Universal Declaration of Human Rights (1948)

Article 22: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23:

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25:

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

International Covenant on Economic, Social, and Cultural Rights (1966/1976)

Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization 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.

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

Article 9

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

Article 13

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Kenneth Roth, “Defending Economic, Social, and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26 (2004), footnotes omitted

In my view, to shame a government effectively—to maximize the power of international human rights organizations like Human Rights Watch—clarity is needed around three issues: violation, violator, and remedy. We must be able to show persuasively that a particular state of affairs amounts to a violation of human rights standards, that a particular violator is principally or significantly responsible, and that a widely accepted remedy for the violation exists. If any of these three elements is missing, our capacity to shame is greatly diminished. We tend to take these conditions for granted in the realm of civil and political rights because they usually coincide. For example, one can quibble about whether a particular form of mistreatment rises to the level of torture, but once a reasonable case is made that torture has occurred, it is fairly easy to determine the violator (the torturer as well as the governments or institutions that permit the torturer to operate with impunity) and the remedy (clear directions to stop torture, prosecution to back these up, and various prophylactic measures, such as ending incommunicado detention).

In the realm of ESC rights, the three preconditions for effective shaming operate much more independently. (For these purposes, I exclude the right to form labor unions and bargain collectively since while codified in the International Covenant on Economic, Social and Cultural Rights (ICESCR), this right functions more as a subset of the civil and political right to freedom of association.) ⁸ I accept, for the sake of this argument, that indicia have been developed for subsistence levels of food, housing, medical care, education, etc. ⁹ When steady progress is not being made toward realizing these subsistence levels, one can presumptively say that a "violation" has occurred.

But who is responsible for the violation, and what is the remedy? These answers flow much less directly from the mere documentation of an ESC rights violation than they do in the civil and political rights realm. For example, does responsibility for a substandard public health system lie with the government (through its corruption or mismanagement) or with the international community (through its stinginess or indifference). If the latter, which part of the international community? The answer is usually all of the above, which naturally reduces the potential to stigmatize any single actor.

Similar confusion surrounds discussions of appropriate remedies. Vigorously contested views about "structural adjustment" are illustrative. Is structural adjustment the cause of poverty, through its forced slashing of public investment in basic needs, or is it the solution by laying the groundwork for economic development? Supporting evidence can be found on both sides of this debate. When the target of a shaming effort can marshal respectable arguments in its defense, shaming usually fails.

The lesson I draw from these observations is that when international human rights organizations such as Human Rights Watch take on ESC rights, we should look for situations in which there is relative clarity about violation, violator, and remedy.

Broadly speaking, I would suggest that the nature of the violation, violator, and remedy is clearest when it is possible to identify arbitrary or discriminatory governmental conduct that causes or substantially contributes to an ESC rights violation. These three dimensions are less clear when the ESC shortcoming is largely a problem of distributive justice. If all an international human rights organization can do is argue that more money be spent to uphold an ESC right—that a fixed economic pie be divided differently—our voice is relatively weak. We can argue that money should be diverted from less acute needs to the fulfillment of more pressing ESC rights, but little reason exists for a government to give our voice greater weight than domestic voices. On the other hand, if we can show that the government (or other relevant actor) is contributing to the ESC shortfall through arbitrary or discriminatory conduct, we are in a relatively powerful position to shame: we can show a violation (the rights shortfall), the violator (the government or other actor through its arbitrary or discriminatory conduct), and the remedy (reversing that conduct). …

If one accepts that international human rights organizations like Human Rights Watch are at our most powerful in the realm of ESC rights when we focus on discriminatory or arbitrary conduct rather than matters of pure distributive justice, guidance for our ESC work is provided. An important part of our work should be to shape public opinion gradually so that it tends to see ESC issues not only in terms of distributive justice but also in terms of discriminatory or arbitrary conduct. For example, governments' failure to provide universal primary education would seem to be a classic case of distributive justice—there is not enough money to go around, so governments cannot provide education to all children. Human Rights Watch is considering a project that would focus on the practice of funding education in such circumstances through school fees. We would hope to argue that this is a discriminatory and arbitrary way of funding education because it has the foreseeable effect of excluding children from poor families. If we succeed in promoting this perspective, we hope to transform the debate from one on which international human rights organizations have had little if any impact to one in which our ability to stigmatize and hence shape public policy on education would be much enhanced.

Committee on Economic, Social and Cultural Rights, General Comment 3 (1990)

1. Article 2 is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by States parties to the Covenant. Those obligations include both what may be termed (following the work of the International Law Commission) obligations of conduct and obligations of result. While great emphasis has sometimes been placed on the difference between the formulations used in this provision and that contained in the equivalent article 2 of the International Covenant on Civil and Political Rights, it is not always recognized that there are also significant similarities. In particular, while the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect. Of these, two are of particular importance in understanding the precise nature of States parties obligations. One of these, which is dealt with in a separate General Comment, and which is to be considered by the Committee at its sixth session, is the "undertaking to guarantee" that relevant rights "will be exercised without discrimination ...".

2. The other is the undertaking in article 2 (1) "to take steps", which in itself, is not qualified or limited by other considerations. The full meaning of the phrase can also be gauged by noting some of the different language versions. In English the undertaking is "to take steps", in French it is "to act" ("s'engage … agir") and in Spanish it is "to adopt measures" ("a adoptar medidas"). Thus while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.

3. The means which should be used in order to satisfy the obligation to take steps are stated in article 2 (1) to be "all appropriate means, including particularly the adoption of legislative measures". The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable. For example, it may be difficult to combat discrimination effectively in the absence of a sound legislative foundation for the necessary measures. In fields such as health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9, legislation may also be an indispensable element for many purposes.

4. The Committee notes that States parties have generally been conscientious in detailing at least some of the legislative measures that they have taken in this regard. It wishes to emphasize, however, that the adoption of legislative measures, as specifically foreseen by the Covenant, is by no means exhaustive of the obligations of States parties. Rather, the phrase "by all appropriate means" must be given its full and natural meaning. While each State party must decide for itself which means are the most appropriate under the circumstances with respect to each of the rights, the "appropriateness" of the means chosen will not always be self-evident. It is therefore desirable that States parties' reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most "appropriate" under the circumstances. However, the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make.

5. Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable. The Committee notes, for example, that the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies. Indeed, those States parties which are also parties to the International Covenant on Civil and Political Rights are already obligated (by virtue of arts. 2 (paras. 1 and 3), 3 and 26) of that Covenant to ensure that any person whose rights or freedoms (including the right to equality and non-discrimination) recognized in that Covenant are violated, "shall have an effective remedy" (art. 2 (3) (a)). In addition, there are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain.

6. Where specific policies aimed directly at the realization of the rights recognized in the Covenant have been adopted in legislative form, the Committee would wish to be informed, inter alia, as to whether such laws create any right of action on behalf of individuals or groups who feel that their rights are not being fully realized. In cases where constitutional recognition has been accorded to specific economic, social and cultural rights, or where the provisions of the Covenant have been incorporated directly into national law, the Committee would wish to receive information as to the extent to which these rights are considered to be justiciable (i.e. able to be invoked before the courts). The Committee would also wish to receive specific information as to any instances in which existing constitutional provisions relating to economic, social and cultural rights have been weakened or significantly changed.

7. Other measures which may also be considered "appropriate" for the purposes of article 2 (1) include, but are not limited to, administrative, financial, educational and social measures.

8. The Committee notes that the undertaking "to take steps ... by all appropriate means including particularly the adoption of legislative measures" neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question. The Committee also notes the relevance in this regard of other human rights and in particular the right to development.

9. The principal obligation of result reflected in article 2 (1) is to take steps "with a view to achieving progressively the full realization of the rights recognized" in the Covenant. The term "progressive realization" is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'ˆtre, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.

10. On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties' reports the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'ˆtre. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps "to the maximum of its available resources". In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

11. The Committee wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints. The Committee has already dealt with these issues in its General Comment 1 (1989).

12. Similarly, the Committee underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes. In support of this approach the Committee takes note of the analysis prepared by UNICEF entitled "Adjustment with a human face: protecting the vulnerable and promoting growth, [a] the analysis by UNDP in its Human Development Report 1990 [b] and the analysis by the World Bank in the World Development Report 1990. [c]

13. A final element of article 2 (1), to which attention must be drawn, is that the undertaking given by all States parties is "to take steps, individually and through international assistance and cooperation, especially economic and technical ...". The Committee notes that the phrase "to the maximum of its available resources" was intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance. Moreover, the essential role of such cooperation in facilitating the full realization of the relevant rights is further underlined by the specific provisions contained in articles 11, 15, 22 and 23. With respect to article 22 the Committee has already drawn attention, in General Comment 2 (1990), to some of the opportunities and responsibilities that exist in relation to international cooperation. Article 23 also specifically identifies "the furnishing of technical assistance" as well as other activities, as being among the means of "international action for the achievement of the rights recognized ...".

14. The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 and the need for States parties to take full account of all of the principles recognized therein. It emphasizes that, in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries. In this respect, the Committee also recalls the terms of its General Comment 2 (1990).

Constitution of the Republic of South Africa (1996)

26. Housing

1. Everyone has the right to have access to adequate housing.
2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Section 27: Health care, food, water and social security

1. Everyone has the right to have access to

a. health care services, including reproductive health care;
b. sufficient food and water; and
c. social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.
  
