Fifth session (1990)*
General comment No. 3: The nature of States parties’ obligations
(art. 2, para. 1, of the Covenant)
1.
Article 2 is of particular importance to a full understanding of the Covenant and must
be seen as having a dynamic relationship with all of the other provisions of the Covenant. It
describes the nature of the general legal obligations undertaken by States parties to the
Covenant. Those obligations include both what may be termed (following the work of the
International Law Commission) obligations of conduct and obligations of result. While great
emphasis has sometimes been placed on the difference between the formulations used in this
provision and that contained in the equivalent article 2 of the International Covenant on Civil
and Political Rights, it is not always recognized that there are also significant similarities. In
particular, while the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes various obligations which
are of immediate effect. Of these, two are of particular importance in understanding the
precise nature of States parties obligations. One of these, which is dealt with in a separate
general comment, and which is to be considered by the Committee at its sixth session, is the
“undertaking to guarantee” that relevant rights “will be exercised without discrimination ...”.
2.
The other is the undertaking in article 2 (1) “to take steps”, which in itself, is not
qualified or limited by other considerations. The full meaning of the phrase can also be
gauged by noting some of the different language versions. In English the undertaking is “to
take steps”, in French it is “to act” (“s’engage à agir”) and in Spanish it is “to adopt
measures” (“a adoptar medidas”). Thus while the full realization of the relevant rights may be
achieved progressively, steps towards that goal must be taken within a reasonably short time
after the Covenant’s entry into force for the States concerned. Such steps should be
deliberate, concrete and targeted as clearly as possible towards meeting the obligations
recognized in the Covenant.
3.
The means which should be used in order to satisfy the obligation to take steps are
stated in article 2 (1) to be “all appropriate means, including particularly the adoption of
legislative measures”. The Committee recognizes that in many instances legislation is highly
desirable and in some cases may even be indispensable. For example, it may be difficult to
combat discrimination effectively in the absence of a sound legislative foundation for the
necessary measures. In fields such as health, the protection of children and mothers, and
education, as well as in respect of the matters dealt with in articles 6 to 9, legislation may also
be an indispensable element for many purposes.
4.
The Committee notes that States parties have generally been conscientious in
detailing at least some of the legislative measures that they have taken in this regard. It
wishes to emphasize, however, that the adoption of legislative measures, as specifically
foreseen by the Covenant, is by no means exhaustive of the obligations of States parties.
Rather, the phrase “by all appropriate means” must be given its full and natural meaning.
While each State party must decide for itself which means are the most appropriate under the
circumstances with respect to each of the rights, the “appropriateness” of the means chosen
will not always be self-evident. It is therefore desirable that States parties’ reports should
indicate not only the measures that have been taken but also the basis on which they are
considered to be the most “appropriate” under the circumstances. However, the ultimate
determination as to whether all appropriate measures have been taken remains one for the
Committee to make.
*
Contained in document E/1991/23.