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The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights*

Published online by Cambridge University Press:  07 July 2009

E.W. Vierdag
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What is the legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights (ICESCR)? This question seems simple enough, and every lawyer interested in the international protection of human rights is likely to have come to ponder it at one time or another. Before the Second World War, the international protection of economic and social rights was mainly the concern of the ILO, with its own very specific techniques and procedures. Apart from that, the question of social rights had gained the attention only of some academics. After the War, economic and social rights were included in the Universal Declaration of Human Rights (Articles 22–29), though that is not a binding instrument. There is also, of course, the European Social Charter, concluded in 1961, and in force since 26 February 1965, which is a regional treaty. Since the entry into force of the ICESCR on 3 January 1976, however, there is now a binding and global instrument dealing with the protection of what are generally called “social rights” (in contradisctinction to “civil and political rights”).

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Netherlands Yearbook of International Law , Volume 9 , December 1978 , pp. 69 - 105
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Copyright © T.M.C. Asser Press 1978

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References

1. Adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200 A (XXI) on 16 December 1966. Text in Human Rights. A Compilation of International Instruments of the United Nations (UN 1973), p. 3 et seq. Entered into force on 3 January, 1976. Hereafter referred to as the ICESCR.

2. The genus containing all sorts of fundamental rights is usually (also in UN practice) called: “human rights”; “civil and political” and “economic social and cultural rights” are both species of it. For the sake of convenience the rights of the ICESCR will be referred to simply as “social rights”, the current – albeit totally inadequate – term in use on the Continent.

3. A survey and description in English of concepts, terminologies and approaches may be found, e.g., in Roscoe, Pound, Jurisprudence, Vol. IV (St. Paul, 1959) p. 56 et seq.Google Scholar

4. Cf., e.g., Brownlie, I., Principles of Public International Law 2nd. ed. (Oxford, 1973) p. 39 et seqGoogle Scholar., and Rongeaux, J.P., “Les renvois du droit international au droit interne”, 81 RGDIP, (1977) pp. 362–385Google Scholar. Note – to mention just one example – the numerous instances of this in the EEC-Treaty.

5. For instance, as one of the experts who will have to examine the reports submitted by the States Parties to the ICESCR to the various bodies and agencies referred to in Part IV of the Covenant.

6. “Although international law does not at present recognize, apart from treaty, any fundamental rights of the individual protected by international society as against the State of which he is a national, it does acknowledge some of the principal fundamental rights of the individual in one particular sphere, namely, in respect of aliens. These are entitled to treatment conforming to a minimum standard of civilisation regardless of how the State where they reside treats its own nationals. That minimum standard of civilisation comprises, in particular, the rights of personal liberty and, generally, the right to equality before the law. International tribunals have repeatedly declared it to be a rule of international law. The result, which is somewhat paradoxical, is that the individual in his capacity as an alien enjoys a larger measure of protection by international law than in his character as the citizen of his own State.” Lauterpacht, H., International Law and Human Rights (London, 1950) p. 121.Google Scholar

7. The well-known US-Mexican correspondence on the expropriation of American agrarian property in Mexico remains an eloquent expression of both views. Hackworth, , Digest of International Law, Vol. 3 (Washington, 1942) p. 655 et seqGoogle Scholar. See for a general discussion and further references I. Brownlie, op.cit., p. 507 et seq.

8. Tammes, A.J.P., “The Obligation to Provide Local Remedies”, Van der Molen-Essays (Kampen, 1962) pp. 152–168.Google Scholar

9. Shea, D.R., The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (Mineapolis, Minn., 1955).Google Scholar

10. Report of the Sub-Committee of the League of Nations Committee of Experts for the Progressive Codification of International Law (Guerrero-report, 1926), 20 AJIL (1926), Special Supp., p. 177 et seq., at p. 202. There are, of course, much broader meanings given to the term “denial of justice”. See, e.g., Jiménez de Aréchaga, E., in Sørensen, M., ed., Manual of International Law (London, 1968) pp. 553–557Google Scholar, and Brownlie, op.cit, pp. 514–516

11. See Wilson, R.R., “Access-to-Courts Provisions in US Commercial Treaties” 47 AJIL (1953) pp. 20–48CrossRefGoogle Scholar; idem, US Commercial Treaties and International Law (New Orleans, 1960), Ch. VIII.Google Scholar

12. Art. 7 runs as follows: “Nationals of any Contracting State shall enjoy in the territory of any other Party, under the same conditions as nationals of the latter Party, full legal and judicial protection of their persons and property and of their rights and interests. In particular, they shall have, in the same manner as the nationals of the latter Party, the right of access to the competent judicial and administrative authorities and the right to obtain the assistance of any person of their choice who is qualified by the laws of the country.”

