Masstricht Guidelines on Violations of Economic, Social and
Cultural Rights, Maastricht, January 22-26, 1997.
Introduction
On the occasion of the 10th 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 thirty experts met in Maastricht from 22-26 January 1997 at the
invitation of the International Commission of Jurists (Geneva, Switzerland),
the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, USA) 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.
THE
MAASTRICHT GUIDELINES ON VIOLATIONS OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
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% of the global income and the richest fifth 85%. 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 UN World
Summits 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 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 obligation 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, 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 nongovernmental 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 interpretive 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 UN 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.