Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

228 | PRACTITIONERS GUIDE No. 6
This notwithstanding, certain aspects of the Covenant rights, as regards
the obligation to fulfil, are subject to the principle of “progressive
realisation” (Article 2.1 ICESCR), an acknowledgement that their full
realisation might not be achieved immediately and that there may be
resource constraints that should be taken into account when assessing
State compliance with some of these obligations.
3. Prohibition of retrogressive measures
Article 2.1 ICESCR also prohibits States from taking retrogressive measures
in regard to the rights contained therein. 890 The prohibition of
retrogression “means that any measure adopted by the State that suppresses,
restricts or limits the content of the entitlements already guaranteed
by law, constitutes a prima facie violation. It entails a comparison
between the previously existing and the newly passed legislation,
regulations and practices, in order to assess their retrogressive character.”
891 A State adopting retrogressive measures breaches its ESC rights
obligations unless it can show that the measures:
• were taken in pursuit of a pressing goal;
• were strictly necessary; and
• there were no alternative or less restrictive measures available. 892
4. Non-discrimination and application to non-nationals
Irrespective of whether a particular obligation is of immediate effect
or is to be realised progressively, it must not be implemented so as
to exclude or unjustifiably discriminate against non-nationals. Article 2
ICESCR protects against discrimination in relation to the Covenant
rights. The CESCR has made clear that the prohibition of discrimination
also includes discrimination against non-citizens on the grounds of
nationality. Although this is not an express ground, it is included under
“other grounds” in Article 2.2 ICESCR. The Committee has stated that:
“[t]he ground of nationality should not bar access to Covenant rights
[. . .]. The Covenant rights apply to everyone including non-nationals,
890 See, ibid., para. 9.
891 ICJ, Courts and Legal Enforcement of Economic, Social and Cultural Rights, op. cit., fn. 29,
p. 6.
892 See, CESCR, General Comment No. 3, op. cit., fn. 147, para. 9. See, Free Legal Assistance
Group and Others v. Zaire, ACommHPR, Communications Nos. 25/89, 47/90, 56/91,
100/93, 19 th Ordinary Session, March 1996, para. 48 and holding; Acevedo Buendía et al.
(“Discharged and Retired Employees of the Comptroller”) v. Perú, IACtHR, Series C No. 198,
Judgment of 1 July 2009, para. 103; Miranda Cortez et al. v. El Salvador, IACHR, Case
No. 12.249, Report No. 27/09, Merits, 20 March 2009, para. 105 (finding prohibition of
retrogressive measures under Article 26 ACHR); and, National Association of Ex-Employees
of the Peruvian Social Security Institute et al. v. Peru, IACHR, Case No. 12.670, Report
No. 38/09, Merits, 27 March 2009, para. 140.