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Not Fit For Purpose? Human Rights in Times of Financial and Economic Crisis

Article  in  European human rights law review · January 2015

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Aoife Nolan1

The final version of this article was published in the European Human Rights Law Review
(2015), No.4, 358-369

This article responds to a key event, or rather two key events – the financial and economic
crises that kicked off in 2007-2008. It addresses a conundrum that became clear as the
impacts of both the crises themselves, and state responses to them developed. That
conundrum is this: while there had never been such extensive global recognition accorded to
human rights language and concepts as at the point when the crises broke, human rights did
not form a central – or even a significant part – of national and supranational policymakers’
post-crisis analyses or remedies. Nor did they serve as barriers in terms of protecting the
socially vulnerable from the negative impacts of the crises and measures taken in response to
them. This raises two questions that I will address here: first, why was this? And, second,
what can we learn from this contemporary experience in order to make human rights
meaningful in future times of crisis?

Introduction

This article responds to a key event, or rather two key events – the financial and economic
crises that kicked off in 2007-2008. It addresses a conundrum that became clear as the
impacts of both the crises themselves, and state responses to them developed. That
conundrum is this: while there had never been such extensive global recognition accorded to
human rights language and concepts as at the point when the crises broke, human rights did
not form a central – or even a significant part – of national and supranational policymakers’
post-crisis analyses or remedies.2 Nor did they serve as barriers in terms of protecting the

1
Aoife Nolan is Professor of International Human Rights Law at the School of Law, University of Nottingham.
Email: [email protected]. This article emerges from the author’s inaugural lecture on 5 February
2015 on ‘Human Rights in Times of Economic Crisis’. It has benefited from comments provided by participants
at the ‘New Directions in Socio-economic Rights Research and Litigation’ Workshop, University of
Nottingham, 20 March 2015 and the Economic and Social Rights Academic Network Research Workshop,
University of Swansea, 24 April 2015.
2
To quote Saiz: ‘despite the obvious human rights dimensions of the crisis, human rights have barely figured in
the diagnoses or prescriptions proposed by the international community'. (I. Saiz, Rights in Recession?
Challenges for Economic and Social Rights Enforcement in Times of Crisis', (2009)1 Journal of Human Rights
Practice, 277, 280).

1
socially vulnerable from the negative impacts of the crises and measures taken in response to
them. This raises two questions that I will address here: first, why was this? And, second,
what can we learn from this contemporary experience in order to make human rights
meaningful in future times of crisis?

In what follows I will first consider the crises themselves and provide a brief overview of
their impacts in terms of human rights enjoyment. This will include the human rights impacts
caused by national and supranational responses to the crises. I will then move on to consider
the state of the human rights framework at the time of the crises and consider some of the
reasons why human rights advocates might have expected human rights to have played a
more significant, effective role in responding to the crises than they did. I will conclude by
exploring why human rights have not constituted a key tool for social protection in the recent
context. I will argue that, while some of the reasons that the crises had the impacts they did
were ‘new’ and specific to the particular economic, political and regional context in which
they arose, other explanations are attributable to longer-standing weaknesses and challenges
in relation to the human rights framework.

Defining ‘the Crises’ and Identifying Their Human Rights Impacts

Let me start by making clear what I am talking about – what are the crises? In simple terms,
the global financial crisis, the start of which was signalled by the American sub-prime
mortgage collapse, effectively resulted from a combination of a failure of risk models to
assess financial products underpinned by serious long-term shortcomings related to the
financial system. These shortcomings included financialisation, inadequate regulation and
mismanagement of intentionally abstruse institutions. The economic crisis, which goes
beyond crises in relation to the financial system per se – albeit that the financial crisis
certainly contributed to the economic one – has had a number of causes. These included
recessions brought about by housing bubble collapses in the US, Ireland and Spain,
recessions partially caused by retrenchment in banks leading to a cut in credit in the
economy, as well as sovereign debt crises – some of which stemmed from States taking on
banking losses in order to shore up their banks.

The timing of the crises could not have been better in terms of creating a perfect storm for
human rights. They created, and exacerbated, jobs, food and housing crises. The data are by
any standards remarkable. According to the International Labour Organisation, in the 51
countries for which data were available, at least 20 million jobs were lost between October

2
2008 and the end of the following year.3 Almost 43 million further workers were deemed to
be at-risk of exclusion from the labour market.4 Figures from 2012 showed that a quarter of
the active population in Spain was jobless.5 By August 2013, Eurostat was reporting that
youth unemployment in Spain had reached a new high of 56.1%.6

While the global food prices crisis had peaked by June 2008 its effects were still being felt
when the financial system went into turmoil; an estimated 40 million people were pushed into
hunger in 2008, bringing to 963 million the number of hungry people worldwide at the end of
that year.7 As of June 2009 that number had risen to 1.02 billion.8 The housing market crisis
at the root of the financial and economic crises, coupled with growing unemployment,
induced a sharp increase in evictions as a result of non-payment of mortgages, foreclosures
and home repossessions in many countries.9 In addition, evictions from rental housing (in the
private and/or social housing sector) have increased as a result of the crisis in countries
including Greece, Italy, Portugal, Spain, England, Denmark, the Czech Republic, Poland and
France.10

An October 2014 report by UNICEF showed that in 23 of 41 of the world’s most affluent
countries, child poverty had increased since 2008, with rates in Ireland, Croatia, Latvia,
Greece and Iceland, rates increasing by over 50 per cent.11 In Greece, 2012 saw median
household incomes for families with children sank to 1998 levels – a loss of ‘the equivalent

3
International Labour Organization/International Institute for Labour Studies, World of Work Report 2009: The
Global Jobs Crisis and Beyond (Geneva: International Institute for Labour Studies, 2009), vii.
4
Ibid, 1.
5
CESR, ‘Spain’, Factsheet No.12 (2012) http://www.cesr.org/downloads/FACT%20SHEET%20SPAIN.pdf
[Accessed May 31 2015].
6
S. Burgen, ‘Spain Youth Unemployment Rate Reaches Record 56.1%’ (August 30 2013), The Guardian
http://www.theguardian.com/business/2013/aug/30/spain-youth-unemployment-record-high [Accessed May 31
2015]. As of May 2015, youth unemployment in Spain stood at 50.1%. (Eurostat, ‘Unemployment Statistics’,
http://ec.europa.eu/eurostat/statistics-
explained/index.php/Unemployment_statistics#Youth_unemployment_trends [Accessed May 31 2015].
7
Special Rapporteur on the Right to Food, ‘The Right to Food and the Financial and Economic Crisis:
Submission to the UN Conference on World Financial and Economic Crisis, UN General Assembly, 24-26 June
2009’, http://www2.ohchr.org/english/issues/food/docs/NoteCrisisFinal26062009.pdf [Accessed May 31 2015].
8
Ibid.
9
Council of Europe (COE) Commissioner for Human Rights, ‘Safeguarding Human Rights in Times of
Economic Crisis’, Issue Paper published by the Council of Europe Commissioner for Human Rights
(Strasbourg: Council of Europe, 2013), http://www.enetenglish.gr/resources/article-
files/prems162913_gbr_1700_safeguardinghumanrights_web.pdf [Accessed May 31 2015], 19, citing Feantsa
‘On The Way Home? FEANTSA Monitoring Report on Homelessness and Homeless Policies in Europe’
(2012).
10
Feantsa, above n9, 33.
11
UNICEF, ‘2.6 million More Children Plunged into Poverty in Rich Countries during Great Recession’,
http://www.unicef.org/media/media_76447.html [Accessed May 31 2015].

