Minimum core obligations vis-à-vis levels of obligations

The African Commission has explained in the Ogoniland case that all rights under the African Charter generate obligations to respect, protect, promote and fulfil.³⁰⁶ This framework of analysis is in line with the practice of the CESCR, except for the obligation to promote. According to the CESCR, the obligations to promote, facilitate, and provide are part of the obligation to fulfil.³⁰⁷ In the Nairobi Principles, the African Commission does not identify minimum core obligations relating to all rights under the African Charter. It exclusively deals with economic, social and cultural rights guaranteed explicitly or implicitly under the African Charter. The minimum core obligations identified in relation to these rights can be examined from the analytical framework of the obligations to respect, protect, promote and fulfil.

The African Commission does not frame all minimum core obligations it identifies along these four levels of obligations. Yet one can find an item for each level. For example, with regard to the right to housing, the Commission follows its rulings in the Ogoniland case and explains that states have a minimum core obligation to ‘[r]efrain from and protect against forced evictions from home(s) and land, including through legislation’.³⁰⁸ It makes a similar statement in relation to the right to food, declaring that states have a minimum core obligation to ‘[r]efrain from and protect against destruction and/or contamination of food sources’.³⁰⁹ Thus, the obligation to refrain from forced eviction or destruction of food sources is an obligation to respect while the obligation to protect individuals against forced eviction or destruction of food sources is an obligation to protect.

An example of the obligation to promote is found under the right to health. The Commission explains that the minimum core obligations of the right to health include, among other things, the obligation to provide ‘education and access to information concerning the main health problems in the community, including methods of preventing and controlling them’.³¹⁰ The Commission requires

303 Laurent Sermet, ‘The absence of a derogation clause from the African Charter on Human and Peoples’ Rights: A critical discussion’ (2007) 7/1 African Human Rights Law Journal 142-161, 153; Christof Heyns, ‘The African regional human rights system: In need of reform?’ (2001) 1 African Human Rights Law Journal 155-174, 161.

304 Fatsah Ouguergouz, The African Charter on Human and Peoples' Rights: a comprehensive agenda for human dignity and sustainable democracy in Africa (Nijhoff 2003) 425;

305 Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000), para 84; Commission Nationale des Droits de l’Homme et des Libertés v Chad (2000) AHRLR 66 (ACHPR 1995), para 21 ; Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998), para 67; Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999), para 41; Amnesty International and Others v Sudan (2000) AHRLR 297 (ACHPR 1999), 42; Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007), para 87; Sudan Human Rights Organisation and Another v Sudan (2009) AHRLR 153 (ACHPR 2009), paras 165 & 167; Zegveld and Another v Eritrea (2003) AHRLR 84 (ACHPR 2003), para 60.

306 Ogoniland case, para 44.

307 CESCR, General Comment 12, para 37.

308 Nairobi Principles, para 79(a).

309 Nairobi Principles, para 86(b).

310 Nairobi Principles, para 67(e).

states to raise awareness. Incidentally, the Commission reproduces this formulation verbatim from the CESCR’s general comment on the right to health.³¹¹ However, the CESCR does not consider the obligation to provide education and access to information to be a core obligation in relation to the right to health. The obligation to fulfil, especially the sub-obligation to provide, is implicit in a number of minimum core obligations. For example, the Commission emphasises that states have the minimum core obligation to ensure ‘at the very least basic shelter for everybody’.³¹² It is not possible to ensure basic shelter for everyone unless states provide shelter for those who do not have their own means.

The minimum core obligations identified by the Commission consist of obligations to respect, protect, promote and fulfil. However, the Commission does not apply this analysis to all rights. For some rights, the Commission identifies the obligation to fulfil only. An example is the right to social security. As noted above, states have the minimum core obligation to ensure ‘access to a social security scheme that provides a minimum essential level of benefits’.³¹³ For this right, the Commission does not identify minimum core obligations to respect and protect. For other rights, the Commission does not specify the obligation to fulfil. For example, it does not identify a minimum core obligation to fulfil in relation to the right to work. Therefore, the Commission’s minimum core obligations are hotchpoth of items when considered against the framework of obligations to respect, protect, promote and fulfil.

