CESCR General Comment No. 3: The Nature of States Parties’ Obligations
(Art. 2, Para. 1, of the Covenant)
Adopted at the Fifth Session of the Committee on Economic,
Social and Cultural Rights, on 14 December 1990
(Contained in Document E/1991/23)
1.
Article 2 is of particular importance to a full understanding of the Covenant
and must be seen as having a dynamic relationship with all of the other provisions of
the Covenant. It describes the nature of the general legal obligations undertaken by
States parties to the Covenant. Those obligations include both what may be termed
(following the work of the International Law Commission) obligations of conduct and
obligations of result. While great emphasis has sometimes been placed on the
difference between the formulations used in this provision and that contained in the
equivalent article 2 of the International Covenant on Civil and Political Rights, it is
not always recognized that there are also significant similarities. In particular, while
the Covenant provides for progressive realization and acknowledges the constraints
due to the limits of available resources, it also imposes various obligations which are
of immediate effect. Of these, two are of particular importance in understanding the
precise nature of States parties obligations. One of these, which is dealt with in a
separate general comment, and which is to be considered by the Committee at its sixth
session, is the “undertaking to guarantee” that relevant rights “will be exercised
without discrimination ...”.
2.
The other is the undertaking in article 2 (1) “to take steps”, which in itself, is
not qualified or limited by other considerations. The full meaning of the phrase can
also be gauged by noting some of the different language versions. In English the
undertaking is “to take steps”, in French it is “to act” (“s’engage à agir”) and in
Spanish it is “to adopt measures” (“a adoptar medidas”). Thus while the full
realization of the relevant rights may be achieved progressively, steps towards that
goal must be taken within a reasonably short time after the Covenant’s entry into
force for the States concerned. Such steps should be deliberate, concrete and targeted
as clearly as possible towards meeting the obligations recognized in the Covenant.
3.
The means which should be used in order to satisfy the obligation to take steps
are stated in article 2 (1) to be “all appropriate means, including particularly the
adoption of legislative measures”. The Committee recognizes that in many instances
legislation is highly desirable and in some cases may even be indispensable. For
example, it may be difficult to combat discrimination effectively in the absence of a
sound legislative foundation for the necessary measures. In fields such as health, the
protection of children and mothers, and education, as well as in respect of the matters
dealt with in articles 6 to 9, legislation may also be an indispensable element for many
purposes.
4.
The Committee notes that States parties have generally been conscientious in
detailing at least some of the legislative measures that they have taken in this regard.
It wishes to emphasize, however, that the adoption of legislative measures, as