Economic, Social and Cultural Rights

Chapter 3
Economic, Social and Cultural Rights

Manisuli Ssenyonjo

1. Introduction

The UDHR1 declared human rights, both civil and political rights and economic, social and cultural (ESC) rights, as a ‘common standard of achievement’ for all peoples and all nations, without separating them. In particular, Articles 21–29 of the UDHR declared that ‘everyone’ has the right to the following: social security; work; rest and leisure including reasonable limitation of working hours and periodic holidays with pay; adequate standard of living including food, clothing, housing and medical care; education; freedom to participate in the cultural life of the community; and a social and international order in which the rights set forth in the UDHR can be fully realized. Clearly, the UDHR contained a comprehensive list of ESC rights. However, as noted by Mrs Eleanor Roosevelt, the US representative to the General Assembly and chairperson of the United Nations (UN) Commission on Human Rights during the drafting of the UDHR, the UDHR ‘is not, and does not purport to be a statement of law or of legal obligation’, but it is ‘a common standard of achievement for all peoples of all nations’.2 Despite this, the UDHR has had considerable impact in shaping treaties protecting human rights, including ESC rights, at both regional and UN levels.3 In addition, the UDHR has influenced the content of many national constitutions and decisions of domestic courts.4

In recent years, ESC rights have received increasing attention in various international organizations, academic writings and human rights law generally. At the UN level, the Committee on Economic, Social and Cultural Rights (CESCR),5 which monitors the implementation of ESC rights under the International Covenant on Economic, Social and Cultural Rights (ICESCR),6 has adopted a number of useful ‘general comments’, which clarify the contents of specific rights as well as other issues related to the protection of ESC rights.7 Furthermore, non-governmental organizations (NGOs) are becoming more interested in working with these rights, and the courts in many domestic legal systems are showing a growing willingness to enforce ESC rights in some of their decisions.8 Despite these positive developments, many actors working with human rights law still focus mainly on issues relating to civil and political rights and tend to pay only lip service to the interdependence and interrelatedness of all human rights. This means that, in practice, ESC rights are still marginalized and still considered, inaccurately, as ‘programmatic, aspirational, and not justiciable’,9 and they are honoured more in ‘the breach than the observance’.10 The marginalization of ESC rights affects most the poor and disadvantaged groups and individuals because they lack the resources required for an adequate standard of living (including adequate food, housing, health, and education) and lack a political voice to influence the formulation of government policy. Although ESC rights are protected at an international level by a legally binding international treaty, the ICESCR, and now reinforced by the Optional Protocol (OP) to the ICESCR, adopted in December 2008,11 there are still, six decades after the UDHR, many substantive questions regarding the status of ESC rights as human rights in international law.

In analysing the evolution of ESC rights since the adoption of the UDHR, the following four key questions regarding these rights are addressed in this chapter: (1) What are the human rights obligations of states parties to the ICESCR? (2) Are such obligations territorially limited or is there scope for extraterritorial obligations? (3) Are states permitted to derogate from (some) ESC rights during emergencies despite the fact that the ICESCR does not contain a derogation clause either permitting or prohibiting derogations? (4) Was it really necessary to adopt an OP to the ICESCR to enable the CESCR to receive and consider communications alleging violations of any of the rights protected by the ICESCR? Apart from the first question, which provides a general overview of state obligations under the ICESCR, the other questions have been selected because, despite their significance, they are not specifically addressed in the ICESCR and few studies have explored them in relation to ESC rights.

In addressing these questions, the chapter aims to demonstrate that since the adoption of the UDHR, ESC rights have evolved over the years and that the ICESCR lays down clear, legal human rights obligations for states parties. Although the ICESCR provides for ‘progressive realization’ and acknowledges the constraints of limited ‘available resources’, it also imposes various obligations which are of immediate effect (e.g. the obligation to take steps, and to eliminate discrimination in the enjoyment of ESC rights). This chapter notes that the increase in domestic case law on ESC rights clearly indicates that violations of ESC rights are justiciable, and that states should ensure their justiciability in practice at a national level. At the international level, it is noted that the adoption of an OP to the ICESCR by the UN General Assembly in 2008 providing for individual and group communications, and interstate communications, as well as an inquiry procedure in cases of grave or systematic violations of any ESC rights, was long overdue. Further, the chapter argues that any state party to the ICESCR could be in violation of its obligations under the ICESCR for actions taken by it extraterritorially, in relation to anyone within the power, effective control or authority of that state, as well as within an area over which that state exercises effective overall control. Finally, the chapter notes that the absence of a clause allowing derogation in times of public emergency in the ICESCR indicates that the it generally continues to apply in the time of armed conflict, war or other public emergency, and, as a minimum, states cannot derogate from the minimum core obligations of ESC rights.

It is hoped that this analysis will encourage states to take their human rights obligations under the ICESCR more seriously and will also help to develop the necessary political will for the ratification of the OP by states parties, as this would contribute to generally strengthening the international legal framework of accountability for violations of ESC rights.

