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2.3.2 Violations of ESC rights

Examples of violations and how judicial and quasi-judicial bodies have dealt them with across the world are addressed at length in Chapter 4 and Chapter 5. The present section describes, at a general level, the nature of violations of rights. As mentioned in the introduction to this section, States may be responsible for a violation of human rights and ESC rights because they fail to take the measures necessary to realize the rights or because their conduct, whether through act or omission, has interfered with enjoyment of rights by individual or groups of individual rights-holders.

Following the Limburg Principles on the implementation of the ICESCR, a group of international legal experts contributed to the definition and understanding of what constitutes a violation of ESC rights as well as remedies for those violations. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights were adopted in 1997 and provide useful guidance to legal practitioners in the litigation of these rights. They have greatly helped to shape the interpretive work of international authorities, including the CESCR and other UN Treaty Bodies, as reflected in the following sections.

Statutory and regulatory definitions of ESC rights and violations through omissions of States

In accordance with the rule of law and the separation of powers principles, defining the content and scope of a right is primarily the task of the legislative branch and, subsequently, further elaborated by administrative regulations.[99]

The large majority of cases that have been considered by domestic and international courts concerning ESC rights involve either a claim that the State administration is not complying with a statutory duty, or a challenge to the existing legislation or regulations because they are inconsistent with statutory or constitutional duties or they violate a prohibition on conduct. Thus, judicial and quasi-judicial bodies less often judicially review a complete omission, and more often review legislation or regulations that allegedly inadequately implement conventional, constitutional or statutory duties or prohibitions. By way of example, the well-known South African cases relating to the right to housing in the Grootboom case, or to the right to health in the “Treatment Action Campaign” case,[100] illustrate how judicial and quasi-judicial bodies have found violations of the rights generated by partial omissions of the State. In these cases, the South African Constitutional Court considered that the public policy adopted to comply with a certain ESC right fell short of the required legal standard. In other words, the means chosen were insufficient in relation to the legal obligation, because they excluded a certain group. In other cases,[101] the omission did not concern the failure to include specific groups of right-holders but instead involved an omission to include important aspects of rights, services or goods vital to the realization of the ESC rights, or a failure to grant the necessary financial and material means to operationalize the policy at play.

French Constitutional Council – partial omission of the legislature in matters of compensation for working time

The French Constitutional Council, reviewing the constitutionality of a 2008 law on the reform of working time (in French Loi portant rénovation de la démocratie sociale et réforme du temps de travail), found a partial non-compliance of the law with constitutional provisions. In particular, the Council determined that those parts of the law that left to collective bargaining, or to a future decree, the regulation of compensation for overtime worked beyond the annual authorized quota contravened article 34 of the Constitution. That provision defines the areas of express competence of the legislature. Those include the areas of labour, trade unions and social security. In the law being contested, the legislature failed to define the modalities of implementation of the fundamental principles of labour law, namely the right to rest and to compensation for overtime.[102]

More infrequently, the judiciary finds a violation of rights due to a total omission by other branches of government. In the case from El Salvador, summarized below, the failure to pass a law to give effect to a Constitutional right was sanctioned by the Supreme Court.

El Salvador: Total omission of the legislature to pass a law regulating compensation for workers

The adoption of primary legislation and administrative measures necessary to implement constitutional provisions is fundamental to avoid legal uncertainties and challenges for justice users and providers. This imperative has been reiterated in the above-mentioned Decision 53-2005/55-2005 of February 2013[103] of the Constitutional Chamber of the Supreme Court in El Salvador. In the decision, the Constitutional Chamber condemned a total legislative omission of the State that, according to article 252 of the Constitution, should have adopted a law to regulate and give effect to article 38 of the Constitution, which guarantees employees’ rights in cases of resignation.

