CHAPTER 7

Violations of Covenant Obligations*

To gain a better understanding of violations, we could ask ourselves this: “When a State violates the Covenant, what kinds of obligations does it violate?” Several kinds of obligations are created or confirmed by the Covenant. These obligations must be met if a State wants to move toward complete implementation of human rights. In this chapter, we think about the Covenant obligations that are violated today by many countries.

7.1 Obligation to Prevent, Avoid and Halt Discrimination

A very common way that States violate the Covenant is through policies, laws, programmes or actions that discriminate against certain groups, by restricting or denying equal enjoyment or exercise of Covenant rights. Article 2 of the Covenant prohibits any discrimination on the grounds of:

race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2 forbids discrimination based on “sex”, and Article 3 reinforces the principle of equal rights for women and men:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

Thus, countries are forbidden to discriminate unfairly among different kinds of people. This is an immediate and continuous obligation. For example, it is a violation of the Covenant if a State provides good education facilities for boys, but not for girls. It is also a violation for a State to deny food or health care to members of a group on the basis of their race, culture, religion or national origin.

Discrimination on many other bases or “grounds” is also forbidden under Article 2, even though these grounds of discrimination are not listed. Because of the open-ended words “other status” at the end of the list, a State Party is also not allowed to discriminate on the basis of an individual’s age or the fact that she or he has a physical or mental disability. In some countries, discrimination is also prohibited on the basis of an individual’s level of income, social status or sexual orientation, or the fact that a person or family receives welfare or social assistance. Other groups that commonly suffer discrimination because of their status or situation are refugees, immigrants and migrant workers (and their families). Article 2 could be interpreted to protect these groups, too.

We stressed that Article 3 of the Covenant places extra emphasis on sexual or gender equality. States Parties must ensure the equal rights of men and women to the enjoyment of all economic, social and cultural rights. For guidance when examining the ways that women and girls are discriminated against in violation of the Covenant, experts may look at the more detailed descriptions of equality that are found in CEDAW. This treaty requires the removal of every kind of discrimination against women, including discrimination that is based on social, cultural or employment customs.

7.2 Obligation to Respect Human Rights

The obligation to respect human rights requires States to avoid interfering with the enjoyment of Covenant rights. For example, the “right to housing” is violated if a government agency uses force to remove people from land or housing without following legal procedures that respect the human rights of the people being evicted. This is “an arbitrary forced eviction”. A violation also occurs if a government encourages others outside the government (for example, private companies) to use force to evict people in ways that deny their human and legal rights.

A violation of the obligation to respect economic, social and cultural rights occurs when a State adopts policies, laws or programmes that disobey or ignore the Covenant, or when State authorities act in ways that go against what is promised by the Covenant.

7.3 Obligation to Protect Human Rights

The obligation to protect human rights requires States to prevent or stop violations of Covenant rights by people or organisations who are not part of the government. A government violates its own obligations when it fails to prevent violations committed by others. For instance, a government’s failure to ensure that private employers comply with employment standards regarding safety at work may violate the “right to work” or the “right to just and favourable conditions of work”. (These rights are guaranteed by Articles 6 and 7 of the Covenant.)

A government may be violating the obligation to protect human rights if, in order to encourage business investment, it cancels laws or programmes that protect the Covenant rights of workers or unemployed people.

When large numbers of people are pushed aside to make way for a development project, the government may violate their human rights if it does not provide adequate sites for relocation of families, adequate basic services for people being re-housed, and adequate educational opportunities for the children of the community.

Even a rich State, where there is ample food for most people, might act in a way that violates its obligations to protect the right to adequate food (and the right to health). Let us assume that a certain type of imported plant, seed or food item carries a potentially great health risk for the population. The populace may not be in a position to identify which products are dangerous imports when they are sold on the local market. Examples could be food that was grown in a highly polluted area, grain or other food crops that have been genetically altered without clear proof of long-term effects of the changes, or meat that could spread diseases from animals (for example, “mad cows”) to humans. If a State does not take measures to protect its people against the importation of such items, it may be violating the right to adequate food by neglecting its “obligation to protect”.