Each right is different in nature, which may explain why minimum core obligations relating to some rights do not contain all levels of obligations. As Koch argues, ‘there are rights which do not lend themselves easily to grading’ along the respect-protect-fulfil framework.³¹⁴ She argues that it is hardly possible to identify state obligations to provide in relation to trade union rights.³¹⁵ However, the Commission’s inconsistency in identifying different levels of obligations as minimum core obligations does not seem to arise from the specific nature of a particular right. In relation to the right to social security, for example, the Commission does not consider the obligation to respect among minimum core obligations – although such an obligation is identifiable. As the CESCR emphasises, states have a core obligation to ‘respect existing social security schemes’.³¹⁶ Therefore, it is not clear why the Commission considers one level of obligation (eg, the obligation to respect) in relation to one right (eg, the right to food) but not in relation to other rights (eg, the right to social security) to be a minimum core obligation. Defining a minimum core obligation as inclusive of the obligations to respect and protect is self-defeating, as discussed above (Section 4.2.1). By adopting this definition, the Commission allows states to tolerate deprivation.

Another issue relates to the scope of application. Is the concept of the minimum core applicable to all rights guaranteed under the African Charter? In the Nairobi Principles, the African Commission identifies minimum core obligations corresponding to economic, social and cultural rights. It is not clear if the Commission is going to do the same for other Charter rights (ie, civil, political and group rights). If minimum core obligations include the obligations to respect and protect, it is submitted, the concept is applicable to all Charter rights. This is because all Charter rights engender the

311 CESCR, General Comment 14, para 44(d).

312 Nairobi Principles, para 79(c).

313 Nairobi Principles, para 82(a).

314 Koch (n 46) 20.

315 Koch (n 46) 20-21.

316 General Comment 19, para 59(c).

obligations to respect, protect, promote and fulfil as the Commission has held in the Ogoniland case.³¹⁷ Such a conclusion, however, defeats the purpose of identifying minimum core obligations.

4.7 Conclusion

This chapter has examined the concept of the minimum core in the literature and the practice of treaty bodies (the CESCR, the European Committee, the American Commission, the Inter-American Court and the African Commission). The concept represents irreducible minimum elements of economic social and cultural rights, which are minimum essential levels or minimum core content of rights. The obligations of states to ensure the minimum core content of a right are minimum core obligations. These obligations exist irrespective of resource availability. In practice, the CESCR and the African Commission have adopted the concept of the minimum core. The CESCR was the first to introduce the concept into its practice. The African Commission followed in the CESCR’s footsteps a decade later, however, they differ on the content and characteristics of state obligations.

The CESCR identifies core obligations for almost all rights under the ICESCR. The core obligations relate to different rights, but have some elements common to core obligations corresponding to two or more rights. These include the obligations to adopt a national strategy, to ensure access to goods and services on a non-discriminatory basis, to monitor the realisation of the rights and to ensure access to remedies. It is not clear why these obligations are core with respect to some rights but not with respect to others. The CESCR does not expressly relate core obligations to members of vulnerable groups, although it does require that attention be paid to them. It requires that states discharge core obligations as a matter of priority. However, the point that core obligations have priority over other obligations does not strongly come out from the CESCR’s practice. The CESCR states that core obligations are of immediate effect. This effect seems to disappear when one considers that the CESCR accepts the justification of resource scarcity. Therefore, the characteristics and implications of core obligations have been watered down in the practice of the CESCR.

Both the CESCR and the African Commission define minimum core obligations in terms of the number of individuals deprived of a minimum core content of each economic, social and cultural right. Both are yet to determine the number of individuals considered to be significant in concrete terms. This element of the definition gives the wrong perception, an implied approval of trampling some people’s rights if they are insignificant in number. Both the CESCR and the African Commission are yet to determine the minimum core content of each right in the way they determined (minimum) core obligations.

The practice of the African Commission challenges the assumed universal content of rights. The Commission provides content, which is, at least in part, different from that identified by the CESCR.