Beyond legislative omissions, violations through omission can also occur when the State has failed to elaborate a programme or administrative plans necessary to give effect to constitutional or conventional rights. Omissions often also occur concerning the regulation of the activities of and the prevention of abuses by business enterprises. As recalled above, under the obligation to protect, the State should make sure that it has in place the necessary laws and regulations to prevent third parties, including business enterprises, from interfering with the enjoyment of ESC rights.

The ICJ has produced a series of studies on access to justice for victims of abuses by private actors.[104] While these studies focus on the legal frameworks of the individual countries concerned, they provide a useful overview of the opportunities and challenges for victims in trying to take legal action against private actors, as well as a detailed analysis of domestic remedies, their availability and efficiency. Practitioners may find it useful to consult these resource documents for comparative purposes, especially looking at countries with a similar legal tradition.

Violations through actions of States

States may violate ESC rights when they fail to respect these rights. A typical example of this kind of violation is seen in instances of forced evictions carried out by public authorities.[105] These State-led or authorized actions adversely affect and disrupt the enjoyment of the right to housing, and may also adversely impact other human rights. Constituting a clear breach of the obligation to respect existing enjoyment of the right to housing, forced evictions have been defined as a prima facie violation of State obligations under the right to adequate housing and the ICESCR.[106]

Forcible evictions and the right to adequate housing

There is a rich body of case law addressing violations of the right to adequate housing and other rights due to evictions that fail to comply with procedural safeguards prescribed by international human rights and national laws. Depending on the applicable legal framework, court judgements have been based on the right to housing itself, or on other constitutionally protected rights and principles such as the right to property, to privacy, the right to a dignified life, non-discrimination or equality before the law, to name only a few. Again, Chapter 4 and 5 provide examples of national litigation protecting the right to housing. Beyond forced evictions, failures by States to respect the right to adequate housing can occur when States infringe the right of people to build housing in conformity with their culture and needs.

An issue of growing importance for practitioners at the domestic level is the limitation of ESC rights based on arguments put forward by States on the basis of public interest, general welfare or the common good, notably in cases of evictions, displacements and expropriations. The pressure on land and real estate property has risen with the enormous needs for urbanization, exploitation of natural resources and speculation by investment and finance actors.[107]

While States have legitimate development objectives and plans, general public interest arguments have frequently been used to justify situations in which the rights of individuals, or of groups of individuals, have been violated.

Such cases confront judges (and to a certain extent the lawyers involved in such cases) with complex and politically sensitive issues to be settled, including the balancing of competing interests. National and regional judicial and quasi-judicial bodies have produced an important body of jurisprudence regarding these issues, reviewing the legitimacy of general public interest arguments and issuing decisions ranging from ordering the cessation of projects to ordering compliance with procedural safeguards, including the obligation of meaningful consultation with those affected where these were ignored. A significant share of the case law concerns indigenous lands.

In this regard, the 2010 decision of the African Commission on Human and Peoples’ Rights concerning the Endorois indigenous community in Kenya provides a recent and useful framework for a review of public interest arguments.

Taking into account relevant international standards and case law, the Commission specified that article 14 of the African Charter establishes “a two-pronged test, where that encroachment can only be conducted – “in the interest of public need or in the general interest of the community‟ and “in accordance with appropriate laws‟. Thereby, the Commission refused the sole argument of the State to have acted in the public interest. Furthermore, the Commission reiterated the principle of proportionality that should apply in similar cases and recalled that any limitation or restriction of rights must be proportionate to and absolutely necessary for the aim pursued.[108]

At the international level, various General Comments elaborated by the CESCR give examples of specific acts that constitute breaches of the State duty to respect rights.

Without aiming to be exhaustive, the following paragraphs provide excerpts from CESCR’s interpretive work and thus give examples of acts likely to be considered to constitute violations of various ESC rights under international law. They thereby also identify what should be the subject of remedial action at the domestic level.

