Limitation clauses

The European Social Charter, the ICESCR, and the Protocol of San Salvador all include both general and specific limitation clauses. The ICESCR contains a general limitation clause under Article 4, which provides that:

The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

In terms of its scope of application, it is submitted, Article 4 seems to extend beyond the rights guaranteed in the ICESCR. This provision refers to limitations on ‘the enjoyment of those rights provided by the State in conformity’ with the ICESCR. The exercise of the rights subjected to a limitation need not be guaranteed in the ICESCR. This is evident from the comparison of terms used in other provisions in part II. For example, Article 2(1) refers to ‘rights recognised’ in the ICESCR while Article 3 refers to rights set forth in the ICESCR.

Article 4 also applies to all rights guaranteed in the ICESCR. This provision is located in part II, which provides for general principles and rules applicable to all substantive rights in part III. This makes it a general limitation clause. In other words, the exercise of all the rights guaranteed in the ICESCR is subject to a limitation, and as a result, none of the economic, social and cultural rights guaranteed in the ICESCR are absolute. This can be contrasted with the ICCPR, which guarantees some absolute rights partly because such rights are not circumscribed by limitation clauses.⁹⁶

The scope of Article 4 can also be determined in relation to specific limitation clauses. Article 4 does not specify its relationship with other limitation clauses. Nevertheless, it is a trite rule of interpretation that special rules prevail over general ones. Article 4 is a general rule. Its application can be set aside by a special rule. That is, Article 4 does not apply when provisions in part III of the ICESCR (Articles 6-15) contain a limitation clause. In particular, Article 4 does not apply to rights guaranteed in Article 8 of the ICESCR (trade union rights).

Article 8 of the ICESCR is the only substantive provision in part III that contains detailed specific limitation clauses.⁹⁷ One such clause relates to the right of everyone to form trade unions and join the trade union of one’s choice, a right which also falls under the category of civil and political rights.⁹⁸ It provides that:

No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.⁹⁹

96 eg ICCPR, Arts 7 & 8. Prohibition of torture and slavery are examples of absolute rights.

97 Alston & Quinn (n 2) 210. They argue that the right to education also contains minor limitation.

98 ICCPR, Art 22(1). This provision also provides for the same right.

99 ICESCR, Art 8(1)(a).

Article 8 also places a similar limitation on the right of trade unions to function freely. This right is subject to restrictions, which are ‘prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.’¹⁰⁰ Besides, states can impose additional restrictions on the exercise of trade union rights by soldiers, police and civil servants.¹⁰¹

The formulation and content of Article 8 is different from Article 4. Article 8 shares more features with Article 22(2) of the ICCPR. Apart from the number of legitimate grounds, these provisions are the same. Public safety, public health and morals are legitimate grounds for restricting trade union rights under Article 22(2) of the ICCPR. These three grounds are omitted from Article 8. National security, public order, and rights and freedoms of others are common to both Article 22(2) of the ICCPR and Article 8 of the ICESCR. Still, Article 8 contains more legitimate goals than Article 4 does;

the latter contains only one legitimate goal, implying narrow states discreation.

Like the ICESCR, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) contains general and specific limitation clauses. Article 5 of the Protocol states the general limitation clause:

The State Parties may establish restrictions and limitations on the enjoyment and exercise of the rights established herein by means of laws promulgated for the purpose of preserving the general welfare in a democratic society only to the extent that they are not incompatible with the purpose and reason underlying those rights.

This provision shares more common features with the general limitation clause of the ICESCR than it shares with the general limitation clauses of the American Convention on Human Rights. The latter provides for two general limitation clauses. Article 30 of the Convention provides that:

The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.

In addition, Article 32(2) of the Convention provides that: ‘The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.’

Like the ICESCR, the Protocol of San Salvador mentions only one legitimate ground for restricting the rights it guarantees: the preservation of the general welfare. On the other hand, the American Convention provides for two additional legitimate goals: rights of others and security of all. Like the ICESCR again, the Protocol of San Salvador requires that restrictions to the rights it guarantees must be compatible with the purpose and reasons underlying those rights. On the other hand, the American Convention does not expressly state such requirement.

Regarding its scope, Article 5 of the Protocol of San Salvador applies to all rights guaranteed in the same Protocol. This is particularly the case when other provisions of the Protocol do not contain specific limitation clauses. However, Article 5 does not apply to trade union rights (Article 8 of the

100 ICESCR, Art 8(1)(c).

101 ICESCR, Art 8(2).

Protocol of San Salvador) because there is a specific limitation clause applicable to these rights.¹⁰² This view is in line with the Inter-American Court’s position on the relationship between general and specific limitation clauses under the American Convention. The Inter-American Court has explained that a general limitation clause under Article 32(2) of the American Convention is applicable when there are no specific limitation clauses under other provisions. It held that ‘Article 32(2) contains a general statement that is designed for those cases in particular in which the Convention, in proclaiming a right, makes no special reference to possible legitimate restrictions.’¹⁰³ In the same line, the general limitation clause under Article 5 of the Protocol of San Salvador is not applicable because the specific limitation clause under Article 8 of the same Protocol prevails as a special rule.

Under Article 8(2), the specific limitation clause in the Protocol of San Salvador stipulates that:

The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law.

This provision shares little with the general limitation clause under Article 5 of the Protocol of San Salvador. Instead, it shares more features with restrictions under Article 16 of the American Convention (freedom of association). Article 8 of the Protocol contains fewer legitimate goals than Article 16 of the Convention does. Apart from this, the two provisions are essentially the same.

In terms of formulation and content, the general limitation clause in the European Social Charter is different from those clauses in the ICESCR and the Protocol of San Salvador. The European Social Charter states that:

The rights and principles set forth [in the European Social Charter] shall not be subject to any restrictions or limitations not specified in those parts, except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.¹⁰⁴

This provision is similar with specific limitation clauses relating to trade union rights guaranteed in the ICESCR and the Protocol of San Salvador. As a result, the European Social Charter provides for more legitimate grounds for restricting rights it guarantees than the ICESCR and the Protocol of San Salvador. One may wonder whether the general limitation clauses in the ICESCR and the Protocol of San Salvador represent a change in the way limitation on economic, social and cultural rights is understood in international human rights law in general. The European Social Charter is the pioneer.

It predates both the ICESCR and the Protocol of San Salvador. Therefore, one may argue, the ICESCR and the Protocol of San Salvador represent a trend towards allowing fewer legitimate goals to restrict the enjoyment of economic, social and cultural rights, apart from the trade union rights which are akin to civil and political rights.

102 Protocol of San Salvador, Art 8(2).

103 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 65.

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