What future for the minimum core?

What future for the minimum core?

Contextualising the implications of South African socioeconomic rights jurisprudence for the international human right to health

Lisa Forman

1 Introduction

The South African Constitutional Court’s emerging jurisprudence on the right to health has provided a ground-breaking and often controversial illustration of this right’s justiciability. The Court’s enforcement of South Africa’s constitutional right to access healthcare services has served considerably to erode traditional objections to social rights, illustrating that judicial enforcement of these rights is not only feasible in developing countries, but also may effectively challenge the irrational and uncaring governance that so often perpetuates and exacerbates gross health inequalities. The Court’s approach nonetheless poses challenging theoretical questions, given its adoption of a standard of reasonableness to adjudicate potential social rights violations, and its consequent rejection of an enforceable minimum core to these rights. The minimum core concept reflects the fundamental human rights idea that certain individual interests, including the basic health needs of the poor, should be prioritised at any cost. The core suggests that social rights, and the interests they reflect, should place reasonable limits on political and economic actions that intrude so far into basic needs as to render human dignity and equal worth meaningless. The Court’s rejection of this idea, and the apparent rupture of the Court’s approach from human rights law, begs to be reconciled with international legal theory and practice, so that the validity of international human rights law as an authoritative and indeed realistic guide for State action and judicial review is not diminished, and so that the innovative work of the South African Constitutional Court is not seen to reinforce indefensible objections to social rights.

My chapter explores this apparent disjuncture between international and South African law, by surveying persistent objections to social rights and the right to health, as well as advances made against these objections through the interpretation of international human rights law. I then turn to evaluate in this light relevant South African jurisprudence related to health, and close by analysing the implications of this jurisprudence for international human-rights law theory and practice associated with the right to health.

2 Exploring objections to the right to health

Broad domestic legal recognition and enforcement of the right to health has often been constrained by a range of theoretical and practical objections: that the right is not universal, and so conceptually amorphous as to be meaningless, and allied to this that a right to any level of healthcare would make zero-sum claims on budgets that would irrationally distort resource allocations to the detriment of the public good (Harvard Human Rights Program, Harvard Law School, and the Francois-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health 1995). Central to these objections is the characterisation of social and civil rights as positive and negative rights, respectively. In this view, positive rights are seen as requiring extensive State action and resources to be realised, in contrast to negative rights, which are seen as simply requiring inaction and limited resources to be realised. Thus, it is argued that legal enforcement of positive rights would require courts without institutional competence to make budgetary allocations and social policy, which would breach the democratic separation of powers. These logics have long motivated academics, governments and courts to refute the appropriately legal nature of economic and social rights, and to suggest that they are rather political, aspirational or programmatic rights more appropriately claimed through the ballot box (Cranston 1973; Steiner and Alston 2000: 267). As a result, domestic adjudicators are often overly deferential to social and economic policy, and reluctant to recognise and enforce positive obligations pertaining to social welfare.1

While the positive–negative distinction has philosophical roots in the moral philosophy of Immanuel Kant and Isaiah Berlin (Berlin 1969), it has effectively become shorthand for action–inaction and resource-intensive–resource-free, respectively. This contraction is a considerably inaccurate description of both the activity and resources that social and civil rights may in fact impose on governments, since government inaction alone may not secure people’s freedoms, and achieving this goal may require an active legal and policy process. Realising ostensibly negative rights may therefore require extensive government action and resources.