13. Texts in 189 UNTS p. 137 et seq., and 360 UNTS p. 117 et seq., respectively.

14. Article 16. “Access to Courts (1) A refugee (stateless person) shall have free access to the courts of law on the territory of all Contracting States. (2) A refugee (stateless person) shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi (3) A refugee (stateless person) shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.”

15. Cf., e.g., British Digest of Int. Law, Vo. 6 (London, 1965) p. 286 et seq.Google Scholar; Hackworth, , American Digest of Int. Law, Vol. III (Washington, 1942) p. 562 et seq.Google Scholar; Whiteman, , American Digest of Int. Law, Vol. 8 (Washington, 1967) p. 406 et seq.Google Scholar; Kiss, Ch.A., Répertoire de la pratique française en matière de droit international public, Vol. IV (Paris, 1962) p. 380 et seq.Google Scholar; Wilson, op. cit.

16. See the materials presented in Dawson, F.G. and Head, I.L., International Law, National Tribunals and Rights of Aliens (Syracuse University, 1971)Google Scholar, Chapter V: “Access of Aliens to Foreign Tribunals,” pp. 109–157.

17. Verdross, A., “Règles générales concernant le traitement des étrangers”, in 37 Hague Recueil (1931 III) p. 327 et seq. at pp. 382–383Google Scholar: “Si les Etats sont tenus par le droit des gens à accorder aux étrangers certains droits materiels, il est clair qu'ils doivent également être obligés de leur reconnaitre le droit formel d'ester en justice. Car cette faculté n'est que le corrolaire nécessaire des droits matériels qui, sans elle, seraient pratiquement réduits à néant.”

18. See, however, Kelsen, H., Pure Theory of Law (Knight's, M. transl., Berkeley, 1967) pp. 125–146, especially p. 134–135Google Scholar: “(T)he essential element (of a right) is the legal power bestowed upon the (individual) by the legal order to bring about, by a law suit, the execution of a sanction as a reaction against the nonfulfillment of the obligation … Only if the legal order confers such a power are we faced by a ‘right’ in (the) specific, technical sense of the word … “. (At p. 139 of Reine Rechtslehre, 2. Aufl., Wien, 1960).

19. Nørgaard, C.A. observes (from a slightly different point of view): “It is … the prevailing opinion that in order to be a subject of law, a person must be able to enforce his rights…” in The Position of the Individual in International law (Copenhagen, 1962) p. 31Google Scholar. In the Opinion concerning the Jurisdiction of the Courts of Danzig (PCIJ Series B no. 15, of 3 March 1928) the Permanent Court directly connected right and remedy:… “(I)t cannot be disputed that the very object of an international agreement … may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts.” (pp. 17–18).

20. “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.

21. “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

22. Fawcett, J.E.S., The Application of the European Convention on Human Rights (Oxford, 1969) p. 227.Google Scholar

23. “The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.”

24. In his Separate Opinion to the Judgment of the European Court of Human Rights in the Golder case (see n. 62), Judge Verdross makes the interesting observation (with regard to Art. 6(1) of the European Convention) that “a distinction must be drawn between the legal institutions whose existence the Convention presupposes and the rights guaranteed by the Convention. Just as the Convention presupposes the existence of courts, as well as legislative and administrative bodies, so does it also presuppose, in principle, the existence of the right of access to the courts in civil matters; for without such a right no civil court could begin to operate.”

25. Thus Tammes, op.cit., p. 163; also Partsch, K.J., Die Rechte und Freiheiten der europäischen Menschenrechtskonvention (Berlin, 1966) p. 40.Google Scholar

26. “States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from those tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”

27. “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.” This Covenant entered into force on 23 March 1976. For the text see Human Rights. A Compilation of Instruments of the United Nations p. 7 et seq.

