INTRODUCTION

In the face of poor economic growth and rising public deficit austerity measures are
increasingly being adopted by states to try and stabilise the financial situation 1. In
this regard the ongoing Global Financial Crisis (GFC) has put an increasing strain on
this already tentative relationship between economic globalisation and human
rights. In an open letter to member states on the 16 May 2012, Ariranga G. Pillay,
Chairperson of the Committee on Economic, Social and Cultural Rights, highlights
that although difficult decisions have to be made at times of austerity measures,
these decisions should never come at the expense of international human right
treaty obligations2.

This paper will examine how far a state can go in times of financial crisis when it
comes to austerity measures that affect human rights. Here two distinct
perspectives can clearly be identified. The national perspective, that the state has
the right to deal with GFC how it sees fit and the international perspective that says
internationally respected human rights norms place limits on what states can do.
Here human rights legislation can be seen as setting the boundaries through the
various declarations and treaties states are obligated to.

Primarily we will examine the national perspective. We will then proceed to

examine the international perspective regarding states obligations to human rights
legislation – where and in which ways are they setting the boundaries? Finally we
will look at possible compromises and solutions to the conflict between these two
contrasting views.

PART 1: THE NATIONAL PERSPECTIVE

Primarily we will discuss the national perspective that holds that states should be
1
CESCR/48th/SP/MAB/SW- Open Letter to ALL States Parties to the International Covenant on
Economic, Social and Cultural Rights, 16th May 2012, available at:
http://www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf [last accessed 1
October 2012)
2
CESCR/48th/SP/MAB/SW, 2012, Ibid.
free to decide how to react to the GFC. This perspective relies on a general
understanding of the term ‘economic globalization’.

1.1: DEFINITION: ‘Economic Globalisation’

One definition is that of the state using its sovereignty to participate in a
transnational economic activity and thus the creation of transnational economic
policies. As Koen De Fyter describes it:

‘States choose to subscribe to the neo-liberal ideology that underpins the current,
hegemonic form of economic globalization. The aim of the neo-liberal approach is
to secure the free flow of goods and services, to liberalise foreign direct investment,
to remove capital controls, and to allow labour to move where it is most
productive.’3

This creates a less restricted global market and encourages international trade. A
Statement by the Committee on Economic, Social and Cultural Rights from May 1998
[1998 Statement] also describes this dilution of state responsibility by increased free
market trade agreements.

“a variety of specific trends and policies including an increasing reliance upon the
free market, a significant growth in the influence of international financial markets
and institutions in determining the viability of national policy priorities, a diminution
in the role of the state and the size of its budget, the privatization of various
functions previously considered to be the exclusive domain of the state, the
deregulation of a range of activities with a view to facilitating investment and
rewarding individual initiative, and a corresponding increase in the role and even
responsibilities attributed to private actors, both in the corporate sector, in
particular to the transnational corporations, and in civil society,” 4

3
Benedek, Wolfgang, De Feyter, Koen, and Marrella, Fabrizio (2007), Economic Globalisation and
Human Rights, Cambridge University Press, p4
4
Statement by the Committee on Economic, Social and Cultural Rights, May 1998, COMMITTEE ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 18th session, 27 April-15 May 1998, Geneva, para 2

2
If states can decide to lessen their control of sovereignty in order to strengthen
economic ties, why then should they still be held responsible to human rights
agreements? How can the state be held responsible for maintaining human rights
standards if they have diminished their sovereign responsibilities by engaging
private companies and other third party international organisations. Can these third
parties be made to respect human rights standards? Furthermore, in reacting to the
GFC can states employ temporary measures that may be against human rights
treaties in order to protect the economy long term?

1.2: Economic Globalization and Human Rights

The relationship between economic globalization and human rights was of concern
even before the impact of the GFC5. The negative impacts of globalisation on one
area of human rights, for example economic rights, can be viewed as having a knock
on effect to other human rights6. Governments were often accused of putting an
emphasis on promoting a global economy at the expense of their legal committed to
human rights7 and tendency has only been worsened by the GFC.

