Armed conflicts inevitably lead to suffering and to individuals having their basic needs unmet, especially if applicable international humanitarian law (IHL) and minimum core obligations under economic, social and cultural rights are not complied with. We seem to accept that this is simply how things are – wars bring about scarcity of resources, and as a result, States are no longer able to fulfil their human rights obligations. Of course, when hospitals are being bombed, patients will not receive life-saving treatment. Of course, when crops are destroyed, people will starve. Of course, when infrastructure collapses, communities will lose access to clean water. Suffering becomes too widespread and too ordinary to attract our attention, and worse still, the very magnitude of this suffering turns into the justification for reducing the standards of States’ obligations to extremely low levels. In times of peace, the death of a person from starvation or lack of basic health care is a tragedy; in times of armed conflict, it becomes merely another consequence of war.
This article challenges that view and proposes the opposite approach, grounded in a vulnerability-based, “maximalist” perspective for determining States’ positive obligations in the area of socio-economic rights. In a nutshell, it argues that the fact that armed conflict renders those who were previously doing relatively well vulnerable, and makes the already vulnerable even more so, suffices to conclude that the existence of conflict increases rather than decreases States’ positive obligations in the area of social and economic rights. This starting point must certainly be confronted with the reality that States may face reduced resources and diminished control over their territories – but while such circumstances may affect the concrete measures that can reasonably be required of a State, and whether insufficient results amount to a breach, they do not in themselves displace the underlying obligations. The article’s thesis is, therefore, consistent with the interpretation according to which the absence of resources is generally not an excuse for a failure to comply with economic, social and cultural rights obligations.Footnote 1
In order to explore the legal consequences of such an approach from the perspective of international law, this article begins by describing the application of socio-economic rights in armed conflicts, the relationship between socio-economic rights and IHL, and the general limitations of socio-economic rights. It then proceeds to discuss three key “limits to limitation”: the temporal limit, which confines measures to the duration of the actual emergency; the limit imposed by the minimum core content of the right; and the limit stemming from the nature of the right in question. Building on this foundation, the article proposes a vulnerability-based – or what could also be termed “maximalist” – approach, which argues for “additional” or “greater” obligations on States during armed conflicts. For this to be realistic, in addition to the State’s due diligence with respect to those under its overall territorial control, recourse to international assistance could also be necessary. While the article acknowledges that more than a mere declaration of a “maximalist” legal obligation is required – political will, institutional capacity and international cooperation are all crucial – it explains that establishing such an obligation is nonetheless a necessary first step toward questioning the current status quo and provoking a search for alternative ways of approaching the limitations of socio-economic rights in times of armed conflict.
Socio-economic rights and armed conflicts
The most universal human rights instrument safeguarding social and economic rights – such as the right to the highest attainable standard of health, the right to education, the right to social security and the right to an adequate standard of living, including adequate food, clothing and housing – is the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 2 Some of the most widely ratified regional instruments such as the European Social Charter,Footnote 3 the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural RightsFootnote 4 or the African Charter on Human and Peoples’ RightsFootnote 5 also protect socio-economic rights, including the rights to the highest attainable standard of health and education and to adequate nutrition and housing, family protection and just conditions of employment, as well as providing protections for children, people with disabilities and older persons.Footnote 6 It is important to note that, recognizing the reality of limited resources, Article 2(1) of the ICESCR permits the progressive realization of these rights, provided that States take steps toward their fulfilment immediately.Footnote 7 The obligations to ensure non-discrimination, generally prevent retrogression and preserve the core content of the rights must, however, be upheld.Footnote 8
Such specification of obligations should help to avoid treating socio-economic rights as merely aspirational or overly vague concepts. The recognition of socio-economic rights alongside civil and political rights reflects the concept of the indivisibility of rights, which prohibits justifying violations of one category by upholding another.Footnote 9 In fact, in extreme circumstances, a violation of a socio-economic right may also constitute a violation of a civil or political right,Footnote 10 or result in an inability to exercise the latter.Footnote 11 This overlap underscores a deeper concern: if a formal hierarchy of rights were to be reinforced, State leaders who knew “that they may be brought to trial for massacring people” could “choose to starve them to death or inflict illness on them instead”.Footnote 12
Importantly, as the International Court of Justice (ICJ) has clarified,Footnote 13 reiterating the position of the Committee on Economic, Social and Cultural Rights (CESCR),Footnote 14 international human rights law (IHRL), including on socio-economic rights, continues to apply in times of armed conflict. The doctrine tends to emphasize the relationship of complementarity between IHL and IHRL.Footnote 15 In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall Advisory Opinion), the ICJ noted three possible solutions to the relationship between IHL and IHRL, stating that “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law”.Footnote 16 The International Committee of the Red Cross (ICRC) Commentary on Geneva Convention IV (GC IV) relating to the protection of civilians in international armed conflicts further specifies that the relationship between IHL and IHRL is such that “in some cases both legal regimes will apply simultaneously, with the exact nature of their relationship having to be determined on a case-by-case basis depending on the circumstances at hand”.Footnote 17 IHL tends to take a more “top-down” approach than IHRL and imposes obligations on parties to armed conflict that aim to mitigate the effects of hostilities instead of focusing on individualized human rights.Footnote 18 The approach proposed in this article for States when deciding which system should be applicable is to “assess humanitarian and human rights rules in the concrete situation and determine which provides the greatest protection to the individuals concerned”,Footnote 19 taking also into account the specificity of the rules and accepting that sometimes both systems may apply simultaneously.
