Ireland: Austerity must not trump human rights in constitutional reforms

English

By Ignacio Saiz. Executive Director, Center for Economic and Social Rights

On the eve of the public referendum on the EU Treaty on Stability, Coordination and Governance (Fiscal Compact) and just months before an historic Constitutional Convention, Ireland faces the complex challenge of deciding on the constitutional norms which should govern economic and social policy in times of fiscal constraints. Yet, this moment also offers a momentous window of opportunity for the Irish people to embed economic and social rights at the heart of its response to the crisis.

“No global economic and financial crisis diminishes the responsibility of state authorities and the international community with regard to human rights,” affirmed the United Nations Human Rights Council in 2009. The UN Committee on Economic, Social and Cultural Rights went even further this month by sending an unprecedented letter to countries such as Ireland in the grip of austerity urging them to avoid backsliding in economic and social rights protections in their responses to the enduring economic downturn.

With a debt overhang over 108% of GDP, 16% of Irish people living in poverty, and soaring income inequality, times aren’t easy on the isle. Despite its commitment to the United Nations Human Rights Council to protect its people’s economic, social and cultural rights in the face of financial constraints, the government does not appear to have considered human rights norms and principles in framing its social and economic policy preferences. A recent CESR investigative briefing found that a poorly managed recession, followed by a series of austerity budgets characterized by a lack of social participation and a reliance on regressive cuts to social spending over progressive tax reforms, have markedly undermined the rights to education, health, housing, decent work and an adequate standard of living, with the costs of the crisis falling disproportionately on the most vulnerable, including women, children, Travellers, migrants, older persons and the disabled.

Despite the fact that Ireland enjoyed budget surpluses pre-crisis and without consideration of the severe human rights casualties of the crisis, renewed pressure has been placed on the country to codify in its foundational Constitution a set of budget deficit limits. The Fiscal Compact adopted by 25 EU states in February effectively obliges all signatory states to enshrine a permanently balanced budget, or face exclusion from future crisis financing. The ceiling can only be raised in a severe economic downturn or other “exceptional circumstances” which only the European Court of Justice in Luxembourg can define.

The Fiscal Compact’s new enforcement capabilities and the constitutional status of the deficit caps may in practice exacerbate austerity-driven human rights setbacks by constraining even moderate deficit financing, limiting the fiscal tools available for current and future Irish governments to mitigate the human impacts of further financial or economic crises and to sustainably invest in economic and social rights programs which are at the heart of a just and sustainable recovery. As we’ve seen all too clearly in our work in Spain, which incorporated the budget deficit cap in a constitutional amendment last August, entrenching austerity measures in economic downturns risk deepening recession and unemployment, triggering what Nobel Prize-winning economist Amartya Sen has termed a "spiraling catastrophe" - for human rights and for the economy as a whole.

According to international human rights law codified in the International Covenant for Economic, Social and Cultural Rights which was ratified by Ireland in 1989, social and economic rights are not “optional” in economic recovery policies but are even more urgent to safeguard as economic and social conditions deteriorate. By ratifying this Covenant, Ireland legally committed to using the “maximum available resources” for the progressive realization of economic, social and cultural rights, providing special protection for people who belong to vulnerable groups or who find themselves in situations of discrimination or disadvantage. Before embarking on austerity measures such as social spending cutbacks which could have a retrogressive impact on human rights, international human rights law mandates governments to demonstrate that an exhaustive examination of all other options has been undertaken, and to ensure that no measure to reduce public deficits—such as the deficit cap provisions embodied in the new Fiscal Compact—put economic and social rights at risk unless all alternatives are fully explored. Such measures must be justified as strictly necessary, proportionate and temporary.

Evidence shows that what Ireland and many countries are facing across Europe is not a fiscal crisis, simply put. Alternatives to austerity do indeed exist. Introducing progressive tax reforms to incrementally increase Ireland’s remarkably low overall and corporate tax base and abandoning regressive tax breaks would help mobilize the maximum available resources for economic and social rights and redistribute more equitably the social costs of the crisis. Effectively protecting the public budget against illegal tax evasion, especially by large corporations and wealthy individuals, would meanwhile provide significant offsets to social and economic rights programs under severe distress. Additionally, Ireland would take a step in the rights direction by joining France, Germany and others in approving a eurozone-wide Financial Transaction Tax in June’s European Finance Ministers’ Meeting. The initiative would drive growth by decreasing the type of speculation which fuelled the 2008 financial crisis while raising approximately 38 billion euros annually—a significant amount of resources to finance the economic and social rights deficits both in Ireland and abroad.

While the government proposes to amend the Irish Constitution in ways it thinks will protect its financial credibility (and the seemingly insatiable demands of its creditors), it does not yet seem so ambitious with regard to constitutionally protecting the human rights of its own people. At present, the Irish Constitution recognizes some social rights, such as the right to health and the right to housing, as directive principles of social policy, while primary education is recognized as a fundamental right. These principles require the Oireachtas to ensure that economic and social policy-making is directed towards securing ‘the right to an adequate means of livelihood’ and that the state ‘pledges itself to safeguard with especial care the economic interests of the weaker sections of the community’. In practice however, these Principles feature little in contemporary parliamentary debates. What´s more, the limited scope to enforce these principlesthrough the courts deprive people of Constitutional remedies to protect their basic rights in a context of economic distress and harsh austerity measures.

Several United Nations bodies have reiterated their calls for Ireland to more fully integrate its international human rights obligations into the domestic legal order. As have the Irish people, with recent polls showing that the grand majority want the proposed Constitutional Convention to go further in protecting economic and social rights, in particular health and housing. If the Irish people are being asked to consider constitutionalizing an EU diktat to permanently prevent its government from deficit financing, surely they should have the opportunity to decide how a new Constitution could place human rights protections as fundamental as the right to decent work, social protection, education, housing and health at the apex of Ireland’s legal hierarchy, rather than continue to be treated as second-class constitutional norms.

Joining the community of States which have given economic and social rights justiciable and enforceable status in their Constitutions would significantly help put human beings and their inherent rights at the center of economic recovery. Constitutionally-enshrined economic and social rights guarantees, when properly implemented, have been shown to play a significant role in improving economic and social policy, often with life-saving consequences.

Checks and balances are, after all, a foundation stone of stable, accountable government. Constitutionalizing austerity without the balance of proper constitutional guarantees for economic and social rights may equate to prioritizing the dictates of markets and the rights of Ireland’s creditors over the most fundamental dignity of the Irish people.

Regardless of the outcome of the referendum this week, the Constitutional Convention—dovetailing as it does with historic economic challenges—provides an unparalleled opportunity to rekindle the hopes, aspirations, and values of the Irish people, placing human rights norms and principles at heart of a renewed social contract forged in the context of widespread economic injustice and social crisis.
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CESR’s recent publication “Mauled by the Celtic Tiger: Human rights in Ireland's economic meltdown,” was produced as part of CESR's ongoing work on the human rights impacts of the global economic crisis.