Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights

Human Rights Quarterly

Volumn 20, Issue 3, 1998, Pages 705-730

  Dankwa, Victor ^a   Flinterman, Cees ^b   Leckie, Scott ^b  

^a UNIVERSITY OF GHANA   (Ghana)

^b NONE

Author keywords

[No Author keywords available]

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EID: 0345870042     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1998.0028     Document Type: Article

References (66)

1. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, 993 U.N.T.S. 3, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force 3 Jan. 1976) [hereinafter ICESCR].
2. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted 8 Jan. 1987, U.N. ESCOR, Comm'n on Hum. Rts., 43d Sess., Agenda Item 8, U.N. Doc. E/CN.4/1987/17/Annex (1987), reprinted in The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 9 HUM. RTS. Q. 122 (1987); and 37 ICJ REV., Dec. 1986, at 43 [hereinafter Limburg Principles].
3. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted 8 Jan. 1987, U.N. ESCOR, Comm'n on Hum. Rts., 43d Sess., Agenda Item 8, U.N. Doc. E/CN.4/1987/17/Annex (1987), reprinted in The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 9 HUM. RTS. Q. 122 (1987); and 37 ICJ REV., Dec. 1986, at 43 [hereinafter Limburg Principles].
4. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1667 (1993) [hereinafter Vienna Declaration].
5. ADVISORY COMMITTEE ON HUMAN RIGHTS AND FOREIGN POLICY, ECONOMIC, SOCIAL AND CULTURAL HUMAN RIGHTS (Advisory Report No. 18, 1995).
6. Id. at 31-35.
7. Letter of reply from the Netherlands Minister for Foreign Affairs concerning the Advisory Report on Economic, Social and Cultural Rights (24 July 1995) (The letter can be obtained from the Secretary of the Advisory Committee on Human Rights and Foreign Policy, P.O. Box 20061, 2500 EB The Hague, The Netherlands.).
8. Limburg Principles, supra note 2, princ. 79. See also DANILO TÜRK, SPECIAL RAPPORTEUR OF THE SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES, THE FULL REALIZATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (FINAL REPORT), U.N. ESCOR, Comm'n on Hum. Rts., 48th Sess., Agenda Item 8, U.N. Doc. E/CN.4/Sub.2/1992/16 (1992). Principle 79 states: 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 co- operation in order to increase the relevance and comparability of data submitted by States parties in their reports. Limburg Principles, supra note 2, princ. 79.
9. Limburg Principles, supra note 2, princ. 79. See also DANILO TÜRK, SPECIAL RAPPORTEUR OF THE SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES, THE FULL REALIZATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (FINAL REPORT), U.N. ESCOR, Comm'n on Hum. Rts., 48th Sess., Agenda Item 8, U.N. Doc. E/CN.4/Sub.2/1992/16 (1992). Principle 79 states: 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 co-operation in order to increase the relevance and comparability of data submitted by States parties in their reports. Limburg Principles, supra note 2, princ. 79.
10. UN Seminar on Appropriate Indicators to Measure Achievements in the Progressive Realization of Economic, Social and Cultural Rights, U.N. GAOR, World Conf. on Hum. Rts., 4th Sess., Provisional Agenda Item 6, U.N. Doc. A/CONF.157/PC/73 (1993).
11. See Status of the International Covenants on Human Rights, Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. ESCOR, Comm'n on Hum. Rts., 53d Sess., Agenda Item 14, U.N. Doc. E/CN.4/1997/105 (1997) (including a draft text of the Optional Protocol to the ICESCR).
12. Limburg Principles, supra note 2, princs. 70-73. Principles 70-73 state: 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 fulfillment 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 majeur; - 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. Id.
13. Audrey R. Chapman, A "Violations Approach" for Monitoring the International Covenant on Economic, Social and Cultural Rights, 18 HUM. RTS. Q. 23 (1996).
14. Id. at 66.
15. U.N. CHARTER art. 55, ¶¶ 1-2, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945).
16. Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development, adopted 12 Mar. 1995, at Annex 1, ¶ 23, U.N. Doc. A/CONF.166/9 (1995), available on 〈gopher://gopher.undp.org:70/00/unconfs/wssd/ summit/off/a - 9.en〉 [hereinafter Copenhagen Declaration on Social Development].
17. First United Nations Decade for the Eradication of Poverty, adopted 1 6 Dec. 1996, G.A. Res. 51/178, U.N. GAOR, 51st Sess., Agenda Item 96(f), U.N. Doc. A/RES/51/178 (1997), available on 〈gopher://gopher.un.org:70/00/ga/recs/51/RES51-EN.178〉.
18. Limburg Principles, supra note 2, princ. 6. Principle 6 states: 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. Id.
19. ICESCR, supra note 1, art. 16(1).
20. Vienna Declaration, supra note 3.
21. Report of the International Conference on Population and Development, U.N. Doc. A/CONF.171/13 (1994), available on 〈gopher://gopher.undp.org:70/00/ungophers/popin/ icpd/conference/offeng/poa〉.
22. Copenhagen Declaration on Social Development, supra note 14.
23. Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, U.N. GAOR, U.N. Doc. A/CONF.177/20 (1995), reprinted in REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN (1995).
24. Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, U.N. GAOR, U.N. Doc. A/CONF.177/20 (1995), reprinted in REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN (1995).
25. Vienna Declaration, supra note 3, ¶ 4 (emphasis added).
26. Bangalore Declaration and Plan of Action, adopted 25 Oct. 1995, reprinted in 55 ICJ REV., Dec. 1995, at 219.
27. Vienna Declaration, supra note 3, ¶¶ 1, 5.
28. Limburg Principles, supra note 2, princ. 1. Principle 1 states: 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. Id.
29. See supra comment on Guideline 4 in the text.
30. See Limburg Principles, supra note 2, princs. 70-73, quoted in supra note 10.
31. Proclamation of Teheran of 1968, U.N. Sales No. E.68.XIV.2 (1968).
32. Vienna Declaration, supra note 3. It asserts: "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis." Id. at pt. 1, ¶ 5. Whereas Article 13 of the Proclamation of Teheran states: "Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights, is impossible." Proclamation of Teheran of 1968, supra note 28. In addition, Article 1(a) of resolution 32/130 provides: "All 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." Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, G.A. Res. 32/130, U.N. GAOR, 32d Sess. (1977).
33. Vienna Declaration, supra note 3. It asserts: "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis." Id. at pt. 1, ¶ 5. Whereas Article 13 of the Proclamation of Teheran states: "Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights, is impossible." Proclamation of Teheran of 1968, supra note 28. In addition, Article 1(a) of resolution 32/130 provides: "All 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." Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, G.A. Res. 32/130, U.N. GAOR, 32d Sess. (1977).
34. CENTRE FOR HUMAN RIGHTS, RIGHT TO ADEQUATE FOOD AS A HUMAN RIGHT, U.N. Doc. E/CN.4/ Sub.2/1987/23, U.N. Sales No. E.89.XIV.2 (1989).
35. See, e.g., Forced Evictions, C.H.R. Res. 1993/77, U.N. ESCOR, Comm'n on Hum. Rts., 49th Sess., at 227-29, ¶ 1, U.N. Doc. E/CN.4/1993/122 ("[a]ffirm[ing] that the practice of forced eviction constitutes a gross violation of human rights, in particular the right to adequate housing").
36. The concept of "horizontal effectiveness" of human rights has only gradually become part of the human rights doctrine. This is mainly because it raises the question of human rights in a relationship between individuals, whereas "traditional" human rights concentrate on protecting the individual from unlawful interference by the state. Nevertheless, "horizontal effectiveness" of human rights has become generally accepted, especially in cases where an individual's human right implies a third party's obligation to abstain (e.g., right to privacy, freedom to strike, etc.). See Allan Rosas & Martin Scheinin, Categories and Beneficiaries of Human Rights, in AN INTRODUCTION TO THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS 58 (Raija Hanski & Markku Suksi eds., 1997).
37. ICESCR, supra note 1, art. 2(1).
38. The ICESCR requires that state parties submit periodic reports. ICESCR, supra note 1, art. 16.
39. See Scott Leckie, Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights, 20 HUM. RTS. Q. 81, 117-2 (1998).
40. See State Responsibility, in Report of the Commission to the General Assembly on the Work of its Twenty-Ninth Session, 2 Y.B. INT'L L. COMM'N 5, 11-19 (1977), U.N. Doc. A/CN.4/1977/Add.1 (Part 2).
41. The obligation of conduct is closely related to the concept of "progressive realization," and appears in several articles of the ICESCR. For example, art. 13 (2)(e) states: "The development of a system of schools at all levels shall be actively pursued . . . the material conditions of staff shall be continuously improved." Such a duty of conduct with regard to, for example, the right to primary health care could entail the development of a national health care strategy, whereas an obligation of result would invoke the obligation to attain specific targets (e.g., the reduction of child mortality by x percent).
42. The Nature of States Parties Obligations, General Comment No. 3 adopted 13-14 Dec. 1990, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 5th Sess., 49th & 50th mtg, U.N. Doc. E/C. 12/1990/8 (1990). Although not explicitly provided for in the ICESCK, tne Committee's General Comments form a significant part of its efforts to clarify the scope and content of the rights protected by the Covenant. It hereby adopts a strategy similar to the Human Rights Committee under the International Covenant on Civil and Political Rights.
43. See, e.g., Matthew C.R. Craven, The Domestic Application of the International Covenant on Economic, Social and Cultural Rights, 40 NETH. INT'L L. REV. 367 (1993), MATTHEW C.R. CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT (1995); ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A TEXTBOOK Asbjørn Eide et al. eds., 1995); SOCIAL RIGHTS AS HUMAN RIGHTS: A EUROPEAN CHALLENGE (Krzysztof Drzewicki et al. eds., 1994).
