Application of limitation clauses

The ICESCR, the European Social Charter, and the Protocol of San Salvador, provide for limitation clauses as discussed above. Their respective treaty bodies, namely, the CESCR, the European Committee, the Inter-American Commission and the Inter-American Court, refer to at least some components of proportionality analysis highlighted in the previous section. They use these components when they assess whether restrictions by states comply with the limitation clauses although the use of these components is not uniform.

Based on the general limitation clause under Article 4 of the ICESCR, the CESCR requires that

‘restrictions must be in accordance with the law, […] in the interest of legitimate aims pursued, and strictly necessary.’¹⁰⁵ It also requires limitations to be proportional.¹⁰⁶ These components can also be traced in the practice of the European Committee of Social Rights, which has held that a restriction is compatible with the European Social Charter ‘if the requirements of Article G are met, i.e. if the restriction is established by law, pursues a legitimate aim and is objectively necessary in a democratic society, that is to say proportionate to the aim pursued.’¹⁰⁷

The Inter-American Court also uses similar components. The Court has established requirements of permissible restrictions to the enjoyment and exercise of rights under the American Convention: ‘a) they must be established by law; b) they must be necessary; c) they must be proportional, and d) their purpose must be to attain a legitimate goal in a democratic society.’¹⁰⁸ In addition, in cases involving conflicts between indigenous communal property and individual private property, the restrictions should not amount to a denial of traditions and customs of indigenous people in a way that endangers the very survival of the group and of its members.¹⁰⁹ I will begin with the requirement of legality as emphasised by these treaty bodies.

3.3.2.1 Legality

Limitation clauses usually require that restrictions be ‘prescribed by law’.¹¹⁰ In the Limburg Principles, it has been suggested that limitations under Article 4 of the ICESCR should be ‘provided for by national law of general application which is consistent with the Covenant and is in force at the time the limitation is applied.’¹¹¹ Such national law should ‘be clear and accessible to everyone.’¹¹² States should not use arbitrary or unreasonable or discriminatory laws to limit rights.¹¹³ Müller argues that the term ‘law’ in Article 4 should not be limited to statute law.¹¹⁴ Relying on the drafting history of the ICESCR, she suggests that the term ‘law’ should mean ‘the whole body of legal precedent and practice’ although that is not apparent from the ICESCR and the practice of the CESCR.¹¹⁵

105 CESCR, General Comment 14, para 28.

106 CESCR, General Comment 14, para 29.

107 European Confederation of Police (EuroCOP) v Ireland, Complaint No. 83/2012, adopted 2 December 2013, para 104.

108 Yakye Axa Indigenous Community v Paraguay (Inter-American Court, 17 June 2005) para 144.

109 Saramaka People v Suriname (Inter-American Court, 28 November 2007) para 128.

110 Art 8(1)(a & c), ICESCR; Art 31, European Social Charter (1961); Art G, European Social Charter (1996). cf ‘determined by law’ Art 4, ICESCR; ‘by means of laws’ Art 5, Protocol of San Salvador; ‘established by law’ Art 8(2), Protocol of San Salvador; ‘in accordance with laws’ Art 30, American Convention on Human Rights;

111 Limburg Principles, paras 48.

112 Limburg Principles, para 50.

113 Limburg Principles, para 49.

114 Amrei Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9/4 Human Rights Law Review 557—601, 578.

115 Müller (n 114) 578.

The European Committee does not seem to give such a broad definition to the term ‘law’ under the general limitation clause of the European Social Charter.¹¹⁶ It has emphasised that laws that restrict the rights guaranteed under the European Social Charter should be passed by a democratic legislature. In GSEE v Greece, the Committee held that restrictive ‘measures must have a clear basis in law, i.e. they must have been agreed upon by the democratic legislature.’¹¹⁷ Thus, the Committee’s emphasis on the agreement by the legislature implies that rights guaranteed in the European Social Charter cannot be restricted by laws emanating from the other branches of the government, which includes subsidiary legislation and judicial precedents.

The Inter-American Court has limited the term ‘laws’ under Article 30 of the American Convention to mean legislative enactment. The Court has stressed that ‘the word "laws" in Article 30 of the Convention means a general legal norm tied to the general welfare, passed by democratically elected legislative bodies established by the Constitution.’¹¹⁸ The Court has developed a particularly demanding interpretation of the requirement of legality included in the general limitation clause of the American Convention:¹¹⁹ not every law that provides for restrictions on human rights complies with the American Convention. The Court has underlined the importance of the organ that promulgates the laws. Not every legislative body can restrict human rights; only ‘democratically elected’ ones can do. Moreover, the formal proclamation of the laws is not sufficient by itself. The Court has emphasised that ‘there must also be a system that will effectively ensure their application and an effective control of the manner in which the organs exercise their powers.’¹²⁰ Since this interpretation of the Inter-American Court relates to the general limitation clause, it applies to all rights recognised in the American Convention.