The African regional context may justify such differences. However, this justification would not be convincing since the national context in each state would have justified different minimum core obligations. The Commission clearly specifies that states should give priority to members of vulnerable groups. In addition, it does not accept any justification for a failure to carry out minimum core obligations. Therefore, the African Commission has adopted a stricter view of state obligations than the CESCR has developed.

The African Commission has transplanted the concept of minimum core into the African Charter from the practice of the CESCR, making some changes in the process. It is not clear whether the changes

317 Ogoniland case, para 44.

are intentional and necessary due to the textual requirements of the African Charter or the reality in African countries, because the Commission does not give any explanation. Whichever change is made to the concept, the implication is clear: Economic, social and cultural rights do not have the same normative content under the ICESCR and the African Charter so far as the minimum core obligations clarify the normative content of rights. The changes are numerous, including terminological ones.

The major change relates to the content. The Commission’s minimum core obligations at times differ from the CESCR’s core obligations in relation to a single right. Of course, the practice of both organs converges when the Commission takes items from the practice of the CESCR. The divergence occurs when the Commission leaves out items from the CESCR’s core obligations or when it identifies its own minimum core obligations. The Commission sometimes specifies other rights guaranteed in the African Charter as minimum core obligations, which is a mere duplication. In cases of duplication, the identification of minimum core obligations is not helpful to states and complainants because the duplication does not add clarity to the rights under the African Charter or to their corresponding state obligations.

The divergence of interpretation has a serious consequence for different stakeholders, including the complainants, states and treaty bodies. The Commission’s interpretation may encourage forum shopping by the complainants. Almost all states parties to the African Charter are also parties to the ICESCR.³¹⁸ It is submitted that states naturally tend to choose the less onerous interpretation if one right has different content under the ICESCR and the African Charter. The judicial organs such as the African Court have jurisdiction over both the African Charter and the ICESCR.³¹⁹ The Commission’s interpretation puts the African Court in a difficult position. The African Court has to choose either the CESCR’s core obligations or the Commission’s minimum core obligations to the extent they are different. The Court usually follows the Commission’s interpretation. Still, nothing prohibits the Court from developing its own interpretation, which can be different from the Commission’s or the CESCR’s interpretations.

318 The exceptions are Botswana, Comoros, Mozambique and South Sudan. See

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en (accessed 21 December 2018).

319 African Court Protocol, arts 3 & 7.

CHAPTER FIVE

EQUALITY AND NON-DISCRIMINATION

5.1 Introduction

In the previous chapter, I discussed minimum core obligation as an exception to the concept of progressive realisation. Another exception to progressive realisation is non-discrimination. States have the obligation to ensure economic, social and cultural rights without discrimination on prohibited grounds. The prohibition of discrimination relates to the right to equality. In this chapter, I discuss equality and non-discrimination in the enjoyment of economic, social and cultural rights.

The principles of equality and non-discrimination are central to international human rights law.¹ Human rights treaties usually guarantee the enjoyment of rights they recognise without any discrimination on prohibited grounds.² Treaty bodies have explained and further developed these principles. The Inter-American Court of Human Rights (Inter-American Court) considers the principles of equality and non-discrimination peremptory norms (jus cogens).³ According to the European Committee of Social Rights (European Committee), the principles require states to pay particular attention to vulnerable groups.⁴ The Committee on Economic, Social and Cultural Rights (CESCR) has explained that the non-discrimination provision of the International Covenant on Economic, Social and Cultural Rights (ICESCR) envisages a substantive conception of equality.⁵ Other treaty bodies also distinguish a formal from a substantive conception of equality in line with scholarly writings and theories.⁶ Scholars, however, do not agree on a single meaning of equality: equality is a contested concept that ‘has been given all forms of meanings and characteristics’.⁷ Some of the concerns of a substantive conception of equality overlap with state obligations to implement economic, social and cultural rights.⁸ Examining relevant aspects of substantive equality theories, the second section of this chapter argues that addressing the plight of vulnerable groups is common to the requirements of ensuring substantive equality and implementing economic, social and cultural rights. The section

1 The principle constitutes one of the rules of customary international law. See Malcolm N Shaw International Law (CUP 2008) 275.