Turning to the socio-economic protections ensured under IHL, GC IV, for example, requires parties to allow free passage of “all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians” and to “permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases” (Article 23). It also provides for specified protections including access to relief and medical treatment (Article 38) and – in relation to persons in occupied territories – special protection for children in the area of their care and education (Article 50), as well as protections relating to food and medical supplies (Article 55), hygiene and public health (Article 56), and collective relief (Article 59).Footnote 20 In a similar vein, Additional Protocol I, applicable in international armed conflicts, protects objects indispensable to the survival of the civilian population (Article 54), requires the Occupying Power to ensure satisfaction of basic needs (Article 69), and mandates undertaking relief actions “if the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69” (Article 70).Footnote 21 Article 72 specifically notes that provisions related to the treatment of persons in the power of a party to the conflict are additional to other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict.Footnote 22 Article 75, listing fundamental guarantees, states that nothing in it may be construed as limiting or infringing other more favourable provisions granting greater protection under applicable rules of international law.Footnote 23 Additional Protocol II, applicable in certain non-international armed conflicts, also provides for humane treatment and essential guarantees for detainees, including food, drinking water, and health and hygiene (Article 5).Footnote 24
Limitations of social and economic rights
In order to examine the limitations of social and economic rights, the present section first discusses Articles 4 and 2(1) of the ICESCR and the conditions under which restrictions would be permissible. It then turns to delineating what measures are not allowed or, in other words, what would be unlawful or arbitrary limitations of social and economic rights.
Limitations under the ICESCR
Unlike the International Covenant on Civil and Political Rights, the ICESCR does not contain a derogation clause. Nonetheless, Article 4 of the ICESCRFootnote 25 allows for certain limitations of economic, social, and cultural rights, stipulating:
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 in so far 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.Footnote 26
The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles), which provide interpretative guidance for the ICESCR,Footnote 27 explain that Article 4 “was primarily intended to be protective of the rights of individuals rather than permissive of the imposition of limitations by the State” and that it “was not meant to introduce limitations on rights affecting the subsistence or survival of the individual or integrity of the person”.Footnote 28 “Determined by law” refers to a State’s national law, consistent with international human rights obligations – that is, accessible, foreseeable,Footnote 29 non-retrospective and non-discriminatory.Footnote 30 The phrase “nature of the rights” most often relates to their core content, understood as the minimum essential level of the right,Footnote 31 and additionally raises the possibility that some rights might not be subject to any limitations.Footnote 32
Designating the “general welfare” as the only purpose for which socio-economic rights may be limited excludes justifying limitations for reasons of “national security” or “economic development”,Footnote 33 unless “the State can prove that in a specific situation, these concepts are clearly identical with ‘the general welfare’”.Footnote 34 While the meaning of “general welfare” was not elaborated on in the travaux préparatoires of the ICESCR, Article 32(2) of the American Convention on Human Rights also contains this notion, and the Inter-American Court of Human Rights (IACtHR) has interpreted it as “the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values”.Footnote 35
In general, the content of the “general welfare” should be determined in a “democratic society” – which, according to the European Court of Human Rights (ECtHR), is one that respects political pluralism, freedom of expression, freedom of association and the rights of minorities.Footnote 36 According to the Limburg Principles, “[t]he burden is upon a State imposing limitations to demonstrate that the limitations do not impair the democratic functioning of the society”.Footnote 37 The Limburg Principles also state that “[w]hile there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the United Nations Charter and the Universal Declaration of Human Rights may be viewed as meeting this definition”,Footnote 38 and the Vienna Declaration and Programme of Action notes that States have a duty to promote and protect human rights “regardless of their political, economic and cultural systems”.Footnote 39
While Article 4 of the ICESCR remains the main provision explicitly governing limitations, in exceptional situations States could potentially refer to scarcity of resources and the alleged vagueness of the obligation to “take steps” contained in Article 2(1) in an attempt to justify reduced enjoyment of socio-economic rights. First, however, the crucial characteristic of the progressive obligation to “take steps” is the general principle of non-retrogression, which excludes the application of Article 2(1) to the justification of limitations of rights that were previously realized to a greater extent. According to the CESCR, retrogressive measures 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 the maximum available resources”.Footnote 40
Second, there is an important difference between Article 2(1) and Article 4 as grounds for the justification of limitations. The failure to progressively “take steps” under Article 2(1) could result from a situation of extreme scarcity of resources,Footnote 41 while Article 4 should be perceived as more purpose-oriented because of its reference to the “general welfare”. Importantly, even when it seems that a lack of resources caused by factors beyond the State’s control could make retrogressive measures unavoidable, what must be considered before taking such measures is the “need to reduce some benefits of those who are in a better-off position, in order to maintain the existing level of enjoyment of the rights recognized in the Covenant for the more vulnerable”.Footnote 42 Careful consideration of the situation of persons who are most at risk is, therefore, of primary importance.
