In an earlier post I examine the 4 lessons that arise from the Boko Haram war on education and national and international reaction. I summarise them here:
‘Lesson 1: The history of northern Nigeria should not be ignored in discussing education in the region.
Lesson 2: The demarcation of rights into two covenants does not cater for the needs of African post-colonial states
Lesson 3: Diverse approaches to implementing human rights should become mainstream. For example, the IACrtHR has formulated and enforced the right to a ‘project of life’.
Lesson 4: A right to a project of African life may help resolve the tensions between culture and human rights.
In this post, I examine how all these lessons apply to Economic, Social and Cultural (ESC) rights generally. I also argue that this is because in many African states ESC rights are usually upheld by ethno-linguistic communities or influential individuals rather than governments.
The International Human Rights Law framework, especially its key component of universality of human rights, relies heavily on the principle that the family of humanity share common values such as dignity, respect, liberty, justice, and equality. Furthermore, each individual is entitled to a status of ascriptive value (human dignity) that allows her to develop her life free from interference. However, the different ways in which these common values play out in different cultures resulted in the bifurcation of the human rights covenants into two separate instruments in 1966.
One covenant, the ICCPR, contained civil and political rights requiring non-interference from the state and its agents – e.g. the right to life, liberty and freedom of expression. The other covenant, the ICESCR, contained economic, social and cultural rights, requiring state positive fulfilment – e.g. the right to education, health, and housing. (A full list is at the bottom of the page) The division was partly based on the presumption that states were either capitalist or socialist, though many African and Asian states are neither, nor do they aspire to be. The influence of Africa at the UN was demonstrably weak in 1966 [when these HR Covenants were passed], at the time many of the African states were about 6 years old, with a non-residual sovereignty. Had the influence of African and Asian states been stronger, there may have been an even unnecessarily wider dispersion of influences on the human rights covenants.
The Cold War caused the debate about the two categories of rights to turn into an eristic ideological minefield, under which individuals deserving of protection were trampled. African states had yet to develop [and many still have not yet developed] state ideologies and were stuck in the middle of a power tussle. Economic paucity caused many to plead that insufficient resources would delay implementation of human rights, specifically ESC rights.
Even though the equality of the human rights covenants has been consistently underlined, the nature of the rights in each charter means that many developing nations view ESC rights as non-justiciable and dependent on available resources. The legal status of ESC rights have also been considered uncertain. Therefore, protection of ESC rights are not as advocated as the protection of civil/political rights. It has been argued that ESC rights are not strictly ‘legal’ rights but ‘programmatic’ state obligations, because the objectives and approaches to enforcement are not determinable in legal terms. ESC rights thus receive reduced protection in practice.
Nonetheless, because, the core normative content of the ‘right’ involves the obligation of the state to provide and fulfil (positive action), Coomans argues that failure to perform this obligation is justiciable. While states such as Nigeria have ratified the ICESCR, some rights e.g. the right to education, are not given fundamental constitutional protection. For example, the Nigerian Constitution includes ESC rights as part of the aspirational ‘Fundamental Objectives and Directive Principles of State Policy’ and are generally believed to be non-justiciable. However, the ECOWAS Court, in SERAP v Nigeria, in response to a preliminary objection, were asked to determine whether or not ESC rights were justiciable within Nigeria. The Court accepted the plaintiff’s argument that justiciability arose from the jurisprudence of the African Charter of Human and Peoples Rights and the ICESCR, rather than the Nigerian Constitution.
Writings that contest the equality of the two covenants ignore the fact that they are both equal treaties, signed into law in exactly the same way, for the purpose of ensuring human dignity. Furthermore, there is a tendency to conflate the mechanisms of national law with international, even though these areas of law work differently; the requirements for normativity of international law are not as rigidly dependent on enforceability or available remedies, but on the legally binding nature of duly signed and ratified treaties. Writings of scholars such as Vierdag and Cranston which question the legality of ESC rights, raise such questions from a singular perspective of human existence. However, the value and classification of human rights are better appreciated in their deprivation. Different states have different histories of deprivation, the aim of IHRL is to universalise overall human rights protection, irrespective of state ideology, finances or history.
To underestimate or deny the inherent legality of ESC rights due to constraints of temporal and financial achievement, is to misconstrue the nature of rights and states and thus devalue the aims IHRL. IHRL is in itself aspirational, without violations there would be no need for IHRL. Violations of all human rights can arise from direct malicious deprivation or state incapacity. The ability to protect human rights within a state, depends largely, on the internal situation of a state. The right to fair trial, for example, can only be achievable where there is judicial infrastructure and personnel, for a state without the required judicial personnel, the civil/political right to fair trial would be aspirational. A classic example of this can be seen in the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) which needed the financial assistance of the UN, because Cambodia lacked “a trained cadre of judges, lawyers and investigators; an adequate infrastructure; and a culture of respect for due process. … the result of the mass killings during the Khmer Rouge.” Thus the aspirational nature of a right depends on the nature and extent of deprivation, the needs of the community as well as the importance of the right.
