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Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions
of the UN Committee on Economic, Social and Cultural Rights

Author(s): Audrey R. Chapman and Benjamin Carbonetti
Source: Human Rights Quarterly , August 2011, Vol. 33, No. 3 (August 2011), pp. 682-732
Published by: The Johns Hopkins University Press
Stable URL: https://www.jstor.org/stable/23015998
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HUMAN RIGHTS QUARTERLY
Human Rights Protections for

Vulnerable and Disadvantaged Groups:
The Contributions of the UN Committee
on Economic, Social and Cultural Rights
Audrey R. Chapman* & Benjamin Carbonetti**
ABSTRACT
Recognition of the need to protect the rights and interests of the vulner
able and disadvantaged has been a recurrent theme in the work of the UN
Committee on Economic, Social and Cultural Rights (CESCR). This article
reviews the work of the CESCR to ascertain whether the Committee has had
a clear-cut framework or criteria to determine which individuals or groups
should be considered vulnerable and disadvantaged and what measures
are required to protect their human rights. The first section reviews the
Committee's reporting guidelines. The second analyzes the treatment of
vulnerability in the Committee's general comments and statements. The
third evaluates how the CESCR has approached the subject of vulnerability
in its concluding comments for state party reports reviewed between 1997
and 2009. The fourth concludes that despite the importance the CESCR ac
cords to the subject of vulnerability, it does not offer a clear-cut conception
or definition of vulnerability or related terminology. Nor does it provide
* Audrey Chapman is the Healey Professor of Medical Ethics and Humanities at the University
of Connecticut School of Medicine and a Faculty Affiliate of the Human Rights Institute of the
University of Connecticut. She previously served as the Director of the Science and Human
Rights Program at the American Association for the Advancement of Science (AAAS). She is
the author, coauthor, or editor of sixteen books including Truth and Reconciliation in South
Africa: Did the TRC Deliver? (with Hugo van der Merwe). Her current research focuses on
human rights based approaches to health and the social determinants of health and human
rights responses to vulnerability.
** Benjamin Carbonetti is a Ph.D. candidate at the University of Connecticut and the Man
aging Editor of the Journal of Human Rights. He received his B.A. from the University of
New Hampshire in 2005 and his M.A. from the University of Connecticut in 2010. He has
previously published on democratization.
Human Rights Quarterly 33 (2011) 682-732 © 2011 by The Johns Hopkins University Press

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1. Jack Donnelly, Universal Human Rights in Theory & Practice 18 (1989).
2. Audrey R. Chapman, A "Violations Approach" for Monitoring the International Covenant
on Economic, Social and Cultural Rights, 18 Hum. Rts. Q. 23, 37 (1996).
3. Joshua Castellino, The MDCs and International Human Rights Law: A View From the
Perspective of Minorities and Vulnerable Groups, 13 Int'l J. Hum. Rts. 10 (2009).

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684 HUMAN RIGHTS QUARTERLY Vol. 33
displaced persons; (5) stateless persons; (6) national minorities; (7) indigenous
peoples; (8) migrant workers; (9) disabled persons; (10) elderly persons; (11)
HIV positive persons and AIDS victims; (12) Roma/Gypsies/Sinti; and (13)
lesbian, gay, and transgender people."4 A list of vulnerable groups resid
ing in India divides them into five categories: (1) vulnerable groups facing
structural discrimination (women, scheduled castes, Dalits [Untouchables],
Scheduled Tribes); (2) children and the aged; (3) those vulnerable due to
disability; (4) those vulnerable due to migration; and (5) those with vulner
ability due to stigma and discrimination (people living with HIV/AIDS and
sexual minorities).5 In recent years there has also been a growing awareness
that poverty or extreme poverty is an important source of vulnerability and
violation of human rights.6
The human rights commitment to protecting the fundamental rights of
the vulnerable and disadvantaged takes a variety of forms in the United
Nations human rights system. It has led to the establishment of a series of
specialized human rights instruments and mechanisms. The International
Convention on the Rights of Persons with Disabilities is the most recent of
these.7 It was preceded by the International Covenant on the Elimination
of All Forms of Racial Discrimination,8 the Convention on the Elimination
of All Forms of Discrimination Against Women,9 the Convention on the
Rights of the Child,10 and the International Convention on the Protection of
4. Icelandic Human Rights Centre, The Human Rights Protection of Vulnerable Croups
(2009), available at http://www.humanrights.is/the-human-rights-project/humanrightscas
esandmaterials/humanrightsconceptsideasandfora/Undirflokkur/ (punctuation altered).
5. Chandrima Chatterjee & Gunjan Sheoran, The Ctr. for Enquiry into Health and Allied Themes
(CEHAT),Vulnerable Croups in India (2007), available at http://www.cehat.org/humanrights/
vulnerable.pdf.
6. Amartya Sen, Development as Freedom (1999); Office of the UN High Comm'r for Human
Rights [OCHCR], Principles and Guidelines for a Human Rights Approach to Poverty Reduction
Strategies (2004), available at http://www.ohchr.org/Documents/Publications/PovertyStrat
egiesen.pdf; Fernanda Doz Costa, Poverty and Human Rights: From Rhetoric to Legal
Obligations, 9 SUR-Int'l J. on Hum. Rts. 81 (2008); Arjun Sengupta, Poverty Eradication
and Human Rights, in Freedom from Poverty as a Human Right: Who Owes What to the
Very Poor? 323 (Thomas Pogge ed., 2007); Alan Gewirth, Duties to Fulfill the Human
Rights of the Poor, in Freedom From Poverty as a Human Right: Who Owes What to the Very
Poor? 219 (Thomas Pogge ed., 2007).
7. Convention on the Rights of Persons with Disabilities, adopted 13 Dec. 2006, G.A. Res.
61/106, U.N. GAOR, 61st Sess., Agenda Item 67(b), U.N. Doc. A/RES/61/106 (2006)
(entered into force 3 May 2008).
8. International Convention on the Elimination of All Forms of Racial Discrimination, ad
opted 21 Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., U.N. Doc. A/6014
(1966), 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352.
9. Convention on the Elimination of All Forms of Discrimination Against Women, adopted
18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., U.N. Doc. A/34/46 (1980),
1249 U.N.T.S. 13 (entered into force 3 Sept. 1981).
10. Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N.
GAOR, 44th Sess., U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3 (entered into force 2
Sept. 1990).

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2011 Human Rights Protections for Vulnerable and Disadvantaged Croups 685
the Rights of All Migrant Workers and Members of Their Families.11 There
are also provisions in some of the major human rights instruments such as
Article 27 on the rights of minorities in the International Covenant on Civil
and Political Rights.12 In addition, the United Nations Human Rights Council
and its predecessor body, the Human Rights Commission, have established a
series of thematic mandates addressing issues related to vulnerability. These
include the appointment of special rapporteurs and independent experts on
the topics of the sale of children, child prostitution, and child pornography;
violence against women; contemporary forms of slavery, torture and other
cruel, inhuman, and degrading punishment; trafficking in persons; contem
porary forms of racism and racial discrimination; human rights and extreme
poverty; minority issues; and the human rights of migrants. Other special
rapporteurs with rights mandates have also demonstrated sensitivity to the
vulnerable and disadvantaged, including those addressing the rights to the
highest attainable standard of health, adequate housing, the right to educa
tion, and human rights obligations related access to safe drinking water and
sanitation. The staff of the Office of the High Commissioner for Human Rights
has also written a number of reports that deal with aspects of vulnerability.
Recognition of the need to protect the rights and interests of the vul
nerable and disadvantaged has particularly been a recurrent theme in the
work of the UN Committee on Economic, Social and Cultural Rights (the
Committee or the CESCR), the human rights treaty monitoring body with
responsibility for overseeing the International Convention on Economic,
Social and Cultural Rights (ICESCR).13 Many of the general comments the
Committee has adopted to interpret provisions of the ICESCR and statements
they have issued identify the vulnerability of specific disadvantaged groups
in relation to the topic being addressed and call for action to protect and
promote their rights. In addition, the Committee's review of state parties'
performance frequently raises questions about the adequacy of protections
for these groups.
This article reviews the contribution of the CESCR to protecting the vul
nerable and disadvantaged and attempts to illuminate the following issues:
• How does the CESCR conceptualize vulnerability and disadvantage, frame
defining criteria, identify the conditions which make individuals and groups
11. International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families, adopted 18 Dec. 1990, G.A. Res. 45/158, U.N. GAOR,
45th Sess., U.N. Doc. A/RES/45/158 (1990) (entered into force 1 July 2003).
12. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered
into force 23 Mar. 1976).
13. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966,
G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316
(1966) (entered into force 3 Jan. 1976), reprinted in 993 U.N.T.S. 3 (1966).

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more vulnerable and disadvantaged, and ascertain which individuals or groups

require special protection? Do demographic and situational characteristics
figure in the CESCR's approach to vulnerability? Are the terms disadvantaged
and marginalized, both of which are also used by the Committee, synony
mous with vulnerability, and if not, how do they differ? Has the Committee
changed its criteria, or their application over time, to determine which groups
or individuals are vulnerable?
• How does the concern with vulnerability intersect with core human rights
principles, particularly non-discrimination and equality? Is discrimination
seen as a fundamental cause of vulnerability or does the Committee sug
gest that individuals and groups are discriminated against because they are
vulnerable? Does the Committee have an explicit commitment to affirmative
action for vulnerable and disadvantaged groups with a view to eliminating
inequalities in enjoyment of rights?
• The traditional human rights paradigm vests human rights in individuals.

However, persons who are disadvantaged often are at risk for human rights
violations by virtue of their membership in a group or their shared demo
graphic or situational profiles with similar vulnerable or disadvantaged per
sons. Does the Committee generally identify vulnerability as a characteristic
of individuals or groups? If the latter, what are the implications of the CESCR's
approach for the ongoing debates as to whether in some situations groups
or communities can be rights holders?
• Who or which groups does the Committee identify as being vulnerable? To

what extent do the CESCR's determinations appear to come in response to
empirical data on the ground? Are their determinations consistent over time
and, if not, what appears to account for the changes?
• How frequently does the Committee raise the issue of protecting and pro
moting the rights of vulnerable and disadvantaged groups? Is the need to
defend the rights of the vulnerable usually referenced in general terms or
is the Committee's concern more specific and selective, and if this is the
case, which rights, groups, or countries are identified most often? Does the
Committee address vulnerability issues in all or only some of the countries
it reviews? If not, what are the triggers for the issue of vulnerability to be
raised?
• Does the CESCR give the same attention to vulnerability in its review of all
countries or are there major differences between how they approach affluent
and poor countries? If there are such differences, how does the Committee
account for them and what are the implications?
• What kinds of measures in the form of special status, protections, and ben
efits does the Committee prescribe for vulnerable and disadvantaged groups?
How specific are these proposed initiatives to particular situations? Are these
obligations viewed as universal for all states and groups or do they apply
only to specific groups under special circumstances?

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The remainder of this article has four sections. The first reviews the
Committee's reporting guidelines. The second analyzes the treatment of
vulnerability in the Committee's general comments and statements. The
third evaluates how the CESCR has approached the subject of vulnerability
in its reviews of state parties' performance. This latter assessment is based
on the CESCR's concluding comments for all state party reports reviewed
between 1997 and 2009. The fourth considers the issues identified above
and draws some conclusions about the CESCR's approach to vulnerability.
II. VULNERABILITY IN THE CESCR'S REPORTING GUIDELINES
Like other UN treaty bodies, the Committee has issued guidelines to advise
state parties on the preparation of the periodic reports they are required to
submit on the measures which they have adopted and the progress made in
achieving observance of the rights enumerated in the Covenant. The guide
lines offer a window into the priorities of the Committee and what it believes
is important both for states and UN treaty bodies addressing economic, social
and cultural rights to monitor. The first set of reporting guidelines on the
form and content of reports was issued in 1991.14 In 2008 the Committee
updated its reporting guidelines in order to be consistent with the new UN
system of harmonized guidelines on reporting whereby state parties prepare
a common core document along with treaty-specific reports.15
The 1991 guidelines, which guided the work of the CESCR during most
of its existence, set forth an article-by-article review of the information re
quested by the Committee to evaluate state party performance. It might be
noted that few, if any, states have followed the letter of the guidelines in the
preparation of their reports. In some instances this is because the govern
ment lacks the disaggregated data requested or is unwilling to invest the time
necessary to collect the data and prepare a detailed report. Governments
may also be reluctant to provide all of the data requested because doing
so would reveal inadequacies in performance and perhaps even potential
violations of some of the rights in the Covenant.
14. Revised General Guidelines Regarding the Form and Contents of Reports to be Submitted
by States Parties Under Articles 16 and 17 of the International Covenant on Economic,
Social and Cultural Rights, adopted 26 Nov.-14 Dec. 1990, U.N. ESCOR, Comm. on
Econ., Soc. & Cult. Rts., 50th Sess., U.N. Doc. E/C. 12/1991/1 (1991) [hereinafter 7997
Guidelines]. This document is labeled as revised because a version of the consolidated
guidelines for the initial part of the reports of state parties, including the Covenant, was
contained in U.N. Doc. HRI/1991/1 sent two months earlier in April 1991. Id. at 2.
15. Guidelines on treaty-specific documents to be submitted by states parties under articles 1
and 17 of the International Covenant on Economic, Social and Cultural Rights, adopted
18 Nov. 2008, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 41st Sess., 49th mtg.,
U.N. Doc. E/C./12/2008/2 (2008) [hereinafter 2008 Guidelines].

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The guidelines attest to the Committee's concern with vulnerable and

disadvantaged groups in several ways. For some of the rights monitored, the
Committee requests disaggregated information in order to ascertain differ
ences in the enjoyment of rights among different groups. For example, the
level of disaggregation requested concerning the current standard of living of
the population,16 infant mortality,17 and life expectancy18 includes breakdowns
between urban/rural populations, by sex, and sometimes socio-economic
group. In a number of instances the Committee asks whether there are any
groups which do not enjoy a specific right at all or do so to a significantly
lesser degree than the majority of the population, for example in relationship
to the right to social security.19 It also requests data that might serve as a
proxy, such as naming groups whose health situation is significantly worse
than that of the majority of the population.20 The instructions for several
articles specify information about the status of women. For example, the
Committee asks about inequalities and infringements in the status of women
in relation to the principle of equal pay for equal work, the conditions of
work, and equal opportunities for promotion;21 the enjoyment of the right
to social security;22 and the right to food.23
The 1991 guidelines use the vocabulary of disadvantaged groups or
disadvantaged and vulnerable groups in relation to a number of rights, often
with follow-up questions regarding steps being taken or deemed necessary
to eliminate these inequalities and then evaluating their successes and fail
ures. They do so in relation to rights to adequate food,24 adequate housing,25
health,26 and education.27 Often the CESCR does not identify these groups,
but instead asks the state party to do so. There are exceptions. The detailed
information requested for the right to adequate food identifies ten specific
groups—landless peasants, marginalized peasants, rural workers, rural un
employed, urban unemployed, urban poor, migrant workers, indigenous
peoples, children, and elderly people—along with other specially affected
groups.28 It also asks about the measures considered necessary by the gov
ernment to guarantee access to adequate food for each of the vulnerable
16. 7 99 7 Guidelines, supra note 14, at 11, 11 (a).