2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

3. No one may be refused emergency medical treatment.

Constitutional Court of South Africa, Soobramoney v. Minister of Health (Kwazulu-Natal) (1997)

CHASKALSON P:

[1] The appellant, a 41 year old unemployed man, is a diabetic who suffers from ischaemic heart disease and cerebro-vascular disease which caused him to have a stroke during 1996.  In 1996 his kidneys also failed.  Sadly his condition is irreversible and he is now in the final stages of chronic renal failure.  His life could be prolonged by means of regular renal dialysis.  He has sought such treatment from the renal unit of the  Addington state hospital in Durban.  The hospital can, however, only provide dialysis treatment to a limited number of patients.  The renal unit has 20 dialysis machines available to it, and some of these machines are in poor condition.  Each treatment takes four hours and a further two hours have to be allowed for the cleaning of a machine, before it can be used again for other treatment.   Because of the limited facilities that are available for kidney dialysis the hospital has been unable to provide the appellant with the treatment he has requested.

[2] The reasons given by the hospital for this are set out in the respondent’s answering affidavit deposed to by Doctor Saraladevi Naicker, a specialist physician and nephrologist in the field of renal medicine who has worked at Addington Hospital for 18 years and who is currently the President of the South African Renal Society.   In her affidavit Dr Naicker says that Addington Hospital does not have enough resources to provide dialysis treatment for all patients suffering from chronic renal failure.  Additional dialysis machines and more trained nursing staff are required to enable it to do this, but the hospital budget does not make provision for such expenditure.  The hospital would like to have its budget increased but it has been told by the provincial health department that funds are not available for this purpose.

[3] Because of the shortage of resources the hospital follows a set policy in regard to the use of the dialysis resources.   Only patients who suffer from acute renal failure, which can be treated and remedied by renal dialysis are given automatic access to renal dialysis at the hospital.  Those patients who, like the appellant, suffer from chronic renal failure which is irreversible are not admitted automatically to the renal programme.  A set of guidelines has been drawn up and adopted to determine which applicants who have chronic renal failure will be given dialysis treatment.  According to the guidelines the primary requirement for admission of such persons to the dialysis programme is that the patient must be eligible for a kidney transplant.  A patient who is eligible for a transplant will be provided with dialysis treatment until an organ donor is found and a kidney transplant has been completed.

[4] The guidelines provide that an applicant is not eligible for a transplant unless he or she is “[f]ree of significant vascular or cardiac disease [but Soobramoney is not]. …

[5] The appellant has made arrangements to receive dialysis treatment from private hospitals and doctors, but his finances have been depleted and he avers that he is no longer able to afford such treatment.  In July 1997 he made an urgent application to the Durban and Coast Local Division of the High Court for an order directing the Addington Hospital to provide him with ongoing dialysis treatment  and interdicting the Respondent from refusing him admission to the renal unit of the hospital.  The appellant claimed that in terms of the 1996 Constitution the Addington Hospital is obliged to make dialysis treatment available to him.  …

[7] The appellant based his claim on section 27(3) of the 1996 Constitution which provides:…

[8] We live in a society in which there are great disparities in wealth.  Millions of people are living in deplorable conditions and in great poverty.  There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services.  These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring….

[11] What is apparent from these provisions is that the obligations imposed on the state by sections 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources.  Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet  these needs would not presently be capable of being fulfilled.  This is the context within which section 27(3) must be construed.

[12] The appellant urges us to hold that patients who suffer from terminal illnesses and require treatment such as renal dialysis to prolong their lives are entitled in terms of section 27(3) to be provided with such treatment by the state, and that the state is required to provide funding and resources necessary for the discharge of this obligation.

[13] The words “emergency medical treatment” may possibly be open to a broad construction which would include ongoing treatment of chronic illnesses for the purpose of prolonging life.  But this is not their ordinary meaning, and if this had been the purpose which section 27(3) was intended to serve, one would have expected that to have been expressed in positive and specific terms.

[14] Counsel for the appellant argued that section 27(3) should be construed consistently with the right to life entrenched in section 11 of the Constitution and that everyone requiring life-saving treatment who is unable to pay for such treatment herself or himself is entitled to have the treatment provided at a state hospital without charge. 

[15] This Court has dealt with the right to life in the context of capital punishment but it has not yet been called upon to decide upon the parameters of the right to life or its relevance to the positive obligations imposed on the state under various provisions of the bill of rights.   In India the Supreme Court has developed a jurisprudence around the right to life so as to impose positive obligations on the state in respect of the basic needs of its inhabitants.  Whilst the Indian jurisprudence on this subject contains valuable insights it is important to bear in mind that our Constitution is structured differently to the Indian  Constitution.  Unlike the Indian Constitution ours deals specifically in the bill of rights with certain  positive obligations imposed on the state, and where it does so, it is our duty to apply the obligations as formulated in the Constitution and not to draw inferences that would be inconsistent therewith.   …

[17] The purposive approach will often be one which calls for a generous interpretation to be given to a right to ensure that individuals secure the full protection of the bill of rights, but this is not always the case, and the context may indicate that in order to give effect to the purpose of a particular provision “a narrower or specific meaning” should be given to it.

[18] In developing his argument on the right to life counsel for the appellant relied upon a decision of a two-judge bench of the Supreme Court of India in Paschim Banga Khet Mazdoor Samity and others v State of West Bengal and another, where it was said:

“…  Article 21 imposes an obligation on the State to safeguard the right to life of every person.  Preservation of human life is thus of paramount importance.  The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life.  Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.”

These comments must be seen in the context of the facts of that case which are materially different to those of the present case.   It was a case in which constitutional damages were claimed.  The claimant had suffered serious head injuries and brain haemorrhage as a result of having fallen off a train.  He was taken to various hospitals and turned away, either because the hospital did not have the necessary facilities for treatment, or on the grounds that it did not have room to accommodate him.  As a result he had been obliged to secure the necessary treatment at a private hospital.  It appeared from the judgment that the claimant could in fact have been accommodated in more than one of the hospitals which turned him away and that the persons responsible for that decision had been guilty of misconduct.   This is precisely the sort of case which would fall within section 27(3).  It is one in which emergency treatment was clearly necessary.  The occurrence was sudden, the patient had no opportunity of making arrangements in advance for the treatment that was required, and there was urgency in securing the treatment in order to stabilise his condition.  The treatment was available but denied.

[19] …  If section 27(3) were to be construed in accordance with the appellant’s contention it would make it substantially more difficult for the state to fulfill its primary obligations under sections 27(1) and (2) to provide health care services to “everyone” within its available resources.  It would also have the consequence of prioritising the treatment of terminal illnesses over other forms of medical care and would reduce the resources available to the state for purposes such as preventative health care and medical treatment for persons suffering from illnesses or bodily infirmities which are not life threatening.   In my view much clearer language than that used in section 27(3) would be required to justify such a conclusion….

[21] The applicant suffers from chronic renal failure.  To be kept alive by dialysis he would require such treatment two to three times a week.   This is not an emergency which calls for immediate remedial treatment.   It is an ongoing state of affairs resulting from a deterioration of the applicant’s renal function which is incurable.  In my view section 27(3) does not apply to these facts.

[22] The appellant’s demand to receive dialysis treatment at a state hospital must be determined in accordance with the provisions of sections 27(1) and (2) and not section 27(3).  These sections entitle everyone to have access to health care services provided by the state “within its available resources”.

[23] In the Court a quo Combrinck J held that “[i]n this case the respondent has conclusively proved that there are no funds available to provide patients such as the applicant with the necessary treatment.”  This finding was not disputed by the appellant, but it was argued that the state could make additional funds available to the renal clinic and that it was obliged to do so to enable the clinic to provide life saving treatment to the appellant and others suffering from chronic renal failure.

[24] At present the Department of Health in KwaZulu-Natal does not have sufficient funds to cover the cost of the services which are being provided to the public.  In 1996–1997 it overspent its budget by R152 million, and in the current year it is anticipated that the overspending will be R700 million rand unless a serious cutback is made in the services which it provides.  The renal unit at the Addington Hospital has to serve the whole of KwaZulu-Natal and also takes patients from parts of the Eastern Cape. There are many more patients suffering from chronic renal failure than there are dialysis machines to treat such patients.  This is a nation-wide problem and resources are stretched in all renal clinics throughout the land.  Guidelines have therefore been established to assist the persons working in these clinics to make the agonising choices which have to be made in deciding who should receive treatment, and who not.  These guidelines were applied in the present case. 

[25] By using the available dialysis machines in accordance with the guidelines more patients are benefited than would be the case if they were used to keep alive persons with chronic renal failure, and the outcome of the treatment is also likely to be more beneficial because it is directed to curing patients, and not simply to maintaining them in a chronically ill condition.  It has not been suggested that these guidelines are unreasonable or that they were not applied fairly and rationally when the decision was taken by the Addington Hospital that the appellant did not qualify for dialysis. …

[28] The appellant’s case must be seen in the context of the needs which the health services have to meet, for if treatment has to be provided to the appellant it would also have to be provided to all other persons similarly placed.  …  It is estimated that the cost to the state of treating one chronically ill patient by means of renal dialysis provided twice a week at a state hospital is approximately R60 000 per annum.  If all the persons in South Africa who suffer from chronic renal failure were to be provided with dialysis treatment – and many of them, as the appellant does, would require treatment three times a week – the cost of doing so would make substantial inroads into the health budget.  And if this principle were to be applied to all patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased to the prejudice of other needs which the state has to meet. 

[29] The provincial administration which is responsible for health services in KwaZulu-Natal has to make decisions about the funding that should be made available for health care and how such funds should be spent.  These choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met.  A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.