28. Roth, A.H., The Minimum Standard of International Law Applied to Aliens (Leiden, 1949).Google Scholar

29. Art. 1 runs, in part, as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

In the most remarkable decision in the case Gudmundsson v. Iceland (Application No. 511/59, decision of 20 December 1960), Yearbook of the European Convention on Human Rights, Vol. 3, 1960 p. 394 et seq.Google Scholar, the European Commission of Human Rights wholly failed to appreciate the words “by the general principles of international law” as a reference to the body of norms of customary international law on the subject, and understood them as limiting the field of operation of Art. 1 to the persons usually protected by those norms, viz., aliens. The Commission even went so far as to say that “… it follows that measures taken by a State with respect to its own nationals are not subject to those general principles of international law in the absence of a particular treaty clause specifically so providing”, (pp. 422–424) thus completely ignoring the very provision it was applying! (or rather: was supposed to apply). See on this further, Schwelb, E., “The Protection of the Right of Property of Nationals under the First Protocol to the European Convention on Human Rights”, 13 American Journal of Comparative Law, (1964) pp. 518–541CrossRefGoogle Scholar. The Commission implicitly abandoned this curious view in the case of the British shareholders (Appl. No. 3039/67, decision of 30 March 1967, Yearbook, Vol. 10 (1967) p. 506 et seq.).Google Scholar

30. “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”

31. The text and the Reports submitted to the ILC are now conveniently reproduced as a whole in García-Amador, F.V., Sohn, Louis B. and Baxter, R.R., Recent Codification of the Law of State Responsibility for Injuries to Aliens (Dobbs Ferry, N.Y., Leyden, 1974) pp. 1–132Google Scholar. Art. 1 runs, in part, as follows: “For the purpose of the application of the provisions of this draft, aliens enjoy the same rights and the same legal guarantees as nationals, but these rights and guarantees shall in no case be less than the ‘human rights and fundamental freedoms’ recognized and defined in contemporary international instruments.” (at p. 129).

32. Thus Tammes observes: “It is an interesting development … that human rights, after having been moulded into shape by a long practice of ‘diplomatic protection of citizens abroad’, now in their turn are used to define the protected rights of aliens.” (op.cit., p. 160).

33. “Nothing in Articles 10, 11 and 14 [freedom of expression, freedom of assembly, and non-discrimination] shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens”.

34. “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.”

35. However, there will be a short digression from this point of departure: the notion of “reflex rights” will be dealt with very briefly, because it might help in understanding the ambiguous legal situation where a rule of international law obliges a State to certain conduct vis-a-vis an individual, while the latter has not been granted a right to this. One may, of course, try to work out other conceptions of right of an individual in international law than the one adhered to here, e.g., on the basis of Lauterpacht, op.cit., pp. 27 et seq., and 54 et seq. It will probably appear, though, that such conceptions (more sophisticated, with more nuances) mainly differ from that adopted here as to the agent and the procedure of enforcement, which anyhow always presupposes the possibility of enforcement. However, our concern is also with the inherent impossibility of enforcement.

36. Art. 2 runs, in part, as follows: “No person shall be denied the right to education.”

37. In this connection it is not necessary to discuss Art. 20 on the prohibition of propaganda for war and of advocacy of national, racial or religious hatred, which does not deal with rights. (Neither does, from the legal point of view, Article 1(1), on “self-determination”).

38. “When not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”

39. Art. 41(1) (c) Civil and Political Rights Covenant; Arts. 2 and 5(2) Optional Protocol.

40. The desirability of international remedies is one of the main preoccupations of Lauterpacht, H. in International Law and Human Rights (see especially p. 48 et seq.Google Scholar), and many other writers. That issue, however important it may be, is not decisive as far as the problem dealt with in this article is concerned.

41. See further on this the Report of June 1929 on the protection of minorities by the League of Nations, in Sohn, L.B. and Buergenthal, Th., International Protection of Human Rights, (Indianapolis, 1973) p. 213 et seq.Google Scholar; also H. Lauterpacht, op.cit., p. 245 et seq.

42. Opinion of the Committee of Jurists on the Szekler petitions (1932), in Sohn and Buergenthal, op.cit., p. 255 et seq.

43. As already mentioned, for the sake of convenience the term “social rights” is generally used. This may cause some confusion later on, however, since an attempt will be made to show that some of these “social rights” are not legal rights, while others can probably only be regarded as legal rights under certain conditions.

