The Obligations of States under the International Covenant on Economic, Social and Cultural Rights

Any legal researcher cares about the legal ramifications of new laws and covenants. There are many different aspects of international law whose legal ramifications differ a lot. The International Covenant on Economic, Social and Cultural Rights (ICESCR) is one of the two main Covenants of 搕he International Bill of Human Rights? and its legal effects are the subject of much attention and controversy. The Standing Committee of the National Congress of the People抯 Republic of China (PRC) ratified the Covenant on 28 February 2001, and thus it is now of more practical importance than ever for Chinese scholars to discuss and study issues concerned. This paper is to explore the content of and approaches to the ICESCR and its current status in China.

I General Introduction to Obligations of the States under the Covenant

1. Historical Review

The sources of human rights in international law include almost all aspects of international law such as international treaties, international customs, general legal principles, resolutions of international organizations, decisions of international judicial organs, etc. To discuss the legal effect of the International Covenant on Economic, Social and Cultural Rights in order to understand the obligations the Covenant produces, it is useful to look at and distinguish the legal effects of other international law sources and to obtain a broader understanding through a brief historical review.

Before World War II, human rights were regarded as matters falling within domestic jurisdiction, and not within the scope of international law, except for a few particular fields or particular issues. The earliest debates over human rights-related issues concerned the protection of the religious freedom of minorities. Minority groups whose race, religion or language differed from that of the majority group within a state came to be guaranteed certain rights as a result of 憁inority?treaties such as those concluded in Albania, Finland and Poland.

During the interwar period, although the protection of human rights in the international society was still limited to some specific fields, the appearance of international organizations such as the League of Nations and the International Labor Organization signals that some progress was being made. And even in the depths of World War II, on January 1 1942, the Declaration of United Nations was signed by representatives of twenty-six counties, which took the support of human rights and justice as one of the aims of the war.

In 1945, when the San Francisco Conference was held, the issue of human rights was given to a committee for discussion. The subsequent committee report recognized that the problem of human rights is mainly a domestic one; but when the fundamental freedom of the individual is seriously violated, in a way which threatens or obstructs the implementation of the provisions of the Charter of UN, it can no longer be regarded as merely a domestic matter.1

There are nine clauses in the Charter of UN which deal with human rights,2 reaffirming clearly 揻aith in fundamental human rights, in the dignity and worth of the human person ?(Preamble), and providing 損romoting and encouraging respect for human rights and for fundamental freedoms for all?as one of the purposes of the UN (Article1, para.3). In addition to the Preamble, Article 55, Article 56 and the other human rights clauses specify the purposes and functions of the UN and its different bodies, but do not stipulate the obligations of the Member States directly. Article 55 provides that 揥ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: 搮 universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.?According to Article 56, 揂ll Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.?

As to the legal obligations implicit in the human rights clauses of the Charter, there are two opposing arguments. One side denies that the clauses create any legal obligation in strict sense, and argues instead that they only lay down the purposes and functions of the UN and its bodies. For instance, Manely O. Hudson, the judge of the International Permanent Court of Justice, said that the Charter only established an action plan for the UN, in which every Member State promised to co-operate.3 The other position argues that the human rights clauses of the Charter create legal obligation, i.e., to respect and comply with the human rights enumerated in the Charter. Typical of this position are the arguments of the British international lawyer, Hersch Lauterpacht, who declared that all Member States of the UN are legally obligated to act in accordance with the purposes of the Charter, and that the Member States are legally obligated not only to encourage and promote the respect of the human rights laid out in the Charter, but also to respect those human rights. Moreover, those who hold this position argue that the commitment demonstrated by Article 56 of the Charter clearly includes an element of legal obligation.4

Li Ming, a Chinese international law lawyer, cited the above arguments and studied the questions, examining the wording of the Charter, the intent of the drafters and subsequent actions taken by the UN. He concluded that, according to the Article 56 of the Charter, the Member States have a legal duty to engage in international co-operation, i.e., to promote respect for and compliance with international standards of human rights together with the UN, and within the UN framework. However, Li also argued that the Charter does not produce any legal obligation for the Member State independently, neither an obligation to promote the respect of human rights, nor an obligation to respect human rights.5

In the years following the establishment of the UN Commission of Human Rights, many complaints concerning human rights violations were submitted. However, the Commission found that the provisions of the Charter are all abstract principles which are difficult to apply to concrete cases, which made it impossible to address the complaints submitted.6

The Commission soon started its work with the drafting of the Universal Declaration of the Human Rights, which was adopted by the General Assembly on 10 December 1948. There are 30 articles in total, which enumerate both political, civil rights and economic, social and cultural rights. The Declaration has had a profound affect in the decades since it was adopted. The constitutions of many states, especially those of newly emerging states, have adopted all or part of it; and many resolutions and key international conventions ?such as the International Convention on the Elimination of All Forms of Racial Discrimination ?are based upon it.7

However, as far as the Declaration itself is concerned, it is a resolution of the General Assembly of UN, which means it is not of a binding nature. 揟he genuine concern for human rights is difficult to judge, but an important motive-- in particular for the most powerful States--was the need to avoid criticism and, at the same time, to have an opportunity to criticize others. Human rights had become a weapon in the ideological warfare between East and West.? The Americans emphasized that the Declaration was not binding and that according to the UN Charter, 搕he present treatment of Negroes in this country involves only issues which are matters 慹ssentially within the domestic jurisdiction?of the United States.?9 The representatives of China, the USSR, the United States and Yugoslavia were the most vocal supporters of a human rights document in the form of a declaration, which was not formally binding. The 揻irst a declaration, then a convention?strategy won out in practice, although the formal decision, made at the second session of the Commission on Human Rights in December 1947, emphasized parallel work on three documents: a declaration, a convention, and measures of implementation.

Before the Universal Declaration was adopted, the Commission on Human Rights had already begun to draft the international covenant of human rights. This work was started in 1947, and completed towards the end of 1954. The Commission submitted two Covenant drafts - the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights - to the General Assembly of the UN for discussion and revision, but these were not adopted until 1966. After the necessary 35 ratification letters from Member States had been submitted, both of the Covenants entered into effect in 1976.

According to international treaty law, the legal effect of the two Covenants is not open to question. Once the Covenants had been ratified and they entered into effect, the States Parties were to realize their commitments, implement their obligations under it except as indicated by the reservations made legally; and any violation of the obligation should result in an international responsibility to address the violation. While the Universal Declaration of Human Rights is the interpretation and concretization of the human rights clauses of the UN Charter, the two Covenants are the further completion and legalization of the Declaration. Wan Exiang, a Chinese international law scholar, has written that 搕he two Covenants turned the concerted will on issues provided by the Declaration into international agreement law, and introduced a legally binding effect on the States Parties. This meant that the international protection of human rights stepped from a period of anarchy and no law into a new epoch of being organized and legally regulated?10

2.Civil Society and the Covenant

The International Covenant on Economic, Social and Cultural Rights contains some of the most significant international legal provisions establishing economic, social and cultural rights, including rights relating to working in just and favorable conditions, to social protection, to an adequate standard of living, to the highest attainable standards of physical and mental health, to education and to enjoyment of the benefits of cultural freedom and scientific progress.11

As Article 1 of the Covenant provides, 揳ll peoples?are endowed with the right of self-determination and freedom to dispose the natural wealth and resources. However, most of the articles stipulate the individual rights and freedoms. Some scholars believe that the international human rights law provides individual rights and accordingly produces responsibilities for the states and public authorities .12

The Covenant is part of international human rights law, and international human rights law is a branch of international law. In today抯 world, there is no 搘orld government? nor 搘orld congress? and the achievements of international law are not the result of the work of one or two powers, but those of the treaty-negotiations between UN member states. As a result, the legal effect of human rights conventions is attributable only to the participation or ratification of the states. Generally speaking, international law cannot enter into domestic life directly because of the differences between international law and domestic law, and it has effects on individual life primarily through the medium of the States Party in question. In this sense, since the Covenants regulate the rights of individuals, and it is individual as legal entity who enjoys the rights concerned, the Covenants themselves actually deal with the issues on individual rights, and while those rights are the objects of the regulation, individuals are beneficiaries of the Covenants. However, according many Chinese researchers, the status of beneficiary is insufficient to show that individual can enjoy rights and perform duties directly as an entity of international law.13

Many scholars argue that in fact, the states are the main entities of international law. As legal subjects in the Covenant in the strict sense, they directly undertake obligations resulting from the Covenant. The Preamble of the Covenant states that 搕he States Parties to the present Covenant ?agree upon the following articles? According to para.1 of Article 2, 揈ach State Party to the present Covenant undertakes to take steps 厀ith a view to achieving progressively the full realization of the rights recognized in the present Covenant 厰 Almost all of the clauses specifying the human rights concerned in the Covenant use the words 搑espect,?搑ecognize,?搖ndertake,?or 搒ecure?with the States Parties as subjects. The Vienna Declaration and Program of Action in 1993 makes this explicit: 揌uman rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments. ?4

The Covenant lays out the rights and obligations of international organizations, including the systematic arrangement of the functions of the General Secretary, the General Assembly and the UN Economic and Social Council (ECOSOC). These and other international organizations participated the drafting of the international conventions, in different way, and also have some functions under them, enabling them to act directly according to international law. Thus they too have the status of entities of international law. As far as the Covenant on the Economic, Social and Cultural Rights is concerned, the UN and its relevant bodies are the international entities under the Covenant.

