2.3.1 State obligations stemming from international law

1. State obligations stemming from international law

Developments in the understanding of the nature and scope of State obligations have been greatly contributed to by the work of international legal experts. This work has in turn inspired the UN CESCR in its own interpretive function. This is particularly so in the case of the Limburg Principles on the Implementation of the ICESCR,^[42] which remain a very useful document for legal practitioners.

The Limburg Principles are the first of a series of three documents elaborated and adopted by international legal experts in the area of ESC rights. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted in 1986, defined the scope and nature of State obligations under the ICESCR.

Ten years later, early 1997, the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights were adopted and provided guidance as to what acts and omissions constitute violations of ESC rights.

Both documents are reproduced in the ICJ Compilation of Essential Documents, accessible at: https://www.icj.org/economic-social-and-cultural-rights-a-compilation-of-essential-documents/ (pp. 63-92).

More recently a third document was adopted by international legal experts: The 2011 Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights defined the scope and nature of State obligations to individually and jointly respect, protect and fulfil ESC rights beyond their borders. This document is accessible at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/12/Maastricht-ETO-Principles-ENG-booklet.pdf

1.1 General Obligations

General Comment No. 3 of the UN Committee on Economic, Social and Cultural Rights concretely explains the general nature of obligations of States parties to the treaty. States parties who want to implement in good faith the ICESCR must:

Take all appropriate measures (including, but not limited to legislative measures) toward the realization of ESC rights;
Foresee remedies in legislative texts introducing policies relevant for the realization of ESC rights;^[43]
Adopt targeted, effective and low-cost programmes to protect the most at risk, even in instances of limited resources.

It should be highlighted that the adoption and implementation of national human rights plans is considered internationally as a best practice and can represent a useful tool for a coherent and effective action towards the realization of all human rights. In the area of ESC rights the enactment of framework legislation, and the adoption of national plans and strategies towards the full realization of rights, has been recommended by the CESCR in a wide variety of instances.^[44] These strategies are identified as a crucial element of compliance with the obligation to fulfil the rights enshrined in the ICESCR. They should not only be embedded within the human-rights framework, following fundamental principles such as participation, accountability, rule of law and transparency, but they should also set clear targets and benchmarks against which to check State performance towards the full realization of these rights. Plans and framework legislation should also establish and indicate the particular remedies that rights holders have at their disposal to claim their rights and to complain against violations.

In addition to the general framework described, UN treaty bodies, especially the CESCR, as well as regional and national courts and authorities have fundamentally contributed to interpret and operationalize the provisions of relevant international instruments. In particular, great progress has been achieved in defining the scope of State obligations with regard to ESC rights. As mentioned in the section above regarding misconceptions in this field, the work of the CESCR, among others, has largely contributed to “demystifying” ESC rights and challenging the perception that justiciability over these rights would open the door to all kinds of unreasonable claims upon the State. For instance, it is today well established that the right to health is not the right of everyone to be healthy or that the rights to work and to housing do not result in a right of everyone to claim a job or a house from the State. Rather, States must ensure minimal level of protection in these areas and exert their best efforts toward full realization, using the maximum of available resources and appealing to international cooperation and assistance when necessary.^[45] States have also a negative obligation not to interfere with the enjoyment of ESC rights, and to take protective measure to prevent third parties from doing so.

Immediate and progressive realization, non-retrogression

Although the International Covenant on Economic, Social and Cultural Rights lays out the general obligation of progressive achievement with respect to the rights enumerated in the Covenant,^[46] the Committee on ESC rights and other authorities have identified that not every aspect of a particular right is subject to this progressive qualifier. In realizing rights, the State has general and specific obligations. A specific ESC right can therefore be translated into a series of obligations, some of which are of an immediate nature and others of which are subject to progressive realization.

The Committee has in its General Comments indicated certain elements of provisions “capable of immediate application by judicial and other organs in many national legal systems”.^[47] These include ICESCR provisions such as article 2(2) on non-discrimination; article 3 specifically on equality between men and women; article 7(a)(i) on fair wages and equal remuneration; article 8 on the right to form trade unions and the right to strike; article 10(3) on the special protection of minors; article 13(2)(a) on compulsory free-of-charge primary education; article 13(3) on freedom of parents’ choice in educational matters; article 13(4) on private education; and article 15(3) on freedom of scientific research. These obligations continue to apply at all times, even in times of economic crisis.^[48]

While these provisions have been identified as being of immediate application, the obligation “to take steps” also imposes obligations of immediate effect to take deliberate and targeted steps and use all appropriate means.^[49] These include legislative measures, such as the incorporation of the ICESCR into domestic law, and the provision of judicial or administrative remedies. It also includes other appropriate means such as administrative, financial, educational or social measures.^[50] For example, adopting and implementing a national strategy and plan of action in the field of education, health, or water and sanitation can be related to the immediate obligation to “take steps”.^[51]

Obligations of immediate application are also expressed in the concept of the minimum core content of each of the ESC rights. This obligation creates a fundamental minimum level of obligations that includes the negative duty of States not to arbitrarily interfere with the exercise by individuals of their human rights. The core content of ESC rights is explored in more detail in the section below.

Obligations of immediate effect thus include the following elements:

An obligation to prioritize the achievement of the minimum essential level of each right and the individuals and groups who are the most dis-advantaged;
An obligation not to discriminate among different groups of people in the realization of rights;
An obligation to take steps (including devising specific strategies and programmes) deliberately targeted towards the full realization of rights.