44. See for a discussion of social rights in general, Grisel, E., “Les droits sociaux”, Zeitschrift für Schweizerisches Recht, Neue Folge, Vol. 92 (1973) pp. 1–153;Google Scholar also: Tomandl, Th., Der Einbau sozialer Grundrechte in das positive Recht (Tübingen, 1967)Google Scholar; Vers une protection efficace des droits économiques et sociaux? (Brussels, 1973)Google Scholar; Scheider, P., “Droits sociaux et doctrines des droits de l'homme”, Archives de Philosophic du Droit, Vol. XXII (1967) pp. 317–331Google Scholar; there is an English version of this: “Social Rights and the Concept, of Human Rights”, in Raphael, D.D., ed., Political Theory and the Rights of Man, (London, 1967) pp. 81–94Google Scholar; in the same collection see Cranston, M., “Human Rights: Real and Supposed” pp. 43–53Google Scholar; see also Wildhaber, L., “Soziale Grundrechte”, in Der Staat als Aufgabe. Gedenkschrift für Max Imboden (Basel, 1972) pp. 271–291Google Scholar; Brunner, G., Die Problematik der Socialen Grundrechte (Tübingen, 1971)Google Scholar; Szabó, I., Cultural Rights (Leiden, 1974)Google Scholar; somewhat older is van der Ven, F., Sociale Grondrechten (Utrecht, 1952Google Scholar), for a German translation, see Soziale Grundrechte, (Köln, 1963)Google Scholar; obviously, the term “old” is to be taken relatively; a chronological bibliography might start, in modern history, with Thomas, Paine, The Rights of Man, of 1791Google Scholar, cf., Raphael, D.D., “Human Rights, Old and New”, in Political Theory and the Rights of Man, pp. 54–67, at p. 62Google Scholar. For special emphasis on the European Social Charter, see Schambeck, H., Grundrechte und Sozialordnung. Gedanken zur Europäischen Sozialcharta. (Berlin, 1969)CrossRefGoogle Scholar. See for further references the bibliography in Grisel, op.cit., pp. 5–10.

45. Cf., as far as, e.g., Switzerland is concerned – apart from Grisel, op.cit., – the impressive study by Müller, J.P., “Soziale Grundrechte in der Verfassung?”, Zeitschrift für Schweizerisches Recht, Neue Folge, Vol. 92 (1973) pp. 687–964.Google Scholar

46. For Tomandl this is the only criterion by which to identify social rights: “Wir werden daher als soziale Grundrechte nur solche Grundrechte verstehen, deren Inhalt die Verpflichtung von Gemeinschaftsorganen zur aktiven Förderung von Menschen ist.” (loc.cit., p. 6) M. Bossuyt goes even further in this respect (see below, n. 50).

47. See on this, e.g., Schambeck, op.cit, especially Chapters IV and VI, with numerous further references.

48. Cf., L. Wildhaber, op.cit., p. 372 et seq., with further references. A succinct survey of national constitutional provisions is in the Preliminary Study of Issues Relating to the Realisation of Economic and Social Rights Contained in the Universal Declaration of Human Rights and in the Covenant on Economic, Social and Cultural Rights, UN doc. E/CN.4/988 (20 January 1969), p. 44 et seq.

49. Bossuyt, M., L'interdiction de la discrimination dam le droit international des droits de l'homme (Brussels, 1976) pp. 184–217Google Scholar, and especially, “La distinction juridique entre les droits civils et politiques et les droits économics, sociaux et culturcls”, Human Rights Journal, Vol. VIII (1975) pp. 783–813, at p. 789 et seq.Google Scholar

50. More specific than Tomandl, Bossuyt sees the financial contribution of the state as decisive for the distinction: “La cause de la difference entre ‘droits civils’ et ‘droits sociaux’ ne peut s'expliquer que par la présence ou par l'absence d'un apport financier de l'Etat dans la réalisation des droits concernés.” With a view to, e.g., the right to strike and trade union freedom, both laid down in the ICESCR, this seems to be too narrow a position. Bossuyt clearly limits himself to social rights which involve expenditure: “A notre avis l'effort financier se présente…comme le critère permettant de distinguer un droit social d'un droit civil.” And even more strongly: “Il faut toutefois clairement définir le problème, car un droit ne sauiait impliquer un effort financier parce qu'il est un droit social, mais ce droit est un droit social parce qu'il implique un effort financier!” (“La distinction…” etc. at p. 790). See, however, n. 52.

51. Ibid. p. 789–792. See also Table VI in L'interdiction de la discrimination … etc. p. 191.

52. “La distinction … etc.” p. 806. In his comment on the Court's Judgment of 27 October 1975 in the Belgian National Police Union Case (L'interdiction de la discrimination p. 233 et seq.). Bossuyt asserts that if the Court had considered Article 11 of the European Convention to imply the right of the unions to be consulted by the government, this interpretation would have turned trade union freedom into a social right, since it would then require state action (p. 238). But this state action would hardly have any financial consequences!

