LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

62 Chapter 3
number of rights in ICESCR. 43
The minimum core obligations approach averts the danger of
states relying on the concepts of ‘progressive realisation’ and ‘to the
maximum of [their] available resources’ to render the rights in ICESCR
meaningless. While states may take steps only to realise the rights
progressively, certain obligations are immediate. 44 The notion
challenges the conception of socio-economic rights as being
programmatic and incapable of enforcement. It translates the rights
from abstract entitlements to concrete rights that guarantee
concrete individual goods and services. Additionally, the notion of
minimum core obligations reduces inequality by playing a
redistributive role. It ensures that resources are directed towards
those who cannot meet their basic needs using their own means.
In addition to the Committee, the notion of minimum core
obligations has received support elsewhere. The Maastricht
Guidelines cite as a violation a state’s failure to meet the minimum
core obligation as defined by the ESCR Committee. 45 The United
Nations Commission on Human Rights has given credence to the
minimum core when it says that states are urged to consider
benchmarks designed to give effect to the minimum core obligation
to ensure respect for minimum levels of living for everyone. 46 The
Inter-American Commission on Human Rights has said that the most
vulnerable members of society should not be denied access to the
43
The ESCR Committee has thus strengthened the application of this notion by
elaborating on what it considers to be the minimum core content of several of the
rights guaranteed by ICESCR. See General Comment No 4, The right to adequate
housing (6th session, 1991) UN Doc E/1992/23, annex III 114 (1991); General
Comment No 12, Right to adequate food (20th session, 1999) UN Doc E/C.12/
1999/5 (1999); General Comment No 13, The right to education (21st session,
1999) UN Doc E/C.12/1999/10 (1999); General Comment No 14 The right to the
highest attainable standard of health (22nd session, 2000) UN Doc E/C.12/2000/4
(2000); and General Comment No 15, The right to water (29th session, 2003) UN
Doc E/C.12/2002/11 (2002), all reprinted in Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc
HRI/GEN/1/Rev.6 (2003).
44 A Chapman & S Russell ‘Introduction’ in A Chapman & S Russell (eds) The core
obligations: Building a framework for economic, social and cultural rights (2002)
6. The notion emphasises that, in spite of the fact that the obligations in ICESCR
may be fulfilled progressively; there are those obligations which are immediate.
In this respect, the notion compliments arts 2(2) and (3), which put the need to
realise the rights without discrimination above the conditions of progressive
realisation and available resources. It is not surprising, therefore, that nondiscrimination
in extending the rights has been subsumed as one of the elements
of the minimum core of every right. It also complements the interpretation of the
ESCR Committee to the effect that the phrase ‘progressive realisation’ imposes
an obligation on states to move as expeditiously and effectively as possible
towards full realisation of the rights (General Comment No 3 para 9).
45 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,
text in B Ramcharan (ed) Judicial protection of economic, social and cultural
rights (2005) 553 para 2.
46 UN Commission on Human Rights Res 1993/14.