On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.11 n.2 Pretoria 2011
Lecturer, University of KwaZulu-Natal, Durban, South Africa
After considering the core objective of the sub-regional economic communities (RECs) in Africa and the obligations that human rights impose, this article submits that the right to access education, the creation of employment and the right to access work intra-regionally are central to economic integration in Africa. Consequently, the article analyses how economic integration involves these rights and the extent to which these rights may act as catalysts to deepening economic integration in RECs. It concludes that state parties to the RECs must allow free movement of persons and the right of establishment to enable community citizens to have access to education and work.
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* BA LLB (Lesotho), LLM (Essex); Forere@ukzn.ac.za. This work is part of the author's PhD research and it should therefore be regarded as work in progress. I am indebted to Prof Brook Baker of Northeastern University, USA, for carefully providing constructive criticism on earlier drafts which shaped this work. However, all the shortcomings and views expressed herein remain those of the author.
1 Accra Declaration, African Union, 9th ordinary session in Accra, Ghana, adopted 3 July 2007.
2 Arts 4(1)(d) & 4(2) Constitutive Act of the African Union (Constitutive Act) adopted 11 July 2000, entered into force 26 May 2001, art 3(l) read with the Treaty Establishing the African Economic Community, adopted 1991.
3 Arts 4(d), (g) & (h) Economic Community of West African States Treaty (ECOWAS Treaty), 24 July 1993, 35 ILM 660, (1996) 8 African lournal of International and Comparative Law 193. [ Links ]
4 RF Oppong 'The African Union, African Economic Community and Africa's regional economic communities: Untangling a complex web' (2010) 18 African Journal of International and Comparative Law 93. [ Links ]
5 Art 2(2) East African Community Treaty (EAC Treaty), adopted 30 November 1999, entered into force 2001; art 3(2)(d) ECOWAS Treaty (n 3 above); Southern Africa Development Treaty (SADC Treaty) adopted August 1992 as amended in 2001; SADC Regional Indicative Strategic Development Plan (RISDP), adopted August 2003, para 4.10.5
6 Preamble, para 9 African Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5, 1520 UNTS 217, entered into force 21 October 1986.
7 ST Ebobrah 'Human rights developments in sub-regional courts in Africa during 2008' (2009) 9 African Human Rights Law Journal 313. [ Links ]
8 SF Musungu 'Economic integration and human rights in Africa: A comment on conceptual linkages' (2003) 3 African Human Rights Law Journal 94. [ Links ]
9 African Charter (n 6 above); F Viljoen & L Louw 'The status of the findings of the African Commission: From moral persuasion to legal obligations' (2004) 48 Journal of African Law 1. [ Links ]
10 Ebobrah (n 7 above); F Viljoen International human rights law in Africa (2007). [ Links ]
11 Art 3(g) Abuja Treaty (n 3 above).
12 Art 4(g) ECOWAS Treaty (n 5 above).
13 Adopted 19 January 2005, entered into force 19 January 2005, art 9(4).
14 Art 6(d) EAC Treaty (n 5 above).
15 Art 4(c) SADC Treaty (n 5 above).
16 Protocol on Gender and Development, adopted 17 August 2008.
17 Ebobrah (n 7 above) 313.
18 Eg Mike Campbell (Pvt) Limited & Another v Zimbabwe (2007) AHRLR 141 (SADC 2007); Katabazi & Others v Secretary-General of the East African Community & Another (2007) AHRLR 119 (EAC 2007).
19 ST Ebobrah 'Critical issues in the human rights mandate of the ECOWAS Court of Justice' 2010 (54) Journal of African Law 1. [ Links ]
20 Ebobrah (n 19 above) 25.
21 P Mpofu 'SADC Tribunal not suspended: Salamao' http://www.zimonline.co.za/Article.aspx?ArticleId=6288 (accessed 6 September 2010). [ Links ]
22 Musungu (n 8 above) 89.
23 As above.
24 C Odinkalu 'Regional integration and human rights in Africa' PhD thesis, London School of Economics, May 2008. [ Links ]
25 Viljoen (n 10 above) 8.
26 M Holland European integration: From community to union (1994) 6. [ Links ]
27 Viljoen (n 10 above).
28 Viljoen (n 10 above) 495; Musungu (n 8 above).
29 S Suri 'Free trade enslaving poor countries' http://www.ipsnews.net/news.asp?idnews=37008 (accessed 3 March 2011). [ Links ]
30 Art 2(b) EAC Treaty (n 5 above); art 3(1) ECOWAS Treaty (n 5 above); art 1(a) SADC Treaty (n 5 above).
31 Viljoen (n 10 above) 497.
32 Viljoen (n 10 above) 496.
33 Under international human rights law, there is no positive obligation on the part of states to provide individuals with employment or jobs. However, states are encouraged to have specialised services to assist and support individuals in order to enable them to identify and find available employment. In addition, states are encouraged to adopt measures aimed at achieving full employment. See General Comment 18 - The Right to Work, adopted on 25 November 2005, UN ESCR Committee, 35th session, UN Doc E/C.12/GC/18 (2006) paras 12(a), 19 & 26.