[30] Although the problem of scarce resources is particularly acute in South Africa this is not a peculiarly South African problem.   It is a problem which hospital administrators and doctors have had to confront in other parts of the world, and in which they have had to take similar decisions.  In his judgment in this case Combrinck J refers to decisions of the English courts in which it has been held to be undesirable for a court to make an order as to how scarce medical resources should be applied, and to the danger of making any order that the resources be used for a particular patient, which might have the effect of denying those resources to other patients to whom they might more advantageously be devoted…

[31] One cannot but have sympathy for the appellant and his family, who face the cruel dilemma of having to impoverish themselves in order to secure the treatment that the appellant seeks in order to prolong his life.  The hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the state to provide him with the treatment.  But the state’s resources are limited and the appellant does not meet the criteria for admission to the renal dialysis programme.  Unfortunately, this is true not only of the appellant but of many others who need access to renal dialysis units or to other health services.  There are also those who need access to housing, food and water, employment opportunities, and social security.  These too are aspects of the right to

“. . . human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity.”

The state has to manage its limited resources in order to address all these claims.  There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society….

Constitutional Court of South Africa, Government of the Republic of South Africa v. Grootboom, 2001(1) SA 46 (CC) (2001)

YACOOB J:

E. Obligations imposed upon the state by section 26
i) Approach to interpretation

“We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.”^[24]

ii) The relevant international law and its impact

“. . . public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which [the Bill of Rights] can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and, in appropriate cases, reports of specialised agencies such as the International Labour Organisation, may provide guidance as to the correct interpretation of particular provisions of [the Bill of Rights].”(Footnotes omitted)

The relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary. However, where the relevant principle of international law binds South Africa,^[28] it may be directly applicable.

“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

This Article must be read with Article 2.1 which provides:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

(a) The Covenant provides for a right to adequate housing while section 26 provides for the right of access to adequate housing.
(b) The Covenant obliges states parties to take appropriate steps which must include legislation while the Constitution obliges the South African state to take reasonable legislative and other measures.

Reasonable legislative and other measures

Progressive realisation of the right

F. Description and evaluation of the state housing programme

CCSA, Mazibuko v. City of Johannesburg, SA 1 (CC) (2009), excerpt

Introduction

[1] This application for leave to appeal against a judgment of the Supreme Court of Appeal raises, for the first time in this Court, the proper interpretation of section 27(1)(b) of the Constitution which provides that everyone has the right to have access to sufficient water.  Cultures in all parts of the world acknowledge the importance of water.  Water is life.  Without it, nothing organic grows.  Human beings need water to drink, to cook, to wash and to grow our food.  Without it, we will die.  It is not surprising then that our Constitution entrenches the right of access to water.

[2] Although rain falls everywhere, access to water has long been grossly unequal.  This inequality is evident in South Africa.  While piped water is plentifully available to mines, industries, some large farms and wealthy families, millions of people, especially women, spend hours laboriously collecting their daily supply of water from streams, pools and distant taps.  In 1994, it was estimated that 12 million people (approximately a quarter of the population), did not have adequate access to water.  By the end of 2006, this number had shrunk to 8 million, with 3,3 million of that number having no access to a basic water supply at all.  Yet, despite the significant improvement in the first fifteen years of democratic government, deep inequality remains and for many the task of obtaining sufficient water for their families remains a tiring daily burden.  The achievement of equality, one of the founding values of our Constitution, will not be accomplished while water is abundantly available to the wealthy, but not to the poor….

Parties

[3] The applicants are five residents of Phiri in Soweto.  They are poor people living in separate households.  The first applicant, Mrs Lindiwe Mazibuko, who has sadly passed away since the litigation commenced, lived in a brick house on her mother’s property.  There were two informal dwellings in the backyard of her mother’s home for which the tenants paid low rentals.  Altogether 20 people lived on the stand.  …

Issues

[4] The case concerns two major issues: the first is whether the City’s policy in relation to the supply of free basic water, and particularly, its decision to supply 6 kilolitres of free water per month to every accountholder in the city (the Free Basic Water policy) is in conflict with section 27 of the Constitution or section 11 of the Water Services Act.  …

[5] The case needs to be understood in the context of the challenges facing Johannesburg as a City.  The City is, in terms of population, the second fastest growing city in the country and according to Census 2001, (the last Census) is home to approximately 3,2 million people living in about a million households.  Half of these households are very poor with an income of less than R1 600 per month.  Just under a fifth of the households are located in informal settlements.  A similar proportion has no access to basic sanitary services, and a tenth of all the households have no access to a tap providing clean water within 200 metres of their home.  It can be seen that there is much to be done to “[i]mprove the quality of life of all citizens”, an important goal set by the preamble of our Constitution. …


The Free Basic Water policy

[6] The applicants raised four arguments as to why the City’s Free Basic Water policy should be declared invalid:
(a) The applicants contend that the Court should determine a quantified amount of water as “sufficient water” within the meaning of section 27 of the Constitution and that this amount is 50 litres per person per day.  This contention requires the Court to consider the proper relationship between section 27(1)(b) and 27(2).  …
(c) The applicants contend that the allocation of 6 kilolitres of free water per stand per month by the City is unreasonable within the meaning of section 27 of the Constitution …  The applicants point to the following considerations as evidence of unreasonableness: that the amount was based on a misconception; it is insufficient; it is inflexible; it allocates 6 kilolitres per month to both rich and poor; and it allocates per stand rather than per person. …

The role of courts in determining the content of social and economic rights: the proper interpretation of section 27(1)(b) and 27(2) of the Constitution

[7] It will be helpful to start by considering the relationship between section 27(1)(b) and section 27(2) of the Constitution.  In section 27(1), the Constitution creates a right of access to sufficient water.  As with all rights, to understand the nature of the right, we need to understand the nature of the obligations imposed by it.  What obligations does it impose and upon whom?  …

[8] Traditionally, constitutional rights (especially civil and political rights) are understood as imposing an obligation upon the state to refrain from interfering with the exercise of the right by citizens (the so-called negative obligation or the duty to respect).  As this Court has held, most notably perhaps in Jaftha v Schoeman, social and economic rights are no different.  The state bears a duty to refrain from interfering with social and economic rights just as it does with civil and political rights.

[9] The primary question in this case, though, is the extent of the state’s positive obligation under section 27(1)(b) and section 27(2).  This issue has been addressed by this Court in at least two previous decisions: Grootboom and Treatment Action Campaign No 2.  In Grootboom, the Court had to consider whether section 26 (the right to housing) entitles citizens to approach a court to claim a house from the state. Such an interpretation of section 26 would imply a directly enforceable obligation upon the state to provide every citizen with a house immediately.

[10] This Court concluded that section 26 does not impose such an obligation.  Instead, the Court held that the scope of the positive obligation imposed upon the state by section 26 is carefully delineated by section 26(2).  Section 26(2) provides explicitly that the state must take reasonable legislative and other measures progressively to realise the right of access to adequate housing within available resources.  In Treatment Action Campaign No 2, this Court repeated this in the context of section 27(1)(a), the right of access to health care services:

“We therefore conclude that section 27(1) of the Constitution does not give rise to a self-standing and independent positive right enforceable irrespective of the considerations mentioned in section 27(2).  Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the State to ‘respect, protect, promote and fulfil’ such rights.”

[11] Applying this approach to section 27(1)(b), the right of access to sufficient water, coupled with section 27(2), it is clear that the right does not require the state upon demand to provide every person with sufficient water without more; rather it requires the state to take reasonable legislative and other measures progressively to realise the achievement of the right of access to sufficient water, within available resources.

[12] The applicants argued that the Court should determine the content of the right in section 27(1)(b) by quantifying the amount of water sufficient for dignified life, and urged that the appropriate amount is 50 litres per person per day.  They further contended that the Court should hold that this is the content of the section 27(1)(b) right which the Court should declare and that the Court should then determine whether the state acted reasonably in seeking to achieve the progressive realisation of this right. 

[13] This argument is similar to that advanced in earlier cases in this Court asserting that every social and economic right has a minimum core, a basic content which must be provided by the state.  In international law, the concept of “minimum core” originates in General Comment 3 (1990) of the United Nations Committee on Economic, Social and Cultural Rights …

[14] In Grootboom, this Court rejected the argument that the social and economic rights in our Constitution contain a minimum core which the state is obliged to furnish, the content of which should be determined by the courts.  …

[15] In Treatment Action Campaign No 2, as well, this Court refused to accept that section 27 of the Constitution had a minimum core content.  It reasoned:

“Although Yacoob J indicated that evidence in a particular case may show that there is a minimum core of a particular service that should be taken into account in determining whether measures adopted by the State are reasonable, the socio-economic rights of the Constitution should not be construed as entitling everyone to demand that the minimum core be provided to them.  Minimum core was thus treated as possibly being relevant to reasonableness under section 26(2), and not as a self-standing right conferred on everyone under section 26(1).” (My emphasis) (Footnotes omitted.)

[16] A little further on the Court added:

“Courts are ill-suited to adjudicate upon issues where Court orders could have multiple social and economic consequences for the community.  The Constitution contemplates rather a restrained and focused role for the Courts, namely, to require the State to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation.  Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets.  In this way, the judicial, legislative and executive functions achieve appropriate constitutional balance.”

[17] The applicants’ argument that this Court should determine a quantity of water which would constitute the content of the section 27(1)(b) right is, in effect, an argument similar to a minimum core argument though it is more extensive because it goes beyond the minimum.  The applicants’ argument is that the proposed amount (50 litres per person per day) is what is necessary for dignified human life; they expressly reject the notion that it is the minimum core protection required by the right.  Their argument is thus that the Court should adopt a quantified standard determining the content of the right not merely its minimum content.  The argument must fail for the same reasons that the minimum core argument failed in Grootboom and Treatment Action Campaign No 2.

