Economic, social and cultural rights : general obligations in the African Charter on Human and Peoples’ Rights
Summary: Food, health care, housing and water are basic goods and services necessary to lead a dignified life. The main means of accessing basic goods and services are usually property ownership and work, save exceptional circumstances where individuals rely on the support of their fellow human being or institutions. Since the advent of the United Nations, access to basic goods and services has been recognised as economic, social and cultural rights guaranteed in international human rights treaties. State parties have undertaken the international obligations to give effect to these rights. The treaties were adopted within the framework of international organisations. The pioneer is the Council of Europe whose model of treaty-making has been replicated first by the United Nations and then by the Organisation of American States. The Organisation of African Unity (now the African Union) was the late comer to the human rights project when it adopted the African Charter on Human and Peoples’ Rights (African Charter), the main human rights treaty of the African Union. The African Charter applies to the Continent of Africa, where the implementation of economic, social and cultural rights is relatively low. This research examines the scope of general legal obligations undertaken by states in the African Charter, considering the progressive realisation obligation as the principal obligation corresponding to the recognistion of economic, social and cultural rights. The research distinguishes the progressive realisation obligation from its exceptions, the immediate obligations, which include minimum core obligations and non-discrimination/equality. It links the progressive realisation obligation to the limitations on economic, social and cultural rights and recognises the the importance of participation of individuals and groups in the implementation of their economic, social and cultural rights. To examine the general legal obligation of states in the African Charter, the research analyses text of the African Charter and findings of the African Commission on Human and Peoples’ Rights (African Commission) and the African Court on Human and Peoples’ Rights (African Court), which include cases, comments, declarations, guidelines, observations, opinions, principles, reports and resolutions. The research draws insights from the text of the Europian Social Charter (European Charter), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the American Convention on Human Rights (American Convention), and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), and from the practice the Eurpean Committee of Social Rights (European Committee), the Committee on Economic, Social and Cultural Rights (CESCR), Inter-American Commission on Human Rights (Inter-American Commission), and Inter-American Court of Human Rights (Inter-American Court). The research finds that the recognition of economic, social and cultural rights in the African Charter envisages broader state obligations than in the European Charter, the ICESCR, and the Protocol of San Salvador. It also finds that the African Commission reduces the state obligations by interpreting economic, social and cultural rights in the African Charter in line with the ICESCR and the practice of the CESCR. The Commission imported the concept of progressive realisation without adapting the concept to the textual contexts of the Charter and introduced a general limitation clause into the Charter. It has interpreted economic, social and cultural rights in isolation, undermining the indivisibility of all rights in the African Charter. The Commission and the Court have overlooked the 314 individual right to participate in government of one’s country and the collective right to self-determination, reducing the state obligation to ensure participation of individuals and groups in the implementation of their economic, social and cultural rights only to the rights to property, health, and a general satisfactory environment. The research finds that the Commission’s interpretation of state obligations in the African Charter is sometimes narrower than the CESCR’s interpretation of state obligations in the ICESCR. In particular, the Commission identified fewer minimum core obligations compared to those identified by the CESCR as core obligations. While developing a general limitation clause under the Charter, the Commission and the Court expanded grounds for limiting the enjoyment of economic, social and cultural rights that are not incorporated in the ICESCR. The research concludes that the African Commission and the African Court have articulated a narrow conception of economic, social and cultural rights. It recommends that the Commission and the Court should avoid the interpretation that erodes substantive content of economic, social and cultural rights guaranteed in the African Charter. In particular, the research recommends the revision of the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Nairobi Principles), which contains the major interpretation of the Commission.
Law and Political Science, Social Sciences, HRC, Human Rights Law, Dissertation, ESC-Rights
Networked Digital Library of Theses and Dissertations
Universiteit Gent. Faculteit Recht en Criminologie