LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

92 Chapter 3
The phrase ‘within available resources’ has mostly been used in a
rhetorical manner, without any meaningful attempts to define it and
to understand the precise nature of the obligations it imposes. 179
Unless we come to grips with the nature of the obligations that the
requirement to act within the available gives rise to, it may be
difficult to translate socio-economic rights from mere abstract paper
rights to concrete individualised rights. 180 This is because the concept
of available resources presents an obstacle to the realisation of these
rights. However, the concept also represents the world of scarcity in
which we live, which makes it impossible for the state to fully realise
all the rights protected. Yet, at the same time, scarcity imposes an
obligation on the state to ensure more efficient use of the scarce
resources in order to realise the rights to the extent attainable in the
circumstances.
Looked at narrowly, the concept of acting ‘within available
resources’ is available to the state as a defence to justify its failure
to fully realise socio-economic rights or even to provide a minimum
level of goods and services. Indeed, in the majority of socio-economic
rights cases, the state is always quick to demonstrate that it lacks the
resources needed to fully realise the right(s). 181 Nonetheless, the
179
180
181
According to Chapman, we cannot effectively use the standard of progressive
realisation as a tool of assessing compliance with the standards established by
ICESCR unless we understand what is meant by the phrase ‘maximum of its
available resources’. A Chapman ‘A new approach to monitoring the International
Covenant on Economic, Social and Cultural Rights’ (1995) 55 International
Commission of Jurists: The Review 23 26. All that the ESCR Committee has said in
General Comment No 3 about the meaning of the phrase ‘the maximum of the
available resources’ is that it 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 co-operation and assistance’ (para
13). In my opinion, this is very narrow; surely, the drafters must have meant more
than this in this phrase. ICESCR, besides elaborating the obligations of
international co-operation, does not elucidate on what states have to do within
the domestic arena to ensure that sufficient resources are allocated for the
purpose of realising the rights. Yet, as argued in ch two sec 2.2.4, the various
methods employed by the ESCR Committee to determine the appropriateness of
resources dedicated to realisation of the rights are flawed in a number of
respects.
E Robertson ‘Measuring state compliance with the obligation to devote the
“maximum available resources” to realising economic, social and cultural rights’
(1994) 16 Human Rights Quarterly 694.
See, eg, the Soobramoney (n 19 above), Grootboom (n 16 above) and Khosa
cases.