All of these assertions are misleading. On the supposed “generations” of rights, in fact the Universal Declaration of Human Rights contained both types of rights. The artificial bifurcation of the two sets of rights is more a product of the Cold War than anything else; the fact that the codification of the UDHR resulted in two treaties, the ICCPR and the ICESCR, rather than one, is a result of the ideological divide between capitalism and communism. The assumption that civil and political rights do not require allocation of resources to implement is also wrong. Consider, for example, the cost of an effective court system that offers genuinely fair and impartial judicial proceedings to all, including providing competent legal counsel to those who cannot afford it. By contrast, certain economic, social and cultural rights may also have a dimension that is “negative,” such as the dimension of the right to education that requires the state not to restrict the freedom to establish schools that promote a certain religious belief (provided of course that the schools meet certain specified standards in terms of safety, teacher training and so on).³⁵  

In reality, most rights have both positive and negative dimensions and implications for the allocation of government resources, and are thus effectively subject to the principle of “progressive realization.” A rubric now widely accepted as a more useful means of identifying the different dimensions of rights is that the state is required to “respect, protect and fulfil”³⁶ any specific right, with concomitant duties inherent in each aspect. In terms of economic, social and cultural rights, respecting a right generally means the state must refrain from preventing people from using available resources to meet their needs; protecting a right often means ensuring that individuals are not discriminated against in access to resources, whether by public or private parties, and are thus able to enjoy freedom of action; while fulfilling in the sense of facilitating means that a state should take actions that enhance people’s access to resources and their ability to make use of them, and fulfilling in the sense of providing means that where people are unable to meet their needs due to a variety of circumstances, the state must step in to provide for them.     

The state must also take action to ensure that the principles of equality and non-discrimination that are a central aspect of all of international human rights law apply to economic, social and cultural rights. This may mean, for example, creating remedies whereby individuals can challenge violations of these two principles in their enjoyment of specific rights in the courts.   

In fact, progressive realization does not absolve the state of any obligation to meet certain minimum standards of achievement of economic, social and cultural rights by pleading resource constraints. In the last two decades, there have been many efforts by the CESCR and other treaty bodies, as well as by other human rights experts, scholars and NGOs to identify the “minimum core obligation” of certain economic, social and cultural rights. As the CESCR states in its General Comment 3: “[F]or 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.”³⁷ This is the case even if resources are scarce, although the state’s level of achievement should generally be considered in the light of available resources.  

Another arena in which minimum core obligations of states are being formulated is by national level courts in their judgements. International human rights treaties are now being used as interpretative guides to the content of rights by courts in many countries. Courts in India and South Africa

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