COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Twenty-fourth session
Geneva, 13 November-1 December 2000
Item 3 of the provisional agenda
SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION
OF THE INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS:
DAY OF GENERAL DISCUSSION ORGANIZED IN COOPERATION WITH
THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)
“THE RIGHT OF EVERYONE TO BENEFIT FROM THE PROTECTION OF
THE MORAL AND MATERIAL INTERESTS RESULTING FROM ANY
SCIENTIFIC, LITERARY OR ARTISTIC PRODUCTION OF WHICH HE
IS THE AUTHOR (ART. 15.1 (C) OF THE COVENANT)”
MONDAY, 27 NOVEMBER 2000
The Limburg Principles on the Implementation of the International Covenant
on Economic, Social and Cultural Rights
The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights
Background paper submitted by the International Commission of Jurists
GE.00-44704 (E)
CONTENTS
Page
THE LIMBURG PRINCIPLES ON THE IMPLEMENTATION OF THE
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS3
THE MAASTRICHT GUIDELINES ON VIOLATIONS OF ECONOMIC,
SOCIAL AND CULTURAL RIGHTS16
THE LIMBURG PRINCIPLES ON THE IMPLEMENTATION
OF THE INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
Introduction
A group of distinguished experts in international law, convened by the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, United States of America), met in Maastricht from 2 to 6 June 1986 to consider the nature and scope of the obligations of States parties to the International Covenant on Economic, Social and Cultural Rights, the consideration of States parties’ reports by the newly constituted Committee on Economic, Social and Cultural Rights, and international cooperation under Part IV of the Covenant.
The 29 participants came from Australia, the Federal Republic of Germany, Hungary, Ireland, Mexico, the Netherlands, Norway, Senegal, Spain, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Yugoslavia, the United Nations Centre for Human Rights, the International Labour Organization (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Health Organization (WHO), the Commonwealth Secretariat and the sponsoring organizations. Four of the participants were members of the Committee on Economic, Social and Cultural Rights.
The participants agreed unanimously upon the following principles, which they believe reflect the present state of international law, with the exception of certain recommendations indicated by the use of “should” instead of “shall”.
Part I. THE NATURE AND SCOPE OF STATES PARTIES’ OBLIGATIONS
A. General observations
1.Economic, social and cultural rights are an integral part of international human rights law. They are the subject of specific treaty obligations in various international instruments, notably the International Covenant on Economic, Social and Cultural Rights.
2.The International Covenant on Economic, Social and Cultural Rights, together with the International Covenant on Civil and Political Rights and the Optional Protocol, entered into force in 1976. The Covenants serve to elaborate the Universal Declaration of Human Rights: these instruments constitute the International Bill of Human Rights.
3.As human rights and fundamental freedoms are indivisible and interdependent, equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights.
4.The International Covenant on Economic, Social and Cultural Rights (hereafter the Covenant) should, in accordance with the Vienna Convention on the Law of Treaties (Vienna 1969), be interpreted in good faith, taking into account the object and purpose, the ordinary meaning, the preparatory work and the relevant practice.
5.The experience of the relevant specialized agencies as well as of United Nations bodies and intergovernmental organizations, including the United Nations working groups and special rapporteurs in the field of human rights, should be taken into account in the implementation of the Covenant and in monitoring States parties’ achievements.
6.The achievement of economic, social and cultural rights may be realized in a variety of political settings. There is no single road to their full realization. Successes and failures have been registered in both market and non-market economies, in both centralized and decentralized political structures.
7.States parties must at all times act in good faith to fulfil the obligations they have accepted under the Covenant.
8.Although the full realization of the rights recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time.
9.Non-governmental organizations can play an important role in promoting the implementation of the Covenant. This role should accordingly be facilitated at the national as well as the international level.
10.States parties are accountable both to the international community and to their own people for their compliance with the obligations under the Covenant.
11.A concerted national effort to invoke the full participation of all sectors of society is, therefore, indispensable to achieving progress in realizing economic, social and cultural rights. Popular participation is required at all stages, including the formulation, application and review of national policies.
12.The supervision of compliance with the Covenant should be approached in a spirit of cooperation and dialogue. To this end, in considering the reports of States parties, the Committee on Economic, Social and Cultural Rights, hereinafter called “the Committee”, should analyse the causes and factors impeding the realization of the rights covered under the Covenant and, where possible, indicate solutions. This approach should not preclude a finding, where the information available warrants such a conclusion, that a State party has failed to comply with its obligations under the Covenant.
13.All organs monitoring the Covenant should pay special attention to the principles of non‑discrimination and equality before the law when assessing States parties’ compliance with the Covenant.