One example of this criticism is found in the 1998 statement from the UN committee
on Economic, Social and Cultural Rights. This made it clear that there is a link
between pressure on states to globalise economically and the respect they have for
economic, social and cultural rights and in particular labour rights 8. However, the
statement also emphasizes that a states desire for economic prosperity cannot come
before its commitment to human rights treaties. It states explicitly that:

5
The Economic and Social Council report entitled ‘The Realization of Economic, Social and Cultural
Rights: Globalization and its impact on the full enjoyment of human rights’ (E/CN.4/Sub.2/2000/13)
published in June 2000, provides an extensive list of rights enshrined in covenants that are potentially
violated by the negative impact of economic globalization., available at
http://www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/E.CN.4.Sub.2.2000.13.En?O
pendocument (accessed: 23/09/2012),
6
E/CN.4/Sub.2/2000/13, (15 June 2000), Ibid. Para 41
7
Feyter, (2007), Ibid. p4
8
Point three of the general statement highlights: “…globalization risks downgrading the central place
accorded to human rights by the United Nations Charter in general and the International Bill of
Human Rights in particular. This is especially the case in relation to economic, social and cultural
rights.’ [1998 Statement, Ibid]

3
“Competitiveness, efficiency and economic rationalism must not be permitted to
become the primary or exclusive criteria against which governmental and inter-
governmental policies are evaluated.”9

And furthermore, that trade agreements even if they remove certain powers from
the state to international organisations do not remove the states human rights
obligations. As it describes:

‘It is particularly important to emphasize that the realms of trade, finance and
investment are in no way exempt from these general principles and that the
international organizations with specific responsibilities in those areas should play a
positive and constructive role in relation to human rights.’ 10

PART 2: THE INTERNATIONAL PERSPECTIVE

This brings us to the international perspective. As we have now established that the
national perspective does not remove a states obligation to respect human rights
standards, we will now examine where and in which ways these human rights issues
set the boundaries and how far states can go at times of GFC. Primarily we will
define what is to be understood by the term ‘human rights issue’ before examine a
few of the ways these instruments set and monitor controls on states.

2.1: DEFINTION: Human Rights Issues

When the term ‘human rights issues’ is used we are referring to the rights enshrined
by the universally accepted international human rights instruments adopted by
states.11 The Universal Declaration of Human Rights (UDHR)12 is the founding
document of contemporary human rights legislation. This has been strengthened by
The International Covenants on Economic, Social and Cultural Rights (ICESCR) 13 and
9
1998 Statement, Ibid
10
1998 Statement, Ibid, [5]
11
Feyter, (2007), Ibid. p1
12
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III), available at: http://www.unhcr.org/refworld/docid/3ae6b3712c.html [accessed 1 October 2012]
13
International Covenant on Economic, Social and Cultural Rights
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A
(XXI) of 16 December 1966 entry into force 3 January 1976, in accordance with article 27

4
on Civil and Political Rights (ICCPR)14. These instruments have been ratified by a
substantial number of states thus creating a legitimate global acceptance of the
general principles of human rights and binds states to legal obligations. 15

As we have already witnessed, it is important to note that human rights legislation

always comes before any economic treaty that may be agreed. This position is also
made clear in the UN charter16. Article 103 points out that the provision laid out in
the Charter will always prevail over any other international obligation that may be in
conflict17. As Adam McBeth describes it:

“…when treaties in the economic sphere are interpreted and applied, one should be
conscious of the central position accorded to human rights in the international
system. The existence of treaty and customary human rights obligations for states …
must therefore be borne in mind in construing economic treaties between states or
agreements between state and non state actor.”18

Therefore, any international economic agreements should be envisaged in a manner

that does not conflict with human rights obligations. If a state does not live up to
these obligations it can be viewed as a violation of the ICESCR. 19

Availbale at: http://www2.ohchr.org/english/law/cescr.htm [accessed 1 October 2012]

14
International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification
and accession by General Assembly resolution 2200A (XXI)
of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49, Available
at:http://www2.ohchr.org/english/law/ccpr.htm [accessed 1 October 2012]
15
E/CN.4/Sub.2/2000/13, 2000, Ibid. para 42
16
United Nations Charter, (1945) available at:
http://www.un.org/en/documents/charter/chapter1.shtml [last accessed 1 October 2012]
17
It states: Article 103
‘In the event of a conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their obligations
under the present Charter shall prevail.’
United Nations Charter, (1945) available at:
http://www.un.org/en/documents/charter/chapter1.shtml [last accessed 1 October 2012]

18
Human rights in economic globalization – Adam McBeth p139 -167, from Joseph, Sarah and
Mcbeth, Adam, Research Handbook on International Human Rights Law (2010), Edward Elgaar press:,
p143
19
E/CN.4/Sub.2/2000/13, (15 June 2000), Ibid. para 45

5
The obligations of these international treaties can therefore be seen to put
limitations on how states can react to the GFC as measures cannot be taken that
adversely affect human rights.

