Laura-Maria CRĂCIUNEAN-TATU*
Lucian Blaga University of Sibiu
Abstract: The aim of this paper is to analyse the contents of the law of occupation through a human rights lens, thus focusing on states’ international obligations to respect, protect and fulfil economic, social and cultural rights, in contexts in which such states act as Occupying Power – including in cases of prolonged occupation – and to propose ways forward to address these international obligations, with a view to ensure the enjoyment of economic, social and cultural rights by the population residing in such territories. Having in mind this objective, the paper will firstly address the legal regime of occupation with the aim of identifying the entry points for international human rights law, including economic, social and cultural rights. Secondly, it will address the legal regime of economic, social and cultural rights in general, namely the obligations to respect, protect and fulfil such rights, the principles of equality and non-discrimination, the minimum core obligations, the maximum available resources, the non-retrogression and progressive realization with the aim of putting light on the possible challenges related to the implementation of economic, social and cultural rights in peace time. Thirdly, the paper will discuss the relationship between the law of occupation and human rights law, with a focus on economic, social and cultural rights, the aim of this section being to answer to the question: how the obligations to respect, protect and fulfil such rights are influenced/modified in situations of occupation, including when occupation which is prolonged in time. Finally, we conclude by identifying some ways forward to address these obligations.
Keywords: ESC Rights, Occupation, Effective Control, Minimum Core Obligations, Maximum Available Resources.
Introduction
Factually speaking, in recent years we have all witnessed an increase and a proliferation of extraterritorial military interventions, followed by certain types of control over the foreign territory (the situation of several parts of the internationally recognized territory of Ukraine, Transnistria, Abkhazia, South Ossetia etc.) along with the continuation of more classical forms of such control and/or occupation (Palestinian Occupied Territories, Northern Cyprus, Western Sahara etc.). Some of these situations have also given rise to new forms of military presence in the territory of a state, on occasion consensual, but more often not. These facts have pointed out, in many instances, to the body of law that covers such situations and has triggered reflections about the alleged insufficiency, or even the inadequacy, of the law of occupation to deal with situations of such kind.
From the legal point of view, despite the wide acknowledgement of the simultaneous application of international humanitarian law (IHL) and human rights law (IHRL) in the context of armed conflict, occupation included, the relationship between the two branches of international law is by no means simple. On the contrary, this relation raises complex legal and normative questions regarding the complementarity, interaction and hierarchy of the two bodies of international law in situations of armed conflict, in general, and in situations of occupation, in particular. Moreover, although these aspects were extensively covered by the legal scholars with respect to CP rights[1], there was less focus on the states obligations to respect, protect and fulfil ESC rights during occupation, although ESC rights are very often directly linked with the survival, well-being, development and participation in the economic, social and cultural life of the local population and although that population is the one being impacted first and foremost by these situations.
The above-mentioned aspects, ultimately relate to the legal obligations of the occupying power with respect to the occupied territories and their respective population, in accordance with international law, in general, and with the law of occupation, in particular. Needless to mention that, these obligations are not always easy to be applied in practice, but on the contrary. Thus, even if the existence legal obligations, under the law of occupation, are meant to limit the occupying power margin of discretion, such obligation often fail to address properly the multiple facets of occupation as well as the wide variety of situations which could qualify as occupation. One such case would be, for example, the situation in which the occupation is prolonged in time, for several decades. In such a case, taking into account that the occupation is meant to be temporary and thus, the legal obligations of the occupying power are designed to respond to temporary situations, one important question that arises is what happens with these legal obligations when the occupation is prolonged in time, for several decades, and there is no perspective of it being put to an end in due time.
From the legal point of view, there are two main approaches to the matter: one which is more rigid and one which has a certain degree of flexibility. Thus, on one hand, the rigid approach puts emphasis and sustain the strict obligation of the occupying power to maintain the status quo ante, an approach that precludes wholesale changes to the legal, political, institutional, social and economic structure of the occupied territory. On the other hand, the flexible approach considers that the transformation of oppressive governments or the redress of a society in complete collapse, by means of occupation, would be in the interest of the international community and should be authorized by the law of occupation. Moreover, the later approach might also be more appropriate to respond to cases of prolonged occupation, as these cases trigger, at least, a reassessment of the way in which, and the path with which, the Occupying Power is implementing its international legal obligations with respect to the occupied territory. Thus, in cases of prolonged occupation, from the perspective of ESC rights implementation, it would, probably, be in the interest of the population residing in the occupied territory that the obligations of the Occupying Power are interpreted in a more flexible way, as to allow a strategic view on a medium and a long term, of the obligation to progressively realize ESC rights. Such approach would create the conditions and legitimize the Occupying Power to pursue more forward-looking policies in the economic, social and cultural fields, instead of just maintaining the status quo ante, and it would be relevant from the perspective of ESC rights specific obligations to allocate the maximum available resources with a view to progressively realize these rights, as well as from the perspective of the principle of non-retrogression. Needless to say, that such an approach would always need to be based on the cross-cutting principles of non-discrimination and equality in the enjoyment of ESC rights, as well as on the paramount features of the right to self-determination, with a view to not render the latter unapplicable in the future.
In light of the above, the aim of this paper is to analyse the contents of the law of occupation through a human rights lens, thus focusing on states international obligations to respect, protect and fulfil ESC rights, in contexts in which such states act as occupying power – including in cases of prolonged occupation – and to propose ways forward to address these international obligations, with a view to ensure the enjoyment of ESC rights by the population residing in such territories.
Having in mind this objective, the paper will firstly address the legal regime of occupation with the aim of identifying the entry points for IHRL, including ESC rights (Section 1), secondly, it will address the legal regime of ESC rights, in general, namely the obligations to respect, protect and fulfil ESC rights, equality and non-discrimination, minimum core obligations, maximum available resources and progressive realization with the aim of putting light on the possible challenges related to the implementation of ESC rights in peace time (Section 2), thirdly, the paper will discuss the relationship between the law of occupation and human rights law, with a focus on ESC rights, the aim of this section being to answer to the question: how the ESC rights obligations are influenced/modified in situations of occupation, including when occupation which is prolonged in time? (Section 3) and, finally, we will conclude by identifying some ways forward to address these obligations (Section 4).
1. The Legal Regime of Occupation in International Law: from Definition to Practical Aspects
Addressing the legal regime of occupation[2], with the aim of identifying the entry points for IHRL, would mean answering to questions such as: what do we mean by occupation in international law?; when a territory is considered to be occupied?; which are the conditions that need to be meet in order to speak about occupation?; what branch of international law deals with occupation?; what is the relation between armed conflict and occupation?; when does the occupation begins and when does it ends?; what are the obligations of the occupying power?; are IHL and IHRL simultaneously applicable in times of occupation and, if yes, what would be the entry point for IHRL, in general, and ESC rights, in particular?
1.1. Definition and Criteria. The Effective Control Test
The established legal understanding of the concept of occupation is based on article 42 of The Hague Regulations of 1907, according to which: “a territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. Consequently, the existence of occupation has no political connotation, being derived exclusively from article 42 of the Hague Regulations of 1907 and being determined solely on the basis of the prevailing facts. In concrete terms, the definition would cover, on one hand, situations in which the authority over a certain territory is transferred from a territorial state, without its consent, to the occupying state but at the same time, this definition would be applicable in the case of territories with unclear status that are placed under a foreign rule. Consequently, while the 1907 definition is based on the classical notion of belligerent occupation, in practice, this definition covers, today, a wide range of cases in which the armed forces of a State, or of several States, exercise authority, on a temporary basis, over inhabited territory outside the accepted international frontiers of their State[3].
The definition provided for by article 42, as well as the criteria that need to be met for an occupation to be established, have been addressed, with some specific nuances, by both the International Court of Justice[4] and International Criminal Tribunal for the former Yugoslavia[5] in their respective case-law.
Thus, on one hand, the ICJ, in Armed Activities on the Territory of the Congo[6], has first dealt with the question of the invasion of DRC by Uganda. After examining the materials submitted to it by the Parties, the Court found that from August 1998, DRC had not consented to the presence of Ugandan troops on its territory(with the exception of the border region of the Ruwenzori Mountains contained in the Luanda Agreement). The Court rejected Uganda’s claim that its use of force was an exercise of self-defence, finding that the preconditions for self-defence were not met and that the unlawful military intervention by Uganda was of such magnitude and duration that the Court considered it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the United Nations Charter.
The Court then moved to the question of occupation and of the violations of human rights and humanitarian law. Having concluded that Uganda was the Occupying Power in Ituri, at the relevant time, the Court stated that, as such, it was under an obligation, according to Article 43 of the 1907 Hague Regulations, to take all measures in its power to restore and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in DRC and this had not been done.