Because of the very nature and features of economic, social and cultural rights, the issues involved are usually systematic, complex and costly in terms of time and money. Generally speaking, full protection of the human rights in question cannot be implemented immediately, but rather needs systematic social transformation. As a result, the issues concerned involve a large number of entities, many more than just the States Parties and the international organizations referred to in the Covenant.

The Chinese scholar Liu Junhai argues that human rights researchers usually focus on to the realization of the obligations of the states concerning the economic, social and cultural rights, but omit the responsibilities of domestic civil society; he emphasizes especially the role of the companies.15

According to Article10, which regulates the prohibition of child labor and other international documents such as the Convention on the Rights of the Child, the UN Children抯 Fund, the International Labor Organization, the World Health Organization, UN Educational, Scientific, and Cultural Organizations and the UN Commission on the Human Rights, etc., are to exert positive efforts in international society,. The international non-governmental organizations also play an important substantive role in this field: they promulgate specific rules, provide professional comments, collect and analyze relevant information, observe and supervise relevant treaties, coordinate international co-operation, and provide international aid.

For a long time, the ILO advocated in favor of taking economic and social measures to resolve the problem of child labor. However, the Convention on the Rights of the Child indirectly recognizes that only after the fundamental and long-term issues of poverty and underdevelopment are resolved, can the child labor question be resolved. In this national procedures are crucial, so much of the work of the Committee on the Rights of the Child aims at encouraging a good processes at the national level.16 To combat the practice of hiring children, it is not enough to depend solely upon the strength of the government. Social participation and comprehensive measures should also be mobilized. In recent years the newer approach to dealing with the problem of child labor is to change from merely implementing labor and obligatory education laws, to paying more attention to adopting preventive social and economic measures. It is necessary to motivate all available resources, pinpoint and effectively resolve existing problems in the society, provide quantitative and object-oriented education, afford safe working conditions and remedial measures, and rehabilitate those children who were in dangerous working conditions or previously engaged in exploitative work before. All of this requires comprehensive policies, extensive organizational arrangements and broad co-operation. It depends on concerted and effective co-operation by different organs of government, non-governmental organizations, companies, associations, individuals, especially the employers, the employed children, the families concerned, the units on grass roots level and other interested actors.

In recent years the role of national human rights institutions has also received significant attention.17 Considering that the enforcement of international human rights conventions depends upon national governments in many countries, or is at least proposed by many of them, the rise of these institutions opens a new page for implementing the international human rights treaties and realizing human rights at the national level.

There are many entities involved. However, in international human rights law, neither the International Covenant on Economic, Social and Cultural Rights nor the Convention on the Rights of the Child provide any legal obligation of social organizations, individuals, etc. According to Article 2 of the Covenant, each State Party undertakes to take steps with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means. Obviously, the states can and should call on and promote the endeavors of the aforementioned domestic social actors to help to implement the Covenant.

3. Features of the Obligations and their Legal Nature

It is obvious that the International Covenant on Economic, Social and Cultural Rights is an international law document. However, just as international law and international politics are closely linked, so human rights law is intertwined with moral considerations.

Gong Renren, a scholar at Peking University argues that, 揟oday, although we do not necessarily base human rights on the assumption of the 憂atural state? most jurists (whether international or domestic lawyers), philosophers and moralists recognize that each person should enjoy some fundamental rights at least theoretically or morally.?8

As a result of the grave trampling of human rights during World War II, whose atrocities shocked the conscience of all mankind, the renaissance of natural law appeared in the fields of philosophy and jurisprudence, which lead international law to focus on individuals and consequently have very close connections with domestic law in the area of human rights.19

In some sense, the human rights conventions result from the drive of moral responsibilities. Because of this, in our daily life, it is natural to find that the specific clauses of the human rights conventions will be cited at will, no matter whether the instruments are legally effective for the specific situation and whether it is applicable according to the legal procedures.

It is clear, then, that the significance of human rights conventions goes beyond their initial remit, and that the new concepts and ideas which arrive with them carry immense moral weight. For example, Katarina Toma歟vski, a Croatian human rights expert, thinks highly of the Convention on the Rights of the Child, saying that international human rights law has a growing and very important tendency to recognize the rights of the child and the protection of the best interests of the child.20 In other words, international human rights law gradually enhances the understanding of the child and enriches the concept of childhood. It is reasonable to say that the new concept of the child and the human rights convention concerned are inter-related and can support each other.

Therefore, these conventions may serve as a kind of moral or legal sources; even if a state has not joined a convention, it can still refer to the provisions of the convention. For example, Jia Junling, a Chinese labor law professor, said that though China is not member state of some international conventions, in the process of drafting Chinese legislation on social security, the conventions and recommendations adopted by the International Labor Organization are important references.21

However, the legal approach cannot always be mixed with moral considerations. The human rights obligations of the state which are based on the moral responsibilities may be ambiguous, unstable and not operational. What is more, if we do not distinguish between moral and legal obligations, practices which go beyond the legal boundaries in the name of moral considerations are likely to occur. The issues concerning humanitarian interference which have caused much controversy are somewhat like this.

No matter whether a state ratified the Covenant on Economic, Social and Cultural Rights or not, people hold some expectations in regards to it. Based on domestic constitutional law, the state undertakes obligations to promote the economic, social and cultural rights of its nationals. But the Covenant is an international law source, with the legal meaning as the primary significance of its text, requiring the participation of the states in the international human rights law protection mechanism.

In other words, it is necessary to distinguish the moral and legal obligations of a state. What is important are the legal obligations of the Member States of the Covenant. This is not to say that the moral obligations have no bearing on the legal ones,22 but rather that it is essential to emphasize the legal nature of the Covenant in order to understand it exactly and make some reference to its practical implementation.

Depending on the standards used, human rights in international law can be classified into different types. Both the classifications according to international law instruments and the approach categorized as 搕hree generations of human rights?focus on economic, social and cultural rights.

As in the division of the two Covenants, human rights are often divided into civil and political rights on the one hand and economic, social and cultural rights on the other. Based on this, and from a historical perspective, many scholars categorized human rights into three generations.23 Economic, social and cultural rights are asserted to constitute a 搒econd generation?of human rights arising at the end of the 19th century and the beginning of the 20th century in the socialist movement against exploitation and oppression, while the 揻irst generation?includes the civil and political rights which first appeared first during the European human rights movement of the 18th century. The 搕hird generation?of human rights refers to the collective rights that were developed after World War II and were connected with the emergence of many new nation states.

The economic, social and cultural rights are often discussed together with civil and political rights. Some scholars regarded this as the result of political divisions stemming from the confrontation between the East and the West during the Cold War.24 Before the drafting of the Covenants, against the background of the Cold War, the Western states considered that the civil and political rights are more important, and in some cases that the other type of human rights should not be termed human rights at all. Even some scholars who recognized that they were human rights refused to include both types of human rights in the same convention. Views like this met with severe opposition. In 1950, at its tenth session, the Economic and Social Council decided to seek the advice of the General Assembly. According to the answers to the policy questions provided by the General Assembly, the Commission on Human Rights decided that it should include both types of the rights in the draft of the Covenant. However, the General Assembly subsequently reconsidered the question at the request of the Economic and Social Council and reversed its previous decision by a small majority of votes. The new decision held that two covenants should be drafted, but that they should aim to include similar provisions in order to maintain the unity of purpose of the Covenants. The political background behind the decision is that in 1951, the economic, social and cultural rights were thought to be 搒ocialist?and were therefore unacceptable to certain governments.25

What are the differences between the two types of rights, and how do they affect the obligations of the states?

First, according to Article 2 para.1 of both Covenants, it is said that civil and political rights should and can be implemented immediately. In contrast, most of the economic, social and cultural rights (which relate more to goals, polices and programs) can only be implemented 損rogressively? since they depend on the resources available to the states parties, and positive financial support is often a necessary prerequisite for implementing them.

Secondly, it is generally regarded that civil and political rights emphasize freedom from the interference from the state, while economic, social and cultural rights require the positive involvement of the state. Thus there are negative obligations for the former and positive obligations for the latter. The two Covenants also require that different measures be adopted. For example, the Covenant on Civil and Political rights provides these rights using the words 揺veryone shall have the right?or 搉o one shall be subjected to厰, while the International Covenant on Economic, Social and Cultural Rights provides these rights using the words 搕he States Parties to the present Covenant recognize [emph. added]?or 搕he States Parties to the present Covenant undertake to ensure [emph. added].?

Thirdly, civil and political rights are held to be rights of a minimum and unchangeable nature; they cannot be different in different states. However, economic, social and cultural rights will vary significantly from state to state according to the level and mode of their economic, social and cultural development; as far as these rights are concerned, there are both common aims and plentiful and different concrete contexts, and the obligations of the states and the implementation measures are also not uniform. The civil and political rights are of an absolute nature, and in recognizing these rights the positive law merely protects the pre-existing rights of the individual; but the economic, social and cultural rights are more subjective.

Fourth, with regards to civil and political rights, all of the rights concerned are to be realized as a whole, immediately and in a way that ensures that everyone enjoy them. For economic, social and cultural rights, the rights concerned can be implemented partly according to specific conditions; for some rights it may be necessary to apply them to only a subset of a state抯 nationals.

Finally, most of the civil and political rights are justiciary, while the economic, social and political rights are not.

