Reasserting the Right to Adequate Clothing in International Human Rights Law Open Access

Abstract

Through examining the practice of the United Nation’s Committee on Economic, Social, and Cultural Rights, this article reasserts the ‘forgotten’ right to adequate clothing as a distinct right deriving from Article 11 (1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). In doing so, this article traces and explains how the right to adequate clothing has ceased to feature in reporting and monitoring under the ICESCR. The right to adequate clothing must be reasserted for three reasons. Firstly, an accurate interpretation of the ICESCR requires its recognition as a distinct right. Secondly, it is the only human right that can effectively respond to the specific harms stemming from inadequate clothing. Thirdly, clothing is a prerequisite for the enjoyment of human rights generally. Consequently, the right must be reintegrated into the ICESCR’s reporting guidelines to allow effective monitoring and to engender the institutional development of this right.

‘I was naked and you clothed me’

Matthew 25:36

1. INTRODUCTION

The place of a right to adequate clothing within international human rights law is not clear. This is partly because no provision of international human rights law explicitly enshrines the right to adequate clothing as a distinct right. Consequently, a conceptual challenge to the existence of a right to adequate clothing is that no such right can be supported by the text of the provisions. The existence of such a right is further undermined by the limited engagement with the right to adequate clothing by the United Nations Committee on Economic, Social, and Cultural Rights (CESCR) and the scholarly human rights community.¹ Yet, clothing is listed in a range of international instruments as part of the provisions relating to the right to an adequate standard of living.² It is from this basis that some scholars have engaged with the right and in doing so suggested that a now-forgotten right to adequate clothing does exist.³

This article explicitly reasserts the existence of a distinct right to adequate clothing as deriving from Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which states that ‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’.⁴ It begins by reaffirming that Article 11 (1) ICESCR enshrines rights to its constituent parts. As such, the right to adequate clothing can be grounded in Article 11 (1) ICESCR. In doing so, the study traces and explains how the right to adequate clothing has ceased to feature in the practice of the UN Committee on Economic, Social and Cultural Rights (CESCR) and then goes on to argue that this oversight must be redressed. The right to adequate clothing must be reasserted as a distinct right for three key reasons. Firstly, an accurate interpretation of the ICESCR requires the recognition of a distinct right to adequate clothing. Secondly, there is a need for a distinct right through which to address the specific harms that stem from inadequate clothing. Thirdly, because of the instrumental value of clothing in the realization of many other human rights, clothing is a prerequisite for the enjoyment of human rights generally. Based upon this exploration of the CESCR’s engagement with clothing, several indicators of clothing adequacy are suggested. Currently, the content of the right to adequate clothing is not clear and, as such, these markers can serve as a starting point from which to begin to bring clarity to this right. The penultimate section, before the conclusion, makes recommendations aimed at redressing the marginalization of the right to adequate clothing. It is argued that the ICESCR reporting guidelines must be updated to include specific guidelines on the right to adequate clothing. This will encourage reporting on, and monitoring of, the right to adequate clothing, which will assess the ‘need’ to reassert this right. Crucially, this will allow for the right to adequate clothing to be developed institutionally by the CESCR. This institutional development will bring much-needed clarity to the right to adequate clothing, thus contributing to the better realization of human rights generally.

2. A DISTINCT RIGHT TO ADEQUATE CLOTHING

This article focuses on the CESCR’s engagement with clothing. Established in 1985 under ECOSOC Resolution 1985/17, the CESCR is the body responsible for monitoring the economic, social and cultural rights protected under the ICESCR.⁵ There is very limited engagement with the right to adequate clothing by the CESCR, and there has been a complete lack of engagement with this right since 1994. This inattention has been recognized by two seminal volumes examining the ICESCR. In 1995, in a volume examining the development of the ICESCR, Craven observed that both CESCR and academic commentators had given the right to adequate clothing little attention.⁶ More recently, in a 2014 commentary of the ICESCR, Saul, Mowbray and Kinley echoed Craven’s sentiments concerning the CESCR’s engagement with the right in its concluding observations.⁷ A review of the five key types of documents that capture the CESCR’s practice—annual reports,⁸ concluding observations,⁹ General Comments,¹⁰ statements,¹¹ and jurisprudence¹²—makes clear that the CESCR has rarely referred to the right to adequate clothing. The CESCR has frequently cited Article 11 (1) in its entirety.¹³ However, beyond the inclusion of the right to adequate clothing within the citation of the full provision of Article 11 (1), the CESCR has only rarely referred to the right to adequate clothing explicitly. The CESCR has not substantively engaged with the concept of ‘the right to adequate clothing’ since the 1990s. Between 1988 and 1994, there was a period in which the CESCR regularly and explicitly referred to the right to adequate clothing within its mandate. Clothing was only brought up in the early sessions of the CESCR, and it has been suggested that this could be because ‘the committee was itself trying to work out what the content and meaning of the right might be in practice’.¹⁴

