Interpretation of the ICESCR: Between Morality and State Consent

Abstract

Discussions concerning the interpretive practice of the Committee on Economic, Social and Cultural Rights have so far centred on the question as to the legality of the ‘special’ interpretive techniques and tools which it has developed: Does the special nature of the ICESCR as a human rights treaty justify recourse to interpretive methods that may not be covered by Articles 31–33 of the VCLT? This paper argues that the VCLT’s interpretive framework also applies to human rights treaties and is broad enough to accommodate the Committee’s methods which, on closer inspection, turn out to be not that special at all. The key question is not whether there is a legal basis for the interpretive methods employed by the Committee – there clearly is – but, instead, whether its interpretations are regarded as legitimate. For the Committee, legitimacy seems to boil down to sufficient state support. Accordingly, its interpretive practice is informed by constant attempts to find the right balance between its urge to give the Covenant a moral reading and establishing common ground among states parties. Yet the legitimacy of a given interpretation depends on more than the extent of (pre-existing) state consensus it reflects. Legitimacy can be generated through following a process of interpretation that the interpretive community regards as adequate and fair and that produces interpretive outcomes that appear persuasive to it. For an interpretive practice to be legitimate, it will be argued, the interpreter must adhere to an agreed upon set of principles and apply it in a coherent and transparent manner.