2. ESC Rights: An Overview

ESC rights in international human rights law include a wide range of human rights. For example, the rights to work and to just and favourable conditions of work; to rest and leisure; to form and join trade unions, and to strike; to social security; to protection of the family, mothers and children; to an adequate standard of living, including adequate food, clothing and housing; to the highest attainable standard of physical and mental health; to education; and to participate in cultural life and enjoy benefits of scientific progress.12 The effective respect, protection, and fulfilment of these rights is an important – but under-explored – component of international human rights law. This is despite the fact that the UDHR, as noted above, recognized two sets of human rights from inception: civil and political rights and ESC rights. In transforming the provisions of the UDHR into legally binding obligations, the UN adopted two separate but interdependent covenants: the International Covenant on Civil and Political Rights (ICCPR)13 and the ICESCR. As of 31 December 2009, there were 160 states parties to the ICESCR and 165 states parties to the ICCPR. The two covenants, along with the UDHR, constitute the so-called ‘international bills of rights’.

At the international level, ESC rights are protected in several international human rights treaties, the most comprehensive of which is the ICESCR. The ICESCR initially did not have an independent treaty-monitoring body, let alone one that could receive individual complaints. This omission was partially addressed by the creation of the CESCR in 1985, to receive and review regular state party reports.14 Recently, on 18 June 2008, the UN Human Rights Council adopted an OP to the ICESCR that provides the CESCR with three new roles: (1) to receive and consider individual and group communications claiming ‘a violation of any of the economic, social and cultural rights set forth in the Covenant’; (2) interstate communications to the effect that a state party claims that another state party is ‘not fulfilling its obligations under the Covenant’; and (3)to conduct an inquiry in cases where the CESCR receives reliable information indicating ‘grave or systematic violations’ by a state party of any ESC rights set forth in the ICESCR.15

Significantly, on the 60th anniversary of the UDHR (10 December 2008), the UN General Assembly unanimously adopted the OP,16 42 years after a similar mechanism was adopted for civil and political rights. The signing ceremony for the OP was held on 24 September 2009 during the 2009 Treaty Event at the UN Headquarters in New York. By 23 December 2009, 3 months after it was opened for signature, 31 states had signed the OP, marking a significant beginning towards support for this historic mechanism.17 The OP will enter into force after ratification by 10 states in accordance with its Article 18. In its preamble, the OP reaffirmed ‘the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms’. The unanimous adoption of this OP on the 60th anniversary of UDHR is indeed a significant human rights development that ushers in a new era of accountability for violations of ESC rights in international law (once the OP enters into force) and thus dispel claims that ESC rights under the ICESCR were not intended to be justiciable.18 This means that, more than ever before, it is timely and pertinent to examine the nature and scope of state obligations under the ICESCR in light of the current state of international law, for which states that ratify the OP could be held accountable.

At the regional level, there was largely the same pattern of difference. The European Convention on Human Rights (ECHR) 1950,19 despite its all-embracing name as a ‘human rights convention’, is concerned almost exclusively with civil and political rights.20 Indeed, it may be stated that although the ‘interpretation of the European Convention may extend into the sphere of social and economic rights’,21 the ECHR does not protect ESC rights, either explicitly (with the exception of the right to education and possibly the right to property) or implicitly.22 It took another decade before the European Social Charter was adopted and a further generation before a right of collective (but not individual) complaints was introduced under it.23 As for the Inter-American Human Rights System, the American Convention on Human Rights (ACHR) 1969,24 likewise despite its all-embracing name as a convention on ‘human rights’, emphasizes civil and political rights, and it was only later that the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, ‘Protocol of San Salvador’,25 was adopted, with its partial system of individual complaint. The African Charter on Human and Peoples’ Rights 1981 (African Charter)26 was a great improvement in that it included from the outset a comprehensive guarantee of the full range of human rights, including ESC rights alongside civil and political rights, without drawing any distinction between the justiciability or implementation of the two categories of rights. Significantly, the African Charter made all rights subject to a right of individual complaints.

However, until recently, the African Commission on Human and Peoples’ Rights (a body with the mandate to promote and protect human rights in Africa and to interpret all the provisions of the African Charter at the request of a state party, an institution of the African Union or an African Organization recognized by the African Union)27 did not develop any comprehensive ESC rights jurisprudence under the African Charter.28 Nonetheless, in two important cases, Purohit and Moore v The Gambia29 and The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria,30 the African Commission demonstrated the practical application of the principle that the African Charter provisions on ESC rights were justiciable. It has held that ‘economic and social rights are essential elements of human rights in Africa’ and that ‘no right in the African Charter cannot be made effective’.31 In addition, the African Commission has held that states parties to the African Charter have to take ‘concrete and targeted steps’, while taking full advantage of their available resources, to ‘ensure’ that ESC rights such as the right to health are fully realized in all aspects without discrimination of any kind.32 Although the commission’s promotional activities initially paid lip service to ESC rights by being predominantly focused on civil and political rights, the commission later paid attention to ESC rights after concerns were raised by representatives of civil society organizations during several of the commission’s sessions about the need for a focus on ESC rights.33