Except for the CESCR’s explicit engagement with the right to adequate clothing in its fifth General Comment on Persons with Disabilities (1994), any explicit mention of the right to adequate clothing within the CESCR’s work has been to request information from state parties concerning the implementation of the right to adequate clothing.¹⁵ These requests for information occurred between 1988 and 1991. In the report on the second session (1988), the CESCR sought information from states concerning the implementation of the right to adequate clothing. Such information was sought from Mongolia and also Bulgaria.¹⁶ This notion of asking questions regarding, and seeking further information relating to, the right to adequate clothing was also a feature of the report on the third session (1989). Such information was requested from Tunisia.¹⁷ Similarly of Trinidad and Tobago, the CESCR ‘asked what measures had been taken or planned to ensure the full implementation of the rights of everyone to adequate food and adequate clothing’.¹⁸ In the fourth session, the CESCR ‘asked what the situation was with regard to the right to clothing in Mexico’¹⁹ and received the response that ‘among its other activities, the National Company for the Supply of Popular Necessities sold clothing at reduced prices to very low-income and marginal groups’.²⁰ Concerning Colombia, ‘Members of the Committee wished to know … what policy had been followed to guarantee the right to clothing’.²¹ This pattern continued in the sixth session (1991) where, more specifically and concerning Panama, the CESCR expressed a wish to

receive information on the principal laws, regulations and collective agreements designed to promote the right to adequate clothing; on the measures and specific programmes undertaken to improve the methods of production and distribution of articles of clothing; and on the extent to which the Government had participated in international cooperation contributing to the promotion of this right.²²

In response to this, Panama highlighted public–private partnerships from which needy school children benefitted from uniforms and shoes.²³ This information seeking demonstrates both that the CESCR regarded the right to clothing as a distinct right and that so too did the states that responded to these requests for information. This suggests that those states that have been encouraged to supply information regarding the right to adequate clothing have not rejected the existence of this right and indicates that states will report on the right to adequate clothing when reporting mechanisms encourage them to do so. This illustrates the role of reporting guidelines in raising the consciousness of states as to their human rights obligations.

Not only this but also these state responses demonstrate several ways in which states have previously contributed to the realization of the right to adequate clothing. This is important as it has been suggested that one reason for the right to adequate clothing ceasing to feature in the CESCR’s practice is ‘the impression given [from the CESCR’s engagement with clothing] is that clothing is not a matter in which the state may exercise a great deal of control’.²⁴ The, albeit limited, state practice to date shows a variety of ways in which states can exercise control over clothing. Thus, it cannot be argued that the right to clothing cannot be reasserted because states are not able to implement this right. This is especially so when the CESCR’s consideration of the relationship between remuneration under the right to work, the right to social security and clothing is considered. Addressing the Byelorussian Soviet Socialist Republic—and on the topic of subsidies paid for children’s clothing—the CESCR stated that ‘it would be more rational to pay allowances to families with children than give enterprises subsidies’.²⁵ This indicates that the CESCR prefers that clothing is accessed through a non-subsidized (ordinary) market rather than through a subsidized market. Clearly, there is much that states can do to ensure the realization of the right to adequate clothing. The application of the tri-partite typology of obligations to personal protective equipment through the lens of the right to adequate clothing illustrates that the right to adequate clothing goes beyond merely the provision of clothing.²⁶ Thus, states can exercise a great deal of control over clothing.

As is clear, the CESCR’s practice and engagement with clothing are limited to a distinct period in time. As such, the right to adequate clothing has not benefitted from the same institutional development as other Article 11 (1) rights and unlike the other rights that are enshrined in Article 11 (1) of the ICESCR, ‘the right to clothing does not have its own UN agency, nor has it benefited from the work of a specific Special Rapporteur or a specific General Comment’.²⁷ This could be used to suggest that the practice of the CESCR does not support the recognition of a distinct right to adequate clothing. To refute this challenge, it must first be explained why the right to adequate clothing ceased to form a part of reporting and monitoring under the ICESCR. The CESCR’s engagement with the right to adequate clothing exists primarily because during this period the CESCR had integrated the right into its mandate. The right to adequate clothing was explicitly contained in the original reporting guidelines used by the CESCR. Specifically, the guidelines indicated that

‘Information concerning the right to adequate clothing could include:

• (a) The principal laws, administrative regulations and collective agreements designed to promote the right to adequate clothing;

• (b) Measures taken, including specific programmes, to improve the methods of production and distribution of articles of clothing;

• (c) Scientific and technical methods used to achieve an adequate supply of articles of clothing;

• (d) The extent of participation in international co-operation contributing to the promotion of the right to adequate clothing’.²⁸

This integration ceased after 1991 when the CESCR replaced its general guidelines for state reporting.²⁹ The Revised General Guidelines (1991) were introduced ‘in response to the recent introduction of an entirely new reporting cycle and in the light of various perceived inadequacies in the approach reflected in the original guidelines’.³⁰ It must also be noted that at that time there existed issues both with the quality of state reports and there also existed ‘skepticism as to the viability of reporting systems in general’.³¹ Writing in 1987, Alston highlighted that ‘The exact nature of the reports required is thus not spelled out with any great clarity’ and that ‘experience to date confirms the view that states parties have been given enormous, if not quite total, discretion to determine for themselves the type of reports they will submit’.³² In its second session, the CESCR highlighted the need to revise and simplify the guidelines and determined that the issue would ‘be taken up by a sessional working group to be established at its third session’.³³ As two members of the CESCR observed at the time, ‘it was decided that the Committee would undertake, at its third session, a concerted effort to revise and simplify the guidelines that are provided to assist states in determining what information should be provided’.³⁴ At the third session, the CESCR ‘briefly discussed a “draft proposal for revised Guidelines”’ and tasked the chair of the working group, Bruno Simma, to present a revised final draft at the fourth session.³⁵ At the fourth session, ‘after a wide-ranging discussion by the Committee on the basis of the revised draft, it was agreed that Mr Simma had done an excellent job but that some further revisions were desirable’.³⁶ Thus, a final revised draft was submitted to the CECSR’s fifth session, which ‘after lengthy discussion adopted the general guidelines as revised in the course of the session’.³⁷ As is clear, the revised guidelines were the product of the work of several sessions.

