Unpacking “progressive realisation”, its

relation to resources, minimum core and

reasonableness, and some methodological
considerations for assessing compliance*
Lillian Chenwi
LLB, Maîtrise in Law, LLM, LLD
Associate Professor, School of Law, University of the Witwatersrand

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

*1 This article is based on research carried out for the Studies in Poverty and
Inequality Institute in 2010. The article is a shortened but revised version of
the research paper that was produced. It has been revised to include,
among others, information from the African Commission on Human and
Peoples’ Rights and two other methodologies in measuring progressive
realisation. I would like to thank Jackie Dugard for her valuable comments
on an earlier draft of the current article.
1 South Africa has signed but not yet ratified the ICESCR; however, it acts as
persuasive authority in the interpretation of rights by virtue of ss 39, 233
Constitution. At the time of writing, Cabinet had approved South Africa’s
ratification of the ICESCR but it is yet to be tabled before Parliament. See
“Statement on Cabinet meeting of 10 October 2012”, [Link]
[Link]/content/newsroom/media-releases/cabstatements/11Ict2012
(accessed 2013-07-08)
742
 Unpacking “progressive realisation” 743

Constitution of the Republic of South Africa, 1996 (the Constitution) are

some of the human rights instruments which recognise that socio-
economic 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

2 Fukuda-Parr, Lawson-Remer & Randolph “Measuring the Progressive

Realization of Human Rights Obligations: An Index of Economic and Social
Rights Fulfilment” (2008) Department of Economics Working Paper Series 22
(University of Connecticut) 7.
3 The CESCR is the supervisory body of the ICESCR. It monitors
implementation of the ICESCR and compliance of states with their
obligations contained therein through the reporting mechanism – through
which states have to submit reports regularly to the Committee on their
implementation of the rights in the ICESCR. With the entry into force of the
Optional Protocol to the ICESCR on 20130505 (it was adopted in 2008), the
CESCR can receive complaints on violations of the rights in the ICESCR.
The Committee has elaborated on content of various socio-economic rights
and on state obligations in the form of general comments.
4 The African Commission is the supervisory body of the African Charter;
and has issued some landmark rulings on socio-economic rights.
744 2013 De Jure

acknowledging synergies and analyses strengths and weaknesses in the

Court’s interpretations.
A consideration of the progressive realisation approach to socio-
economic 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

5 CESCR General Comment No 3 The Nature of States Parties Obligations UN

doc E/1991/23 (1990) par 9.
6 CESCR General Comment No 13 The Right to Education UN doc E/C12/
1999/10 (1999) par 44.
7 Idem par 14.
8 Idem par 44. See also CESCR General Comment No 18 The Right to Work
UN doc E/C12/GC/18 (2006) par 20
 Unpacking “progressive realisation” 745

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,

9 Limburg Principles on the Implementation of the ICESCR UN doc E/CN4/

1987/17, Annex, par 21; reproduced in 1987 Human Rights Q’ly 122-135.
The Limburg principles have been a source of authoritative interpretation of
rights at both the international and national levels.
10 CESCR General Comment No 11 Plans of Action for Primary Education UN
doc E/C12/1999/4 (1999) par 10.
11 CESCR General Comment No 19 The Right to Social Security UN doc E/C12/
GC/19 (2008) par 68.
12 General Comment No 13 par 45; CESCR General Comment No 15 The Right
to Water UN doc E/C12/2002/11 (2003) par 19; General Comment No 18 par
21.
746 2013 De Jure

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 in

13 Liebenberg, Socio-Economic Rights Adjudication under a Transformative

Constitution (2010) 190. Liebenberg also considers an interpretative
difficulty that arises when dealing with the concepts of progressive
realisation and retrogressive measures (189).
14 General Comment No 19 par 42.
15 CESCR General Comment No 5 Persons with Disabilities UN doc E/1995/22
(1994) par 9.
16 Contrast this with the African Charter on the Rights and Welfare of the
Child, 1990, which uses the progressive realisation qualification (see art
11(3)(b) on children’s right to education – the obligation of states to
“progressively” make secondary education free and compulsory, art 13(3)
on special measures of protection for handicapped children – obligation of
states to “progressively” achieve “the full convenience of the mentally and
physically disabled person to movement and access to public highway
buildings and other places to which the disabled may legitimately want to
have access to”). A consideration of the jurisprudence of the African
Committee of Experts on the Rights and Welfare of the Child is beyond the
scope of this paper but it is worth mentioning that its decision in the Nubian
case highlights some elements of progressive realisation discourse in
relation to education and health care (see generally Institute for Human
Rights and Development in Africa (IHRDA) and Open Society Justice Initiative
on behalf of Children of Nubian Descent in Kenya v The Government of Kenya
Communication No Com/002/2009 2011-03-22).
 Unpacking “progressive realisation” 747

accordance 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

17 African Commission on Human and Peoples’ Rights Principles and

Guidelines on the Implementation of Economic, Social and Cultural Rights in
the African Charter on Human and Peoples’ Rights par 14. The Principles and
Guidelines were formerly launched in 2011.
18 Idem parr 13-15.
19 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)
par 45 (right to adequate housing in the context of an eviction).
20 Ibid.
21 Minister of Health v New Clicks South Africa (Pty) Ltd 2006 8 BCLR 872 (CC)
par 705 (regulatory measures in relation to medicines – pricing system for
medicines and scheduled substances published by the Minister of Health).
22 Liebenberg 188.
748 2013 De Jure

