Thursday, April 2, 2015
Budgeting and Human Rights: Continuing the Conversation
In her recent column on the importance of participation in budgeting, JoAnn Kamuf Ward writes, “Many lawyers are not numbers people, but we ought to be.” A critical reason for human rights lawyers to pay more attention to numbers is the nature of economic, social, and cultural rights: under human rights law, they are tied to the state’s obligation to use the maximum of its available resources.
Determining whether a government is meeting its obligation to use “maximum of its available resources” (ICESCR article 2) necessarily requires a review of state budget expenditures. For example, if the gross domestic product of a state obligated to ensure education rights is increasing each year, but the education budget is not, or if a country's defense spending increases by a significantly greater percentage than its education budget, the state might not be using the maximum of its available resources to achieve progressive realization of these rights and thus would be failing to comply with international human rights law.
Budget analysis can help monitor states' practices, ensuring that they do not use the resource qualifying language of economic, social and cultural rights as an excuse not to secure these rights for individuals subject to their jurisdiction. Budget analysis can also suggest areas in which there may be discrimination in the provision of services (of note, the prohibition on discrimination is not qualified by available resources). Additionally, it can highlight areas where government has failed to spend allocated funds. Fundar, working with international partners, produced some of the early research on budget analysis, assessing the Mexican Government's budget and identifying a number of issues regarding whether Mexico is meeting its international obligation to protect the health of its population using its maximum available resources. It offers a model for determining what a national or local government is required to do to secure economic and social rights for its population (see also IBP for additional resources on budget analysis).
Budget analysis has limitations. It will not necessarily reveal whether resources are used effectively or efficiently. That said, it can provide a starting point for determining whether a country is using its maximum available resources. Combining budget analysis with the content of specific provisions, such as health or education rights, can enable human rights scholars and advocates to assess, with greater precision, states' compliance with human rights law.
Tara – I agree. Suggesting that civil and political rights do not require resources while ESC rights do creates a false dichotomy … and, frankly, is incorrect. Ensuring access to counsel, securing voting rights in any election, and many other civil and political rights require significant resources. That said, international law qualifies ESC rights by available resources but does not do so with civil and political rights. So I agree that their “nature” is not different (poor word choice initially), but the text of the law is. My view is that the available resources language for ESC rights provides a natural invitation to examine expenditures, as it is critical to assess compliance. That such language is not explicitly part of civil and political rights provisions in IHR treaties does not mean, of course, that we should ignore budget questions on those issues.
Posted by: Jonathan Todres | Apr 13, 2015 11:11:57 AM
Many thanks to Joann and Jonathan for their posts on participatory budgeting (PB). PB is indeed a powerful and important way to ensure that local policymaking is rights-based and directed to community prioritized needs, as defined and determined by affected communities themselves. (Here in Buffalo, NY, we in fact have a hearing next week before the Common Council to incorporate PB locally.) It is indispensable, however, not to confuse engagement in participatory budgeting with “the nature of economic, social and cultural rights.” *ALL* human rights require resources and budgetary prioritization – regardless of whether international treaty instruments reference them -- because resources are necessarily limited and finite, and hence public policy choices always have to be made. The “nature” of ESCR are no different from the nature of any other human rights in this regard. All are fundamental, universal and yet context-driven, and hence require local participation in defining how and through what resources they will be ensured. Highlighting “maximum available resources” and “progressive realization” as qualifying conditions that exist uniquely for ESCR — and *not* for other human rights, like non-discrimination – only reinforces longstanding tropes and misconceptions that those rights are “different,” less real than others. (It also reinforces the dominant legal fiction, embraced currently as the policy position of the Obama administration, that ESCR can be legally enforced only where provided in a discriminatory manner). These tropes and policy fictions hurt, more than help, the ESCR project, and I think it is important that we speak carefully with respect to them.
Posted by: Tara Melish | Apr 3, 2015 10:02:18 AM