This is because the supervising Committee (the Committee on Economic, Social and Cultural Rights (CESCR)) has struggled over time with developing a clear and consistent obligation of non-retrogression. This has led to a chronic lack of clarity as the meaning of the doctrine has developed since the initial inclusion of the word ‘retrogressive’ in General Comment 3 in 1990. Eleven General Comments and other normative work at the UN level has developed a picture of the doctrine that is, at best, intricate and, at worst, incoherent.

In a new article, I argue that the different versions of the doctrine of non-retrogression can be coherently grouped into four conceptual models. These models are used as analytical frames and highlight the position of the doctrine of non-retrogression relative to the broader set of ICESCR obligations (such as the relationship to the progressive realisation obligation).

The key features (in brief) of the conceptual models are outlined below:

• The Component model posits that non-retrogression was not a self-supporting doctrine, but rather defined the conditions for a breach of the progressive realisation obligation. On this view, ‘retrogression’ was not a substantive development, but merely the indicated term to be used where States failed to progressively realise the rights in an ‘expeditious and effective’ manner.
• The Corollary model identifies the doctrine of non-retrogression as a rough opposite of the obligation to progressively realise. Although in this form the doctrine was free to develop its own semi-distinctive identity, it remained constituted and constrained by the scope of the progressive realisation obligation.
• As a Composite, the doctrine of non-retrogression diverges from a strict grounding in one obligation (i.e. progressive realisation) as is the case with the Component and Corollary models. Instead, the doctrine is composed of multiple ICESCR obligations and principles, and as a more independent entity.
• The Un-Coupled conceptual model of non-retrogression highlights the separation of the doctrine from a grounding (only) in the ICESCR obligations. It theorises non-retrogression as a ‘new’ obligation upon States, where the content of the doctrine cannot be satisfactorily linked to the ICESCR articles.

The models show the varied purposes for the doctrine of non-retrogression as enunciated in different versions, and how it lacks an ‘essence’. This essence-absence results in difficulties in several areas. It has meant that non-retrogression has little clarity as it has developed without a consistent direction and at a blistering rate of change. In turn, this damages the credibility and enforceability of the doctrine. Without a clear guiding value or essence, the CESCR’s task of developing its successive General Comments and Statements is more difficult. So, too, without an essence it becomes more difficult to understand the relationship and boundaries between other ICESCR obligations and the doctrine of non-retrogression. The cross-fertilisation of the doctrine of non-retrogression into the work of other human rights bodies and courts is also inhibited and disfigured by this lack of clarity (for example, the extent to which regional human rights courts might use the doctrine).

Finding this essence for the doctrine of non-retrogression is, I argue, key to its future development. Whether the retrogression exists as a compositing doctrine to bring together various obligations or as a hard stop on ‘backwards’ measures in particular or with some other purpose, matters to how States are held accountable. Only by pinning down the conceptual essence of this elusive social rights doctrine can civil society exhortations to States start to have the force they deserve.

Read more in new article in Human Rights Quarterly: Concepts of Non-Retrogression in Economic and Social Rights

This is unprecedented and will have serious consequences for the efficacy of the monitoring process. Others have outlined the principled reasons that this cut to the work of the human rights committees is dangerous, symbolic, avoidable, and deeply concerning. In this post I address the impact that a cut from three to two session per year will have on the State examination process. I use the CEDAW Committee as an example, but similar patterns would be seen across the treaty bodies.

Significant delays in examining States are a catastrophe for the international human rights system. They damage trust and respect for the institution. The role of the treaty bodies in chiding States to realise rights is damaged when they check in on States too infrequently. It also leads to ineffective monitoring, as information that is years out of date is reviewed. The cumulative effect of these challenges means that the utility of the treaty bodies findings within domestic contexts is also more limited. Domestic advocacy is challenging with Concluding Observations that are years out of date.

For a period between 1997-2001, the CEDAW Committee was given the resource to hold only two sessions resulting in a significant backlog of States to be examined. States reports on their efforts to comply with CEDAW sat in a dusty UN office for up to two and a half years before being examined. In some cases, this meant no examination of a State’s progress on women’s rights had been made in six and a half years. Critiques of the backlog problem during that period were rife and a number of reform processes and a change to the way that States reported resulted.

Significant efforts to clear and limit the backlog have been made, as the analysis of 500 reports to the CEDAW below shows. From the peak delay of over two and a half years, the delay now between a State submitting its report and it being examined is now relatively stable at around a year and a half.

The black curved line shows (in years, on the left-hand scale) the delay between a State filing its report to the CEDAW Committee and the report being examined by the committee. The height of the grey bars shows the number of states (on the right-hand scale) examined by the CEDAW Committee in a given year. The number of sessions held per year is noted in text on the bar.

The number of sessions the CEDAW Committee has to examine States is a crucial factor in the size of the delay. It has been forced to become more efficient as the size of its workload has increased through more States ratifying CEDAW and through additional tasks being added under the Optional Protocol to CEDAW including adjudicating individual complaints. The CEDAW Committee has largely met this new set of demands within its existing resources through a combination of procedural changes and the imposition of time and space limitations in their discussions. It is highly unlikely therefore it has the space to absorb yet further constraints on its working that would result from a cut from three sessions to two. The inevitable result will be an increased backlog of States waiting to be examined, an increased delay before national human rights situations are addressed, and – most likely – a dent in the relevance of the international human rights monitoring system.

