DESCA - Antunez - Modulo 2 (2020)

Obligation of Non-Regressivity in Human Rights

Understanding the Concept of Non-Regressivity

• The obligation of non-regressivity is a consequence of states' commitment to progressively fulfill economic, social, and cultural rights. It emphasizes that states must not take steps backward in recognizing or fulfilling these rights.

• Any deliberate regressive measures require careful consideration and full justification based on the entirety of rights outlined in the pact and the context of maximizing available resources.

• Regresivity can manifest through new norms that diminish previously established rights or through declining indicators related to effective compliance with those rights, such as child mortality rates.

Evaluating Regresivity

• To assess regressivity effectively, precise indicators are necessary for each right to understand how well they are being enjoyed by the population.

• While states are generally prohibited from taking regressive actions, this prohibition is not absolute; it allows for exceptions under stringent conditions requiring justification.

Justification for Regressive Measures

• If a state implements a regressive measure, it bears the burden of proof to demonstrate that such a measure is justified. This mirrors situations involving discrimination where the state must prove legitimacy against claims of bias.

• A presumption exists against regressive measures; they are considered illegitimate unless proven otherwise by the state. The burden lies heavily on them to provide robust justifications.

Criteria for Justifying Regressions

• States must show an imperative interest necessitating any regressive action. Generic explanations will not suffice; specific evidence demonstrating strict necessity is required.

Justification for Regressive Measures in Human Rights Protection

Examination of Alternatives

• The final justification for adopting regressive measures is that they generally increase the level of protection recognized in the pact, utilizing all available resources. This must be proven despite the regressive nature of the measure.

Necessity and Reasonableness

• States must demonstrate that regressive measures are necessary and that no other alternatives exist. After implementation, these measures should be justifiable by referencing all rights outlined in the pact, adhering to a high standard of justification.

Principle of Maximum Available Resources

• A key principle derived from the discussed article is that states must dedicate maximum available resources to fulfill their obligations. This includes an explicit reference to resource availability and necessitates showing efforts made to utilize these resources effectively.

Limitations on Resource Availability

• The limited nature of available resources implies that states need to show they have made maximum efforts to use them, including seeking international cooperation when internal resources are insufficient. Jurisprudence has developed around this obligation within various UN frameworks.

Budgetary Obligations and Transparency

• For a state to attribute its failure to meet minimum obligations due to lack of resources, it must prove it prioritized using available resources effectively. This requires transparency regarding budget policies and a high burden of explanation about resource allocation decisions.

Tax Policy Considerations

• States should also consider potential revenue from tax policies as part of their available resources, with committees emphasizing the need for explanations regarding tax policy aspects as part of their obligation to maximize resource use for rights protection.

Ongoing Obligations Despite Resource Limitations

• Even if demonstrated that available resources are insufficient, states still hold an obligation to ensure broad enjoyment of relevant rights under prevailing circumstances; limitations do not absolve them from monitoring or normalizing economic, social, and cultural rights through strategic programs.

Absolute Prohibition on Regressivity

The Right to Health and Water: Non-Regressivity Principle

Key Concepts of Non-Regressivity in Human Rights

• The fulfillment of the right to health and water must not regress; essential levels of rights are immediately obligatory for states, making it inconsistent to allow regressive measures.

• It is crucial to recognize that reversibility cannot be accepted concerning minimum content, as this content requires immediate compliance, ensuring the core essence of a right remains intact.

Protecting Vulnerable Groups During Economic Hardships

• Even during economic recessions or resource limitations, states have an obligation to protect the most vulnerable members of society through low-cost programs.

• States must demonstrate how they ensure protection for vulnerable groups despite severe resource constraints, aligning with human rights approaches and commitments made upon ratifying human rights treaties.

Obligations Under International Cooperation

• Article 2 outlines that state obligations include adopting measures independently and through international assistance, particularly economic and technical support.

• This implies that states should utilize both domestic resources and those available through international cooperation to fulfill their obligations effectively.

Case Study: Guatemala's Violation of Health Rights

• A significant case within the inter-American system is highlighted—Cuscús v. Guatemala—where Guatemala was condemned for violating the right to health due to non-compliance with progressive obligations.

• Despite having public policies legislated for providing treatments for individuals affected by HIV, Guatemala failed to deliver these services adequately.