44. See, e.g., Matthew C.R. Craven, The Domestic Application of the International Covenant on Economic, Social and Cultural Rights, 40 NETH. INT'L L. REV. 367 (1993), MATTHEW C.R. CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT (1995); ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A TEXTBOOK Asbjørn Eide et al. eds., 1995); SOCIAL RIGHTS AS HUMAN RIGHTS: A EUROPEAN CHALLENGE (Krzysztof Drzewicki et al. eds., 1994).
45. See, e.g., Matthew C.R. Craven, The Domestic Application of the International Covenant on Economic, Social and Cultural Rights, 40 NETH. INT'L L. REV. 367 (1993), MATTHEW C.R. CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT (1995); ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A TEXTBOOK Asbjørn Eide et al. eds., 1995); SOCIAL RIGHTS AS HUMAN RIGHTS: A EUROPEAN CHALLENGE (Krzysztof Drzewicki et al. eds., 1994).
46. See, e.g., Matthew C.R. Craven, The Domestic Application of the International Covenant on Economic, Social and Cultural Rights, 40 NETH. INT'L L. REV. 367 (1993), MATTHEW C.R. CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT (1995); ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A TEXTBOOK Asbjørn Eide et al. eds., 1995); SOCIAL RIGHTS AS HUMAN RIGHTS: A EUROPEAN CHALLENGE (Krzysztof Drzewicki et al. eds., 1994).
47. Cultural relativists continuously question the universal character of human rights by emphasizing cultural traditions and "uniqueness." They argue that because of these differences in culture, human rights law should not be universally or uniformly applied. This view ignores the common characteristics of all human beings and is often a mere pretext used by states violating human rights in order to reject external criticism. Accepting the argument of cultural relativism would automatically lead to the silencing of all criticism on human rights violations. It was therefore already categorically rejected in the first major international human rights document, the Universal Declaration on Human Rights of 1948. Universal Declaration of Human Rights, adopted 10 Dec. 1948, C.A. Res. 217A (III), 3 U.N. GAOR (Resolutions, part 1) at 71, 3d Sess., U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949).
48. An example of a cost-free measure resulting in an enhanced enjoyment of economic, social and cultural rights, is the adoption of legislation against discrimination, for example against gender discrimination, by legislating equal pay for equal work, preferably matched by the provision of effective judicial remedies. See DANILO TÜRK, SPECIAL RAPPORTEUR OF THE SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES, REALIZATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (PRELIMINARY REPORT), U.N. ESCOR, Comm'n on Hum. Rts., 41st Sess., Provisional Agenda Item 7, U.N. Doc. E/ CN.4/Sub.2/1989/19 (1989) (providing further examples of low-cost measures).
49. See supra text regarding Guideline 7.
50. See Limburg Principles, supra note 2, princs. 35-41. Principles 35-41 state: 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. Id.
51. ICESCR, supra note 1, art. 3.
52. Convention on the Elimination of All Forms of Discriminate Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/ 34/36 (1980) (entered into force 3 Sept. 1981), reprinted in 19 I.L.M. 33 (1900).
53. Id. See Katarina Tomaševski, Women, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK, supra note 39, at 273.
54. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969) 1155 U.N.T.S. 331, (entered into force 27 Jan. 1980), reprinted in RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 540.1 (2d ed. 1990).
55. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969) 1155 U.N.T.S. 331, (entered into force 27 Jan. 1980), reprinted in RICHARD B. LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 540.1 (2d ed. 1990).
56. The Nature of States Parties Obligations, supra note 38.
57. Id.
58. Limburg Principles, supra note 2, princs. 70-72, quoted in supra note 10.
59. ICESCR, supra note 1, art. 2(1).
60. Limburg Principles, supra note 2, princs. 16-20, 72. Principles 16-20 state: 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 fulfill their obligations under the Covenant. 18. Legislative measures alone are not sufficient to fulfill 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. Id.
61. Id. princ. 18.
62. Id. princs. 25-28. Principles 25-28 state: 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 co-operation 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. Id.
63. Id. princ. 72, quoted in supra note 10.
64. See Bangalore Declaration and Plan of Action, supra note 23, ¶ 11.
65. The most recent text of the revised draft optional protocol to the Convention on the Elimination of All Forms of Discrimination Against Women is contained in C.S.W. Res., U.N. ESCOR, Comm'n of the Status of Women, 42d Sess., U.N. Doc. E/CN.6/1998/WG/ L.2 (12 Mar. 1998).
66. Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25 U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989).