Chapter 2 | Page 62
if the State’s obligation to take steps is dependent on the ‘maximum available
resources’, then ‘lack of resources could always be pleaded’.76 Throughout its
interpretive work, the ESCR Committee noted that the drafters of the Covenant
took the meaning of ‘maximum available resources’ to include both resources
within the State and those available from the international community through
co-operation and assistance.77
Given the resources focus of this thesis, the concept of ‘maximum available
resources’ is discussed separately in Section 3 of this chapter.
‘Progressively the full realization’
The expression ‘progressive realisation’ in the ICESCR is a reflection of the
flexibility necessary for States to work towards the realisation of ESC rights,
given the social, economic and political realities of the world. This does not,
however, diminish the State’s obligations in relation to the overall objectives of
the Covenant. During the Covenant’s drafting process, there was debate as to
whether the concept of ‘full realisation’ of the rights should be seen within the
scope of the rights ratio materiae, ratio personae and ratio loci and whether a
‘particular right could be said to be fully realised only when all people in all
parts of the country enjoy the right at the requisite level.78
The word ‘progressively’ was seen to be both necessary and valuable since it
‘introduced a dynamic element, indicating that no final fixed goal had been set
in the implementation of the economic, social and cultural rights, since the
essence of progress was continuity.’79 Hence, the provisions of progressive
realisation afforded the States necessary leeway in implementing ESC rights
policies. However, while ‘progressive realisation’ provision gives poorer States
some flexibility in meeting their obligations, some concern was raised at the
76
Ibid., para 23.
77
CESCR General Comment No 3, E/1991/23, above n 49; Specific provisions contained in
articles 11, 15, 22 and 23 also underline the role of such co-operation.
78
Craven, above n 17, 88.
79
Summary record of the 236th meeting of the Commission on Human Rights, above n 73,
p. 20.
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