A/HRC/17/34
International Convention on the Elimination of All Forms of Racial Discrimination and the
Convention on the Rights of Persons with Disabilities, among others. These international
treaties, in conjunction with a great number of universally agreed declarations and soft law
instruments, determine the legal framework that States must comply with at the domestic
level, even in time of crisis. The Expert’s evaluation in the present report is based
primarily, but not exclusively, on the obligations enshrined in the International Covenant on
Economic, Social and Cultural Rights.
12.
Even when resources are limited, States are legally bound to respect, protect and
fulfil international human rights obligations. For State parties to the International Covenant
on Economic, Social and Cultural Rights, this means, for example, that they must dedicate
the maximum amount of resources available to progressively achieve the full realization of
all economic, social and cultural rights. The human rights perspective distinguishes
between the inability and the simple unwillingness to act.3 States cannot use the economic
damage caused by the crises to justify actions or omissions that amount to violations of
basic human rights obligations. While economic, social and cultural rights are often subject
to the principle of “progressive realization” depending on the availability of resources in
each State, this principle also prescribes particular modes of conduct that are compulsory
for all States, regardless of their level of development. These obligations considerably limit
the discretion of States with regard to the implementation of economic, social and cultural
rights, and require immediate action.
A.
Using the maximum resources available
13.
States must devote the maximum available resources to ensure the progressive
realization of all economic, social and cultural rights as expeditiously and effectively as
possible. In its general comment No. 3, the Committee on Economic, Social and Cultural
Rights stated that this is so even during times of severe resources constraints, whether
caused by a process of adjustment, economic recession, or by other factors. This obligation
imposes limitations on a State’s freedom to allocate available resources. The resources
“available” are not only the resources within a State, but also those available from the
international community through “international assistance and cooperation”. States that do
not possess the necessary resources are obliged to “actively seek assistance” to ensure, at
the very least, minimum essential levels of enjoyment of human rights.4
14.
While several external factors affect the availability of domestic resources, such as
the provision of official development assistance (ODA) and the role of international trade,
compliance with this principle also depends on how the State generates and mobilizes
resources to fund compliance with human rights obligations. For example, if a State
generates too little revenue or allocates a high proportion of its budget to defence, its ability
to provide sufficient levels of public services will be compromised.
B.
Ensuring minimum essential levels of economic, social and cultural
rights
15.
State parties to the International Covenant on Economic, Social and Cultural Rights
have an immediate minimum core obligation to ensure the satisfaction of, at the very least,
3
4
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, para. 13.
Committee on Economic, Social and Cultural Rights, general comments No. 4, para. 10, No. 5, para.
13 and No. 11, para. 11.
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