SciELO - Scientific Electronic Library Online

 
vol.46 issue3What would my mother say? Refusal, forgiveness and the subjectivity of South African womenAcquisition of ownership inside virtual worlds author indexsubject indexarticles search
Home Pagealphabetic serial listing  

Services on Demand

Article

Indicators

Related links

  • On index processCited by Google
  • On index processSimilars in Google

Share


De Jure

On-line version ISSN 2225-7160
Print version ISSN 1466-3597

De Jure (Pretoria) vol.46 n.3 Pretoria Mar. 2013

 

ARTICLES

 

Unpacking "progressive realisation", its relation to resources, minimum core and reasonableness, and some methodological considerations for assessing compliance*

 

Uiteensetting van "Toenemende Verwesenliking", die Verband met Hulpbronne, Kernminimum en Redelikheid, en Sekere Metodologiese Oorwegings om Nakoming te Toets

 

 

Lillian Chenwi

LLB, Maïtrise in Law, LLM, LLD, Associate Professor, School of Law, University of the Witwatersrand

 

 


OPSOMMING

"Toenemende verwesenliking" is een van die beperkings waaraan die implementering van sosio-ekonomiese regte in verskeie grondwette, sowel as internasionale standaarde, onderwerp is. Die beperking kan deur state gebruik word om implementering te vertraag indien hulle die betekenis van die beperking nie korrek verstaan nie of dit misken. Hierdie artikel poog om te verduidelik wat die beperking behels. Die artikel oorweeg of 'n benadering van toenemende verwesenliking tot die afdwinging van sosio-ekonomiese regte inhou dat die verwesenliking van die regte van armes, benadeeldes, verstotenes of die mees miskendes in die samelewing, uitgestel word en of dit waarde toevoeg tot die begrippe "dwingende nood" of "redelikheid" soos deur die Suid-Afrikaanse Konstitusionele Hof ontwikkel. Laastens oorweeg die artikel metodes wat benut word om voldoening aan die toenemende verwesenliking-vereiste te toets.


 

 

1 Introduction

Despite the socio-economic rights guarantees in various human rights instruments, access is not always provided as universal from the outset. In these instruments, the effective implementation or realisation of socio-economic rights is often subject to the qualifications of "availability of resources" and "progressive realisation". The International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR)1 and the Constitution of the Republic of South Africa, 1996 (the Constitution) are some of the human rights instruments which recognise that socioeconomic rights have to be realised over time and the progress towards full realisation is dependent on the availability of resources. This raises the question of the degree of obligation or expectation for immediate implementation. Some provisions under the ICESCR are capable of immediate implementation; and some rights in the Constitution, such as the right to be protected against arbitrary evictions in section 26(3), children's socio-economic rights in section 28 and the socio-economic rights of detained persons in section 35, are not subjected to "progressive realisation". Thus, not all rights provisions employ the "progressive realisation" terminology. Also, the African Charter on Human and Peoples' Rights, 1981 (African Charter), to which South Africa is a party, does not expressly use the terminology. This does not however mean that a progressive realisation approach to enforcing the rights in the African Charter has been excluded (as explained below).

As explained subsequently, the progressive realisation qualification requires a state to strive towards fulfilment and improvement in the enjoyment of socio-economic rights to the maximum extent possible, even in the face of resource constraints. A state's performance in terms of the progressive realisation would depend on, among other things, both the actual socio-economic rights people enjoy at a given moment as well as the society's capacity of fulfilment (in terms of the resources available to the state).2

This article elaborates on what a progressive realisation approach to socio-economic rights means, drawing from the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR),3 the jurisprudence of the South African Constitutional Court, and to a limited extent and where relevant, the African Commission on Human and Peoples' Rights (African Commission).4 The approach adopted by the paper is to first set out international human rights law on the issue (drawing mainly from the interpretations by the CESCR, and where relevant, the African Commission) and then look at how the South African Constitutional Court has approached the issue, including acknowledging synergies and analyses strengths and weaknesses in the Court's interpretations.

