CHAPTER 6

Violations of the Covenant—A Quick Summary

As was said earlier, States are allowed to make gradual progress when implementing their obligations under the Covenant. But certain obligations must be met immediately, and others as soon as possible. If a State Party does not take steps when it should, it will be violating the Covenant.

Racial, religious and other kinds of discrimination, as defined in the Covenant, is never allowed. All States Parties must promote equal rights for women and men. An obligation not to discriminate is proclaimed by the Universal Declaration, which applies in all nations. That obligation to prevent and halt discrimination becomes firmer once a State ratifies the Covenant. A State is not permitted to restrict the rights of a group just because members of that group have different social, religious or cultural backgrounds than the State’s rulers or the majority of people in the country.

When trying to decide whether a State has violated the Covenant, we should recall that the Covenant allows each State a certain amount of freedom to select the methods it uses to advance Covenant rights. And a State may face unusual situations that are extremely hard to overcome, for example, sudden unpredictable floods that temporarily prevent delivery of needed social services. Members of the UN Committee on Economic, Social and Cultural Rights understand that difficult circumstances may reduce a State’s capacity to implement some rights for a while. The Committee takes such circumstances into account when it reviews the human rights record of a State and decides whether violations have occurred.

States Parties to the Covenant violate that treaty in many ways, including the following:

1. failing to take steps to protect existing rights;
2. not acting quickly to remove obstacles that prevent a right from being fulfilled;
3. failing to fulfil an obligation that the Covenant says must be honoured immediately;
4. not achieving even the minimum level of a right that would be needed by most people, when the country as a whole obviously has adequate resources available to do so. (For example, the State spends money on lavish new public buildings instead, or on more advanced computers or weapons. These expenditures are unlikely to assist people for whom even minimum essential levels of human rights have not been satisfied.)
5. limiting a right recognised in the Covenant in a way that is not permitted by the Covenant (for example, by discriminating against women or a minority);
6. deliberately slowing down or stopping gradual improvements in the enjoyment of rights;
7. cancelling or weakening laws or programmes that have helped to fulfil a Covenant right (in other words, rolling back progress that was previously achieved);
8. failing to submit information to the United Nations that is required under the Covenant.

6.1 Limitations and Exceptions that Are Permitted by the Covenant

Some kinds of limits on rights are allowed by the Covenant. As we noted above, according to Article 2 a State is required to promote and ensure provision of the rights in the Covenant up to “the maximum of its available resources”. However, Article 8, on trade union rights, permits a State to pass reasonable laws restricting certain employment rights of military, police and government personnel.

Articles 4 and 5 make it clear that States are forbidden to restrict Covenant rights unless the restrictions are intended to ensure a wider enjoyment of human rights by everyone and are legal. In our interpretation, restrictions must be reasonable, and must not be imposed at the whim of a bureaucrat, a politician, or a law enforcement official. Article 5 also says that people must not abuse their rights by using them to try to destroy or deny the human rights of others. In addition, no State is permitted to use anything in the Covenant as an excuse to deny or cancel rights that previously existed, if these rights do not conflict with Covenant rights.