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Section C.2. Notes on Interpreting States’ Obligations under the Covenant on Economic, Social and Cultural Rights

Minister of Health and others v. Treatment Action Campaign and others, (Constitutional Court of South Africa, Case CCT 8/02, Judgment of 5 July 2002)

In July 2002, the Constitutional Court of South Africa decided another case applying the economic and social rights protected by the South African Constitution.  The issue was the right to health in the context of a governmental refusal to extend a pilot program using the anti-retroviral drug nevirapine to general use by public health authorities.  The program was testing the efficacy of delivery/counseling systems and nevirapine in preventing HIV transmission from pregnant HIV-positive women to the fetus during pregnancy and birth.

The Treatment Action Campaign (TAC), a South African HIV/AIDS non-governmental organization, brought the case against the Minister of Health and the top health officials in each province.  The lower court had found that the government had “acted unreasonably in (a) refusing to make an anti-retroviral drug called nevirapine available in the public health sector where the attending doctor considered it medically indicated and (b) not setting out a national timeframe for a programme to prevent mother-to-child transmission of HIV.” [1]   The government appealed the decision to the Constitutional Court, which affirmed the decision of the lower court.

While much of the Constitutional Court’s decision is addressed to issues of fact, the court decided several key conceptual issues:

1. The Court rejected the argument that in the area of health, the Constitution conferred an individual right that could be used to demand individual relief from the state for a “minimum core” of services.  The Court decided, on the basis of a textual analysis of the Constitution and on the basis of its previous cases, that the requirement that the state achieve the rights “within available resources” extended to health care. The Court acknowledged that the “minimum core” concept could still be one element in analyzing the reasonableness of government failure or refusal to achieve a right. [2]

2. The Court established that the government’s action (or lack thereof) be reasonable.  It identified several criteria by which such reasonableness could be determined, including but not limited to:  the importance of the right; the availability of other means of achieving the policy aside from denial of the right [3] ; the costs of achieving the right; and the necessity of having proper delivery structures in place.

3. Where children’s rights are implicated the government’s obligations to achieve the rights are even more urgent.  Children are to be the first and best protected. [4]

The case is especially interesting because the court, having determined the justiciability of economic and social rights, proceeds to establish further jurisprudence regarding the criteria for deciding what is “within available resources” for achieving economic and social rights. The full text of the decision is available at <http://www.concourt.gov.za/cases/2002/tacsum.shtml#CourtRecords> in PDF and WordPerfect 6.1.

Section E.1. “Unsigning” a Treaty

In May 2002, the United States sent a letter to the U.N. Secretary-General declaring its intention not to become a party to the Statute of the International Criminal Court (ICC). [5]   The aim was to fulfill the requirements of Article 18 of the Vienna Convention on the Law of Treaties.  The article obliges a state that has signed a treaty “to refrain from acts which would defeat the object and purpose” of the treaty “until it has made clear its intention to not become a party.”  The Bush administration then asserted its opposition to the ICC and began its campaign to seek bilateral arrangements with other states exempting U.S. military and executive personnel from being submitted to the jurisdiction of the court.  The U.N., however, indicated that there is no procedure for withdrawing a signature from a treaty, so the U.S. remains a signatory to the ICC statute but is no longer subject to the strictures of Article 18 of the Vienna Convention. [6]

            The Bush administration “unsigned” the Statute of the ICC without the advice and consent of the Senate, raising an issue as to the constitutionality of such an action.  Where the President has yet to submit a treaty to the Senate, there is a strong argument that he is able to “unsign” a treaty without the advice and consent of the Senate. [7]   For an argument in support of this proposition see: David Scott, Presidential Power to Unsign a Treaty, 69 U. CHI. L. REV. 1447 (2002).

Section E(3). NOTES to Nigel S. Rodley, On the Necessity of United States Ratification of the International Human Rights Conventions, in U.S. RATIFICATION OF THE HUMAN RIGHTS TREATIES: WITH OR WITHOUT RESERVATIONS? 3, 4-13 (Richard B. Lillich ed., 1981) (footnotes omitted):

i. Status of U.S. ratifications of human rights treaties

The U.S. is now a party to several human rights treaties. The number of States parties listed here represents the number as of February 2005. The parenthetical notes as to reservations, declarations, understandings, etc., pertain to U.S. qualifications only.

