Jurisprudence of human rights treaty bodies
Related to Draft Article 4, footnote 18
CERD General Recommendation XXVI (Article 6 of the Convention), para. 2: …[T]he right to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination, which is embodied in article 6 of the Convention, is not necessarily secured solely by the punishment of the perpetrator of the discrimination; at the same time, the courts and other competent authorities should consider awarding financial compensation for damage, material or moral, suffered by a victim, whenever appropriate.
Related to Draft Article 4, footnote 19
CESCR General Comment no. 5 (Persons with disabilities), para. 9: The obligation of States parties to the Covenant to promote progressive realization of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required.
CRC, General Comment no. 5 (General measures of implementation of the Convention on the Rights of the Child), para. 7: The second sentence of article 4 reflects a realistic acceptance that lack of resources - financial and other resources - can hamper the full implementation of economic, social and cultural rights in some States; this introduces the concept of “progressive realization” of such rights: States need to be able to demonstrate that they have implemented “to the maximum extent of their available resources” and, where necessary, have sought international cooperation. When States ratify the Convention, they take upon themselves obligations not only to implement it within their jurisdiction, but also to contribute, through international cooperation, to global implementation.
On the concept of progressive realisation of economic, social and cultural rights, see CESCR General Comment no. 3 (The nature of States parties’ obligations).
On CERD Article 1(2), see also CERD General Recommendation no. XI (Non-citizens), paras. 2-3:
2. The Committee has noted that article 1, paragraph 2, has on occasion
been interpreted as absolving States parties from any obligation to report
on matters relating to legislation on foreigners. The Committee therefore
affirms that States parties are under an obligation to report fully upon
legislation on foreigners and its implementation.
Related to Draft Article 4, paragraph 1 (a)
CRC, Article 4, first sentence: States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.
Related to Draft Article 4, paragraph 2
CESCR General Comment no. 5 (Persons with disabilities), para. 14: [P]olicy-making and programme implementation in this area should be undertaken on the basis of close consultation with, and involvement of, representative groups of the persons concerned. For this reason, the Standard Rules recommend that everything possible be done to facilitate the establishment of national coordinating committees, or similar bodies, to serve as a national focal point on disability matters. In doing so, Governments should take account of the 1990 Guidelines for the Establishment and Development of National Coordinating Committees on Disability or Similar Bodies.
CRC, General Comment no. 5 (General measures of implementation of the
Convention on the Rights of the Child), para. 12: The development of a
children’s rights perspective throughout Government, parliament and the
judiciary is required for effective implementation of the whole Convention
and, in particular, in the light of the following articles in the Convention
identified by the Committee as general principles:
CRC, General Comment no. 5 (General measures of implementation of the Convention on the Rights of the Child), para. 56: Implementation is an obligation for States parties, but needs to engage all sectors of society, including children themselves. The Committee recognizes that responsibilities to respect and ensure the rights of children extend in practice beyond the State and State-controlled services and institutions to include children, parents and wider families, other adults, and non State services and organizations. The Committee concurs, for example, with general comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard of health, paragraph 42, of which states: “While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society - individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector - have responsibilities regarding the realization of the right to health. States parties should therefore provide an environment which facilitates the discharge of these responsibilities.”