Legal obligations under the International Covenant on Economic, Social and Cultural Rights and the concept of sustainable development

Borodina Elizaveta Andreevna Senior Lecturer; Department of English; Kutafin Moscow State Law University (MSAL) Deputy Director of the Institute of Public Law and Management; Institute of Public Law and Management; Kutafin Moscow State Law University (MSAL) 125993, Russia, Moscow, Moscow, Sadovaya-Kudrinskaya str., 9, p. 2 elizaveta.borodina@gmail.com

introduction

Currently, the main component in the activities of the entire United Nations system (hereinafter referred to as the UN) is sustainable development in its economic, environmental and social aspects. The social dimension of sustainable development finds expression in human rights, which are central to the 2030 Agenda for Sustainable Development (hereinafter referred to as the Agenda). The agenda is "based on the Universal Declaration of Human Rights and international human rights treaties" and envisions "a world in which universal respect for human rights and human dignity, the rule of law, justice, equality and non-discrimination are ensured." Although the Sustainable Development Goals (hereinafter referred to as SDGs) are not formulated in the language of human rights, they "provide for the realization of human rights for all", and the SDGs related to poverty eradication, social security, food security, health, education, housing, water supply and sanitation include most of the elements of economic, social and cultural rights in accordance with the way they are formulated in the International Covenant on Economic, Social and Cultural Rights of 1966 (hereinafter – ICESCR). At the same time, the Agenda should be implemented in a way that is consistent with the rights and obligations of States under international law, including their obligations to respect, protect and implement economic, social and cultural rights.

The Danish Institute for Human Rights has established a link between 169 Sustainable development goals and international human rights instruments, summarizing that most of the SDGs are actually based on commitments made by UN member states throughout its history ^[1]. For each of the 17 non-legally binding SDGs, a pool of mandatory sources of public international law was selected, enshrining the obligations of States, as an additional guideline for the implementation of a human rights-based approach to sustainable development.

A human rights-based approach to the implementation of the SDGs is supported both in foreign ^[2] and domestic doctrine. Thus, A. H. Abashidze argues that the formulation of national goals, objectives and strategies, as well as the responsibilities of various actors, whether in the public or private sphere, should be carried out in accordance with the international obligations of the relevant States in the field of human rights, as well as in accordance with the authoritative interpretation of these obligations by human rights treaty bodies ^[3]. When monitoring human rights situations in the participating States, the treaty bodies, as well as the UN Human Rights Council, draw their attention to issues that require clarification in terms of consistency between the SDGs and international human rights law in their respective areas of competence, and provide them with guidance on how to eliminate existing inconsistencies ^[4].

Taking into account that the minimum core of commitments in the field of sustainable development are obligations that correspond to basic social and economic human rights, the Committee on Economic, Social and Cultural Rights (hereinafter – CESCR) plays a central role in providing recommendations to States on the implementation of the SDGs. CESCR monitors the implementation by States parties of their obligations under the ICESCR, paying attention to the relevance of their actions to the Agenda.

Currently, the concept of sustainable development determines the development of several branches of international law at once, including international human rights law ^[5]. The underlying idea of integrating three components — economic development, social development and environmental protection — inevitably sets States the task of fulfilling their obligations under international human rights treaties in such a way that economic development and the use of natural resources necessary for the realization of human rights are balanced and do not lead to negative consequences for the environment the environment and did not endanger the quality of life of current and future generations. Since the ICESCR was adopted long before the concept of sustainable development appeared, the approach used by the CESCR to disclose the nature of the general legal obligations of States parties was developed without taking into account the need to maintain a balance between the economic, social and environmental interests of States. In this regard, there is a need to study the impact of the concept of sustainable development on the legal obligations under the ICESCR, as well as to propose a new interpretation of existing obligations consistent with the principles of sustainable development. Thus, the impact of the concept of sustainable development on the legal obligations of the ICESCR member States serves as the subject of the study.

The purpose of this article is to determine exactly how the concept of sustainable development affects the legal obligations of States under the ICESCR; to establish how the key provisions of the ICESCR and the existing doctrine of the CESCR can be applied to promote sustainable development, contributing to the effective realization of economic, social and cultural rights of present and future generations.