53. Cf., also J.P. Müller, op.cit., (n. 49) p. 839 et seq.: “justiziabilität als entscheidendes Kriterium für die Wahl der Grundrechtsform.”

54. I. Brownlie, op.cit., p. 555, italics supplied. See the remarks by Paul, Reuter (“Principes de droit international public”, 103 Hague Recueil (1961, II) p. 472 et seq.Google Scholar) on the distinction he makes between “obligations de résultat” and “obligations de comportement”.

55. That is to say, one Covenant on civil and political, as well as economic, social and cultural rights, or two Covenants, as eventually adopted. See – also for references to the relevant UN documents – Sohn, L.B., “A Short History of UN Documents on Human Rights”, in The United Nations and Human Rights, Report of the Commission to Study the Organisation of Peace (Dobbs Ferry, N.Y. 1968) p. 105 et seqGoogle Scholar. See further the statements on this in the General Assembly by Eleanor Roosevelt, René Cassin, and others: GAOR 6th Session (1951), plenary Meeting, pp. 501–518.

56. GAOR 6th Session (1951), 3rd Committee, 368th meeting (13 December 1951) pp. 129–130. See also the Annotation by the Secretary-General on the Covenants, UN doc. A/2929 (1 July 1955) p. 24.

57. Much attention to the differences in the social rights situation in capitalist and socialist legal systems is paid by G. Brunner, op.cit., p. 20 et seq., and 30 et seq., with numerous references to Eastern European practice and literature. See also Duchacek, I.D., Rights and Liberties in the World Today: Constitutional Promise and Reality (Santa Baraba, Cal., 1973) p. 105 et seq.Google Scholar

58. Text from Peaslee, A.J., Constitutions of Nations, vol. III, revised 3rd ed., (The Hague, 1966) p. 989 et seqGoogle Scholar. (Italics supplied). Kartashkin, V.A. offers his view of the Soviet situation in “Covenants on Human Rights and Soviet Legislation” in Human Rights Journal, vol. X (1977) pp. 97–115Google Scholar, from which it appears (p. 103), that in the new Constitution this provision is now Article 40.

59. Cf., G. Brunner, op.cit., pp. 15–16.

60. Grisel, op.cit. (n. 44) pp. 87–88.

61. The same is true of the “cultural” rights of Art. 15 of the ICESCR: Art. 15(1)(c): the right to the protection of the moral and material interests of the author resulting from any scientific, literary or artistic production, and Art. 15(3): the freedom indispensable for scientific research and creative activity.

62. Also, even a provision such as, e.g., Art. 6(1) of the European Convention (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”) raises the same questions as those discussed here concerning education. Does this provision grant a “right to a tribunal”? See Ėissen, M.A., “Le'droit à un tribunal' dans la jurisprudence de la Commission (Européenne des Droits de l'Homme)“, Miscellanea Ganshof van der Meersch, vol. I, (Bruxelles, 1972) pp. 455–485Google Scholar. See for the views of the European Court of Human Rights on the scope of this provision the Judgment of 21 February 1975 in the Golder case; and see also the important Dissenting Opinion to it by Sir Gerald Fitzmaurice.

63. Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), European Court of Human Rights, Judgment of 23 July 1968. Text in Publications of the Court, Series A (1968) p. 4 et seq.

63a. The text of Art. 2(1) is reproduced, in part, supra, n. 36.

64. Judgment of 23 July 1968 pp. 30–31.

65. Especially the Report of the Committee of Experts of 24 February 1951 (Doc. CM/WP VI(51)7), Collected Edition of the “Travaux Préparatoires”, vol. V (Strasbourg, 1964) pp. 1089–1094.Google Scholar

66. With a view to the statements by the Court that will follow, it is revealing to quote from the Report mentioned in the previous note: “Right of Education. As regards the scope of this right, certain delegations agreed with the view of the Assembly and of the Belgian delegation and considered that it should be stated positively [i.e., “Everybody has the right to education”]. Other delegations agreed with the view of the United Kingdom delegate and considered that it should be stated negatively [i.e., as it is now formulated].“ For text see n. 36 above.

The British delegation, supported by the Danish, German and Norwegian delegations expressed the fear that if the right of education were stated positively, it might be interpreted as imposing on the governments the obligation to take effective measures to ensure that everybody could receive the education which he desired.

The other delegations did not share that opinion and pointed out that “the positive formulation did not impose any obligation on the State to provide education.” (p. 1091) Eventually the negative formulation was adopted. In the light of these statements, it is hard to understand what sort of provision these delegates thought they had drafted, and what sort of “right” they thought they had created!

