Economic,social and cultural rights and their dependence on the economic growth paradigm: Evidence from the ICESCR system

3.1 The Principle: Economic Growth is a means to Progress in the realisation of ESC rights

The central assumption of the Committee’s case law is that economic growth is a means to achieve progress in the enjoyment of ESC rights in that it enables the creation of a conducive environment for their realisation. In various Concluding Observations, the Committee considered that economic growth may help in combatting unemployment, ³⁸ food insecurity, ³⁹ lack of social security, ⁴⁰ inequalities ⁴¹ and poverty in general. ⁴² In its 1990 Concluding Observations concerning Korea, for example, the Committee applauded the constant, significant and rapid economic growth of the past thirty years as ‘the considerable material progress achieved should lay the foundation for the enhanced enjoyment of economic, social and cultural rights’. ⁴³

The underlying mechanism is that economic growth provides greater capacity – that is, greater resources or ‘fruits’ ⁴⁴ – to States Parties. In that sense, having an appropriate tax rate seems to constitute a precondition to increase States’ resources when there is economic growth: in its Concluding Observations on the 2019 Ecuadorian report, the Committee noted with concern that ‘tax receipts, as a proportion of gross domestic product, are lower than in countries with a similar level of development’. ⁴⁵ This general principle has three partially overlapping corollaries.

1. A stagnation or a worsening of the ESC rights situation in a State experiencing economic growth is regarded as either not acceptable, or as a regrettable missed opportunity. For instance, in its 1996 Concluding Observations concerning El Salvador, the Committee emphasised that ‘the continued existence of such a level of poverty in a country experiencing constant economic growth is unjustifiable’. ⁴⁶ The Committee, furthermore, regularly notes with concern ‘high levels of poverty […] despite the fact that the State party has a high national income’. ⁴⁷ This does not apply to poverty only: in its 2006 Concluding Observations related to Canada for instance, the Committee was concerned that the State had not increased its support for post-secondary education, social assistance and social services compared to former levels ‘in spite of the sustained economic growth in the State party during these last years’. ⁴⁸ Similar concerns were voiced with respect to employment rates, ⁴⁹ social systems, ⁵⁰ higher standards of living, ⁵¹ social disparities and inequalities, ⁵² food security, ⁵³ infant mortality ⁵⁴ or, very recently, health. ⁵⁵ Sometimes the terms ‘despite the State party’s economic prosperity’ ⁵⁶ , ‘despite the level of its economic development’ ⁵⁷ or ‘despite high rate of economic growth’ ⁵⁸ are used to express the same idea. This corollary may also be found under a general formulation in the 2009 Concluding Observations concerning the Korean report, in which the Committee clearly stated its concern regarding the fact that

the rapid pace of economic growth — of unprecedented proportions in Asia — that has turned the country into the twelfth-largest economy has not been matched by greater fulfilment of economic, social and cultural rights, in particular for the most disadvantaged and marginalized individuals and groups. ⁵⁹

2. As it increases States’ capacities, economic growth implies that greater financial means should be devoted to the realisation of ESC Rights. For instance, the Committee systematically refers to the UN official development assistance (ODA) standard ⁶⁰ which requires States to ‘increase the level of official development assistance in order to meet the target for high-income countries to provide 0.7 per cent of gross national income’. ⁶¹ The same is true for public spending on domestic social policies: the Committee stated in its Concluding Observations on the 2019 Kazakh report that it was concerned with the ‘overall low level of public expenditure on social services as a ratio of the gross domestic product’, ⁶² implying that GDP growth should lead to an increase in public expenditure on social services. This element has been repeated regularly, although sometimes using different terms. ⁶³ The Committee also criticised that ‘in spite of a high GDP growth rate, the national spending on social services such as housing, health and education remains low, and has in fact decreased over the years’. ⁶⁴ In the same vein, the Committee does not hesitate to qualify the social expenditure of a country on health care, education, water and electricity supplies as ‘inadequate’ when the State is witnessing rapid economic growth. ⁶⁵

More generally, economic growth increases the burden on States’ shoulders. The Committee considers that during a period of strong economic growth and increased affluence, a State Party should adopt stronger policies to protect the most vulnerable and alleviate poverty. ⁶⁶ In fact, the very process of referring to percentages of GDP, GNP or GNI as an explicit or implicit compliance indicator in times of economic growth implies that the monetary amount – in absolute terms – that a State should allocate to ESC rights increases. This implication consistently stems from the States’ obligation to devote the ‘maximum of their available resources’ to the progressive realisation of ESC rights under Article 2 of the Covenant.