Limits for limitations
While Article 4 of the ICESCR remains the principal provision governing the permissible scope of limitations and Article 5(1) affirms that no restrictions may be imposed beyond what the Covenant authorizes, it remains important to discuss additional elements that should be taken into account in considering the scope of possible limitations. Typically, in IHRL, in addition to the requirement of legality and legitimacy discussed here within the context of Article 4, limitations of rights are determined through a proportionality test.Footnote 43 However, in the application of this test, the State still needs to demonstrate that the restrictions respond to a pressing social need, aim at promoting the general welfare, constitute the least intrusive means to achieve the goalFootnote 44 and are of limited duration.Footnote 45 Three other “limits for limitations” are most relevant for our consideration: those relating to the duration of measures, the core content of the right (which may vary across groups or individuals) and the nature of the rights themselves (which may differ depending on the right in question).
Temporal limit
Although, as previously noted, the ICESCR does not contain a derogation clause for socio-economic rights, certain analogies may be drawn from the temporal constraints that apply in the context of derogations from civil and political rights.Footnote 46 For example, the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights emphasize that derogations introduced as a result of emergencies must be limited in time and lifted once the emergency ends.Footnote 47 The continuation of any derogation (or, in our case, limitation) should be subject to periodic and independent review to determine whether it is still necessary.Footnote 48 The concept of emergency should remain exceptional and should not become a permanent or ordinary basis for restrictions,Footnote 49 as “the belief that emergencies are only temporary is fundamental to the legitimacy of the normalcy–emergency dichotomy”.Footnote 50
It must be emphasized, however, that armed conflicts frequently trigger economic crises, which pose distinct challenges for States in safeguarding socio-economic rights – challenges that differ significantly from those involved in safeguarding civil and political rights. Assuming the good faith of the State, the central issue becomes the availability of resources, as addressed in detail later in this article.
Core content of the right
The second limit for limitations is the concept of the core content of the right, which must be satisfied at all times. According to the CESCR,
a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.Footnote 51
Since the realization of the core content of the right is of “immediate effect, not contingent upon resource constraints, and may even be directly enforceable through judicial means”,Footnote 52 States’ core obligations apply “irrespective of the national availability of resources or other factors or difficulties”.Footnote 53 This means, in the view of the present author, that no circumstances related to the conditions during armed conflict can justify the failure to satisfy the most basic needs of persons under the responsible State’s jurisdiction.Footnote 54 While we could speak of country-specific core content, which may exceed the absolute core content,Footnote 55 the universal core content should reflect the “morality of the depths”, demarcating the threshold “beneath which no one is to be allowed to sink”.Footnote 56
Although the specific content of the “core” may at first appear vague, the CESCR has provided guidance in its general comments by articulating what core obligations entail in relation to various rights. For example, discussing the right to social security, the Committee has emphasized that, at the very least, it requires ensuring everyone’s access to basic essential health care, education, shelter and housing, as well as necessities like water and food.Footnote 57 Similarly, describing the right to the highest attainable standard of health, the Committee has provided a specific list of obligations necessary to ensure the core content of the right, which include access to health services and goods on a non-discriminatory basis, access to food that is nutritionally adequate, and access to basic shelter, housing, sanitation and essential drugs, as well as monitoring duties, among others.Footnote 58
Importantly, the core content of the right can have different meanings depending on the needs of specific individuals and groups. For instance, essential health care for persons with disabilities will necessarily be broader than for persons without disabilities; a family will require a different form of basic shelter than a single individual; and pregnant women and children have distinct nutritional needs compared to the general adult population. For all of these individuals or groups, the core content of the right should be adjusted accordingly. This way of thinking does not lead to the creation of special privileges; rather, it results from the acknowledgment of various vulnerabilities faced by different individuals and efforts to achieve not only de jure but also de facto equality.Footnote 59
Nature of the rights
The absence of a derogation clause in the ICESCR cannot be viewed as accidental or as allowing for derogation by implication – particularly given that Article 5(1) explicitly states that nothing in the Covenant permits a State to limit rights “to a greater extent than is provided for” in the Covenant, thereby ruling out any doctrine of implied derogation.Footnote 60 Excluding the possibility of derogations reflects an understanding that the nature of socio-economic rights typically does not permit their suspension, especially when these rights relate to the survival needs that arise from the embodied existence of human beings.Footnote 61 Derogation from the right to health or the right to food could lead to irreversible harm or even a person’s death. The fulfilment of these basic needs cannot be deferred until economic conditions improve or a national emergency subsides.