14.Given the significance for development of the progressive realization of the rights set forth in the Covenant, particular attention should be given to measures to improve the standard of living of the poor and other disadvantaged groups, taking into account that special measures may be required to protect cultural rights of indigenous peoples and minorities.
15.Trends in international economic relations should be taken into account in assessing the efforts of the international community to achieve the Covenant’s objectives.
B. Interpretative principles specifically relating to Part II of the Covenant
Article 2.1: “to take steps … by all appropriate means, including particularly the adoption of legislation”
16.All States parties have an obligation to begin immediately to take steps towards full realization of the rights contained in the Covenant.
17.At the national level States parties shall use all appropriate means, including legislative, administrative, judicial, economic, social and educational measures, consistent with the nature of the rights in order to fulfil their obligations under the Covenant.
18.Legislative measures alone are not sufficient to fulfil the obligations of the Covenant. It should be noted, however, that article 2.1 would often require legislative action to be taken in cases where existing legislation is in violation of the obligations assumed under the Covenant.
19.States parties shall provide for effective remedies including, where appropriate, judicial remedies.
20.The appropriateness of the means to be applied in a particular State shall be determined by that State party, and shall be subject to review by the United Nations Economic and Social Council, with the assistance of the Committee. Such review shall be without prejudice to the competence of the other organs established pursuant to the Charter of the United Nations.
“to achieve progressively the full realization of the rights”
21.The obligation “to achieve progressively the full realization of the rights” requires States parties to move as expeditiously as possible towards the realization of the rights. Under no circumstances shall this be interpreted as implying for States the right to deter indefinitely efforts to ensure full realization. On the contrary all States parties have the obligation to begin immediately to take steps to fulfil their obligations under the Covenant.
22.Some obligations under the Covenant require immediate implementation in full by all States parties, such as the prohibition of discrimination in article 2.2 of the Covenant.
23.The obligation of progressive achievement exists independently of the increase in resources; it requires effective use of resources available.
24.Progressive implementation can be effected not only by increasing resources, but also by the development of societal resources necessary for the realization by every one of the rights recognized in the Covenant.
“to the maximum of its available resources”
25.States parties are obligated, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all.
26.“Its available resources” refers to both the resources within a State and those available from the international community through international cooperation and assistance.
27.In determining whether adequate measures have been taken for the realization of the rights recognized in the Covenant, attention shall be paid to equitable and effective use of and access to the available resources.
28.In the use of the available resources due priority shall be given to the realization of rights recognized in the Covenant, mindful of the need to assure to everyone the satisfaction of subsistence requirements as well as the provision of essential services.
“individually and through international assistance and co-operation especially economic and technical”
29.International cooperation and assistance pursuant to the Charter of the United Nations (arts. 55 and 56) and the Covenant shall have in view as a matter of priority the realization of all human rights and fundamental freedoms, economic, social and cultural as well as civil and political.
30.International cooperation and assistance must be directed towards the establishment of a social and international order in which the rights and freedoms set forth in the Covenant can be fully realized (cf. article 28 of the Universal Declaration of Human Rights).
31.Irrespective of differences in their political, economic and social systems, States shall cooperate with one another to promote international social, economic and cultural progress, in particular the economic growth of developing countries, free from discrimination based on such differences.
32.States parties shall take steps by international means to assist and cooperate in the realization of the rights recognized by the Covenant.
33.International cooperation and assistance shall be based on the sovereign equality of States and be aimed at the realization of the rights contained in the Covenant.
34.In undertaking international cooperation and assistance pursuant to article 2.1 the role of international organizations and the contribution of non-governmental organizations shall be kept in mind.
Article 2.2: Non-discrimination
35.Article 2.2 calls for immediate application and involves an explicit guarantee on behalf of the States parties. It should, therefore, be made subject to judicial review and other recourse procedures.
36.The grounds of discrimination mentioned in article 2.2 are not exhaustive.
37.Upon becoming a party to the Covenant, States shall eliminate de jure discrimination by abolishing without delay any discriminatory laws, regulations and practices (including acts of omission as well as commission) affecting the enjoyment of economic, social and cultural rights.
38.De facto discrimination occurring as a result of the unequal enjoyment of economic, social and cultural rights, on account of a lack of resources or otherwise, should be brought to an end as speedily as possible.
39.Special measures taken for the sole purpose of securing adequate advancement of certain groups or individuals requiring such protection as may be necessary in order to ensure to such groups or individuals equal enjoyment of economic, social and cultural rights shall not be deemed discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different groups and that such measures shall not be continued after their intended objectives have been achieved.
