The Right to Self-Determination under International Law: Economic, Social, Environmental, and Cultural Rights

17/11/23

The Republic of Argentina has filed a high-profile request for an Advisory Opinion from the Inter-American Court of Human Rights (“the Court”). The Request asks the Court to clarify the scope of a number of economic, social, environmental, and cultural rights under international law. The case has implications for States’ obligations relating to healthcare, education, poverty, labour rights, social security, and the environment.

The Court is asked to rule on whether States have an obligation to guarantee certain living standards and what those standards are under international law. Are States under a legal obligation to tackle poverty? Must they guarantee adequate access to healthcare, food, water, sanitation, and housing? Are they under an obligation to ensure that everyone has a right to education and development? What practical consequences derive from the duty of the State to protect the right to a healthy environment? These are just some of the significant questions that have been referred to the Court by Argentina.

Under Article 26 of the American Convention on Human Rights (“the Convention”), signatory states are under an obligation to “adopt measures, both internally and through international cooperation… with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards” under international law. By Article 26, the Court is thus able to rule that a right exists under the Convention, notwithstanding the fact that it is not expressly contained in the treaty. The Court explains that it is entitled to do so because “human rights treaties are living instruments, the interpretation which must evolve with the times and current circumstances”.

Under its Article 26 case-law, the Court has previously ruled that a number of autonomous rights exist under the Convention, including the right to food and water, the right to healthcare, and the right to a healthy environment. When conducting an Article 26 analysis, the Court considers the whole gamut of international law to determine the existence and content of an autonomous right.

For example, when finding that the right to health is a free-standing right under the Convention, the Court relied on the existence of the right under international law, including its recognition under: the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Women; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities.

The Request from Argentina asks the Court, in essence, to consolidate and develop its jurisprudence under Article 26, asking as it does whether a ‘right to care’ exists under the Convention, i.e., whether individuals and communities are entitled to minimum standards of care.

In answering that question, the Court will have to grapple with a number of important rights under international law. First, the right to self-determination and its relationship with economic, social, cultural, and environmental rights; for example, as is well documented, climate change threatens the right to self-determination. Second, the right to dignity and a dignified life, which has been held, for example, to require States to protect children against poverty.