17, Id. at 16, 1 4 (a).
18. Id. at 16, 1 4 (e).
19. Id. at 8, 1 1.
20. Id. at 16, 19.
21. Id. at 5, 1 2 (c).
22. Id. at 8, 1 1.
23. Id. at 12, 1 2 (a).
24. Id. at 12, 1 2 (d).
25. Id. at 13, 1 3.
26. Id. at 15, 1 1.
27. Id. at 17-8, 1 1 (a-d).
28. Id. at 12, 1 2 (b) (i).

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2011 Human Rights Protections for Vulnerable and Disadvantaged Groups 689
or disadvantaged groups and for worse-off areas,29 significant differences

in the situation of men and women within each of these groups, and any
changes that have taken place over the past five years with regard to their
situation.30 The reporting guidelines for the right to education also provide
examples of vulnerable and disadvantaged groups: young girls; children of
low-income groups; children in rural areas; children who are physically or
mentally disabled; children of immigrants and of migrant workers; children
belonging to linguistic, racial, religious or other minorities; and children of
indigenous people.3'
Coming seventeen years later, and after much greater experience review
ing state party reports, the 2008 revised guidelines have a similar article/
right format for reporting requirements. The revised version of the reporting
guidelines is more stringent in specifying that statistical data on the enjoy
ment of each right be disaggregated by age, gender, ethnic origin, urban/rural
population, and other relevant status on an annual comparative basis over
the past five years,32 presumably to facilitate the identification of vulnerable
and disadvantaged groups. Like the 1991 guidelines, the 2008 guidelines
stipulate the provision of information for women, children, and older persons
for several rights. The guidelines also ask whether the state party recognizes
and provides protections for the rights of indigenous communities33 and
requests data on indigenous communities in relationship to several rights,
including education, cultural participation, the protection of the moral and
material interests of creators, and the protection of the integrity of their ar
tistic production.34 Additionally, the guidelines identify other vulnerable and
disadvantaged communities that were not listed in 1991, including ethnic
minorities, older persons, persons with disabilities, migrants, and minorities.
The Committee's current concern with poverty issues is reflected in several
questions, particularly in relation to Article 11, which declares the right to
the continuous improvement of living conditions.35
The 2008 guidelines do not use the term vulnerable groups. Instead, they
refer to the disadvantaged and marginalized. Another difference is that they
almost always ask about both individuals and groups and not just groups, as
did the 1991 guidelines. Nevertheless, the meaning does not appear to have
been changed. The labels disadvantaged and marginalized are equivalent to
the earlier designation vulnerable. One member of the Committee attributes
29. Id. at 12. 1 2 (c).

30. Id. at 12, 1 2 (b) (ii-iii).
31. Id. at 18, 15(b).
32. 2008 Guidelines, supra note 15, 1 3(g).
33. Id. 1 8.
34. Id. 11 63, 68, 70(c).
35. Id. 11 42, 43(aMb).

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the curious change in terminology to the presence of representatives of some

of the communities in this category at the meetings of the Committee and
their preference for the terms disadvantaged and marginalized.36
The 2008 guidelines have both general and rights-specific requests for
data on disadvantaged and marginalized groups and individuals. They call
for disaggregated and comparative statistical data on the effectiveness of
specific anti-discrimination measures and the progress achieved towards
ensuring equal enjoyment of the rights enumerated in the Covenant by
all, in particular disadvantaged and marginalized individuals and groups.37
Similarly, state parties are asked to provide information on effective measures
taken to reduce unemployment among persons and groups considered par
ticularly disadvantaged, in particular women, young persons, older persons,
persons with disabilities and ethnic minorities.38The guidelines also inquire
about what technical and vocational training programs are in place and
their impact on empowering the workforce, especially disadvantaged and
marginalized individuals, to enter or re-enter the labor market.39 Like the
1991 guidelines, the 2008 revised guidelines ask for data on disadvantaged
groups and individuals in relation to the rights to adequate food,40 adequate
housing,41 health,42 and (in the case of the 2008 guidelines) the benefits of
scientific progress and its applications.43
III. TREATMENT OF VULNERABLE, DISADVANTAGED, AND

MARGINALIZED INDIVIDUALS AND GROUPS IN THE
COMMITTEE'S GENERAL COMMENTS
Like some other UN treaty monitoring bodies, the Committee has adopte
a series of general comments conceptualizing the rights it oversees and th
concomitant obligations of state parties. The Committee also uses this vehicle
to explicate how cross-cutting human rights principles like equality of rights
and non-discrimination affect the implementation of economic, social, and
cultural rights. The jurisprudence of the Committee does not have full lega
standing, but it is widely considered to be authoritative. Between 1989 and
2009 the CESCR issued twenty-one general comments, the majority of which
36. Discussion with Ms. Maria Virginia Bras Gomes, Vice Chair of the CESCR, in Venic
(17 July 2010).
37. 2008 Guidelines, supra note 15, 110.
38. Id. 1 15(a).
39. Id. 1 18.
40. Id. 1 46.
41. Id. 11 51(b), 53.
42. Id. 11 56(a), 57(a).
43. Id. 1 70(a).

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address some issues related to vulnerable, disadvantaged, or marginalized

groups. Only General Comment No. 10, on the role of national human
rights institutions in the protection of economic, social, and cultural rights,
fails to reference responsibilities to vulnerable and disadvantaged groups.44
A second general comment on the need for plans of action for primary
education also lacks specific discussion of vulnerable groups,45 but it could
be argued that children can be considered a vulnerable group. Three of the
CESCR's general comments focus on specific vulnerable or at-risk groups:
General Comment No. 5 on persons with disabilities,46 General Comment
No. 6 on the economic, social and cultural rights of older persons,47 and
General Comment No. 16 on the equal rights of (men and) women.48 Addi
tionally, some of the general comments have sections on specific vulnerable
populations although they are not labeled as such. The general comment on
the right to health, in what it terms "special topics of broad applications,"
has subsections on a gender perspective, women, children and adolescents,
older persons, persons with disabilities, and indigenous peoples.49The Com
mittee's most recent general comment on the right to take part in cultural
life has a similar list with the addition of minorities, migrants, and persons
living in poverty who are identified as "persons and communities requiring
special protection."50
Despite this emphasis, none of the general comments provide a coher
ent rationale or framework for conceptualizing vulnerability. Nor do any
44. General Comment No. 10, The Role of National Human Rights Institutions in the Pro
tection of Economic, Social and Cultural Rights, adopted 1 Dec. 1998, U.N. ESCOR,
Comm. on Econ., Soc. & Cult. Rts., 19th Sess., 51st mtg. Agenda Item 3, U.N. Doc.
E/C.12/1998/25 (1998) [hereinafter CESCR, General Comment No. 10],
45. General Comment No. 11, Plans of Action for Primary Education, adopted 10 May 1999,
U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 20th Sess., Agenda Item 7, U.N. Doc.
E/C/12/1999/4 (1999) [hereinafter CESCR, General Comment No. 11],
46. General Comment No. 5, Persons with Disabilities, adopted25 Nov. 1994, U.N. ESCOR,
Comm. on Econ., Soc. & Cult. Rts., 11th Sess., 38th mtg., at 110, U.N. Doc. E/1995/22
(1994) [hereinafter CESCR, General Comment No. 5],
47. General Comment No. 6, The Economic, Social and Cultural Rights of Older Persons,
adopted 24 Nov. 1995, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 13th Sess.,
39th mtg. U.N. Doc. E/C.12/1995/18 (1995) [hereinafter CESCR, General Comment No.
6].
48. General Comment No. 16, The Equal Rights of Men and Women to the Enjoyment of
All Economic, Social and Cultural Rights, U.N. ESCOR, Comm. on Econ. Soc. & Cult.
Rts., 34th Sess., Agenda Item 5, U.N. Doc., E/C.12/2005/4 (2005) [hereinafter CESCR,
General Comment No. 16].
49. General Comment No. 14, The Right to the Highest Attainable Standard of Health,
adopted 11 May 2000, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 22d Sess.,
11 20-27, U.N. Doc. E/C.12/2000/4 (2000) [hereinafter CESCR, General Comment
No. 14].
50. General comment No. 21, Right of Everyone to Take Part in Cultural Life (art. 15, para.
1 (a), of the International Covenant on Economic, Social and Cultural Rights), U.N.
ESCOR, Comm. on Econ., Soc. & Cult. Rts., 43d Sess., 11 1-8, U.N. Doc. E/C.12/
GC/21 (2009) [hereinafter CESCR, General Comment No. 21],

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of the general comments explain why the human rights community should
be especially concerned with the economic, social, and cultural rights of
vulnerable groups. It is possible that the Committee thinks that the impor
tance of dealing with vulnerability is self-evident. The Committee also does
not provide criteria for identifying which individuals or groups qualify as
vulnerable or disadvantaged in general or in specific contexts. There is also
ambiguity as to whether the Committee's jurisprudence applies to groups,
individuals, or both. Most of the general comments speak about the situation
of and address obligations to groups. However, in some of the most recent
general comments the Committee speaks about individuals and groups,
but there is not an explanation as to what motivated this change in phrase.
In most general comments the Committee refers to vulnerable and
disadvantaged groups as a category or in general terms. A few identify
specific groups which are at risk in relationship to the right. For example,
the general comment dealing with forced evictions points out that women,
children, youth, indigenous people, ethnic and other minorities, along with
other unspecified individuals and groups, are more susceptible to forced
evictions,5' and the general comment on the right to adequate food states
that landless and other disadvantaged groups may need special attention.52
Although it is not labeled as such, the most comprehensive listing of groups
that are likely to approximate those whom the Committee considers vulner
able comes in General Comment 20 on non-discrimination in economic,
social, and cultural rights.53 The text of the general comment provides a list of
the explicitly prohibited grounds for discrimination: membership in a group,
race and color, sex, language, religion, political or other opinion, national
or social origin, property, and birth.54 It also offers what are described as
non-exhaustive examples of other statuses that render social groups vulner
able and likely to suffer marginalization: disability, age, nationality, marital
and family status, gender identity and sexual orientation, health status, place
of residence, and economic and social situation.55 Surprisingly, given the
significant way in which poverty intersects with the ability to claim human
rights, the recent general comment on the right to participate in cultural life
51. General Comment No. 7, The Right to Adequate Housing (art. 11.1 of the Covenant):
Forced Evictions, adopted 14 May 1997, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 60th Sess., Supp. No. 2, Annex IV, 1 11, U.N. Doc. E/1998/22 (1998).
52. General Comment No. 12, The Right to Adequate Food (art. 11), adopted 12 May
1999, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 20th Sess., 1 13, U.N. Doc.
E/C. 12/1999/5 (1999) [hereinafter CESCR, General Comment No. 12].
53. General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights
(art. 2, para. 2), adopted 1 June 2009, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
42d Sess., Agenda Item 3, U.N. Doc. E/C.12/GC/20 (2009) [hereinafter CESCR, General
Comment No. 20}.
54. Id. 11 19-26.
55. Id. 11 28-35.

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is the first to discuss the ways that poverty affects the ability of a person or
group to exercise a specific right and the potential role that awareness of their
human rights can play in empowering persons or groups living in poverty.56
The general comments do not state how the Committee conceptualizes
the relationship between discrimination and vulnerability. In its general com
ment on non-discrimination, discrimination is defined as "any distinction,
exclusion, restriction or preference or other differential treatment that is
directly or indirectly based on the prohibited groups of discrimination and
which has the intention of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of Covenant rights."57 This characterization
presumably also applies to individuals and members of a group who are
vulnerable and disadvantaged. However, the general comment does not
illuminate the differences or similarities between groups that are vulner
able and disadvantaged in general and those that are specifically at risk of
discrimination. Nor does it indicate whether all groups and individuals at
risk for discrimination should automatically be considered vulnerable and
disadvantaged.
One of the purposes of a general comment is to clarify state party obli
gations and there are several themes about obligations to vulnerable groups
that the CESCR reiterates time and again. The first three of the Committee's
general comments, which were adopted in 1989 and 1990, address three of
these themes: the need to monitor the status of vulnerable and disadvantaged
groups, to protect their basic social and economic rights even in periods
of austerity or stringency, and to accord them priority in the realization of
rights. Nevertheless, few of the general comments suggest specific policy
measures state parties should undertake to protect or promote vulnerable
groups' enjoyment of the right being addressed. Instead, several merely call
for the development of a plan, leaving its content to the state party.
The CESCR's first general comment, which addresses reporting by state
parties, delineates seven objectives that reporting fulfills. The second of
these objectives is to ensure that the state party monitors the actual situation
with respect to each of the rights on a regular basis in order to be aware of
the extent to which the various rights are or are not being enjoyed by all
individuals within its territory. According to the Committee, the fulfillment of
this objective cannot be achieved by the preparation of aggregate national
statistics or estimates. The general comment also mandates that special at
tention be given to worse-off regions or areas and to any specific groups or
subgroups which appear to be particularly vulnerable or disadvantaged.58
56. CESCR, General Comment No. 21, supra note 50, 11 1-8.
57. CESCR, General Comment No. 20, supra note 53, 1i 7.
58. General Comment No. 1: Reporting by States Parties, adopted 24 Feb. 1989, U.N. ES
COR, Comm. on Econ., Soc. & Cult. Rts., 3d Sess., f 2, U.N. Doc. E/1989/72 (1989)
[hereinafter CESCR, General Comment No. 1\.

