(Re)constructing purpose for retrogression / (Re)constructing retrogression for a purpose

Abstract

The doctrine of non-retrogression – sometimes known as a prohibition on ‘backwards steps’ – in economic and social rights has garnered increasing attention in the aftermath of the financial and economic crises. The attention has clarified aspects of the norm, and has gone some way to providing rights-holders with a vitally needed tool in the context of recent austerity programmes. Yet despite this solid base of attention and the successive enumerations of the doctrine by the CESCR, there remain serious deficiencies in the understanding of the doctrine.

The core of this thesis addresses the need for a fuller understanding. It considers retrogression in a systematic way and addresses a number of routes to realising rights. While doing so, the work focuses on the problem areas to provide a deeper consideration. The research identifies and addresses a series of fundamental questions that still afflict retrogression, including: where did the doctrine originate from; what is the conceptual basis for the doctrine; how might the doctrine be reformed to better pursue a role within the ICESCR system; what are the key tests of a successful doctrine; and to what extent could a reformed doctrine address these key challenges?

It is argued that non-retrogression’s past is deeply confused, and its future will be beset with challenges. In the process of making this argument, the thesis contextualises, deconstructs, repurposes, reconstructs, and tests the doctrine. The end result is a fuller picture of the severe limitations of the current forms of the doctrine of non-retrogression, and the positing of a reconstructed doctrine that is less vulnerable to the many threats to non-retrogression’s success.