Enhancing Enforcement of Economic, Social and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR
Cornell University - Law School
Jocelyn Getgen Kestenbaum
Benjamin N. Cardozo School of Law
Stephen Arrigg Koh
Law Clerk to the Honorable Carolyn Dineen King, United States Court of Appeals for the Fifth Circuit. J.D., Cornell Law School; M.Phil. University of Cambridge, England; A.B., Harvard University
November 6, 2009
Human Rights Quarterly, 32 (2010) 253-310
Cornell Legal Studies Research Paper No. 09-031
Nearly fifteen years ago, Audrey R. Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, the violations approach is even more salient given the recent adoption of the ICESCR’s Optional Protocol, a powerful tool to hold States parties accountable for violations.
Indicators are essential tools for assessing violations of economic, social and cultural rights (ESCRs) because they are often the best way to measure progressive realization. Proposed guidelines on using indicators give guidance on the content of States parties reports to treaty monitoring bodies, but none creates a framework to assess violations of a specific right in a particular treaty.
This article fills this void by providing a framework to assess State compliance that integrates indicators into the project of ascertaining specific violations of economic, social and cultural rights under the ICESCR. The methodology that we propose calls for: 1) analyzing the specific language of the treaty that pertains to the right in question; 2) defining the concept and scope of the right; 3) identifying appropriate indicators that correlate with State obligations; 4) setting benchmarks to measure progressive realization; and 5) clearly identifying violations of the right in question.
We illustrate our approach by focusing on the right to education in the ICESCR. In addition to assessing right to education violations, this methodology can be employed to develop frameworks for ascertaining violations of other ESCRs as well.
Number of Pages in PDF File: 59
Keywords: right to education, human rights, indicators and economic, social and cultural rights
Date posted: November 7, 2009 ; Last revised: June 10, 2016