I.

THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS
3. The International Covenant on Economic Social and Cultural Rights was
adopted by the United Nations General Assembly in 1966, simultaneously with the
International Covenant on Civil and Political Rights (ICCPR). The ICESCR entered into
force on 3 January 1976 after ratification by 35 States.

4. The initial idea was to draft one covenant in line with the Universal Declaration
on Human Rights of 1948, containing both civil and political rights, and economic,
social and cultural rights. This original intention was however thwarted by the
ideological discussion on the nature of human rights between East and West in the
context of the Cold War. The West basically argued that ESC rights could not be
placed on the same footing as civil and political rights, as ESC rights were not
legally justiciable.

This ideological quarrel led to the adoption of two covenants: the ICCPR, containing
the so-called rights of the first generation (blue rights going back to the American
and French Revolution in the 18th century), and the ICESCR, containing the so-
called rights of the second generation (red rights going back to the Mexican and
Russian Revolution in the beginning of the 20th century).

Being treaties, both International Covenants are legally binding for states after
ratification. So far, the ICESCR has been ratified by 145, and the ICCPR by 147
states.
Rights covered by the ICESCR
the right to self-determination, by virtue of which peoples freely determine
their political status and freely pursue their economic, social and cultural
development (Article 1)
the equal right of men and women to the enjoyment of all economic, social
and cultural rights (non-discrimination) (Article 3)
the right to work, which includes the right of everyone to the opportunity to
gain his living by work which he freely chooses or accepts (Article 6)
the right to the enjoyment of just and favourable conditions of work, which
ensure (a) remuneration which provides all workers as a minimum with fair wages
and equal remuneration for work of equal value, and with a decent living for
themselves and their families; (b) safe and healthy working conditions; (c) equal
opportunity to be promoted in his employment to an appropriate higher level,
subject to no considerations other than those of seniority and competence; and (d)
rest, leisure and reasonable limitation of working hours and periodic holidays with
pay, as well as remuneration for public holidays (Article 7)
 the right to form trade unions and to join the trade union of ones choice; the
rights of trade unions to establish national federations, and the right of the latter to
form or join international trade-union organisations; the right of trade unions to
function freely; and the right to strike (Article 8)
the right to social security, including social insurance (Article 9)
the right to maternity leave; the protection of children and young persons
from economic and social exploitation, and the prohibition of child labour (Article
10)
the right to an adequate standard of living for oneself and ones family,
including adequate food, clothing and housing, and to the continuous improvement
of living conditions (Article 11)
the right to the enjoyment of the highest attainable standard of physical and
mental health (Article 12)
(a) the right to education: primary education compulsory and available free to
all; secondary education generally available and accessible to all; higher education
equally accessible to all; (b) freedom of parents to choose schools other than those
established by the public authorities; freedom to establish and direct educational
institutions (Article 13)
the right to take part in cultural life, to enjoy the benefits of scientific progress
and the right of the author to benefit from the protection of the moral and material
interests resulting from any scientific, literary or artistic production (Article 15).

All are individual rights, except for the first one, namely the right to self-
determination, which is a right of peoples.

1. Notwithstanding their equal recognition de jure, the ICCPR and the ICESCR
have been treated differently de facto from the beginning. The differential
treatment is most obvious in the weaker means of monitoring under the ICESCR.

Under the ICCPR, the Human Rights Committee, composed of independent experts,
was immediately set up to supervise the Covenant. The Human Rights Committee
can monitor state compliance with the Covenant in three different ways: through
mandatory periodic reporting by State Parties (Article 40 ICCPR), through an
optional interstate complaint procedure and a friendly settlement procedure
(Articles 41-42 ICCPR), and through an individual complaint procedure (1966
Optional Protocol).

2. No independent supervisory body was created under the ICESCR: the formal
supervisory body is the Economic and Social Council of the UN (ECOSOC), which is a
political body (Article 16 ICESCR). After years of ineffective monitoring by a
politically composed Working Group, a committee of independent experts was
established in 1985 by an ECOSOC resolution: the Committee on Economic, Social
and Cultural Rights.[1] It held its first session in 1987.

Furthermore, only one monitoring mechanism is provided for, namely the

submission of reports by states (Article 16 ICESCR). Since 1988, states are expected
to report every five years on the entire Covenant in one single and comprehensive
report. Neither an inter-state nor an individual complaint procedure is currently
available. However, discussion on the establishment of an individual complaint
procedure through the adoption of an OP to the ICESCR has taken place since the
early 90s. The issue of an Optional Protocol will be dealt with more extensively in
section III, but first we turn to some of the moot points regarding ESC rights.