The view at the time was that the new guidelines listed detailed questions ‘under each right’ and delineated ‘the practical aspects of each of the rights found in the Covenant’.³⁸ This is inaccurate. The right to adequate clothing was omitted from these guidelines despite being previously included. The Article 11 (1) section of these Revised Guidelines contains sub-sections on living standards, the right to adequate food and the right to adequate housing. Clothing, which sits between food and housing in the text of the provision, was notably excluded here.³⁹ This is an especially notable omission as during that period, the CESCR had focused its days of general discussion towards the rights contained in Article 11 of the ICESCR. It is surprising, therefore, that one of the rights contained in Article 11 was excluded in this way. This could be explained in that the focus was elsewhere as ‘at its third session the principal emphasis was on the right to adequate food, while the right to housing was the main emphasis at the fourth session’.⁴⁰ There is no record in the reports of these sessions as to why the right to clothing was omitted. It appears that the right to adequate clothing was overlooked. A rationale behind the revision was ‘to ensure that the issues of principal concern to it [the CESCR] are dealt with in a methodical and informative manner’.⁴¹ This may suggest that the right to adequate clothing was not of principal concern to the CESCR during that period and Craven’s suggestion, that the CESCR’s practice may suggest that the CESCR did not feel that clothing is of great importance, supports this.⁴² So does the recognition that the CESCR’s focus was on the right to adequate food and the right to adequate housing.⁴³ However, as this article will demonstrate, clothing is of great importance to human beings and the realization of human rights generally.⁴⁴ As such, if the CESCR’s alleged—and plainly inaccurate—view that clothing is not of great importance is the reason why the CESCR has ceased to engage with the right to adequate clothing, this does not justify neglecting the right.

Another factor that could explain the omission of the right to adequate clothing is that ‘whereas the old guidelines for the right to housing contained six short questions, the new set involves nearly three pages of specific queries, on both legislative and de facto aspects’. ⁴⁵ This increased level of detail led to some criticisms of the revised guidelines as being too lengthy during the adoption process.⁴⁶ Thus, increased detail on the right to housing, which was a focus for the CESCR at the time, may well have come at the expense of the inclusion of the right to adequate clothing. It is not at all clear whether the right to adequate clothing has been deliberately excluded from these mechanisms or whether there is another explanation. If the CESCR has consciously elected to marginalize the right to adequate clothing, it ought not to have done so. However, even if this marginalization has been deliberate, this should not undermine the existence of the right. To allow it to do so would set a dangerous precedent: one that may allow a right to cease to exist simply because a UN Treaty Body or States have ceased to engage with it.

There is also a more plausible explanation than deliberate exclusion. The right to adequate clothing has been accidentally overlooked because housing and food were the focus of the CESCR when it drafted its 1991 reporting guidelines. This resulted in a lack of monitoring of the right, which in turn caused the right to be further marginalized. This is because in adopting these guidelines, the CESCR ‘strongly’ urged ‘all States parties to report to it in accordance with the guidelines to the greatest extent possible’. ⁴⁷ This was not remedied by the updated guidelines of 2008, which again exclude the right to adequate clothing, with the Article 11 section of the 2008 guidelines referring to the right to continuous improvement of living conditions,⁴⁸ the right to adequate food, the right to water and the right to adequate housing.⁴⁹ As Graham has observed,

The effect of the lack of attention given to the right to clothing is circular. The content of the right is unclear and as such right to clothing claims are not made. Right to clothing claims are not made and as such, there is no perceived need to clarify the content of the right.⁵⁰

This circularity may be the cause of the continued failure to engage with the right to adequate clothing, which belies the supposedly equal place of the right to adequate clothing ‘within the context of securing an adequate standard of living under Article 11’. ⁵¹ This circularity may explain also why the CESCR has failed to engage with the right to adequate clothing despite, as the following section makes clear, the many opportunities it has had to do so. The initial exclusion of the right to adequate clothing from the 1991 reporting guidelines led to a halt in state reporting on the right to adequate clothing; this lack of reporting meant that issues related to clothing were marginalized or subsumed into engagement with other rights. This meant that there was no perceived need to develop the right. This lack of development further marginalized the right.

