The African Commission and Its Treatment of Economic, Social, and Cultural Rights
- 111 Downloads
We noted in chapter one that in its preamble, the African Charter stresses the significance of economic, social and cultural rights (collective rights).1 The position in the Charter was a reflection of the tensions between civil and political rights on the one hand, and collective rights on the other. Whilst the civil and political rights in the Charter are constrained by clawback clauses, this is not the case with majority of collective rights. This ostensible preference for collective rights could lead to the conclusion that the drafters of the Charter attached more weight to collective rights than they did to civil and political rights. What does compound issues here however, is that in international human rights scholarship, there is the argument that collective rights are not justiciable, being only programmatic rights instead.2 Thus on the one hand we have a Charter that, on its face, narrows the scope for governments to circumvent their collective rights obligations, yet on the other hand these rights are seen as unenforceable. The African Commission has confronted and, arguably, overcome, this jurisprudential difficulty. In this chapter we examine how the Commission has shaped the African system through its interpretation of the collective rights in the Charter.
KeywordsObserver Status Free Rider Problem Territorial Integrity Treaty Obligation African Charter
Unable to display preview. Download preview PDF.
- 2.For a discussion of the issues arising in respect of the justiciability or not of collective rights, see Eric C. Christiansen, “Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court,” 38 Columbia Human Rights Law Review (2007), pp.321-386. For an introduction to economic, social and cultural rights see Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development in International Law (1998), Oxford University Press: OxfordGoogle Scholar
- Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (2009), Hart Publishing: Oxford.Google Scholar
- 3.See Issa G. Shivji, The Concept of Human Rights in Africa (1989) London: Codesria.Google Scholar
- 22.For a research on this issue, see Joseph Mensah (ed.) Neoliberalism and Globalization in Africa: Contestations on the Embattled Continent (2009) Palgrave Macmillan: Basingstoke.Google Scholar
- 29.See Ahmed Motola, “Non-Governmental Organizations in the African System” in Malcolm Evans and Rachel Murray (eds.), The African Charter on Human and Peoples’ Rights (2002), Cambridge University Press: Cambridge, pp.246–279.Google Scholar
- 33.For example, under the ECHR, there have been only 21 inter-state applications have been filed in 13 cases regarding 7 situations complaints in more than 50 years of the Convention’s existence. See David Weissbrodt and Connie de la Vega, International Human Rights Law: an Introduction (2007), University of Pennsylvania Press: University Park, p.316.Google Scholar
- 34.See Mancur Olson Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (2nd ed. 1971) Harvard University Press: Cambridge, Massachusetts.Google Scholar
- 35.In some instances, individuals will act “irrationally” and so defeat the theory underpinning collective action. See Frank B. Cross, “In Praise of Irrational Plaintiffs,” 86 Cornell Law Review (2000), pp.1-32. We have argued elsewhere how this sort of public interest action can animate treaty systems that are not operating to the satisfaction of the parties. See Kofi Oteng Kufuor, The Institutional Transformation of the Economic Community of West African States (2006) Ashgate: AldershotGoogle Scholar
- 53.For a general introduction to the right of self-determination, see the following: Allen Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (2007) Oxford University Press: Oxford.Google Scholar