CHAPTER 8

Violations of Specific Covenant Rights

This chapter lists examples of how articles of the Covenant are often violated, according to reports of the UN Committee on Economic, Social and Cultural Rights and other sources. The relevant articles are reproduced here. The full text of the Covenant is included in Annex I.

Most employment activity, as well as most social, economic and cultural activity, takes place in the private sector and in civil society. Thus, as our examples of violations show, human rights abuses are not always caused by a government’s activities or its failure to act. But governments are obligated to do something to prevent, halt or correct violations. The final responsibility for upholding human rights rests with governments.

Many human rights abuses occur because ordinary people or businesses do not know or think about human rights. Government staff and members of the public may not understand that a “normal” way of doing things might lead to infringements of the economic, social or cultural rights of someone else. Neglect of human rights, though not deliberate, can nonetheless harm a neighbour, a workmate, a family member or an entire community.

The following chapter offer a few examples of the many types of possible violations of individual human rights under Articles 6 to 15 of the Covenant, as well as related group or collective rights under Articles 1, 15 and 25. Note that many violations of Covenant articles also violate articles of CEDAW and the CRC.

The illustrations given in this chapter may help readers to discover, recognise, foresee and combat similar human rights abuses. In strictly technical terms, although certain incidents and practices described below involve actions and omissions by commercial or other private interests, and are not directly attributable to a government, the State is responsible for the human rights violations. It is the State that violates the Covenant, through its failure to meet its obligations to respect, protect and fulfil Covenant rights.

Article 6 Right to Work*

1. The States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his [or her] living by work which he [or she] freely chooses or accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realisation of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 7 Right to Just and Favourable Conditions of Work

1. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

a. Remuneration which provides all workers, as a minimum, with

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

b. Safe and healthy working conditions;

c. Equal opportunity for everyone to be promoted in his [or her] employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

d. Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

Examples of Violations of Articles 6 and 7

• Government bodies that monitor conditions of work fail consistently to condemn or to stop discrimination against women or minorities in the workplace.
• Government bodies that monitor conditions of work fail to condemn or to stop violence against workers (often women or children) in the workplace.
• Governments fail to pass laws or take other actions to encourage changes in workplaces that would help people with disabilities to find and keep a job.
• National laws or practices restrict women’s ability to work outside their homes.
• Government bodies fail to deal with dangerous conditions that threaten people at the workplace (including exposure to hazardous chemicals in factories and to agricultural pesticides on farms).
• The government does not provide enough staff and resources to inspect workplaces and to enforce legislation on industrial safety and workers’ health.
• Wages are not paid over a long period, without adequate recourse for workers.
• Legislation exempts workers in export processing zones (also called “special economic zones” or “maquiladoras”) from protections covering workers elsewhere. Workers in export processing zones often endure poor health and safety conditions and standards at work, extremely low wages and long hours, monotonous tasks, exposure to high levels of poisonous chemicals and gases, lack of safety equipment, extreme heat and noise, physical and sexual abuse, and bans on efforts to seek better conditions. (Since most export processing zone workers are women, multiple violations of several international human rights treaties—including gender discrimination—may occur at the same time.)

States violate Articles 6 and 7 if they commit or permit workplace discrimination or violence against government employees. States also violate these articles if they do not pass or enforce statutes, regulations or laws to prohibit discriminatory and harmful employment practices for employees who work for any kind of employer, public or private.

Article 8 Trade Union Rights

1. The States Parties to the present Covenant undertake to ensure:

a. The right of everyone to form trade unions and join the trade union of his [or her] choice, subject only to the rules of the organisation concerned, for the promotion and protection of his [or her] economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

b. The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade union organisations;

c. The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

d. The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

3. Nothing in this article shall authorise States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

Summary of Important Elements of Article 8

Everyone has the right to be part of a trade union that he or she freely chooses to join, for the promotion and protection of his or her interests. Trade unions have a right to band together with other trade unions. Workers have the right to strike, that is, to refuse to work, in order to seek better wages or conditions, as long as the strike does not violate national laws. States are allowed to place reasonable restrictions on all of these rights, but only if the restrictions are clearly needed in order to protect other people’s rights. Some additional reasonable restrictions are allowed on the employment rights of people working for the police, the military, or other branches of government.

