Content of minimum core obligation

By ‘content’, I mean the items or the elements identified as minimum core obligations. Since the main source of the Nairobi Principles is the general comments of the CESCR, I will discuss the content of ‘minimum core obligations’ identified by the African Commission with a reference to the ‘core obligations’ identified by the CESCR. They are summarised in Table 2. As mentioned above, the African Commission and the CESCR have the same views on some elements, but differ on others. I begin with points of convergence.

4.6.3.1 Converging practice of the African Commission and the CESCR

For some rights, particularly the rights to health, education, food, social security, and to water and sanitation, the African Commission considers minimum core obligations the same elements already identified by the CESCR as core obligations. Regarding the right to health, the Commission considers that states have minimum core obligations under the African Charter to provide essential drugs and to provide education and information about health problems. It emphasises that states must ensure

‘the provision of essential drugs to all those who need them, as periodically defined under the WHO Action Programme on Essential Drugs, and particularly anti-retroviral drugs’.²⁵² The Commission specifically requires the provision of anti-retroviral drugs although the CESCR does not mention any particular drugs.

247 Ayele Gelan, ‘Commentary: What is happening to EPRDF’s developmental state?’ (29 October 2018) Addis Standard, at http://addisstandard.com/commentary-what-is-happening-to-eprdfs-developmental-state/ accessed 4 December 2018.

248 Nairobi Principles, paras 59 (a-c) (right to work), 67(a-e)(right to health), 71(a & b) (right to education), 79(a-c) (right to housing), 82(a) (right to social security), 86(a-c) (right to food), 92(a-c) (right to water and sanitation) & 95(a-c) (right to protection of the family).

249 Nairobi Principles, para 59 (a).

250 Nairobi Principles, para 59 (b).

251 Nairobi Principles, para 59 (c).

252 Nairobi Principles, para 67(b).

The African Charter guarantees an unqualified right to education.²⁵³ The Charter does not expressly require states to provide free and compulsory primary education. In contrast, the ICESCR expressly guarantees the right to free and compulsory education.²⁵⁴ On top of this express requirement, the CESCR specifies that the provision of primary education is among the core obligations.²⁵⁵ In line with this practice, the African Commission considers that states have a minimum core obligation to provide primary education for all. It stresses that states must ‘ensure that all children enjoy their right to free and compulsory primary education’.²⁵⁶

The African Charter does not expressly guarantee the right to food. In line with its holding in the Ogoniland case, the Commission derives the right to food from expressly guaranteed Charter rights.²⁵⁷ The Commission confirms that ‘the right to food is inherent in the Charter’s protection of the rights to life, health and the right to economic, social and cultural development’.²⁵⁸ In relation to the implied right to food, the Commission considers that states have a minimum core obligation to ensure ‘the right of everyone to be free from hunger and to mitigate and alleviate hunger’.²⁵⁹ This is in line with the practice of the CESCR.²⁶⁰

Unlike the ICESCR, the African Charter does not expressly guarantee the right to social security. The African Commission acknowledges the textual silence of the Charter. Nevertheless, it derives this right ‘from a joint reading of a number of rights guaranteed under the Charter including (but not limited to) the rights to life, dignity, liberty, work, health, food, protection of the family and the right to the protection of the aged and the disabled’.²⁶¹ After deriving the right to social security from other provisions of the Charter, the Commission explains that states have a minimum core obligation to ensure ‘access to a social security scheme that provides a minimum essential level of benefits’.²⁶² As already noted, the Commission has taken this formulation verbatim from the CESCR.²⁶³

The right to water and sanitation is another implied right. The African Charter does not expressly guarantee this right. The African Commission derives the right to water and sanitation from ‘the rights to life, dignity, work, food, health, economic, social and cultural development and to a satisfactory environment’.²⁶⁴ In line with the practice of the CESCR, the Commission explains that states have a minimum core obligation to ensure ‘access to the minimum essential amount of water that is sufficient and safe for personal and domestic use, including preventing disease, together with access to adequate sanitation’.²⁶⁵ States also have a minimum core obligation to ensure ‘physical access to water facilities or services’.²⁶⁶ Unlike the Inter-American Court, the African Commission does not define the ‘minimum essential amount of water’ in terms of litres or other units of measure.²⁶⁷

253 African Charter, art 17(1) provides that: ‘Every individual shall have the right to education’.

254 cf ICESCR, art 13(2)(a) provides that ‘Primary education shall be compulsory and available free to all’.

255 General Comment 13, para 57.

256 Nairobi Principles, para 71 (a).

257 Ogoniland case, paras 64-66.

258 Nairobi Principles, para 83.

259 Nairobi Principles, para 86(a).

260 cf General Comment 12, para 6.

261 Nairobi Principles, para 81.

262 Nairobi Principles, para 82(a).

263 cf General Comment 19, para 59(a).

264 Nairobi Principles, para 87.

265 Nairobi Principles, para 92(a). cf General Comment 15, para 37(a).

266 Nairobi Principles, para 92(b). cf General Comment 15, para 37(c).

267 cf Xákmok Kásek Indigenous Community v Paraguay (Inter-American Court, 24 August 2010) para 195.