2.2:Applicability of human rights instruments

We will now look at some of the ways these human rights instruments can prevent
this violation from happening. Please note that this is not an exhaustive list but
seeks to highlight some of the main ways they impact international trade
agreements and states reactions to the GFC. This has been broken down into three
main boundaries: 1 - The indivisibility of human rights, 2 - The significance of Article
2 of the ICESCR and 3 - The role of the CESCR in motoring and controlling the
activities of states.

2.2.1: The indivisibility of human rights

The indivisibility of the provisions of these documents is reiterated by the context in
which they are set. This can be viewed in the texts of their preamble and annexes 20.
States cannot pick and choose the aspects they want, all human rights must be
equally respected. This notion is further highlighted in The Vienna Declaration and
Programme of Action (1993)21 that states human rights are ‘universal, indivisible,
interdependent and interrelated’.22

This provision means states cannot ignore economically inconvenient rights at times
of financial crisis. They must always protect all the human rights they are obligated
20
Ssenyonjo, Manisuli (2010), ‘Economic, social and cultural rights: an examination of state
obligations’ pp36 – 71, Joseph, Sarah and McBeth, Adam (2010), ‘Research Handbook on
International Human Rights Law, Edward Elgar, p40:

‘Preamble [4] IVESCR recognises that, ‘in accordance with the Universal Declaration of Human Rights,
the ideal of free human beings enjoying freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well
as his civil and political rights’
21
The Vienna Declaration and Programme of Action (1993), A/CONF.157/23, available at :
http://www.unhchr.ch/huridocda/huridoca.nsf/%28symbol%29/a.conf.157.23.en {last accessed 1
October 2012)
22
Globalization and its impact on the full enjoyment of human rights, (2000) E/CN.4/Sub.2/2000/13,
Ibid.

6
to.

2.2.2: Protect, Respect, Fulfill

Article 2 (1) of the ICESCR is particularly useful in understanding how far states
obligations to Economic, Social and Cultural (ESC) rights go. It states:

Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually
and through international assistance and co-operation, especially economic and
technical, to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures.

The significant phrases here are ‘maximum of its available resources’,

‘progressively’ and ‘by all appropriate means’. These terms can make scope of this
article difficult to interpret. Despite this, the nature and scope of Article 2 can be
seen as evolving with examination of the principles by a group of experts 23. The first
time this happened was The Limburg Principles on the Implementation of the
International Covenant on Economic, Social and Cultural Rights (1986)24 and this was
then followed by Maastricht Guidelines on Violations of Economic, Social and
Cultural Rights (1997)25 creating a more clear approach to the positive obligations of
states. Despite the fact the Limburg principles and the Maastricht Guidelines are
not legally binding they can be seen as providing: ‘a subsidiary means’ for the
interpretation of the Covenant as they include ‘teachings of the most highly qualified
publicists of the various nations’ under Article 38 (1)(d) of the Statute of the
International Court of Justice”.26

23
Ssenyonjo, (2010) Ibid. P41
24
UN Commission on Human Rights, Note verbale dated 86/12/05 from the Permanent Mission of
the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights
("Limburg Principles"), 8 January 1987, E/CN.4/1987/17, available at:
http://www.unhcr.org/refworld/docid/48abd5790.html [accessed 1 October 2012]
25
International Commission of Jurists (ICJ), Maastricht Guidelines on Violations of Economic, Social
and Cultural Rights, 26 January 1997, available at:
http://www.unhcr.org/refworld/docid/48abd5730.html [accessed 1 October 2012]
26
Ssenyonjo, (2010) Ibid. p41

7
The Maastrict Guidelines propose the “respect, protect, fulfill” model.
This implies that the state has an obligation to:

 Respect – as in refrain from interfering with the enjoyment of the right

 Protect – Prevent other actors from interfering of impacting on the
enjoyment of rights
 Fulfil – Adopt appropriate measures towards the full realization of the right. 27

2.2.3: Maximum available resources

Firstly you have to establish what resources are available to a state and secondly you
have to determine if the state is in fact using them to their ‘maximum’ capacity 28.
Developing states and states suffering adverse conditions of the financial crisis can
therefore legitimately claim they are employing the maximum available resources
the current financial climate of their state allows without failing any international
obligations.

