A/HRC/37/54
58.
Legal basis of the guiding principles: The guiding principles will be based on the
normative guidance as set out in human rights treaties and standards and their authoritative
interpretation by the treaty bodies and other human rights mechanisms. Given the
significant amount of analyses of the recent financial crisis (and subsequent responses)
there is an emerging set of principles developed by authoritative bodies that could be used
as the basis for assessing the human rights compliance of policy choices and proposed
measures.
59.
Scope: A key issue to consider is what should trigger the application of the guiding
principles. The normative human rights framework indicates that a human rights impact
assessment should apply to economic reforms that may result in impermissible
retrogression of economic, social and cultural rights. As noted above, economic reforms are
not per se problematic under human rights law. Human rights law sets out standards to
evaluate whether the processes and substance of economic reform measures are aligned
with human rights.
60.
Particularly where States implement a combination of measures, the human rights
impact assessment should review the potential cumulative impact of those measures, given
that it is their accumulation that often results in the most severe impacts. The accompanying
human rights impact assessment guidance should propose a set of modules applicable to the
different areas of reform so as to provide more specific information and criteria.
61.
Timing: The guiding principles will focus on ex ante human rights impact
assessments, which should be started as early as possible in the policymaking process if
they are to be able to influence the analysis and choice of alternative policy options while
also highlighting the importance of regular, ex post reviews.
62.
Addressing different situations: The guiding principles will need to provide
guidance on how the principles can be applied to the different and particular situations in
which potentially retrogressive economic reforms may unfold, for example: (a) acute crisis
situations in response to severe economic shocks, where the risk of adverse human rights
impacts is heightened and in which the economic and financial crisis requires an urgent
response. In such cases, a human rights impact assessment conducted within a short time
frame and addressing only the most significant impacts may be all that can be
accomplished; (b) medium-term reforms — as is currently experienced where austerity
measures stretch into multi-year processes; and (c) accompanying the systematic review of
budgets and their distributional assessments, such as those carried out by the Government
of the United Kingdom or the annual review of the economic policies of all the European
Union member States in the context of the European Semester.
63.
In times of acute crisis and rapid policy responses, conducting a sufficiently rigorous
analysis requires a dose of realism and some balancing. Depending on the sophistication of
the process and the analytical tools chosen, a human rights impact assessment, together
with its participatory processes, may take some time to conduct. The guiding principles and
accompanying human rights impact assessment methodology would suggest ways in which
the assessment could be adjusted to meet tighter time schedules in order to respond in the
most acute circumstances. Even where consultation cannot be carried out, governments can
nonetheless apply human rights principles to guide basic choices that can be benchmarked
against longer-term planning that is supported by participatory processes, such as hearings
and committee work on national and sectoral development plans, and annual budget
allocations. Where governments have regulatory or social impact assessments in place as
part of the planning processes that are used to address fiscal and economic policy reforms,
adapting them to address human rights may be an effective short-term approach to ensuring
that human rights considerations are taken into account.
64.
As governments move into medium-term planning to respond, a human rights
impact assessment can be used to both look back and evaluate the short-term measures
already taken and propose adjustments and provide evidence for medium- to longer-term
planning going forward.
65.
For longer-term reforms and more regular reforms, a human rights impact
assessment can help governments to focus on building resilience so as to better address the
next crisis.
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