E/C.12/2007/1
Page 3
(b)
Whether the State party exercised its discretion in a non-discriminatory and nonarbitrary manner;
(c)
Whether the State party’s decision (not) to allocate available resources was in
accordance with international human rights standards;
(d)
Where several policy options are available, whether the State party adopted the
option that least restricts Covenant rights;
(e)
The time frame in which the steps were taken;
(f)
Whether the steps had taken into account the precarious situation of
disadvantaged and marginalized individuals or groups and, whether they were nondiscriminatory, and whether they prioritized grave situations or situations of risk.
9.
The Committee notes that in case of failure to take any steps or of the adoption of
retrogressive steps, the burden of proof rests with 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.
10.
Should a State party use “resource constraints” as an explanation for any retrogressive
steps taken, the Committee would consider such information on a country-by-country basis in
the light of objective criteria such as:
(a)
The country’s level of development;
(b)
The severity of the alleged breach, in particular whether the situation concerned
the enjoyment of the minimum core content of the Covenant;
(c)
The country’s current economic situation, in particular whether the country was
undergoing a period of economic recession;
(d)
The existence of other serious claims on the State party’s limited resources; for
example, resulting from a recent natural disaster or from recent internal or international armed
conflict.
(e)
Whether the State party had sought to identify low-cost options; and
(f)
Whether the State party had sought cooperation and assistance or rejected offers
of resources from the international community for the purposes of implementing the provisions
of the Covenant without sufficient reason.
11.
In its assessment of whether a State party has taken reasonable steps to the maximum of
its available resources to achieve progressively the realization of the provisions of the Covenant,
the Committee places great importance on transparent and participative decision-making
processes at the national level. At all times the Committee bears in mind its own role as an
international treaty body and the role of the State in formulating or adopting, funding and
implementing laws and policies concerning economic, social and cultural rights. To this end,
and in accordance with the practice of judicial and other quasi-judicial human rights treaty
bodies, the Committee always respects the margin of appreciation of States to take steps and
adopt measures most suited to their specific circumstances.