Article 4: Limitations on the enjoyment of rights.
Article 4 governs the ability of States to impose restrictions on the rights protected under the Covenant. It is applicable to all substantive rights contained in Part III of the Covenant, which means that every restriction on the enjoyment of rights protected by Articles 6 through 15 must meet Article 4 requirements. Article 4 requires that any State-imposed restriction meet four conditions: the restriction must be determined by law; it must be compatible with the nature of the Covenant's rights; it must be strictly necessary for promoting the general welfare; and in a democratic society.
According to the Limburg Principles, the "determined by law" clause requires that any limitation on the exercise of economic, social or cultural rights be pursuant to a national law of general application. (24) The law must be consistent with the Covenant and, according to General Comment 14, in accordance with international human rights standards in general. (25) Laws imposing restrictions should not be arbitrary, unreasonable or discriminatory. (26) They should be clear and accessible to everyone, (27) and in force at the time any restriction on Covenant rights is applied. (28) Before such a restriction is applied or even provided for by law, States must have adequate legal safeguards and effective remedies in place to prevent an illegal or abusive imposition of limitations on economic, social and cultural rights.
The restriction "compatible with the nature of these rights" requires that a limitation shall not be interpreted or applied so as to jeopardize the essence of a particular right. (29) In some cases, the Committee has established minimum or core obligations associated with individual rights. For example, General Comment 14 provides a list of core obligations under Article 12, which ensures the right to health. Where the Committee has not outlined minimum or core obligations, reporting parties might look for de facto limitation of economic, social and cultural rights. For example, if individuals must meet excessive requirements to obtain access to education, health services, or basic social services, a de facto limitation may have occurred--resulting in a restriction incompatible with the nature of the Covenant's rights.
The third requirement, that any restriction be for the purpose of "promoting the general welfare," should be construed to mean that restrictions must further the well-being of the people as a whole. (30)
Fourth, States Parties have the burden of proving that any restrictions on economic, social, and cultural rights do not impair the democratic functioning of society. (31) While there is no single model of a democratic society, the Committee would look for recognition and respect for human rights as set forth in the UN Charter and Universal Declaration of Human Rights. (32)
Applying Article 4 to women's human rights specifically, restrictions on women's ability to work, attend school, access health care, participate in the national economy, or exercise any of the other rights protected by Articles 6 through 15 are in violation of Article 4 unless State parties can show that the four conditions are met. Such limitations must be justified by evidence that they are legally established, compatible with the nature of the Covenant's rights, proportional, and designed to further the general welfare.
Questions to ask:
1. Does the State in any way restrict women's ability to exercise the economic, social, and cultural rights protected under Articles 6 through 15? If so, has the State met its affirmative obligation to justify such limitation? Has the State met the four conditions prescribed by Article 4?
2. Are limitations on women's economic, social, and cultural rights pursuant to a national law of general application? Is such law of general application in accordance with international human rights standards in general? Is the law arbitrary, discriminatory, or unreasonable in any way? Is the law written in clear language, accessible to everyone? Was the law in force at the time the limitation was applied?
3. Are there effective legal safeguards and remedies in place to prevent abuse of the limitation?
4. Does the limitation jeopardize the essence of a particular right? For example, if the State imposes a limit on women's access to health care, can the State still meet the core obligations outlined in General Comment 14?
5. Does the limitation further the well being of the people as a whole? For example, blanket justifications citing national security or preservation of public order are insufficient unless truly benefiting the general welfare of members of society.
6. Is the limitation, in application and practice, proportional to the aim sought?
7. Does the limitation comply with the anti-discrimination principle embodied by Article 2(2) and Article 3?
(24) Limburg Principle para. 48.
(25) General Comment 14, para. 28.
(26) Limburg Principle para.. 49.
(27) Limburg Principle para. 50.
(28) Limburg Principle para. 48.
(29) Limburg Principle para. 56.
(30) Limburg Principle [para. 52.
(31) Limburg Principle para. 54.
(32) Limburg Principle para. 55.
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|Title Annotation:||EQUALITY AND WOMEN'S ECONOMIC SOCIAL AND CULTURAL RIGHTS: A Guide to Implementation and Monitoring Under the International Covenant on Economic, Social and Cultural Rights|
|Publication:||Equality and Women's Economic, Social and Cultural Rights|
|Date:||Jan 1, 2004|
|Previous Article:||Article 3: Equality between men and women.|
|Next Article:||Article 5: Prohibition to destroy rights or freedoms.|