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Zurich Open Repository and Archive
Part of book or chapter of book . 2018
SSRN Electronic Journal
Article . 2016 . Peer-reviewed
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Interpretation of the ICESCR: Between Morality and State Consent

Authors: Moeckli, Daniel;

Interpretation of the ICESCR: Between Morality and State Consent

Abstract

Discussions concerning the interpretive practice of the Committee on Economic, Social and Cultural Rights have so far centred on the question as to the legality of the ‘special’ interpretive techniques and tools which it has developed: Does the special nature of the ICESCR as a human rights treaty justify recourse to interpretive methods that may not be covered by Articles 31–33 of the VCLT? This paper argues that the VCLT’s interpretive framework also applies to human rights treaties and is broad enough to accommodate the Committee’s methods which, on closer inspection, turn out to be not that special at all. The key question is not whether there is a legal basis for the interpretive methods employed by the Committee – there clearly is – but, instead, whether its interpretations are regarded as legitimate. For the Committee, legitimacy seems to boil down to sufficient state support. Accordingly, its interpretive practice is informed by constant attempts to find the right balance between its urge to give the Covenant a moral reading and establishing common ground among states parties. Yet the legitimacy of a given interpretation depends on more than the extent of (pre-existing) state consensus it reflects. Legitimacy can be generated through following a process of interpretation that the interpretive community regards as adequate and fair and that produces interpretive outcomes that appear persuasive to it. For an interpretive practice to be legitimate, it will be argued, the interpreter must adhere to an agreed upon set of principles and apply it in a coherent and transparent manner.

Country
Switzerland
Related Organizations
Keywords

10892 Constitutional, Administrative and International Law, 340 Law, 3300 General Social Sciences

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
Average
Average
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