Article 11 (1) of the ICESCR lists clothing as being included within the broader right to an adequate standard of living.⁵² Previously, attempts have been made to challenge the nature of Article 11 (1). This challenge attempted to suggest that Article 11 (1) recognizes only a general right to an adequate standard of living and does not recognize rights to the constituent parts listed within the text of the provision.⁵³ So it is understood that no right to adequate clothing could be said to derive from Article 11 (1).⁵⁴ This challenge was powerfully rejected by Philip Alston in his then role as Chairperson of the CESCR. Here, Alston relied on the practice of UN Bodies and the lack of objection to this practice as demonstrating that separate and distinct right to housing derives from Article 11 (1) ICESCR.⁵⁵ There is a lack of such consistent practice concerning the right to adequate clothing, and if the existence of a human right was solely dependent upon such practice, it would be fair to suggest the lack of this practice undermines the existence of a right to adequate clothing. This article has explained why there is a lack of such practice and, more so, the existence of human rights is not, however, dependent on such practice. Alston offered further justifications for understanding Article 11 (1) as enshrining distinct rights. He suggested that to reject the existence of freestanding rights under Article 11 (1)—including the right to clothing to which he specifically refers—‘would directly contradict innumerable resolutions adopted by every United Nations body from the General Assembly and the Economic and Social Council to the Commission on Human Rights and many others’.⁵⁶ This is because there is clear and consistent practice by the CESCR of treating the rights contained in Article 11 (1) as distinct rights.⁵⁷ The need to understand Article 11 (1) as enshrining distinct rights is also logically required as ‘the right to an adequate standard of living, the existence of which the argument seems to acknowledge, is clearly composed of several elements... If there is a right to the overall package, there is clearly a right also to the component parts’.⁵⁸ Alston further rejects the challenge that Article 11 (1) does not enshrine distinct rights from a more cautionary perspective in that such arguments ‘would also apply in relation to many of the central provisions of the International Covenant on Civil and Political Rights’.⁵⁹ These more general arguments equally support the recognition of a distinct right to adequate clothing as deriving from Article 11 (1) ICESCR.

Another objection to the recognition of a distinct right to adequate clothing is the view that other rights are sufficient to ensure the realization of the right to adequate clothing and as such undermine the need to reassert a distinct right to adequate clothing. This is a flawed objection. In the first sense, this argument can equally be applied to all of the rights that derive from Article 11 (1). In the second sense, greater delineation of what constitutes adequate clothing in turn allows greater clarity to be brought to bear towards determining the scope of other rights. This in turn will contribute to allowing greater precision in understanding whether the state is fulfilling its obligations under other rights and as such to a greater and fuller realization of human rights. In the third sense, if a ‘right is merely subsumed under, or only seen as an instantiation of, a particular other right, a person can lose their right … if that grounding right is legitimately curtailed’.⁶⁰ Thus, if clothing issues are subsumed within other rights, this could lead to a more limited approach to the right to adequate clothing than one founded on a distinct right. In the fourth sense, there is a need to address the right to clothing as a distinct right because inadequate clothing can create harms and challenges. The wearing of clothes has associated health and safety risks.⁶¹ These risks are exacerbated by inadequate clothing. Thus, clothing must be adequate to not harm the wearer. Features of clothing that negatively impact physical health—and as such may be regarded as features of inadequate clothing—are diverse and broad. Clothing must avoid these features of inadequacy to be considered adequate. Clothing may harm the wearer if it is ill-fitting.⁶² This is because ill-fitting clothing can contribute inter alia to lower back pain, disability, neurological problems, heartburn, reflux and bladder problems.⁶³ More so, clothing must not aggravate allergies and skin conditions.⁶⁴ This may occur when clothing does not provide appropriate ventilation or breathability⁶⁵ and/or if it is so unclean as to affect health.⁶⁶ In addition, some fabrics are prone to microorganisms that affect ‘clothing products thus affecting human health, like risking cases of foot inflammation, bedsore, allergies’.⁶⁷ Not only this but also clothing should be adequate to not prevent the enjoyment of other human rights.⁶⁸ As an example, Shahvisi et al. regard the right to health implications of the onset of the disease of podoconiosis as a symptom ‘of the fact that other rights have been violated and an indicator that still more rights will be violated’.⁶⁹ When health is negatively undermined due to lack of adequate clothing, this is caused by a failure to adequately realize the right to adequate clothing. Therefore, it is the right to clothing that must be realized to address this non-realization of human rights. Consequently, a key principle underpinning the adequacy of clothing is that clothing should empower and should not hinder the realization and enjoyment of other human rights. This hints at a central justification for a distinct right to adequate clothing: the cruciality of clothing for the enjoyment of human rights generally.

3. REASSERTING THE RIGHT TO ADEQUATE CLOTHING

Understood to refer to tangible or material objects that are obtained and attached to, or worn, on the human body,⁷⁰ clothing has long been recognized as one of life’s fundamentals.⁷¹ The fundamental nature of clothing is tied to the fact that the realization of the right to adequate clothing is intertwined with a vast array of better-established human rights. Not only is the right to adequate clothing a prerequisite for the enjoyment of other rights but also other rights contribute to the realization of the right to adequate clothing. This evokes the interdependence approach that features in the preamble to the Universal Declaration of Human Rights and has also been affirmed by the state parties themselves in accepting that ‘all human rights and fundamental freedoms are indivisible and interdependent’.⁷² The United Nations General Assembly has also explicitly restated this affirmation.⁷³ As such, the interdependence of rights—which usually forms a package with the terms universal, indivisible and interrelated ‘or the separate words are used interchangeably’—is ‘“beyond dispute”’.⁷⁴ The interdependence approach is therefore one justification for reasserting the right to adequate clothing.

