Felner - A Toolkit to Monitor the Realization of ESC Rights.pdf

Closing the ‘Escape Hatch’: A Toolkit toMonitor the Progressive Realization ofEconomic, Social, and Cultural RightsEITAN FELNER

Abstract

A basic paradox underlies much work on economic, social, and cultural rights. Atthe level of theory, there is widespread recognition among experts and advocatesthat the obligation to progressively realize these rights ‘to the maximum of a state’savailable resources’ is at the heart of their realization. However, at the practicallevel – in terms of monitoring efforts, field investigations, and adjudication bycourts – this key obligation has largely been sidelined, and the focus instead hasbeen on various immediate obligations related to these rights, which are notdependent on resource availability. This article argues that while this focus hasbeen effective in many ways, circumventing the standard of progressive realizationhas severely constrained the ability of the human rights movement to hold govern-ments accountable for policies and practices that turn millions of people intovictims of avoidable deprivations such as illiteracy, malnutrition, preventable dis-eases, and homelessness.

The article then proposes a methodological toolkit to monitor the obligation of pro-gressive realization. This toolkit has two components: (1) a basic framework of threesteps, each with its own simple methods; (2) a set of more sophisticated tools thathave been developed in recent years by various researchers or used by civil societyorganizations. These methods can be powerful tools of social change, allowing us toexpand the areas of government policy that come under scrutiny and accountabilityand to provide objective validity to claims that often the issue is not resource avail-ability but rather resource distribution. Admittedly, addressing issues subject to pro-gressive realization is not easy. It requires grappling with difficult normative and policyproblems related to resource constraints and trade-offs, as well as delving into data.These are not typically areas of human rights expertise. Nevertheless, the humanrights movement is now mature enough to overcome these challenges.

Keywords: accountability; available resources; economic and social rights;monitoring; progressive realization; quantitative methods

Introduction

A basic paradox underlies much work on economic, social, and cultural(ESC) rights. At the level of theory, there is widespread recognition amongexperts and advocates that the obligation to progressively realize these rights‘to the maximum of a state’s available resources’ is at the heart of theirrealization.1

1 As Philip Alston and Gerard Quinn point out, the concept of progressive achievement is the‘lynchpin’ of the International Covenant on Economic, Social, and Cultural Rights

Journal of Human Rights Practice Vol 1 | Number 3 | 2009 | pp. 402–435 DOI:10.1093/jhuman/hup023# The Author (2009). Published by Oxford University Press. All rights reserved.

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However, at the practical level – in terms of monitoring efforts by UNTreaty Bodies of specific State Parties, field investigations by NGOs, andadjudication by courts of concrete cases – this key obligation has beenlargely put aside. Instead, the primary focus has been on various immediateobligations related to this set of rights, which are not dependent on resourceavailability.2 These obligations include the duty to respect, which requiresstates to refrain from interfering with people’s exercise of a right; the duty toprotect, which requires states to prevent human rights violations by thirdparties,3 as well as the most tangible aspects of the duty to guarantee theexercise of rights without discrimination, particularly discriminatory laws orpractices carried out by public officials, such as doctors, teachers, etc.

This focus on immediate obligations has been effective in many ways,strengthening the legitimacy of the concept of ESC rights, as well as facilitatingwork in this area by human rights monitoring bodies, NGOs, national humanrights institutions, and courts. However, sidestepping the standards of resourceavailability and progressive realization has severely constrained the ability of thehuman rights movement to address broader issues of public policy that have ahuge impact on the realization of ESC rights. Millions of people around theworld are victims of avoidable deprivations such as illiteracy, preventable dis-eases, malnutrition, and homelessness that cannot be attributed to violations ofthe duties to respect or protect human rights. Whether these people can effec-tively enjoy their ESC rights depends to a large extent on whether they haveaccess to essential services such as adequate health care or quality education,and such access largely (albeit not only) depends on the availability of resources.For instance, to ensure the effective enjoyment of the right to education, there isoften a need for enhancing school services, such as improving school infrastruc-ture, providing better training to teachers, and paying them an adequate salaryto encourage qualified people to become teachers and to remain in the edu-cational system. There is also a need for demand-side programmes aimed atencouraging children, particularly those from poor families, to come to, andremain in, school. Such programmes could include providing school meals andgranting scholarships – in the form of cash transfers or in-kind (e.g. free

(ICESCR): ‘Upon its meaning turns the nature of state obligations. Most of the rightsgranted depend in varying degrees on the availability of resources and this fact is recognizedand reflected in the concept of “progressive achievement”’(Alston and Quinn, 1987: 172).On the centrality of this obligation for economic and social rights, see also Craven (1995:129–130) and Roberston (1994: 694).

2 This approach was coined several years ago by Audrey Chapman as a ‘violations approach’for monitoring ESC rights (see Chapman, 1996).

3 In addition to these two types of obligations, states are also bound to fulfill economic andsocial rights. This third type of state obligation, which includes promoting rights, facilitatingaccess to rights, and providing for those unable to provide for themselves, requires activeintervention on the part of the State and is subject to progressive realization according to themaximum of available resources.

403 Monitoring Progressive Realization of ESC rights

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uniforms and textbooks) – to offset both the direct costs of education and itsopportunity costs.4

Therefore, elucidating the precise meaning of the notions of ‘progressiveachievement’ and ‘maximum available resources’, and having effective toolsto monitor compliance of any state with these obligations in concrete situ-ations, is essential to give real meaning to these rights for many people whoare deprived of the most basic needs.

Moreover, without such tools, advocacy efforts could be severely under-mined. Governments may use the notion of progressive realization as an‘escape hatch’, to avoid complying at all with their human rights obligations(Leckie, 1998: 94), claiming, for instance, that the lack of progress is due toinsufficient resources when, in fact, the problem is often not the availabilitybut rather the distribution of resources.

The need for these tools is more acute nowadays with the global economiccrisis, which is reducing the ability of many poor countries to mobilizeadequate resources for the realization of ESC rights; and this at a time whenthe most vulnerable people in all countries will inevitably be most affectedby the crisis and therefore would need increased protection from the state(for instance, in the form of social safety nets). Under these circumstances,it is to be expected that many governments may invoke the concept ofprogressive realization to explain why they have not made sufficient progress(or have altogether regressed) in such goals as reducing child mortality,increasing the proportion of children finishing primary school, or closing thegap in malnutrition between various segments of their population. Withoutappropriate tools to assess the standard of progressive realization, it wouldbe virtually impossible to determine the validity of such arguments.

This article proposes a methodological toolkit to monitor the obligation ofprogressively achieving the full realization of ESC rights to the maximum ofa state’s available resources, with regard to specific rights in concrete situ-ations. It argues that quantitative tools are crucial for monitoring the impactof public policies related to resource allocation and distribution on the enjoy-ment and realization of ESC rights. While the methods proposed here focusprimarily on the rights to health and education, they could be readily adapt-able to monitor other rights as well.

The toolkit proposed here for monitoring the standard of progressiverealization is part of a larger project that I am working on, the aim of whichis to develop a set of qualitative and quantitative tools that would enable thehuman rights movement to address broader issues of public policy that havea huge impact on the realization of ESC rights and expand the areas of gov-ernment policy that we can submit to human rights scrutiny and accountabil-ity (Felner, 2008).

4 The opportunity costs in this context refer to the cash earnings or other contributions that ahousehold sacrifices in order to keep a child in school rather than in work.

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The article begins with a short discussion about the meaning of thenotions of progressive realization and maximum available resources andthen analyzes reasons why, for all practical purposes, the human rightsmovement has so far largely ignored these key principles in the field of ESCrights. Then, it examines a number of approaches that human rights expertsand monitoring bodies have suggested and sporadically used to monitorcompliance with this obligation.

The main part of the article sets out the methodological toolkit proposedto monitor the obligation of progressive realization. This toolkit has twocomponents. First, a basic framework of three steps, each with its ownsimple methods, which could potentially be used by virtually anybody inter-ested in monitoring ESC rights. Then, a short description of some moresophisticated tools that have been developed in recent years by variousresearchers or used by civil society organizations. Finally, the conclusionssuggest why the time is ripe to adopt tools that will enable us to systemati-cally assess the standard of progressive realization and how these methodscould be powerful tools of social change.