2.2.4: Progressive realization

Art. 2 also creates an obligation for states to progressively realise ESC rights and
derive strategies to achieve them29. Lack of resources is not an excuse to not fulfil
rights. Rather this process means states are required to do what they can with the
resources currently available and further improve systems as and when more
resources do become available. This positive responsibility can be viewed as
another way human rights set boundaries on the activities of states, especially at
times of financial crisis.

2.2.5: All Appropriate Means and Non-retrogressive Measures

This highlights that if a state fails to meets its obligations to ESC rights due to
claiming a lack of resources it has a responsibility to show that every possible effort

27
UN Office of the High Commissioner for Human Rights, Fact Sheet No. 33, Frequently Asked
Questions on Economic, Social and Cultural Rights, December 2008, No. 33, available at:
http://www.unhcr.org/refworld/docid/499176e62.html [accessed 1 October 2012]
28
Ssenyonjo, (2010) Ibid. P44
29
Ssenyonjo, (2010) Ibid. p49

8
has been made. Furthermore, it must always implement programmes targeted at
the most vulnerable groups in society, so that a minimum core obligations are met. 30
States are also obligated to non-retrogressive measures meaning they cannot
implement polices that can be seen to have a negative impact on existing human
rights standards unless they have a strong justification for doing so.31 Here you could
argue that at time of GFC there is indeed this strong justification and some
retrogressive measures could legitimately be implemented. This is an argument that
we will examine in more depth later when we examine recommendations suggested
by the CESCR in the open letter of May 2012 in response to the GFC.

2.3: The Role of the Committee on Economic, Social and Cultural Rights
(CESCR)
The Committee on Economic, Social and Cultural Rights (CESCR) was established by
the United Nations Economic and Social Council (ECOSOC) in resolution 1985/17 32 to
oversee the implementation of the ICESCR. The CESCR can also be viewed as
clarifying states obligations in this area with the issuing of General Comments and
statements33. These documents are not legally binding but can be seen as having a
persuasive effect and are authorative guidelines34. For example General Comment 3
(of the CESCR) describes that: “even in times of severe resource constraints whether
caused by a process of adjustment, of economic recession, or by other factors the
vulnerable members of society can and indeed must be protected by the adoption of
relatively low-cost targeted programmes.”35

Upon acceptance of the Covenant of the CESCR, states must initially report within
two years and following this every five years to the committee who review these
reports and provide recommendations over each states activities. These ‘Concluding
30
Fact Sheet No. 33, (2008), No. 33, p16
31
Fact Sheet No. 33, (2008), No. 33, p16
32
Chapman, Audrey R., Carbonetti, Benjamin (2011), Rights Protections for Vulnerable and
Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural
Rights, Human Rights Quarterly, Volume 33, Number 3, August 2011, pp. 682-732, The Johns Hopkins
University Press
33
Ssenyonjo, (2010) Ibid. p42
34
Ssenyonjo, (2010) Ibid. p42
35
Chapman, Audrey R., Carbonetti, Benjamin (2011), p695

9
Observations’ (COs) provide a good example of how the committee views the states
obligations towards human right commitment. For example the CO of Argentina in
1999 where the government had been struggling to stabilize the economy and the
committee criticized them for the knock on effects to human rights standards 36 : The
Committee notes, “While the Government has succeeded in stabilizing the value of
the currency, the implementation of the structural adjustment programme has
hampered the enjoyment of economic, social and cultural rights, in particular by the
disadvantaged groups in society.”37

As part of the ‘progressive realisation’ of ESC rights, States can be understood to be

required to adopt both legislative and non-legislative measures in the promotion
and protection of human rights.38 As Manisuli Ssenjyonjo points out:

‘Legislative measures include not only the adoption of new legislation but also the
duty to reform, amend and repeal legislation manifestly inconsistent with the
Covenant.’39

An example of this can be seen in CO of Cyprus in 1998 which points out a

discrepancy between housing projects being created for Jewish settlements but no
such developments for Arab villages and that this should be addressed 40. The
Committee highlighted this as a failure in the governments human rights obligations.
Thus the CESCR can be seen as setting boundaries by monitoring and shaming states
when they fail to live up their treaty obligations.