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The Committee reiterates the need to provide detailed information and

to monitor the status of vulnerable and disadvantaged groups and regions
in many of its other general comments. For example, the fourth comment,
which addresses the right to adequate housing— the first of several general
comments interpreting specific rights enumerated in the Covenant— specifies
the need to collect detailed information about the situation of vulnerable
and disadvantaged groups.59 General Comment 6 on the rights of older
persons adds an additional, unique stipulation. Acknowledging that older
persons are a heterogeneous group, the Committee notes that data must be
disaggregated so that it can be determined which members of this group
are vulnerable and which are not.60 Its general comment on the relationship
between economic sanctions and respect for economic, social, and cultural
rights additionally calls for a comprehensive study utilizing a human rights
approach to the "nefarious" effects of sanctions on the vulnerable61 and
proposes the creation of a UN mechanism to study and take steps to mitigate
the effect of sanctions on vulnerable groups.62
General Comment 2, which focuses on the role of international techni
cal assistance measures in the realization of economic, social, and cultural
rights, expresses concern about the adverse impact of the debt burden and
related adjustment measures for the enjoyment of economic, social, and
cultural rights in many countries. The Committee acknowledges that ad
justment programs will often be unavoidable, but underscores that in such
situations efforts to protect the most basic economic, social, and cultural
rights become more urgent. Borrowing terminology from UNICEF, it recom
mends an approach that it calls "adjustment with a human face" or promot
ing "the human dimension of development," with the goal of protecting the
rights of the poor and vulnerable.63 The Committee also stipulates that any
trade-offs made to ensure human rights for the broadest number of people
must take special care to ensure that the rights of the poor and vulnerable
become the basic objective.64 In a similar vein, General Comment 8 on
the relationship between economic sanctions and respect for economic,
59. General Comment No. 4, The Right to Adequate Housing (art. 11(1) of the Covenant),
adopted 13 Dec. 1991, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 6th Sess., 1
13, U.N. Doc. E/ 1992/23 (1991) [hereinafter CESCR, General Comment No. 4].
60. CESCR, General Comment No. 6, supra note 47, H 1 16-19.
61. General Comment No. 8, The Relationship Between Economic Sanctions and Respect
for Economic, Social and Cultural Rights, adopted 5 Dec. 1997, U.N. ESCOR, Comm.
on Econ., Soc. & Cult. Rts., 17th Sess., 1 6, U.N. Doc. E/C.12/1997/8 (1997) [hereinafter
CESCR, General Comment No. 8],
62. Id. 11 12-14.
63. General Comment No. 2, International Technical Assistance Measures, adopted 2 F
1990, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 4th Sess., 1 9, U.N. Doc
E/1990/23 (1990) [hereinafter CESCR, General Comment No. 2],
64. Id.

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social, and cultural rights places an obligation on state parties to ensure

that the imposition of economic sanctions does not disproportionately hurt
the vulnerable.65 The CESCR also stresses that state parties on the receiving
end of sanctions must continue to fulfill their obligations, particularly with
respect to vulnerable groups.66 Likewise, the general comment on the right
to adequate food instructs state parties that, in times of emergency, food-aid
priority should be given to the most vulnerable groups.67 In addition, several
of the general comments, including the ones on persons with disabilities,
68 the right to health,69 and the right to work,70 remind state parties of their
obligation to protect vulnerable groups or accord them priority in times of
emergency or resource scarcity.
The Committee reiterates the theme of the importance of protecting the
rights of the poor and vulnerable in many of its general comments. Gen
eral Comment 3 on the nature of states parties' obligations, for instance,
stipulates "that even in times of severe resource constraints whether caused
by a process of adjustment, of economic recession, or by other factors the
vulnerable members of society can and indeed must be protected by the
adoption of relatively low-cost targeted programmes."71 The CESCR appar
ently considers protecting the rights of the vulnerable to be so important
that it justifies making most of the provisions in the Covenant justiciable on
the ground that the failure to do so would drastically curtail the capacity
of the courts to protect the rights of the most vulnerable and disadvantaged
groups in society.72 The general comment on the right to health argues that
not considering the needs of vulnerable groups constitutes a failure to take
all necessary steps to ensure the realization of the right in question.73
Nevertheless, most of the general comments are disappointing in that
they lack specificity concerning what protecting the rights of the vulnerable
requires. For example, General Comment No. 5, on the situation of persons
65. CESCR, General Comment No. 8, supra note 61, HI 4, 8, 15.

66. Id. 1 10.
67. CESCR, General Comment No. 12, supra note 52, 1 38.
69. CESCR, General Comment No. 14, supra note 49, f 40.
70. General Comment No. 18: The Right to Work (Article 6 of the International Covenant
on Economic, Social and Cultural Rights), adopted24 Nov. 2005, U.N. ESCOR, Comm.
on Econ., Soc. & Cult. Rts., 35th Sess., 1 12(b)(i), U.N. Doc E/C.12/GC/18 (2006)
[hereinafter CESCR, General Comment No. 18],
71. General Comment No. 3, The Nature of States Parties Obligations (art. 2, para. 1 of the
Covenant; adopted 14 Dec. 1990, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
5th Sess., Annex 3, 1 12, U.N. Doc. E/1991/23 (1991) [hereinafter CESCR, General
Comment No. 3].
72. General Comment No. 9: The Domestic Application of the Covenant, adopted 1 Dec
1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 19th Sess., H 10, U.N. Doc.
E/C.12/1998/24 (1998) [hereinafter CESCR, General Comment No. 9],
73. CESCR, General Comment No. 14, supra note 49, U 52.

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with disabilities, instructs governments to take positive action to ensure

that structural disadvantages are eliminated and preferential treatment is
given so that members of vulnerable groups, particularly disabled children,
can have equal standing in society, but it does not offer guidance on what
such a commitment might entail.74 Similarly, the general comment on the
right to social security underscores the need for all persons to be covered,
especially those who belong to marginalized and disadvantaged groups,75
without suggesting how the state party might go about ensuring such cover
age. The recent general comment on the right to participate in cultural life
directs state parties to respect and protect the cultural heritage of all groups
and communities, in particular the most disadvantaged and marginalized,
in economic development and environmental policies and programs.76 Its
section on implementation at the national level encourages state parties to
make the greatest possible use of the valuable cultural resources that every
society possesses and to bring them within the reach of everyone, paying
particular attention to the most disadvantaged and marginalized individu
als and groups,77 but again it fails to provide specifics about what types of
measures the state party should undertake to achieve this objective.
Several more recent general comments highlight the need to consider
the status of vulnerable and disadvantaged groups in the context of develop
ing a national strategy, policies, and plans with appropriate indicators and
benchmarks to assess its implementation. For example, General Comment
14 on the right to the highest attainable standard of health speaks about the
adoption of a national health plan to address the needs of the population
with particular attention paid to vulnerable groups.78 Similarly, the general
comment on the right to work underscores that national employment plans
should target marginalized and disadvantaged groups.79 Several of the recent
general comments emphasize the need for facilities or mechanisms to be
accessible, available, or affordable to all, especially the most vulnerable.
The general comments on the rights to education,00 health,81 protection of

75. General Comment No. 19: The Right to Social Security (Art. 9), adopted23 Nov. 2007,
U.N. ESCOR, Comm. on Econ. Soc. & Cult. Rts., 39th Sess., 1 4, U.N. Doc. E/C.12/
GC/19 (2006) [hereinafter CESCR, General Comment No. 19],
76. CESCR, General Comment No. 21, supra note 50, 11 50(b).
77. Id. at 1 68.
80. General Comment No. 13: The Right to Education, adopted 8 Dec. 1999, U.N. ESCOR,
Comm. on Econ., Soc. & Cult. Rts., 21st Sess., 1 13, U.N. Doc. E/C.12/1999/10 (1999)
[hereinafter CESCR, General Comment No. 13],

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the moral and material interests of authors,82 and water 83 all have such a
stipulation.
A few general comments do identify more specific obligations to vulner
able and disadvantaged groups. The general comment on the right to water,
for instance, calls for the development of low-cost targeted programs to
ensure access for vulnerable and marginalized groups.84 The general com
ment on the right to health proposes that state parties train health staff to
deal with specific issues relevant to vulnerable groups.85 The sections in the
general comment on health that address specific at-risk or vulnerable groups
also offer more guided directives. For example, the Committee underscores
that health services for indigenous peoples should be culturally appropriate
and take into account traditional preventive care, healing practices, and
medicines, and be sensitive to the collective dimensions of health.86 Its
discussion of women and the right to health calls attention to the need to
develop and implement a comprehensive national strategy for promoting
women's right to health throughout their life span and some of the particu
lars that the strategy should include.87 Additionally, the general comment
on the right to social security states that refugees, stateless persons, asylum
seekers, and other disadvantaged and marginalized individuals and groups,
should enjoy equal treatment in access to non-contributory social security
schemes, including reasonable access to health care and family support.88
How does the Committee reconcile the human rights norm of the equal
ity of all persons with its emphasis on preferential treatment of vulnerable
individuals and groups? In General Comment 5, on persons with disabilities,
the Committee states that governments must take positive action to ensure that
structural disadvantages are eliminated and appropriate preferential treatment
is given to people with disabilities in order to achieve the objective of full
participation and equal standing in society.89 Presumably this principle would
apply to other vulnerable groups as well. Similarly, the general comment on
non-discrimination explains that eliminating substantive discrimination may
require the state party to adopt special measures to attenuate or suppress
General Comment No. 17: The Right of Everyone to Benefit from the Protection of the
Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Produc
tion of Which He or She Is the Author (Article 15, Paragraph 1(c), of the Covenant),
adopted 21 Nov. 2005, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 35th Sess.,
1 21, U.N. Doc. E/C.12/GC/17 (2005) [hereinafter CESCR, General Comment No. 77].
General Comment No. 15: The Right to Water (arts. 11 and 12 of the International Cov
enant on Economic, Social and Cultural Rights), adopted 26 Nov. 2002, U.N. ESCOR,
Comm. on Econ., Soc. & Cult. Rts., 29th Sess., 1 12(c), U.N. Doc. E/C.12/2002/11
(2002) [hereinafter CESCR, General Comment No. 75].
Id. 1 14.
CESCR, General Comment No. 14, supra note 49, 137.
Id. 1 27.
Id. 1 21.
CESCR, General comment No. 19, supra note 75, f 38.
CESCR, General Comment No. 5, supra note 46, 1 9.

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conditions that perpetuate discrimination. According to the Committee, such

measures are legitimate as long as they represent reasonable, objective, and
proportional means to redress de facto discrimination and are discontinued
if and when substantive equality has been sustainably achieved.90 General
Comment 1 7, dealing with the right of authors and creators to protection of
their moral and material interests, similarly reiterates that temporary special
measures must be taken where necessary for the sole purpose of ensuring
de facto equality for marginalized groups or individuals.91 General Com
ment 16, focusing on equal rights for men and women, comes closest to
an explicit affirmative action doctrine:
The principles of equality and non-discrimination, by themselves, are not

always sufficient to guarantee true equality. Temporary special measures may
sometimes be needed in order to bring disadvantaged or marginalized persons
or groups of persons to the same substantive level as others. Temporary special
measures aim at realizing not only de jure or formal equality, but also de facto
or substantive equality for men and women. However, the application of the
principle of equality will sometimes require that States parties take measures
in favour of women in order to attenuate or suppress conditions that perpetu
ate discrimination. As long as these measures are necessary to redress de facto
discrimination and are terminated when de facto equality is achieved, such
differentiation is legitimate.92
As these examples demonstrate, the CESCR advocates that temporary special

measures be implemented expressly to promote greater equality of status and
opportunity for disadvantaged individuals and groups and therefore consid
ers preferential treatment to be consistent with the commitment to equality.
IV. INTERPRETATION OF VULNERABILITY AND RELATED ISSUES IN

CESCR'S STATEMENTS
In addition to its general comments, the CESCR periodically issues state

ments to clarify its views on a variety of matters. Its website lists sixteen
statements adopted by the Committee between 1995 and 2008.93 Many
of the statements were occasioned by international meetings to which the
CESCR decided to send a message, such as the Fourth World Conference
on Women in 1995,94 the Third Ministerial Conference of the World Trade
90. CESCR, General Comment No. 20, supra note 53, f 1 8-9.
91. CESCR, General Comment No. 17, supra note 82.
93. Statements Adopted by the Committee on Economic, Social and Cultural Rights, avail
able at http://www2.ohchr.org/english/bodies/cescr/statements.htm
94. Fourth World Conference on Women: Action for Equality, Development and Peace:
Statement of the Committee on Economic, Social and Cultural Rights, adopted 17 May
1995, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 12th Sess., 26th mtg., Supp. No.

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Organization in 1999,95 and the Third United Nations Conference on the

Least Developed Countries in 2002.96 Other statements are topical, addressing
such issues as globalization and its impact on the enjoyment of economic,
social, and cultural rights,97 human rights and intellectual property,98 and
the obligation to take steps to the maximum of available resources under
an optional protocol to the Covenant.99 Several of these statements mention
vulnerability, sometimes in passing and other times in greater depth.
The Committee's 1995 statement to the Fourth World Conference on
Women: Action for Equality, Development and Peace recognizes that vio
lations of economic, social, and cultural rights result in some of the most
persistent forms of inequality and discrimination, particularly against women,
the elderly, the disabled, and other vulnerable and disadvantaged groups.
It also acknowledges that women continue to bear the burden of particular
obstacles to the enjoyment of their economic, social, cultural, civil, and
political rights.100 Subsequent paragraphs elaborate on ways that women
continue to suffer the effects of poverty, discrimination, inequalities, sexual
harassment, abuse, and exploitation.'01 The statement goes on to canvass
specific measures the Committee has recommended in its various concluding
observations reviewing the performance of state parties so as to: (1) ensure
de facto equality between men and women, especially in the areas of ac
cess to employment, remuneration for equal work, working conditions, the
right to social security, and participation in higher education; (2) introduce
comprehensive anti-discrimination legislation; and (3) adopt necessary
measures to accord greater priority to the education of women, including
the eradication of female illiteracy.102
2, at 144, U.N. Doc. E/C. 12/1995/18 (1996) [hereinafter CESCR, Statement for Fourth
World Conference on Women],
95. Statement of the Committee to the Third Ministerial Conference of the World Trade
Organization, adopted26 Nov. 1999, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
21st Sess., 47th mtg., Supp. No. 2, at 128, U.N. Doc. E/C. 12/1999/11 (2000).
96. Poverty and the International Covenant on Economic, Social and Cultural Rights: State
ment of the Committee to the Third United Nations Conference on the Least Developed
Countries, adopted4 May 2001, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 25th
Sess., 20th mtg., Supp. No. 2, at 197, U.N. Doc. E/C.12/2001/17 (2002) [hereinafter
CESCR, Statement on Poverty and the ICESCR],
97. Globalization and Its Impact on the Enjoyment of Economic, Social and Cultural Rights,
adopted 11 May 1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 18th Sess.,
Supp. No. 2, 11I 436-461, U.N. Doc. E/1999/22 (1999) [hereinafter CESCR, Globaliza
tion Statement].
98. Human Rights and Intellectual Property: Statement of the Committee on Economic,
Social and Cultural Rights, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 27th Sess.,
Agenda Item 3, U.N. Doc. E/C.12/2001/15 (2001).
99. Statement by the Committee: An Evaluation of the Obligation to Take Steps to the "Maxi
mum of Available Resources" Under an Optional Protocol to the Covenant: Statement,
U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 38th Sess., U.N. Doc., E/C.12/2007/1
(2007) [hereinafter CESCR, Evaluation Under Optional Protocol].
100. CESCR, Statement for Fourth World Conference on Women, supra note 94.
101. Id. 1 8.
102. Id. 1 9.

