A jurisprudential analysis of the enforceability of socio-economic rights in South Africa: a constitutional discourse

2.2 SELECTED SOCIO-ECONOMIC RIGHTS CONTAINED IN THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS40

The International Covenant on Economic, Social and Cultural Rights (CESCR or Covenant) entrenches a number of socio-economic rights that include the rights to: social security, work, housing, health, education, cultural activities, join a trade union etc. These rights are subject to the availability of resources and are realised progressively. This is expressed in a provision of the Covenant which provides that⁴¹:

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 realisation of the rights recognised in the present Covenant...

Therefore, each state party to this Covenant should implement progressively these rights within its maximum available resources. In General Comment N03, the Committee on Economic, Social and Cultural Rights (ESCR) emphasises the fact that state parties should take steps for the enjoyment of the rights. According to the Committee on ESCR, these steps are subject to no limitations. It further states that to take steps means the adoption of legislative measures that will enable the fulfillment of the rights.

⁴⁰ The International Covenant on Economic, Social and Cultural Rights, 1966 entered into force on the 3rd

January 1976 in accordance with its Article 27 which reads as follows:» (1) the present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession. (2) For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.».

⁴¹ Article 2 of CESCR. This Article has been commented by the UN Committee on Economic, Social and

Cultural Rights (ESCR) in its General Comment 3 at its fifth session in 1990.

2.2.1 THE RIGHT TO SOCIAL SECURITY UNDER THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Social security is provided by Article 9 of the Covenant. This article enjoins state parties to recognise the right of everyone to social security including social assurance. Article 9 reads thus: «The State Parties to the present Covenant recognise the right of everyone to social security, including social insurance». This Article is in line with Article 11(1) of the Covenant which requires the state to guarantee an adequate standard of living. In terms of the aforementioned Article state parties should recognise the right of everyone to an adequate standard of living for himself and his family. According to Linda and Lucie, this provision can be interpreted to mean that the state must provide at least a minimum standard of living to everyone in need of social assistance⁴².

2.2.2 THE RIGHT TO HIGHEST STANDARD TO HEALTH UNDER THE COVENANT

The right to health is expressed in Article 12 of the ESCR which reads as follows: «The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health...». The UN Committee on ESCR in its General Comment N014⁴³ with regard to the right to the highest attainable standard of health views health as a fundamental human right indispensable for the exercise of other human rights. According to the Committee on ESCR, the right to health should not be understood as a right to be healthy. The right to health contains freedoms and entitlements. Freedoms include the right to control one?s health and body where as the entitlements refer to a system of health protection

⁴² Van Rensburg and Lamarche HYPERLINK http: // www.chr.up.ac.za/centerpublications/socio/socio.html

10 June 2009.

⁴³ The UN Committee on ESCR General Comment N0 14 2009 HYPERLINK

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+14 15 June. The Committee on ESCR was established in 1985. Its primary function is to monitor the implementation of the Covenant by states parties. It strives to develop a constructive dialogue with states parties and seeks to determine through a variety of means whether or not the norms contained in the Covenant are being adequately applied in states parties and how the implementation and enforcement of the Covenant could be improved so that all people can enjoy the right enshrined in the CESCR.

which provides equality of opportunity for people to enjoy the highest attainable level of health. The Committee on ESCR concludes therefore that, the right to health is the right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of the highest standard of health⁴⁴. The realisation of the right may also be pursued through numerous and complementary approaches, such as the formulation of health policies, the implementation of health program developed by the WHO. It might also depend on the condition prevailing in each state party such as the availability, quality and accessibility of health facilities.

2.2.3 THE RIGHT TO AN ADEQUATE STANDARD OF LIVING UNDER THE COVENANT

The right to an adequate standard of living is a generic expression that contains the right to adequate food, clothing and housing. It is expressed in a specific provision of the Covenant which states that⁴⁵:

The States Parties to the present Covenant recognise 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 realisation of this right, recognising to this effect the essential importance of international cooperation based on free consent.

Some of these rights have been the subject of comment by the Committee on ESCR. For instance, the human right to adequate housing which is derived from the right to adequate standard of living is of paramount importance for the enjoyment of all socioeconomic rights⁴⁶. It cannot be viewed in isolation from other human rights contained in

⁴⁴ The UN Committee on ESCR General Comment N0 14 2009 HYPERLINK

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+14 15 June.

⁴⁵ Article 11 of the CESCR.