7.4 Obligation to Take Steps Toward Fulfilment of Human Rights

The obligation to take steps requires a government to take action designed to achieve widespread fulfilment of a human right. For example, if a State takes no action to provide basic health care for people in need, the State shows no intention of trying to fulfil or implement the right to health, and therefore it violates the right. To help fulfil the right to health, for instance, important actions might include designing and instituting a plan for reducing the risk that mothers and children will die during childbirth. A violation of Covenant rights occurs when a State fails to take active steps that are needed to implement that right.

Article 2 of the Covenant demands that States use “all appropriate means” to promote or encourage fulfilment of rights. States Parties are specifically required to adopt “legislative measures”, that is, to pass appropriate laws. The duty to employ all appropriate methods also requires States to set up the necessary offices, procedures and educational programmes to ensure that those laws are followed. This may involve public education and personnel training for government administrators (both staff and managers). Some of the State’s budget must be set aside to finance these human rights efforts. Human rights laws need to be enforced by judges who have adequate training and sufficient court staff. Other institutions, such as human rights commissions, an ombudsman, or a parliamentary commissioner, may also be established to decide disputes involving human rights.

Human rights commissions usually focus on discrimination by governments and public agencies, as well as by private institutions and businesses, on the basis of race, sex, religion, disability or other grounds of discrimination. In many countries, these commissions also monitor compliance with other kinds of human rights, sometimes including international human rights obligations of the State. An “ombudsman” or “parliamentary commissioner” usually deals with allegations of unfairness, arbitrariness or improper procedures by government officials, rather than with discrimination or other kinds of human rights violations. In a few countries, there is also an ombudsman who deals with racial and ethnic relations and related aspects of human rights.

In Chapter 5, we observed that a State is obliged to take all possible steps toward full implementation of the Covenant, but only within the limits imposed by the State’s available resources. That flexible obligation is relevant here. The extent to which a State takes appropriate steps to implement the Covenant will depend partly on decisions made by a government concerning the priority it will give to human rights. But the ability to act may be affected by the availability of government financial and technical resources, by the presence or lack of skilled personnel with appropriate training, and by other priorities that may also involve fulfilment of human rights. Still, the question must be asked: To what extent are any shortcomings due to past and continuing neglect of Covenant obligations by the government?

7.5 Obligation to Ensure Minimum Essential Enjoyment of Human Rights

Although each State is required to use only its available resources in efforts to advance Covenant rights, every country, rich or poor, must use its available resources wisely so that it can ensure at least a minimum quality of human rights enjoyment for everyone. Ensuring wise use of what is “available” includes the notion of providing leadership for the way that resources are distributed in the wider society, not just tapping the resources that are currently available in the State treasury. The UN Committee on Economic, Social and Cultural Rights has said that violations of the Covenant occur when a State fails “to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights”. The Committee has said that this duty to ensure at least minimum satisfaction levels is “a minimum core obligation” of each State Party. If large numbers of individuals in a country suffer from hunger, lack health care, basic housing, or the most basic level of education, these circumstances provide evidence that the State may be violating the Covenant.

Denial of essential rights for a large portion of the population, which occurs even in wealthy countries, may indicate that the State is not using available resources appropriately, and is not giving enough priority to fulfilment of economic, social and cultural rights. If careful planning and approaches are employed by governments, it is possible for even low-income countries “to ensure the satisfaction of minimum essential levels” of Covenant rights. On the other hand, if a rich State ignores the priority of its Covenant obligations by not employing its resources wisely, large numbers of its citizens could be deprived of the benefits of economic, social and cultural rights. Comparisons published by the United Nations Development Programme (UNDP) in its annual Human Development Report show that in a number of poor countries, people enjoy good levels of literacy and a long average life span. Young children in a few low-income States have a better chance of surviving into adulthood than many children of minority or indigenous groups in some richer States that do not give priority to economic, social and cultural rights for everyone.

