Introductory Note to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

This Introductory Note to the publication in ILM of the newly-adopted Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) seeks to put the primary source document in proper context by briefly explaining its history, content, and significance in international law. The Note is accompanied by the text of the OP-ICESCR, adopted by the U.N. General Assembly on December 10, 2008 to commemorate the 60th anniversary of the Universal Declaration of Human Rights. The OP creates an individual complaints procedure for alleged violations of the ICESCR, rectifying a thirty year asymmetry in human rights treaty law

Putting “Human Rights” Back into the U.N. Guiding Principles on Business and Human Rights: Shifting Frames and Embedding Participation Rights

Published as Chapter 4 in Business and Human Rights: Beyond the End of the Beginning, Cesar Rodriguez-Garavito, ed.https://digitalcommons.law.buffalo.edu/book_sections/1242/thumbnail.jp

Maximum Feasible Participation of the Poor: New Governance, New Accountability, and a 21st Century War on the Sources of Poverty

In 1964, President Lyndon B. Johnson called for a Nationwide War on the Sources of Poverty to “strike away the barriers to full participation” in our society. Central to that war was an understanding that given poverty’s complex and multi-layered causes, identifying, implementing, and monitoring solutions to it would require the “maximum feasible participation” of affected communities. Equally central, however, was an understanding that such decentralized problem-solving could not be fully effective without national-level orchestration and support. As such, an Office of Economic Opportunity was established – situated in the Executive Office of the President itself – to support, through encouragement, funding, and coordination, the development and implementation of community-based plans of action for poverty alleviation, as identified and prioritized by the poor themselves. This Article urges a return to this practical, locally-responsive, yet federally-orchestrated orientation of U.S. social welfare law. It argues that while the regulatory and political context of the 1960s provided inauspicious ground for the early “maximum feasible participation” policy to effectively take root, four decades later, two broad paradigm shifts have yielded a new, more fertile opportunity framework. The first involves the shift in U.S. regulatory law away from earlier command-and-control structures favoring fixed rules and centralized enforcement, toward a New Governance model that privileges decentralization, flexibility, stakeholder participation, performance indicators, and guided discretion. The second is the concurrent paradigm shift in U.S. social movement approaches to poverty – what I call “New Accountability” – which similarly promotes local voice and inclusive participation, performance monitoring around human rights standards, and negotiated policymaking (rather than non-negotiable material demands and mass confrontation, the preferred tactics of 1960s activism). Supported by a renewed U.S. interest in collecting and reporting performance indicators for government programs, these two shifts converge to create a theory and policy-based environment in which it is both practically feasible and normatively coherent to re-embrace the participatory orientation of the early “War on the Sources of Poverty” strategy. The challenge for U.S. social welfare rights law, I argue, is how to bring these two complementary paradigms together in constructive synergy to mount a 21st century battle against poverty. A set of national subsidiarity-based institutions to support this effort is proposed, each mandated to orchestrate and competitively incentivize targeted anti-poverty efforts by all social stakeholders, while opening new institutional spaces for the active participation of the poor in all aspects of meeting the nation’s poverty reduction targets

Implementing Truth and Reconciliation: Comparative Lessons for the Republic of Korea

This Article substantively introduces a special symposium issue on Implementing Truth and Reconciliation: Comparative Lessons for Korea. Inspired by the Dec. 2010 release of the official report and recommendations of the Truth and Reconciliation Commission, Republic of Korea (TRCK), the special issue gathers comparative national and cross-national lessons from four nations -- South Korea, South Africa, Cambodia, and Peru -- on the factors that contribute to or hinder the effective implementation of truth commission recommendations and other efforts aimed at achieving national, community, and individual-level reconciliation. Such lessons are offered in the hope of assisting victim groups and other advocacy communities in South Korea as they engage in the long, complex, and always difficult process of ensuring the meaningful and effective implementation of the TRCK\u27s recommendations for reform, follow-up, and reparation on the ground. The Article introduces the TRCK, the political context for its creation, design, and extensive mandate, as well as the substance and complexity of its multiple policy recommendations. It then summarizes the special issue\u27s substantive contributions, collecting and synthesizing the comparative lessons from each. The major global lessons discerned across the contributions include the priority need for active civil society engagement in the implementation process, the creation of permanent follow-up and orchestration bodies, the pursuit of truth as a dynamic and ongoing project, data independence and accessibility, and, finally, the use of measurable indicators for holding government and other key stakeholders to account