Obligations of progressive realization

The concept of “progressive realization” is premised on the understanding that the realization of ESC rights in their entirety “will generally not be able to be achieved in a short period of time… reflecting the realities of the real world and the difficulties involved for any country in ensuring [their] full realization”.^[52] This limitation has often been used to justify States’ inactivity. However, the Committee has clarified that progressivity “should not be misinterpreted as depriving the obligation of all meaningful content”.^[53] Considered in light of the “overall objective, indeed the raison d’être” of the Covenant, the Committee clarifies that article 2(1) “imposes an obligation to move as expeditiously and effectively as possible” towards the full realization of Covenant rights.^[54] States must not remain inactive and must not defer to another time the design and implementation of steps that aim at the full realization of ESC rights. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting obligations under the Covenant.^[55]

In imposing an obligation to move as “expeditiously and effectively as possible” towards the Covenant’s goal, the ICESCR generally prohibits any measures that may involve a step back in the level of enjoyment of ESC rights.^[56] The Committee has in this context invoked the term “retrogressive measures”, to refer to certain State practices that undermine the protection afforded to ESC rights.^[57] General Comment No. 4 on the right to adequate housing provides an illustration of retrogressive measures in the context of housing:

“[A] general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant.”^[58]

As a rule, adoption of a deliberately retrogressive measure, whether through direct action of the State or resulting from a failure of the State to regulate or otherwise protect against the misfeasance of non-State entities, which adversely affects any of the ESC rights would likely be in breach of obligations imposed by the ICESCR.^[59] There is in this regard a “strong presumption of impermissibility of any retrogressive measures” taken in relation to substantive rights.^[60] Retrogressive measures are in this way prima facie incompatible with the Covenant. States have a resulting burden of proof to justify the lawfulness of any such measures with due regard for the limitations provisions of article 4 of the ICESCR.^[61] Thus, a State that takes such measures will have the onus of proving that the measures taken are in pursuit of a compelling goal; that these measures are strictly necessary; and that there are no alternative or less restrictive measures available.^[62]

Core content of obligations

Another key aspect in the context of ESC rights is the concept of a minimum core content of all ESC rights. This minimum core content (also known as “vital minimum”, “minimum core obligations”, or “essential content”) obliges States with immediate effect to satisfy human rights to an absolute minimum core level.

The concept was developed first in an effort to avoid providing States with an excessive margin of discretion in their interpretation and application of ESC rights obligations.^[63] Although ultimately States must implement fully all the rights, certain elements are considered the most essential or fundamental and the obligations to meet these minimum levels must be given immediate effect. This core content can be considered as an intangible baseline that must be guaranteed for all individuals in all situations and from which States parties can envisage further progressive realization.^[64]

When this minimum level of core content is not realized, a State will presumptively have breached its obligation to guarantee that human right. Progressive realization of rights should occur additionally to the satisfaction of this minimum core content.

The CESCR has described the substance of this obligation as follows:

“…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.”^[65]

The composition of the core content is clearer for some rights than for others. Article 14 of ICESCR, for example, states explicitly that primary education must be, at the very least, free and compulsory for all. The CESCR has also described the core content of some rights, for example in General Comment 13 on the right to education and in General Comment 15 on the right to water.^[66] The core content of human rights is not a stagnant concept, and continues to evolve with scientific and technological advances and as societies change.

The CESCR has affirmed that in meeting the core content of a right, the resource constraints of that particular State may be taken into account, keeping in mind that resources include those made available by international cooperation and assistance.

Regardless of the availability of resources however, the CESCR has emphasized that States must use all of its available resources to prioritize the fulfilment of the minimum core content of each right.

“Even in times of severe resource constraints… vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes”.^[67] The principle of core content has also been recognized in various domestic systems. In Germany, for example, the courts have decided that the constitutional principles of the welfare (or social) State and the concept of human dignity can be translated into positive State obligations to provide an “existential minimum” comprising access to food, housing and social assistance to persons in need.^[68]

Right and article of the ICESCR	Core content and General Comment of the UN CESCR
Right to work / article 6 ICESCR	GC 18 Protection against forced labour; Protection of employment and against unlawful dismissal to all, especially for disadvantaged and marginalized individuals and groups, permitting them to live a life of dignity.
Right to social security / article 9 ICESCR	GC 19 Equal enjoyment to all of adequate protection from core social risks and contingencies; Access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
Right to an adequate housing / article 11 ICESCR	GC 4 and GC 7 Security of tenure for protection against forcible evictions and homelessness for all; Ready access to basic amenities to all.
Right to adequate food / article 11 ICESCR	GC 12 Satisfaction of minimum essential level to all required to be free from hunger; Availability of food to all in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; Access to such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.
Right to Water / article 11 ICESCR	GC 15 • Access to the minimum essential amount of water to all, that is sufficient and safe for personal and domestic uses to prevent disease.
Right to health / article 12 ICESCR	GC 14 Access to essential primary health care to all, including to basic services, goods and infrastructures; Access to essential drugs; Access to minimum essential food, basic shelter, housing and sanitation.
Right to education / article 13 ICESCR	GC 13 Access to basic forms of education and provide primary education that is compulsory and available free to all.
Right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary or artistic production / article 15 ICESCR	GC 17 • Effective protection to all of the moral and material interests of authors, as the creators of their scientific, literary and artistic productions.
Right to take part in cultural life / article 15 ICESCR	GC 21 Creation and promotion of an environment within which a person individually, or in association with others, or within a community or group, can participate in the culture of their choice; Right of everyone to identify or not identify themselves with one or more communities, and the right to change their choice; Right of everyone to engage in their own cultural practices.

→ Decision C-376/10 of the Colombian Constitutional Court

Non-discrimination and equality

The principles of non-discrimination and equality are applicable to all human rights, including economic, social and cultural rights. In addition to the anti-discrimination contained in the ICESCR and other instruments protecting the rights of specific groups and individuals, it is important to give regard to the guarantee of equal protection of the law under international human rights law.^[69]

Practitioners at the national level have extensively used anti-discrimination and equality laws and frameworks to defend ESC rights. This is particularly true in the numerous contexts in which none or very few ESC rights are constitutionally or legislatively protected, but where discrimination is prohibited and equality before the law is a fundamental principle. Chapter 5 provides case law examples of how this has been applied in various jurisdictions and in concrete cases to protect individuals and groups of individuals discriminated against on prohibited grounds.

