Article 5: Prohibition to destroy rights or freedoms.

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.

2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

Comment:

Article 5 is comprised of two rules: 5(1) prohibits the abuse of rights protected by the Covenant, and 5(2) provides a "savings clause" to guide States' application of the Covenant in conjunction with other bilateral or multilateral treaties, as well as domestic law. Overall, Article 5 emphasizes the protective character of the Covenant and limits States' ability to impose limitations on the exercise of the Covenant's rights--much like Article 4. (33)

Article 5(1) prohibits States, individuals or groups from engaging in activities or performing acts aimed at destroying any of the rights or freedoms protected by the Covenant, or, imposing limitations beyond those specifically provided for by law. (34) It works in tandem with Article 4 to ensure that limitations to Covenant rights are allowed only to the extent specifically provided??? by law. Limitations are properly provided by law if they meet each Article 4 requirement, or if explicitly allowed by the Covenant. For example, Article 8(2) provides for a narrow restriction on the exercise of union rights. The Limburg Principles make clear, however, that there is "no general, implied or residual right for a state to impose limitations...." (35) Any limitation must be specifically (not implicitly) envisaged by the Covenant.

Article 5(2) indicates that when States are parties to more than one instrument concerning economic, social, and cultural rights, the rights most favorable to the individual should prevail. According to the Limburg Principles, "[t]he purpose of article 5(2) is to ensure that no provision of the Covenant shall be interpreted to prejudice the provisions of domestic law or any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favorable treatment would be accorded to the persons protected." (36) The principle that the higher (and broader) standard of protection must apply is also recognized in Article 5(2) of the International Covenant of Civil and Political Rights

Questions to ask:

1. Is a State party, or any person or group acting or engaging in an activity with the aim of limiting economic, social or cultural rights? If so, is such limitation licensed by Article 4 or any other provision of the Covenant?

2. Has the State party passed or ratified other laws or treaties that also address economic, social and cultural rights? If so, the State is obligated to apply the highest and broadest standard of protection in every case. Is there evidence that the State has violated Article 5(2) by failing to apply the higher standard?

(33) Magadelena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights 303 (2003).

(34) Limburg Principle para. 57

(35) Limburg Principle para. 57

(36) Limburg Principle para. 58.