The third issue that the Court was called upon to examine concerned the alleged exploitation of Congolese natural resources by Uganda. In this regard, the Court considered that it had credible and persuasive evidence to conclude that officers and soldiers of the UPDF, including the most high-ranking officers, had been involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities had not taken any measures to put an end to these acts. Uganda was responsible both for the conduct of the UPDF as a whole and for the conduct of individual soldiers and officers of the UPDF in DRC. This was so even when UPDF officers and soldiers had acted contrary to instructions given or had exceeded their authority. The Court found, on the other hand, that it did not have at its disposal credible evidence to prove that there was a governmental policy on the part of Uganda directed at the exploitation of natural resources of DRC or that Uganda’s military intervention was carried out in order to obtain access to Congolese resources.
The case illustrate that, for the ICJ, a factual situation qualify as occupation, if two criteria are met, namely: 1. the presence of the armed forces of the occupying power on the territory of the occupied state, namely: ”(…) armed forces … stationed in particular locations (…)”; and 2. the substitution of the occupying power authority for that of the occupied authorities, respectively: (…) had substituted their own authority for that of the Congolese Government (…). Authority, in this context, is a factual concept.
On the other hand, the ICTY has set out more detailed guidelines, with respect to the criteria that need to be met, in situations of occupation, in the case The Prosecutor v. Naletilić and Martinović [7].These guidelines do not contradict the ones identified by the ICJ in Armed Activities on the Territory of the Congo, but provide supplementary explanations and introduce the idea of a further degree of control by a state controlling an armed group, as sufficient basis to trigger an occupation. Thus, with respect to the first criteria – the presence of the armed forces of the occupying power on the territory of the occupied state – ICTY explained that this condition refers to the fact that the occupying power has either a sufficient force presence on the ground, or the capacity to send troops, within a reasonable time, to make its authority felt. While, with respect to the second criteria – the substitution of the Occupying Power authority for that of the occupied authorities – ICTY has referred to the fact that the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly. The later implies several possible options: either the enemy’s forces have surrendered, or they have been defeated or they have withdrawn. Moreover, a temporary administration has been established over the territory and the occupying power has issued and enforced directions to the civilian population. All these guidelines would be relevant with respect to the existence of what the ICTY has clarified as being a further degree of control. In this context, although the active battle areas may not be considered as occupied territory, sporadic local resistance, even successful, does not affect the reality of occupation.
To sum up, generally speaking, under IHL, three conditions must be met in order to determine the existence of an occupation: 1. the unconsented presence of foreign forces on a territory that belongs to another state; 2. the foreign forces’ ability to exercise authority over the territory concerned in lieu of the local sovereign, and; 3. the related inability of the latter to exert its authority over the territory. All together, these elements constitute the effective control test and they are important in the determination whether a situation qualifies as an occupation, for the purposes of IHL, being at the very heart of the notion of occupation. In any case, the existence of effective control, for the purpose of legally qualifying a situation as occupation under international law, is very much dependent on the specific circumstances, of each particular case, and it is the presence of the effective control the one that allows foreign troops to enforce duties imposed on them by the law of occupation.
Due to the application of specific rules of IHL, it is important to know when the occupation starts and ends in order to apply the rules appropriately. Thus, once a state exercises effective control over a foreign territory, a key condition for an occupation has been met. Traditionally, the presence of foreign forces is considered to be the way in which control over a foreign territory is established and exercised as it gives the Occupying Power the capability and obligation to administer the territory and its population but a foreign power may also exercise indirect overall control, for example by controlling local authorities, and would still be considered an Occupying Power for the purposes of IHL[8].
Furthermore, it is not required that authority be exercised exclusively by the Occupying Power, as it may be shared by the occupant and the occupied. However, the Occupying Power must have the ultimate and overall responsibility for the occupied territory. Belligerent occupation is non-consensual by nature, hence there will not be an occupation if the ‘occupied’ state consents to the presence of a foreign army.
The criteria for the start of an occupation are very similar to its end. Consequently, occupation has ended when there is no effective military control over a territory, and the Occupying Power no longer performs the functions of a government, directly or indirectly. The exercise of the right to self-determination by the occupied population could be seen as an additional criterion for determining when an occupation ends, where the occupied territory is reintegrated with an existing state from which it has been forcefully separated; or effective power is returned to the rightful sovereign.
1.2. The Obligations of the Occupying Power: Status Quo Ante or a Certain Degree of Flexibility?
The obligations of the Occupying Power[9] are regulated by the law of occupation, which is a branch of international humanitarian law that provides for the definition of occupation and the Occupying Power ‘s obligations towards the occupied territory and its population. From the legal point of view, under common article 2 of the Geneva Conventions of 1949, an occupation is assimilated to an international armed conflict: (1) In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. (2) The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance (…).
Apart from the above mentioned common article 2 of the Geneva Conventions of 1949, which is universally ratified, occupation is governed by the special rules applicable to international armed conflicts, namely: the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War (Convention IV), Title II, Part III, Section III, entitled Occupied territories (articles 47-78), this convention being universally ratified; the 1st Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the protection of victims of international armed conflicts which is applicable to situations of occupation upon ratification and the Hague Regulations of 1907, considered to reflect customary international law.
Although the legal rules governing occupation result from various IHL instruments and sources, all of them share the same reasoning, being based upon four basic principles[10]. Firstly, there is no sovereignty for the Occupying Power, therefore the later maynot effect changes in the status and intrinsic characteristics of the occupied territory. Because the occupation does not transfer the sovereignty to the occupant, but only the authority to exercise some of the rights of sovereignty, this fact has implications on the prerogatives that the Occupying Power has over the occupied territories. Secondly, the occupation is a temporary situation. In this regard, the Occupying Power must maintain the status quo ante and must not adopt policies or measures that would introduce or result in permanent changes, particularly in the social, economic and demographic sphere. As a result, the rights and duties set forth in the occupation law are also temporary, being limited to the duration of the occupation. Thirdly, the Occupying Power always needs to take into account, and balance, two interests: its own military needs and, simultaneously, the needs of the local population. These rules essentially require the Occupying Power to maintain as normal a life as possible in the occupied territory and to administer the territory for the benefit of the local population, while taking into account its own security needs. This balance should be reflected in the concrete way in which the Occupying Power administers the territory and, more generally, in all the actions it takes and the policies it implements in that territory. The rules of the law of occupation never allow the Occupying Power to completely discount the needs of the local population in the actions it takes. Fourthly, the rules of the law of occupation generally do not allow the Occupying Power to exercise its authority in order to furtherits own interests (other than the military ones) or with a view to using the inhabitants, the resources, or other assets of the territory it occupies for the benefit of its own territory or population[11].
In terms of legal obligations, two types of such obligations result from the above-mentioned sources and principles, namely general obligations and specific ones. The Hague Regulations of 1907, provide insides with respect to the general legal obligations and competences of the Occupying Power vis a vis the occupied territory and its population. Firstly, article 43 of the Hague Regulations of 1907 states that: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the domestic laws in force in the occupied territory. Thus, under Article 43 of the Hague Regulations, an occupying power must restore and maintain public order and civil life, including public welfare, in an occupied territory. This is not a result it has to achieve, but an aim it has to pursue with all available proportionate means not prohibited by IHL and compatible with IHRL. It may suspend the derogatory provisions of the latter — but is not obliged to do so – if necessary for that purpose.
Generally speaking, the local legislation and institutions based upon such legislation must be respected by the Occupying Power and by any local authorities acting under the global control of the Occupying Power and, consequently, new legislation or derogations from the existing one are, in principle, prohibited. However, such legislation and/or derogations from it are admissible, for the period of the occupation, if they are essential for: the security of the occupying power and of its forces; the implementation of IHL and of IHRL (as far as the local legislation is contrary to such international law); the purpose of restoring and maintaining public order and civil life in the territory; the purpose of enhancing civil life during long-lasting occupations; or where explicitly so authorized under UN Security Council Resolutions[12].
With regard to the specific obligations and prohibitions of the Occupying Power these are regulated under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (Convention IV), Title III, Section III, Part III – Occupied territories (articles 46-78), namely, for example: the obligation to provide for the basic needs of the protected population; the obligation to facilitate humanitarian aid by third actors; the strict prohibition on transferring the own population into the occupied territory; the strict prohibition on forcible transfer of the protected population, while allowing for temporary evacuation for military operations (article 49); the obligation to maintain proper working of all institutions dedicated to the care and education of children (article 50); the obligation to respect private property – the destruction of private property is prohibited except where this is rendered absolutely necessary for military operations; the obligation to ensure proper food and medical supplies for the population (art. 55) along with the proper medical, public and hygiene services (article 56); the requisition of civilian hospitals should be only temporarily and only in cases of urgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are made in due time for the care and treatment of the patients and for the needs of the civilian population for hospital accommodation (art. 57); the material and stores of civilian hospitals cannot be requisitioned so long as they are necessary for the needs of the civilian population.
