Limitations to and derogations from economic, social and cultural rights

Human Rights Law Review

Volumn 9, Issue 4, 2009, Pages 557-601

  Müller, Amrei ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 77955729668     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngp027     Document Type: Article

References (233)

1. 993 UNTS 3, which entered into force on 3 January 1976.
2. Article 2(1) ICESCR.
3. GA Res. 63/117, 10 December 2008, A/RES/63/117. It is planned to open the Optional Protocol for signature at a signing ceremony later in 2009.
4. For instance, greater clarity in the scope of states' obligations under the ICESCR in times of armed conflict would also facilitate the discussion about the relationship of legal obligations under the ICESCR and international humanitarian law.
5. 213 UNTS 222
6. 312 ETS 5.
7. A 161 (1989)
8. 11 EHRR 439 at para.89.
9. See Articles 12, 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (ICCPR)
10. Article 8 ICESCR. Regional treaties may list further grounds for limitations, see, for example, Article 8 ECHR
11. Article 32(2) of the American Convention on Human Rights 1978, 1144 UNTS 123 (ACHR)
12. Article 14 of the African Charter on Human and Peoples' Rights 1986, OAU CAB/LEG/67/3 rev.5
13. 1520 UNTS 217
14. 21 ILM 58 (1982) (ACHPR).
15. For a extensive discussions of these criteria, see for example Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn (Kehl: N.P. Engel, 2005)
16. Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge: Cambridge University Press, 2002) at chapter 7
17. earlier Lockwood, Finn and Jubinsky, 'Working Paper for the Committee of Experts on Limitation Provisions', (1985) 7 Human Rights Quarterly 35.
18. Articles 12, 18, 19, 21 and 22 ICCPR
19. Article 8 ICESCR
20. Articles 8, 9, 10 and 11 ECHR
21. Articles 12, 13, 15, 16, 22 and 32(2) ACHR
22. Articles 11 and 27(2) ACHPR
23. Articles 19 ICCPR
24. Article 13(2)(a) ACHR additionally allow for limitations that aim to protect the 'reputations of others'.
25. Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR, E/CN.4/1985/4 (1985) at para. 35. The Principles were formulated by 31 experts in international law at a conference in Sicily in 1985 and then adopted by the then UN Sub-Commission on Prevention of Discrimination and Protection of Minorities.
26. See Articles 12(3), 18(3), 19(3), 21 and 22 ICCPR
27. Articles 4 and 8 ICESCR
28. Articles 5(1), 8(2), 9(2), 10(2), and 11(2) ECHR
29. Articles 12(3), 13(2) and (4), 15, 16(2), 21(2) and 22(3) ACHR
30. Articles 11, 12(2) and 14 ACHPR. Some Articles contain a slightly different wording, such as 'prescribed by law', 'in accordance with the law'and 'in conformity with the law'.
31. Articles 12(3), 18(3) and 19(3) ICCPR
32. Articles 12(3) and 13(2) ACHR
33. Article 11 ACHPR.
34. Articles 14(1), 21 and 22(2) ICCPR
35. Article 8 ICESCR
36. Articles 15, 16(2) and 22(3) ACHR. The ECHR refers even more frequently to 'democratic society', namely in Articles 6(1), 8(2), 9(2), 10(2) and 11(2)
37. Article 31(1) of the European Social Charter 1961, CETS 35
38. Article G Revised European Social Charter 1996, 529 UNTS 89, CETS 163
39. Article 4 ICESCR and Article 29 of the Universal Declaration of Human Rights, 10 December 1948, GA Res. 217 A (III), refer merely to 'a democratic society' while omitting the word 'necessary'.
40. Steiner, Alston and Goodman (eds), International Human Rights in Context: Law, Politics, Morals, 3rd edn (Oxford: Oxford University Press, 2008) at 385.
41. Tyrer v United Kingdom A 26 (1978)
42. 2 EHRR 1 at para. 31.
43. See also Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, 2nd edn by Harris, O'Boyle, Bates and Buckley (Oxford: Oxford University Press, 2009) at 7-8.
44. Kiss, 'Permissible Limitations on Rights', in Henkin (ed.), The International Bill of Rights (New York: Columbia University Press, 1981) at 290
45. McGoldrick, 'The Interface Between Public Emergency Powers and International Law', (2004) 2 International Journal on Constitutional Law 380 at 383.
46. Article 4(1) ICCPR.
47. Article 4(1) ICCPR reads: 'In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.'
48. Article 15 ECHR and Article 27 ACHR. The provisions of the ICCPR, ECHR and ACHR reveal some differences; the basic principles are, however, similar and are emphasised here.
49. See, for example, the more extensive discussions of derogations from civil and political rights in the following principal documents and literature: Human Rights Committee General Comment 29: States of Emergency (art. 4), 31 August 2001, CCPR/C/21/Rev.1/Add.11
50. 9 IHRR 303 (1999)
51. Tenth annual report and list of states which, since January 1985, have proclaimed, extended or terminated a state of emergency, presented by Mr Leandro Despouy, Special Rapporteur appointed pursuant to ECOSOC Res. 1985/37, 23 June 1997, E/CN.4/Sub.2/1997/19 at para. 34, which lists situations which have been recognised as 'public emergencies threatening the life of the nation'
52. Fitzpatrick, Human Rights in Crisis (Philadelphia: University of Pennsylvania Press, 1994)
53. Oraa, Human Rights in States of Emergency in International Law (Oxford: Oxford University Press, 1992)
54. Svensson-McCarthy, The International Law of Human Rights and the States of Exception (The Hague: Martinus Nijhoff Publishers, 1998).
