LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

22 Chapter 2
Maintenance of a health care system requires well co-ordinated
action and community-wide participation. It also requires a great deal
of resources and expertise. It is only the state that is well placed to
meet these requirements. 37 Whereas a violation of this right may
result from state negative interference, it mainly arises from
inaction. There is a legitimate expectation that the state will put in
place a functional health system. This requires the necessary
expertise. The state is also expected to use its resources to build the
necessary infrastructure. By using its expertise, the state will achieve
co-ordination. The state will also use both its coercive and noncoercive
means to achieve community participation where
necessary. 38 All these processes call for a great deal of state positive
action. The same may be said of other socio-economic rights, such as
education, housing, water and food.
Some civil and political rights may require similar measures but in
varying degrees. To realise the right to personal liberty, the state
needs to restrain itself, which imposes a negative duty. However, the
state may also require co-ordinated action to investigate and punish
violators, which imposes a positive duty. This positive duty, however,
may, generally speaking, not require the same level of co-ordination
and community participation as does a health system. In terms of
Sepúlveda’s ‘spectrum’ of obligations, 39 this right will attract more
negative points, while the right to health will attract more positive
points. If these points are expressed in terms of resources, the right
to health care will be more expensive. One may argue that
maintaining a sound police force requires the same level of resources
as maintaining a health care system. Whereas this is true, there is a
major difference: The cost of maintaining a police force will result in
the protection of other rights such as property, life, and protection
from servitude. This results in spreading the costs with a high level of
economies of scale. Maintenance of a health care system is different.
It may protect life but not so many other rights directly, thereby
restricting the economies of scale. This makes the right to health
more expensive.
2.2.2 Universality of human rights
Cranston submits that socio-economic rights are not human rights
because they lack the essential characteristics of universality and
37 There is no doubt that it is a human need that people enjoy good health. It is also
true that this need should be met by the state. It cannot be left exclusively to the
individual without state aid. This is because it requires a great deal of expertise
and resources not at the individual’s disposal.
38 This may include laws that prohibit practices that are harmful to health, and
health education to encourage practices that promote good health.
39 See Sepúlveda (n 23 above) 125. See also Abramovich (n 35 above) 186-187.