This chapter seeks to fill this gap. It proceeds in five steps. Part II considers how the Committee on
Economic, Social and Cultural Rights has sought to clarify the content of the duty to devote the
"maximum available resources" to the progressive realization of the Covenant rights. It refers to the
four "constitutional background norms" that the Committee has relied on in assessing the budgetary
choices of States. It argues that these norms -- the duty of non-retrogression, the priority to be given to
the fulfilment of core obligations, and the requirements of non-discrimination and of participation -remain insufficient to provide monitoring bodies with the tools allowing them to examine whether the
States parties comply with the duty of progressive realization of Covenant rights. Next, Part III
considers the argument according to which the quest to define the duties of States as regards resource
mobilization and allocation choices may be misguided, and may in fact undermine the credibility of
economic, social and cultural rights as rights. Two versions of this argument are considered, referred
to respectively as the "violations approach" and the "outcomes-based approach". Both versions have in
common that they seek to dispense with the need to measure whether the efforts of States parties to the
Covenant to fulfil economic, social and cultural rights, are sufficient to comply with the "progressive
realization" clause. These approaches, however, tend to undermine the specificity of the rights
protected by the Covenant, and they miss the subversive dimension of the duty to devote the
"maximum available resources" to the "progressive realization" of these rights : instead of providing
human rights bodies with a sound framework allowing them to inquire into budgetary choices of
States, they may result in shielding such choices from any meaningful scrutiny, except in the most
extreme cases of misallocation of resources.
If defining this duty is a burden we must accept, how can we hope to do so? Part IV proposes a simple
conceptual framework to that effect, emphasizing the need to consider resource mobilization jointly
with spending, and to relate both dimensions to outcomes, i.e. to the effective levels of enjoyment of
economic, social and cultural rights from the point of view of the beneficiary. Parts V and VI then
develop the implications of the resources-spending-outcomes (R-S-O) framework, examining in turn
resource mobilization and the definition of spending priorities. Part V focuses on three sources of
State revenue in particular: the royalties from the exploitation of natural resources; taxation; and
request for international support through development assistance or financial loans. Part VI then
examines spending choices, reviewing the various attempts that have been made in the academic
literature to define how such choices should be assessed. The ultimate quest of this literature is to
identify a methodology through which the budgetary choices of the State and their macroeconomic
policies (as reflected, for instance, in the levels of social transfers or in the attention paid in public
budgets to the health and education sectors), can be assessed in the light of the norms of the
Covenant.4 The chapter concludes, however, with a plea for combining strong procedural requirements
linked to budgetary decision-making, with the substantive norms that should guide budgetary choices :
only by strengthening democratic decision-making in budgetary choices can we overcome the tension
between the external supervision of such choices, whether by domestic or by international monitoring
bodies, and democratic self-determination.
This chapter thus offers to explore the potential of the "progressive realization" clause for introducing
public budget analysis in the practice of the Committee on Economic, Social and Cultural Rights, by
proposing a conceptual framework to guide the discussion. The reader should be cautioned, however,
against the temptation to treat the "progressive realization" clause as one that excludes any possibility
for courts to step in, without having to rely on such public budget analysis, to enforce the rights of the
Covenant. This conservatism is the reverse side of the first: just like it would be a missed opportunity
4
For book-length treatments of the topic, see in particular (in chronological order) Diane Elson, Budgeting for Women's
Rights: Monitoring Government Budgets for Compliance with CEDAW (New York, UNIFEM, 2006); Mary Robinson et al.
(eds) Budgeting for the Poor (New York: Palgrave MacMillan, 2008); Queens University Belfast Budget Analysis Project,
Budgeting for Economic and Social Rights: A Human Rights Framework (Belfast, QUB, 2010); Radikha Balakrishnan, Diane
Elson, James Heintz, and Nicholas Lusiani, Maximum Available Resources and Human Rights: Analytical Report (Center for
Women’s Global Leadership, Rutgers University, 2011); Aiofe Nolan, Rory O’Connell & Colin Harvey, Human Rights and
Public Finance: Budgets and the Promotion of Economic and Social Rights (Oxford: Hart Publishing, 2013); and Rory
O’Connell, Aoife Nolan, Colin Harvey, Mira Dutschke & Eoin Rooney, Applying An International Human Rights
Framework to State Budget Allocations: Rights and Resources (London: Routledge, 2014).
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