The practice of the CESCR recognizes the role clothing plays in the realization of other human rights. In the report on the second session (1988) the right to adequate clothing was mentioned multiple times. Concerning Mongolia’s harsh climate, ‘details were requested on the measures and programmes adopted to improve the supply of clothing for the population’.⁷⁵ The CESCR also asked questions of Bulgaria about ‘the measures taken by the Government to give effect to the right to adequate clothing during the exceptional conditions caused by three consecutive years of unusual drought’.⁷⁶ This is indicative of the CESCR interpreting this right as being linked to the issue of climate. In much of the world, the most basic function of clothing is to protect the wearer from damage to physical well-being, which can result from fluctuations in core body temperature. These fluctuations can be caused by nature’s elements against which clothing offers protection.⁷⁷ This is achieved by protecting individuals from their immediate climate.⁷⁸ In this sense, clothing may be understood as a behavioural adaption aimed at maintaining core body temperature by ‘preserving the balance between body heat and the outside environment’.⁷⁹ Specifically, clothing may protect the wearer from both heat and cold, for example, by preventing ‘excessive heat loss from the human body’.⁸⁰ This is arguably the most basic and yet most crucial function of clothing and ‘weather appropriateness’ has been identified as a key feature of the adequacy of clothing required to avoid destitution.⁸¹ This is indicative of a core role of clothing: the protection of physical health. The CESCR’s treatment of the concept of clothing further supports this. Indeed, the CESCR has referred to ‘proper protective clothing’ in its statement on COVID-19.⁸² Similarly, in its General Comment on the right to health, the relationship between protective clothing and worker rights is mentioned.⁸³ Along this vein, Congo has been criticized by the CESCR given the insufficient measures taken to ‘address the situation of thousands of artisanal miners who work in harsh conditions… without adequate clothing… provided to them by trading companies’.⁸⁴ This suggests that—stemming from the right to work—states have an obligation to protect workers by ensuring that their employers provide suitable clothing.⁸⁵ Elsewhere, the nexus between protective clothing and the right to adequate clothing has been explored and it has been argued ‘that the core obligation of the right to clothing requires clothing to protect, and to not harm, the wearer’s physical, mental, and/or social wellbeing (health)’.⁸⁶ Although the CESCR has not engaged clothing alongside the right to health, there is a clear link between the right to adequate clothing and the right to health. This link between health and clothing adequacy can be further supported in that The British Home Office considered essential living needs to include ‘suitable clothing to avoid any danger of illness’.⁸⁷

Beyond protecting physical health, clothing is intimately connected to identity, and this has been touched upon by Antonescu.⁸⁸ This concept of identity links to both mental and social well-being. Not only this but also the CESCR has tacitly accepted this link between the right to adequate clothing and identity. In the Report on the 7^th session, clothing formed part of the general discussion on the right to take part in cultural life under Article 15 (1) (a) of the ICESCR.⁸⁹ The CESCR has explicitly recognized the importance of clothing to the realization of the right to take part in cultural life through the recognition that clothing is an expression of culture and, as such, actively discouraging cultural clothing constitutes repression of culture.⁹⁰ This suggests that states have obligations to respect and protect the wearing of cultural clothing. More definitively, in its General Comment on the right to take part in cultural life, the CESCR ‘considers that culture, for the purposes of implementing Article 15 (1) (a), encompasses, inter alia, …clothing’.⁹¹ It is therefore irrefutable that the CESCR recognizes the role of clothing in the enjoyment and realization of the right to take part in cultural life. It has not, however, recognized the role of—nor the implications of this role of clothing for—the right to adequate clothing. Consequently, beyond economic, social and cultural rights, this recognition of the importance of clothing to cultural life links to several civil and political rights, for example, the right to freedom of expression and the right to freedom of religion under which there exists well-developed case law, especially in Europe.⁹² This suggests that the realization of the right to adequate clothing must account for such dimensions and future research should examine the value added of using the right to adequate clothing to address the civil and political rights dimensions of clothing.

In considering why clothing has been regarded as having special importance for the right to take part in cultural life, it becomes apparent that culture links to the idea of identity more broadly. It is a cultural universal that people clothe, adorn, shape and decorate their bodies to create an appearance to present to others’.⁹³ Like fashion, clothing indicates ‘social worth or status’.⁹⁴ In this sense, items of clothing may be regarded as ‘social hieroglyphics… which conceal, even as they communicate, the social position of the wearer’.⁹⁵ Crucially, an individual’s clothing is profoundly visible.⁹⁶ Whilst other rights deprivations may be disguised or hidden, the profound visibility of clothing marks out those who experience clothing deprivation. The clothing worn by one person affects behavioural responses by others to that person.⁹⁷ This is because, as a form of non-verbal communication, clothing transmits information about the wearer.⁹⁸ These cues are therefore translated into meanings ‘whether intended, unconscious, or imagined’⁹⁹ and lead to inferences about ‘another’s personality traits, physical and biological characteristics, demographic and social position, attitudes and emotions, occupational role, and intentions or motives’.¹⁰⁰ Thus observers behave differently towards individuals ‘depending on the clothing they see them wear’.¹⁰¹ Indeed, at sombre events such as funerals or formal events such as job interviews, non-conforming clothing is generally regarded to be undesirable and ‘affects the impressions formed of that person by others who are present’.¹⁰² As well as this, Gibson and Balkwell have shown that ratings by some recruiters have been more favourable depending on applicants’ clothing and, in fact, the colour of clothing.¹⁰³ When two individuals have no pre-established relationship, ‘the cues conveyed by clothing were found to influence the observer’s judgment of personal attributes of wearers’.¹⁰⁴ In more general day-to-day life, examples include perceived intelligence and academic potential being demonstrated to be affected by dress;¹⁰⁵ clothing being linked to the amount of credibility given to a source of information and also the ‘response to the source’;¹⁰⁶ and, dirty, damaged and/or outdated clothing being ‘an invitation to other people to treat the wearer with contempt and ridicule’ contributing to the stigma of poverty.¹⁰⁷ These perceptions of others go beyond perceptions formed by strangers to include perceptions made by peers. And amongst peers, clothing—that is dressing in a certain way—‘can contribute to adolescent acceptance or rejection’ with there being ‘intense pressure to conform’.¹⁰⁸ Especially in adolescence, ‘peer acceptance assumes vital importance’.¹⁰⁹

