comply with its obligations, and which are instead the result of a lack of capacity of the State. Indeed,
the final stage of the analysis (step # 3) should enable the identification of "cases in which the
government had the capacity to deal with some of the determinants of specific deprivations and
inequalities identified in Step #2, but failed to do so" (Chapter 11: 122).
But how should such a capacity be assessed, and how can we determine what a reasonable response
of the State should be? Felner proposes a variety of ways (five in total) to identify the relevant
benchmarks. Some of the answers proposed are irrelevant to the question of how a country's
responses are to be assessed where the outcomes are unsatisfactory, because, by design, they rule
out the possibility that the country could invoke factors beyond its control to provide a justification
for poor achievements: for instance, if we consider that part of the "core obligations" of the State
under international human rights law is to ensure 100 per cent of access to primary education, it
could follow that no excuse should be allowed from the State failing to reach that target. The other
answers address the harder cases, where lack of resources cannot be so easily dismissed as
irrelevant. They fall in two groups: they consist either in the benchmark to be achieved being set by
each individual State, or in the benchmark being defined using cross‐country comparisons.
The first approach may consist in relying on an objective a State has set for itself, for instance by
endorsing an international goal such as one contained in the MDGs, or by specific commitments,
such as to increase the budget going to public housing by 20 per cent in two years or to divide by two
the gap between the educational achievements of boys and those of girls; or in the past performance
of the State constituting the benchmark against which to assess further progress. The main
advantage of this approach is that the benchmark is not imposed from the outside, but derives from
choices made by the concerned State itself, which makes it difficult to challenge on legitimacy
grounds. Yet, it begs the question of how to assess whether the goals set by the State are adequate,
given the resources at its disposal: has the State been ambitious enough in setting an objective, and
if progress was made in comparison to previous years, was that progress sufficient? As Felner himself
recognizes, referring to the proposal to evaluate the performance of a State against the targets it has
set for itself, this commitment in turn "should also be scrutinized, as it could be flawed from a human
rights perspective" (Chapter 11: 116).
The second approach is more promising. It relies on cross‐country comparisons, using as a reference
point countries of a same region at a similar level of development: such cross‐country comparisons,
Felner argues, "could reveal whether the levels of deprivation of the focus country are lower than
expected given the country’s development level" (Chapter 11: 116). The choice of relying on
countries of the same region and at a similar level of development (by which Felner presumably
means countries with a similar GDP per capita), should be seen as a compromise. A more rigorous
methodology should take into account a variety of factors in multiple regression analyses, to control
for the various obstacles that a country may be confronted with. Such obstacles could include for
instance, though not being limited to, the country being landlocked, the country having a weak
population density making the delivery of services more costly and more difficult, or the country
being heavily dependent on a narrow range of commodities for its export revenues. But taking into
account a large range of factors that might potentially affect a country's ability to progressively
realize economic and social rights would soon make monitoring compliance with social and economic
rights an unmanageable task: for the sake of simplicity, Felner therefore proposes to limit the
comparison to the countries of the same region, geographical proximity being a proxy for the range
of obstacles faced.
The principal merit of Felner's approach is that it allows for a highly contextualized analysis. Even
when the levels of deprivation in certain areas (such as health, education or food) are identical in
countries at a same level of development, different recipes will correspond to their respective
conditions. Because the demarche proposed here is inductive, taking outcomes as a departure point
25
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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