ICESCR Article 21Each State Party to the present Covenant undertakes to take steps especially economic and technical to the maximum of its available resources with a view to achieving progressively th ID: 886314
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1 The Use of Maximum Available Resources I
The Use of Maximum Available Resources ICESCR Article 2(1):Each State Party to the present Covenant undertakes to take steps,[ ] 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 [ .] Article 2 Governments Budgets What does the obligation to use the maximum of available resources in article 2 mean? The UN Committee on Economic, Social and Cultural Rights (CESCR) is the body that provides the most authoritative interpretation of the meaning of article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The CESCR is charged with R Y H U V H H L Q J L P S O H P H Q W D W L R Q R I W K H , & ( 6 & 5 6 W D W H V W K D W K D Y H U D W L ½ H G W K H , & ( 6 & 5 P X V W D V S D U W R I W K H L U W U H D W \ R E O L J D W L R Q V U H S R U W U H J X O D U O \ to the CESCR on steps they have taken to implement the treaty and on the status of the enjoyment of economic, social and cultural (ESC) rights in the country. The Committee makes comments and recommendations on each country report. These comments and recommendations often set out W K H & R P P L W W H H µ V E H V W X Q G H U V W D Q G L Q J R I W K H P H D Q L Q J R I V S H F L ½ F W U H D W \ S U R Y L V L R Q V 2 F F D V L R Q D O O \ W K H & R P P L W W H H Z L O O D O V R L V V X H D ² * H Q H U D O & R P P H Q W ³ * & R Q D W R S L F W K D W K D V D U L V H Q U H S H D W H G O \ G X U L Q J L W V G H O L E H U D W L R Q V L Q R U G H U W R S U R Y L G H J U H D W H U F O D U L W \ W R J R Y H U Q P H Q W V D Q G R W K H U V D V W R W K H P H D Q L Q J R I V S H F L ½ F U L J K W V D Q G R E O L J D W L R Q V L Q W K H , & ( 6 & 5 $ W Y D U L R X V S R L Q W V L Q W K H V H U H F R P P H Q G D W L R Q V D Q G * H Q H U D O & R P P H Q W V W K H & ( 6 & 5 K D V P D G H U H I H U H Q F H W R W K H J R Y H U Q P H Q W R E O L J D W L R Q W R X V H the maximum of available resources to realize ESC rights, explaining where and how they believe a government has complied or failed to comply with this obli
2 gation. From these various sources, it
gation. From these various sources, it is possible to distil the Committees understanding of the obligation. This booklet elaborates on those interpretations that have most direct bearing on governments budgets. N.B. While this booklet focuses on the obligation to use the maximum of available resources (MAR), it is essential when addressing an issue to consider the MAR obligation in conjunction with the other two obligations in article 2progressive achievement of the realization of ESC rights and non-discrimination. The meaning and implications of these two other obligations can only be properly understood, and complied with, in conjunction with MARand vice versa. Mobilize as many resources as possible The obligation to use the maximum of available resources (MAR) means that a government must do all that it can to mobilize resources within the country in order to have funds available to progressively realize ESC rights. While any country typically has a range of potential resources (human, natural, etc.), the ½ Q D Q F L D O U H V R X U F H V U H S U H V H Q W H G E \ W K H governments budget are key to realizing ESC rights. The MAR obligation means that as long as fuller reali zation of ESC rights requires that more government resources be devoted to it, the government must make all possible efforts to raise as much revenue domestically as it can, without, of course, undermining the long-term viability of the economy. This means that the government must make every effort to collect all taxes and other revenue due it, all the while complying with the obligations of progressive realization and non-discrimination, and ensuring that people have access to the relevant information. A government may believe that not taxing the econ omy heavily will better realize peoples ESC rights. Human rights obligations do not prohibit governments from pursuing such a course. The MAR obligation does mean, however, that if a government chooses to go this route, it must be able to show that this economic policy choice has, in fact, been more effective in realizing peoples ESC rights than a heavier tax regime would have been. Many countries simply do not have enough of their own resources to fully realize their peoples rights. The MAR obligation means that where domestic resources are scarce, the government must do all it can t
