New thinking on social and economic rights: honoring Virginia Leary.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Thursday, March 25, by its moderator, Barbara Stark of Hofstra University School of Law, who introduced the panelists: Philip Alston of New York University School of Law; Andrew Clapham of the Graduate Institute of International Studies; Mona Rishmawi of the Office of the UN High Commissioner for Human Rights; and Alicia Ely Yamin of Harvard Law School.

INTRODUCTION: A CELEBRATION OF VIRGINIA LEARY

This year's Annual Meeting theme, "International Law in a Time of Change," immediately made me think of my old friend Virginia Leary, for whom it was always, at least potentially, a "time of change," or a time for change, in international law. How she would have enjoyed this theme! But Virginia died suddenly on April 9, 2009.

This roundtable was convened in her honor. A former Vice-President of the ASIL, winner of the Goler T. Butcher Medal in 2008 for her work in human rights, a Distinguished Professor at Buffalo, where she co-founded the Human Rights Center, and a Professor at Hastings, Virginia also worked for several international organizations, in the United States as well as in Geneva, where she lived after retiring from academia. She was a prodigious scholar on a broad range of subjects, including labor law, workers rights, the right to health, child labor issues, and international trade and human fights. She was an extraordinary woman, loved by her students and colleagues, and missed by us all.

This roundtable brings together world-renowned scholars and practitioners in the areas where Virginia forged paths. Each speaker has built on Virginia's work, and each described enough of that work to establish its trajectory and then situated her project in our current time of change."

The first speaker is Philip Alston, John Norton Pomeroy Professor of Law at New York University (NYU), co-chair of the NYU Center for Human Rights and Global Justice, and the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. Professor Alston chaired the UN Committee on Economic, Social and Cultural Rights for eight years, until 1998, and he has been Special Adviser to the UN High Commissioner for Human Rights on the Millennium Development Goals since 2002. Professor Alston will speak about the International Covenant on Economic, Social and Cultural Rights Committees General Comments.

The second speaker is Andrew Clapham, Director of the Geneva Academy of International Humanitarian Law and Human Rights and Professor of Public International Law at the Graduate Institute of International and Development Studies. Professor Clapham has worked as Special Adviser on Corporate Responsibility to the UN High Commissioner for Human Rights and Adviser on International Humanitarian Law to Sergio Vieira de Mello, Special Representative of the UN Secretary-General in Iraq. Professor Clapham will address three major contributions Virginia made to economic, social, and cultural fights jurisprudence, all after her seventieth birthday.

The third speaker is Mona Rishmawi, Chief of the Rule of Law, Equality and Non-Discrimination of the Office of the High Commissioner for Human Rights (OHCHR). She has worked for the United Nations since 2000. Until June 2009, she served as the OHCHR Legal Advisor and the Coordinator of the Rule of Law and Democracy Unit. She was the Executive Director of the UN International Commission of Inquiry on Darfur, which led to the first referral of the situation to the International Criminal Court. Between 2000 and 2004, she was the Senior Adviser to two UN High Commissioners for Human Rights: Mary Robinson and Sergio Vieira de Mello. Until the tragic bombing of the UN head-Quarters in Baghdad on August 19, 2003, she was the Senior Human Rights and Gender Advisor to Sergio Vieira de Mello, in his capacity as the Special Representative of the UN Secretary-General in Iraq. She also served as the UN Independent Expert on the Situation of Human Rights in Somalia from 1996 to 2000. From 1991 to 2000, she was the Director of the Centre for the Independence of Judges and Lawyers of the International Commission of Jurists (ICJ). Ms. Rishmawi will speak about the Optional Protocol to the Covenant on Economic, Social and Cultural Rights.