3.3.2.2 Legitimacy

Limitation clauses usually specify few legitimate aims for adopting restrictions to rights. The reasons for justifying restrictions are limited, not infinite. Under the general limitation clause of the ICESCR, there is only one legitimate aim: promoting ‘the general welfare.’¹²¹ The American Convention and its Protocol of San Salvador also provide for a single legitimate aim. Under the American Convention, the only legitimate aim is ‘general interest.’¹²² In the Protocol of San Salvador, the legitimate aim is preservation of ‘the general welfare.’¹²³

The meaning of the phrase ‘general welfare’ is not clear from the drafting history of the ICESCR, nor from the practice of the CESCR. In the Limburg Principles, it has been suggested that the phrase

‘promoting the general welfare’ should be ‘construed to mean furthering the well-being of the people as a whole.’¹²⁴ This phrase should not be construed to include the protection of public order,

116 European Social Charter (1961), Art 31; European Social Charter (1996), Art G.

117 Greek General Confederation of Labour (GSEE) v Greece, Complaint No. 111/2014, decision on the merits, 23 March 2017, para 83.

118 Inter-American Court of Human Rights, The Word ‘Laws’ in Article 30 of the American Convention on Human Rights, Advisory Opinion OC -06/86, 9 May 1986, para 38.

119 Olivier De Schutter, International Human Rights Law: Cases, Materials, Commentary (CUP 2010) 293.

120 Inter-American Court of Human Rights, The Word ‘Laws’ in Article 30 of the American Convention on Human Rights, Advisory Opinion OC -06/86, 9 May 1986, para 24.

121 ICESCR, Art 4.

122 American Convention, Art 30.

123 Protocol of San Salvador, Art 5.

124 Limburg Principles, para 52.

morals, national security and rights and freedoms of others because such grounds were intentionally left out from the ICESCR.¹²⁵

The Inter-American Court has explained the concept of ‘general welfare’ under Article 32(2) of the Convention. The Court held that the concept of general welfare refers to ‘the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values.’¹²⁶ This concept requires ‘the organization of society in a manner that strengthens the functioning of democratic institutions and preserves and promotes the full realization of the rights of the individual.’¹²⁷ The Court has stressed that states may under no circumstances invoke ‘general welfare’ ‘as a means of denying a right guaranteed by the Convention or to impair or deprive it of its true content.’¹²⁸ Since Article 32(2) of the American Convention is a general limitation clause, the meaning of ‘general welfare’ under this provision applies to all rights guaranteed in the same Convention.

In contrast, the European Social Charter does not include ‘general welfare’ among the legitimate aims. Instead, the Charter permits limitations when they are intended ‘for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.’¹²⁹ These aims have hardly been examined in the practice of the European Committee of Social Rights.¹³⁰ It has indicated the meaning of ‘public interest’, though. In GSEE v Greece, the Committee has explained that the legislature, although not free to ignore international obligations, has a margin of appreciation in legitimising and defining ‘the public interest by striking a fair balance between the needs of all members of society.’¹³¹ The Committee is of the opinion that restrictive measures can serve the public interest when they are taken to alleviate a very high unemployment rate and a dramatic shrinkage of the national economy.¹³² It should be noted that the European Committee has given this explanation in the context of alleged interferences with the enjoyment of rights guaranteed in the European Social Charter.

3.3.2.4 Suitability

Suitability is a sub-principle of proportionality, as discussed above. This sub-principle requires that there must be a rational connection between the restrictive measure and the legitimate aim.¹³³ The texts of limitation clauses do not include this element. Still some treaty bodies require that restrictive measures should be a suitable way of achieving legitimate aims. An example is the decision of the Inter-American Commission in National Association of Ex-Employees of the Peruvian Social Security Institute et al v Peru.¹³⁴ The Inter-American Commission has examined Peruvian legal reforms affecting pension schemes. The reforms, among other things, revised the equalisation of pensions with the wages earned by active employees, introduced maximum limits of payable amount, and

125 Müller (n 114) 573.

126 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts 13 and 29 American Convention on Human Rights), Advisory Opinion OC -5/85, 13 November 1985, para 66.

