The principle of progressive realisation can be understood as a tool necessary for ensuring maximum human rights performance. In this sense, the principle can be used to hold states internationally accountable for a failure to make progress in the enjoyment of human rights – including economic, social and cultural rights. The principle coexists with immediate state obligations. This is implicit in the raison d'être of international human rights treaties such as the African Charter and their monitoring organs such as the African Commission and the African Court. Therefore, the African Charter cannot be interpreted to exclude mechanisms of supervising progress made in the enjoyment of human rights. Progress a priori does not happen overnight and varies from one state to another depending on their resources, whether they come in financial, natural, human, or technological form, whether they are private or public, or from within state parties or from outside sources.
However, the principle of progressive realisation has also been invoked as evidence that economic, social and cultural rights are not legal or human rights. It is also understood as an additional limitation applicable to these rights only. The African Charter does not incorporate the principle in this sense and should not be interpreted to do so. The absence of the principle from the Charter does not exclude its potential benefits from the Charter. Nevertheless, interpreting the Charter to include the principle of progressive realisation brings into the Charter meanings that have serious repercussions for economic, social and cultural rights. This understanding of the principle undermines the recognition of these rights and subjects them to additional restrictions.
Irrespective of what the principle of progressive realisation might entail, the form in which the principle has been introduced has negative consequences for the Commission itself. In introducing the principle, the Commission has not taken into consideration the drafting history of the Charter.
Neither has it justified the introduction of the principle on the ground of changes in the circumstances in which the Charter was drafted and adopted. It has also failed to adapt lessons from other human rights organs to the African Charter and its contexts, and has not examined the
413 Magdalena Sepulveda Carmona Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Intersentia 2003) 91; Laurence R. Helfer and Anne-Marie Slaughter Toward a Theory of Effective Supranational Adjudication (1997) 107 The Yale Law Journal 273, 284; Jean d'Aspremont and Eric De Brabandere ‘The complementary faces of legitimacy in international law: the legitimacy of origin and the legitimacy of exercise’ (2011) 34 Fordham International Law Journal 190, 215.
consequence of introducing the concept on its earlier jurisprudence. As a result, the Commission has been inconsistent and unpredictable, exposing itself to the accusation that it has shown a questionable professional expertise. These factors may undermine its legitimacy.
CHAPTER THREE
LIMITATION AND PROPORTIONALITY
3.1 Introduction
Progressive realisation, as indicated in Chapter 2, is a form of limitation. Young identifies progressive realisation among six modes of limiting economic, social and cultural rights. She argues that
‘expressly protected economic and social rights are commonly limited by the obligation of
"progressive realization".’1 Alston and Quinn also consider progressive realisation a different kind of limitation.2 Understood in this sense, progressive realisation is an additional limitation to economic, social and cultural rights. This is because progressive realisation is associated only with economic, social and cultural rights, not with civil and political rights. If progressive realisation is an additional limitation, then, what is a limitation on economic, social and cultural rights?
Limitations (also called restrictions) are justified infringements permitted under human rights instruments. Limitations on human rights do not constitute violations if they respect certain conditions, which are specified in the treaty and/or developed by human rights monitoring bodies. In this kind of assessment, proportionality analysis generally plays an important role. The second section of this chapter begins with the discussion of the concepts of limitations and proportionality in theories. It examines the application of proportionality to negative as well as to positive obligations.
The third section examines the normative bases of limitations in the European Social Charter,3 the International Covenant on Economic, Social and Cultural Rights (ICESCR)4 and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).5 The third section also examines the application of limitations by the European Committee of Social Rights (European Committee), the Committee on Economic, Social and Cultural Rights (CESCR) and the Inter-American Commission on Human Rights (Inter-American Commission) and the Inter-American Court of Human Rights (Inter-American Court). The purpose of the second and third sections is to set a theoretical as well as a comparative framework for the discussion of the remaining sections on the African Charter on Human and Peoples’ Rights (African Charter or Charter).6
The African Charter provides for limitation clauses with regard to provisions that guarantee civil and political rights. The Charter, however, does not provide for a general limitation clause unlike the European Social Charter, the ICESCR, and the Protocol of San Salvador. In contrast, provisions of the Charter on economic, social and cultural rights are not circumscribed by limitation clauses. Yet that
1 Katharine G Young, Constituting Economic and Social Rights (OUP 2012) 101.
2Philip Alston & Gerard Quinn, ‘The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) Human Rights Quarterly 156-229, 194.
3 European Social Charter (Revised), adopted 3 May 1996, entered into force 1 July 1999, European Treaty Series No 163, Art G; European Social Charter, adopted 18 October 1961, entered into force 26 February 1965, European Treaty Series No 35, Art 31.
4 Adopted 16 December 1966, entry into force 3 January 1976, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); 993 UNTS 3, Art 4.
5 Adopted 17 November 1988, entry into force 16 November 1999, OAS Treaty Series No. 69; 28 ILM 156 (1989), Art 5.
6 Adopted 27 June 1981 & came into force 21 October 1986, OAU Doc. CAB/LEG/67/3 rev. 5; 1520 UNTS 217; 21 ILM 58 (1982).
does not mean that there are no justifiable restrictions of these rights, nor does it imply that there are no conditions determining the justifiability of restrictions. The fourth section of this chapter examines limitations under the African Charter with a particular reference to Article 27(2) of the Charter, which requires individuals to exercise their rights with due regard to rights of others, collective security, morals and common interest.
The African Commission on Human and Peoples Rights (African Commission or Commission) and the African Court on Human and Peoples’ Rights (African Court or Court) have assigned the role of a general limitation clause to Article 27(2) of the African Charter. This provision has evolved into a full-fledged limitation clause. They also employ the principle of proportionality to evaluate restrictions to the exercise of the rights guaranteed under the Charter. The fifth section of this chapter examines the practice of the African Commission and the African Court in light of the theoretical and comparative framework in the second and third sections. This section deals with components of the principle of proportionality in general, which has evolved mainly in relation to negative obligations arising from civil and political rights. The sixth section deals with the application of this principle to economic, social and cultural rights. Finally, the chapter provides concluding remarks in the last section.