Principle of Cooperation in the ICESCR: A Duty or Discretion to Cooperate in Times of Pandemic?

Principle of Cooperation in the ICESCR:

A Duty or Discretion to Cooperate in Times of Pandemic?

By Fara Yassine*

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The Covid-19 crisis is a “phenomenon at risk of greatly affecting the global economy, societies, and human rights.” [1] The pandemic is a global crisis, which underlines the crucial importance of international assistance and cooperation, a core principle enshrined in the ICESCR. [2] However, as shall be discussed, it is unclear whether the latter provides a legal basis for binding obligations according to Article 2 paragraph 1. [3] This uncertainty is reflected in the context of pandemics, which threaten the enjoyment of economic, social, and cultural rights (ESC) rights. It is essential to inquire about the principle of cooperation under the ICESCR (A) to assess its terms of implementation amid Covid-19 (B).

A. The Principle of Cooperation under the ICESCR

According to the ICESCR, States can realize the rights in the Covenant individually or through international assistance and cooperation. The relevant steps are mainly economic and technical and shall be taken to the maximum of the States’ available resources. [4] This cannot suffice to conclude that there exists a duty to cooperate in generating legally binding obligations. These require the use of more specific terms and a more detailed description of the relevant potential duty. The general terms in which cooperation is stated lead to legal uncertainties on the principle’s scope as stated in the ICESCR and the terms in which it shall be implemented. [5] Many efforts were made to provide a proper interpretation of the stipulation of cooperation in the Covenant. Those efforts are worth examining, knowing that this provision is replaced in the ICCPR by a jurisdictional clause. The latter limits the Covenant’s implementation to the territories of State parties and people under their jurisdiction. [6] Therefore, the absence of such a clause in the ICESCR is replaced by the requirement of international assistance and cooperation. This certainly expands the extraterritorial application of the ICESCR that is upheld by additional elements.

The ICESCR and its additional Protocol contain provisions that have a territorial scope, [7] which reveals the intention to admit extraterritoriality concerning the remaining provisions. Moreover, the current tendency is towards increased extraterritoriality of ESC rights. [8] National borders have become less relevant when it comes to States’ acts, and economic life more transnational. States have then become interdependent through international cooperation and shared responsibility on the national level. [9] This raises the question of whether such cooperation entails legally binding obligations.

The ICESCR does not seem to provide a sufficient answer. The interpretation provided by the Committee on ESC Rights (CESCR) reflects the existence of an obligation particularly incumbent on States that “are in [the] position to assist others in this regard.” [10] Such interpretation is non-binding [11] and does not recognize an absolute duty to be followed by all State parties giving rise to specific forms of assistance or cooperation. [12] This brings us back to the sphere of States’ consent and the will to cooperate, which would be left, accordingly, to the discretion of States, unless one can establish or invoke an applicable customary rule.

In the absence of consistent State practice and well-settled opinio juris, the principle of cooperation cannot amount to a customary principle. [13] Therefore, there is a lack of binding source establishing corresponding legal duties, which means that states choose to cooperate in terms of ESC rights and are not bound to cooperate. However, the stipulation of the ICESCR on international assistance and cooperation is not meaningless [14] and bears certain consequences that are not well identified in case-law and legal scholarship. Based on the previous statements, such consequences vary upon different elements like States’ resources, capacities, and ability to assist other States. These variables might be considered in a much more attenuated manner in times of global crisis. In the context of Covid-19, the principle of cooperation should be interpreted and implemented in light of the specific circumstances arising from the impacts of the pandemic, as will be described in the next paragraph.

B. The Cooperation for the Realization of ESC Rights amidst Covid-19

Covid-19 particularly threatens the right to health. Thus, cooperation should be first examined in this regard before tackling ESC rights in general. The CESCR, in its interpretation of the right to the highest attainable standard of health, confirmed States’ obligation to cooperate towards the full realization of the rights in the Covenant [15] and added few elements concerning cooperation in relation to the right to health. The Committee provided that cooperation should be maintained with the WHO, especially UN agencies in general, all the actors concerned, and various civil society components. Efforts should be coordinated through interaction between all relevant stakeholders while seeking the technical assistance of the WHO. [16]

A similar position was adopted by the Office of the High Commissioner for Human Rights (OHCHR) while addressing the Covid-19 crisis. [17] Further, it stated that exceptional measures have to be taken “in a coordinated manner to ensure that the cost is shared collectively and especially by those who can bear it.” [18] Hence, it is more realistic to agree that the existence of a duty to cooperate is mainly declared by specialized bodies without sufficient elements on its interpretation and implementation.

