THE LEGALITIES OF RESOURCE ALLOCATION

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THE LEGALITIES OF RESOURCE ALLOCATION

• Evaluating State Policy Decisions from a
• Human Rights Law Perspective
• Research Group on HR Development, 26 April 2007
• By Richard Hustad

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What is the War on Terror?

• Not focus on definitions of war or terrorism.
• War on Terror is a state policy decision
• Decision that gvt. will do certain things
• Decision that individuals/gvts. should not do
  certain things
• Decision on the allocation of resources

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War on Terror as an EnormousResource Allocation

• 400 billion dollars spent by USA between Sept.
  2001 and Dec. 2006 (ca. 2.8 trillion Norwegian
  kroner or 4 times the total Norwegian annual
  budget).
• Expenditures in 2003 alone enough to have funded
  the projected shortfall in USA social security
  system through 2079.
• Average cost of 1333 per person in USA

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Intl Law on Resource Allocation Fair
Allocation among Rights

• Vienna Declaration HR are indivisible and
  interdependent and interrelated. They must be
  treated in a fair and equal manner, on the same
  footing, and with the same emphasis.
• CESCR/COM, GC3 widest possible enjoyment of the
  relevant rights

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Intl Law on Resource AllocationState Legal
Obligations

• CESCR Immediate action toward fulfillment (take
  steps, within available resources, to
  progressively achieve rights).
• CCPR Immediate fulfillment (respect and ensure
  rights)

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Intl Law on Resouce AllocationESCRs Not
Inferior Equals

• Take steps requires steps which are deliberate,
  concrete and targeted
• Available resources has no limiting clause,
  such as available resources after other (CPRs)
  demands are fulfilled. It requires to the
  maximum of its available resources.

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Intl Law on Resource AllocationESCRs Priority
Claim to the Minimum Core

• GC 3 Minimum essential levels of each ESCR must
  be fulfilled as a matter of priority using all
  resources that are at its disposition.
• GC 14 a state party cannot, under any
  circumstances whatsoever justify its
  non-compliance with the core obligations,
  which are non-derogable.

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Intl Law on Resource Allocation(Equality and
the Minimum Core)

• GC 3 Fulfillment of the minimum core for
  vulnerable members of society especially
  important
• CCPR, Art. 26 State action to fulfill ESCRs must
  be non-discriminatory
• CCPR, Art. 27 Certain individuals have priority
  claims to resources (over the state)

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Intl Law on Resource AllocationThe Prima Facia
Case

• Obligations of Result
• Non-fulfillment of the minimum core of rights,
  as a matter of priority
• Non-fulfillment of CPRs
• Obligations of Conduct
• Unequal distribution of resources among rights
• Lack of a deliberate, concrete and targeted
  plan to fulfill all ESCRs
• Unequal distribution of resources within society

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Intl Law on Resource AllocationCompetence of
Courts to Review

• Courts already involved in matters having
  resource implications
• Removing ESCRs from the judiciary would curtail
  capacity of courts to protect the rights of the
  most vulnerable and disadvantaged groups in
  society

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Intl Law on Resource AllocationWhich Court?

• The CESCR does not have a complaint mechanism
  like the other HR treaty bodies.
• A proposed optional protocol to create a
  complaint mechanism has stalled
• US opposition
• Continuous justiciability debate

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Regional Law on Resource AllocationAfrican
Comm. on Human RightsSERAC v. Nigeria

• Obligation of Result (Conduct)
• Sufficient resources must be provided for the
  fulfillment of basic needs
• Obligation of Conduct
• Duty to fulfill includes moving the machinery of
  the state toward realization of rights

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National Law on Resource AllocationThe
PhilippinesOposa v. Fulgencio

• State does not have complete control over
  resources (right to a healthful ecology prevented
  granting by state of logging permits)
• Note on Remedy On its own order, Supreme Court
  canceled all existing logging permits

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National Law on Resource AllocationSwitzerlandV
. v. Bern

• State does not have complete control over
  resources (court will intervene when
  constitutional entitlements are infringed)
• Note on Remedy Court will not fashion remedy,
  but simply find a constitutional violation. Court
  lacks competence to set priorities in allocating
  resources

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National Law on Resource AllocationIndiaToward
a Definition of Minimum Core

• Adequate nutrition, clothing, shelter, education,
  free movement, fellowship (Mullin v.
  Administrator)
• Healthcare (Paschim Banga v. West Bengal)
• Food (Peoples Union)

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National Law on Resource AllocationIndiaMunicip
al Council v. Vardichand

• financial inability has no juridical basis
• The law has no savings clause when the municipal
  council is penniless. Otherwise, a profligate
  statutory body or pachydermic government agency
  may legally defy duties under the law by urging
  in self-defense a self-created bankruptcy or
  perverted expenditure budget. That cannot be.
• The law will relentlessly be enforced and the
  plea of poor finance will be poor alibi when
  people in misery cry for justice.

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National Law on Resource AllocationSouth
AfricaObligations of Result

• Grootboom shelter and not separated from parents
  for children
• Treatment Action Campaign anti-retrovial drugs
  to HIV-positive, pregnant women
• Residents of Bon Vista Mansions water

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National Law on Resource AllocationSouth
AfricaObligations of Conduct

• State is required to act positively with respect
  to ESCRs (Grootboom)

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National Law on Resource AllocationSouth
AfricaReasonableness Review

• Court not well placed to determine the
  definitional standards of a minimum core
• Resource allocations judged by reasonableness in
  light of progressive realization and within
  available resources
• No inquiry into whether competing expenditures
  are more desireable or favorable
• Inquiry Whether measures adopted are reasonable

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Applying the Law to US War on TerrorThe Inquiry
(Prima Facia Case)

• Are the minimum core of rights fulfilled in the
  USA?
• Are CPRs ESCRs fulfilled in USA?
• If no to either of these questions, address
  additional inquiries
• Is there equal attention to rights in USA with
  respect to resource allocations?
• Is there a plan to fulfill the entirety of ESCRs
  in USA?
• Are resources justly distributed to all segments
  within society in the USA?

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Applying the Law to US War on Terror1. Minimum
Core Fulfilled?

• 37 million in USA live below the poverty line
  (12.7 of population)
• 15.6 million of lived in extreme poverty, (by
  US definition, lacking adequate nutrition,
  shelter, and medical care) (5.4 of population)

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Applying the Law to US War on Terror2.