Important resources on principles and case law include:

Chapter 5 and 6 of the ICJ Practitioners Guide No.6 on migration and international human rights law accessible (in English and Italian) at: https://www.icj.org/practitioners-guide-on-migration-and-international-human-rights-law-practitioners-guide-no-6/
The ICJ’s sexual orientation and gender identity (SOGI) programme’ s online resources:

ICJ SOGI UN case law database accessible at: https://www.icj.org/sogi-un-database/
ICJ SOGI casebook accessible at: https://www.icj.org/sogi-casebook-introduction/
ICJ legislative database accessible at: https://www.icj.org/sogi-legislative-database/

The ESCR-Net Guide: Claiming Women’s ESC Rights Using OP-ICEDAW and OP-ICESCR accessible at http://www.escr-net.org/node/365157

The importance of non–discrimination and equality for ESC rights adjudication is strengthened by the fact that non–discrimination and equality are not understood by international law as applying merely in a formal way. The prohibition of discrimination on the grounds of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” is expressed in article 2(2)^[70] of ICESCR as an overarching principle applying to all Convention rights.

In addition, article 3 of the ICESCR imposes obligations for States parties to realize the right to equality between men and women with regard to the enjoyment of all rights under the Covenant. The ICESCR also gives targeted meaning and application of the obligation of non-discrimination and equality to specific rights.^[71]

In General Comment No. 20,^[72] the CESCR has clarified the scope of article 2(2) and the specific obligations of States arising as a result of that provision. It has also specified the list of prohibited grounds of direct or indirect discrimination and especially what can be understood as grounds of discrimination falling under “other status” in article 2(2) of the ICESCR. In addition to the express prohibited grounds mentioned in the ICESCR, the CESCR has thus interpreted the non exhaustive list of article 2(2) as encompassing disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence and economic and social situation.^[73] Last but not least, the CESCR has clarified that equality should not only be understood as formal or de jure equality but should also encompass substantive equality. It implies a need to take positive measures – temporary or permanent as the need may be – to redress certain forms of historical or systemic discrimination. The CESCR states that: “…States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination…”^[74]

It is important to highlight here that the obligation to ensure women’s exercise and enjoyment of all human rights, including ESC rights, on the basis of equality, and non-discrimination on grounds of sex, is also enshrined in the ICEDAW. The ICEDAW requires States to take a wide range of targeted measures to address and prevent discrimination against women.^[75] Among other things, it places particular requirements on States in relation to measures necessary to respect and ensure women’s equal rights in the spheres of health,^[76] employment,^[77] education^[78] and family and marital relations.^[79] The approach of the CESCR, as laid down in the General Comment 20, is thus consonant with the provisions of the ICEDAW in its article 4 concerning temporary special measures to achieve de facto equality.^[80]

→R.K.B. v. Turkey (Communication No. 28/2010)

As far as the special measures are concerned, it is also important to note that the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) also prescribes States parties to take such temporary measures^[81] when they are necessary to guarantee the equal enjoyment of all rights, including ESC rights,^[82] to groups that are disadvantaged on the grounds of their race, colour, descent, nationality or ethnic origin.

In addition to the standards agreed upon by the States parties to the ICESCR, the ICEDAW and the ICERD, the ICRC and the ICRPD also prescribe standards and specific obligations of States parties in respect of non-discrimination and equal protection. With regard to the rights of the child, the ICRC requires that: “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”^[83]

As far as the ICRPD is concerned, States parties are required to guarantee non-discrimination against, and substantive equality of, persons with disabilities by taking the reasonable accommodation measures that are needed.^[84] Article 2 of the ICRPD defines “reasonable accommodation” as being the “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.^[85]

1.2 Specific obligations

In addition to the general and cross-cutting obligations and principles exposed in the preceding section, the CESCR has identified three types or levels of obligations that apply to the substantive rights under the ICESCR: 1) The obligation to respect, requiring States to refrain from measures or conduct that hinder or prevent the enjoyment of rights; 2) The obligation to protect, which requires States to act to prevent third parties, such as businesses or armed groups, from interfering with or impairing the enjoyment of these rights; and, 3) the obligation to fulfil rights by taking positive measures towards their realization.^[86]

While not all methods of achieving the full enjoyment of a human right and not all State acts or omissions neatly fit within these categories since most processes overlap several categories, this issue has been of great importance in shaping the development of the jurisprudence of regional and international protection mechanisms. Therefore, the following case law examples illustrate how judicial and quasi-judicial bodies have used this conceptual framework to assess compliance with the various State obligations, and more particularly the trilogy of the specific duties to respect, protect and fulfil.

→ European Roma Rights Centre v. Portugal (Complaint No. 61/2010)

→ Decision T-760 of 2008

The obligation to respect

The obligation to respect requires that a State when discharging public powers, refrain from itself interfering with the existing enjoyment of a right by rights-holders.

In, SERAC and CESR v. Nigeria, the African Commission on Human and Peoples’ Rights defined the duty to respect and held that the Government failed to respect the rights to health and a healthy environment by “attacking, burning, and destroying several Ogoni villages and homes”.^[87]

Obligations to respect impose a number of negative obligations, which in most cases may not be subject to progressive realization. These obligations apply fully and immediately and are no different in character than those contained in the civil and political rights. It should be added that like any human rights obligations, this entails the adoption of positive measures to prevent interference with such rights by establishing appropriate institutions, and by providing for an effective system of administration of justice to conduct proper investigations and to provide for remedy and reparation to any violation by State agents.

In the example of SERAC and CESR v. Nigeria mentioned above, the Court stated that:

“[a]t the very minimum, the right to shelter obliges the Nigerian Government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The State’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs….The government has destroyed Ogoni houses and villages and then, through its security forces, obstructed, harassed, beaten and, in some cases, shot and killed innocent civilians who have attempted to return to rebuild their ruined homes. These actions constitute massive violations of the right to shelter, in violation of Articles 14, 16 and 18(1) of the African Charter.”^[88]

The obligation to protect

The obligation to protect requires a State to take measures that prevent third parties from interfering with the enjoyment of a right. This is also referred to under the rubric of third-party effect (or in French les obligations d’effets horizontaux, or in German, Drittwirkung).