67. “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.

68. Judgment, p. 31 (emphasis added).

69. See also Bossuyt, M., “La distinction” … pp. 810–813Google Scholar. See further the interesting summary by the Court of the arguments presented by the applicants, the Belgian Government, and, especially, of the European Commission of Human Rights on the meaning and scope of Article 2: Judgment, pp. 19–23.

The Commission observed, in part, that “if the object of the Protocol had been to oblige States either to provide education themselves or to subsidise private education, such an obligation should have been embodied in rules, even if only approximately” (p. 21). It emphasises, on the other hand, however, that “the first sentence of Art. 2 of the Protocol, despite its negative wording, embodies the right of everyone to education”. The content of the right varies according to economic circumstances. “Belgium being a highly developed country, the right to education…includes entry to nursery, primary, secondary and higher education…”. In other respects “the exact scope of the first sentence of Article 2 may be disputed: it may be asked, for example, whether once it has set up a system of public education, a State may abandon the entire system and throw the burden on to private enterprise” (p. 22). (Some quotation marks omitted).

70. Judgment p. 32.

71. Loc.cit., p. 810.

72. Judgment pp. 103–109.

73. Judgment p. 104.

74. Judgment pp. 105–106.

75. “All Germans have the right freely to choose their trade or profession, their place of work and their place of training. The practice of trades and professions may be regulated by law.” Text taken from Peaslee, op.cit., vol. III p. 363.

76. Judgment of 18 July 1972. Entscheidungen des Bundesverfassungsgerichts, vol. 33 (1973), No. 22 (pp. 303–358).Google Scholar

77. Judgment at pp. 332–333.

78. For a detailed discussion of the Judgment, with numerous further references, see J.P. Müller, op.cit. (n. 44) pp. 864–872. Cf., also G. Brunner, op.cit., p. 28 et seq.

79. … “ein Dokument der Hilflosigkeit” (Kimminich, quoted by Müller, op.cit., p. 865, n.556).

80. See on this Wengler, W., Die Unanwendbarkeit der Europäischen Sozialcharta im Staat (Bad Homburg v.d. H., 1969), passim.Google Scholar

81. Other examples are Pakistan, Ireland, Burma. See Duchacek, op.cit., p. 117 et seq.

82. In this Part III, there is a section on “Right to Constitutional Remedies”, Articles 32–35; Art. 32(1) runs as follows: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”

83. Text of the Indian Constitution in A.J. Peaslee, op.cit., vol. II, pp. 308–438; at p. 320.

84. W. Wengler, op.cit. (n. 80) p. 11.

85. Cf., e.g., the analysis by Müller, op.cit., pp. 843–857.

86. See also Tomandl, op.cit., p. 40.

87. “Als justiziabel kann man ein Problem dann bezeignen, wenn genügend Kriterien juristischer Argumentation zur Verfügung stehen, urn es in optimal vertretbarer Weise zu lösen. Als nicht justiziabel gelten anderseits Fragen, bei denen die zur Problemlösung notwendigen politischen Grundentscheidungen noch nicht getroffen sind…” (Müller, op.cit., p. 844).

88. This is also clearly illustrated – in a slightly different context – by a provision such as Art. 33 of the Treaty establishing the European Coal and Steel Community (18 April 1951): while the first sentence reads: “The Court shall have jurisdiction in actions brought by a Member State or by the Council to have decisions or recommendations of the High Authority declared void on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers”, the second sentence runs as follows: “The Court may not, however, examine the evaluation of the situation, resulting from economic facts or circumstances, in the light of which the High Authority took its decisions or made its recommendations, save where the High Authority is alleged to have misused its powers or to have manifestly failed to observe the provisions of this Treaty or any rule of law relating to its application.”

In the EEC and Euratom-Treaties no such provision has been laid down, so under these treaties it is for the Court itself to exercise restraint vis-à-vis the discretion of the political organs of the Communities or of Member States. See Kapteyn, P.J.G. and van Themaat, P. VerLoren, Introduction to the Law of the European Communities (London, Deventer, Alphen a.d. Rijn 1973) p. 97Google Scholar, who point at Art. 226 of the EEC-Treaty. Compare also the Judgment of the European Court of Justice in the Sargoil-case, dealt with below p. 100.