M. Bossuyt is one of the scholars who support the views incorporated in the above summary of the distinctions and features of the two types of rights. The first and second explanations also enjoy extensive support among Chinese scholars.26 However, on the question of how to evaluate these differences, G.J.H. van Hoof, a scholar from the Netherlands rebuts the opinions of M. Bossuyt convincingly.27

In fact, the gap between two of them is not as big and clear as the theoretical description might imply. As far as the civil and political rights are concerned, the realization of a number of civil and political rights, such as the right to a fair trial and the right concerning periodic elections, may require significant financial outlays from the State. The guarantee of the right to a fair trial also necessitates the positive measures adopted by the State. On the contrary, with regards to some of the economic, social and cultural rights, the United Nations Children抯 Fund and the World Health Organization frequently publish data on the low cost of inoculating children against the six major preventable diseases (concerning the rights to health provided by the International Covenant on Economic, Social and Cultural Rights, Article 12)28 Moreover, the freedom to organize trade union provided by the International Covenant on Economic, Social and Cultural Rights also involves a negative obligation on the part of the State. And in the end, the two Covenants both include principled clauses and specific and operational clauses; in the event that any right laid down by either Covenant be violated or not be ensured, the legal status and dignity of a person will be directly affected, so the importance of them is the same. Therefore, the integrity of human rights must be emphasized, and one should not make use of one right to deny another, or set them in a priority order.

Based on the features of economic, social and cultural rights referred to above, some deny their legal nature. They believe that holders of those rights cannot realize the rights by resorting to the judiciary tribunals or other means of legal redress. They argue further that for most of the rights, there is no clear legal definition for the actions provided for, so the implementation of these rights constitutes a political problem, not a legal one, and the provisions concerned are of a moral and advisory nature but have no legally binding effect.29

In fact, generally speaking, economic, social and cultural rights are principles. But strictly speaking, we cannot say that they are not enforceable. Via detailed legislation or translated into domestic law, they are also specific, operational, justiciable, and involve rights and duties; and in the international multi-cultural society, considering the specific conditions of different states, it cannot and is not necessary to make out a very detailed extensive convention.

In domestic law, especially constitutional law and general basic laws, there are also provisions for guiding-lines or principles, for example, those of legal protections of the rights to life and liberty. These are 搖mbrella rights,?deriving from which are a series of more detailed rights and obligations. The Covenant is the first step toward the legalization of the economic, social and cultural rights, and there still is a long way for international society and the states to go to develop them, including making some of them more detailed. In practice, with regards to the provisions concerned, the International Labor Organization, the World Health Organization, the UN Children抯 Fund, etc., together with the states, have taken many consequent actions and adopted many international conventions and other legal instruments aimed at promoting the international protection and realization of these rights inside the states.

II Substantive Obligations of the States

Unlike the general treaties, the international human rights conventions are not based on co-operation between the member states and the reciprocity between rights and obligations, but on the interests of the individuals under the jurisdiction of the member states.30

1. General Comment No. 3

As far as the obligations of the states under the International Covenant on Economic, Social and Cultural Rights are concerned, beginning with its third session, the Committee on the Economic, Social and Cultural Rights has been adapting its General Comments on the clauses and provisions in the Covenant to aid the Member States in implementing the tasks concerned and to assist them in correcting the defects reported by the states, as well as recommend methods to improve the reporting procedures. Those General Comments provide directions and references for the Member States to implement the Covenant. For example, the subject of the General Comment adopted in 1990 is 搕he nature of States Parties obligations? which specifies in detail the meaning of Article 2 para.1 of the Covenant, namely that 揈ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.?1

This General Comment constituted a significant development in the thinking of the Committee, as it was stated here that the Covenant does contain obligations that have 搃mmediate effect,?and that 搕aking steps?to achieve progressively the full realization of economic, social and cultural rights should be done 搘ithin a reasonably short time after the Covenant抯 entry into force for the States concerned.?2 Moreover, the Committee observed that 揳 minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party.?This observation has formed the basis for the Committee抯 approach to the Covenant in general.33

This article laid down the substantive obligations of the Member States, with broad substantive content but also with a margin of discretion. The fundamental principle it provides, together with the clauses of the Part II of the covenant that provide the specific human rights, constitutes the substantive obligations of the states under the Covenant. Part IV, on the reporting system, provides the procedural obligations under the Covenant. Of necessity, the obligations discussed here refer to those of the states in international law.

2. Multi-part Typology of State Obligations

As far as the substantive obligations of the states are concerned, the General Comments of the Economic, Social and Cultural Rights Committee on specific articles or subjects concerned are the best references. Scholars have provided more general theoretical analyses as well.

For instance, Louis Henkin, an American international law lawyer, observed that the 揑nternational Bill of Human Rights?demands that the state recognizes, respects and ensures human rights within its domestic regime.34 Asbj鴕n Eide, the Norwegian human rights scholar, classified the obligations of the state into three levels: to respect the rights holder抯 freedom and independence, to protect his or her rights against any unlawful violation by any entity through legislation and effective remedial measures, and to assist every individual to fulfill the rights by attaining available resources to the greatest extent possible and meeting directly an individual抯 basic needs over the course of his or her lifetime.35

G.J.H. van Hoof, another human rights scholar from the Netherlands, observed that the states undertake four 搇ayers?of obligations under the International Covenant on the Economic, Social and Cultural Rights, which may be described as 揳n obligation to respect, an obligation to protect, an obligation to ensure, and an obligation to promote. The obligation to respect forbids the State itself to act in any way to encroach upon recognized rights and freedoms, which, therefore, closely resembles what in the traditional scheme was called an obligation of non-interference. The obligation to protect goes further, in the sense that it forces the state to take steps ?through legislation or otherwise - which prevent or prohibit (the third persons) from violating recognized rights and freedoms. The obligation to ensure requires more far-reaching measures on the part of the government in that it has to actively create conditions aimed at the achievement of a certain result in the form of a (more) effective realization of recognized rights and freedoms. The obligation to promote is also designed to achieve a certain result, but in this case it concerns more or less vaguely formulated goals, which can only be achieved progressively or in the long term. The obligation to ensure and that to promote together encompass, inter alia, what are called 損rogrammatic?obligations within the framework of economic, social and cultural rights.?6

The General Comments of the Committee on Economic, Social and Cultural Rights also provide multi-layered obligations. For example, General Comment 12, on the right to adequate food, states that, 揟he right to adequate food, like any other human right, imposes three types or levels of obligations on States Parties: the obligations to respect, to protect and to fulfill. In turn, the obligation to fulfill incorporates both an obligation to facilitate and an obligation to provide.?7

Of course, analyzing the different layers of state obligations is a theoretical approach that facilitates analysis and examination. However, in practice states practices must include all of the multiple layers of the obligations, as these are neither clear-cut nor able to exist independently of one another.

3. Obligations of Conduct and Result

The International Law Commission has interpreted Article 2 para.1 as imposing 搊bligations of result?rather than 搊bligations of conduct?upon the States Parties.38 An 搊bligation of conduct?is one where an organ of the State is obliged to undertake a specific course of conduct, whether through act or omission, which represents a goal in itself. In contrast, an 搊bligation of result?requires a State to achieve a particular result through a course of conduct (which also can be by act or omission), the form of which is left to the State抯 discretion.39

This classification of the States?obligations is clear from a theoretical perspective. In practice, Article 2 of the Covenant does not expressly formulate one of the two types of obligations. Although its formulation is ambiguous, it is not possible to argue that States have total discretion as to the means employed to achieve the end of 揻ull realization of rights.?Otherwise, there would be little basis for judging whether or not the States were acting in good faith. Indeed, in this context the human rights scholar Craven warns that to conceive of the Covenant as merely imposing obligations of result is to deprive it of any serious content.40

Originally, some of the drafters of the Covenant believed that it would be necessary to specify in detail the particular steps to be undertaken in order to implement the relevant rights.41 However, in practice, the approach finally adopted in the Covenant is uneven. For example, Article 11 contains a long list of steps concerning the right to be free from hunger, while Article 9 simply recognizes the right to social security and makes no mention whatsoever of any steps relevant to its realization. This result in part from the nature of the issues concerned. For many of the economic, social and cultural rights, it is impossible and not necessary to enumerate the measures in sufficient detail to enable their implementation in all contexts. Meanwhile, a commitment to 揼uarantee?a result instead of 搕aking steps?would have been too 搊nerous?for the States and could not be accepted.42 Instead, terms such as 搖ndertake to take steps?and 揳chieve progressively?are incorporated.

It is neutral to say that Article 2 includes obligations of both conduct and result, for it mentions the result (i.e. 搕he full realization of the rights?, and also refers to the actions and measures the States should take. In fact, the difference between these two types of obligations is not as great as it might at first appear. In practice an obligation of conduct often includes an objective leading towards a result, while an obligation of result inevitably requires a specific course of action. But the classification is still useful to emphasize or specify a particular aspect of the implementation of the Covenant.

When commenting upon the obligations ensuing from Article 2 of the Covenant in General Comment No.3, the Committee expressly stated that: 揟hose include both what may be termed (following the work of the International Law Commission) obligations of conduct and obligations of result.?3 However, in face of the indeterminate and conditional nature of the results to be achieved, the Committee has tended to concentrate upon obligations of conduct.44 This in turn requires significant efforts to outline the principles to direct and regulate States?conduct during the process of implementation of the Covenant.

