Mich "What is wrong with the ‘Maximum Available Resources’ Clause in Socio-economic rights?"

Mardi intime de la Chaire Hoover par Kevin Hartmann

To what extent the Maximum Available Resources (MAR) clause is committed with equality? Since the enactment of the International Covenant on Economic, Social and Cultural Rights, States are obliged to devote the maximum available resources to the full realization of socio-economic rights by all appropriate means. This obligation stems directly from Article 2(1) of the International Covenant on Social, Economic and Cultural Rights. It is also known as the MAR clause or the obligation of ‘progressive realization’. Its aim is to point out the necessary steps that states must undertake in allocating their resources towards the fulfilment of socio-economic rights. So far, the literature has focused its attention to whether any problems might arise as a consequence of a measure considered as ‘retrogressive’. Essentially, the MAR Clause requires to governments to provide sufficiently good reasons to undertake a measure that could hamper down some socio-economic rights. However, little has been said concerning a prima facie strict compliance with the obligations stemming from the MAR Clause. Do we have reasons to demand a similar argumentative threshold whenever ‘progressive’ measures are implemented? In the affirmative, why and based on what grounds? Is it based on equality? I will defend the idea according to which a strict commitment with equality might imply for the MAR Clause to also require a similar treatment to ‘progressive’ measures that may realize socio-economic rights. I will focus on the right to social security and retirement pensions.