implementing its obligations.126 Perhaps the Anglo-common law heritage of the standard
helped to assuage the hostility of the main opponents of a complaints mechanism.127
In outlining the scope of “reasonableness”, the Committee has largely adopted the South
African approach, including whether the steps have “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”.128
It has also made an explicit reference to proportionality, noting that it will consider to
which extent, “ where several policy options are available, the state party has adopted the
option that least restricts Covenant rights”. 129 The likely consolidation of national
jurisprudence within the complaints mechanism will give greater migratory flight to the
reasonableness standard for diverse constitutional systems.130
While the constraints on an international treaty body are different from a constitutional
court, there are cross-fertilizations back and forth in the standards and forms of review. In
126
OP-ICESCR, supra note 20 at art. 8(4).
Catarina de Albuquerque. Chronicle of an Announced Birth: The Coming into Life of the Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights-The Missing Piece of the
International Bill of Human Rights 31.1 HUMAN RIGHTS QUARTERLY 144, 161 (2010) (opponents
including Australia, Canada, and the United States.)
128
CESCR, Statement, An Evaluation Of The Obligation To Take Steps To The “Maximum Of Available
Resources” Under An Optional Protocol To The Covenant para. 8(d), UN Doc. E/C.12/2007/1 (Sept. 21
2007) .
129
Id. para 8(f); see also Eibe Riedel et al., The Development of Economic, Social and Cultural Rights in
International Law, in ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN INTERNATIONAL LAW 31 (Eibe Riedel
et al., eds., 2014).
130
While 164 states have ratified the International Covenant on Economic, Social and Cultural Rights, it
should be noted that only 21 have to date ratified the OP-ICESCR: see U.N. Human Rights Office of the
High Commissioner, International Covenant on Economic, Social and Cultural Rights, Status of
Ratification, (Mar. 30, 2016), http://indicators.ohchr.org/ [https://perma.cc/CR5E-VUHJ]. On local
diversity, see Brinks et al, supra note 1.
127
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