LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

16 Chapter 2
resources. 5 However, in respect of the civil and political rights, the
states undertook to respect and ensure these rights, no express
limitations were placed on this obligation. 6 The distinction is also
reflected in the enforcement measures provided for in the covenants.
ICCPR was adopted together with an optional protocol establishing an
individual complaints mechanism. 7 No such mechanism was put in
place in respect of ICESCR. This was based on the misconception that
the obligations engendered by the rights in ICESCR were incapable of
judicial enforcement. They would only be realised through
international co-operation and through the work of intergovernmental
organisations. This is because it was thought that these rights
required extensive state action. 8
The objection to the judicial enforcement of socio-economic
rights has taken two dimensions. The first dimension is what would for
the lack of a more accurate term be described as the legitimacy
dimension. The second dimension is the institutional competence
dimension. 9 The legitimacy dimension objection is rooted in the
traditional conception of the philosophical foundations of human
rights and raises questions intended to contest the legitimacy of
socio-economic rights as part of human rights norms. The question
posed here is one of whether it would be legitimate to confer
constitutional status on socio-economic rights in light of their
nature. 10 In terms of this dimension, socio-economic rights can be
viewed as illegitimate because they involve the redistribution of
wealth and the intervention of the state in the free market economy.
It is believed that neither the redistribution of wealth nor the
5 Art 2(1) of CESCR provides as follows:
‘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
by all appropriate means, including particularly the adoption of legislative
measures.’
6 Art 2(1) of ICCPR provides as follows:
‘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
recognised 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.’
7 Optional Protocol to the International Covenant on Civil and Political Rights
adopted by UN General Assembly Resolution 2200A (XXI) of 16 December 1966 at
New York, entered into force on 23 March 1976. This Protocol empowers the
Human Rights Committee, as established by ICCPR, to receive and consider
communications from individuals subject to its jurisdiction who claim to be
victims of a violation by a state party of any of the rights set forth in the
Covenant (art 1).
8 S Liebenberg ‘The interpretation of socio-economic rights’ in S Woolman et al
(eds) Constitutional law of South Africa (2005) 33-1 33-12 to 33-13.
9 C Scott & P Macklem ‘Constitutional ropes of sand or justiciable guarantees?
Social rights in a new South African Constitution’ (1992) 141 University of
Pennsylvania Law Review 1 20.
10 Scott & Macklem (n 9 above) 21.