34 Declaration on Economic, Social and Cultural Rights (Pretoria Declaration), adopted December 2004, African Commission on Human and Peoples' Rights 36th ordinary session.
35 International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, GA Res 2200 (XXI), UN GAOR, 21st session, UN Doc A/6316 (1966), 993 UNTS 3, entered into force 3 January 1976.
36 Art 60 African Charter.
37 n 18 above.
38 Eg, art 4(g) ECOWAS Treaty (n 5 above); art 6(d) EAC Treaty (n 5 above).
39 ST Ebobrah 'A rights-protection goldmine or a waiting volcanic eruption? Competence of, and access to, the human rights jurisdiction of the ECOWAS Community Court of Justice' 2007 (7) African Human Rights Law Journal 315. [ Links ]
40 As above.
41 ST Ebobrah 'Legitimacy and feasibility of human rights realisation through regional economic communities in Africa: The case of the Economic Community of West African States' LLD thesis, University of Pretoria, 2009 120, [ Links ] citing LB Sohn 'The human rights law of the Charter' (1977) 12 Texas International Law Journal 129. [ Links ]
42 Art 26 Universal Declaration of Human Rights, adopted 10 December 1948, GA Res 217A (III), UN GAOR, 3rd session UN Doc A/810 (1948).
43 Art 13 ICESCR.
44 Eg art 17 African Charter.
45 SADC Protocol on Education, adopted 8 September 1997, entered into force 31 July 2000.
46 As above.
47 Art 13(2)(a) ICESCR.
48 Art 13(2)(b) ICESCR.
49 Art 13(2)(c) ICESCR.
50 Art 2(2) ICESCR.
51 Art 2(3) ICESCR.
52 Eg, art 3 ECOWAS Treaty (n 5 above).
53 PB Baehr Human rights: Universality in practice (1999) 32. [ Links ]
54 Art 25 Universal Declaration.
55 Art 10(2) SADC Charter on Social Rights, adopted 26 August 2003.
56 Art 23 Universal Declaration.
57 It is on this basis that the duty to create employment is referred to, by the author, as the moral duty and not the legal duty. However, it is no longer desirable for states to deny their obligations towards the enjoyment of the right to work; states are equally responsible for making the right to work available. See The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Maastricht Guidelines) (1989) 20 Human Rights Quarterly 4. [ Links ]
58 ICESCR (n 35 above).
59 Art 6(2) provides as follows: 'The steps to be taken by a state party to the present Covenant to achieve the full realisation of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.'
60 General Comment 13, The Right to Education, adopted 8 December 1999, UN ESCR Committee, 22nd session, UN Doc E/C 12/1999/10 (1999).
61 Although one may argue that developing countries can discriminate against non-nationals in relation to the fulfilment of socio-economic rights under ICESCR, the African Commission has ruled to the contrary; see Union Interafricaine des Droits de l'Homme & Others vAngola (2000) AHRLR 18 (ACHPR 1997).
62 H Shue Basic rights: Subsistence, affluence and US foreign policy (1980) 51. [ Links ]
63 Shue (n 62 above) 36-53.
64 Shue (n 62 above) 53.
65 A Eide 'Article 25' in A Eide et al (eds) The Universal Declaration of Human Rights: A commentary (1992) 388. [ Links ]
66 Eide (n 65 above) 387.
67 Art 2(b) EAC Treaty (n 5 above); art 3(1) ECOWAS Treaty (n 5 above); art 1(a) SADC Treaty (n 5 above).
68 Art 25(1) Universal Declaration.
69 P Justino 'Social security in developing countries: Myth or necessity? Evidence from India' (2003) http://www.sussex.ac.uk/Units/PRU/wps/wp20.pdf (accessed 13 February 2011). [ Links ]
70 Eide (n 65 above) 387.
71 Government of the Republic of South Africa v Grootboom & Others 2001 1 SA 46 (CC); Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC).
72 K Drzewicki 'The right to work and the rights in work' in A Eide et al (eds) Economic, social and cultural rights (2001) 223. [ Links ]
73 General Comment 18 The Right to Work (n 33 above) para 1.
74 JO Oucho & J Crush 'Contra free movement: South Africa and the SADC Migration Protocols' (2001) 48 Indiana University Journal 141-43. [ Links ]
75 Status of Implementation of the Regional Integration Agenda in Africa, adopted 1 July 2008. 11th ordinary session, Assembly/AU/12/(XI) (Status of Implementation).