At the national level, the courts of some states have demonstrated that ESC rights can be enforced through the courts. In this regard, the jurisprudence of the Indian courts34 and South African courts35 has been particularly useful. Despite some limitations, celebrated judgements by the South African Constitutional Court, such as judgements in the Grootboom and Mazibuko cases,36 have been particularly influential, showing that ESC rights are justiciable and providing a public law model for deciding cases in that regard by holding that, when challenged as to its policies relating to ESC rights, the state ‘must explain why the policy is reasonable’ and that the policy is being reconsidered consistent with the obligation to ‘progressively realize’ ESC rights.

In sum, what emerges from the foregoing overview is that it is not the nature of the rights that is crucial (i.e. whether rights are considered ESC rights or civil and political rights), but the nature of the obligations that are imposed by international and national law concerning them. It is thus clear that the argument about justiciability has now been resolved. Whenever ESC rights cannot be made fully effective without some role for the judiciary, judicial remedies are ‘necessary’.37 This means that effective judicial remedies must be available for victims of all violations of ESC rights so that such rights can be enforced through the courts. As the CESCR has stated, affirming the principle of the interdependence and indivisibility of all human rights, ‘all economic, social and cultural rights are justiciable’.38 Indeed, ESC rights, both individual and collective, have long been enforced in national courts without difficulty. At times, national (and even regional human rights) courts have in fact been applying ESC rights, such as the rights to health and education, without knowing it, deciding cases that are about these rights (though not necessarily in compliance with them) under different rubrics, such as health or education law or, in the case of the ECHR, under Article 2 of the First Protocol.39

3. State Obligations Under Article 2(1) of the ICESCR

In this section, specific human rights obligations of states parties to the ICESCR arising from Article 2(1) are examined, since these directly inform all of the substantive rights protected in Articles 6 to 15 of the ICESCR. Article 2(1) is fundamental to the ICESCR since it is the general legal obligation provision.40 Article 2(1) provides that:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

It has been observed that ‘[r]elative to Article 2 of the ICCPR, Article 2 of the ICESCR is weak with respect to implementation’.41 Hence, Craven expressed the position as follows:

Article 2(1) itself is a somewhat confused and unsatisfactory provision. The combination of convoluted phraseology and numerous qualifying sub-clauses seems to defy any real sense of obligation. Indeed it has been read by some as giving states an almost total freedom of choice and action as to how the rights should be implemented.42

The language of Article 2(1) is clearly wide and full of caveats, making it difficult to ascertain the exact nature of legal obligations arising from this provision. However, the nature and scope of the states parties’ obligations under the ICESCR, including the provisions of Article 2(1) above, and the nature and scope of violations of ESC rights and appropriate responses and remedies, have been examined by groups of experts in international law who adopted the Limburg Principles on the Implementation of the ICESCR in 1986 (Limburg Principles)43 and the Maastricht Guidelines on Violations of Economic Social and Cultural Rights in 1997 (Maastricht Guidelines).44 Although the Limburg Principles and Maastricht Guidelines are not legally binding per se, they may arguably provide ‘a subsidiary means’ for the interpretation of the ICESCR as ‘teachings of the most highly qualified publicists of the various nations’ under Article 38(1)(d) of the Statute of the International Court of Justice. Moreover, the participants who adopted the Limburg Principles believed that they ‘reflect[ed] the present state of international law, with the exception of certain recommendations indicated by the use of the verb ‘should’ instead of ‘shall’.45 Also, the participants who adopted the Maastricht Guidelines considered them to ‘reflect the evolution of international law since 1986’.46

The CESCR has also, in numerous general comments and statements, spelt out the content of state obligations and individual and group rights under the ICESCR. By December 2009, the CESCR had adopted 21 general comments, 14 of which related to substantive rights while seven dealt with other aspects of the ICESCR.47 In addition, the CESCR had issued 16 statements on several key issues relevant to ESC rights, including, for example, poverty, globalization, intellectual property and the world food crisis.48 While general comments and statements are not legally binding, they can have a persuasive effect, setting out interpretive positions around which state practice may unite. No state has ever raised any formal objections to the general comments or statements of the CESCR, apparently suggesting wide acceptance by states of the CESCR’s interpretation of the ICESCR through its general comments and statements.

Four key human rights obligations arise from Article 2(1); namely, (1) the obligation to ‘take steps … by all appropriate means’; (2) the obligation of ‘achieving progressively the full realisation’ of ESC rights; (3) the obligation to utilize ‘maximum available resources’; and (4) the obligation to seek (or provide) international assistance and cooperation. These obligations are considered below.

