The Obligations of States
The essential elements of the State’s obligation to implement all economic, social and cultural rights are encapsulated under Article 2 (1) of the International Covenant on Economic, Social and Cultural Rights. It states: “each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” (Italics added) While the exact scope of these legal obligations continues to be debated, there is an emerging consensus, forged by the clarifications offered by the United Nations Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment Number 3 on the Nature of States Parties Obligations (issued at its Fifth session in 1990).
Three key elements of Article 2(1) can be identified as follows:
“undertakes to take steps... by all appropriate means including particularly the adoption of legislative measures”
The Committee has concluded that this provision requires States parties to take immediate steps to create the necessary conditions for the enjoyment of the rights by everyone. This duty is not limited or qualified by other considerations such as by the idea of “progressive realization”. Concrete steps must be taken towards the implementation of Covenant obligations immediately upon ratification of the Covenant by a State. For instance, effective
legislative measures must be taken to enhance the implementation of the rights, including the repeal of pre-existing inconsistent laws or policies. What constitutes “all appropriate means” must be decided based on the right under consideration and within the particular context of each state. In relation to housing, it may include education, democratization of administrative procedures, and the establishment of support-based programs for enhancing access of low-income groups or individuals to credit or other economic opportunities to acquire adequate housing acquisition. In this respect, activist organizations can conduct periodic reviews or evaluations of existing housing policies and programs in order to identify other measures that may be taken to realize the right to adequate housing.
“to the maximum of its available resources”
Although by far the most important principle in considering States obligations, it is also the most controversial as the claim of lack of resources is often used by States to avoid responsibility for implementing the rights under the Covenant. However, according to the Committee, it requires that all available resources must be used equitably and judiciously in the satisfaction of, at least, the minimum requirements of the rights, particularly to the advantage of the most vulnerable sections of the population. On this point, the Committee concluded in paragraph 12 of its General Comment Number 3 that even in times of severe resource constraints, the vulnerable members of society must be protected by the adoption of relatively low-cost targeted programs.
The burden of showing that available resources are being or have been utilized to the highest possible extent rests on the State party. This principle provides a basis for mobilizing efforts against pervasive corruption and theft of national resources by State officials that continues to hinder the capacity of many States to implement the rights under the Covenant.
“to [achieve] progressively the full realization of the rights”
This requires States to “move expeditiously and effectively as possible” towards the goal of full realization of the rights in the Covenant. It also does not allow an indefinite postponement of action vital to the enjoyment of the rights. In addition, some provisions of the Covenant, for example the prohibition of discrimination, require immediate observance and are therefore not subject to the principle of “progressive realization.”
Equality and non-discrimination
Article 2(2) of the Covenant prohibits discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, in the exercise of the enunciated in the Covenant. This provision offers a crucial benchmark for monitoring compliance or violation of the Covenant. The ESC rights approach views rights as freedoms and entitlements, and is grounded in the principles of equality and non-discrimination. The United Nations Committee on the Elimination of Racial Discrimination observed
in L.K. v. Netherlands that the adoption of temporary measures intended to bring about de facto equality (i.e. affirmative action programs) is not a violation of the right to non-discrimination so long as such measures do not lead to the maintenance of unequal or separate standards for different groups and provided that they are not continued after the objective for which they are taken have been achieved. That observation reinforces the need to pay particular attention to marginalized groups and individuals vulnerable to rights violations at the hands of State and non-state actors.