The nature of the rights is also what should guide the permissibility of limitations. For example, freedom from hunger (Article 11(2) of the ICESCR), the core content of the right to food (Article 11(1) of the ICESCR), can never be restricted,Footnote 62 but rationing food during emergencies could be perceived as a way of promoting the general welfare if it took into account individual needs and vulnerabilities. This line of reasoning corresponds to the understanding that “the power to impose restrictions on fundamental rights is essentially a power to ‘regulate’ the exercise of these rights, not to extinguish them”.Footnote 63 It also underscores the close relationship between the concepts of the “core content” and the “nature” of the rights, as the violation of the former would be automatically contrary to the latter.
In sum, as this has section explained, proportionate limitations of social and economic rights, governed by the conditions set out in Article 4 of the ICESCR and read in conjunction with Article 5 thereof, cannot be discriminatory (either directly or indirectly), and in addition, there is a strong presumption that they should not lead to retrogressive measures.Footnote 64 Furthermore, any restrictions on rights during armed conflict must be strictly limited to the duration of the actual crisis, and in identifying the core content of a right that should be upheld at all times, both the situation of the right-holder and the nature of the right itself must be taken into account.
The “maximalist” perspective: Viewing limitations through the lens of vulnerabilities that are exacerbated by armed conflict
The discussions surrounding the core content and the nature of specific socio-economic rights, understood as inherently and necessarily contextual concepts, lead us to the central claim of this article: that limitations on these rights should be analyzed through the lens of vulnerabilities that armed conflicts exacerbate. To provide an appropriate background for this argument, it is essential now to consider what aspects of States’ obligations to fulfil socio-economic rights can be limited, under what circumstances, and for what reasons.Footnote 65
This article divides the reasons for limitations of the State’s obligation to fulfil socio-economic rights into two categories. The first concerns the internal situation of the individual, where State intervention may be less critical or even undesired for those who are not experiencing heightened vulnerabilities and can do relatively well even in the absence of active support. The second pertains to the external environment and can be subdivided into two scenarios: either the State finds itself in a favourable socio-economic situation, where a strong economy and relative equality might justify scaling back direct interventions, or, conversely, the State is in crisis – such as during armed conflict – and claims that urgent resource scarcity prevents it from fulfilling its obligations.
The internal and external dimensions are, however, often interconnected. As explained in the paragraphs to follow, external conditions, particularly during armed conflict, can significantly intensify existing internal vulnerabilities.Footnote 66 This interrelationship is especially important in light of the growing recognition of vulnerability as a concept that may involve multiple forms of discrimination or disadvantage and requires positive measures.Footnote 67 The ECtHR,Footnote 68 the IACtHRFootnote 69 and the African Court of Human Rights,Footnote 70 in their jurisprudence, have repeatedly recognized vulnerability as a reason for special protection, including protection of socio-economic rights.Footnote 71 Importantly, vulnerability constitutes a “relational concept” as societal and external arrangements impact the way individuals experience their vulnerabilities by reinforcing them or, to the contrary, alleviating their negative consequences.Footnote 72 Against this backdrop, it becomes essential to examine how a vulnerability-based perspective can inform the application of socio-economic rights in times of armed conflict, and what this perspective means for the scope and content of State obligations under international law.
