Social rights are supported by the same foundational values that support civil and political rights.

Their legal under-enforcement is not justified. Discuss "The shocking reality [is] that states and the international community as a whole, continue to tolerate all too often breaches of economic, social and cultural rights, which if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and lead to immediate calls for action"1. In order to understand social rights as human rights it is necessary to accept that the concept of human rights crosses the boundaries of the moral, political and legal. A central tenet of the concept of human rights is that every human being has an equal right to the fundamental facets of human existence such as freedom and personal integrity without which it is impossible to maintain human dignity2. These fundamental principles are summarised by the Preamble to the Universal Declaration of Human Rights (UDHR), which was adopted by the UN General Assembly in 1948. The Preamble states "The Peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women, and have determined to promote social progress and better standards of life in larger freedom" In order to discuss whether the legal under enforcement of social rights is justifiable it is necessary to consider the development of human rights principles in general and specifically social rights and how they have come to be enshrined in law and therefore subject to enforcement. This paper will consider the background to the development of the divide between civil and political rights and social rights, before moving to a discussion of whether social rights are in fact legally enforceable which entails consideration of the main arguments against the justiciability of social rights. The paper will then consider the lessons that can be learnt from a consideration of the South African approach to the enforcement of social rights in order to provide a backdrop against which enforcement in domestic law can be considered and in that context the paper will then conclude and reaffirm the reasons why it is the author's view that the under enforcement of social rights is not justifiable. The Historical Context Historically, human rights proponents were initially concerned with what can be termed "natural rights" such as the right to life, liberty, property and religion. However, these rights developed to include not only civil and political rights but also to include social economic and cultural rights3, which
1

Statement by UN Committee of Economic Social and Cultural Rights (CESCR) UN Doc E/1933/22, Annex III, para 5 2 C Palley, The United Kingdom and Human Rights (Sweet & Maxwell, 1991) 3 ibid

encompass a duty on the state to provide for the material conditions of the human existence such as education, social security and a minimal standard of living. This was in part influenced by the burgeoning international labour movement which was founded following the signing of the Treaty of Versailles in 1919 to establish fair and humane conditions of labour4. Therefore it can be seen that it became an accepted part of socio-political and moral philosophical thought that individual interests such as food, shelter and a minimal standards of living had sufficient moral authority to justify the imposition of obligations on the state to protect these matters and to elevate them to the status of human rights5. Drafted at the end of the Second World War the UDHR sought to outline a number of civil, political, social, economic and cultural rights. These rights are given equal status through the recognition of a core range of rights contained in one document encompassing both civil and political and social rights. Article 25(1) UDHR states "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". In addition, Article 26 recognises the right to education and Article 23 provides for the right to work and rights whilst working. However, as a result of the conflicting political ideologies emerging during the Cold War tensions between the West and the former Soviet Countries resulted in the emergence of a divide between civil and political rights on the one hand and social rights on the other. Socio-economic rights were characterised as having hallmarks of a totalitarian regime requiring individuals to be dependent on the state whereas the US championed civil and political rights as "the bedrock of economic freedoms"6. As a result the rights were being seen in terms of being positive and negative. Civil and political rights were negative, seeking to protect individuals again unwarranted state intervention and therefore free of resource implications, social rights were seen as placing a positive obligation on the state to provide services which would therefore, by necessity, have major resource implications. As a result of this political backdrop and the threat of rejection by certain powerful signatories if the rights were included in a single document which was subsequently to be considered legally enforceable the UN General Assembly passed a resolution to divide the rights set out in the UDHR into two separate Covenants, one containing civil and political rights and one containing social, economic and cultural rights7. The two Covenants which
4