[18] Those reasons are essentially twofold.  The first reason arises from the text of the Constitution and the second from an understanding of the proper role of courts in our constitutional democracy.  As appears from the reasoning in both Grootboom and Treatment Action Campaign No 2, section 27(1) and (2) of the Constitution must be read together to delineate the scope of the positive obligation to provide access to sufficient water imposed upon the state.  That obligation requires the state to take reasonable legislative and other measures progressively to achieve the right of access to sufficient water within available resources.  It does not confer a right to claim “sufficient water” from the state immediately.

[19] As counsel for the Minister argued this understanding of the scope of the positive obligation borne by the state in terms of section 27 is affirmed by the duty of progressive realisation.  The fact that the state must take steps progressively to realise the right implicitly recognises that the right of access to sufficient water cannot be achieved immediately.  That the Constitution should recognise this is not surprising.

[20] At the time the Constitution was adopted, millions of South Africans did not have access to the basic necessities of life, including water.  The purpose of the constitutional entrenchment of social and economic rights was thus to ensure that the state continue to take reasonable legislative and other measures progressively to achieve the realisation of the rights to the basic necessities of life.  It was not expected, nor could it have been, that the state would be able to furnish citizens immediately with all the basic necessities of life.  Social and economic rights empower citizens to demand of the state that it acts reasonably and progressively to ensure that all enjoy the basic necessities of life.  In so doing, the social and economic rights enable citizens to hold government to account for the manner in which it seeks to pursue the achievement of social and economic rights.

[21] Moreover, what the right requires will vary over time and context.  Fixing a quantified content might, in a rigid and counter-productive manner, prevent an analysis of context.  The concept of reasonableness places context at the centre of the enquiry and permits an assessment of context to determine whether a government programme is indeed reasonable.

[22] Secondly, ordinarily it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right.  This is a matter, in the first place, for the legislature and executive, the institutions of government best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights.  Indeed, it is desirable as a matter of democratic accountability that they should do so for it is their programmes and promises that are subjected to democratic popular choice….

[23] In Grootboom and Treatment Action Campaign No 2, the focus of the Court’s reasoning was whether the challenged government policies were reasonable.  In both cases the Court identified deficiencies which rendered the policies unreasonable.  In determining an appropriate remedy in each case, the Court took care not to draft policies of its own and impose them on government.  So, in Grootboom, the Court did not order that each applicant be provided with a house, but required government to revise its housing programme to include “reasonable measures . . . to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.”

[24] In Treatment Action Campaign No 2, the Court did order the government to make Nevirapine available at clinics subject to certain conditions.  But it did so because government itself had decided to make Nevirapine available, though on a restricted basis, and the Court found that there was no reasonable ground for that restricted basis.  Moreover Nevirapine was, at least for a period, being made freely available to government by its manufacturer.  In a sense, then, all the Court did was to render the existing government policy available to all.  However, the Court made it expressly clear that government might revise and amend its policies if it needed to do so.  Thus, the Court expressly provided that its order did not “preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV.”

[25] The orders made in these two cases illustrate the Court’s institutional respect for the policy-making function of the two other arms of government.  The Court did not seek to draft policy or to determine its content.  Instead, having found that the policy adopted by government did not meet the required constitutional standard of reasonableness, the Court, in Grootboom, required government to revise its policy to provide for those most in need and, in Treatment Action Campaign No 2, to remove anomalous restrictions.

[26] The Constitution envisages that legislative and other measures will be the primary instrument for the achievement of social and economic rights.  Thus it places a positive obligation upon the state to respond to the basic social and economic needs of the people by adopting reasonable legislative and other measures.  By adopting such measures, the rights set out in the Constitution acquire content, and that content is subject to the constitutional standard of reasonableness. 

[27] Thus the positive obligations imposed upon government by the social and economic rights in our Constitution will be enforced by courts in at least the following ways.  If government takes no steps to realise the rights, the courts will require government to take steps.  If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness.  From Grootboom, it is clear that a measure will be unreasonable if it makes no provision for those most desperately in need. If government adopts a policy with unreasonable limitations or exclusions, as in Treatment Action Campaign No 2, the Court may order that those are removed.  Finally, the obligation of progressive realisation imposes a duty upon government continually to review its policies to ensure that the achievement of the right is progressively realised. …

The reasonableness of the City’s Free Basic Water policy

[28] The applicants argue that the policy is unreasonable.  They identify the following considerations as supporting this submission: the fact that 6 kilolitres per month is allocated to both rich and poor; the fact that the amount is allocated per stand rather than per person; the fact that the 6 kilolitre free water policy was based on a misconception in that the City did not consider that it was bound to provide any free water to citizens; that the 6 kilolitre amount is insufficient for large households and finally that the 6 kilolitre amount is inflexible.

Rich and Poor
[29] The first question is whether it is unreasonable for the City to provide the 6 kilolitres of free water to rich and poor alike.  The City asserts that the fact that the benefit is afforded to all is reasonable for two reasons.  First, it asserts that the rising block tariff structure means that wealthier consumers, who tend to use more water, are charged more for their heavier water usage.  The effect of this is that the original 6 kilolitres that is provided free is counterweighed by the extent to which heavy water users cross-subsidise the free allocation.  Secondly, the City points to the difficulty of establishing a method to target those households who are deserving of free water.  This is a matter to which I return in a moment. In my view, these reasons are persuasive and rebut the charge of unreasonableness on this ground.

Per household versus per person allowance
[30] Secondly, the applicants argue that the policy is unreasonable because it is formulated as 6 kilolitres per household (or accountholder) rather than as a per person allowance.  Again the City presents cogent evidence that it is difficult to establish how many people are living on one stand at any given time; and that it is therefore unable to base the policy on a per person allocation.  This evidence seems indisputable.  The continual movement of people within the city means that it would be an enormous administrative burden, if possible at all, for the City to determine the number of people on any given stand sufficiently regularly to supply a per person daily allowance.  The applicants’ argument on this basis too must fail.

Policy based on a misconception
[31] The third argument, which the Supreme Court of Appeal upheld, is that the policy is unreasonable because the City considered that it was not under an obligation to provide a specified amount of free basic water.  What is clear from the discussion above is that the City is not under a constitutional obligation to provide any particular amount of free water to citizens per month.  It is under a duty to take reasonable measures progressively to realise the achievement of the right.  This the City accepts.  The City is bound as a water service provider by the provisions of the National Water Standards Regulations and the Tariff Regulations, both promulgated in terms of the Water Services Act but it cannot be said it has acted inconsistently with these regulations.  It cannot be said therefore that the policy of the City was based on a misconception as to its constitutional obligations, and I am unable to endorse the reasoning of the Supreme Court of Appeal in this regard.  The applicants’ argument on this score must also fail….

Inflexibility of the policy
[32] The final argument raised by the applicants is that the quantity selected by the City was inflexible in that it did not, at least originally, provide for any individualised variation to avoid the hardship that larger households or households with special needs might face in the light of the fixed free basic water allocation….
 
[33] Initially, indigent households were not afforded a further free water allocation under the new policy although the extension of the free water allocation to 10 kilolitres per month for registered indigent households was under discussion.  On 6 December 2006, five months after the applicants launched their challenge, the City Mayoral Committee adopted interim measures to take effect from March 2007.  In terms of the measures, registered indigent households would receive an additional 4 kilolitres of free water per month.  The applicants acknowledge that those registered as indigent households received the additional 4 kilolitre allocation from July 2007.

[34] The Constitution requires that the state adopt reasonable measures progressively to realise the right of access to sufficient water.  Although the free water policy did not contain any provision for flexibility when it was introduced in 2001, the record makes plain that the City was continually reconsidering its policy and investigating ways to ensure that the poorest inhabitants of the City gained access not only to water, but also to other services, such as electricity, sanitation and refuse removal.  The extremely informative and candid answering affidavits lodged by the City make it plain that for the City the task was a challenging one, both administratively and financially. 

[35] If the City had not continued to review and refine its Free Basic Water policy after it was introduced in 2001, and had taken no steps to ensure that the poorest households were able to obtain an additional allocation, it may well have been concluded that the policy was inflexible and therefore unreasonable.  This would have been so, in particular, given the evidence that poorer households are also often larger than average and thus most prejudiced by the 6 kilolitre cap.  However, the City has not set its policy in stone.  Instead, it has engaged in considerable research and continually refined its policies in the light of the findings of its research.

[36] It may well be, as the applicants urge, that the City’s comprehensive and persistent engagement has been spurred by the litigation in this case.  If that is so, it is not something to deplore.  If one of the key goals of the entrenchment of social and economic rights is to ensure that government is responsive and accountable to citizens through both the ballot box and litigation, then that goal will be served when a government respondent takes steps in response to litigation to ensure that the measures it adopts are reasonable, within the meaning of the Constitution.  The litigation will in that event have attained at least some of what it sought to achieve….

Litigating social and economic rights
[37] The outcome of the case is that the applicants have not persuaded this Court to specify what quantity of water is “sufficient water” within the meaning of section 27 of the Constitution.  Nor have they persuaded the Court that the City’s policy is unreasonable.  The applicants submitted during argument that if this were to be the result, litigation in respect of the positive obligations imposed by social and economic rights would be futile.  It is necessary to consider this submission.

[38] The purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of government to account through litigation.  In so doing, litigation of this sort fosters a form of participative democracy that holds government accountable and requires it to account between elections over specific aspects of government policy.