Why Has the Human Rights Movement Sidelined the Notionof Progressive Realization?

Article 2(1) of the ICESCR (hereafter ‘the Covenant’) states:

Each State Party to the present Covenant undertakes to take steps, indi-vidually and through international assistance and co-operation,especially economic and technical, to the maximum of its availableresources, with a view to achieving progressively the full realization ofthe rights recognized in the present Covenant by all appropriate means,including particularly the adoption of legislative measures.5

The UN Committee on Economic, Social, and Cultural Rights (the bodyresponsible for monitoring compliance with the Covenant – hereafter ‘theCommittee’) has stressed the importance of this clause for the overall under-standing of the legal obligations imposed by the Covenant, noting thatArticle 2(1)

is of particular importance to a full understanding of the Covenant andmust be seen as having a dynamic relationship with all of the other pro-visions. It describes the nature of the general legal obligations under-taken by States Parties to the Covenant.6

5 Similar provisions about progressive realization are set out in Article 4 of the Convention onthe Rights of the Child; Article 4(2) of the Convention on the Rights of Persons withDisabilities; and Article 26 of the American Convention on Human Rights.

6 CESCR. ‘General Comment 3: The Nature of States Parties Obligations’. 1990. Available athttp://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument (retrieved 1 August 2009).


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The obligation of progressive realization reflects the recognition that ade-quate resources are a crucial condition for the realization of ESC rights.7 Infact, the notion of progressive realization reflects the contingent nature of astate’s obligations regarding this set of rights, insofar as the level of a coun-try’s economic development determines the level of its obligations withregard to any of the rights of the Covenant (Alston and Quinn, 1987: 177).These concepts introduce a flexible element to the obligations pertaining toESC rights. As Paul Hunt points out:

Both phrases – progressive realization and resource availability – havetwo crucial implications. Firstly, they imply that some (but not neces-sarily all) States Parties’ obligations under the Covenant may vary fromone State to another. Second, they imply that, in relation to the sameState Party, some (but not necessarily all) obligations under theCovenant may vary over time. (Hunt, 1998: para. 4)

In other words, although all State Parties to the Covenant assume the sametreaty obligation, a rich State Party would be expected to be able to secure ahigher level of rights realization than a poorer State Party. It is in light ofthese inherently flexible elements that we should understand the ongoingreluctance of human rights advocates to use these standards in their practicalwork, preferring as they usually do to focus primarily on immediate obli-gations. This reluctance is related to a number of factors.

First, the focus on immediate obligations has to be seen in the context ofthe ongoing efforts of the human rights movement to reinforce the legitimacyof ESC rights as real rights, against repeated critiques (Dowell-Jones, 2004).Such critiques are largely based on the inevitable uncertainty introduced bythe flexible elements of the obligation of progressive realization with regardto the nature and extent of the legal obligations imposed by the Covenant.Opponents of the idea of ESC rights often claim that the fact that theserights are subject to progressive realization turn them into merely aspira-tional goals, too vaguely defined to impose clear obligations on states. Muchof their criticism hinges on what they see as inherent distinctions between thetwo sets of rights. In the view of the critics, civil and political rights have thecharacteristics of ‘real rights’ – they are negative in nature, requiring onlystate abstention; they are cost-free; and they could be immediatelyimplemented – whereas, in contrast, ESC rights lack all of these

7 This is supported by empirical evidence that has generally shown strong linkages betweenthe wealth of countries and the level of enjoyment of ESC rights by their citizens. Forinstance, a review of the literature on health concludes that “There is no doubt that eco-nomic growth has been a major factor underlying the long-term improvements in health out-comes. And there can be little doubt that slow economic growth has meant slow progress onhealth outcomes. It has been estimated, for example, that half a million child deaths wouldhave been averted in Africa in 1990 alone if the continent’s economic growth in the 1980shad been 1.5 percentage points higher” (Wagstaff and Claeson, 2004: 71–72).

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characteristics – they are positive in nature; require state involvement;depend upon resources; and can only be secured over time.

In countering these arguments, human rights experts have rightly insistedthat at the level of theory, both sets of rights have more similarities than areoften recognized. They both impose negative and positive duties which some-times require significant resources and sometimes do not, and which cansometimes be implemented immediately and sometimes not. At the sametime, in their eagerness to strengthen the legitimacy of ESC rights, humanrights advocates have focused, on a practical level, on those aspects of ESCrights that are typically associated with civil and political rights – namely onthose aspects that impose negative obligations of state abstention, that canbe immediately implemented, and where duties are not subject to resourceavailability and therefore do not vary according to levels of economicdevelopment.

This strategy has been particularly useful in strengthening the justiciabilityof ESC rights. Several courts around the world have issued decisions aboutviolations of immediately effective duties, such as discriminatory legislationor practices, forced labour, or violations of the right to fair remuneration.

Conversely, it is more difficult to bring to court cases regarding progressiverealization, which are typically related to resource prioritization, since judgesare often reluctant to adjudicate on such issues which they often consideredas a prerogative of the political branches of a state. Such cases are also diffi-cult to bring to court because they often require relying on empirical data toprove causal links between inadequate progress on the enjoyment of aspecific right and state action or inaction, and such causal links may notalways be admissible in courts (ICJ, 2008: 29).

A focus on immediate obligations, such as issues related to direct interfer-ence by a state with the enjoyment of ESC rights (the duty to respect) ormanifest discriminatory practices, is also the preferred approach of manyNGOs whose primary working methodology is related to ‘naming andshaming’ specific states and their governments for human rights violations(Roth, 2004). Although states can also commit human rights violations withregard to progressive realization,8 it is easier to establish a violation whendealing with breaches of immediate duties, which typically involve event-based violations, than to prove violations of duties subject to progressiverealization, which are usually related to structural issues and public policies.9

Another reason why human rights advocates have been reluctant to focuson issues subject to progressive realization is, as noted above, their fear thatthis notion could be misused by many governments as an excuse to avoid all

8 Maastricht Guidelines. 1997. ‘Maastricht Guidelines on Violations of Economic, Social andCultural Rights’. Maastricht, 22–26 January 1997 – Guidelines 14(f) and 15(e).

9 In fact the ‘violations approach’ was originally proposed as an alternative paradigm to thestandard of progressive realization for assessing state compliance with ESC rights(Chapman, 1996: 23–24).


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obligations imposed by the Covenant, since such governments can alwayspostpone implementing their obligations, arguing that the rights enumeratedby the Covenant are subject to progressive realization and therefore do notrequire immediate implementation. Additionally, they could argue that what-ever progress they are making towards the realization of these rights is suffi-cient to comply with their obligations, since these are subject to the‘maximum of available resources’.

The variable nature of the obligations subject to progressive realizationalso complicates any monitoring effort. Neither the Covenant, nor theCommittee, provide specific guidance or benchmarks for judging whether astate is making sufficient progress given its levels of available resources or forassessing the sufficiency of resources made available to realize rights. Thismakes it difficult to assess if governments have met this obligation, particu-larly since such assessment requires a methodology that integrates statisticalindicators and quantitative tools that could track progress over time andassess resource availability. Typically, these tools are not part of humanrights organizations’ research toolkit, which in many cases were originallydeveloped to monitor civil and political rights.10

Current Approaches to Monitoring Progressive Realization

Given all these challenges, it is not surprising that as several commentatorshave pointed out, little progress has been made in elucidating the precisemeaning of these duties, or in developing appropriate monitoring tools toassess compliance with these obligations in concrete situations. Already 15years ago, Robert Roberston, in one of the only articles focusing on the obli-gation to devote the ‘maximum of available resources’ to realize ESC rights,noted that debate on this question remains at a high level of generality,adding that ‘little progress has been made in creating a set of workable stan-dards which are detailed, systematic, and authoritative and, as of yet, there isno answer to the question: What resources must be devoted to realizingICESCR rights?’ (Roberston, 1994: 703). More recently, one of the mostcomprehensive studies on the nature of the obligations under the Covenantmade a similar argument:

The indicators developed by the Committee to measure compliancewith the obligation to devote the maximum of available resources needto be further improved. So far, these indicators have enabled theCommittee only to make general statements and they tend to use ratherweak language. Moreover, the Committee has not applied them in a

10 A few notable exceptions include the work of several NGOs that have been engaged inassessing economic and social rights using budget analysis, such as Fundar in Mexico, theChildren’s Budget Project at the Institute for Democracy in South Africa, and DISHA inIndia, as well as the use of epidemiology in research conducted by Physicians for HumanRights.