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The Committee's 2001 statement dealing with poverty and the ICESCR
asserts that the Committee holds the firm view that poverty constitutes a
denial of human rights.103 The statement defines poverty as the lack of basic
capabilities to live in dignity, identifying its broader features as hunger, poor
education, discrimination, vulnerability, and social exclusion.104 It mentions
that in the context of the International Bill of Rights, poverty may also be
delineated as "a human condition characterized by sustained or chronic
deprivation of the resources, capabilities, choices, security and power nec
essary for the enjoyment of an adequate standard of living and other civil,
cultural, economic, political and social rights."105 The statement links poverty
and discrimination, observing that discrimination may cause poverty and,
conversely, that poverty may cause discrimination. According to the Com
mittee, the international norms of non-discrimination and equality demand
that particular attention be given to vulnerable groups and individuals from
such groups, and this has profound implications for human rights-based
anti-poverty strategies.106
The 1998 statement on globalization and economic, social, and cul
tural rights associates globalization with an increasing reliance upon the
free market, a significant growth in the influence of international financial
markets and institutions in determining the viability of national policy pri
orities, a diminution in the role of the state and the size of its budget, the
privatization of various functions previously considered to be the domain of
the state, deregulation, and a corresponding increase in the role and respon
sibilities attributed to private actors.107 Nevertheless, it is unclear whether
the Committee views these developments as necessarily incompatible with
the principles of the Covenant or with the obligations of governments. That
had been its position, but it may have reversed course in its 2002 statement
to the Commission on Sustainable Development.108 The Committee does,
however, point to the need for appropriate compensatory policies to protect
economic, social, and cultural rights.109 In that context the statement calls
upon the International Monetary Fund and World Bank to pay enhanced
attention in their activities to respect economic, social, and cultural rights
and proposes ways for them to do so. It also advocates that social safety nets
should be defined by reference to these rights and that enhanced attention
103. CESCR, Statement on Poverty and the ICESCR, supra note 96, 1 1.
104. Id. 1 7.
105. Id. 1 8.
106. Id. 1 11.
107. CESCR, Globalization Statement, supra note 97, 1 2.
108. Statement of the Committee on Economic, Social and Cultural Rights to the Commission
on Sustainable Development acting as the Preparatory Committee for the World Summit
on Sustainable Development (Bali, Indonesia, 27 May to 7 June 2002), adopted 17 May
2002, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 28th Sess., 27th mtg., Supp.
No. 2, at 138, 13, U.N. Doc. E/2003/22 (2003).
109. CESCR, Globalization Statement, supra note 97, f 1 2-3.

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should be accorded to methods to protect the poor and the vulnerable in

the context of structural adjustment programs.110
A recent statement evaluates the obligation to take steps to the "maxi
mum of available resources," as state parties are directed to do in article
2.1 of the ICESCR, and how this requirement will be evaluated under the
optional protocol to the Covenant. According to the statement, an impor
tant consideration in assessing whether a state party has taken steps to the
maximum of available resources will be whether the steps take into account
the precarious situation of disadvantaged and marginalized individuals or
group and whether they prioritized grave situations or situations of risk.111
Among the examples the Committee offers of the types of recommendations
it might make under the optional protocol so as to have a state party's re
source allocation conform with its obligations under the Covenant, three are
relevant to the situation of the vulnerable: provision for the disadvantaged
and marginalized individuals and groups; protection against grave threats
to the enjoyment of economic, social, and cultural rights; and respect for
non-discrimination in the adoption and implementation of measures.112
V. Vulnerability in the CESCR's Concluding Observations on Country

Performance
One of the Committee's most important functions is analyzing state parties'

performance on fulfilling their obligations under the ICESCR. The Committee
does so primarily by reviewing the required reports submitted by state parties
along with supplementary resources such as data from UN specialized agen
cies and reports prepared by nongovernmental organizations. In its review
the Committee also interviews representatives of their governments at one
of their sessions. In cases where the state party fails to prepare a report, the
Committee conducts its review utilizing other sources of information. For
each of its reviews the Committee issues Concluding Observations (COs)
which include an assessment of performance, requests for additional infor
mation, and prescriptions for improvement.
This section analyzes all of the available Concluding Observations (COs)
from 1997-2009, which comprise a total of comments on 135 countries,
to gain insight into how concern with the vulnerable and disadvantaged
have figured into these reviews. It attempts to obtain a broad picture of
the way the Committee has conceptualized and treated vulnerability over
time including identifying what types of groups the Committee identifies as
110. Id. 1 7.
111. CESCR, Evaluation Under Optional Protocol, supra note 99, 1 8.
112. Id. 1 13.

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vulnerable and how the Committee relates its treatment of vulnerability to

a variety of human rights issues. The analysis considers whether there are
disparities in the way the Committee approaches vulnerability in countries
at different stages of development, and if the Committee does so, what the
likely causes are. It also seeks to determine whether the Committee views
vulnerability as primarily a condition of individuals, groups, or both. Finally,
it identifies patterns in the way the Committee uses "vulnerability language"113
in its assessments of country performance.
To assess broad patterns and trends in the Committee's interpretation
and use of vulnerability, countries were divided into three levels of devel
opment (high, medium, and low) utilizing the classification in the Human
Development Reports issued each year by the United Nations Develop
ment Program (UNDP).114 The UNDP categorizes countries based on the
Human Development Index (HDI), a measure comprising income (GDP per
capita), knowledge (literacy rates and ratio of enrollment in school) and life
expectancy from birth.115 This measure seemed appropriate as it captures
not only wealth, but other factors which are important to the realization of
economic and social rights.
Table 1 lists the countries in the sample by level of development. As
seen in Table 1, the sample contains 138 countries of which sixty-seven are
categorized as having a high level of development, sixty have a middle level
of development, and eleven are classified as having a low level of develop
ment. This latter category is surprisingly small. In 1997 the HDI classified
forty-five of 1 75 countries as having a low level of development. By 2008
this number had shrunk to twenty-two out of 177. Had determinations of
levels of development been based solely on per capita incomes, a far greater
number of countries would have been classified as having a low level of
development. Because of the similarity in the number of countries in the
high and middle categories, the overall counts for human rights issues and
groups, as presented in Tables 2 and 3, are fairly comparable. However,
countries with low levels of development are too under-represented to be
113. This article uses "vulnerability language" or "vulnerability terms" as terms of art to refer
collectively to the following words and phrases individually or in combination: most
vulnerable, vulnerable, marginalized, disadvantaged, and underprivileged. See discussion
infra in this section.
114. For the 2009 Report the UNDP adds a 4th category: Very High, High, Medium, and
Low, effectively adding 12 countries into the "high category." However, we use the
classification method from 2008 for 2009 to maintain consistency. See UN Dev. Pro
gramme (UNDP), Human Development Report 2009: Overcoming Barriers: Human Mobility and
Development (2009), available at http://hdr.undp.org/en/media/HDR_2009_EN_Complete.
pdf.
115. For an overview of exactly how the UNDP constructs the Human Development Index
(HDI), see UNDP, Human Development Report 1992: Deepening Democracy in a Fragmented
World 144-48 (1992), available at http://hdr.undp.org/en/media/HDR_2002_EN_Com
plete.pdf.

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Table 1. Country Classification by Level of Development
High HDI (67 COs)* Middle (60 COs)* Low (17 COs)*
Argentina Lichtenstein Albania Libya** Angola

Australia (2) Lithuania Algeria Macedonia Benin (2)
Austria Luxembourg**** Armenia Mexico (2) DPRK
Belgium (2) Malta Azerbaijan (2) Moldova Nepal
Brazil Monaco Bolivia (2) Mongolia Nigeria
Canada (2) Netherlands (2)*** Bosnia Morocco (2) Senegal
Chile Netherlands Brazil Nepal Sudan
Costa Rica Antilles Bulgaria Nicaragua Togo
Croatia New Zealand Cambodia Panama Yemen
Cyprus (2) Norway Cameroon Paraguay Zambia
Czech Rep. Poland (2) China (2) Peru
Denmark (2) Portugal Columbia Philippines
Estonia Rep. of Korea Congo Russia (2)
Finland (2) San Marino Dom. Rep Serbia
France (2) Slovak Rep. Egypt Solomon Islands (2)
Germany (2) Slovenia El Salvador Sri Lanka
Greece Spain Georgia (2) Syria
Hungary St. Vincent/ Guatemala Tajikistan
Iceland (2) Grenadines Honduras Tunisia
Ireland (2) Sweden (2) India Ukraine (2)
Israel (2) Switzerland Iraq UNMIK
Italy (2) Trinidad Jamaica Uzbekistan
Japan United Jordan Venezuela
Kuwait Kingdom (3) Kenya Zimbabwe
Latvia Uruguay Kyrgyzstan
Libya
*Level is determined by HDI of country during year CO is issued.

**Libya is the only country to change level between COs from High in 1997 to Middle in
2006.
**»First CO for Netherlands in (1998) includes Aruba and the Netherlands Antilles.
**** Luxembourg (1), Tunisia, Ecuador, and Yugoslavia are not included due to broken links
on the UN Webpage.
comparable with high level and middle level countries. Nevertheless, it

does provide a sense of how the Committee deals with countries at differ
ent levels of development.
The analysis of the Committee's approach to vulnerability included
two steps, one a broad count of the vulnerability terms and another more
detailed examination of how these terms were used. First, the broad count
entailed tallying the number of times the Committee used "vulnerable,"
"marginalized," "disadvantaged," or some combination of the three terms
in each CO, and also making note of the groups and human rights issues
connected to those terms. All occurrences of these three terms are included
in the count. Many of these groups and issues were also mentioned by the
Committee in other contexts without the Committee explicitly using these

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Table 2. Vulnerable Groups
Groups* Total High Middle Low
Women 46 19 23 4
Children 35 10 23 2
Poor 35 15 19 1
Indigenous 28 14 13 1
Disabilities 26 13 9 4
Race/Minority 24 15 9 0
Traveling Peoples 21 14 7 0
Foreigners/Asylum Seekers 21 19 2 0
Temporary Workers 19 12 7 0
Elderly 18 10 7 1
Single Parents 13 7 6 0
Refugees/Displaced Persons 12 1 9 2
Homeless 11 4 4 3
Young Persons 10 9 1 0
Families 8 5 3 0
Unemployed 6 2 3 1
Farmers 5 2 3 0
Mothers 4 1 3 0
Domestic Workers 4 3 1 0
Prisoners 2 1 1 0
Totals 348 176 153 19
Bolding denotes a significant change between levels of development.

*See coding guidelines for explanation of what was included in each category.
Table 3: Vulnerability and Human Rights Issues
Issues:* Total High Middle Low
Housing 75 35 30 10
Inadequate Soc. Welfare 65 30 31 4
Poverty 53 19 32 2
Healthcare 49 20 28 1
Education 40 19 20 1
Urban/Rural 36 10 24 2
Legal/Dem. Institutions 31 11 20 0
Basic Needs 31 7 16 8
Discrimination 27 14 13 0
Struct. Adj. 26 7 16 3
Unemployment 23 17 5 1
Int. Financial Inst. 20 0 17 3
Workplace 17 8 9 0
HIV/AIDS 11 3 7 1
Violence against women 5 2 2 1
Sex (Trafficking, child sex work) 4 2 2 0
Personal Safety 2 1 0 1
Totals 515 205 272 38
Bolding denotes a significant change between counts by level of development.

* See coding guidelines for explanation of what was included in each category.

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vulnerability terms. In such cases they are not included in the overall count
of vulnerability language. The criteria applied in determining whether the
Committee explicitly connected a group or issue with vulnerability language
were whether the Committee mentioned the group or issue in the same
paragraph as the vulnerability term that was counted. Using this "paragraph
rule" was necessary because attempting to connect groups and issues from
disparate parts of a given CO would result in too much guessing about
what the Committee intended when using vulnerability language. Despite
an effort to be as disciplined as possible when counting the occurrences of
vulnerability language, several problems arose during this process. These
problems are discussed below. Second, the reports were examined in greater
depth, returning to the instances of vulnerability language to determine how
the Committee fit these groups into its analysis of a state party's performance
and also whether the Committee mentioned other human rights issues and
groups without using vulnerability language.
The process of counting the number of occurrences of vulnerability
language was made difficult for several reasons. First, the Committee is not
uniform in how it refers to what it considers vulnerable groups. The Commit
tee uses terms like "most vulnerable,"116 "vulnerable/"17 "marginalized,"118
"disadvantaged,"119 and "underprivileged,"120 in many different contexts. In
addition, these terms are sometimes used in conjunction with each other
when referring to different groups and human rights issues. For example,
the Committee refers to disadvantaged and marginalized groups in some
cases or just marginalized groups in others. Second, the Committee refers
116. Consideration of Reports Submitted by States Parties Under Articles 16 and 1/ of the
Covenant: Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Federal Republic of Germany, adopted 2 Dec. 1998, U.N. ESCOR, Comm. on
Econ., Soc. & Cult. Rts., 19th Sess., 54th mtg., H 23, U.N. Doc. E/C.12/1/Add.29 (1998).
117 Consideration of Reports Submitted by States parties Under Articles 16 & 17 of the
Covenant: Concluding Observations of the Committed on Economic, Social and Cultural
Rights: Sri Lanka, adopted 13 May 1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 18th Sess., 25th mtg., 11 4,13, 22, U.N. Doc. E/C.12/1/Add.24 (1998).
118. Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the
Rights: United Kingdom ofCreat Britain and Northern Ireland, the Crown Dependencies
and the Overseas Dependent Territories, adopted 16 May 2002, U.N. ESCOR, Comm.
on Econ., Soc. & Cult. Rts., 28th Sess., 25th mtg. 1 37, U.N. Doc. E/C.12/1/Add.79
(2002) [hereinafter CESCR, Concluding Observations: UK (2002)].
119. Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the
Rights: Denmark, adopted 12 May 1999, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 20th Sess., 26th mg„ 1 19, U.N. Doc. E/C.12/1/Add.34 (1999).
Rights: Netherlands, adopted 15 May 1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 18th Sess., 28th mtg., 1 16, U.N. Doc. E/C.12/1/Add.25 (1998).

