Economic, social and cultural rights are a category of human rights. In international human rights law, rights such as the rights to education, food, health, housing, social security, water and sanitation, work (including trade union rights) and cultural rights fall under this category. The right to property also falls under this category, although this right is guaranteed in predominantly civil and political rights treaties.7 Economic, social and cultural rights are guaranteed in several international treaties.
Chief among them are the European Social Charter (European Charter),8 the International Covenant on Economic Social and Cultural Rights (ICESCR),9 and the American Convention on Human Rights (American Convention)10 along with the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).11
Economic, social and cultural rights treaties have common features. Each treaty has its own distinctive features as well. Still, by assuming international human rights as a single project, it is possible to paint with a broad brush the treaty-making developments relating to economic, social and cultural rights since 1948, the year when the American Declaration of the Rights and Duties of Man (American Declaration)12 and the Universal Declaration of Human Rights (Universal Declaration)13 were adopted. Both declarations recognise economic, social and cultural rights. The declarations do not distinguish these rights from other categories of rights, for example, from civil and political rights. However, distinctions between these categories of rights began to emerge at the stage of developing treaties.
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).
7 See Asbjørn Eide, ‘Economic, Social and Cultural Rights as Human Rights’ In Asbjørn Eide, Catarina Krause & Allan Rosas (eds), Economic, Social And Cultural Rights: A Textbook (Martinus Nijhoff Publishers 2001) 18.
8 Adopted 18 October 1961, entered into force 26 February 1965, European Treaty Series No 35; European Social Charter (Revised), adopted 3 May 1996, entered into force 1 July 1999, European Treaty Series No 163.
9 Adopted 16 December 1966 entered into force 3 January 1976; 993 UNTS 3.
10 Adopted 21 November 1969, entry into force 18 July 1978, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969).
11 Adopted 17 November 1988, entry into force 16 November 1999, OAS Treaty Series No. 69; 28 ILM 156 (1989).
12 Adopted by the Ninth International Conference of American States, Bogotá, Colombia, 2 May 1948.
13 Adopted by the United Nations General Assembly Resolution 217 A (III) of 10 December 1948.
In 1950, the Council of Europe adopted the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).14 The Convention was ‘the first comprehensive treaty for the protection of human rights to emerge’.15 The Universal Declaration significantly influenced its drafting.16 However, unlike the Universal Declaration, the European Convention on Human Rights did not recognise economic, social and cultural rights—at least when it was adopted.17 It originally established a commission and a court to supervise the civil and political rights that it guarantees.18 Later, the Commission was phased out and was replaced by a permanent court that functions on a full-time basis.19 It took the Council of Europe around a decade to adopt the European Social Charter in 1961, which was revised in 1996. The European Committee of Social Rights (European Committee) monitors the implementation of the European Social Charter.20 The European Committee does not have the power to receive and determine individual complaints. It examines state reports and collective complaints.21
From the European model, as I prefer to call it, two features are notable. First, this model of treaty-making distinguishes civil and political rights from economic, social and cultural rights. The model provides a separate treaty for each category of rights. One may argue that this distinction is based on an unstated assumption that the nature of state obligations relating to each category of rights is different. Second, the model establishes different monitoring mechanisms for each category of rights. The supervision mechanism for civil and political rights is strong because it comprises a full-time court with the power to receive individual complaints and render binding judgments in cases of violations. On the other hand, the supervision mechanism for social rights is weak because it is a part-time quasi-judicial organ, which lacks the power to receive individual complaints and make binding decisions. Judged by the strength of supervision mechanisms, the European model places social rights in a lower class. The European model influenced later developments. Apart from some minor changes, other human rights systems replicated the European model except the African human rights system.