127 Ibid.

128 Ibid para 67.

129 Art 31, European Social Charter (1961); Art G, European Social Charter (1996).

130 Müller (n 114) 572.

131 GSEE v Greece, para 85.

132 GSEE v Greece, para 89.

133 Möller, Challenging the critics, (n 24) 713.

134 National Association of Ex-Employees of the Peruvian Social Security Institute et al v Peru, Case 12.670, Report No. 38/09, Decision of the Inter-American Commission on Human Rights on Admissibility and Merits, 27 March 2009

established mechanisms for periodically adjusting pensions.¹³⁵ The Inter-American Commission has found that the reforms ‘are suitable to achieve’ the legitimate aim of ensuring the financial stability of the state and of eliminating the inequity in the social security system.¹³⁶

Another example is the European Committee of Social Rights. In GSEE v Greece, the Committee has emphasised that ‘even under extreme circumstances the restrictive measures put in place must be appropriate for reaching the goal pursued.¹³⁷ It added that such measures should be the most suitable for responding to a pressing social need.¹³⁸ The European Committee ensures compliance with the requirement of suitability by rejecting a restrictive measure that has no connection with the legitimate goals. In European Confederation of Police (EuroCOP) v Ireland, the European Committee dealt with the restriction on the right to organise of members of the police guaranteed under Article 5 of the European Social Charter. ¹³⁹ The respondent State did not prohibit members of the police from forming their representative organisation; however, it prohibited them from joining national trade unions on the ground of public safety and public interest. The European Committee held that ‘a prohibition on police associations from becoming members of a national organisation of trade unions has no inherent connection with enhancing public safety and other important public interests.’¹⁴⁰ Suitability, one may submit, is in principle an ex ante evaluation, since it examines whether there is a rational connection between the restrictive measures and the legitimate goal. It is not an ex post examination of whether the restrictive measures have actually achieved the intended outcome (i.e.

the legitimate goal). A brief discussion of GSEE v Greece may illustrate this point. In this case, the European Committee has examined the legislation adopted by the respondent State ‘between 2010 and 2014 in response to the economic and financial crisis.’¹⁴¹ These measures, so-called austerity measures, are restrictive of the rights under the European Social Charter. In particular, the measures, among other things, exclude the application of collective agreements, dismantle existing collective bargaining arrangements, and favour ‘a balance of power that allows employers to downgrade recruitment, pay and working conditions.’¹⁴² The aims of these measures are to improve ‘the dramatic shrinkage of the Greek economy’ and reduce ‘the very high rate of unemployment’.¹⁴³ The assumption of this solution is that deregulation of the labour market provides incentives for investments, which may in turn create jobs and improve the Greek economy. One may argue that if the European Committee were examining these measures in 2010 when they were adopted, it would have given the respondent State the benefit of doubt by finding that the austerity measures would have been suitable. Of course, the reality is much more complex.¹⁴⁴

However, the European Committee decided GSEE v Greece in 2017 when it had the data:

135 Ibid, para 119.

136 Ibid, para 120.

137 GSEE v Greece, para 87.

138 GSEE v Greece, para 89.

139 European Confederation of Police (EuroCOP) v Ireland, Complaint No 83/2012, Decision on merits adopted 2 December 2013.

140 EuroCOP v Ireland, para 116.

141 GSEE v Greece, para 70.

142 GSEE v Greece, para 70.

143 GSEE v Greece, para 89.

144 The international financial institutions (the International Monetary Fund (IMF), the Commission and the European Central Bank (ECB) (the "Troika")) forced the Greek Government to adopt the austerity measures. For the purposes of obligations under the European Social Charter, I will continue assuming that Greece is a sovereign State and leave aside the issue whether human rights law is capable of addressing such issue.

The information produced by the Government itself shows that over a period of six years unemployment has increased by 26%, poverty by 27%, while the gross domestic product (GDP) has fallen by more than 25% and the measures adopted have not made it possible either to restore the labour market or sustainable growth or to achieve the main objective of the support programmes since during the same period public debt increased from 109% to 175% of GDP.¹⁴⁵

The Committee decided the case when it had the outcome of restrictive measures adopted by the respondent State. Therefore, the Committee made an ex post evaluation. It held that ‘the legislative measures in the present case, if construed as aimed at restoring the economic and financial situation of Greece and of the labour market, did not achieve any of these objectives.’¹⁴⁶ For this reason, the European Committee concluded that the restrictions are not permitted under Article 31 of the 1961 Charter.¹⁴⁷