40.Article 2.2 demands from States parties that they prohibit private persons and bodies from practising discrimination in any field of public life.
41.In the application of article 2.2 due regard should be paid to all relevant international instruments, including the Declaration and Convention on the Elimination of all Forms of Racial Discrimination, as well as to the activities of the supervisory committee (CERD) under the said Convention.
Article 2.3: Non-nationals in developing countries
42.As a general rule the Covenant applies equally to nationals and non-nationals.
43.The purpose of article 2.3 was to end the domination of certain economic groups of non‑nationals during colonial times. In the light of this the exception in article 2.3 should be interpreted narrowly.
44.This narrow interpretation of article 2.3 refers in particular to the notion of economic rights and to the notion of developing countries. The latter notion refers to those countries which have gained independence and which fall within the appropriate United Nations classifications of developing countries.
Article 3: Equal rights for men and women
45.In the application of article 3 due regard should be paid to the Declaration and Convention on the Elimination of All Forms of Discrimination against Women and other relevant instruments and the activities of the supervisory committee (CEDAW) under the said Convention.
Article 4: Limitations
46.Article 4 was primarily intended to be protective of the rights of individuals rather than permissive of the imposition of limitations by the State.
47.The article was not meant to introduce limitations on rights affecting the subsistence or survival of the individual or integrity of the person.
“determined by law”
48.No limitation on the exercise of economic, social and cultural rights shall be made unless provided for by national law of general application which is consistent with the Covenant and is in force at the time the limitation is applied.
49.Laws imposing limitations on the exercise of economic, social and cultural rights shall not be arbitrary or unreasonable or discriminatory.
50. Legal rules limiting the exercise of economic, social and cultural rights shall be clear and accessible to everyone.
51.Adequate safeguards and effective remedies shall be provided by law against illegal or abusive imposition on application of limitations on economic, social and cultural rights.
“promoting the general welfare”
52.This term shall be construed to mean furthering the well-being of the people as a whole.
“in a democratic society”
53.The expression “in a democratic society” shall be interpreted as imposing a further restriction on the application of limitations.
54.The burden is upon a State imposing limitations to demonstrate that the limitations do not impair the democratic functioning of the society.
55.While there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the Charter of the United Nations and the Universal Declaration of Human Rights may be viewed as meeting this definition.
“compatible with the nature of these rights”
56.The restriction “compatible with the nature of these rights” requires that a limitation shall not be interpreted or applied so as to jeopardize the essence of the right concerned.
Article 5
57.Article 5.1 underlines the fact that there is no general, implied or residual right for a State to impose limitations beyond those which are specifically provided for in the law. None of the provisions in the law may be interpreted in such a way as to destroy “any of the rights or freedoms recognized”. In addition article 5 is intended to ensure that nothing in the Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.
58.The purpose of article 5.2 is to ensure that no provision in the Covenant shall be interpreted to prejudice the provisions of domestic law or any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected. Neither shall article 5.2 be interpreted to restrict the exercise of any human right protected to a greater extent by national or international obligations accepted by the State party.
C. Interpretative principles specifically relating to Part III of the Covenant
Article 8: “prescribed by law”
59.See the interpretative principles under the synonymous term “determined by law” in article 4.
“necessary in a democratic society”
60.In addition to the interpretative principles listed under article 4 concerning the phrase “in a democratic society”, article 8 imposes a greater restraint upon a State party which is exercising limitations on trade union rights. It requires that such a limitation is indeed necessary. The term “necessary” implies that the limitation:
(a)Responds to a pressing public or social need;
(b)Pursues a legitimate aim; and
(c)Is proportional to that aim.
61.Any assessment as to the necessity of a limitation shall be based upon objective considerations.
“national security”
62.National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.
63.National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.
64.National security cannot be used as a pretext for imposing vague or arbitrary limitations and may be invoked only when there exist adequate safeguards and effective remedies against abuse.
65.The systematic violation of economic, social and cultural rights undermines true national security and may jeopardize international peace and security. A State responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.
“public order (ordre public)”
66.The expression “public order (ordre public)” as used in the Covenant may be defined as the sum of rules which ensures the functioning of society or the set of fundamental principles on which a society is founded. Respect for economic, social and cultural rights is part of public order (ordre public).
67.Public order (ordre public) shall be interpreted in the context of the purpose of the particular economic, social and cultural rights which are limited on this ground.
68.State organs or agents responsible for the maintenance of public order (ordre public) shall be subject to controls in the exercise of their power through the parliament, courts, or other competent independent bodies.