H Steiner and P Alston (eds), International Human Rights in Context (2nd edn, OUP, 2000) ch 4 242-6 5 R Plant , Modern Political Thought: An Introduction (Routledge, 1984) 6 Ellie Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Hart 2009) 14 7 G A Res 543 (VI) 5 Feb 1972 (overturning Res 421 (V) 4 Dec 1950)

were adopted in 1961 and entered into force in 1966 were the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and cultural Rights (ICESCR). The ICCPR included rights such as the right to life8, prohibition of torture9 and the freedom of religion10 while the ICESCR included rights such as the right to shelter11, to education12, to fair and just working conditions13 and to healthcare14. The separation of the two sets of rights can also be seen at a more regional level. The Council of Europe separated civil and political rights in order that they become the preserve of the European Convention on Human Rights (ECHR) and economic and social rights became enshrined in the European Social Charter (ESC). It is important to note that the division of human rights in the international treaties documented above was accompanied by a striking difference in the way in which the treaties were worded and subsequently monitored. Civil and political rights were drafted in terms of imperatives, in order to demonstrate that the rights contained within the documents could and should be protected immediately. However, socio-economic rights were couched in more aspirational terms, thereby attracting the assumption that they could not be realised immediately in the same way, that they needed resources in order to be implemented and that ultimately they would always be subject to a certain level of state discretion in terms of their application. These differences are best demonstrated through a comparison of Article 2(1) of each of the two Covenants. Article 2(1) of the ICCPR reads: " Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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." Article 2(1) of the ICESCR reads: "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." (emphasis added). It is clear therefore that the rights enshrined in the ICESCR are conditional on resource allocation and are therefore not immediately realisable. It is true that the Covenant is clear that efforts should be made but it is not a requirement that the outcomes be immediately achievable. As a result of the separation of
8 9

ICCPR Article 6(1) ICCPR Article 7 10 ICCPR Article 18 11 ICESCR Article 11 12 ICESCR Article 13 13 ICESCR Article 7 14 ICESCR Article 12

rights in this way some countries have decided only to ratify the ICCPR, neglecting the ICESCR entirely15. In Europe, as if separating rights into two categories was not sufficient to demonstrate the superiority of one set over the other, there was a further demonstration that social rights were not considered as important as civil and political rights by allowing countries who signed up to the ESC to select specific rights which they would comply with, thereby accepting some and rejecting others, thus arguably reinforcing their inferiority. Separating rights in this way has practical consequences in respect of the enforcement of those rights. From in its inception the ICCPR incorporated an additional protocol which recognised the right to individual petition before the Human Rights Committee. As a result anyone within the jurisdiction of a contracting state has a right to bring a complaint for an alleged violation of the Covenant. The Committee is then obliged to examine it and then communicate whether or not there has been a breach. However, the ICESCR is only monitored through reporting procedures. There is an obligation on the contracting states to submit periodic reports to the Committee on Economic Social and Cultural Rights (CESCR) regarding level of compliance. The Committee then issue observations. However, in 2008 after much lengthy debate an optional protocol which allowed for individual petition came into force. This Protocol now allows individuals to petition for alleged violations of their social rights and arguably brings the two sets of rights closer together. Are Social Rights Enforceable? In order to determine whether there is a justification in their legal under enforcement it is necessary first to consider whether, in fact, social rights are justiciable. Before considering the factors which have traditionally resulted in social rights being considered non justiciable it is important to consider how these rights have been dealt with in other jurisdictions. It is accepted that social rights encompass a large number of possible entitlements. However, states have made choices regarding which social rights to protect by means of their constitution and these choices appear to be made as a result of the influence of the cultural and political history of the state in question. For example in South Africa the right to land is included in the constitution16, however in other states such as Canada it is not. This is likely to be the result of the fact that under Apartheid the deprivation of land was often a catalyst to violence, segregation and poverty and therefore the protection of the right to land is directly indicative of the historical struggles in South Africa. However, it is important to recognise that there are different levels of enforcement in different jurisdictions. In Greece17, Spain18 and Norway19 there
15 16