55. Article 4(1) ICCPR refers to a'public emergency which threatens the life of the nation'; Article 15 ECHR refers to 'war or other public emergency threatening the life of the nation'
56. Article 27 ACHR refers to'war, public danger, or other emergency that threatens the independence or security of a State Party'.
57. The ECtHR has defined a 'public emergency threatening the life of the nation' as an 'exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the state party is composed.' See Lawless v Ireland (Merits) A 3 (1961)
58. 1 EHRR 15 at para. 28.
59. International Commission of Jurists, States of Emergency - Their Impact on Human Rights, 1983, at 413.
60. However, while such action by the state may be necessary to prevent private acts in violation of human rights, in practice, as many accounts of states of emergency show, a large problem is how to prevent abuse by those acting for the state, particularly in military dictatorships.
61. Non-derogable rights under the ICCPR are Articles 6, 7, 8(1) and (2), 11, 15, 16 and 18. In contrast, the ECHR contains only four non-derogable rights listed in its Article 15(2), whereas the ACHR contains the longest list of non-derogable rights (11) in its Article 27(2).
62. Article 4(1) ICCPR and Article 27(1) ACHR explicitly prohibit certain forms of discrimination in emergency measures, whereas the ECHR is silent on the issue. This does not allow for the conclusion that arbitrary discrimination against certain groups is permitted in times of emergency under the ECHR, since it is difficult to argue that it is 'strictly required by the exigencies of the situation'
63. Article 4(1) ICCPR
64. It should be noted that the list of grounds on which discrimination is prohibited under Article 4(1) is more limited than the grounds set out in Article 2(1) ICCPR which adds political or other opinion, national origin, property, birth or other status. The grounds listed in Article 4(1) ICCPR are exhaustive, i.e. certain forms of discrimination are permitted in the context of derogations as long as it is not arbitrary.
65. Article 4(1) ICCPR
66. Article 15(1) ECHR. The wording of Article 27(1) ACHR differs slightly as it allows derogations 'to the extent and for the period of time strictly required by the exigencies of the situation'.
67. Article 15(3) ECHR and Article 27(3) ACHR require notification to the Secretary-Generals of the Council of Europe and the Organisation of American States respectively.
68. This is obvious from the list of states that have proclaimed a state of emergency, which is published biennially by the UN Office of the High Commissioner for Human Rights (OHCHR). For the most recent list available, see OHCHR, List of states which have proclaimed or continued a state of emergency, 7 July 2005, E/CN.4/Sub.2/2005/6.
69. CESCR, Revised general guidelines regarding the form and contents of reports to be submitted by states parties under Articles 16 and 17 of the ICESCR, 17 June 1991, E/C.12/1991/1.
70. The Guidelines on Treaty Specific Documents, 24 March 2009, E/C.12/2008/2 at para.
71. 14 read in conjunction with the Compilation of Guidelines on the Form and Content of Reports, 29 May 2008, HRI/GEN/2/Rev.5 at para. 40(c), now requires states to include information explaining the scope of 'derogations, restrictions or limitations; the circumstances justifying them
72. the timeframe envisaged for their withdrawal' in their common core documents to all UN human rights treaty bodies.
73. Two of the rare exceptions are: CESCR, List of Issues regarding Kyrgyzstan, 10 December 1999, E/C.12/Q/KYRG/1 at para. 12
74. CESCR, List of Issues regarding Lichtenstein, 14 December 2004, E/C.12/Q/LIE/1.
75. From the 54 state reports examined by the CESCR between April 2004 and May 2009, 26 directly mentioned Article 4 ICESCR, including the document submitted by the United Nations Interim Administration Mission in Kosovo (UNMIK).
76. See the discussion below on the interpretation of Article 4 ICESCR.
77. CESCR, Initial Report, Tajikistan, 31 May 2006, E/C.2/TJK/1, at paras.124-75. Similarly see, for example, CESCR, Second Periodic Report, Nepal, 7 August 2006, E/C.12/NPL/2, at paras 110-23
78. CESCR, Initial Report, Malta, 26 May 2003, E/1990/5/Add.58 at paras 41-5
79. CESCR, Initial Report, Kuwait, 20 November 2003, E/1990/5/Add.57 at paras 67-70
80. CESCR, People's Republic of China, reporting on the implementation of the ICESCR in Macao Special Administrative Region, 4 March 2004, E/1990/5/Add.59 at paras 823-6
81. CESCR, Third Periodic Rep or t, Portugal, 22 May 1998, E/1994/104/Add.20 at paras 73-96.
82. Two of the rare exceptions are Brazil and Switzerland, at least concerning limitations: CESCR, Second Periodic Report, Brazil, 28 January 2008, E/C.12/BRA/2 at para. 169
83. CESCR, Initial Report, Switzerland, 18 September 1996, E/1990/5/Add.33 at paras 66-72. Some detail is also given by CESCR, Third Periodic Report, Chile, 14 July 2003, E/1994/104/Add.26 at para. 142
84. CESCR, Initial Report, Latvia, 21 September 2005, E/1990/5/Add.70 at paras 98-101
85. the document submitted by UNMIK, 15 January 2008, E/C.12/UNK/1 at paras 114 - 15.