1.3. Occupation under the IHL and the Entry Points for IHRL
In light of the above, several preliminary conclusions can be reach. The first one is that, for the population, the rights provided under the Fourth Geneva Convention fall, undoubtedly, under IHL regime and this treaty binds the Occupying Power to observe and fulfil these rights. A grave breach of Geneva Conventions can constitute a war crime that can be triable under international criminal law. Secondly, these particular rights apply insofar occupation exists and thus displace or, depending on the concrete responsibilities, reduce such obligations by the occupied state. The division of responsibilities between the Occupying Power and the occupied state is not an one fits all jacket, being dependent on the concrete circumstances of each particular context. Thirdly, in any case, the Occupying Power is to administer the occupied territory for the benefit of the local population while ensuring the security of its own armed forces. In this context, the relevant part would be that of interpreting this administration right with a view to obtain the best protection for the individuals, namely to confer the benefits to the local population, while at the same time balancing the Occupying Power security needs. Fourthly, the legal regulations applicable in times of occupation, under the IHL regime, contain important entry points for the application of IHRL, in general, and ESC rights, in particular, the rationale being that of conferring legal protection to all individuals, in all types of situations. Consequently, during occupation, IHL and IHRL, including ESC rights, are simultaneously and extraterritorially applicable, and it should guide the Occupying Power in exercising obligations not limited to the minimum defined by IHL, but also encompassing the complementary rights and privileges codified by the applicable international human rights treaties, with respect to both CP and ESC rights[13]. In any case, I will come back to the fourth idea in the third section, which departs from the question: why is it important to discuss the obligations of a state to respect, protect and fulfil human rights, including ESC rights during occupation and to not limit the analysis to legal obligations under the law of occupation?
2. Legal Regime of ESC Rights the Obligations of States with regard to the Implementation of ICESCR
Before addressing the concrete obligations of states with regard to the implementation of ESC rights in times of armed conflict/occupation, a short overview of the legal regime of the later, in peace time[14], would be useful. Thus, the aim of this section would be to respond more general questions such as: what are ESC rights? what are the sources of ESC rights? is there any difference between ESC rights and CP rights? what legal obligations states have in order to respect, protect and fulfil ESC rights? what do we mean by progressive realization within the maximum available resources? what obligations are of immediate effect? how the principle of non-retrogression influence the implementation of the ESC rights? what do we consider to qualify as minimum core obligations?
The answers to the first three general questions are, somehow, more basic. Thus, on the first two questions, ESC rights are a category of human rights referred to in the Universal Declaration on Human Rights (UDHR) – which represents a common standard of achievement for all peoples and nations –, in the ICESCR and in several regional treaties, and include rights such as the right to adequate housing, the right to health, the right to work, the right to food, the right to water, the right to just an favourable conditions of work, the right to take part in cultural life, the right to education etc. Violations of such rights would be, for example, forcibly evicting people from their homes (right to adequate housing); water treatment facilities contaminating drinking water (right to health and right to water); failure to ensure a wage sufficient for a decent living (right to work); failure to prevent starvation (freedom from hunger, right to food); denying access to information and services related to sexual and reproductive health (right to health); segregating children with disabilities from mainstream schools (right to education) etc.
On the third question, the UDHR, makes no distinction between these rights, a distinction later appeared in the context of Cold War tensions between the East and West. This led to the negotiation and adoption of two separate covenants, one on civil and political rights, and another on economic, social and cultural rights. But, in recent decades, since the adoption of the Vienna Declaration on Human Rights, in 1993, there has been a return to the original architecture of the UDHR and a reaffirmation of the indivisibility of all human rights. Thus, a difference in nature that would imply a different treatment for ESC rights, would no longer be justified and, as a matter of principle, CP rights and ESC rights are equal, indivisible, interrelated and interdependent[15].
The answers to the remaining questions are more complex and involve a closer look throughout the work of the CESCR, which acts as the main monitoring body of the ICESCR. Thus, the answers to many of the less general questions that were raised above could be found in the first two paragraphs of article 2, in article 3 of the ICESCR as well as in some of the general comments adopted by the CESCR, namely: General Comment no. 3 (1991): The nature of States ‘parties obligations[16], General Comment no. 9 (1998): The domestic application of the Covenant[17], General Comment no.16 (2005): The equal right of men and woman to the enjoyment of all economic, social and cultural rights[18]and General Comment no. 20 (2009): Non-discrimination in economic, social and cultural rights[19].
The two paragraphs of article 2 of the ICESCR state that: 1. Each State Party to the present Covenant undertakes to take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures; 2. The State Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. As regards, article 3, this states: The States Parties to the present Covenant undertake to ensure the equal right of men and woman to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
If the role of article 2, para. 1 and 2, and of article 3 of the ICESCR is to state these obligations, the role of the four General Comments is to provide for an authoritative and extensive explanation of these texts with the aim to provide guidance to states on the implementation of the Covenant. Consequently, some of the important and relevant ideas that steam from the General Comment no. 3, General Comment no. 9, General Comment no.16 and General Comment no. 20 are extracted in the following paragraphs.
Firstly, to fully understand the legal obligations that arise from the ICESCR, article 2 needs to be read in dynamic relationship with all of the other articles of the Covenant, being thus a transversal provision. On the same line of thinking, article 3 is a cross-cutting provision that applies to all the rights contained in articles 6 to 15 of the Covenant. Both texts contain obligations with immediate effect.
Secondly, the questions relating to the domestic application of the ICESCR – through the transformation of the Covenant into domestic law or its adoption or incorporation in domestic law – must be considered in light of two principles of international law, namely: the one resulting from article 27 of the Vienna Convention on the Law of Treaties of 1969 (a party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty) a provision according to which States should modify the domestic legal order as necessary in order to give effect to their treaty obligations and the one resulting from article 8 of the UDHR, according to which everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by the law.
Thirdly, the legal obligations resulting from the ICESCR could be obligations of conduct, but also obligations of result. One such obligation of result is the one contained in article 2 (1), namely to take steps with a view to achieving progressively the full realization of the rights enshrined in the Covenant. The concept of progressive realization relates to the intent and constitutes a recognition of the fact that the full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In any case, this should not be misinterpreted as depriving the obligation of all meaningful content. This provision is meant to allow a certain degree of flexibility, reflecting different realities, and it does not aim to depriving the Covenant of its raison d’être.
Fourthly, while the Covenant provides for progressive realization and acknowledges the constraints, due to the limits of available resources, it also imposes various obligations which are of immediate effect. One such obligation is the undertaking to guarantee that relevant rights will be exercised without discrimination. Some other obligations of immediate effect would relate to the minimum core obligations, namely the obligations to ensure the satisfaction of, at least, minimum essential levels of each of the rights, the main idea being that if the Covenant would not be read in such way as to establish such minimum core obligations, it would be largely deprived of its raison d’être. Such minimum core obligations could be: ensuring the essential primary health care, basic shelter and housing, most basic forms of education, ensuring for a large number of individuals the essential foodstuffs etc. And finally, the equal right of men and woman to the enjoyment of ESC rights would also stand as an immediate obligation, being fundamental to the human dignity. In addition, there are a number of other provisions of the Covenant which would seem to be capable of immediate application by judicial and other organs in many national legal systems and the Committee has stressed that any suggestion that these provisions are inherently non-self-executing is difficult to sustain. Such provisions would be, in CESCR’s view, articles 3, 7 (a), (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3)[20].
Fifthly, deliberate retrogressive measures would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of maximum available resources[21].
Sixthly, the means which should be used are all appropriate means, including particularly the adoption of legislative measures, thus the adoption of legislation, provision of judicial remedies with respect to rights, specific policies, administrative, financial, educational and social measures are among the means that a state would need to take into account. These means are not incompatible with any of the political or economic system of a particular country. In this regard, CESCR has reaffirmed that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights is recognized and reflected in the system in question[22].
Seventhly, ESC rights impose on states three categories of legal obligations namely: obligation to respect – States parties should refrain from actions that directly or indirectly would result in interfering with the rights or curtailing them; obligation to protect – the adoption of constitutional, legislative or other measures aimed at protecting the rights as well as the monitoring and regulation of the of non-state actors conduct with a view to ensure that they do not violate such rights; and obligation to fulfil – states must take steps (positive action) to ensure in practice the respective rights and to facilitate their enjoyment thereof.