Most notably the USA Article 25 South African Constitution 17 http://www.hri.org/docs/syntagma/ 18 http://www.servat.unibe.ch/icl/sp00000_.html 19 http://www.servat.unibe.ch/icl/no00000_.html

are a list of social rights contained within the constitutions however, they are not afforded the same status as civil and political rights being drafted in weaker terms. This can also be seen in India 20, Argentina21, Japan22 and Colombia23. However, in South Africa24 and Brazil25 social rights are fully justiciable alongside civil and political rights. Aolain and McKeever26 draw a distinction between different levels of legal enforcement of socio-economic rights. At one end of the spectrum they identify a position of "minimal level of enforcement" and at the other end of the spectrum they identify a "substantive model of enforcement". Minimal level of enforcement relates to the position where the constitution of a particular state does not identify explicit substantive socio-economic rights but seeks to protect these rights by means of due process. As a result, courts have the legal capacity to decide whether access to a particular state service was fair, impartial, non discriminatory and subject to procedural protection. As a result the socio-economic rights are protected indirectly. As example of this situation is evident in India. The Constitution of the Union of India 194727 includes certain policy objectives which the state should work towards achieving when drafting policy documents. These "Directive Principles of State Policy" include socio-economic objectives such as equal pay for men and women, the protection of the environment and ensuring an adequate standard of livelihood for all citizens. However, the Directive principles are not enforceable legally and this is expressly stated in the Constitution. However, the Indian Supreme Court can judicially review the execution of legislative acts in order to ensure that the Directive Principles are taken into account as a relevant consideration when the government exercises discretionary powers28. The South African Constitution29 is an example of a substantive level of enforcement. In this case the constitution gives direct and substantive protection to socio-economic rights such as the rights to health and housing and these are specifically set out in the Constitution and therefore legally enforceable. It is clear therefore that there are various ways to ensure legal enforceability of socio-economic rights in other jurisdictions. Therefore it is necessary to consider the possibilities for enforcement in domestic courts. Since the enactment of the Human Rights Act 1998 (HRA) in 2000 the debate on the enforceability of socio-economic rights in the UK has intensified. It is however, idealistic to think that the incorporation of the ECHR into UK national law will result in immediate change to the view that socio-economic rights are non justiciable. The fact that there is no written Constitution for the UK may
20 21

http://india.gov.in/govt/constitutions_of_india.php http://www.argentina.gov.ar/argentina/portal/documentos/constitucion_ingles.pdf 22 http://www.solon.org/Constitutions/Japan/English/english-Constitution.html 23 http://confinder.richmond.edu/admin/docs/colombia_const2.pdf 24 http://www.info.gov.za/documents/constitution/ 25 http://www.v-brazil.com/government/laws/constitution.html 26 Grainne Ni Aolain and Fionnula McKeever Thinking Globally, Acting Locally: Enforcing Socio-Economic Rights in Northern Ireland (2004) European Human Rights Law Review, 2 (2) 158-180 27 http://india.gov.in/govt/constitutions_of_india.php 28 Pandy v State of West Bengal (1988) LRC (const) 241 29 http://www.info.gov.za/documents/constitution/