The methodological basis of the research is formed by the dialectical method, the comparative legal method and the method of system analysis. The study analyzed the practice of international human rights treaty and judicial bodies, including the decisions of the European Court of Human Rights (hereinafter - the ECHR). The general comments, concluding observations and other CESCR documents were subjected to comparative legal analysis in the study.

Paradigm shift / transition from the obligation to take measures to the maximum extent of available resources to the obligation to take measures to the maximum extent of available environmentally sound resources

Since the adoption of the ICESCR, the realization of economic, social and cultural rights has for a long time been directly dependent on the availability of available resources and economic growth in the ICESCR member States. This provision is reflected in Article 2 of the ICESCR, which imposes an obligation on States parties to take measures "to the maximum extent of available resources" in order to ensure the progressive full realization of rights. CESCR provided an interpretation of this obligation in General Comment No. 3, emphasizing that the term "available resources" covers both domestic resources and any international or technical assistance or assistance provided to a State. In addition, the term "resources" includes human resources, technological resources, information resources, natural resources and financial resources ^[6].

In its practice, CESCR supports the thesis that the availability of resources is largely due to economic growth, which generally contributes to the greater realization of economic, social and cultural rights. In its Concluding Remarks, CESCR has repeatedly pointed out that economic growth can help combat unemployment, food shortages, lack of social protection, inequality and poverty in general.

The stagnation or deterioration of the situation with respect to economic, social and cultural rights in a State experiencing economic growth is considered by CESCR either unacceptable or an unfortunate missed opportunity. For example, in its 1996 Concluding Observations on El Salvador, CESCR stressed that "the continued existence of such a level of poverty in a country experiencing constant economic growth is inexcusable." In its 2006 Concluding Observations on Canada, CESCR expressed concern that the State had not increased support for higher and secondary special education, social security and social services systems compared to previous levels, "despite sustained economic growth in the State party over recent years."

According to CESCR, since economic growth contributes to the expansion of the resources of the participating States, large financial resources should by default be directed by them to the realization of economic, social and cultural rights. For example, in 2006, CESCR criticized Canada's actions, pointing out that "despite high GDP growth rates, government spending on the social security system, including housing improvements, health and education, remains low and has actually decreased in recent years." Thus, CESCR believes that during a period of strong economic growth, participating States should take enhanced measures aimed at protecting the most vulnerable segments of the population and reducing poverty. In assessing the implementation by States Parties of their obligations under the ICESCR, the CESCR takes into account their current GDP figures as an explicit or implicit benchmark for checking whether the legal obligations fulfilled comply with established norms. The approach chosen by CESCR implies that during periods of economic growth, the amount of resources allocated by participating States to the realization of economic, social and cultural rights should increase.

However, in its general comment No. 20, "Non-discrimination of economic, social and cultural rights", CESCR stressed that "economic growth alone has not led to sustainable development, and individuals and groups of people continue to face socio-economic inequalities". Thus, CESCR recognizes that economic growth alone may not be enough to improve the realization of economic, social and cultural rights: it remains a means, not an end per se.

In recent years, CESCR's attention to the environmental and climate agenda has increased. In 2018, CESCR issued a Statement "Climate Change and the International Covenant on Economic, Social and Cultural Rights", in which it recognized that the latest report of the Intergovernmental Panel on Climate Change demonstrates that climate change poses a serious threat to the enjoyment of economic, social and cultural rights. It also indicates that failure to prevent foreseeable damage to human rights as a result of climate change, or failure to maximize available resources in efforts to prevent such damage, may constitute a violation by States parties of their obligations under the ICESCR. CESCR reiterated its position in a joint statement adopted with four other international human rights treaty bodies. These documents are the result of an environmental shift in CESCR practice: CESCR mentioned climate change issues in 10.8% of its Concluding Observations between 2008 and 2019. Interestingly, CESCR is now "monitoring the effects of climate change on economic, social and cultural rights" and "guiding" participating States on how they could meet their obligations under the ICESCR in terms of climate change mitigation and adaptation.