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to many groups that need attention from the state party without utilizing
vulnerability language. Women, in particular, are under-represented in our
count because they are mentioned many times with no use of any of the
vulnerability terms mentioned above in the same paragraph. For example,
the COs issued in 1998 for Poland refer to discrimination against women
in seven different paragraphs,'21 and another set of COs issued for Canada
in 1998 identifies discrimination against women no less than eight times.122
Neither of these COs makes use of vulnerability language in the same
paragraph (in these cases vulnerability language does not occur at all), and
therefore these comments are not included in our overall count.
A. Vulnerable Groups: Definition
In addition to counting the number of occurrences of vulnerability language,

this analysis also identifies and tallies the number of times different groups
and human rights issues were mentioned in conjunction with any of the
search terms mentioned above (see Table 1 for a complete list of groups and
issues). "Groups" refers to any collection of individuals bound together by
status. This analysis differentiates between two forms of status: fixed status or
variable status. A fixed status is something usually, but not always, acquired
by birth and is considered unchangeable. Groups in this analysis considered
fixed are: women; children; young people; the elderly; the disabled; and
racial, ethnic, and religious minorities. Variable status, on the other hand,
is something individuals acquire by virtue of their social and economic
group affiliation. Groups categorized as variable include: migrant workers,
single mothers, the homeless, the unemployed, and the poor. The primary
difference between the two is that variable statuses can theoretically be
changed by either the individual or by outside interventions such as policy
changes, whereas changing fixed status groups is either impossible or not
an acceptable way to ameliorate the vulnerability that comes with being a
member of those groups. Put simply, working to change someone's status
from poor to not poor is an acceptable solution to the problem of vulner
ability, while asking a child to grow faster or a woman to cease being a
121. Considerations of Reports Submitted by States Parties Under Articles 16 and 17 of the
Rights: Poland, adopted 14 May 1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 18th Sess., 26th mtg., 11 12-14, 21-23, U.N. Doc. E/C.12/1/Add.26 (1998).
Rights: Canada, adopted4 Dec. 1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
19th Sess., 57th mtg., 11 14, 16, 23, 28-29, 42, 53-54, U.N. Doc. E/C.12/1/Add.31
(1998) [hereinafter CESCR, Concluding Observations: Canada (1998)].

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woman is not possible or acceptable in most, if not all, cases. Recognizing

that these categories are not mutually exclusive, dividing the categories of
groups by type of status still provides a cogent way of breaking down how
the Committee conceptualizes and orders vulnerability.
An example of one way the Committee refers to groups is found in a
set of COs issued for Iraq in 1997. The Committee identifies the problem of
economic sanctions in Iraq and points out that "such measures most seri
ously affect the innocent population, in particular the weak and the poor,
especially women and children."123 In this case the Committee emphasizes
the inherent vulnerability of the weak, the poor, women, and children. The
implication is that three of the four groups are vulnerable based on the
fixed characteristics of group members which, when combined with the
circumstance of scarce resources brought on by economic sanctions, makes
them vulnerable. The fourth group, "the poor," illustrates the vulnerability
of a group with a variable status.
Temporary and migrant workers are examples of groups with variable
status which the Committee often identifies as vulnerable. In a 2008 set of
COs issued for France,
The Committee notes with concern that in spite of the introduction of the
Universal Health Care Coverage ([Couverture Maladie Universelle,] CMU) in
July 1999, persons belonging to disadvantaged and marginalised groups, such
as asylum-seekers and undocumented migrant workers and members of their
families, continue to encounter difficulties in gaining access to health care
facilities, goods and services . . . .U4
In this case it is clear that the economic and social status of migrant workers
makes them particularly vulnerable when compared to their counterparts
with stable, full-time employment.
Another issue involves groups or individuals who are considered more
or most vulnerable. It is clear that the Committee, by implication, could
identify a hypothetical most vulnerable group or individual based on their
situation in a particular country. Presumably in this analysis a person who
falls into multiple vulnerable groups based on a fixed or variable status is
going to be the most vulnerable individual in any given state (e.g. a young
or elderly, disabled, female, minority, homeless, migrant worker). The point
is not to say that the Committee ever identifies such a person explicitly, but
Covenant: Concluding Observations of the Committee on Economic, Social and Cul
tural Rights: Iraq, adopted 4 Dec. 1997, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 17th Sess., 52d mtg., 1 8, U.N. Doc. E/C. 12/1/Add. 17 (1997) (internal quotations
omitted).
Rights: France, adopted 16 May 2008, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
40th Sess., 26th mtg., 1 26, U.N. Doc. E/C.12/FRA/CO/3 (2008).

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Figure 1. Total Average Count Per Country
Time
the implication of identifying vulnerable groups in this way assumes that

such a person exists. An example of overlapping vulnerability is found in
the COs issued for Nigeria in 1998. The Committee "expresses its deep
concern about the rising number of homeless women and young girls, who
are forced to sleep in the streets where they are vulnerable to rape and other
forms of violence."125 Here, women are vulnerable to rape because of their
gender but they are primarily vulnerable because of the combination of
their gender and homelessness.
The Committee references nineteen groups at least more than once
and in more than one country. All groups or issues connected with vulner
ability language are included in the count, but if they are referenced just
once or very few times in a small number of countries they are placed into
another similar and more general category. An example of a group that is
not given its own category in this count is the group "scheduled castes and
scheduled tribes," which is only referenced in a set of COs for India.126
The more general "tribes," on the other hand, is counted under the group
category of "indigenous" in the list. Furthermore, a miscellaneous category
Rights: Nigeria, adopted 13 May 1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 18th Sess., 22d-24th mtgs., 1 23, U.N. Doc. E/C.12/1/Add.23 (1998).
Rights: India, adopted 16 May 2008, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
40th Sess., 25th mtg., 1 13, U.N. Doc. E/C.12/IND/CO/5 (2008) [hereinafter CESCR,
Concluding Observations: India].

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is included for groups that were mentioned just a few times but did not fit
well in another category. This category was included to keep the overall
number manageable. A complete list of groups, broken down by status, is
presented in Table 2.
B. Human Rights Issues: Definition
The Committee frequently identifies a number of human rights issues which

either make groups vulnerable or affect vulnerable groups. Human rights
issues here refer to a phenomenon, situation, or policy that the Committee
mentions in conjunction with vulnerability language. Examples of human
rights issues include inadequate social welfare programs, insufficient access
to basic needs such as food and water, or lack of access to healthcare, edu
cation, housing, and legal services. Issues brought up by the Committee may
characterize the situation of specific groups or "vulnerable groups" in general.
An example of an issue tied to a specific group occurs in the COs is
sued for Mexico in 1999. "The Committee is concerned about the persisting
plight of indigenous populations, particularly those of Chiapas, Guerrero,
Veracruz and Oaxaca, who have limited access to, inter alia, health services,
education, work, adequate nutrition and housing."127 In this case the group
being referred to is "indigenous populations" and the issues include lack of
access to various entitlements, all of which are referenced often enough to
have their own categories in our issue count.
References to human rights issues on a more general level typically re
semble an example drawn from a set of COs issued for Argentina in 1999.
The Committee notes, "While the Government has succeeded in stabilizing
the value of the currency, the implementation of the structural adjustment
programme has hampered the enjoyment of economic, social and cultural
rights, in particular by the disadvantaged groups in society."128 The issue
identified here is the economic policy being undertaken by the state, spe
cifically the structural adjustment program (a subject that also arises often
enough to be given its own category in our count), but there is no reference
to a specific group, just disadvantaged groups in general.
Rights: Mexico, adopted2 Dec. 1999, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
21st Sess., 54th mtg., 1 18, U.N. Doc. E/C.12/1/Add.41 (1999).
128. Consideration of Reports Submitted by States Parties Under Articles 16 & 17 of the Cov
enant: Concluding Observations of the Committee on Economic, Social, and Cultural
Rights: Argentina, adopted 1 Dec. 1999, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 21st Sess., 52d mtg., 1 10, U.N. Doc. E/C.12/1/Add.38 (1999).

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C. Macro Observations
As stated above, the first step in this analysis was to determine the number
of times the Committee referred to vulnerable groups or human rights issues
that could make a group vulnerable. Overall, there are 863 occurrences of
the terms "vulnerable," "marginalized," and "disadvantaged" in the 135 COs
that were examined. Based on the criteria described above, this article notes
how all of these terms were linked to a group, rights fulfillment issues, or
(as was often the case) both.
The major trend identified is an increase over time in the average us
age of vulnerability language in the COs per country. In Sessions 16 and
17 in 1997 the COs averaged three occurrences of vulnerability language
per country. In Session 42 of 2009 the average is approximately four times
that number at just over twelve occurrences per country. As Figure 4 il
lustrates, despite one hiccup in the overall trend in 2005 which is mostly
attributable to the special circumstances of the reviews of China and Bosnia,
the number increased at a relatively constant rate.129 The increasing use of
vulnerability language over time might be attributable to different countries
being analyzed by the Committee on a year to year basis. Yet, it would be
difficult to say that the countries examined in Session 16 in 1997 (Azerbai
jan, the Dominican Republic, Iraq, Luxembourg, the United Kingdom, and
Uruguay) are different in any major way from those in Session 42 in 2009
(Brazil, Cyprus, United Kingdom, Australia, and Cambodia). Similarly, Figure
5 shows that when the overall number of occurrences is divided between
groups and human rights issues related to the non-fulfillment of rights, a
similar upward trend in the identification of both groups and human rights
issues is apparent, although issues appear to get more emphasis than groups
over time. The finding that the usage of vulnerability language increases over
time fits with the Committee's emphasis on such individuals and groups in
its general comments and its reporting guidelines, as pointed out in previ
ous sections of this article.
Contrary to what one might expect, the frequency of vulnerability lan
guage does not vary dramatically between countries at high, middle, and
low levels of development. Highly developed countries average roughly
five references of vulnerability language per country for all years examined
while moderately developed countries average more, but not dramatically
more, with seven occurrences of vulnerability language per country for all
years examined. Countries with low levels of development are similar to
countries with high levels of development, averaging roughly five occur
rences per county. Furthermore, of the seventeen countries garnering fifteen
2005 was a banner year for references to vulnerability when no country had zero oc
currences of vulnerability language, an event that did not occur again until 2009.

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or more references to vulnerability, seven are countries categorized as having

high levels of development while nine are categorized as having medium
levels of development and only one is categorized as having a low level of
development. The two countries with the most occurrences of vulnerability
language include Canada in 2006 and India in 2008 with twenty-eight and
thirty-two references to vulnerability respectively.130
The lack of difference in overall counts per country at varying levels of
development is surprising because it is reasonable to suspect that countries
with lower levels of development will have a greater number of vulnerable
individuals and groups. Even though the Committee does include allowances
for resource discrepancies between countries, reflecting a commitment to
progressive realization of economic, social and, cultural rights, the Com
mittee's General Comment 3131 emphasizes that vulnerable groups are to
be protected first and with all available resources. Given this point, it could
be assumed that the Committee would give greater emphasis to identify
ing groups in countries with limited resources than in countries with more
resources.
Despite the similarities in overall counts, the Committee d

vulnerability differently in countries at different levels of develo
be seen from Figures 2 and 3, in countries with high levels o
the Committee identifies vulnerable groups and human righ
equal frequency (143 for each). In countries with middle leve
ment, human rights issues are mentioned more than groups
with vulnerability language (170 versus 130). Finally, in count
levels of development the emphasis on human rights issues w
vulnerability is even greater over groups (thirty-two versus
differences shed light on the Committee's conceptualization a
of vulnerability and are discussed in greater detail below.
D. Groups
As shown in Figure 2, groups are identified more frequently in countries

with high levels of development than in countries with lower levels of de
velopment. Furthermore, groups whose membership is based on fixed social
130. The conclusion that Canada was one of the two highest occurrences of vulnerability
language was made after reading through all the concluding observations and comparing
them. Consideration of Reports Submitted by States Parties Under Articles 16 and 17
of the Covenant: Concluding Observations of the Committee on Economic, Social and
Cultural Rights: Canada, adopted 19 May 2006, U.N. ESCOR, Comm. on Econ., Soc.
& Cult. Rts., 36th Sess., 29th mtg., U.N. Doc. E/C.12/CAN/CO/4 (2006). [hereinafter
CESCR, Concluding Observations: Canada (2006)]; CESCR, Concluding Observations:
India, supra note 126.

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Figure 2. Issues vs. Groups Per Country
Time
status such as minorities, the disabled, young persons, foreigners, and the
elderly are emphasized more in countries with higher levels of development.
However, the poor and temporary workers—groups whose membership is
based on variable characteristics such as economic or social affiliation—also
receive more attention in countries with higher levels of development. Only
two groups are mentioned significantly more frequently in countries with
medium levels of development: children and refugees. Groups mentioned
equally in countries, regardless of level of development, include women,
single parents, indigenous people, farmers, and the unemployed. Minori
ties are given more attention with respect to vulnerability in countries with
high levels of development versus other countries and the specific group
mentioned the most in more developed countries in combination with vul
nerability language is the Roma population in Central, Eastern, and Southern
Europe. The primary issues facing the Roma and other travelling peoples are
inadequate access to healthcare, education, and social services, mostly due
to inadequate legal provisions along with discrimination from the communi
ties they enter. The COs issued for Spain in 2004 summarize the common
problems for the Roma: "the Roma remain in a vulnerable and marginalized
situation in the State party, especially with regard to employment, housing,
health and education."132
Rights: Spain, adopted 14 May 2004, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
32d Sess., 29th mtg., 1 9, U.N. Doc. E/C.12/1/Add.99 (2004).

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The Committee's COs on the Roma are particularly noteworthy for two
reasons: they are full of specifics with respect to the problems facing the
Roma and, unlike the COs considering the treatment of minorities in de
veloping countries, they are full of practical solutions. The COs issued for
Hungary illustrate this point when they discuss the problems of the Roma
in gaining access to education. The Committee calls for the abolition of
school segregation and cites problems with the Equal Treatment Act and
the Education Act, both of which are part of Hungarian domestic law. The
Committee also advocates for subsidy and textbook allocation programs to
ameliorate some of the problems the Roma face.133 This level of specificity
rarely occurs in COs for countries with medium levels of development, e.g.
Ukraine and Moldova.134
The Committee's greater emphasis and level of specificity regarding the
Roma in developed countries suggests that information plays a key role in
the treatment of particular groups. It is reasonable to assume that the Com
mittee has more information on the plight of the Roma in highly developed
countries than it would for most vulnerable minorities in medium level or
poor countries. This assumption is supported by the detail about the plight
of the Roma in Kosovo, a country with a medium level of development.
The Committee observed in 2008,
that 20 to 30 percent of the Roma, Ashkali and Egyptian communities are not
registered as habitual residents or lack personal documents such as birth and
marriage certificates, in the absence of civil status registration, both of which
are necessary to access employment, social security, housing, health care and
education.135
Rights: Hungary, adopted 15 May 2007, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 38th Sess., 23d-24th mtgs., It 50, U.N. Doc. E/C.12/HUN/CO/3 (2008).
Rights: Ukraine, adopted 27 Aug. 2001, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 54th mtg., U.N. Doc. E/C.12/1 Add.65 (2001); Consideration of Reports Submitted
by States Parties Under Articles 16 and 17 of the Covenant, Concluding Observations
of the Committee on Economic, Social and Cultural Rights: Ukraine, adopted 19-20
Nov. 2007, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 39th Sess., 52d-54th
mtgs., U.N. Doc. E/C.12/UKR/CO/5 (2008); Consideration of Reports Submitted by
States Parties Under Articles 16 and 17 of the Covenant: Concluding Observations of
the Committee on Economic, Social and Cultural Rights: Moldova, adopted 28 Nov.
2003, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 31st Sess., 56th mtg., f 45,
U.N. Doc. E/C.12/1/Add.91 (2003).
Covenant, Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Kosovo (UNMIK), adopted 18 Nov. 2008, U.N. ESCOR, Comm. on Econ., Soc.
& Cult. Rts., 41st Sess., 49th-50th mtgs., 1 13, U.N. Doc. E/C.12/UNK/CO/1 (2008).