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consistent and strict manner to all States in the same circumstances.(Sepulveda, 2003: 319)

Nevertheless, some attempts have been made to overcome the difficulties inaccurately monitoring state compliance with the obligation of progressiverealization according to maximum available resources. For this purpose,human rights experts and monitoring bodies have suggested and sporadicallyused a number of approaches to monitor compliance with this obligation.What follows is a short description and analysis of the main suggestions.

Use of Indicators

One frequent recommendation has been to employ statistical indicators.11

For instance, the UN Special Rapporteur on the Realization of Economic,Social, and Cultural Rights observed in 1990 that

[. . .] indicators probably provide the most effective means of measuringthe progressive achievement of the rights found in the Covenant.12

In 1993, the World Conference on Human Rights recommended that asystem of indicators be developed to measure progress in the realization ofESC rights as did the Committee on several occasions.13

In recent years, the Office of the United Nations High Commissionerfor Human Rights (OHCHR) has spearheaded the systematization of thework on human rights indicators, in response to a request by theChairpersons of the UN Treaty Bodies. With the help of a panel ofexperts, OHCHR has developed a conceptual and methodological frame-work for using quantitative indicators to monitor the implementation ofESC, as well as civil and political, rights. On the basis of this proposedframework, OHCHR put forward a sample list of indicators for selectedhuman rights, thereby contributing to the translation of the normativecontent of substantive rights into quantitative indicators (see OHCHR,2008)

Nevertheless, it remains to be seen how this framework will address themost difficult challenge for measuring the obligation of progressive realiz-ation, namely, to suggest specific methods through which the UN Treaty

11 An indicator can be defined as a fact that indicates the state or level of something (e.g. lit-eracy rates).

12 UN Special Rapporteur on the Realization of ESCR (Danilo Turk). 1990. ‘Realization ofEconomic, Social and Cultural Rights’ Progress Report. E/CN.4/Sub.2/1990/19.

13 ‘Vienna Declaration and Programme of Action’. World Conference on Human Rights,Vienna, 14–15 June 1993, A/CONF.157/23. See, for example, CESCR. ‘GeneralComment 12, The Right to Food’. 1999, para. 43. Available at http://www.unhchr.ch/

tbs/doc.nsf/(Symbol)/3d02758c707031d58025677f003b73b9?Opendocument(retrieved 1 August 2009); and CESCR. ‘General Comment 13, The Right to Education’.1999, para 52. Available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ae1a0b126d068e868025683c003c8b3b?Opendocument (retrieved 1 August 2009).


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Bodies (or other actors engaged in human rights monitoring, such asnational human rights institutions or national and international NGOs) candetermine whether the progress made by a State Party over a period of timeon any given socio-economic indicator has been sufficient to be in compli-ance with the obligation of progressive achievement according to themaximum of available resources.

Use of Benchmarks

One complementary method that has been repeatedly suggested to deal withthis challenge is combining the use of indicators with the use of bench-marks.14 According to this approach, monitoring bodies, such as theCommittee, request states to set their own benchmarks for key indicators(e.g. child mortality or adult literacy) to be achieved over a period of time.Progress against these benchmarks can then be monitored and assessed bythose monitoring bodies. To ensure that states set realistic, but sufficientlyambitious, benchmarks for the progressive realization of rights, a process of‘scoping’ has been suggested, whereby the Committee would discuss with theState Party the benchmarks against which progress is to be evaluated over areporting period.15

Despite its merits, the benchmark approach has proved difficult toimplement until now. Thus, although this approach has been proposed fre-quently by the Committee, beginning with its first General Comment in1989,16 to date it has not actually been used to monitor compliance of anyspecific State Party. This may be partly attributed to the fact that, as DaniloTurk suggested when he served as the UN Special Rapporteur on theRealization of Economic, Social, and Cultural Rights, most states are waryof making explicit public commitments towards the realization of ESCrights. 17

14 In the human rights literature, benchmarks are targets relating to a given human rightsindicator (e.g. child mortality rates) to be achieved over a period of time (e.g. halve thechild mortality rates in 10 years).

15 CESCR. ‘General Comment 14: The Right to the Highest Attainable Standard of Health’.2000, para. 58. Available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument (retrieved 1 August 2009);CESCR. ‘General Comment 15: The Right to Water’. 2003, para 54. Available at http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94/$FILE/

G0340229.pdf (retrieved 27 August 2009). The benchmark approach is currently beingfurther developed by Eibe Riedel, a member of the Committee, in co-operation with FIANInternational – the project is called IBSA (Indicators, Benchmarking, Scoping, andAssessment). See http://ibsa.uni-mannheim.de/.

16 CESCR. ‘General Comment 1: Reporting by State Parties’. 1989, para. 6. Available at http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+1.En?OpenDocument(retrieved 27 August 2009).

17 UN Special Rapporteur on the Realization of ESCR (Danilo Turk). 1992. ‘Realization ofEconomic, Social and Cultural Rights’, Final Report. E/CN.4/Sub.2/1992/16 – para.129.

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However, the limited use made so far of the benchmark approach as ameans to assess progress may also be related to inherent problems in itsimplementation. Thus, even states that are in principle willing to make expli-cit public commitments towards the realization of ESC rights may be in nobetter position than the Committee to set benchmarks that realistically reflectthe use of maximum available resources for the progressive realization ofthese rights.

More importantly, it is not clear how the use of nationally set benchmarkswould solve the problem we noticed regarding the indicators approach,namely the lack of clear criteria and guidance by which to judge whetherbenchmarks set by governments are sufficiently challenging. As SiddiqurOsmani points out:

[. . .] when indicators and benchmarks are used to assess the progressiverealization of rights, the question inevitably arises of how to determinewhat would be a realistic and reasonable pace of progress in the light ofthe available resources [. . .] the problem is how can we know that theplan adopted and implemented by a State does actually represent thebest possible use of available resources? What if the State deliberatelyadopts too unambitious a plan, spending relatively few resources forthe enhancement of people’s rights to food, health and education, andyet claims that it is moving towards progressive realization of rights tothe best of its ability given the resource constraint? Similarly, when aplan fails to be implemented in full and the State claims that the short-fall was caused by factors beyond its control, how can we be sure thatthere was indeed nothing more the State could possibly do? To put itbluntly, how can we make sure that the State does not cheat? (Osmani,2000: 291)

Osmani adds that ‘one might think that an expert body, like the Committeeon Economic, Social, and Cultural Rights, could ensure this by carrying outan independent economic analysis of the resource constraints facing a StateParty’, but as Audrey Chapman points out, the Committee has neitherthe time nor the expertise to engage in such an exercise (Chapman, 2007:161).18

Expenditure Allocation to Specific Sectors

Another approach often adopted by the Treaty Bodies to assess state compli-ance with the obligation to devote the maximum available resources consistsof the analysis of macro-level budget information, particularly the percentage

18 Osmani rejects the idea of relying on the Committee for carrying out an analysis ofresource constraints facing a State party based on other grounds: ‘resource constraintentails trade-offs, and trade-offs involve value judgments, and value judgments are not inthe domain of independent experts’ (Osmani, 2000: 291).