Access to adequate food for all is a goal of the right to food. The “core content” of the right to food is comprised of the obligations to respect, protect and fulfil access to food for everyone, in a non-discriminatory way. These obligations support achievement of the ideals of freedom from hunger and adequate food for everyone. When deciding whether a violation of the right to food has occurred, we should not focus on whether the State has met the ultimate target of full realisation of the right. This may never happen, and even if it did, the results are something that cannot be measured precisely. What human rights monitors should look for is whether the State has met its obligations by taking appropriate steps toward meeting ultimate goals (as quickly as possible) and by employing its maximum available resources.

7.6 Obligation to Set and Meet Targets that Demonstrate Progress

This obligation, like the one described at 7.5, involves examining results to see whether certain goals have been achieved. There is a significant difference, however. Above, we spoke of minimum essential standards. Now we are addressing the need for a State to go beyond that minimal level. To measure and encourage progress, the State, ideally in consultation with experts (including NGO experts), should set higher targets or “benchmarks” for future results. To be truly helpful, these benchmarks would need to be appropriate for that country. They should be based on data that can be easily measured and compared. The data should indicate changes in the enjoyment of a particular Covenant right for a significant portion of the population. Examples are the proportion of girls attending primary and secondary school, the average lifespan of infants and of the general population, the number of nurses in rural areas, the proportion of youth who have some kind of fair employment, the percentage of workers in trade unions that are not state-controlled or company-controlled, and the cost and availability of housing and farmland.

The ability to assess whether a State has met its “obligation to take action” (see Chapter 7.4 above) may thus be strengthened by an obligation to set and achieve specific goals. With respect to the “right to health”, for example, a State could decide to try to reduce the death rate of mothers during childbirth to levels agreed on at UN world conferences where this issue was discussed. Agreements on approaches for encouraging and measuring reduction of the death rate of mothers during childbirth were reached, for instance, at the International Conference on Population and Development (held in Cairo in 1994) and at the Fourth World Conference on Women (held in Beijing in 1995). Measurable indicators could provide proof that in at least one important area of health care the State is trying to fulfil its obligation to realise the right to health.

7.7 How NGOs Can Help to Highlight Specific Human Rights Problems and Remedies

When assessing whether a State has fulfilled its obligations under the Covenant, NGOs and others obtain and review evidence concerning the actions taken or not taken by the State to fix apparent human rights problems. NGOs can help governments, national human rights institutions and UN bodies to find ways to remedy an identified human rights violation, by pointing to the specific parts of the government, other public agencies, and/or the wider society that are apparently responsible for the State’s failure to meet a specific economic, social or cultural rights obligation. It is also helpful if the NGO tries to identify the offices or agencies that are in a good position to remedy the violation. Note that Annex F of this Handbook provides:

1. A list of practical questions that an NGO can use to help investigate and evaluate a State’s record of compliance with human rights obligations.
2. Advice on sources that an NGO can use to conduct its own fact-finding concerning a State’s human rights record.

* The framework used here for State obligations and violations of these obligations relies on the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1986) and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997). The Limburg Principles and the Maastricht Guidelines were developed by international experts in economic, social and cultural rights during two meetings at the University of Limburg (now Maastricht University) in the Netherlands, approximately ten years apart. The Limburg Principles focus on the nature and scope of the obligations of States Parties to the ICESCR. The Maastricht Guidelines build on the Limburg framework by clarifying the nature and scope of ESCR violations, along with appropriate responses and remedies. Both the Limburg Principles and the Maastricht Guidelines are reproduced in Economic, Social and Cultural Rights: A Compilation of Essential Documents, published by the International Commission of Jurists in 1997. They can also be found on the AAAS website at http://shr.aaas.org/ethesaurus.