However, even with the increased attention to the environmental and climate agenda, CESCR continues to operate within the framework of the economic growth paradigm. In its Statement on the "green economy in the context of sustainable development and poverty eradication", CESCR stressed the need to "integrate the green economy into a broader concept of sustainable development that encompasses social development together with economic growth and environmental protection and thus has a close relationship with economic, social and cultural rights." Thus, CESCR considers it possible to achieve environmental sustainability with economic growth. In this regard, his position is fully consistent with the Agenda, in particular SDG No. 8 "Promoting sustained, inclusive and sustainable economic growth".

The reliability of a model combining the effective realization of economic, social and cultural rights with economic growth and the rational use of natural resources is questioned by some scientists ^[7]. In developed countries, economic growth is usually achieved through the rapid consumption of natural resources, which inevitably causes damage to the environment. Economic growth requires access to reliable and affordable energy sources, and for many States, burning fossil fuels is the fastest and cheapest way to generate energy. In addition, economic growth and an increase in GDP in the participating States do not necessarily contribute to more effective fulfillment of their obligations, since often the problem is not a lack of resources, but their unequal distribution ^[8]. According to the former UN Special Rapporteur on extreme poverty and human rights, F. According to Alston, the effective realization of economic, social and cultural rights in developed countries depends not so much on the availability of resources as on their reasonable redistribution ^[9].

Thus, the increased attention of CESCR to sustainable development issues and the effects of climate change on the enjoyment of economic, social and cultural rights, in particular, has led to the need to reconsider the content of the obligation to take measures to the maximum extent of available resources. In its practice, CESCR should take into account the costs of economic growth to the environment and adopt a multidimensional approach to solving problems related to the exercise of rights, shifting the focus from increasing financial resources through economic activity to an equal and equitable distribution of existing resources.

The content of article 2 of the ICESCR, which requires the maximum use of available resources, should be rethought by the CESCR through the prism of climate change, in order to exclude resources that contribute to global warming or have other unacceptable environmental consequences. The legal obligations of the participating States should be determined taking into account the need to use available environmentally sound resources. However, the CESCR should consider how the need to use only environmentally sound resources may make it difficult for States to meet their obligations under the ICESCR, taking into account the fact that the amount of available resources will decrease and that significant investments in clean energy and adaptation to climate change will be required.

Intergenerational commitments

The idea of protecting the rights of future generations arose in the mid-1940s, at the time of the creation of the United Nations in order to save "future generations from the scourge of war" and was enshrined in the Charter of the organization. Subsequently, this idea was reflected in a number of other UN documents, mainly focused on solving problems of development and environmental protection. In 1997, UNESCO adopted the Declaration on the Responsibility of Current Generations to Future Generations, which emphasizes that "current generations have the responsibility to ensure the comprehensive protection of the needs and interests of current and future generations." The Agenda and the Paris Climate Agreement clearly recognize the rights of future generations, and as the global community's concerns about sustainability and climate justice have grown, the obligations of current generations to future generations have become increasingly mentioned.

Currently, the protection of the rights of future generations is facing new and more serious challenges that require a reassessment and an adequate comprehensive response from the international community. Thus, in 2016, the UN Human Rights Committee recognized that environmental degradation poses a serious threat to the ability of current and future generations to enjoy the right to life. In 2021, the UN Secretary-General presented the report "Our Common Agenda", which focuses in particular on future generations, and outlines a vision for a more inclusive, network-building and effective multilateral system to respond more effectively to humanity's most pressing challenges. Attention to the rights of future generations in the UN is increasing, as evidenced by the adoption of the Declaration on Future Generations at the Summit of the Future, held on September 22 and 23, 2024.

In the doctrine ^[10] and the practice of international and national judicial bodies, there is an emerging trend in favor of recognizing the rights of future generations. The courts are increasingly strengthening the protection of the rights of future generations, especially in cases involving environmental damage and nuclear testing. Thus, the number of lawsuits related to climate change has more than doubled since 2015 ^[11].

This trend was manifested in the adoption of the Maastricht Principles on the Rights of Future Generations (hereinafter referred to as the Principles) on February 03, 2023, a document in the development of which authoritative human rights experts participated. The Principles are not legally binding, but contain a progressive interpretation of existing international human rights law in relation to the human rights of future generations. The document consolidates the developing legal framework and establishes the legal obligations of States and other entities prescribed by international human rights law. At the same time, the document clarifies that as international human rights law develops, States may have to assume additional obligations.