3.3.2.3 Necessity

As a component of the proportionality analysis, the requirement of necessity prohibits adopting a restriction, when there is ‘a less restrictive but equally effective alternative’ as discussed above.¹⁴⁸ This requirement, one may argue, can be derived from limitation clauses, which usually require that restrictions to human rights should be ‘necessary in a democratic society.’¹⁴⁹ However, this criterion is not readily clear from the text of general limitation clauses in the ICESCR, the American Convention and its Protocol of San Salvador.¹⁵⁰

In practice, the CESCR requires that restrictions be necessary although this requirement is not clear from Article 4 of the ICESCR. Explaining restrictions that may be imposed on the right to health in accordance with Article 4 of the ICESCR, the CESCR has underlined that

Such restrictions must be in accordance with the law, including international human rights standards, compatible with the nature of the rights protected by the Covenant, in the interest of legitimate aims pursued, and strictly necessary for the promotion of the general welfare in a democratic society.¹⁵¹ The CESCR has made similar pronouncements with regard to the rights guaranteed under Article 15(1) of the ICESCR. It explained that limitations can be imposed on the exercise of the right guaranteed under Article 15(1)(c) and emphasised that such limitations ‘must be determined by law in a manner compatible with the nature of these rights, must pursue a legitimate aim, and must be strictly necessary for the promotion of the general welfare in a democratic society.’¹⁵² The CESCR does not define the requirement of necessity as the least restrictive means as discussed above;.

rather, it explains that ‘limitations must be proportional, i.e. the least restrictive alternative must be adopted where several types of limitations are available.’¹⁵³ Put differently, the CESCR takes proportionality to mean the least restrictive alternative.

145 GSEE v Greece, para 92. Italics added.

146 GSEE v Greece, para 92.

147 GSEE v Greece, para 93.

148 Kai Möller, ‘Proportionality and Rights Inflation’ in Grant Huscroft, Bradley W Miller & Grégoire Webber, Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014) 156.

149 ICESCR, Art 8(1); European Social Charter (1961), Art 31; European Social Charter (1996), Art G(1). cf Protocol of San Salvador, Art 8(2).

150 ICESCR, Art 4; Protocol of San Salvador, Art 4; American Convention, Art 30.

151 CESCR, General Comment 14, para 28. Italics added.

152 CESCR, General Comment 17, para 22; General Comment 21, para 19.

153 CESCR, General Comment 14, para 29. See General Comment 17, para 23; General Comment 21, para 19.

The requirement of necessity as the least restrictive means is traceable in the practice of the European Committee of Social Rights. In GSEE v Greece, the European Committee held that restrictive measures are permissible on the condition that such ‘measures could be regarded as […]

the least restrictive’ of the rights guaranteed in the European Social Charter.¹⁵⁴ The Committee has found a violation because ‘there has been no real examination or consideration of possible alternative and less restrictive measures’ by the respondent State.¹⁵⁵

Moreover, the European Committee considers other grounds when it evaluates whether a restriction to the rights under the European Social Charter is ‘necessary in a democratic society’ in accordance with the general limitation clause of the European Charter. For example, it held that a restrictive measure is not necessary when there is no ‘pressing social need’.¹⁵⁶ In GSEE v Greece, the Committee indicated what can be considered a ‘pressing social need’: ‘the dramatic shrinkage of the Greek economy and the very high rate of unemployment represented a pressing social need which could have necessitated the adoption of measures restricting or limiting the rights guaranteed by the Charter.’¹⁵⁷ In EuroCOP v Ireland, the European Committee indicated that providing services in relation to immigration and state security does not constitute a pressing social need for placing a complete ban on the exercise of the right to strike. In this case, it has examined an absolute ban on the right to strike by members of the police under Article 6(4) of the European Social Charter. The respondent State has justified such a ban on the ground that it relies on its police in the context of immigration control and state security.¹⁵⁸ According to the European Committee, however, these reasons ‘do not demonstrate the existence of a concrete pressing social need.’¹⁵⁹ As a result, the European Committee held that the law that places an absolute prohibition on the right to strike ‘is not proportionate to the legitimate aim pursued and, accordingly, is not necessary in a democratic society.’¹⁶⁰

A restriction is not necessary when a state fails to provide sufficient information as to why it has put such a restriction in place. The European Committee has emphasised this requirement in European Organisation of Military Associations (EUROMIL) v Ireland.¹⁶¹ In this case, it examined a complaint concerning the respondent State’s failure to ensure the participation of members of the armed forces in national pay negotiations under Article 6(2) of the European Social Charter:

The Committee has been provided with little information as to why the practical exclusion of the armed forces from the scope of direct pay negotiations is necessary within the meaning of Article G of

The Committee has been provided with little information as to why the practical exclusion of the armed forces from the scope of direct pay negotiations is necessary within the meaning of Article G of