What future for the minimum core? Contextualising the implications of South African socioeconomic rights jurisprudence for the international human right to health

Abstract

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 health care services has served to considerably erode traditional objections to social rights, illustrating that judicial enforcement of these rights is not only feasible in developing countries, but 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 prioritized 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.