The primary evidence and reason for such a vulnerability-based perspective is that the basic physical needs of people never diminish during armed conflicts; typically, they only become more acute. Available data indicate that the deprivation of subsistence means during conflict may result in as much, if not more, harm than the direct effects of military operations.Footnote 73 In this regard, war can be described as “development in reverse”.Footnote 74 For instance, while in 2022, food insecurity in Gaza was at 63%,Footnote 75 in September 2024 it was reported that 96% of Gaza’s population faced acute levels of food insecurity, with 2.15 million people at crisis levels of hunger or worse and almost half a million in catastrophic conditions.Footnote 76 Since 2022, the number of people in poverty in Ukraine has increased by at least 1.8 million, to reach 9 million.Footnote 77 In Yemen, since the escalation of the conflict in 2014, the percentage of people living below the poverty line has risen from 49% to nearly 80% of the population.Footnote 78 Data from the Democratic Republic of the Congo suggest that armed conflict also increases the probability of children being underweight and wasted by 4.7 and 2.7 percentage points respectively.Footnote 79
Given this reality, it would be difficult to imagine a scenario in which internal factors (pertaining to the situation of the person) could justify reducing the State’s obligations to fulfil social and economic rights when external factors related to armed conflicts exacerbate vulnerabilities. Even individuals who can easily meet their basic needs under normal circumstances will struggle to do so during war; the situation looks much worse for those who generally require additional positive measures because of their additional vulnerabilities to specific risks. For example, children living in fragile and conflict-affected settings (FCS) face nearly three times higher mortality rates than children in non-FCS countries,Footnote 80 and the maternal mortality risk of a woman who lives in a country affected by conflict is around five times higher for each pregnancy she undergoes compared to her peers in stable countries.Footnote 81 Elderly people might not be able to access temporary shelters, and when their family members must relocate, they often remain in isolation and without assistance, as suggested, for example, by information from Ukraine.Footnote 82 Similarly, persons with disabilities are especially affected by increased prices of medications and barriers to accessing health care.Footnote 83 Armed conflict can also itself cause or contribute to disability and chronic health conditions.Footnote 84
In light of the evidence demonstrating how armed conflicts generally exacerbate vulnerabilities – particularly those of individuals who are already struggling – this article’s claim is as follows: (1) during armed conflicts, the State’s obligations to fulfil socio-economic rights are greater, not lesser, but at the same time, (2) in assessing responsibility and justifications for not meeting this threshold, the level of overall effective control over the situation and the cooperation of other States must be taken into account. As the article will explain, the failure to adequately fulfil this “greater” obligation does not diminish its continued applicability.
The example of the right to food illustrates this claim well. The CESCR defines this right as the right of everyone to “physical and economic access at all times to adequate food or means for its procurement”.Footnote 85 It further notes that “whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly”.Footnote 86 Accordingly, the Office of the UN High Commissioner for Human Rights (UN Human Rights) has stated that even though the right to food cannot be interpreted as the right to be fed, “when people are not able to feed themselves with their own means, for instance, because of an armed conflict, natural disaster or because they are in detention, the State must provide food directly”.Footnote 87 A similar interpretation applies to the right to adequate housing: UN Human Rights has noted that while the right to adequate housing does not require the State to build housing for the entire population, in specific cases it “may have to provide direct assistance, including housing or housing allowances, notably to people affected by disasters (natural or man-made) and to the most vulnerable groups in society”.Footnote 88
If it is indeed the case, as these examples suggest, that States bear heightened or more direct obligations during armed conflict due to the exacerbated vulnerabilities of those under their protection, then it follows, it is argued here, that the threshold for justifying limitations which in normal circumstances could be acceptable must be higher in such contexts. What remains to be examined, therefore, are three key issues: (1) the obstacles States face in ensuring that rights are not unduly limited, particularly resource constraints and limited control over territory; (2) the alternative mechanisms for securing adequate rights protection under such conditions; and (3) whether, in light of the realities of armed conflict, it remains reasonable to maintain this heightened threshold and assert the need for stronger protections than those that would apply in peacetime.
The main obstacles: availability of resources and level of control
Just as armed conflicts exacerbate people’s vulnerabilities, they can also ruin economies, reducing resources that would otherwise be available.Footnote 89 In many cases, they diminish the State’s effective control over its territory, posing serious operational challenges to governance and service provision. These obstacles have been recognized by the CESCR, which did not however deem them to be fully sufficient justifications for the failure to fulfil social and economic rights, as will be explained in the examples that follow.