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of the national budget allocated to a specific social sector (e.g. health, edu-cation, etc.). For such purposes, the guidelines for periodic reports adoptedby the Treaty Bodies request states to provide information on resources allo-cated to such sectors. The importance afforded to this type of indicator forthe purpose of measuring the obligation to devote the maximum of availableresources is reflected by the following statement by the Committee on theRights of the Child:

No State can tell whether it is fulfilling children’s economic, social andcultural rights ‘to the maximum extent of . . . available resources’ [ . . . ],unless it can identify the proportion of national and other budgets allo-cated to the social sector and, within that, to children, both directly andindirectly.19

Based on this type of information, the monitoring bodies have made criticalobservations on various occasions about the compliance of State Parties totheir human rights obligations. For instance, in the Concluding Observationsof the Second Periodic Report of the Republic of Korea, the Committeenoted with concern ‘the high level of defence [sic] expenditure is in contrastwith the shrinking budget for key areas of economic, social and culturalrights’.20 Similarly, in its Concluding Observations on the state of implemen-tation of the Covenant on Economic, Social, and Cultural Rights in Kenya –made after many years in which this State Party failed to submit a report tothe Committee – the Committee expressed concern ‘about the fact that gov-ernment expenditure on health care appears to be constantly decreasing’.21

Obviously, increased budget allocation to social sectors does not guaranteeadequate provision of quality services. However, all too often, the effectiveuse of additional resources in these sectors can indeed be crucial to increasethe availability, affordability, or quality of these services. Nevertheless,although the percentage of budgetary allocations of a state to a specificsocial sector could indeed, in many circumstances, be an indication of thelevel of government commitment to promoting that sector, it should not beused as a single indicator for assessing compliance (or lack thereof) of itsobligation to the progressive realization of the relevant right. This is becausethere are multiple factors related to the availability of resources in any state

19 Committee on the Rights of the Child, General Comment 5. ‘General Measures ofImplementation of the Convention on the Rights of the Child’. 2003, para 51. Available athttp://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/

3bba808e47bf25a8c1256db400308b9e/$FILE/G0345514.pdf (retrieved 27 August 2009).20 CESCR. ‘Concluding Observations on the Second Periodic Report of Korea’. 2001 (E/

C.12/1/Add.59) para. 9. Available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.1.Add.59.En?Opendocument (retrieved 27 August 2009).

21 CESCR. ‘Concluding Observation on the State of Implementation by Kenya’. (E/1994/23)para. 83. Available at http://www.bayefsky.com/html/kenya_t4_cescr.php (retrieved 27August 2009).

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that bear upon the progressive realization of ESC rights other than thebudget proportion that a state allocates to a specific social sector. Thesefactors include:

(a) Impact of economic growth on the expenditure spent per person on agiven social sector

If the overall size of its economy increases, a state can devote moreresources to social sectors like education, health, or food security withoutnecessarily allocating a bigger proportion of its economic resources to thesesectors. As a study on the relationship between the levels of economic develop-ment, health outcomes, and health expenditure noted: ‘The most importantsource of increased health expenditure is economic growth. Even if the shareof health spending in GDP remains constant, economic growth translatesinto more spending on health’ (Preker, 2003: ii).

Therefore, a monitoring exercise that only looks at the proportion ofexpenditure allocated to social sectors, without also looking at the levels ofeconomic growth or expenditure per capita, may reach the conclusion thatsuch a state is not complying with its obligation to devote the maximum ofavailable resources. However, the additional resources allocated to a givensector as a result of economic growth may be sufficient to adequately fulfilits obligations of progressive realization, and therefore such a conclusionabout this state’s compliance with its obligation may be unfair.

(b) Impact of extra-sectoral spending on the realization of ESC rights

The resources that a state should use for the progressive realization ofESC rights are not limited to those devoted to specific sectoral ministriesor agencies (e.g. Ministry of Health or Education). In fact, often thepolicy interventions required, such as the creation of access roads to over-come obstacles of physical accessibility to essential services for peopleliving in remote rural areas, need to come from other budget lines.Therefore, as a World Bank study on government health expenditure andhealth outcomes points out: ‘even if extra funds are applied extensively tohealth care (e.g. more staff at hospitals, adequate stocking of medi-cations), but complementary services, both inside and outside the healthsector, are not there (e.g. lack of roads or transportation to hospitals andclinics, subsidized prices for medication, etc.) the impact of extra govern-ment health expenditures may be little or none’ (Bokhari et al., 2007:258).22

22 For an example outlining the impact of the lack of adequate spending on infrastructure foreducation and health in rural areas, see Behrman et al. (2002: 20–21).


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(c) Regressive patterns of social spending

In many countries where the poor are deprived of primary health care andbasic education, the state spends most of its social spending on thenon-poor. As a study on basic social services observed:

More is spent on highly specialized hospital care than on basic healthcare, even though substantial numbers of people have no access to themost basic health clinic. The same applies to the continuing emphasis onsecondary and university spending in countries where most children donot complete even five years of formal schooling. (Mehrotra, 1996: 13)

Therefore, a monitoring exercise that looks only at the levels of expenditurefor a particular social sector, without looking at the composition of thatexpenditure, may reach a misleading conclusion about the use of maximumavailable resources for the progressive realization of ESC rights.

(d) Inefficiency in the use of resources

Increasing the allocation of resources will not meet the obligation of ‘pro-gressive achievement’ if these resources are not used efficiently.23 Oneobvious form of inefficiency involves corruption. Another form of ineffi-ciency involves the frequent tendency of government agencies to overspendon expenditure items towards the end of a budgetary year in order toprevent having budget lines reduced the following year.

A Proposed Toolkit

Before setting out the toolkit proposed to monitor the obligation of progres-sive realization, some preliminary comments should be made.

First, the inextricable link between the obligation of progressive realizationand the use of maximum available resources has clear implications for anymonitoring method meant to assess compliance with this obligation. Becauseof this link, it is not sufficient for any monitoring exercise just to assesswhether a state has made progress over time in the realization of any right. Tocomply with its human rights obligations, the pace of progress has to bereasonable in light of the state’s available resources. The crucial and difficultquestion is how to determine what levels of progress on ESC rights would besufficient for any country to comply with the obligation of progressive realiza-tion, given the level of economic growth that a given country has had over aperiod of time. Any proposed methodology should address this crucial issue.

Second, there is a need to use more than one method for monitoring theobligation of progressive realization. This is not only because no single

23 As the Limburg Principles point out, ‘The obligation of progressive achievement. . . requireseffective use of the resources available’ (‘The Limburg Principles on the Implementation ofthe International Covenant on Economic, Social and Cultural Rights’, UN doc. E/CN.4/

1987/17, para 23; see also para 27).

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assessment tool can capture the multiple policy factors that affect the level ofresources that a state devotes to the progressive achievement of ESC rights. Itis also because the monitoring tools need to be adapted according to thepurpose and scope of the monitoring exercise, which in turn would dependon the type of user. For example, the quantitative tools that a human rightsmonitoring body would use to monitor compliance with an InternationalTreaty would probably be very different from those used by an internationaldevelopment agency interested in assessing human rights progress by individ-ual countries in order to determine its aid priorities. The use of quantitativetools by a government committed to integrating human rights principles intoits public policies would be quite different from those used by a humanrights advocacy NGO that is interested in exposing, and perhaps ‘namingand shaming’, a government that is unwilling to adopt policies in line withits human rights obligations.

In the choice of tools there is a need to recognize that there is often a trade-off between comprehensiveness and simplicity: the more detailed and com-prehensive the methods, in order to fully capture the complexity of the issuesrelated to resource allocation and progressive achievement, the less simplethey typically are to use and to convey to non-experts, and vice versa.

In an effort to strike a balance between simplicity and comprehensiveness,and taking into account that different users and monitoring purposes call forvarying degrees of complexity in the tools used, I first propose a basic frame-work for monitoring the obligation of progressive realization, which consistsof a set of simple methods that could potentially be used by virtuallyanybody interested in monitoring ESC rights. This basic framework is thencomplemented by the description of some more sophisticated tools that havebeen developed in recent years by various researchers or used by civil societyorganizations. The relevance of each of these tools will vary according to cir-cumstances, depending on the purpose and scope of the monitoring exercisefor which they are put to use and the level of technical expertise of the poten-tial users.

Basic Framework

The basic framework proposed to monitor the progressive realization of ESCrights consists of three consecutive and complementary steps, each one con-taining some simple methods. These methods are meant to complement andbuild on the existing approaches described in the previous section. Thesetools are user-friendly and lend themselves to be displayed in visual forms,thus maximizing advocacy capacity.

At the same time, these tools are not meant to give a comprehensivepicture, nor provide conclusive evidence, of a country’s compliance withthese obligations. Rather, they flag some possible concerns which could besubsequently assessed by other methods. For instance, these methods couldhelp monitoring bodies to identify some specific concerns that could serve as


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a basis for a more substantive dialogue with the relevant State Party. Or theycould be used by an NGO as an initial assessment in a more comprehensiveresearch effort, which may include using methods that are technically moresophisticated, such as those briefly discussed later in this article.

