ASSIGNMENT 1

SOCIO ECONOMIC RIGHTS

SER811

SIYABULELA MNGXEKEZA
STUDENT NUMBER:
3582555

LECTURER: Professor Ebenezer Durojaye

Professor of Law
University of Western Cape
Faculty of Law
EMAIL: 3582555@myucw.ac.za or siyamngxekeza@gmail.com
 Table of Contents
1. INTRODUCTION ................................................................................................. 3
1.1 Background............................................................................................................................... 3
1.2 Definition of socio economic rights .................................................................................. 3
1.3 Nature of justiciability ............................................................................................................ 4
1.4 Justiciability of socio-economic rights ............................................................................. 5
1.6 Conclusion ................................................................................................................................ 6
Bibliography .................................................................................................................................... 7

2
 1. INTRODUCTION

1.1 Background

It is traditionally accepted that economic and social rights are non–justiciable and
therefore cannot be enforced by the judiciary. 1 The argument presented by this
school of thought is that, while the right to housing, healthcare, welfare, education
might have value as a moral statement, they should not be interpreted as legally
enforceable rights. This infers that the adjudication of social economic rights would
require an assessment of the fundamental values, carried out by political branches
of government, and the enforcement of socio-economic rights using government
resources that would have to be accurately assessed and balanced by legislature.2
What this argument is essentially saying, is that it is not appropriate for judges and
courts to intrude in the sphere of social and economic policies. It questions the
courts and other decision-making body’s political legitimacy and ability to properly
adjudicate and enforce socio-economic rights. This paper will also argue that socio
economic rights are justiciable by examining some of the critique tabled against
the justiciability of socio-economic rights.

1.2 Definition of socio economic rights

The Office of the United Nations High Commissioner for Human Rights (OHCHR)
defines economic, social and cultural rights as “…those human rights relating to
the workplace, social security, family life, participation in cultural life, and access
to housing, food, water, health care and education.”3 One of the biggest
misconception about socio-economic rights is the negative nature of the duties
they impose on states. 4

1
Trilsch MA ‘The justiciability of Economic, Social and Cultural Rights in Domestic Law’ (2012) 505 – 512.
2
Christiansen EC ‘Adjudicating Non-Justiciable Rights: Socio-Economic Rights And The South African
Constitutional Court’ (2007) 38 Columbia human rights law review 321.
3
Frequently Asked Questions on Economic, Social and Cultural Rights: Fact Sheet No.33 (2008) OHCHR 1
4
Nolan A,Porter P & Langford M ‘The Justiciability of Social and Economic Rights: An Updated Appraisal
(2007)15 CHR&GJ

3
 This paper argues that “all human rights require a combination of negative and
positive conduct from states and varying levels of resources.”5 This duality of
positive and negative obligations imposed by rights on a state can been seen in
the phrasing of article 2 of the International Covenant on Civil and Political
Rights6(international human rights treaties), section 7(2) of the Constitution of the
Republic of South Africa7(national constitutions) and in statements by the
Committee on Economic, Social and Cultural Rights (CESCR)8 which repeatedly
emphasise that all human rights impose three levels of obligations on States
Parties: the obligations to respect, protect and fulfil. It is worth mentioning that, the
realisation of socio-economic rights is more likely to require more resources than
that of civil and political rights.

1.3 Nature of justiciability

Justiciability is a difficult and controversial concept to grasp, but the two

fundamental questions which underlie many conceptions of justiciability are: 1)
whether there is a legal right or interest and 2) if so, whether there is any reason
to deny judicial adjudication in relation to that right. In other words justiciability is
whether or not “something” can be defined by the application of legal principles
and techniques to legitimise its legality.9 In an international context, the ability of a
state to progressively realise a right is subject to a judicial or quasi-judicial

5
Liebenberg S ‘The International Covenant on Economic, Social and Cultural Rights and its Implications
for South Africa’(1995)11 South African Journal on Human Rights 359 -362.
6
Article 2 of the International Covenant on Civil and Political Rights requires “each State Party to undertake to
respect and to ensure to all individuals ... the rights recognised in the present Covenant.”
7
Section 7(2) of the Constitution of the Republic of South Africa which provides that the state must respect,
protect, promote and fulfil the rights in the Bill of Rights.
8
CESCR, General Comment No.13,The Right to Education(Twenty-first session, 1999), U.N. Doc. (1999), para
46; CESCR, General Comment No. 15, The Right to Water (Twenty-ninth session, 2002), U.N.
Doc.E/C.12/2002/11 (2003), para 20; CESCR, General Comment No. 14, The Right to the Highest Attainable
Standard Of Health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000),para 33, and CESCR,
General Comment No. 12, The Right to Adequate Food (Twentieth session, 1999), U.N. Doc. E/C.12/1999/5
(1999), para 15.
9
Young R ‘Justiciable Socio-Economic Rights? South African Insights into Australia’s Debate’ (2008)15
Australian International Law Journal 190.

4
 adjudication by an authorised international committee.10 While, in a national
contexts, the ability of a state to progressively realise a right is subject the
appropriateness for judicial determination.