For instance, in its concluding observations on the Democratic Republic of the Congo, the CESCR acknowledged the ongoing armed conflict in the country but also expressed concern about the limited extent to which domestic resources are being mobilized for the realization of economic, social and cultural rights, recommending a tightening of tax policy and the formulation of budget proposals in a transparent and participatory way.Footnote 90 In the case of Palestine, the Committee noted measures to balance expenses with available resources but nonetheless raised alarm over “the significant adverse impact of austerity measures on the enjoyment of economic, social and cultural rights”.Footnote 91 The concluding observations on Yemen provide another interesting example: here, the CESCR highlighted that the armed conflict which has escalated since 2014 “hampers effective control by the State party over parts of its territory”, and as a result, the State is “not in a position to ensure the full implementation of Covenant rights”.Footnote 92 Nevertheless, the Committee reminded Yemen that human rights obligations extend throughout the country and that therefore it “must endeavour, as far as possible, to fulfil its obligations under the Covenant by resorting to all means compatible with international law”.Footnote 93 Part of these endeavours should be “seeking, where necessary, international assistance and cooperation”, although the CESCR also noted a lack of concrete information on how current funds obtained in this way are being used.Footnote 94
What follows from these examples is that the existence of the armed conflict, and even the resulting shift in budgetary priorities, is not a generic escape from responsibility and cannot be treated as a blanket force majeure circumstance which would preclude the wrongfulness of a State’s failure to comply with its obligations.Footnote 95 With regard to resources, the State must demonstrate that “every effort has been made to use all resources that are at its disposal in an effort to satisfy, as a matter of priority, those core obligations”.Footnote 96
“All resources” should be interpreted broadly to include budgetary appropriations, social resources, technical assistance and various forms of potential international cooperation.Footnote 97 When it comes to budgetary appropriations, all decisions about allocations should be made on the basis of disaggregated indicators/data in order to comply with the principle of de facto equality and to ensure that the assistance reaches those who need it the most.Footnote 98 Social resources – defined as those embedded in society at large, including both the private and public sectors – must be mobilized in a fair and transparent way.Footnote 99 In addressing scarcity, it is crucial to contextually explore alternative solutions, including recourse to external support, also encompassing technology transfers.Footnote 100 In the context of international assistance in the area of economic, social and cultural rights, one can speak of an obligation to seek and provide such assistance, depending on the State’s position, and with the caveat that the extent to which States have to provide assistance has not yet been settled.Footnote 101
Another possibility: international assistance
Another means, therefore, by which States may comply with their obligation to ensure the accessibility of resources in times of crisis is by actively seeking international assistance. With respect to the obligation to seek assistance, the CESCR has noted in its General Comment No. 12 that a State
claiming that it is unable to carry out its obligation for reasons beyond its control … has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food.Footnote 102
The Committee reaffirmed this position in its General Comments Nos 22 and 23, explaining that where States Parties are unable to fulfil their obligations, they must seek international assistance.Footnote 103 Such efforts should, in turn, be matched by the willingness of States in a position to provide assistance to do so, as will be discussed in the following paragraphs.
Pursuant to Article 55 of the UN Charter, one of the purposes of the UN is the promotion of “higher standards of living, full employment, and conditions of economic and social progress and development”.Footnote 104 Under Article 56 of the Charter, member States pledge “to take joint and separate action in co-operation with the Organization” to this end.Footnote 105 The ICESCR refers to international cooperation or assistance in Articles 2(1), 11, 15, 22 and 23.Footnote 106 The Optional Protocol to the ICESCR, in its Article 14, contains a provision referring to the “need for technical advice or assistance” and establishing a trust fund aimed at “providing expert and technical assistance to States Parties”.Footnote 107
Despite this framework, a number of developed States continue to maintain that support for other countries is a matter of goodwill rather than a binding obligation.Footnote 108 The CESCR, however, has taken a different view, at least in situations when the core content of the right is being violated. It has underscored that “it is particularly incumbent on all those who can assist to help developing countries respect this international minimum threshold”.Footnote 109
Specifically in the cases of the right to food and the right to health care, in addition to the obligation to respect these rights in other countries, the CESCR has noted that States have a positive duty to “take steps to … facilitate access” to these resources and to “provide the necessary aid when required”, wherever possible and depending on availability.Footnote 110 A similar opinion has been expressed by the former Special Rapporteur on the Right to Food, who has stated that “governments also have a duty to support and cooperate in ensuring the fulfilment of the right to food in poorer countries.”Footnote 111
Referring to the right to water, which remains necessary to satisfy basic needs, the CESCR has repeated that “it is particularly incumbent on States Parties, and other actors in a position to assist, to provide international assistance and cooperation, especially economic and technical which enables developing countries to fulfill their core obligations”.Footnote 112 As previously discussed, those are precisely the “core” obligations that are not being fulfilled during armed conflicts, which leads to “basic” needs being left unaddressed.Footnote 113