3 o secure interna tional assistance, incl
o secure interna tional assistance, including 2 I ½ F L D O ' H Y H O R S P H Q W $ V V L V W D Q F H 2 ' $ V R as to better be able to realize rights. Incurring debt may also give government access to additional resources, and thus should be considered as one means of complying with MAR. However, it is essential to consider carefully the likely human rights impact of taking on more debt. Repayment of the debt can in the longer term cut into the resources available for ESC rights. The terms of the debt (e.g., high interest rates) may also have severe long-term consequences. In addition, it is essential to consider the use to be made of the funds. Will they go to ESC rights-related areas? Will they be invested so as to enhance the productivity of society in the long term or will they be squandered? Give due priority to ESC rights 7 K H & ( 6 & 5 K D V V D L G W K D W W K H 0 $ 5 R E O L J D W L R Q P H D Q V W K D W J R Y H U Q P H Q W V P X V W J L Y H ² G X H priority to ESC rights in the use of their resources. For a governments budget this means that allocations and expenditures should be directed to ESC rights-related areas as a matter of priority. 7 R G H W H U P L Q H Z K H W K H U D J R Y H U Q P H Q W L V J L Y L Q J ( 6 & U L J K W V V X F K ² G X H S U L R U L W \ ³ L W L V X V H I X O W R consider the share of the budget going to ESC rights-related areas, particularly when this share is compared to need. It can also be useful to compare this share across similarly-situated countries.To assess whether a government is complying with its MAR obligation, it is also necessary to look at the composi tion of the funds directed to ESC rights-related areas. Priority should be given within W K H V H D U H D V W R P H H W L Q J W K H J R Y H U Q P H Q W µ V ² F R U H obligations (as G H ½ Q H G E \ W K H & ( 6 & 5 L Q L W V * H Q H U D O & R P P H Q W V , Q K H D O W K I R U H [ D P S O H W K H V H L Q F O X G H U H S U R G X F W L Y H K H D O W K F D U H D Q G L P P X Q L ] D W L R Q * & : K H Q I X Q G V D U H Q H H G H G W R P H H W these core obligations, spending on lower priority items within ESC rights-related areas can amount a failure to comply with MAR. ,
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W F D Q E H G L I ½ F X O W W R G H ½ Q H S U H F L V H O \ Z K D W F R Q V W L W X W H V ² ( 6 & U L J K W V U H O D W H G ³ D U H D V Spending that is more directly related to such as health, water, food and education J H Q H U D O O \ T X D O L ½ H V + R Z H Y H U I X Q G L Q J L Q R W K H U D U H D V V X F K D V U R D G V I R U H [ D P S O H F D Q D O V R I D O O L Q W K L V D U H D L I D Q L P S R U W D Q W E H Q H ½ W R I W K H U R D G V Z L O O E H W R H Q D E O H V P D O O farmers to bring their produce to market more easily (right to food). Funding for the tourism sector can be ESC rights-related if it is targeted to creating good jobs (right to work). ( [ S H Q G L W X U H V P X V W E H H I ½ F L H Q WWasting funds amounts to a failure to use the maximum of available resources. Funds can be wasted in a number of ways, including: 7 K H J R Y H U Q P H Q W P D \ S D \ P R U H W K D Q L W V K R X O G I R U J R R G V D Q G V H U Y L F H V R U L W P D \ J H W poor quality for the funds spent. : D V W H D O V R R F F X U V Z K H Q W K H J R Y H U Q P H Q W E X \ V X Q Q H F H V V D U \ L W H P V R U L W H P V W K D W are not useful for meeting priority needs. (See case study on The Use of Maximum Available Resources: Expenditures on non-essential items. 7 K H J R Y H U Q P H Q W P D \ G H F L G H W K D W F H U W D L Q J R R G V D Q G V H U Y L F H V D U H Q H H G H G W R address a problem, while sound research points to other goods and services as more appropriate. : K H Q D G H S D U W P H Q W R U D J H Q F \ U H F H L Y H V L W V I X Q G L Q J Q H D U W K H H Q G R I W K H ½ V F D O \ H D U L W P D \ V S H Q G L W T X L F N O \ Z L W K R X W V X I ½ F L H Q W W K R X J K W 7 K H & ( 6 & 5 K D V V D L G W K D W D I D L O X U H W R V S H Q G I X Q G V H I ½ F L H Q W O \ P D \ D P R X Q W W R D I D L O X U H W R comply with MAR. However, some expenditures that could be required from a human rights perspectivefor example, for developing and maintaining health clinics in remote U X U D O D U H D V ± P L J K W E H F R Q V L G H U H G D Q ²