In addition, apart from these seven aspects, another important point to mention is related to the absence from the ICESCR of a derogation clause. Unlike the ICCPR – which contains a derogation clause, including exceptions to it, in article 4 para. 1 and 2 – the ICESCR, although has a provision on limitations to rights, namely article 4, this article does not contain such a derogation clause. Thus, while article 4 of the ICCPR provides that: 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion and social origin. 2. No derogation from article 6, 7, 8 (para. 1 and 2), 11, 15, 16 and 18 may be made under this provision, article 4 of the ICESCR provides that: The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
The non-derogatory provisions of the ICCPR are the ones related to the right to life (art. 6), prohibition of torture and other cruel, inhuman or degrading treatment (art. 7), prohibition of slavery and servitude (article 8, para. 1 and 2), the interdiction to be imprisoned on the ground of inability to fulfil a contractual obligation (art. 11), presumption of innocence (art. 15), recognition everywhere as a person before law (art. 16) and freedom of thought, conscience and religion (art. 18), the later with the limitations provided for in para. 3.
The above-mentioned fact could be interpreted either as a limit, or an opportunity, especially if one bears in mind that article 4 of the ICESCR has not been so far addressed and authoritatively interpreted by the Committee through a general comment. Moreover, the predominant view is that, in practical terms, this text was always interpreted by the Committee in conjunction with article 2, para. 1 and 2 of the Covenant[23].
To preliminary conclude on this aspect, if one sees the absence of a derogation clause as an opportunity this would lead to an interpretation which is consistent with the wider understanding of human rights protection, in general, and would lead to the conclusion that, ESC rights immediate obligations cannot be derogate from in times of armed conflict/occupation and that the relevant states, in each particular context, would need to continue to implement ESC rights progressively, certainly with a different path, in the context of maximum available resources and that retrogressive measures, which could be explainable and possible in contexts of armed conflict, including occupation, would need to be approached, probably, from the perspective of a different threshold.
Finally, one important point of interpretation would be, including in light or the above paragraph, that the adoption of a rigid classification between CP rights, on one hand, and ESC rights on the other hand, putting ESC rights, by definition, on a different footing, it is incompatible with the principles of indivisibility and interdependence of the two categories of rights. Thus, such a distinction, would be very problematic especially in the case of some of the ESC rights, such as the right to food, the right to water or the right to health as their minimum core contents are in direct link with a non-derogatory provision included in article 6 of the ICCPR, namely with the right to life. In his General Comment no. 36 on article 6: the right to life[24] the Human Rights Committee also puts emphasis on the fact that the content of this right can be informed by other human rights and that measures called to address adequate conditions for protecting the right to life include, where necessary, measures designed to ensure access without delay by individuals to essential goods and services such as food, water, shelter, healthcare and sanitation.
3. The Relationship between the Law of Occupation and ICESCR: Applicability and Limits. The Obligations to Respect, Protect and Fulfil ESC Rights during Armed Conflict, including Occupation: Consequences
Following the general remarks made in Sections 1 and 2, in Section 3 the focus would be on the relationship between the occupation law and IHRL (in particular, ICESCR). Thus, the questions to answer would be: is IHRL also applicable during armed conflict, including during occupation? are IHL (in particular, occupation law) and IHRL simultaneously applicable in times of occupation? and if yes, how this would influence the obligations of the relevant states, to respect, protect and fulfil human rights under IHRL regime, in general, and under the ICESCR, in particular?
3.1. General Principles, Applicable law and Challenges
The answers to the first two question are positive and the legal basis for such replies is article 43 of the Hague Regulations 1907, which frames the obligations of the Occupying Power, in the following way: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the domestic laws in force in the occupied territory.
These obligations expand upon the various rights guaranteed under the 4th Genva Convention of 1949 by obliging the Occupying Power to assume the role of the displaced State, with the caveat that it does not assume the territory as its own[25]. The achievement of public order and safety require actions by both the executive and the judicial branches the maintenance of public order and safety is not ensured via military operations, but rather through a police force, which directs its operations at civilians for the purposes of controlling crime.
The obligation to restore and ensure public order and safety is the one linking IHRL with IHL (including the law of occupation), and it is highlighting the applicability of human rights obligations in the occupied territories. Consequently, IHL and IHRL apply simultaneously in situations of armed conflict, including occupation. The text does not distinguish between obligations with respect to CP or those with respect to ESC rights, thus both categories of rights are relevant in the context of armed conflict. Nevertheless, the practical difficulties of implementing the two categories of rights may lead to such distinction.
Apart from the practical difficulties there are also theoretical ones. Thus, as mentioned by several scholars, in contrast to the extensive research and doctrine on the applicability of CP rights in armed conflict and other situations of violence, internationally recognized ESC rights have been largely ignored in this analysis. The legal guarantees related to work, food, housing, healthcare, social security or education are not generally seen as a priority amid widespread armed violence, and not even in times of occupation, since other rights relating to life, liberty and security typically attract greater attention. However, for individuals living in territories affected by armed violence, conflict or foreign military occupation, the enjoyment of ESC rights is equally vital[26] and form part and parcel of theirs everyday life thus the practical difficulties of implementing ESC rights during such situations need to be properly addressed in the future.
3.2. The Simultaneous Application of IHL and IHRL in the Context of Armed Conflict, including Occupation: the Approach of the International Courts
With respect to the application of IHRL during armed conflict, including occupation, as well as its simultaneous application with IHL, the practice of the international courts was clear in confirming this approach[27].
In 1996, the ICJ, in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons[28], affirmed that the protection of CP rights does not cease to during armed conflicts, thus confirming the simultaneous application with IHRL and IHL: The Court observes that the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.
The same line of thinking was followed by the ICJ, in 2005, in Armed Activities on the Territory of the Congo[29]: the interpretation of article 43 of the Hague Regulation includes the obligation of the state to ensure respect for both international human rights and international humanitarian law rules in order to protect the inhabitants of an occupied territory against acts of violence, and to not tolerate such acts that could be perpetrated against them by a third state.
An explicit reference to ICESCR, thus to ESC rights, was made by the ICJ in 2004, in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[30]. In the opinion the ICJ held that human rights must be observed in occupied territories except those that are derogated from and that Israel was bound by the ICESCR and the Convention on the Rights of the Child, as they apply to the Palestinian territory under their control. Moreover, in discussing the construction of the wall within Palestinian territory, the Court held that in terms of a loss of fertile agricultural land and relocation of settlements involving the construction was not in conformity with Israel’s various human rights obligations as the livelihoods of Palestinians were being affected by the transfer of portions of the Palestinian population. Moreover, in the same opinion the ICJ substantiates the position of the Geneva Conventions and the Hague Regulations and acknowledges the symbiotic relationship of IHL and IHRL in occupied territories, whereby neither precludes the other ipso facto. Rather, there must be a clear establishment of military necessity that is in the interest and the well-being of the population of the occupied territories, if a certain right (CP and/or ESC) is being derogated from. The Court found a range of provisions in the Covenant that were relevant to the right to an adequate standard of living, the right to food, clothing and housing, the right to health, and the right to education[31].
Finally, following the same line of though, in 2024, the ICJ, in the Advisory opinion on the Legal Consequences Arising from the Policies of Israel in the Occupied Palestinian Territory, including East-Jerusalem[32] recalled that, as previously stated in the Armed Activities on the Territory of Congo[33] and in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[34], international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories, that “the protection offered by human rights conventions does not cease in case of armed conflict or of occupation” and that some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may concern both these branches of international law. Consequently, following the principles, the Court observes that Israel remains bound by the ICCPR and the ICESCR in respect of its conduct with regard to the Occupied Palestinian Territory.
This approach confirms that, from the theoretical, jurisprudential and doctrinal point of view there is no difference in treatment between CP rights and ESC rights, and that IHL and IHRL are simultaneous applicable in the context of an armed conflict, occupation included.
With respect to human rights courts, the European Court of Human Rights in the Case Loizidou v. Turkey[35] has also validated the applicability of IHRL (the ECHR), in cases of occupation, and has based its judgment on the doctrine of the effective control over a territory, control which could be exercised directly or indirectly, through a subordinate local administration: “the responsibility of a Contracting Party could also arise when, as a consequence of military action, whether lawful or unlawful, it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration”.
3.3. The simultaneous application of IHL and IHRL in the context of armed conflict, including occupation: the approach of the CESCR
As the present paper aims at looking at the situation of ESC rights, one important question that arises is what has been the practice of the CESCR in this respect? To answer to this question a closer look will be taken to the practical and substantive work of the Committee with a view to illustrate its approach to the matter. A preliminary evaluation of this approach illustrates that, while in terms of practice (adoption of Concluding Observations/COBs) CESCR has been, sometimes, daring in addressing the matter, with respect to the substantive part of its work (General Comments and/or Substantive statements) it has been very timid and that lots of work still need to be done in this respect.