“rights and freedoms of others”
69.The scope of the rights and freedoms of others that may act as a limitation upon rights in the Covenant extends beyond the rights and freedoms recognized in the Covenant.
D. Violations of economic, social and cultural rights
70.A failure by a State party to comply with an obligation contained in the Covenant is, under international law, a violation of the Covenant.
71.In determining what amounts to a failure to comply, it must be borne in mind that the Covenant affords to a State party a margin of discretion in selecting the means for carrying out its objects, and that factors beyond its reasonable control may adversely affect its capacity to implement particular rights.
72.A State party will be in violation of the Covenant, inter alia, if:
It fails to take a step which it is required to take by the Covenant;
It fails to remove promptly obstacles which it is under a duty to remove to permit the immediate fulfilment of a right;
It fails to implement without delay a right which it is required by the Covenant to provide immediately;
It wilfully fails to meet a generally accepted international minimum standard of achievement, which is within its powers to meet;
It applies a limitation to a right recognized in the Covenant other than in accordance with the Covenant;
It deliberately retards or halts the progressive realization of a right, unless it is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure;
It fails to submit reports as required under the Covenant.
73.In accordance with international law each State party to the Covenant has the right to express the view that another State party is not complying with its obligations under the Covenant and to bring this to the attention of that State party. Any dispute that may thus arise shall be settled in accordance with the relevant rules of international law relating to the peaceful settlement of disputes.
Part II. CONSIDERATION OF STATES PARTIES’ REPORTS
AND INTERNATIONAL COOPERATION UNDER
PART IV OF THE COVENANT
A. Preparation and submission of reports by States parties
74.The effectiveness of the supervisory machinery provided in Part IV of the Covenant depends largely upon the quality and timeliness of reports by States parties. Governments are therefore urged to make their reports as meaningful as possible. For this purpose they should develop adequate internal procedures for consultations with the competent government departments and agencies, compilation of relevant data, training of staff, acquisition of background documentation, and consultation with relevant non‑governmental and international institutions.
75.The preparation of reports under article 16 of the Covenant could be facilitated by the implementation of elements of the programme of advisory services and technical assistance as proposed by the chairmen of the main human rights supervisory organs in their 1984 report to the General Assembly (A/39/484).
76.States parties should view their reporting obligations as an opportunity for broad public discussion on goals and policies designed to realize economic, social and cultural rights. For this purpose wide publicity should be given to the reports, if possible in draft. The preparation of reports should also be an occasion to review the extent to which relevant national policies adequately reflect the scope and content of each right, and to specify the means by which it is to be realized.
77.States parties are encouraged to examine the possibility of involving non‑governmental organizations in the preparation of their reports.
78.In reporting on legal steps taken to give effect to the Covenant, States parties should not merely describe any relevant legislative provisions. They should specify, as appropriate, the judicial remedies, administrative procedures and other measures they have adopted for enforcing those rights and the practice under those remedies and procedures.
79.Quantitative information should be included in the reports of States parties in order to indicate the extent to which the rights are protected in fact. Statistical information and information on budgetary allocations and expenditures should be presented in such a way as to facilitate the assessment of the compliance with Covenant obligations. States parties should, where possible, adopt clearly defined targets and indicators in implementing the Covenant. Such targets and indicators should, as appropriate, be based on criteria established through international cooperation in order to increase the relevance and comparability of data submitted by States parties in their reports.
80.Where necessary, Governments should conduct or commission studies to enable them to fill gaps in information regarding progress made and difficulties encountered in achieving the observance of the Covenant rights.
81.Reports by States parties should indicate the areas where more progress could be achieved through international cooperation and suggest economic and technical cooperation programmes that might be helpful toward that end.
82.In order to ensure a meaningful dialogue between the States parties and the organs assessing their compliance with the provisions of the Covenant, States parties should designate representatives who are fully familiar with the issues raised in the report.
B. Role of the Committee on Economic, Social and Cultural Rights
83.The Committee has been entrusted with assisting the Economic and Social Council in the substantive tasks assigned to it by the Covenant. In particular, its role is to consider States parties’ reports and to make suggestions and recommendations of a general nature, including suggestions and recommendations as to fuller compliance with the Covenant by States parties. The decision of the Economic and Social Council to replace its sessional working group by a committee of independent experts should lead to a more effective supervision of implementation by States parties.
84.In order to enable it to discharge fully its responsibilities the Economic and Social Council should ensure that sufficient sessions are provided to the Committee. It is imperative that the necessary staff and facilities for the effective performance of the Committee’s functions be provided, in accordance with Economic and Social Council resolution 1985/17.