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L Q H I ½ F L H Q W ³ X V H R I U H V R X U F H V E \ V R P H H F R Q R P L V W V 6 X F K F O L Q L F V Z R X O G E H H [ S H Q V L Y H W R G H Y H O R S D Q G P D L Q W D L Q P R U H S H R S O H Z R X O G O L N H O \ E H Q H ½ W if a similar amount of money were spent in a more densely-populated urban area. Because D O D U J H U Q X P E H U R I S H R S O H Z R X O G S R W H Q W L D O O \ E H Q H ½ W V R P H H F R Q R P L V W V Z R X O G F R Q V L G H U W K H O D W W H U D P R U H ² H I ½ F L H Q W ³ X V H R I I X Q G V , W L V L P S R U W D Q W I R U K X P D Q U L J K W V D G Y R F D W H V W R X Q G H U V W D Q G W K H G L I I H U H Q W X V H V H F R Q R P L V W V P D N H R I W K H Z R U G ² H I ½ F L H Q W ³ E H F O H D U D E R X W Z K L F K R I W K R V H X V H V D U H K X P D Q U L J K W V ² I U L H Q G O \ ³ D Q G Z K L F K D U H Q R W D Q G D U J X H D J D L Q V W ² H I ½ F L H Q W ³ H [ S H Q G L W X U H V W K D W G R Q R W D G Y D Q F H D Q G P D \ H Y H Q X Q G H U F X W K X P D Q U L J K W V E \ failing, for example, to ensure that the rights of marginalized groups are respected. ( [ S H Q G L W X U H V P X V W E H H I I H F W L Y HTo comply with its MAR obligations, a government must spend its money effectively. The expenditures must have the effect of enhancing peoples enjoyment of their rights. This means that even if a government V S H Q G V L W V P R Q H \ H I ½ F L H Q W O \ intending to realize people´s rights, it would be failing to meet its MAR obligations if the spending does not, in fact, help increase people´s enjoyment of their rights. In such a situation the government should look at its plans, the design of its programs and activities as well as their implementation, to determine how the spending might more effectively realize peoples rights. (See case study on The Use of Maximum Available Resources: Expenditures on items that are not effective in guaranteeing rights. Corruption can take many forms. * R Y H U Q P H Q W D J H Q F L H V P D \ I R U example, buy goods and services I U R P I U L H Q G V R I H P S O R \ H H V D W L Q ¾ D W H G prices, or funds may be siphoned off at variou
6 s stops along the way from the national
s stops along the way from the national treasury down to the point of service delivery. Whatever shape or form it takes, failure by a government to tackle corruption is also a failure to comply with its obligation to use the maximum of available resources to advance ESC rights, because the funds that have been diverted or misused are wasted funds. ) X Q G V D O O R F D W H G I R U ( 6 & U L J K W V P X V W E H fully spentUnder-spending is a common problem in many countries. There are a number of reasons why this occurs. They include: $ O D F N R I F D S D F L W \ Z L W K L Q government. This capacity gap may slow down implementation or result in a program never being implemented at all. $ G H S D U W P H Q W R U D J H Q F \ P D \ receive additional funding towards W K H H Q G R I W K H ½ V F D O \ H D U D Q G P D \ not be able to spend it by year-end due to, for instance, lengthy procurement procedures. 3 U R J U D P V P D \ E H G H V L J Q H G R U structured in such a way as to P D N H L W G L I ½ F X O W R U L P S R V V L E O H I R U people eligible for the program to F O D L P L W V E H Q H ½ W V : K L O H I X Q G V P D \ E H D O O R F D W H G I R U D V S H F L ½ F S U R J U D P W K H U H P D \ E H reluctance within the government to see the program realized. Funds may be disbursed slowly, if at all. : K L O H D G R Q R U P D \ K D Y H D J U H H G W R S U R Y L G H I X Q G L Q J I R U V S H F L ½ F sectors, all or some of the funding may never materialize.The CESCR has said that funds allocated for ESC rights must be fully spent. Thus, under-spending of such funds would constitute a failure by a govern ment to comply with its MAR obliga tions. In such a case, the government must identify the reasons for the under-spending and do its utmost to correct the problems that lead to it. (See case study on The Use of Maximum Available Resources: Under-expenditure resulting from barriers to access and lack of governmental capacity.) ) X Q G V D O O R F D W H G I R U ( 6 & U L J K W V U H O D W H G programs must not be diverted to other areasA budget as approved by a legislature P D \ U H ¾ H F W V R O L G K X P D Q U L J K W V S U L R U L W L H V + R Z H Y
