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Published online by Cambridge University Press: 25 May 2021
Part one of this study has dealt with the problem of the conception and justification affecting the human rights status of ESC rights. In substance, it argued for the social conception of human rights which can be justified on the basis of the principle human dignity. In particular, it argued that the principle of human dignity asserts an unconditional respect for the inherent life and value of human being which, in practical terms, means respecting and ensuring the inherent biological (material) and moral conditions required to live a dignified human life. Now the main purpose of this Part is examining the specific legal obligations the State in relation to the realisation of the material conditions guaranteed through ESC rights regime by taking international ESC rights jurisprudence as a subject of inquiry. The investigation in this Part is based on the understanding that international human rights law imposes on States parties the generic obligation to respect and ensure the free, full and effective enjoyment of all human rights within their jurisdiction. This is a generic international legal obligation assumed by all the States parties to a given human rights convention that applies to all the rights therein. It is a broad obligation covering a wide-range of legal, institutional and policy measures that States should take in order to give effect to the rights they recognise within their jurisdictions.
The IACtHR has interpreted the generic human rights obligation of the State in terms of the obligation to respect and ensure (guarantee) the free, full and effective exercising and enjoyment of all human rights without any kind of discrimination. The obligation to respect signifies the limitations on the power of the State party which, in turn, ‘derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State’. The obligation to ensure or guarantee ‘implies the duty of the States party to organize all the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights’. It particularly ‘requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights’.
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