4.1.2 Obligations of State Parties
State Parties to ICESCR have the obligation to undertake to guarantee that the rights
enunciated in the Covenant are exercised without discrimination.83 To this end, Article 2(1)
states:
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 achieving progressively the
full realization of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures.”84
The level of a State’s obligation depends on its “available resources,” meaning that least
developed countries (lacking financial resources), and so-called “failing states” (lacking
political resources), may not be able to make the same efforts toward the realization of
economic, social and cultural rights as wealthy countries with a strong and uncontested
government. For example, Article 2(3) of ICESCR states that “[d]eveloping countries, with
due regard to human rights and their national economy, may determine to what extent they
would guarantee the economic rights recognized in the present Covenant to non-nationals.”
Nevertheless, whatever its available resources, the ICESCR clearly provides that each and
every State party does have certain obligations; “even where the available resources are
demonstrably inadequate, the obligation remains for a State party to strive to ensure the
widest possible enjoyment of the relevant rights under the prevailing circumstances.”85
Regarding the nature of these obligations, the CESCR has distinguished five actions that
States should take to implement the right to non-discrimination at the national level:
1. Legislation: The “[a]doption of legislation to address discrimination is indispensable”
and should “aim at eliminating formal and substantive discrimination” through
“attribute[ing] obligations to public and private actors.”86
2. Policies, plans and strategies: State Parties should ensure that strategies, policies, and
plans of action are adopted and implemented in order to address both formal and
substantive discrimination by public and private actors with respect to rights covered
by the ICESCR. These strategies, policies and plans of action may take numerous
forms. For instance, “[t]eaching on the principles of equality and non-discrimination
should be integrated in formal and non-formal inclusive and multicultural education,
with a view to dismantling notions of superiority or inferiority based on prohibited
grounds and to promote dialogue and tolerance between different groups in
society.”87
3. The elimination of systemic discrimination: States must take an active approach to
eliminating systemic discrimination and segregation. The CESCR highlights that
tackling systemic discrimination “will usually require a comprehensive approach with
a range of laws, policies and programmes, including temporary special measures.”88
4. Remedies and accountability: States should provide for mechanisms and institutions
that effectively address the individual and structural nature of the harm caused by
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