The obligation to protect may involve a heightened measure when there is a power imbalance between an individual and a third party, such as in respect of large business enterprises.^[89] This obligation places emphasis on State action that is necessary to prevent, stop or obtain redress or punishment for third party interference. This duty is normally achieved through:

State regulation of private party conduct, together with inspection and monitoring of compliance; and
The enforcement of administrative and judicial sanctions against non-compliant third parties, such as employers, landlords, providers of health care or educational services, potentially pollutant industries or private food and water suppliers.^[90]
The provisions of means of redress for victims abuse by third parties.

This obligation should complement other State activity such as such as regulation and law enforcement.

The obligation to protect should in practical terms provide protection against a wide range of conduct, including:

Privately-conducted forced evictions;
Adverse labour conditions in private labour markets;
Failure to comply with health or education requirements in the private sphere;
Discrimination in contracts for the provision of basic services such as health, water, housing or education; or
Abusive termination or modification of these contracts.^[91]

The obligation to fulfil

A obligation to fulfil requires a State to take legislative, administrative, budgetary, judicial and other measures towards the full realization of rights, including by means of international assistance and cooperation.

The precise scope and content of the obligation necessarily depends on the particular context, but generally involves establishment by a State of institutional machinery essential for the realization of rights. This can take different forms. In effect, it mirrors the requirements embodied in the phrase “all appropriate means” within article 2(1) of the ICESCR. As a general rule, States are required to create legal, institutional, administrative, and procedural conditions, as well as to provide material benefit for the realization of certain rights without discrimination.

In other words, States are expected to be proactive agents, capable of increasing access to ESC rights, and ensure the enjoyment of at least a minimum essential level of the rights to all.

The obligation to fulfil involves positive action, which means that violations in this area involve State omissions.^[92] Although they may seem to be more difficult to define and circumscribe, judicial orders requiring public authorities to act in relation to health care are common in many jurisdictions.

This duty places emphasis on:

Identifying problematic situations;
Providing relief;
Creating conditions that would allow right-holders to manage their own access to the provisions protected by rights;
Removing obstacles to the full enjoyment of rights; and
Implementing measures to modify discriminatory social and cultural pat-terns that result in any disadvantage(s) for vulnerable groups.

The obligation to fulfil can provide protection against:

Failures to meet substantive standards regarding the quality of services;
Failures to meet procedural standards for planning, implementing or monitoring services;
Insufficient allocation of resources;
Failure to implement statutory obligations; or
Failure to provide services to eligible individuals.^[93]

→ International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Greece Complaint No. 49/2008

Extraterritorial obligations of States in the area of ESC rights

Human rights obligations generally, including in the area of ESC rights, have extraterritorial application. The increasing pace of economic globalization has made the discharge of such obligations ever more a critical part of the human rights landscape. This state of affairs impelled the ICJ and University of Maastricht to convene an expert process leading to the elaboration of the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights,^[94] these were adopted by a group of international legal experts in 2011 with a view to addressing these dimensions of human rights protection. Leading international legal experts including UN Special Procedures mandate-holders and members of the UN Treaty Bodies, were among the signatories to the principles.

In a world of growing interdependencies, a risk of severe protection gaps is presented by traditional conceptions of human rights obligations and responsibilities that tend to consider the territorial State as the main duty-bearer. The impact of actors other than the territorial State on the realization of human rights including ESC rights (or lack thereof) is well known to the human rights movement and poses significant obstacles to legal practitioners at various levels.

The Maastricht Principles bridge these gaps by defining obligations of States extraterritorially, indicating what can constitute breaches of these obligations and where State responsibility can be engaged, and by suggesting key elements for remedies in cases of such breaches and violations. The document builds upon two previous documents of this kind, the Limburg Principles and the Maastricht Guidelines that are referred to in other parts of the present Guide.^[95]

The Maastricht Principles define State extraterritorial obligations (hereafter ETOs) to respect, protect and fulfil human rights separately and jointly as comprising:

obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State’s territory; and
obligations of a global character that are set out in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realize human rights universally.”

The Maastricht Principles establish the basis for jurisdiction and responsibility that allow for the operationalization of and the assessment of compliance with ETOs. In particular, the Maastricht Principles specify that ETOs will apply in:

“situations over which it exercises authority or effective control, whether or not such control is exercised in accordance with international law;
situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory;
situations in which the State, acting separately or jointly, whether through its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law.”^[96]

A State’s responsibility will be engaged when State conduct – or acts and omissions of non-State actors for which State responsibility can be attributed – breach the concerned State’s obligations under international human rights law.^[97] States have both negative and positive ETOs. They must not harm ESC rights of people living in another State; they must protect from harm by third parties the people that they regulate, control or are in a position to influence; and they must contribute to fulfilling ESC rights globally to the maximum of their available resources.

A final part of the Maastricht Principles is dedicated to the issue of accountability and remedy for breaches of ETOs. Undoubtedly, these questions are critical to the task of legal practitioners. National and international human rights accountability mechanisms are often ill-equipped to deal with cases that involve the responsibility of foreign actors, including foreign States and transnational companies, and even less in cases that concern the failure of the community of States in general.

However, progress is being made in this respect and some UN Special Procedures and Treaty Bodies have started to monitor and address situations in which they have considered acts and omissions of foreign States and other “extraterritorial” actors as constituting breaches of those actors’ responsibility under international human rights law.^[98]

Of course, as non-judicial mechanisms, Treaty Bodies and Special Procedures are not constrained by procedural and normative limitations that national courts and other adjudicative bodies encounter concerning alleged rights violations perpetrated in another State and/or concerning foreign actors. On the other hand, while important, they are not always as effective as judicial mechanisms or administrative mechanisms whose decisions have the force of domestic law, as some states will consider their authority to be merely of a recommendatory character.

