Meaning of minimum core obligation

The Commission defines the ‘minimum core obligation’ as ‘the obligation of the State to ensure that no significant number of individuals is deprived of the essential elements of a particular right’.²³⁶ This is similar with the CESCR’s definition adopted in its general comment on state obligations.²³⁷ Like the CESCR, the African Commission does not specify the exact number of persons considered to be

‘significant’, thus it is not easy to tell when a state fails. For example, of the estimated 108 million people in Ethiopia,²³⁸ close to eight million people require critical humanitarian care according to an assessment of the United Nations Office for the Coordination of Humanitarian Affairs.²³⁹ A similar estimate by the World Vision disclosed that around eight million people need food or cash assistance.²⁴⁰ Are eight million people (around 7% of the population) significant in number? The Commission is not clear on how many people it considers a ‘significant number of individuals’.

Irrespective of the lack of clarity, defining the minimum core obligation in terms of the number of deprived is problematic. As discussed above, it does not matter whether the Commission provides the exact figure or not. In principle, it should not require the suffering of millions to constitute a violation. The failure of a state to carry out its minimum core obligations even in respect to one single individual should be considered a violation.

235 The African Commission used the phrase ‘minimum core obligation’ in an even earlier instrument. It has called on states to fulfil the ‘access to medicines by adopting measures to promote, provide and facilitate access to needed medicines, including […] immediately meeting the minimum core obligations of ensuring availability and affordability to all of essential medicines’. Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141(XLIV)08, Abuja (Nigeria), 24 November 2008.

236 Nairobi Principles, para 17.

237 cf General Comment 3, para 10.

238 July 2018 estimate. See The World Factbook: Africa: Ethiopia, at https://www.cia.gov/library/publications/the-world-factbook/geos/print_et.html.

239 United Nations Office for the Coordination of Humanitarian Affairs, (11-25 November 2018) Issue 68 Humanitarian Bulletin: Ethiopia 1-4, 2.

240 World Vision, East Africa Hunger Crisis Situation Report: Ethiopia (28 February 2018) 1, at

https://reliefweb.int/sites/reliefweb.int/files/resources/Ethiopia_FebSitRep_final.pdf (accessed 3 December 2018).

Table 2: Summary of minimum core obligations in the Nairobi Principles: A comparison with the

▪ primary education for all; ▪ primary education for all

▪ Elimination/reduction of the costs of

▪ minimum essential level of benefits ▪ minimum essential level of benefits

▪ non-interference in existing social security schemes

▪ taking steps to implement social security schemes

15, 16 & 18] ▪ national strategy and plan of action

▪ mitigating and alleviating hunger ▪ mitigating and alleviating hunger

▪ preventing destruction of food

These terms are slightly different from the terms ‘minimum essential levels’ used by the CESCR.²⁴¹ It is submitted that the Commission’s definition has a wider scope. Like the CESCR’s definition,

‘essential elements’ include the provision of minimum levels of a right. That is, a state must provide, for example, the minimum amount of food an individual needs to survive. Like the CESCR, the Commission does not set the minimum requirements of a particular right. As discussed above, it may not be easy to determine a minimum requirement given the differences among states in terms of several factors such as climate, resources and cultural attitudes.

The Commission usually frames its findings in general terms. For example, in its concluding observation on Ethiopia adopted in 2015, the Commission expressed its concern about a section of the population who ‘lack access to basic amenities such as food, health care, education, housing and employment’.²⁴² The Commission reaches this conclusion without determining, for example, what constitutes ‘basic food’. Nor does it indicate the number of people deprived of ‘basic amenities’. In contrast, it must be noted, the Inter-American Court determines the minimum amount of water a person needs in a day as discussed above.²⁴³

Sometimes, the Commission hints at the minimum requirements. For example, in the same concluding observations on Ethiopia, it quantified the deprivation with regard to the right to work.

The Commission does not require that the minimum core obligations relating to the right to work include the obligation to ensure access to employment.²⁴⁴ Nevertheless, it indicated that Ethiopia’s performance was not adequate because of a ‘high rate of unemployment which in urban areas is officially 17.5 percent for 2011/2012’.²⁴⁵ The Commission does not set an acceptable rate of unemployment by reference to what economists call a natural rate of unemployment.²⁴⁶ This rate is

241 cf General Comment 3, para 10.

242 Concluding Observations and Recommendations on the 5th and 6th Periodic Report of the Federal Democratic Republic of Ethiopia, adopted at 18th Extra-Ordinary Session (29 July to 7 August 2015) para 34(ii).

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

244 cf General Comment 18, para 31(a).

245 Concluding observation on Ethiopia (2015), para 34(iii).

246 See Mark R Reiff, On Unemployment: A Micro-Theory of Economic Justice (Volume I, Palgrave Macmillan 2015) 29.

somewhere between three and five per cent.²⁴⁷ Indeed, the unemployment of 17.5% is very high if the Commission made two assumptions: that states have the obligation to ensure access to employment; and that they must bring the unemployment rate down to its natural rate. Even in the absence of such an assumption, the Commission implies that there is a violation of the right to work under the African Charter if a state experiences an unemployment rate of 17.5% or above.

The compondent of ‘essential elements’ in the Commission’s definition also includes items other than the provision of minimum levels. These items include minimum core obligations identified by the African Commission, which has identified minimum core obligations for almost all rights guaranteed explicitly or implicitly in the African Charter (See the summary in Table 2).²⁴⁸ Under the minimum core obligations corresponding to the right to work, for example, the Commission identifies three minimum core obligations: (a) prohibition of slavery and forced labour,²⁴⁹ (b) the right to freedom of association,²⁵⁰ and (c) the protection against dismissal from employment.²⁵¹ The Commission considers that these obligations represent ‘essential elements’ of the right to work.

However, the essential nature of some of the elements identified by the Commission is questionable (I will return to the discussion of this issue below). I begin discussing the identified elements, that is, the content of the minimum core obligations.