Furthermore, this stands in stark contrast to the CESCR’s previous practice of reminding States that socio-economic rights are more, and not less, important in times of national emergency.62 At the same time, the CESCR’s use of the term ‘crisis’ in the context of retrogression indicates, at the very least, a passive ingestion of that characterisation of the situation. Previously, the doctrine had generally appeared linked to ‘everyday’ situations of resource constraints and only less often in emergency contexts. The CESCR had encountered economic crises before, and had not demonstrated so much flexibility to national governments.63 Such a rupture in the Committee’s approach might plausibly be attributed to the (perceived) nature of the financial and economic crises as international, rapid, structural, and severe. The nature of the changes is also relevant; the substantive adjustments to nonretrogression display a clear emergency character. Prior to the 2012 Letter, States that wished to enact backwards steps were required to undertake multiple and relatively onerous measures. For example, in the context of social security, the Committee noted that before it might declare a retrogressive step ‘permissible’, it would examine some eight factors that required wide-ranging and independent review of the proposed measure. As noted above, this test included a requirement for participation, justifications, considerable review of the proposed measures and other precautions from the State.64 However, after 2012 a shift is discernible and there are now only four criteria that States must fulfil before taking a backwards step: this being grounded in emergency ‘accommodation’. Thus the Committee says that in order to be acceptable; ‘first, the policy is a temporary measure covering only the period of the crisis; second, the policy is necessary and proportionate, in the sense that the adoption of any other policy, or a failure to act, would be more detrimental to economic, social and cultural rights; third, the policy is not discriminatory...; fourth, the policy identifies the minimum core content of rights…and ensures protection of this…’.65 Yet two of these four criteria cannot even properly be described as conditions specific to the taking of retrogressive measures. While the inclusion of these conditions – that measures cannot be discriminatory, nor can they infringe the minimum core – is interesting in its own right, especially given the Letter’s reference to social protection floors and the role of the International Labour Organisation, 66 these are general, longstanding and immediate 67 obligations that exist beyond the circumstances of retrogression.68 62 CESCR, General Comment 2: International Technical Assistance Measures (UN Doc E/1990/23 1990). The Committee merely; ‘takes into account’ (Solomon Islands, E/C.12/1/Add.33, para 9) and ‘acknowledges’ (Mongolia, E/C.12/1/Add.47, para 9) the effects of the Asian financial crisis; ‘recognises’ Togo’s economic crisis (Togo, E/C.12/1/Add.61, para 7); ‘notes’ the economic difficulties in Mexico (Mexico, E/C.12/1/Add.41, para 12), Algeria (Algeria, E/C.12/1995/17, para 12) and Suriname (Suriname, E/C.12/1995/6, para 7). It additionally highlights the economic difficulties in Belarus and Cameroon, but appears to offer no flexibility to those States (Belarus, E/C.12/1/Add.7/Rev.1, para 10; Cameroon, E/C.12/CMR/CO/2-3, para 14). 63 64 65 CESCR, General Comment 19 (n 2) 42. Letter to States (n 1, Annex I), 6 Developed in; CESCR, ‘Social protection floors: an essential element of the right to social security and of the sustainable development goals’ (UN Doc. E/C.12/2015/1, 2015). 66 Bridgit Toebes, ‘The Right to Health’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd edn, M Nijhoff Publishers 2001) 176. 67 68 Although non-discrimination and non-derogable standards are also hallmarks of emergency derogation clauses. Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights During States of Emergency (University of Pennsylvania Press 1994) 61–2, 63–6. 8