ICESCR Comparism Document

Report: Comparing the International Covenant on Economic, Social and Cultural Rights to South Africa’s Constitutional and International Obligations to These Socio-Economic Rights

South Africa Has Already Committed to the Rights in the ICESCR – Now It’s Time to Ratify the Covenant

Summary

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is one of the UN’s major international frameworks for human rights. Nelson Mandela signed the Covenant on South Africa’s behalf fifteen years ago, but the Government has still failed to act on ratification.

The article below compares the text of the language protecting rights in the ICESCR, the South African Constitution, the African Charter on Human and Peoples’ Rights, the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. It demonstrates that, in our own Constitution and in these other agreements that we have ratified, South Africa has already committed to protecting the vast majority of the rights enumerated in the ICESCR. South Africa should thus ratify the Covenant to maintain its place as a global leader on human rights and ensure that its international commitment in signing the ICESCR is followed-up on by ratification of rights that the government has already supported.

In particular, rights in the ICESCR have been addressed by South Africa as follows:

Human Dignity – The ICESCR recognizes that human dignity is a foundational principle of socio-economic rights, an approach that is taken in African Charter on Human and Peoples’ Rights (African Charter) and embraced – perhaps more strongly than in any other legal document in the world – in South Africa’s constitution and the jurisprudence of South Africa’s Constitutional Court.

Self-Determination – The ICESCR characterizes the pursuit of and self-determining nature of one’s economic, social and cultural development as basic tenets of socio-economic human rights. South Africa has clearly supported this notion through the African Charter, which states that self-determination and right to pursue economic and social development are “inalienable.”

Equality – Equality is a nearly universal goal and an actionable claim under the Constitution. Equality is protected more strongly in the Constitution than in the ICESCR.

Right to Work – The ICESCR provides that the State Parties recognize a right of persons to seek employment as well as the steps necessary to achieve this right, including training programmes and policies and programmes to achieve “steady” and “productive” employment. The Constitution is not as specific as the ICESCR, though it does recognize the right to pursue employment freely. However, South Africa has committed itself to a right to work that is almost identical to the ICESCR in the CEDAW.

Working Conditions – The ICESCR focuses on equality and safety in working conditions. Again, the Constitution does not address specifics in this area; however, South Africa has already made similar commitments to the ICESCR in the African Charter and the CEDAW.

Trade Unions/Striking – The ICESCR and the Constitution contain quite similar provisions regarding the right of persons to join trade unions and to strike, with the Constitution providing stronger rights in this area than even the Covenant.

Social Security – The ICESCR, the Constitution and the CEDAW provide for the right to social security. The most modest protections are likely those in the ICESCR, with the CEDAW providing the most specific right to social security.

Family, Mothers, Marriages – The Constitution does not explicitly include the same recognition of the centrality of the family to society as does the ICESCR. However, the same rights that the Covenant recognizes are embodied in the African Charter, the CEDAW and the African Charter on the Rights and Welfare of the Child. The rights specified in those agreements include the equal rights of women to work, property and parental rights as men, among others.

Children – The ICESCR provides that States should take special measures to protect children from exploitation, such as minimum working ages. Through the African Charter and the African Charter on the Rights and Welfare of the Child, South Africa has already committed to much more detailed protections for children, and such protections are further enshrined in the Constitution.

Adequate Standard of Living – Like the CEDAW, the ICESCR includes the right to progressive realization of an adequate standard of living and food, clothing and housing. In addition to the CEDAW, South Africa has committed to rights to food and housing in the Constitution.

Food – The ICESCR, like the Constitution, includes a right to food and a commitment that State Parties will take steps towards realising that right.

Highest Attainable Standard of Physical and Mental Health – The right to access to health care is contained in varying forms in the ICESCR, the Constitution, the African Charter and the CEDAW. The text of the ICESCR imposes no material burdens on government to which South Africa has not already committed through either the Constitution or the African Charter.

Education – The ICESCR, like the Constitution, includes a right to basic education. Further, the details of the rights to primary education and access to secondary and higher education are almost identical to those to which South Africa has committed itself in the African Charter on the Rights and Welfare of the Child. However, the ICESCR provides the right to education in more detail than the Constitution.

Culture and/or Science – The ICESCR, the Constitution, the African Charter and the CEDAW all provide for a right for persons to follow the traditions of their culture.