This area of ESC rights litigation will most probably see important developments in the coming years. In the meantime, academic experts and human rights defenders have started to analyse real and hypothetical situations involving ETOs that could be the subject of adjudication by national and international courts and other adjudicative bodies.

Practitioners who are interested in knowing more about ETOs, the Maastricht Principles and case studies for possible litigation can refer to the following:

On ETO in general, see ETO Consortium webpage at: http://www.etoconsortium.org/
For the full text of the Maastricht principles see annex 3.

For practitioners who want to refer to primary sources and case law rather than just the Principles themselves, see:

De Schutter, O. Eide, A. Khalfan, A. Orellana, M. Salomon, and I. Seiderman, “Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights”, Human Rights Quarterly, 34(4), 2012, pp. 1084-1169. Accessible at: https://www.icj.org/wp-content/uploads/2012/12/HRQMaastricht-Maastricht-Principles-on-ETO.pdf
On case studies: R. Künnemann, “Extraterritorial Application of the Inter-national Covenant on Economic, Social and Cultural Rights”, in Coomans, Fons, and Menno T. Kamminga (eds.), Extraterritorial application of hu-man rights treaties, Vol. 2. Intersentia, Antwerp, 2004; and Gibney, Mark, and Wouter Vandenhole (eds), Litigating Transnational Human Rights Ob-ligations: Alternative Judgments, Routledge, 2013.

Footnotes (↵ returns to text)

42. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17 (1986).↵
43. Committee on Economic, Social and Cultural Rights, General Comment No. 9, supra note 22, para 3
Questions relating to the domestic application of the Covenant must be considered in the light of two principles of international law. The first, as reflected in article 27 of the Vienna Convention on the Law of Treaties of 1969, is that “[A] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. In other words, States should modify the domestic legal order as necessary in order to give effect to their treaty obligations. 1/ This issue is considered further by the Committee in its General Comment No. 12 (1998). The second principle is reflected in article 8 of the Universal Declaration of Human Rights, according to which “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” The Covenant contains no direct counterpart to article 2.3 (b) of the International Covenant on Civil and Political Rights which obligates States parties to, inter alia, “develop the possibilities of judicial remedy”. Nevertheless, a State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not “appropriate means” within the terms of article 2.1 of the Covenant or that, in view of the other means used, they are unnecessary. It will be difficult to show this and the Committee considers that, in many cases, the other “means” used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.
: “the Committee considers that, in many cases, the other “means” used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.”↵
44. See, for example, Committee on Economic, Social and Cultural Rights, General Comment No. 12, supra note 32, paras 29-30
29. In implementing the country-specific strategies referred to above, States should set verifiable benchmarks for subsequent national and international monitoring. In this connection, States should consider the adoption of a framework law as a major instrument in the implementation of the national strategy concerning the right to food. The framework law should include provisions on its purpose; the targets or goals to be achieved and the time-frame to be set for the achievement of those targets; the means by which the purpose could be achieved described in broad terms, in particular the intended collaboration with civil society and the private sector and with international organizations; institutional responsibility for the process; and the national mechanisms for its monitoring, as well as possible recourse procedures. In developing the benchmarks and framework legislation, States parties should actively involve civil society organizations. 30. Appropriate United Nations programmes and agencies should assist, upon request, in drafting the framework legislation and in reviewing the sectoral legislation. FAO, for example, has considerable expertise and accumulated knowledge concerning legislation in the field of food and agriculture. The United Nations Children’s Fund (UNICEF) has equivalent expertise concerning legislation with regard to the right to adequate food for infants and young children through maternal and child protection including legislation to enable breast-feeding, and with regard to the regulation of marketing of breast milk substitutes.
; No. 13, Un Doc. E/C.12/1999/10 (1999), para 52
In relation to article 13 (2) (b)‑(d), a State party has an immediate obligation “to take steps” (art. 2 (1)) towards the realization of secondary, higher and fundamental education for all those within its jurisdiction. At a minimum, the State party is required to adopt and implement a national educational strategy which includes the provision of secondary, higher and fundamental education in accordance with the Covenant. This strategy should include mechanisms, such as indicators and benchmarks on the right to education, by which progress can be closely monitored.
; No. 14, supra note 32, paras 53-56; No. 15, supra note 32, para 50
States parties may find it advantageous to adopt framework legislation to operationalize their right to water strategy. Such legislation should include: (a) targets or goals to be attained and the time-frame for their achievement; (b) the means by which the purpose could be achieved; (c) the intended collaboration with civil society, private sector and international organizations; (d) institutional responsibility for the process; (e) national mechanisms for its monitoring; and (f) remedies and recourse procedures.
; or No. 19, supra note 32, para. 67-69.↵
45. See Committee on Economic, Social and Cultural Rights, General Comment No. 3, contained in UN Doc. E/1991/23 (1990). See also Committee on Economic, Social and Cultural Rights, Statement on an evaluation of the obligation to take steps to the “maximum of available resources under an optional protocol to the covenant” (2007), para. 4 stating: “The “availability of resources”, although an important qualifier to the obligation to take steps, does not alter the immediacy of the obligation, nor can resource constraints alone justify inaction. Where the available resources are demonstrably inadequate, the obligation remains for a State party to ensure the widest possible enjoyment of economic, social and cultural rights under the prevailing circumstances. The Committee has already emphasized that, even in times of severe resource constraints, States parties must protect the most disadvantaged and marginalized members or groups of society by adopting relatively low-cost targeted programmes.”↵
46. See article 2(1) of the ICESCR stating: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to progressively achieving the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” ↵
47. Committee on Economic, Social and Cultural Rights, General Comment No. 3, supra note 45, para 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 (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.
.↵
48. Ibid, para 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 UNDP in its Human Development Report 1990 and the analysis by the World Bank in the World Development Report 1990.
: “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.”↵
49. States remain bound to a general duty to “take steps” without delay and adopt immediate measures to promote the full application of the Covenant, regardless of the State’s level of development or the existence of an armed conflict. See Committee on Economic, Social and Cultural Rights, General Comment No.3, contained in UN Doc. E/1991/23 (1990), para 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 … 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.
.↵
50. Ibid, paras
With a view to assisting States parties’ implementation of the Covenant and the fulfilment of their reporting obligations, this general comment focuses on the normative content of article 13 (Part I, paras. 4‑42), some of the obligations arising from it (Part II, paras. 43‑57), and some illustrative violations (Part II, paras. 58‑59). Part III briefly remarks upon the obligations of actors other than States parties. The general comment is based upon the Committee’s experience in examining States parties, reports over many years.
and 5-7.↵
51. See, for instance, article 14
Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.
of the ICESCR.↵
52. Committee on Economic, Social and Cultural Rights, General Comment No. 3, supra note 45, para 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.
.↵
53. Ibid.↵
54. Ibid.↵
55. Ibid, para 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.
.↵
56. Ibid.↵
57. This phraseology is derived originally from General Comment No.3, which emphasizes that any such measures “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.” See Committee on Economic, Social and Cultural Rights, General Comment No. 3, supra note 45, para 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’ˆtre, 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.
; No. 13, supra note 44, para 45
; No. 14, supra note 32, para 32
As with all other rights in the Covenant, there is a strong presumption that retrogressive measures taken in relation to the right to health are not permissible. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party’s maximum available resources.
; No. 15, supra note 32, para 19
There is a strong presumption that retrogressive measures taken in relation to the right to water are prohibited under the Covenant.19 If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party’s maximum available resources.
; No. 19, supra note 32, para 42
42. There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level.
.↵
58. Committee on Economic, Social and Cultural Rights, General Comment No. 4, contained in UN Doc. E/1991/23 (1991), para 11
States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others. The Committee is aware that external factors can affect the right to a continuous improvement of living conditions, and that in many States parties overall living conditions declined during the 1980s. However, as noted by the Committee in its General Comment 2 (1990) (E/1990/23, annex III), despite externally caused problems, the obligations under the Covenant continue to apply and are perhaps even more pertinent during times of economic contraction. It would thus appear to the Committee that a general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant.
.↵
59. See section III. 1.2. of this chapter on the obligation to protect. See also the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), in ICJ Compilation of Essential Documents, accessible at: https://www.icj.org/economic-social-and-cultural-rights-a-compilation-of-essential-documents/↵
60. Committee on Economic, Social and Cultural Rights, General Comments No. 13, supra note 44, para 45
There is a strong presumption of impermissibility of any retrogressive measures taken in relation to the right to education, as well as other rights enunciated in the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are 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 State party’s maximum available resources.
; No. 14, supra note 32, para 32