3.1 Obligation to ‘take steps … by all appropriate means’

The first obligation is for states to ‘take steps’ in the field of ESC rights. This is an immediate obligation, which, in itself, is not qualified or limited by other considerations.49 A failure to comply with this obligation cannot be justified by reference to social, cultural or economic considerations within the state.50 What ‘steps’ are required under Article 2(1)? States have a wide margin of discretion in selecting the steps they consider most appropriate for the full realization of ESC rights. Generally, two types of steps are required; namely, legislative and non-legislative steps to respect, protect and achieve ESC rights. There is no doubt that legislative measures are indispensable in the protection of all human rights including ESC rights,51 since a sound legislative foundation provides a firm basis to protect such rights (e.g. in the fields of housing, employment, and education) and to enforce them in case of violations. By legislation on ESC rights, these rights acquire content at a domestic level, and that content could be developed through judicial review. Legislation is particularly essential to combat the formal and substantive discrimination faced by some of the most disadvantaged and marginalized individuals and groups, as in discrimination against women, minorities, children, persons with disabilities, older persons, migrants, indigenous peoples, and persons living in poverty.52

Thus, states are obliged to enact, without delay, a comprehensive anti-discrimination law, guaranteeing protection against discrimination in the enjoyment of ESC rights, as stipulated in Article 2(2) of the ICESCR. Anti-discrimination legislation should attribute obligations to public and private actors and cover all the prohibited grounds of discrimination stated in the ICESCR. Article 2(2) obliges each state party ‘to guarantee that the rights enunciated in the … Covenant will be exercised without discrimination of any kind’. It lists the prohibited grounds of discrimination as ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. The inclusion of ‘other status’ indicates that this list is merely illustrative and not intended to be exhaustive. It covers other grounds such as disability, age, nationality, marital and family status, place of residence, health status, and sexual orientation and gender identity, as well as economic and social situation.53 This reflects the fact that the nature of discrimination is not static but ‘varies according to context and evolves over time’.54 Since discrimination undermines the achievement of ESC rights for a significant proportion of the world’s population, anti-discrimination legislation must cover not only discrimination in the public sector but also discrimination by non-state actors.55 Among others, this might help to overcome gender inequalities – for example, by eliminating the wage gap between men and women for work of equal value in all sectors of employment, whether private or public.

It is in this regard that the Committee on the Elimination of Discrimination against Women (CEDAW) has urged states with discriminatory laws against women to accelerate the law-review process and to work effectively with legislatures to ensure that all discriminatory legislation is amended or repealed.56 However, while legislation is essential, it is not enough per se for the realization of ESC rights. Therefore, in addition to legislation, other ‘appropriate means’ are necessary, such as the adoption and implementation of strategies, policies and plans of action to guarantee the effective enjoyment of ESC rights. These may include measures to stimulate economic growth and development, increased budgetary allocations to ESC rights, and the adoption of measures necessary to eliminate discrimination in ESC rights. In addition, other appropriate means include the provision of judicial or other effective remedies (e.g. compensation, reparation, restitution, rehabilitation, guarantees of non-repetition, and public apologies); administrative, financial, educational, or informational campaigns; and social measures, all of which must be undertaken to achieve the intended result.

In assessing whether states have complied with the obligation to ‘take steps … by all appropriate means’, the CESCR considers whether the steps (strategies and policies) taken are reasonable or proportionate with respect to the attainment of relevant rights, and comply with human rights and democratic principles, and whether such steps are subject to an adequate framework of monitoring and accountability. In this regard, the strategies and policies adopted by states should provide for the establishment of effective mechanisms and institutions where these do not exist, to investigate and examine alleged infringements of ESC rights, identify responsibilities, publicize the results, and offer the necessary administrative, judicial, or other remedies to compensate victims. This calls for putting in place appropriate means of redress, or remedies to any aggrieved individual or group, and appropriate means of ensuring accountability of states and non-state actors.57 Essentially, this entails making ESC rights justiciable at a national level, and not mere, non-legally enforceable principles and values. The CESCR has stressed this point in its concluding observations on state reports. For example, in May 2009, the CESCR urged the UK ‘to ensure that the Covenant is given full legal effect in its domestic law, that the Covenant rights are made justiciable, and that effective remedies are available for victims of all violations of economic, social and cultural rights’.58 This must be the case for all other states parties to the ICESCR.

3.2 Progressive Realization

The second obligation is to ensure that the steps taken are geared towards a result which is ‘achieving progressively the full realization’ of ESC rights. The appropriateness of the steps taken should therefore be examined by reference to the standard of ‘progressive realization’. But what is meant by ‘progressive’ realization? Does the word ‘progressive’ enable the obligations of states parties ‘to be postponed to an indefinite time in the distant future’, as argued by Hungary during the preparatory work on the ICESCR?59

According to its ordinary meaning, the term ‘progressive’ means ‘moving forward’60 or ‘advancing by successive stages’61 in a manner that is ‘continuous, increasing, growing, developing, ongoing, intensifying, accelerating, escalating, gradual, step by step’.62 Thus, states parties are obliged to improve continuously the conditions of ESC rights, and generally to abstain from taking regressive measures. This notion of progressive realization of ESC rights over a period of time ‘constitutes a recognition of the fact that full realisation of all [ESC rights] will generally not be able to be achieved in a short period of time … reflecting the realities of the real world and the difficulties involved for any country in ensuring full realisation of [ESC rights]’.63 This obligation contrasts with the immediate obligation imposed by Article 2(1) of the ICCPR that obliges states to ‘respect and ensure’ the substantive rights under the ICCPR.

