very time when it mattered most5- in the context of the worst international economic crisis
since the inception of the international human rights framework.
The change in how the International Covenant on Economic, Social, and Cultural
Rights (ICESCR) 6 deals with reductions in socio-economic rights protection marked a
conceptual shift. The Letter moved away from the CESCR’s traditional position and arguably
has more general implications for the ICESCR. The CESCR’s earlier approach afforded
States an everyday flexibility in protecting Covenant rights, but did not permit exceptional
powers or the authority to substantially weaken rights protection in times of crisis. This article
argues that the Letter to States, by contrast, endorses a new emergency regime for the
implementation of obligations, amounting to a near-suspension of some key obligations.
Such a change in the CESCR’s approach is relevant in, for example, situations of
economic, security or public health crisis, or as a result of natural disaster. In such diverse
circumstances, States may wish to reduce expenditure on rights, restrict the accessibility of
rights, or increase taxation on rights-realising goods. In any of these scenarios where a
reduction of socio-economic rights is claimed, the longstanding prohibition on ‘backwards
steps’ allows the CESCR to assess compliance with States’ international human rights
obligations.
This article begins by detailing the conceptual distinction between the ‘Business as
Usual’ and ‘accommodation’ approaches to emergency situations. This theoretical
background is then applied in the context of socio-economic rights, before proceeding to
outline what the pre-2012 approach of the ICESCR was, both generally and in terms of
reductions in rights protection. The article then turns to focus on the post-2012 situation,
beginning with an assessment of the legal and rhetorical weight of the CESCR’s Letter.
Following this, there is a specific focus on the new approach taken to backwards steps in
rights protection by the 2012 ‘Letter to States’.7 It is concluded that this new approach works
to ‘accommodate’ emergencies. The section closes with a normative assessment of this
conceptual shift. It argues that despite the reiteration of some older, general obligations such
as the minimum core, the new tests that are set down in the CESCR’s Letter are unsuitable.
They might pose a broader threat to socio-economic rights protection and there are inadequate
safeguards to their operation.
II. ‘BUSINESS AS USUAL’ VS. ‘ACCOMMODATION’
The CESCR’s change in approach to reductions in the level of protection given to socioeconomic rights can be conceptualised as a shift from a regime that was inflexible in the face
of emergencies, 8 to a more adaptive approach. Traditionally it has been accepted that
‘economic’ rights. There are a number of terms used in this area of study which are largely interchangeable; Paul O’Connell, Vindicating
Socio-Economic Rights: International Standards and Comparative Experiences (Routledge 2012) 3–4.
5

D Bilchitz, ‘Socio-Economic Rights, Economic Crisis, and Legal Doctrine’ (2014) 12 International Journal of Constitutional Law 710, 719.

6

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976, 993
UNTS 3).
The Letter has been referred to as an ‘Open Letter’ and a ‘Letter to States’ in the literature. The Letter’s designation on the UN’s webpages
has changed from ‘Open Letter on Economic, Social and Cultural Rights in the Context of the Economic and Financial Crisis’ to ‘Letter by
the Chairperson of the Committee on austerity measures’ (a change highlighted by; Aoife Nolan (in discussion, ESRAN-UKI workshop,
Swansea, April 2015)). This change may indicate a desire of the CESCR’s to focus the Letter upon ‘austerity’ rather than ‘economic and
financial crisis’ more broadly. Differing titles available at
<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12173&LangID=E> and
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=68> respectively.
7

The terms ‘emergency’ and ‘crisis’ are used interchangeably here to reflect their general interchangeability in scholarship and public
discourse.
8

2

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