86. CESCR, Second Periodic Report, Algeria, 28 July 2000, E/1990/6/Add.26 at para. 46.
87. The fact that the Tajik report to the HRC contains a similarly long section on the Tajik emergency legislation is revealing in this respect, see: HRC, Initial Report, Tajikistan, 11 April 2005, CCPR/C/TJK/2004/1 at paras 52-8.
88. CESCR, Initial Report, Peru, 17 June 1996, E /1990/5/Ad d.29 at paras 114 - 22.
89. CESCR, Combined Second, Third and Fourth Periodic Reports, Philippines, 7 September 2007, E/C.12/PHL/4 at para. 76. Similarly, see CESCR, Second Periodic Report, Ecuador, 20 December 2002, E/1990/6/Add.36 at para. 36
90. CESCR, Initial Report, Egypt, 30 June 1998, E/1990/5/Add.38 at paras 71-4
91. CESCR, Second Periodic Report, Venezuela, 8 January 1999, E/1990/6/Add.19 at para. 26, stating that 'Venezuela fully recognises and complies with the provisions of the statement in article 4 of the Covenant.'
92. CESCR, Third Periodic Report, Mexico, 27 January 1998, E/1994/104/Add.18 at para. 52
93. CESCR, Third Periodic Report, Morocco, 17 January 2005, E/1994/104/Add.29 at para. 86
94. CESCR, Fifth Periodic Report, United Kingdom, 31 January 2008, E/C.12/GBR/5, at para. 205, holding that there was 'nothing to report' under Article 4.
95. For example, Second Periodic Report, Azerbaijan, 1 December 2003, E/1990/6/Add.37 at para. 154
96. CESCR, Combined Second - Fifth Periodic Reports, India, 1 March 2007, E/C.12/IND/5 at para. 173
97. CESCR, Fifth Periodic Report, Ukraine, 14 August 2006, E/C.12/UKR/5 at paras 195 and 199. See also Part D(ii) below for the discussion about derogations from the International Labour Organisation (ILO) Conventions.
98. CESCR, Initial Report, Slovenia, 26 May 2006, E/1990/5/Add.62 at paras 53 and 99-105. See also CESCR, Initial Report, Kyrgyzstan, 26 February 1999, E/1990/5/Add.42 at para. 14
99. CESCR, Initial Report, Tajikistan, 31 May 2006, E/C.12/TJK/1 at para. 150.
100. CESCR General Comment 13: Right to education (art. 13), 8 December 1999, E/C.12/1999/10; 7 IHRR 303 (2000) at para. 42
101. CESCR General Comment14: Right to the highest attainable standards of health (art.12), 11 August 2000, E/C.12/2000/4; 8 IHRR 1 (2001) at para. 28, are the only General Comments that directly mention Article 4 ICESCR.
102. The CESCR sometimes refers to the non-derogability of minimum core obligations corresponding to each ESC right, for example, CESCR, Poverty and the ICESCR: Statement by the Committee to the Third United Nations Conference on Least Developed Countries, 10 May 2001, E/C.12/20 01/10 at para. 18.
103. One of the very rare direct references to Article 4 ICESCR can be found in CESCR, Concluding Observations, China (Hong Kong Special Administrative Region (HKSAR)), 21 May 2001, E/C.12/1/Add.58 at para. 40: 'When formulating and implementing its policies on permanent residence and split families, HKSAR is urged to give the most careful attention to all the human rights dimension of the issue, including Articles 2(2), 3 and 10 of the Covenant. The Committee reminds HKSAR that any limitations in connection with Article 10 must be justified in relation to each element set out in Article 4.'
104. CESCR, Concluding Observations regarding Uzbekistan, 24 January 2006, E/C.12/UZB/CO/1 at para. 30. Similarly, see for example CESCR, Concluding Observations regarding Albania, 24 November 2006, E/C.2/ALB/CO/1 at para. 33
105. CESCR, Concluding Observations regarding Tajikistan, 24 November 2006, E/C.12/TJK/CO/1 at paras 35 and 41.
106. CESCR, Concluding Observations regarding Sudan, 1 September 2000, E/C.12/1/Add.48 at para. 25, where the Committee expressed 'concern' about the 'bombardment of villages and camps of the civilian population, in the war zones in southern Sudan, including the bombing of schools and hospitals.' The CESCR added that it was also 'concern[ed] about the reported resort to the weapon of deprivation of food and the creation of a man-made famine as an instrument of war, coupled with the diversion of humanitarian food aid supplies from groups of the population in need.' See also CESCR, Concluding Observations regarding the Democratic People's Republic of Korea, 12 December 2003, E/C.12/1/Add.95 at para. 21, where the CESCR expressed its concern 'about the consequences of the widespread famine suffered by the country from the mid-1990s . . .'. In neither case did the CESCR demand justification under Article 4 ICESCR or under possibly applicable derogation principles similar to those applicable to derogations from civil and political rights as summarised above.
