Giving Meaning to Economic, Social, and Cultural Rights

1. Toward the Institutional Integration of the Core Human Rights Treaties

1 Toward the Institutional Integration of the Core Human Rights Treaties c r a i g s c o t t By its nature as a pronouncement of high normative principles, the Universal Declaration of Human Rights (UDHR) did not address the hard questions related to the creation of institutions to begin the process of bridging the gap between statement of ideals and practical realization. However, starting with the grand bifurcation that produced the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) as the two institutionally separated offspring of the UDHR, the UN human rights treaty order has evolved in such a way that the UDHR’s inclusion of the entire range of then-recognized human rights in one authoritative instrument has become fragmented. We now have six core conventions each with its own treaty body charged with interpreting and monitoring compliance with its own instrument.∞ This chapter builds on works that seek to make a case for a much less category-bound approach to thinking about human rights.≤ The theme which unites these works with the present chapter is the need for a conscious and radical breaking down of the normative boundaries among the categories framed by each of the human rights treaties and for a complementary ‘‘interactive reformation’’ of the treaties’ institutional orders in order to harness the benefits achievable through dialogue across diverse perspectives in the juridical construction of human rights knowledge. The argument in the first work, ‘‘Reaching Beyond,’’ was that we must strive to make the original promise of the UDHR—that its human rights represent an integrated bundle of fundamental interests—the overarching premise of the current six-treaty order. An analytical shift is required to enable us to search out ways to approach received categories (economic, social, and cultural rights, women’s rights, and so on) with a certain wariness of the aptness of those categories and with an associated willingness to cross to and fro among categories. We must further be prepared to engage in category crossing–and category combining—to the point that we begin to defy the categories themselves by developing our shared sense of when it is awkward, usually unhelpful, and often even harmful to understand a given rights claim or context in terms of existing categories. Harm is exacerbated when we approach a right’s content as involving only a single category of rights as contained in the one treaty that is subject to interpretation or application.≥ 8 Craig Scott In the second work, ‘‘Bodies of Knowledge,’’ the context was set by recent recommendations that consolidation of the six treaty bodies into one or two bodies should be on the UN reform agenda. It was argued that harnessing of diversity must be central to any consolidation reforms and that diversityenhancing initiatives must start immediately with respect to the current sixcommittee order, in part because practical experimentation with promoting diversity will provide valuable lessons at the institutional design stages of any eventual consolidation project. But the central thrust of the argument was that such an approach was independently desirable quite apart from whether treaty-body consolidation is in the cards. Two premises were—and remain—central. The first is that superior collective judgment is exercised when multiple perspectives are encouraged to interact with each other in coming to grips with any given normative issue or decision. The second is that, in order for diverse perspectives and actors to interact, there must first be a commitment to ensuring diversity within the composition of the membership of collective decision-making bodies. Diversity multiplies perspectives , while the need for decision making necessitates that those perspectives engage each other. Diversity helps oust monological reasoning in favor of dialogical reasoning, making it less likely that reasoning will take place within the four corners of a single person’s limited knowledge and more likely that it will take place in the context of the necessity to test one’s assumptions and intuitions against those of others. The operative good of a ‘‘dialogical universalism’’ is knowledge and the perspectives that adhere to knowledge. In somewhat oversimplified terms, we can think of ‘‘social experience ’’ and ‘‘disciplinary expertise’’ as the two main forms of knowledge relevant to the juridical construction of normative knowledge.∂ ‘‘Bodies of Knowledge’’ noted but bracketed a third form of diversity of knowledge in the human rights treaty context which fuses diversities of expertise and experience, namely, diversity of ‘‘normative focus.’’ This...