Generic Obligations

In addition to the obligations created under article 2(1) & (2), States Parties also bear generic obligations of conduct and obligations of outcome. More specifically, these are the obligations to respect, protect, promote, and fulfill economic, social and cultural rights. According to the U.N. Committee on Economic, Social and Cultural Rights General Comment Number 3 on States Parties’ Obligations, the concept of a minimum core obligation denotes a duty to satisfy “at the very least, minimum essential levels” of the rights recognized in the Covenant. The core content of a right refers to its constitutive elements without which the right is hollow and meaningless. It represents the threshold or baseline entitlement of the right that must be fulfilled by all States parties irrespective of their peculiar economic, social, political or other factors. Satisfaction of the minimum core content of a right by itself does not equate to full compliance with the Covenant, rather, it triggers the obligation ensure the full satisfaction of the right in all its other aspects.

Obligation to Respect

States assume an obligation to refrain from actions or conduct that contravene or are capable of impeding the enjoyment of economic, social and cultural rights. Essentially, the obligation is neither contingent on “availability of resources” nor subject to the notion of “progressive realization”. The obligation to respect is of an immediate nature and simply implies respect for the rule of law.

Obligation to Protect

This duty pertains to the regulatory functions of the State to prevent encroachments on economic, social and cultural rights, primarily, by non-state actors. It also implies a duty to punish violators of those rights. This may necessitate the adoption of legislative, administrative or policy measures to prevent unwarranted interference in the enjoyment of ESC rights by quasi-government authorities and other powerful economic and political interests in society. For example, in relation to the right to education, the equality and nondiscrimination principle of the Covenant requires the State to intervene to ensure that parents and legal guardians do not prevent equal access of boys and girls to educational opportunities. In this respect, Article 2(2) of the Convention on the Rights of the Child, mandates States parties to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.” Similarly, by this obligation, the government is required to protect its tenant population from the wanton infractions by landlords of the right to adequate housing. It also obligates the government to protect its citizens from the extreme human and environmental devastation that may be wreaked by multinational companies.

Obligation to Promote

This requires States parties to ensure the widest possible knowledge and awareness of ESC rights. For example, its promotional obligation may require that steps be taken to counter traditional beliefs and practices which inhibit enrolment of girls in schools, thereby expanding access to education. It may also mean a review of existing official information disclosure policies or the adoption of “freedom of information” legislation that would guarantee citizens’ access to important information.

Obligation to Fulfill

Otherwise described as an ‘obligation of result or outcome’, the obligation to fulfill is easily the most problematic because it hinges on the identification of resources for the satisfaction of aspects of ESC rights. It is the responsibility of States to take steps towards the full implementation of all ESC rights. This obligation is said to be qualified by available resources and subject to progressive realization. But as the United Nations Committee on Economic, Social and Cultural Rights has explained, “available resources” must be equitably and judiciously used in the satisfaction of, at least, the minimum requirements of the rights, particularly to the advantage of the most vulnerable sections of the population. States parties bear the burden of showing that available resources are being or have been utilized to the highest possible extent in the fulfillment of the rights recognized under the Covenant. So it is simply not enough for a State to claim that it lacks the resources to achieve the fulfillment of ESC rights.

International Obligations

In interpreting the International Covenant on Economic, Social and Cultural Rights, the Committee on Economic, Social and Cultural Rights has consistently held that it is incumbent upon States parties and other actors in a position to assist, to provide “international assistance and cooperation, especially economic and technical” which can enable developing countries to fulfil their ESC rights obligations. For example, the international community has a duty to cooperate to enable the States parties to fulfil their obligations under the right to development.

Right to Effective Remedy

States are obligated to ensure that victims of violations of ESC rights have access to effective remedy. See the UN Committee on Economic, Social and Cultural Rights in its General Comment on the Domestic Application of the Covenant (No. 9). See also the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights.