LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 61
3.2.1 Rejection of the minimum core approach
Description of the minimum core obligations approach
The ESCR Committee has construed the provisions of ICESCR as
engendering a minimum core obligation incumbent upon all state
parties. The ESCR Committee ‘is of the view that a minimum core
obligation to ensure the satisfaction of, at the very least, minimum
essential levels of each of the rights is incumbent upon every state
party’. 37 The Committee has given as an example of a prima facie
violation a state party in which any significant numbers of individuals
are deprived of essential foodstuffs, of essential primary health care,
of basic shelter and housing, or of the most basic forms of
education. 38 The minimum core content of a right is its essential
elements, without which the right risks losing its substantive
significance as a right. 39 It is the level below which standards should
not fall. 40 The minimum core approach does not require the division
of rights according to their priority, rather it requires that each right
be realised to the extent that provides for the basic needs of
everyone. 41 The notion emphasises the fact that it is simply
unacceptable for any human being to live without sufficient resources
to maintain his or her survival. 42 The ESCR Committee has thus
defined the minimum core obligations that attach to a significant
37 General Comment No 3 para 10.
38 As above.
39
Van Bueren (n 36 above) 58 has submitted that the minimum core provides socioeconomic
rights with a determinacy and certainty. She submits further that, for a
right to be justiciable, there must be at least a minimum core of certainty;
otherwise, it would be pointless to incorporate socio-economic rights in a
justiciable bill of rights.
40 S Russell ‘Minimum state obligations: International dimensions’ in D Brand & S
Russell (eds) Exploring the core content of socio-economic rights: South African
and international perspectives (2002) 15. According to Russell, the purpose of the
minimum core is not to give the state an escape hatch for avoiding its
responsibilities under ICESCR; instead it is the opposite: It is a way to take into
account the fact that many socio-economic rights require resources that are
simply not available in poor countries. Even in highly strained circumstances,
such a state has an irreducible obligation to fulfil what it is assumed to be able to
meet. The burden is on the state to prove otherwise (16).
41 M Craven The International Covenant on Economic, Social and Cultural Rights: A
perspective on its development (1995) 141.
42 Bilchitz (2003) (n 34 above) 15.