Rethinking the Less as More Thesis: Supranational Litigation of Economic, Social and Cultural Rights in the Americas

In their 2005 law review article Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, James Cavallaro and Emily Schaffer argue for a rethinking of strategies to advance economic, social and cultural rights in the Americas. They posit that to achieve higher rates of real-world protection for such rights, social rights advocates should do two things: first, bring less litigation and, second, frame any marginal litigation that is pursued as violations of classic civil and political rights. According to the authors, this recommended course will increase the legitimacy of the litigation and lead to higher rates of real-world change because, in their estimation, only civil-political rights have corresponding justiciable obligations and are considered ripe for litigation by Latin American governments. This Article questions the legal and factual bases on which this thesis is constructed, highlighting the practical inconsistencies that result from its application and advocating a more technical and jurisdictional approach to social rights litigation. It demonstrates that, by underappreciating the legal significance of justiciability, legitimacy, and the adjudicable, as distinct from monitorable, dimensions of human rights obligations, the authors propose a thesis that in fact will have the inverse result: more distributive justice claims framed as absolute/immediate entitlements that are inattentive to justiciability rules, political realities, practical implementation time-tables, queue-jumping concerns, and social movement synergies - precisely the types of cases that are least likely to be admissible under contentious processes or to have long-term real-world impacts. The author calls for a rethinking of the proposed less as more thesis, reframing it from a technical-jurisdictional perspective that focuses not on decontextualized notions of justiciable rights but rather on the scope and nature of the claims made under those rights. In this sense, she insists that it is not rights that are or are not justiciable, but rather the claims advanced under them that fulfill or fail to fulfill the elements of a justiciable controversy. The number of justiciable claims thus cuts equally across all rights. On this critical understanding, the author sets out a new quadrant-based framework for thinking about the dimensions of human rights obligations that may properly be applied by adjudicators in individual petitions processes. She argues that while the full dimensionality of human rights obligations corresponds to all rights, only some of those dimensions are cognizable under contentious process, an insight reflected in the jurisprudential record, if not yet recognized in human rights theory. The author concludes that good lawyering, based on well-crafted claims that adhere to the fundamental elements of a justiciable case, not transparent decoys designed to hoodwink governments into thinking they are dealing with immediately-enforceable civil and political rights, is needed to expand legitimate protection of economic, social, and cultural rights in the Americas. Once jurisdictional issues are properly taken into account, the horizon for social rights litigation, both at national and supranational levels, is vast

Rethinking the Less as More Thesis: Supranational Litigation of Economic, Social and Cultural Rights in the Americas

In their 2005 law review article Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, James Cavallaro and Emily Schaffer argue for a rethinking of strategies to advance economic, social and cultural rights in the Americas. They posit that to achieve higher rates of real-world protection for such rights, social rights advocates should do two things: first, bring less litigation and, second, frame any marginal litigation that is pursued as violations of classic civil and political rights. According to the authors, this recommended course will increase the legitimacy of the litigation and lead to higher rates of real-world change because, in their estimation, only civil-political rights have corresponding justiciable obligations and are considered ripe for litigation by Latin American governments. This Article questions the legal and factual bases on which this thesis is constructed, highlighting the practical inconsistencies that result from its application and advocating a more technical and jurisdictional approach to social rights litigation. It demonstrates that, by underappreciating the legal significance of justiciability, legitimacy, and the adjudicable, as distinct from monitorable, dimensions of human rights obligations, the authors propose a thesis that in fact will have the inverse result: more distributive justice claims framed as absolute/immediate entitlements that are inattentive to justiciability rules, political realities, practical implementation time-tables, queue-jumping concerns, and social movement synergies - precisely the types of cases that are least likely to be admissible under contentious processes or to have long-term real-world impacts. The author calls for a rethinking of the proposed less as more thesis, reframing it from a technical-jurisdictional perspective that focuses not on decontextualized notions of justiciable rights but rather on the scope and nature of the claims made under those rights. In this sense, she insists that it is not rights that are or are not justiciable, but rather the claims advanced under them that fulfill or fail to fulfill the elements of a justiciable controversy. The number of justiciable claims thus cuts equally across all rights. On this critical understanding, the author sets out a new quadrant-based framework for thinking about the dimensions of human rights obligations that may properly be applied by adjudicators in individual petitions processes. She argues that while the full dimensionality of human rights obligations corresponds to all rights, only some of those dimensions are cognizable under contentious process, an insight reflected in the jurisprudential record, if not yet recognized in human rights theory. The author concludes that good lawyering, based on well-crafted claims that adhere to the fundamental elements of a justiciable case, not transparent decoys designed to hoodwink governments into thinking they are dealing with immediately-enforceable civil and political rights, is needed to expand legitimate protection of economic, social, and cultural rights in the Americas. Once jurisdictional issues are properly taken into account, the horizon for social rights litigation, both at national and supranational levels, is vast