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 Constitution”.30 While regular review in this case improved
the policy, the question left unanswered is whether it also improved the
level of rights enjoyment. Hence, does regular review per se result in

23 President of the Republic of South Africa v Moddderklip Boerdery (Pty) Ltd

2005 8 BCLR 786 (CC) par 49 (a private landowner’s efforts to execute an
eviction order granted by the High Court against a community occupying
its land).
24 Ibid.
25 Bilchitz Poverty Reduction and Fundamental Rights: The justification and
Enforcement of Socio-Economic Rights (2007) 193.
26 Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC) parr 40, 67 (the right
of access to water – constitutionality of prepaid water metres and
sufficiency of free basic water).
27 Idem parr 40, 67, 162, 163.
28 Idem par 97.
29 Idem par 163.
30 Idem par 162.
 Unpacking “progressive realisation” 749

actual improvement in the enjoyment of rights? While the Court

acknowledges that progressive realisation also requires that access be
continuously broadened, it does not actually engage with this. The Court
thus took a restrictive approach by limiting its analysis to one aspect of
progressive realisation – that of regular review of policies. Thus, all that
the state had to show was that it regularly reviews its policies. However,
regular review in itself is not sufficient as improvement in the enjoyment
of rights is also required. The Court’s approach in this case is restrictive
and problematic because of the reality of poor households being left for
days or weeks at a time each month without access to water, and
notwithstanding a right of access to sufficient water in the Constitution.

3 Elaborating on How Progressive Realisation

Relates to Resources, Minimum Core and
Reasonableness
3 1 Progressive Realisation and Resources
The pace at which socio-economic rights are progressively realised
depends on the resource availability to a state. This is because states have
to take full advantage of their available resources to ensure that these
rights are fully realised without discrimination of any kind. However, a
state cannot escape the obligation to adopt a plan of action on the ground
that the necessary resources are not available.31 Resources in this
context imply the resources both within a state (internal resources) and
those available through international assistance and co-operation
(external resources).32 Furthermore, resources are also not limited to
financial or human resources; information and technology, for example,
are also resources essential in fulfilling most of the rights in the ICESCR.33
In addition, progressive realisation and resource availability implies that
some states’ obligations under the ICESCR may vary from one state to
another. Also, in relation to the same state, some obligations may vary
over time.34
3 1 1 Internal Resources, Budget Consideration and Review
3 1 1 1 The CESCR
Though progressive realisation depends on resources, the obligation
exists independently of the increase in resources, as it requires effective

31 General Comment No 11 par 9.

32 General Comment No 3 par 13; Limburg Principles par 26.
33 See Robertson “Measuring State Compliance with the Obligation to Devote
the Maximum Available Resources to the Realizing Economic, Social, and
Cultural Rights” 1994 Human Rights Q’ly 693 695-697.
34 Felner “Closing the ‘Escape Hatch’: A Toolkit to Monitor the Progressive
Realization of Economic, Social and Cultural Rights” 2009 J Human Rights
Practice 402 406.
750 2013 De Jure

use of resources available.35 It can be effected not only by increase in

resources but also the development of societal resources necessary for
the realisation of rights.36 Attention must be paid to equitable and
effective use of and access to the available resources in determining
whether adequate measures have been taken for the realisation of socio-
economic rights.37 When using available resources, states have to ensure
the satisfaction of subsistence requirements and the provision of
essential services.38 Where available resources are demonstrably
inadequate, the obligation remains for a state to strive to ensure the
widest possible enjoyment of the relevant rights under the prevailing
circumstances;39 and vulnerable members of society must be protected
by the adoption of relatively low cost programmes.40 The progressive
realisation obligation is therefore not completely eliminated due to
resource constraints,41 because resource constraints alone cannot justify
inaction.42 For example, in its concluding observations on the
Democratic Republic of the Congo (DRC), while recognising the
difficulties faced by the state, the CESCR stated that “budgetary
constraints should not be invoked as the only justification for the lack of
progress towards the establishment of a social security system”.43
Furthermore, the essential needs of members of vulnerable and
disadvantaged groups must be prioritised in all resource allocation
processes.44 In this regard, in relation to the right to social security, the
CESCR has stated that even where there is limited capacity to finance
social security, it is important for social security schemes to cover
disadvantaged and marginalised groups. Low-cost and alternative
schemes could be developed to cover immediately those without access.
Policies and legislative frameworks could be adopted for the progressive
inclusion of those in informal economy or who are otherwise excluded
from social security.45 The Committee has also requested the states to
allocate sufficient budgetary resources to ensure the implementation of
a comprehensive housing plan and policies especially for low-income
groups and marginalised individuals and groups.46 It has also requested

