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This chapter focuses on the approach of the South African Constitutional Court towards enforcing socio-economic rights. South Africa has directly justiciable, express socio-economic rights in its Bill of Rights, and thus represents an important case study for considering the content of socio-economic rights and their implications for the policy of a government faced by significant poverty. The three most important decisions — Grootboom, Treatment Action Campaign and Khosa — are analysed in detail and shown to give expression to the ‘reasonableness approach’ of the Constitutional Court towards these rights. This approach is found wanting in several respects: perhaps the most important defects involve its failure to provide determinate content to such rights; the fact that it deflects the constitutional enquiry away from the urgent interests that are at stake in socio-economic rights cases; and its failure to provide a principled basis for intervention by the judiciary and allaying concerns relating to the separation of powers.

Given the complexity of the judgment concerning the unconditional obligations upon a society to realise fundamental rights, it becomes of importance to understand who within a society is tasked with making such decisions. Different justifications are provided for allowing judges to make final decisions in relation to matters concerning fundamental rights. This chapter criticizes Jeremy Waldron's arguments against judicial review and shows them to be self-defeating. It is then argued that the theory of content of fundamental rights that has been provided provides a powerful argument for supporting judicial involvement and decision-making concerning the enforcement of fundamental rights. It is suggested that the judiciary is likely to reach better decisions concerning fundamental rights than majoritarian institutions. The chapter concludes by showing the applicability of the general justification for judicial review to an argument for judicial review in the context of socio-economic rights where it is often more controversial.

Socio-economic rights have, until recently, been systematically neglected in our current world. An important reason for this neglect is found to be in the lack of clarity surrounding the justification and content of socio-economic rights. This book seeks to provide an analytic framework for understanding the content of socio-economic rights and to draw out the implications of this framework for the enforcement of these rights. The first half of the book considers the philosophical justification both of civil and political as well as social and economic rights. A justification is also provided for the judicial review of such rights. The second half of the book focuses on the implications of this philosophical discussion for law and policy and provides an argument for the adoption of a modified version of the ‘minimum core’ approach towards socio-economic rights.

This chapter focuses on poverty – one of the bleakest features in the African landscape – and the role (and potential role) in its eradication played by justiciable socio-economic rights in the domestic law of African states. As these rights have been articulated as justiciable in the African regional, but only to a very limited extent in the global, human rights system, their domestic justiciability is both a reflection and an extension of international human rights law.

This introductory chapter begins with a discussion of how human rights give rise to ‘negative’ duties of the State, preventing it from interfering with individuals, rather than requiring the State to take positive action. It then identifies some of the dichotomies arising from the distinction between duties of restraint and positive duties, focusing on socio-economic rights. It argues that infringements of basic socio-economic rights has been tolerated at a level which would never have been acceptable for breach of civil and political rights. An overview of the subsequent chapters is presented.

This chapter outlines the core concepts of human rights-based approaches (HRBAs) and explores the evolution of human rights-based approaches to development including the United Nations (UN) commitment to integrate human rights into all its work, national development plans, the role of socio-economic rights in development problem analysis, impact assessment, and key challenges to undertaking human rights-based development. The chapter also highlights the issue of measurement of human rights change as a critical factor in development planning, implementation, and evaluation towards ensuring accountability for both process and impact.

This chapter examines the jurisprudential and doctrinal developments in support of the existence of a general principle of international law to respect and observe human rights in the main. It then advances the premise that the basic rights of the human person of which this principle consists, today, must include socio-economic rights. It argues that the status of a universal principle to respect and observe human rights has been elevated to a level where it legally binds all states. Since the adoption of the UN Charter and the subsequent strengthening of a common commitment to human rights, an appreciation that there are fundamental rules regarding respect of the human person, and thus the protection of human rights has entered into the body of customary international law.

This chapter discusses several bases for disaggregating global responsibility pertaining to collective state conduct, for violations of socio-economic rights, manifested as world poverty. It draws on legal doctrine and interpretive guidelines in the area of human rights. These proposals are then considered in light of what are routinely shown to be structural obstacles to the realization of socio-economic rights. The focus is on the attribution of responsibility within a global environment legally inhospitable to individualizing the human rights responsibilities of developed states due to the extent of economic interdependence, the many actors implicated, and the enduring nature of hunger and other deprivations in poor countries.

Claire Michelle Smyth’s chapter examines the question of socio-economic rights in the Irish Constitution. She argues that it is possible to identify the avenues for constitutionalisation of socio-economic rights without the need for express incorporation by way of referendum. Beginning with an overview of the case which cements the status of social and economic rights in the Irish Constitutional order, this chapter examines the potential of reinvigorating the doctrine of unspecified rights, utilising the power of Article 45 and analysing the legitimacy of the Supreme Court’s reasoning to refuse judicial intervention. It concludes that Irish courts need to re-evaluate their stance and embrace the value of social and economic rights and to actively engage with their obligation to protect and vindicate the personal rights of the citizen.