3. Economic growth does not necessarily suffice to improve the realisation of ESC rights. It remains a means and not an end per se. In its General Comment No. 20 on non-discrimination in ESC rights, the Committee underlined that ‘economic growth has not, in itself, led to sustainable development, and individuals and groups of individuals continue to face socio economic inequality […]’. ⁶⁷ The same idea may be found in the General Comment No. 23 on the right to just and favourable conditions of work, in which the Committee writes that ‘even in times of economic growth, many workers do not enjoy such conditions of work’. ⁶⁸ Similarly, in the above-mentioned Concluding Observations regarding the 1995 Korean report, where the Committee had welcomed 30 years of economic growth, it noted with concern ‘the fact that efforts and achievements in securing outstanding and rapid economic growth have not always been matched by an appropriate level of protection of economic, social and cultural rights’. ⁶⁹ On one occasion, the Committee went a step further and stressed the potential dangers of pursuing economic growth at all costs. In its 2001 Concluding Observations concerning Korea, the Committee criticised the fact that ‘some rights or the rights of some groups are being sacrificed for the sake of economic recovery and market competitiveness’. ⁷⁰

3.2 Mirroring the principle: An economic recession is a factor impeding the realisation of ESC rights

As a logical consequence of the principle described above, it is the Committee’s opinion that an economic recession or a lower growth rate – especially if combined with social tension and political instability – may be a legitimate ‘factor and difficulty affecting the degree of fulfilment’ of the obligations deriving from the Covenant that may be put forth in States’ reports under Article 17 of the Covenant. ⁷¹ The Committee very clearly acknowledged that a recession or slow growth may impede the further realisation of ESC rights ⁷² or affect their enjoyment. ⁷³ In its 1999 Concluding Observations concerning Tunisia for instance, it regretted that the State Party did not detail the ‘external factors’ at the origin of the difficulties impeding the implementation of the Covenant, such as ‘high unemployment, the slowing economic growth in recent years or social or political tensions’. ⁷⁴ Similarly, in its Concluding Observations on the 2001 Colombian report, the Committee stated that

the economic recession along with certain aspects of the structural adjustment programs and economic liberalization policies […] have aggravated the negative effects on the enjoyment of economic, social, and cultural rights by the population, in particular the most disadvantaged and marginalized groups. ⁷⁵

As an economic recession may legitimately explain a worsening of the situation of ESC rights in a country, the Committee particularly welcomes reports demonstrating that States continue to take actions for the realisation of rights domestically and abroad in times of economic difficulties. In the 1994 Concluding Observations concerning Uruguay, the Committee noted ‘with satisfaction’ that the State had adopted measures ‘aimed at offsetting the adverse consequences for the enjoyment of economic, social and cultural rights of the economic recession […]’. ⁷⁶ In the same vein, in its 1996 Concluding Observations concerning Finland, the Committee considered as a positive aspect the fact that ‘despite the difficulties due to the economic recession, Finland contribute(d), although at a reduced level, to programmes of international cooperation thus potentially promoting the realisation of economic, social and cultural rights in other countries’. ⁷⁷

More than a mere positive aspect that may underlie Concluding Observations, paying specific attention to the ESC rights of vulnerable members of society in times of economic hardship is an obligation arising from the ICESCR as it is interpreted by the Committee in its General Comments. In the General Comment No. 3 on the nature of States Parties’ obligations, the Committee indicated that

even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low cost targeted programmes. ⁷⁸

The General Comment No. 5 on persons with disabilities confirms this: ‘the duty of States parties to protect the vulnerable members of their societies assumes greater rather than less importance in times of severe resource constraints’. ⁷⁹ This injunction was repeated, albeit in a softer formulation, in General Comment No. 6 concerning the ESC rights of older persons ⁸⁰ and in General Comment No. 12 concerning the right to adequate food. ⁸¹

In other words, if an economic recession certainly constitutes a lacking string to a State’s bow, it does not provide a blank check. In that sense, the CESCR Chairperson’s letter written in 2012 in response to the austerity programmes enacted by States Parties due to the sovereign debt crisis acknowledges that ‘economic and financial crises and a lack of growth can lead to retrogression in the enjoyment of rights’ and that adjustments in the implementation of the Covenant during that period are ‘inevitable’. Nonetheless, the Chairperson underlined the necessity ‘to avoid at all times taking decisions which might lead to the denial or infringement of ESC rights, especially those of the most vulnerable, marginalized and disadvantaged’. ⁸²

3.3 The inversion of the principle: economic growth as an end in itself for materially deprived countries

In contrast to what has been discussed above, the Committee did consider in a limited number of Concluding Observations that economic growth should be pursued without explicitly stating its relevance for the rights set forth in the Covenant. Overturning the idea according to which economic growth is a tool, the Committee praised it as an end in itself in cases concerning countries facing so much material deprivation that the realisation of ESC rights is particularly weak.

