A/HRC/24/44
infrastructure deteriorate due to a lack of investment in operation and maintenance. 20 In
times of financial and economic crisis, retrogressive measures are more common and their
impacts often exacerbated by austerity measures.21
15.
From a human rights standpoint, retrogressive measures are prohibited if they
deliberately interfere with the progressive realization of rights.22 States must justify such
measures according the following criteria:
(a)
There must be a reasonable justification for the steps taken and the
subsequent regression in the implementation of rights.23 The measure must be necessary
and proportionate24 “in the sense that the adoption of any other policy, or a failure to act,
would be more detrimental”25 to human rights. The State must prove the measures were
“introduced after the most careful consideration of all alternatives and that they are justified
by reference to the totality of rights”;26
(b)
In addition to meeting core obligations as a matter of priority, maximum
available resources must be fully used to progressively realize all levels of human rights in
a way that guards against retrogressive steps or impacts and/or maintaining the status quo.27
A social protection floor, especially for disadvantaged and marginalized groups and
individuals, should ensure access to basic social services, shelter, food, water and
sanitation, and empowerment and protection of the poor and vulnerable (A/HRC/13/38,
paras. 21 and 25);
(c)
Measures must not be discriminatory. 28 Even where resources are tightly
constrained, for example during times of austerity, targeted programmes aimed at those
most at risk are needed.29 Policies and legislation should not be designed to benefit already
advantaged groups at the expense of others;30
(d)
Meaningful participation of affected groups and individuals in examining
proposed measures and alternatives is required when considering a retrogressive measure;31
(e)
Retrogressive measures should be temporary and short term in nature
(E/C.12/ISL/CO/4, para. 6). Where implemented in times of crisis, they should cover only
the period of the crisis;32
(f)
There should be accountability mechanisms in place that ensure the
possibility of independent review of the measures at a national level33 and provide access to
remedies for victims of rights violations;
20
21
22
23
24
25
26
27
28
29
30
31
32
33
6
Catarina de Albuquerque, On the Right Track: Good Practices in Realising the Rights to Water and
Sanitation (2012), pp. 32 and 79-81.
See A. Nolan (ed.), Economic and Social Rights after the Global Financial Crisis (forthcoming).
General comment No. 3, para. 9.
General comment No. 19, para. 42.
Committee on Economic, Social and Human Rights, concluding observations: Iceland
(E/C.12/ISL/CO/4), para. 6.
Chairperson of the Committee on Economic, Social and Cultural Rights, letter to State parties, 16
May 2012.
General comments No. 13, para. 45 and No. 19, para. 42.
General comments No. 13, para. 45 and No. 19, para. 42.
E/C.12/ISL/CO/4, para. 6 and general comment No. 19, para. 42.
General comment No. 15, para. 13.
Committee on Economic, Social and Cultural Rights, general comment No. 4 (1991), para. 11.
General comment No. 19, para. 42.
Chairperson of the Committee on Economic, Social and Cultural Rights, letter to State parties.
General comment No. 19, para. 42.