CESCR
General Comment No. 3
The Nature of States Parties’ Obligations (Art. 2 para 1 of the
Covenant)
Fifth session 1990
E/1991/23
1. Article 2
is of particular importance to a full understanding of the Covenant
and must be seen as having a dynamic relationship with all of the
other provisions of the Covenant. It describes the nature of the
general legal obligations undertaken by States parties to the Covenant.
Those obligations include both what may be termed (following the
work of the International Law Commission) obligations of conduct
and obligations of result. While great emphasis has sometimes been
placed on the difference between the formulations used in this provision
and that contained in the equivalent article 2 of the International
Covenant on Civil and Political Rights, it is not always recognized
that there are also significant similarities. In particular, while
the Covenant provides for progressive realization and acknowledges
the constraints due to the limits of available resources, it also
imposes various obligations which are of immediate effect. Of these,
two are of particular importance in understanding the precise nature
of States parties obligations. One of these, which is dealt with
in a separate general comment, and which is to be considered by
the Committee at its sixth session, is the “undertaking to guarantee”
that relevant rights “will be exercised without discrimination...”.
2. The other is the undertaking in article 2 (1) “to take steps”,
which in itself, is not qualified or limited by other considerations.
The full meaning of the phrase can also be gauged by noting some
of the different language versions. In English the undertaking is
“to take steps”, in French it is “to act” (“s’engage à agir”)
and in Spanish it is “to adopt measures” (“a adoptar medidas”).
Thus while the full realization of the relevant rights may be achieved
progressively, steps towards that goal must be taken within a reasonably
short time after the Covenant’s entry into force for the States
concerned. Such steps should be deliberate, concrete and targeted
as clearly as possible towards meeting the obligations recognized
in the Covenant.
3. The means which should be used in order to satisfy the obligation
to take steps are stated in article 2 (1) to be “all appropriate
means, including particularly the adoption of legislative measures”.
The Committee recognizes that in many instances legislation is highly
desirable and in some cases may even be indispensable. For example,
it may be difficult to combat discrimination effectively in the
absence of a sound legislative foundation for the necessary measures.
In fields such as health, the protection of children and mothers,
and education, as well as in respect of the matters dealt with in
articles 6 to 9, legislation may also be an indispensable element
for many purposes.
4. The Committee notes that States parties have generally been conscientious
in detailing at least some of the legislative measures that they
have taken in this regard. It wishes to emphasize, however, that
the adoption of legislative measures, as specifically foreseen by
the Covenant, is by no means exhaustive of the obligations of States
parties. Rather, the phrase “by all appropriate means” must be given
its full and natural meaning. While each State party must decide
for itself which means are the most appropriate under the circumstances
with respect to each of the rights, the “appropriateness” of the
means chosen will not always be self-evident. It is therefore desirable
that States parties’ reports should indicate not only the measures
that have been taken but also the basis on which they are considered
to be the most “appropriate” under the circumstances. However, the
ultimate determination as to whether all appropriate measures have
been taken remains one for the Committee to make.
5. Among the measures which might be considered appropriate, in
addition to legislation, is the provision of judicial remedies with
respect to rights which may, in accordance with the national legal
system, be considered justiciable. The Committee notes, for example,
that the enjoyment of the rights recognized, without discrimination,
will often be appropriately promoted, in part, through the provision
of judicial or other effective remedies. Indeed, those States parties
which are also parties to the International Covenant on Civil and
Political Rights are already obligated (by virtue of articles 2
(paras. 1 and 3), 3 and 26) of that Covenant to ensure that any
person whose rights or freedoms (including the right to equality
and non-discrimination) recognized in that Covenant are violated,
“shall have an effective remedy” (art. 2 (3) (a)). In addition,
there are a number of other provisions in the International Covenant
on Economic, Social and Cultural Rights, including articles 3, 7
(a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would
seem to be capable of immediate application by judicial and other
organs in many national legal systems. Any suggestion that the provisions
indicated are inherently non-self-executing would seem to be difficult
to sustain.
6. Where specific policies aimed directly at the realization of
the rights recognized in the Covenant have been adopted in legislative
form, the Committee would wish to be informed, inter alia, as to
whether such laws create any right of action on behalf of individuals
or groups who feel that their rights are not being fully realized.
In cases where constitutional recognition has been accorded to specific
economic, social and cultural rights, or where the provisions of
the Covenant have been incorporated directly into national law,
the Committee would wish to receive information as to the extent
to which these rights are considered to be justiciable (i.e. able
to be invoked before the courts). The Committee would also wish
to receive specific information as to any instances in which existing
constitutional provisions relating to economic, social and cultural
rights have been weakened or significantly changed.
7. Other measures which may also be considered “appropriate” for
the purposes of article 2 (1) include, but are not limited to, administrative,
financial, educational and social measures.
8. The Committee notes that the undertaking “to take steps ... by
all appropriate means including particularly the adoption of legislative
measures” neither requires nor precludes any particular form of
government or economic system being used as the vehicle for the
steps in question, provided only that it is democratic and that
all human rights are thereby respected. Thus, in terms of political
and economic systems the Covenant is neutral and its principles
cannot accurately be described as being predicated exclusively upon
the need for, or the desirability of a socialist or a capitalist
system, or a mixed, centrally planned, or laissez-faire economy,
or upon any other particular approach. In this regard, the Committee
reaffirms that the rights recognized in the Covenant are susceptible
of realization within the context of a wide variety of economic
and political systems, provided only that the interdependence and
indivisibility of the two sets of human rights, as affirmed inter
alia in the preamble to the Covenant, is recognized and reflected
in the system in question. The Committee also notes the relevance
in this regard of other human rights and in particular the right
to development.
