The Right to the Continuous Improvement of Living Conditions

Responding to Complex Global Challenges

Jessie Hohmann, Beth Goldblatt, Jessie Hohmann, Beth Goldblatt

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509947843
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

What does the right to the continuous improvement of living conditions in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights really mean and how can it contribute to social change? The book explores how this underdeveloped right can have valuable application in response to global problems of poverty, inequality and climate destruction, through an in-depth consideration of its meaning. The book seeks to interpret and give meaning to the right as a legal standard, giving it practical value for those whose living conditions are inadequate. It locates the right within broader philosophical and political debates, whilst also assessing the challenges to its realisation. It also explores how the right relates to human rights more generally and considers its application to issues of gender, care and the rights of Indigenous peoples. The contributors deeply probe the meaning of 'living conditions', suggesting that these encompass more than the basic rights to housing, water, food, and clothing. The chapters provide a range of doctrinal, historical and philosophical engagements through grounded analysis and imaginative interpretation. With a foreword by Sandra Liebenberg (former Member of the UN Committee on Economic, Social and Cultural Rights), the book includes chapters from renowned and emerging scholars working across disciplines from around the world.

1

Introduction

Situating the Right to Continuous Improvement of Living Conditions and Considering its Interpretations and Applications

JESSIE HOHMANN AND BETH GOLDBLATT

I.INTRODUCTION

This book explores the meaning, implications, and possibilities of the right to continuous improvement of living conditions, contained in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).¹ We ask how the right can be unpacked, interpreted, and applied to respond to complex problems of poverty, inequality, environmental destruction and injustice. As we worked on the chapters, we watched as the unfolding Covid-19 pandemic not only took millions of lives, but worsened poverty and increased joblessness for millions around the world.² It has exposed health, housing, educational and many other inequalities, and deepened imbalances between countries of the global North and South in their capacity to weather economic crises and support their citizens.³ At the same time, the bigger existential threat caused by human damage to the climate looms large in its present and future impacts.⁴

What might the right to continuous improvement of living conditions mean in such a context? How should it be understood on a theoretical and philosophical level? And how should it be translated into actual social change? In a world of unsustainable, yet vastly unequal, production and consumption, the right to the continuous improvement of living conditions can seem both naively and dangerously rapacious. At the same time, considering and seeking to embed this right into human rights in a way that responds meaningfully to these problems offers a potential break from a never-ending economic growth model to more sustainable ideas of what it means to be human.

We can use the right to continuous improvement of living conditions as a lens to focus attention both on this marginalised right, and on a number of questions that underlie its content, scope and potential for realisation. Examining the right gives us new ways in which to move beyond polarised debates in human rights. This is particularly the case for debates on whether human rights have anything to offer on questions of economic equality and distributive justice, and whether economic, social and cultural rights are concerned only with minimum standards, or with human flourishing. Considering the right forces us to examine a number of pressing and fundamental socio-legal questions – from why we have lost or turned away from utopian projects in international law, to issues of distributive justice, to fundamental issues of what constitutes a good life and a just international order. To address such questions, we need radical new ways of thinking about old problems, institutions and arrangements, which draw on the grounded and socially embedded work of scholars.

This collection is thus both a practical project with tangible application in developing the content of the right toward its realisation, and an imaginative project that involves critical exploration of what this right means for our understanding of human rights as a broader goal.

In this introductory chapter we situate the right, and the discussions it prompts, both within human rights scholarship, and within international and regional human rights instruments. Following this contextualisation, we draw together some key themes that emerge from the chapters in the collection that seek to recover the right from its largely forgotten status. These themes provide shape to this interpretive project and prompt important future research agendas on the right to continuous improvement of living conditions. We address the following: First, the question of how to interpret this right going forward, within the context of the ICESCR, human rights as a whole, and the wider architecture of international ordering such as through the international financial institutions. Second, we draw out the complex issue of resources. This involves both a fine-grained look at the measurement of poverty, for instance, and a wider discussion of the pressing need to reconsider the current global economic system, in which the structural injustice of human rights violation unfolds. A third theme is the need to define ‘living conditions’ and consider how an expansive meaning informs the right. A final theme we draw out is direction, trajectory and (forward) movement in human rights realisation, and its relation to recovering the right to continuous improvement of living conditions’ radical potential in human rights thought and practice. The right invites us to re-consider questions of the history, current interpretations and critical understandings of human rights, and their (utopian) futures. We conclude with some suggested future directions for work on this important right.

