2008]
The Minimum Core of Economic and Social Rights
143
The Consensus Approach is akin to
the positivist approach of the
Committee, which has relied explicitly on the reports of states parties to
elucidate the developing content of the minimum core. For example, in 1991,
its chairperson, Philip Alston, suggested that “clarification” of the normative
content of the rights to food, hea lth, housing, and edu cation, should “be
achieved through the examination of St ates parties’ reports . . . . [T]he
approaches adopted by States themselves in their internal arrangements (and
explained in their reports to the Comm ittee) will shed light upon the norms,
while the dialogue between the Stat e and the Committ ee will contribute
further to deepening the understanding.”170 It is worth recalling the significant
integration of national economies that was occurring at t he time of thi s
statement.171
The Committee’s heavy focus on state practice is arguably a result of the
absence of an enforceability mechanism under the Covenan t. Unlike the
International Covenant on Ci vil and Political Rights, the Covenant does not
give its Committee the jurisd iction to hear complaints. 172 The development of
an informal jurisdiction to interpret the meaning of state parties’ obligations,
by a close reading and dis tillation of the content of state reports, has thus
allowed the Committee to compensate for it s lack of formal authority to hear
individual complaints and i ssue binding interpretations. 173 According to some
observers, the General Comment s, which have been publis hed from t hese
efforts, have developed an authoritativeness usually reserved for advisory
opinions and enjoy a significant degree of acceptance by st ate parties.174 The
Committee continues to wor k to establish a mor e formal complaints
jurisdiction. 175 If its met hodology deviates too far from consensus, the
170. Philip Alston, The Committee on E conomic, Social and Cultural R ights, in THE UNITED
NATIONS AND HUMAN RIGHTS: A CRITICAL APPRAISAL 473, 491 (Philip Alston ed., 1992) (em phasizing
the importance of state reports and criticizing present performance); see also General Comment No. 3 ,
supra note 1, ¶ 10 (relying on experience “of more than a decade of examining States parties reports”).
171. JEFFREY D. SACHS, THE END OF POVERTY: ECONOMIC POSSIBILITIES FOR OUR TIME 46-47
(2005) (discussing the end of the ce ntral planning, internal econom ic integration, and global econom ic
separation of the second world in 1989 and the nonaligned econom ic independence of the post-colonial
third world).
172. See First Optional Protocol to the Intern ational Covenant on Civil and Political Rights,
Dec. 16, 1966, 999 U.N.T.S. 302; ICCPR,
supra note 38, art. 28 (establishing Hum an Rights
Committee). But see U.N. Econ & Soc. Council [ECO SOC], Comm’n on Hum an Rights, Economic,
Social and Cultural Rights: Report of the Open-Ended Working Group to Consider Options Regarding
the Elaboration of an Optional Pr otocol to the International Covenant on Economic, Social and
Cultural Rights on its First Session, U.N. Doc. E/CN.4/2004/44 (Mar. 15, 2004).
173. For an analysis of how the “concluding observations” work to register noncompliance, see
Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights
in a New South African Constitu tion, 141 U. PA. L. REV. 1, 96-97 (1992); and C RAVEN, THE
INTERNATIONAL COVENANT, supra note 5, at 87-89.
174. M. MAGDALENA SEPÚLVEDA, THE NATURE OF THE
OBLIGATIONS UNDER THE
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 42 (2003) (suggesting the
General Comments are more m eaningful than those issued by the Hu man Rights Committee); see also
CRAVEN, THE INTERNATIONAL COVENANT, supra note 5, at 91 (describi ng the “considerable legal
weight” of the Comm ittee’s interpretations of the Covenant). Although the legal status of the General
Comments is uncertain, the Comm ittee commenced with their publication after an invitation by the
Economic and Social Council which was endorsed by th e General Assembly. G.A. Res. 42/102, at 202,
U.N. GAOR, 42d Sess., 93d plen. mtg., U.N. Doc. A/Res/42/102. (Dec. 7, 1987).
175. There have been long-standing attem pts to create a complaints or comm unications
mechanism. See, e.g., THE RIGHT TO COMPLAIN ABOUT ECONOMIC, SOCIAL AND CULTURAL RIGHTS
(Fons Coomans & Fried van Hoof e ds., 1995). Among the first acts of the new Hum an Rights Council
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