Applying an International Human Rights Framework to State Budget Allocations

Rights and Resources

Rory O'Connell, Aoife Nolan, Colin Harvey, Mira Dutschke, Eoin Rooney

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781136026324
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

Human rights based budget analysis projects have emerged at a time when the United Nations has asserted the indivisibility of all human rights and attention is increasingly focused on the role of non-judicial bodies in promoting and protecting human rights. This book seeks to develop the human rights framework for such budget analyses, by exploring the international law obligations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in relation to budgetary processes. The book outlines international experiences and comparative practice in relation to economic and social rights budget analysis and budgeting.

The book sets out an ICESCR-based methodology for analysing budget and resource allocations and focuses on the legal obligation imposed on state parties by article 2(1) of ICESCR to progressively realise economic and social rights to 'the maximum of available resources'. Taking Northern Ireland as a key case study, the book demonstrates and promotes the use of a 'rights-based' approach in budgetary decision-making.

The book will be relevant to a global audience currently considering how to engage in the budget process from a human rights perspective. It will be of interest to students and researchers of international human rights law and public law, as well as economic and social rights advocacy and lobbying groups.

Part One

1 Contexts

Introduction

This introductory chapter introduces the three elements that are fundamental to understanding the approach in this book to economic and social rights-based budget analysis work: international human rights law, budgets and human rights-based budget analysis, and our local jurisdictional focus (Northern Ireland).

This chapter first discusses the evolution of human rights law, highlighting in particular debates around economic and social rights (ESR), and the role of non-judicial institutions in protecting rights. The chapter then turns to the issues of budgets and human rights-based budget analysis. At this stage, we explain our reasons for choosing the International Covenant on Economic Social and Cultural Rights (ICESCR) as our key analytical framework and stress the importance of international human rights in the context of the global economic crisis. After the discussion of budgets and the choice of ICESCR, the chapter presents Northern Ireland as the jurisdictional focus chosen for this work. We explain the reasons for this choice. We proceed to discuss the history of Northern Ireland, as well as the experience of Northern Ireland as a devolved region within the United Kingdom. The chapter concludes with a consideration of the political institutions of this jurisdiction.

The evolution of human rights law and the emergence of ESR

The modern language of international human rights law can trace its antecedents among numerous traditions, localities and times.¹ For the purposes of understanding the role of economic and social rights and also the idea of budget analysis, the late-eighteenth-century revolutions in North America and France are significant. These revolutions produced numerous innovations in politics and law; they were important in the evolution of constitutional law and formed one of the streams of thought that would produce international human law documents in the twentieth century. Among the revolutionary texts of this period were the diverse bills of rights of the different American states, the French Declaration of the Rights of Man and the Citizen 1789, the US federal Bill of Rights 1791 and the various French revolutionary declarations of the 1790s.

The American and French bills of rights were mainly, though not exclusively, liberal in character. Thus, they tended to focus on individual rights to non-interference by state agents: the right to be free from arbitrary execution, arrest, censorship, or expropriation. These were the ‘rights of man’ – or what we now call civil rights. Alongside these civil rights were a number of political rights; these were given especial prominence in the French Declaration. These political rights, although emerging in the same texts, were different from the individualistic civil rights. Political rights are necessarily collective in nature.²

Despite these differences, it has become commonplace to associate civil and political rights. Sometimes they are identified as the ‘first generation’ of rights; these first generation rights are then distinguished from the ‘second generation’ economic and social rights and the ‘third generation’ rights of peoples.³ This language of generations has proven deeply problematic and even harmful to the principle of the indivisible nature of all human rights. The language of ‘generations’ suggests a neat chronological development which is at best an oversimplified account; furthermore the use of these distinctions may create a sense of hierarchy between the different generations.

The American and French revolutions also give us examples of different methods for the protection of rights. In both revolutions, the ideal was the political protection of rights; that is to say, rights would be best protected by a representative government, by citizens, and in extreme cases, by the right to rebel against tyranny. The French revolutionaries in particular were distrustful of judges, seeing them as frequently reactionary.⁴ This predominantly political mode of protection remained commonplace in France but was quickly supplemented by a different innovation in the US. In 1803, the US Supreme Court asserted a power of judicial review over legislation, to assure its compatibility with the constitution.⁵ This would lead to a much greater emphasis on the judicial protection of constitutional provisions, including constitutional rights, in the US tradition. By contrast, the French continued to rely on political processes and to distrust judges.