Generally speaking, the obligations of the States under the Covenant seem rather high, if one focuses solely on the obligations of result, especially the full enjoyment of the rights recognized by the Covenant. The purposes of the Covenant may be ambitious and much work remains ahead before those rights are completely realized. But the typology and classification discussed above may assist in defining both the immediate steps to take and the longer term direction in which to proceed.

III Procedural Obligations of the States

1. Monitoring Body of the Covenant

Compared with the substantive obligations, the procedural obligations of the States Parties are less complex.

Unlike the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights does not establish a supervisory organ. And there is no optional procedure to enable one state to accuse another of breaching the Covenant, or optional protocol enabling individuals to complain about a state. What is provided for instead is a common reporting system.

However, the capacity of the Economic and Social Council or the Commission on Human Rights to conduct concrete observation or produce comments on and suggestions for specific States is rather limited. Reports on individual States may discuss the factors and difficulties affecting the degree of fulfillment of obligations under the Covenant. The Economic and Social Council may from time to time submit reports to the General Assembly with recommendations of a general nature and a summary of the information received from the States Parties and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the Covenant. However, these reports and recommendations are merely advisory rather than legally binding. This structure is the result of an attempt to reduce the States Parties?difficulties stemming from their participation in international agreements, and therefore avoids criticizing them for failing to live up to the Covenant.45

After the Covenant抯 entry into force on 3 January 1976, ECOSOC adopted Resolution 1988 (LX), calling for the establishment of a Sessional Working Group, to assist it in the consideration of the submitted reports. Subsequently ECOSOC Resolution 1978/10 on the framework for the composition and administration of the Sessional Working Group was adopted in 1978. The Group抯 work was not satisfactory,46 and the idea of creating a Committee of Independent Experts received particular attention during a consultation by the Secretary-General of all the States Parties, which was requested by ECOSOC.47 As a result, the Committee on Economic, Social and Cultural Rights (CESCR) was established pursuant to ECOSOC Resolution 1985/17. In contrast to the treaty bodies of the other UN human rights covenants and conventions, it derives its legitimacy from a UN resolution, not the original treaty itself. The powers conferred by ECOSOC on the Committee are formally restricted and its status and competence are temporary. In practice the Committee抯 work has been very creative, and often endorsed by the Council. Also, the resolution-based framework is more easily altered and improved than treaty-based bodies. In September 1996, the Secretary-General produced a document concerning the legal status of the Committee and its follow-up procedures, pointing out that there is a need to 揷odify the 憂ormative work?accomplished by the (Economic and Social) Council since the entry into force of the Covenant, thus bringing the Committee into line with other similar human rights bodies.?8

Since beginning work in 1987, the Committee on Economic, Social and Cultural Rights has been acting as an independent treaty body, adopting many of the working methods of other UN treaty bodies such as the Human Rights Committee (the supervisory body of the International Covenant on Civil and Political Rights (ICCPR)).

2. Reporting Procedures

According to Articles 16 to 21, the States Parties to the Covenant undertake to submit reports on the measures that they have adopted and the progress made in achieving the observance of the rights recognized herein. All reports are to be submitted to the Secretary-General of the United Nations, who is to transmit copies to the Economic and Social Council, the specialized agencies or the Commission on Human Rights which have the power to make recommendations for consideration on the implementation of the human rights.

The Committee on Economic, Social and Cultural Rights is primarily responsible for overseeing the periodic reporting procedure. In its First General Comment, it has formulated the functions or objectives served by the reporting procedure, namely:49

(1) Initial review;

(2) Monitoring;

(3) Policy formulation;

(4) Public scrutiny;

(5) Evaluation;

(6) Acknowledging problems;

(7) Transmitting information and enhancing awareness.

Based on existing practices, the results of the reporting procedure may include:50

(1) Determining of violations of the Covenant;51

(2) Urging the adoption of new legislation;

(3) Urging the repeal of existing legislation;

(4) Encouraging implementation of new legislation;

(5) Encouraging preventive action to avoid violations of the Covenant;

(6) Urging the implementation of NGO-devised plans; 52

(7) Recommending the substantive provision of rights;

(8) Recommending specific policy measures.

The above list of functions is somewhat theoretical, given that not all of them are used by the Committee on a regular basis. After considering a report from a Member State, the Committee produces a concluding observation concerning the specific State. These observations are the main channel through which the Committee supervises the compliance of the Member States with the Covenant抯 provisions.

Even if it were possible for the national reports to be submitted and examined in a timely fashion - which is not yet the case - the reporting procedure would remain flawed. First, the process is not legally binding, and so cannot ensure that the Member States will act in accordance with the conclusive observation reports or other conclusions drawn by the supervisory bodies. What is more, because the reports usually deal with matters in general sense, rather than with specific cases, there are no remedial provisions for handling individual cases of human rights violations.53

3. Other Working Methods of the Committee

One of the most important working methods of the Committee on Economic, Social and Cultural Rights is the practice of adopting General Comments on different aspects of the Covenant and the Committee抯 work, first initiated at the third session in 1989.54 Its aims are as follows:

揫To make] the experience gained so far through the examination of these reports available for the benefit of all States Parties in order to assist and promote their further implementation of the Covenant; to draw the attention of State Parties to insufficiencies disclosed by a large number of reports; to suggest improvements in the reporting procedures and to stimulate the activities of the States Parties, the international organizations and the specialized agencies concerned in achieving progressively and effectively the full realization of the rights recognized in the Covenant.?5

The most recent General Comment adopted is General Comment 14, on the right to the highest attainable standard of health.56

Another working method of the Committee is the Day of General Discussion. This is based on the recognition of the importance of developing the normative framework of the Covenant, in conjunction with available expertise in the field of the human rights. This is the day of each session reserved for a general discussion of one specific right or a certain aspect of the Covenant, aimed at developing a greater understanding of the relevant issues.57 The Days of General Discussion have two main purposes: 搕he day assists the Committee in developing in greater depth its understanding of the relevant issues; and it enables the Committee to encourage inputs into its work from all interested parties.?8 Normally, Days of General Discussion are announced a year in advance, and relevant decisions are included in the Committee抯 annual report.

The procedural reporting obligation of the Member States is the implementation measure provided by the Covenant, and provides the substance of its implementation system. But it seems somewhat weak given the weight of the States?substantive obligations. The substantive obligations are plentiful, with many goals, high standards (as illustrated by the words 搕o the maximum,?揻ull realization,?揳dequate,?揺veryone,?etc.). In contrast, the procedural duties are flexible to a great extent, and therefore unable to provide legally binding supervisory strength, which fully reflects the so called weakness of international law as 搒oft law.?

IV Improvement of the implementation of the Covenant and Principle of Subsidiarity

1. Improvement of Procedural Obligations

It is obvious that there is a dissymmetry between the procedural obligations and the substantive obligations under the Covenant, and also a need to improve the relevant implementation mechanisms. The issue of how to improve these aspects of the Covenant involves both theoretical and practical considerations.

Examining the procedures laid out in other UN human rights conventions, it is natural to consider the possibility of introducing an Optional Protocol in which individual complaint procedure is provided for in order to strengthen the implementation of the Covenant by the Member States. Indeed, the adoption of such an Optional Protocol to the Covenant has been the focus of many actors in the field of the economic, social and cultural rights for several years. The Committee on Economic, Social and Cultural Rights has been contemplating the adoption of such a protocol since its fifth session in 1990, yet only in 1997 did it present a draft Optional Protocol to the Commission on Human Rights. Unfortunately, to date the outlook remains uncertain. This is in part due to the continuing dissension as to the suitability of the complaint procedure for addressing alleged violations of economic, social and cultural rights. Many governments still argue that the procedure would interfere too much with their domestic affairs, and exceeds the scope of the Committee抯 remit.59

However, many scholars continue to work to promote the process, by attempting to prove the justiciability of at least some, if not all of the economic, social and cultural rights; originally this was argued with the intent to prove the legal nature of these rights, and but it has been transformed into an attempt to prove the suitability of the individual complaint procedure at international level. Scholars also work to provide theoretical support and guidance for the adoption of a potential Protocol. For example, during the 1995 Netherlands Institute of Human Rights Expert Meeting on an Optional Protocol to the Covenant, C. Flinterman (Director of the Netherlands Institute of Human Rights (SIM)), presented six principles that ought to be reflected in the draft of the envisaged Protocol:

?1) The principle of simplicity: everything should be written for a wider world audience, to enhance the accessibility of the text and its contents;

(2) The principle of pragmatism: it is important to avoid inclusion of unresolved doctrinal issues;

(3) The principle of agreed language: wordings of similar instruments should be taken into consideration;

(4) The principle of progressive development: relevant States?practice and practices under other human rights instruments, such as the ICCPR, the CERD (Convention on Elimination of Discrimination against Women) and the CAT (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) should also be considered and incorporated in an Optional Protocol;

(5) The principle of realism or political feasibility: the political reality is a factor not to be neglected;

(6) The principle of human dignity: the basic background of the United Nations should be borne in mind, i.e. the continuous affirmation of the faith in fundamental human rights, the dignity and worth of the human person, and equal rights for men and women.?0

These principles are very helpful for facilitating the draft and adoption of the Protocol. However, the doubts of many governments on justiciability and the alleged danger of interference with sovereignty still exist.