107. General Comment 15: Right to water (arts 11 and 12), 20 January 2003, E/C.12/2002/11;10 IHRR 303 (2003) at paras 19 and 42
108. General Comment 19: Right to social security, 4 February 2008, E/C.12/GC/19 at paras 42 and 64
109. General Comment 18: Right to work (art. 6), 6 February 2006, E/C.12/GC/18; 13 IHRR 625 (2006) at paras 21 and 34.
110. This excludes the right to self-determination in Article 1, the non-discrimination provisions in Article 2(2) and Article 3 ICESCR from the limitation clause.
111. This is clear from the debates during the 234th-236th and 306th-308th meetings of the UN Commission on Human Rights in 1951 and 1952, which focused on the question of how ESC rights could be limited by legitimate interests of the community. See, for example, the explicit statement made by the UK representative, Mr Hoare, that 'Article 32 [now Article 4] solved the problem of limitation which was not solved by Article 1 [now Article 2]': see Summary Record of the 308th meeting of the UN Commission on Human Rights, 6 June 1952, E/CN.4/SR.308 at 5. Other representatives made similar statements, for example, Mr Whitlam (Australia)
112. Mr Morozov (USSR), Summary Records of the 306th meeting of the UN Commission on Human Rights, 6 June 1952, E/CN.4/SR.306 at 11
113. Mr Juvigny (France), Summary Record of the 307th meeting of the UN Commission on Human Rights, 6 June 1952, E/CN.4/SR.307 at 5
114. See also Alston and Quinn's analysis of the travaux preparatoires of Article 4 in Alston and Quinn, 'The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights', (1987) 9 Human Rights Quarterly 156 at 194.
115. This is obvious from the debate in the Commission that led to the inclusion of only one reason for which limitations of ESC rights are permitted: see Part B(i) below.
116. Article 31(1) of the European Social Charter 1961 (ESC)
117. Article G of the Revised European Social Charter 1996 (Revised ESC) permit limitations that 'are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.' It should be noted, however, that the ESC, unlike the ICESCR, does not provide for 'progressive realisation' in accordance with available resources of the rights set out in the ESC. This gives states less flexibility when implementing the ESC, and may therefore partly explain the inclusion of the broader limitation clause.
118. During the 308th meeting a vote taken on the question whether the Commission wished to include a general limitation clause into the ICESCR was decided favourably by only nine votes to eight, with one abstention: see Summary Record of the 308th meeting of the UN Commission on Human Rights
119. Summary Record of the 234th meeting of the UN Commission on Human Rights, 2 July 1951, E/CN.4/SR.234 at 23. Similar statements were made by Mr Malik (Lebanon)
120. Mr Jevremovic (Yugoslavia), Summary Record of the 235th meeting of the UN Commission on Human Rights, 2 July 1951, E/CN.4/SR.235 at 5
121. However, the Indian reservation to Article 4 ICESCR, the only reservation which was entered to this Article, suggests that under Indian law ESC rights can be limited for, among others, reasons of public order, decency and morality: see http://www2.ohchr.org/english/bodies/ratification/3.htm#reservations [last accessed 10 September 2009]. When the ICESCR was drafted, the French and US representatives also argued that it might be necessary to limit the right to education in accordance with 'the just requirements of morality': see Summary Record of the 306th meeting of the UN Commission on Human Rights, supra n. 69 at 10 (Mr Juvigny, France) and Summary Record of the 307th meeting of the UN Commission on Human Rights, supra n. 69 at 8 (Mrs Roosevelt, USA). The argument was rejected by the majority of delegations.
122. The proposal by the US in this respect (E/CN.4/610/Add.2), based on Article 29 UDHR, was amended accordingly during the 234th-236th meetings of the UN Commission on Human Rights in 1951. See Summary Record of the 236th meeting of the UN Commission on Human Rights, 2 July 1951, E/CN.4/SR.236 at 14. France tried to reintroduce 'respect for the rights and freedoms of others' and 'legitimate requirements of morality and public order' as reasons for which ESC rights could be limited during the 306th-308th meetings of the UN Commission on Human Rights in 1952. But it withdrew its proposal as it turned out that there was no broad support for this: see Summary Records of the 308th meeting of the UN Commission on Human Rights
123. Article 31(1) ESC
124. Harris and Darcy, The European Social Charter, 2nd edn (Ardsley: Transnational Publishers, 2001) at 381.
125. Daes, The Individual's Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights, Study of the Special Rapporteur of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/432/Rev.2 (1983) at 123-4. See also ibid. at 55, where the Special Rapporteur comments that 'its [general welfare's] purpose is to promote man's dignity and well-being . . . the general welfare is something quite different from "reason of State".'