A consideration of the progressive realisation approach to socioeconomic rights is warranted on the basis that the concept of "desperate need" does not seem to take us very far in terms of the enforcement of these rights, as the courts tend to focus more on "access" than on "improvements in access". Moreover, though the Constitutional Court has dealt with this concept, the Court's characterisation of it in a number of instances appears limited.

 

2 What Progressive Realisation Entails: The Concept in General

2 1 The CESCR and African Commission

The CESCR's definition of the concept5 points to the fact that progressive realisation introduces an element of flexibility in terms of the obligations of states and also in the enforcement of rights. The concept recognises that the full realisation of socio-economic rights would not generally be achieved in a short period of time. The obligation on states therefore is "to move as expeditiously and effectively as possible" towards full realisation. The CESCR has reiterated that progressive realisation implies a specific and continuing obligation on states to, as much as possible, be expeditious and effective in working towards the full realisation of the right to education.6 For example, progressive introduction of free education implies that states must not only prioritise the provision of free primary education but must also take concrete steps towards achieving free secondary and higher education.7 The concept "should not be interpreted as depriving States parties' obligations of all meaningful content".8 Progressive realisation thus goes beyond achieving the minimum essential levels of a right; and beyond ensuring access to goods and services to improvements in access over time.

There are three main arguments in terms of understanding progressive realisation. First, there must be immediate and tangible progress towards the realisation of rights. The fact that progressive realisation introduces a flexibility to the enforcement of socio-economic rights does not therefore imply that states can drag their feet. Progressive realisation cannot be interpreted under any circumstance to imply for states the right to defer indefinitely efforts to ensure full realisation. States are required to begin immediately to take steps to fulfil their obligations.9 Progressive realisation therefore includes some immediate (as well as tangible) obligations on states. For instance, in the context of the ICESCR, the obligation to take steps towards progressive realisation "must be taken within a reasonably short time", after entry into force of the ICESCR for the state concerned. However, because the degree of obligations for different socio-economic rights varies to some extent, there is flexibility in terms of progressive realisation. In relation to the right to education, for example, there is less flexibility. States have an obligation to adopt a plan of action "within a reasonable number of years" and the timeframe must "be fixed in the plan". The plan must specifically set out a series of targeted implementation dates for each stage of the progressive implementation of the plan.10 The steps taken must be effective and not be of negligible impact. Thus, it should not take an unreasonable amount of time to create effects. In addition, progressive realisation requires, for instance in the context of social security, that a state has a comprehensive social security system in place and carries out regular reviews of it to ensure that it is consistent with the right to social security.11 However, regular reviews of legislation or mechanisms without any improvements in the level of rights enjoyment would not pass the progressive realisation test.

The second argument is that states cannot pursue deliberate retrogressive measures, as progressive realisation also implies that deliberate retrogressive measures are not permissible and have to be fully justified by reference to the totality of rights. In this regard, the CESCR has stated that there is a strong presumption of impermissibility of any retrogressive measures taken in relation to rights such as education and water; retrogressive measures should in principle not be taken in relation to the right to work; and any retrogressive measures would have to be fully justified.12 In relation to justifying retrogressive measures, Liebenberg has stated that such measures may be justifiable where, for example, a state can show that the retrogressive measures are necessary to achieve equity in the realisation of the right or a more sustainable basis for adequate realisation of the rights. She, however, cautions that where retrogressive measures result in depriving marginalised and vulnerable groups of access to basic social services, weighty justifications should be required.13 In relation to the right to social security, the CESCR has listed a number of issues it would consider when retrogressive social security measures are being justified: whether there was reasonable justification for the action; whether alternatives were comprehensively examined; whether there was genuine participation of affected groups in examining the proposed measures and alternatives; whether the measures will have a sustained impact on the realisation of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and whether there was an independent review of the measures at the national level.14

