ABSTRACT

Rights are not fixed entities – their goals, constituencies, rules and understanding shift over time. Few human rights principles evince this reality better than ‘progressive realisation’, an implicit theory of change contained in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This contribution demonstrates that this theory of change has been formulated and rethought, and must be rethought again, as different understandings of development and the state condition which aspects of Article 2(1) have been emphasised across three distinct phases over the last 70 years. The first phase, ‘raising’, runs from the draft ing and adaptation of the ICESCR in the 1950s and 1960s, through entry into force in 1976. It was here that progressive realisation was elaborated as a general concept. In this period, progressive realisation was a concession to the practical difficulties underdeveloped states would face in giving effect to the Covenant. However, to a significantly underappreciated extent, it also reflected a teleological statism, in which development and state functionality appeared as goals towards which all countries would inevitably move. Rapid development was the demand and expectation of postcolonial societies, underpinning the dominant view of progressive realisation. In the late 1970s and 1980s this technicist optimism that a state's modernisation could be predicted and shaped was eroded. This led to a second phase, ‘revising’, which emerged from a generalised disillusionment with developing world states’ commitment or ability to realise economic, social and cultural rights (ESCR). It coincided with the doctrinal evolution of socio-economic rights, at a time when neo-liberal theories of development were predominant, and when debates on socio-economic rights were consumed by a battle over their status: the immediately realisable (and hence justiciable) nature of civil and political rights were contrasted with the ‘deferred’ (and supposedly more vague and less justiciable) nature of socio-economic rights. Progressive realisation was disparaged and marginalised as a potential ‘escape hatch’ for recalcitrant states, which needed to be shut as tightly as possible. A third phase, ‘reviving’, requires us today to revisit the concept of progressive realisation, to take account both of novel, post-Washington Consensus theories of inclusive development, and the growing acceptance that the justiciability of rights has distinct practical limits.