in the non-derogable provisions of the ICCPR.81 This legal method identifies ‘key’ values, either in the sense that they are ‘fundamental’ or that there is no clear reason for their infringement during a crisis. Finally, the Letter to States sets ‘law’ and ‘legality’ aside in a manner entirely consistent with an emergency ‘accommodation’ approach. Thus the Letter argues that States should not deny or infringe rights, as ‘[a]part from being contrary to their obligations under the Covenant’82 other negative effects such as political instability might arise. To a lesser degree the CESCR repeats this diversion from legality when it notes that the Covenant provides mere ‘guideposts’,83 and notes that adjustments to socio-economic rights are ‘at times inevitable’. 84 The CESCR’s willingness to use legal obligations as a secondary value places States’ obligations in a position subordinate to the ‘necessities of the situation’ 85; accommodating ‘necessary’ emergency responses is the new guiding value. In sum, the substance and character of these alterations to the doctrine indicates a shift towards an emergency accommodation paradigm. This shift from Business as Usual to accommodation was not subtle and contained some paradigmatic examples of emergency-type responses. These changes are significant and have operational consequences which are explored below. V. IMPLICATIONS OF AN ‘EMERGENCY’ SHIFT The previous sections have outlined how the CESCR’s approach to retrogression and ‘emergency’ has been conceptually modified. This section will assess some of the dangers of these changes. This is important because emergency regimes have historically been the setting for some of the most extensive and grave departures from human rights. 86 In the context of the Letter, the major (but not the only) threats can be categorised in terms of ‘incommensurate balancing’, threats to the foundational principles of socio-economic rights, and the inadequacy of safeguards. A. An appropriate test? The construction of the new test of non-retrogression has the potential to raise a number of issues for socio-economic rights. The second condition set down by the Letter requires States to assess whether their proposed policies are: ‘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’.87 As there are two possible interpretations of this text, it is difficult to know with certainty how the Committee will give effect to it. 81 82 ICCPR (n 31) article 4(2). Letter to States (n 1, Annex I), 3 (emphasis added). 83 ibid 4. 84 ibid 6. 85 Gross and Ní Aoláin (n 7) 173. Joan F Hartman, ‘Working Paper for the Committee of Experts on the Article 4 Derogation Provision’ (1985) 7 Human Rights Quarterly 89, 91. 86 87 Letter to States (n 1, Annex I), 6.. 10