This can have implications for an individual’s self-perception. An individual who is inadequately clothed is ‘marked out’ and as such individuals may be unable to create the appearance that they desire to present to others that may have implications for that individual’s self-perception. This engages the idea of wearing certain fashion or clothing to ‘fit in’¹¹⁰ that further links to the notion of clothing as protection from various kinds of fears including ‘fear of ridicule’ and fear of being judged as poor.¹¹¹ This intense pressure may have implications for an individual’s self-perception, especially if they are unable to conform. This is because, self-perception—of body image—has been linked to cognitive functioning, mental health and physical health.¹¹² More so, self-perceived clothing deprivation—that is, dissatisfaction with clothing—has been ‘associated with low Social Competence and low Social Participation scores’.¹¹³ This is not to suggest, however, a right to designer clothing. Rather, the idea of clothing acting as a barrier to social participation may be particularly impactful in some contexts. For example, this may have implications for the right to education. The CESCR has explicitly engaged the relationship between clothing and the right to education. Indeed, it has sought clarification from the Philippines ‘regarding the concept of education being free of charge and, in particular, whether it covered everything a pupil might need: school supplies, meals and clothing’.¹¹⁴ More recently, the CESCR has highlighted that one implication of austerity measures has been a ‘reduced allowance for clothing and footwear which further restrict disadvantaged children from attending schools’.¹¹⁵ Along this vein, research by Royston and Jacques UK-based study estimated that almost half a million children have been sent home ‘because of wearing incorrect uniform’.¹¹⁶ Beyond lacking access to school uniforms, students may sometimes face a choice between wearing culturally appropriate clothing, or other clothing which is tied to their identity, and school uniforms.

Consequently, alongside the visibility of clothing, this notion of being ‘marked out’ by clothing also has implications for discrimination and the CESCR’s engagement with the concept of culture can be extended to the relationship between clothing and other ‘protected’ groups. Antonescu has suggested that the right to adequate clothing must be taken seriously by states, especially regarding the most vulnerable,¹¹⁷ and an exploration of the nature of the groups the CESCR has tacitly suggested have a special relationship with the clothing evokes the concept of vulnerability. Heri’s recent work has thoroughly explored the issue of who is a vulnerable person in human rights law.¹¹⁸ This typology has eight strands, and as the following makes clear, the CESCR’s engagement with clothing in its practice shares synergies with some of these strands.¹¹⁹ The ECtHR ‘infers a sense of vulnerability – or its absence – from the situation’.¹²⁰ Part of the situation considered concerning the ECtHR’s inference in these circumstances are the characteristics of the rights-holder. Such ‘identity-relevant traits’ that may be taken into account include, inter alia, ‘age, gender, race, belief, ethnic background, sexual orientation, gender expression, experiences of victimisation and dependency, and so forth’.¹²¹ The theme of dependency-based vulnerability categorizes some of the CESCR’s engagement with clothing. Indeed, the CESCR has highlighted the special importance of clothing for persons with disabilities.¹²² More so, in the context of human trafficking for non-consensual labour in Togo, the Committee has commented that child victims are ‘crudely clothed’.¹²³ Furthermore, the CESCR has reiterated the Committee on the Rights of the Child’s recommendation made to Zambia that street children be provided with, amongst other things, clothing.¹²⁴ As well as this, the CESCR has noted its concern at the quality of, amongst other things, clothing provided by boarding institutions/children’s homes in Tajikistan and recommended that ‘sufficient funds be allocated to improve existing infrastructure, as well as the quality of food, clothing and care for children living in institutions’.¹²⁵ This theme of vulnerability due to state control also categorizes some of the CESCR’s engagement with clothing. The example of Tajikistan demonstrates how the CESCR views the state as having a role in providing clothing for those in state institutions, and this is echoed in the CESCR’s treatment of those detained in the migration context. State control links, also, to vulnerability in the migration context, which again categorizes the CESCR’s engagement with clothing. For example, the CESCR recommended that Greece take measures to improve the living conditions within reception centres and ‘ensure that everyone in those centres has access to medical care, interpreters, adequate food, clothing and social support’.¹²⁶ In the same year, this same recommendation was made to Italy.¹²⁷ The CESCR has also examined clothing in the migration context beyond the detention context and has expressed concerns to Bulgaria that ‘the assistance provided to newly recognized refugees does not give them access to adequate housing, food, clothing and education needs’.¹²⁸ Thus the CESCR’s practice suggests that clothing is of special importance to the enjoyment of human rights of some categories of vulnerable individuals.

