As discussion around the forthcoming budget intensifies, a report on current budget allocations bodes poorly for the state’s adherence to its budget-related human rights obligations.

Yesterday, RTE reported that the Department of Education has failed to spend almost half of the budget granted to it for buildings.

With two months to go to the end of the year, the Department of Education has yet to spend almost half of the 2010 budget allocated to it to build new schools and classrooms.

According to the report, new figures show the Department has spent €381m out of a total of €712m granted to it this year for capital projects – a figure that is ‘substantially behind the Department’s own projections for this time of the year’.

RTE highlighted that while 10% of this budget can be carried over to next year, any other remaining funds will be returned to the Department of Finance. The Department of Education has attributed its under-spend to dramatically reduced building costs.

While it is commendable and that last year’s budget maintained strong levels of capital funding for education, the failure of the state to employ the resources allocated for education-related capital projects calls into question its adherence to its international human rights obligations – particularly those under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child.

The right to the education is set out in Article 28 and Article 13 of the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights, respectively. Article 2(1) of the latter instrument states that:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Articles 28 and Article 4 of the Convention on the Rights of the Child (and as interpreted by the Committee on the Rights of the Child) make it clear that much the same obligation is imposed on the state by that instrument.

In a recent article that I co-authored with Mira Dutschke (‘Article 2(1) ICESCR and States Parties’ Obligations: Whither the Budget?’ (2010) 3 European Human Rights Law Review 280), we explored the budget-related obligations imposed by Article 2(1). In it, we highlighted that:

Diversion of budget allocations intended for ESR can constitute a violation of ICESCR if it results in non-enjoyment or reduction of enjoyment of rights … the duty to use the maximum of available resources means that budget allocations must be fully expended for their intended ESR purpose.

In a similar vein, Sepulveda has argued that the obligation to use the ‘maximum of available resources’ implies a prohibition against diverting resources from ESR related issues to non-ESR related issues (M Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Intersentia: Antwerpen, 2003).

According to RTE, this is the second year in a row that Education has failed to spend almost half of the budget granted to it for buildings. It thus seems highly probable that we will see two years in which money allocated to the right to education will be effectively ‘diverted’ back to the Department of Finance.

Human rights-compliant budget decisions do not simply involve appropriate allocation of resources to the realisation of human rights. The expenditure (or not) of those allocations also has implications for the state’s satisfaction of its duties under ICESCR and the CRC. On the information available, Ireland appears to be in clear breach of its duty to employ the maximum of its available resources to realise the right to education.