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This exception highlights rather than obscures the difference between highly
developed and moderately developed countries on this matter since Kosovo
was administered by the United Nations Mission in Kosovo (UNMIK) at the
time of the report. The presence of UNMIK almost certainly increased the
amount of information available to the Committee and the UNMIK was also
likely to be more forthcoming about problems than a defensive state party.
In contrast, the COs tend to refer to minorities in countries with medium
levels of development in a more general manner. For example, in India
the Committee refers to "religious minorities" among many other groups,
with respect to constitutional provisions for non-discrimination.136 Another
example is in China, where the Committee refers even more generally to
minorities by pointing out that "minority regions" are disadvantaged with
respect to access to education.137
Persons with disabilities form another group referenced more in countries
with high levels of development. The primary problems facing persons with
disabilities in countries at all levels of development are lack of adequate social
assistance, unemployment, and discrimination. These issues are treated in a
relatively uniform way across developed and developing countries. A typical
example of a reference to the disabled and vulnerability comes from the COs
issued for the Czech Republic in 2002, where the Committee notes that it
is "concerned about the inadequacy of measures to ensure a decent life for
persons with disabilities, including the mentally ill."138 Another example from
a more highly developed country comes from the COs issued for the United
Kingdom in 2002, where people with disabilities are referenced with respect
to "de facto discrimination in relation to some marginalized and vulnerable
groups in society, especially ethnic minorities and persons with disabilities,
in various fields, including employment, housing and education."139
The greater emphasis on persons with disabilities in more developed
countries is somewhat puzzling because when they are referenced in coun
tries with lower levels of development they are treated in a similar fashion
with respect to specificity and attention. For example, in Jamaica's COs in
2001 the Committee finds that Jamaica's social security system "does not
136. CESCR, Concluding Observations: India, supra note 126, 1 13.

Rights: People's Republic of China (including Hong Kong and Macao), adopted 13 May
2005, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 34th Sess., 27th mtg., 1 37,
U.N. Doc. E/C.12/1/Add.107 (2005) [hereinafter CESCR, Concluding Observations:
China (2005)].
Rights: Czech Republic, adopted 15 May 2002, U.N. ESCOR, Comm. on Econ., Soc. &
Cult. Rts., 28th Sess., 23d mtg., 1 20, U.N. Doc. E/C.12/1/Add.76 (2002).
139. CESCR, Concluding Observations: UK (2002), supra note 118, 1 14.

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provide for universal coverage and that it excludes a considerable por

tion of the disadvantaged and marginalized groups in society, including
older persons, single parents and persons with disabilities."140 Perhaps this
is evidence of the Committee's belief that countries with higher levels of
development have the resources readily available to ensure a decent life
for persons with disabilities and therefore should take immediate action to
rectify inadequacies.
Unlike vulnerable groups whose membership is based on fixed status,
such as minorities and the disabled, the number of references to vulnerable
groups whose membership is based on a variable status tends to be similar
between countries at different levels of development. Two examples of these
types of groups, the unemployed and the poor, are mentioned a similar
number of times in countries at different levels of development. However,
despite the similar amount of attention given to these groups by the Com
mittee, the problems the Committee identifies for these groups vary across
levels of development.
Counting mention of the unemployed in the COs proved to be a more
difficult task than with other issues because the analysis had to discern
when the Committee discussed the unemployed as a vulnerable group unto
themselves or unemployment as a problem of other vulnerable groups. We
relied primarily on context to determine how to categorize the unemployed
versus unemployment. Azerbaijan's COs from 1997 provides an example
of when the Committee references the unemployed as a group where it
requests, "information on measures being taken or envisaged for the pro
tection of vulnerable groups, including children who do not have a family,
single parents, and unemployed persons."141 An example of the Commit
tee referencing the groups who are vulnerable because of unemployment
comes from a set of COs issued for the United Kingdom in 2009, where the
Committee states that it is still "concerned about the substantial number of
persons unemployed, in particular, the most disadvantaged and marginalized
individuals and groups."142
Rights: Jamaica, adopted 29 Nov. 2001, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 27th Sess., 85th mtg., 1 10, U.N. Doc. E/C.12/1/Add.7S (2001).
Rights: Azerbaijan, adopted 5 Dec. 1997, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rights: United Kingdom of Great Britain and Northern Ireland, the Crown Dependencies
and the Overseas Dependent Territories, adopted20-22 May 2009, U.N. ESCOR, Comm.
on Econ., Soc. & Cult. Rts., 42d Sess., 26th-27th mtgs., 1 20, U.N. Doc. E/C.12/GBR/
CO/5 (2009) [hereinafter CESCR, Concluding Observations: UK (2009)].

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The primary problems facing the unemployed in both developing and

developed countries come from inadequate existing social safety nets or
plans to privatize social welfare programs. For example, in Ukraine in 2008
the Committee "recommends that the State party allocate sufficient funds for
the implementation of its poverty eradication strategy . . . and specifically
address the needs of unemployed persons, women, families with children,
pensioners, the rural population, ethnic minorities and other disadvantaged
and marginalized individuals and groups."143 Another example from the COs
for Croatia in 2001 has the Committee recommending "that the State party
carefully review the probable effects of its plans to privatize portions of the
national health-care system on the most disadvantaged and marginalized
sectors of society, including, in particular, the unemployed and underem
ployed, the homeless and those living in poverty."144
The poor are mentioned sixteen times in combination with vulnerability
language almost exclusively in developing countries. Unlike the unemployed,
the Committee's approach to identifying the poor as a vulnerable group
varies from state to state. Particularly, for some states the references to the
poor tend to be relatively general, referring simply to "the poor" or "those
living in poverty,"145 while in others the Committee takes greater pains to
identify specific groups that are more likely to be poor146 or, in rare cases,
the specific policy or factors that cause poverty.147
However, these differences in specificity are neither related to the level
of development, nor have they necessarily become more specific over time
due to increased amounts of information. For example, in the COs issued
for Georgia in 2002 the Committee references the plight of poor people on
three separate occasions in conjunction with vulnerability language. (Only
India had as many references.) The first reference concerns the lack of good
pay for medical workers who then solicit additional informal payments. The
Committee notes, "A particular negative effect of such informal fees is that it
Rights: Ukraine, adopted 19-20 Nov., 2007, U.N. ESCOR, Comm. on Econ., Soc. &
Cult. Rts., 39th Sess., 52d-54th mtgs., 1 46, U.N. Doc. E/C.12/UKR/CO/5 (2008).
144. Consideration of Reports Submitted by States forties Under Articles 16 and 17 of the
Rights: Croatia, adopted 28 Nov. 2001, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 27th Sess., 83d-84th mtgs., 1 34, U.N. Doc. E/C.12/1/Add.73 (2001).
145. See, e.g., CESCR, Concluding Observations: China (2005), supra note 137, 1 78.
146. See, e.g., Consideration of Reports Submitted by States Parties Under Articles 16 and 17
of the Covenant, Concluding Observations of the Committee on Economic, Social and
Cultural Rights: Kenya, adopted 19 Nov. 2008, U.N. ESCOR, Comm. on Econ., Soc. &
Cult. Rts., 41st Sess., 51st mtg., 11 27, U.N. Doc. E/C.12/KEN/CO/1 (2008).
147. See, e.g., CESCR, Concluding Observations: Canada (1998), supra note 122, 1 19.

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puts basic health care even further beyond the reach of the poorest and most
disadvantaged groups of society."148 In the second reference the Committee
urges the State party to continue its efforts to improve the living conditions of
its population, in particular by ensuring that the infrastructure for water, en
ergy provision and heating is improved, and by paying priority attention to the
needs of the most disadvantaged and marginalized groups of society such as
. . . persons living in poverty.149
In the COs for India, the references to the poor are similarly comprehensive
where they devote paragraphs to the impact of India's Ninth and Tenth eco
nomic plans and the impact those plans had on the poor150 and on adult
literacy, as well as ways to improve the latter amongst the poor.151 Mean
while, in Cambodia, the Committee also references the poor, but does so in
a general way by calling for the extension of social safety nets to vulnerable
groups such as "poor people and households."152
Overall, the Committee tends to emphasize groups more in developed
countries than in developing countries, where the focus is more on indi
viduals as rights bearers. Moreover, in developed countries the COs focus
on particular groups, such as minorities, persons with disabilities, and the
unemployed, whereas in developing countries the emphasis is more on the
poor in general rather than on more specific groups. Additionally, the treat
ment of groups differs in some cases, particularly with respect to minorities.
The Committee uses much more detail when discussing the problems groups
face in developed countries. This probably reflects the greater information
available about the status of these groups than in countries with middle and
low levels of development. Ultimately, the emphasis on groups in developed
countries is counterbalanced by the emphasis on human rights issues in
developing countries.
E. Human Rights Issues
As indicated in Table 3, the human rights issues referenced most often include
inadequate social welfare, inadequate housing, and discrepancies in human
Rights: Georgia, adopted 29 Nov. 2002, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
149. Id. II 40.
150. CESCR, Concluding Observations: India, supra note 126, 1 28.
151. Id. 1 42.
Rights: Cambodia, adopted 20 May 2009, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 42d Sess., 26th mtg., 1 40, U.N. Doc. E/C.12/KHM/CO/1 (2009).

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rights fulfillment between urban and rural areas. The first two are identi
fied with similar frequency regardless of a country's level of development.
However, the urban/rural problem applies almost exclusively to developing
countries. Meanwhile, discrimination is referenced almost exclusively in
countries with high levels of development. It is difficult to believe that urban/
rural discrepancies and discrimination problems are limited to developing
and developed countries respectively. Instead, it can be assumed that the
Committee's treatment of these two problems reflects its focus on human
rights issues in developing countries and group issues in developed countries.
COs for states with large populations of subsistence farmers that are
also rapidly industrializing—like Mexico, India, and China—contain the
most references to the problems rural communities face when it comes to
human rights fulfillment. The primary groups affected by this issue are the
poor, and the problems associated with this issue are often lack of access
to education, healthcare, and other social services. For example, the Com
mittee notes in the COs from 2005 that rural populations are among other
groups which are not being provided access to "free compulsory primary
education.'"53 In a more generic reference in the COs for China, the Com
mittee "strongly recommends that the State party take immediate measures,
inter alia by increasing allocations, for the protection of economic, social
and cultural rights of persons living in disadvantaged areas."154
In addition, the Committee frequently references the disproportionate
benefits received by urban versus rural areas as a state undergoes economic
development. In the COs issued for India in 2008 the Committee argues,
Despite the rapid economic growth achieved under the Ninth Plan (1997-2002)
and the Tenth Plan (2002-07), high levels of poverty as well as serious food
insecurity and shortages persist in the country, disproportionately affecting the
population living in the poorer states and in rural areas, and the disadvantaged
and marginalized groups.155
This is a common refrain throughout the developing countries examined

by the Committee and often is accorded much greater specificity than the
level of detail given group oriented issues.
Discrimination is brought up often in developed countries, although
not as frequently as the urban/rural dichotomy in developing countries. The
difficulty with identifying the Committee's conceptual link between vulner
ability and discrimination is similar to the problems discussed in the previous
subsection in distinguishing between the unemployed and unemployment.
It can be difficult to tell if the Committee thinks discrimination is a cause or
an effect of vulnerability for an individual. For example, in the COs issued
for the United Kingdom in 2009,
153. CESCR, Concluding Observations: China (2005), supra note 137, f 37.
154. Id. H 59.
155. CESCR, Concluding Observations: India, supra note 126, 1i 28.

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The Committee continues to be concerned about the de facto discrimination

experienced by some of the most disadvantaged and marginalized individu
als and groups, such as ethnic minorities and persons with disabilities, in the
enjoyment of their economic, social and cultural rights, especially in the fields
of housing, employment, and education, despite the measures adopted by the
State party to enhance its legal and institutional mechanisms aimed at combat
ing discrimination.156
In this example, the Committee appears to believe that discrimination is an

effect of being a member of a vulnerable group.
A more ambiguous example, and the only instance of the Committee
thinking about discrimination in this way, appears in the COs issued for
Canada in 2006 where the Committee points out the effects of high tuition
costs and the "discriminatory impact" such fees can have on disadvantaged
and marginalized groups.157 In the same set of COs the Committee recom
mends that Canada "assess the extent to which poverty is a discrimination
issue in Canada, and ensure that measures and programmes do not have a
negative impact on the enjoyment of economic, social and cultural rights,
especially for disadvantaged and marginalized individuals and groups."158 It
is surprising that this approach linking discrimination, poverty, and vulner
ability is so rare in the COs given that the Committee has issued statements
on this exact issue.159 One reason may be the difficulty in identifying cause
and effect. In other words, it is often difficult to identify whether economic
practices make groups vulnerable or, conversely, that disadvantaged groups
are vulnerable to unfair economic practices.
F. Women
Women are the most commonly referenced group in the COs, garn
sixty references in conjunction with vulnerability language. Women a
erenced a similar number of times in countries with high, middle, an
levels of development. However, the Committee identifies different
of human rights issues in high and middle level countries. Poor acc
housing, healthcare, and safe working conditions/gainful employmen
education, along with high levels of discrimination, constitute just so
the issues and problems that make women vulnerable (and that wom
vulnerable to) according to the Committee.
156. CESCR, Concluding Observations: UK (2009), supra note 142, 1 16.

157. CESCR, Concluding Observations: Canada (2006), supra note 130, 1 31.
158. Id. 1 44.
159. CESCR, Statement on Poverty and the ICESCR, supra note 96.