85.In order to address the complexity of the substantive issues covered by the Covenant, the Committee might consider delegating certain tasks to its members. For example, drafting groups could be established to prepare preliminary formulations or recommendations of a general nature or summaries of the information received. Rapporteurs could be appointed to assist the work of the Committee, in particular to prepare reports on specific topics and for that purpose consult States parties, specialized agencies and relevant experts, and to draw up proposals regarding economic and technical assistance projects that could help overcome difficulties States parties have encountered in fulfilling their Covenant obligations.
86.The Committee should, pursuant to articles 22 and 23 of the Covenant, explore with other organs of the United Nations, specialized agencies and other concerned organizations the possibilities of taking additional international measures likely to contribute to the progressive implementation of the Covenant.
87.The Committee should reconsider the current six-year cycle of reporting in view of the delays which have led to simultaneous consideration of reports submitted under different phases of the cycle. The Committee should also review the guidelines for States parties to assist them in preparing reports and propose any necessary modifications.
88.The Committee should consider inviting States parties to comment on selected topics, leading to a direct and sustained dialogue with the Committee.
89.The Committee should devote adequate attention to the methodological issues involved in assessing compliance with the obligations contained in the Covenant. Reference to indicators, insofar as they may help measure progress made in the achievement of certain rights, may be useful in evaluating reports submitted under the Covenant. The Committee should take due account of the indicators selected by or in the framework of the specialized agencies and draw upon or promote additional research, in consultation with the specialized agencies concerned, where gaps have been identified.
90.Whenever the Committee is not satisfied that the information provided by a State party is adequate for a meaningful assessment of progress achieved and difficulties encountered, it should request supplementary information, specifying as necessary the precise issues or questions it would like the State party to address.
91.In preparing its reports under Economic and Social Council resolution 1985/17, the Committee should consider, in addition to the “summary of its consideration of the reports”, highlighting thematic issues raised during its deliberations.
C. Relations between the Committee and specialized agencies
and other international organs
92.The establishment of the Committee should be seen as an opportunity to develop a positive and mutually beneficial relationship between the Committee and the specialized agencies and other international organs.
93.New arrangements under article 18 of the Covenant should be considered where they could enhance the contribution of the specialized agencies to the work of the Committee. Given that the working methods with regard to the implementation of economic, social and cultural rights vary from one specialized agency to another, flexibility is appropriate in making such arrangements under article 18.
94.It is essential for the proper supervision of the implementation of the Covenant under Part IV that a dialogue be developed between the specialized agencies and the Committee with respect to matters of common interest. In particular, consultations should address the need for developing indicators for assessing compliance with the Covenant; drafting guidelines for the submission of reports by States parties; making arrangements for submission of reports by the specialized agencies under article 18. Consideration should also be given to any relevant procedures adopted in the agencies. Participation of their representatives in meetings of the Committee would be very valuable.
95.It would be useful if Committee members could visit specialized agencies concerned, learn through personal contact about programmes of the agencies relevant to the realization of the rights contained in the Covenant and discuss the possible areas of collaboration with those agencies.
96.Consultations should be initiated between the Committee and international financial institutions and development agencies to exchange information and share ideas on the distribution of available resources in relation to the realization of the rights recognized in the Covenant. These exchanges should consider the impact of international economic assistance on efforts by States parties to implement the Covenant and possibilities of technical and economic cooperation under article 22 of the Covenant.
97.The Commission on Human Rights, in addition to its responsibilities under article 19 of the Covenant, should take into account the work of the Committee in its consideration of items on its agenda relating to economic, social and cultural rights.
98.The Covenant on Economic, Social and Cultural Rights is related to the Covenant on Civil and Political Rights. Although most rights can clearly be delineated as falling within the framework of one or other Covenant, there are several rights and provisions referred to in both instruments which are not susceptible to clear differentiation. both Covenants, moreover, share common provisions and articles. It is important that consultative arrangements be established between the Committee on Economic, Social and Cultural Rights and the Human Rights Committee.
99.Given the relevance of other international legal instruments to the Covenant, early consideration should be given by the Economic and Social Council to the need for developing effective consultative arrangements between the various supervisory bodies.
100.International and regional intergovernmental organizations concerned with the realization of economic, social and cultural rights are urged to develop measures, as appropriate, to promote the implementation of the Covenant.
101.As the Committee is a subsidiary organ of the Economic and Social Council, non‑governmental organizations enjoying consultative status with the Economic and Social Council are urged to attend and follow the meetings of the Committee and, when appropriate, to submit information in accordance with Economic and Social Council resolution 1296 (XLIV).