However, the ‘reality is that the full realisation of civil and political rights is [also] heavily dependent both on the availability of resources and the development of the necessary societal structures’.64 As a result, states are also required to take relative positive measures for the realization of civil and political rights.65 For example, the right to a fair trial, as protected by Article 14(1) ICCPR and Article 6 of the ECHR, encompasses the right of access to a court in cases of determination of criminal charges and rights and obligations in a suit at law,66 and the provision of free legal aid if this is ‘indispensable for an effective access to court’67 for individuals who do not have sufficient means to pay for it.68 Accordingly, fair trial necessitates the provision of independent and accessible organs of justice. Despite this, the obligation under the ICCPR is considered to be immediate rather than progressive.

Since the obligation upon states under Article 2(1) of the ICESCR is the progressive achievement of ESC rights, it might be argued that to demand their immediate implementation is not required by the ICESCR. However, some rights under the ICESCR give rise to obligations of immediate effect. One example, as earlier noted, is the right to be free from discrimination in the enjoyment of all ESC rights. The CESCR has stated:

The prohibition against discrimination enshrined in article 2(2) of the Covenant is subject to neither progressive realisation nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.69

Thus, a state cannot argue that it is providing primary education or primary health care to boys immediately but would extend it to girls progressively. Similarly, the argument that a state is paying women less than men for work of equal value until resources are available would not be acceptable, since the right of women to equal remuneration with men for equal work must be implemented immediately.70

Moreover, every substantive ICESCR right has a minimum core content which gives rise to minimum core entitlements to individuals and groups and corresponding minimum core state obligations of immediate effect.71 On the latter, the CESCR has found that, with regard to every substantive ICESCR right, there is

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.72

The CESCR has identified minimum core obligations in several general comments,73 and held that a state party cannot, under any circumstances whatsoever, justify its non-compliance with these core obligations, which are ‘non-derogable’.74 Otherwise, the ICESCR would be largely deprived of its raison d’être. Progressive realization demands that after achieving the minimum core obligations, states have to take appropriate steps to ensure ‘the continuous improvement of living conditions’ necessary for an adequate standard of living, such as adequate food, health, housing, clothing, water and sanitation.75

Furthermore, the CESCR has explained that Article 2 ‘imposes an obligation to move as expeditiously and effectively as possible’ towards the ICESCR’s goal of full realization of the substantive rights under it.76 However, the CESCR has not specified how ‘expeditiously and effectively’ a state should act in achieving the full realization of all ESC rights, but has established in several general comments77 that the full realization of ESC rights, like other human rights, imposes three types or levels of multi-layered state obligations: the obligations to respect, protect and fulfil.78 This approach has also been applied by regional human rights supervisory bodies such as the African Commission on Human and Peoples’ Rights in some of its decisions,79 which provide a useful analytical framework to understand state obligations.

In order to comply with the obligation to achieve ESC rights ‘progressively’, states parties are required to monitor the realization of ESC rights and to devise appropriate strategies and clearly defined programmes (including indicators – carefully chosen yardsticks for measuring elements of the right – and national benchmarks – or targets – for each indicator) for their implementation.80 Monitoring the progressive realization of ESC rights is important because it helps to identify what steps have been most effective, so that these can be maintained, and what steps have been less effective, so that new steps can be adopted. A human rights approach to government actions must begin with a proper understanding of the actual situation in respect of each right, accurate identification of the most vulnerable groups, and the formulation of appropriate laws, programmes and policies.81

The obligation of progressive realization entails a related prohibition of ‘any deliberately retrogressive measures’.82 Unless otherwise justified ‘after the most careful consideration of all alternatives’ and ‘by reference to the totality of the rights provided for in the Covenant in the context of the full use of the state party’s maximum available resources’,83 the adoption of measures (legislation or policy) that cause a clear deterioration or setback in the protection of rights hitherto afforded violates the ICESCR.84 For example, unless justified in accordance with the above criteria, ‘the re-introduction of fees at the tertiary level of education … constitutes a deliberately retrogressive step’,85 especially where adequate arrangements are not made for students from poorer segments of the population or lower socio-economic groups.86 In this respect, while commenting on the UK’s policy on tuition fees for tertiary education, which provides for lower fees for the European Union (EU) member state nationals while subjecting nationals of other states (so-called ‘international students’) to higher levels of fees, the CESCR has stated as follows:

In line with General Comment No. 13 (1999) on the right to education, the Committee encourages the State party to review its policy on tuition fees for tertiary education with a view to implementing article 13 of the Covenant, which provides for the progressive introduction of free education at all levels. It also recommends that the State party eliminate the unequal treatment between EU member State nationals and nationals of other States regarding the reduction of university fees and the allocation of financial assistance.87

Since ESC rights under the ICESCR apply to everyone within a state’s jurisdiction, including non-nationals, the standard of progressive realization requires that nationality and other prohibited grounds should not be a bar to the equal enjoyment of all ESC rights including the right to higher education.