Scott Leckie proposed two 搈odest ideas?for improving the current UN treaty system, namely, the digitalization the reporting system and more systematic and intensive secretariat follow-up.61 He also emphasized the role of NGOs by saying that some good 搑esults would not have been possible without the active participation of NGOs. ?2 Both would be effective and practical ways of improving the implementation of the Covenant.

What follows is an attempt to elucidate some fundamental principles and theories to assist in resolving the problem. In this context the principle of subsidiarity is particularly worth noting and exploring: improving the implementation of the Covenant involves the allocation of institutional competence between international organizations and the States, so constitutional law principles such as the principle of subsidiarity may assist in sorting out the current difficulties. 63

2. Subsidiarity in the European Union

At its most basic, subsidiarity is the principle that decisions should be taken at the lowest level consistent with effective action, while some necessary actions should be conducted by authorities at higher levels, based on authorization. The modern principle of subsidiarity has emerged out of a lengthy historical development.64 It was first developed in the Encyclical Letter, Quadragesimo Anno, of Pope Pius XI (1931) as a canon law principle of the Roman Catholic Church and as a means of maintaining the authority of the Church against the ever-encroaching power of the State.65 It emerged as a response to the social disorder occurring at the time and subsequently became part of the Catholic Church抯 social doctrine and philosophy.66 Over time it developed into a principle that can be applied at the international level to allocate powers between the institutions of the world community and institutions at the state and local levels.

The subsidiarity concept was extended and adopted in German constitutional law in 1848. It presumed that the lower realms of authorities and jurisdictions within the state抯 political hierarchy would be favored. Central government authorities were expected to exercise only those powers that could not be discharged by the provincial or local political units, although nothing precluded the central body from transferring some of its authority to lower echelons in the governance hierarchy. This principle also finds a parallel in the Tenth Amendment to the United States Constitution. 67

The adoption and practice of the principle of subsidiarity in the European Union is notable. Within the EU, the principle of subsidiarity has not just applied since its incorporation in Article 5 of the European Economic Community Treaty (ECT). As far back as 1951, Article 5 of the European Coal and Steel Community Treaty (ECSCT) stipulated that the Community should exert direct influence on production only when circumstances so required. And although it was not expressly so defined, a subsidiarity criterion was included in Article 130r ECT, on the environment, by the Single European Act in 1987. However, the Court of First Instance of the EC ruled in its judgment of 21 February 1995 68 that the subsidiarity principle was not a general principle of law against which the legality of Community action should be tested before the EU Treaty entered into force.

The subsidiarity principle works in two ways. On the one hand, it allows the Community to act if a problem cannot be adequately settled by the Member States acting on their own. On the other, it seeks to uphold the authority of the Member States in those areas that cannot be dealt with more effectively by Community action. The purpose of including this principle in the European Treaties is to bring decision-making within the Community as close to the citizen as possible.

Under Article 5, para. 2 ECT there are three preconditions for Community action in accordance with the principle of subsidiarity:

(1) The area concerned must not fall within the Community's exclusive competence;

(2) the objectives of the proposed action cannot be sufficiently achieved by the Member States;

(3) the action can therefore, by reason of its scale or effects, be implemented more successfully by the Community.

Without changing the wording of the subsidiarity criterion in Article 5 para. 2 ECT, the Treaty of Amsterdam (1999) incorporates the 揚rotocol on application of the principles of subsidiarity and proportionality?into the European Treaties. The principle of subsidiarity applies to all the Community Institutions. The rule has practical significance for the Council, Parliament and Commission in particular. The Court's decisions are also bound by Article 5 para. 2 ECT.

In its resolution of 13 May 1997 on the Commission reports on application of the subsidiarity principle in 1994, 1995 and 1996, the European Parliament drew attention to the binding, constitutional nature of the subsidiarity principle, which was subject to interpretation by the Court. However, the launching of the word subsidiarity into the debate on the European Community has shown it to be a politically potent and highly ambiguous concept.69 There are several aspects of the justiciability of subsidiarity: relevance, necessity and efficiency.70

Where the Community抯 objectives fall within the powers authorized to it and are then accepted by the Court, the Court抯 task is to satisfy itself that the proposed Community action is reasonably related to the Community抯 objectives. The Court must also determine that the action does not go beyond what is necessary to achieve those objectives. Finally the Court must determine whether the Community-defined objectives could be accomplished at least as well by national action. If national action is not shown to be equivalent or preferable, the Community is free to act. So, the principle is justiciable and not just a political slogan.

A more difficult balancing problem appears in instances where Community objectives could be attained both by member State and by Community action. In these cases the standard has been held to be efficiency, according to the demands of the principle of subsidiarity.

In the short term subsidiarity has already made a substantial impact. It is said that few speeches are made on the development of the Union without some reference to subsidiarity.71 Although easy to enunciate and difficult to apply, the principle will serve a useful purpose in the long run if it prompts clear thinking on the role and efficiency of national and European institutions within a larger, more diverse European Union.72

3. Subsidiarity in the Field of Economic, Social and Cultural Rights

In the context of ongoing globalization, the issue of the legacy of internationalization of human rights or other affairs becomes critical. F. von Hayek, a German scholar, argued that the doctrine of federation is the only way to realize the ideal of international law.73 The essence of his argument is as follows: the sovereign state should take primary responsibility rather than allowing international law regulate or interfere with the internal legislation of the state as much as possible. From this perspective, the primary responsibility to respect and implement international human rights standards lies with the state itself.

The practice of European Union is inspiring, although it should be born in mind that the European context is more favorable than international society as a whole for the application of the principle of subsidiarity, given the (relatively) similar cultural and economic backgrounds of the States in Europe.

The applicability of subsidiarity to the international field of economic, social and cultural rights is grounded in the following:

(1) International society is composed of the states and tends towards multi-polarity. There are different nations, cultures, developmental levels and processes, which it impossible to implement a uniform system of rules and in a way that is beneficial to all. The goals of the Covenant can only be realized according to specific conditions of the Member State, through locally developed and implemented procedures;

(2) Currently there exists a need for international co-operation and supervision of economic, social and cultural rights recognized by the Covenant. There is also a need to resolve the dissymmetry between the States?substantive and procedural obligations, by improving or strengthening the procedural obligations of the States.

Some potential means of improving the implementation of the Covenant, in accordance with or inspired by the principle of subsidiarity, are as follows:

(1) The primary responsibility for enforcing the Covenant should lie with the States Parties, as discussed above. The States Parties to the Covenant must assume most of the responsibility for enforcing the promises they make upon ratification of the Covenant. This follows from the existing framework of the international society: there is no world government or other world authority which can effectively realize human rights for individuals at the local level. Moreover, resources are basically in the hands of the unit of the international society, i.e., the state party to the Covenant. What is more, the enforcement of the Covenant will also benefit from the local knowledge, experiences and creativity.

(2) Implementing improvements to the Covenant can also be achieved practically through regional arrangements. Given that in practical terms both universal and more relativist concepts of human rights exist, both the global framework and the regional context should be emphasized and interrelated. Given that it is necessary to compromise among so many different interests and take into consideration so many different conditions, universal arrangements are not always capable of being both ambitious and all-inclusive. But it is important to adopt basic universal standards, in addition to which some States may also adopt the special arrangements which they find most acceptable.

Practices in European Union and other regional organizations have shown the important role that regional actors or frameworks can play. When the principle of subsidiarity is applied in international society, the concept of 搇ocality?can be interpreted more broadly. The concept of 搑egional?can be used in a broad sense as well, to refer both to the geographical meaning and also to arrangement(s) between any group of two or more States. For instance, regarding international cooperation on technical assistance and situation evaluation, it is possible that some States do not trust one or several of the Committee members, and possibly even the whole body of the UN Committee on Economic, Social and Cultural Rights, but this does not mean that there are no UN Member States which they trust. According to the principle of subsidiarity, the Committee can help to establish and coordinate some kind of bilateral or other regional arrangements.

(3) Concerning issues necessary for international supervision and co-operation, the States Parties should authorize a UN treaty body to assume the responsibilities. Improvement of the implementation mechanism for the Covenant should strengthen the organization抯 core mission: facilitating and conducting international cooperation and assistance, intervening in situations where appropriate or where intervention is the only way to resolve the problem in question.

Today, there is no doubt that human rights are not only part of the internal affairs of a State; there is similar consensus that international promotion and protection of human rights is possible and necessary. There are some functions which are better handled by international organizations, such as collecting information, coordinating efforts, promoting understanding and evaluating individual situations, facilitating international fora etc.. To enable the international or regional organizations to take up and realize these kinds of tasks, States must relinquish some of their powers. But with the help of the limits established by the principle of subsidiarity, international organizations are prevented from overstepping the boundaries for interfering in the domestic affairs of the States Parties.

The procedures on which the Committee on Economic, Social and Cultural Rights relies are limited and urgently in need of improvement, but the Committee is also overwhelmed by the volume of work generated the current procedures, let alone by the workflow that might be generated if all UN member states complied even with existing procedures. It is important to emphasize that the Committee cannot be relied upon to accomplish everything need to enforce the Covenant internationally, and that attention should be focused on what it can do effectively and efficiently. The delay of the adoption of the Optional Protocol to the Covenant also suggests that tense relations between the international treaty body and sovereign member State are a continuing problem. The principle of subsidiarity may go some way towards providing an approach that would resolve both problems.

