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H UMAN R IGHTS F RAMEWORK : Budget Obligations in the International Covenant on Economic Social and Cultural Rights (ICESCR)

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Presentation on theme: "H UMAN R IGHTS F RAMEWORK : Budget Obligations in the International Covenant on Economic Social and Cultural Rights (ICESCR)"— Presentation transcript:

1 H UMAN R IGHTS F RAMEWORK : Budget Obligations in the International Covenant on Economic Social and Cultural Rights (ICESCR)

2 W HY ICESCR? UK signed and ratified ICESCR Lack of national strategy incorporating ICESCR Not enough legal protection of ICESCR in UK European Convention on Human Rights is incorporated (Human Rights Act 1998) but does not provide for full ESR protection.

3 D EFINING THE ICESCR B UDGET O BLIGATIONS Tripartite typology – overcome distinction between civil political and economic, social and cultural rights. Duty to respect Duty to protect Duty to fulfil (facilitate, promote and provide) Article 2(1) Duty to use maximum of available resources; Progressively achieve full realization of ICESR rights; Immediate and progressive obligations Article 2(2) – non-discrimination Progressive realization = non-retrogression Minimum core Process related duties Overlaps between the above approaches

4 T HE D UTY TO RESPECT Negative obligations Duty not to do something Respect existing access to economic and social rights Refrain from funding interference Expenditure for institutional framework necessary to ensure continued access Preventative and/ or restorative funding allocation Positive, resource obligations: Duty to take positive action Uphold existing supply and ensure equal access Increasing resources for ESR in line with inflation Economic decline/ recession positive action required to ensure continued access Immediate obligation

5 T HE D UTY TO P ROTECT State must prevent 3 rd parties from interfering with equal and affordable access to ESR rights. Privatisation / delegation of services: protect against overemphasis on commercial objectives at the expense of human rights objectives. Resources for effective regulatory framework: monitor conduct of private actors; ensure genuine public participation; effective legal remedies; protect against discrimination, protect most vulnerable; E.g. Control of the financial sector State must ensure that 3 rd parties respect existing access Duty to fulfil always remains relevant

6 T HE D UTY TO F ULFIL Duty to facilitate – Strengthen people’s access to and utilisation of resources Encourage effective use of existing entitlements Funding for technical training; subsidies/ price regulations Duty to promote – Create environment conducive to progressive realization Funding for information/ awareness campaigns; human rights training of civil servants Duty to provide – State has to fund (provide) economic and social rights directly E.g. Free/ low cost water; food provision; social housing etc Develop budgeted strategies Groups of people entitled to special assistance – funding priority

7 A RT 2(1) M AXIMUM A VAILABLE R ESOURCES Real resources – beyond allocations Sufficiency of spending Compare ESR allocation with GDP/ government spending Could revenues be increased? Budget changes over time. Efficiency of spending Funding diverted in light of steady or increasing need? Non-utilisation of allocated funding Best quality goods for lowest possible price? Compare ESR with non-ESR funding e.g. health vs. Defence Equality in funding – adequate prioritisation Funding towards smooth administration and management of allocated resources Progressive Realization Non-retrogression

8 A RT 2(1) P ROGRESSIVE A CHIEVEMENT Refers to progress in actual enjoyment of rights State must show that it is moving as ‘expeditiously and effectively’ as possible Disaggregate data over time Refers to progressively: expanding access – larger number of people improving implementation – wider range of people Non-Retrogression Decline in enjoyment directly related to State action E.g. Unjustified reduction in public expenditure Can be justified only with careful regard to the totally of the rights

9 I MMEDIATE AND P ROGRESSIVE O BLIGATIONS Minimum core Minimum essential level necessary for survival Calculated priority in resource allocation/ higher justification Non-discrimination article 2(2) Resource implication: State must immediately address discriminatory exclusion Process related obligations Start taking steps immediately Duty to monitor and develop a strategy Accountability and transparency participatory processes

10 C ONCLUSION Overlaps Tripartite typology has immediate and progressive duties: duty to respect, protect and elements of the duty to fulfil are immediate. Similarities between the duty to respect and the duty not to take retrogressive measures Article 2 contains both immediate (substantive and procedural) and progressive obligations; Rigid adherence to the classifications not desirable. Frameworks to be applied in conjunction with each other for a full picture

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