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to avoid realizing conditional rights merely by virtue of its allocation of the
budget.”40 Rather, it is an assessment of whether, with a national income
of Y, resources that, could in principle, be allocated for social welfare are
sufficient to fulfill the welfare basket, regardless of what is actually spent.
The quantum of financial resources considered available must, therefore,
be all of those over which the duty-bearer has control. Yet this formulation
still lacks precision. While it has been established that maximum available
financial resources refer to the income that has been accumulated, which
could in principle form part of the national budget, what about those resources that could in principle be received from overseas? Since Article 2(1)
of the ICESCR provides that ��[e]ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and
co-operation . . . with a view to achieving progressively the full realization
of the rights recognized in the present Covenant,”41 it could be presumed
that maximum available resources for the fulfillment of social rights are endowed with an international dimension as well as a domestic one. For the
purposes of operationalizing maximum available resources, this assumption
needs to be examined more closely. If there is an international obligation
to provide assistance to fulfill social rights,42 what is its nature and scope
and what implications does it have for determining a duty-bearer’s ability
to fulfill the welfare basket?
Though the provision in Article 2(1) is one attempt at making the duty of
international assistance and cooperation a legally binding one,43 its meaning
is far from generally accepted.44 This is not only the case with reference to
the scholarly work that has been done on the use of the phrase as a result
of the provision but also with reference to whether, and how, the provision
should have been articulated in the Covenant in the first place.45 The central
40. Bilchitz, supra note 15, at 228.
41. ICESCR supra note 6, art. 2, ¶ 1 (emphasis added).
42. Such obligations are often also referred to as transnational obligations, extraterritorial
obligations, or as shared responsibilities. See, e.g., Sigrun I. Skogly, Global Responsibility for Human Rights, 29 Oxford J. Legal Stud. 827 (2009); Margot E. Salomon, Global
Responsibility for Human Rights: World Poverty and the Development of International Law
(2007).
43. Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N.
GAOR, 44th Sess., art. 24, ¶ 4, U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3 (entered into
force 2 Sept. 1990) (requiring that “States Parties undertake to promote and encourage
international co-operation.”).
44. Economic, Social and Cultural Rights: A Textbook, supra note 11, at 125; Sigrun I. Skogly,
Beyond National Borders: States’ Human Rights Obligations in International Cooperation (2006);
Salomon, supra note 42, at 64–111; Global Justice, State Duties: The Extraterritorial Scope
Of Economic, Social And Cultural Rights in International Law (Malcolm Langford, Wouter
Vandenhole, Martin Scheinin, & Willem van Genugten eds., 2013).
45. Alston & Quinn, supra note 39, at 188–89 (discussing the drafting history of the ICESCR
in so far as the provision of international assistance and cooperation did not extend
much, if at all, beyond a general proposition).