PROGRESSIVE REALISATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The notion of ‘progressive’ realisation using ‘available resources’, contained in some economic, social and cultural rights treaties such as Article 2 ICESCR and Article 1 Protocol of San Salvador, has given rise to much uncertainty with regard to the nature and extent of states’ obligations. Some have interpreted this provision as meaning that economic, social and cultural rights are mere ‘aspiration’, without creating real obligation for states.

This text below refers mainly to the ICESCR, but the discussion is also relevant for other economic, social and cultural rights instruments, such as the Protocol of San Salvador. Certainly, economic, social and cultural rights involve progressive realisation to a greater extent than civil and political rights. Nevertheless, it would be difficult to dispute that the full realisation of all human rights is a progressive undertaking. The full realisation of all human rights requires states to progressively develop policies and targets. While compliance with the principle of ‘progressive realisation’ depends on the availability of resources in each state, this notion also imposes legally binding obligations on states. These obligations considerably limit the discretion of states with regard to the implementation of economic, social and cultural rights and require immediate implementation. Some of these obligations are:

1. The obligation to take steps to continuously improve the conditions.

According to its ordinary meaning, the term ‘progressive’ means ‘making continuous forward movement’. Thus, states parties are required to continuously take steps forward in order to achieve the full realisation of the rights recognised in the instruments. This obligation is immediately applicable and is not subject to limitation. Hence, it is not merely an obligation to take action at some time in the future. States, regardless of their level of development, must take steps immediately to achieve the full realisation of the rights enshrined in the Covenant.

2. The obligation to abstain from taking deliberately retrogressive measures except under specific circumstances.

The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights establish that ‘violations of economic, social and cultural rights can occur through the direct action of states [?]. Examples of such violation include: [?] (e) the adoption of any deliberately retrogressive measure that reduces the extent to which any such rights are guaranteed; (g) the reduction or diversion of specific public expenditure, when such restriction or diversion results in the non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for everyone’ (Guideline No. 14).

In 1990, the Committee on Economic, Social and Cultural Rights noted: ‘[A]ny deliberately retrogressive measures [?] would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources’ (General Comment 3). A ‘deliberate retrogressive measure’ means any measure that implies a step back in the level of protection accorded to the rights contained in the Covenant, which is the consequence of an intentional decision by the state. This may occur, for example, if a state:

a) Adopts any legislation or policy with a direct or collateral negative effect on the enjoyment of the rights by individuals or if it introduces legislation which discriminates in the enjoyment of rights; 

b) abrogates any legislation or policy consistent with these rights, unless obviously outdated or replaced with equally or more consistent laws or compensatory measures;

c) Makes an unjustified reduction in public expenditures devoted to implementing economic, social and cultural rights, in the absence of adequate compensatory measures aimed to protect the injured individuals.

The Committee on Economic, Social and Cultural Rights has noted that if any deliberately retrogressive measures are taken, the state party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the state party’s maximum available resources. From the analysis of the Committee’s work, it is possible to conclude that a state party to the ICESCR seeking to justify a retrogressive measure or a failure to comply with the obligation to continuously improve conditions because of resource constraints must:

a) Demonstrate that every effort has been made to use all resources at its disposal. This implies that the state not only has the burden of proving the lack of resources, but it must also prove that it has unsuccessfully sought to obtain international assistance.

b) Demonstrate that every effort has been made to use the resources at its disposal to satisfy, as a matter of priority, certain minimum obligations with respect to the implementation of the Covenant. This obligation is over and above that of justifying lack of resources.

c) Demonstrate that particular attention has been paid to vulnerable groups within society and, in particular, that it has taken measures to prevent or ameliorate the adverse consequences that vulnerable groups may suffer.

d) Rescind any restrictive measures taken to reduce Covenant-related expenses because of real constraints on resources and repair adverse effects on the population, in particular among vulnerable groups, once the resource constraints disappear and the economy recovers.

e) Take adequate measures to ensure that the reduction in resources does not result in the violation of the state party’s obligations under the Covenant and in particular those of Article 4 ICESCR. To the extent that a retrogressive measure places a limitation on the rights, states must comply with the conditions set out in Article 4 ICESCR, which stipulates:

The states parties to the present Covenant recognise that, in the enjoyment of those rights provided by the state in conformity with the present Covenant, the state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.