Limitations to and Derogations from Economic, Social and Cultural Rights

Abstract

This article explores the question of limitations to and derogations from economic, social and cultural rights. With regard to limitations, it analyses Article 4 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) (limitations) and its relationship to Article 2(1) of the ICESCR (progressive realisation). It argues that the criteria of Article 4 should be applied as a uniform standard to evaluate all limitations of economic, social and cultural rights, regardless of the reasons for which these limitations are made. This is against the background of the approach of the Committee on Economic, Social and Cultural Rights, which draws a distinction between retrogressive measures states may take when they face resource constraints under Article 2(1) on the one hand; and limitations for other reasons under Article 4 on the other hand. With regard to derogations, the question is discussed whether states are permitted to derogate from the ICESCR despite the fact that the ICESCR does not contain a derogation clause. A tendency can be observed in states’ and the CESCR’s approach to allow for derogations from the ICESCR’s labour rights, but to exclude derogations from other ESC rights, in particular from minimum core obligations under these rights.