These cuts to the UN mechanisms are undoubtedly difficult to contest. They flow down from organisation-level budget cuts, and from financial manipulation by a range of reticent States that have been emboldened by global populist discourses. But they can be countered. It should be highlighted to the UN that human rights deserve to be ringfenced within the budget; that they have already undergone significant efficiency improvements, and that cuts should be sought elsewhere. And to those that claim to be driven by evidence-based policy making, it should be highlighted that we have already tried a treaty body system run with two sessions per year and the impacts are clear. It’s frustrating to re-run the same debates from two decades back. It is, however, the only way of avoiding the failed policies of 20 years ago.

added under the Optional Protocol to CEDAW including adjudicating individual complaints. The CEDAW Committee has largely met this new set of demands within its existing resources through a combination of procedural changes and the imposition of time and space limitations in their discussions. It is highly unlikely therefore it has the space to absorb yet further constraints on its working that would result from a cut from three sessions to two. The inevitable result will be an increased backlog of States waiting to be examined, an increased delay before national human rights situations are addressed, and – most likely – a dent in the relevance of the international human rights monitoring system.

The black curved line shows (in years, on the left-hand scale) the delay between a State filing its report to the CEDAW Committee and the report being examined by the Committee. The orange line shows the number of new ratifying States (on the right-hand scale, starting at 163 at the end of 1997 and rising to 192 in 2015). The purple line shows the accumulation of jurisprudence under the Optional Protocol complaints process (on the right-hand scale).

These cuts to the UN mechanisms are undoubtedly difficult to contest. They flow down from organisation-level budget cuts, and from financial manipulation by a range of reticent States that have been emboldened by global populist discourses. But they can be countered. It should be highlighted to the UN that human rights deserve to be ringfenced within the budget; that they have already undergone significant efficiency improvements, and that cuts should be sought elsewhere. And to those that claim to be driven by evidence-based policy making, it should be highlighted that we have already tried a treaty body system run with two sessions per year and the impacts are clear. It’s frustrating to re-run the same debates from two decades back. It is, however, the only way of avoiding the failed policies of 20 years ago.

The latest views issued under the individual complaints process of the International Covenant on Economic, Social and Cultural Rights (ICESCR) have further demonstrated the value of the procedure. The accumulation of jurisprudence under the new(ish) treaty has been glacial. Djazia and Bellili’s complaint is only the third to have had substantive views issued (with around 7 which were rejected on procedural grounds). However, each new application of socio-economic standards to individual circumstances sheds further light on the promises and blind spots of the ICESCR.

Mr Djazia and Ms Bellili had two children aged one and three, and rented a room from a private landlord in Madrid. They had paid the rent on time between 1998 and 2012, before Mr Djazia’s unemployment allowance was stopped and the couple’s low income meant they missed payments. The tenancy expired, but Djazia and Bellili refused to leave as they had no income or alternative accommodation. The landlady applied to the court to have them evicted, which the court allowed in 2013 (while also instructing public bodies of Madrid to protect the family). The family were taken into a State emergency shelter for 10 days, then lived in their car for 4 days, before being accommodated by a friend. Mr Djazia had made 13 applications for housing support over a period of 12 years. Apart from emergency accommodation, no support was given to the family by the State.

Spain, in seeking to argue that the complaint was ill-founded, sought to portray the State’s actions as irrelevant to the family’s homelessness. The country argued that it was a private issue between a private landlord and private citizens, and that the State’s only link to the situation was the ‘intervention of the judiciary as a mediator’. These State attempts at distancing itself were ultimately unsuccessful. Instead, the CESCR (Committee on Economic, Social and Cultural Rights) centred the lack of alternatives available to the family, and focused very little on the actions of the private landlady. The Committee robustly addresses the State’s obligations to ensure the right to housing to the extent that its resources allow. It finds that the State comes up short in a number of areas.

First, in the face of Spain’s arguments that Mr Djazia’s poor attitude was the reason for his family’s situation, the CESCR underscores the deficiency of the criteria applied to social security claimants. These must be conscious of avoiding stigma and of combatting structural issues faced by rights holders. Given the lurch of many social security systems in Europe towards stereotypes and stigma, this is a significant finding.

Second, the Committee finds that Spain did not employ the maximum of its available resources. It does so, having been generous enough to fill in the large gaps in Spain’s defence of its position. The Committee assumes that the family did fit the criteria for housing, but that there was a shortage of housing, and that that shortage was due to the constrained resources of the State. The Committee then finds that available resources were not used. Here the deficiencies of Spain’s resource allocations were laid bare. It notes that, annually, there are around 800 requests for public housing in Madrid, when only 260 units become available in the space of a year. This damning finding is compounded when the Committee notes that nearly 3000 houses have been sold off in Madrid in order to fill a hole in the State budget.

Thirdly, the Committee makes its strongest finding of retrogression to date. It does so rigorously, underscoring that retrogressive measures must be justified to be permissible. It finds that the selling off of public housing at a point that it was sorely needed is a retrogressive measure that Spain has not adequately justified. This is perhaps indicative of a new, more muscular approach by the Committee in which a State’s failure to adequately put its case and justifications will lead to violations of the Covenant being found.

Djazia and Bellili’s case is serious one, but which nonetheless has very familiar features. Homelessness rates in wealthy States are astronomically high. Many individuals are forced into homelessness after being trapped between an unaffordable private renting sector, and insufficient public housing. This makes the CESCR’s findings all the more encouraging; resources must be used to protect rights, the State cannot abdicate responsibility to the private housing sector, and unjustified backwards steps will not be permitted.