3.3 Obligation to Utilize ‘maximum available resources’

The third obligation is to ensure that ‘maximum available resources’ are allocated for the protection and fulfilment of ESC rights, especially to the most vulnerable and marginalized individuals and groups. Thus, the steps that a state party is obliged to take under Article 2(1) to realize progressively the enumerated rights must be ‘to the maximum of its available resources’.88 Chapman has noted that evaluating progressive realization within the context of resource availability ‘considerably complicates the methodological requirements’ for monitoring.89 There are two practical difficulties in applying this requirement to measure state compliance with the full use of maximum available resources. The first is in determining what resources are ‘available’ to a particular state to give effect to the substantive rights under the ICESCR. The second difficulty is to determine whether a state has used such available resources to the ‘maximum’. It has been suggested that the word ‘available’ leaves too much ‘wriggle room for the state’,90 making it difficult to define the content of the progressive obligation and to establish when a breach of this obligation arises.91 Nonetheless, it is clear that the ICESCR does not make an absurd demand – a state is not required to take steps beyond what its available resources permit. The implication is that more would be expected from high-income states than low-income states, particularly the least developed states.92 This means that both the content of the obligation and the rate at which it is achieved are subject to the maximum use of available resources.

The availability of resources refers not only to those which are controlled by or filtered through the state or other public bodies, but also to the social resources which can be mobilized by the widest possible participation in development, as necessary for the realization by every human being of ESC rights.93 In this respect ‘available resources’ refer to resources available within the society as a whole, ‘from the private sector as well as the public. It is the state’s responsibility to mobilize these resources, not to provide them all directly from its own coffers’.94 As shown below, available resources also include those available through international cooperation and assistance.

Given that one of the major issues in the realization of ESC rights is not resource availability but rather resource distribution, states should demonstrate that the available resources are used equitably and are effectively targeted to subsistence requirements and essential services,95 and targeted towards those that are most in need, including women, children, older persons, persons with disabilities, minorities, migrants, indigenous peoples, and persons living in poverty. To this end, the CESCR requires states to adopt strong, efficient and time-framed measures to promote good governance and combat the corruption that negatively impacts on the availability of resources.96 Corruption may be combated by adopting and strictly applying anti-corruption legislation and measures; intensifying efforts to prosecute cases of corruption and reviewing sentencing policy for corruption-related offences; and raising the awareness of politicians, lawmakers, national and local civil servants, and law enforcement officers on the negative impact of corruption, as well as adopting effective mechanisms to ensure transparency in the conduct of public authorities, in law and in practice. At the same time, states should demonstrate that they are developing societal resources to achieve ESC rights.97 In this respect, it is important to note that although states generally have a ‘margin of discretion’98 to decide how to allocate the available resources, ‘due priority’ must be given to the realization of human rights including ESC rights.99 Thus, it is important for the state to make appropriate choices in the allocation of the available resources in ways which ensure that the most vulnerable are given priority.100 All domestic resources must be considered for use by the state because human rights generally deserve priority over all other considerations.101

In determining state compliance with the obligation to utilize the ‘maximum available resources’, the CESCR has developed in its ‘Concluding Observations’ some useful indicators. One indicator is to consider the percentage of the national budget allocated to specific rights under the ICESCR (such as health, education, housing, and social security) relative to areas outside it (such as military expenditure or debt-servicing). Many resource problems revolve around the misallocation of available resources: for example, to purchase expensive military weapons systems rather than to invest in primary education or primary or preventive health services.102 In 2001, for example, with respect to Senegal, the CESCR stated:

The Committee [was] concerned that funds allocated by the state party for basic social services … fall far short of the minimum social expenditure required to cover such services. In this regard the Committee note[d] with regret that more is spent by the state party on the military and on servicing its debt than on basic social services.103

Similarly, in 2009, the CESCR expressed its concern about the continuous decrease over the past decade of the resources allocated to social sectors in the Democratic Republic of Congo (DRC), notably health and social protection, whereas budgetary allocations to defence and public security had increased considerably to reach 30% of the state expenditures.104 The CESCR concluded that ‘unbalanced budgetary allocations constitute serious breaches in the State party’s obligations under article 2.1 of the Covenant’, and it recommended that the DRC substantially increase its national spending on social services and assistance such as housing, food, health and education, so as to achieve, in accordance with Article 2, paragraph 1, the progressive realization of the ESC rights provided for in the ICESCR.105

It follows that where a state spends more on the military than on basic social services, it would have a high burden to convince the CESCR that it had utilized available resources to the ‘maximum’ as required by the ICESCR. It is, accordingly, imperative to consider the priority or rate of resource allocation to military expenditure in comparison to the expenditure on ESC rights.106 A reordering of priorities and an increase in budgetary allocations for ESC rights may alleviate some of the resource burden of any state. Another indicator that may be applied is to consider the resources spent by a particular state in the implementation of a specific ICESCR right and that which is spent by other states at the same level of development.