From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies

It is frequently said that the United States has a paradoxical human rights policy. This Article takes a closer look at that idea from the perspective of U.S. engagement with international human rights treaty bodies, the quasi-adjudicatory expert committees or commissions that exercise supervisory jurisdiction over the U.S. human rights record. Contrary to popular perception that the U.S. thumbs its nose at these bodies, the U.S. in fact engages quite actively with their human rights procedures. To untangle the associated issues, the Article proceeds in six parts. Part I begins by reviewing the current legal framework that structures U.S. human rights treaty body engagements at the national and international levels. Part II then examines the specific ways the U.S. in fact engages with the three principal supervisory competences exercised by UN, OAS, and ILO treaty body systems: periodic reporting, quasi-adjudication, and promotional activities. Part III considers the countervailing push-pull pressures that influence and shape U.S. engagement policy at the foreign-policy and domestic-policy levels, respectively, while Part IV identifies the three principal mediating techniques the U.S. employs to accommodate these competing pressures. These mediating techniques, which draw heavily, if selectively, on the formalized rules of international human rights law\u27s subsidiarity principle allow the U.S. to pursue a framework policy toward treaty body engagement that at once permits active U.S. engagement with international procedures, appeases conservative critiques of such engagement (at both domestic and foreign-policy levels), and allows the U.S. to remain technically compliant with its externally-oriented treaty obligations. What it does not do, as currently pursued, is facilitate internal domestic reflection on the nation\u27s treaty-based human rights commitments. Indeed, responsive to the dominant pressures exerted on U.S. policymakers from both within and without government (from institutionalists, realists, and insulationists), these mediating techniques draw on only half of subsidiarity\u27s blueprint. Part V discusses this conflict, the structural opportunities for addressing it, and the importance of giving the principle of subsidiarity its full and intended meaning in international human rights law. The piece concludes by looking at where U.S. policy can be expected to lead in coming years, as U.S. policymakers continue to chart a middle course through difficult and shifting pressures. This middle course is one that does not reject, but rather solidly embraces supervisory human rights treaty body processes, albeit under a vision of their jurisdiction as strictly subsidiary to domestic decision-making processes. The challenge for domestic advocates is to ensure that this subsidiarity principle is embraced in its full dimensionality, not only in its negative facets. An outline of how this might be institutionally pursued and structured in the United States, particularly through the establishment of an executive focal point on treaty implementation and a national human rights commission with a comprehensive monitoring mandate, is discussed in Part VI

Establishing a meaningful human rights due diligence process for corporations : learning from experience of human rights impact assessment

The United Nations Special Representative of the Secretary-General on Business and Human Rights, Professor John Ruggie, has constructed a new international framework, which is set to become the cornerstone for all action on human rights and business at the international level. The principle of human rights due diligence (HRDD) is the central component of the corporate duty to respect human rights within that framework. This article argues that Ruggie's HRDD principle contains the majority of the core procedural elements that a reasonable human rights impact assessment (HRIA) process should incorporate. It is likely that the majority of corporations will adopt HRIA as a mechanism for meeting their due diligence responsibilities. However, in the context of the contentious debate around corporate human rights performance, the current state of the art in HRIA gives rise to concerns about the credibility and robustness of likely practice. Additional requirements are therefore essential if HRDD is to have a significant impact on corporate human rights performance – requirements in relation to transparency; external participation and verification; and independent monitoring and review