102.The Committee should develop, in cooperation with intergovernmental organizations and non‑governmental organizations, as well as research institutes, an agreed system for recording, storing and making accessible case law and other interpretative material relating to international instruments on economic, social and cultural rights.
103.As one of the measures recommended in article 23 it is recommended that seminars be held periodically to review the work of the Committee and the progress made in the realization of economic, social and cultural rights by States parties.
THE MAASTRICHT GUIDELINES ON VIOLATIONS OF
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Introduction
On the occasion of the tenth anniversary of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter “the Limburg Principles”), a group of more than 30 experts met in Maastricht from 22 to 26 January 1997 at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, United States of America) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands). The objective of this meeting was to elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies.
The participants unanimously agreed on the following guidelines which they understand to reflect the evolution of international law since 1986. These guidelines are designed to be of use to all who are concerned with understanding and determining violations of economic, social and cultural rights and in providing remedies thereto, in particular monitoring and adjudicating bodies at the national, regional and international levels.
I. THE SIGNIFICANCE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
1.Since the Limburg Principles were adopted in 1986, the economic and social conditions have declined at alarming rates for over 1.6 billion people, while they have advanced also at a dramatic pace for more than a quarter of the world’s population. The gap between rich and poor has doubled in the last three decades, with the poorest fifth of the world’s population receiving 1.4 per cent of the global income and the richest fifth 85 per cent. The impact of these disparities on the lives of people - especially the poor - is dramatic and renders the enjoyment of economic, social and cultural rights illusory for a significant portion of humanity.
2.Since the end of the Cold War, there has been a trend in all regions of the world to reduce the role of the State and to rely on the market to resolve problems of human welfare, often in response to conditions generated by international and national financial markets and institutions and in an effort to attract investments from the multinational enterprises whose wealth and power exceed that of many States. It is no longer taken for granted that the realization of economic, social and cultural rights depends significantly on action by the State, although, as a matter of international law, the State remains ultimately responsible for guaranteeing the realization of these rights. While the challenge of addressing violations of economic, social and cultural rights is rendered more complicated by these trends, it is more urgent than ever to take these rights seriously and, therefore, to deal with the accountability of Governments for failure to meet their obligations in this area.
3.There have also been significant legal developments enhancing economic, social and cultural rights since 1986, including the emerging jurisprudence of the Committee on Economic, Social and Cultural Rights and the adoption of instruments, such as the revised European Social Charter of 1996 and the Additional Protocol to the European Charter providing for a System of Collective Complaints, and the San Salvador Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988. Governments have made firm commitments to address more effectively economic, social and cultural rights within the framework of seven United Nations world summit conferences (1992-1996). Moreover, the potential exists for improved accountability for violations of economic, social and cultural rights through the proposed optional protocols to the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women. Significant developments within national civil society movements and regional and international NGOs in the field of economic, social and cultural rights have taken place.
4.It is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, States are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights.
5.As in the case of civil and political rights, the failure by a State party to comply with a treaty obligation concerning economic, social and cultural rights is, under international law, a violation of that treaty. Building upon the Limburg Principles, the considerations below relate primarily to the International Covenant on Economic, Social and Cultural Rights (hereinafter “the Covenant”). They are equally relevant, however, to the interpretation and application of other norms of international and domestic law in the field of economic, social and cultural rights.
II. THE MEANING OF VIOLATIONS OF ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
Obligations to respect, protect and fulfil
6.Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and fulfil. Failure to perform any one of these three obligations constitutes a violation of such rights. The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus, the right to housing is violated if the State engages in arbitrary forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Thus, the failure of States to provide essential primary health care to those in need may amount to a violation.
Obligations of conduct and of result
7.The obligations to respect, protect and fulfil each contain elements of obligation of conduct and obligation of result. The obligation of conduct requires action reasonably calculated to realize the enjoyment of a particular right. In the case of the right to health, for example, the obligation of conduct could involve the adoption and implementation of a plan of action to reduce maternal mortality. The obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard. With respect to the right to health, for example, the obligation of result requires the reduction of maternal mortality to levels agreed at the 1994 Cairo International Conference on Population and Development and the 1995 Beijing Fourth World Conference on Women.