The moral and legal dimensions of international cooperation and assistance can also be regarded as overlapping if we consider the protection of (in the words of the ICJ) “the basic rights of the human person”Footnote 114 – an erga omnes obligation, with omnes understood as, at minimum, the contracting parties to the treaty.Footnote 115 The Human Rights Committee has similarly stated that internationally recognized basic human rights have the status of erga omnes obligations.Footnote 116 In the view of this author, the rights to food, water or primary health care clearly do qualify as such “basic rights”. This way of thinking goes beyond States only holding each other accountable for fulfilling the rights of their own citizens. If States A, B and C have an interest in State X fulfilling its obligation towards its own citizens, but State X is unable to do so, it can be argued that they also have an interest in assisting X in fulfilling its obligation. Such a view seems to be in line with the reasoning of the ICJ in its advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius, in which it declared that all States have a legal interest in protecting the right to self-determination of people in Mauritius and must cooperate with the UN to put the specific modalities into effect.Footnote 117
Such an approach might gain further traction in light of emerging discussions on the “capacity to influence” as a potential basis for obligations to protect human rights in other States. Although the “capacity to influence” is primarily concerned with the responsibility to protect and the prevention of genocide, it should, in the view of this author, also be extended to other situations where the “basic rights of the human person” are violated, especially given the fact that extreme violations of socio-economic rights may form part of genocide or crimes against humanity.Footnote 118 Moreover, in the view of this author, such reasoning would also be in line with the Human Rights Committee’s General Comment No. 36 on the right to life, in which it affirmed that a State’s jurisdiction toward individuals in relation to the right to life includes “persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner.”Footnote 119 Elaborating on this part of the General Comment, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions noted:
This analysis of the responsibility to protect the right to life is in keeping with developments with regard to the protection of economic rights, where it has been determined that extraterritorial obligations arise when a State party may influence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction, and thus may contribute to the effective enjoyment of economic, social and cultural rights outside its national territory, and to the protection of children’s rights.Footnote 120
Similarly, in their partly dissenting opinion in Georgia v. Russia, Judges Yudkivska, Wojtyczek and Chanturia of the ECtHR emphasized that States should ensure rights and freedoms to everyone under their power, and the scope of protection should be adequate to such power.Footnote 121 Additionally, according to the non-binding but nonetheless influential Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, a State has obligations to respect, protect and fulfil these rights, “acting separately or jointly, whether through its executive, legislative or judicial branches”, if it is in a position “to exercise decisive influence or to take measures to realize” them.Footnote 122
Although the Human Rights Committee and the ECtHR are primarily concerned with civil and political rights, in light of the indivisibility of rights,Footnote 123 and the tendency, for example, of the IACtHR to interpret civil and political rights rather expansively to also include socio-economic protections,Footnote 124 their conclusions may also be applicable to our considerations.
While the existence and scope of obligations corresponding to the “capacity to influence” requires individualized assessment in each case, it should not be a priori rejected. Accordingly, where a State possesses the capacity to protect or fulfil basic socio-economic rights extraterritorially in another State – due to its knowledge of the situation, its proximity (understood not only in geographic terms) or its influence – it may be subject not only to moral imperatives but also to certain legal obligations, the contours of which are presently not settled as a matter of international law. These obligations must be differentiated, context-sensitive, and appropriate to the assisting State’s capabilities. Determining specific solutions and deciding on what kind of assistance is required and possible in the given circumstances is a task that belongs to policy-makers, but the law should provide the normative criteria against which such determinations are to be measured.
The development of IHRL, despite all its shortcomings, might show “increasing evidence for the existence of altruistic legal relationships between States and people in third countries”.Footnote 125 Such altruism in international law is, in the present author’s view, what would make the proposed “maximalist” vulnerability-based perspective realistic in practice and lead to a fairer and more equitable sharing of responsibility for its upholding. For this, more than merely declaring the existence of increased obligations is needed; political will and commitment would also be required. The shared political declaration is nonetheless a crucial first step without which we cannot move forward. The following section of this article will, therefore, evaluate the rationale for declaring such increased obligations and the potential that incorporating them into international dialogues might hold for protecting the socio-economic rights of all, and especially the most vulnerable, during armed conflicts.
Additional objection: unrealistic or counterproductive threshold?
Confronted with the stark reality of suffering during armed conflicts and overwhelmed by an inevitable sense of helplessness, one might raise a further objection to the approach proposed in this article: that advancing such additional obligations from a “maximalist”, vulnerability-based perspective is unrealistic – or even worse, counterproductive, precisely because of its perceived impracticality. Yet this conclusion need not follow. This article argues instead that rejecting such a perspective as overly “maximalist” would in fact run counter to a human rights-based understanding of law.