assist in enabling the future enforcement of socio-economic rights given that these rights could be included in the existing rights protection framework without having the difficulties of amending the Constitution which would be evidence in the US. Ewing30 refers to the "unfinished business of human rights" in the UK and argues that the HRA is simply and Act of Parliament which can be repealed or amended in order to include the socio-economic rights which have been previously excluded. Therefore there is more opportunity to ensure that socio-economic rights are legally enforceable in the UK than in other jurisdictions. However, the UK has not moved towards this approach in 2000 the European Union adopted the EU Charter of Fundamental Rights which includes civil, political and socio-economic rights. The document was not initially binding but has subsequently formed part of the Treaty of Lisbon which imposes obligations on the institutions of the European Union and on Member States' authorities when applying or amending EU law. However, the UK have so far opted out of the socioeconomic provisions of the Treaty even though it only binds institutions and not governments except in the application of EU law thus having minimal effect domestically. What are the main arguments against enforcement? The main objection to the enforceability of socio-economic rights appears to lie in the idea that these rights are conceptually different from civil and political rights in three distinct ways; firstly they are positive in nature and therefore require action on the part of government, secondly they are costly and relate directly to issue of resource allocation and thirdly they are too abstract to be considered legally enforceable, whereas civil and political rights are seen to be negative, thereby only requiring inaction on the part of the government, cost free and concrete and therefore easily enforceable. These matters will be dealt with in turn. The Positive-Negative Dilemma It is possible to demonstrate, by way of example, that the distinction between civil and political rights being negative and socio-economic rights being positive is by no means straightforward; for example the Right to a Fair Trial pursuant to Article 6 of the ECHR and seen as a fundamental civil right requires an independent judiciary which can incur substantial cost. The right to housing, a social right, may simply be met by not evicting an individual who is in rent arrears which does not incur costs to achieve, fair elections, an obviously political right, have cost implications in setting up the requisite polling stations and ensuring there are procedures in place to supervise the election. Rights are clearly not themselves positive or negative, but instead the right may create a positive obligation on the state to act or an obligation to refrain from interfering. However some jurisdictions have frequently assumed that civil and political rights are negative and therefore do not impose a positive
30

K D Ewing "Constitutional Reform and Human Rights: Unfinished Business" (2001) 5 (3) ELR 297-324

obligation on the state. For example in Deshaney v Winnebago County Social Services Department31 the Supreme Court held that there was no breach of a constitutional duty when the authorities failed to protect a mentally challenged young boy who was being abused by his father. However, there have been examples where the courts have shown that civil and political rights can place an obligation on the state. In Oneryildiz v Turkey32 the European Court of Human Rights (ECtHR) examined whether or not the Turkish authorities had violated Article 2 of the ECHR (Right to Life) by failing to protect individuals living in very hazardous conditions in a site which was used as a rubbish tip. After an explosion a landslide resulted in the death of 39 people. The Court held that Turkey had violated Article 2 by not taking sufficient measures to protect human life given that the authorities knew or ought to have known that the site was very dangerous. In the same way social rights do not always have to place a positive obligation on the state they may in fact give rise to negative duties. For example in Grootboom v Republic of South Africa33 and Port Elizabeth Municipality v Various Occupiers34, cases concerning the right to housing under the South African Constitution, the court imposed a duty on the state to stay a number of evictions. Similarly the CESCR echoed the sentiment of the South African cases by stating that evictions must not infringe upon the rights of an individual to privacy and security of the home as well as the right to adequate housing itself35. Based on the work of Professor Shue a model has been developed which identifies specific obligations on the state which are inherent to human rights generally, regardless of whether the rights would be classified as civil and political or socio-economic. In this model rights are placed into three categories those where the primary obligation is on the state not to violate an individual's rights, the second where the obligation is to protect rights being violated by others and the third where the duty of the state is to facilitate individuals; access to resources and to assist in facilitating the use of these resources in order to achieve the right in question36. This would therefore allow the enforcement of rights to be considered, not in terms of whether they are considered civil and political or social, but in accordance with the obligation inherent in protecting the rights in question. In addition, the concept of citizenship is an other method by which it is possible to erase the distinction between categories of rights. Marshall identified the concept of citizenship as entailing "full membership of the community"37. Although a sociological concept there is an argument that national systems should focus on a totality of rights rather than differentiation between civil and political rights and socio-economic rights. For example an individual who is homeless is likely to lack the ability to exercise his right to vote, therefore all rights can be shown to be interwoven. As Devlin states full
31 32

