individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures …’45 As such, the principle of non-retrogression in its pre-2012 form combined with the individual rights, article 4, and article 2(1), to provide significant flexibilities to States. Where States parties found themselves unable to progressively realise the rights, it was open to them to prove the need to take ‘backwards steps’.46 This doctrine regulating retrogressive measures was also subject to a consistent set of standards – if not consistent interpretation. Although certain limits could not be contravened (for example, States could not justify discrimination or the infringement of the minimum core 47 ), this procedure granted significant everyday discretion and flexibility to States. These everyday flexibilities denied the need for derogations, special powers or the suspension of legal frameworks. Crucially, the Business as Usual model emphasised consistency of outcome. By refusing to subject socio-economic rights protection to the fluctuations of crisis situations, the importance of those rights is arguably underscored. Further, beyond simply emphasising the importance of the protection of the rights (a claim liable to being ‘trumped’ by something even more important, such as a crisis), the Business as Usual approach highlights the value of consistent protection. A final, more pragmatic, benefit of the Business as Usual approach is the maintenance of spaces for advocacy, since if the obligations remain intact there remain avenues for contesting the State’s approach. IV. POST-2012 APPROACH This general picture of how the ICESCR previously dealt with emergencies underlines the significance of the (legal and/or rhetorical) move that the CESCR has made with respect to the non-retrogression doctrine. The Open Letter has the potential to substantially shift the interpretation of the doctrine of non-retrogression – and perhaps consequently of the Covenant – by moving towards a model of emergency ‘accommodation’. The permanence and significance of the approach adopted by the CESCR in its Letter hinges on the status and influence of a Letter addressed ‘on behalf of’ the Committee.48 The CESCR has only ever produced two such open letters, 49 although the use of statements is significantly more widespread.50 No other treaty monitoring committee has a practice of producing open letters such as these and it has been suggested that that the Letter may not even have the status of soft law.51 Yet the Letter may still have, or acquire, some 45 ibid. The term ‘backwards step’ is used synonymously with ‘retrogressive measure’ in for example; Special Rapporteur on extreme poverty and human rights, Report of the Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Sepúlveda Carmona (Fiscal Policy and Human Rights) (UN Doc A/HRC/26/28 2014) para 28; Report of the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, Common Violations of the Human Rights to Water and Sanitation (UN Doc A/HRC/27/55 2014) para 46. The term ‘backsliding’ is also used; Center for Economic and Social Rights (CESR), ‘Mauled by the Celtic Tiger: Human Rights in Ireland’s Economic Meltdown’ (2012) 6 <http://www.cesr.org/downloads/cesr.ireland.briefing.12.02.2012.pdf> accessed 3 September 2014; Nolan, Lusiani and Courtis (n2) 125. 46 47 CESCR, General Comment 19 (n 3) 42. 48 Letter to States (n 1, Annex I), 1. The other letter being; Chairperson of the CESCR, ‘Letter Dated 30th November 2012 Addressed by the Chairperson of the Committee on Economic, Social and Cultural Rights to States Parties to the International Covenant on Economic, Social and Cultural Rights’ (2012) UN Doc CESCR/49th/AP//MAB. 49 Statements are formatted differently, and generally come from the CESCR as a whole, having been ‘adopted’ in one of the CESCR’s sessions, rather than from the Chairperson ‘on behalf of’ the Committee. 50 Aoife Nolan, ‘ Putting ESR-Based Budget Analysis into Practice: Addressing the Conceptual Challenges’ in Aoife Nolan, Rory O’Connell and Colin Harvey (eds.) Human Rights and Public Finance: Budgets and the Promotion of Economic and Social Rights (Hart 2013), 50. 51 6