Ultimately the categorisation of rights arises from static beliefs about states classified as ‘developing countries’, especially African ones. Thus one of the major conceptual differences between ESC rights and civil/political rights, arises from fixed ideas about the relationship between individuals and their states. The IHRL framework is meant to protect citizens from violations of their human rights perpetrated by the state or its agents. To this end civil/political rights typically mandate the state to avoid violation of rights irrespective of the level of development, while ESC rights mandate the state to engage in the fulfilment of rights dependent on and relative to the state’s level of development. Thus civil/political rights are said not to require the input of state resources, the fulfilment ESC rights depend on them. Additionally, due to the fact that IHRL developed almost as a direct reaction to the civil/political atrocities of the Second World War, ESC rights, though included in the pantheon of rights, fell below the radar of political will.
Human dignity is one of the key driving impetuses of the IHRL movement. Human dignity as a concept transcends but does not obliterate the categorisation of rights, even though civil/political rights have been argued to be closer related to concepts of human dignity than ESC rights. Critics of justiciability of ESC rights presuppose that human existence is uniform. The idea that human rights theory is solely about the relationship between the state and the individual, and a list of what the government must do and must not do, ignores the reality of non-governmental forces, and the existence of states with limited sovereign control over their own territory.
The collective classification of ESC rights as aspirational, government-focused and non-justiciable, wrongly implies that all the rights in the ESC Covenant are homogenous. The designation of ESC already suggests that the rights could be economic or social or cultural. For example the right to strike, does not require the state to do anything, while the right to education does. These conceptualisations and categorisations of rights rely on a strict Westphalian understanding of the relationship between individual and state and a linear concept of state development. ESC rights are only aspirational where a state is taking a unidirectional journey through identifiable, fixed advancing points of development. Aspiration suggests time allowances that cannot be properly mapped onto the vicissitudes that characterise life within a state and the vagaries and fluctuations of national development. Consequently, ESC rights can only be divorced from civil/political rights where the relationship between individual and state is not diluted by influential cultural communities, powerful non-state actors, direct international community activity and countless other ‘others’, which characterise the existence of many developing states.
These considerations are further complicated by the effects of the nature of cultural ideology and communal activity in Africa, as well as state incompetence which has caused the individual and the community (and not the state) to take most responsibility for the provision of ESC rights. The differing types of human rights does not properly take into account the fluidity of human existence on the local, national and international spheres. Fundamentally, understanding and categorisation of rights are very sharply affected by mistaken presumptions about the internal workings and needs of states and our ideas about linear development of states. The assumption that developing states must develop politically and economically in the same manner as states that are already developed, is not supported by current affairs or international relations or the history of developed states. The differing socio-economic paths taken by China, Brazil and South Africa indicate the non-linearity of state transformations.
Degenerationalising human rights by combining the covenants into one document, however, does not address the fact that some rights would be enforceable immediately and some would be dependent on the level of development. Though which rights those would be depend not, on the current classification, but the internal state situation. The right to development itself has been described as a synthesis right that integrates all human rights irrespective of category. Nevertheless, the right to development may be considered to be both a group and an individual right needed by less developed states but not to a great degree by developed states. ESC rights remain difficult to enforce; this cannot be cured by merely combining the covenants. Such a merger would not answer the questions posed by so-called third generational rights (like the right to development) as they would fall outside the covenants. A solution may be found in the jurisprudence of the Inter-American Court of Human Rights (IACrtHR) and its formulation of a ‘right to project of life’.
A right to harbour a ‘project of life’ has been described as a canopy approach that incorporates component rights based on the core idea of human of dignity. This approach achieved prominence in the IACrtHR as a generous reading of the protection of the right to life under Article 4(1) of the Inter-American Convention on Human Rights (IACHR). The right to respect for life has been used by the IACrtHR to adjudicate upon the violation of both ESC and civil/political rights, based on the argument that the rights subject to adjudication were rights necessary for the advancement of a dignified life. The court to that extent by broadening the understanding of the right to life takes a huge step towards normativisation of human dignity.
A right to a project of African life is an ideal solution where the mechanism of state is weak, violators of human rights are non-state and cross-border and the manner of violation is multifaceted and combined with other rights. The indicators of the violation of the macro-level right to harbour a project of life, should subsume the indicators of ESC rights and CP rights. Nevertheless, any framework designed to functionally appropriate culture promotion of IHRL would have to resolve, among other things, the tension between ‘traditional’ views and IHRL, especially concerning women’s rights and universal human rights norms. These cannot be resolved without actually engaging with culture.
List of ESC Rights
- Labour rights (right to work and to just and favorable conditions at work, right to join trade unions, etc.);
- Right to health;
- Right to education;
- Right to family life;
- Right to an adequate standard of living;
- Right to social security;
- Right to participate in cultural life;
- Right to partake of the benefits of scientific progress;
- Minority rights (right to self-determination).
Read more at:
Koldo Casla ‘After 50 years, it’s time to close the gap between different human rights‘ December 15, 2016, The Conversation.
Ipinyomi, Foluke Ifejola, A Right to a Project of (African) Life: Boko Haram, ESC Classification of the Right to Education, and the Unjustifiability of Generationalising Human Rights (August 10, 2015). Journal of Academic Perspectives, Volume No. 4, 2015.