In the 2002 Concluding Observations concerning Georgia for instance, the Committee welcomed ‘that the general tendency of a weak economic growth has been reversed in the period 2000-2002: GDP has increased from 6 billion GELS in 2000 to 6.6 billion GELS in 2001’. ⁸³ Similarly, in its Concluding Observations on the 2001 Senegal report, the Committee viewed as a ‘positive development’ the growth of the State Party’s GDP ‘at a rate of about 5.3 per cent per annum since the devaluation of the CFA franc in 1994’. ⁸⁴ Among the positive aspects of the 2000 Kirghiz report, the Committee appreciated that there were ‘good prospects for growth of GDP in 2000’. ⁸⁵ Likewise, in its General Comment No. 18 on the right to work, the Committee did exactly the same when stating that

the right to work requires formulation and implementation by States parties of an employment policy with a view to ‘stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment’ (See ILO Convention No. 122 concerning Employ Policy, 1964, article 1, paragraph). ⁸⁶

In one isolated instance, the Committee inserted a utilitarian argument in its reasoning on the importance of investing in education, affirming that developing ESC rights is a means to foster economic growth. In its Concluding Observations on the 2011 Cameroonian report and because of the worrying dropout rate in the education system, the Committee urged ‘the State party to expand access to higher education in order to provide the labor market with the skills essential to the country’s growth’. ⁸⁷

The fact that this inverted principle only holds for less affluent countries has been made even clearer by the Committee in its Concluding Observations concerning the 1996 Guinean report where the Committee considered that the GDP per capita was ‘inadequate’ as the living conditions of Guineans were ‘extremely difficult’ and that Guinea was ‘among the poorest countries of Africa’, recalling that extreme poverty undermines human dignity. ⁸⁸ It thus appears that the Committee considers that economic growth is not only useful but may also be necessary if the country finds itself below a certain threshold of affluence that remains undefined.

3.4 How economic growth improves the realisation of esc rights: the inclusive growth model

The above has shown that in the Committee’s view, economic growth can be a means to achieving the progressive realisation of ICESCR rights as it allegedly increases the States’ capacity to do so. In some cases, the Committee has promoted economic growth without explicitly stating further ends. In the first part of this Section, it has also been demonstrated that the underlying assumption is that economic growth builds State capacity through taxation and that it allows public spending. This section is now continued by arguing that the Committee’s positions go further in outlining the growth model it wishes to promote: the prerequisite under which economic growth may lead to a greater realisation of ESC rights is that it should be inclusive.

This requirement results from the fact that the impact of economic growth for ESC rights of the population – and especially its poorest segments – fundamentally depends on the distribution of its gains. The Committee enjoins States to ‘ensure an equitable distribution of the benefits of the economic growth and improve the standard of living of the most vulnerable groups of the population’. ⁸⁹ Similarly, in its Concluding Observation regarding the 1995 Panamanian report, the Committee welcomed high annual growth rate but condemned the lack of redistribution of its outcomes:

the distribution of its benefits did not make it possible to eliminate or, in most cases, even to remedy existing deep-rooted structural inequalities which are reflected mainly in the level and distribution of income, as well as in differentiated access to public services. ⁹⁰

Quite recently, the Committee was even more straightforward by expressing concerns in 2018 about South Africa’s poor Gini coefficient, and by stressing that the State ‘is among the most unequal countries in the world’, therefore concluding that it should ‘re-examine its growth model in order to move towards a more inclusive development pathway’. ⁹¹ Similarly, in its General Comment No. 20 on non-discrimination in economic, social and cultural rights, the Committee argued that ‘economic policies, such as budgetary allocations and measures to stimulate economic growth, should pay attention to the need to guarantee the effective enjoyment of the Covenant rights without discrimination’. ⁹² The key insight here is that the larger picture put forth by the Committee ties the positive character of economic growth to a sufficiently redistributive model.

