural Rights which. In a General Comment
it adopted in 1998, the Committee made clear its expectation that the States parties to the Covenant
should give effect to this instrument in the domestic legal order: it stated that "the Covenant norms
must be recognized in appropriate ways within the domestic legal order, appropriate means of
redress, or remedies, must be available to any aggrieved individual or group, and appropriate means
of ensuring governmental accountability must be put in place" (CESR (1998a): para. 2). Though there
exists a notable difference in this regard between the International Covenant on Civil and Political
Rights, which requires from States that they “develop the possibilities of judicial remedy” (article
2(3)(b)), and the International Covenant on Economic, Social and Cultural Rights, which is silent on
this issue, the Committee takes the view that the requirement to ensure access to effective remedies
follows from the duty of States to move towards the full realization of the rights recognized in the
Covenant "by all appropriate means" (article 2(1)): a State that would entirely exclude the
competence of courts to adjudicate claims relying on the Covenant, the Committee suggests, not
only would in fact be seeking to justify a failure to comply with its international obligations by
invoking provisions from its domestic legal order ‐‐ which obviously cannot be tolerated, as
confirmed by article 27 of the Vienna Convention on the Law of Treaties (1969) ‐‐; it also would not
be acting in the spirit of the Universal Declaration of Human Rights, article 8 of which refers to
effective remedies for violations of human rights without making any distinction between different
categories of rights.
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CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction