Reviewing the austerity crisis in Europe, the lack of human rights discourse, and how to promote economic, social and cultural rights in a similar context. Presentation given on April 8, 2016.

1. GABRIEL ARMAS-CARDONA, ESQ.
Gabe.Armas-Cardona@nyu.edu
@GArmasCardona
INEQUALITY & HUMAN RIGHTS CONFERENCE
AUSTIN, TEXAS
APRIL 8 2016
No Longer a Purely Political Question:
Challenging the Austerity Approach
Through Justiciable ESC Rights

2. Why is there a Human Rights Divide?
Behind the scenes of the human rights covenants
 Conceived in unity, human rights are divided in two:
 Civil and Political (CP) rights in the ICCPR
 Economic, Social and Cultural (ESC) Rights in the ICESCR
 The Western-dominated drafting committee did not
respect ESC rights. To them, ESC rights:
 Needed clarifying unlike CP rights
 What does a right to health mean?
 Were resource-dependent
 Obligations only for rich countries?
 Imposed positive obligations in contrast to CP right’s
negative obligations
 Were “programmatic rights” rather than legal rights
 Were inherently non-justiciable

3. CP and ESC Rights – a False Division
 CP rights need clarifying.
 What are the limits of freedom of expression?
 CP rights need resources.
 Right to a fair trial requires trained judges and defense lawyers.
These are not cheap.
 CP rights also have positive obligations.
 The ICCPR uses the language of “necessary steps” to show State’s
positive obligations.
 ESC rights are justiciable.
 SA’s Soobramoney (1997) and the ICESCR Optional Protocol (2008)
 Why then the division and discrimination? History.
Western states were used to complying with CP rights.

4. New Rights and Means of Review
 Justiciable ESC rights give courts new rights to
protect and, more importantly, new means of review.
 Each State “undertakes to take steps … to the
maximum of its available resources, with a
view to achieving progressively the full
realization of” these rights. (ICESCR, Art 2(1))
 Justiciable ESC rights means Courts need to decide
whether a state is:
 taking steps
 using the maximum of its available resources
 progressively realizing these rights

5. Some Novel Questions for a Court
 Taking steps
 Must a State take steps to prevent or mitigate harm from
private actors (e.g. limit junk food to realize the right to health
or regulate mortgage contracts for the right to housing)?
 Maximum of its available resources
 If a State’s provides 5% of its budget for social programs, is
that OK or a violation? What about 1%? 0.001%?
 Progressive realization
 When can a State reduce social spending without violating ESC
rights? Does austerity comply with those requirements?

6. The Great Recession and European Austerity
 In 2007, the Great Recession led to a major economic
decline, especially in North America and Europe.
 Europe initially responded with anti-cyclical measures
(e.g. stimulus spending).
 Greece’s debt became unsustainable due to previous high debt.
 Financial crises led to States bailing out banking system
to an estimated €4.5 trillion. Private debt  public debt.
 This pushed Spain, Italy, Ireland and Portugal into unsustainably
high debt.
 Starting in ~2010, Europe turned to austerity measures.
 Austerity, stemming from neoliberal ideas, calls for decreasing social
spending while increasing taxes to balance the budget.

7. Harmful Effects on Rights in Greece
 Result of recession and austerity (from 2010 to 2014)
 Rampant foreclosures. Housing costs: 18%  40% of
disposable income
 Prevalence of severely materially deprived: 11.6%  21.5%
 Direct results of austerity in Greece (from 2009 to 2012)
 Decrease of health budget by 43%
Decrease of mental health budget by 64%
 Cutting availability, despite significant increase in need. (e.g.
suicides up by 45%, annual HIV infections among IDU: 15  484)
 Failed to consider employment in beginning of austerity. 2nd
MoU included employment but with a goal of liberalization.
 Shredded collective bargaining agreements

8. Retrogression
 States can implement austerity measures without
violating ESC rights by showing: (UNHCR, 2013)
 (1) the existence of a compelling State interest
 (2) the necessity, reasonableness, temporariness and
proportionality of the austerity measures
 (3) no other less restrictive measures
 (4) the measure is non-discriminatory
 (5) protection of a minimum core content of the rights; and
 (6) genuine participation of affected groups and
individuals in decision-making processes.
 The Troika did not consider human rights impacts,
thus couldn’t have assessed less restrictive measures,
when requiring austerity measures for Greece.

9.  Civil society and experts condemned infringements
quickly but gave guidance belatedly.
 UN Human Rights Council in 2009 reaffirmed
States’ human rights duties during economic crisis.
 First guidance on protecting rights in austerity was
in 2012 and it was only a two-page letter. (CESR,
May 2012)
 A failure of the experts. Economic crises have occurred before.
 Limits the extent of States’ moral failing
Challenges to Austerity:
Human Rights Experts

10. Challenges to Austerity:
European Court of Human Rights
 European Court of Human Rights gave States a very
wide margin of appreciation to engage in austerity.
 Notably, ECHR refuses to consider a State’s resources, making
ESC rights assessments almost impossible.
 Stepped in when excessive individual burdens
 In N.K.M. v. Hungary (2013) found a new tax of 52% on
claimant’s severance package violated her right to property.
 Protects only the middle and upper classes.
 Did allow States to implement social programs
 In Almeida Ferreira and Melo Ferreira v. Portugal (2010)
found a law limiting long-term housing leases did not violate
right to property because it was to protect a vulnerable group.

11. Challenges to Austerity:
Domestic Courts
 European courts didn’t respond to austerity consistently,
except for ignoring ESC rights.
 European courts aren’t revolutionary and European
judges don’t come from the lower class.
 The Portuguese Constitutional Court ruled against many
austerity measures, but not due to rights
 “[Doubly p]enalising a given category of people … undermines both
the principle of equality with regard to public costs and the principle
of fiscal justice.” (No. 187/13)
 In 2013 the Troika conditioned receiving financial aid on “mitigating
the legal risks from future potential Constitutional Court rulings’
 Using principles instead of ESC rights allows flexibility
but doesn’t build a floor of protection.

12. Challenges to Austerity:
European Committee of Social Rights
 Monitors compliance of the European Social Charter
 Has a collective complaints procedure
 Judgments are non-binding
 Consistently ruled in favor of social rights
 In 2012, Greece defended a reduction in social
security as required by “other international
obligations” (a.k.a. imposed by the Troika). The
Committee rejected the defense out of hand.
 “the fact [that] the contested provisions of domestic law seek
to fulfil the requirements of other legal obligations does not
remove them from the ambit of the Charter.”

13. Where does this leave us?
 First, it’s not as bad as I made it seem.
 The Global South has made great strides in ESC rights.
 Europe still favors social welfare programs despite their
reduction and lack of basis in justiciable ESC rights.
With little hope for a judicial revolution in Europe (or
the US), then why should those in these jurisdictions
care about justiciable ESC rights?
Because courts have given these rights content
We can use this content in legislation and regulation.

14. Connecting Economics and Human Rights
 Austerity is the neoliberal solution to high debt.
Human rights doesn’t enter the picture.
 Capitalism won’t be replaced by a rights-based
economic system any time soon.
What can be done soon is to legislate human rights
protections—buffers—onto capitalism.
 These buffers would limit States from imposing
extreme austerity.
 A starting place is requiring human rights impact assessments
before any major trade deal or economics policy change.

15. Screenshot
Google Search of all cases,
countries and health-related terms
Select
cases by
country
Filter by
health topic
or human
right
http://globalhealthrights.org

16. Assorted Marginalia
 Urgenda 2015 climate change case in Netherlands
 The Court found that international conventions that the
government had signed restricted the government’s degree of
discretion, gov’ts plan for 14-17% cuts were insufficient.
Ordered gov’t to cut climate emissions by 25%.
 Extra-Territorial Obligations of States
 Lender countries have a duty to respect
 Countries have a duty to regulate private lenders
 International Organizations
 Engaging rights-supporting text in founding charters
 Ensuring States’ obligations pass to and through the
organization. Doesn’t allow an avenue to escape obligation.