Interpretation of the ICESCR

Abstract
The Committee on Economic, Social and Cultural Rights has developed a number of methods for interpreting the ICESCR that are often described as ‘special’ and as falling outside the framework of VCLT articles 31–33. However, this chapter argues that the VCLT can accommodate these methods. The real problem with the Committee’s interpretations is not their (il)legality but their (lack of) legitimacy. The Committee seems to equate legitimacy with sufficient State support. Accordingly, it constantly attempts to balance a moral reading of the Covenant with finding common ground among States parties. Yet legitimacy may derive not only from a source, such as State consent, but also from following a process of interpretation that is adequate and fair. For an interpretive practice to be legitimate, the interpreter must, at the very least, adhere to a set of principles, apply these coherently, and lay bare how a particular interpretive outcome is reached.

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