Transcript Human Rights Framework:

HUMAN RIGHTS FRAMEWORK:
Budget Obligations in the International Covenant
on Economic Social and Cultural Rights (ICESCR)
WHY ICESCR?
UK signed and ratified ICESCR
 Lack of national strategy incorporating ICESCR
 Not enough legal protection of ICESCR in UK
 European Convention on Human Rights is
incorporated (Human Rights Act 1998) but does
not provide for full ESR protection.
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DEFINING THE ICESCR BUDGET OBLIGATIONS
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Tripartite typology – overcome distinction between
civil political and economic, social and cultural rights.
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Article 2(1)
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Duty to respect
Duty to protect
Duty to fulfil (facilitate, promote and provide)
Duty to use maximum of available resources;
Progressively achieve full realization of ICESR rights;
Immediate and progressive obligations
Article 2(2) – non-discrimination
 Progressive realization = non-retrogression
 Minimum core
 Process related duties
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Overlaps between the above approaches
THE DUTY TO RESPECT
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Negative obligations
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Duty not to do something
Respect existing access to economic and social rights
Refrain from funding interference
Expenditure for institutional framework necessary to
ensure continued access
Preventative and/ or restorative funding allocation
Positive, resource obligations:
Duty to take positive action
 Uphold existing supply and ensure equal access
 Increasing resources for ESR in line with inflation
 Economic decline/ recession positive action required to
ensure continued access
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Immediate obligation
THE DUTY TO PROTECT
State must prevent 3rd parties from interfering with
equal and affordable access to ESR rights.
 Privatisation / delegation of services: protect against
overemphasis on commercial objectives at the expense
of human rights objectives.
 Resources for effective regulatory framework:
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monitor conduct of private actors;
ensure genuine public participation;
effective legal remedies;
protect against discrimination, protect most vulnerable;
E.g. Control of the financial sector
State must ensure that 3rd parties respect existing
access
 Duty to fulfil always remains relevant
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THE DUTY TO FULFIL
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Duty to facilitate –
Strengthen people’s access to and utilisation of resources
 Encourage effective use of existing entitlements
 Funding for technical training; subsidies/ price regulations
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Duty to promote –
Create environment conducive to progressive realization
 Funding for information/ awareness campaigns; human
rights training of civil servants
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Duty to provide –
State has to fund (provide) economic and social rights directly
 E.g. Free/ low cost water; food provision; social housing etc
 Develop budgeted strategies
 Groups of people entitled to special assistance – funding
priority
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ART 2(1) MAXIMUM AVAILABLE RESOURCES
Real resources – beyond allocations
 Sufficiency of spending
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Compare ESR allocation with GDP/ government spending
Could revenues be increased?
Budget changes over time.
Efficiency of spending
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Funding diverted in light of steady or increasing need?
Non-utilisation of allocated funding
Best quality goods for lowest possible price?
Compare ESR with non-ESR funding e.g. health vs. Defence
Equality in funding – adequate prioritisation
 Funding towards smooth administration and
management of allocated resources
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ART 2(1) PROGRESSIVE ACHIEVEMENT
Refers to progress in actual enjoyment of rights
 State must show that it is moving as
‘expeditiously and effectively’ as possible
 Disaggregate data over time
 Refers to progressively:
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expanding access – larger number of people
improving implementation – wider range of people
Non-Retrogression
Decline in enjoyment directly related to State action
 E.g. Unjustified reduction in public expenditure
 Can be justified only with careful regard to the
totally of the rights
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IMMEDIATE AND PROGRESSIVE OBLIGATIONS
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Minimum core
Minimum essential level necessary for survival
 Calculated priority in resource allocation/ higher
justification
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Non-discrimination article 2(2)
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Resource implication: State must immediately address
discriminatory exclusion
Process related obligations
Start taking steps immediately
 Duty to monitor and develop a strategy
 Accountability and transparency
 participatory processes
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CONCLUSION
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Overlaps
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Tripartite typology has immediate and progressive
duties: duty to respect, protect and elements of the duty
to fulfil are immediate.
Similarities between the duty to respect and the duty not
to take retrogressive measures
Article 2 contains both immediate (substantive and
procedural) and progressive obligations;
Rigid adherence to the classifications not desirable.
 Frameworks to be applied in conjunction with each
other for a full picture
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