Unwinding Retrogression: Examining the Practice of the Committee on Economic, Social and Cultural Rights?

Abstract

The doctrine of non-retrogression used by the United Nations Committee on Economic, Social and Cultural Rights is apt for the current moment of crisis and withdrawal from human rights standards. It addresses instances where the State is responsible for backwards steps in human rights protection. However, the doctrine has rarely been used by the Committee as it is paralysed within conceptual confusion and practical ambiguity. This article unravels those difficulties and highlights ways forward. It gives a brief history of non-retrogression and identifies what backwardness the doctrine seeks to regulate, which actions and inactions of the State it defines as culpable, how the multiple steps of the doctrine are to be proved and where the doctrine fits within the Committee’s processes of scrutiny. Overall, it is argued that the significant potential of the doctrine is constrained by its confusions and that urgent reforms are needed to ensure its use and effectiveness.

Austerity in the midst of a pandemic: Pursuing accountability through the socio-economic rights doctrine of non-retrogression

“…95 As Ben Warwick notes, the terminology contains an ambiguity as to whether the measures themselves must be deliberate (but not necessarily the retrogressive effects thereof), or whether the measure must be 'deliberately constructed to be retrogressive'. 96 He points out the conceptual and evidential complexities entailed in attributing and showing 'deliberateness' in relation to retrogression on the part of the state. This is due to the complex, interrelated functioning of a range of public bodies in the context of fiscal and budgetary decision-making.…”