89. See on the juristic structure, Grisel, op.cit, p. 57 et seq.

90. See Schwelb, E., “Some Aspects of the Measures of Implementation of the International Covenant on Economic, Social and Cultural Rights”, in Human Rights Journal, vol. I (1968) p. 363 et seq, especially p. 377.Google Scholar

91. Art. 2(1) reads as follows: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

92. Art. 16(1) lays down: “The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized therein.”

93. Oppenheim-Lauterpacht, , International Law, vol. I, 8th ed. (London, 1955) p. 692.Google Scholar

94. Art. 3 of the UN Declaration on Territorial Asylum (GA Res. 2312 (XXII), of 14 December 1967); Art. 33 of the Convention on the Status of Refugees (1951).

95. I. Seidl-Hohenveldern uses the term “reflex right” (“Reflexrecht”) describing this situation: Das Recht der Intemationalen Organisationen einschlieszlich der Supranationalen Gemeinschaften, 2nd ed. (Cologne, 1971) pp. 115, 254.Google Scholar

96. Cf., the concept of the individual as a “subject of interest”, developed by Alf, Ross, Textbook of International Law (London, 1947) p. 30 et seq.Google Scholar, on which see also C.A. Nørgaard, op.cit. (n. 19), pp. 27, 31.

97. However, the term used by Ihering, v. is “Relfexwirkungen” (“reflex effects”), first in his Der Geist des Römischen Rechtes ]The Spirit of Roman Law[, vol. III, 1, 1st ed., 1865 p. 327 et.seq.Google Scholar, further elaborated in “Die Reflexwirkungen Oder die Rückwirkung rechtlicher Thatsachen auf dritte Personen” [The Reflex-effects or Reaction of Legal Facts on Third Persons], Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts, vol. X (1866) pp. 245–354Google Scholar; reprinted in Gesammelte Aufsätze aus den Jahrbüchern etc. (Jena, 1882, and again Aalen, 1969), vol. II pp. 79–177.Google Scholar

98. “Die Reflexwirkungen…” etc. p. 84.

99. System der Subfectiven Öffentlichen Rechte, 2nd ed. (Tübingen, 1905) p. 70, n. 1.Google Scholar

100. Op.cit, Ch. VI: “Reflexrecht und Subjektives Recht” pp. 67–81. The doctrine appears to be still alive in German public law. See e.g., Bachof, O., “Reflexwirkungen und subjektive Rechte im öffentlichen Recht”, in Forschungen und Berichte aus dem öffentlichen Recht: Gedächtnisschrift für Walter Jellinek (Munich, 1955) pp. 287–307, with further references.Google Scholar

101. Op.cit., p. 72–75.

102. Op.cit., p. 70.

103. This is a fortiori true of the modern, more restricted conception of it in German public law: only such effects of a rule of law are called “reflex effects” which favour a person de facto without directly bestowing rights upon him. The term “reflex right” seems thereby to be abolished. Cf., Bachof, op.cit., p. 288.

104. Lauterpacht, op.cit., p. 153; Quincy, Wright, “National Courts and Human Rights – the Fujii Case”, 45 AJIL (1951) p. 62 et seq., especially p. 69 et seq.Google Scholar; see Schindler, D., Gleiberechtigung von Individuen als Problem der Völkerrechts (Zurich, 1957) p. 137 et seq. p. 141Google Scholar. See also, e.g., Akehurst, M., A Modern Introduction to International Law, 3rd ed. (London, 1977) p. 77Google Scholar: “…a State which deliberately moved backwards as far as human rights are concerned would probably be regarded as having broken Art. 56 [of the UN Charter]…” (emphasis added). The author states the problem dealt with in this section quite clearly on p. 74 et seq.

105. See the list of “principal directly applicable provisions” in Kapteyn and VerLoren van Themaat, op.cit., pp. 63–64, and also p. 182 et seq.

106. Case 26/62, (1963) European Court Reports p. 1 et seq.

107. “Member-States shall refrain from introducing between themselves any new customs duties on imports or exports or any changes having equivalent effect, and from increasing those which they already apply in their trade with each other.”

108. Cf., Schermers, H.G., “Indirect Obligations: Four Questions in Respect of EEC Obligations Arising from Rights or Obligations of Others”, in Essays on International Law and Relations in Honour of A.J.P. Tammes (Leiden, 1977) pp. 260–273Google Scholar, with further references to European case law, and Judicial Protection in the European Communities (Deventer, 1976) pp. 87–98.Google Scholar

109. Judgment p. 12. Italics supplied. The original language of the case is Dutch; the remarkable wording of the passage in that language has not been quite satisfactorily rendered in English for the purposes of this essay: “…. maar evenzeer als weerslag van de duidelijke verplichtingen die net Verdrag aan…de Lid Staten…oplegt.” (Jurisprudentie IX (1963) p. 23)Google Scholar. The words in question connote “as reflex effect”, rather than “by reason”; the former term is not, however, an English one, let alone an English legal term. In Kapteyn and VerLoren van Themaat the translation reads: “on account of” (op.cit., p. 184).