The third argument is that progressive realisation requires that special measures for vulnerable and disadvantaged groups need to be put in place. States are required to do more than abstain from taking measures that might have a negative impact on the enjoyment of their rights. The obligation on the state is to take positive action to reduce structural inequality and to give appropriate preferential treatment to vulnerable and marginalised groups. Positive action includes specially tailored measures or additional resource allocation for these groups.15

As observed earlier, the African Charter is silent on the progressive realisation terminology.16 However, in its elaboration on the nature of the obligations of states parties to the African Charter, the African Commission has stated:

While the African Charter does not expressly refer to the principle of progressive realisation this concept is widely accepted in the interpretation of economic, social and cultural rights and has been implied into the Charter inaccordance with articles 61 and 62 of the African Charter. States parties are therefore under a continuing duty to move as expeditiously and effectively as possible towards the full realisation of economic, social and cultural rights.17

The Commission's development of this concept in its jurisprudence is however limited. It is clear from its Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights that the Commission's has adopted the CESCR's understanding of the concept.18

2 2 The Constitutional Court

The Constitutional Court has held that the understanding and meaning of the phrase "progressive realisation", as contained in General Comment No 3, accords with the context in which the concept is used in the South African Constitution, and thus bears the same meaning.19 The Court observed in Grootboom that though the right could not be realised immediately, the state must take steps to achieve the goal of the Constitution, which is that "the basic needs of all in our society be effectively met". The Court, however, as seen below, rejects the minimum core concept, which as I argue in this article, should be seen as part of the concept of progressive realisation. Notwithstanding this, the Court added that progressive realisation means that "accessibility should be progressively facilitated: legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time". Also, the right must be made more accessible not only to a larger number of people but to a wider range of people as time progresses.20 However, the Court in its subsequent jurisprudence has not engaged with the latter aspect.

In another case, the Court held that progressive realisation requires that the state "must accelerate reasonable and progressive schemes to ameliorate vast areas of deprivation".21 Thus, as Liebenberg observes, even where people already have access to socio-economic rights, progressive realisation places a duty on the state to improve the nature and the quality of the services to which people have access.22 However, the Constitutional Court failed to engage with this aspect in Mazibuko, referred to subsequently in this article. In Modderklip, the Court held in relation to the right to adequate housing that "[t]he progressive realisation of access to adequate housing, as promised in the Constitution, requires careful planning and fair procedures made known in advance to those most affected. Orderly and predictable processes are vital".23 Progressive realisation also requires that measures adopted must be flexible so as to adapt to changing situations.24 It thus, as observed by Bilchitz,

involves an improvement in the adequacy of housing for the meeting of human interests ... it means that each is entitled as a matter of priority to basic housing provision, which the government is required to improve gradually over time.25

The Constitutional Court adopted a restrictive approach to the concept in Mazibuko, stating that the concept "recognises that policies formulated by the state will need to be reviewed and revised to ensure that the realisation of social and economic rights is progressively achieved".26 The Court was therefore of the view that the revision of policies over the years is consistent with the obligation to ensure progressive realisation of rights,27 regardless of what the revision entailed and whether it met the basic needs of people or without any consideration of the content of the right or the need of people. The Court was also of the view that progressive realisation requires increasing access to a right on a progressive basis, especially for the poor and disadvantaged groups.28 However, the Court's analysis is lacking in relation to a thorough assessment of the extent to which the provision of the right in question has increased. The Court noted in this case that the municipality had continued to review its policy regularly and undertaken sophisticated research to seek to ensure that it meets the needs of the poor within the city of Johannesburg. The Court found the continual revision of the policy in question in the ensuing years to have improved the policy in a manner entirely consistent with an obligation of progressive realisation.29 It stated that "[a] policy that is set in stone and never revisited is unlikely to be a policy that will result in the progressive realisation of rights consistently with the obligations imposed by the social and economic rights in our Co