Step 1: Comparing Social Indicators with GDP Per Capita

This first step enables one to measure human rights progress over timeaccording to the level of a country’s development. The simplest method is tocompare a social indicator over time, such as primary school completionrates or child malnutrition (as a proxy for the enjoyment of some aspects ofa specific right) with GDP per capita (as a proxy for available resources).This method is helpful in cases where a country experiences a reversal in asocial indicator during a period of significant economic growth, as illustratedin Figure 1. In these circumstances, such reversals would indicate, primafacie, a state is not complying with its obligation to progressively realize keyrights according to available resources.

Nevertheless, cases in which social indicators actually deteriorate over timeare relatively rare. In fact, most countries make (more or less) progress overtime.24 In such cases, comparing changes in a single country over time – of a

Figure 1. Primary completion rate versus GDP per capita – Jamaica (1990–2005).

24 For instance, among 117 developing countries for which data are available, 80 countriesincreased their net primary enrolment rates from 1990 to 2005, while only 36 countriesdecreased their primary enrolment rates over this period (one country maintained the samerate). Over the same period, 120 countries decreased their rate of child mortality while therate increased in only 17 countries (United Nations ‘Millennium Development GoalDatabase’ (http://millenniumindicators.un.org).

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relevant outcome indicator against changes in GDP per capita – is not veryhelpful. Its limitations become apparent when looking at Figure 2. Withthese data alone, it is not possible to assess whether Tanzania’s progress inprimary completion rates between 1990 and 2006 is adequate to the level ofeconomic growth experienced by the country during the same period.

When progress is made, a different method is necessary to determinewhether this progress is adequate or too slow relative to the change inresources. One such method is to compare the performance of the focuscountry with that of similar countries. This can be done using a cross-country comparison of per capita incomes with social indicators.25 Suchcomparisons of the performance of the focus country can provide an objec-tive benchmark against which actual performance may be judged. As anillustration, comparing Figure 3 with Figure 4, the Center for Economic andSocial Rights showed that while India had an income growth of 58 percentbetween 1995 and 2005 – one of the highest in the world – its child mor-tality rate reduction during the same period was one of the lowest in SouthAsia (CESR, 2008). India’s underperformance in reducing child mortality is

Figure 2. Primary completion rate versus GDP per capita – Tanzania (1990–2006).

25 When making such a comparison, one may want to control for other factors that couldhave an impact on the social outcome, independent of GDP. For instance, when studyingthe effect of governance on poverty, Mick Moore controlled for population density, figur-ing that a country with a higher population density can more efficiently provide servicesthan a larger country with lower population density (Moore, 2003). In a similar study,Frances Stewart controlled for whether or not a country was heavily dependent on oilextraction for its economic well-being (Stewart, 1985). To avoid controlling for a whole setof possible relevant factors – such as weather/climate, conflict spillovers, and culturalbeliefs – which would require making the quantitative tools proposed here more complex– it is possible to just make comparisons across countries of the same geographic region, astandard practice used as a simple alternative to controlling for multiple potentially rel-evant factors.


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apparent when compared with Bangladesh. Despite a significantly lowerlevel of income and lower economic growth than India, Bangladesh had amarkedly greater reduction in under-five child mortality rates. These differ-ences matter. Had India matched Bangladesh’s rate of reduction in childmortality over the past decade, 732,000 fewer children would have died(UNDP, 2005).

Since this method only shows the level of progress made over a givenperiod of time – and not the overall current level of enjoyment with regardto that social indicator – it should be used together with another methodthat can compare the most recent data about indicator levels with the levelsof GDP per capita. Such a comparison may reveal that countries that hadmade relatively good progress in the realization of a relevant right are stilllagging behind when compared with other countries with similar develop-ment levels, or even poorer countries, in the same region. For instance,Figure 5 compares the Education for All Development Index (an index of key

Figure 3. Decrease in under-five mortality rates 1995–2005.

Figure 4. GDP per capita PPP* growth 1995–2005.*Purchasing Power Parity (PPP) is a method to calculate exchange rates which iscommonly used to compare countries’ standard of living or per capita GDP.

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education outcomes, developed by UNESCO as a proxy for the status ofeducation in a given country) with the level of economic development forcountries in Latin America.26 This figure clearly shows that relative to itslevel of economic development, Guatemala is under-performing in educationoutcomes when compared with other countries in the region, even laggingbehind poorer countries such as Bolivia, Paraguay, and Honduras.

Step 2: Analysis of Resource Allocations27

Consistent with the principle of national sovereignty, human rights lawaffords states a margin of discretion in selecting the appropriate measuresnecessary for realizing ESC rights.28 This includes making decisions on theuse of resources at their disposal and setting budget priorities accordingly.However, the extent of a state’s discretion is limited by the human rightsobligations it has committed to uphold.29 It is therefore appropriate for anymonitoring effort to assess the reasonableness of the budgetary priorities inlight of human rights standards.

Analysing the magnitude, composition, and distribution of resources allo-cated to social sectors (e.g. the educational or health systems) is crucial for

Figure 5. Education for all index and GDP per capita, Latin America and theCaribbean, 2006.

26 This Index combines four basic dimensions of education: universal primary education,adult literacy, the quality of education, and gender parity.

27 This section is partially based on Felner (2008).28 Maastricht Guidelines, footnote 8, para. 8.29 See, for example, CESCR. ‘General Comment 12’, footnote 13, para. 21; CESCR. ‘General

Comment 14, footnote 15, para 53.


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assessing whether a state is devoting the maximum of its available resourcesto the progressive realization of ESC rights.

An in-depth budget analysis is optimal for this purpose. Some pioneeringNGOs have made important inroads in this regard, integrating rigorousbudget analysis into a human rights framework.30 However, most humanrights activists do not have the technical skills, time, or resources required toundertake complex budget analysis. Nevertheless, it is possible to use simplequantitative tools to assess the adequacy and distributional equity ofresources devoted to the realization of ESC rights.

First of all, a snapshot of the extent of a state’s commitment to a particulareconomic and social right can be obtained by looking at the proportion ofthe GDP of that state allocated to the relevant social sector. Let us take, forexample, the right to education. The relevant indicator would be the primaryeducation expenditure ratio, measured by the expenditure on primary edu-cation as a percentage of GDP. Imagine that, during Step 1 of the proposedframework, one finds that in the focus country primary completion rates arelower than those observed in other countries of the same region with similaror lower levels of GDP per capita. In such a case, if this country has a lowerprimary education expenditure ratio than other countries in the same regionwith similar needs and overall income, this would suggest that the focuscountry is failing to comply with its obligation to devote the maximum ofavailable resources to the progressive achievement of the right to education –since it is devoting a smaller proportion of GDP to primary education thanthese other countries, despite having a larger proportion of its children thatdo not enjoy this basic right.

In turn, the level of public spending on basic social services is determinedby a set of policy decisions, ranging from fiscal policies to the distribution ofresources within a specific social sector. Three key policy decisions are par-ticularly relevant: (1) the level of aggregate public expenditure (as a pro-portion of GDP); (2) the fiscal priority assigned to the relevant social sector(e.g. the education or health sector); and (3) the priority of basic social ser-vices within total social sector expenditure.

A set of three ratios, adapted from a set of ratios proposed by the UnitedNations Development Program to analyse public spending on human devel-opment (UNDP, 1991, 1996), can help identify which of these policydecisions may generate a bottleneck in the financing of essential services,thereby hindering the realization of ESC rights. UNDP suggests that theseratios are ‘a powerful operational tool that allows policy makers who wantto restructure their budgets to see existing imbalances and the availableoptions’ (1991: 39). However, these ratios could also be a powerful monitor-ing tool allowing human rights advocates to identify when

30 See footnote 10, above, for examples of such organizations.

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† A government appears not to raise sufficient revenues to adequately fundcompeting needs;

† A government devotes insufficient resources to an area related to a specificright (education, health, food security, etc.);

† A government allocates disproportionately few resources to budgetaryitems within a social sector that should be a priority from a human rightsperspective. (e.g. disproportionate spending on tertiary versus primaryeducation, or on metropolitan hospitals as opposed to rural primaryhealth care services);

† There are manifest disparities in the allocation of resources for a particularsector among specific groups or regions.