489 US 189 App No 48939/99 (Judgment 30th November 2004) 33 (CCT 39/09) 2009 ZACC 28 34 (CCT 53/03) 2004 ZACC 7 35 Panama, ICESCR, E/1922/23 (1991) 24, para 249 36 H Shue, Basic Rights (2nd edn, Princeton University Press, 1996) 37 T H Marshall and T Bottomore, Essays on Citizenship and Social Class (Pluto Press, 1987)

membership of any community requires that everyone is entitled to all the things that are considered good and desirable by that community38. Case Law from Venezuela demonstrates that citizenship includes the enjoyment of all rights. In Cruz del Valle Bermundez v Ministry of Health and Social Assistance39, a case where the applicant was denied access to treatment for HIV free of charge, the Court held that it was impossible to separate the right to life from the right to access to science and technology. In the UK in R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants40 the case concerned the legitimacy of regulations which sought to withdraw welfare benefits from asylum seekers on the basis that they could not work, Lord Justice Simon Brown held that "the regulations contemplate for some a life so destitute that to my mind no civilised nation can tolerate it. So basic are the human rights here at issue that it cannot be necessary to resort to the Convention.. to take note of their violation" 41. The Majority clearly recognised that socio-economic rights are essential in order to exercise the Right To Life so clearly enshrined within domestic law by means of the HRA 1998. It is evident therefore that Courts are beginning to recognise the importance of socio-economic rights as being fundamental to human rights generally and some commentators have gone further and argued that social rights are "logically prior" to the exercise of civil and political rights 42, again reinforcing the importance of considering the totality of rights. Resource Allocation The second objection to the enforcement of socio-economic rights pertains largely to the necessary allocation of resources their enforcement would require. According to Palmer, it has only been within the last two decades that a functional approach has been taken which "on the one hand addresses the weaknesses of the positive-negative classification of rights, and on the other, accepts that particular problems of adjudication and enforcement arise in cases where human rights compliance necessitates the imposition of long term financial obligations on government, whatever the category of right"43. Traditionally there has been a certain level of opposition in respect of the judicial enforcement of socio-economic rights on the basis that social rights often involve complex decision regarding resource allocation which are best left to politically elected legislators. In R v Cambridge Health Authority ex parte B44, a case involving access to treatment for a 10 year old boy suffering from acute leukaemia, Sir Thomas Bingham MR stated "difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment a court can make".

38 39

Patrick Devlin, The Enforcement of Morals (Liberty Fund inc, 2010) Supreme Court of Justice, No. 916 July 15th 1999 40 (1996) 4 All ER 365 CA 41 Ibid, 481 42 Ewing n21 43 Palmer n6, 22 44 [1995] 2 All ER 129 (CA)

However, it can be seen that claims which essentially involve breaches of an individuals socio-economic rights have come before the courts. In R (on the Application of Ann Marie Rogers) v Swindon NHS Primary Care Trust 45Ms Rogers based an application for judicial review of the decision not to provide her with the cancer drug Herceptin, used for treating breast cancer, on the basis that the refusal of the authority to provide her and others with the drug which would significantly prolong life under the National Health Service Act 1977 was unlawful due to the unprincipled access to the drug which depended where the patient lived. It appeared that certain local authorities provided the drug on the basis of clinical recommendation whereas others only provided the drug in cases of exceptional need. The Court of Appeal ruled that this policy was unlawful, it was irrational that some women suffering from breast cancer should have to show more of a need than others in the same position. Therefore it can be shown that decisions regarding the allocation of resources in respect of socio-economic rights are not solely dependent upon constitutional reform. In addition, it is evident that courts already address questions of resources in respect of claims brought in relation to civil and political rights. King argues that the nature of what has become justiciable has changed significantly since the introduction of the HRA 199846. In Begum (Runa) v Tower Hamlets London Borough Council47, Lord Hoffman applied three principles he considered relevant to determining the scope of the review of decision based on resources, democratic accountability, efficiency and the Sovereignty of Parliament. Unfortunately these principles have not been applied in subsequent case law. Nevertheless the courts have gone further in reviewing decisions regarding resource allocation in human rights cases than under the banner of administrative law. In R v Secretary of State for the Home Department and another ex parte Anufrijeva48 the Court of Appeal held that Article 8 of ECHR was capable of imposing a positive obligation on the state to provide accommodation where not to do so would result in the serious inhibition of family life or the threat to a child's welfare. As stated earlier there have been cases which have resulted in the Secretary of State being obliged to provide welfare to destitute asylum seekers or risk violation of Article 3 ECHR49. The House of Lords has also found that Article 8 may be breached where the threat of deporting an individual would have foreseeable and extreme consequences for their health50. In Paul and Audrey Edwards v UK51 the Court considered that prison authorities and other healthcare authorities failing to take preventative measure to protect an inmate from another violent inmate suffering from schizophrenia had cumulatively amounted to a violation
45 46

