By Luke Holland
June 27, 2012The European Union has come to the rescue of Spain's beleaguered banks, approving a €100bn ($125bn) loan to recapitalise the country's lumbering financial sector. Neither the powers that be in Brussels nor the government of Italian Prime Minister Mariano Rajoy seem quite so ambitious when it comes to protecting the welfare of ordinary people, however. Indeed, the fundamental human rights of those living in Spain have largely been brushed aside in crisis-response measures, as was confirmed at Spain's recent appearance before the United Nations Committee on Economic, Social and Cultural Rights.
In its most recent austerity budget, Spain removed some €27.3bn ($34.1bn) from its annual spending plan, before announcing a further €10bn ($12.5bn) in health and education cuts just a week later. These dramatic adjustments, which will most harshly affect women earning low incomes, young people and immigrants, are complemented by a staggering 72 per cent reduction in overseas development assistance, effectively ensuring that the austerity drive will have effects felt far beyond the country's national frontiers. Amid all this frenetic "belt-tightening", much has been made here of the manner in which the economic and social rights of people in Spain have been subordinated to the demands of the market. And if the latest credit rating downgrade targeting Spanish sovereign debt is anything to go by, those demands seem to be insatiable.
With recent analyses demonstrating that poverty levels are rising fast, up from 20 to 22 per cent in two years, the social effects of both the crisis itself and the government's response to it are becoming clear. More than 1.3 million people were forced into poverty between 2008 and 2010, and some 580,000 households now find themselves without any income from work, unemployment benefits or other social security provisions, placing them in the shadow of extreme poverty. Inequality is likewise on the rise, as the ratio between top and bottom income quintiles is rising more quickly than in any other European country.
The government's handling of the crisis, characterised by draconian spending cuts on one hand and timid tax increases on the other, begs the question of to whom the government is really answerable. Thus far, the dictates of an austerity-framed economic orthodoxy emanating from Brussels and Berlin has clearly taken precedence. But despite the Spanish state's duties and responsibilities as a member of the European Union, it is also bound by legal obligations set out in the international human rights treaties to which it is party, not to mention the social provisions of its own constitution.
Spain ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1977, and in so doing committed to dedicating the "maximum of available resources" to the progressive realisation of basic rights such as education, health, employment, adequate housing and a decent standard of living. It is also obliged to pursue these ends in a non-discriminatory manner, and to take specific measures to protect the most vulnerable and to ensure basic minimum levels of enjoyment of these rights, including in times of crisis.
The maximum available resources principle, as set out by the United Nations Committee on Economic, Social and Cultural Rights, requires that governments fully explore both spending and the generation of fresh resources through tax reform and other avenues in order to facilitate the protection of people's rights. Measures likely to lead to retrogression in the enjoyment of economic and social rights, such as cuts to social protection, can only be enacted "after the most careful consideration of all alternatives".
Cases where such policies lead to deterioration in socio-economic outcomes, and alternative options such as tax reforms, have not been fully considered, and are therefore in violation of the Covenant. So far, the fiscal "readjustment" in Spain has studiously avoided shifting the burden of recovery to those more able to afford it, thereby ensuring that the most vulnerable have been the most heavily penalised.
Poor transparency
This is not the only area where Spain's handling of the crisis raises questions about compliance with human rights norms. The government is also required to meet standards of transparency and accountability, and to ensure meaningful processes of participation in both the design and implementation of social and economic policies. Given that the government failed to adequately explain the criteria used or reasoning for cutting certain sectors more than others, it has not been possible to assess the reasonableness and appropriateness of the steps taken, and hence to determine whether they are in accordance with international human rights law.
By failing to arrange adequate systems of participation in the design and implementation of recovery measures, Spain meanwhile sidestepped not only a fundamental principle of democratic government, but also another of the human rights standards set out in the agreements to which it is party.
The Committee on Economic, Social and Cultural Rights, which monitors compliance with the standards set out in the covenant, reiterated Spanish civil society's complaints when it reviewed the country's performance in May this year. State representatives appearing at the Office of the High Commissioner for Human Rights were interrogated over the failure to take legally binding human rights obligations into account in recovery policies.
