Chapter 2 | Page 81
norms should be recognised within the domestic legal and administrative
order, with appropriate means of redress and remedies available to any
aggrieved individual or group, and appropriate means of ensuring
governmental accountability must be put in place.182 Accessible and effective
remedies, which include compensation, reparation, restitution, rehabilitation,
guarantee of non-repetition and public apologies, are the best approach to
protecting ESC rights.183 Taking appropriate legislative, administrative and
other measures to prevent violations in the first place, in addition to prompt
investigation, equal access to justice and providing effective remedies are key
obligations on States.184
Given the inherent difficulty of establishing violations of ESC rights obligations,
particularly by the States, distinguishing between a State’s inability and
unwillingness to comply with the obligations is likely to provide a clearer
conceptual basis for violations monitoring.185 The government’s margin of
appreciation (discretion) to make policy decisions should also be factored in
to determine the degree of violation.186
2.3.5 Compliance and monitoring procedures
State reporting is an important measure to ‘effectively evaluate the extent to
which progress has been made towards the realization of the obligations’.187
182
CESCR General Comment No 9, E/C.12/1998/24, above n 168, [2].
183
Liebenberg, above n 165, 55, 57; Ssenyonjo, above n 10, 976.
184
United Nations General Assembly, Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law, 16th sess, UN Doc
A/RES/60/147 (21 March 2006).
185
Asbjørn Eide, 'Economic, Social and Cultural Rights as Human Rights' in Asbjørn Eide,
Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook
(Martinus Nijhoff Publishers, Leiden, 2001) 9-28, 26.
186
Arne Vandenbogaerde and Wouter Vandenhole, 'The Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment
of its Effectiveness in Light of the Drafting Process' (2010) 10(2) Human Rights Law
Review 207-237, 223; International Commission of Jurists (ICJ), above n 106, [8].
187
Committee on Economic, Social and Cultural Rights, General Comment No 1: Reporting
by States Parties, 3rd sess, UN Doc E/1989/22 (24 February 1989), [6].
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