Under both domestic and international law, key components of economic and social rights are subject to “progressive realization.” States’ obligations are assessed relative to the available resources and to the stage of development of institutions and programs within the State party, and some components of rights may be realized over time rather than immediately. Article 2(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR) requires the government of a State party “to take steps…to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
The standard to be applied in assessing whether strategies or programs comply with the ‘progressive realization’ standard under Article 2(1) of the ICESCR is one of reasonableness.
In its statement explaining possible factors to be considered by the Committee on Economic Social and Cultural Rights (CESCR) when assessing whether steps taken by a State party meet the reasonableness standard, include:
- The extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights.
- Whether discretion was exercised in a non-discriminatory and non-arbitrary manner.
- Whether resource allocation is in accordance with international human rights standards.
- Whether the State party adopts the option that least restricts Covenant rights.
- Whether the steps were taken within a reasonable timeframe.
- Whether the precarious situation of disadvantaged and marginalized individuals or groups has been addressed.
- Whether policies have prioritized grave situations or situations of risk.
- Whether decision-making is transparent and participatory.
In addition, in the CESCR’s view, all reasonable strategies must be informed by an equality framework, prioritizing the needs of disadvantaged groups and ensuring protection from discrimination. States have an immediate, unqualified duty to ensure both formal and substantive equality in the implementation of policies. Strategies must specifically address issues of systemic discrimination and the barriers faced by individuals who have suffered historic discrimination or present prejudice.
Another critical component of a “reasonable” policy/program is the provision of effective remedies for violations of ICESCR rights. The CESCR has recognized administrative remedies are important however there must always be an ultimate recourse to courts to enforce the rule of law, as rights “cannot be made fully effective without some role for the judiciary”.
The CESCR has also emphasized that a reasonable program/policy should include assessment of budgetary measures. The reasonableness of budgetary allotment can be assessed based on information about the percentage of the budget allocated to specific rights under the Covenant in comparison to areas of spending that are not related to fulfilling human rights. The State party’s resource allocation may also be compared to that of other states with similar levels of development
The UN Human Rights Committee has affirmed that reasonableness analysis must be both purposive and contextual, and that a policy must be consistent with the purpose of the Covenant read as a whole.
Where a government institutes a policy/program that helps in the realization of social and economic rights (such as social assistance, disability support, housing strategy, poverty reduction strategy etc.) that policy/program should be analyzed for its compliance with the reasonableness standard set out by the CESCR. If a policy/program does not meet these fundamental requirements of ‘reasonableness’ it can be argued that the implementing government has placed Canada in violation of its international human rights obligations. Political initiatives can also be commenced to place pressure on the implementing government to abide by its international human rights commitments.
For all international jurisprudence (below) relating to Reasonableness/the Right to a reasonable policy/program in Word format click here. For a rough list of factors that must be included to make a program/policy ‘reasonable’ within the meaning defined by the CESCR click here (see also the “progressive realization” and “the reasonableness standard” sections in this article).
|Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, art. 8(4)1
1 Although the OP-ICESCR has not been ratified by Canada, the reasonableness standard for assessing compliance with the art. 2(1) of the ICESCR is applied more generally to the assessment of compliance with the ICESCR, whether or not the state party has ratified the optional protocol.
|“When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.”|
|Convention on the Rights of Persons with Disabilities, art. 2, 5(3), 27(1)(h), 24||“’Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;” (art. 2)
“In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.” (art. 5(3))
“Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;” (art. 27(1)(h))
“1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and life long learning directed to…
2. In realizing this right, States Parties shall ensure that:
(c) Reasonable accommodation of the individual’s requirements is provided;”
For more context specific observations made by various UN bodies regarding Canada’s performance under various international treaties click here.