35 Limburg Principles par 23.

36 Idem par 24.
37 Idem par 27.
38 Idem par 28.
39 General Comment No 3 par 11.
40 Idem par 12.
41 Idem par 11.
42 UN doc E/C12/2007/1 par 4.
43 UN doc E/C12/COD/CO/4 par 24.
44 See General Comment No 3 par 10; General Comment No 15 parr 37-38;
Limburg Principles parr 25-28; Maastricht Guidelines parr 9-10. See also
CESCR General Comment No 14 The Right to the Highest Attainable Standard
of Health UN doc E/C12/2000/4 (2000) parr 43-47.
45 General Comment No 19 par 51.
46 CESCR Concluding Observations on the Initial to Third Periodic Reports of
Angola UN doc E/C12/AGO/CO/3 20081201 par 30; CESCR Concluding
Observations on the Combined Initial and Second and Third Periodic Reports
of Chad UN doc E/C12/TCD/CO/3 (2009) par 27.
 Unpacking “progressive realisation” 751

a state to ensure that the maximum available resources are allocated to

the protection and fulfilment of socio-economic rights, especially to the
most vulnerable and marginalised individuals and groups.47
As mentioned above, the prohibition of retrogressive steps is a
component of the progressive realisation concept. The prohibition is an
immediate obligation not subject to the availability of resources; and any
retrogression, as stated above, has to be fully justified not only with
reference to the totality of rights but also with reference to the full use of
available resources. The CESCR has stated that if a state uses resource
constraints as an explanation for retrogressive steps, such information
would be assessed taking into consideration a number of criteria
including:
(a) the country’s level of development;
(b) the severity of the alleged breach, in particular whether the situation
concerned the enjoyment of the minimum core content of the
Covenant;
(c) the country’s current economic situation, in particular whether the
country was undergoing a period of economic recession;
(d) the existence of other serious claims on the State party’s limited
resources; for example, resulting from a recent natural disaster or from
recent internal or international armed conflict.
(e) whether the State party had sought to identify low-cost options; and
(f) whether the State party had sought cooperation and assistance or
rejected offers of resources from the international community for the
purpose of implementing the provisions of the Covenant without
sufficient reason.48

3 1 1 2 The Constitutional Court

Unlike the ICESCR which uses the phrase “to the maximum of its
available resources”, the South African Constitution uses “within
available resources”, which implies that the obligation placed on the state
does not require more than its available resources. McLean has observed
in this regard that the phrase as used in the South African Constitution
could refer to the resources that the state has made available or all
resources that are potentially available to meet the state’s obligations.
She adds that the latter would require an assessment by the courts as to
whether the state has made suitable budgetary allocation to realise the
right in question.49 Mbazira has however pointed out, and quite correctly
so, that the differences in the phrase as used in the ICESCR and in the
South African Constitution is at best nomenclature,50

47 CESCR Concluding Observations on the Combined Initial and Second to Fourth

Periodic Reports of Cambodia UN doc E/C12/KHM/CO/1 (2009) par 38.
48 CESCR UN doc E/C12/2007/1 par 10.
49 McLean Constitutional Deference, Courts and Socio-Economic Rights in South
Africa (2009) 195.
50 Mbazira Litigating Socio-Economic Rights in South Africa: A Choice between
Corrective and Distributive Justice (2009) 91.
752 2013 De Jure

In Soobramoney,51 the Constitutional Court held that the obligations

imposed on the state to progressively realise the right to have access to
housing, health care, food, water and social security are dependent upon
the resources available for such purposes, and that the corresponding
rights themselves are limited by reason of the lack of resources.52
Subsequently, in Grootboom, the Court stated that the content of the
obligation in relation to the rate at which it is achieved as well as the
reasonableness of the measures employed to achieve the result are
governed by the availability of resources.53 In TAC, the Court held that
the obligation does not require the state to do more than is achievable
within its available resources or to realise the rights immediately.54
Khosa however illustrates that in the absence of clear evidence to show
the additional cost of providing a right to an excluded group (in this case
permanent residents), a state cannot rely on resource constraints as an
excuse for not realising the right of that group.55 The Court was also of
the view that the importance of realising the rights of permanent
residents outweighed the financial considerations that the state relied on;
this is because a denial impacts on their life and dignity.56 In Olivia
Road,57 the Constitutional Court stated that the state cannot go beyond
the extent to which available resources allow, in the realisation of
rights.58 It however added that the concerned municipality had the duty
to take reasonable measures within its available resources to make the
right of access to adequate housing more accessible as time
progresses.59
There are apparently synergies between the Constitutional Court’s
approach and that of the CESCR. The Constitutional Court has however
not paid attention to external resources in its analysis. This could
arguably be because the resource implications raised by the current
cases “could be accommodated within existing budgetary allocations”.60
3 1 2 Aid / Foreign Assistance
The CESCR has observed that the obligation to use the maximum of
available resources entitles a state to seek and receive resources offered

