My last blog post on budgeting for human rights explored the obligation for governments to use the maximum of available resources to realize rights enshrined under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Here we will examine what the obligation of progressive realization means for government budgets.
Article 2 of the ICESCR states “each State Party to the present Covenant undertakes to take steps…especially economic and technical, to the maximum of its available resources,with a view to achieving progressively [emphasis added] the full realization of the rights recognized in the present Covenant …”
The obligation of progressive realization has long been central to understanding how economic, social, and cultural (ESC) rights should be achieved. At the time the ICESCR was adopted, it was considered appropriate to underscore that the right to health, education, and social security, among other rights, could not be fully and immediately realized everywhere in the world. Progressive realization recognizes that achieving ESC rights requires governments to spend, and that not all governments are able to mobilize the requisite resources to immediately comply. But it requires governments to demonstrate they are taking steps to do so.
Let’s see what this means for the way in which governments make budgetary decisions.
- Progressive realization is realistic but also demanding.
It takes time to fully realize ESC rights and a government’s ability to do so depends on the resources that it has at its disposal. But the obligation of progressive realization is tied to the obligation of using the maximum of available resources: If a government is not advancing towards a fuller enjoyment of rights, it should demonstrate that – despite its failure – it is actually using all resources that are available to do so. For instance, a government working with a tight budget( or “with limited resources”) may need to choose between committing an equal amount of resources to realizing each right or prioritizing, say, housing over education. Input from civil society and the public is critical for ensuring that these decisions reflect public priorities and peoples’ greatest needs.For example, in the early 2000s the South African government claimed not to have enough resources to fund the prevention of mother to child transmission of HIV. The South African civil society group, Treatment Action Campaign (TAC), pointed out that the government was systematically underspending an important portion of its health budget. South African’s High Court concurred, ruling that resources were evidently available and had to be used to safeguard the right to life and the right to health of children to be born to HIV positive mothers.
- Governments are obliged to continuously improve conditions that are fundamental to the realization of ESC rights.
Basic first steps to realize ESC rights must be taken as soon as possible. This includes developing plans, processes and policies to ensure ESC rights are addressed. These first steps must be followed by other more concrete measures. This includes ensuring that the resources allocated to the realization of ESC rights must increase proportionally to the overall budget. If the government increases its budgetary envelope, by bringing in additional resources through new taxes or loans from multilateral institutions, it must increase the budget of ESC rights related programs accordingly.But just because more resources are allocated to a specific issue, doesn’t mean we can automatically assume that rights are being realized progressively. The mere allocation and expenditure of resources is only an indirect indicator – the realization of rights has to be demonstrated, ultimately, by the positive shift in other, more substantive and direct indicators.For example, a government might spend increasing amounts of resources on food programs, without achieving a reduction in the indicators related to malnutrition. This could be because the money is spent in an inefficient way, the program is not reaching those in most need, or the food is of inadequate nutritional value. Thus, although more money is being spent, the right itself is not realized progressively.
- Avoid retrogression.
Government reforms that deliberately diminish people’s enjoyment of their rights contravene the obligation of progressive realization. This does not mean that a government can never cut budgets related to ESC rights. However, it should demonstrate that it is using resources more efficiently or compensatory measures are being introduced to offset the negative impact of reforms. Resources might also be cut once a program is no longer needed, because previous gaps have been addressed and solved. Nevertheless, any substantive cut in budgets associated to the realization of rights should be carefully examined, explained and probed, in order to ensure that it is not undermining the enjoyment of rights that have previously been achieved.For example, when the Brazilian government tabled a fiscal reform that would have affected the resources available for health services, it was denounced as unconstitutional. Under the ICESCR the reforms would have been retrogressive.
- Protective measures during times of crises. In times of crises plans can become undone and budgets are often cut to address the immediate problem. Progressive realization limits what a government can do under such circumstances. First and foremost, governments must carefully evaluate all their options and then ensure that the maximum available resources under the circumstances are used to protect vulnerable members of society and maintain certain minimum standards. There are some circumstances in which a government must make immediate budget cuts in order to avoid long-term repercussions. The burden of proof that ICESCR puts on governments to show that cuts that may diminish the enjoyment of rights are absolutely necessary provide significant protection to those most at risk.
The connection between international human rights law and budget analysis has the potential to be a powerful tool for holding governments to account for their obligations. It can help establish standards and criteria for making hard choices when resources are scarce, and equally hard choices when they are plentiful. It tells us, above all, that when it comes to public resources, the priorities should not be to steadily advance towards the fullest realization of the rights of the people the government seeks to serve.
Sign-up to join our online webinar on 26 September 2014 to discuss “progressive realization.” And tweet your questions and comments to #Article2.