In the context of Covid-19, cooperation for the realization of ESC rights is required in compliance with the several positions that were highlighted in the preceding statements. However, this is not reflected in the States’ actions and behaviours. Initiatives were taken for the global response to the pandemic invite States to cooperate based on human solidarity and other ethical considerations rather than on international assistance and cooperation. [19] This shows that this principle is perceived as an obligation, but the lack of guidance concerning its practical application prevents the emergence of concrete legally binding obligations under the duty to cooperate. So far, no claims were made by States for the breach of such duty to ensure the realization of ESC rights based on the Covenant.

The requirement of assistance to the maximum available resources according to the ICESCR [20] should not be interpreted extensively. It should be considered as a possible way to act “with a view to achieving progressively the full realization of” ESC rights, which further limits the scope of cooperation. This proves that arising obligations are not obligations of result. Thus, international cooperation and assistance can be seen as a concept giving rise to due diligence obligations. In terms of Covid-19, such cooperation requires States to fulfill extraterritorial obligations and to share “research, medical equipment and supplies, and best practices in combating the virus.” [21] It also requires “coordinated action to reduce the economic and social impacts of the crisis.” [22] Joint endeavors by all States are needed “to ensure an effective, equitable economic recovery.” [23]

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* Associate Professor in Kuwait International Law School. M.A. in International and European Law & PhD in Public Law at University Grenoble-Alpes.

[1] Juan Pablo Bohoslavsky, COVID-19: Urgent appeal for a human rights response to the economic recession, United Nations Human Rights Special Procedures (Apr. 15, 2020), https://www.ohchr.org/Documents/Issues/Development/IEDebt/20200414_IEDebt_urgent_appeal_COVID19_EN.pdf.

[2] Statement on the coronavirus disease (COVID-19) pandemic and ESC rights, Committee on ESC Rights (Apr. 6, 2020), https://undocs.org/E/C.12/2020/1.

[3] G.A. Res. 2200A (XXI), International Covenant on Economic, Social and Cultural Rights (Dec. 16, 1966), art. 2(1).

[4] Id.

[5] Magdalena S. Carmona, The obligations of ‘international assistance and cooperation’ under the International Covenant on ESC Rights. A possible entry point to a human rights based approach to Millennium Development Goal 8, 13(1) Int’l J. Hum. Rts. 86, 88. “As a result of the diplomatic negotiations, the wording of Article 2(1) of the Covenant is elusive and complex.” Id.

[6] ICESCR, supra note 3, at art. 14.

[7] Id.; Optional Protocol to the International Covenant on ESC Rights (Dec. 10, 2008), art. 2. Article 2 which is a jurisdictional clause establishing the territoriality of all the provisions in the Protocol. Id.

[8] See Kylie A. Marks, Comment le droit international des droits de l’homme évolue : la montée des obligations extraterritoriales des États en matière de droits économiques, sociaux et culturels, 2 European J. Hum. Rts. 173, 173 (2014) (trans.); Another evidence on the tendency towards further extraterritoriality is the adoption of Maastricht Principles on Extraterritorial Obligations of States in the Area of ESC Rights on 28 September 2011. See also CESCR General Comment No. 24: State Obligations under the International Covenant on ESC Rights in the Context of Business Activities.

[9] Marks, supra note 8, at 181-83.

[10] CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1); See also CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12).

[11] Case Concerning Ahmadou Sadio Diallo, 2010 I.C.J. 1001; See Rana M. Fouad, The Legal Duty to Cooperate amid COVID-19: A Missed Opportunity, EJIL:Talk! (Apr. 22, 2020), https://www.ejiltalk.org/the-legal-duty-to-cooperate-amid-covid-19-a-missed-opportunity/.

[12] Malcolm Langford et al., Extraterritorial Duties in International Law in Malcolm Langford (ed.), Global justice, state duties: the extraterritorial scope of economic, social and cultural rights in international law 64-65 (Cambridge University Press, 2013).

[13] Id. at 65-66; Fouad, supra note 11.

[14] Langford et al., supra note 12, at 64.

[15] General Comment No.14, supra note 10.

[16] Id.

[17] Bohoslavsky, supra note 1; Statement on the coronavirus disease, supra note 2.

[18] Bohoslavsky, supra note 1.

[19] Letter from the Secretary-General to G-20 Members, United Nations Secretary-General (March 24, 2020), https://www.un.org/sg/en/content/sg/note-correspondents/2020-03-24/note-correspondents-letter-the-secretary-general-g-20-members.

[20] ICESCR, supra note 3.

[21] Statement on the coronavirus disease, supra note 2.

[22] Id.

[23] Id.