that there are budgetary implications also to the duty to protect and to the duty to fulfil, compliance
with both of which courts should be able to assess, there is so far no case‐law that builds on that
possibility.
One reason why courts may be reluctant to assess the adequacy of budgetary commitments to the
realization of economic and social rights, is because of the difficulty to distinguish the real constraints
that States may face ‐‐ for instance, as a result of low revenues or the burden of a foreign debt ‐‐
from their unwillingness to make the necessary investments in human development. Countries are at
very different levels of development, and there is no doubt that this is relevant in assessing whether
they comply with the�� duty to progressively realize economic and social rights. For the moment
however, clear criteria to relate the financial capacities of countries to their human rights duties still
are missing.
c) The achievement possibilities of States
One attempt to propose such criteria is by Sakiko Fukuda‐Parr and her collaborators. Fukuda‐Parr,
formerly a loan officer at the World Bank, later joined the United Nations Development Programme,
for which she worked a number of years in Africa. As the Director of the Human Development Report
Office between 1995 and 2006, she was a lead author of the annual flagship publication of the UNDP,
the Human Development Report, which introduced the "Human Development Index" as a measure of
development alternative to GDP growth per capita. Bringing the human development perspective to
human rights, she seeks in her recent work as an academic at the New School in New York to define a
metrics through which to assess the fulfilment by States of their obligations towards economic and
social rights, taking into account their capacity (in terms of resource availability) to do so. In a 2008
paper for instance, Fukuda‐Parr and her colleagues offer to assess whether a particular economic
and social right is adequately fulfilled (z) by examining the ratio between the extent of rights
enjoyment, as measured through socio‐economic indicators commonly used in the development
field (x), and State resource capacity, using GDP per capita as a proxy for such capacity (y), so that z =
x / y (Fukuda‐Parr et al. 2008: 13‐15). Under this approach, countries such as Moldova, Malawi and
Tanzania, though scoring low on the HDI, would score well on the ESRF Index (Economic and Social
Rights Fulfilment Index); the reverse would be true for Mexico and Malaysia, two countries which,
although relatively well ranked on the HDI, could do much better to fulfil economic and social rights
given the resources at their disposal (Fukuda‐Parr et al. 2008: 31).
Alternatively, in another, slightly different version of the same approach, the degree of fulfilment of
the right (z) could be assessed as a value between 0 and 1, calculated as the ratio between the actual
achievement of the country (x) and the maximum level of achievement possible at the per capita
income level of the country concerned, such a maximum being based on the highest level of the
indicator historically achieved by any country at that per capita GDP level (y). This latter approach is
called the "Achievement Possibilities Frontier Approach", a terminology that adequately conveys that
it seeks to assess a country's performance against the best performing country at the same level of
development, as indicated by the GDP per capita (Fukuda‐Parr et al. 2008: 18). Its main advantage,
the authors note, lies in the "theoretical coherency of assessing a country’s fulfillment of its
obligation of progressive realization based on the level at which a country with a given per capita
GDP could perform" (Fukuda‐Parr et al. 2008: 20). The APF approach does not differ in fundamental
ways from the proposal of Cingranelli and Richards that we adopt as a standard (in order to assess
the performance of any particular government in implementing economic and social rights) "whether
the condition of the poorest people in a country is better or worse than the condition of the poorest
people in other countries that are peer benchmarks, because the available wealth per capita is
similar" (Cingranelli and Richards 2007: 223). The major difference, evidently, is that the Cingranelli‐
Richards standard is constantly shifting, based as it is on the changing average performance of the
peers, which makes comparisons across time more difficult: even a country making significant
22
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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