The International Covenant on Economic, Social and Cultural Rights
Second, the terms of article 2(1) expressly contemplate the possibility of
resource limitations that might preclude full realisation of all the Covenant
rights for all States parties. The “steps” that States parties are obliged
to take to progressively realise the rights are expressly confined to steps
within the State’s resource capacities. However, the scholars explained the
word ‘achieving progressively’ as ‘to progress through some positive step
forward and not like that there is no progress at all or standstill’.
Sometimes, it is argued that the international legal regime around ESC
rights is weaker than that of civil and political rights as the ICESCR
provides certain conditionality for the states to make these rights legally
enforceable. But modern philosophy counters this argument in the light
of the interdependence and indivisibility of rights and puts emphasis on
the realization of both set of rights not only with legal remedies but also
with other measures taken by the state to respect, protect and fulfill all
fundamental human rights.
Both civil and political rights and economic, social and cultural rights are
enshrined in the Bangladesh Constitution. Civil and Political rights are
directly justiciable since they are recognized as fundamental rights in
the constitution while economic, social and cultural rights are defined as
fundamental principles of State policy, but are not automatically justiciable.
According to Article 8(2) of the constitution the rights described in part
II of the Constitution, Fundamental Principles of State Policy, is not
directly justiciable but the same article stated that the principles set out
in this part shall be fundamental to the governance of Bangladesh, shall
be applied by the state in the making of laws, shall be a guide to the
interpretation of the constitution and of the other laws of Bangladesh,
and shall form the basis of the work of the state and of its citizens. So, the
inclusion of the rights, especially the economic, social and cultural rights,
under Fundamental Principles of State Policy is very important: though it
is enshrined in the constitution as fundamental principles, it is also stated
that those principles will be the guideline to interpret the fundamental
rights which does not undermine the ESC rights in any way.
This legal compliance study looks into the right to shelter, right to water,
right to health, right to work, right to food and right to education. These
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rights are clearly mentioned in the ICESCR as well as other international
instruments, treaties etc. of which the relevant provisions are stated below
in brief:
1.1 Right to Shelter
Shelter is one of the very basic needs for human survival. It is more than
a roof over one’s head. It provides security, identity, a place to come back
to, a place to call home and a place for family life. Shelter is a fundamental
human right, vital to life, dignity and development of individuals and hence
of the family, the society, the country and humankind at large.
The obligation of States to take steps towards the realization of the right
to adequate housing for all is laid down in a number of international human
rights instruments including the ICESCR. Article 11.1 of the ICESCR states
that: “The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international cooperation based on free consent.”
CESCR General Comment 4 emphasizes that, the right to adequate housing
applies to everyone. While the reference to “himself and his family” reflects
assumptions as to gender roles and economic activity patterns commonly
accepted in 1966 when the Covenant was adopted, the phrase cannot
be read today as implying any limitations upon the applicability of the
right to individuals or to female-headed households or other such groups.
Thus, the concept of “family” must be understood in a wide sense. Further,
individuals, as well as families, are entitled to adequate housing regardless
of age, economic status, group or other affiliation or status and other such
factors. In particular, enjoyment of this right must, in accordance with
article 2 (2) of the Covenant, not be subject to any form of discrimination.
General Comment 4 also illustrates that the concept of adequacy is
particularly significant in relation to the right to housing since it serves
to underline a number of factors which must be taken into account in
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