By Daniel McLaren · 30 Jan 2015
On 12 January 2015, South Africa ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). Though ratification is long overdue, given that President Nelson Mandela signed the Covenant in 1994, this statement of renewed commitment to social and economic justice and internationalism has been roundly and justifiably welcomed.
But what is the significance of this moment? To answer that, we must briefly revisit a very different time.
1976 was a year of tragedy and shame for South Africa. Internationally, it also marked a turning point. The mass student protests against the introduction of Afrikaans as the medium of instruction in schools - a continuation of struggles that had been waging ever since the Bantu Education Act was passed in 1953 - had the Nationalist government on the back foot. On 16 June it showed its teeth. The tragic onslaught by security forces against unarmed youth led to the deaths of 176 learners in Soweto and thousands of casualties across the country.
While the Soweto Uprising shocked the nation, the dramatic escalation in violence meted out by the Apartheid regime also led to new levels of international condemnation of South Africa, pushing the country further into its pariah status as ‘the skunk of the world’. Within a month of the Uprising, on 18 July 1976, the International Convention on the Suppression and Punishment of the Crime of Apartheid came into force. Perhaps even more symbolic, the UN General Assembly agreed to invite representatives of the South African liberation movements to speak in a special plenary meeting of the Assembly. On 26 October, ANC President Oliver Tambo became the first non-white South African to take the famous UN podium. His speech addressed the world ‘in the name of the African National Congress and the entire liberation movement in South Africa, and especially, on behalf of the oppressed people of South Africa, including their children, the current victims of murderous repression.’
Earlier the same year, the ICESCR entered into force. This binding international treaty established economic and social rights in international law for the first time. The ICESCR affirmed the principle that ‘freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.”
By 1994, much had changed, both within and beyond South Africa’s borders. Less than six months after assuming the Presidency, Nelson Mandela arrived in New York to sign the ICESCR. In 1996, a new Constitution for the Republic was enacted providing for justiciable socio-economic rights (SERs). The public’s belief in the new Constitution, and the government’s commitment to promoting and defending it, might explain the initial delays in not ratifying the ICESCR immediately. South Africa’s experiment in democracy had just begun and the country could be forgiven for grasping the opportunity to chart its own constitutional course. However, by the late 2000’s, a civil society campaign was formed to push for the ratification of the ICESCR.
Finally, it got its wish. On 12 April 2015 the ICESCR will enter into force in South Africa. So what does this mean?
In short: it provides new opportunities for the state and civil society alike to explore what social and economic justice requires of us today. Ratification of the ICESCR, which binds South Africa to its provisions, brings new opportunities for ordinary citizens (such as through the reporting procedure) to shape and accelerate dialogue and actions towards the realisation of social and economic rights.
For example, while most of the rights in the ICESCR find recognition in the SA Constitution (including the rights to food, housing, health care and education), the Covenant recognises one new right, and sets at least two new, arguably, more progressive standards or principles for socio-economic rights fulfilment, both of which have implications for the obligations on the state.
“The Right to Work” (article 6) is a new right, which could have important implications for the 15 million unemployed South African’s. Another interesting provision is Article 11: “the right to an adequate standard of living”. This right could be interpreted as giving legal force to the National Development Programme’s commitment to ensure a Decent Living Level for all. In relation to “social security”, the UN Committee on Economic, Social and Cultural Rights has also arguably favoured a more expansive approach, which could have an impact on governments policy not to provide comprehensive social security or long-term social insurance to adults aged 19-59.
Justifiable worries have been expressed about the decision to make a declaration on the right to education, which, in the absence of any official statement by the state, has been taken as an attempt to undermine the more progressive right to basic education contained in the Constitution. Anyone familiar with our Supreme Law, however, will know that the right to basic education is immediately realisable in South Africa and not subject to progressive realisation within available resources. The Constitutional Court has affirmed this and no declaration on the part of the state will change that.
Of course, as the millions of South Africans for whom the notion of socio-economic rights remains a rather distant concept know, having rights on paper does not automatically translate into enjoyment of rights on the ground. To be enjoyed and experienced by the majority of South Africans, the rights in the ICESCR, like the rights in the Constitution, will have to be fought for before they become real.
The ICESCR is a pro-poor treaty that sets important principles and standards for how government should apply itself, and provides a normative rights-based framework for how a socially and economically just society might look. However, without social awareness and mobilisation around the rights in the treaty, its impact will be diminished. Civil society has an important role in ensuring that this is not the case.
Ratification of the ICESCR should be seen as a reaffirmation by the government of the transformative principles at the heart of the Constitution, and to the proud history of internationalism, which the ANC and many of our other liberation movements have.
Reflecting on learners’ struggles for the right to education and on the broader goals of those fighting for freedom in South Africa, at his inaugural address to the UN General Assembly in 1976, Tambo said: “We fight to transfer political power into the hands of the people. When, in June and in subsequent months, our people replied to the fascist power with the cry "Amandla ngawethu”, they meant "Power to the people”. It is with that power that the people will transform our country into an acceptable member of the international community and create within it a society that upholds civilized and humane standards.”
This year, a new tool has been added to the armoury in the fight against poverty, inequality and unemployment, a tool whose implementation would go some way to reclaiming South Africa’s place at the forefront of international struggles for the promotion and protection of all human rights. The question is how will we use it?