PART 3: POSSIBLE RESOLUTIONS

Now we have established some of the ways human rights set the boundaries on how
states can behave on a national level, we will now examine possible resolutions to

36
Chapman, Audrey R., Carbonetti, Benjamin (2011), p702
37
Concluding Observations of the Committee on Economic, Social and Cultural Rights : Argentina.
12/08/1999, E/C.12/1/Add.38, [para 10]
38
Ssenyonjo, (2010) Ibid. p42
39
Ssenyonjo, (2010) Ibid. p42
40
CESCR, Concluing Observations: Cyprus, /C.12/1/Add.28 (4 december 1998) [para 26]

10
this conflict. These remedies may help alleviate pressure on the state without
negating their human rights responsibilities.

3.1: Avoiding conflict: The Vienna Convention on the Laws of Treaties

(VCLT)
The Vienna Convention on the Laws of Treaties (VCLT) is the document used to
decipher how obligations of international treaties should be understood. Here there
is a possible solution to the conflict that can occur between treaties of economic
significance and previously agreed upon human rights legislation. Any such conflicts
can be avoided if the agreed treaties are interpreted in a way that avoids the conflict
altogether41. This is illustrated in VCTL Article 31, para.3 (c) that describes how
reference can be made to other ‘relevant rules of international law applicable in the
relations between parties’42.

Nevertheless, even if you employ this technique of treaty conflict avoidance, it is

clear that obligations to international human rights treaties should impact on states
reactions to the GFC. The UN June 2000 report43 highlights that states cannot claim
a separation between economic policies and the legal obligations to international
human right treaties.44 The fact that there is a financial crisis does not negate the
states responsibility to live up to human rights standards.

3.2: Recommendations from CESCR

A more successful list of resolutions to this dilemma can be found in the May 2012
open letter to state parties of the ICESCR. This highlights that the Committee
understands that due to the nature of economic and financial crises some
modification in the application of the Covenant of ESC rights are sometimes

41
Feyter, (2007), Ibid. p8
42
Feyter, gives the following example of this: ’The WTO Doha Declaration on TRIPS and public
health… could perhaps serve as an example of a WTO effort to interpret the TRIPS Agreement in such
a way that it does not conflict with the obligations of WTO member states under international human
rights law’. (Feyter, (2007), Ibid. p8)
43
E/CN.4/Sub.2/2000/13, (15 June 2000), Ibid.
44
E/CN.4/Sub.2/2000/13, (15 June 2000), Ibid. Para 47

11
inevitable.45

This suggests that the committee recognizes there is some degree of flexibility when
it comes to states international obligations and the application of austerity measures
to try and stabilize the economy. However, the Committee outlines a list of
recommendations that states should adhere to when adjustments are being made
to Covenant rights. These being:
1. The policy must be a temporary measure
2. The policy is proportionate and necessary
3. The policy is not discriminatory
4. The policy recognizes the ‘minimum core content of rights’ 46

Therefore, the CESCR can be interpreted as allowing austerity measures to impact

on human rights obligations within certain parameters.

CONCLUSION
In conclusion the GFC can be seen has negatively impacting the on the realization of
human rights, particularly economic, social and cultural rights. Despite the nature of
economic globalisation removing certain responsibilities from the state it does not
remove its obligations to international human rights treaties.

These treaties can be seen as setting boundaries in several ways. For example,
through the indivisibility of rights, by states obligation to protect, respect and fulfil
treaty obligations and by the monitoring and reporting role of the CESCR. However,
the Committee on Economic, Social and Cultural Rights recognises that at times
austerity measures may be necessary that do indeed impact on treaty

45
The letter states:
“Economic and financial crises, and a lack of growth, impede the progressive realization of economic,
social and cultural rights and can lead to retrogression in the enjoyment of those rights. The
Committee realizes that some adjustments in the implementation of some of these Covenant rights
are at times inevitable’

CESCR/48th/SP/MAB/SW, 2012, Ibid.

46
CESCR/48th/SP/MAB/SW, 2012, Ibid.

12
responsibilities. These can at times be acceptable providing they meet certain
requirements including it being a temporary measure, proportionate and necessary
in that if the action was not taken the situation would become much worse and
more human rights violations would occur. Even if this compromise is allowed
states must always meet a minimum core content of rights and this where the
ultimate boundary on the matter is achieved.

13
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14
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15
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16