The Influence of the International Covenant on Economic, Social and Cultural Rights in Africa

Manisuli Ssenyonjo

doi:10.1007/s40802-017-0091-4

Abstract

Half a century ago, the United Nations General Assembly unanimously adopted two great covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which brought force of law to the rights declared in the Universal Declaration of Human Rights. Both covenants have been widely ratified by the vast majority of African States. However, a largely neglected area of study has been assessing the influence of the ICESCR in various parts of the world including Africa. This article assesses the influence of the ICESCR in Africa. It seeks to show how the ICESCR, as interpreted by the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has, through the 50 years since its adoption, had influence on the regional and domestic protection of economic, social and cultural rights (ESC rights) in Africa. The article begins by considering the influence of the Covenant on the regional protection of human rights in Africa. This is followed by an analysis of the influence of the Covenant on the protection of ESC rights in domestic legal systems in Africa focusing primarily on the constitutional protection of ESC rights. It then considers the limited influence of the Covenant on national courts’ jurisprudence in African States applying dualist and monist approaches to international treaties. It ends by making recommendations to maximize the influence of the ICESCR in the future.

Highlights

16 December 2016 marked 50 years since the United Nations (UN) General Assembly adopted in 1966 the International Covenant on Economic, Social and Cultural Rights1 (ICESCR or Covenant), the most comprehensive international treaty protecting economic, social and cultural (ESC) rights
Half a century ago, the United Nations General Assembly unanimously adopted two great covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which brought force of law to the rights declared in the Universal Declaration of Human Rights
The influence of the Covenant can be said to come about where something from the Covenant flows into and thereby affects the protection of ESC rights in Africa. This may be reflected in citations of the Covenant by courts and tribunals, treaty provisions or national legislation or policy concluded on the basis of the ICESCR, development of new norms based on the Covenant, such as the right to development, and whether the Covenant has affected human rights teaching, practice, and policy in Africa

Summary

Introduction

16 December 2016 marked 50 years since the United Nations (UN) General Assembly adopted in 1966 the International Covenant on Economic, Social and Cultural Rights (ICESCR or Covenant), the most comprehensive international treaty protecting economic, social and cultural (ESC) rights. This may be reflected in citations of the Covenant by courts and tribunals, treaty provisions or national legislation or policy concluded on the basis of the ICESCR, development of new norms based on the Covenant, such as the right to development, and whether the Covenant has affected human rights teaching, practice, and policy in Africa. 3 the influence of the ICESCR upon constitutional protection of human rights in Africa drawing on examples from former British colonies in Africa (applying a ‘dualist’ approach to the ICESCR) and former French and Portuguese colonies in Africa (applying a ‘monist’ approach to the ICESCR) It considers whether the rights protected in the ICESCR are part of national (‘municipal’, ‘domestic’ or ‘internal’) constitutional law in African States and, if so, where do these rights feature in the hierarchy of the domestic legal order? Have rights in the ICESCR been invoked before, or ‘applied’ by national courts in Africa in their judgments? The article ends in Sect. 4 with some concluding observations about the influence of the Covenant in Africa on the occasion of the 50th anniversary and comments on what needs to be done to maximize the influence of the ICESCR in the future

Influence of the ICESCR on the African Regional Human Rights System

Influence of the ICESCR on the Domestic Protection of Human Rights in Africa

Dualist Approach to the ICESCR in Africa and Influence on Human Rights

Monist Approach to the ICESCR in Africa and Influence on Human Rights

Conclusion