As mentioned above, it should be noted that the principle of subsidiarity also has some shortcomings. Even within European Union, with its lengthy historical development and developed organizational frame, it is often difficult to discuss and explore its application. In the field of international economic, social and cultural rights, which is still at the primary stage of development, the application of subsidiarity may prove even more difficult.

Considering the great number of controversies which have surrounded improvements to the implementation mechanism, especially the draft and future adoption of the Optional Protocol to the Covenant, it is useful to bear in mind the principle of subsidiarity as a guideline. It may help to balance idealism and realism, universalism and relativism, internationalism and regionalism. What is more, the principle of subsidiarity could also help to provide a basis of legality for international cooperation, in the process going some way towards assuaging the doubts surrounding the relationship between human rights and sovereignty. For maximum effectiveness, to overcome these shortcomings and to actually implement the principle of subsidiarity, it should be applied together with other theories and approaches, among the most important of which are the minimum core content and the minimum threshold approaches.

4. The Minimum Core Content and the Minimum Threshold Approach

The objective of determining the minimum core content and minimum threshold of a right is to clarify the meaning of the right and to demarcate which part of that right must be deemed essential and shall not be violated. While the former approaches the minimum level of a human right from an abstract perspective, the latter serves a more practical and concrete purpose, i.e. to help enforce the Covenant.

The Committee on Economic, Social and Cultural Rights has defined minimum core content as follows: 揫A] minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State Party. ?4 An analysis of the concept of the minimum core content in the context of human rights was conducted by E. 謗點?in 1986.75 He emphasized that having a right must mean that the necessary conditions exist to exercise or enjoy that right. P. Alston expanded on the definition of the concept of minimum core content, describing it as 揳n absolute minimum entitlement, in the absence of which a state party is considered to be in violation of its obligations.?6

The minimum threshold approach was advanced by Andreassen, Sk錶nes, Smith and Stokke in 1985, 77 and considered again by them in 1992.78 Originally, the approach was intended to serve as a means for exploring the use of human rights standards in the context of the Third World poverty. The authors are trying to find a practicable minimal floor of well-being as a standard for distributive analysis of each of the key economic and social rights. And now, the minimum threshold can provide a realistic yardstick for comparative analysis and documentation of socio-economic rights implementation. Importantly, it can create a strategy aimed at monitoring the degree of assurance of a number of basic subsistence rights. What is more, the minimum threshold means that the States Parties have an immediate obligation to ensure the minimum threshold for all subjects within their jurisdiction.

In addressing the concept of universality of the international human rights, it is most accurate to discuss the core contents of the human rights, i.e. their basic meaning of them. This in turn facilitates the application of the principle of subsidiarity, by focusing on the universal issues which may be more suitable for international discussion and action. Of course the core contents of the rights are closely related to the minimum threshold approach discussed above. The threshold approach may help to clarify boundaries of rights and obligations, to facilitate the adoption of implementation measures, and to evaluate the results effectively and efficiently. Opportunities to promote the realization of human rights can be identified at national, regional and international levels, but such efforts at any level are conducive to the application of principle of the subsidiarity internationally.

V Implementation of the Covenant in China

1. Ratification of the Covenant

The Standing Committee of the National People抯 Congress (NPC) of China resolved to sign the International Covenant on Economic, Social and Cultural Rights at its twentieth session on 27 October 1997. On 28 February 2001, the NPC ratified the International Covenant on Economic, Social and Cultural Rights. Thereafter the Chinese Government deposited the Instrument of Ratification with the Secretary-General of the United Nations, Mr. Kofi Annan. The Chinese government made a statement upon signature and confirmed upon ratification that in usurping the name of 揅hina?the signature that the Taiwan authorities affixed on 5 October 1967 is illegal and null and void.

Another statement made upon ratification actually provided a reservation regarding Article 8 of the Covenant: 揟he application of Article 8.1 (a) of the Covenant to the People's Republic of China shall be consistent with the relevant provisions of the Constitution of the People's Republic of China, Trade Union Law of the People's Republic of China and Labor Law of the People's Republic of China. ?9

Under the framework of One Country, Two Systems, the Chinese Government supports the efforts for the promotion and protection of human rights in Hong Kong and Macao. Prior to the return of the two regions to China, arrangements had been made with regard to the application of human rights instruments and the submission and consideration of the relevant reports after their return. As a result, the two UN Covenants applicable to Hong Kong and Macao before their return to China continue to be applicable after the return.80

2. Understanding and Expectations

During the period of examination of the Covenant for possible ratification, Chinese scholars began to focus on the economic, social and cultural rights more intensively than before. Many of the discussions that have resulted concern basic or general subjects such as relationship between international law and domestic law, human rights and sovereignty etc.. In May 2000, a book titled Research on the International Covenant on Economic, Social and Cultural Rights was published. It is a collection of the presentations of an academic conference on the Covenant sponsored by the Law Institute of the Chinese Academy of Social Sciences (CASS), the Human Rights Institute, CASS and the Norwegian Institute of Human Rights (since 2003 known as the Norwegian Centre for Human Rights, NCHR). As far as can be ascertained it is the first book concerning the Covenant published in mainland China.

The ratification of the Covenant itself provides a chance for researchers and citizens at large alike to focus on international human rights law. When reviewing the activities in the Chinese law research field in 2001, referring to the ratification of the Covenant, Professor Xin Chunying, formerly vice director of the Law Institute, CASS, now standing member of the Standing Committee, Chinese People抯 Congress, said that protection of human rights has become one of the core objectives of modern legality and is one of the hot topics that year for the Chinese researchers.81

To date there has been little commentary from regular Chinese citizens on this Covenant. In the Chinese media, it is easy to find examples in which the official press touts the ratification of the Covenant as a major step forward in China抯 human rights development. It is argued that the Covenant provides extensive content covering various aspects of economic and social life in China. China has completed within a relative short period of time the series of legal procedures involved in signing and ratifying the Covenant, and 搕his fully demonstrates the consistent principled position of China in committing itself to the promotion and protection of human rights as well as its active engagement in international cooperation in the field of human rights. It also reflects the firm resolution and confidence of China in safeguarding full enjoyment of various economic, social, and cultural rights by its citizens. ?2

But what is the impact on Chinese people抯 daily life? It is perhaps too early too provide a definitive answer this question. Moreover, given that in the Chinese legal context individuals cannot resort directly to the Covenant (see below), it is perhaps not surprising that there are no specific cases or comments from individuals on the Covenant.

The official attitude toward the Covenant is somewhat cautious. On one hand, it is said that many rights recognized by the Covenant have already been realized in China; on the other hand, it is emphasized that according to the Covenant and practices of other states, the realization of these rights is not an immediate obligation, and that the enforcement process can be gradual and progressive. 83

3. Problems concerning Implementation

But why the emphasis on ratification? As A. Bayefsky notes, 揇isrespect for international law is exacerbated by sustaining the false claim that ratification is laudable in itself. For a great many states, ratification of human rights treaties has become a means to receiving easy accolades for empty gestures. ?4

In practice, the implementation of the Covenant is much more important than its ratification. The Chinese Government does have some experience in implementing UN human rights conventions. In May 2000 it dispatched its delegation to participate in the consideration of its third periodic report on the implementation of the Convention against Torture by the UN Committee against Torture. In October 2000, the Chinese Government submitted to the UN Committee on the Elimination of Racial Discrimination its integrated eighth and ninth periodic report on the implementation of the Convention on the Elimination of All Forms of Racial Discrimination. Currently the Chinese Government is preparing its second periodic report on the implementation of the Convention on the Rights of the Child.

With regards to the initial Chinese report on the implementation of the Covenant on Economic, Social and Cultural Rights, the author was informed by a senior official of the Standing Committee of the NPC during the Sino-German Human Rights Dialogue in Beijing in 2001 that it would be difficult for the Chinese government to complete the report by the deadline, a view apparently shared by other officials. There are a number of reasons for this, most important among them that the period of two years after the initial ratification is rather short, given that (1) the country has the world抯 largest population, spread across a wide variety of socio-economic and geographic contexts; (2) the Chinese government lacks the experience, skills and personnel to complete the task quickly; (3) the comprehensive content of the Covenant require a significant amount of work to do in order to complete the report.85

As far as domestic implementation of the Covenant is concerned, there is a notable legislative ambiguity on the relationship between international law and domestic law in China, which is not conducive to the enforcement of the Covenant, and especially the development of the concept of justiciability of the economic, social and cultural rights provided for in the Covenant. Fortunately in recent years there have been a number of discussions on this topic in China.86 Considering that China began to ratify UN human rights convention at the beginning of 1980s, but that these basic issues are only now being addressed, it is clear that China has begun to be more serious about international human rights documents than before, and that perhaps additional efforts towards domestic implementation should be made.

As mentioned above, NGOs and national institutions focused on promoting and implementing human rights can play very important role in the implementation process. However, in China, the concept of NGO is not yet well-developed. Many so-called NGOs, such as the Communist Youth League , the Women抯 Union and the official Trade Union in fact have official backing and enjoy connections with the government (including funding and leadership). Their functions and impacts are important and useful, but their fundamental lack of independence often reduces their potential to act primarily on behalf of the groups they serve. Moreover, the implementation of the Covenant in China depends on cooperation between different governmental ministries, and it is often unclear which ministry has primary responsibility for implementation.

Generally speaking, the provisions of the Covenant are in harmony with those of Chinese Constitution and other laws and regulations. But the justiciability of the Constitution has only now reached the stage of academic controversy; the Covenant has not yet even been addressed at the academic level.

