Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights

I. Introduction

In 1986 the International Commission of Jurists, the Maastricht Centre for Human Rights of the University of Limburg (the Netherlands), and the Urban Morgan Institute for Human Rights, College of Law, University of Cincinnati (Ohio, USA) convened a group of distinguished experts in international law to consider the nature and scope of the obligations of state parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR). ¹ This meeting (which was attended, among others, by some members of the then newly constituted ECOSOC Committee on Economic, Social and Cultural Rights and by staff members of the United Nations and Specialized Agencies) resulted in the adoption of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. At the initiative of the Netherlands government, these Principles have been issued as an official UN document; they have also been published in the Human Rights Quarterly and in the Review of the International Commission of Jurists. ²

Over the past ten years economic, social and cultural rights have received more, although certainly not yet sufficient, attention at the international governmental level. The Committee on Economic, Social and Cultural Rights has played a most constructive role in this respect. Mention should also be made of the various studies in the field of economic, social and cultural rights undertaken by special rapporteurs appointed by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. In 1993, the Second World Conference on Human Rights in Vienna reaffirmed the universality, interdependence, and indivisibility of economic, social, cultural, civil, and political rights, and stressed the need for elaborating an Optional Protocol to the ICESCR. ³ In this respect also relevant is the comprehensive report of the Netherlands Advisory Committee on Human Rights and Foreign Policy on the issue of economic, social and cultural rights. ⁴ This report contains twenty-nine recommendations concerning, inter alia, economic, social and cultural rights in a UN context, in specialized UN organizations, and in regional organizations. It also submits some recommendations concerning certain fundamental questions, such as the relevance of an integrated approach to civil and political rights and economic, social and cultural rights. ⁵ The report was in general favorably received by the Netherlands government, except for the recommendation concerning the introduction of an individual and collective complaint procedure under the ICESCR. ⁶

The monitoring of the progressive realization of economic, social and cultural rights is extremely complicated and requires an enormous amount of good quality data. Some have expounded the view that economic and social indicators should be developed to assess progress in the realization of economic, social and cultural rights. ⁷ It is certainly worthwhile to pursue this inquiry in light of the conclusions reached by a UN Seminar on Appropriate Indicators to Measure Achievements in the Progressive Realization of Economic, Social and Cultural Rights. This seminar concluded inter alia that it is necessary to develop new approaches in data collection, analysis, and interpretation, focusing on the status of the poor and disadvantaged groups but also disaggregating the data for a number of variables, including gender. ⁸ However, another potentially fruitful approach may be to focus on identifying violations enumerated in the ICESCR. The proposal to elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is based on the same premise. This proposal was submitted by the Committee on Economic, Social and Cultural Rights, the monitoring body under the ICESCR, and is now pending before the UN Commission on Human Rights. The Optional Protocol is intended to provide for a communications procedure concerning violations of all rights set forth in the ICESCR. ⁹

The Limburg Principles already made an early start in identifying the issue of violations of economic, social and cultural rights. ¹⁰ In a recent article on a violations approach for monitoring the ICESCR, Audrey Chapman argued that it is time for NGOs, governments, and human rights monitoring bodies to reorient their work toward identifying and rectifying violations...