126. In this context, see also the statement of the Chilean representative (Mr Santa Cruz) when Article 4 was drafted, holding that the limitation clause should not allow states to delay the 'implementation of such rights as those to education, health and social security in order to concentrate all its resources on economic development, thus sacrificing the interests of the present generation to those of the next.' Summary Record of the 235th meeting of the UN Commission on Human Rights
127. CESCR, Concluding Observations regarding Egypt, 23 May 2000, E/C.12/1/Add.44 at para. 10; See also CESCR, Concluding Observations regarding Kyrgyzstan, 1 September 2000, E/C.12/1/Add.49 at para. 29
128. CESCR, Statement on Globalisation and Economic, Social and Cultural Rights, May 1998, at para. 7, available at: http://www2.ohchr.org/english/bodies/cescr/docs/statements/Globalisation-1998.doc [last accessed 10 September 2009]
129. See also the Limburg Principles on the Implementation of the ICESCR, June 1986, at para. 52, available at: www.unimaas.nl/bestand.asp?id/14;2453 [last accessed 10 September 2009], holding that 'promoting general welfare' is to be understood as 'furthering the well-being of the people as a whole' (emphasis added). The Limburg Principles were adopted by a group of distinguished experts in international law.
130. The meaning of this phrase is discussed in Part B (iv) infra.
131. Garibaldi, 'On the Ideological Content of Human Rights Instruments: The Clause "in a Democratic Society"', in Buergenthal (ed.), Contemporary Issues in International Law - Essays in Honour of Louis B. Sohn (Kehl: N.P. Engel, 1984) 240
132. This is obvious from the preamble of the Statute of the Council of Europe, in which the contracting states reaffirm 'their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy.' See http://con-ventions.coe.int/Treaty/en/Treaties/Html/001.htm [last accessed 10 September 2009].
133. Referring to the travaux preparatoires of the UDHR, the ICCPR and the ICESCR, Garibaldi finds that the majority of the delegations involved in the drafting process rejected the view that the then communist systems might qualify as a 'democratic society'. All attempts by the Soviet Union to replace 'democratic society' with the 'the requirements of a democratic state'or 'in the interests of democracy' failed (at 53-63).
134. HRC General Comment 27: Freedom of movement (art. 12), 1 November 1999, CCPR/C/21/Rev.1/Add.9
135. 7 IHRR 1 (2000) at para. 11
136. Gauthier v Canada (633/95), CCPR /C/65/D/633/1995 (1999); 7 IHRR 7 (2000) at para. 11.8.
137. This is supported by Daes' analysis of the meaning of the term 'democratic society' in the UDHR, the ICCPR and the ICESCR, which highlights similar elements as the ECtHR in its jurisprudence. She holds that 'regardless of how democracies may call themselves-direct, representative, Western, liberal, socialist, organic, bourgeois or popular-they are only real and pure democracies when they guarantee and respect human rights and fundamental freedoms, including in particular the right of everyone to participate in political life at the local and the national level by means of free elections, enabling each people to choose freely and periodically its own government, and recognising the activities of pluralist political institutions.'
138. For example, Young, James and Webster v United Kingdom A 44 (1981)
139. 4 EHRR 38 at para. 63.
140. See, for example, Chassagnou v France 1999-III
141. 29 EHRR 615 (GC) at para. 112
142. Citing cases from different countries, for example, the Indian Supreme Court's finding that a democratic society is one in which 'it is not necessary that everyone should sing the same song': see Rangarajan v Jagjivan Ram [1990] L RC ( Const) 412.
143. CESCR, Statement: An Evaluation of the Obligations to Take Steps to the "Maximum of Available Resources" under an Optional Protocol to the Covenant, 21 September 2007, E/C.12/2007/1 at para. 11. This is confirmed in several General Comments of the Committee, for example, General Comment 14
144. It is also in line with Toebes' observation regarding the right to health, that the Committee has generally disapproved of any coercive policies relating to the health of populations: see Toebes , The Right to Health as a Human Right in International Law (Antwerpen: Intersentia, 1999) at 143.
145. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1995) at 120, referring to Articles 1(1) and 13(1) ICESCR.
146. CESCR General Comment 7: Right to adequate housing (art. 11(1)): forced evictions, 20 May 1997, E/1998/22 Annex IV
147. 5 IHRR1 (1998) at para. 15, referring inter alia to the HRC's General Comment 16: Right to privacy, 8 April 1988, A/43/40
148. 1-2 IHRR 18 (1994).
149. See, for example, HRC General Comment 19: Protection of the family, 27 July 1990, A/45/40(Vol.1)(Supp)
150. 1-2 IHRR 24 (1994) at para. 4
151. This understanding of 'law'also coincides with the understanding of the drafters of the ICESCR. For example, during the 236th meeting of the UN Commission on Human Rights in 1951 the French representative (Mr Cassin) noted that 'the law' was not restricted to statute law. By 'the law' was meant the whole body of legal precedent and practice . . .': Summary Record of the 236th meeting of the UN Commission on Human Rights
152. 5 EHRR 347 at para. 86.
153. Sunday Times v United Kingdom A 30 (1979)
154. The Chilean proposal was adopted by the Commission without any further discussion: see Summary Record of the 236th meeting of the UN Commission on Human Rights
155. CESCR, General Comment 3: The nature of states parties' obligations (art. 2, para. 1), 14 December 1990, E/1991/23(Supp.)