It is striking to note that when the OP to the ICESCR enters into force, it would be possible for the CESCR to receive and consider communications submitted by or on behalf of individuals or groups of individuals under the jurisdiction of a state party, claiming to be victims of a violation of any of the ESC rights set forth in the ICESCR against states parties to the OP.107 If a communication was brought against a state party to the ICESCR and its OP, and the state used ‘resource constraints’ as an explanation for any retrogressive steps taken, the CESCR has indicated that it would consider such information on a country-by-country basis in the light of objective criteria such as:

(a) the country’s level of development;

(b) the severity of the alleged breach, in particular whether the situation concerned the enjoyment of the minimum core content of the Covenant;

(c) the country’s current economic situation, in particular whether the country was undergoing a period of economic recession;

(d) the existence of other serious claims on the state party’s limited resources; for example, resulting from a recent natural disaster or from recent internal or international armed conflict;

(e) whether the state party had sought to identify low-cost options; and

(f) whether the state party had sought cooperation and assistance or rejected offers of resources from the international community for the purposes of implementing the provisions of the Covenant without sufficient reason.108

The obligation to take steps to the maximum of a state’s ‘available resources’ means that in making any assessment as to whether a state is in breach of its obligations to achieve the rights recognized under the ICESCR of a particular individual or group, an assessment must be made as to whether the steps taken were ‘adequate’ or ‘reasonable’ by taking into account, inter alia, the following considerations:

(a) the extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights;

(b) whether the state party exercised its discretion in a non-discriminatory and non-arbitrary manner;

(c) whether the state party’s decision (not) to allocate available resources is in accordance with international human rights standards;

(d) where several policy options are available, whether the state party adopts the option that least restricts Covenant rights;

(e).the time frame in which the steps were taken;

(f) whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups and, whether they were non-discriminatory, and whether they prioritized grave situations or situations of risk.109

In the context of an OP communication, where the CESCR considers that a state party has not taken reasonable or adequate steps, the CESCR could make recommendations, inter alia, along four principal lines:

(a) recommending remedial action, such as compensation, to the victim, as appropriate;

(b) calling upon the state party to remedy the circumstances leading to a violation. In doing so, the Committee might suggest goals and parameters to assist the state party in identifying appropriate measures. These parameters could include suggesting overall priorities to ensure that resource allocation conformed with the state party’s obligations under the Covenant; provision for the disadvantaged and marginalised individuals and groups; protection against grave threats to the enjoyment of economic, social and cultural rights; and respect for non-discrimination in the adoption and implementation of measures;

(c) suggesting, on a case-by-case basis, a range of measures to assist the state party in implementing the recommendations, with particular emphasis on low-cost measures. The state party would nonetheless still have the option of adopting its own alternative measures;

(d) recommending a follow-up mechanism to ensure ongoing accountability of the state party; for example, by including a requirement that in its next periodic report the state party explain the steps taken to redress the violation.110

From the above, it is clear that the obligation to use ‘maximum available resources’ may be subjected to judicial or quasi-judicial scrutiny, and, as such, it is not a bar to justiciability. As noted in Section 2 above, domestic courts have dealt with cases that aim at the protection of ESC rights. In South Africa, for example, under the Constitution of the Republic of South Africa (Act 108 of 1996), which guarantees numerous ESC rights, the justiciability of ESC rights has been demonstrated through constitutional case law.111 For example, the case of Minister of Health v Treatment Action Campaign concerned state provision of nevirapine, an antiretroviral drug used to prevent mother-to-child-transmission of HIV.112 Applying the concepts of progressive realization and resource availability, the South African Constitutional Court declared that

Sections 27(1) and (2) of the Constitution require the government to devise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV.113

The programme to be realized progressively within available resources had to include reasonable measures for counselling and testing pregnant women for HIV, counselling HIV-positive pregnant women on the options open to them to reduce the risk of mother-to-child transmission of HIV, and making appropriate treatment available to them for such purposes.114 Simply put, through the institution of the courts, governments can be called upon to account for their decisions affecting ESC rights, and this may impact beneficially on the policymaking process.

