August 20, 2018
By Allison Corkery
How can we determine whether governments are investing enough resources in human rights? What does it mean to say the economy is compliant with international human rights law? These are questions the Center for Economic and Social Rights (CESR) is currently grappling with in a collaborative project with Colombian advocacy group Dejusticia and members of the United Nations Committee on Economic, Social and Cultural Rights.
In late June, we co-hosted a Human Rights Council side event with Dejusticia and the Permanent Mission of Portugal to the United Nations, where we had an opportunity to hear perspectives on these questions from civil society, international agencies, and member states. Although it did further convince us that the obligation on governments to take steps to realize rights to the maximum of available resources is both the most important—and least understood—obligation in the International Covenant on Economic, Social and Cultural Rights, it was a rich conversation. A number of insights on challenges associated with the norm emerged—as did some ideas for how to address them. Below are some key takeaways.
Can we describe the norm in a more straightforward way?
One particular comment, which got a lot of smiles and knowing nods in the room, was that the phrase “maximum available resources” is too dense, while the abbreviation “MAR” is too sparse. So, expanding the vocabulary we use when we talk about how resources relate to rights is important. That’s of course a challenge, when the normative weight of the Covenant is attached to those particular words. But incorporating economic terms (in as clear and accessible a way as possible) could help to make the norm more tangible, by connecting it to relevant debates about how resources should be distributed within and between countries.
Another conceptual challenge that came up several times is how the norm relates to other state obligations contained in the Covenant. The specific wording in Article 2(1) is quite a tangle: states must take steps… to the maximum available resources… to progressively realize rights. Does that mean available resources determine what progress is expected? Are resource limitations a qualifier on what steps are expected? Both? Neither?
One way to untangle these norms is to zoom out slightly, in order to analyze the Article 2(1) more systematically as part of an overall assessment of compliance with the Covenant. This could be done by examining the impacts of a country’s economic policies on human rights realization the same way that other types of public policy are analyzed. Frameworks for structuring rights-based policy analysis such as OPERA can be useful here.
Shifting state practice requires a multipronged approach
Another key takeaway was that to “harden” soft law elaborations of the norm—to the degree that it can really have meaningful influence in economic policymaking at the national level—we should be diffusing it through as many different channels as possible across the international human rights ecosystem. This includes intergovernmental channels, where “peer pressure” can play a role in nudging states to adopt policies in line with international consensus. Particular channels suggested included the Universal Periodic Review (UPR) and monitoring processes related to the Sustainable Development Goals (SDGs).
However, there were varying opinions about how much to prioritize the SDGs, particularly because discussions about SDG financing tend to lack coherence and certainly lack a consistent human rights lens. There tends to be an unquestioned trust in the private sector, for example, while the negative impacts of austerity and other fiscal consolidation measures on development are not strongly challenged.
The UPR, too, has its limitations. As research by CESR and Sciences Po has shown, questions about government budgets and public financing are not often raised and recommendations related to resources typically remain very general. So encouraging “SMART” (specific, measurable, achievable, relevant, time-bound) recommendations on resources is important. Such recommendations can show where the state is falling short and where change is needed; identify the actions that need to be prioritized to make that change; and require states to explain and justify failures to take such action.
Virginia Bras Gomes, who is Chair of the Committee on Economic, Social and Cultural Rights and moderated this side event, noted that the Committee has seen a visible shift in attitudes from states in relation to the norm. Previously, discussions on resources were difficult; economic policy was seen as matter of state sovereignty. Now, there is more openness and willingness to engage. More state delegations include representatives from finance ministries and statistical offices, to help make connections between spending decisions and government performance indicators.
There is strong demand for tools to measure the norm
The aim of the CESR and Dejusticia collaboration with members of the Committee is to develop practical methodological tools on how to evaluate states’ economic policies—in particular fiscal policies. To inform the design of such tools, we started by consulting members about the gaps and challenges in the Committee’s methods. These consultations revealed important insights, summarized in a short discussion paper prepared for the side event. Particular themes to emerge related to the information needed, including the identification of indicators and data, and how to interpret data to interrogate the reasonableness of policy trade-offs in relation to resources.
There are a growing number of resources on the norm, which participants shared at the event, including reports from the International Bar Association Human Rights Initiatives, the High Commissioner for Human Rights and OHCHR and IBP; their focus has tended to be more on unpacking the various dimensions of the norm. Although the need for effective tools for budget monitoring is often noted, there aren’t a great deal of resources designed to make such tools more usable by human rights accountability mechanisms. This is something we’re focusing on in our project.
This will result in a number of outputs. For example, to help inform those efforts, we’re collaborating with HURIDOCS, using their Uwazi platform to develop a database of relevant documents on resourcing rights which we look forward to sharing in the coming months.
Our discussions found that such efforts at developing measurement and accountability tools to define the relation of resources to rights are indeed crucial, but only by employing tangible economic terms to connect the need to current distributional debates will maximum available resources become more commonly realized. In addition, turning to intergovernmental channels within the international human rights ecosystem to support hard law solutions is also necessary to facilitate MAR’s acceptance. This combination of efforts aimed at realizing the norm will be most useful in getting governments to take steps to realize rights to the maximum of available resources.