These ideas effectively illustrated in social-rights commentary, demonstrating the considerable and often greater costs of realising civil as compared to social rights. For example, in the US context, Stephen Holmes and Cass Sunstein draw figures from the 1996 US Budget, which show considerably greater state expenditure on realising property rights than education rights [US$ 6.6 billion against US$2.1 billion, respectively (Holmes and Sunstein 2000: 233)]. Similarly, Jeremy Waldron argues that a range of civil and political rights, seen as requiring only that the State desist from action in their fulfillment, are in fact extremely resource-demanding, requiring the establishment and maintenance of frameworks that make costly claims on scarce police and forensic resources (Waldron 1993: 24). Indeed, the inaccuracy of the positive and negative distinction when it comes to describing the broad range of action necessary to realise rights is reflected in evolving human rights doctrine. These ideas have been promoted most persuasively by Henry Shue, who suggests that since fulfilling rights may require multiple kinds of actions, the useful distinction is not between rights, but between duties (Shue 1980: 52–3). Shue argues that the fulfilment of each kind of right requires the performance of multiple kinds of duties, and that we should understand each right as imposing three kinds of duties – namely, to avoid depriving, to protect from deprivation and to aid the deprived (Shue 1980: 52).

This idea of a typology of duties was further developed in human rights scholarship by Asborjn Eide during his tenure as UN Special Rapporteur on the Right to Food (Eide et al. 1995). The concept formally entered into international human rights law doctrine in the early 1990s, as the tripartite typology of duties to respect, protect and fulfil that all rights are said to impose (United Nations 1991). Thus, the duty to respect imposes a negative obligation to desist from interfering with people’s enjoyment of rights; the duty to protect requires the State to prevent third-party interference with people’s rights; and the duty to promote and fulfil describes the State’s positive obligation to realise access.

While this typology effectively illustrates that all rights impose both positive and negative duties, the positive–negative conception of social and civil rights persists in legal cultures globally, particularly among lawyers educated with this idea as doctrine. However, even where the newer paradigm of duties is recognised, the typology itself may nonetheless simply internalise the old paradigm that assumes duties to fulfil are resource-heavy and duties to respect are not. Moreover the typology may reinforce perceptions that social rights tend heavily towards the fulfil duty, while civil rights are more often fulfilled through realisation of the respect duty. As Shue indicates, realising social rights does not necessarily require that the State provide goods (although it may), but may instead require that State actors prevent people from being deprived of commodities or the means to grow, make or buy them, including through addressing the institutional and systemic causes of deprivation (Shue 1980: 41). Shue argues that achieving these goals need not be any more positive, unrealistic or unaffordable than designing programmes to control violent crime. Indeed he argues, ‘neither looks simple, cheap or “negative” ’ (Shue 1980: 45).

In this light, the persistence of the positive–negative distinction between social and civil rights, despite its obvious inaccuracy, is perhaps explained more by ideology than a lack of knowledge. Indeed, post-Second World War schisms between social and civil rights are deeply rooted in Cold War geopolitical tensions, where economic, social and cultural rights came to be associated with socialism, and civil and political rights with Western capitalism. As a result, civil and political rights have often been prioritised over economic and social rights in Western countries, reflected in the notionally temporal but in fact hierarchical categorisation of civil and social rights as first and second generation rights, respectively.

The ideological roots of the distinction between social and civil rights are reified in the positive–negative distinction between these two sets of rights. In this regard, it is notable that this distinction fits neatly into the liberal conception of a non-interventionist State that protects individual freedoms and private property, in contrast to a redistributive State that regulates individual freedom and economic action (Forman 2008a). Similar conceptions of appropriate State action are reflected in liberalism’s variants: from the libertarian notion that only a minimal State enforcing contracts and protecting against force, theft and fraud is justified (Nozick 1974: ix), to the core principles of neoliberalism, which hold that government should shrink itself through fiscal austerity, privatisation and deregulation, in order to enable free markets (Williamson 2002). The paradox is that if civil freedoms and property protection actually require extensive resources and State action to be realised, then even a minimal, night-watchman-type State may be interventionist and redistributive, albeit that it may favour the interests of private property and not the poor. In any event, meeting subsistence needs cannot be inconsistent with philosophies focusing on individual autonomy, given how extensively autonomy depends on adequate food, shelter and healthcare (see for example, Sen 2000). In this light, it is likely fair to say that one cannot be concerned with freedom without being concerned with subsistence, unless one is only concerned with the freedom of those who do not lack subsistence. Nonetheless, the ascendance of liberal-oriented constitutional democracy and neoliberal-oriented global economic laws pose conceptual and strategic challenges to advancing the right to health, given the reluctance of courts and governments to interfere with individual or corporate freedom and markets. The challenge therefore is to counter both practical and ideological objections to recognising and enforcing the right to health, and to recognise that, for policymakers and judges, the distinctions between pragmatism and ideology may have become considerably blurred (Forman 2008a).