4.6.3.2 Diverging practice of the African Commission and the CESCR

The African Commission differs from the CESCR on many elements. As indicated in Table 2, one identifies more points of divergence than points of convergence. For some rights, the Commission omits some elements from core obligations identified by the CESCR. For other rights, the Commission adds elements, which are not considered core obligation according to the practice of the CESCR. The major area of omission relates to cross-cutting obligations. These are obligations that are relevant to all rights. As discussed above (sections 4.3.2.1 to 4.3.2.4), the CESCR considers that some core obligations (ie, the obligations to adopt a national strategy, to prohibit discrimination and inequitable distribution, to provide remedies, and to monitor the implementation of rights) are applicable to most rights. For the Commission, however, these are not minimum core obligations.²⁶⁸ The Commission still emphasises the importance of these cross-cutting obligations: it requires states to devise and periodically review national plans and policies for each protected right ‘on the basis of a participatory and transparent process’;²⁶⁹ it relates the obligation of adopting national plans and policies to the obligation of monitoring the implementation of rights, explaining that the ‘plans and policies should include information on indicators, time-frames and benchmarks, by which progress can be closely monitored’;²⁷⁰ it underlines that states have the obligation to provide effective domestic remedies which include establishing legal aid schemes for vulnerable and marginalised groups;²⁷¹ and it stresses that ‘any discrimination against individuals in their access to or enjoyment of economic, social and cultural rights on any of the prohibited grounds is a violation of the African Charter’.²⁷²

Another omission relates to elements of core obligations corresponding to each right. The African Commission drops some elements from the CESCR’s list of core obligations. For example, The CESCR considers that the obligations to ensure access to the minimum essential food and ‘to basic shelter, housing and sanitation, and an adequate supply of safe and potable water’ are core obligations with respect to the right to health.²⁷³ These are also part of the core content of the same right in the Pretoria Declaration.²⁷⁴ In the Nairobi Principles, however, these obligations are not among the minimum core obligations. By omitting these core obligations, the Commission at times gives the impression that ‘minimum core obligation’ and ‘core obligation’ do not mean the same thing. The obligations corresponding to the right to social security may illustrate this point.

The CESCR identifies six core obligations with respect to the right to social security.²⁷⁵ The African Commission reproduces only one of these six obligations in the Nairobi Principles. This is shortened in Table 2 as the obligation to provide a ‘minimum essential level of benefits’. The Commission reproduces this obligation verbatim from the general comment of the CESCR.²⁷⁶ It emphasises that states have a minimum core obligation to ensure ‘access to a social security scheme that provides a

268 An exception is non-discrimination in relation to the right to health. cf Nairobi Principles, para 67(a) & General Comment 14, para 43(a). The Commission makes a verbatim reproduction of the CESCR’s formulation.

269 Nairobi Principles, para 26.

270 Nairobi Principles, para 27.

271 Nairobi Principles, paras 21-23.

272 Nairobi Principles, para 19.

273 General Comment 14, para 43.

274 Pretoria Declaration, para 7.

275 General Comment 19, para 59.

276 General Comment 19, para 59(a) provides that a state party has a core obligation to ‘ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education’.

minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education’.²⁷⁷ It omits the remaining five obligations. In addition, both the Commission and the CESCR recognise that there are obligations that are not core. Like the CESCR, for example, the African Commission emphasises that states have the obligation to take ‘effective measures to fully realise the right of all persons to social security’.²⁷⁸

Compared to the practice of the CESCR as indicated in Table 2, one finds that three layers of state obligations would apparently emerge, although the Commission does not expressly use these layers.

It appears that the inner layer is minimum core obligations (the obligation to provide a minimum essential level of benefits). The middle layer is core obligations (five core obligations identified by the CESCR but omitted by the Commission). The remaining obligations may form the outer layer (obligations that do not fall under (minimum) core obligations). In other words, the minimum core obligations identified in the Nairobi Principles are part of, but fewer than, the CESCR’s core obligations. Terminologically, this reading seems to hold. Since the term ‘minimum’ qualifies the term ‘core’, a minimum core appears to be within the core or at least part of the latter. Moreover, one may wonder whether the Commission considered the African regional context. From almost all rights, the Commission omits some elements of core obligations specified by the CESCR. It is not clear whether the Commission has made the omissions because states in Africa are developing countries.

Regarding the rights to work and culture, the African Commission drops all core obligations identified by the CESCR. It specifies new minimum core obligations in relation to the right to work as indicated in Table 2. It identifies none for the right to culture. Similarly, the Commission does not specify minimum core obligations in relation to the right to property. The CESCR does not identify core obligations for the right to property either, but its reason is understandable because the ICESCR does not guarantee the right to property. That is, the Nairobi Principles do not identify corresponding minimum core obligations for all economic, social and cultural rights expressly guaranteed in the African Charter. In contrast, the Pretoria Declaration includes some core content of these rights. An example is peaceful ‘enjoyment of property and protection from arbitrary eviction’.²⁷⁹ Two general comments of the CESCR identify core obligations corresponding to cultural rights under Article 15 of the ICESCR.²⁸⁰ The Pretoria Declaration also highlights the core content of the right to culture under Article 17 of the African Charter. Despite these precedents, the Nairobi Principles do not identify minimum core obligations corresponding to property and cultural rights. The omission raises the issue relating to the scope of application of minimum core obligations. One may argue that the concept is not applicable to all rights as adopted in the Nairobi Principles. Only some rights have corresponding minimum core obligations while others do not.