Right to take part in cultural life:

  • prevent[ing] access to cultural life, practices, goods and services by individuals or communities;[109]
  • [refraining from] any form of discrimination based on cultural identity, exclusion or forced assimilation[;] … [any act preventing] access to … varied information exchanges, … to cultural goods and services, understood as vectors of identity, values and meaning[;] … freedom indispensable for scientific research and creative activity[;] … free access by minorities to their own culture, heritage and other forms of expression, as well as the free exercise of their cultural identity and practices.”[110]

Right to education:

  • “closing private schools;[111]
  • introduction or failure to repeal legislation which discriminates against individuals or groups, on any of the prohibited grounds, in the field of education; … the prohibition of private educational institutions; … the denial of academic freedom of staff and students; the closure of educational institutions in times of political tension in non-conformity with article 4 [of the ICESCR].” [112]

Right to food:

  • “formal repeal or suspension of legislation necessary for the continued enjoyment of the right to food; denial of access to food to particular individuals or groups, … ; the prevention of access to humanitarian food aid in internal conflicts or other emergency situations; adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to the right to food.” [113]

Right to health:

  • “formal repeal or suspension of legislation necessary for the continued enjoyment of the right to health or the adoption of legislation or policies which are manifestly incompatible with preexisting domestic or international legal obligations in relation to the right to health.[114]
  • denial of access to health facilities, goods and services to particular individuals or groups as a result of de jure or de facto discrimination; the deliberate withholding or misrepresentation of information vital to health protection or treatment; the suspension of legislation or the adoption of laws or policies that interfere with the enjoyment of any of the components of the right to health.”[115]

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:

  • “infringing the right of authors to be recognized as the creators of their scientific, literary or artistic productions and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, their productions that would be prejudicial to their honour or reputation [,] … unjustifiably interfering with the material interests of authors, which are necessary to enable those authors to enjoy an adequate standard of living;[116]

• formal repeal or unjustifiable suspension of legislation protecting the moral and material interests resulting from one’s scientific, literary and artistic productions.” [117]

Right to social security:

  • “refraining from engaging in any practice or activity that, for example, denies or limits equal access to adequate social security; arbitrarily or unreasonably interferes with self-help or customary or traditional arrangements for social security; arbitrarily or unreasonably interferes with institutions that have been established by individuals or corporate bodies to provide social security.[118]
  • formal repeal or suspension of legislation necessary for the continued enjoyment of the right to social security; active support for measures adopted by third parties which are inconsistent with the right to social security; the establishment of different eligibility conditions for social assistance benefits for disadvantaged and marginalized individuals depending on the place of residence; active denial of the rights of women or particular individuals or groups.” [119]

Right to water:

  • “refraining from engaging in any practice or activity that denies or limits equal access to adequate water; arbitrarily interfering with customary or traditional arrangements for water allocation; unlawfully diminishing or polluting water, for example through waste from State-owned facilities or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example, during armed conflicts in violation of international humanitarian law.[120]
  • formal repeal or suspension of legislation necessary for the continued enjoyment of the right to water, or the adoption of legislation or policies which are manifestly incompatible with pre-existing domestic or international legal obligations in relation to the right to water.”[121]

Right to work:

  • “denying or limiting equal access to decent work for all persons, especially disadvantaged and marginalized individuals and groups, including prisoners or detainees, members of minorities and migrant workers;[122]
  • formal repeal or suspension of legislation necessary for continued enjoyment of the right to work; denial of access to work to particular individuals or groups, whether such discrimination is based on legislation or practice; and the adoption of legislation or policies which are manifestly incompatible with international obligations in relation to the right to work.”[123]

Other features of violations

As this Guide has well established, violations can occur through acts or omissions. They also have other or additional features, the analysis of which is relevant for understanding and interpretation purposes.

Violations can be either of an individual or large-scale nature. In both cases, the degree of their seriousness can vary, and so can the degree of their systemic nature. For instance, an individual violation can be gross without being the result of a systemic failure of an adequate policy or a systematic discriminatory practice.