One clear example from the practice of the CESCR are the COBs adopted, in 2018, in respect of the Central African Republic[36]. In this particular case, under a separate heading (Relevance of the Covenant in the context of armed conflict) the CESCR has dealt, in clear and unequivocal manner, with the applicability of the ICESCR during armed conflict. Thus, although the Committee has recognized that armed conflict hampers the effective control by the State party of parts of its territory and that the state is thus not in a position to ensure the full implementation of ICESCR throughout the country, however, the human rights obligations of the State party extend throughout the country and it is the responsibility of the State to protect all persons within its territory without discrimination (para. 8). The Committee has also noted that: “in situations on armed conflict, certain serious violations of the Covenant may qualify as war crimes; these include, for example, all attacks against medical buildings and means of transport, or against personnel using distinctive emblems of the Geneva Conventions; deliberate attacks on schools and hospitals; rape and sexual slavery; the conscription or enlistment of children under the age of 15 years into armed forces or groups; or using them to participate actively in hostilities. Nevertheless, the applicability of international humanitarian law does not preclude the application of international human rights law, including the Covenant, which operates independently (para. 9).
A second example would be the COBs adopted by the CESCR, in 2019, in respect of Israel[37]. In this particular case the CESCR has dealt, in concrete terms, with the application of ICESCR to the occupied territories (including by introducing a specific heading in the COBs) and with the division of responsibilities for the implementation of ESC rights between the Occupying Power/Israel and the Palestinian Authority. Firstly, on the application of the Covenant on the occupied territories the CESCR has made an entire pleading for the simultaneous application of IHL and IHRL, and stated that: The Committee reminds the State party that the applicability of its human rights obligations in the Occupied Palestinian Territory, as well as the concurrent application of international human rights law and international humanitarian law in situation of armed conflict or occupation have been affirmed by the International Court of Justice in its Advisory Opinion rendered on the 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. This is also the view consistently adopted by various human rights treaty bodies, including the Committee, and expressed in the relevant resolutions of the General Assembly and the Reports of the Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, the Secretary General and the United Nations High Commissioner for Human Rights (para. 9). As a consequence, Israel was invited by the Committee to include in its next periodic report, information on the situation regarding the Covenant rights enjoyed by people in the Occupied Palestinian Territory.
Secondly, another important aspect of the above-mentioned opinion relates to the policies of Israel in the Occupied Palestinian Territory and the division of powers in respect of ESC rights implementation. Thus, with respect to this matter, the Committee has stated that Israel has positive and negative obligations with regard to the Occupied Palestinian Territory, depending on its level of control and the transfer of authority, and that it should not raise any obstacle to the exercise of such rights in those fields where competence has been transferred to the Palestinian authorities (para. 11).
On the other hand, in respect of Cyprus, in 2024, the CESCR has had the opportunity to address a situation of long-time occupation, namely that of the Northen part of Cyprus. In this case, CESCR has incorporated references to this situation in a very subtle way, in the introductory part of its COBs (Introduction)[38]. Thus, in para. 2 of the COBs the Committee has stated that: The Committee recognizes that the State party does not exercise control over the entirety of its territory, which poses severe challenges for the State party to fully implement its obligations under the ICESCR. However, the Committee reminds the State party that the Covenant is applicable throughout its territory and that it should take all possible measures to implement it in all parts of its territory.
Another example, would be that of the COBs adopted by the CESCR, in March 2025, in respect of Rwanda[39] where the Committee has framed the matter of ESC rights applicability during armed conflict under the heading Extraterritorial obligations in the context of armed conflict thus insisting on the role of the State party in the violations of ESC rights in the context of the armed conflict in DRC and reminding it of its obligations resulting from the International Court of Justice Advisory Opinion of 9th of July 2004, namely: Recalling the advisory opinion of the International Court of Justice of 9th of July 2004, in which the Court stated that the protection offered by human rights conventions does not cease in case of armed conflict and noting that the State Party s extraterritorial obligations under the Covenant, including in situations of armed conflict, the Committee recommends (…).
Finally, one recent example are the COBs adopted, in October 2025, in respect of the Russian Federation[40]. From the very beginning, it is important to frame the adoption of these COBs in a wider context, namely the one in which the CESCR has decided, at the beginning of 2025, to dedicate substantive work to the topic of ESC rights in situations of armed conflict. This decision will lead to the adoption, in the years to come, of a General Comment on the application and implementation of ESC rights in situation of armed conflict, being thus an opportunity for the CESCR to address this matter in a more consistent, pragmatic and informed way.
This approach is obvious in the case of the above-mentioned COBs. Thus, on one hand, the opinion sets out, from the very beginning, the specific context of its application, when, under letter C. Principal subjects of concern and recommendations, the Committee introduces an explicit heading, namely: The application of the ICESCR in the context of armed conflict (para. 4).
On the other hand, in the contents of para. 5, the CESCR has dealt explicitly with the obligations of the State party with respect to the ESC right in all the territories under its jurisdiction, including in situations of armed conflict, namely: The Committee recalls that, under art. 2 (1) of the Covenant the State party is required to take steps to progressively realize the rights enshrined in the Covenant with respect to all persons subject to its jurisdiction, including territories under its effective control. The Committee reminds the State party that the Covenant applies in the context of armed conflict concurrently with international humanitarian law. The Committee also reminds the State party that no derogation from the Covenant can be made, and that limitations on the rights under the Covenant must comply with the requirements established under article 4. Therefore, the Committee recommends that the State party: (…) b. Take all measures necessary to fully comply with its obligations to respect, protect and fulfil economic, social and cultural rights including in situations of armed conflict.
The main takeouts from this opinion could be: 1. the explicit reference to the fact that the ICESCR applies, in the context of armed conflict, concurrently with IHL; 2. that a State is bound to comply with its obligations to respect, protect and fulfil ESC rights, including in situations of armed conflict, because no derogation from the Covenant can be made; and 3. that the limitations to the rights should comply with article 4 of the ICESCR.
This approach means that the CESCR has taken an explicit stance on the lack of a derogation clause in the ICESCR. Consequently, if the ICESCR contains no derogation clause therefore, State obligations associated with the core content of the rights to health, food, housing, access to water, or to education, even during situations of emergency or armed conflict, remain in effect. On a particular note, in situations of occupation one would might also add the fact that these obligations will be shared by the Occupying Power and the occupied state in accordance with the concrete division of competences as underlined by the CESCR in the COBs on Israel.
One conservative aspect of the opinion would be the absence of a reference to the occupation law for some of the territories in question. But, although CESCR does not explicitly refer to occupation, or occupied territories, in the context of the military aggression of the Russian Federation against Ukraine, the reference to effective control over a territory, in the context of that particular armed conflict, is in our view sufficient to imply such a hypothesis and is being, in fact, wider than a reference to occupation, in the sense of IHL law.
To preliminary conclude on the impact of the Committee ‘s COBs on the matter at hand, one can easily notice that despite the fact that the CESCR has no mandate or authority to pronounce or state violations of IHL, it has on numerous occasions incorporated the IHL regime, including its language, in its analysis. Nevertheless, this practice is far from being consistent, and it does not go very much beyond general formulations. With the exception of the COBs adopted, in October 2025, in respect of the Russian Federation, all the other COBs provide, at least at this point in time, limited conclusions as to the relationship between the Covenant and IHL, beyond the statement of some general principles.
Firstly, this is explained, as stated in the doctrine[41], by the simple fact of the Committee’s structure and mandate, which limit it within the boundaries of the ICESCR. Thus, the state reporting process prevents the Committee from performing fact-specific analysis, therefore the concerns and recommendations remain at a certain level of generality.
Secondly, such an approach could also be explained if one looks at the results of the application of the two branches of law, namely the minimum protection standard offered by IHL and minimum core obligations, under the ICESCR. Thus, the Covenant may presumably offer many of the same protections as IHL, because they tend to lead to the same results.
Thirdly, the lack of coherence in the analysis is also contingent on the substantial information the Committee receives from the State party, the Office of the High Commissioner for Human Rights, and various NGOs[42], and depends also on the sensitivity and expertise of the country Rapporteur entrusted with the task of leading the debate, the composition of the task-force with respect to the State party concerned.
This conservative approach is better illustrated by the substantive work of CESCR, namely its General Comments. Although, at the official level, the language of the documents adopted by the CESCR on the role of its General Comments (GC)[43] is rather vague, in reality, as explained several times by the Committee, the GCs are intended to clarify the obligations of States parties to the ICESCR with a view to effectively achieve the full realization of the rights enshrined in the Covenant. Basically, they constitute an authentic and authoritative interpretation of the ICESCR, in the light of the existing realities. This approach gives the Committee the possibility, whenever necessary and in the light of the experience gained from the dialogues with the States parties, to revise, update its existing GCs or to proceed to the adoption of new GCs.