[39] When challenged as to its policies relating to social and economic rights, the government agency must explain why the policy is reasonable.  Government must disclose what it has done to formulate the policy: its investigation and research, the alternatives considered, and the reasons why the option underlying the policy was selected.  The Constitution does not require government to be held to an impossible standard of perfection.  Nor does it require courts to take over the tasks that in a democracy should properly be reserved for the democratic arms of government.  Simply put, through the institution of the courts, government can be called upon to account to citizens for its decisions.  This understanding of social and economic rights litigation accords with the founding values of our Constitution and, in particular, the principles that government should be responsive, accountable and open.

[40] Not only must government show that the policy it has selected is reasonable, it must show that the policy is being reconsidered consistent with the obligation to “progressively realise” social and economic rights in mind.  A policy that is set in stone and never revisited is unlikely to be a policy that will result in the progressive realisation of rights consistently with the obligations imposed by the social and economic rights in our Constitution.

[41] This case illustrates how litigation concerning social and economic rights can exact a detailed accounting from government and, in doing so, impact beneficially on the policy-making process…

David Landau, “The Reality of Social Rights Enforcement,” Harvard International Law Journal 53 (2012), excerpt (footnotes omitted)

Introduction

For all practical purposes, the debate about whether to include social rights in constitutions is over. Social rights are rights of citizens to receive services such as food, health care, housing, and social security. The U.S. Constitution does not include any of these rights, and most American scholars have long taken a position against their inclusion. But the American position against social rights is an outlier; there is now a “near consensus” (outside of the United States) that countries should include such rights in their constitutions.¹ Moreover, there is an increasingly vibrant and varied jurisprudence on what these rights mean and how they should be enforced. Social rights are not mere paper rights; courts around the world are actively enforcing them.²

However, there is a basic disconnect between the theoretical claims being made about the enforcement of social rights and the empirical realities of their enforcement. In the theoretical literature, scholars equate a robust enforcement of social rights with the advancement of the prospects of marginalized groups--by ensuring that citizens have minimum levels of things like food and shelter, the courts will improve the lot of the poorest members of society. Yet much of social rights enforcement is aimed not at the poor, but instead at middle- and upper-class groups. When courts in the developing world prevent pension reforms or salary cuts that would affect civil servants, when they order the state to give an expensive medical treatment or pay a pension to a middle-class professional, or when they force the state to raise subsidies for homeownership, they are deciding cases that help mainstream rather than marginalized groups.

One aim of this Article is simply to marshal empirical evidence and explanations showing that most of the literature mischaracterizes what social rights enforcement is--courts can aggressively enforce these rights and yet do little to affect social transformation.³ … It suggests at least two major reasons for these trends. One important factor is the nature of the judiciary. Despite the extensive literature in constitutional theory on counter-majoritarianism, courts are actually pro-majoritarian actors in many circumstances. Indeed, they are often populist actors--they sometimes favor middle class groups with social rights like food and housing precisely in order to gain political support. Another reason for this trend is that courts are likely to choose certain remedies because of ideology and resource constraints, and these remedies are particularly ineffective at targeting lower class groups.

Thus, the second major aim of this Article is to reorient the very rich, but in my view misguided, debate about how social rights should be enforced. Scholars led by Mark Tushnet and Cass Sunstein have argued that “weak form” or dialogical enforcement of social rights, whereby courts point out political failures to fulfill these rights but generally leave the remedy to the discretion of the political branches, is the best way to balance a desire to enforce social rights and the legitimacy and capacity strains that such enforcement places on courts.⁴ The dialogue-based approach has not really been used outside of South Africa, and in that country it has not accomplished much. Systematic failures in both legislative and bureaucratic politics in developing countries make dialogic approaches unlikely to work in those countries--the intended recipient of the dialogue is unlikely to respond effectively.

Instead, courts have relied mainly on two models of social rights enforcement: (1) in an individualized model, courts give a single remedy to a single plaintiff for provision of a treatment, pension, or subsidy, but tend to deny systematic remedies that would affect larger groups; (2) in a negative injunction model, courts strike down benefit cuts or other laws that change the social benefits being given in the status quo. Courts focus on these two models because they look most like more traditional modes of judicial review. However, both models have a very pronounced tilt towards higher income groups; they are unlikely to do much for poorer citizens. Moreover, they appear to do little to improve bureaucratic performance.

All of this argues for remedial innovation, but toward stronger forms of review and judicial supervision, not weaker ones as argued by Tushnet, Sunstein, and others. Experience in both Colombia and India has shown that more aggressive, unconventional enforcement strategies--especially the judicious use of structural injunctions--can more effectively target social rights' interventions towards the poor. Moreover, these strategies may be more effective at strengthening civil society groups and at inducing important changes in the bureaucracy. The conclusion is not that structural injunctions are the right answer to all social rights problems; they will fail in many political contexts, and the resource costs that they will place on courts may be too high to pay in many circumstances. It is that there is a desperate need to innovate with aggressive remedies if social rights are to live up to their transformative promise….

I. The Existing Debate

A. The Debate on Inclusion of Social Rights in Constitutions

…Still, the debate about the appropriateness of these [economic and social] rights has continued to be important to scholars and constitutional designers. An important group of scholars, particularly in the United States, continues to defend the position that social rights have no place in a constitution. The major arguments here revolve around the undesirability of judicial enforceability of these rights, and focus on two prongs: first, that judges lack the democratic legitimacy to enforce these rights, and second, that they lack the institutional capacity.¹⁰ The argument begins by positing that social rights are a subspecies of positive rights, which entail the right to receive something from the state rather than merely requiring the state to leave one alone.¹¹ Enforcement of these rights might require, then, that the judge order the state to provide people with goods or services, which would raise the specter of “the courts running everything--raising taxes and deciding how the money should be spent.”¹² Judges lack the democratic legitimacy to carry out this kind of policymaking, and they lack the capacity to do so. Courts are unsuited to decide where to spend the state's limited resources, and they will have trouble giving precise content to vague rights of the sort of the right to food or housing.¹³ Michelman's observation that courts perform poorly when adjudicating “polycentric” issues is particularly applicable to socio-economic rights; they have an inherent “[r]aging indeterminacy.”¹⁴ The result of all this is that courts are unlikely, in practice, to enforce socio-economic rights: they will be unwilling to incur the wrath of the political branches or to fulfill undertakings located so far beyond their own capacity.¹⁵ Courts will auto-limit in order to avoid sanctions from other branches of government or from the public: “It is futile to rely on the judiciary to provide basic welfare for the disadvantaged, if the political branches are unwilling to do so.”¹⁶

These arguments have been attacked by a different group of scholars, who argue that social rights are actually not different from traditional, first-generation rights, and can and should be enforced by courts. The distinction, these scholars argue, may even be “meaningless.”¹⁷ These scholars argue that social rights have a negative dimension as well as a positive dimension: enforcement may often require that courts enjoin states from taking some action that threatens social rights (for example, industrial development that threatens the right to health, or forced evictions from slums that threaten the right to housing).¹⁸ They also argue that enforcement of civil and political rights may often require the spending of significant amounts of state resources--for example, the right to a fair trial requires the state to spend significant amounts of money.¹⁹

On the legitimacy and capacity points, these commentators note that the enforcement of traditional civil and political rights can also involve the court in complex remedies (the U.S. school desegregation and prison reform cases are examples), and that courts can (albeit perhaps awkwardly) develop the capacity to deal with these sorts of cases.²⁰ Finally, these scholars note that courts can undertake many types of social rights enforcement without provoking unduly complex issues of enforcement or policy line-drawing--in many cases, the court can provide an individualized remedy to a single plaintiff, which obviates the need to make a large-scale intervention in public policy.²¹

The truth in this debate is almost certainly somewhere in between. That is, the critics of the conventional view are right that social rights enforcement is not always and inevitably different from negative rights enforcement. By restricting themselves to certain kinds of cases and certain remedial techniques, courts can assimilate enforcement of social rights to enforcement of more traditional kinds of rights. But there is often a difference of degree. As Tushnet notes, “it is not that recognizing social and economic rights would have budgetary consequences, while recognizing other constitutional rights does not . . . . Protecting background private law rights and first- and second-generation constitutional rights is cheap, though not free. Protecting social and economic rights is expensive.”²² Moreover, while negative injunctions and individualized remedies could likely enforce some kinds of social rights, the enforcement of many kinds of rights are likely to require the creation of new programs.²³ These tasks are difficult for courts to perform, and they may refuse to perform them because of a perceived lack of capacity or legitimacy. As I explain in more detail below, the fact that social rights have some aspects that are more easily assimilated to traditional rights enforcement, and other facets that would require courts to undertake radical tasks, is important. It means that in practice, courts are likely to enforce social rights either by issuing negative injunctions or by giving individualized remedies to individual plaintiffs. Such methods of enforcement will be least likely to get courts into serious trouble.

B. The Debate on Enforcement and the South African Obsession

Most of the more recent work in the field has focused on the specific question of how social rights should be enforced rather than the older question of whether they should be included in constitutional texts in the first place. Some critics of social rights argued that if social rights were actually put into constitutional texts, courts would be unlikely to actually do anything with them.²⁴ Understanding their lack of democratic legitimacy and institutional capacity, courts would merely ignore these rights. Empirical experience has shown this observation to be false--courts have found a variety of approaches to enforce these rights. However, scholars have emphasized a clear tension between the desire to enforce socio-economic rights once they find their way into the text and the strains on both capacity and democratic legitimacy that courts may feel if they aggressively enforce them.