This paper analyses the practice of the European Court of Human Rights (ECtHR), which gives judicial protection to minimum socio-economic guarantees indispensable for freedom from poverty while addressing civil and political rights enshrined in the European Convention on Human Rights (ECHR). I explore the normative basis, scope, strategies, conditions and effectiveness of the ECtHR’s enforcement of basic socio-economic guarantees, such as access to adequate food, water, sanitation, housing, clothing, health, and social security. The paper examines the virtues and shortcomings of the ECtHR’s approach and discusses legal and political measures necessary to improve judicial protection of the poor in Europe. It shows the necessity of the elaboration of a systematic legal conception clarifying the content and scope of socio-economic guarantees of freedom from poverty protected by the ECHR as well as common standards of their judicial enforcement. At the same time, I advocate for the direct judicial protection of socio-economic rights at the European level. An essential political measure in this sense would be the expansion of the Court’s jurisdiction to the rights enshrined in the European Social Charter and the Revised European Social Charter.

Chapter 3 offers some guidance concerning the content of Article 21A. This question is approached purely legally, not politically. Therefore, the chapter does not describe what content would be desirable. Instead, it discusses which concrete legal obligations the article might impose on the state. It also highlights that Article 21A, read with Articles 32 and 226, clearly imposes an obligation on the state to provide accessible and effective enforcement mechanisms to right-bearers. The fact that the petitioners in none of the cases concerning Article 21A decided by the Supreme Court, and in hardly any cases decided by the high courts, were aggrieved children or their parents shows that the higher judiciary is not accessible enough.

This chapter analyses the categorisation of ‘rights’ as civil, political, and socio-economic within a democratic framework. It considers the extent to which the right to strike may fall within such categories, as well as the implications that this categorisation has for the scope of such a right. The distinction between civil, political, and socio-economic rights remains a useful tool by which to determine the scope of the right to strike, whose ambit cannot be wider than its justificatory bases permit, and to understand its treatment under international human rights law.

This chapter examines issues arising from domestic implementation of international human rights law (IHRL) in African states. More specifically, it discusses the extent to which IHRL has been domesticated in African states by considering whether international human rights norms are part of domestic law; the place of international human rights norms in the hierarchy of the municipal legal order; and whether domestic courts have ‘applied’ international human rights norms in their decisions, especially the African Charter on Human and Peoples' Rights. It also explores monism in relation to immediate direct incorporation, transformation or incorporation in ‘dualist’ states, and self-executing treaty provisions. Finally, the chapter illustrates the domestication of international law by highlighting the justiciability of socio-economic rights in Africa.

This chapter distinguishes those egalitarian transformations of equality rights that are organic developments of liberal justice from those incompatible therewith. Section 1 discusses the libertarian contribution to liberal distributive justice by depicting the partial justice of market outcomes. Section 2 identifies constitutionally relevant interpersonal inequalites and argues for an egalitarian complement to market justice that libertarians ought, given their conception of individual worth, to accept. Section 3 suggests a principle for distinguishing between claims to social and economic equality whose satisfaction is required by law's rule and those inconsistent therewith. Section 4 discusses the enforceability of social and economic entitlements by courts and suggests a principle for distinguishing between permissible and impermissible judicial activism. Section 5 exhibits in both legal doctrine and legal theory the despotic implications of a fundamentalist egalitarianism and depicts the logical transition from the constitution of equality to the constitution of community.

The quest for the articulation of human dignity within the confines of the law invariably involves consideration of what the relevant human rights law can be said to require in any given case. This often then leads to consideration of what can be plausibly described as the basic needs of the individual whose claim is before the court. The law does not generally supply the certainty of meaning that might have been expected from a discipline which is widely (and usually rightly) appreciated for its commitment to clarity and predictability. Human dignity remains an elusive concept in law, begging more questions of judges than it supplies. Seeking to flesh out in law a meaning for human dignity which can then be required of society raises important questions of competence and democratic legitimacy. The chapter concludes with some suggestions as to the appropriate role for the litigation process in the protection and promotion of human dignity.

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

This article reviews some important developments of the case law of the European Court of Human Rights (ECtHR) relating to socio-economic rights. In its early case law on this subject, the ECtHR’s approach, in accordance with the primary aim of the European Convention on Human Rights (ECHR)—that is, the protection of civil and political rights—was to ensure the social dimension of the civil and political rights protected under the ECHR. This approach appears commendable, but in practice it failed to develop a principled justificatory model of adjudication for the protection of human rights in the socio-economic sphere. And, indeed, this is why the ECtHR has recently undertaken a different approach. In essence, and though there can be room for further development, the ECtHR has moved to abandon a jurisprudence that makes the protection of socio-economic rights entirely dependent on the possibility offered by the ECHR in favour of elaborating a socio-economic jurisprudence that also takes into account the European Social Charter for the interpretation of the ECHR.

Chapter 2 argues that the value protected by constitutional rights must be positive freedom, or personal autonomy: in particular the doctrines of positive obligations and horizontal effect and the increasing acceptance of socio-economic rights indicate that the point of rights is to enable the people to live their lives autonomously, as opposed to disabling or limiting the government in certain ways. The chapter briefly discusses the values of equality and human dignity and concludes that while they may be useful and important for a theory of constitutional rights, they do not recommend themselves as the starting point of the reconstructive theory proposed in this book.