In the wording of the CESCR the role of its GCs is as follows: 1. to make the experience gained through the examination of States’ reports available for the benefit of all States parties in order to assist and promote their further implementation of the Covenant; 2. to draw the attention of the States parties to insufficiencies disclosed by a large number of reports; 3. to suggest improvements in the reporting procedures; 4. to stimulate the activities of the States parties, international organizations and the specialized agencies concerned in achieving progressively and effectively the full realization of the rights recognized in the Covenant.
As of October 2025, the CESCR has adopted twenty-seven GCs, the latter being the one on the environmental dimension of the sustainable development, adopted in September 2025.
In some of its General Comments, namely in the ones that address the right to adequate housing/forced evictions[44], the right to food[45], the right to health[46], the right to water[47] and the right to take part in cultural life[48] the Committee has introduced some IHL language, when defining the scope and contents of the respective rights. Consequently, as these GCs present a certain relevance for our topic, the short overview of their provisions in the following lines aims to illustrates the language and the approach of the CESCR in respect of the relationship and connection between ICESCR and IHL.
Firstly, a scan of General Comment no. 7 (1997): The right to adequate housing (art. 11 (1) of the Covenant). Forced evictions illustrates CESCRs view in relation to the right to housing, especially the issue of forced evictions, and its application in the context of armed conflicts.
The most relevant provisions of this general comment, on the matter, are the ones included in para. 3 that defines forced eviction: The term forced evictions as used throughout this general comment is defined as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal protection. The prohibition of forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights; para. 5 and 6, that address the application of this practice including in the context of armed conflict: Although the practice of forced evictions might appear to occur primarily in heavily populated urban areas, it also takes place in connection with forced population transfers, internal displacement, forced relocation in the context of armed conflict, mass exoduses and refugee movements (…) and Many instances of forced eviction are associated with violence, such as evictions resulting from international armed conflicts, internal strife and communal or ethnic violence; and the one in para. 12 that includes an explicit reference to forced eviction, house demolition, displacement of civilian population and destruction of private property as punitive measures that are inconsistent with IHL: Forced eviction and house demolition as a punitive measure are also inconsistent with the norms of the Covenant. Likewise, the Committee takes note of the obligations enshrined in the Geneva Conventions of 1949 and Protocols thereto of 1977 concerning the prohibition on the displacement of the civilian population and the destruction of private property as these relate to the practice of forced eviction.
In all cases, the language used by the CESCR on the simultaneous application of the ICESCR and IHL, is rather weak and diplomatic and suggest a certain type of reluctance from the Committee to enter into the IHL field (for example the reference that was made to the Geneva Convention of 1949: the Committee takes note of the obligations enshrined in the Geneva Conventions of 1949 (…)).
Secondly, the provisions of the General Comment no. 12 (1999): The right to food (art. 11) are not, generally speaking, explicit on the approach taken by the CESCR with respect to the relationship between ICESCR and IHL. Although the document only has marginal and limited references to the right to food, in the context of armed conflict it, nevertheless, provide for insides on the contents of this right as well as on the minimum core obligations which are set forth for the States parties. Important to mention is that these minimum core obligations are of immediate effect.
Thus, while there are only two references to the right to food in times of conflict, out of which one explicitly refers to wars and the other to internal conflicts (without mentioning the term “armed”), namely the one in para. 5: (…) millions of people are suffering from famine as a result of natural disasters, the increasing incidence of civil strife and wars in some regions and the use of food as a political weapon” and the one in para. 16: the prevention of access to humanitarian food aid in internal conflicts or other emergency situations (…), with respect to exact contents as well as the minimum core obligations with respect to the right to food, there are several relevant provisions, and these are contained in: para. 1: The human right to adequate food is recognized in several instruments under international law. ICESCR deals more comprehensively than any other instrument with this right. Pursuant to art. 11.1 of the Covenant, States parties recognize” the right of everyone to an adequate standard of living for himself and his family including adequate food, clothing and housing, and to the continuous improvement of living conditions while pursuant to art. 11.2 they recognize that more immediate and urgent steps may be needed to ensure the fundamental right to freedom from hunger and malnutrition. The human right to adequate food is of crucial importance for the enjoyment of all rights (…); para. 4: The Committee affirms that the right to adequate food is indivisibly linked to the inherent dignity of the human person and it is indispensable for the fulfilment of other human rights enshrined in the International Bill of Human Rights (…); para. 6: The normative content of article 11 paras. 1 and 2, the right to adequate food is realized when every man, woman and child alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement. The right to adequate food will have to be realized progressively. However, States have a core obligation to take necessary action to mitigate and alleviate hunger as provided for in paragraph 2 of article 11, even in times of natural and other disasters; para. 8: The Committee considers that the core content of the right to adequate food implies: 1. The availability of food in quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within given culture; 2. The accessibility of such food in ways that are sustainable and that do not interfere with the enjoyments of other human rights; para. 15: (…) whenever an individual or a group is unable, for reasons beyond their control, to enjoy the right to adequate food by means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural disasters; para. 17: Violations of the Covenant occur when a state fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger; para. 19: Violations of the right to food can occur through the direct actions of States and other entities insufficiently regulated by States. These include: (…) denial of access to food to particular individuals or groups, whether the discrimination is based on the legislation or is pro-active; the failure to regulate activities of individuals or groups so as to prevent them from violating the right to food of others (…); para. 28: Even when a State faces severe resource constrains, whether caused by process of economic adjustment, economic recession, climatic conditions or other factors, measures should be undertaken to ensure that the right to adequate food is especially fulfilled for vulnerable population groups and individuals.
Thirdly, although the right to health is of crucial importance during armed conflicts or other emergency situations the approach of the CESCR to it is, again, rather marginal but there are some explicit but also implicit reference to its application in the context of armed conflict. Thus, in General Comment no. 14 (2000): The right to the highest attainable standard of health (art. 12 of the International Covenant on Economic, Social and Cultural Rights, the few paragraphs that can be, directly or indirectly, linked with IHL are mainly: para. 3: The right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information and the freedom of association, assembly and movement. These and other rights and freedoms address integral components of the right to health; para. 4: (…) the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions and a healthy environment; para. 10: Since the adoption of the two International Covenants in 1966 the world health situation has changed dramatically and the notion of health has undergone substantial changes and has also widened in scope (…). A wider definition of health also takes into account such socially-related concerns as violence and armed conflict (See Common article 3 of the Geneva Conventions for the Protection of War Victims – 1949; Additional Protocol I of 1977 relating to the Protection of Victims of International Armed Conflicts – art. 75 (2) (a); Additional Protocol II of 1977 relating to the Protection of Victims of Non-International Armed Conflicts – art. 4 (a)); para. 16:” (…) The right to treatment includes the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards, and the provision of disaster relief and humanitarian assistance in emergency situations; para. 30: While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States various obligations which are of immediate effect. States parties have immediate obligations in relation to the right to health such as the guarantee that the right will be exercised without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of article 12. Such steps must be deliberate, concrete and targeted to towards the full realization if the right to health; para. 34: (…) States should refrain from unlawfully polluting the air, water and soil e.g. though industrial waste from State-owned facilities, from using or testing nuclear, biological or chemical weapons if such testing results in the release of substances harmful to human health, and from limiting access to health services as a punitive measure e.g. during armed conflicts in violation of international humanitarian law; para. 40: States parties have a joint and individual responsibility, in accordance with Charter of the United Nations and relevant resolutions of the United Nations General Assembly and of the World Health Assembly to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons; para. 43: In General Comment no. 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary healthcare. (…) Accordingly, in the Committee s view, these core obligations include at the least the following obligations: a. to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups; b. to ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone; c. to ensure access to basic shelter, housing and sanitation and an adequate supply of safe and potable water (…); para. 65: The role of the WHO, the Office of the United Nations High Commissioner for Refugees, the International Committee of the Red Cross/Red Crescent and UNICEFF, as well as non-governmental organizations and national medical associations, is of particular importance in relation to disaster relief and humanitarian assistance in times of emergencies including assistance to refugees and internally displaced persons. Priority in the provision of international medical aid, distribution and management of resources, such as safe drinking water, food and medical supplies, and financial aid should be given to the most vulnerable or marginalized groups of the population.
Fourthly, as regards theGeneral Comment no. 15 (2002): The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), the overall importance of this document relates to the legal recognition of a distinct human right, namely the right to water, the clarification of its normative contents and the framing of States Parties legal obligations, in both in peace time and during armed conflict. With respect to the legal obligations, a particular importance has the articulation of those obligations identified as being core obligations, namely those which are meant to ensure the satisfaction of, at the very least, minimum essential levels of the right to water, obligations which are of immediate effect.
Thus, in CESCRs view, in respect of the right to water there are a number of core obligations, which are of immediate effect, namely: the obligation to ensure access to the minimum essential amount of water that is sufficient and safe for personal and domestic uses to prevent diseases; the obligation to ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged and marginalized groups; the obligation to ensure that personal security is not threatened when having to physically access to water; the obligation to ensure physical access to water facilities or services that provide sufficient, safe and regular water or to take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation.