The final speaker is Alicia Yamin, Joseph H. Flom Fellow on Global Health and Human Rights, Harvard Law School; Adjunct Lecturer, Harvard School of Public Health; and Senior Researcher, Christian Michelsen Institute (Norway). She also serves as Special Advisor to Amnesty Internationals global campaign on poverty, "Demand Dignity" (in particular, in relation to the right to health); and as Executive Editor of the international, peer-reviewed journal, Health and Human Rights. Ms. Yamin has served as the Director of Research and Investigations at Physicians for Human Rights and she has conducted human rights documentation and advocacy with both international and local Latin American organizations for twenty years. She is internationally recognized as a leader in the conceptualization and implementation of fights-based approaches to health and has published dozens of scholarly articles and several books relating to health and human rights in both English and Spanish.

Barbara Stark, Professor of Law & John DeWitt Gregory Research Scholar; Hofstra University School of Law.

THE GENERAL COMMENTS OF THE UN COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

It is a particular pleasure to participate in a panel to honor the memory of Virginia Leary whom I first met in the late 1970s in Geneva when we were both working on issues relating to labor rights in the ILO context. We subsequently collaborated on a wide range of projects together. Virginia was deeply committed to using international law to promote just social outcomes, a caring and insightful mentor to younger scholars, generous with her time and intellect, and simply a wonderful human being. The world was a much better place for her presence in it.

Virginia ranged widely in her scholarly pursuits, but two enduring interests were the status of international norms in domestic law (the subject of her dissertation and subsequent book) and the importance of spelling out the jurisprudential content and the policy implications of international norms. In various ways these interests come together in relation to the work of the UN Committee on Economic, Social and Cultural Rights ("ESCR Committee"), and especially in its function of adopting General Comments. In these brief remarks in honor of Virginia, I will trace the origins of the Committee's practice in this regard, briefly outline the character of the approaches it has taken, and then pose several questions which I believe should be explored further by the Committee and those involved in its important work.

The International Covenant on Economic, Social and Cultural Rights ("ESCR Covenant") makes no provision for the adoption of General Comments, nor indeed for the creation of a supervisory committee. When the Economic and Social Council decided to remedy the latter omission in 1985, it made no mention of General Comments. The issue was raised in passing, but not pursued, at the first session of the new Committee in 1987. The informal discussion, however, was sufficient to elicit a response from the Council which instructed the Committee to pay' 'particular regard to practices followed by other treaty bodies, including the preparation of general comments by the Human Rights Committee." (1) It will be recalled that, at that point in time, the latter committee's comments were still rather tentative and not perceived by governments to be problematic in any way. The ESCR Committee seized upon the Council's openness to its undertaking this role by immediately moving to enshrine the power to adopt General Comments in its Rules of Procedure, which were subsequently formally endorsed by the Council.

From the outset the Committee adopted a strategy which consisted of three elements. The first, designed to protect itself from criticism that it was being unduly innovative, was to insist that it was merely doing what the Human Rights Committee had done. For this purpose, it adopted a statement which was almost identical to that used by its sister committee to describe the purpose of its General Comments. Also like its sister, it has failed to update this statement in order to reflect the reality of the functions served by its Comments, preferring instead to maintain the safe fiction that its jurisprudential statements are both based upon and directed at the reporting procedure. The second was to seek to maximize the value of its General Comments by making them relatively detailed, closely aligned to the text of the Covenant, and overtly interpretative. The third was to use the initial set of Comments to reinforce the general framework within which it was seeking to situate its work rather than focusing immediately on the content of specific rights. The latter strategy was dictated by two considerations: to provide a convincing framework within which the specifics could subsequently be developed, and to avoid confronting states parties on the really controversial issues until such time as the Committee had gained sufficient experience and had consolidated its standing within the human rights system.

As a result, the Committees first phase of General Comments covered the ten-year period from 1989 until 1999, during which time it adopted 11 Comments dealing with: (1) the international framework (on reporting obligations, international technical assistance measures, and sanctions); (2) the domestic legal framework (the nature of states' parties obligations, domestic application of the Covenant, and the role of national institutions); and (3) specific forms of discrimination in the enjoyment of the rights (persons with disabilities, and older persons). In addition, it adopted two Comments dealing with the right to housing, propelled by the fact that...

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