In the context of debates on the budget and maximising the Assembly’s contribution to the budgetary processs, this second post (see yesterday’s here) summarises some of the findings from the QUB Budget Analysis Project as to the human rights obligations most relevant to the budgetary process.
The obligations are based on the language of Article 2 (1) of ICESCR:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
The committee that monitors the observance of the ICESCR (the ICESCR Committee) and academic commentators have disentangled a number of obligations from this language and the language of the Covenant.
States have a duty to progressively realise social and economic rights. The duty to ‘achieve progressively’ refers to the achievement of the full scope and content of the right. The reference to ‘progressively’ (as opposed to ‘immediately’) is based on the reality that the full realisation of social and economic rights cannot happen immediately.
The obligation of progressive realisation means that retrogressive measures (backward steps) are incompatible with the ICESCR. The Committee states that any deliberately retrogressive measure requires the most careful consideration. Such a measure would need to be fully justified by reference to the totality of the rights provided for in the ICESCR and in the context of the full use of the maximum available resources.
States must utilise the maximum of available resources to achieve progressive realisation. Implicit in this duty is a process requirement, that States may be requested to show that adequate consideration has been given to all the possible resources available to satisfy each of the ICESCR’s requirements, even if giving effect to full realisation is not immediately possible.
The ICESCR Committee has identified that many rights in ICESCR have a “minimum core” content that is subject to immediate enforcement. Such core content must be protected even in a time of financial retrenchment.
ICESCR also imposes a number of immediate obligations (ie not subject to progressive realisation). These include but are not limited to the principle of non-discrimination (see General Comment 20); the duty “to take steps” towards the full realisation of social and economic rights; the duty to respect right of those affected by key decisions to participate in the decision–making processes.
Taking together, these obligations form the basis for a coherent, principled approach to budgetary decision making and scrutiny that would keep in mind the Universal Declaration of Human Rights injunction that
every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.
This post is based on work carried out by the QUB Budget Analysis Project, in particular the Framework document a policy response to the Department of Finance and Personnel. Full details of the project including these documentats are available at http://www.qub.ac.uk/schools/SchoolofLaw/Research/HumanRightsCentre/ResearchProjects/BudgetAnalysis/