In 1966, the Universal Declaration bifurcated into the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR following the European model. The Human Rights Committee monitors the implementation of the ICCPR.22 It has the power to receive and determine individual complaints alleging violations of the ICCPR.23 However, the ICCPR does not establish a court. In contrast, the ICESCR does not establish a treaty body, although its supervision mechanism evolved over time. In 1985, the Committee on Economic, Social and Cultural Rights (CESCR) was established.24 The CESCR
14 Adopted 4 November 1950, ETS 5.
15 William A Schabas, The European Convention on Human Rights: A Commentary (OUP 2016) 1.
16 Schabas (n 15) 1.
17 Protocol No 1 adds the right to property and the right to education to the Convention.
18 Schabas (n 15) 7.
19 Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, European Treaty Series No 155, adopted 11 May 1994, entered into force 1 November 1998.
20 European Social Charter, Arts 24 & 25; European Social Charter (Revised), Art C.
21 European Social Charter, Art 24; European Social Charter (Revised), Art C; Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, adopted 9 November 1995 and entered into force 1 July 1998, European Treaty Series - No. 158
22 ICCPR, Art 28;
23 Optional Protocol to the International Covenant on Civil and Political Rights, General Assembly resolution 2200A (XXI), adopted 16 December 1966 and entered into force 23 March 1976, Art 1.
24 Economic and Social Council resolution 1985/17.
gradually acquired the power to receive and determine individual complaints.25 In a legal sense, the ICESCR’s supervision mechanism had fully evolved to match that of the ICCPR by 2013, when the Optional Protocol to the ICESCR entered into force. Of course, the bifurcation of the Universal Declaration did not occur in a vacuum. The two Covenants were developed during the Cold War.
During that period, the western capitalist states emphasised civil and political rights while socialist states prioritised economic, social and cultural rights.26
In 1969, the American Convention was adopted based on the European model. Like the European Convention on Human Rights, it mainly guarantees civil and political rights apart from few exceptions.27 It establishes the Inter-American Commission on Human Rights (Inter-American Commission) and the Inter-American Court of Human Rights (Inter-American Court).28 In 1988, around two decades later, a protocol to the American Convention (the Protocol of San Salvador) was adopted to guarantee economic, social and cultural rights. Even then, these rights were excluded from the jurisdiction of the Inter-American Court apart from few exceptions.29
In 1981, the Organisation of the African Unity (OAU) adopted the African Charter. By then, there were enough economic, social and cultural rights treaties at the global and regional levels to draw on. The European Social Charter, the ICESCR, the American Convention were already in force. Unlike these treaties, however, the African Charter does not replicate the European model. The African Charter adopts a different model of human rights treaty-making—an African model, as I prefer to call it. The Charter recognises all categories of rights: civil, political economic, social, cultural and collective rights. It does not make any distinction between these categories of rights in terms of the corresponding state obligations. It establishes the same mechanism for monitoring the implementation of all categories of rights. In this regard, the African Charter is the first international treaty to recognise supranational quasi-judicial enforcement of economic, social and cultural rights.
In short, the Charter achieved conventional unity of rights that had never been achieved in treaties adopted hitherto.
The African model is replicated in other treaties adopted within the framework of the OAU/AU. An example includes the African Charter on the Rights and Welfare of the Child (African Children’s Charter).30 Three protocols to the African Charter are another set of examples.31 The League of Arab States also adopted the African model as the Arab Charter on Human Rights indicates.32 Since the adoption of the African Charter, the United Nations inclined towards the African model. This is
25 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, General Assembly resolution A/RES/63/117, adopted 10 December 2008, entered into force 5 May 2013.
26 Kitty Arambulo Strengthening the supervision of the International Covenant on Economic, Social and Cultural Rights:
Theoretical and procedural aspects (1999) 17.
27 American Convention, Arts 17, 19 & 21. One may consider the right to property, protection of children and family among social rights. cf ICESCR, Art 10.
28 American Convention, Art 33.
29 Protocol of San Salvador, Art 19(6).
30 Adopted 11 July 1990, entered into force 29 November 1999, CAB/LEG/24.9/49 (1990).
31 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.
32 Adopted by League of Arab States, 22 May 2004, entered into force 15 March 2008.
evident from the hybrid model adopted by the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD).33