The theoretical debate, however, has focused almost entirely on a single country (and largely on a single case). In the famous Grootboom decision, the South African Constitutional Court held that the political branches in South Africa had violated the constitution by failing to develop a housing plan that would meet the immediate needs of the poorest people most in need of assistance, like the plaintiff.²⁵ But the Court refused to order an individualized remedy for the plaintiff, such as an order that the state provide her with housing--the constitution did not create a right to housing “immediately upon demand.”²⁶ Nor did the Court give the details of such a plan and require the political branches to adopt it or try to implement the plan itself. Instead, the Court merely stated that the political branches had the obligation to “devise and implement a coherent, coordinated programme” and that a “reasonable” part of the total housing budget had to be reserved for those in desperate, immediate need of housing.²⁷ The underlying concerns of the Court appeared to be the ones of the critics of social rights--the Court was concerned that it would lack the legitimacy and capacity to issue a stronger order.²⁸

A prominent group of American constitutionalists lauded the decision as a reconciliation of two imperatives previously thought mutually exclusive by most--the enforcement of the detailed social rights now found in most constitutions and the assurance that courts do not overstep their bounds of democratic legitimacy and capacity. Thus, Mark Tushnet wrote that the Court's work constituted a new kind of judicial review, “weak form review,” that allowed courts to judicially enforce these rights without involving them in complex public policy decisions or letting them run roughshod over the legislature.²⁹ In other words, the Court gave the right to housing some judicially enforceable content, but at the same time, gave “legislatures an extremely broad range of discretion about providing” the right.³⁰ In a similar vein, Cass Sunstein wrote that the Court had effectively “steer[ed] a middle course” between holding socio-economic rights non-justiciable and holding them to “create an absolute duty” to provide housing or food or health care for everyone who needs it.³¹ Instead, the Court had enforced the right to “promot[e] a certain kind of deliberation . . . as a result of directing political attention to interests that would otherwise be disregarded in ordinary political life.”³²

More recent work has critiqued the positions of Sunstein and Tushnet. A large group of both South African and American scholars has argued that weak-form enforcement, as exemplified by Grootboom, did not work--the legislature did not produce the plan that the Court requested, and the case did virtually nothing to actually advance the right to housing.³³ Many of these academics have argued that Grootboom had more or less the right idea but needed to be ratcheted up: the remedy needed to be made a little less “weak” in order to be effective.³⁴

In a series of recent articles, Brian Ray notes that the South African Constitutional Court has abandoned the Grootboom approach for another tactic that Ray calls engagement.³⁵ The core of the engagement remedy is that the Court orders the state to negotiate with the plaintiffs so that a satisfactory agreement can hopefully be reached. … Ray argues that engagement, which the Court has also used in subsequent cases, is an alternative to Grootboom that also manages the tension between the need to enforce these rights and the capacity and legitimacy problems that courts feel when they enforce them. Engagement “falls somewhat short of the call by the Constitutional Courts' critics for full-fledged judicial interpretation and enforcement, but the same features that make engagement something less than strong court enforcement also enhance its legitimacy.”³⁹ As with Grootboom, however, there are real questions about the general effectiveness of the engagement remedy, at least as it is currently used by the South African Constitutional Court--engagement has failed in several subsequent cases.⁴⁰

C. The Reality of Social Rights Enforcement

Critics of social rights argued that courts would probably respond to the constitutionalization of social rights by declining to enforce those rights. Tushnet, Sunstein, and Ray argued that courts should relieve the tension between enforcement of social rights and democracy/capacity issues by adopting the “weak form” or dialogical review used in Grootboom or an engagement remedy like the one used in City of Johannesburg.⁴¹ But neither approach seems to function well or to describe accurately the majority of social rights enforcement occurring around the world.⁴² The critics were wrong to suggest that social rights enforcement would not occur; in reality, courts have found a variety of ways to give content to these rights. But the South African solutions seem deeply bound up with the political situation and legal culture of that country and have not been used anywhere else.⁴³

In reality, courts have found other ways to manage the tension between the enforcement of social rights and the capacity and legitimacy costs perceived to go along with that enforcement. Many courts appear to rely upon an individualized enforcement model--when an individual plaintiff comes to the court asking for provision of some particular medicine or treatment, they grant relief to that individual plaintiff.⁴⁴ This model relieves the tension noted above by providing relief to only a single plaintiff, thus avoiding complex management issues and making it appear that the court is not intervening massively in public policy. Even though the aggregate affect of these decisions on the public budget can be very large, the individual decisions appear to be familiar court-like work; the court is simply deciding whether one plaintiff is entitled to a remedy against one defendant. A second way in which courts manage the tension is by issuing negative injunctions striking down a law and maintaining the status quo, rather than issuing positive orders forcing the state to provide a service.⁴⁵ Again, by doing this, the courts are assimilating social rights enforcement into the enforcement of traditional first-generation rights--it is issuing a merely negative remedy for the right.

Both of these remedies allow courts to carry out social rights enforcement relatively securely and without worrying that they will be seen as overreaching beyond the traditional tasks of courts. But there is a significant cost--both tools are heavily tilted toward middle class and upper income groups rather than poor plaintiffs. In other words, in much of the world social rights enforcement is vibrant, but accrues to the benefit of higher class groups rather than those social groups most in need.⁴⁶ With individualized enforcement, this occurs because individual middle class rather than poor plaintiffs are more likely to know their rights and to be able to navigate the expense and intricacies of the legal system.⁴⁷ In the negative injunction cases, it occurs because the state usually tries to cut middle class pension and health care benefits for civil servants and other middle class groups rather than those few services going to the very poor.⁴⁸ Put another way, the status quo gives the poor relatively little to protect through negative enforcement. To make matters worse, courts often manage the tension between social rights enforcement and democracy by engaging in judicial populism--issuing decisions that are calculated to raise the ire of the political branches but to gain strong support from the middle class groups. For example, courts often strike down austerity measures that limit middle class social benefits precisely because they will have the support of the median voter when they do so, which may insulate them from retaliation.⁴⁹

All of this suggests that the conventional literature misunderstands both the general nature of social rights enforcement and the tradeoff faced by courts. Most of the literature on social rights, whether in favor of or against enforcement, assumes that it is a counter-majoritarian exercise, and that the beneficiaries of its enforcement will be marginalized groups.⁵⁰ This does not appear to be true--social rights enforcement is essentially majoritarian in many cases, and the beneficiaries are middle and upper class groups rather than the marginalized. Moreover, the real tradeoff faced by courts when choosing remedies is more complex than simply a tradeoff between effective enforcement and legitimacy or capacity issues. Instead, there are three issues--the legitimacy/capacity cost to the court, the effectiveness of the intervention, and the question of which group benefits from the intervention.

Table 1: The Effects of Socio-Economic Rights Remedies

Table 1 summarizes these tradeoffs. Individualized enforcement may have a low legitimacy cost and does not strain the capacity of the court, but it primarily benefits upper income groups. Further, the evidence indicates that it does little to improve the performance of the bureaucracy in providing social services, and thus it may be relatively ineffective as well. Negative injunctions are effective (at least at maintaining the status quo) and may have only moderate capacity and legitimacy costs to the court (depending on their macroeconomic effect), but they again benefit primarily upper income groups. Weak-form enforcement or engagement appears to be targeted at lower income groups and to have low legitimacy and capacity costs for the court, but it also appears to be ineffective.⁵¹ A fourth approach, structural enforcement, is familiar from U.S. public law⁵² and occurs when a court issues broad orders aimed at reforming institutional practice over a long period of time.⁵³ This appears to hold some promise at targeting relief towards lower income groups, and may be able to do so effectively in some circumstances, but it obviously involves the court deeply in polycentric decisions and thus may put a significant strain on the legitimacy and capacity of the court….

III. Evidence from Other Countries

In this section I present evidence from other countries to support both hypotheses. In particular, I emphasize that remedies, both individualized enforcement and the negative injunction approach, appear to have a pronounced tilt towards upper-income groups. The individualized enforcement approach seems to do little to improve bureaucratic performance, while the negative injunction approach tends to involve the court in serious macroeconomic messes. Finally, a structural injunction approach, although relatively rare in comparative law, appears to have some promise both in targeting lower-income groups and in effecting positive changes in the bureaucracy, at least in certain political contexts.

A. Individualized Enforcement

The comparative evidence described below strongly supports the inferences, drawn from the Colombian data, that individualized enforcement of social rights tends to disproportionately benefit middle and upper class groups, and that its effect on bureaucratic effectiveness is ambiguous at best. Furthermore, individualized enforcement, especially of the rights to health and social security, appears to be very common in comparative constitutional law.²¹⁶ This is likely because individualized enforcement appears to be “court-like”: it involves courts in one-on-one disputes without seeming to involve them in complex policy disputes that are beyond their competence. The analysis here will focus on Brazil, which is a case that has been studied relatively extensively….

Case law appears to pay little attention either to resource limitations or to the economic position of the petitioner in these individual cases. For example, in a seminal 1997 case, a petitioner suffering from a rare degenerative disease requested stem-cell treatment in an American clinic; the treatment would cost $63,806.²²¹ The state raised the argument of resource limitations, but the Brazilian Federal Supreme Tribunal upheld the claim, stating, “[b]etween the protection of the inviolable rights to life and health . . . and the upholding . . . of a financial and secondary interest of the State, . . . ethical-juridical reasons compel the judge to only one possible solution: that which furthers the respect of life and human health.”²²² As Octavio Luiz Motta Ferraz notes, the basic rule of the Brazilian judiciary in these individualized cases is that “the right of the individual must always prevail, irrespective of its costs.”²²³ As in Colombia, the individual cases are detached from their systematic context.

In contrast, few collective claims have been filed, and these have usually been denied. Hoffmann and Bentes posit that the Brazilian judiciary is still steeped in a civil law tradition and thus unwilling to take on the obvious policymaking role implied by aggregate litigation.²²⁴ That is, they decide individualized claims from a “purely individual civil rights perspective” without giving much thought to economic or social impact; thus they tend to grant these claims.²²⁵ The arguments flip for collective cases, where arguments about social and economic impact are used to justify non-concession because judges are unwilling to appear to be making large-scale policy judgments.

