2.2 Progressive realisation: A general view
2.2.1 A brief history of progressive realisation
The adoption of the ICESCR in the year 1966 marks an important milestone in the history of progressive realisation. Economic, social and cultural rights instruments adopted before the ICESCR do not contain the concept. The American Declaration of the Rights and Duties of Man (American Declaration), which is geographically limited to the Americas, guarantees economic, social and cultural rights.29 It was adopted on 2 May 1948, making it the world’s first general international human rights instrument. As its names implies, the declaration is not a treaty, however, it would be difficult to classify the declaration under non-binding instruments. The Inter-American Court attaches some legal value to it, holding that the declaration is ‘a source of international obligations’.30 Whatever the legal nature and geographical coverage of the declaration, it is worth noting that it recognises economic, social and cultural rights but it does not contain the concept of progressive realisation.
On 10 December 1948, the General Assembly of the United Nations (UN) adopted the Universal Declaration of Human Rights (Universal Declaration).31 Like the American Declaration, the Universal Declaration is not a treaty. However, it has wider geographical coverage and lays down standards that have global application. The Universal Declaration formulates each right in the same manner as entitlement of individuals, without distinguishing civil and political rights from economic, social and cultural rights.32The reference of the General Assembly to ‘the draft covenant on human rights,’
when it adopted the Declaration but deferred considering a right of petition, indicates the expectation that it was to grow into one binding treaty.33 The position was confirmed in 1950 when it decided ‘to include in the Covenant on Human Rights economic, social and cultural rights’, stressing that ‘the enjoyment of civic and political freedoms and of economic, social and cultural rights are
29 Ninth International Conference of American states, Bogotá, Colombia. Reproduced in Theo van Banning et al, Human Rights Instruments (University for Peace 2004) 143 – 144.
30 Inter-American Court of Human Rights, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, 14 July 1989, para 45.
31 General Assembly Resolution 217 A (III) of 10 December 1948.
32 Compare, for example, art 3, which provides that ‘[e]veryone has the right to life’, and art 22, which guarantees that
‘[e]veryone, as a member of society, has the right to social security’. In contrast, compare art 6(1) of the ICCPR, which provides that ‘[e]very human being has the inherent right to life’, and art 9 of the ICESCR, which provides that ‘[t]he states Parties to the present Covenant recognize the right of everyone to social security’.
33 Right to Petition, General Assembly Resolution 217 B (III) of 10 December 1948.
interconnected and interdependent’.34 Unfortunately, the idea of a single treaty did not materialise in the end. Still, it is noteworthy that the Universal Declaration guarantees economic, social and cultural rights but does not contain the concept of progressive realisation. Therefore, it represents a period in history when the guarantee of economic, social and cultural rights was not linked to the concept of progressive realisation.
Adopted on 18 October 1961, the European Social Charter comes next in the chronology of events relevant to economic, social and cultural rights.35 While this development covers a smaller geographical area, being limited to the region indicated by its name, it represents an important milestone in the history of economic, social and cultural rights in terms of its legal nature. It is a binding treaty. However, the European Charter guarantees social rights only, unlike the Universal Declaration. A separate treaty, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or European Convention), guarantees civil and political rights. The European Charter does not contain an express provision on the concept of progressive realisation, and the revision in 199636 did not introduce an express provision either.
Khaliq and Churchill argue that ‘the rights found in the European Charter are in general not progressive in nature, i.e. they are not to be implemented gradually as a state party’s resources and level of development permit, but are of immediate effect’.37 Lougarre and Cullen assert an opposite view: Lougarre reads the preamble to the European Charter as implicitly recognising ‘the principle of progressive realisation’,38 while Cullen argues that the European Committee addresses ‘the issue of resources and the progressive realisation of economic and social rights’.39 Cullen bases her argument on the decision in Autism Europe v France, in which the European Committee required states ‘to achieve the objectives ofthe Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources’.40 She cites Marangopoulos Foundation for Human Rights (MFHR) v Greece, which restates the holding in Autism Europe v France.41 In Centre on Housing Rights and Evictions (COHRE) v Italy, the European Committee held that the ‘realisation of the fundamental social rights recognised by the Revised Charter is guided by the principle of progressiveness’.42
Like the European Charter, the ICESCR guarantees only one category of rights. Its adoption in 1966 is a crucial turning point in the relationship between the concept of progressive realisation and economic, social and cultural rights because of how it made the obligation of progressive realisation the defining characteristic of each right. The ICESCR contains the principle of progressive realisation
34 General Assembly Resolution 421 E (VI) of 4 December 1950, Draft International Covenant on Humans Rights and Measures of Implementation: Future Work of the Commission on Human Rights.