First and foremost, as the cited evidence demonstrates, increased vulnerability during armed conflicts is not a matter of legal interpretation but a concrete empirical reality. These objective vulnerabilities arise from the fact that people exist as embodied human beings, but what can be changed is the treatment they receive. Notably, socio-economic rights are not merely the a priori decided list of goods and services that every person is entitled to receive; rather, they represent a claim to have the totality of one’s circumstances taken into account when determining the content of a right in a given time and place, and in a manner adequate to one’s needs. The qualifier “adequate” is inherently purpose-driven and always has to be followed by the question, “To what circumstances?” The lived experiences of individuals during armed conflicts cannot be separated from decisions on the corresponding legal obligations since “[t]he assessment of so-called extra-legal considerations is part of the legal process, just as is a reference to the accumulation of past decisions and current norms”.Footnote 126 From another point of view, instead of being called unrealistic, the “maximalist”, vulnerability-based perspective might in fact be considered precisely the realistic one, because of how it responds to the concrete realities of affected people.
Second, embracing such a perspective through gradually incorporating it into international dialogues would give policy-makers and other actors the power to question the current status quo and, at the very least, initiate change. Once accepted, through repeated interaction and practice, it could contribute to shaping attitudes toward law and reality, gradually becoming part of those actors’ identity.Footnote 127 Importantly, legal obligations should be viewed as a continued challenge rather than a finished project.Footnote 128 The evolutive interpretation of treaties, including the UN Charter, the ICESCR or the Geneva Conventions and their Additional Protocols, is permitted and often necessary, subject to the ordinary rules of treaty interpretation. As the international human rights system evolves and pays more attention to the concept of vulnerability, the standard for acceptable ways of treatment becomes higher.Footnote 129 Immediate access to information, when people in distant countries can observe in real time the violations of human rights that others experience during armed conflicts, makes the system more cosmopolitan and instils a sense of urgency in providing remedies.Footnote 130 Similarly, in view of the author, emerging technologies that facilitate both domestic and international efforts to protect social and economic rights represent part of the new circumstances that warrant further obligations in the spirit of “achieving progressively the full realization of [those] rights” and “continuous improvement of living conditions”.Footnote 131 Thus, unlike the creation of new rights, horizontal evolutive interpretation, understood as the elevation of established rights to a higher standard of protection,Footnote 132 which could result in establishing additional obligations, is not only allowed but should also, it is argued here, be seen as a duty.
Finally, proposing the “maximalist”, vulnerability-based perspective and, hopefully, its increased acceptance could lead to its internalization and compliance even in the absence of direct enforcement mechanisms. Internalization is a social, political and legal process that requires repeated interactions between States and other actors, which produce interpretations of applicable global norms that are later incorporated into domestic systems.Footnote 133 It can be a part of “socializing States” when informal peer pressure results in countries following the practices that others have already adoptedFootnote 134 — a phenomenon also attributed to the so-called “contagion effect”.Footnote 135 Change will not occur overnight, nor will it be easy, but insisting on continuously proposing the “maximalist”, vulnerability-based perspective could contribute to processes of internalization, eventually transforming policies on the ground.
Conclusion
By engaging with various dimensions of the protection of socio-economic rights during armed conflicts, this article has sought to propose a “maximalist”, vulnerability-based perspective as the appropriate lens through which limitations of such rights and the relevant obligations of States should be assessed. The article has also addressed potential objections and, while acknowledging their significance, has explained why they do not have to contradict the proposed approach.
The central argument is straightforward yet consequential: the empirical evidence on increased vulnerability during armed conflicts provides a strong basis for examining the legal consequences which should flow from that reality. This becomes even more evident in light of international law’s growing attention to the protection of vulnerable persons and groups and its recognition of how multiple risks can compound existing vulnerabilities. Armed conflict should not be treated as an exception to this framework.
The “maximalist perspective” therefore proposes a specific understanding of the normative baseline against which State conduct under conditions of scarcity is assessed. As vulnerability and deprivation increase, so too does the weight of the claim protected by the right. The concrete measures required of a State nevertheless remain calibrated to its resources, institutional capacity, degree of control and other means reasonably available to it, including the possibility of seeking international assistance. In this sense, the approach is maximalist as to the State’s effort and the level of protection toward which State action must be directed, but not absolute as to the results that must be achieved. The value of the “maximalist perspective” lies precisely in this distinction.
Indeed, in light of the scarcity of resources and the impression that we live in an age of permanent crisis, such an endeavour might also seem too far-reaching to be worth undertaking. The same doubts, however, could have arisen in relation to the human rights project as a whole. Just one hundred years ago, the agreement on the universal recognition of equal human dignity may have seemed equally implausible. Although wars have been present throughout humanity’s history, contemporary IHL has only developed since the second half of the nineteenth century. Social and economic rights were—and often still are—dismissed by some as purely aspirational. Yet, if, despite many shortcomings, the human rights system is worth strengthening and developing rather than dismantling, the same can be said about the “maximalist” perspective.
Open access
