Time and again, States have been warned by courts, UN bodies, and NGOs against taking retrogressive steps in economic and social rights. For instance, cuts to essential healthcare funding or reductions in housing support often result in devastating consequences for marginalized communities, raising urgent concerns over the erosion of established rights. Often the ‘retrogressive-ness’ of the State’s measure is indefensible; a clearly unpermitted incursion into established social rights standards. But on many other occasions, while the State has done some damage to social rights enjoyment, it is not clear whether the measure is permitted or not.

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