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The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies

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The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies December 2017 A report of the International Bar Association’s Human Rights Institute Table of contents Foreword 4 Acknowledgements 7 Executive summary 9 The obligation to mobilise resources: legal basis and guiding principles 10 Sources of resource mobilisation 12 Addressing resource diversion and foregone tax revenues 12 The obligation to mobilise resources in action: opportunities and challenges 13 Recommendations 13 Acronyms and clarifications 16 Acronyms 16 Clarifications 18 Chapter 1: Introduction and background 20 1.1 Context and objectives 20 1.2 Scope, limitations and clarification 21 Special procedures and treaty bodies’ legal bearing 21 Limitations 25 Chapter 2: Obligation to mobilise resources for human rights realisation: legal basis and guiding principles 26 2.1 Legal basis of the obligation to mobilise resources 26 The obligation to take steps 27 The obligation to devote maximum available resources 28 What are ‘resources’? 28 December 2017 The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies 1 When are resources available? 30 IS RESOURCE MOBILISATION RELEVANT ONLY TO ECONOMIC, SOCIAL AND CULTURAL RIGHTS? 30 The obligation to seek and provide international assistance and cooperation 32 Obligations of ‘those in a position to assist’ 33 Obligations for those in need of resources: seeking international assistance and cooperation 35 2.2 Obligations related to resource mobilisation 36 The obligation to continuously improve conditions 36 The non-retrogression obligation 37 The obligation to accord a degree of human rights priority to resource allocation 38 The obligation to monitor rights realisation and devise implementation strategies and programmes 40 The obligation to ensure minimum core obligations 41 2.3 Resource mobilisation guiding principles 42 Equality and non-discrimination 42 MOBILISING RESOURCES IN COMPLIANCE WITH EQUALITY AND NON-DISCRIMINATION PRINCIPLES 43 RESOURCE MOBILISATION AND INEQUALITY 43 Transparency 45 Participation 45 Accountability 46 Sustainability 46 Efficiency/effectiveness 47 Cooperation 47 2.4 Concluding observations 48 Chapter 3: Sources for mobilising resources 50 3.1 Taxation 50 Devoting maximum available resources 51 Taking on discrimination and addressing inequalities 52 Ensuring substantive gender equality 54 2 The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies December 2017 Ensuring minimum core-obligation compliance 55 3.2 Natural resource revenues 55 3.3 Debt and deficit financing 57 3.4 Trade and investment agreements 59 Human rights impact assessments 62 Tax incentives and tax holidays 64 3.5 Concluding observations 64 Chapter 4: Addressing resource diversion and foregone tax revenues 67 4.1 Illicit financial flows 67 4.2 Fiscal abuses: evasion, avoidance and other illegal practices 68 4.3 Corruption 68 4.4 Corporate profit shifting 69 4.5 Financial secrecy legislation, tax havens or low-tax jurisdictions 70 4.6 Concluding observations 71 Chapter 5: The obligation to mobilise resources in action: opportunities and challenges 74 5.1 Austerity measures 74 5.2 Extraterritorial obligations 78 5.3 Financial sector 81 5.4 Concluding observations 82 Chapter 6: Final conclusions and recommendations 84 Annex 1: Relevant guidelines proposed by special procedures 87 Annex 2: Special procedure reports considered 88 Annex 3: Treaty body documents considered 93 December 2017 The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies 3 Foreword: Human rights, sustainable development goals and resource mobilisation: better understanding and more coordination is needed Mr Juan Pablo Bohoslasky, UN Independent Expert on the effects of foreign debt © UN/Jean-Marc Ferré. Why do we need to focus on resource mobilisation in the context of human rights and the Sustainable Development Goals (SDGs)? Several reasons come to mind: because there is an obligation to mobilise resources towards that end; because we know that, without sustainable finance, rights and goals will fall short; because it is unclear how the achievment of the SDGs and, more importantly, the realisation of human rights will be financed, that is: by whom, how, how much and for what purposes; and, from a special procedures perspective, because it is a cross-cutting issue for all mandates. Clearly, the SDGs did not frame development issues consistently in a rights-based framework or language. Yet, there are some references to human rights in the SDGs and some of their targets without using a systematic human rights approach. The SDGs now include a Goal 16, covering rule of law, ensuring equal access to justice for all and protection of fundamental freedoms. Human rights language has been included, for example, in SDG 6: ‘Ensure access to water and sanitation for all’ and in SDG 2 on ending hunger. This raises some questions. Can we, for example, call for further development of clean energy without paying close attention to principles preventing the displacement of indigenous peoples and forced evictions of millions of urban dwellers? Of course, one could not say that SDG wording could be interpreted against human rights law, but much more than this should be expected. Another weakness of the SDG framework may be seen in the limited accountability mechanism that has been set up to monitor the implementation of the SDGs at the global level, which are largely voluntary pledges of states. Nonetheless, it is worth engaging strategically with the SDGs while emphasising the existence and binding nature of human rights obligations that underpin several of the SDGs. Not participating, not criticising and not taking advantage of what is actually useful for our agendas may give the impression that we perceive development as non-relevant from a human rights perspective. This approach would 4 The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies December 2017 ignore that SDGs and human rights mutually reinforce one another. Another risk is that SDGs are seen as something more and more detached from human rights. Actually, as nine mandate-holders warned in 2016, ‘some States and sponsoring private actors are already “cherry-picking” goals and targets in the 2030 Agenda for Sustainable Development, and overlooking basic rights’. A number of mandate-holders and treaty bodies are already working to identify and/or develop the legal framework of states’ obligations to mobilise resources. Human rights should be at the core of development financing, guiding both its means and goals, so that funds are provided and spent without unfairly sacrificing anybody’s rights, particularly those of the most vulnerable groups. To make this point clear: international development financing is not just about more resources. To ensure that everyone can enjoy a decent life, free from hunger and with access to education, healthcare, housing and drinking water, human rights must be at the core of development financing. This includes specific, concrete and practical aspects of the duty to mobilise resources against the backdrop of economic and financial crisis, as well as governance and accountability gaps. For example, illicit financial flows and debt unsustainability undermine fiscal efforts to achieve development goals and realise human rights. Yet, how can these complex links be translated into practical and consistent standards and guidance to states and other stakeholders? How can international efforts be supported to end tax competition between states, tax abuse and shifting funds to tax havens so as to avoid adverse impact on the rights to food, water, sanitation and housing? How can we translate such analysis into pertinent and effective recommendations? How can we effectively address economic inequality, state capture and its adverse impacts on the enjoyment of civil and political rights? Another important question that needs to be tackled is how extraterritoriality of human rights obligations is linked to the obligation to mobilise resources, the duty to seek international assistance and cooperate, and the relevance of states’ human rights obligations when they act as members of international organisations. Clarifying this intricate issue would aid more forceful advocacy, for example, for a full applicability of human rights law to multilateral financial institutions. We need to be able to conduct a human rights analysis of the possible consequences of economic policy choices. This does not mean questioning the policy space that authorities need in macroeconomic matters. But, for example, we need to reflect on whether it is reasonable to expect that austerity works when economies are weakening.1 Obligations under human rights law should be a legitimate and necessary constraint when designing and implementing macroeconomic policies. The same can be said regarding bilateral investment treaties that do not allow host countries to capitalise on the benefits of these investments through effective regulatory tools. A more systematic effort is needed to answer these crucial questions. More collaboration among human rights mechanisms and bodies could be fruitful in order to develop more sophisticated and effective tools and recommendations to tackle a number of human
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