The special importance of the right to water, in the context of armed conflicts, is treated by the GC in a rather prudent and conservative way and the verbs which are used (notes) are relevant in that respect. Nevertheless, this does not mean that the CESCR has not attempted to clarify the relationship between HRL and IHL, on the contrary. Consequently, several provisions of this GC are relevant for our analysis, namely: para. 3 which places the right to water under the umbrella of the right to an adequate standard of living, providing that: Article 11, para. 1 of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living (…). The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since is one of the most fundamental conditions for survival; para. 4 (footnote 5): which enumerates a large rage of documents in which the right to water has been recognized and several of these documents pertain to the area of IHL, being thus applicable in time of armed conflicts, namely: Geneva Convention relative to the treatment of Prisoners of War, of 1949 (arts. 20, 26, 29 and 46); Geneva Convention relative to the Treatment of Civilian Persons in time of War, of 1949 (arts. 85,89, and 127); Additional Protocol I of 1977 (arts. 54 and 55) and Additional Protocol II of 1977 (arts. 5 and 14); para. 21: The obligation to respect requires that States parties refrain from interfering directly, or indirectly with the enjoyment of the right to water. This obligation includes, inter alia, refraining from (…) unlawfully diminishing or polluting water, for example, though waste from State-owned facilities or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example, during armed conflicts in violation of international humanitarian law; para. 22: The Committee notes that during armed conflicts, emergency situations and natural disasters, the right to water embraces those obligations by which States parties are bound under international humanitarian law (for the relationship of human rights law and humanitarian law, the Committee notes the conclusions of the ICJ in the Legality of the Threat of Use of Nuclear Weapons (Request by the General Assembly, ICJ Reports (1996), p. 226, para. 25). This includes protection of objects indispensable for survival of the civilian population, including drinking water installations and supplies and irrigation works, protection of the natural environment against widespread, long-term and severe damage and ensuring that civilians, internees and prisoners have access to adequate water – Additional Protocol I to the Geneva Conventions of 1977 (arts. 54 and 56); Additional Protocol II to the Geneva Conventions of 1977 (art. 54); The IIIrd Geneva Convention of 1949 (arts. 20 and 46) and common article 3 of the Geneva Conventions of 12 of August 1949; para. 37: (…) States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant. In the Committee s view, at least a number of core obligations in relation with the right to water can be identified, which are of immediate effect: a. to ensure the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease; b. to ensure the right of access to water and water facilities and services on non-discriminatory basis, especially for disadvantaged or marginalized groups; c. to ensure physical access to water facilities or services (…); d. to ensure personal security is not threatened when having to physically access to water; e. to ensure equitable distribution of all available water facilities and services (…); para. 44: While it is not possible to specify a complete list of violations in advance, a number of typical examples relating to the level of obligations, emanating from the Committee s work, may be identified: a. (…) arbitrary or unjustified disconnection or exclusion from water services or facilities; pollution and diminution of water resources affecting human health (…); b. (…) failure to protect water distribution systems from interference, damage and destruction (…); c. (…) failure to ensure that the minimum essential level of the right is enjoyed by everyone (…); para. 60: The role of the International Federation of the Red Cross and Red Crescent Societies, International Committee of the Red Cross (…) is of particular importance in relation to disaster relief and humanitarian assistance in times of emergencies.
Finally, as regards the last general comment which is relevant for the discussion, namely General Comment no. 21 (2009) on the right of everyone to take part in cultural life (article 15 para. 1 (a) of the International Covenant on Economic, Social and Cultural Rights, this document has only one explicit reference to armed conflict, in para. 50 (a). This provision refers to the obligation of the States parties to respect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters: cultural heritage must be preserved, developed, enriched and transmitted to future generations as a record of human experience and aspirations, in order to encourage creativity in all its diversity and to inspire a genuine dialogue between cultures. Such obligations include the care, preservation and restoration of historical sites, monuments, works of art and literary works, among others.
One general conclusion that can be extracted from the sections above is that, for sure the obligations of States parties – be those Occupying Powers or occupied states – to respect, protect and fulfil ESC rights continue to exist in the context of armed conflicts, including occupation. These specific contexts would nevertheless trigger modifications and/or would influence these obligations. The concrete way in which this is done would be very much dependent on several factors, including on the division of powers between the Occupying Power and the occupied state or the way in which the right to administer the occupied territory is interpreted. Another important matter would be to find out if the simultaneous application of IHL and IHRL would add any supplementary protection to the minimum offered by IHL norms. Thus, some constructive conclusions and ways forward would be helpful in this respect.
4. Some Conclusions and Ways Forward
In light of the findings and the preliminary conclusions extracted above, some final conclusions and ways forward could be imagined.
Firstly, an occupation would mean the existence of an effective control of a State over the territory, or parts of the territory of another State. Occupation is, thus, entirely a factual situation. Consequently, the concrete responsibilities of the States involved would be very much dependent on the concrete facts. Thus, these responsibilities with respect to occupied territory and its population, would be either exclusive or shared, according to the factual circumstances of each particular case. With respect to human rights obligations (ESC rights obligations included), this will result either in an exclusive or a shared responsibility for the implementation of the obligations to respect, protect and fulfil human rights (including the ones resulting from the ICESCR).
Secondly, in this context, a particular attention would need to be placed on the obligation to fulfil ESC rights, in particular, because such an obligation implies a series of positive measures. Thus, economic, social and cultural rights, such as the right to a minimum standard of health, the right free primary education for all, the right to food, the right to water, gender equality etc. require positive action to become enforceable (be that the adoption of legislation and/or other measures). This means that, in implementing IHRL obligations, the Occupying Power is required to invest significant resources into the development of the occupied territory, especially in areas affected by armed conflict, while at the same time, satisfying its own security interests.
Thirdly, such an affirmation would lead, inevitably, to the question: how the Occupying Power would balance those two competing interests and how the existing resources would thus be allocated? Although an answer could be envisaged as steaming from article 43 of the Hague Regulation of 1907 – whichrequires the Occupying Power to respect the country’s existing legislation in the interests of the local population’s public order and safety – it is unclear whether this text extends to a positive obligation to enact legislation that may improve the domestic law’s conformity with IHRL. Two are the arguments for a restrictive interpretation of article 43, namely the simple fact that this text does not impose to the Occupying Power an explicit human rights obligation, but it rather imposes an obligation to address and maintain of public order and safety and secondly, the week language of article 43 itself (all the measures in his power, as far as possible, unless absolutely prevented). In this case, for the Occupying Power it will be, more convenient, to prioritise measures of security justified under the umbrella of military necessity and use its resources accordingly, thus interpreting in a strict way the obligation to maintain the status quo ante. This will mean, among other things, taking into account and acting only on the basic rights guaranteed under IHL.
Nevertheless, as illustrated above, the international courts and qvasi-judicial bodies, do not share the above-mentioned restrictive interpretation, on the contrary. The fact that the Occupying Power has the de facto authority over the occupied territory, means effective control, and this control comes together with the extension of its human rights obligations over its own territory (stemming from any treaty it has ratified or from customary international law), to the occupied territory as well (extraterritorial obligations). The practice of international courts on the relationship between IHL and IHRL in occupied territories, indicates that IHL does not entirely displace IHRL and that some obligations of the Occupying Power derive from IHL, others from IHRL or from both branches to a different extent. Thus, IHRL continues to apply in occupations except where certain rights are derogated from by the occupying power in the interests of military necessity. Consequently, the obligation of the Occupying Power to ensure the fulfilment and observance of human rights obligations towards the population of the occupied territory is in place. The obligation to restore and ensure public order and safety is the one linking IHRL with IHL (including the law of occupation), and it is highlighting the applicability of human rights obligations in the occupied territories. The text does not distinguish between obligations in respect of CP or obligations with respect to ESC rights, thus both categories of rights are relevant in the context of armed conflict. Nevertheless, the practical difficulties of implementing the two categories of rights may lead to such distinction.
Fourthly, the absence of a derogation clause in the ICESCR could be interpreted either as a limit, or an opportunity, especially if one bears in mind that article 4 of the ICESCR has not been so far addressed and authoritatively interpreted by the Committee through a general comment. Moreover, the predominant view is that, in practical terms, this text was always interpreted by the Committee in conjunction with article 2, para. 1 and 2 of the Covenant.
