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Socio-Economic Rights and Their Implementation: The Impact of Domestic and International Instruments

Published online by Cambridge University Press:  28 February 2019

Gerhard Erasmus
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Extract

Socio-economic rights are those human rights that aim to secure for all members of a particular society a basic quality of life in terms of food, water, shelter, education, health care and housing. They differ from traditional civil and political rights such as the right to equality, personal liberty, property, free speech and association. These “traditional human rights” are now found in most democratic constitutions and are, as a rule, enshrined in a Bill of Rights; which is that part of the Constitution that is normally enforced through mechanisms such as judicial review. The victims of the violation of such rights have a legal remedy. Individual freedom is a primary value underpinning civil and political rights.

Type
Proceedings
Information
International Journal of Legal Information , Volume 32 , Issue 2 , Summer 2004 , pp. 243 - 259
Copyright
Copyright © 2004 by the International Association of Law Libraries. 

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References

1 For a general discussion see Waal, Johan de Currie, Iain and Erasmus, Gerhard, The Bill of Rights Handbook. 4th edition. Juta and Company, Cape Town, 2001. 431 p.Google Scholar

2 Ibid. at 199-200.Google Scholar

3 For a discussion of the process in terms of which the new South African Constitution was adopted see ibid. at 5-6.Google Scholar

4 The adoption of the South African Constitution of 1996 was preceded by a complicated process consisting of an Interim Constitution containing 34 Constitutional Principles which had to be respected and included in the Final Constitution. The Constitutional Court, established in 1994, had to rule on whether all these principles had been included. As part of that “certification debate” the content of the bill of rights was also scrutinized. See Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (First Certification judgment) 1996 (4) SA 744 (CC) paras 77-78.Google Scholar

5 2000 (11) BCLR 1169 (CC).Google Scholar

6 Section 26(1), South African Constitution. The full text of this provision reads: (1) Every one has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.Google Scholar

7 See also sections 27 and 25 of the Constitution.Google Scholar

8 Grootboom judgment para 41.Google Scholar

9 See de Waal, Currieand Erasmus, 451.Google Scholar

10 2002 (5) SA Law Reports 721 (CC).Google Scholar

11 For a detailed discussion of these issues see Liebenberg, Sandra“South Africa's evolving jurisprudence on socio-economic rights: An effective task in challenging poverty?” in Law Democracy and Development 6 (2002:2): 159-191, University of the Western Cape.Google Scholar

12 Section 172(1)(a) and section 2 on the supremacy of the Constitution.Google Scholar

13 The proposed “International Trade Organization” did not come into existence mainly because of the refusal by the American Senate to ratify its charter.Google Scholar

14 Now counting 148 members.Google Scholar

15 Trade in services happens according to one or a combination of the following 4 modes of supply, namely the cross-border movement of service products; movement of consumers to the country of importation; establishment of a commercial presence in the country where the service is provided; and the temporary movement of natural persons to another country, in order to provide the service there.Google Scholar