3 Developing the right to health in international law

Objections to the universality and appropriate legality of the right to health are contradicted by the extensive entrenchment of this right in international and regional human rights treaties, illustrated in Box 1 below. Many of these treaties now hold almost universal ratification. For example, 193 States, an effective universality, are party to the Children’s Rights Convention (CRC); 185 States have ratified the Convention on the Elimination of Discrimination Against Women (CEDAW); 173 have ratified the Convention on the Elimination of Racial Discrimination (CERD); and 157 have ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR) (United Nations Office of the High Commissioner for Human Rights 2008). All of these treaties contain rights related to the non-discriminatory provision of healthcare services.

Box 1: International and regional treaties containing rights to health

United Nations, International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, Art 12.1

United Nations, International Convention on the Rights of the Child, 20 November 1989, U.K.T.S. 1992 No. 44, 28 I.L.M. 1448 1989, Art 24.1

United Nations, International Convention on the Elimination of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 195, 5 I.L.M. 352 1966, Art 5.e.iv

United Nations, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, U.K.T.S. 1989 No. 2, 19 I.L.M. 33 1980, Arts 11.1.f and 12

Council of Europe, The European Social Charter, 18 October 1961, 529 U.N.T.S. 89, Art 11

African Charter on Human and People’s Rights, 27 June 1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, 1982, Art 16

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador), 1988, Art 10.

Moreover, objections to the indeterminacy of the entitlements and duties that this right imposes hold considerably less validity given conceptual advances in the interpretation of social rights, and the right to health in particular. International legal expert principles, guidelines and UN Committee on Economic Social and Cultural Rights (CESCR) General Comments have significantly expanded the specificity of the general scope of social rights, and the entitlements and duties they create (See for example, Limburg 1986; Maastricht 1997; UN 1991). International human rights law commentaries have moved in particular to define the scope of the entitlement under the right to the highest attainable standard of health in Article 12 of the ICESCR, and the duties that progressive realisation within available resources places on States (UN 2000). This interpretive process has been necessary since, beyond identifying a limited number of explicit obligations, Art 12 provides little clarity about the scope of the right to the highest attainable standard of health and the nature of State obligations to progressively realise this right to the maximum of available resources. Since the highest attainable standard of health will vary between countries, depending on available resources and health needs, and since progressive realisation to the maximum of resources seems to imply a highly relative standard of fulfilment, Art 12 has often been misconstrued as an aspirational rather than enforceable individual right (see e.g. Cranston 1973; Goodman 2005).

In contrast, the Committee’s interpretation of this right in General Comment 14 indicates that the right to health is an inclusive right, which includes the right to healthcare and the underlying determinants of health, such as food, housing, access to water and adequate sanitation, safe working conditions and a healthy environment (UN 2000: para 4). The right is not a right to be healthy, but rather an entitlement to a system of health protection that provides equal opportunity for people to enjoy the highest attainable standard of health, and which includes a variety of facilities, goods, services and conditions necessary to realise this standard (UN 2000: paras 8, 9). The Committee interprets progressive realisation as requiring States to take immediate action and effective movement towards realising this right, which includes guaranteeing the non-discriminatory exercise of rights, and taking steps towards full realisation, which are deliberate, concrete and targeted as clearly as possible towards meeting treaty obligations (UN 2000: para 31). This means that while States can justify some healthcare deficiencies, they cannot justify the failure to work towards rectifying them. Further guidance on State obligations is provided by the tripartite framework of duties to respect, protect and fulfil rights (UN 2000: para. 33), which as indicated above, impose a range of positive and negative duties on States to realise rights in various contexts.