Thus, if one sees the absence of a derogation clause as an opportunity this would lead to an interpretation which is consistent with the wider understanding of human rights protection, in general, and would lead to the conclusion that, ESC rights immediate obligations cannot be derogate from in times of armed conflict/occupation and that state obligations associated with the core content of the rights to health, food, housing, access to water, or to education, even during situations of emergency or armed conflict, remain in effect. On a particular note, in situations of occupation one would might also add the fact that these obligations will be shared by the Occupying Power and the occupied state in accordance with the concrete division of competences as underlined by the CESCR in the COBs on Israel. Thus, the relevant states, in each particular context, would need to continue to implement ESC rights progressively, certainly with a different path, in the context of maximum available resources and that retrogressive measures, which could be explainable and possible in contexts of armed conflict, including occupation, would need to be approached, probably, from the perspective of a different threshold. This implies a reinterpretation of some of the cross-cutting provisions of the ICESCR, in the context of occupation, namely the ones referring to the progressive realization, non-retrogression and maximum available resources.
In recent practice, CESCR has taken an explicit stance on the lack of a derogation clause in the Covenant, in October 2025, in the COBs adopted in respect of the Russian Federation. Nevertheless, this stance has been only expressed, in clear terms, once, thus it would need to be further validated by the consistent practice of the Committee following the same lines.
Fifthly, an important tool for addressing many of the difficulties mentioned above as well as the remaining unclear aspects would be the future General Comment of the CESCR on the application of ESC rights in the context of armed conflict. This document is meant to provide guidance to States parties on how to discharge their obligations under the ICESCR in the context of armed conflicts, including occupation. The Committee has decided, in February 2025, to address this substantive topic as a matter of priority.
Finally, indeed, the language of Article 43 gives Occupying Powers the ability to invoke this vagueness in two opposite avenues, namely: to legitimise broad legislative powers or, on the contrary, to escape responsibility in ensuring the welfare and normal life of the local population, unless absolutely prevented. In any case, there is need for an extensive interpretation of this administration right, with a view to obtain the best protection for the individuals, namely, while balancing the Occupying Power security needs, to confer the best benefits to the local population.
* Associate Professor, PhD, Lucian Blaga University of Sibiu, Romania, Faculty of Law. Member of the UN CESCR (2017-present), Former Chair (2023-2025) and Vice-Chair (2019-2021) of the same body; Independent expert elected in respect of Romania to the Council of Europe Advisory Committee of the Framework-Convention for the Protection of National Minorities (2016-2020 and 2022-2026). Email: laura.craciunean@gmail.com.
The opinions expressed in this paper are solely the author’s and do not engage any of the institutions she belongs to.
[1] Gilles Giacca, The Relationship between Economic, Social and Cultural Rights and Humanitarian Law in Eibe Reidel, Gilles Giacca, Christophe Golay, Economic, Social and Cultural Rights. Contemporary Issues and Challenges (2014), Oxford University Press, p. 308-324.
[2] See for details, Tristan Ferraro, Report on the Expert Meeting on Occupation and Other Forms of Administration of Foreign Territory (2012), ICRC; Eyal Benvenisti, The International Law of Occupation (2009) Cambridge, CUP.
[3] See for further details, Marco Sassoli, Chapter 67, The Concept and Beginning of Occupation in Andrew Clapman, Paola Gaeta, Marco Sassoli, The 1949 Geneva Conventions. A Commentary, Oxford University Press (2018), p. 1390-1419; Tristan Ferraro, Determining the Beginning and End of an Occupation under International Humanitarian Law, 94 IRRC 885 (2012), p. 133.
[4] Further referred to as ICJ.
[5] Further referred to as ICTY.
[6] Armed Activities on the Territory of the Congo, (Democratic Republic of Congo v. Uganda), [2005] ICJ.
[7] Prosecutor v. Naletilić and Martinović, (Judgement 31 of March 2003), ICTY.
[8] See for further details, Marco Sassoli, Chapter 67. The Concept and Beginning of Occupation … (2018), p. 1395-1400.
[9] Tristan Ferraro, op. cit, 2012, p. 16-24.
[10] Tristan Ferraro, op. cit., 2012, p. 54-72.
[11] Tristan Ferraro, op. cit., 2012, p. 70.
[12] Tristan Ferraro, op. cit., 2012, p. 54-72.
[13] Tristan Ferraro, op. cit., 2012, p. 61-72.
[14] See for more details, Eibe Reidel, Gilles Giacca, Chistophe Golay, op. cit., 2014. Emanuel Decaux, Olivier de Schutter, Le Pacte international relatif aux droits économiques, sociaux et culturels. Commentaire article par article (2019), Edition Economica, Paris.
[15] Olivier de Schutter, International Human Rights Law, Cambridge University Press (2012) 3rd edition, Cambridge, p. 461-558; Ilias Bantekas, Lutz Oette, International Human Rights. Law and Practice (2016) Cambridge University Press, 2nd edition, Cambridge, p. 399-422.
[16] CESCR, General Comment no. 3 (1991): The nature of States ‘parties obligations E/1991/23, 1991.
[17] CESCR, General Comment no. 9 (1998): The domestic application of the Covenant E/C.12/1998/24.
[18] CESCR, General Comment no.16 (2005): The equal right of men and woman to the enjoyment of all economic, social and cultural rights E/C.12/2005, 11th of August 2005.
[19] CESCR, General Comment no. 20 (2009): Non-discrimination in economic, social and cultural rights E/C.12/GC20, 2nd of July 2009.
[20] CESCR, General Comment no. 3 …, para. 5.
[21] CESCR, General Comment no. 3 …, para. 10.
[22] CESCR, General Comment no. 3 …, para. 8.
[23] See for this opinion, Michel Puechavy, Article 4 in Emanuel Decaux, Olivier de Schutter, Le Pacte international relatif aux droits économiques, sociaux et culturels. Commentaire article par article (2019), Edition Economica, Paris, p. 180-182.
[24] HRCtee, General Comment no. 36 on article 6: the right to life, CCPR/C/GC/36, 3rd of September 2009, para. 26.
[25] Tristan Ferraro, op. cit., 2012, p. 54-72.
[26] See for this view, Gilles Giacca, The Relationship…, p. 309; R.E. Vinuesa, Interface Correspondence and Convergence of Human Rights and International Humanitarian Law, Yearbook of International Humanitarian Law 1 (1998), p. 69-110.
[27] See for details, Ludovic Hennebel, Helene Tigroudja, Traite de droit international des droits de l’homme (2018), 2eme édition, Pedone, Paris, p. 189-200.
[28] Legality of the Threat or the Use of Nuclear Weapons [1996], Advisory Opinion, ICJ Reports, para. 25.
[29] Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) [2005] ICJ.
[30] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Reports.
[31] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Reports, p. 136
[32] Legal Consequences Arising from the Policies of Israel in the Occupied Palestinian Territory, including East-Jerusalem, Advisory Opinion [2024]ICJ Reports.
[33] Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), [2005] ICJ Reports, p. 243, para. 216.
[34] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Reports (I), pp. 178-181, paras. 107-113.
[35] Loizidou v. Turkey (1996), Grand Chamber, Reports of Judgments and Decisions ,1996-VI, para. 52.
[36] CESCR, E/C.12/CAF/CO/1, COBs adopted in respect of the Central African Republic, 4th of May 2018, para. 8.
[37] CESCR, E/C.12/ISR/CO/4, COBs on the fourth periodic report of Israel, 18th of October 2019,https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fISR%2fCO%2f4&Lang=en.
[38] CESCR, E/C.12/CYP/CO/7, COBs on the 7th periodic report of Cyprus, 18th of October 2024, para. 2.
[39] CESCR, E/C.12/RWA/CO/5, COBs adopted in respect of the 5th periodic report of Rwanda, 17th of March 2025, paras. 14 and 15.
[40] CESCR, E/C.12/RUS/CO/7, COBs adopted in respect of the 7th periodic report of the Russian Federation, 23rd of October 2025, paras. 4 and 5.
[41] See Gilles Giacca, op. cit., p. 308-309.
[42] See Gilles Giacca, op. cit., p. 310.
[43] See for other details: https://www.ohchr.org/en/treaty-bodies/cescr/rules-procedure-and-working-methods.
[44] CESCR, General Comment no. 7 (1997): The right to adequate housing (art. 11 (1) of the International Covenant on Economic, Social and Cultural Rights, E/1998/22, Anex IV.
[45] CESCR, General Comment no. 12 (1999): The right to food (art. 11), E/C.12/1999/5, 12 May 1999.
[46] CESCR, General Comment no. 14 (2000): The right to the highest attainable standard of health (art. 12 of the International Covenant on Economic, Social and Cultural Rights, E/C.12/2000/4, 11 August 2000.
[47] CESCR, General Comment no. 15 (2002) on the right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, E/C.12/2002/11, 20 January 2003.
[48] CESCR, General Comment no. 21 (2009) on the right of everyone to take part in cultural life (art. 15, para. 1 (a) of the International Covenant on Economic, Social and Cultural Rights, E/C.12/GC/21, 21 December 2009.