As with all other rights in the Covenant, there is a strong presumption that retrogressive measures taken in relation to the right to health are not permissible. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party’s maximum available resources.
; No. 15, supra note 32, para 19
There is a strong presumption that retrogressive measures taken in relation to the right to water are prohibited under the Covenant.19 If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party’s maximum available resources.
; and No. 19, supra note 32, para 42
There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level.
.↵
61. Committee on Economic, Social and Cultural Rights, General Comment No. 3, supra note 45, para 9
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.
: “[A]ny deliberately retrogressive measures…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.”↵
62. Ibid, para 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’ˆtre, 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.
.↵
63. See generally Ibid, and M. Sepúlveda (2003), The Nature of the Obligations Under the International Covenant on Economic, Social and Cultural Rights, Intersentia, pp. 25-75.↵
64. The rationale of establishing this minimum level is to delineate what elements or guarantees of a right must be deemed fundamental that must be guaranteed in any circumstances, irrespective of the economic development, the political situation or the institutional structure of the State. As suggested above, it should be noted that the notion of “progressive fulfilment” still requires that certain steps be taken immediately. See the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), supra note 59, para 8
As in the case of civil and political rights, States enjoy a margin of discretion in selecting the means for implementing their respective obligations. State practice and the application of legal norms to concrete cases and situations by international treaty monitoring bodies as well as by domestic courts have contributed to the development of universal minimum standards and the common understanding of the scope, nature and limitation of economic, social and cultural rights. The fact that the full realization of most economic, social and cultural rights can only be achieved progressively, which in fact also applies to most civil and political rights, does not alter the nature of the legal obligation of States which requires that certain steps be taken immediately and others as soon as possible. Therefore, the burden is on the State to demonstrate that it is making measurable progress toward the full realization of the rights in question. The State cannot use the “progressive realization” provisions in article 2 of the Covenant as a pretext for non-compliance. Nor can the State justify derogations or limitations of rights recognized in the Covenant because of different social, religious and cultural backgrounds.
.↵
65. Committee on Economic, Social and Cultural Rights, General Comment No. 3, supra note 45, para 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’ˆtre. 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.
.↵
66. Committee on Economic, Social and Cultural Rights, General Comment No. 13, supra note 44, para 57
In its General Comment 3, the Committee confirmed that States parties have “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels” of each of the rights enunciated in the Covenant, including “the most basic forms of education”. In the context of article 13, this core includes an obligation: to ensure the right of access to public educational institutions and programmes on a non‑discriminatory basis; to ensure that education conforms to the objectives set out in article 13 (1); to provide primary education for all in accordance with article 13 (2) (a); to adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education; and to ensure free choice of education without interference from the State or third parties, subject to conformity with “minimum educational standards” (art. 13 (3) and (4)).
; Committee on Economic, Social and Cultural Rights, General Comment No. 15, supra note 32, para 37
In General Comment No. 3 (1990), the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant. In the Committee’s view, at least a number of core obligations in relation to the right to water can be identified, which are of immediate effect: (a) To ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease; (b) To ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups; (c) To ensure physical access to water facilities or services that provide sufficient, safe and regular water; that have a sufficient number of water outlets to avoid prohibitive waiting times; and that are at a reasonable distance from the household; (d) To ensure personal security is not threatened when having to physically access to water; (e) To ensure equitable distribution of all available water facilities and services; (f) To adopt and implement a national water strategy and plan of action addressing the whole population; the strategy and plan of action should be devised, and periodically reviewed, on the basis of a participatory and transparent process; it should include methods, such as right to water indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all disadvantaged or marginalized groups; (g) To monitor the extent of the realization, or the non-realization, of the right to water; (h) To adopt relatively low-cost targeted water programmes to protect vulnerable and marginalized groups; (i) To take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation;
.↵
67. Committee on Economic, Social and Cultural Rights, General Comment No. 3, supra note 45, para 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 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.
.↵
68. ICJ Justiciability Study, p. 25. See also Chapter 5 of the present Guide.↵
69. Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
of the ICCPR establishes the right of everyone to be protected without discrimination by the law, including when the latter regulates ESC rights.↵
70. Article 2(2) of the ICESCR states: “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”↵
71. For example, Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.
of the ICESCR clarifies the application of non-discrimination to equal remuneration; or article 13
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
allows for the equal enjoyment of compulsory and free primary education.↵
72. Committee on Economic, Social and Cultural Rights, General Comment No. 20, UN Doc. E/C.12/GC/20 (2009).↵
73. Ibid, paras 27-35.↵
74. Ibid, para 9
In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved. Such positive measures may exceptionally, however, need to be of a permanent nature, such as interpretation services for linguistic minorities and reasonable accommodation of persons with sensory impairments in accessing health-care facilities.
.↵
75.
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.
of the Convention on the Elimination of all Forms of Discrimination against Women. See also Committee on the Elimination of Discrimination against Women, General Recommendation No.28, The Core Obligations of States Parties under article 2 of the Convention on the Elimination of all Forms of Discrimination against Women, U.N. Doc. CEDAW/C/GC/28 (2010).↵
76. Article 12
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
of the ICEDAW. See also Committee on the Elimination of Discrimination against Women, General Recommendation No. 24, Women and Health, contained in UN Doc. A/54/38/Rev.1, Chapter I (1999).↵
77.
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.
of the ICEDAW.↵
78.
States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: (a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training; (b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality; (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods; (d ) The same opportunities to benefit from scholarships and other study grants; (e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particulary those aimed at reducing, at the earliest possible time, any gap in education existing between men and women; (f) The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely; (g) The same Opportunities to participate actively in sports and physical education; (h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.
of the ICEDAW.↵
79.
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
of the ICEDAW. See also Committee on the Elimination of Discrimination against Women, General Recommendation No. 21, Equality in Marriage and Family Relations, contained in UN Doc. A/47/38 (1994).↵
80.
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
of the ICEDAW. See also Committee on the Elimination of Discrimination against Women, General Recommendation No.25 on temporary special measures, contained in the Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.7, at 282 (2004).↵
81.
Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
of the ICERD. See also Committee on the Elimination of Racial Discrimination, General Recommendation No. 32, UN Doc. CERD/C/GC/32 (2009), para 11
.↵
82.
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; (c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one’s own, and to return to one’s country; (iii) The right to nationality; (iv) The right to marriage and choice of spouse; (v) The right to own property alone as well as in association with others; (vi) The right to inherit; (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association; (e) Economic, social and cultural rights, in particular: (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) The right to form and join trade unions; (iii) The right to housing; (iv) The right to public health, medical care, social security and social services; (v) The right to education and training; (vi) The right to equal participation in cultural activities; (f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.
of the ICERD.↵
83.
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