76 PC Schmitter 'A revised theory of regional integration' in LN Lindberg & SA Schein-gold (eds) Regional integration: Theory and research (1972) 235. [ Links ]
77 International Organisation for Migrants (IOM) World Migration Report (2010) 48. [ Links ]
78 H Nassar 'Intra-regional labour mobility in the Arab world: An overview' in Arab Labour Organisation et al (eds) Intra-regional labour mobility in the Arab world (2010) 31. [ Links ]
79 Neo-functionalism was a response to the need to relate and apply functionalist ideas to integration; see JC Senghor 'Theoretical foundations for regional integration in Africa: An overview' in AP Nyong'o (ed) Regional integration In Africa: Unfinished agenda (1990) 20. [ Links ] This theory does not necessarily imply that states have to forego their sovereignty and control over policy, but pooling so much of it as may be necessary for joint performance of the particular task. See Holland (n 26 above) 15. The main feature of neo-functionalism is the idea of automatic spillover which, according to neo-functionalism, means that integration by sector cannot be achieved in isolation; as one sector is integrated there will be consequences, influencing other tasks to be integrated; see Schmitter (n 76 above).
80 Senghor (n 79 above) 234.
81 A Adepoju 'Creating borderless West Africa: Constraints, and prospects for intra-regional migration' UNESCO SHS/2005/MWB/1 (2005) 9. [ Links ]
82 M Trebilcock & R Howse The regulation of international trade (2005) 9. [ Links ]
83 An example closer to home is in ECOWAS during the introduction of free movement of persons and the right of establishment where Nigeria had to expel some of the community citizens, estimated in millions, because people wanted to pursue a better standard of living in Nigeria; see JE Okolo 'Free movement of persons in ECOWAS and Nigeria's expulsion of illegal aliens' (1984) 40 The World Today 428-436. [ Links ]
84 M Jovanovic The economics of international integration (2007) 99. [ Links ]
85 Nassar (n 78 above) 22.
86 As above.
87 IOM (n 77 above) 53.
88 COSATU Submission on the SADC Protocol on Trade http://www.cosatu.org.za/docs/subs/1999/sadctrad.htm (accessed 27 May 2010). [ Links ]
89 E Tironi 'A case study of Latin America' in D Seers & C Vaitsos (eds) Integration and unequal development: The experience of the EEC (1980) 52. [ Links ]
90 Supplementary Protocol on the Implementation of the Third Phase (Right of Establishment) of the Protocol on Free Movement of Persons, Right of Residence and Establishment, adopted 30 May 1990 (ECOWAS Protocol on the Right of Establishment).
91 'Govt steps up plan to issue permits to Zimbabweans' http://www.mg.co.za/article/2010-09-10-govt-steps-up-plan-to-issue-permits-zimbabweans (accessed 12 February 2011). [ Links ]
92 Art 7(5) SADC Protocol on Education, adopted in Malawi on 8 September 1997, entered into force 31 July 2000.
93 Art 3(g) SADC Protocol (n 92 above).
94 South Africa, Visas and Study Permits, http://www.southafrica.info/travel/docu-ments/studypermits.htm (accessed 27 January 2011). [ Links ]
95 National University of Lesotho 'Fee structure for the 2010/2011 academic year' http://www.nul.ls/export/sites/default/nul/nuldownloads/Fee_Structure_2010.pdf (accessed 27 January 2011). [ Links ]
96 Art 1 Cultural Charter for Africa, adopted 5 July 1976, entered into force 19 September 1990.
97 S Hoosen et al 'Harmonisation of higher education programmes: A strategy for the African Union' (2009) 3 African Integration Review 2. [ Links ]
98 United Nations Economic Commission for Africa (UNECA) 'Human resources and labour mobility' 197 http://www.uneca.org/aria1/Chap9.pdf (accessed 17 March 2011). [ Links ]
99 Jovanovic (n 84 above) 99.
100 Integration in Africa is best discussed in terms of functionalism and neo-function-alism. This is because African states want to protect national sovereignty while fostering international co-operation, incrementally, through the establishment of regional organisation to promote economic development, and this resonates well in the functionalism and neo-functionalism theories. See Senghor (n 79 above) 18.
101 Senghor (n 79 above) 19.
102 As above.
103 Art 5(2) EAC Treaty (n 5 above).
104 Holland (n 26 above) 12.
105 AH Birch Political integration and disintegration in the British Isles (1977) 32. [ Links ]
106 EB Haas The uniting of Europe: Political, social and economic forces 1950-1957 (1958) 13-14. [ Links ]
107 KD Beiter The protection of the right to education by international law: Including a systematic analysis of article 13 of the International Covenant on Economic, Social, and Cultural Rights (2006) 19. [ Links ]
108 D Katerere 'Putting out "fire next time"' Mail & Guardian http://www.mg.co.za/article/2010-02-18-putting-out-fire-next-time (accessed 28 February 2011). [ Links ]
109 Status of Integration (n 75 above) 29.