Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.
The International Covenant on Economic, Social and Cultural Rights is often described as the ‘poor cousin’ of its better understood counterpart, the International Covenant on Civil and Political Rights. The publication of this comprehensive and ambitious work professes to mark something of ‘a coming of age’ in our understanding of economic, social and cultural right. The detailed assembly of primary materials, together with commentary, case extracts and contextual discussion no doubt meets this ambitious objective.
Structured in a way that makes it a good counterpoint to Sarah Joseph and Melissa Castan’s comprehensive publication on civil and political rights, the book provides an article-by-article analysis of the Covenant after only the briefest of introductions. As such it is an ideal reference for practitioners and scholars who are well-versed in the history and practice of human rights law generally, but who require access to detailed commentary in relation to individual rights enshrined in the Covenant.
Having cause to delve into the chapter on the ‘Right to Health’, I discovered a very readable narrative in relation to the drafting history of Article 12, the conceptual debates that have arisen in that context and the tensions inherent in applying the right to health in the context of the broader field of human rights (for example, the tensions between reconciling public health initiatives with the rights of individuals in relation to health and autonomy). The chapter explores the socio-economic contexts which impact on the realisation of the right to health as well as the general nature of the obligation imposed upon states, including in relation to the international obligations of states. The chapter also contains useful commentary in relation to the extra-territorial obligations of states to persons within their jurisdiction but outside of their territory as well as persons affected by the acts of corporations regulated by the state in question. In exploring these legal technicalities, the authors are clearly mindful of the contemporary context of extreme and growing global inequality as well as questionable state practices in this area. Clearly the current era of economic globalisation demands and enables international cooperation to ensure the universal enjoyment of these important rights. At the same time, the foreign aid budgets of wealthy states are not keeping up and many states attempt to avoid their human rights obligations through artificial constructs and by reference to narrow ideas of territory and jurisdiction.
The publication of the book is also particularly timely considering that the Optional Protocol to the Covenant entered into effect only three years ago and is still in its infancy as a potential avenue for those suffering serious violations of economic, social and cultural rights. The Optional Protocol establishes three new procedures for the protection and enforcement of rights under the Covenant, namely an individual complaints procedure, an inter-state complaints procedure and an inquiry procedure that may be engaged when ‘reliable information indicating grave or systematic violations’ is received by the United Nations Committee on Economic, Social and Cultural Rights. As practitioners prepare and respond to complaints and inquiries under these new procedures, they will have access to a detailed commentary which provides historical context, interpretative guidance, jurisprudence and scholarly discussion in relation to all of the substantive rights enshrined in the Covenant.
Saul, Kinley and Mowbray’s book is a welcome addition to the library of any human rights practitioner and will no doubt become a dog-eared favourite in the years ahead.
Lisa Button - former HRLC volunteer lawyer and now asylum seeker and refugee policy and advocacy advisor at Save the Children Australia.