of the ICRC. A concrete example of how the principle of the best interests of the child have been used to protect ESC rights of children and of their families is provided by the Case of the Children of Chiquimula, Guatemala that is summarized in Chapter 4, section VI.↵
84. Article 5 of the ICRPD establishes that: “1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.”↵
85.
For the purposes of the present Convention: “Communication” includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology; “Language” includes spoken and signed languages and other forms of non-spoken languages; “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation; “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; “Universal design” means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.
of the ICRPD.↵
86. On the categorization in three types of specific obligations, see in particular Guideline
Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and fulfil. Failure to perform any one of these three obligations constitutes a violation of such rights. The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus, the right to housing is violated if the State engages in arbitrary forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Thus, the failure of States to provide essential primary health care to those in need may amount to a violation.
of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), in ICJ Compilation of Essential Documents, accessible at https://www.icj.org/economic-social-and-cultural-rights-a-compilation-of-essential-documents/; and De Schutter, Olivier, International human rights law: cases, materials, commentary – Cambridge University Press, United Kingdom, 2010, pp. 242. See also, inter alia, Committee on Economic, Social and Cultural Rights, General Comments No. 12, supra note 32, para 15
The right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate) means the State must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters.
; No. 14, supra note 32, paras 34-37; No. 19, supra note 32, para 43
The right to social security, like any human right, imposes three types of obligations on States parties: the obligation to respect, the obligation to protectand the obligation to fulfil.
.↵
87. SERAC and CESR v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, 13-27 October 2001, para 54
We now examine the conduct of the Government of Nigeria in relation to Articles 16 and 24 of the African Charter. Undoubtedly and admittedly, the Government of Nigeria, through NNPC has the right to produce oil, the income from which will be used to fulfil the economic and social rights of Nigerians. But the care that should have been taken as outlined in the preceding paragraph and which would have protected the rights of the victims of the violations complained of was not taken. To exacerbate the situation, the security forces of the government engaged in conduct in violation of the rights of the Ogonis by attacking, burning and destroying several Ogoni villages and homes.
. Cases of international courts and treaty bodies dealing with breaches of the obligation to respect also include Islamic Community in Bosnia and Herzegovina, Human Rights Chamber for Bosnia and Herzegovina, CH/96/29, 11 June 1999; Quaker Council for European Affairs v. Greece, European Committee of Social Rights, Complaint No. 8/2000, 27 April 2001. Decisions of domestic courts dealing with breaches of the obligation to respect include inter alia Jaftha v. Schoeman, Van Rooyen v. Stoltz, Constitutional Court South Africa, 1 BCLR 78 (CC), 8 October 2004; BverfGE 82, 60(85) and BVerfGE 87,153(169), German Federal Constitutional Court; Comisión Municipal de la Vivienda c. Saavedra, Felisa Alicia y Otros s/Desalojo s /Recurso de Inconstitucionalidad Concedido, Buenos Aires Supreme Court, 7 October 2002.↵
88. SERAC and CESR v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, 13-27 October 2001, paras 61-62
61. At a very minimum, the right to shelter obliges the Nigerian Government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The state’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs. ¹⁵ Its obligations to protect obliges it to prevent the violation of any individual’s right to housing by any other individual or non-state actors like landlords, property developers, and land owners, and where such infringements occur, it should act to preclude further deprivations as well as guaranteeing access to legal remedies. ¹⁶The right to shelter even goes further than a roof over one’s head. It extends to embody the individual’s right to be let alone and to live in peace, whether under a roof or not. 62. The protection of the rights guaranteed in Articles 14, 16 and 18(1) leads to the same conclusion. As regards the earlier right, and in the case of the Ogoni people, the Government of Nigeria has failed to fulfil these two minimum obligations. The government has destroyed Ogoni houses and villages and then, through its security forces, obstructed, harassed, beaten and, in some cases, shot and killed innocent citizens who have attempted to return to rebuild their ruined homes. These actions constitute massive violations of the right to shelter, in violation of Articles 14, 16, and 18(1) of the African Charter.
↵
89. Principle 1
States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.
of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, annexed to the Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, UN Doc. A/HRC/17/31 (2011), adopted by the Human Rights Council in its resolution A/HRC/RES/17/4 (2011): “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.” On State obligations related to abuses by business enterprises affecting children, see Committee on the Rights of the Child, General Comment No. 16, UN Doc. CRC/C/GC/16 (2013).↵
90. Guideline 15(d)
Violations of economic, social, cultural rights can also occur through the omission or failure of States to take necessary measures stemming from legal obligations. Examples of such violations include:… (d) The failure to regulate activities of individuals or groups so as to prevent them from violating economic, social and cultural rights;
of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), available at: https://www.icj.org/economic-social-and-cultural-rights-a-compilation-of-essential-documents/↵
91. Cases of international courts and treaty bodies dealing with the obligation to protect include SERAC and CESR v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, 13-27 October 2001; Mapiripán Massacres v. Colombia, Inter-American Court of Human Rights, 15 September 2005; Ituango Massacres v. Colombia, Inter-American Court of Human Rights, 1 July 2006; International Commission of Jurists v. Portugal, European Committee of Social Rights, Complaint No. 1/1998, 10 September 1999 ; Hajrizi Dzemajl et al. v. Yugoslavia, UN Committee Against Torture, Communication No. 161/2000, 2 December 2002. Decisions of domestic courts dealing with breaches of the obligation to respect include inter alia T-377/95, Colombian Constitutional Court, 24 August 1995 ; T-065/93, Colombian Constitutional Court, 26 February 1993 ; Molski v. Gleich, US Federal Court of Appeal Ninth Circuit (Southern California), 307F.3d 1155, 2 Cal. Daily Op. Serv. 10, 310, 2002 Daily Journal D.A.R. 11, 901, 6 February 2003 ; Roberto E. Etcheverry c. Omint Sociedad Anónima y Servicios, Argentine Supreme Court, 13 March 2001.↵
92. See section III.2 of in this chapter.↵
93. Cases of international courts and treaty bodies dealing with breaches of the obligation to fulfil include R.K.B. v. Turkey, Committee on the Elimination of Discrimination against Women, Communication No.28/2010, 24 February 2012; and International Association Autism-Europe v. France, European Committee of Social Rights, Complaint No. 1/2002, 7 November 2003. Decisions of domestic courts dealing with breaches of the obligation to fulfil include inter alia The Government of the Republic of South Africa and others v. Irene Grootboom and others, Constitutional Court of South Africa, 2001 (1) SA 46 (CC), 4 October 2000; Oberti v. Board of Education of the Borough of Clementon School District, US Court of Appeals Third Circuit, 99 F.2d 1204 (3d Cir. 1993), 28 May 1993; Yated and others v. the Ministry of Education, Supreme Court of Israel, HCJ 2599/00, 14 August 2002; People’s Union for Civil Liberties v. Union of India and others, Supreme Court of India, 2 May 2003; Asociación Benghalensis y otros c. Misiterio de Salud y Accion Social – Estado Nacional s/amparo ley 16.688, Argentine Supreme Court, 1 June 2000; Soobramoney v. Minister of Health, KawZulu-Natal, South African Constitutional Court , 1998 (1) SA 765 (CC), 27 November 1997.↵
94. Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (2011), available at: http://www.etoconsortium.org/en/library/maastricht-principles/ or see annex 3.↵
95. See box in section III.1 of this chapter.↵
96. Principle 9 of the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (emphasis added).↵
97. Principles 11 and 12 of the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights.↵
98. For examples of the use of Extraterritorial Obligations of States, and of the Maastricht Principles, see the ETO Consortium web page at http://www.etoconsortium.org/. In particular, the Committee on Economic, Social and Cultural Rights has issued several recent recommendations on Austria, Belgium and Norway addressing extraterritorial obligations on the States under review: see Concluding Observations from 2013 on Austria, UN Doc. E/C.12/AUT/CO/4, paras 11 and 12; on Belgium, UN Doc. E/C.12/BEL/CO/4, para. 22; on Norway, UN Doc. E/C.12/NOR/CO/5, para. 6. At the national level, see also the advisory opinion of the French Human Rights Commission concerning the future National Plan on Business and Human Rights that refers explicitly to the Maastricht Principles and more specifically to the duty of the French State to protect people abroad against violations of human rights generated by acts of companies under its jurisdiction, available at: http://www.cncdh.fr/sites/default/files/13.10.24_avis_entreprises_et_droits_de_lhomme_0.pdf, para. 63.↵

2.3.1 State obligations stemming from international law

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