156. 1-1 IHRR 91 (1994) at para. 10
157. sets out the basic lines of its minimum core approach. It found that 'a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party.' It went on to state that 'a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter or housing, or of the most basic form of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être.'
158. The reading of minimum core obligations as an absolute universal bottom-line is also predominant among experts discussing minimum core obligations, even though this discussion has not yet come to an end.
159. Örücü, 'The Core of Rights and Freedoms: The Limits of Limits', in Campbell, Goldberg, McLean and Mullen (eds), Human Rights: From Rhetoric to Reality (Oxford: Blackwell, 1986) at 37
160. Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Antwerp: Intersentia, 1999) at 130-5
161. Scott and Alston, 'Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney's Legacy and Grootboom's Promise' (2001) 16 South African Journal on Human Rights 206 at 250
162. Chapman and Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Antwerp: Intersentia, 2002) at 14
163. White, 'The Applicability of Economic, Social and Cultural Rights to the UN Security Council', in Baderin and McCorquodale (eds), Economic, Social and Cultural Rights in Action (Oxford: Oxford University Press, 2007) at 89. For a recent differentiated analysis of minimum core obligations, see Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford: Oxford University Press, 2007) in particular chapter 6.
164. CESCR, Concluding Observations regarding Israel, 31 August 2001, E/C.12/1/Add.69 at para. 12.
165. Similarly see, for example, CESCR, Concluding Observations regarding Lebanon, 9 June 1993, E/C.12/1993/10 at para. 13
166. CESCR, Concluding Observations regarding Iraq, 12 December 1997, E/C.12/1/Add.17 at paras 10 and 25
167. CESCR, Concluding Observations regarding Zambia, 23 June 2005, E/C.12/1/Add.106 at para. 10.
168. CESCR, Concluding Observations regarding the Russian Federation, 12 December 2003, E/C.12/1/Add.94 at para. 38.
169. See also HRC General Comment 31: Nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13
170. 11 IHRR 905 (2004) at para. 6, stating: 'In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.'.
171. See also HRC General Comment 22: Freedom of thought, conscience and religion, 30 July 1993, CCPR/C/21/Rev.1/Add.4; 1-2 IHRR 30 (1994) at para. 8.
172. CESCR, Initial Report regarding Switzerland, 18 September 1996, E/1990/5/Add.33 at para. 66(d).
173. See also the Swiss Federal Court's judgment in V. v Einwohnergemeinde X. und Regierungsrat des Kantons Bern, 27 Octobe r 1995, BGE/ATF 121 I 367, in particular Erwägung 2, at para. b. An English translation of the case is available at: http://www.escr-net.org/caselaw/caselaw_show.htm?docid/14;401055&country/14;13639 [last accessed 10 September 2009].
174. CESCR, Second Periodic Report regarding Brazil, 28 January 2008, E/C.12/BRA/2 at para. 170. For similar reasoning, see CESCR, Initial Report regarding Serbia and Montenegro, 26 November 2003, E/1990/5/Add.61 at para. 24; and CESCR, Third Periodic Report regarding Chile, 14 July 2003, E/1995/104/Add.26 at para. 142.
175. Rosas and Sandvik-Nylund, 'Armed Conflicts', in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (Dordrecht: Martinus Nijhoff Publisher, 2001) 412.
176. Alston, 'International Law and the Human Right to Food', in Alston and Tomasevski (eds), The Right to Food (Martinus Nijhoff Publishers, 1984) 21.
177. The discussion about the possible scope of minimum core obligations under the right to health and food is ongoing. With regard to the right to health see, for example, General Comment 14
178. On the right to food, see CESCR General Comment 12: Right to adequate food (art. 11), 12 May 1999, E/C.12/1999/5; 6 IHRR 902 (1999) at paras 6, 8 and 33
179. Kunnemann, 'The Right to Adequate Food: Violations Related to its Minimum Core', in Chapman and Russell
180. Olsson v Sweden (No.1) A 130 (1988)
181. 11 EHRR 259 at para. 67
182. See, for example, the ECtHR's finding in Dudgeon v United Kingdom A 45 (1981)
183. 4 EHRR 149 at para. 52, where the interference was with 'a most intimate aspect of private life' requiring that 'there must exist particularly serious reasons before interferences on the part of public authorities can be legitimate for the purposes [of Article 8(2) ECHR]'.
184. see, for example, Kokkinakis v Greece A 260-A (1993)
185. 15 EHRR 137 at para. 48
186. Marckx v Belgium A 31 (1979)
187. 2 EHRR 330 at para. 40.