These early constitutional developments are important for more than simply introducing the language of civil and political rights, or for highlighting different approaches to the protection of rights. A narrow focus on modern international human rights law obscures the historical reality that questions of budgets, finances and taxation have been critical to several of the important stages in the evolution of constitutional government.⁶ The development of the English Parliament was closely linked to disputes about taxation powers, especially in the seventeenth century; the American revolutionaries’ rallying cry was ‘no taxation without representation’, and it was a fiscal crisis that precipitated the French Revolution of 1789. The very innovation of a public budget originated in the fiscal crises of pre-Revolutionary France.⁷ Later, the French Declaration of the Rights of Man and of the Citizen 1789 dealt with budgetary matters in several of its articles.

These developments in the revolutionary era are landmarks in terms of civil and political rights, the emergence of judicial and political means of protecting rights and even innovations in terms of budgets. However, an important element was largely missing. The late-eighteenth-century documents did not, for the most part,⁸ address the economic and social rights that are the main concern of this book. Concern with economic and social justice pre-dates the late-eighteenth-century revolutions; Carozza discusses how the sixteenth-century missionary Las Casas was concerned with labour and health rights.⁹ But it is the nineteenth century that sees the emergence of economic and social issues as claims of rights. They emerge as part of myriad nineteenth-century reform and protest movements; these movements included socialists, trade unionists and other reformers, who stressed working conditions, union activity, education, health, social security and welfare. The struggles of these reformers were complemented, ironically, by policies of more conservative mainstream political parties and politicians such as Bismarck in Germany and the Liberal Party in the United Kingdom.¹⁰ Even the Catholic Church, which had condemned liberalism,¹¹ urged the need to protect the rights of workers.¹² While these policy proposals may well have been intended to undermine revolutionary agitation, they also served to consolidate the notion that economic and social claims could be conceived of as entitlements and therefore, perhaps, rights. Such developments were not unique to Europe, but also took place in the US (in the guise of progressivism) and in Latin America.¹³

In the early twentieth century these economic and social interests were increasingly recognized as rights. The turmoil produced by the First World War – the collapse of empires and the rise of a communist regime – was the catalyst for important international and national developments.

At the international level, the end of the First World War witnessed two significant innovations. The International Labour Organization (ILO) was created alongside the League of Nations. The ILO owed its origins to the efforts made by workers and unions during the First World War, and responded to demands by labour leaders for an international charter of labour rights.¹⁴ The ILO was seen as both a reward for workers’ sacrifices during the War, but also a bulwark against communism.¹⁵ Subsequently the ILO would come to use the language of labour rights: the 1944 Declaration of Philadelphia speaks of freedom of expression and association and the right to pursue material wellbeing and spiritual development.¹⁶ The use of rights language has become even more prominent in the work of the ILO since then.¹⁷ Also at the international level, the system of minority rights treaties adopted in the new countries formed from the debris of defeated imperial powers recognized minority rights including important minority cultural rights (religion, language, and education).¹⁸

Returning to national level developments: the Mexican Constitution of 1917 was the first to recognize economic and social interests as constitutional rights.¹⁹ Other texts followed suit, such as the Soviet Union’s Declaration of the Rights of Working People and the Exploited. Later interwar constitutions such as the Weimar 1919 Constitution and the Irish 1937 Constitution included economic and social interests and, in some cases, treated these as rights. The Weimar Constitution included detailed provisions on education and the economy. The Irish Constitution also included provisions on educa tion and the economy, carefully distinguishing between enforceable rights (education) and non-enforceable guiding principles (‘Directive Principles’).²⁰ During the Second World War, President Roosevelt highlighted the importance of economic and social rights in two important State of the Union addresses. In the first, he proclaimed the need to recognize the ‘four freedoms’, which included freedom from want and freedom from fear;²¹ while in a subsequent State of the Union address he announced the need for a Second Bill of Rights, one that would complete the 1791 Bill of Rights with its focus on civil and political rights. With an eye to the emergence of authoritarian and totalitarian regimes after the First Word War, Roo...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• List of abbreviations
• List of tables and figures
• Preface
• PART ONE
• PART TWO
• Bibliography
• Index