35 European Social Charter (adopted 18 October 1961, entered into force 26 February 1965), European Treaty Series No 35.
36 European Social Charter (Revised), adopted 3 May 1996, entered into force 1 July 1999, European Treaty Series No 163.
37 Urfan Khaliq and Robin Churchill ‘The European Committee of Social Rights: Putting Flesh on the Bare Bones of the European Social Charter’ in Malcolm Langford (ed) Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (CUP 2008) 430.
38 Claire Lougarre ‘What Does the Right to Health Mean? The Interpretation of Article 11 of the European Social Charter by the European Committee of Social Rights’ (2015) 33/3 Netherlands Quarterly of Human Rights 326–354, 343.
39 Holly Cullen ‘The Collective Complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights (2009) 9/1 Human Rights Law Review 61—93, 91.
40 Autism Europe v France, Complaint No. 13/2002, Decision on merits adopted on 4 November 2003, para 53.
41 Marangopoulos Foundation for Human Rights (MFHR) v Greece, Complaint No. 30/2005, Decisions on the merits 6 December 2006, para 204.
42 Centre on Housing Rights and Evictions (COHRE) v Italy, Complaint No. 58/2009, Decision on merits adopted on 25 June 2010, para 25.
in Article 2(1), a general provision applicable to every right recognised therein.43 In contrast, a similar provision under the ICCPR does not make any connection between progressive realisation and civil and political rights.44
The evolution of the ICESCR since its adoption is also relevant for the history of progressive realisation. Two developments in particular are notable. One is the establishment of the CESCR in 1985,45 which has since then been interpreting the principle of progressive realisation in its general comments and other instruments. In 1990, in particular, it explained the principle in its general comment on state obligations.46 The other development is the adoption and entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).47 The protocol is weak in several ways;48 however, it does decouple the concept of progressive realisation from that of justiciability at the global level. The principle of progressive realisation ‘goes to the heart of the “justiciability” debate,’49 and some have even understood the principle to mean non-justiciability.50 The Optional Protocol disentangles these concepts. It leaves intact the content of the progressive realisation obligation under Article 2(1), but empowers the CESCR to examine complaints alleging violations of rights under the ICESCR, including a failure to ensure their progressive realisation.51 The protocol has changed the nature of ICESCR rights by creating international justiciability.
The next development took place at a regional level in the Americas in 1969 when the Organisation of American States (OAS) adopted the American Convention in San José. The Convention does not guarantee many economic, social and cultural rights itself, but it requires the progressive realisation of the rights implicitly recognised in the Charter of the OAS.52 An additional protocol 1988 (Protocol of San Salvador) guarantees economic, social and cultural rights and restates the progressive realisation obligation already incorporated in the American Convention.53
In 1981, the Organisation of African Unity (OAU), now the African Union (AU), adopted the African Charter, which guarantees economic, social and cultural rights.54 The Charter draws on the ICESCR and the American Convention, but departs from these treaties with regard to the principle of progressive realisation because it does not contain the concept. Protocols to the African Charter have expanded substantive rights relating to specific groups, particularly women, older persons and
43 Art 2(1) provides that: ‘Each state Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’.
44 ICCPR, art 2.
45 Economic and Social Council resolution 1985/17 of 28 May 1985, para b.
46 CESCR, General Comment No. 3.
47 Adopted 10 December 2008, entry into force 5 May 2013; General Assembly Resolution A/RES/63/117, Doc. A/63/435.
48 See Arne Vandenbogaerde & Wouter Vandenhole, ‘The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of its Effectiveness in Light of the Drafting Process’ (2010) 10/2 Human Rights Law Review 207 – 237, 232 – 236. They identify seven factors that undermine the potential effectiveness of the protocol.
49 Dennis & Stewart (n 18) 496.
50 Vincent O Orlu Nmehielle, The African human rights system: its laws, practice, and institutions (Martinus Nijhoff Publishers 2001) 124.