1.4 Justiciability of socio-economic rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

consist of 157 state members who acknowledge that they consider socio-economic
rights to be human right.11 As mentioned before, the CESCR emphasise that all
human rights impose three levels of obligations on states parties: the obligations
to respect, protect and fulfil. These obligation are applicable to both socio-
economic rights as well as civil and political rights. Where socio-economic rights
differ from civil and political rights is in the method used to realise these rights. The
ICESCR requires that member states ‘…to take steps … to the maximum of its
available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant’.12

The most common critique to the justiciability of socio-economic rights is that, they
are not practical, they are vague and cannot be universally applied. The notion of
progressive realisation is used to address the practicability critique. The use of the
term ‘progressive realisation’ reflects the difficulties in ensuring the full realisation
of socio-economic and cultural rights.13 While a state(s) may find it impossible to
fully realise all socio-economic rights, it is still required to take positive steps
towards the fulfilment of those rights.

In relation to the vagueness critic, clarity of meaning might not be a necessary

quality of a right. Adjudication from the European Committee on Social Rights
(ECSR) and the African Commission on Human and Peoples’ Rights demonstrate
the efficacy of an ‘I know it when I see it’ approach to highlight socio-economic

10
Dennis MJ & Steward DP ‘Justiciability of Economic, Social and Cultural Rights: Should there be an
International Complaints Mechanism to Adjudicate the Right to Food, Water, Housing and Health?’ (2004) 98
American Journal of International Law 462 - 477
11
CESCR, General Comment 12, The Right to Adequate Food, 20 CESCR, UN Doc E/C.12/1999/5 (1999) para15.
12
ICESCR Article 2.1
13
General Comment 3, The Nature of States Parties Obligations, 5 CESCR, UN Doc E/1991/23 (1990) para 10

5
 rights violations in the face of vagueness.14 There no ambiguity when determining
whether or not people are dying due to lack of access to water or shelter.

In criticising the universal application of socio- economic rights, an argument has

been made that socio-economic rights are only available to a certain class of
people.15 In relation to that argument this paper offers that what makes a right
universal is the possibility that it can be claimed by everyone regardless of class.
The reality that most of the rights in the ICESCR such as those to food, clothing,
shelter, primary health care and education, are of fundamental importance to
everyone and can be claimed by all.

1.6 Conclusion

The purpose of this paper was to outline the justiciability of socio-economic rights.
Given the fact that like all human rights, socio-economic rights are universal, they
can be considered practical and are at times appropriately specific, therefore a
case can be made that they are justiciable.

14
Trilsch MA ‘The justiciability of Economic, Social and Cultural Rights in Domestic Law’ (2012) 505 – 512.
15
Ibe S ‘Beyond justiciability: realising the promise of socio-economic rights in Nigeria’ (2007)7 AHRLJ 225-248.

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Bibliography

Journals:
1. Christiansen EC ‘Adjudicating Non-Justiciable Rights: Socio-Economic Rights
and the South African Constitutional Court’ (2007) 38 Columbia human rights
law review 321.
2. Nolan A,Porter P & Langford M ‘The Justiciability of Social and Economic
Rights: An Updated Appraisal (2007)15 CHR&GJ

3. Dennis MJ & Steward DP ‘Justiciability of Economic, Social and Cultural Rights:

Should there be an International Complaints Mechanism to Adjudicate the Right
to Food, Water, Housing and Health?’ (2004) 98 American Journal of
International Law 462 – 477
4. Liebenberg S ‘The International Covenant on Economic, Social and Cultural
Rights and its Implications for South Africa’ (1995)11 South African Journal on
Human Rights 359 -362.
5. Ibe S ‘Beyond justiciability: realising the promise of socio-economic rights in
Nigeria’ (2007)7 AHRLJ 225-248.Trilsch MA ‘The justiciability of Economic,
Social and Cultural Rights in Domestic Law’ (2012) 505 – 512.
6. Young R ‘Justiciable Socio-Economic Rights? South African Insights into
Australia’s Debate’ (2008)15 Australian International Law Journal 190.

General Comments:

7. CESCR, General Comment No.13, The Right to Education(Twenty-first

session, 1999), U.N. Doc. (1999), para 46;
8. CESCR General Comment No. 15, The Right to Water (Twenty-ninth session,
2002), U.N. Doc.E/C.12/2002/11 (2003), para 20.
9. CESCR, General Comment No. 14, The Right to the Highest Attainable
Standard Of Health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4
(2000), para 33
10. CESCR, General Comment No. 12, The Right to Adequate Food (Twentieth
session, 1999), U.N. Doc. E/C.12/1999/5 (1999), para 15.
11. General Comment 3, The Nature of States Parties Obligations, 5 CESCR, UN
Doc E/1991/23 (1990) para 10.

Internet Sources:

7
12. Frequently Asked Questions on Economic, Social and Cultural Rights: Fact
Sheet No.33 (2008) OHCHR 1 Available at
www.ohchr.org/Documents/Publications/FactSheet33en.pdf Accessed 15
August 2017)