4.1 The committee’s acceptation and promotion of the status quo

Although at first sight, one might have imagined that the human rights field would be silent on economic growth, the previous Section has proven otherwise. In the mutually exclusive versus mutually beneficial debate set out in Section 2, the Committee seems to support the second position. The Committee is not, however, a cenacle made of political economists as its members are mainly legal scholars, diplomats or political scientists. ⁹³ It does not, therefore, express the economic foundations of its findings. Its understanding of economic prosperity merely echoes the deeply anchored orthodox economic views and the literature summarised above, without questioning it. The Committee refrains from entering complex economic debates where it would not hold a sufficient legitimacy. Therefore, it accepts the status quo and chooses to promote ESC rights in a framework that remains unchallenged. By refraining from evoking critiques of economic growth nor its costs, the Committee implicitly endorses and supports the growth paradigm.

To a certain extent, this is fully understandable. The ICESCR system is embedded in the commonly approved assumptions at the time of its elaboration, which was an

era during which social protection, economic growth and trade liberalisation were seen as mutually supportive: a virtuous cycle was established, in which trade contributed to growth and employment, which in turn could finance social protection and protect all those who were deprived from the opportunity to have access to gainful employment either temporarily or permanently,

to use De Schutter’s words. ⁹⁴ This period, known as the Fordist years, was organised as a class compromise between capital and labour. The latter sought to ensure that the gains derived from an increase in productivity and economic growth would be partly redistributed, hence opening the way for mass consumption. ⁹⁵ The Covenant’s system therefore still echoes the then prevailing belief according to which economic growth is a necessary precondition of social progress. As of today, the greater realisation of ESC rights or, more generally, the functioning of Welfare States seems to remain ‘growth-dependent areas’ ⁹⁶ which is reflected in the wording of Article 2 of the Covenant requiring that each State takes steps ‘to the maximum of its available resources’. ⁹⁷ The link between economic growth and employment, for instance, has been described as being ‘deeply ingrained in the social imaginary as a relation of necessity: growth is indispensable to create jobs’. ⁹⁸ Even if this assumption has been criticised both theoretically and empirically, ⁹⁹ it persists as a core assumption shared among economists. ¹⁰⁰

4.2 The committee’s ecological turn and the ESC rights-related consequences of climate change

Although the pragmatic approach of the Committee regarding economic growth derives from a deeply rooted paradigm, this loyal stance should be reconsidered in light of the Committee’s expanding concerns relating to the consequences of ecological threats on ESC rights.

Recently, the Committee issued a Statement on ‘Climate change and the International Covenant on Economic, Social and Cultural Rights’ in which it acknowledged that the latest report of the Intergovernmental Panel on Climate Change (‘IPCC’) demonstrates that climate change represents a massive danger for the enjoyment of ESC rights. ¹⁰¹ It further indicates that the failure to prevent foreseeable human rights harm caused by climate change, or a failure to mobilise the maximum available resources in an effort to do so, could constitute a breach of States’ obligation with regard to the Covenant. ¹⁰² The bulk of these principles have been reaffirmed in a joint Statement adopted by the Committee and four other international human rights treaty bodies. ¹⁰³ These documents are the result of a genuine ecological shift: The Committee mentioned climate change-related issues in 10.8% of its Concluding Observations between 2008 and 2019. ¹⁰⁴ It henceforth keeps ‘under review the impacts of climate change on economic, social and cultural rights’, and provides States with ‘guidance’ as to how they can mitigate and adapt to climate change. ¹⁰⁵

However commendable, this ecological turn nonetheless operates within the growth paradigm. In its Statement on ‘the green economy in the context of sustainable development and poverty eradication’, the Committee emphasised the need to ‘integrate the green economy into the broader concept of sustainable development, which encompasses social development, together with economic growth and environmental protection, and thus has close linkages with economic, social and cultural rights’. ¹⁰⁶ In line with existing models developed within the OECD’s green growth initiative, the EU’s Green Deal strategy or the ILO’s green economy notion, the Committee envisions sustainability hand in hand with economic growth. In that respect, it is fully aligned with the UN Sustainable Development 2030 Agenda, part of its goals No. 8 being to promote a ‘sustained, inclusive and sustainable economic growth’. ¹⁰⁷

This ecological turn of the Committee – to which its growing concern for inequalities may be added ¹⁰⁸ – should lead it to deeply question the credibility of a model combining the realisation of ESC rights, economic growth and environmental soundness. Once a certain threshold of affluence is reached, an ‘environmentally friendly economic growth’ ¹⁰⁹ model may not suffice for two main reasons.

