measure of discretion. Nevertheless such discretion cannot be entirely open-ended or it would
have the de facto effect of nullifying the existence of any real obligation. ... While the Covenant
itself is, inevitably, devoid of specific allocational benchmarks, there is presumably a process
requirement by which states might be requested to show that adequate consideration has been
given to the possible resources available to satisfy each of the Covenant's requirements, even if
the effort was ultimately unsuccessful. If a state is unable to do so then it fails to meet its
obligation of conduct to ensure a principled policy-making process -- one reflecting a sense of
the importance of the relevant rights. In summary it may suffice to say that a plea of resource
scarcity simpliciter, if substantiated, is entitled to deference especially where a state shows
adherence to a regular and principled decision-making process. In the final resort, however,
such a plea remains open to some sort of objective scrutiny by the body entrusted with
responsibility for supervising states' compliance with their obligations under the Covenant.18
Though there has been no shortage of goodwill, little has been achieved since to clarify which
obligations the Covenant imposes on States in the adoption and implementation of public budgets. The
Committee has made it clear that the Covenant "neither requires nor precludes any particular form of
government or economic system being used as the vehicle for the steps [to be taken to implement the
Covenant rights], provided only that it is democratic and that all human rights are thereby respected.
[In] terms of political and economic systems the Covenant is neutral and its principles cannot
accurately be described as being predicated exclusively upon the need for, or the desirability of a
socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any
other particular approach".19 Nevertheless, it added, the Covenant "imposes an obligation to move as
expeditiously and effectively as possible towards [the] goal [of the full realization of economic, social
and cultural rights]".20 The Committee thereby asserted its willingness to assess both the mobilization
of resources and the budgetary priorities the States adopt against this overall objective of the
Covenant. For instance, whereas guaranteeing the right to social security may have significant
financial implications for States, "the fundamental importance of social security for human dignity and
the legal recognition of this right by States parties mean that the right should be given appropriate
priority in law and policy".21
While the principle is well established, the concrete implications are few. Four norms however do
enjoy broad support, and clarify to a certain extent what the duty of progressive realization consists in.
It follows from this general requirement, first, that "any deliberately retrogressive measures [...] would
require the most careful consideration and would need to be fully justified by reference to the totality
of the rights provided for in the Covenant and in the context of the full use of the maximum available
resources".22 As regards the right to social security for instance, when faced with retrogressive
measures adopted by States, the Committee will examine whether: "(a) there was reasonable
justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine
participation of affected groups in examining the proposed measures and alternatives; (d) the measures
were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the
realization of the right to social security, an unreasonable impact on acquired social security rights or
whether an 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 at the national level".23 The
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, adopted in 1997 on the
18
Philip Alston and Gerard Quinn, ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on
Economic, Social and Cultural Rights’, Human Rights Quarterly, vol. 9(1987): 156-229, at 177 and 181.
19
General Comment No. 3 (1990): The nature of States parties' obligations (E/1991/3), Annex III, UN ESCOR, Supp. (No.
3) (1991), at 83.
20
Id., para. 9.
21
General Comment No. 19(2007): The right to social security (art. 9) (E/C.12/GC/19), para. 41.
22
Id. See also the 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 (noting that, in order
to comply with the Covenant, austerity measures or adjustment programmes, as have been adopted by a number of States to
face the financial and economic crisis after 2009, must be "necessary and proportionate, 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"),
23
General Comment No. 19(2007): The right to social security (art. 9) (E/C.12/GC/19), para. 42.
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