The African Commission also deviates from the practice of the CESCR by adding new elements that are not identified as core obligations by the CESCR. As indicated in Table 2, for almost all rights, the Commission specifies minimum core obligations that are not identified by the CESCR. With respect to the right to health, for example, the minimum core obligations to ensure ‘universal immunisation against major infectious diseases’ and to ‘control epidemic and endemic diseases’ are peculiar to the

277 Nairobi Principles, para 82(a).

278 Nairobi Principles, para 82(b). cf General Comment 19, para 4.

279 Pretoria Declaration, para 5.

280 General Comment 21, para 55; General Comment 17, para 39.

Nairobi Principles.²⁸¹ The CESCR recognises that states have the obligation to ‘provide immunization against the major infectious diseases occurring in the community’.²⁸² It also recognises the obligation to ‘take measures to prevent, treat and control epidemic and endemic diseases’.²⁸³ However, the CESCR does not consider them core obligations.

The Commission does not explain why its new minimum core obligations are essential. From the identified new elements, the essential nature of the new elements is questionable. Some examples can be illustrative. Article 15 of the African Charter guarantees the right to work. In relation to this right, the African Commission explains that states have minimum core obligations to prohibit slavery and forced labour and to ensure the right to freedom of association.²⁸⁴ These obligations clearly correspond to other rights guaranteed in the Charter, namely, the prohibition of slavery (Article 5) and the right to freedom of association (Article 10).

Article 5 of the Charter provides that ‘All forms of exploitation and degradation of man particularly slavery [...] shall be prohibited’. The Commission has found a violation of this provision in Malawi African Association and Others v Mauritania.²⁸⁵ It has held that ‘there was a violation of Article 5 of the Charter due to practices analogous to slavery and [...] that unremunerated work is tantamount to a violation of the right to respect for the dignity inherent in the human being’.²⁸⁶ Article 5 of the Charter does not expressly deal with forced labour. It can still be understood as prohibiting forced labour, particularly in light of the ICCPR, which provides that ‘No one shall be required to perform forced or compulsory labour’.²⁸⁷

Article 10 of the Charter guarantees the right to freedom of association. It provides that ‘Every individual shall have the right to free association’. Article 10 is brief compared to Article 22 of the ICCPR. The latter expressly states that the right to freedom of association includes ‘the right to form and join trade unions’. Article 10 of the African Charter does not contain such an explicit reference. It does not contain a provision similar to Article 8 of the ICESCR, which requires states to ensure the

‘right of everyone to form trade unions and join the trade union of his choice’. It is submitted that this provision includes the protection of trade union rights. This is because the right to ‘form and join trade unions is merely a special case of freedom of association’.²⁸⁸

A violation of the right to dignity or a failure to prohibit slavery (Article 5) may lead to a violation of the right to work (Article 15) since human rights are interdependent. Slavery by definition nullifies the right to work because slaves have no choice to work or not to work and derive income from their labour. Similarly, a violation of the right to freedom of association, especially trade union rights, (Article 10) affects the enjoyment of the right to work (Article 15). However, such correlation does not make one right a core part of the other right. Therefore, the Commission merely duplicates rights recognised in the Charter when it identifies the obligation to prohibit slavery and forced labour and the obligation to ensure the right to freedom of association as minimum core obligations relating to the right to work.

281 Nairobi Principles, para 67(b)&(c).

282 General Comment 14, para 44(b).

283 General Comment 14, para 44(c).

284 Nairobi Principles, para 59(a).

285 (2000) AHRLR 149 (ACHPR 2000).

286 Malawi African Association and Others v Mauritania, para 135.

287 ICCPR, art 8(3).

288 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd edn NP Engel Publisher 2005) 500.

Another example is the right to food. In the Nairobi Principles, the Commission explains that states have a minimum core obligation to refrain from and ‘protect against destruction and/or contamination of food sources’.²⁸⁹ This obligation is traceable in the Ogoniland case, where the Commission has emphasised that the respondent State ‘should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources’.²⁹⁰ In the Ogoniland case, the respondent State not only failed to prevent but also participated in the destruction of farmlands, crops and animals.²⁹¹ These are not only food sources. They are also subject of ownership although the Commission did not find a separate violation of Article 14 (right to property) in the Ogoniland case.

In the Nairobi Principles, the Commission explains that each state has an obligation to ensure peaceful enjoyment of property by protecting ‘the enjoyment in all its forms, from interference by third parties as well as its own agents’.²⁹² If one accepts that things such as farmlands, crops and farm animals are property, the destruction of such things, whether by state agents or third parties, is an interference with the enjoyment of the right to property. Therefore, it would be a duplication of the right to property when the Commission specifies the obligation to refrain from and protect against destruction of food sources as a minimum core obligation of states in relation to the right to food.