Therefore, although the ‘availability of resources’ is an important qualifier to the realization of ESC rights, it does not alter the immediacy of the obligation to ‘take steps’, including legislative and other measures, to achieve the ‘progressive realization’ of these rights. Similarly, resource constraints alone should not justify inaction and certainly should not be seen as a bar to judicial review. Where the available resources are demonstrably inadequate, the obligation remains for a state to ensure the widest possible enjoyment of ESC rights by taking reasonable or adequate steps under the prevailing circumstances. It follows therefore that even in times of severe resource constraints the state must protect the most disadvantaged and marginalized members or groups of society by adopting relatively low-cost targeted programmes for the realization of ESC rights.

3.4 Obligation to Seek (or Provide) International Assistance and Cooperation

The fourth state obligation is to seek or provide international assistance and cooperation whenever it is necessary to do so. The ICESCR refers to international assistance and cooperation, or similar formulations, in five articles.115 International assistance and cooperation may be regarded as one element of the more extensive right to development that was affirmed in the Declaration on the Right to Development (1986)116 and the Vienna Declaration and Programme of Action (1993).117 More recently, 191 states recognized explicitly in the Millennium Declaration the link between the realization of the right to development and poverty reduction, and committed themselves to make ‘the right to development a reality for everyone’ and to free ‘the entire human race from want’.118

Does ‘international assistance and cooperation’ oblige developed states to transfer resources to developing states? And are developing states obliged to seek such ‘assistance and cooperation’? In general, while most developed states give assistance to developing states,119 developed states have consistently denied the existence of any clear legal obligation to transfer resources to the developing states.120 It has further been argued that ‘although there is clearly an obligation to cooperate internationally, it is not clear whether this means that wealthy States Parties are obliged to provide aid to assist in the realisation of the rights in other countries’.121 In the debates surrounding the drafting of the OP to the ICESCR, the representatives of the UK, the Czech Republic, Canada, France and Portugal believed that international cooperation and assistance was an ‘important moral obligation’ but ‘not a legal entitlement’, and they did not interpret the ICESCR to impose a legal obligation to provide development assistance or give a legal right to receive such aid.122 It is not surprising, then, that the final text of the OP contained a weaker provision on ‘international assistance and cooperation’ in its Article 14 by referring only to the ‘need for technical advice or assistance’ in Article 14(1) and establishing a trust fund with a view to ‘providing expert and technical assistance to States Parties’ without prejudice to the obligations of each state party to fulfil its obligations under the ICESCR in Article 14(3) and (4) of the OP. Significantly, however, the OP did not exclude other possible forms of international cooperation and assistance. Although these were not stated in either the ICESCR or its OP, other possible forms of assistance could include the conclusion of international agreements; the provision of human resources, enabling access to literature; the development of collaborative research agendas that enable researchers in developed states to address issues affecting developing states; educational and academic scholarships and exchanges; direct investment; and joint venture programmes in the creation of various projects relating to various aspects of ESC rights.

But if there is no legal obligation underpinning the human rights responsibility of international assistance and cooperation, then, inescapably, all international assistance and cooperation fundamentally rests upon charity.123 Is such a position tenable and acceptable in the twenty-first century? Increasingly, human rights scholars have argued for a legal obligation to underpin international assistance and cooperation.124 The CESCR’s approach also seems to suggest that the economically developed states parties to the ICESCR are under an obligation to assist developing states parties to realize the core obligations of ESC rights. Thus, the CESCR has stressed that ‘it is particularly incumbent on all those who can assist, to help developing countries respect this international minimum threshold’.125 By implication, where a developing state is in need of assistance to comply with its minimum core obligations there is an obligation to seek assistance and cooperation from ‘all those who can assist’.

For example, after identifying core obligations in relation to the right to water, the CESCR emphasized that ‘it is particularly incumbent on states parties, and other actors in position to assist, to provide international assistance and cooperation, especially economic and technical which enables developing countries to fulfil their core obligations’.126 In the course of examination of state reports, the CESCR has enquired into the percentage of gross domestic/national product (GDP/GNP) that developed reporting states dedicate to international cooperation127 and Official Development Assistance (ODA).128 The UN-recommended target/benchmark of 0.7% GDP129 was reiterated along with other targets in the Monterrey Consensus, arising from the 2002 International Conference on Financing for Development.130 This was reaffirmed at the Follow-up International Conference on Financing for Development to Review the Implementation of the Monterrey Consensus, held in Doha on 29 November–2 December 2008.

However, by 2000, only five states had reached or exceeded the target of 0.7% of GDP in ODA.131 Most developed states (particularly the Group of Eight (G8) industrialized states) were far below the level of 0.7%, with an average of 0.22%.132 In 2008–09, for example, Australia devoted only 0.32% of its gross national income (GNI) to ODA.133 In 2007, the only states to reach or exceed the UN’s target of 0.7% of their GNI were Denmark, Luxembourg, The Netherlands, Norway and Sweden.134 The average for all member countries of the Development Assistance Committee (DAC) of the Organization for Economic Cooperation and Development (OECD) was just 0.09%.135

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