In its concluding observations, issued on May 21, the Committee criticised the inadequacy of measures to mitigate the impacts of the crisis and called on the state to make sure austerity measures did not undermine current levels of economic and social rights protections and to guarantee basic minimum levels of these rights.
The oversight body, which comprises 18 independent experts from a diversity of nations, went on to "vigorously" recommend the country adopt a comprehensive national plan to combat poverty, including "specific measures and strategies to mitigate the adverse effects of the crisis". The dreadful circumstances afflicting many Spanish children, one in four of whom now lives below the poverty line, was given particular emphasis, while greater efforts to tackle unemployment - now standing at 24 per cent overall, with over half of young people out of work - were also called for. The Committee further enjoined the state to adopt legislative measures to protect the right to housing of those encumbered with unsustainable mortgages. Spain is legally obliged to implement these recommendations in order to meet its obligations under the Covenant.
Upon reviewing Spain's compliance, or lack thereof, with the various standards and provisions set out in the Covenant, the Committee was further moved to take the unprecedented step of issuing an open letter to all state parties clarifying their human rights obligations in the context of economic crisis. The communique, which spells out the human rights standards that must be observed in crisis response measures, states that recovery policies must be temporary, covering only the period of the crisis, and both necessary and proportionate, in the sense that "the adoption of any other policy, or a failure to act, would be more detrimental to economic, social and cultural rights". It goes on to clarify that policies must be non-discriminatory in character and must "consider all possible measures, including tax measures, to support social transfers and mitigate inequalities" while also ensuring that the rights of disadvantaged and marginalised individuals and groups are not disproportionately affected. Finally, the Committee affirms that in order to comply with human rights standards, crisis response measures must safeguard basic minimum levels of economic, social and cultural rights.
Nothing in these parameters represents a novelty or a departure from the preexisting requirements of international human rights law. Rather, the letter can be seen as a reaction to the lack of consideration being afforded to such basic norms in the design and implementation of recovery measures thus far. This in turn is symptomatic of the fact that, since the crisis took hold, the obligations of governments like Spain to their own people and their accompanying duties under human rights law have been subordinated to the exigencies of the markets.
Accountability
The pivotal question, then, is to whom is the government of Spain effectively accountable? To its creditors, or to its own people?
Its duty to give an account of its compliance with the International Covenant on Economic, Social and Cultural Rights emanates from the consensus of all nations, at a critical moment in history, that the rights and liberties of all persons should be protected by the international community. Moreover, the legal norms being monitored by the Committee in Geneva are mirrored in both the demands of Spanish civil society and several of the directive principles contained in the country's own constitution. Much of the hardship currently afflicting ordinary people in the country might have been avoided if these responsibilities were afforded the same degree of importance as the fixation with fiscal austerity, which according to Spain's own estimates has only deepened the country's economic malaise.
Imagine for a moment that the Spanish government had designed its economic recovery strategy in line with the principles of transparency, participation, accountability, equality, non-discrimination and justice. Comprehensive social protections would have been put into place to prevent deepening poverty and inequality. Rather than undercutting effective labour protections, decent work opportunities would have been expanded to combat historic levels of unemployment, precarity and gender inequity in pay. Serious social housing programmes would have been established as well, to address the growing deficits in affordable and adequate homes.Each of these initiatives would have simultaneously strengthened the purchasing power of the majority of households, which would have spurred economic growth and stimulated a more inclusive, robust economy from the ground up. And all of these economic and social rights advancements could have been financed by more equitable tax reforms, and a resolute fight against tax evasion, with fiscal and budgetary policies subject to systematic human rights impact assessments throughout the economic policy cycle.
Meanwhile, other influential countries such as Germany, whether acting individually or within international organisations like the European Central Bank, would have recognised their human rights obligations to cooperate in the protection of economic and social rights, and moved at the very least to rescind their constraints on Spain, if not support more human rights-centred fiscal and monetary policies.
It remains to be seen whether Spain and its neighbours will learn these lessons. Thus far, the principles of international human rights law, which might provide a framework for a more effective and just economic recovery, do not seem to be high on the list of priorities.
