I Book Review: Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit
| DOI | 10.1177/016934410602400112 |
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| Subject Matter | Part D: DocumentationI Book Review |
I BOOK REVIEWS
Mary Dowell-Jones,
Contextualising the International Covenant on Econo-
mic, Social and Cultural Rights: Assessing the Economic Deficit
, Martinus
Nijhoff, Leiden, 2004, 214 p., ISBN: 90-04-13908 7*
Mary Dowell-Jones’ book, based on a doctoral dissertation, poses a challenge to
proponents of economic and social rights generally, and legal specialists on the
International Covenant on Economic Social and Cultural Rights (ICESCR) in
particular. Her central argument is that ‘a key weakness of the Covenant is its macro-
economic decontextualisation: macro-economic insights are rarely, if ever, included
in discussion of ICESCR provisions. This lack of interdisciplinary critique is a major
impediment to the pragmatic development of a text designed to mandate certain
outcomes of economic processes as in conformity with basic standards of humanity’
(p. 2).
Dowell-Jones seeks to understand from an economic standpoint some of the key
phrases of the Covenant, including ‘progressive realisation’, and ‘maximum of
available resources’, as well as later doctrinal advances such as ‘minimum core
content’ and ‘obligations to respect/protect/fulfil’. In the process, she reopens
many questions which most human rights lawyers would like to consider closed. But
her intention is not to attack or denigrate economic and social rights. Hers is a
constructive agenda of improving the capacity of the Covenant and its supervising
Committee to strengthen the enjoyment of economic and social rights (cultural
rights are, as in much of the literature, pretty much ignored).
This study elucidates certain obstacles in the way of implementation of the
Covenant that are generally neglected in the literature. The first is the doctrine of
‘progressive realisation’. The State’s obligation to progressively improve citizens’
enjoyment of economic and social rights appears to be premised on a tacit
assumption that its economy is also progressively improving. But this is a very outdated
developmentalist assumption. As Dowell-Jones points out, economies are neither
static nor on a continual growth path. It is difficult to see how States can be held to an
obligation to progressively realise rights when their economy stagnates or even
collapses. In this context, she argues, the principle of non-retrogression also ‘appears
to ‘‘punish’’ good behaviour: those States parties who implement higher levels of
protection are under a more clearly formulated duty than those who do nothing’ (p.
52). In practice however, Dowell-Jones discovers that in its consideration of the report
of the war-torn and destitute Democratic Republic of Congo, the Committee did not
even condemn the failure to satisfy the minimum core content of certain rights as a
violation of the Covenant. Thus, the Committee itself turns out to waver over whether
even minimum core content obligations are resource-dependent or absolute.
The book also makes a valid point regarding the distinction between so-called
‘positive’ and ‘negative’ rights. Human rights lawyers have been at pains to
demonstrate that an artificial distinction between ‘cost-free’ civil and political rights
PART D: DOCUMENTATION
Netherlands Quarterly of Human Rights, Vol. 24/1, 163-182, 2006.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 163
* Marlies Glasius is a Research Fellow and a Lecturer in NGO Management at the London School of
Economics and Political Science, London, United Kingdom.
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