3
of 14 years of income progress’. 12 As UNICEF noted, ‘by this measure Ireland, Luxembourg
and Spain lost a decade; Iceland lost 9 years; and Italy, Hungary and Portugal lost 8’. 13 This
is a severe step backwards in terms of children’s enjoyment of rights related to their
development, survival and participation.

Crucially, the damage done to human rights realisation is not only attributable to specific
crises-related outcomes such as turmoil on markets and labour opportunities. It also results
from a ‘creeping’ of fiscal austerity measures14 and excessive economic contraction in terms
of public expenditure beyond those countries/economies that have dominated the financial
headlines since 2008.15 While most governments affected by the crisis introduced, stimulus
programmes (fiscal expansion) and ramped up public spending in 2008-9, by 2010, premature
expenditure contraction – in the form of ‘austerity’ measures – became widespread beyond
countries in the direct firing line. This public expenditure consolidation through austerity
measures, forecast to increase to reach 132 countries in 2015, was expected to intensify at
least into 2016.16 As the Office of the UN High Commissioner for Human Rights has said,
‘austerity is now being applied for “pre-emptive reasons” i.e. fiscal deficits are being reduced
to avert negative reactions from financial markets.’17 This is despite the growing evidence
that austerity has failed on its own terms; it has not in fact proved the economic growth
panacea that it was presented as.18

12
UNICEF, ‘Children of the Recession: The Impact of the Economic Crisis on Child Well-being in Rich
Countries’, Innocenti Report Card No.12 (Florence: UNICEF, 2012), 4, http://www.unicef-
irc.org/publications/pdf/rc12-eng-web.pdf [Accessed May 31 2015].
13
UNICEF, above n12.
14
In general, austerity measures fall into four types, each with its own unique consequences for the enjoyment
of human rights: a) public budget contractions affecting social spending, b) regressive taxation measures,
c) labour market reforms, and d) structural reforms to pension plans. (COE Commissioner of Human Rights,
above n9, 16).
15
See, e.g., I. Ortiz, J. Chai and M. Cummins, Austerity Measures Threaten Children and Poor Households:
Recent Evidence in Public Expenditures from 128 Developing Countries (New York, NY: UNICEF, 2011). This
study found that 70 developing countries (or 55 per cent of the study sample) reduced total expenditures by
nearly 3% of GDP, on average, during 2010, and 91 developing countries (or more than 70 per cent of the
sample) are expected to reduce annual expenditures in 2012. Moreover, comparing the 2010-12 and 2005-07
periods suggested that nearly one-quarter of developing countries appeared to be undergoing excessive
contraction, defined as cutting expenditures below pre-crisis levels in terms of GDP. The study also highlights
that the scope of austerity measures under consideration in developing countries seems to have widened
considerably since 2010.
16
See I. Ortiz and M. Cummins, ‘Age of Austerity; A Review of Public Expenditures and Adjustment Measures
in 181 Countries’ (Initiative for Policy Dialogue and the South Centre Working Paper, May 2013), i.
17
OHCHR, ‘Report on Austerity Measures and Economic and Social Rights’ (2013)
http://www.ohchr.org/Documents/Issues/Development/RightsCrisis/E-2013-82_en.pdf [Accessed May 31
2015].
18
See, e.g., G. Zezza, ‘The Impact of Fiscal Austerity in the Eurozone’ (2012) Review of Keynesian Economics
37; J. Stiglitz, ‘Crises: Principles and Policies’ in J. Stiglitz & D. Heymann (eds), Life After Debt: The Origins

4
While negative impacts on the rights to social security, adequate housing and the highest
attainable standard of health are perhaps the most glaring results of the crises and state
responses to them, civil and political rights have certainly not escaped unscathed: cuts to
legal aid and judicial system budgets;19 increases in legal fees;20 cuts to services and support
for disabled people;21 plummeting drops in living standards – these involve and have clear
implications for rights such as the rights to a fair trial, freedom from inhuman or degrading
treatment, and the principle of human dignity.

In Greece, funding for mental healthcare decreased by 20% between 2010 and 2011, and a
further 55% between 2011 and 2012. This was at a time when findings from population
surveys suggested ’a 2.5 times increased prevalence of major depression, from 3.3% in 2008
to 8.2% in 2011’, and ‘a 36% increase between 2009 and 2011 in the number of people
attempting suicide in the month before the survey, with a higher likelihood for those
experiencing substantial economic distress.’22 As such, a clear threat to the right to life.
Spain’s December 2014 public security law, which been heavily criticised as an attempt by
the conservative government to muzzle protests over its handling of Spain’s financial crisis,
is a clear limitation on the rights to freedom of expression and association.23 Cuts to
programmes and services focussed on specific minority groups – such as those made in
Ireland in relation to the Traveller ethnic minority – inevitably have an effect on cultural
rights.24

Despite the rhetoric of politicians both in the UK and other jurisdictions, we are very much
not all in it together. As the UN Special Rapporteur on Extreme Poverty and Human Rights
stated in 2009: ‘Social economic indicators show that the current global financial crisis is
having unparalleled negative consequences on the enjoyment of human rights for many

and Resolutions of Debt Crisis, IEA Conference Volume 2014 (New York: Palgrave MacMillan, 2014) 40; and
P. Krugman, ‘The Austerity Debacle’ (January 229 012), New York Times.
19
COE Commissioner for Human Rights, above n9, 20.
20
Ibid.
21
See, e.g., See, e.g., H. Hauben, M. Coucheir, J. Spooren, D. McAnaney, C. Delfosse, ‘Assessing the Impact of
European Governments’ Austerity Plans on the Rights of People with Disabilities’ (European Foundation
Centre, 2012).
22
A. Kentikelenis, ‘Greek Health Crisis: From Austerity to Denialism’ (2014) 383(9918) The Lancet 748.
23
‘Spain’s New Security Law Sparks Protests across the Country’ (December 20 2014), The Guardian,
http://www.theguardian.com/world/2014/dec/20/spain-protests-security-law-parliament, [Accessed May 31
2015]. Emphasis added by author.
24
See, e.g., Pavee Point, ‘Travelling with Austerity: Impacts of Cuts on Travellers, Traveller Projects and
Services’ (2012), www.paveepoint.ie/tempsite3/wp-content/uploads/2013/10/Travelling-with-Austerity_Pavee-
Point-2013.pdf, [Accessed May 31 2015]. Amongst other things, this report highlights the impact that the post-
2008 ‘disinvestment’ in the Traveller Community, an Irish ethnic and cultural minority, has had on Traveller
education and community development.

5
people around the world, in particular for those living in situations of poverty and extreme
25
poverty’. And this reality has not changed since then. Research demonstrates that the
poorer, more powerless and less visible populations – those who already experienced lower
levels of human rights enjoyment than other social groups – have been hit hard by the job
losses, poverty, and the economic and political upheaval that have followed the global
financial collapse.26

This whistle-stop tour of the human rights impacts of the crises does not even start to reflect
their more long-term human rights impacts. Nor does it begin to address the question of how
the crises – and particularly the widespread socialisation of debt evident in those countries
that have received loan assistance – will have on the life opportunities and outcomes of
current children and young people and future generations in human rights terms.27.

Exploring the Crises-related ‘Positives’ of Human Rights

I turn now to the second part of this article, relating to the international human rights
framework as it existed and how it developed during the lifetime of the crises. I want first to
highlight some features of that framework that would seem to have augured well for human
rights playing a meaningful role in responding to the crises.

Foremost here is a recognition of what human rights are. As we have developed our
understanding of human rights and their connection with human dignity, we have seen
significant progress in terms of the ‘scope’ of human rights law. No longer simply reflective
of a classical liberal theory obsession with property rights and the protection of the worthy
‘few’ against a greedy and intrusive state, the international community’s (which I take to
include civil society and states) conception of human rights has expanded to embrace issues
of the many – issues that are crucial to the varied and multifaceted challenges faced by

25
M. Sepúlveda, ‘Report of the Independent Expert on Extreme Poverty and Human Rights: The Social
Protection System and the Financial and Economic Crisis, UN Doc. A/64/279 (2009).
26
See, e.g., R. Heltberg, N. Hossain and A. Reya (eds.), Living through Crises: How the Food, Fuel, and
Financial Shocks Affect the Poor (Washington, DC: World Bank, 2012).
27
From a somewhat different perspective, Mary Dowell-Jones warns that blocking current austerity measures on
the grounds that they violence current enforcement of human rights may mean the problem of addressing public
debt is pushed onto the shoulders of future right-holders. (M. Dowell-Jones, ‘The Economics of the Austerity
Crisis: Unpicking Some Human Rights Arguments’ (2015) 15(2) H.R.L.R. 193, 199. However, in countries
where the repayments of ‘bail-out’ agreements are set to be multi-generational (e.g., Ireland and Greece), this is
happening anyway. For an example of a national response to the financial crisis that did not result in
socialisation of debt and was ‘largely human rights-compliant’, see J. Boholavasky, ‘Report of the Independent
Expert on the Effects of Foreign Debt and Other Related International Financial Obligations of States on the
Full Enjoyment of All Human Rights: Mission to Iceland (8-15 December 2014), UN Doc. A/HRC/28/59/Add.1
(2015).

6
humans in their lived experience. Gender-based violence,28 the legal capacity of people with
disabilities,29 the cultural rights of indigenous people30 – all of these are now captured by
human rights. From the perspective of the financial and economic crises, perhaps the most
significant thing we have seen in terms of the expanded ‘scope’ of human rights has been the
increased prominence accorded over the last twenty years to economic and social rights and
the conceptualisation and recognition of poverty as being a human rights issue.

The second key ‘positive’ of human rights concerns its mechanisms. Both before and during
the crises we saw an expansion of accountability mechanisms in the form of international
processes such as the Universal Periodic Review and other initiatives enabling complaints to
be brought about human rights violations to various UN human rights treaty-monitoring
bodies. For instance, in 2008, we saw the adoption by the Human Rights Council of an
instrument providing for a complaints mechanism to the International Covenant on
Economic, Social and Cultural Rights (ICESCR).31 This marked a much-desired equality of
arms at the international level between civil and political rights and economic, social and
cultural rights.32 At the domestic level too, the last two decades have seen a veritable
explosion in constitutional and legislative protections for human rights, as well as a massive
increase in national human rights institutions. In the UK alone for example, there are three
human rights commissions and four children’s commissioners.33

Moving beyond legal standards and mechanisms, we see growing awareness in many if not
most countries of the reach and potential of human rights. While human rights awareness is
certainly not uniform or universal, it is far more developed now than it ever has been in the
past. This is true both amongst elite actors like lawyers and judges and within grassroots
social movements. The growing ‘prevalence’ of human rights is evidenced to some degree by
increased reference to them globally in the media, in political discourse and party manifestos

28
See, e.g., Committee on the Elimination of All Forms of Discrimination against Women, ‘General
Recommendation No. 19 on Violence against Women’, UN Doc. A/47/38 at 1 (1992).
29
See the Convention on the Rights of Persons with Disabilities, Article 12; Committee on the Rights of
Persons with Disabilities, ‘General Comment No.1 on Article 12: Equality before the Law’, UN Doc.
CRPD/C/GC/1 (2014).
30
See, e.g., UN Declaration on the Rights of Indigenous Peoples.
31
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
32
As of April 2014 and May 2008, complaints about violations of economic, social and cultural rights can also
be brought directly to the Committee on the Rights of the Child and the Committee on the Rights of Persons
with Disabilities, respectively.
33
These are the Children’s Commissioners for England, Scotland and Wales, the Northern Ireland
Commissioner for Children and Young People, the Equality and Human Rights Commission, the Scottish
Human Rights Commission and the Northern Ireland Human Rights Commission.

7
– albeit certainly not always in positive terms as we see in recent debates in the UK about the
Human Rights Act and the role of the European Court of Human Rights in Strasbourg.34

Indeed, to some degree the crises appear to have galvanised human rights advocacy and
political discourse – from the indignados in Spain to the more recent right to water
campaigners in Ireland – all of whom use rights language to some degree in challenging
specific impacts of the crises, often as part of broader arguments premised on social justice
and poverty reduction. A key part of Syriza’s 40 point programme in Greece for instance,
was to bring about constitutional reforms to guarantee protection of the rights to education,
health care and the environment.35 Internationally, civil society groups and others who would
not have overtly used human rights language before have turned to it in this time of crisis.36

The last positive I would want to highlight here are the steps taken of late in terms of
addressing the enormous and ongoing implementation gap between human rights standards
on paper and in practice. Recent years have seen significant developments in terms of new
human rights advocacy approaches and methodologies that are having a concrete impact in
terms of human rights realisation in many contexts. Tools such as human rights-based budget
analysis37 and indicators38 are making human rights standards more concrete both for human
rights advocates and, more importantly, for rights-bearers and those responsible for giving
effect to rights. And recalling the mechanisms referred to above, but going beyond those to
embrace litigation at state level, an ever-more refined use of strategic litigation is leading to

34
From a UK perspective, see, e.g., ‘David Cameron Calls for Reform of European Court of Human Rights’
(January 25 2012), The Guardian, http://www.theguardian.com/law/2012/jan/25/david-cameron-reform-
european-court [Accessed May 31 2015]; ‘UK's threat to quit “led Euro court to back down on votes for
prisoners”: Strasbourg runs scared as it puts issue off until September’ (September 26 2014), Daily Mail,
http://www.dailymail.co.uk/news/article-2770227/UK-s-threat-quit-led-Euro-court-votes-prisoners-Strasbourg-
runs-scared-puts-issue-September.html [Accessed May 31 2015]; and The Conservatives, ‘The Conservative
Party Manifesto 2015’, https://s3-eu-west-1.amazonaws.com/manifesto2015/ConservativeManifesto2015.pdf
[Accessed May 31 2015], 60 and 73..
35
See, e.g., ‘Syriza’s Original 40 Point Programme’ http://www.zerohedge.com/news/2015-01-29/syrizas-
original-40-point-manifesto; Syriza, ‘Thessaloniki Programme’, http://www.syriza.gr/article/id/59907/SYRIZA-
--THE-THESSALONIKI-PROGRAMME.html#.VMaN_EbfXCR (September 2014) [Accessed May 31 2015].
36
Two examples of this common trend include the European Anti-Poverty Network in Spain, and the Child
Poverty Action Group in the UK, both of which have adopted a more expressly rights-based approach to
advocacy since 2007.
37
For an overview of human rights-based budget analysis, see the resources at the International Budget
Partnership website, www.internationalbudget.org [Accessed May 31 2015].
38
For a useful overview of the development of indicator work at the international level, see OHCHR, ‘Human
Rights Indicators: A Guide to Measurement and Implementation’ (2012),
http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf, [Accessed May 31 2015].

8
an opening up of human rights issues in the courts in many countries.39 All of these are
positive signs in terms of the potential of human rights in times of crisis.

So, we have standards, we have mechanisms, we have better human rights awareness than
ever and we have advocacy approaches. We have all of this this and yet human rights
ultimately played a negligible role in preventing and challenging the impacts of the financial
and economic crises on the most vulnerable in global society. Why was this? And, building
on contemporary problems, what can we do to ensure that human rights play a more
significant role in future times of crisis? In this the third part of this article, I propose four
answers to these questions.

The Failures of Human Rights and Lessons We Must Learn

The first answer relates to the state-centric nature of the human rights framework: human
rights are traditionally understood to impose obligations on states. Admittedly, we have seen
recent efforts to delineate the (non-legally binding) corporate responsibility of business in
relation to human rights.40 Furthermore, some human rights treaties do make reference to the
duties of some non-state actors (for instance the UN Convention on the Rights of the Child
talks about the responsibilities of parents)41 and a number of UN treaty monitoring bodies
have addressed the human rights-related duties and responsibilities of non-state actors to
some extent in their work. However, the state remains the key actor for the purposes of
international human rights law.42

The failure of human rights law to engage effectively with non-state actors is a huge issue
when we consider the central part that non-state actors, like the EU and the International
Monetary Fund have played in relation to the causation and the design of responses to the
crises. In the post 2007 context, this has been perhaps most strongly evidenced by the role of
the IMF, European Commission and European Central Bank troika with regard to the

39
Useful examples of the now very extensive literature on, and practice of, strategic litigation are provided by V
Gauri and D Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the
Developing World (New York, Cambridge, 2008); R Gargarella et al (eds), Courts and Social Transformation
in New Democracies (Aldershot, Ashgate, 2006); CRIN, ‘Children’s Rights: A Guide to Strategic Litigation’
(2008), http://crinarchive.org/resources/infoDetail.asp?ID=17127 [Accessed May 31 2015; and Interights,
‘Making a Difference to Human Rights: A pilot framework for assessing the impact of Interights’ Strategic
Litigation’ (2013), file:///C:/Users/User/Downloads/2013_11_10_IA%20Report.pdf [Accessed May 31 2015].
40
Guiding Principles on Business and Human Rights: Implementing the United Nations “Respect, Protect and
Remedy” Framework’, UN Doc. A/HRC/17/31 (2011.
41
See, e.g., Articles 5, 18(2) and 27(2) of the Convention on the Rights of the Child.
42
For useful overviews of the liability of non-state actors under international human rights law, see, e.g., J.
Hessbruegge, ‘Human Rights Violations Arising from Conduct of Non-State Actors’, 11 Buff. Hum. Rts L. Rev.
21 (2005); J. Knox, ‘Horizontal Human Rights Law’ 102 A.J.I.L. 1 (2008).

9
bilateral loans or loans made to a number of Eurozone States from the European Financial
Stabilisation Mechanism, the European Stability Mechanism and the European Financial
Stability Facility. If international financial institutions remain largely ‘untouched’ (or at least
unconstrained) by the existing state-centric human rights framework, how can they be
expected to accord weight to those rights in their functioning? Indeed, despite the increased
reference to human rights on their part, there is evidence that international financial
institutions such as the IMF and the World Bank have failed to appreciate the human rights
implications – and impacts – of austerity policies.43

The same is true of corporations and other private entities whose actions have contributed to,
or exacerbated the effects of, the crises – for example, non-international financial institutions
(frequently banks and mortgage loan companies) who have played a significant role in
relation to foreclosing on mortgaged properties, thereby negatively impacting on the right to
adequate housing.44 Another group are employer organisations and other members of the
business sector who have taken advantage of the current economic context to argue for tax
breaks and a weakening of labour protections, resulting in an erosion of work rights.45 The
current human rights framework only addresses and engages with non-state actors to a very
limited degree. On that basis, how can it serve to effectively protect right-holders from those
actors’ rights-impacting actions (and omissions) in a time of crisis?46

Not only are these non-state actors largely legally ‘immune’ from human rights obligations,
many of them have consistently shied away from human rights language and concepts and we
are still far from seeing ‘internalisation’ of human rights in their processes or a
conceptualisation by them of their activities in terms of human rights. Certainly, there was no
requirement on the part of the European Commission, International Monetary Fund and
43
See, e.g., M. Dowell-Jones, M. Footer, J. Kenner, M. Mustaniemi-Laakso, A. Nolan, S. Wallace, ‘Deliverable
7.2: Report on enhancing the contribution of EU institutions and Member States, NGOs, IFIs and Human Rights
Defenders, to more effective engagement with, and monitoring of, the activities of Non-State Actors’ (March
2015), Part IV.
44
See, e.g., R. Rolnik, ‘Report of the Special Rapporteur on Adequate Housing: The Financial Crisis and Its
Causes, UN Doc. A/HRC/10/7 (2009).
45
For an overview of such lobbying activities, see ILO Bureau for Employers’ Activities, ‘Employers’
Organisations Responding to the Impact of the Crisis’ (Working Paper No. 2, 2010),
www.ilo.org/public/english/dialogue/actemp/downloads/publications/working_paper_n2.pdf, [Accessed May 31
2015].
46
For a thoughtful treatment of how the facticity of the human rights impacts of economic globalisation
increasingly undermines the normativity of the state-centred conception of international human rights law, see
D. Augenstein, ‘The Crisis of International Human Rights Law in the Global Market Economy’ (2014) (44)
Netherlands Yearbook of International Law 41-64.

10
European Central Bank troika that human rights impacts assessments should form part of
47
state activities for the purposes of loan assistance. Dowell-Jones has highlighted that
private financial institutions have made very few references to human rights in debates on the
unfolding crisis,48 and it is difficult to find any acknowledgement on such actors’ part that the
problems of austerity, bank bailouts and sovereign (over)indebtedness in the Eurozone may
have anything to do with those institutions’ human rights commitments. This ongoing
disconnect between human rights and the key players in terms of financial regulation, bond
markets and financial globalisation49 has proved an enormous obstacle to human rights
having traction in the context of the recent crises. It must be addressed if human rights are to
play a more central role vis-à-vis future crises.

The second reason for human rights’ disappointing impact in terms of limiting and counter-
acting negative crises-related effects on the socially vulnerable relates not so much to the
nature of the human rights framework as to the state of play of crisis-related human rights
scholarship, in particular the ongoing obsession of human rights law scholars with the
courts.50

This is certainly nothing new. Lawyers generally tend to zone in on the courts and regard
them as the key branch of government because it is a way of making us – the lawyers – the
stars of the story. However, a court-centric focus risks overlooking the fact that, when it
comes to ensuring the effective implementation of human rights, the courts’ role is
necessarily (and generally desirably) reactive. This reflects the way that human rights are
drafted51 and, indeed, the reality of the actions needed – legislative, administrative, budgetary
– to give effect to them.

47
Salomon notes that ‘when we look to the international creditors for awareness as how to devise policies that
are human rights compliant we find virtually nothing’. (M. Salomon, ‘Of Austerity, Human Rights and
International Institutions’ (2015) 21 (4) European Law Journal (forthcoming)).
48
M. Dowell-Jones, in ‘The Sovereign Bond Markets and Socio-economic Rights: Understanding the Challenge
of Austerity’ in E. Riedel et al (eds), Economic, Social and Cultural Rights in International Law: Contemporary
Issues and Challenges (Oxford: OUP, 2013) 51.
49
See, e.g., D. Elson, R. Balakrishnan and J. Heintz, ‘Public Finance, Maximum Available Resources and
Human Rights’ in A. Nolan et al. (eds.), Human Rights and Public Finance, pp. 13-40; M. Dowell-Jones,
‘Financial Institutions and Human Rights’ (2013) 13(3) Human Rights Law Review 423.
50
A notable exception from a constitutional law perspective that goes beyond litigation and the role of the
courts is X. Contiades and A. Fotiadou, ‘How Constitutions Reacted to the Financial Crisis’ in X. Contiades
(ed.), Constitutions in the Global Financial Crisis (Aldershot: Ashgate, 2013) 9.
51
See, e.g., Article 2(2) and 2(3) of the International Covenant on Civil and Political Rights and Article 2(1)
ICESCR.

11
Much has been made of the judgments that have emerged from courts in countries such as
Portugal, Greece, Italy and Latvia that have addressed specific rights-violating aspects of
state responses to the crises.52 However, as has been demonstrated,53 there is no clear-cut
answer to the question of whether courts have serve(d) as a countercyclical or
counterhegemonic force in relation to the current crises, the economic policies that caused
them, and the measures introduced in their wake. The answer to that question varies from
court to court,54 jurisdiction to jurisdiction,55 and over time.56 National experiences from
Europe, Latin America and the US make it clear that it is very much not a case of ‘one size
fits all’ – whether in terms of forms of review,57 adjudicative interpretive approaches to
human rights obligations,58 implementation and enforcement strategies,59 or explicit judicial
engagement with the crisis context in decision-making.

52
There is a large and growing literature on this jurisprudence. For useful comparative overviews in a European
context, see C. O’Cinneide, ‘Austerity and the Faded Dream of Social Europe’ in A. Nolan (ed.), Economic and
Social Rights after the Global financial Crisis (Cambridge: CUP, 2014) 169; C. Fasone, ‘Constitutional Courts
Facing the Euro Crisis. Italy, Portugal and Spain in a Comparative Perspective’ EUI Working Paper LAW
2014/25, http://cadmus.eui.eu/bitstream/handle/1814/33859/MWP_WP_2014_25.pdf [Accessed 31 May 2015];
and the contributions to edition 3 of the (2014) European Journal of Social Law.
53
See generally, Nolan, above n52.
54
For a useful example of contrast between the approaches of two European judicial and quasi-judicial bodies in
terms of playing a counter-hegemonic role in the context of the recent crisis, compare the work of the European
Court of Human Rights and that of the European Committee of Social Rights in addressing domestic ‘austerity
measures’ with human rights implications. While the European Court of Human Rights has allowed states very
wide margins of appreciation in context of austerity measures, citing the unprecedented nature of the economic
crisis faced by defendant states (see, e.g., Koufaki and Adedy v Greece, App. Nos. 57665/12 and 57657/12, 7
May 2013; Mateus and Januário v Portugal, App. Nos. 62235/12 and 57725/12, 8 October 2013), the
European Committee of Social Rights has strongly asserted states’ ongoing obligation to ensure European
Social Charter rights in times of crisis (see, e.g., GENOP-DEI/ADEDY v Greece, Complaint No. 66/2011, 23
May 2012; IKA-ETAM v Greece, Complaint No. 76/2012).
55
See, e.g., the different approaches adopted to human rights challenges by courts in different jurisdictions
addressed in C. Kilpatrick & B. De Witte (eds), ‘Social Rights in Times of Crisis in the Eurozone: The Role of
Fundamental Rights’ Challenges’, EUI Working Paper LAW 2014/05,
http://cadmus.eui.eu/bitstream/handle/1814/31247/LAW%20WP%202014%2005%20Social%20Rights%20final
%202242014.pdf?sequence=1 [Accessed 31 May 2015]. For an example of differing approaches between
jurisdictions in the same country, see the discussion of United States state court responses to litigation seeking
to secure economic and social rights in a post-crisis context in H. Hershkoff and S. Loffredo, ‘Tough Times and
Weak Review: The 2008 Economic Meltdown and Enforcement of Socio-economic Rights in US State Courts’,
in Nolan, above n52, 234.
56
See, e.g., G. Maurino and E. Nino’s account of the evolving approach of the Argentine Supreme Court to
economic and social rights the context of economic crises from 2001 to 2013 in ‘Economic and Social Rights
and the Supreme Court of Argentina in the Decade Following the 2001-2003 Crisis’ in in Nolan, above n52,
299.
57
For contrasting views on the appropriate model of review to be adopted in dealing with economic crisis, see
X. Contiades and A. Fotiadou, ‘Social Rights in the Age of Proportionality: Global Economic Crisis and
Constitutional Litigation’ (2012) 10(3) I.C.O.N. 660, D. Bilchitz, ‘Socio-economic Rights, Economic Crisis,
and Legal Doctrine’ (2014) 12(3) I.C.O.N. 710, and follow-up pieces in (2014) 12(3) I.C.O.N.
58
Contrast, e.g., the willingness of the Colombian Constitutional Court to recognise the right to have at least the
minimum level of satisfaction of social needs to be able to live a dignified existence (discussed by D. Landau,
‘The Promise of a Minimum Core Approach: The Colombian Model for Judicial Review of Austerity Measures’
in Nolan, above n52, with the South African Constitutional Court’s refusal to construe economic and social
rights as imposing a minimum core obligation (considered by A. Pillay and M. Wesson in ‘Recession, Recovery

12
It is worth noting, furthermore, that given the institutional and normative constraints within
which they operate, courts are generally naturally reluctant to engage with issues of economic
policy. This is likely to be compounded where such measures can be characterised, as they
have been by the Irish courts as ‘part of the constitutional mandate of the Government that it
should be able to act swiftly, and if necessary unilaterally, in urgent protection of the national
interest’.60 Or where you have declaration of states of ‘economic emergency’ resulting in
orders or decrees passed by the executive (in the absence of legislative involvement) as we
have seen previously during crises in both Argentina and Colombia.61

To repeat: my criticism on this point is not of the courts per se – rather it is of the approach
adopted by human rights scholarship in relation to the crisis, and that of legal scholars in
particular. Given that the key decision-makers for the purposes of the impacts of the crises
have not been the courts, it is striking that so much of the response from human rights
academics has been court-centric. If human rights law scholarship is really to engage with the
causes and impacts of the crisis in a way that is meaningful for right-holders, then its focus
must shift – at least in part – towards the non-judicial national and supranational bodies and
decision-making fora that are key for the purposes of minimising the crises’ human rights
impacts. The growing ‘executive dominance’ that we are seeing in many Eurozone countries,
as well as in the EU itself,62 and the nature and location of such executive power in relation to

and Service Delivery: Political and Judicial Responses to the Financial and Economic Crisis in South Africa’ in
Nolan, above n52, 335).
59
See, e.g., the discussions by Herskoff and Loffredo, Wesson and Pillay and Landau (above notes 52 and 59)
of the different mechanisms/strategies used by courts to ensure enforcement in the U.S. (e.g., retaining
jurisdiction to monitor enforcement post-judgment), South Africa (e.g., meaningful engagement) and Colombia
(e.g., issuing follow-up orders with deadlines for political action on discrete issues, and using public hearings
and civil society groups to monitor compliance) in the context of crisis-related litigation.
60
McKenzie v Minister for Defence & Ors [2010] IEHC 461, 30 November 2010, para 52.
61
For key considerations of how the ‘emergency’ argument has manifested in domestic law the context of the
recent crises, see, e.g., S. Coutts, L. Díez Sánchez, A. Marketou and L. Pierdominici ‘Legal Manifestations of
the Emergency in National Euro Crisis Law EUI Working Paper’ LAW 2015/14,
http://cadmus.eui.eu/bitstream/handle/1814/35499/LAW_2015_14.pdf?sequence=1 [Accessed May 31 2015].
For a discussion of the application of the ‘emergency paradigm’ to economic crises, see A. Greene,
‘Questioning Executive Supremacy in an Economic State of Emergency’ (2015) 35(3) Legal Studies
(forthcoming).
62
See, e.g., D. Curtin, ‘Challenging Executive Dominance in European Democracy’, Chorley Lecture, 4 June
2013. For more on these concerns and their implications for the stability of the EU project as a whole, see M.
Dawson and F. De Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76(5) Modern Law
Review 817; C. Fasone, ‘European Economic Governance and Parliamentary Representation. What Place for the
European Parliament?’ (2014) 20(2) European Law Journal 164. For more on executive dominance at a national
level in an economic crisis context, see E. Kopsidi, ‘Le Renforcement du Pouvoir Exécutif sous l’Effet des
Crises Financières. L’exemple Américain, Argentin et Grec’, paper presented at World Congress of

13
policy fields such as national budgets and macro-economic decisions mean that it is
incumbent upon human rights scholars to look to those bodies and processes when
considering how human rights may have meaning in times of economic crisis.

The third reason for the failure of human rights traction in the context of the crises relates to
key shortcomings in the content of human rights standards. Of course I earlier described these
standards in positive terms, and I would not want now to resile completely from that. But
that there are weaknesses is undeniable. In particular, the framework has a number of key
gaps and confusions that matter hugely when it comes to effectively labelling particular
crisis-related actions and omissions as human rights violations.63

The problem of the incompleteness of human rights obligations is a particular issue when it
comes to the duties imposed by economic and social rights like the right to adequate housing
and social security. The gaps in terms of the understanding of the content of those rights is
not to do with the nature of those rights as such. Rather it is attributable to the fact that they
have received far less attention from scholars and others than civil and political rights like the
right to freedom from torture. As a result, uncertainty remains with regard to a number
human rights standards that are directly relevant to assessing and addressing the crises’
human rights impacts. Let us consider the obligation of states to ‘progressively realise’
economic and social rights to the maximum extent of the resources available to them. This is
set out in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights.
That provision essentially means that states have to move towards the full achievement of
those rights as quickly and as effectively as possible depending on the resources they can
access.64 The contents of Article 2(1) raises some key question from a crisis perspective that
were largely unanswered in 2007. First of all: what do we mean by the state’s maximum
available resources? Is it just what states choose to allocate or do we need to look beyond
existing budgetary allocations? How can/should one determine whether the state is making
the fullest possible use of the wide range of resources available to it? When we talk about the
obligation of steps to progressively realise – to move forward – economic and social rights