Margin of discretion
8.As in the case of civil and political rights, States enjoy a margin of discretion in selecting the means for implementing their respective obligations. State practice and the application of legal norms to concrete cases and situations by international treaty monitoring bodies as well as by domestic courts have contributed to the development of universal minimum standards and the common understanding of the scope, nature and limitation of economic, social and cultural rights. The fact that the full realization of most economic, social and cultural rights can only be achieved progressively, which in fact also applies to most civil and political rights, does not alter the nature of the legal obligation of States which requires that certain steps be taken immediately and others as soon as possible. Therefore, the burden is on the State to demonstrate that it is making measurable progress toward the full realization of the rights in question. The State cannot use the “progressive realization” provisions in article 2 of the Covenant as a pretext for non‑compliance. Nor can the State justify derogations or limitations of rights recognized in the Covenant because of different social, religious and cultural backgrounds.
Minimum core obligations
9.Violations of the Covenant occur when a State fails to satisfy what the Committee on Economic, Social and Cultural Rights has referred to as “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights ... Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, violating the Covenant”. Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difficulties.
Availability of resources
10.In many cases, compliance with such obligations may be undertaken by most States with relative ease, and without significant resource implications. In other cases, however, full realization of the rights may depend upon the availability of adequate financial and material resources. Nonetheless, as established by Limburg Principles 25‑28, and confirmed by the developing jurisprudence of the Committee on Economic, Social and Cultural Rights, resource scarcity does not relieve States of certain minimum obligations in respect of the implementation of economic, social and cultural rights.
State policies
11.A violation of economic, social and cultural rights occurs when a State pursues, by action or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant, or fails to achieve the required standard of conduct or result. Furthermore, any discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.
Gender discrimination
12.Discrimination against women in relation to the rights recognized in the Covenant, is understood in the light of the standard of equality for women under the Convention on the Elimination of All Forms of Discrimination against Women. That standard requires the elimination of all forms of discrimination against women including gender discrimination arising out of social, cultural and other structural disadvantages.
Inability to comply
13.In determining which actions or omissions amount to a violation of an economic, social or cultural right, it is important to distinguish the inability from the unwillingness of a State to comply with its treaty obligations. A State claiming that it is unable to carry out its obligations for reasons beyond its control has the burden of proving that this is the case. A temporary closure of an educational institution due to an earthquake, for instance, would be a circumstance beyond the control of the State, while the elimination of a social security scheme without an adequate replacement programme could be an example of unwillingness by the State to fulfil its obligations.
Violations through acts of commission
14.Violations of economic, social and cultural rights can occur through the direct action of States or other entities insufficiently regulated by States. Examples of such violations include:
(a)The formal removal or suspension of legislation necessary for the continued enjoyment of an economic, social and cultural right that is currently enjoyed;
(b)The active denial of such rights to particular individuals or groups, whether through legislated or enforced discrimination;
(c)The active support for measures adopted by third parties which are inconsistent with economic, social and cultural rights;
(d)The adoption of legislation or policies which are manifestly incompatible with pre‑existing legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realization of economic, social and cultural rights for the most vulnerable groups;
(e)The adoption of any deliberately retrogressive measure that reduces the extent to which any such right is guaranteed;
(f)The calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant, unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure;
(g)The reduction or diversion of specific public expenditure, when such reduction or diversion results in the non‑enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for everyone.
Violations through acts of omission
15.Violations of economic, social and cultural rights can also occur through the omission or failure of States to take necessary measures stemming from legal obligations. Examples of such violations include:
(a)The failure to take appropriate steps as required under the Covenant;
(b)The failure to reform or repeal legislation which is manifestly inconsistent with an obligation of the Covenant;
(c)The failure to enforce legislation or put into effect policies designed to implement provisions of the Covenant;
(d)The failure to regulate activities of individuals or groups so as to prevent them from violating economic, social and cultural rights;
(e)The failure to utilize the maximum of available resources towards the full realization of the Covenant;
(f)The failure to monitor the realization of economic, social and cultural rights, including the development and application of criteria and indicators for assessing compliance;
(g)The failure to remove promptly obstacles which it is under a duty to remove to permit the immediate fulfilment of a right guaranteed by the Covenant;
(h)The failure to implement without delay a right which it is required by the Covenant to provide immediately;
(i)The failure to meet a generally accepted international minimum standard of achievement, which is within its powers to meet;
(j)The failure of a State to take into account its international legal obligations in the field of economic, social and cultural rights when entering into bilateral or multilateral agreements with other States, international organizations or multinational corporations.
III. RESPONSIBILITY FOR VIOLATIONS
State responsibility
16.The violations referred to in section II are in principle imputable to the State within whose jurisdiction they occur. As a consequence, the State responsible must establish mechanisms to correct such violations, including monitoring investigation, prosecution, and remedies for victims.