There is no direct quantitative data on exactly who is filing these cases, but the accumulation of other relevant evidence means that “[i]t is not difficult to guess.”²²⁶ Work by Ferraz has found that the richest states file the bulk of the claims. His study found that of 4,343 suits filed between 2005 and 2009, the ten Brazilian states with the highest scores on the United Nations' Human Development Index generated ninety-three percent of the claims, while the ten states with the lowest scores generated only seven percent.²²⁷ Other research has shown that most claimants rely on private lawyers, and that most claims are for high cost medications and similar goods rather than basic health needs. Thus, the conclusion of observers has been that most of this litigation is being filed by middle-class petitioners rather than the poor.²²⁸ This is not surprising, given that Brazilian legal devices, unlike the Colombian tutela, are relatively complex and expensive, and, as Hoffmann and Bentes find, that the poor have a “general lack of rights consciousness and trust in the judiciary.”²²⁹

Finally, Hoffmann and Bentes find little evidence that this individualized jurisprudence has provoked positive effects on the executive bureaucracy. They find that the major policy decision to include HIV drugs on the lists of allowable medicines was unrelated to litigation, although they do find that some other medicines have been included on the list because of a critical mass of litigation.²³⁰ Still, they find that, as in Colombia, most of the real problems in the Brazilian health bureaucracy are problems of “implementation” rather than design; even when a drug or treatment is included on the list, patients often do not receive it without legal action.²³¹ In this sense, as in Colombia, the Brazilian courts have become a partial replacement for the bureaucracy rather than helping to improve bureaucratic action.

B. Negative Injunctions

Another very common tool has been enforcement of social rights by negative injunction, which prevents the government from withdrawing some existing benefit. This is closely related to the concept, found in international law and already discussed, of non-retrogression: reductions of existing social benefits will be subject to heightened scrutiny in order to determine their appropriateness.²³² The Colombian Court used this principle in its 2000 public sector salary case, in which it ordered all public sector employees to receive increases in salary at least equal to the rate of inflation. The negative injunction is very popular in comparative law as a means to enforce social rights, most likely because it also appears relatively court-like: the judiciary is not involved in making complex budgetary allocations or otherwise constructing policy, but instead merely prevents the state from putting some new policy into effect. In other words, enforcement of social rights by negative injunction makes these rights look more or less like other kinds of rights.

This kind of social rights enforcement is likely to have a strong tilt in favor of more affluent groups. Middle and upper class groups tend to have pensions, decent health care, and other subsidies. These benefits can be attractive targets for governments that urgently need to cut budget deficits and which may be under international (IMF, World Bank, etc.) pressure to do so. In contrast, the very poor do not have many benefits for the government to take away; therefore, states are less likely to cut these benefits during recessions and periods of structural adjustment. One of the most common types of social rights enforcement “for the benefit” of the poor illustrates this point; the poor may file injunctions against evictions from slums built on lands that they do not own, or from living on the street, in both India and South Africa.²³³ The jurisprudential logic in both countries is that there is a constitutional right to housing, and while the positive aspect of this right (the building of decent housing for all) cannot be realized immediately, the courts will at least enforce the negative aspect of the right by making it more difficult to evict poor tenants from their existing homes in ramshackle slums or on the streets. These cases may do something for the poor, but not much.

The more typical negative injunction case in comparative constitutional law benefits the middle class. A good example is the Hungarian Constitutional Court's activism on social benefits in the mid-1990s, when the Court struck down a series of important government measures. The Hungarian government, in the midst of a severe economic crisis and under pressure from international organizations like the IMF, attempted to cut many benefits from the social benefits system (pension, child supports, sick leave, etc.) and to move from a universal system toward a need-based system.²³⁴ The jurisprudential basis for these judgments was that people with existing benefits had property-like rights to those entitlements that the government could not take away lightly.²³⁵ While there is a debate about the appropriateness of these decisions,²³⁶ there is no doubt that these judgments benefited mainly upper-income groups, and that Sajó is correct in calling the Hungarian social rights “middle class entitlements.”²³⁷ Like the Colombian UPAC and salary cases, these decisions were also very popular with the public. A poll taken just after the decisions found that eighty-nine percent of the population had heard of them, and that eighty-four percent of those who voted for the ruling parties and ninety percent of those who did not favored the decisions.^238…

A final point is that this kind of jurisprudence, although seemingly court-like, tends to get judiciaries in big trouble. This happens because these cases tend to impinge on core macroeconomic policy decisions at precisely the moment in which governments are experiencing budgetary stress and need to undertake structural adjustments. These are often “populist” decisions and may be popular with the public, as the Hungarian and Colombian decisions show.²⁴² But they also anger presidents and legislatures, who may seek to attack or overhaul judiciaries as a result….

C. Structural Injunctions

Structural injunction-like devices have been rare in comparative constitutional law. Although various scholars have pointed out their theoretical utility in resolving difficult social rights problems, they remain for the most part the pipe dream of academics in other countries, a remedy that exists in journal articles but is almost never seen in reality.²⁴⁶ This has been especially true in South Africa, where the Court has aggressively taken on the challenge of defining constitutional rights but has been willing to give only very limited remedies for their violation.²⁴⁷ And, as the Colombian example shows, structural remedies are expensive, time-consuming, demand a tremendous amount of legal and political skill from the judiciary, and only appear to work well in certain political contexts.²⁴⁸ On the other hand, they have the potential to correct some of the biases seen in the other devices, and they may be especially promising for targeting lower income groups. The limited comparative experience that exists for these devices supports these hypotheses….

IV. Implications

The analysis presented above has significant policy implications for how domestic courts should enforce social rights and for how international bodies and organizations should think about enforcement of these rights and principles. The normative assumption on which I base this section is that it is desirable to improve targeting of enforcement towards lower-income social groups. (In my conclusion, I return to the idea that a relatively middle-class-based jurisprudence on social rights is probably inevitable, and I discuss the implications of that fact). I emphasize three points in this section. First, international policymakers, particularly those on the Committee on Economic, Social, and Cultural Rights, should emphasize and better define the minimum core and should deemphasize potentially dangerous concepts like non-retrogression. Second, the international dialogue between constitutionalists in different countries should emphasize remedies rather than rights alone, and a consideration of the U.S. experience (which amply demonstrates both the possibilities and limits of structural reform litigation) may be useful for these ends. Third, policymakers designing or reforming a judiciary should consider ways not only to preserve judicial independence while maintaining a link to the people, but also to rein in populist behavior by the judiciary….

V. Conclusion: Coming to Grips With a Middle-Class Social Rights Jurisprudence

Social rights enforcement has been vibrant in a number of countries. However, the patterns of enforcement show disturbing relationships. One claim in this piece is that there is a perverse relationship between choice of remedy, the likely set of beneficiaries, and the perceived (although perhaps not actual) strains on a court's capacity and democratic legitimacy. Empirically, court are most likely to enforce social rights by negative means (such as striking down a law) or via individualized rights enforcement, since these tools are closest to the tools courts use for everyday judicial review. But both are bad ways to enforce social rights claims--they have perverse distributive effects and do not appear to do anything to improve the performance of the bureaucracy. Even structural remedies are difficult to accomplish successfully. The Colombian and Indian examples show that they demand a lot of the court's resources and do not work in certain political contexts. But, at least sometimes, they can work. They should be part of the judicial toolkit, and scholars should start building theories for when and why these kinds of remedies are effective.

The broader point is that we need to reevaluate what social rights do; we must re-envision them as a largely middle-class phenomenon. As such, their enforcement is mostly majoritarian. While U.S. constitutional theory coined the phrase “countermajoritarian difficulty,” American scholars have long noted that this is an oversimplified view of what the Supreme Court does and that it essentially follows majority will in many circumstances.²⁹⁶ But the same vision has not penetrated much of comparative scholarship. Making a full evaluation of the fact that courts are majoritarian in many (perhaps most) circumstances is a task for another article. Middle-class centric judicial enforcement may not be an entirely bad thing, given the dearth of legitimacy that most state institutions have in developing countries and the low quality of their bureaucracies. This suggests that the core question attending this sort of enforcement is the rebound effect that judicial action has on bureaucrats, politicians, and civil society groups--does it strengthen civil society and improve bureaucratic performance? A big part of the answer, again, is likely to rely on remedial innovation: courts may need to intrude more on democratic institutions in order to improve them.

