COMMITTEE ON ECONOMIC, SOCIAL AND CULTURE RIGHTS
GENERAL COMMENT NO 3 (1990)
The nature of States parties obligations (art. 2, para. 1)
[Committee on Economic, Social and Cultural Rights, Report on the Fifth Session (26 November 1-14
December 1990) Economic and Social Council, Official Records, 1991, Supplement No 3, UN Doc 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 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 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 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 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 specifically foreseen by the Covenant, is by no means exhaustive of the obligations of
States parties. Rather, the phrase by all appropriate means must be given its full and natural meaning. While
each State party must decide for itself which means are the most appropriate under the circumstances with
respect to each of the rights, the appropriateness of the means chosen will not always be self-evident. It is
therefore desirable that States parties' reports should indicate not only the measures that have been taken but
also the basis on which they are considered to be the most appropriate under the circumstances.
However, the ultimate determination as to whether all appropriate measures have been taken remains one for
the Committee to make.
5. Among the measures which might be considered appropriate, in addition to legislation, is the provision of
judicial remedies with respect to rights which may, in accordance with the national legal system, be considered
justiciable. The Committee notes, for example, that the enjoyment of the rights recognized, without
discrimination will often be appropriately promoted, in part, through the provision of judicial or other effective
remedies.
Indeed, those States parties which are also parties to the International Covenant on Civil and Political Rights are
already obligated (by virtue of arts. 2(1), 2(3), 3 and 26) of that Covenant to ensure that any person whose rights
or freedoms (including the right to equality and non-discrimination) recognized in that Covenant are violated,
shall have an effective remedy (art.2(3)(a)). In addition, there are a number of other provisions in the
International Covenant on Economic, Social and Cultural Rights, including articles 3, 7(a)(i), 8, 10(3), 13(2)(a),
13(3), 13(4) and 15(3) which would seem to be capable of immediate application by judicial and other organs in
many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing
would seem to be difficult to sustain.
6. Where specific polices aimed directly at the realization of the rights recognized in the Covenant have been
adopted in legislative form, the Committee would wish to be informed, inter alia as to whether such laws create
any right of action on behalf of individuals or groups who feel that their rights are not being fully realized. In
cases where constitutional recognition has been accorded to specific economic, social and cultural rights, or
where the provisions of the Covenant have been incorporated directly into national law, the Committee would
wish to receive information as to the extent to which these rights are considered to be justiciable (i.e. able to be
invoked before the courts).
The Committee would also wish to receive specific information as to any instances in which existing
constitutional provisions relating to economic, social and cultural rights have been weakened or significantly
changed.
7. Other measures which may also be considered appropriate for the purposes of article 2(1) include, but are
not limited to, administrative, financial, educational and social measures.
8. The Committee notes that the undertaking to take steps by all appropriate means including particularly the
adoption of legislative measures; neither requires nor precludes any particular form of government or economic
system being used as the vehicle for the steps in question, provided only that it is democratic and that all human
rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its
principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability
of a, socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other
particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are
susceptible of realization within the context of a wide variety of economic and political systems, provided only
that the interdependence and indivisibility of the two sets of human rights, as affirmed in the Preamble to the
Covenant,is recognized and reflected in the system in question. The Committee also notes the relevance in this
regard of other human rights and in particular the right to development.
9. The principal obligation of result reflected in article 2(1) is to take steps; with a view to achieving
progressively the full realization of the rights recognized in the Covenant.
The term progressive realization is often used to describe the intent of this phrase. The concept of progressive
realization constitutes a recognition of the fact that realization of all economic, social and cultural rights will
generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly
from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an
immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over
time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving
the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the
realities of the real world and the difficulties involved for any country in ensuring full realization of economic,
social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed
the raison of the Covenant which is to establish clear obligations for States parties in respect of the full
realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as
possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the
most careful consideration and would need to be fully justified by reference to the totality of the rights provided
for in the Covenant and in the context of the full use of the maximum available resources.
10. On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it,
over a period of more than a decade of examining States parties reports the Committee is of the view that a
minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the
rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of
individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or
of the most basic forms of education is prima facie failing to discharge its obligations under the Covenant. If the
Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely
deprived of its raison. By the same token, it must be noted that any assessment as to whether a State has
discharged its minimum core obligation must also take account of resource constraints applying within the
country concerned.
Article 2(1) obligates each State party to take the necessary steps to the maximum of its available resources. In
order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of
available resources it must demonstrate that every effort has been made to use all resources that are at its
disposition in an effort to satisfy, as a matter of priority, those minimum obligations.
11. The Committee wishes to emphasize, however, that even where the available resources are demonstrably
inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the
relevant rights under the prevailing circumstances.
Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of
economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any
way eliminated as a result of resource constraints. The Committee has already dealt with these issues in its
General Comment No.1 (1989).
12. Similarly, the Committee underlines the fact that even in times of severe resources constraints whether
caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society
can and indeed must be protected by the adoption of relatively low-cost targeted programmes. In support of this
approach the Committee takes note of the analysis prepared by UNICEF entitled. Adjustment With a Human
Face: Protecting the Vulnerable and Promoting Growth the analysis by the United Nations Development
Programme in its Human Development Report 1990 and the analysis by the World Bank in the World
Development Report 1990.
13. A final element of article 2(1), to which attention must be drawn, is that the undertaking given by all States
parties is to take steps, individually and through international assistance and co-operation, especially economic
and technical.
The Committee notes that the phrase to the maximum of its available resources was intended by the drafters of
the Covenant to refer to both the resources existing within a State and those available from the international
community through international co-operation and assistance. Moreover, the essential role of such co-operation
in facilitating the full realization of the relevant rights is further underlined by the specific provisions contained
in articles 11, 15, 22 and 23. With respect to article 22 the Committee has already drawn attention, in General
Comment No.2 (1990), to some of the opportunities and responsibilities that exist in relation to international co-
operation. Article 23 also specifically identifies the furnishing of technical assistance as well as other activities,
as being among the means of international action for the achievement of the rights recognized.
14. The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter
of the United Nations, with well-established principles of international law, and with the
provisions of the Covenant itself, international law, international co-operation for
development and thus for the realization of economic, social and cultural rights is an obligation
of all States. It is particularly incumbent upon those States which are in a position to assist
others in this regard. The Committee notes in particular the importance of the Declaration on
the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December
1986 and the need for States parties to take full account of all of the principles recognized
therein. It emphasized that, in the absence of an active programme of international assistance
and co-operation on the part of all those States that are in a position to undertake one, the
full realization of economic, social and cultural rights will remain an unfulfilled aspiration
in many countries. In this respect, the Committee also recalls the terms of its General Comment
No. 2 (1990).