Reaching Beyond (Without Abandoning) the Category of "Economic, Social and Cultural Rights"

I. Introduction

One of the dominant normative features of the Universal Declaration of Human Rights (UDHR) ² is the relatively integrated translation of the aspiration to protect human dignity into the enumeration of fundamental human rights. The bifurcation of what is now thought of as the two grand categories of human rights (so-called “civil and political rights” and “economic and social rights”) had yet to occur at the time of the UDHR’s adoption. These categories were progeny of the UDHR, later created through two instruments: the International Covenant on Civil and Political Rights (ICCPR) ³ and the International Covenant on Economic, Social and Cultural Rights (ICESCR). ⁴

This article argues for a return to the original promise of the UDHR: human dignity should be pursued in light of both the overarching purposes and the underlying values of human rights protection, rather than under the constraint of false dichotomies. Thus, while continuing to endorse the argument that more effective inclusion of economic, social, and cultural rights within the community of human rights is fundamentally important, this article may seem to approach this aim in a rather odd fashion. The specific goal is to suggest, with knowing irony, that one may take the category of economic, social, and cultural rights most seriously by not taking it too seriously.

Section II discusses the genesis of this article, by locating it as, in part, a development of my earlier work on the interdependence of human rights norms, and, in part, as a self-critical response to dangers I now perceive. These dangers arguably arise from the excessive focus now placed on distinct legal categories of human rights and on their textualized form in treaties. Thus, Section II discusses the risks of legalistic channeling of human rights discourse, including by a reification of the category of economic, social and cultural rights. Section II advocates a more self-conscious striving for integrated approaches to understanding human rights. These approaches resist allowing the current categorizations of rights to take on a life of their own in such a way that we lose sight of the goals and values that human rights discourse should be serving. By reaching beyond perceived categories of human rights, we are better able to conduct a more purposive analysis that includes paying attention to the instrumental dimensions of rights protection. Such aspirations can be found in the doctrinal emphasis on making rights effective and on open organizing assumptions, such as Professor Lucie Lamarche’s notion of “global interdependence.” ⁵ Section III clarifies the analytical claim that we can, and should, use categories of human rights and query, or challenge, those categories at the same time.

With the concept of interdependence thus understood, Section III continues by exploring five normative relations among rights, commenting on how these relations both transcend and affirm categorical analysis of human rights. In Section IV, the article illustrates the analysis thus far developed by applying it to the situation of migrant worker housing under the European Social Charter. ⁶ Finally, Section V offers concluding comments, focusing on the transition from normative relations to real-world institutional relations.

II. The Need to Reach Beyond Prevailing Categories for a More Integrated Normative Analysis: The Odyssey of Interdependence

A. Interdependence and the Problem of Reifying Categories

This article builds on an agenda with which I have been associated over the past decade regarding the interpretation and protection of international human rights. That work has sought to make the case for legal significance of the normative interdependence of the two grand categories of human rights: civil and political rights and economic, social, and cultural rights. ⁷ Since the earliest attempts to develop this concept of “interdependence,” I warned that reliance on this concept creates a risk of legalistic “rigidification” unless one constantly keeps in mind that the idea of interdependence “has been developed not for the sake of rights but for the sake of persons.” ⁸ The warning took the following form:

The point of reference, in this [article’s] discussion as well as in international human rights law...