Figure 6 uses the right to education to illustrate this set of expenditureratios. The figure shows that the public expenditure ratio is the result of threeexpenditure ratios – the Public expenditure ratio, the Education allocationratio, and the Primary education priority ratio – which reflect three keydecisions in the budgeting process.

(a) Public expenditure ratio – government share of GDP

This ratio is the percentage of national income (using GDP as a proxy) thatgoes into public expenditure. It reflects the size of a government’s budget inrelation to the size of its economy. It also indicates the ‘size of the pie’ ofresources a government has at its disposal to undertake all its functions.Since taxation is generally a major funding source for public expenditure,this ratio often depends largely on taxation levels. Although possibilities for

Figure 6. Expenditure ratios.


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raising taxes may partially depend on state capabilities, they also depend tovarying degrees on state policy decisions.

If this ratio is too high and a large proportion of national income is drawninto the public sector, this might depress private investment and restrict econ-omic growth (UNDP, 1991: 40), which could jeopardize the sustainability ofESC rights realization.31 If this ratio is too low, the state is weakened,making it difficult to adequately provide resources for many competing andoften essential functions. A persistently low ratio can reflect a structuralproblem, for instance, an economic elite able to prevent any substantial taxincreases, 32 or a widespread pattern of tax evasion,33 that could seriouslyimpair a state’s ability to realize its ESC rights obligations.

(b) Education allocation ratio – education share of government spending

This ratio refers to the percentage of public expenditure allocated to edu-cation. It reflects the relative priority given to education among competingbudgetary needs.

The extent to which a low education allocation ratio is problematic from ahuman rights perspective depends on the circumstances. The level of enjoy-ment of a specific right is crucial. A state where most of the population is lit-erate and practically all children enjoy access to primary education might bejustified in reducing its education spending and re-allocating funds toanother social sector with pressing needs. Since a state has a margin of dis-cretion to determine its budgetary priorities, it could still be legitimate toallocate relatively more resources on housing or on health than on education,even if these other sectors are not worse off than the education sector.However, if there is a high level of illiteracy or great disparities in theprimary school completion rates of boys and girls, a low education allocationratio would not be justified.

Thus, this ratio can help expose and challenge cases in which a govern-ment might make spurious arguments about lack of sufficient resources todischarge its duty of progressive achievement when, in fact, the problem isnot resource constraints but rather the preference of that government to useavailable resources for extravagant spending, squandering state resources inunnecessary areas.34

31 The relation between promoting ESC rights and promoting economic growth is a complexone, worthy of separate analysis, but it is beyond the scope of this article.

32 See for instance, Center for Economical and Social Rights (CESR) and InstitutoLatinoamericano Para Estudios Fiscales (ICEFI) (2009).

33 In its Concluding Observations on Georgia, the Committee on the Rights of the Childrecognized the impact of tax evasion on the issue of maximum available resources. SeeCommittee on the Rights of the Child. Georgia. CRC/C/97 (2000) 18, para 94.

34 One example was analysed by the Kenya National Commission on Human Rights in itsreport ‘Living Large: Counting the Cost of Official Extravagance in Kenya’ (2005). Thisreport showed that Kenya’s government has spent more than $12 million on new cars for

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The relevance of this ratio for monitoring compliance with the obligationto devote maximum available resources is illustrated by the fact that, as astudy about the work of the Committee on Economic, Social, and CulturalRights noted, this Committee sometimes expressed satisfaction when a StateParty began giving priority to the realization of these rights instead of allo-cating resources to public ‘beautification’ projects (Sepulveda, 2003: 335).

(c) Primary education priority ratio – primary education share of educationspending

This ratio, which refers to the percentage of the total education expendi-ture allocated to primary education, reflects priorities within a given edu-cational system. The interpretation of low levels of this ratio will dependonce again on the examination of circumstances. Countries that have alreadyachieved high standards of primary education may be justified in prioritizinghigher education levels.35 However, in countries where a significant pro-portion of the population is illiterate or many children are deprived of themost basic forms of education, a low primary education priority ratio couldbe interpreted as a violation of a state’s minimum obligations regarding theright to education.

This is precisely the case in those countries where many of the poor aredeprived of basic education or primary health care, yet the state spends mostof its social spending on the non-poor. The combination of having a signifi-cant proportion of the poorest population deprived of minimum essentiallevels of ESC rights, while regressive spending patterns disproportionatelybenefit more affluent groups, is quite common in developing countries.36

How to use the ratios: It is possible to determine if ratio levels in a givencountry are relatively high or low by comparing the levels with a referencepoint or objective standard against which it can be judged. Specifically, ratiolevels can be compared with the following:

(i) State commitment, such as a constitution, national plans, or politicalagreements. For instance, in its 1996 Guatemala Peace Agreements, the

senior government officials – enough money to send 25,000 children to school for eightyears.

35 This was, for instance, the case of Vietnam. A cross-country study of current spending onbasic social services found that although this country had low spending on basic educationas a proportion of its education budget, it had a long history of investment in education,and enjoyed high literacy and low dropout rates, as well as near-universal primary schoolenrolment. Therefore, the researchers concluded that ‘spending on education appears tohave been increasingly devoted to higher levels of education without impeding primarylevel enrollments’ (Harrington et al., 2001: 194).

36 A regressive pattern of spending may also be considered a covert form of discriminationwhere, for example, investments ‘disproportionately favor expensive curative health serviceswhich are often accessible only to a small, privileged fraction of the population, rather thanprimary and preventive health care benefiting a far larger part of the population’ (CESCR,‘General Comment 14’, footnote 15, para. 19).


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government of Guatemala committed itself to ‘step up public spendingon education as a proportion of gross domestic product by at least 50per cent over its 1995 level’ (Presidential Peace Commission, 1996).

(ii) The level of the same ratio in other countries in the same region.37

(iii) A suggested standard based on empirical evidence. For instance, whenoriginally proposing its set of ratios as a means to analyse public spend-ing from a human development perspective, UNDP suggested what theideal levels of these ratios should be (UNDP, 1991: 40). Similarly, theWHO has set a global minimum target of five percent of GrossNational Product (GNP) for health expenditure (World Bank, 1993:312, quoted by Chapman, 2007: 157).

Step 3: Analysis of Expenditure Per Capita

An analysis of the overall resources allocated by a state to specific socialsectors has to be complemented by an analysis of the expenditure per capitaon those sectors. Obviously, how much a state spends per capita on anysector depends not only on factors related to government policies and priori-ties (i.e. those reflected in the ratios described in Step 2) but also on the levelof economic growth (or contraction) and the size of the population – twofactors over which any government has, at best, only partial control.Therefore, since states only commit violations of ESC rights when theiractions or omissions reflect an unwillingness to comply with their humanrights obligations, and not when they are unable to carry them out,38 thelevel of expenditure per capita that any state spends on areas such as edu-cation or health cannot in itself serve as an indicator of compliance (or lackthereof) in the progressive realization of ESC rights. Using this indicator forsuch a purpose would be unfair towards poor countries since per capitaexpenditure is closely related to a country’s level of income and, therefore, itwould necessarily lead to the conclusion that the richest countries are incompliance with their obligations, while the poorest are not.

Nevertheless, the analysis of per capita expenditure is still crucial for moni-toring purposes. Such an analysis can help identify common policy problemsthat may hinder the progressive achievement of these rights. It can also helpto determine the types of policy strategies a government should adopt toaddress these problems. For instance, the case of a state with a low level offinancial commitment to a social sector (reflected in low levels of the ratios

37 For instance, the Committee compared the money spent by a state on the implementationof a specific Covenant right and that which is spent for the same item by other states withthe same level of development to assess its compliance with its obligation of using themaximum available state resources. For example, when examining the Second PeriodicReport of the Dominican Republic, the Committee noted with great concern that Stateexpenditure on education and training as a proportion of total public spending was lessthan half the average in Latin America (Sepulveda, 2003: 317).