Examples of Violations of Article 8

• In the absence of legislative protection or enforcement, employers or supervisors discriminate against union members, by denying them promotion, assigning them to dangerous or low paid positions, or by subjecting union members to intimidation, racial harassment, sexual harassment, non-payment of wages, or wrongful dismissal from employment.
• The government permits union offices or property to be attacked, by its own or other agents, including damaging or seizing offices and equipment, closing or denying access to union offices, cutting telephone lines or blocking other communication links to union offices, and/or seizing union funds.
• The State allows only company-sponsored or government-controlled unions to operate.
• The government bans trade unions for all workers, or for certain groups such as civil servants, workers in export processing zones, or workers in foreign-owned, “multinational” or “transnational” corporations; or prohibits the right to strike for one or more of these groups.

Article 9 Right to Social Security

The States Parties to the present Covenant recognise the right of everyone to social security, including social insurance.

Note on Article 9

A similar right in Article 25 of the Universal Declaration, on which this Covenant right is based, gives more details of what is meant by social security: “necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood”. The financing of certain forms of social security may depend upon a mixture of State and private financial contributions. Examples are publicly funded pensions for older people, unemployment insurance and rehabilitation services or financial assistance for work-related injuries (for example, through workers’ compensation). In addition to the social security right in Article 9, social benefit programmes help to meet other human rights obligations such as the right to an adequate standard of living in Article 11 of the Covenant.

Examples of Violations of Article 9

• Legislation excludes foreign and migrant workers, street vendors, and other workers who do not have full-time jobs from social benefits and protections, such as health care services, workers’ compensation, unemployment insurance benefits, sickness benefits, special services and benefits for new mothers and infants, old age security payments or pensions, survivors’ benefits (for widows, widowers and orphaned children), and financial support for other individuals and families in need.
• Many of the social safety and security programmes listed above are not established at all by employers, despite their having the financial ability to provide them, and the government permits this.

Article 10 Right to Protection and Assistance for Families

The States Parties to the present Covenant recognise that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.

3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

Examples of Violations of Article 10

• Laws and traditional practices deny women equality with regard to family rights, including the right to divorce; and marriages are arranged for women or children without their full or free consent.
• Governments fail to monitor and register cases of family (“domestic”) violence against women or children, or to ensure appropriate punishment for those convicted of violence, or to provide shelters and other protections for women and children who are victims of violence.
• Pregnant women are denied the opportunity to work or are restricted from certain kinds of work. Or, on the other hand, because of their pregnancy women suffer mistreatment and intimidation, including assignment to more difficult or dangerous work (perhaps to try to force them to quit their jobs).
• Children born to unmarried parents are discriminated against, and the country’s laws permit this.
• The State does not provide adequate resources and procedures to monitor and enforce laws that require protection of children who work; and there is no law that says that all workers must be a minimum age before they can work.
• In places where there are large numbers of abandoned children and street children (some of whom may be child labourers), such children may be harassed by police or by civilian vigilantes, or rounded up by police and detained in adult jails.

Additional Note on Article 10

There are also family-connected rights in Articles 17 and 23 of the ICCPR that involve marriage, protection of families by society and the State, and protection against arbitrary or unlawful interference with privacy, family and the home. A judgment by the European Court of Human Rights, noted above, shows that courts can make interesting links among economic, social, civil, political and environmental rights.

Article 11 Right to an Adequate Standard of Living

1. The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself [or herself] and his [or her] family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognising the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

a. To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilisation of natural resources;

b. Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Summary of Important Elements of Article 11

Every individual and family has the right to an adequate and steadily improving standard of living, including adequate food, clothing and housing. States should support improved production methods and fairer distribution of food, to ensure that no one suffers from hunger.

