General comment No. 3: The nature of States parties’ obligations

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CESCR General Comment No. 3:  The Nature of States Parties’ Obligations 

(Art. 2, Para. 1, of the Covenant) 

Adopted at the Fifth Session of the Committee on Economic,  

Social and Cultural Rights, on 14 December 1990 

(Contained in Document 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 International 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 of 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 “undertaking to guarantee” 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” (“s’engage à agir”) 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 

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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 articles 2 (paras. 1 and 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), (3) and (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 policies 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 

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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 laissez-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 inter alia 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 full 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 d’être, 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 d’être.  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 

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“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,

1

 the analysis by UNDP in its Human Development Report 1990

2

 and the 

analysis by the World Bank in the World Development Report 1990.

3

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 cooperation, 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 

cooperation and assistance.  Moreover, the essential role of such cooperation 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 

cooperation.  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 

 

1

  G.A.  Cornia, R.  Jolly and F.  Steward, Eds., Oxford, Clarendon Press, 1987. 

2

  Oxford, Oxford University Press, 1990. 

 

3

  Oxford, Oxford University Press, 1990. 

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cooperation 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 

emphasizes that, in the absence of an active programme of international assistance and 

cooperation 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). 

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Document Outline

• CESCR General Comment No. 3:  The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)