188. See, for example, CESCR, Concluding Observations regarding Armenia, 8 December 1999, E/C.12/1/Add.39 at paras 3, 6 and 7
189. CESCR, Concluding Observations regarding Bosnia and Herzegovina, 24 January 2006, E/C.12/BHI/CO/1 at para. 7
190. CESCR, Concluding Observations regarding Sri Lanka, 16 June 1998, E/C.12/1/Add.24 at para. 5
191. CESCR, Concluding Observations regarding the Russian Federation, 12 December 2003, E/C.12/1/Add.94 at para. 10
192. CESCR, Concluding Observations regarding Kyrgyzstan, 1 September 2000, E/C.12/1/Add.49 at para. 11
193. CESCR, Concluding Observations regarding Guatemala, 12 December 2003, E/C.12/1/Add.93 at para. 9.
194. For example, CESCR, Concluding Observations regarding Jordan, 1 September 2000, E/C.12/1/ Add.46 at para. 27
195. CESCR, Concluding Observations regarding Mongolia, 1 September 2000, E/C.12/1/Add.47 at para. 10
196. CESCR, Concluding Observations regarding El Salvador, 27 June 2007, E/C.12/SLV/CO/2 at para. 8.
197. CESCR, Concluding Observations regarding Algeria, 30 November 2001, E/C.12/1/Add.71 at para. 23. And indirectly, Concluding Observations regarding the Syrian Arab Republic, 24 September 2001, E/C.12/1/Add.63 at para. 10. See also the remarks by Toebes
198. See also the Report of the UN Special Rapporteur on the Right to Food, Olivier de Schutter, Building Resilience: A Human Rights Framework for World Food and Nutrition Security, 8 September 2008, A/HRC/9/23, at Annex II, para. 5.
199. General Comment 17: 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 or she is the author (art. 15 (1)(c), 12 January 2006, E/C.12/GC/17; 13 IHRR 613 (2006) at para. 42.
200. This flows from the Committee's findings in its General Comments that the failure to meet minimum core obligations amounts to a violation of the respective ESC rights:
201. See also the judgment of the Indian Supreme Court in Paschim Banga Khet Mazdoor Samity and others v State of West Bengal and another (1996) AIR SC 2426 at para. 16, reflecting the opinion that what is constitutionally necessary (in this particular case the provision of emergency health services to the Indian population) has to be done, regardless of scarce resources. Similarly the Swiss Federal Court in V. v Einwohnergemeinde X. und Regierungsrat des Kantons Bern, supra n. 126, Erwägung 2 at para. b: 'It is both a precept of humanity and a duty inherent in the purpose of the modern State to protect persons on its territory, where necessary, from physically perishing.' (emphasis added, translation from German)
202. It should be noted, however, that the discussion about the exact content of minimum core obligations has not yet come to an end.
203. To name but one example in this regard, see the statement of the French representative (Mr Juvigny), Summary Record of the 306th meeting of the UN Commission on Human Rights, supra n.69 at 9, holding that '. . .limits must be set for each right in the interest of the exercise of this right but the powers of States in that respect must be strictly defined.'
204. However, the fact that a substantial minority of delegations opposed the inclusion of even a general limitation clause based on their opinion that limitations of ESC rights were inherently unnecessary (see supra n.72), allows for the assumption that many delegations regarded permitting derogations as all the more unnecessary, and therefore did not see a need for such a discussion.
205. See the discussion in Section 3D(ii) infra.
206. Naming the very object and purpose of international human rights treaties as a reason why derogations should be permitted from human rights treaties which do not contain a derogation clause is particularly prominent in the Report of the Meeting of Experts on Rights Not Subject to Derogations During States of Emergency and Exceptional Circumstances, 17-19 May 1995, in Premont, Stenresen, and Oseredczuk (eds), Non-derogable Rights and States of Emergency (Brussels: Association for International Consultants on Human Rights (CID), 1996) at 39 (paras 28-9).
207. This seems to underlie the finding of Alston and Quinn that 'where a situation appears to be sufficiently grave as to warrant derogations the absence of a specific derogation clause from the Covenant [ICESCR] should not be interpreted as foreclosing such possibility; . . . where derogation is undertaken a state party should be required to satisfy the criteria applicable under the Covenant on Civil and Political Rights.'
208. Report of the Meeting of Experts on Rights Not Subject to Derogations During States of Emergency and Exceptional Circumstances
209. Mottershaw, 'Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law', (2008) 12 International Journal of Human Rights 449 at 451.
210. Article 30(1) ESC and the equivalent Article F(1) of the Revised ESC read: 'In time of war or other public emergency threatening the life of the nation any Party may take measures derogating from its obligations under this Charter to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.'
211. Concerning Turkey the European Committee of Social Rights found, however, that certain provisions of the Turkish emergency legislation were not in conformity with the general limitation clause (Article 31) of the ESC. See, for example, European Committee of Social Rights, Conclusion XVII-1 (Turkey) 2004 at 7, paras 3-4. Another Member State of the Council of Europe which has been involved in armed conflicts, the Russian Federation, only ratified the Revised ESC in 2009.
212. Rosas, 'Emergency Regimes: A Comparison', in Gomien (ed.), Broadening the Frontiers of Human Rights: Essays in Honour of Asbjörn Eide (Oslo: Scandinavian University Press, 1993) at 181 (including n. 41)
213. Report of the Meeting of Experts on Rights Not Subject to Derogations During States of Emergency and Exceptional Circumstances
214. See the ILO Commission's decisions on Greece and Poland, infra n.179.
215. See, in particular, the Report of the Meeting of Experts on Rights Not Subject to Derogations During States of Emergency and Exceptional Circumstances
216. International Law Commission, Draft articles on responsibility of states for internationally wrongful acts, 2001, A/56/10 (Suppl. 10) in Yearbook of the International Law Commission, 2001, Vol. II (Part Two) at 71-86.