(a) U.N. Charter, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945 (191 States parties);

(b) Slavery Convention, 60 L.N.T.S. 253, entered into force Mar. 9, 1927, for the U.S. Mar. 21, 1929 (91 States parties) (1 U.S. reservation);

(c) Four Geneva Conventions for the Protection of Victims of Armed Conflict, 75 U.N.T.S. 31, 85, 135, 287, entered into force Oct. 21, 1950, for the U.S. Feb. 2, 1956 (188 States parties) (Convention I - 1 U.S. reservation; Convention IV -- 1 U.S. reservation);

(d) Protocol Amending the Slavery Convention, 182 U.N.T.S. 51, entered into force July 7, 1955, for the U.S. Mar. 7, 1956 (59 States parties);

(e) Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force Apr. 30, 1957, for the U.S. Dec. 6, 1967 (119 States parties);

(f) Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force Oct. 4, 1967, for the U.S. Nov. 1, 1968 (142 States parties) (2 U.S. reservations);

(g) Charter of the Organization of American States, 119 U.N.T.S. 3, entered into force including for the U.S. Dec. 13, 1951, amended 721 U.N.T.S. 324, entered into force Feb. 27, 1990 (35 States parties) (1 U.S. reservation);

(h) Convention on the Political Rights of Women, 193 U.N.T.S. 135, entered into force July 7, 1954, for the U.S. July 7, 1976 (118 States parties);

(i) Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan. 12, 1951, for the U.S. Feb. 23, 1989 (136 States parties) (2 U.S. reservations, 5 understandings, 1 declaration);

(j) International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, for the U.S. Sept. 8, 1992 (154 States parties) (5 U.S. reservations, 5 understandings, 4 declarations, 1 proviso);

(k) Abolition of Forced Labour Convention (ILO No. 105), 320 U.N.T.S. 291, entered into force Jan. 17, 1959, for the U.S. Sept. 25, 1992 (162 States parties).

(l) Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, G.A. res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, for the U.S. ratification deposited Nov. 20, 1994 (139 States parties) (2 U.S. reservations, 5 understandings, 2 declarations);

(m) International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969, for the U.S. Nov. 20, 1994 (170 States parties) (3 U.S. reservations, 1 understanding, 1 declaration, 1 proviso).

(n) Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182), entered into force Nov. 17, 2000, for the U.S. Nov. 17, 2000 (151 States parties).

(o) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, G.A. res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49 (2000), entered into force February 12, 2002, for the U.S. Dec. 23, 2002 (93 States parties) (1 U.S. reservation, 6 understandings with several sub-parts).

(p) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography,G.A. res. 54/263, Annex II, 54 U.N. GAOR Supp. (No. 49) at 6, U.N. Doc. A/54/49 (2000), entered into force January 18, 2002, for the U.S. Dec. 23, 2002 (92 States parties) (4 U.S. declarations, 5 understanding with several sub-parts).

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The U.S. has signed these treaties, but has not become a party:

(a) Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 521 U.N.T.S. 231, entered into force Dec. 9, 1964 (51 States parties);

(b) International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976 (151 States parties);

(c) American Convention on Human Rights, O.A.S. Off. Rec. OEA/Ser.L/V/II.23, doc. 21, rev. 6 (1979), entered into force July 18, 1978 (25 States parties);

(d) Convention on the Elimination of All Forms of Discrimination Against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, 1249 U.N.T.S. 13, entered into force Sept. 3, 1981 (179 States parties).

(e) Convention on the Rights of the Child, G.A. res. 44/25, Annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990 (192 States parties).

(g) Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9* (1998), not yet entered into force (97 States parties). In a communication received on May 6, 2002, the Government of the United States of America informed the Secretary-General of the following: “This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. . . .”

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The U.S. has neither signed nor ratified a number of significant treaties, including:

(a) Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force Apr. 22, 1954 (142 States parties) (The U.S., however, did ratify this convention by implication when it ratified the Protocol relating to the Status of Refugees);

(b) Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force Mar. 23, 1976 (104 States parties);

(c) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, G.A. res. 44/128, Annex, 44 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/44/49 (1989), entered into force July 11, 1991 (54 States parties);

(d) Additional Protocols I and II to the Geneva Conventions of 12 August 1949, 1125 U.N.T.S. 3, 609, entered into force Dec. 7, 1978 (Protocol I -- 146 States Parties, Protocol II -- 138 States parties); (Protocol I -- 2 U.S. understandings attached at signing; Protocol II -- 1 understanding attached at signing);

(e) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. res. 45/158, Annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003 (27 States parties);

(f) Inter-American Convention to Prevent and Punish Torture, 25 I.L.M. 519, Dec. 9, 1985, entered into force Feb. 28, 1987 (16 States parties);

(g) Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, 27 U.S.T. 3301, entered into force Apr. 22, 1994 (31 States parties).

Section E.3. on page 134 should be numbered E.4.