Chapter 2 | Page 91
Thus, in cases of failure to take positive steps or adoption of retrogressive
steps, the burden of proof is on the State party ‘to show that such a course of
action was based on the most careful consideration and can be justified by
reference to the totality of the rights provided for in the Covenant and by the
fact that full use was made of available resources.’225
In situations where resources available to a State are inadequate, the
obligation to ensure that the available resources are used most effectively to
ensure the widest possible enjoyment of rights remains, particularly with
regard to protection of the rights of the most disadvantaged and marginalised
groups in the society. In times of severe economic constraint, States have an
obligation to take administrative, legal and other steps to the maximum of
available resources at an ‘adequate’ or ‘reasonable’ level. The Committee’s
proposition in relation to adopting ‘relatively low-cost’ programmes suggests
that the State should use the limited available resources in the most effective
manner to achieve the greatest results.
The Concluding Observations provide further insight into the State’s
obligations under resource constraints. The issue is highlighted in a number
of reports in which the Committee recognised the limited resources available
to the State under review and to take steps to make the best allocation of these
limited resources.226 The impact of environmental degradation on the State’s
ability to mobilise resources for ESC rights is also identified in some cases.227
It is recognised that the State is required to implement measures to protect the
most vulnerable during economic and financial reform processes to minimise
the negative impacts of these changes.228
225
Ibid., [9].
226
CESCR, Concluding observations: Georgia, E/C.12/1/Add.42 (17 May 2000).
227
CESCR, Concluding observations of the Mongolia, E/C.12/1/Add.47 (1 September 2000).
228
CESCR, Concluding observations: Kenya, E/C.12/1993/6 (3 June 1993), [6].
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