Individual violations have often led to the identification of a broader issue of non-compliance with international obligations, and judicial and quasi-judicial bodies have in some instances ordered a systemic remedy, sometimes in the form of a legal or policy reform, when examining the case of an individual. The decisions of the Colombian Constitutional Court concerning the right to health constitute a good illustration of this.[124] In turn, judicial and quasi-judicial bodies addressing a claimed violation of a conventional or constitutional provision in abstract can order remedies that will then be applied to protect the rights of an individual in a specific case.

These examples show that a strict classification is often neither possible nor useful in practice. Nevertheless, identifying various types of violations can have a more concrete relevance for practitioners as the nature and scope of violations may, in certain circumstances, have an impact on the remedies available at least at the regional and international levels. For instance, under the Optional Protocol to the ICESCR, “grave or systematic” violations of ESC rights may benefit from an inquiry procedure.[125] This procedure enables lawyers and human rights activists to request an inquiry into a particularly serious and widespread issue of concern generating violations of ESC rights. Compared to the individual communications mechanism, the inquiry procedure can be a more timely and more flexible response, particularly because it does not require the exhaustion of domestic remedies.

Gross violations of ESC rights may sometimes reach the threshold of crimes under international law and thus to be subject to scrutiny by other bodies and jurisdictions. For instance, under the 1949 Geneva Convention, the 1977 Additional Protocol I, and the Rome Statute of the International Criminal Court, a number of violations also constitute ESC rights violations, such as forced evictions through population transfer, use of starvation as a method of warfare, enforced sterilization or forced labour and sexual slavery.[126]

Footnotes    (↵ returns to text)

