Chapter 1 | Page 7
disposition given the vast array of economic, social and political variables that
determine the ability of the State to mobilise and allocate resources to advance
its policy objectives, including human rights. These conceptual difficulties are
addressed in the work of several scholars, who identify the notions of
‘maximum available resources’ and associated progressive realisation as the
‘wiggle room’16 or an ‘escape hatch’17 for States when it comes to their
obligations with regard to implementing and ensuring the realisation of ESC
rights.
The concept of ‘maximum available resources’ has also attracted significant
consideration and extensive discussion by the Committee on Economic,
Social and Cultural Rights (ESCR Committee),18 Special Rapporteurs, and
human rights scholars.19 The importance and the need to further explicate this
concept is evident in a statement issued by the ESCR Committee in 2007
entitled An Evaluation of the Obligation to Take Steps to the ‘Maximum of
Available Resources’ under an Optional Protocol to the Covenant, which
provides some insights into how the Committee interprets the concept.20
Although the statement did not provide a comprehensive definition of
resources required for the realisation of ESC rights, it identifies a number of
broad conceptual parameters of resources including those available
16
See, Robert E Robertson, 'Measuring State Compliance with the Obligation to Devote the
"Maximum Available Resources" to Realizing Economic, Social, and Cultural Rights'
(1994) 16 Human Rights Quarterly 693-714.
17
See, Eitan Felner, 'Closing the ‘Escape Hatch’: A Toolkit to Monitor the Progressive
Realization of Economic, Social, and Cultural Rights' (2009) 1 Journal of Human Rights
Practice 402-435.
18
The ESCR Committee comprises 18 independent experts and is responsible for
monitoring the implementation of the Covenant and from time to time provides its
interpretation of the provisions of the Covenant in the form of General Comments. The
Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry
out the monitoring functions assigned to the United Nations Economic and Social Council
(ECOSOC) in Part IV of the Covenant.
19
For example, Committee on Economic, Social and Cultural Rights, An evaluation of the
Obligation to take steps to the "Maximum Available Resources" under an Optional
Protocol to the Covenant, 38th sess, UN Doc E/C.12/2007/1 (10 May 2007); María
Magdalena Sepúlveda, The Nature Of The Obligations Under The International Convenant
On Economic, Social And Cultural Rights (Intersentia, Utrecht, 2003); Danilo Türk, The
Realization of Economic, Social and Cultural Rights, 44th sess, Agenda Item 8 of the
provisional agenda, UN Doc E/CN.4/Sub.2/1992/16 (3 July 1992).
20
An evaluation of the Obligation to take steps to the "Maximum Available Resources" under
an Optional Protocol to the Covenant, E/C.12/2007/1, above n 19, [4].
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