[2006] EWCA Civ 392 (CA) (Civ Div) Jeff A King "The Justiciability of Resource Allocation" (2007) 70(2) Modern Law Review

197-224
47 48

[2003] UKHL 5 [2003] EWCA Civ 1406, 49 R v Secretary of State for the Home Department, ex Limbuela [2005] UKHL 66, 50 In R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27 51 (2002) 35 EHRR 487

of Article 2, even thought this would inevitably have resource implications for the future conduct of the agencies in question. The ECHR has also been used to impose a positive obligation on the state in respect of social rights, for example in Ali v Lord Grey School Lord Hoffman was prepared to state that under Article 2 of Protocol 1 ECHR "everyone is no doubt entitled to be educated to a minimum standard"52. It is clear therefore that resource allocation has not been a major obstacle in certain cases. However, as King states "little by way of clear guidance has emerged"53. It appears that the courts are more likely to intervene and make decisions regarding resources where the right is absolute and there are no issues of proportionality, such as in the Article 3 cases. That is not to say that issues of proportionality are a bar to such decisions regarding resources as the case law regarding Article 8 demonstrates. Some courts appear determined to stay away from large scale resource issues, leaving those to be resolved on a political level54, others have challenged primary legislation itself55 and others have not let political issues impact upon their ability to make such decisions, such as in R (on the application of Sylviane Morris) v Westminster City Council & First Secretary of State56 in which the court held it was unlawful for the council to disregard children subject to immigration control when assessing housing needs. This amounted to discrimination on the grounds of national origin and was not proportionate to the goal of preventing benefit tourism. Therefore it is evident that there is no general rule as yet but that the courts are taking an incremental approach to the issue of resources under the guidance of Strasbourg. King argues that this is positive in terms of enabling the Convention rights to protect increasing vulnerable groups and extending the protection of Convention rights to socio-economic rights but negative in that without sufficient direction the some courts may be too generous while others are too cautious57. However he does conclude that the idea that matters of resource allocation being considered non justiciable is no longer true since the introduction of the HRA 199858. Definitional Issues The third criticism with regard to the enforcement of social rights is that the rights themselves are too vague to define with sufficient clarity to render them legally enforceable in court of law. The content of social rights does not, by necessity, have to be abstract. It is arguable that there can be an appearance of vagueness simply because the courts have not given social rights the same level of consideration as they have civil and political rights. For example there is nothing specific in the ECHR which states whether transsexuals are permitted not to disclose their gender to the authorities as a result of their
52 53

[2006] UKHL 14, at 56 N37, 223 54 Royal Borough of Kensington and Chelsea v O'Sullivan [2003] EWCA Civ 371, 82 55 Kay and others v Lambeth LBC; Leeds CC v Price and others [2006] UKHL10 56 [2005] EWCA Civ 1184 57 N37, 223 58 Ibid, 224

