Ben TC Warwick, ‘Socio-economic rights during economic crises: A changed approach to nonretrogression’ (forthcoming) International and Comparative Law Quarterly.
Socio-economic rights during economic crises: A changed
approach to non-retrogression
Ben TC Warwick*
Abstract:
When the UN Committee on Economic, Social and Cultural Rights (CESCR) released a letter
in early 2012 addressing the financial and economic crises, it was long overdue. Finally, and
around four and a half years after the crises began, the body responsible for monitoring those
rights that had been most severely impacted had spoken. But what had been said? This article
examines the alterations to the doctrine of non-retrogression that the 2012 Letter instigated.
It does so by reference to the ‘Business as Usual’ and ‘accommodation’ theories of
emergency response. The Letter to States is argued to have taken the Committee away from
an approach to non-retrogression that treated times of normality and emergency in a similar
way, and towards an approach that allows derogation-style deviations from the Covenant.
This, it is argued, could have detrimental effects for the protection of economic and social
rights. The difficulties in applying such an approach are considered.
Keywords:
economic and social rights, emergency, economic crisis, retrogression, enforcement,
derogation, limitation, UN Committee on Economic, Social and Cultural Rights
I. INTRODUCTION
When the UN Committee on Economic, Social and Cultural Rights (CESCR) released a letter
in early 2012 1 addressing the financial and economic crises, it was long overdue. Finally,
around four and a half years after the crises began, the body responsible for monitoring those
rights that had been most severely impacted had spoken. Yet the content of the guidance
given – in the form of a letter from the Chairperson2 – largely neglected over twenty years’
worth of the Committee’s own work.3 Instead of reiterating the principles developed over the
preceding two decades, this Letter substantially recast the obligations of States in relation to
socio-economic rights4 and set down altered tests and new rhetoric. All of this occurred at the
*
Graduate Teaching Assistant and Doctoral Candidate, Durham Law School, b.t.c.warwick@durham.ac.uk. I am grateful to all of those who
have read and commented upon earlier versions of this article. I am particularly indebted to Anashri Pillay, Fiona de Londras, Ruth
Houghton, and the two anonymous reviewers at ICLQ for their comments. Aspects of the work have been presented at the Durham ESRANUKI workshop, and at the Law and Society Association Annual Meeting, Seattle. Any remaining errors are my own.
1
Reproduced below at Annex I; Chairperson of the CESCR, ‘Letter Dated 16 May 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 HRC/NONE/2012/76, UN reference CESCR/48th/SP/MAB/SW.
2
Letter to States (n 1, Annex I), 1.
3
For a sample, see; CESCR, General Comment 3: The Nature of States Parties Obligations (Art. 2, Para. 1 of the Covenant) (UN Doc
E/1991/23, 1990) para 9; CESCR, General Comment 15: The Right to Water (arts. 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights) (UN Doc E/C12/2002/11, 2002) para 19; CESCR, General Comment 19: The Right to Social Security (art. 9)
(UN Doc E/C12/GC/19, 2007) para 42. See further; Aoife Nolan, Nicholas J Lusiani and Christian Courtis, ‘Two Steps Forward, No Steps
Back? Evolving Criteria on the Prohibition of Retrogression in Economic, Social and Cultural Rights’ in Aoife Nolan (ed), Economic and
Social Rights after the Global Financial Crisis (CUP 2014) 132.
The term ‘socio-economic rights’ is used here to cover the full range of economic, social and cultural rights as expressed in the
International Covenant on Economic, Social and Cultural Rights. The Letter to States applies equally to ‘cultural’ rights as to ‘social’ and
4