Constitutional Law, 16-20 June 2014, http://www.jus.uio.no/english/research/news-and-

14
enjoyment, what, if any, excuses can states use to justify steps backwards in human rights
enjoyment during an economic crisis?65

Article 2(1) also states that states parties must take steps through ‘international assistance and
co-operation’ to achieve Covenant rights. How should this obligation of international
cooperation beyond state borders limit crisis-related state cuts to development assistance? To
what extent do crisis-related resource constraints serve as justifications for states limiting the
resources they devote to giving effect to this obligation?66 What implications do the positive
and negative extra-territorial obligations imposed on states have for states’ activities as
members of internationals organisations such as the EU and IFIs in times of economic
crisis?67 What is the scope of states’ extraterritorial obligations in the context of financial
globalisation and monetary and financial policy that has transnational human rights effects?68

These are the kind of questions we would have expected the bodies responsible for
monitoring and interpreting human rights, the UN treaty-monitoring bodies, to answer.
However, the key body in terms of this task – the Committee on Economic, Social and
Cultural Rights which monitors the International Covenant on Economic, Social and Cultural
Rights – has demonstrated a historic reluctance to link economic decision-making,
macroeconomic policy and the impacts of such with specific economic and social rights
obligations. It has also been reluctant to engage with states’ obligations beyond their
territorial borders, including with regard to resourcing the realisation of economic and social
rights obligations.69 Indeed, the key contribution in this area has not been one produced by
the Committee but the 2011 Maastricht Guidelines on Extra-territorial Obligations of States

65
For a consideration of these questions, see A. Nolan and M. Dutschke, ‘Article 2(1) ICESCR and states
parties' obligations: whither the budget?’ (2010) 3 E.H.R.L.R. 280.
66
For a discussion of the determination of ‘maximum available resources’ for the purposes of satisfying states’
obligation of international assistance and cooperation see W. Vandenhole and W. Benedek, ‘Extraterritorial
Human Rights Obligations and the North-South Divide’ in Langford et al (eds) Global Justice, State Duties:
The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (Cambridge: CUP,
2013) 332, 342-346.
67
While the Maastricht Guidelines do provide insights into this question (see, e.g., Guidelines 15, 16, 21 and
29), the Committee has yet to address this issue in detail. The Committee on the Rights of the Child has spoken
about the obligations of states are members of international organisations but thus far has focused its work in
this area on the issue of business. See Committee on the Rights of the Child, ‘General Comment No. 16 on State
obligations regarding the impact of the business sector on children’s rights’, UN Doc. CRC/C/GC/16 (2013)
68
For more on this point, see R. Balakrishnan and J. Heintz, ‘Extraterritorial Obligations, Financial
Globalisation and Macroeconomic Governance’ in Nolan, above n52 146.
69
For a discussion of the Committee’s treatment (or lack thereof) of resources in the context of the extra-
territorial obligations imposed by Article 2(1) ICESCR, A. Khalfan, ‘Division of Responsibility amongst States’
in Langford et al, above n66, 299.

15
in the Area of Economic, Social and Cultural Rights,70 a document taking the form of an
‘international expert opinion’ on the part of key academics and civil society actors working
on extra-territorial obligations.71

One might be tempted to say: ‘oh but these crises were unprecedented, it is natural that the
Committee would take time to develop an approach’. But that ignores the fact that there had
been economic crises – and human rights impacts – before which had provided the
Committee with the opportunity to refine human rights standards in a crisis context. Indeed,
the Committee’s failure to engage with issues of economic crisis in its work was clear prior to
2007-8; during the various economic crises of the 1990s and early 2000s in the Czech
Republic, Hungary, Mexico, Thailand, Indonesia, South Korea, Argentina and Russia, for
example, neither the Committee nor other relevant UN treaty-monitoring bodies deemed
structural adjustment policies or public expenditure cuts to be in contravention of the
International Covenant or other international human rights instruments.72 This reluctance to
engage with economic policy and processes left the Committee – and human rights – in a
very weak position at the outset of these crises and it was not until May 2012 that the
Committee really started to engage with the crises when it issued a letter to states parties on
the permissible parameters of austerity measures and subsequently applied those standards to
country situations that it addressed as part of its reporting process.73

As this last point shows, there has been some progress. But much work remains both on the
part of the Committee and human rights scholars in terms of making the link between human
rights obligations and economic policy decision-making in specific contexts. In academic
terms, we are seeing the beginnings of such a move in, for instance, the work of the ‘Budget
Analysis and the Advancement of Economic and Social Rights in Northern Ireland’ project.74
That project focused on making the connection between legal economic and social rights

70
See in particular Guideline 31 on ‘Capacity and Resources’. For a discussion of this Guideline, see
commentary on the Guidelines as a whole, see O. De Schutter, A.Eide, A. Khalfan, M. Orellana, M. Salomon
and I. Seiderman, ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area
of Economic, Social and Cultural Rights’ (2012) 34 Human Rights Quarterly 1084, 1150-1154.
71
It is notable, however, that one of the key authors of the Guidelines, Olivier De Schutter, has been a member
of the Committee since May 2015. This bodes well for the Committee’s likely engagement with this area in
future.
72
For more on this point, see A. Nolan, N. Lusiani and C. Courtis, ‘Two Steps Forward, No Steps Back?
Evolving Criteria on the Prohibition of Retrogression in Economic and Social Rights’ in Nolan, above n52, 121.
73
CESCR, Letter to States Parties dated 16 May 2012, Reference CESCR/48th/SP/MAB/SW.
74
For more details, see
https://www.qub.ac.uk/schools/SchoolofLaw/Research/HumanRightsCentre/ResearchProjects/BudgetAnalysis/
[Accessed May 31 2015].

16
obligations and decision-making in relation to budgetary inputs, outputs and outcomes. There
is also nascent but growing work on the extent of states obligations beyond their borders in
relation to preventing and addressing financial and economic crises against a backdrop of
increasingly integrated economies.75 But much remains to be done in this area if human rights
standards are to be relevant and understood so as to engage effectively with the challenges
posed by future crises.

This brings me to the fourth and final reason why human rights did not serve as such
effective tools for social protection during the crises as they might have been expected to
have done: namely, the prevailing economics paradigm and the obstacles that it poses to
human rights. Far from putting an end to the dominance of anti-statist, unregulated free
market liberalism that predated and contributed to the crises, it is strongly arguable that by
rescuing the financial markets (through taxpayer money and mass socialisation of debt),
mainstream neoliberalism has actually contrived an opportunity to intensify the dominance of
individualistic, anti-statist unregulated free market liberalism.76 Indeed, commentators such
as Grant and Wilson have noted the ongoing dominance of what they term ‘neoliberal
Washington consensus policies’ following the global financial crisis.77 This contrasts with
earlier financial crises which resulted in major shifts in policy paradigms.78 In practice, the
language of human rights has been near-silenced at the political level by the apparent
inevitability of neo-liberalism.

