The International Covenant on Economic, Social and Cultural Rights (ICESCR) came into effect in 1976 to address related to the second generation of socio-economic rights. The covenant which has 71 signatories, particularly in Article 2, explains the responsibilities of State-parties to the covenant in three clauses that make up that Article. In Clause 1, the covenant requires that State-parties must take steps individually and in collaboration with one another to ensure the progressive realization of Economic, Social and Cultural Rights (ESCR), through appropriate means, including the adoption of legislative and administrative measures; Clause 2 of the same Article requires that ESCR must be guaranteed to all, irrespective of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; and Clause 3 of the same Article allows developing countries to, within the confines of their economic realities do their best to guarantee the ESCR of non-nationals living within their territory. The aim of this work is to look at the responsibility of nations who are parties to the ICESCR and how they take steps to ensure social economic rights of their citizens and non-nationals within their territories, without discrimination and notwithstanding that non-nationals can only enjoy those available economic social and cultural rights with regards to the economic realities of the country, if that country is a developing country.
In understanding what ESCR are, Article 11 (1) of ICESCR refers to them as rights related to adequate standard of living, “including adequate food, clothing and housing, and to the continuous improvement of living conditions” whereupon a violation of these rights by a state-party through intentionally starving people within its territory for example, is regarded as a crime under International Law. See Article 8(2) (b) (xxv) of the Statute of International Criminal Court, 2002 (Eide et al, 2001)
On the subject of state-parties taking steps to guarantee ESCR, Beddard and Hill (1992) pointed out that though countries around the world operate different economic and social systems and would always implement these rights according to their political choice, it is important to bear in mind that economic and social rights are and must be guaranteed as a matter of law and humanity.
“It is impossible to consider the enjoyment of one branch of human rights in isolation from the other.” (Ed Beddard and Hill, 1992). Thus, a state-party must ensure that ESCR are guaranteed in the same way that freedom of expression is guaranteed and enforced. According to the duty of state-parties to give effect to the Covenant on Economic, Social and Cultural Rights (CESCR), particularly in Paragraph 2, the General Comment 9 of the Committee on ESCR, made a strong recommendation that economic and social rights must be guaranteed and implemented within the legal order of the state-parties, such that appropriate means of achieving accountability, seeking redress and obtaining remedies can be achieved within the domestic legislative instruments of the state-parties.
A close look at Article 2 of the ICESCR reveals three very important information, namely:
1. The state-party or nation that is signatory to the covenant should “take steps”, by itself through its laws or legislative measures and according to the resources available at its disposal individually and where needed, through the support and collaboration of other states (particularly economic and technical), to ensure the continuous achievement of the aspirations and provisions of the Covenant. See Article 2(1)
2. The implementation of the content of the covenant by the state parties must be without discrimination to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. See Article 2(2)
3. State parties which are developing countries should do their best, within the limits of their economic strength to provide support to the non-nationals within their territories. See Article 2(3)
The United Nations in their assessment of the impact of the Covid-19 pandemic, made recommendations to the effect that the rights and obligations related to the International Covenant for Economic Social and Cultural rights must be protected and fulfilled during the crisis and that states must take appropriate measures to achieve that. (Tauli-Corpus, 2020)
The UN Committee on Economic, Social and Cultural Rights (CESCR), speaking on the Nature of States Parties' Obligations in General Comment No. 3 (1990), said in paragraph 3, that “the means which should be used in order to satisfy the obligation to take steps are stated in article 2 (1) to be “all appropriate means, including particularly the adoption of legislative measures”. The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable.” In buttressing its position here, the committee pointed out that it is not possible to combat discrimination, achieve the protection of women and children or push for quality health delivery and education without the promulgation of legislation that will give it the deserved credibility and enforceability.
In the spirit of Article 2(1), many countries provided and are still providing stimulus packages for their citizens as a means of support in the midst of the economic crisis caused by the pandemic. Examples include the Coronavirus Aid, Relief, and Economic Security Act 2020 or the ‘‘CARES Act 2020’’ signed into law by President Trump in March 27, 2020. Through the Act, a two trillion US Dollars stimulus package was provided in order to help people, families, businesses, and the US economy in general, to cope with the effects of the pandemic, including a one off $1,200 cash payments to qualified people in the country. Italy passed a decree that also saw the release of 55 billion Euros in order to help ameliorate the challenges of the pandemic on the families and businesses in the country. Germany suspended rent for needy people till 2022 when the situation hopefully improves. The German government also waived taxes for struggling businesses and also reserved a budget for entrepreneurs, freelancers and those in creative arts industry to survive the scourge of the pandemic. The stimulus package was not only made available to citizens of Germany, but also to non-nationals living in Germany. The G-20 countries have spent 3.5% of their GDP to provide support for their economies in the face of the pandemic. (Schneeweiss, 2020)
On the African Continent, The Centre for Economic Social Cultural Rights in Africa (CESCRA) was established in 2010 with the aim of supporting the ESCR agenda in Africa through grassroot empowerment programmes, research and monitoring the implementation of ESCR in various member countries, especially with regards with to the protection of the ESCR of the marginalised people and promoting gender equality. This reveals that on the African continent Article 2(1) and (2) of the Covenant are clearly a very strong pursuit. The African Charter through the rights enunciated therein, from Article 14 to Article 17, gave very strong consideration to Economic, Social and Cultural Rights, ranging from right to property, to rights related to working under equitable and satisfactory conditions, to the rights related to enjoyment of attainable physical and mental health (including access to quality health care for sick people), to rights related to quality education, strengthened by the right of people to freely participate in the cultural life of their communities, and the protection of the rights of women, children, the aged and the disabled within the expectations of their physical and moral needs.
There are also treaties that emanate from the efforts of the African Union, which promote Economic, Social and Cultural Rights in Africa. They include:
1. African Charter on the Rights and Welfare of the Child, 1990, under which we have Article 11 focusing on education; Article 12 focusing on right to participate in leisure, recreation and cultural activities; Article 13 focusing on the rights of handicapped children; Article 14 focusing on rights to health and quality health services; and Article 15 which speaks against child labour;
2. Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003, whose provisions, particularly Article 1(f, g and j) and Article 2 focus on the elimination of discrimination and abuse against women.
On providing understanding for the implementation of the provision of Article 2(1), Ravlich (2009), argues that much as the Committee of Economic, Social and Cultural Rights spoke of the importance of international collaboration, where more capable state-parties support the less capable ones (like developing countries) in the implementation and achievement of ESCR within their territories, it was “silent on whether the State obligations are of a legal or moral nature” describing them as being “more forthright with respect to core minimum obligations.”
In the guarantee of ESCR, The responsibility of the state-parties towards the citizens, also includes that it must protect its citizens from the activities and policies of “non-state actors”, especially in situations where the state has to promulgate and enforce laws that protect the citizens from unfavourable working conditions they may be exposed to in the course of carrying on their employments. Globalisation, deregulations and privatisation have brought about non-state actors being quite powerful and capable of playing roles which affect the lives of citizens in an extensive way. To this extent, it is also the responsibility of state-parties to protect its citizens from the violation of their economic and social rights by non-state actors. (Schmid 2015)