2 International Covenant on Economic, Social and Cultural Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); 993 UNTS 3, Art 2(2); See Convention on the Rights of Persons with Disabilities, adopted UN Doc.A/61/611, adopted 13 December 2006, entry into force 3 May 2008, 2515 UNTS 3, Art 5; Convention on the Rights of the Child, adopted 20 November 1989, entry into force 2 September 1990, 1577 UNTS 3, Art 2(2); African Charter, Art 2; American Convention on Human Rights, adopted 21 November 1969 & entered into force 18 July 1978, OAS Treaty Series No. 36; 1144 UNTS 123, Art 1(1); ² International Covenant on Civil and Political Rights, 999 UNTS 171, Art 2(2).

3 Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, 23 September 2003, para 101.

4 See European Roma and Travellers Forum (ERTF) v the Czech Republic, Complaint No. 104/2014, para 112; European Roma Rights Centre (ERRC) v Bulgaria, Complaint No. 46/2007, para 45; International Federation for Human Rights (FIDH) v Ireland, Complaint No. 110/2014, 12 May 2017, para 140.

5 CESCR, General Comment No 20: Non-discrimination in economic, social and cultural rights (Art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/20, 2 July 2009, para 7.

6 See Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, 23 September 2003, paras 103 & 112.

7 Matthew C R Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon Press 1995) 154.

8 Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’ (2005) 21 South African Journal on Human Rights 163 – 190, 164.

examines practice under the European Social Charter, the ICESCR and the American Convention on Human Rights along with its Protocol of San Salvador. The purpose of this section is to set a general background for the remaining sections on equality and non-discrimination under the African Charter on Human and Peoples’ Rights (African Charter or Charter).⁹

The African Charter guarantees economic, social and cultural rights along with civil, political and peoples’ rights. States have undertaken general obligations to give effect to the rights guaranteed in the Charter.¹⁰ The Charter does not distinguish state obligations corresponding to each category of rights. With regard to economic, social and cultural rights, the African Commission on Human and Peoples’ Rights (African Commission or Commission) classifies state obligations into two: progressive and immediate obligations.¹¹ I have discussed progressive realisation obligations in Chapter 2. The African Commission identifies a few immediate obligations.¹² In this chapter, I will focus on only one such obligation – non-discrimination. The African Commission derives a non-discrimination obligation from the principles of equality and non-discrimination guaranteed in a number of provisions of the Charter.¹³ However, the scope of these provisions and their relationship are not clear. I will discuss that issue in the third section of this chapter.

The African Commission and the African Court on Human and Peoples’ Rights (African Court or Court) have interpreted the principles of equality and non-discrimination. How do the Commission and the Court define discrimination in their practice? How do they interpret prohibited grounds of discrimination? What criteria do they use to determine whether a distinction amounts to discrimination? Do they establish any relationship between the right to equality and the right to non-discrimination? The fourth section of this chapter attempts to answer these questions by the practice relating to non-discrimination and equality provisions of the Charter. The Commission is older and has more experience than the Court. For this reason, the fourth and fifth sections of this chapter focus on the practice of the Commission.

The African Commission adopts a substantive conception of equality, maintaining that the right to equality requires states to accord particular attention to members of vulnerable groups, to adopt temporary special measures in favour of them, and to modify social structures that constitute a barrier to their enjoyment of economic, social and cultural rights.¹⁴ Who are members of vulnerable groups? What is the significance of identifying them for their enjoyment of economic, social and cultural rights? What does it mean to pay particular attention to them? What are the purposes of temporary special measures? What are the implications of modifying social structures for the enjoyment of economic, social and cultural rights by vulnerable groups? The fifth section attempts to answer these questions. I will make some concluding remarks in the sixth section.

9 African Charter on Human and Peoples’ Rights, 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).

10 African Charter, Art 1.

11 African Commission, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter (Nairobi Principles), 2011, para 14.

12 Immediate obligations ‘include but are not limited to the obligation to take steps, the prohibition of retrogressive steps, minimum core obligations and the obligation to prevent discrimination in the enjoyment of economic, social and cultural rights’. Nairobi Principles, para 16.

13 African Charter, Arts 2, 3, 18(3), 19 & 28.

14 Nairobi Principles, paras 32—35.