Examples of Violations of Article 11

• Governments allow people to be forcibly evicted from their homes to make way for business development or for slum clearance and demolition.
• Governments fail to ensure that there is compensation for such people when they are evicted or relocated.
• Governments fail to ensure that people who are involuntarily removed from their homes receive replacement housing or land, and that they receive access to essential services such as water, electricity, drainage, garbage removal, and adequate educational opportunities for their children.
• A State allows people to continue to live with terrible housing, sanitary or other conditions, or to suffer from starvation, when it has resources it could use to improve these living conditions.
• Environmental legislation is not enforced when a government agency or a corporation takes steps that damage the environment and human health.
• Equal rights are not ensured for women to own, use and inherit land or other property. This can include inheritance laws that prevent widows or other female family members from gaining access to land and property, and other laws that give married women fewer rights than men in cases of divorce or separation.
• Because of discrimination, access to markets is prevented for certain groups who want to earn their living by selling items or services, and the government does not take action to remove the discriminatory barriers.
• Subsidies for basic foods such as rice or flour are cancelled by the government, without introducing a replacement programme to ensure that the poorest people can afford to buy food or can obtain it through other means.
• To make way for a mine, hydroelectric dam, shrimp farm, tourist resort or other large project, the government allows peasants, fishers, indigenous people or others to be forcibly evicted from ancestral lands, fishing areas, forests, or other places that are traditional sources of food and spiritual inspiration. (Such actions may also violate Covenant Articles 1, 15 and 25, as described below.)

Article 12 Right to Health

1. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for:

a. The provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child;

b. The improvement of all aspects of environmental and industrial hygiene;

c. The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

d. The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

Note on Article 12

An adequate supply of clean water is required in order to implement the right to health and the right to an adequate standard of living. Failure to ensure adequate supplies of safe water for drinking and other purposes violates the rights to food, health and an adequate standard of living.

Examples of Violations of Article 12

• The State fails to provide or to ensure immunisation for every child against common childhood diseases.
• The availability of health care providers such as nurses and doctors is satisfactory or good in the cities but very poor for people in rural areas, and governmental efforts to rectify the imbalance are weak or non-existent.
• Corporations and the State permit the environment to be poisoned or destroyed by harmful practices in mineral or oil production and exploration, manufacturing, forestry, fishing or farming.
• Laws and policies obstruct women’s access to full reproductive health services or attempt to control women’s sexual and reproductive behaviour by restricting their access to contraception, or by forcing them to have abortions or to be part of large sterilisation campaigns. Laws and policies that attempt to control women’s sexual and reproductive behaviour may include a requirement that a married woman receive authorisation from her spouse before she may obtain reproductive services.
• Laws permit or support medical or cultural practices that endanger health, or governments do not enforce laws prohibiting the practices.
• The government fails to take sufficient public health measures to protect against and fight infectious diseases. (Some diseases like tuberculosis and malaria are spreading again, partly because public health services have been allowed to weaken.)
• Public authorities allow people living near factories or in farming areas to be exposed to a steady stream of hazardous chemical emissions or agricultural pesticides and herbicides.

Articles 13 and 14: Right to Education

Article 13

1. The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship amongst all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognise that, with a view to achieving the full realisation of this right:

a. Primary education shall be compulsory and available free to all;

b. Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

c. Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

d. Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

e. The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Article 14

Each State Party to the present Covenant . . . undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.

Summary of Important Elements of Articles 13 and 14

Everyone has the right to primary education that is free of charge. As far as possible, States will also ensure that there is equal access to free high school education or to other forms of secondary education or training, and to education beyond the secondary level. Education must strengthen respect for human rights and enable everyone to participate effectively in a free society.

Examples of Violations of Articles 13 and 14

• The State fails to make primary education compulsory and available to all children, on a free basis. Note that in some countries, commitment to universal education has recently been reduced, which seems to be a clear violation of the Covenant.
• There is a failure to give equal priority to the education of girls and women, as compared with boys and men. In countries where there are separate schools for boys and girls, there is often greater investment in classrooms and other facilities for boys’ education, giving them more schools, better facilities, and a greater range of subjects to study than are available to girls. In all countries, the government should ensure that the educational system is fair to both boys and girls.
• The educational system discriminates against members of minority groups in schools and in university education.
• Education is used mainly to impose the religious or political views of the State’s dominant groups as the only “truth”, removing any teachers or instruction that allow students to hear about alternative views. (This restrictive approach also fails to respect the civil and political rights of freedom of religion and freedom of opinion.)
• There are large differences between the quality and/or availability of education offered within the regions of a country, because of discrimination based on ethnic or racial distinctions, or based on the income levels of local people, and the government does not undertake measures to rectify the situation.
• There is a failure to formulate or implement effective policies to encourage disadvantaged groups to attend school, including failure to ensure that public and private institutions provide appropriate educational programmes and opportunities for individuals who have a physical, mental, learning or medical disability.

