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Progressive realisation of economic, social and cultural rights
The International Covenant on Economic, Social and Cultural Rights recognises that States Parties may not be able to ensure instant realisation of the rights contained within the Covenant, including the right to water, due to the limits of available resources. Nevertheless, it obliges states to take steps towards achieving progressively the full realisation of economic, social and cultural rights.
This obligation, contained in Article 2(1), can be broken down into the following components. States are obliged to take steps:
- Individually and through international assistance and co-operation (especially economic and technical)
- By all appropriate means
- Including particularly the adoption of legislative measures
- To the maximum of their available resources
The state is not permitted to ignore the lack of realisation of economic, social and cultural rights: it is obliged to take some steps towards the realisation of these rights. Each state should, for instance, develop a plan for realising the rights and, if it is unable to afford all the measures necessary, seek international development assistance – in the form of either economic aid or technical assistance. States should set goals and targets and timeframes for their national plans in this regard, which could form a basis of multi-lateral and bilateral development agreements.
Although the term ‘progressive achievement’ is used, the obligation to guarantee some rights in the covenant is immediate. For instance, the obligation concerning enjoyment of all rights without discrimination is an immediate obligation.
Principle of non-regression
There is a principle of international law which human rights advocates hold dear. It is the principle of non-regression. This principle of state practice requires that the norms already adopted should not be undone at a later date – in other words, we should not go backwards in the standards of protection of the individual.
Acceptance of this principle has been under threat at a number of recent UN conferences. However, most states accept that it is not in their interest to open up a discussion about language already agreed at an earlier conference. If one state were to do this other states would do so as well. This would simply lead to a re-arguing of the negotiations undertaken in a previous forum.
It is through the negotiations at these conferences and the enunciation in UN declarations and conventions that international human rights law is dynamic and able to develop in light of identified needs.
Margin of discretion
There is what is called a margin of discretion, which allows a state to choose the manner in which it fulfils its obligations under international human rights law. A state is able to decide which policies to adopt in order to ensure realisation of the rights within the context of the political, economic, religious, cultural and other characteristics of the state.
Nevertheless, the state remains under a duty to act and is accountable to the international community for its implementation of this obligation. The margin of discretion does not mean that a state is free to pick and choose which rights to implement, or that it might ignore the rights of a particular section of the community.
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