Declaration on the Right to Development

UN Gen. Ass. Res. 41/128, UN Doc. A/RES/41/128 (1986)

The General Assembly, Bearing in mind the purposes and principles of the Charter of the United Nations relating to the achievement of international co-operation in solving international problems of an economic, social, cultural or humanitarian nature, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,

Recognizing that development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom,

Considering that under the provisions of the Universal Declaration of Human Rights everyone is entitled to a social and international order in which the rights and freedoms set forth in that Declaration can be fully realized,

Recalling the provisions of the International Covenant on Economic, Social and Cultural Rights and of the International Covenant on Civil and Political Rights,

Recalling further the relevant agreements, conventions, resolutions, recommendations and other instruments of the United Nations and its specialized agencies concerning the integral development of the human being, economic and social progress and development of all peoples, including those instruments concerning decolonization, the prevention of discrimination, respect for and observance of, human rights and fundamental freedoms, the maintenance of international peace and security and the further promotion of friendly relations and co-operation among States in accordance with the Charter,

Recalling the right of peoples to self-determination, by virtue of which they have the right freely to determine their political status and to pursue their economic, social and cultural development,

Recalling also the right of peoples to exercise, subject to the relevant provisions of both International Covenants on Human Rights, full and complete sovereignty over all their natural wealth and resources,

Mindful of the obligation of States under the Charter to promote universal respect for and observance of human rights and fundamental freedoms for all without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Considering that the elimination of the massive and flagrant violations of the human rights of the peoples and individuals affected by situations such as those resulting from colonialism, neo-colonialism, apartheid, all forms of racism and racial discrimination, foreign domination and occupation, aggression and threats against national sovereignty, national unity and territorial integrity and threats of war would contribute to the establishment of circumstances propitious to the development of a great part of mankind,

Concerned at the existence of serious obstacles to development, as well as to the complete fulfilment of human beings and of peoples, constituted, inter alia, by the denial of civil, political, economic, social and cultural rights, and considering that all human rights and fundamental freedoms are indivisible and interdependent and that, in order to promote development, equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights and that, accordingly, the promotion of, respect for and enjoyment of certain human rights and fundamental freedoms cannot justify the denial of other human rights and fundamental freedoms,

Considering that international peace and security are essential elements for the realization of the right to development,

Reaffirming that there is a close relationship between disarmament and development and that progress in the field of disarmament would considerably promote progress in the field of development and that resources released through disarmament measures should be devoted to the economic and social development and well-being of all peoples and, in particular, those of the developing countries,

Recognizing that the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development,

Recognizing that the creation of conditions favourable to the development of peoples and individuals is the primary responsibility of their States,

Aware that efforts at the international level to promote and protect human rights should be accompanied by efforts to establish a new international economic order,

Confirming that the right to development is an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals who make up nations,

Proclaims the following Declaration on the Right to Development:

Article 1

1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
2. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

Article 2

1. The human person is the central subject of development and should be the active participant and beneficiary of the right to development.
2. All human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community, which alone can ensure the free and complete fulfilment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development.
3. States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.

Article 3

1. States have the primary responsibility for the creation of national and international conditions favourable to the realization of the right to development.
2. The realization of the right to development requires full respect for the principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations.
3. States have the duty to co-operate with each other in ensuring development and eliminating obstacles to development. States should realize their rights and fulfil their duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and co-operation among all States, as well as to encourage the observance and realization of human rights.

Article 4

1. States have the duty to take steps, individually and collectively, to formulate international development policies with a view to facilitating the full realization of the right to development.
2. Sustained action is required to promote more rapid development of developing countries. As a complement to the efforts of developing countries, effective international co-operation is essential in providing these countries with appropriate means and facilities to foster their comprehensive development.

Article 5

States shall take resolute steps to eliminate the massive and flagrant violations of the human rights of peoples and human beings affected by situations such as those resulting from apartheid, all forms of racism and racial discrimination, colonialism, foreign domination and occupation, aggression, foreign interference and threats against national sovereignty, national unity and territorial integrity, threats of war and refusal to recognize the fundamental right of peoples to self-determination.

Article 6

1. All States should co-operate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion.
2. All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights.
3. States should take steps to eliminate obstacles to development resulting from failure to observe civil and political rights, as well as economic, social and cultural rights.

Article 7

All States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries.

Article 8

1. States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustices.
2. States should encourage popular participation in all spheres as an important factor in development and in the full realization of all human rights.

Article 9

1. All the aspects of the right to development set forth in the present Declaration are indivisible and interdependent and each of them should be considered in the context of the whole.
2. Nothing in the present Declaration shall be construed as being contrary to the purposes and principles of the United Nations, or as implying that any State, group or person has a right to engage in any activity or to perform any act aimed at the violation of the rights set forth in the Universal Declaration of Human Rights and in the International Covenants on Human Rights.

Article 10

Steps should be taken to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels.

Letters to the Financial Times

January 19, 2011

Bizarre response by human rights groups to UN framework plan

From Mr John Ruggie.

Sir, Hugh Williamson reports that Amnesty International and some other pressure groups fear that adoption of a proposed set of guiding principles for implementing the United Nations “protect, respect and remedy” framework in the area of business and human rights “risks undermining efforts to strengthen corporate responsibility”, and that “the current draft should not be adopted by the Human Rights Council” (“Amnesty criticises UN framework for multinationals”, January 17). This is bizarre on several counts.

First, these same organisations keep telling the world that there are currently no global standards in the area of business and human rights, causing both governments and business enterprises to fall far short of desired practices. In contrast, the UN framework and guiding principles elevate standards of conduct significantly.

Second, these same organisations use the UN framework constantly as a basis for criticising the performance of companies, governments and international agencies – so how inadequate and unacceptable could its implementation possibly be?

Third, Amnesty and the others would have a lot to answer for if they actually were to oppose Human Rights Council endorsement of this hard-won initiative. In 2004, they heavily promoted a scheme for regulating companies that had no champions among governments and triggered the vehement and unified opposition of the business community. What was the result?

Victims of corporate-related human rights harm, for whom these organisations claim to speak, got nothing. Now, seven years later, we have a proposal on the table that enjoys broad support from governments, business associations, individual companies, as well as a wide array of civil society and workers’ organisations.

Do Amnesty and the others really urge its defeat – delivering “nothing” to victims yet again? How much longer will they ask victims to wait in the name of some abstract and elusive global regulatory regime when practical results are achievable now?

John Ruggie,

UN Special Representative for Business and Human Rights,

Cambridge, MA, US

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January 20, 2011

Stronger UN draft on human rights abuses needed

From Ms Widney Brown.

Sir, John Ruggie’s letter (January 19) in response to Hugh Williamson’s article “Amnesty criticises UN framework for multinationals” (January 17) is surprising on several counts.

At Amnesty International our researchers regularly investigate human rights abuses committed by corporations. We work with victims – from the Niger Delta to India, Netherlands to Papua New Guinea. We campaign for their rights and work with them to seek reparations. We do not believe the draft guiding principles effectively protect victims’ rights or ensure their access to reparations.

Let’s be frank – the real opposition to effective guiding principles does not come from Amnesty International but from business interests. The draft guiding principles enjoy broad support from business, precisely because they require little meaningful action by business.

Prof Ruggie has acknowledged that governments often fail to regulate companies effectively, and that companies working in many countries evade accountability and proper sanctions when they commit human rights abuses. The fundamental challenge was how to address these problems. His draft guiding principles fail to meet this challenge. Amnesty International believes they must be strengthened.

We have offered constructive advice, based on years of investigative experience, to help the process. We will continue to do so.

Widney Brown,

Senior Director for International Law and Policy,

Amnesty International

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January 28, 2011

Proper powers needed to uphold human rights

From Mr Arvind Ganesan.

Sir, John Ruggie’s response (Letters, January 19) to Hugh Williamson’s article “Amnesty criticises UN framework for multinationals” (January 17) mischaracterises our views. Human rights organisations submitted comments to improve the proposed draft of guiding principles so that they can provide meaningful protection against human rights abuses.

We hope Prof Ruggie would recognise that there is little evidence that companies uniformly respect their human rights obligations unless there are mechanisms to require them to do so. That is consistent with other efforts to stop companies from harming the environment or engaging in bribery, as evidenced by the US Foreign Corrupt Practices Act and the new anti-bribery law in the UK.

We recognise that a similar approach needs to be taken to prevent and address human rights abuses. It is unfortunate, however, that Prof Ruggie would claim that human rights organisations that do not endorse his views are a greater threat to local communities than unregulated businesses and governments that may actually commit abuses against them. We hope that he will instead use his guiding principles to articulate effective measures that actually oblige governments and companies to uphold human rights.

Arvind Ganesan,

Director, Business and Human Rights,

Human Rights Watch,

Washington, DC, US

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February 7, 2011

Let AI and HRW hold out the promise to rights victims

From Prof John G. Ruggie.

Sir, In his letter to the FT on January 28, Arvind Ganesan of Human Rights Watch repeats the earlier Amnesty International claim that the UN guiding principles for business and human rights do not “provide meaningful protection against [corporate-related] human rights abuses”.

While AI and others have been busy writing letters justifying their indefensible advice to the UN Human Rights Council, Amnesty UK has been busy “urging” the UK House of Commons select committee on business, innovation and skills to adopt the very proposals that Amnesty’s international secretariat finds so inadequate.

In paragraph 3.2.1 of their submission, AI UK informs the committee that “the UN special representative on business and human rights offers the prospect of bringing about a significant improvement in the human rights impacts of companies globally. The UK should promote and support the UN special representative’s guiding principles when they are presented to the Human Rights Council in June 2011, as this will help create a level playing field on human rights, ensuring that responsible UK companies are not undercut by laggards operating to lower standards.”

One is tempted merely to say, “Amnesty, meet Amnesty.” But important differences between the two positions are worth noting. AI UK clearly believes that policy is an important instrument for inducing change in the behaviour of corporates. In contrast, the AI secretariat and HRW reiterate their belief that only a binding international treaty will do.

In an FT interview when she was UN high commissioner for human rights, Louise Arbour cautioned against this latter approach: “It would be frankly very ambitious to promote only binding norms considering how long this would take and much damage could be done in the meantime.” She was speaking, of course, about damage to victims.

So let AI and HRW hold out the promise to victims that something good may come their way in another generation. My aim, as I have stated explicitly from the beginning, is to reduce corporate-related human rights harm to the maximum extent possible in the shortest possible period of time. And I am doing so primarily by recommending significant changes in policies and practices, on the part of governments and businesses alike.

John G. Ruggie,

Berthold Beitz Professor in Human Rights and International Affairs,

Harvard Kennedy School of Government,

Cambridge, MA, US

Special Representative of UN Secretary-General for Business and Human Rights