The following conclusions from the analysis of the document are the most important for understanding the content of the obligations of States in relation to the human rights of future generations.

1) Since no international human rights instrument, including the ICESCR, contains provisions restricting human rights in the present, future generations are already covered by existing international human rights law. Consequently, the obligations of States to respect, protect and implement human rights extend to representatives of future generations.

2) The principle of burden sharing is central to defining the obligations of States and acts as a guideline for achieving a balance between respect for the rights of both present and future generations. Thus, the document says that future generations should be free from intergenerational discrimination.

3) In order to achieve a balance between respect for the rights of present and future generations, States should fulfill both "intra-generational" and "intergenerational" obligations.

4) In order to fulfill their obligations to future generations, States must impose reasonable restrictions on activities that undermine the rights of future generations, including the irrational use of natural resources and the destruction of nature. Such restrictions should not impair or nullify the enjoyment of human rights by current generations and should not impose a disproportionate burden on vulnerable groups.

The thesis that States have obligations, including positive ones, to future generations is also supported in the practice of the UN treaty bodies. Thus, the UN Human Rights Committee (hereinafter referred to as the Committee) in the case "Torres Strait Islander Group v. Australia" recognized that the principle of intergenerational equality imposes on current generations the obligation to act as responsible stewards of the planet and ensure the right of future generations to meet their development needs and in a favorable environment. In this regard, the Committee stressed that Australia's failure to take adequate and timely measures to adapt to climate change had a negative impact on the intergenerational dimension of indigenous peoples' right to culture. CESCR, in turn, recognized that the concept of sustainability for the enjoyment of economic, social and cultural rights implies that such rights should be equally accessible to both current and future generations. This implies taking urgent measures to mitigate and adapt to climate change.

An important milestone in the discussion of obligations to future generations was the ECHR decision of April 9, 2024 in the case of the Swiss Association "Older Women for Climate Protection" v. Switzerland. In its decision, the ECHR ruled that States now have specific positive commitments to reduce their greenhouse gas emissions levels in order to achieve carbon neutrality over the next three decades in order to avoid a disproportionate burden on future generations. The significant contribution of this court decision is to clearly define the positive obligations of the State in relation to actions to combat climate change, necessary for intergenerational burden sharing. It is noteworthy that in its decision, the ECHR does not rely on the recognition of the rights of future generations, but on the positive obligations of the State necessary for the realization of the right provided for by the European Convention on Human Rights.

Thus, under the influence of the concept of sustainable development, an intergenerational dimension of human rights has gradually emerged in international human rights law. As follows from the practice of international treaty and judicial bodies, since human rights are no longer limited to the present, and existing international legal norms extend to future generations, States parties to international human rights instruments have not only "intra-generational" but also "intergenerational" obligations. Such a turn in the progressive development of international human rights law calls for a new interpretation of obligations under international human rights treaties, including the ICESCR, precisely in the context of the current environmental and climate agenda, taking into account the principle of intergenerational equality.

In order to determine the content of the "intra-generational" and "intergenerational" obligations of States parties to the ICESCR, first of all, it is necessary to establish how respect for the principle of intergenerational equality correlates with the concept of the progressive realization of social, economic and cultural rights to the maximum extent of available resources, which is a key concept defining obligations under the ICESCR. Is the idea of achieving higher levels of realization of socio-economic rights and, consequently, the full use of all resources available to the State party, including natural ones, compatible with the concept of intergenerational equality?

It is important to recognize that the economic, social and cultural rights of present and future generations are not unlimited, and that States parties to the ICESCR need to respect their obligations in such a way that the rights of one generation do not take precedence over the rights of another. However, from a practical point of view, the question of how States should balance competing rights is problematic because States have limited resources. Some Western jurists are trying to find a solution to this problem. Thus, P. Lawrence suggests using the "principle of structural reform", which imposes on states the obligation to carry out structural reforms necessary to ensure the protection of the long-term interests of future generations, while avoiding harm to the fundamental rights of current generations ^[12].