75
See, e.g., Balakrishnan and Heintz, above n68.
76
Neoliberalism is a contested term that has been accorded multiple definitions. However, frequently identified
elements of neoliberalism as an economic theory include an emphasis on deregulation, economic liberalisation
and market reforms. These will be understood as constituting fundamental elements of neoliberalism for the
purposes of this article. For useful overviews of the history and development neoliberalism, see D. Harvey, A
Brief History of Neoliberalism (Oxford: Oxford University Press, 2005); R. Plant, The Neo-liberal State
(Oxford: Oxford University Press, 2010); and D. Stedman Jones, Masters of the Universe: Hayek, Friedman
and the Birth of Neoliberal Politics (Princeton University Press, 2012).
77
W. Grant and G. Wilson, ‘Introduction’ in W. Grant & G. Wilson (eds), The Consequences of the Global
Financial Crisis The Rhetoric of Reform and Regulation (Oxford: OUP, 2012) 1, 6. For more on this point, see
C. Crouch, The Strange Non-Death of Neoloberalism (Cambridge: Polity, 2011).
78
Joseph Stiglitz has described the crisis as a failure of ‘economic science’: the standard macroeconomic
models have failed, by all the most important tests of scientific theory: ‘they did not predict that the financial
crisis would happen; and when it did, they understated its effects’. (‘Rethinking Macroeconomics: What Failed,
and How to Repair It’ (2011) 9(4) Journal of the European Economic Association 591, 591) According to
Stiglitz, this has made the models of limited relevance either for prediction, explanation, or policy in times of
severe downturns, when markets evidently are working so poorly. (Ibid, 592). This is a whole other article but it
is clear that there is a much larger conversation to be had about the dominant paradigm of economic thought that
pre-existed, and to a large degree postdates, the crisis.

17
This retrenchment of neoliberalism and the prioritisation of austerity as a solution to the
economic crisis have been at the expense of other, more potentially ‘human rights-friendly’
models such as those advanced by progressive and feminist economists.79 There have been a
series of voices arguing for alternatives to austerity – for instance, Ortiz, Chai and Cummins’
work that seeks to present ways of moving from expenditure contraction to expanding fiscal
space by measures such as reallocating public expenditure, adopting progressive taxation and
opting for a more accommodating macroeconomic framework.80 So far, however, these
alternative models have had very limited traction.

I am, of course, not suggesting that international human rights law requires States to adopt a
specific economic model. The UN Committee on Economic, Social and Cultural Rights has
emphasised that it does not, stating that ‘in terms of political and economic systems‘,
ICESCR is ‘neutral and its principles cannot accurately be described as being predicated
exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a
mixed, centrally planned, or laisser-faire economy, or upon any other particular approach’. 81
But international human rights law does have a lot to say about the parameters and impacts of
economic decision-making. And it has a crucial role to play as an analytical framework for
evaluating, critiquing and recalibrating the processes, inputs, outputs, outcomes and
assumptions underpinning the economic models that have been employed by states.
Crucially, it can serve as a key framework for alternatives.

It is vital that efforts be devoted to integrating human rights concerns with economic analysis
so as to provide rights-focused economic models and analyses. We see such work being
doing by economists like Elson, Balakrishnan and Lusiani who have used the concept of the
obligation of the state to use its ‘maximum available resources’ to give effect to the rights
under the International Covenant as the basis for considering how states might mobilise or

79
For a detailed claim that suggests that mainstream economics has foundational elements that are not
congruent with human rights approaches, see S. Reddy, ‘Economics and Human Rights: A Non-conversation’ in
D. Elson, S. Fukuda-Parr and P. Vizard, Human Rights and the Capabilities Approach. An Interdisciplinary
Dialogue (London: Routledge, 2012). See also, D. Elson, R. Balakrishnan and J. Heintz, 'Public Finance,
Maximum Available Resources and Human Rights' in A. Nolan, R. O'Connell & C. Harvey (eds) Human Rights
and Public Finance: Budget Analysis and the Advancement of Economic and Social Rights (Oxford: Hart
Publishing, 2013).
80
I. Ortiz, J. Chai and M. Cummins, ‘Identifying Fiscal Space: Options for Socio-Economic Investments in
Children and Poor Households’, in I. Ortiz and M. Cummins (eds.), A Recovery for All: Rethinking Socio-
Economic Policies for Children and Poor Households (New York: UNICEF, 2012), pp. 231–301.
81
See, ComESCR, above n65, para 8.

18
 82
access resources in an alternative, human rights-compliant way. From a UN actor
perspective, the Special Rapporteur on the Question of Extreme Poverty and Human Rights
has argued in favour of the implementation of socially responsible and human rights-
compliant tax policies to maximise resources available to states.83

There is much going on in this area but for human rights to really form part of economic
policy thinking and decision-making, we will need to see far more in order to move past our
current situation in which human rights actors and economic actors operate in separate,
watertight spheres, resulting in human rights being both side-lined and undermined in the
implementation of post-crisis measures. Given that austerity threatens to extend well beyond
the current economic crisis, this is not work that can be postponed.

Conclusion

This paper has addressed the key question of how, despite the prevalence and strength of
human rights language and concepts prior to the crises, they were largely ignored by
policymakers and have been violated on a grand scale throughout the crises. I have
considered four key reasons why the human rights project has failed to rise effectively to the
challenge of the crisis, identifying shortcomings in terms of the state-centric nature of the
human rights framework, the court-oriented nature of human rights scholarship, key gaps and
confusions in human rights standards, and, finally, the disconnect between economics and
human rights. In doing so, I have highlighted the key lessons that we need to learn from this
contemporary experience, and the issues we need to tackle in terms of standards, advocacy
and scholarship, in order to make human rights meaningful in future times of crisis. None of
what I have said should be taken as a call to abandon human rights. Rather, it should be taken
as a call to arms. We need to strengthen human rights work so as to address the challenges
highlighted here in order to ensure that when another crisis comes along – and come it will –
human rights will have meaning.

82
See R. Balakrishnan, D. Elson, J. Heintz and N. Lusiani, ‘Maximum Available Resources and Human Rights’
(New Jersey: Rutgers Center for Women’s Global Leadership, 2011).
83
M. Sepúlveda, ‘Report of the Special Rapporteur on Extreme Poverty and Human Rights: Taxation and
Human Rights’, UN Doc. HRC/26/28 (2014), paras 54-78.

19

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