The Role of the International Covenant on Economic, Social and Cultural Rights in the Countermovements Against Economic Liberalism

In recent years, revisionist studies of the history of economic, social and cultural rights have deemed that the International Covenant on Economic, Social and Cultural Rights (ICESCR) is a failed instrument. My thesis explores the extent to which that assessment is accurate and concludes that, although the ICESCR’s drafters did imbue the treaty with a strong purpose of resistance against the detrimental impacts of economic liberalism, the instrument’s ties to its historical roots might be too strong for it to serve an effective purpose in present and future efforts to push back against excessive marketisation. In order to fully understand both the ICESCR’s shortcomings and its unfulfilled potential, it is helpful to analyse the treaty’s content and purpose from the perspective of Karl Polanyi’s theory of the double movement. This theory, presented by Polanyi in his 1944 monograph The Great Transformation, established that the 19th century was defined by a struggle between those who advocated for economic liberalism and those who protected society from that economic model through a “countermovement” that promoted mechanisms of “social protection”. A current wave of neo-Polanyian scholarship has reinterpreted the double movement as a pendulum that has continued to swing between economic liberalism and social protection, explaining the rise of neoliberal practices in the second half of the 20th century and contemporary efforts to limit the influence of the market over society. From a neo-Polanyian viewpoint, the ICESCR was a product of the second countermovement – a series of actions taken by governments all around the world during the mid-20th century to mitigate the harmful effects of the market on people’s wellbeing. After conducting a detailed examination of the ICESCR’s travaux préparatoires, I determine that the members of the United Nations Commission on Human Rights consciously shaped the treaty according to six principles that I identify as underlying the second countermovement. This thesis argues that such an intimate connection with those principles, which at first might seem benign, is the source of the ICESCR’s current limitations. Because the instrument is a product of the second countermovement, it is now out of place in an era where economic liberalism presents different challenges than it did in the mid-20th century. That dilemma is illustrated by the contrast between the tentative approach of the Committee on Economic, Social and Cultural Rights – bound by the constraints of the ICESCR – and the confrontational tone of the Special Rapporteur on extreme poverty and human rights, which has taken advantage of its wider mandate to endorse practices of an emerging third countermovement that directly address the specific challenges of this era. Therefore, while the ICESCR has been used by those bodies to resist neoliberal ambitions, the treaty might become less relevant the further we move away – both chronologically and socio-politically – from the second countermovement.