7 H U G X U L Q J W K H F R X U V
H U G X U L Q J W K H F R X U V H R I D ½ V F D O \ H D U funds in a budget may be moved from one program or department to another and occasionally even from one ministry to another. The MAR obligation means that, even when it is otherwise legal to move funds in this way, it is not acceptable if it involves moving ESC rights-related funds to pay for non-ESC rights related programs, goods and services. Similarly, it is not acceptable to use needed funds that are allocated to meet core obligations within an ESC rights-related area to cover non-priority expenses. Moving funds between different ESC rights areas may also raise issues related to the obligation of progressive realization. If, for example, funds are moved from education to health, this may result in retrogression with respect to realization of the right to education. This booklet has been developed as part of the Article Pro ject, a working group housed rst at the Partnership Initiative of the International Budget Partnership (IBP), and then at the Global Movement for Budget Transpar-ency, Accountability and articipation. The project aims to enhance understanding of the implications of article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) for how govern ments should develop their budgets, raise revenue and under take expenditures. Article 2 of the ICESCR sets out that governments are obligated to [ ] take steps, individually and through international assistance and -operation, [ ] to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant [ ], without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other This handbook is, primarily, resource for civil society organizations, and for national human rights institutions as well as legislators, to hold The Article 2 project This booklet is part of the Article 2Governments Budgets handbook. The handbook has been developed by the Article 2 Pro ject, a working group housed ½ U V W D W W K H 3 D U W Q H U V K L S , Q L W L D W L Y H R I W K H , Q W H U Q D W L R Q D O % X G J H W 3 D U W Q H U V K L S , % 3 D Q G W K H Q D W W K H * O R E D O 0 R Y H P H Q W I
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R U % X G J H W 7 U D Q V S D U H Q F \ $ F F R X Q W D E L O L W \ D Q G Participation. The project aims to enhance understanding of the implications of article 2 of the ICESCR for how govern ments should develop their budgets, raise revenue and under take expenditures. $ U W L F O H R I W K H , & ( 6 & 5 V H W V R X W W K D W J R Y H U Q P H Q W V D U H R E O L J D W H G W R ²� © @ W D N H V W H S V L Q G L Y L G X D O O \ D Q G W K U R X J K L Q W H U Q D W L R Q D O D V V L V W D Q F H D Q G F R R S H U D W L R Q � © @ to W K H P D [ L P X P R I L W V D Y D L O D E O H U H V R X U F H V, with a view to D F K L H Y L Q J S U R J U H V V L Y H O \ W K H I X O O U H D O L ] D W L R Q R I W K H U L J K W V U H F R J Q L ] H G L Q W K H S U H V H Q W & R Y H Q D Q W � © @ without G L V F U L P L Q D W L R Q of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This handbook is, primarily, a resource for civil society organizations, human rights commissions, and even legislators, to hold governments to account for their K X P D Q U L J K W V R E O L J D W L R Q V ' R Z Q O R D G W K H F R P S O H W H K D Q G E R R N D W www.internationalbudget.org/publications/ESCRArticle2.Authors: Ann Blyberg and Helena Hofbauer ) H E U X D U \ ' L V F X V V L R Q L Q W K L V E R R N O H W G U D Z V R Q W K H extensive research on article 2 obligations, D Q G V S H F L ½ F D O O \ R Q W K H P D [ L P X P D Y D L O D E O H resources obligation, in M. Magdalena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights $ Q W Z H U S H Q , Q W H U V H Q W L D , W also draws on the Limburg Principles (http:// Z Z Z X Q K F U R U J U H I Z R U O G G R F L G D E G K W P O D Q G W K H & ( 6 & 5 G R F X P H Q W ² $ Q ( Y D O X D W L R Q R I W K H 2 E O L J D W L R Q W R 7 D N H 6 W H S V to the Maximum Available Resources under D Q 2 S W L R Q D O 3 U R W R F R O W R W K H & R Y H Q D Q W ³ ( & 0 D \