To address the limitations in terms of available resources that many States face when it comes to the urgent observance of economic, social and cultural rights, as opposed to the concept of progressive realization, CESCR proposed the concept of "minimum core obligations" (hereinafter referred to as the Concept), which has gained prominence in international human rights law in recent decades. In the opinion of CESCR, each State party has a minimum basic obligation to ensure the implementation of each of the rights, at least at a minimum level.

Even if the obligations under the ICESCR generally fall under the concept of progressive realization and, therefore, can be realized "over time", there is still a core of obligations that must be fully implemented by all States without delay or as soon as possible. These obligations are the "minimum core" obligations. With regard to the minimum core obligations, the State cannot say that it is taking steps towards their full implementation in the medium and long term. Instead, they demand immediate and full respect, just like civil and political rights. Thus, according to general comment No. 3, obligations to provide "basic food", "basic primary medical care", "basic shelter and housing" or "the most basic forms of education" must be fulfilled immediately, even if the fulfillment of other, "non-basic" obligations under the relevant human rights is permissible during for a longer period of time.

The way in which the Concept limits the general applicability of the concept of progressive realization was clearly demonstrated by CESCR in general comment No. 13 "The right to education", paragraph 43 of which states that "Although the ICESCR provides for progressive realization and recognizes the existence of obstacles due to limited available resources, it also imposes various obligations on States parties having direct executive power." Similarly, in general comment No. 12 on the right to adequate food, CESCR recognizes that some measures to realize the right are urgent, while others are long-term in nature. At the same time, a reservation is immediately introduced using the wording of "basic" obligations: "violations of the ICESCR occur when a State does not guarantee satisfaction or at least the minimum basic level required to ensure freedom from hunger." The 2014 report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health clarified the relationship between minimum core obligations and the concept of progressive realization: "The right to health imposes on States partially overlapping obligations that are binding. They include... basic obligations to ensure the right at least at the minimum necessary level…Obligations of an urgent nature go beyond the scope of article 2 (1) of the ICESCR. The basic obligations represent the minimum necessary level of law and are not subject to gradual fulfillment."

Thus, the value of the Concept developed by CESCR is that it helps States parties to the ICESCR to prioritize their obligations when resource constraints make immediate compliance with all these obligations an impossible task. However, the Concept limits the application of the concept of progressive realization to the most important elements of social, economic and cultural rights. The above advantages make it suitable for determining the content of the "intra-generational" and "intergenerational" obligations of the ICESCR member States. Intergenerational and intergenerational obligations should be formulated by the CESCR in such a way that States can fulfill their minimum basic obligations to both current and future generations in the future. The concept can serve as a starting point for improving a pragmatic approach to the implementation of social, economic and cultural rights, in which the fulfillment of obligations to meet the urgent needs of the current generation is put in the first place, while ensuring the possibility of exercising the basic elements of the rights of future generations.

conclusion

The concept of sustainable development challenges the international community to reinterpret the legal obligations under the ICESCR in the context of the current environmental and climate agenda and in accordance with the principle of intergenerational equality. The prevailing idea is that it is advisable to consider the ICESCR as a living document and recognize that the legal obligations of States parties may evolve over time.

From the above analysis, it can be concluded that the impact of the concept of sustainable development on the legal obligations of States under the ICESCR is manifested through the prism of the use and replenishment of resources required for the realization of economic, social and cultural rights. The content of the positive commitment to take action to the maximum extent of available resources should be reviewed by CESCR, taking into account the need to use environmentally sound resources.

International treaty bodies and judicial bodies recognize the existence of "intergenerational" obligations among States parties to international human rights instruments, but discussions on the content of this new category of obligations continue.

The concepts developed by CESCR (the concept of progressive realization and the concept of minimum core obligations) should be adapted to the intergenerational dimension of the human rights enshrined in the ICESCR. Intergenerational and intergenerational commitments should include minimum core commitments to current and future generations. Due to the difficulty of predicting the potential impact on the future generation of measures aimed at realizing the rights of the current generation, further work is required at both the international and domestic levels to develop strategies necessary for States parties to the ICESCR to achieve a balance in compliance with their legal obligations.