In this episode, we will focus on one
of the key overarching obligations
imposed by economic and social rights:
'progressive realisation'.
This obligation is set out
in Article 2(1) of the International Covenant
on Economic, Social, and Cultural Rights.
However, 'progressive realisation' is also found
in a number of national constitutions
including those of South Africa and Kenya.
We also see it in the case law of regional bodies
that deal with economic and social rights -
for instance, the European Committee of Social Rights.
The first question you might ask
when looking at Article 2(1) is
why are states allowed to give effect
to economic and social rights progressively over time?
Why aren't governments required to give effect
to economic and social rights straight away
like they are with civil and political rights
such as the right to life
or the right to freedom of religion?
Ultimately the concept of progressive realisation
reflects the reality that factors
like a lack of resources -
whether financial or otherwise -
can hamper the full implementation
of economic and social rights.
The UN Committee on Economic, Social and Cultural Rights
has described progressive realisation
as 'a necessary flexibility device'.
Progressive realisation is an example of how
human rights law - including economic
and social rights - is deeply pragmatic.
But progressive realisation doesn't mean
that states can postpone the full realisation
of economic and social rights indefinitely.
If a state is to comply with this duty,
there is no question of the state being able to say:
'Well, we signed up to the Covenant,
and in a few years we'll think about
putting together a plan of implementation.
A few years after that,
we might develop a policy.
And a while after that,
we might even come up with a bit of funding for it'!
The Committee on Economic, Social, and Cultural Rights
has made clear that progressive realisation requires states
to move as 'expeditiously and effectively as possible
towards the goal of full realisation
of economic and social rights'.
And the burden is on states
to prove that they have done so.
While the Committee has made clear
that: 'While the full realisation
of the Covenant rights
may be achieved progressively,
steps towards that goal must be
taken within a reasonably short time
after the Covenant comes into force
for the particular State.
These steps have to be deliberate,
concrete, and targeted as clearly as possible
towards meeting the obligations recognised in the Covenant.
Such steps may include the adoption of national strategies,
or plans of action on specific rights.
Or the collection of information about
where a state is doing well in terms of
ensuring the enjoyment of Covenant rights
and where it needs to be doing more.
In contrast to progressive realisation,
the Committee has described
the duty to take steps as immediate.
Moving back to the key focus of this episode,
progressive realisation is concerned
with progress in actual implementation of rights,
rather than with merely having policies or laws in place
which aim to further a particular right.
For instance, the introduction of an education policy
may not necessarily indicate progressive realisation
of the right to education,
unless it can be demonstrated
that the policy is having the desired effect in practice.
Progressive realisation isn't just about
expanding economic and social rights enjoyment
to a larger number of people.
It also requires ensuring increased
enjoyment by a wider range of people.
Let's take for instance a situation
where a commitment has been made
to invest in mental health services,
but there are no specific plans
to address the poorer outcomes
and lack of access to services
experienced by minority ethnic groups.
The additional investment would increase
enjoyment of the right to the highest
attainable standard of mental health overall.
But given that it doesn't support those groups
who currently experience poorer access
and outcomes in terms of mental health issues,
it raises questions about discrimination
in terms of state efforts
to progressively realise the right to health.
At this point it's enough to note
that the State needs to be sure
that its efforts to advance enjoyment
of economic and social rights
do not solely improve rights enjoyment
by some groups of society, leaving other groups behind.
Governments must also prioritise people
entitled to special assistance
like children or disabled people in terms
of the legal policy or budget measures they take
to progressively realise economic and social rights.
Of course there will be times
when it's simply isn't possible
for governments to advance
economic and social rights enjoyment.
Financial crisis, a natural disaster, a conflict -
all of these will affect a government's ability
to progressively realise economic and social rights -
or even maintain existing rights enjoyment.
Economic and social rights law is sensible -
it recognises and accommodates such situations
by setting out careful criteria for justifying
retrogressive measures or backward steps.
We'll return to this point in episode five.
Perhaps the most common challenge for states
when it comes to guaranteeing
economic and social rights
is a lack of resources.
Given that reality, it is no surprise
that Article 2(1) of the Covenant
makes a link between the realisation
of economic and social rights
and resources available to the State.
Bearing that link in mind,
we will now turn to episode four where we discuss
the second key duty imposed by
Article 2(1) of the Covenant -
the duty of states to make use
of their maximum available resources
to give effect to economic and social rights
and make them a reality.