9. The principal obligation of result reflected in article 2 (1)
is to take steps “with a view to achieving progressively the full
realization of the rights recognized” in the Covenant. The term
“progressive realization” is often used to describe the intent of
this phrase. The concept of progressive realization constitutes
a recognition of the fact that full realization of all economic,
social and cultural rights will generally not be able to be achieved
in a short period of time. In this sense the obligation differs
significantly from that contained in article 2 of the International
Covenant on Civil and Political Rights which embodies an immediate
obligation to respect and ensure all of the relevant rights. Nevertheless,
the fact that realization over time, or in other words progressively,
is foreseen under the Covenant should not be misinterpreted as depriving
the obligation of all meaningful content. It is on the one hand
a necessary flexibility device, reflecting the realities of the
real world and the difficulties involved for any country in ensuring
full realization of economic, social and cultural rights. On the
other hand, the phrase must be read in the light of the overall
objective, indeed the raison d’être, of the Covenant which
is to establish clear obligations for States parties in respect
of the full realization of the rights in question. It thus imposes
an obligation to move as expeditiously and effectively as possible
towards that goal. Moreover, any deliberately retrogressive measures
in that regard would require the most careful consideration and
would need to be fully justified by reference to the totality of
the rights provided for in the Covenant and in the context of the
full use of the maximum available resources.
10. On the basis of the extensive experience gained by the Committee,
as well as by the body that preceded it, over a period of more than
a decade of examining States parties’ reports the Committee is of
the view that a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights
is incumbent upon every State party. Thus, for example, a State
party in which any significant number of individuals is deprived
of essential foodstuffs, of essential primary health care, of basic
shelter and housing, or of the most basic forms of education is,
prima facie, failing to discharge its obligations under the Covenant.
If the Covenant were to be read in such a way as not to establish
such a minimum core obligation, it would be largely deprived of
its raison d’être. By the same token, it must be noted that
any assessment as to whether a State has discharged its minimum
core obligation must also take account of resource constraints applying
within the country concerned. Article 2 (1) obligates each State
party to take the necessary steps “to the maximum of its available
resources”. In order for a State party to be able to attribute its
failure to meet at least its minimum core obligations to a lack
of available resources it must demonstrate that every effort has
been made to use all resources that are at its disposition in an
effort to satisfy, as a matter of priority, those minimum obligations.
11. The Committee wishes to emphasize, however, that even where
the available resources are demonstrably inadequate, the obligation
remains for a State party to strive to ensure the widest possible
enjoyment of the relevant rights under the prevailing circumstances.
Moreover, the obligations to monitor the extent of the realization,
or more especially of the non-realization, of economic, social and
cultural rights, and to devise strategies and programmes for their
promotion, are not in any way eliminated as a result of resource
constraints. The Committee has already dealt with these issues in
its general comment No. 1 (1989).
12. Similarly, the Committee underlines the fact that even in times
of severe resources 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. In support of this approach the Committee
takes note of the analysis prepared by UNICEF entitled “Adjustment
with a human face: protecting the vulnerable and promoting growth,[1]
the analysis by UNDP in its Human Development Report 1990[2] and
the analysis by the World Bank in the World Development Report 1990.[3]
13. A final element of article 2 (1), to which attention must be
drawn, is that the undertaking given by all States parties is “to
take steps, individually and through international assistance and
cooperation, especially economic and technical ...”. The Committee
notes that the phrase “to the maximum of its available resources”
was intended by the drafters of the Covenant to refer to both the
resources existing within a State and those available from the international
community through international cooperation and assistance. Moreover,
the essential role of such cooperation in facilitating the full
realization of the relevant rights is further underlined by the
specific provisions contained in articles 11, 15, 22 and 23. With
respect to article 22 the Committee has already drawn attention,
in general comment No. 2 (1990), to some of the opportunities and
responsibilities that exist in relation to international cooperation.
Article 23 also specifically identifies “the furnishing of technical
assistance” as well as other activities, as being among the means
of “international action for the achievement of the rights recognized
...”.
14. The Committee wishes to emphasize that in accordance with Articles
55 and 56 of the Charter of the United Nations, with well-established
principles of international law, and with the provisions of the
Covenant itself, international cooperation for development and thus
for the realization of economic, social and cultural rights is an
obligation of all States. It is particularly incumbent upon those
States which are in a position to assist others in this regard.
The Committee notes in particular the importance of the Declaration
on the Right to Development adopted by the General Assembly in its
resolution 41/128 of 4 December 1986 and the need for States parties
to take full account of all of the principles recognized therein.
It emphasizes that, in the absence of an active programme of international
assistance and cooperation on the part of all those States that
are in a position to undertake one, the full realization of economic,
social and cultural rights will remain an unfulfilled aspiration
in many countries. In this respect, the Committee also recalls the
terms of its general comment No. 2 (1990).
Notes
[1] G.A. Cornia, R. Jolly and F. Stewart, eds., Oxford, Clarendon
Press, 1987.
[2] Oxford, Oxford University Press, 1990.
[3] Oxford, Oxford University Press, 1990.
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