38 Maastricht Guidelines, footnote 8, para 13.

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described in Step 2) that also has a low level of expenditure per person inthat sector, suggests a violation of that state’s obligation to devote itsmaximum available resources to the progressive achievement of the relevantright. As unit costs are not a major constraint to increasing overall spendingon the sector, progressive achievement of the relevant right could reasonablyhave been within the state’s reach if it had shown a stronger commitment todevoting resources to that purpose.

On the other hand, the case of a state with a low level of expenditure perperson in a social sector, despite a high level of financial commitment to thatsector (reflected in relatively high per cent of expenditure on that sector as aportion of its GDP), would suggest that a key strategy that such a stateshould adopt to raise the level of realization of ESC rights is an effort toaccelerate its economic growth.39

An analysis of expenditure per capita could also help reveal deeplyembedded inefficiencies in the use of resources which, as we saw above,could amount to a failure of discharging the obligation of devotingmaximum available resources. Thus, due to an inefficient use of resources, astate may in some cases actually be spending too much money per person ona social sector (such as health) or essential service (such as primary school-ing). This phenomenon is well illustrated by a study on primary schooling inSub-Saharan Africa that shows that in most of the countries with low schoolenrolment, despite the overall adequacy of their spending allocation (asmeasured by the public spending on primary education as a percentage ofGDP), high unit costs of schooling (measured by the amount of money spentper pupil in the primary school system) were a critical constraint on theability of governments to universalize primary education (Colclough et al.,2003). For instance, Ethiopia was spending 1.7 percent of its GDP onprimary education – nearly the average in Sub-Saharan Africa (1.9 per cent)– but it spent the equivalent of almost 40 percent of per capita income oneach pupil (while the average for Sub-Saharan Africa was only 13.6 percent).Given this exorbitantly high level of unit cost of schooling and taking intoaccount Ethiopia’s school enrolment rates, the researchers of this study cal-culated that achieving universal public education would have required anallocation of around seven percent of GDP annually, a virtually impossiblecommitment to expect from such a poor country (Colclough et al., 2003:98–100).

Additional Tools

Although the basic methodological framework may be sufficient for theneeds of some monitoring exercises, some users who have sufficient technical

39 At the same time, if the gap between how much this state spends per capita on educationor health and how much it should spend to ensure the equal enjoyment of ESC rights istoo large, this would indicate that such a country cannot guarantee the enjoyment of theserights without international assistance.


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skills and are undertaking more ambitious monitoring projects may want touse more sophisticated monitoring methods.

The following are some methods developed in recent years by researchersfrom different disciplines. While some of these methods were specificallydesigned to monitor the obligation of progressive realization – or, more gen-erally, the various types of obligations pertaining to ESC rights – otherswere originally designed for other purposes, but could easily be adapted formonitoring progressive realization.

Alternative Methods to Compare Social Indicators with GDP Per Capita

Several methods have been used or proposed to compare social indicatorswith GDP per capita. Many of these tools add some dimension of complex-ity to the simple tools presented in the basic framework. The following arejust two illustrative examples.

One method compares the absolute levels of a social indicator and theGDP per capita of several countries at different points in time. As Figure 7shows, this enables one to get information simultaneously about the pace ofprogress made by several countries with regard to that indicator over a givenperiod of time (against the level of GDP growth) along with the absolutelevels of those indicators, thereby combining the type of informationobtained by Figures 3, 4, and 5.40

Figure 7 shows that while most countries in Sub-Saharan Africa have madeprogress in reducing their child mortality rates from 1990 to 2006, Kenyaincreased its child mortality rates. As a result, at the end of this period,

Figure 7. Child mortality rate versus GDP per capita (1990–2006). Sub-SaharanAfrica — selected countries. Author’s design based on WDI 2008.

40 This method is taken from a report produced by the Economic Commission for LatinAmerica, where it is used with other indicators and for different purposes (ECLAC, 2001:figure IV.4b)

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Kenya had levels of mortality rates similar to poorer countries such asMalawi and Tanzania, but still lower levels than richer Nigeria.

Another method, proposed as part of an effort to build a composite indexof ESC rights fulfilment, consists of using an Achievement PossibilityFrontier (APF) approach to measuring ESC rights fulfilment. This frontierdetermines the maximum level of achievement for any ESC right at a givenper capita income threshold, based on the highest level of the indicator his-torically achieved by any country at the same per capita GDP (Fukuda-Parret al., 2008).

As the proponents of this approach point out, the main advantage of theAPF approach is the possibility of assessing a state’s fulfilment of its obli-gation of progressive realization based on the level at which a country at agiven per capita GDP could perform. This clearly enables one to obtain moreaccurate results regarding the compliance of a given country with its obli-gation of progressive realization than the simpler tool illustrated in Figure 5,which assesses a state’s fulfilment of this obligation based only on a compari-son with the performance of other countries of the same level of develop-ment at a particular point in time.

To illustrate the difference between approaches, Figure 5 showed thatusing this simple method, Peru appeared to fare relatively well in 2005 interms of its obligation of the progressive realization of the right to education,having achieved better education outcomes (as reflected in the ‘Education forAll Index’) than other countries with similar levels of GDP per capita.However, using the APF approach could perhaps reveal that in the past oneor more countries with the same per capita GDP level that Peru had in 2005were able to achieve significantly better levels of education outcomes thanPeru. This would suggest that given this level of economic development, Perucould perform better in the realization of this right, a conclusion that couldnot be obtained by using the simpler method.

At the same time, as the proponents of the APF method acknowledge, akey drawback of this method is that it is not as easy to grasp as the simplermethod, which makes it more opaque to policy makers (Fukuda-Parr et al.,2008: 20) and potentially less powerful as an advocacy tool.41

Budget Analysis

As mentioned above, some pioneer civil society organizations around theworld have begun to integrate rigorous budget analysis into a human rightsframework. Such analysis enables organizations to identify and challengedifferent types of leakages and bottlenecks in the budgeting process thatprevent the allocation of the maximum available resources to progressive

41 For other methods that compare social indicators with economic growth, see referencesfrom footnote 25 above, and Figures 8 and 9 and the accompanying explanation in a studyon Pakistan by Easterly (2003).


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realization, and which cannot be detected using the simple tools suggested inthe analysis of resource allocation and expenditure per capita set out in thebasic framework.

A case study on the right to health in Mexico, carried out by Fundar, aMexican centre for analysis and research, illustrates how budget analysis canbe a very powerful tool in helping to assess a government’s compliance withits ESC rights obligations (including the obligation of progressive realization)and holding a government accountable for these commitments.42

For instance, examining the gap between budgeted spending and actualspending, the study found that while the Ministries of Finance, Tourism, andForeign Affairs each spent more during the course of the year than was allo-cated in the budget, this was not the case with the Ministry of Health. Fromthis, Fundar was able to deduce that when extra resources became available,they were not allocated to the health programme (Fundar et al., 2004: 37–38). Moreover, comparing the budget for specific health programmes withother programmes throughout the budget, the Fundar study found that theadditional spending in the Ministries of Finance, Tourism, and ForeignAffairs, above and beyond the amount originally allocated in the budget,was 2.3 times the total budget of a health care programme aimed at 10million Mexicans in extreme poverty (ibid: 37–39). These findings raisequestions about Mexican commitment to use the maximum of availableresources for the progressive achievement of ESC rights.

Fundar also examined the composition of the health budget. Mexico hastwo parallel health systems: the social security system that provides healthcare to individuals who are legally employed and their families and thepublic health system that provides health services to people who lack formalemployment and are therefore not eligible for social security. In the study,Fundar compared what percentage of the total budget goes to each of thetwo systems and found that although each of them roughly served half of theMexican population, the social security system was allocated nearly doublethe spending of the public health system. Such inequitable spending patterns,where the people lacking formal employment and are therefore less likely tobe able to afford private health services are those that benefit less from statespending on health services, could be interpreted as a clear violation of therequirement to use the maximum available resources for the progressiveachievement of ESC rights.

The Analysis of Macro-economic Policies

Balakrishnan and Elson (2008) have recently proposed a methodology toassess the effects of macro-economic policies – such as fiscal and monetarypolicies, taxation, and international trade – on the progressive realization ofthe people’s economic and social rights. On the basis of this methodology,

42 A detailed description of this case study can be found in Fundar (2004).

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they and their colleagues conducted an audit on economic policy and econ-omic and social rights in Mexico and the United States (Balakrishnan et al.,2009).