An important component of this interpretive framework is the notion that social rights contain minimum essential levels – an idea suggested in the ICESCR – which indicates that the rights contained within it can only be limited in so far as is compatible with their nature (UN 1966: Art 4, see Box 1). The ICESCR also specifies that acts aimed at destroying these rights are not permitted (UN 1966: Art 5.1), an idea inherent to the human rights priority placed on human dignity, equal worth and life. This suggests, in the context of the right to health, that acts conducted with the specific intent (rather than simply having the effect) of destroying realisation of the right to health are impermissible.

Following on this idea of a floor for restrictions on social rights, the non-binding 1986 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights proposed that State Parties be obligated to ensure respect for minimum subsistence rights for all regardless of their level of economic development (paras 25, 28). This idea was expanded in the non-binding 1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, which suggested that failures to satisfy minimum core obligations violated the Covenant, and that States had minimum core obligations irrespective of the national availability of resources or other factors or difficulties (para 9).

The CESCR first incorporated minimum core obligations into its interpretations of the ICESCR in General Comment 3, which holds core obligations to be a right’s minimum essential levels; in relation to health, this would include ‘essential primary healthcare’ (UN 1966: para 10). The Committee applies the core concept to health in General Comment 14 in the context of a broader conceptual framework for this right. The Committee’s notion of the core includes the related idea that, irrespective of development levels, the right to health contains essential elements such as public health and healthcare facilities, goods and services, including hospitals, clinics, personnel and essential drugs, which are available in sufficient quantity and standards, accessible to all physically, economically and without distinction and of good quality (UN 2000: para 12). Allied to this idea, States are held to have core obligations that include at least: ensuring non-discriminatory access to health facilities, goods and services, especially for vulnerable or marginalised people; access to food, basic shelter, housing, sanitation and water; providing essential drugs as defined by WHO; ensuring equitable distribution of all health facilities, goods and services and adopting a national public health strategy and plan of action addressing the concerns of all (UN 2000: para 43).

One of the most legally significant developments in General Comment 14 is its shift in the standard of compliance required for core obligations. In General Comment 3, a State could justify non-compliance with minimum core obligations by demonstrating every effort to use all resources available to satisfy these obligations as a matter of priority. However, in General Comment 14, the Committee instead asserts that ‘a State Party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations … which are non-derogable’ (UN 2000: para 47).

This latter formulation poses obvious pragmatic problems: the suggestion that a country where many lack adequate healthcare, running water, food or shelter is a prima facie violator of social rights sounds like nothing more than an admonishment to the country not to be poor. Given this potentially irreconcilable disjuncture between theory and reality, the Committee’s move towards viewing the core as non-derogable may reflect a doctrinal overreach. Yet, whatever the extent of derogability permitted in relation to the core, the primary significance of the concept should not be overlooked. The core concept provides what can be seen as a rights-based approach to systemic deprivation, suggesting that where large numbers of people lack realisation of their basic needs, this should not be viewed from a human rights perspective as an irremediable misfortune. Instead, the core concept suggests that such deprivations should instead be seen as a potential violation of the right to health.

The core concept therefore suggests that meeting basic needs must take temporal and resource priority in the State’s realisation of rights, and that governmental failures to remedy these deprivations and assist those without access to the basic necessities required to live autonomous and dignified lives should be held to the highest levels of scrutiny. If governments simply lack resources to meet basic needs, they must prove incapacity and not just unwillingness. This distinction between willingness and ability is emphasised in the CESCR’s General Comment on health, and provides a commonsense framework for assessing the rights-violations potentially inherent within gross health inequities (UN 2000: para 47).