discharging the obligation to take steps using maximum available resources ‘may require resource
mobilisation by the state, including by enforcing progressive taxation schemes’.28
The obligation to devote maximum available resources
The obligation to devote ‘maximum available resources’ for the realisation of economic, social and
cultural rights is contained in three prominent, widely ratified human rights treaties: the ICESCR
(Article 2); the CRC (Article 4) and the CRPD (Article 4.2).29 Thus, the vast majority of states are
bound by this obligation as contained in any of these treaties.
While at first glance this obligation may appear vague, human rights monitoring bodies – in
particular the CESCR and CRC – as well as academic writers and practitioners, have offered
additional clarification.30 Thus, today, there is greater clarity about several specific and practical
aspects of this obligation. Yet, as we shall see in the present study, despite great progress made, there
are still aspects of this concept that remain ill-defined.
What are ‘resources’?
Special procedures and treaty bodies are not always explicit about the meaning of resources in
their work. In 2011, a group of academics and practitioners met to further clarify the concept of
‘maximum available resources’ and concluded that the CESCR, CRC and several special procedures
often provided a narrow interpretation of this concept, ‘assuming that available resources have been
fixed by previous policy choices and that the government’s main duty lies in efficient administration
of these resources’. Thus, in their view, human rights monitoring bodies ‘have tended to limit analysis
to budget expenditure and international assistance, while overlooking other determinants of the full
set of resources available to realise human rights – including monetary policy, financial sector policy
and deficit financing’.31
28
CESCR, General Comment No 24 on State Obligations under the International Covenant on Economic, Social and
Cultural Rights in the Context of Business Activities (2017) E/C.12/GC/24, para 23.
29
Different states have different obligations depending on which human rights treaties they have ratified. As of July 2017,
165 states are parties to the ICESCR; all states except the US are parties to the CRC; and 174 states are parties to the CRPD. For a
complete list of UN human rights treaty Member States, see http://indicators.ohchr.org accessed 20 October 2017.
30
Human rights monitoring bodies as well as academics have addressed these issues. See, eg, CESCR ‘An Evaluation of
the Obligation to Take Steps to the “Maximum of Available Resources” under an Optional Protocol to the Covenant’
UN Doc E/C.12/2007/1 (2007); CRC General Comment no 5, para 51, and ‘Day of General Discussion – Resources
for the Rights of the Child: Responsibility of States’, 46th Session (2007); Danilo Türk, ‘The Realisation of Economic,
Social and Cultural Rights: Final Report submitted by Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities’ (1992) UN Doc E/CN.4/Sub.2/1992/16; Robert E Robertson, ‘Measuring
State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realising Economic, Social, and
Cultural Rights’ (1994) 16(4), Human Rights Quarterly 693; Radhika Balakrishnan et al, Maximum Available Resources
& Human Rights: Analytical Report (Center for Women’s Global Leadership 2011); Sigrun Skogly, ‘The Requirement of
Using the “Maximum of Available Resources” for Human Rights Realisation: A Question of Quality as Well as Quantity?’
(2012) 12 Human Rights Law Review 393; Alison Graham, National debt versus the right to social security: How should states’
obligations during a financial crisis be interpreted? (2016) PhD thesis, Lancaster University.
31
Radhika Balakrishnan et al, Maximum Available Resources & Human Rights: Analytical Report (Center for Women’s Global
Leadership 2011), p 2.
28
The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies December 2017
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents