The test, read strictly, has two incongruent parts. On the face of it, the Letter requires that measures enacted be both necessary and proportionate. Yet, the Letter goes on to define this ‘necessary and proportionate’ test as requiring that the policy that is best for (least ‘detrimental’ to) the protection of socio-economic rights be selected. These two strands of the test sit uncomfortably together, and the ‘necessary and proportionate’ test effectively becomes subsumed. Indeed, on this reading, the test is not readily recognisable as a condition of necessity and proportionality. Rather, it requires States to choose the measure least detrimental to the rights. As such, a measure proposed by a State would, according to this reading, be tested against whether the alternative is more detrimental for socio-economic rights – not according to whether it is necessary and proportionate. Another (and more plausible) reading of the CESCR’s test is possible, however. In this reading, the ‘necessary and proportionate’ test outlined in the Letter can be seen as intended to ensure that a proposed policy is necessary and proportionate in the context of the financial and economic crises. The Letter’s clause ‘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’, might then be read as meaning ‘having due regard for economic, social and cultural rights’. Such a reading is justifiable given the CESCR’s own usages,88 the incongruence of the test when read strictly, and the context in which the Letter was written.89 Thus the test might, in practice, be said to read: ‘measures should be necessary and proportionate in the context of the crisis, and having due regard for economic, social and cultural rights’. This interpretation seems closer to what the CESCR was trying to achieve. Elsewhere in the Letter the Committee is preoccupied with balancing socio-economic rights with the economic situation of the day.90 Contextually, it is clear that the concern was not with States that were choosing between two rights-friendly policies (as is suggested by a strict reading), but with States that were enacting measures to deal with the financial and economic crises that were unnecessarily and disproportionately damaging socio-economic rights. Yet, if the latter interpretation was the CESCR’s intention, then it raises serious questions about how such a proportionality analysis might be carried out. It would entail balancing rights against neoliberal economic ‘imperatives’. Before even reaching such a point of balancing, the CESCR would have to concede that rights are commensurate with a specific kind of economic benefit.91 To be clear, this is an entirely different contention to the widely accepted view that the realisation of socio-economic rights depends deeply on resource allocation.92 Such balancing would instead concede that economic ‘necessities’ can ‘buy-out’ rights protections.93 This is particularly problematic given the lack of regard had for socio- The CESCR has abbreviated the full version of the Letter’s test to simply require the measure to be ‘necessary and proportionate’; CESCR, Concluding Observations: Iceland (UN Doc E/C12/ISL/CO/4, 2012) para 6. 88 89 An interpretation justified under; Vienna Convention on the Law of Treaties (n 52), article 32. For example, the acceptance that ‘a lack of growth, impede[s] the progressive realization of economic, social and cultural rights’; Letter to States (n 1, Annex I), 5.. 90 Cass R Sunstein, ‘Irreversibility’ (Social Science Research Network 2008) SSRN Scholarly Paper ID 1260323 4 <http://papers.ssrn.com/abstract=1260323> accessed 30 September 2014. 91 92 See eg. Manuel Couret Branco, Economics Versus Human Rights (Routledge 2009) 8. 93 Rejecting balances between socio-economic rights and neoliberal economic imperatives does not necessarily preclude the balancing of those rights against other referents, including (sustainable) economic referents of a different kind. This will especially be the case where the referent can be shown to genuinely represent ‘the legitimate interests of the community’ and can thus be accommodated under article 4 ICESCR; Alston and Quinn (n 28) 194. 11