Article 8 right to Private and Family Life however this has been decided by reference to the courts59 and this could similarly apply to definitional difficulties with social rights. The fact that social rights have not been subject to the same level of moral or academic debate or advocacy before the courts and subsequent judicial interpretation does not surely mean that there is any great reason why issues of abstraction cannot be dealt with in the same manner as it has been, and continues to be for civil and political rights and therefore result in social rights being considered just as enforceable as their civil and political counterparts. The Enforcement of Social Rights - The South African Model This paper has centred around the discussion of whether social rights are justiciable and whether as a result their legal under enforcement can be justified. It is clear from the arguments set out above that there is no insurmountable reason why social rights should not be afforded the same consideration, in terms of enforcement, as civil and political rights. With that in mind it the South African model merits serious consideration as a way to attempt to redress the balance between the enforcement of social rights and civil and political rights in domestic law. South Africa shares, in part, a common law legal system with the United Kingdom. As a result the UK courts have at times looked to the South African Constitutional Court as a model of good practice. The South African Constitution lists a range of protected socio-economic rights, but it has been said to be "transformative" and therefore differs from the liberal model since it does not simply place limits on the exercise of government but requires the government to advance ideals of freedom, equality and social justice.60 The socio-economic rights have been said to be more concrete and clearly defined than the general commitments found in other constitutions and therefore offer a more promising route to enabling individuals to acquire public resources61. Brand suggests that as a result when placed under scrutiny by the courts the rights are more likely to be robustly interpreted since the courts "are not to the same extent (as other jurisdictions) confronted with the concerns of the separation of powers, institutional legitimacy and technical competency that have so directly shaped and limited their constitutional socio-economic rights jurisprudence"62. Rights in the South African Constitution have been drafted in three different ways each requiring a different response from the courts. The first are a positive set of enshrined basic rights which are not constrained by issues of resources. The second set which includes the majority of social rights such as health care, food, housing and social security require the state the "take
59

Sheffield and Horsham v UK App Nos 22885/93 and 23390/94 (Judgment on 30th July 1998). 60 D Brand "Introduction to Socio-economic Rights in the South African Constitution" in D Brand and C Heyns (eds) Socio-economic Rights in South Africa (Pretoria University Press, 2005) 61 Ibid, 12-16 62 Ibis, 14-16

reasonable legislative and other measures, within its available resources to achieve the progressive realisation of the rights"63. The third category of rights is drafted in negative terms to prevent state interference with those rights without a court order in place after having considered all of the relevant circumstances. All three sets of rights are subject to a general limitation clause which provides that any limitation of those rights is only "permissible to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity equality and freedom"64. In conclusion it is evident that the South African model does not provide all the answers in terms of how to enforce social rights and a full discussion of the flaws in this system is beyond the scope of this paper. However, by categorising all rights, be they civil, political, social or economic, into categories which can then be enforced at different levels by the courts this model goes some way towards providing an example of how social rights may come to be enforceable in domestic law in the same way that the law currently provides for the enforcement of civil and political rights under the HRA 1998. It is evident that categories of rights which at one time would have been considered very separate are being viewed in the round, that many traditionally civil and political rights include and element of social rights within them. It is clear that the courts in the UK have been dealing with issues of resources, partly through administrative law provisions and more readily through the HRA 1998 and there is no reason why academic debate and judicial scrutiny cannot assist in the drafting of social rights in order to overcome criticism on the basis of their being too abstract. As a result there are no insurmountable reasons which social rights are not as enforceable as civil and political rights and if the government were willing to consider the models presented by other jurisdictions there is no reason why the UK cannot move forwards in terms of the enforcement of the totality of an individual's rights rather than differentiating between civil and political rights on one hand and social rights on the other. There is no reason to justify enforcement in terms of an individuals right to freedom of speech but not food and shelter surely it is time to move towards humans being able to uphold the totality of their human rights. 5501 words, 5926 incl footnotes

63 64

S 26(2) and S27(2) South African Constitution S.36 South African Constitution