Many rights recognized by the Covenant - such as right to education ?are already stipulated in Chinese law. Again, justiciability is a problem,87 and enforcement of the law depends primarily on the willingness and necessary financial input of governments at different levels. For example, the Chinese government does not allocate fund to guarantee the realization of compulsory education in the countryside results in lack of teachers in many poor areas and educational work there is out of order.88

Although it is the government which will assume primary responsibility, there is a pressing need to recognize the roles of different actors in the civil society including individuals, groups, companies, NGOs, etc.. In this aspect, the principle of subsidiarity can serve as a very useful approach as well. 89 Although the focus this paper is on the international obligations of the states, the use of the principle within the domestic context is also included.

Considering that modern legal construction began only at the end of the 1970s in China, there has been rapid development. The content of current debates over the Chinese Constitution and international treaties bode well for future developments.

VI. Conclusion

Now it comes to realize in international society that the importance of the economic, social and cultural rights is equal to that of civil and political rights. The principle of integrity of human rights and the concept of 揃ill of Human Right Law?which is composed of Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights can be seen as proof of this.

But historically, there are many doubts concerning the legally binding effect of the state party抯 obligations under the ICESCR. For a long time, economic, social and cultural rights are regarded the typical reflection of the second generation of human rights. Some western states denied or attached less importance to the economic, social and cultural rights and a lot of controversies were involved. Some criticism concerned was introduced and reviewed in this paper. The new approaches to the economic, social and cultural rights, such as the multi-part typology and classifications of the rights or obligations concerned, show new understanding of these rights. It is not enough to say that there are legal obligations under the International Covenant. Bearing the special features and even particular historical background of this Covenant, we need to deal with many doubts and obstacles to recognize the legal effects of the state抯 obligations under the Covenant in order to make them enforced effectively in life.

One basic task of this paper is to explain what kind of obligations the state parties shall take. Based on this, it is to discuss how to implement these obligations and guarantee their enforcement. In the latter aspect, domestically, the roles of civil society, especially the non-governmental organizations are emphasized, which is considered the way to carry these obligations out in a systematic way. In addition, the international implementation mechanism of the Covenant is also analyzed. Now it is the monitoring framework by the Economic, Social and Cultural Rights Committee, centering on the examination of the state report system. How to improve the international mechanism? The Optional Protocol to the Covenant is still on its draft way after many years?efforts. The author also tried to review briefly this process and proposed a new approach to the future optional protocol or international mechanism concerned, which is the direction and use of the principle of subsidiarity. It originated from the canon law and domestic law and has been adopted by the European Union as a directive principle. This principle is conducive to proving the legality of the international new system and easing the worries on derogation of States?sovereignty by the state parties.

Ratification of the International Covenant on Economic, Social and Cultural Rights by China which is the author抯 homeland is the incentive for him to conduct this study. So it naturally involves the situation in that country. It means a major step forward for China on the road to promotion of the human rights by ratification of this Covenant. The multi-explaining of the obligations under the Covenant in this paper is to change the ratification as a good gesture alone into meaningful understandings and plentiful activities in real life. In this regard, additionally, the existing reporting system and future strengthening of the international implementation mechanism is also conducive to the promotion and realization of these rights. However, there is a long way to go to achieve the potential goals based on the ratified Covenant. The relationship between the international law and domestic law in China now is obscure. Justiciability of the economic, social and cultural right in the Covenant or even in the domestic law is not clear. The status and roles of the non-governmental organizations are very limited. In some fields such as the right to education, the willingness and financial input concerned is not enough yet, in the author抯 eyes.

So, ratification of the International Covenant on Economic, Social and Cultural Rights and understanding the Obligations involved is just the beginning toward the realization of these rights.

(Published in NCHR Research Note 2004)

1See United Nations Conference on International Organization: Selected Documents, p. 483.

2These are the Preamble, Art.1 para.3, Art. 13 para.1 item b , Art.55 item c, Art.56, Art.62 para.2 , Art. 68, Art. 73 and Art.76 item c.

3See Manely O. Hudson, Integrity of International Documents, American Journal of International Law, Vol. 42, 1948, pp. 105 - 108.

4See H. Lauterpacht, Sovereignty and Human Rights, in International Law, being the collected papers of Hersch Lauterpacht, Systematically arranged and edited by E. Lauterpacht, Vol.3, 1977, p. 417.

5Bai Guimei, Gong Renren, Li Ming and other persons, Human Rights in International Law, Peking University Press, 1996, pp. 55 - 67.

6 P.E. Jacob and A.L. Atherton, The Dynamics of International Organization, Homewood: Dorsey Press, 1965, p. 579.

7 Chen Shicai, International Organization - Study of the system of the UN, Chinese Friendship Publishing Company, 1986, pp. 219 - 220.

8 Universal Declaration of Human Rights: A Common Standard of Achievement, Gudemundur Alfredsson and Asbjorn Eide ed., Chinese version, translated by Chinese Human Rights Study Association, p.7.

9ibid, p.8

10 Wan Exiang, Guo Keqiang, International Human Rights Law, Wuhan University Press, 1994, pp. 149 - 150.

11The Committee on Economic, Social and Cultural Rights, Fact Sheet No. 16 (Rev. 1), published by the Center for Human Rights, United Nations at Geneva, p. 6.

12See Geraldine van Bueren, 揇econstructing the Mythologies of International Human Rights Law? in Conor Gearty and Adam Tomkins, eds., Understanding Human Rights, (1996) p. 596, at 603.

13See, e.g., State and Individual on International Law, Beijing International Law Study Association Ed., pp.280?01.

14A/CONF.157/23, 12 July 1993, Vienna Declaration and Program of Action, I, p. 1.

15Liu Junhai, The Protection of Socials Rights and the Coming Implementation of CESCR in China, in Liu Hainian, ed., Research on the International Covenant on Economic, Social and Cultural Rights, Chinese Legality Press, 2000, pp 73, 123 - 138.

16Thomas Hammarberg, 揅hildren? in Economic Social and Cultural Rights: A Textbook, Asbjorn Eide, Catarina Krause and Allan Rosas, eds., Matinus Nijhoff Pub. 1995, pp. 304 - 305.

17See Birgit Lindsnaes, Lone Lindholt and Kristine Yigen, eds., National Human Rights Institutions: Articles and working papers, Danish Centre for Human Rights, 2001.

18 Gong Renren, International Human Rights Law and Comparative Constitutionalism, in International Human Rights - Chinese and Canadian Perspectives, Bai Guimei ed., Law Press, 1998, p. 82.

19 H. Lauterpacht, International Law and Human Rights, Garland Publishing, Inc., New York & London, 1973, pp 113- 114.

20 Katarina Toma歟vski, Human Rights in Population Policies, A Study for SIDA, 1994, quoted from Chinese Edition, translated by Bi Xiaoqing, Chinese Social Sciences Press, 1998, p. 25.

21Jia Junling, Chinese Guarantee of Social Security and Human Rights, International Human Rights and Development - Chinese and Canadian Perspectives, Bai Guimei ed., Law Press, p. 196.

22揚acta sunt servanda,?compliance and implementation of a treaty participated in by a state implies not only legal obligation, but also moral duties. The Chinese scholar Liu Hainian observed that, 搕he Chinese people usually think much of good faith. After ratification of the International Covenant on the Economic, Social, Cultural Rights, the Chinese government will implement its obligations seriously厰, see Liu Hainian, Research on the International Covenant on Economic, Social and Cultural Rights, Chinese Legality Press, 2000, preamble, pp. 1-2.

23See Stephen P. Marks, 揈merging Human Rights: A New Generation for the 1980s??in International Law: A Contemporary Perspective, edited by Richard Falk and others, 1985, pp. 501 - 503.

24See Jerome J. Shestack, 揟he Jurisprudence of Human Rights?in 揌uman Rights in International Law: Legal and Policy Issues? Theodor Meron, ed., 1984, p. 73.

25 W. Fleming referred to the International Covenant on Economic, Social and Cultural Rights as 搉othing else but the perfect embodiment of the unadulterated welfare state and unmitigated socialism? American Bar Association Journal, October, 1951, pp. 739 et seq.

26 Wang Tieya, ed., International Law, Law Press, China, 1995, p211.

27 See G.J.H. van Hoof, 揟he Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views? in The Right to Food, P. Alston and K. Toma歟vski, eds., Dordrecht/Utrecht: Martinus Nijhoff/SIM, 1984, pp. 102 - 105.

28See UNICEF, State of the World抯 Children 1990, for costs of oral rehydration therapy.

29 Vierdag, 揟he Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights? 9 Netherlands Yearbook of International Law, 1978, p. 69 - 105.

30See Human Rights Committee, General Comment 24 (52nd session, 1994), para. 8. UN Doc. CCPR / C/ 21 / Rev.1 / Add. 6 (1994).

31 E/1991/23.

32 Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects, Intersentia-Hart, 1999, p.41.

33 Matthew C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development, Clarendon Press, Oxford, 1998, p.106.

34 See Louis Henkin, 揂 Post-cold War Human Rights Agenda? 19 Yale J, Int抣 L. 249, 1994, p. 250.

35 See Asbjorn Eide, 揈conomic, Social and Cultural Rights as Human Rights? in Economic Social and Cultural Rights: A Textbook, Asbjorn Eide, Catarina Krause and Allan Rosas, eds., Matinus Nijhoff Pub. 1995, pp. 35 - 40.