Beyond acting as a prerequisite for the enjoyment of human rights, clothing has featured repeatedly in the CESCR’s work in determining the sufficiency of other rights. In addressing the sufficiency of water, the CESCR has stated that the personal and domestic uses of water ‘ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene’.¹²⁹ In the context of the right to work, the CESCR has stated that ‘“remuneration” must also provide a “decent living” for workers and their families’ and that remuneration must be sufficient to enable the worker and their family to enjoy other rights in the Covenant including clothing.¹³⁰ The relationship between the sufficiency of remuneration and clothing is echoed in the CESCR’s assessment of the realization of the right to social security. For example, the CESCR has stated that family and child benefits would ordinarily cover clothing.¹³¹ More specifically, concerning Canada, the CESCR has expressed its concern that social assistance rates did not ‘provide adequate income to meet basic needs for food, clothing and shelter’.¹³² Here, reasserting the right to adequate clothing would clarify the obligations of states under the right to work and the right to social security. This is because the obligations stemming from the right to work and the right to social security are partly linked to ensuring that remuneration is sufficient to access adequate clothing. That which constitutes adequate clothing must be clarified so the level of remuneration and social security required to meet these obligations can be determined.

Clothing’s role as a prerequisite for the enjoyment of other human rights is an instrumental justification: one that engages the concept of indispensability. Indispensability has been used as a framework to advance arguments for the recognition of new human rights.¹³³ However, it can also be turned towards the issue of clothing. Clothing is both ‘practically indispensable’¹³⁴ and ‘systemically indispensable’¹³⁵ to the realization of other human rights. This justifies reasserting a distinct right to adequate clothing, and this engages the basic right nature of the right to adequate clothing. Shue’s basic rights framework has been adopted and modified by the CESCR with respect to ‘the range of obligations can be said to flow from fundamental socio-economic rights’.¹³⁶ Basic rights, according to Shue, are ‘the line beneath which no one is allowed to sink’,¹³⁷ ‘everyone’s minimum reasonable demands upon the rest of humanity’,¹³⁸ ‘inherent necessities’¹³⁹ and crucially rights of which the enjoyment, and realization, is ‘essential to the enjoyment of all other rights’.¹⁴⁰ As this article has demonstrated, clothing is a prerequisite for the enjoyment of human rights generally. It is no surprise, therefore, that Shue has identified clothing as a basic right.¹⁴¹ It follows that the human right to adequate clothing must be reasserted because the enjoyment of other human rights requires the enjoyment of the right to adequate clothing.

This reassertion requires that greater clarity is brought to the right to adequate clothing. An initial step towards providing this clarity is to derive indicators, or markers, of clothing adequacy from the practice of the CESCR to date. These indicators of clothing adequacy are by no means comprehensive and further research is required to better delimit the content of the right to adequate clothing and the meaning of ‘adequate’ clothing. Even so, clothing should be affordable in relation to the minimum wage and out-of-work social security payments.¹⁴² Clothing must be suitable to maintain the wearer’s core body temperature against their natural environment. Framing this requirement in such general terms allows this requirement to respond appropriately to the various climatic conditions experienced by individuals throughout their life courses regardless of geographic location.¹⁴³ Clothing should also be sufficiently clean to prevent physical, social or mental harm to the wearer.¹⁴⁴ Linking to this, clothing should also be made out of materials that are less prone to microorganisms and other factors that harm the human person.¹⁴⁵ Clothing should be culturally acceptable. The allusion to the notion of repression of culture suggests that the obligation to respect—that is that the state itself should not repress cultural clothing—and the obligation to protect—that is that the state should develop frameworks to prevent repression of cultural clothing by third parties—are of particular importance.¹⁴⁶ Clothing should not be arbitrarily interfered with. Clothing should provide individuals with the capability to ‘fit in’.¹⁴⁷ This can be understood more broadly in that clothing should not act as a barrier to social participation and individuals should have clothing adequate to prevent social exclusion. Beyond these tentative markers of clothing adequacy, further research is required to determine a ‘floor’ and a ‘ceiling’ for the right to adequate clothing. In the interim, it is hoped that these tentative markers can serve as a starting point for the institutional development of the right to adequate clothing by the CESCR.

4. RECOMMENDATIONS FOR REASSERTING AND DELINEATING THE RIGHT TO ADEQUATE CLOTHING

From the analysis presented in this article, it is evident that the CESCR has engaged with both the right to adequate clothing and the concept of clothing more generally understood. However, this analysis shows that this engagement has been extremely limited. Three possible conclusions may be drawn from this. The first is that the right to adequate clothing is now—and has been throughout all the CESCR’s history—adequately realized the world over meaning that there has been no need to engage with the right. This is not the case. The second possible conclusion is that the CESCR has consciously marginalized the right to adequate clothing. The third possible conclusion is that the right has been forgotten. It is this third conclusion that the analysis in this article of the CESCR’s practice supports. The CESCR has failed to engage with the right to adequate clothing since the early 1990s. This is despite the many times it has engaged with clothing more generally understood. Thus, the CESCR has missed many opportunities to engage with the right to adequate clothing and thus work towards shaping the contours of this forgotten right. Because of this, the content of the right to adequate clothing, the obligations stemming from this right and what it means for an individual to claim the right to adequate clothing are not clear. The CESCR can, however, begin to work towards redressing this. To not do so would be to continue to fail in monitoring the full implementation of the ICESCR. As such, the CESCR must redress its failure to monitor the implementation of the right to adequate clothing and must work to develop the normative content of the right to adequate clothing. There are many steps that must be taken towards this end.