II.SITUATING THE RIGHT

Article 11(1) enshrines a right to an adequate standard of living in the following terms:

The States Parties to the Present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. (Emphasis added)

Article 11(1) has been interpreted as an umbrella for a number of separate rights. In particular, food and housing have received significant attention,⁵ as has an implied right to water and sanitation.⁶ The final sentence of the right elaborates State obligations for realising the right, including the necessity of action taken in concert, beyond national borders. However, the last clause of the first sentence – the right to the continuous improvement of living conditions – has been largely ignored. It has not yet received extensive or substantive scholarly engagement, or been fleshed out by the relevant human rights bodies, despite otherwise exponential growth in the scholarship and practice on economic and social rights.

A.Consideration of the Right within Human Rights Scholarship

Explicit academic and scholarly attention to the right has been limited to date. This is the case across the leading texts, many of which should be otherwise commended for their rigorous interpretation and analysis of Article 11. For example, a leading Commentary on the ICESCR mentions the right only in a few sentences, and does not engage at all with its content, scope or meaning.⁷ Recent handbooks have not picked up the right for analysis.⁸ Books specifically on economic, social and cultural rights also fail to engage in a sustained way with this clause,⁹ and more general textbooks on human rights have overlooked it.¹⁰ Even those authors who focus specifically on the right to an adequate standard of living, doing much to advance understanding of Article 11, regularly omit any consideration of the right to continuous improvement of living conditions. For example, Eide, a leading expert on the right to an adequate standard of living, has not referred to the right as a substantive head of Article 11 in his work.¹¹ Moreover, a number of important works on the link between human rights and development, a logical area in which to initiate a discussion, particularly given the definition of development as ‘the right of all peoples and individuals to the constant improvement of their well-being’¹² – do not engage with the right.¹³

There are important, if limited, exceptions to this neglect. Craven, an early commentator on the ICESCR, includes discussion of the drafting history of the clause in his authoritative text,¹⁴ and Haugen includes a short, but specific, analysis, concluding that continuous improvement of living conditions is only an element of the right to an adequate standard of living, rather than a substantive right like food, clothing or housing.¹⁵ Haugen’s analysis is based on the grammar of the clause, read in conjunction with the fact that the right ‘has never appeared in the literature as a substantive human right’.¹⁶ Salomon engages with the right in critiquing minimalist approaches to economic, social and cultural rights.¹⁷ And the previous United Nations Independent Expert on Foreign Debt and Human Rights began to engage with the right in the context of mass consumption, and the failure of exponential economic growth to fulfil human rights, in 2019.¹⁸

An important contribution considering the meaning of the right has also been made by Löfquist.¹⁹ In a 2011 article on climate change, justice and the right to development, he situated the central aspect of the right to development (drawing from the Preamble of the Declaration on the Right to Development) as a ‘comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals’.²⁰ Although Löfquist makes only passing reference to ICESCR Article 11(1), concentrating instead on continuous improvement in the definition of the right to development, he proceeds to make a careful and close analysis of a right to continuous improvement of living conditions in a world of finite resources.²¹ Even if, Löfquist argues, the right to continuous improvement of living conditions can be achieved sustainably – through for example an interpretation that focuses on well-being, rather than material standards (which he argues it can), there still remains a problem. This is the issue of who the right holder is: everyone, only some below a certain threshold, or no one? Löfquist seeks to find a solution to this issue that protects the universality of human rights, while at the same time giving extra weight to the needs of the poorest.²² For Löfquist, there is no adequate solution to this problem in ethical and analytical terms: all three categories of rights-holder are, for him, problematic. He thus concludes that the Covenant, and the Declaration on the Right to Development, overreach in setting out such a right:

There is no need to claim that we have a right to an ever-increasing improvement. It is enough to claim that every person should have a right to reach a certain minimum level of well-being; an idea that is more in line with the Declaration from 1948, which stresses that we only have a right to an adequate standard of living.²³

While Löfquist’s analysis rejects the right to continuous improvement of living conditions, it nevertheless provides one of the most explicit analyses of the right in scholarship to date.²⁴

Given that the references to, and analyses of, the right to continuous improvement of living conditions can only be characterised as embryonic, the chapters in this collection significantly expand our understanding of the right, and its implications and importance.

B.The Centrality of the Right to the Human Rights Project

Despite the general neglect of the right to continuous improvement of living conditio...