⁴⁶ The UN Committee on ESCR General Comment N04 2009 HYPERLINK

http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+4 15 June. The General Comment N04 was adopted in 1991 with regard to the right to adequate housing.

international instruments. This affirms the interconnection of all the rights enshrined in the Covenant. The Committee on ESCR further states that the right to housing should be understood as the right to adequate housing. It should be seen as the right to live in a secure place, in peace and in a decent shelter. Most importantly, the right to adequate housing should take into account many considerations such as adequate space, adequate privacy, adequate security, adequate lightning, adequate ventilation, adequate basic infrastructure and adequate location and basic facilities at a reasonable cost. Moreover, the realisation of the right to adequate housing varies from one state party to another. The Covenant requires each state party to take the necessary steps for the realisation of this right. For example, the adoption of a national housing policy is one suggestion.

In addition to this, General Comment N0 4 also advises states parties to take into consideration legal security tenure (public and private accommodation, cooperative housing, lease, owner-occupation, emergency housing etc), the availability of services, materials, facilities and infrastructures, the affordability, the habitability, the accessibility and the location. Despite the provision of the right to adequate housing, the Committee on ESCR found that there is a large gap between the standard set in Article 11(1) of the Covenant and the situation prevailing in many parts of the world mainly in developing countries. According to the General Comment N0 4, the UN estimates that there are over 100 million homeless people worldwide and over 1 billion inadequately housed.

2.2.4 THE RIGHT TO EDUCATION UNDER THE COVENANT

The right to education entrenched in the CESCR reads inter alia as follows⁴⁷:

The States Parties to the present Covenant recognise 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...with the view to achieving the full realisation of this right, primary education shall be compulsory and available free to all, 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...

The right to education in the opinion of the Committee on ESCR⁴⁸ is both a human right in itself and an indispensable means to realise other human rights. The Committee on ESCR further states that education is empowering human beings and it is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and fully participate in their community. Education plays a vital role in empowering women, children and in promoting freedom and democracy.

According to the Committee on ESCR, education is the subject to which states can invest on. The Committee on ESCR is also of the view that the application of the right to education depends on the condition prevailing in each state party. However, it stresses the fact that the application of the right to education regardless of the state depends on the following factors: availability (this means that educational institutions

⁴⁷ Article 13 of the CESCR. In South Africa, section 29 of the 1996 Constitution provides for the right to

basic and further education for everyone. In Western Cape Minister of Education v Governing Body of Mikro Primary School [2005] 3 All SA 2006 (1) SA (1), the SCA recognised the right to receive education in official language in public school.

⁴⁸ The UN Committee on ESCR General Comment N013 2009 HYPERLINK http:

// www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+13 15 June. The Committee on ESCR adopted its General Comment 13 at its twenty-first session held from 15 November to 3 December 1999.

and programs have to be available in sufficient quantity), accessibility (it means that educational institutions and programs have to be available to everyone without discrimination), acceptability (it refers to the form and substance of education, including curricula and teaching method which have to be acceptable) and adaptability (this stresses that education has to be flexible so that it can adapt to the needs of changing societies). These rights are monitored by the Committee on ESCR.

2.2.5 THE MONITORING OF RIGHTS ENTRENCHED IN THE COVENANT

In order to ensure that all state parties to the Covenant on ESCR abide to their obligations, a system of monitoring is put in place. In this perspective, a Committee on ESCR⁴⁹ is established to oversee the implementation of the Covenant. The function of the Committee is to monitor the enforcement of the rights enshrined in the Covenant by state parties. It strives to develop a constructive dialogue with state parties and seeks to determine through a variety of means whether or not the norms contained in the Covenant are being adequately applied in state parties. The Committee on ESCR also seeks views on how the implementation and enforcement of the Covenant could be improved so that all people who are entitled to the rights entrenched in the Covenant can fully enjoy them.

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The Committee on ESCR was established in 1985 by the Economic and Social Council (ECOSOC). The monitoring of the rights entrenched in the Covenant is done through a reporting system. In this regard, Article 16 of the CESCR provides that: (1)»The State Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognised herein. (2) (a) All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant; (b) The Secretary-General of the United Nations shall also transmit to the specialised agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialised agencies in so far as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments.». Article 17 of the Covenant states that: (1)»The State Parties to the present Covenant shall furnish their reports in stages, in accordance with a Program to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the State Parties and the specialised agencies concerned. (2) Reports may indicate factors and difficulties affecting the degree of fulfillment of obligations under the present Covenant. (3) Where relevant information has previously been furnished to the United Nations or to any specialised agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice.».