The first reason is social: economic growth – that is, an increase in GDP – does not necessarily translate into greater well-being for mankind, whether objectively or subjectively measured. This intuition owes much to the debated ‘Easterlin paradox’, according to which GDP is correlated to subjective well-being from a static perspective, but growth of the former is not linked to an improvement of the latter once a certain threshold is reached. ¹¹⁰ Moreover, several critiques have stressed the fact that GDP growth is absolutely silent on distributional evolutions. For instance, Piketty et al. have shown that the per capita income of the lower half of the income distribution in the US remains at the same level today as it was in 1980, while the income of richer classes has skyrocketed during that (economically growing) period. ¹¹¹ More broadly, growth-enhancing policies such as reducing fiscal burdens, trade barriers or social standards in a global race to the bottom have been pointed at for their negative impacts on social and economic human rights. ¹¹²

The second reason is ecological and has been put forth as early as 1972 by the world-famous ‘Limits to Growth’ report by the Club of Rome. ¹¹³ This environmental critique, which has by now been refined and amplified, ¹¹⁴ can be summarised very simply: GDP growth increases environmental pressure while the biocapacity of the planetary system has been largely overstepped. Consequently, genuine sustainability implies a society where individual well-being is not dependent upon greater material affluence and where collective prosperity is disconnected from GDP. Recent expanding evidence on the quasi-impossibility to achieve an absolute decoupling of economic growth from ecological pressure further reinforces these concerns. ¹¹⁵ If, admittedly, localised examples of absolute decoupling have been observed in affluent countries with respect to greenhouse gases emissions, for instance, the speed at which it has occurred is highly insufficient if 1,5°C and 2°C Paris Agreement targets are to be met while ensuring continuous economic growth. ¹¹⁶

4.3 ESC rights without growth?

The thorny question then is how to combine calls for the greater realisation of ESC rights with a critical view on economic growth? Admittedly, developing a fully articulated political economy of a post-growth paradigm raises many issues and rests on controversial assumptions which evidently fall outside the ambit of both the Committee’s work and this article. In particular, the consequences of a post-growth concept applied to countries where extreme poverty is raging are fiercely debated, ¹¹⁷ while avoiding the disastrous consequences of an economic recession also is of utmost importance. ¹¹⁸ Yet, it is the authors’ stance that the Committee possesses some latitude to open up alternative pathways beyond economic growth’s ‘mystique’. ¹¹⁹ Below, two ways in which it could allow the emergence of new imaginaries beyond growth and help escape from the dependency of ESC rights’ on growth are highlighted.

First, the Treaty body could acknowledge in Concluding Observations, General Comments, Views or Statements that the correlation between economic growth and ESC rights is – to say the least – ‘less causal than is commonly assumed’. ¹²⁰ This might take the form of an explicit statement of some of the above-mentioned social limits to growth. Alternatively, this might be done by stressing the links between an economic model relying on infinite growth and ecological harms, themselves having severe impacts on ESC rights. The Committee would then refrain from systematically assuming that economic growth could only be positive at best, or neutral at worst, for ESC rights and recognise that with an ever-increasing GDP may come at damaging social and environmental costs. When doing so, the CESCR could distinctively modulate its stance on economic growth depending on the evaluated country’s material affluence and apply a form of ‘threshold hypothesis’ ¹²¹ according to which the costs of economic expansion may progressively outweigh its benefits once a certain GDP-related threshold is reached. It would thereby acknowledge a distinction between two different situations. On the one hand, below a certain level of affluence, economic growth – as long as its fruits are well redistributed – is useful to ensure the realisation of ESC rights. On the other hand, beyond a certain threshold, the Committee should stress that a perpetual growth leads to negative social and ecological externalities that could alter the enjoyment of ESC rights.

Second, the Committee could endorse the insights developed by various scholars to further realise ESC rights without economic growth. Following De Schutter, the authors believe that the historical assumption according to which social progress could only be realised if the State’s available resources increase should not be deemed to be cast in stone. ¹²² To briefly take an example, combatting poverty – a ‘denial of human rights’ ¹²³ par excellence – does not necessarily require greater aggregate means. According to Philip Alston, the realisation of ESC rights in affluent countries hinges less on a lack of financial capacity than on redistribution issues. ¹²⁴ In a period where human rights are being heavily criticised for their historical complacency towards gross inequalities, ¹²⁵ the Committee should pursue its recent endeavour to tackle growing inequalities and further address their structural roots. ¹²⁶ In its case law, the Committee could endorse the view that in many cases, poverty alleviation requires a focus on equality rather than on economic growth. This would only logically echo the ‘leaving no one behind’ principle lying at the core of the previously mentioned 2030 Agenda. Insisting on the multidimensional aspects of poverty beyond a materialistic approach is also another pathway to conceive a post-growth paradigm. ¹²⁷