110. Judgment p. 13.

111. Case No. 93/71, Judgment of 17 May 1972.(1973) CMLR p. 354 et seq. (1972) European Court Reports p. 296. Translation taken from Schermers, Judicial Protection p. 91.

112. Case No. 13/68, Judgment of 19 December 1968. (1968) European Court Reports p. 453 et seq.

113. Judgment p. 461. Summary by the Court.

114. Ibid. This is in contrast to the “clear” obligation of e.g., Art. 12. Cf., also n. 88. See on this Wyatt, Derrick, “Directly Applicable Provisions of EEC Law”, part I, in New Law Journal 8 05 1975, p. 458 et seq., at p. 459Google Scholar, for further examples and references.

115. Trade union freedom is also laid down in the Covenant on Civil and Political Rights. (Art. 22(1)), where it is under the guarantee of the potentially much more effective supervision system of that Covenant; not to mention the ILO instruments on the subject. The final remarks of this concluding section concern, in particular, the third category (Arts. 6, 11 and 13).

116. J.P. Müller stresses this point – for Swiss law – most forcefully: op.cit., pp. 839–841; similarly M. Cranston, op.cit., n. 44.

117. See, e.g., Ramcharan, B.G., “Implementation of the International Covenant on Economic, Social and Cultural Rights”, in 23 NILR (1976) pp. 151–161CrossRefGoogle Scholar. See also UN Doc. E/CN.4/988, with additions (January 1969), E/CN.4/1108; E/CN.4/1131 (January 1974), all studies relating to the realization of economic, social and cultural rights. Also: ST/IAO/HR/31, Warsaw Seminar on the Realisation of Economic and Social Rights (1967).

118. Compare Müller, op.cit., p. 834 et seq.

119. See, ILO Conventions and Recommendations 1919–1966 (Geneva: International Labour Office, 1966) with loose-leaf supplements.Google Scholar

120. Valticos, N., Droit International du Travail (Paris, 1970) p. 157.Google Scholar

121. Jenks, C.W., Social Justice in the Law of Nations. The ILO Impact after Fifty Years (London, 1970) pp. 70–79.Google Scholar

122. With a reference to the Official Bulletin of the ILO, vol. 52/2 (1969), pp. 181–216Google Scholar: “Comparative Analysis of the International Covenants on Human Rights and International Labour Conventions and Recommendations”.

123. “The States Parties to the present Covenants recognize the right of everyone to social security, including social insurance.”

124. Compare the twenty-two Conventions on Social Insurance, Pensions, Workmen's Compensation, Social Security and Medical Care in ILO Conventions and Recommendations, and especially the elaborate ILO Convention No. 102, Convention concerning Minimum Standards of Social Security (1952).

125. Brunnei points at the fact that, e.g., the legislative codification of social insurance in the German Federal Republic numbers about 1800 paragraphs (op.cit., p. 18).

126. Jenks, op.cit., p. 73, also observes: “The right to work, the right to just and favourabl conditions of work, the right to leisure, the right to social security, and the rights of motherhood and childhood to special protection, as enunciated in the Universal Declaration of Human Rights and recognized by the United Nations Covenant on Economic, Social and Cultural Rights, are all rights which have no measurable content as such but materialize through recognized procedures into specific and enforceable entitlements which call for redefinition with changing circumstances. Internationally, these specific entitlements are spelled out in the provisions of the International Labour Code and redefined from time to time by the periodical revision of the relevant Conventions and Recommendations. The inherent dynamism of the rights is well illustrated by the continuous developments of the relevant provisions of the International Labour Code.”

127. See Landy, E.A., The Effectiveness of International Supervision. Thirty Years of ILO Experience (London, 1966) Chap. I.Google Scholar

128. Art. 26 of the European Social Charter.

129. The reverse of Jenks' observations on the role of the International Labour Code might also be true. If (on an informal basis) the ILO were to be engaged in the supervision of compliance with the ICESCR, it could possibly attempt to make States Parties to the ICESCR adhere to the ILO Conventions that cover the subjects of the respective provisions of the ICESCR, to the extent that these states have not ratified them.