Public Budget Analysis for the Realization of Economic, Social and Cultural Rights:
Conceptual Framework and Practical Implementation
Olivier De Schutter*
I. Introduction
The International Covenant on Economic, Social and Cultural Rights commits the States parties to
"take steps, individually and through international assistance and co-operation, especially economic
and technical, to the maximum of [their] available resources, with a view to achieving progressively
the full realization of the rights recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures".1 This "progressive realization" clause is typically
seen as a weakness -- as an indication that economic, social and cultural rights are still undervalued in
the international human rights regime in comparison to the more "classical" civil and political rights.
This chapter suggests that it can instead be a strength. With this provision, how States mobilize
resources and how they define their spending priorities become human rights issues. Such decisions
cannot be left to the arbitrary and capricious choices of States : they can and must be subject to a
searching inquiry by courts and other bodies in charge of enforcing the Covenant on Economic, Social
and Cultural Rights.
Thus, what looks like an infirmity may become a powerful tool, allowing human rights bodies to
scrutinize public budgets. For the potential of the "progressive realization" clause to be fulfilled
however, the ambiguities obstructing its use should be dissipated. The Covenant imposes on States
that they seek to mobilize resources, both domestically and internationally, and that they dedicate
sufficient budgets to the realization of economic, social and cultural rights.2 But what, exactly, does
this mean? Unless we define more precisely the implications of this vague wording, allowing domestic
actors and the Committee on Economic, Social and Cultural Rights to address issues of taxation and
spending in the light of the Covenant's requirements, we run the risk of this essential contribution of
the Covenant remaining a dead letter: the duty of progressive realization, as a duty to design public
budgets and to implement macro-economic policies with a view to fulfilling economic, social and
cultural rights, will either be ignored entirely, or considered in a purely ad hoc fashion, raising the
suspicion that any such assessment will be biased and the debate politicized. In the absence of a
clearer understanding as to the content of this duty, the Committee on Economic, Social and Cultural
Rights may be tempted to retreat to safer waters (focusing, say, on the need to combat discrimination
or to protect control of indigenous peoples over their lands and territories, rather than on levels of
corporate taxes or of investments in the educational system of the State concerned); and any
suggestion that independant monitoring bodies, including courts, might have some role to play in
assessing budgetary choices, will be dismissed as fantasy.3

*

Olivier De Schutter is professor of law at the University of Louvain (UCL) and at SciencesPo (Paris). A Member of the UN
Committee on Economic, Social and Cultural Rights, he was between 2008 and 2014 the UN Special Rapporteur on the right
to food. This contribution traces its origins back to a seminar organized in Geneva in February 2016 with Members of the
Committee on Economic, Social and Cultural Rights, with the support of the Friedrich-Ebert Foundation. The author is
grateful to the participants in the workshops held at Yale Law School on 29 November 2016 and at the London School of
Economics and Political Science (Law and Development Research Group) on 13 January 2017 for the very constructive
comments received on those occasions.
1
G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force
Jan. 3, 1976 (Art. 2 (1)).
2
While the emphasis here is on financial resources, it is acknowledged that other resources, including human and
technological, should be mobilized to that effect. See Robert E. Robertson, "Measuring State Compliance with the Obligation
to Devote the 'Maximum Available Resources' to Realizing Economic, Social and Cultural Rights", Human Rights Quarterly,
vol. 16, No. 4 (1994), pp. 693-714.
3
See, e.g., Michael J. Dennis and David P. Stewart, ‘'Justiciability of Economic, Social, and Cultural Rights: Should There
Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’, American
Journal of International Law, vol. 98, No. 3 (2004), pp. 462-515.

2

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