217. On the doctrine of force majeure in public international law, see ILC, Survey on 'Force Majeure' and 'Fortuitous Events', in Yearbook of the International Law Commission, 1978, Vol. II , (Part One)
218. Case concerning the Gabc|kovo-Nagymaros Project (Hungary v Slovakia), Judgment, ICJ Reports (1997) at para s 51-2.
219. More precisely, ILO Freedom of Association and Right to Organise Convention 1948 (No. 87)
220. ILO Right to Organise and Collective Bargaining Convention 1949 (No. 98).
221. Report of the Commission appointed under Article 26 of the Constitution of the International Labour Organisation to examine the complaints concerning the Observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) and the Rights to Organise and Collective Bargaining Convention 1949 (No. 98), International Labour Office Official Bulletin, Special Supplement, Vol. LXVII, Series B (1984) at 126-7 (para. 479). In 1971, another ILO Commission had already put similar requirements to Greece: Report of the Commission appointed under Article 26 of the Constitution of the International Labour Organisation to examine the complaints concerning the observance by Greece of the Freedom of Association and Right to Organise Convention 1948 (No. 87), and of the Right to Organise and Collective Bargaining Convention 1949 (No. 98), International Labour Office Official Bulletin, Special Supplement, Vol. LVI, No. 2 (1971) at 26 (para. 110).
222. O raa rightly observes that the public international law doctrine of necessity would actually be better suited than the doctrine of force majeure relied upon by the ILO for such an adaptation. In contrast to the doctrine of necessity which can be relied upon to justify the non-fulfilment of an international obligation in exceptional cases where such breach is the only way a state can safeguard an essential interest which is threatened by grave and imminent peril, force majeure can only be invoked as a justification for non-compliance with an international obligation when there is a material impossibility of compliance, i.e. when a state has no other option but to act in violation of an international obligation. The element of involuntariness is an inherent characteristic of the doctrine of force majeure. Yet, while situations may arise during emergencies in which it is materially impossible for states to respect, protect and fulfil human rights, impossibility is not the only case that allows states to derogate from certain human rights under treaty law.
223. The African Commission observed in 74/92, Commission Nationale des Droits de l'Homme et des Libertes v Chad Ninth Annual Activity Report of the ACHPR (1995-96), Annex VIII; 4 IHRR 94 (1997) at para. 21, that 'the African Charter, unlike other human rights instruments, does not allow for states parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter.' It confirmed this view in 54/91, 61/91, 98/93, 96/93, 164/97-196/97 and 210/98 (all against the Islamic Republic of Mauritania), 13th Annual Activity Report of the ACHPR (1999-2000) AnnexVat para. 84.
224. In some General Comments the CESCR held that minimum core obligations relating to the respective rights are non-derogable.
225. CESCR, Initial Report, Algeria, 28 July 2000, E/1990/6/Add.26 at para. 46.
226. This is in line with the findings and recommendations in academic literature that consider the possibility to allow for derogations from labour rights or other ESC rights.
227. The criteria of Article 4 ICCPR shall be applied to the ICESCR in case a state wishes to derogate from the ICESCR
228. Report of the Meeting of Experts on Rights Not Subject to Derogations During States of Emergency and Exceptional Circumstances
229. Recommends that 'bodies set up to implement human rights treaties that do not contain an explicit derogation clause should nevertheless be guided in their work by fundamental principles of proportionality and necessity.'
230. CESCR, Concluding Observations regarding Cyprus, 4 December 1998, E/C.12/1/Add.28 at para. 4; and with regard to humanitarian assistance in rebel held territory, see, for example, CESCR, Concluding Observations regarding Sri Lanka, 16 June 1998, E/C.12/1/Add.24 at paras 2 and 22.
231. For example, in Ilascu and Others v Moldova and Russia 2004-VII; 40 EHRR 1030 (GC) at para. 331, the ECtHR found with regard to Transdnistria, which is under the de facto control of Russia, that Moldova still had 'a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that are in its power to take, and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.' Russia was held accountable for violations of ECHR rights primarily, since it controlled the respective region (at para. 394).
232. Regarding limitations, make a similar remark indicating the difficulty of imagining a situation in which states would be able to justify derogations and limitations of basic subsistence rights. The close proximity of the non-derogable right to life to basic subsistence rights of the ICESCR is also pointed out by the HRC in its General Comment 6: Right to life, 30 April 1982; 1-2 IHRR 4 (1994) at para. 5; and made explicit in Article 6 of Convention on the Rights of the Child 1989, A/RES/44/25 Annex, which links children's right to life with their right to survival that clearly includes an obligation to ensure the availability of basic health care and adequate nutrition for children at all times: see Committee on the Rights of the Child, General Comment 7: Implementing child rights in early childhood, 20 September 2006, CRC/C/GC/7/Rev.1;13 IHRR 309 (2006) at para. 10.
233. To compare, it has not made such an explicit statement in its most recent General Comments on 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 or she is the author