36G.J.H. van Hoof, 揟he Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views? in P. Alston and K. Toma歟vski, eds., The Right to Food, Dordrecht/Utrecht: Martinus Nijhoff/SIM, 1984, pp. 106-107.

37 UN Doc E/CN.4/Sub.2/1999/12, para. 15.

38 Report of the International Law Commission (1977), 2 Yearbook of ILC, para.8.

39 Report of the International Law Commission (1977), paras.11-30.

40 Matthew C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development, Clarendon Press, Oxford, 1998, p.107.

41 UN Doc A/2929 (1955).

42UN Doc E/CN.4/SR.272 (1952).

43UN Doc E/1991/23, para.1.

44Matthew C.R. Craven, p. 108.

45Un. Doc. E/CN.4/SR.420 (1954), p.14.

46See Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects, Intersentia-Hart, 1999, pp. 28-30.

47 ECOSOC Resolution 1980/24.

48UN Doc. E/1996/101 (30 September 1996), which was produced pursuant to ECOSOC Resolution 1996/38 of 26 July 1996.

49UN Doc. E/1989/22, Annex III.

50See Scott Leckie, The Committee on Economic, Social and Cultural Rights: Catalyst for Change in a System Needing Reform, in The Future of UN Human Rights Treaty Monitoring, Philip Alston and James Crawford, eds., Cambridge University Press, 2000, pp. 137-142.

51 It was not until 1990 that the Committee first declared a State Party to have violated its housing rights obligations under the Covenant, Dominican Republic, UN Doc. E/C.12/1990/8.

52 Dominican Republic, UN Doc. E/C.12/1994/20.

53See UN Doc. A/CONF.157/PC/62/ Add. 5 (26 March, 1993).

54 Endorsed by ECOSOC Resolution 1987/5.

55UN. Doc. E/C.12/1990/8, Report of the fifth session of the Committee on Economic, Social and Cultural Rights, para. 44.

56 UN. Doc. E/C.12/2000/4, CESCR.

57UN. Doc. E/1988/14, Report of the second session of the Committee on Economic, Social and Cultural Rights, para. 365.

58 UN. Doc. E/1995/22(E/C.12/1994/20), Report of the tenth and eleventh session of the Committee on Economic, Social and Cultural Rights, para. 44.

59 In recent years, there are many positive developments on the complaint procedure for addressing alleged violations of economic, social and cultural rights at the regional level or under other treaty system. During these years, Europe, the Americas and Africa have all recognized individual and collective complaints mechanisms for social and economic rights. The European Social Charter has a group complaints procedure that came into force in 1999. An Optional Protocol to the African Charter on Human and Peoples Rights was adopted in 1998, establishing the African Court on Human and Peoples Rights which will have the power to enforce all the rights in the African Charter, including economic and social rights. In 1988 the Organization of American States adopted the San Salvador Protocol to the Inter-American Convention on Human Rights which also entered into force in 1999 to provide a complaint mechanism for certain social and economic rights.

As to cases concerning Economic, social and cultural rights at national and regional levels and dealt with by other UN human rights treaty bodies, see working paper 50 Leading Cases on Economic, Social and Cultural Rights: Summary, Centre on Housing Rights & Evictions, June 2003, Switzerland. But at the international level and for the international mechanism under the ISESCR, a breakthrough is still needed.

It is also notable that the International Labor Organization has accumulated a big amount cases especially concerning the rights to freedom of association, though some scholars regarded that they constitute a special type of law. See, Asbjorn Eide, Catarina Krause and Allan Rosas edited, Economic, Social Cultural Rights, A Textbook, Martinus Nijhoff Publishers, second revised edition, 2001, p.225; Ian Graham, 揑LO's pioneering Freedom of Association Committee marks fiftieth year? in World of Work, No.44, Septermber/October, 2002.

60 C. Flinterman, ?Comments on the Utrecht and the Committee Draft Optional Protocols? in F. Coomans and F. van Hoof, eds., in co-operation with K. Arambulo, J. Smith and B. Toebes, The Right to Complain about Economic, Social and Cultural Rights, Utrecht: SIM, 1995, p. 205.

61 See Scott Leckie, pp. 142-144.

62Scott Leckie, p. 133.

63 Constitutional analysis of international organization has been conducted by several researchers. See for instance Ronald Macdonald, The Charter of the United Nations in Constitutional Perspective, Australian Year Book of International Law, Vol. 20, pp. 205-231.

64See Nicholas Emiliou, 揝ubsidiarity: an effective barrier against 憈he enterprises of ambition挃 , European Law Review, 17, 1992, pp. 383-407.

65See Pope Pius XI, Quadragesimo Anno, London, Catholic Truth Society, 1936, p. 31.

66The concept of subsidiarity is found in many encyclicals; one of the most important documents concerned is the Nature and Future of Episcopal Conferences, H. Legrand, J. Manzanares and A. Garcia y Garcoa, eds., The Catholic University of America Press, Washington, D.C., 1988.

67See Wang He, On the European Community抯 Principle of Subsidiarity, in Europe, 1993, No.2, p.22.

68ECR II-289, p. 331.

69Lars C. Blichner and Linda Sangolt, The Concept of Subsidiarity and the Debate on European Cooperation: Pitfalls and Possibilities, Norwegian Research Center in Organization and Management, 1993, p.284.

70See Daniel G. Partan, The Justiciability of Subsidiarity, in The State of the European Union: Building a European Polity?, Carolyn Rhodes and Sonia Mazey, eds., Longman Group Limited, 1995, pp. 63-80.

71 http://www.iyoco.org/eh/subsidiarity.htm; last visited 1July 2002.

72 Ibid.

73Friedrich August von Hayek, Der Weg zu Knechtschaft, The road to serfdom, quoted from Chinese edition, Wang Mingyi, Feng Xingyuan et al, trans., Chinese Social Sciences Press, 1997, p. 220.

74 General Comment No.3 of the Committee (1990), para. 10.

75 E. 謗點? 揟he Core of Rights and Freedoms: The Limits of Limits? in Human Rights - From Rhetoric to Reality, T. Campbell et al, eds., , New York: Basil Blackwell Ltd., 1986, pp. 37-59.

76 P. Alston, 揙ut of the Abyss: The Challenges Confronting the New U.N Committee on Economic, Social and Cultural Rights? in Human Rights Quarterly, Vol. 9, 1987, p. 353.

77 B.A. Andreassen et al., 揂ssessing Human Rights Performance in Developing Counties: The Case for a Minimal Threshold Approach to the Economic and Social Rights,?in Human Rights in Developing Counties 1987/1988, Copenhagen, Akademisk Forlag, 1988, pp. 333-355.

78B.-A. Andreassen, A.G. Smith and H. Stokke, 揅ompliance with Economic and Social Human Rights: Realistic Evaluations and Monitoring in the Light of Immediate Obligations,?in Human Rights in Perspective: A Global Assessment, A. Eide, and B.Hagtvedt, eds., Oxford: Blackwell Publishers, 1992, pp. 252-315.

79Statement from China upon ratification of the Covenant, see http://www.unhchr.ch/html/menu3/b/treaty4_asp.htm.

80 See, Basic Law of Hong Kong Special Administrative Region, Article 39 and Basic Law of Macao Special Administrative Region, Article 40.

81 Retrospective on the Focuses of Jurisprudence in China in 2001, Beijing, Legal Daily, 30 December, 2001, p. 3.

82Spokesperson of the Chinese Ministry of Foreign Affairs on the ratification of the International Covenant on Economic, Social and Cultural Rights by the National People抯 Congress, 1 March 2001, official web page of the Ministry, www.fmprc.gov.cn/eng/8733.html.

83 See interpretation by Zhou Jue, the President of China Society for Human Rights Studies, in Wen Xian, "China is Willing to Make Efforts for the International Human Rights Promotion and Protection Cause," Beijing, People抯 Daily, 4 March, 2001.

84Anne F. Bayefsky, Making the Human Rights Treaties Work, in Human Rights: an Agenda for the Next Century, Louis Henkin and John Lawrence Hargrove, eds., Washington, D.C., The American Society of International Law, 1994, p. 263.

85The Chinese government has submitted the initial State Report to on 27 June 2003.

86For academic discussions, see inter alia Zhu Xiaoqing and Huang Lie, eds., The Relationship Between International Treaties and Domestic Law, Beijing, World Knowledge Press, 2000.

87 Now justiciability of economic, social and cultural rights is being promoted intensively by international efforts, among which the author attended the Workshop for Judges and Lawyers on the Justiciability of Economic, Social and Cultural Rights in North East Asia in UlaanBaatar, Mongolia, 26-28 January 2004, organized by Office of the High Commissioner for Human Rights and the International Commission of Jurists. Delegations from China, Mongolia, Korea and Japan attended and discussed the topic of it.

88 According to report from Xinhua News Agency,Chinese official news agency, for the lack of financial input, schools in countryside of 29 poor counties in Hubei Province face the financial risks. Only in Qichun County, more than 800 teachers left and in some primary schools only one teacher remains there. See, Pan Hongqi, 揑nput Needed for Compulsory Education in Countryside? Bejijing Youth Daily, 16 April, 2003.

89Cf. Carlos Eduardo Maldonado, Human Rights and Subsidiarity: Essays toward a Social Ontology, The Council for Research in Values and Philosophy, 1997.