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However, the Committee's approach to women is perhaps the most

confusing and difficult to assess with respect to vulnerability. It begins with
the fact, as mentioned above, that women are discussed many more times
than the sixty counted here, but most paragraphs containing references to
women do not use vulnerability language. For example, in the COs issued
for Canada in 1998 women are referenced thirteen times. Nevertheless, none
of those references are in conjunction with vulnerability language despite
the Committee discussing "vulnerable groups" in four paragraphs.160 Does
this disjunction signal that women are not vulnerable in Canada or that they
are so vulnerable that the relationship is implied or obvious and thus need
not be so identified explicitly?
The Committee often uses vulnerability language in an inconsistent way
with respect to women. This inconsistency typically takes two forms. The
first and more common treatment of women and vulnerability occurs when
the Committee identifies an issue like high unemployment and specifically
references women and vulnerable groups. For example, in the set of COs
issued for Bosnia in 2006 the Committee notes its concern "about the high
unemployment rate, in particular among youth, women, especially female
heads of households, and disadvantaged and marginalized groups such as
persons with disabilities, the Roma people and members of other ethnic
minorities."161 Here the Committee seems to make a distinction between
women, whom unemployment affects, and disadvantaged and marginalized
groups. The second and rarer way the Committee discusses the situation
of women is to describe women as vulnerable or to list vulnerable groups
and include women. For example, in the set of COs issued for Mongolia
in 2000 the Committee welcomes "the information provided by the State
party with regard to the adoption and implementation of national strategies
and policies to address the plight of various vulnerable groups, particularly
women and children.'"62 References of this type imply that women should
be counted as a vulnerable group.
For women in developed countries the most commonly identified is
sues are discrimination and lack of access to employment and safe work
conditions. The COs discuss other human rights issues in connection with
160. CESCR, Concluding Observations: Canada (1998), supra note 122, 11 10-11, 14-16,
21, 23, 28-29, 34, 41-42, 51, 53-54.
Covenant, Concluding Observation of the Committee on Economic, Social and Cul
tural Rights: Bosnia and Herzegovina, adopted 25 Nov. 2005, U.N. ESCOR, Comm.
on Econ., Soc. & Cult. Rts., 35th Sess., 58th mtg., II 14, U.N. Doc. E/C.12/BIH/CO/1
(2006) (emphasis added).
162. Consideration of Reports Submitted by States forties Under Articles 16 and 17 of the
Covenant, Concluding Observation of the Committee on Economic, Social and Cultural
Rights: Mongolia, adopted 28 Aug. 2000, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 23d (extraordinary) Sess., 49th mtg., H 6, U.N. Doc. E/C. 12/1/Add.47 (2000).

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women, such as domestic abuse and violent crime, but they are not men
tioned as often as unemployment and working conditions. Here again, the
Committee manifests an inconsistent pattern in its inclusion of women in its
list of vulnerable groups. In the set of COs issued for the United Kingdom in
2009, the Committee states, "pension entitlements do not provide the most
disadvantaged and marginalized individuals and groups, including women,
persons with disabilities and ethnic minorities, with an adequate standard
of living."163 In contrast, in its CO for Italy the Committee notes "that there
are still substantial economic and social inequalities between the northern
and southern parts of the country, which impact negatively on the situations
of women, young people, children and disadvantaged and marginalized
groups."164 Even though women are the most frequently referenced group
in the COs, women are rarely identified explicitly as vulnerable, as dem
onstrated by the examples of Canada and Italy.
G. What Has the Analysis of the COs Revealed?
Ultimately, the purpose of this analysis was to determine how the Committee
conceptualizes vulnerability and if that conceptualization has changed over
time. The Committee implicitly adopts a two pronged approach for iden
tifying vulnerability. The first is primarily focused on an individual's group
membership as based on a fixed or variable status. The second prong in the
Committee's approach to vulnerability is focused on human rights issues
that can be either a cause or effect of vulnerability and can affect different
groups in different ways. Regarding patterns in the data, an increase in the
overall usage of vulnerability language from 1997 through 2009 stands out.
As noted above, the average number of occurrences of vulnerability lan
guage per country has more than quadrupled from approximately three to
twelve. Second, the Committee emphasized individuals in groups with fixed
statuses (e.g. minorities, women, and the disabled) in developed countries
and individuals with variable statuses (e.g. the poor) in developing coun
tries. Finally, in the case of the Roma the Committee seemed to have more
information and thus that group was given much more attention than other
groups. It is difficult to determine whether this was entirely an artifact of the
availability of information or if the Committee became attuned to the plight
of the Roma due to advocacy by NGOs and then sought more information.
163. CESCR, Concluding Observations: UK (2009), supra note 142, 1 23 (emphasis added).
Rights: Italy, adopted 11 May 2000, 22d Sess., 32d mtg., U.N. ESCOR, Comm. on Econ.,
Soc. & Cult. Rts., 1 16, U.N. Doc. E/C.12/1/Add.43 (2000).

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What can explain these patterns in the Concluding Observations? Given

the different social and economic challenges that often face developed
versus developing countries, it is not that surprising that the Committee
would find and emphasize different problems in each group. However, it is
difficult to determine if the greater emphasis on groups, particularly groups
with fixed statuses, in developed countries is a function of more information
which allows the Committee to focus on the plight of specific groups or if
the Committee considers group membership less of an issue in developing
countries. Similarly, it is hard to tell if the emphasis on particular groups and
issues in both developing and developed countries is largely an outgrowth
of more NGOs with specific issue specialties, such as housing and the dis
abled, submitting reports to the Committee, some states submitting reports
with more information detailing the situation of these vulnerable groups, or
if the Committee has changed its approach to vulnerability.165 Additionally,
are the groups and issues identified in the COs becoming driven by the in
creased participation of domestic NGOs in particular countries?'66 Possible
explanations for this variance abound particularly because, as pointed out
early in this section, the membership of the Committee changes and different
members may understand vulnerability in a variety of ways. Clarification
will require additional research such as comparing the text of state party
reports and the shadow reports of NGOs with the COs.
VI. CONCLUSIONS
The introductory section of this article raised a number of issues

the CESCR's approach to identifying and protecting the vulnerab
disadvantaged. This section attempts to summarize overall findin
an analysis of the Committee's reporting guidelines, general com
statements, and concluding observations about state parties' perfor
Here it is important to note that before beginning this analysis the
ity was not discounted that there might not be any patterns whats
how the Committee dealt with vulnerability, a possibility that wou
interesting finding in its own right. The results were additionally
165. The Committee began publishing NCO sources and reports on its website in 20
can be accessed by selecting the state reports at the Committee's Sessions we
CESCR, Committee on Economic, Social and Cultural Rights—Sessions, ava
http://www2.ohchr.org/english/bodies/cescr/sessions.htm.
166. The number of NGOs and their participation with the Committee varies dra
from country to country and the NGOs are largely issue-focused. An example
can be seen in the 39lh session. See CESCR, Committee on Economic, Social an
tural Rights: 39th session (5 to 23 November 2007), available at http://www2.ohc
engl ish/bod ies/cescr/cescrs3 9. htm.

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because the membership of the Committee is not static, and changes in the
composition of the Committee could alter interpretations of vulnerability.167
In addition, the Committee's observations about vulnerability generally
came in responses to situations in countries that differ considerably from
one another. Moreover, the CESCR has not issued a general comment or
statement explicitly putting forward its views on this topic. Despite these
limitations, the goal of this section is to draw some initial conclusions about
the Committee's treatment of vulnerability.
Clearly, the topic of vulnerability is of importance to the Committee. Its
1991 reporting guidelines, which guided the work of the CESCR during most
of its existence, and its 2008 revision both seek to elicit information from state
parties on the status of vulnerable groups (although they are not necessarily
identified as such), steps being taken to address their problems, and their
degree of success. The overwhelming majority of the twenty-one general
comments the Committee drafted between 1989 and 2009 address issues
related to vulnerable, disadvantaged, or marginalized groups. Several of the
Committee's statements also consider issues related to vulnerability. A recent
statement explaining how the Committee will evaluate the obligation to take
steps to the "maximum of available resources" under the optional protocol
to the Covenant indicates, for example, that one important consideration
will be whether the steps to realize the rights enumerated in the Covenant
take into account the precarious situation of disadvantaged and marginal
ized individuals and groups and whether they prioritized grave situations or
situations of risk.168 There are 863 occurrences of vulnerability language in
the 135 concluding observations the Committee issued between 1997 and
2009. Moreover, the overall usage of vulnerability language in concluding
observations more than quadrupled, increasing from approximately three
times per country in 1997 to more than twelve times per country in 2009.
Despite the importance the CESCR accords to the subject of vulnerability,
it does not offer a clear-cut conception or definition of vulnerability or related
terminology. Nor does the Committee provide criteria for identifying which
individuals or groups qualify as vulnerable or disadvantaged in general or
in specific contexts. Neither does the Committee offer a coherent rationale
for why the human rights community should be especially concerned with
the economic, social, and cultural rights of these groups, possibly because
it thinks this is self-evident.
167. Its members are elected to four-year rotating terms and some are reelected multiple
times. Review of the Composition, Organization and Administrative Arrangements of
the Sessional Working Group of Governmental Experts on the Implementation of the
International Covenant on Economic, Social and Cultural Rights, adopted28 May 1985,
ECOSOC Res. 1985/17, U.N. ESCOR, 22d plen. mtg., 1 (c), U.N. Doc. E/RES/1985/17
(1985), available at http://ap.ohchr.Org/documents/E/ECOSOC/resolutions/E-RES-1985-17.
doc.
168. CESCR, Evaluation Under Optional Protocol, supra note 99, 1 8.

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Although the CESCR applies vulnerability terminology in relation to a

large number of groups, it fails to provide a comprehensive listing of groups
qualifying for this designation. Our analysis of concluding observations
identified nineteen groups that the Committee references more than once
and in more than one country. Although it is not labeled as such, the groups
identified in General Comment 20 on non-discrimination in economic, social,
and cultural rights are likely to approximate those whom the Committee
considers to be vulnerable.169 The text provides what are described as non
exhaustive examples of other statuses that render social groups vulnerable
and likely to suffer marginalization: disability, age, nationality, marital and
family status, gender identity and sexual orientation, health status, place of
residence, economic and social situation, sexual orientation, and gender
identity.170
Further complicating matters, the Committee does not use vulnerability
terminology consistently. It uses terms like vulnerable, most vulnerable, mar
ginalized, disadvantaged, and underprivileged without any apparent fixed
distinction between them. Sometimes these terms are used in conjunction
with each other and at other times they are not. The same group may often
be labeled differently. Recently the Committee dropped vulnerability termi
nology and substituted the terms disadvantaged and marginalized, possibly
because they are preferred by representatives of some of the communities
in this category who are increasingly present at meetings.
Problematically for the analysis of patterns and trends, the CESCR some
times deals with vulnerability as an inclusive category covering all groups
that could be so considered and in other contexts some or occasionally
all such groups are identified separately. In most general comments, for
example, the Committee refers to vulnerable and disadvantaged groups as
a category or in general terms. A few general comments, however, identify
specific groups which are at risk in relationship to the right under discussion.
Nevertheless, there are also many situations where the Committee refers to
groups that need attention from the state party without utilizing vulnerability
language. For example, women, the most commonly referenced group in the
concluding observations, are sometimes incorporated in lists of vulnerable
groups, sometimes mentioned as "women and vulnerable groups," and at
other times their problems are discussed without explicitly identifying them
as vulnerable.
Another issue the analysis seeks to assess is the manner in which
vulnerability intersects with core human rights principles, particularly non
discrimination. To put the matter another way, when is vulnerability a cause
and when it is an effect? The CESCR appears to wrestle with this issue in
169. CESCR, General Comment No. 20, supra note 53.

170. Id. 11 28-35.

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some of its concluding observations, but it is difficult to discern its thinking

on this issue. The Committee's general comment on discrimination does
not illuminate the differences or similarities between groups that are vulner
able and disadvantaged in general and those that are specifically at risk of
discrimination. Nor does it indicate whether all groups and individuals at
risk for discrimination should automatically be considered to be vulnerable
and disadvantaged. The statement on poverty observes that discrimination
may cause poverty and conversely that poverty may cause discrimination.171
The Committee tends to address vulnerability as an attribute of groups
or communities rather than individuals. In some of the most recent general
comments, however, the Committee has begun to use the terminology of
disadvantaged individuals and groups. The preference for the term disadvan
taged over vulnerable may have to do with the sense that it is less likely to
have some pejorative connotations. However, there is no apparent explana
tion for what motivated the change in formulation to include individuals
as well as groups.
On the question whether the approach of the Committee differs among
countries at different levels of development, the analysis of the conclud
ing observations indicated that the use of vulnerability language does not
vary dramatically between countries at high, middle, and low levels of
development. Highly developed countries average roughly five references
of vulnerability language per country for all years examined while medium
level developed countries average more, but not dramatically more, with
seven occurrences of vulnerability language per country for all years ex
amined. Countries with low levels of development are similar to countries
with high levels of development averaging roughly five occurrences per
country. The relatively even pattern among countries at different levels of
development likely reflects the relative availability of information. Although
the problems suffered by disadvantaged groups are likely to be more severe
in poor countries, more information is generally submitted to the Committee
by NGOs and international organizations about high and middle income
countries. It might also be that members of the CESCR assume that the dif
ficulties characterizing specific groups in high and middle income countries
are widely shared by the population in poor countries. However, additional
research will be needed to verify whether these hypotheses account for
the pattern. It would be helpful, for example, to check on the data sources
coming into the Committee, particularly reports and correspondence from
nongovernmental organizations.
Nevertheless, there are some differences in the Committee's approach
to vulnerability in countries at higher and lower levels of development.
171. CESCR, Statement on Poverty and the ICESCR, supra note 96, 1 11.