51 OP-ICESCR, art 1(1).
52 American Convention, art 26.
53 Protocol of San Salvador, art 1.
54 African Charter, arts 14 – 17.
persons with disabilities.55 Although the protocols contain provisions relating to general state obligations, they do not contain the concept of progressive realisation.56
In 1989, the UN General Assembly adopted the Convention on the Rights of the Child (CRC).57 The CRC guarantees economic, social and cultural rights. In terms of state obligations, the CRC requires states to take measures ‘to the maximum extent of their available resources’ only in relation to economic, social and cultural rights, distinguishing these rights from civil and political rights.58 However, unlike the ICESCR, it does not use the qualification of ‘progressive realisation’. As Eide and Rosas argue, under the CRC, ‘the obligations arise immediately’ only qualified by the requirement to use maximum resources.59 However, the Committee on the Rights of the Child aligned the CRC with the ICESCR in 2003.60 The Committee stated that the requirement of taking measures to the maximum of states’ available resources ‘introduces the concept of “progressive realization”’ of economic, social and cultural rights into the CRC.61
In 1990, the OAU adopted the African Charter on the Rights and Welfare of the Child (African Children’s Charter), guaranteeing economic, social and cultural rights of the child.62 The African Children’s Charter reflects the CRC with a few exceptions and modifications that make it more relevant to African realities. Unlike the CRC, the African Children’s Charter does not distinguish state obligations that apply to economic, social and cultural rights from those applicable to civil and political rights. In a language reminiscent of the African Charter, it requires states to take necessary steps to ‘adopt such legislative or other measures as may be necessary to give effect’ to the rights it guarantees.63 It does not require their progressive realisation in its general obligation provision.64 Adopted in 2004,65 the Arab Charter on Human Rights recognises economic, social and cultural rights as well as civil and political rights.66 This treaty provides for the same general obligations with regard to all the rights it guarantees,67 yet does not incorporate the principle of progressive realisation of economic, social and cultural rights.
55 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, adopted 29 January 2018 by the 30th Ordinary Session of the Assembly held in Addis Ababa; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, adopted 31 January 2016 by the 26th Ordinary Session of the Assembly held in Addis Ababa; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted 11 July 2003 by the 2nd Ordinary Session of the Assembly held in Maputo, entered into force 25 November 2005 (Maputo Protocol).
56Protocol on the Rights of Persons with disabilities, art 4; Protocol on the Rights of Older Persons, art 2, Maputo Protocol, art 2.
57 Convention on the Rights of the Child, adopted 20 November 1989, entry into force 2 September 1990, GA res 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, UN Doc A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989).
58 CRC, art 4.
59 Asbjørn Eide & Allan Rosas ‘Economic, Social and Cultural Rights: A Universal Challenge’ In Asbjørn Eide, Catarina Krause
& Allan Rosas (eds), Economic, Social And Cultural Rights: A Textbook (Martinus Nijhoff Publishers 2001) 22.
60 Committee on the Rights of the Child, General comment No. 5: General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), para 7.
61 Ibid.
62 African Charter on the Rights and Welfare of the Child, adopted in Addis Ababa, Ethiopia on 11 July 1990 and entered into force on 29 November 1999, OAU Doc CAB/LEG/24.9/49 (1990).
63 African Children’s Charter, art 1(1).
64 African Children’s Charter, art 1(1).
65 Adopted by League of Arab states, 22 May 2004, entered into force 15 March 2008.
66 Mohammed Amin AI-Midani & Mathilde Cabanettes (Trs), Arab Charter on Human Rights (2006) 24 Boston University International Law Journal 147 – 164, arts 34 – 42.
67 Arab Charter, arts 3 & 44.
Adopted in 2006, the Convention on the Rights of Persons with Disabilities (CRPD) represents the latest development in the area of economic, social and cultural rights.68 The CRPD distinguishes state obligations corresponding to economic, social and cultural rights from those corresponding to civil and political rights.69 Like the ICESCR, the CRPD requires the progressive realisation of economic, social and cultural rights.70 This requirement should not affect obligations ‘that are immediately applicable according to international law’.71 Thus, unlike the ICESCR, the CRPD makes the exception that economic, social and cultural rights are subject to immediate obligations under Article 4(2).
In sum, a perusal of human rights treaties that guarantee economic, social and cultural rights in chronological order reveals that the relationship between the concept of progressive realisation and economic, social and cultural rights began in 1966 with the adoption of the ICESCR. This relationship was built on top of the existing treaty-making model adopted by the Council of Europe. The European treaty-making model separates economic, social and cultural rights from civil and political rights. The UN adopted the European model, which evolved in later treaties, particularly in the CRC, CRPD, and the OP-ICESCR. The CRC and CRPD guarantee economic, social and cultural rights as well as civil and political rights in the same treaty. Moreover, the OP-ICESCR makes economic, social and cultural rights under the ICESCR justiciable and thereby clarifies the confusion between progressive realisation and justiciability. The CRPD recognises that the obligation of progressive realisation should not affect immediate obligations. The AU and its predecessor, the OAU, adopted a different model of treaty making. As the African Charter (along with its protocols) and the African Child’s Charter show, the African treaty-making model guarantees human rights in the same treaty. The Arab Charter indicates that the Arab League also adopted this model. Treaties that adopt the African model do not contain the concept of progressive realisation. The human rights treaties that contain the concept of progressive realisation do not explain the meaning of the concept, which leads to a need for an examination of the concept’s interpretation. The following discussion searches for the meaning of the concept in the practice of the treaty bodies.