Article 15 Right to Enjoy Cultural Life and the Benefits of Scientific Progress

1. The States Parties to the present Covenant recognise the right of everyone:

a. To take part in cultural life;

b. To enjoy the benefits of scientific progress and its applications;

c. 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.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognise the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

Examples of Violations of Article 15

• In a country or in one region of a country, there is discouragement of, or bans on, the use of languages spoken by a large part of the population, whether a minority or a majority.
• The rights of scientists and artists to travel and communicate, and to exchange information and ideas across borders are unfairly restricted.
• The State bans the production, performance or importation of certain publications, plays or films that express ideas contrary to those expressed by the government or by the State-run or “official” media.

Covenant Articles that Guarantee Group or Collective Rights

Article 15 guarantees the individual property rights of inventors, artists and writers, so that they can benefit from the economic and cultural value of their creations and innovations. Article 15 can also be interpreted to protect the shared “intellectual property” rights or “traditional knowledge” of agricultural or other rural communities. That purpose of Article 15 can be seen when we connect it to Articles 1 and 25 of the Covenant.

Article 1 Right of Peoples to Self-Determination

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant . . . shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Article 25 Right of All Peoples to Control the Use of Their Natural Resources

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.

Note on Articles 1 and 25

A violation of Article 15 rights of members of a minority community or of an indigenous group might also violate Articles 1 and 25 of the Covenant. When read together, these three articles support the recognition and preservation of traditional knowledge that has been built up over generations by minority and indigenous peoples. In a sense, this is the right of a group to benefit from its collected wisdom. This right is often not respected, as the two illustrations at the end of this chapter demonstrate. The last sentence of Article 1(2) also guarantees a group or “collective” right: “In no case may a people be deprived of its own means of subsistence”. This sentence connects the group right of self-determination with the right of everyone to an adequate standard of living. This sentence can also be linked to Article 17 of the Universal Declaration, which proclaims property rights:

17(1) Everyone has the right to own property alone as well as in association with others.

17(2) No one shall be arbitrarily deprived of his [or her] property.

The group rights to self-determination and to control over natural resources in Article 1 include the right of “all peoples” to pursue their own economic, social and cultural development. The concept of self-determination involves being able to choose your own future as a people. This principle was important for those seeking liberation from political and economic colonialism, especially after World War II. Exercising the right to self-determination enabled peoples (usually those living in a colony) to gain or regain control over their own government, law, land and resources.

Today, the main focus of thinking on self-determination is on the right of a people to pursue significant economic, social, cultural and political activities that involve varying degrees of independence from government policies or control. States rarely support the idea of a people within their borders (usually a distinct minority or indigenous group) having a right to seek total independence.

Examples of Violations of Articles 1 and 25 AND of Article 15

• Governments fail to take adequate steps to safeguard the cultural identity of various ethnic or religious groups, including failure to prosecute or impose appropriate penalties on those who destroy significant objects, structures or sites, including burial grounds, artifacts, and relics.
• There is inadequate State or industry recognition of the value of traditional knowledge in agriculture or medicine. Corporations are allowed to take and profit from the customary knowledge of indigenous or other groups without respecting their rights or giving them compensation.
• Land or other resources that are needed to maintain traditional forms of culture and livelihood (for instance hunting, fishing, trapping, herding, and gathering plants) are destroyed, taken or polluted by State and/or business interests. (This may also violate Article 11.)
• Governmental bodies permit development of tourism projects in indigenous territories without adequate coordination and without the consent of the indigenous populations, seriously damaging indigenous peoples’ culture.
• Governmental bodies offer land titles to individual members of indigenous groups when those groups traditionally take a collective approach to owning and using property and resources. For such a community, individual ownership can undermine the solidarity, rights and long-term sustainability of the group.

* These titles, “Right to Work”, “Trade Union Rights”, “Right to Social Security”, etc., do not appear in the Covenant, although the articles in the Covenant are often referred to by these names. They are included here for clarity and ease of reference.