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Specific groups are identified more frequently in countries with high levels
of development than in countries with middle and low levels of develop
ment. The Committee generally uses vulnerability as an inclusive or general
concept in its analysis of the performance of poor countries, but as a more
specific concept in other countries. Both groups with a "fixed" member
ship, such as minorities, the disabled and the elderly, and groups whose
membership is based on a potentially "variable" economic or social affilia
tion, such as the unemployed, the poor, and temporary workers, are given
more attention in countries with higher levels of development. Only the
poor are identified more frequently in concluding comments assessing the
situation in specific developing countries, as might be expected given the
greater prevalence of poverty in those countries. Women and children are
mentioned often in countries at all levels of development. That the CESCR
is more likely to identify specific groups in countries at high and middle
levels of development may be an artifact of the greater availability of dis
aggregated and detailed information, but additional research is needed to
ascertain whether this is the case.
The issues that the Committee brings up on a relatively regular basis in
conjunction with its concern with vulnerability also differ somewhat depend
ing on a country's level of development. Overall, the human rights issues
referenced with vulnerability most often are shortfalls in the provision of
social welfare, inadequate housing, and urban/rural discrepancies. The first
two are identified with similar frequency across levels of development. In
contrast, the urban/rural dichotomy applies almost exclusively to countries
with low levels of development, possibly because this discrepancy tends to
be more common there.
Despite the Committee's obvious concern with protecting and improv
ing the status of the vulnerable and disadvantaged, it is often vague as to
what that entails. The general comments put forward three types of general
obligations: the need to monitor the status of vulnerable and disadvantaged
groups, to protect their basic social and economic rights even in periods
of austerity or stringency, and to accord them priority in the realization of
rights. While a few of the general comments suggest specific policy mea
sures state parties should undertake in relation to the right being addressed,
they tend to be very narrow measures that are unlikely to alleviate the
comprehensive problems of vulnerable communities. Several general com
ments do call for the development of a plan to improve vulnerable groups'
enjoyment of specific rights, but they leave its content to state parties to
determine. With some exceptions, the concluding observations are similarly
lacking in concrete proposals to correct problems confronting vulnerable
and disadvantaged groups.
One point deserving emphasis is the need for future research to better
understand the Committee's perspective on vulnerability. Such research will

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require a methodology different than the one used here, which focused on
explicit references to the vulnerable and disadvantaged. Given the CESCR's
inconsistency in explicitly identifying specific groups as vulnerable, future
research would best study how the Committee approaches issues that af
fect all of the groups it targets for special attention. At the least this will
show whether there are meaningful patterns in whether specific groups are
explicitly referred to as vulnerable.
Future research will face several analytical challenges. The first chal
lenge will be identifying when vulnerability is a cause and when it is an
effect, e.g., whether group membership makes one vulnerable or whether
vulnerability results from non-realization or violation of a human right. This
problem, which figured most prominently in the discussion concerning
women, is something with which the Committee is clearly wrestling. Are
women always inherently vulnerable by virtue of their gender or are they
made vulnerable or increasingly vulnerable by factors relating to the situa
tion in which they are living? Our expectation is that it is a combination of
both, but our analysis of the Committee makes it difficult to discern which
way the causal arrow points in different circumstances.
Another related problem needing additional research is the link between
discrimination and vulnerability. Discrimination is clearly something that
can be a cause of vulnerability and also an effect of vulnerability. Dis
crimination often resembles a snowball rolling down a hill: as a group is
discriminated against, they become more "disadvantaged or marginalized,"
to use the Committee's terminology, and thus can be more susceptible to
further discrimination. It will be helpful to clarify the Committee's thinking
about this issue as well.
The additional problem of using vulnerability as a residual category
remains. Often the Committee does not use terms like "most vulnerable
groups" in a specific way and instead tacks them on to the end of lists of
groups that are affected negatively by a particular circumstance. As noted in
the examples cited above concerning the Committee's analysis of women,
sometimes the CESCR lists "women and other disadvantaged groups" while
at other times referring to "women and disadvantaged groups," and at still
other times discussing women without using vulnerability terminology at
all. It is difficult to interpret what this means. It may simply reflect drafting
idiosyncrasies or it may result from other factors. Additional research that
looks at all of the Committee's references to women and not just those in
proximity to vulnerability terminology may clarify the CESCR's thinking. If
it does not, then there would be more reason to conclude that these differ
ences are not significant.
Finally, given the importance of vulnerability to the CESCR, it would
seem appropriate for the Committee to address vulnerability in a more
conceptually robust and integrated fashion. It would also be helpful for the

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Committee to put forward its views in a more explicit way about what a
human rights approach to the issue of vulnerability entails. It could do so
most effectively through issuing a general comment or a statement on the
topic. Hopefully the Committee will do so in the near future.
APPENDIX: CODE BOOK FOR VULNERABILITY COUNTS
As noted in the paper, counting the number of occurrences of vulnerabil

language in the Concluding Observations issued by the Committee, and t
number of times vulnerability language was used to describe a particu
group or issue, was a difficult undertaking for several reasons. First, the que
tions presented made the task difficult. The analysis sought to discover what
groups the Committee identified as vulnerable and what criteria the Com
mittee used to identify those groups. Attempting to answer these questio
meant that not only the groups, but also the causes of their vulnerability ha
to be counted. It was therefore determined to count the number of grou
and the number of human rights issues the Committee mentioned as v
nerable or as a cause of vulnerability, and how often they were mention
Second, the task was made difficult by the inconsistent way the Commit
referred to groups, even within the same report, sometimes as vulnerab
sometimes not. In addition, the Committee was often not explicit in linki
causes of vulnerability (e.g. human rights issues) with groups.
Undertaking such a count, particularly given the sheer number of r
ports to analyze, made it necessary to discipline this analysis by determ
ing when exactly the Committee referred to a group as vulnerable or
issue as causing vulnerability respectively. Specific search terms were th
developed that included any mention of vulnerability, vulnerable, disadv
tage, disadvantaged, marginal or marginalized—collectively referred to
vulnerability language. Any occurrence of these terms triggered a count
the groups or issues mentioned in the same paragraph, under the assum
tion that the Committee considered these groups vulnerable, and consider
the human rights issues a cause of vulnerability. This "paragraph rule" w
used to minimize the need to interpret or guess at the Committee's proc
for identifying a group or issue as associated with vulnerability. This w
a key component to the count because it would otherwise have been ver
difficult and time consuming to determine when a group mentioned man
different times within different Concluding Observations was considere
vulnerable. The level of interpretation required without the paragraph r
would have made conducting such a count almost entirely idiosyncratic
the researcher and since the goal was to create a replicable coding schem
a reliable method had to be settled upon.

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Furthermore, developing the categories of vulnerability was difficult

because the Committee often refers to many groups or issues in a specific
context related to a particular country in particular circumstances. Because
one of the goals was to assess broad trends while not sacrificing nuance and
detail, the number of categories of groups and issues counted was minimized
by developing a codebook that combined groups and issues considered
similar. In addition, specific groups mentioned in only one country were
included in larger categories. For example, any references to lack of water,
food, sanitation, or participation in cultural life were called "basic needs;"
any reference to a tribe or native population, such as the Maori in New
Zealand was considered "indigenous people." That being said, thirty-seven
categories (seventeen issues and twenty groups) were still identified. A list of
general guidelines for coding and a description of each category and what
terms were included in each category follows.
Search Terms: Any Occurrence of one or more of the following: vulnerable

(groups, sectors) vulnerability, disadvantage, disadvantaged, marginalized,
or marginalization.
Guidelines: In addition to considering the above when assigning an oc

currence of vulnerability language a category (i.e. issue or group), several
other rules applied.
1) Be sure the vulnerability language occurs in the same paragraph as
the issue or group to which it is assigned.
2) Be sure that the vulnerability language is used in conjunction with

the issue or group to which it is assigned. If it appears it is unrelated,
do not count it.
3) Do not count generic requests for future information, which are in

cluded in many COs. In other words, if the Committee simply asks
for the state party to "include in its next report data disaggregated
by gender, minority, and region," do not count this as a mention of
"women, minorities, and urban rural" because the Committee asks this
of many countries regardless of whether these issues are pertinent. If
the Committee identifies a specific issue or policy and then requests
information on specific groups in conjunction with vulnerability
language, however, do count it.
4) Categories are not mutually exclusive and should not be treated as

such. Therefore, if a mention of vulnerability language references
several categories, add a tally for each of the appropriate categories
until germane categories are exhausted. For example, if the Commit
tee references minority women specifically count a reference for both

8.9.36.176 on Mon, 20 Jun 2022 01:51:09 UTC
minorities and women. The same rule applies to issues. For example,
if a legal institution is considered both inadequate and discriminatory
by the Committee, count it as an occurrence of discrimination and
inadequate legal/democratic institutions.
Issues:
Healthcare: Include any reference having to do with inadequate or unequal

healthcare for a group or in general. Germane references could include:
health services, medical services, vaccinations, maternity treatment, pre-natal
care, or treatment in general.
Education: Include any reference to inadequate or unequal access to educa
tion for any segment of the population or in general. Germane references
include: educational services, literacy, secondary education, primary educa
tion, or high dropout rates.
Urban/Rural: Include any reference to one's physical location as a cause of
vulnerability. Germane references include: discrepancies or unequal resources
and services for either urban dwellers or rural dwellers, or any reference to
discrepancies between different regions within a country.
Poverty: Include any reference to lack of wealth as a cause of vulnerability.
Germane references include: poverty, declining standard of living, inadequate
standard of living, and economic marginalization. Do not confuse this issue
with the "poor," who are treated as a group.
HIV/AIDS: Include any reference toHIV/AIDs as a cause of vulnerability.
Sex work: Includes any reference to sex work as a cause of vulnerability.
Germane references include: sex work, trafficking for sex work, child sex
work, or prostitution.
Discrimination: Include any reference to discrimination as a cause of vulner
ability. Germane references include: discrimination, discriminatory practices,
or discriminatory effects.
International Financial Institutions: Include any reference to international
financial institutions, international financial treaties, or sanctions and embar
gos as a cause of vulnerability. Germane references include: any reference to
the need to keep the ICESCR in mind during negotiations with international
lending agencies, any treaty such as NAFTA, or sanctions and embargos
such as those in place against Iraq in the 1990s.
Structural Adjustment: Include any reference to structural adjustment, priva
tization, or economic reform as a cause of vulnerability. Additional germane
references include: dramatic reduction in social services, economic crises,
or sudden restructuring.
Inadequate Social Welfare: Include any reference having to do with inad
equate resources being applied to social welfare as a cause of vulnerability.
Germane references include: inadequate resource appropriations, inadequate
social protection, unequal distribution of goods, any reference to a policy
decision to cut funding, or social welfare that has a negative impact on groups.

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Legal/Democratic Institutions: Include any reference to a lack of adequate

institutions such as courts or bureaucracies as a cause of vulnerability. Ger
mane references include: inadequate or unfair legal services, inadequate
or unfair adjudication mechanisms, and inadequate or unfair human rights
enforcement mechanisms. Additionally, this category includes any call by
the Committee, in general or specific terms, for constitutional reform or
creation of any institutions or laws to combat a human rights issue related
to vulnerability.
Housing: Include any reference to inadequate housing or homelessness as
a cause of vulnerability. Germane references include: shortage of housing,
forced evictions, unfair evictions, unequal access to housing, and calls for
affordable housing. Homelessness is also included if it is used as a descrip
tor of a problem. Do not confuse this issue with the "homeless," who are
treated as a group.
Workplace issues: Include any reference to workplace issues as a cause of
vulnerability. Germane references include: unsafe work conditions, hazardous
work conditions, discrimination in the workplace, unequal compensation,
or references to an informal sector workplace or informal sector labor as
dangerous or disadvantaged for groups.
Basic Needs: Include any reference to necessities or conditions required for
basic survival and health. These include: water, food, sanitation, a clean
environment, and cultural life. Germane references also include: hunger,
starvation, polluted water sources, or pollution in general.
Violence Against Women: Include any reference to violence or violent acts
committed against women as a cause of vulnerability. Germane references
include: any general references to violence against women or any crimes
usually committed against women such as rape, domestic violence or abuse,
or genital mutilation.
Unemployment: Include any reference to unemployment or lack of access
to work as a cause of vulnerability. Do not confuse this issue with the "un
employed," who are treated as a group.
Personal Safety: Includes any reference to crime or self inflicted damage
as a cause of vulnerability. Germane references include: high crime rates,
crime generally, or high suicide rates.
Groups:
Women: Include any reference to women, girls, females, young girls, or
prostitutes.
Children: Include any reference to children.
The Poor: Include any reference to the poor as a vulnerable group. Germane
references include: the lowest income groups, economically marginalized
groups, economically disadvantaged groups, or those living in poverty.

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Race/Minority: Include any reference to minorities generally or minority

groups specifically. Minority status can be based on ethnicity, race or religion.
This category includes specifically identified minorities like Palestinians.
Indigenous Peoples: Include any reference to indigenous people generally or
a specific group which could be considered indigenous, such as the Maori
people in New Zealand or the aborigines in Australia.
Single parents: Include any reference to single parents or single mothers.
Single mothers are not included in women's category because it is not ex
plicitly their sex that makes them vulnerable.
Unemployed: Include any reference to the unemployed as a group. Do
not confuse this group with the issue of "unemployment" as a cause of
vulnerability.
Disabilities: Include any reference to people with a physical impairment
as vulnerable. Germane references include: the disabled, persons with dis
abilities, the mentally ill, or the mentally disabled.
Young Persons: Include any reference to young people, adolescents, young
persons, and students.
The Elderly: Include any reference to the elderly, older persons, or pensioners.
Temporary Workers: Include any reference to temporary workers, seasonal
workers, contract workers, migrant workers, and informal workers.
Traveling Peoples: Include any reference to travelling peoples generally or
the Roma.
Homeless: Includes any reference to the homeless as a group. Germane
references include: the homeless, street people, squatters, people living in
shanty villages, and people living on the street.
Foreigners/Immigrants: Include any reference to foreigners or immigrants.
Also include references to those who speak different languages as being
vulnerable.
Refugees/Displaced Persons: Include any reference to refugees or displaced
persons.
Mothers: Include any reference to mothers who are vulnerable by virtue of
their motherhood or pregnancy. Do not include children who are vulnerable
due to their mothers being absent (counted as children) and single mothers
(counted as single parents).
Farmers: Include any reference to farmers, people in agriculture, peasants,
or herders.
Prisoners: Include any reference to prisoners or detainees.
Domestic workers: Include any reference to household workers or domestic
workers.

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Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions

of the UN Committee on Economic, Social and Cultural Rights

Stable URL: https://www.jstor.org/stable/23015998

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Human Rights Protections for

Audrey R. Chapman* & Benjamin Carbonetti**

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more vulnerable and disadvantaged, and ascertain which individuals or groups

• The traditional human rights paradigm vests human rights in individuals.

• Who or which groups does the Committee identify as being vulnerable? To

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II. VULNERABILITY IN THE CESCR'S REPORTING GUIDELINES

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The guidelines attest to the Committee's concern with vulnerable and

16. 7 99 7 Guidelines, supra note 14, at 11, 11 (a).

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or disadvantaged groups and for worse-off areas,29 significant differences

29. Id. at 12. 1 2 (c).

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the curious change in terminology to the presence of representatives of some

III. TREATMENT OF VULNERABLE, DISADVANTAGED, AND

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address some issues related to vulnerable, disadvantaged, or marginalized

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The Committee reiterates the need to provide detailed information and

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social, and cultural rights places an obligation on state parties to ensure

65. CESCR, General Comment No. 8, supra note 61, HI 4, 8, 15.

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with disabilities, instructs governments to take positive action to ensure

74. CESCR, General Comment No. 5, supra note 46, 1 9.

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conditions that perpetuate discrimination. According to the Committee, such

The principles of equality and non-discrimination, by themselves, are not

As these examples demonstrate, the CESCR advocates that temporary special

IV. INTERPRETATION OF VULNERABILITY AND RELATED ISSUES IN

In addition to its general comments, the CESCR periodically issues state

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Organization in 1999,95 and the Third United Nations Conference on the

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should be accorded to methods to protect the poor and the vulnerable in

V. Vulnerability in the CESCR's Concluding Observations on Country

One of the Committee's most important functions is analyzing state parties'

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vulnerable and how the Committee relates its treatment of vulnerability to

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Table 1. Country Classification by Level of Development

Argentina Lichtenstein Albania Libya** Angola

*Level is determined by HDI of country during year CO is issued.

comparable with high level and middle level countries. Nevertheless, it

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