In the interim, the CESCR should begin to engage with the right to adequate clothing proactively and substantively within its practice. To do so, the CESCR should integrate the right to adequate clothing throughout its mandate in both reporting guidelines and concluding observations. This would reflect the CESCR’s early practice of seeking information from state parties as to how they are implementing the right. Towards this end, the treaty-specific reporting guidelines for the ICESCR should be updated to include the right to adequate clothing. It is suggested that a new section is added after paragraph 54 of the existing guidance.¹⁴⁸ In line with the existing Article 11 sections of this guidance, this new section on the right to adequate clothing should be focused towards gathering information as to the scale of lack of adequate clothing and the measures taken to combat this. Beginning to collect this information can allow for strategies to be developed to address the issue of lack of adequate clothing.

As it has done so previously, the CESCR should request that states provide

• (a) The principal laws, administrative regulations and collective agreements designed to promote the right to adequate clothing;

• (b) Measures taken, including specific programmes, to improve the methods of production and distribution of articles of clothing;

• (c) Scientific and technical methods used to achieve an adequate supply of articles of clothing;

• (d) The extent of participation in international co-operation contributing to the promotion of the right to adequate clothing¹⁴⁹

Based upon the assessment of the CESCR’s practice concerning clothing in this article, the reporting guidelines should also require states to, inter alia, indicate

• Whether the state has adopted a national action plan or strategy to combat poverty that fully integrates the right to adequate clothing and whether specific mechanisms and procedures are in place to monitor the implementation of the plan or strategy and evaluate the progress achieved in effectively implementing the right to adequate clothing.

• The measures taken to ensure adequate and affordable access to clothing that is sufficient to protect physical, social and mental well-being.

• The affordability of adequate clothing in relation to (i) the minimum wage and (ii) social security payments.

• The measures the state is taking to reduce the cost of clothing.

• The measures taken to provide clothing to vulnerable groups.

• The number of people who have received medical treatment due to inadequate clothing, for example, those who have suffered from frostbite, hypothermia and podoconiosis.

• The number of workers who have been injured due to inadequate personal protective equipment.

• The number of children excluded from education settings due to school uniform policies.

• The measures in place to protect cultural dress.

• The measures in place to prevent and redress clothing-related discrimination both by the state and by third parties.

To further facilitate states in reporting on the right to adequate clothing, there is an urgent need to clarify the scope and content of this right. As an interim measure, the CESCR should consider issuing a statement on the right to adequate clothing and, also, selecting the right to adequate clothing as the focus of a day of general discussion. The need to establish a mandate and special rapporteur on the right to adequate clothing must also be seriously considered. These interim recommendations will provide the foundation for a future General Comment that, given that a General Comment on the right to adequate clothing is the most definitive step that the CESCR can take towards delineating the normative content of this forgotten right, the CESCR ought to produce as it has for other Article 11 (1) ICESCR rights.

5. CONCLUSION

Intrinsically valuable, clothing plays a key role in the day-to-day lives of most of the world’s population. Clothing is a foundation for the enjoyment of many other human rights and protects individuals from physical, social and mental harm. It allows individuals to express themselves, inter alia, their identity, their culture, their religion and their beliefs. Inadequate clothing hinders social participation and may lead to both social exclusion and discrimination. It is little wonder, therefore, that the international community has explicitly recognized the right to adequate clothing in a range of treaties. Despite this, the right to adequate clothing has long suffered from inattention and its place within international human rights law is not clear. This article has sought to redress this.

A distinct right to adequate clothing is contained in Article 11 (1) of the ICESCR. Despite this, the CESCR has little engaged with the right to adequate clothing, and this may undermine the place of this right in international human rights law. However, this lack of engagement can be attributed to the historical omission, due to priorities at that time, of the right to adequate clothing from the reporting guidelines. This omission has created a situation in which the right to adequate clothing is not reported on by states or monitored by the CESCR. This lack of engagement with the right to adequate clothing has likely fostered further marginalization of the right. This omission has also resulted in clothing being subsumed within the CESCR’s practice concerning other rights. It could be suggested that it is through these other rights that the ends of the right to adequate clothing are best achieved. This suggestion can be refuted in that there are important reasons for reasserting the distinctness of the right to adequate clothing. In the first sense, an accurate interpretation of the ICESCR requires a distinct right to adequate clothing. In the second sense, there are clothing-related issues—in particular the specific harms that stem from inadequate clothing—that are not suitably addressed when clothing is subsumed within other human rights and as such a distinct right to adequate clothing is needed to ensure the realization of this right. In the third sense, a range of instrumental arguments—that is the recognition that clothing is a pre-requisite for the enjoyment of human rights generally—support the recognition of a distinct right to adequate clothing. There is a distinct right to adequate clothing and such a right goes beyond merely the provision of clothing. However, the right is missing from the human rights discourse. The first step towards redressing this is to recognize the existence of a distinct right to adequate clothing and to integrate this right into the ICESCR’s treaty-specific reporting guidelines. This will encourage states to report on this right, as they have done previously when encouraged to do so, whilst allowing the CESCR to monitor and institutionally develop the right.

ACKNOWLEDGEMENTS

Special acknowledgments are due to Professor Sigrun Skogly, Professor Sandra Liebenberg, Professor Javier Garcia Oliva and Dr Emma Nyhan for their insightful comments on earlier drafts of this article. Whilst these individuals have undoubtedly strengthened this paper, all errors remain, solely, my own.

Footnotes

Author notes