In this study, they address a whole set of macro-economic issues such asthe role of counter-cyclical fiscal policies in the promotion of the progressiverealization of the right to work; the appropriate ratio of tax revenue to GDPin a country like Mexico that derives a substantial proportion of its revenuefrom oil; or the extent to which pension systems that stipulate the size of theworker’s contributions are incompatible with the notion of progressiverealization of ESC rights, since the size of the eventual pension depends onthe state of the stock market and therefore can be drastically reduced (asactually happened recently to many people in the United States as a result ofthe current economic crisis). These issues are too complex to properlydescribe in the limited space of this article – let alone to critically analysetheir application in the specific cases of the United States and Mexico, asexamined in the study. Nevertheless, regardless of the specific merits of thisstudy, their work is an important contribution to the toolkit of methods tomonitor progressive realization since it clearly shows the range of macro-economic policies that could potentially have an impact on the availabilityand distribution of resources for the fulfilment of ESC rights.

The Use of Econometric Tools and Economic Models

Another approach to monitor the progressive realization of ESC rights drawson econometric tools, economic models, and other quantitative tools typi-cally used by economists. Edward Anderson adopts this approach in a recentworking paper in which he proposes a set of quantitative strategies for asses-sing whether states are complying with their ESC obligations, includingthose subject to progressive realization (Anderson, 2008).43 The explicitobjective of his methodology is to determine whether there are any actions astate could take (but is not currently taking) to progressively realize at leastone ESC right without reducing the levels of the realization of any otherright. To assess this, he sets out a methodology in three stages, focusing inparticular on the rights to education and health.

The first stage involves multiple regression analysis of household surveydata in order to identify the factors that affect people’s access to the goodsand services that have an important effect on key health and education out-comes. The second stage consists of a set of methods for identifying andcosting an action that the government could take, but is currently not taking,to raise people’s access to these goods and services. The third and final stageof the proposed methodology is meant to establish whether there are likely

43 For a shorter overview of the methods Anderson suggests and for an analysis of the chal-lenges and constraints in applying them; see Anderson and Foresti (2008). Also see theirpolicy note in this special issue.


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to be any adverse effects from raising the revenue required for the actionidentified and costed in the second stage, and if so whether those adverseeffects are sufficiently large to offset the positive effects of the expenditureitself.

According to Anderson, this final stage is the hardest to undertake. Ideallythis assessment should be done using formal analytical modelling, whichentails the use of complex mathematical techniques, but can nevertheless bepursued through simple ‘rules of thumb’ using publicly available econo-metric evidence. The paper suggests three such rules of thumb and givesexamples of how they could be used.

An important strength of this approach is that it reflects a genuine effort todevelop a human rights analysis that takes seriously the problem of scarcityof resources and the related problem of trade-offs and the need to prioritize.This is important because human rights advocates have been criticized fordownplaying the importance of these issues (Gauri, 2005: 80).

At the same time, despite the efforts of the author to simplify the toolswith suggestions about ‘rules of thumb’ and ‘back of the envelope’ calcu-lations, the level of complexity of the methods proposed seems to be wellbeyond the technical skills of most human rights advocates. Therefore, atthis stage it is hard to envisage NGOs or human rights monitoring bodiesfully applying these tools. However, as suggested above, the usefulness ofeach tool may depend on the type of user, and the methodology proposed byAnderson could probably be very useful for any government committed tohuman rights that is trying to ensure that its public policies comply with itsobligation to the progressive achievement of ESC rights according to themaximum resources available.

Conclusions

Any discussion about quantitative tools and methods in the field of humanrights is likely to be seen by many advocates and practitioners as arcane andoverly technocratic. After all, we got into this ‘line of business’ to fight injus-tice and make states and other actors accountable for their abuses of power,not to select indicators and calculate ratios.

That is precisely the appeal of the ‘violations approach’ to ESC rights, withits focus on manifest discriminatory practices and other forms of activedenial of rights that are subject to immediate obligations. Embracing thisapproach and largely sidestepping the issues of resource availability and pro-gressive realization, human rights advocates have been adept at undertakinginvestigations and advocacy on ESC rights with methods such as legalresearch and fact-finding missions based on testimony gathering, which fordecades have proved to be effective means to expose and challenge a myriadof abuses in the field of civil and political rights.

Nevertheless, while the focus on immediate obligations has paid off inmany aspects, circumventing the standard of progressive realization has

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severely constrained the ability of the human rights movement to hold gov-ernments accountable for policies and practices that turn millions of peopleinto victims of avoidable, everyday deprivations. Frequently, these peoplelack real access to basic social services that are essential for the enjoyment oftheir rights. In turn, the availability, accessibility, affordability, and qualityof these services typically require having adequate resources that are equita-bly distributed and efficiently used.

This is why it is crucial to stop ignoring the standards of progressiverealization and maximum available resources and develop effective methodsto address these key aspects of ESC rights. Critically, these methods can bepowerful tools of social change, allowing us to expand the areas of govern-ment policy that come under scrutiny and accountability and provide objec-tive validity to claims that the issue is often not resource availability butrather resource distribution. For instance, these tools could help expose andchallenge cases in which governments squander their limited resources onwhite elephant projects, while failing to adequately fund essential pro-grammes for nutrition, education, or reproductive health. They could alsoshow that basic social services not only often suffer from chronic underfund-ing, but also that the paltry resources that are available are not targetedtowards those that are most in need.

The urgency for having such tools is more acute today, as a result of theglobal economic crisis. Given the pervasive effects of this crisis, it is expectedthat many states will not be able to make much progress in the realization ofESC rights in the near future. Under these circumstances, states that areunwilling to fulfil their human rights obligations may invoke resource con-straints as an excuse, and without appropriate tools to monitor the standardof progressive realization the human rights movement may not be capable ofadequately assessing these claims. In other words, without the necessarytools, the escape hatch from effective accountability for violations of ESCrights may be left wide open.

Paying more attention to the standard of progressive realization does notnecessarily imply shifting away from the violations approach, which in manyways has proved to be so effective. On the contrary, the methods for asses-sing progressive realization could expand rather than replace the ‘violations’approach, by incorporating into this approach issues subject to progressiverealization, along with those subject to immediate obligations. As alreadynoted – a point often overlooked in discussions about progressive realization– states can incur violations of this standard as much as they incur violationsof immediate obligations.

It is hoped that human rights NGOs, Treaty Bodies, and national humanrights institutions will find the basic framework proposed in this articleuseful for monitoring progressive realization. It should be stressed that thetools presented here reflect only initial efforts in developing a framework.Critiques of these methods or their underlying assumptions would be


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welcome, in order to correct or refine them for future use. The basic frame-work is an attempt to keep the initial monitoring exercise very simple, bothto increase its potential value as an advocacy tool, while at the same timecapturing the main factors that, according to the expert literature, have animpact on issues related to progressive realization and resource availability.For a more comprehensive monitoring exercise, a list of additional toolsdeveloped by various researchers is needed, to which more tools could beadded in the future.

The basic framework could also be further developed and adapted todifferent issues of various levels of complexity. One critical next step wouldbe exploring the impact that external actors, such as international financialinstitutions, non-state actors, and rich countries, have on the resources avail-able to developing countries for the progressive achievement of ESC rights.

Admittedly, monitoring the obligation of progressive realization is noteasy. It requires grappling with difficult normative and policy issues aboutresource constraints and trade-offs as well as delving into data; not typicalareas of human rights expertise. However, the human rights movement isnow mature enough to overcome this challenge. To do so, it can build onsome of its achievements over the last two decades, particularly the greaterclarity that exists today on the normative content of each right and theincreasing ability of people in the movement to explore how a human rightsanalysis can be enriched by the perspectives of various academic disciplines(see, for example, Balakrishnan, not dated; Yamin, 2005).

Acknowledgements

I would like to thank Gina Benevento for the language editing, Syon Bhanotand Carolina Relano Pastor for help with the figures, and two anonymousreferees for their useful comments on a previous draft.

EITAN FELNERIndependent Human Rights ConsultantPlaza de la Paja 2 2dMadrid [email protected]

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