The Committee on Economic, Social and Cultural Rights is in the process of drafting a new General Comment on the application of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in situations of armed conflict. This is a topic much in need of clarification. Although it is now well established that human rights treaties continue to apply in armed conflict, the implications of that proposition for the ICESCR are often obscured by broad claims about the supposedly special role of international humanitarian law or the limited scope for extraterritoriality of Covenant obligations.Â
The Committee sought input from relevant stakeholders, and alongside Just Security's recent publication of 2020-26 U.N. Special rapporteur on the right to adequate housing Balakrishnan Rajagopal's submission to the Committee, we set out our submission to the Committee below.
Writing as international legal scholars whose work includes the law of armed conflict, we seek to assist the Committee by setting out clearly the correct methodology for approaching the question of the Covenant's application and interpretation during armed conflict. We begin the analysis by reference to the now well-established proposition that “[t]he existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties.†In the absence of a derogation clause, and without any indication in the Covenant's text, context, or object and purpose that its application is abrogated during war, the default position is one of continuity. The Covenant therefore continues to apply during armed conflict, occupation and post-conflict settings.
That conclusion, however, does not mean that armed conflict is legally irrelevant to the Covenant. Rather, we argue that its relevance should be approached carefully and through ordinary principles of general international law. Armed conflict may matter in at least three distinct ways. First, it may affect the territorial or extraterritorial scope of a State's Covenant obligations, including where a State exercises control over territory or persons abroad (Part II of our submission). Second, the factual circumstances that constitute an armed conflict may affect the operation of particular Covenant rights, including questions of resources, capacity and lawful limitations under Article 4 ICESCR (Part III of our submission). Third, in some circumstances, international humanitarian law may inform the interpretation of Covenant rights, but only where the relevant IHL rule genuinely concerns the same subject matter and can thus properly be brought into the interpretive exercise (in accordance, for example, with Art 31(3)(c) of the Vienna Convention on the Law of Treaties) (Part IV of our submission).
We caution, therefore, against broad claims of IHL as lex specialis, which have served to obfuscate rather than clarify the relationship between distinct legal rules in armed conflict. In many cases, IHL and the ICESCR will simply apply alongside one another, without any need to consider the relationship between the two. In other cases, the Covenant may add important protection precisely because it addresses forms of systemic or cumulative harm that are not adequately captured by the attack-specific, ex ante rules of IHL. For example, even where individual attacks are considered lawful under IHL, the cumulative destruction of housing, schools, healthcare facilities, food and water supplies, or cultural life may still raise distinct questions under the ICESCR.
The forthcoming General Comment offers the Committee an important opportunity to bring clarity to this area. In our view, that clarity should begin from the proposition that the ICESCR has an independent and additional protective function in armed conflict. The task is not to ask whether the ICESCR applies in armed conflict. It does. The task is to articulate a principled methodology for understanding how particular Covenant obligations apply.
We submitted the following observations in response to the Committee's call for inputs.
FEATURED IMAGE: Residents walk through the massive rubble surrounding Al-Zeitoun Preparatory School “G” after the overnight Israeli airstrikes in Gaza City on June 29, 2025. (Photo by HAMZA QRAIQEA/Middle East Images/AFP via Getty Images)