Alien domination or occupation
17.Under circumstances of alien domination, deprivations of economic, social and cultural rights may be imputable to the conduct of the State exercising effective control over the territory in question. This is true under conditions of colonialism, other forms of alien domination and military occupation. The dominating or occupying power bears responsibility for violations of economic, social and cultural rights. There are also circumstances in which States acting in concert violate economic, social and cultural rights.
Acts by non‑State entities
18.The obligation to protect includes the State’s responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non‑State actors.
Acts by international organizations
19.The obligations of States to protect economic, social and cultural rights extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their influence to ensure that violations do not result from the programmes and policies of the organizations of which they are members. It is crucial for the elimination of violations of economic, social and cultural rights for international organizations, including international financial institutions, to correct their policies and practices so that they do not result in deprivation of economic, social and cultural rights. Member States of such organizations, individually or through the governing bodies, as well as the secretariat and non‑governmental organizations, should encourage and generalize the trend of several such organizations to revise their policies and programmes to take into account issues of economic, social and cultural rights, especially when these policies and programmes are implemented in countries that lack the resources to resist the pressure brought by international institutions on their decision‑making affecting economic, social and cultural rights.
IV. VICTIMS OF VIOLATIONS
Individuals and groups
20.As is the case with civil and political rights, both individuals and groups can be victims of violations of economic, social and cultural rights. Certain groups suffer disproportionate harm in this respect, such as lower‑income groups, women, indigenous and tribal peoples, occupied populations, asylum seekers, refugees and internally displaced persons, minorities, the elderly, children, landless peasants, persons with disabilities and the homeless.
Criminal sanctions
21.Victims of violations of economic, social and cultural rights should not face criminal sanctions purely because of their status as victims, for example, through laws criminalizing persons for being homeless. Nor should anyone be penalized for claiming their economic, social and cultural rights.
V. REMEDIES AND OTHER RESPONSES TO VIOLATIONS
Access to remedies
22.Any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both national and international levels.
Adequate reparation
23.All victims of violations of economic, social and cultural rights are entitled to adequate reparation, which may take the form of restitution, compensation, rehabilitation and satisfaction or guarantees of non‑repetition.
No official sanctioning of violations
24.National judicial and other organs must ensure that any pronouncements they may make do not result in the official sanctioning of a violation of an international obligation of the State concerned. At a minimum, national judiciaries should consider the relevant provisions of international and regional human rights law as an interpretative aide in formulating any decisions relating to violations of economic, social and cultural rights.
National institutions
25.Promotional and monitoring bodies such as national ombudsman institutions and human rights commissions, should address violations of economic, social and cultural rights as vigorously as they address violations of civil and political rights.
Domestic application of international instruments
26.The direct incorporation or application of international instruments recognizing economic, social and cultural rights within the domestic legal order can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases.
Impunity
27.States should develop effective measures to preclude the possibility of impunity of any violation of economic, social and cultural rights and to ensure that no person who may be responsible for violations of such rights has immunity from liability for their actions.
Role of the legal professions
28.In order to achieve effective judicial and other remedies for victims of violations of economic, social and cultural rights, lawyers, judges, adjudicators, bar associations and the legal community generally should pay far greater attention to these violations in the exercise of their professions, as recommended by the International Commission of Jurists in the Bangalore Declaration and Plan of Action of 1995.
Special rapporteurs
29.In order to further strengthen international mechanisms with respect to preventing, early warning, monitoring and redressing violations of economic, social and cultural rights, the United Nations Commission on Human Rights should appoint thematic special rapporteurs in this field.
New standards
30.In order to further clarify the contents of States’ obligations to respect, protect and fulfil economic, social and cultural rights, States and appropriate international bodies should actively pursue the adoption of new standards on specific economic, social and cultural rights, in particular the right to work, to food, to housing and to health.
Optional protocols
31.The optional protocol providing for individual and group complaints in relation to the rights recognized in the Covenant should be adopted and ratified without delay. The proposed optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women should ensure that equal attention is paid to violations of economic, social and cultural rights. In addition, consideration should be given to the drafting of an optional complaints procedure under the Convention on the Rights of the Child.
Documenting and monitoring
32.Documenting and monitoring violations of economic, social and cultural rights should be carried out by all relevant actors, including NGOs, national Governments and international organizations. It is indispensable that the relevant international organizations provide the support necessary for the implementation of international instruments in this field. The mandate of the United Nations High Commissioner for Human Rights includes the promotion of economic, social and cultural rights and it is essential that effective steps be taken urgently and that adequate staff and financial resources be devoted to this objective. Specialized agencies and other international organizations working in the economic and social spheres should also place appropriate emphasis upon economic, social and cultural rights as rights and, where they do not already do so, should contribute to efforts to respond to violations of these rights.
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