  1. 99. ICJ Justiciability Study, pp. 16-17.↵
  2. 100. The Government of the Republic of South Africa and others v. Irene Grootboom and others, Constitutional Court of South Africa, Decision 2001 (1) SA 46 (CC) (2000); South African Minister of Health v. Treatment Action Campaign, Constitutional Court of South Africa, Decision 2002 (5) SA 721 (2002).↵
  3. 101. ICJ Justiciability Study, pp. 40-41.↵
  4. 102. Declaration of partial unconstitutionality, French Constitutional Council, Decision No. 2008-568 DC (2008).↵
  5. 103. See section II.2 of this chapter and supra note 41.↵
  6. 104. The ICJ studies on China, South Africa, Colombia, Poland, India, Brazil, Democratic Republic of Congo and Peru are accessible at: https://www.icj.org/category/publications/?theme=international-economic-relations↵
  7. 105. Committee on Economic, Social and Cultural Rights, General Comment No. 7, contained in UN Doc. E/1998/22, annex IV (1997), para. 3: The CESCR defines forced evictions as being “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”↵
  8. 106. See Committee on Economic, Social and Cultural Rights, General Comment No.4, supra note 58; and General Comment No. 7, supra note 105.↵
  9. 107. See for instance Olivier de Schutter, United Nations Special Rapporteur on the right to food, Addendum to the Report to the 13th session of the Human Rights Council, Large-scale land acquisitions and leases: A set of minimum principles and measures to address the human rights challenges, UN Doc. A/HRC/13/33/Add.2 (2009).↵
  10. 108. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, African Commission of Human and Peoples’ Rights, Decision 276 / 2003, 25 November 2009, paras 211-213.↵
  11. 109. Committee on Economic, Social and Cultural Rights, General Comment No. 21, UN Doc. E/C.12/GC/21 (2009), para. 62.↵
  12. 110. Ibid, para. 49.↵
  13. 111. Committee on Economic, Social and Cultural Rights, General Comment No. 13, supra note 44, para. 50.↵
  14. 112. Committee on Economic, Social and Cultural Rights, General Comment No. 13, supra note 44, para. 59.↵
  15. 113. Committee on Economic, Social and Cultural Rights, General Comment No. 12, supra note 32, para. 19.↵
  16. 114. Committee on Economic, Social and Cultural Rights, General Comment No. 14, supra note 32, para. 48.↵
  17. 115. Ibid, para. 50.↵
  18. 116. Committee on Economic, Social and Cultural Rights, General Comment No. 17, UN Doc. E/C.12/GC/17 (2005), para. 30.↵
  19. 117. Ibid, para. 42.↵
  20. 118. Committee on Economic, Social and Cultural Rights, General Comment No. 19, supra note 32, para. 44.↵
  21. 119. Ibid, para. 64.↵
  22. 120. Committee on Economic, Social and Cultural Rights, General Comment No. 15, supra note 32, para. 21.↵
  23. 121. Ibid, para. 42.↵
  24. 122. Committee on Economic, Social and Cultural Rights, General Comment No. 18, supra note 32, para. 23.↵
  25. 123. Committee on Economic, Social and Cultural Rights, General Comment No. 18, supra note 32, para. 32.↵
  26. 124. See for instance Yamin, A. E., & O. Parra Vera (2010), Judicial Protection of the Right to Health in Colombia: From Social Demands to Individual Claims to Public Debates. Hastings International & Comparative Law Review; 33(2), pp. 431-459. See also section III. 1.2 of this chapter.↵
  27. 125. See Article 11. Inquiry procedure
    1. A State Party to the present Protocol may at any time declare that it recognizes the competence of the Committee provided for under the present article. 2. If the Committee receives reliable information indicating grave or systematic violations by a State Party of any of the economic, social and cultural rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned. 3. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory. 4. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings. 5. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations. 6. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee. 7. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2 of the present article, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report provided for in article 15 of the present Protocol. 8. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General.
    of the OP-ICESCR: the inquiry procedure is a so-called opt-in procedure and thus only applies to States that have made the necessary express declaration.↵
  28. 126. See, inter alia, the following relevant international criminal law provisions: Deliberate infliction on a group of people of conditions of life calculated to bring about its physical destruction (article 6(c)(Genocide); Forced evictions through unlawful deportation or transfer of a civilian population as war crimes (article 8(2)(e)(viii)(War crimes) of the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002), UN Doc. A/CONF. 183/9 [hereinafter Rome Statute]) and crimes against humanity (article 7(1)(d) (Crimes against humanity) of the Rome Stat-ute); Destruction and appropriation of property violating the right to housing that is not justified by military necessity as a war crime (article 8(2)(a)(iv), 8(2)(b)(xiii) and 8(2)(e)(xii)(War crimes) of the Rome Statute; Intentional use of starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival as a war crime (article 8(2)(a)(iii) and (b)(xxv) (War crimes) of the Rome Statute; Intentionally directed attacks against buildings dedicated to education, art, science or health care provided they are not military objectives (article 8(2)(b)(ix) of the Rome Statute); Violations of sexual and reproductive health rights through rape, sexual slavery, enforced prostitution, forced pregnancy or enforced sterilization as a crime against humanity (article 7(1)(g)(Crimes against humanity) of the Rome Statute) and genocide (article 6(b) and (e)(Genocide) of the Rome Statute); pillage (article 8(2)(b)(xvi) and article 8(e)(v) (War crimes) of the Rome Statute). See also Committee on Economic, Social and Cultural Rights, General Comment No. 7, UN Doc. E/C 1998/22 (1997), paras 7 and 13 (on forced evictions in armed conflicts); Committee on Economic, Social and Cultural Rights, General Comment No. 14, UN Doc. E/CN.12/2000/4 (2000), para. 34 (on limitation of access to health services during armed conflicts); and Human Rights Committee, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 18 (on the recognition of certain human rights violations as criminal under either domestic or international law). For further information on ESC rights and international criminal law see Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, Cambridge Studies in International and Comparative Law, Cambridge University Press, forthcoming 2014. ↵