51 Soobramoney v Minister of Health (KwaZulu Natal) 1998 1 SA 765 (CC)

(a challenge to the resource rationing policy of a state hospital).
52 Idem par 11. See also par 43.
53 Grootboom par 46.
54 Minister of Health v Treatment Action Campaign 2002 5SA 721 (CC) par 32
(the right of access to health care services – access to antiretrovirals).
55 Khosa v Minister of Social Development 2004 6 SA 505 (CC) par 62.
56 Khosa, par 82.
57 Occupiers of 51 Olivia Road v City of Johannesburg 2008 (5) BCLR 475 (CC)
(a challenge of several aspects of the City of Johannesburg’s practice of
evicting residents of so called “bad” buildings for health and safety
reasons).
58 Idem par 18.
59 Idem par 44.
60 Liebenberg 194.
 Unpacking “progressive realisation” 753

by the international community.61 It should be noted that all states are

entitled to get aid, whether or not they are state parties to the ICESCR,
especially as international human rights treaties and standards generally
recognise the need for states to seek aid in times of difficulties in realising
rights. Failure to do so would amount to a violation of this obligation.
Where international cooperation aid is provided to a state, a sustainable
institutional framework on the use of such aid must be adopted. If a state
fails to use aid or foreign assistance, the state would be in breach of its
obligation to take steps to the maximum of its resources towards the
progressive realisation of socio-economic rights. Also, development aid
must be allocated to priority sectors and a state must ensure that it uses
such aid for the progressive realisation of rights.62

3 2 Progressive Realisation and Minimum Core

3 2 1 The CESCR and African Commission
A minimum core approach to rights involves identifying such subsistence
levels in respect of each socio-economic right and insisting that the
provision of core goods and services enjoys immediate priority.63 It thus
represents a “floor” of immediately enforceable entitlements from which
progressive realisation should proceed. As recognised by the CESCR,
states have a minimum core obligation to ensure the satisfaction of, at
the very least, minimum essential levels of socio-economic rights.64
Minimum core obligations are meant to apply irrespective of the
availability of resources of the country concerned or any other factors
and difficulties.65 However, resource constraints are taken into account
in assessing whether a state is meeting its minimum core obligations.66
However, for a state to attribute failure to meet minimum core
obligations to resources, it must show that every effort has been made to
use all resources that are at its disposal in an effort to satisfy as a matter
of priority the minimum obligations.67
The African Commission has recognised minimum core obligations,
adopting the understanding of the CESCR in this regard.68 The
Commission has referred to minimum core obligations in its

61 CESCR An Evaluation of the Obligation to Take Steps to the “Maximum of

Available Resources” under an Optional Protocol to the Covenant UN doc E/
C12/2007/1 (2007) par 5.
62 CESCR Concluding Observations on the Combined Second to Fourth Periodic
Reports of the Democratic Republic of the Congo UN doc E/C12/COD/CO/4
2009-12-16 parr 16, 29.
63 Pieterse “Resuscitating Socio-Economic Rights: Constitutional Entitlements
to health care Services” 2006 SAJHR 473 481); see generally Brand &
Russell (eds) Exploring the Core Content of Socio-Economic Rights: South
African and International Perspectives (2002).
64 General Comment No 3 par 10.
65 Maastricht Guidelines par 9.
66 General Comment No 3 par 10.
67 Ibid.
68 Principles and Guidelines on the Implementation of Economic, Social and
Cultural Rights in the African Charter on Human and Peoples’ Rights par 17.
754 2013 De Jure

jurisprudence, particularly in relation to minimum duties of a state as

opposed to minimum essential levels of a right. In SERAC,69 the notion
of minimum duties is used in relation to the obligations of states to
“respect” and “protect” rights. The Commission, in the case, held as
follows:
[T]he minimum core of the right to food requires that the Nigerian
Government should not destroy or contaminate food sources. It should not
allow private parties to destroy or contaminate food sources, and prevent
peoples' efforts to feed themselves.70

The government's treatment of the Ogonis has violated all three minimum
duties of the right to food. The government has destroyed food sources
through its security forces and State Oil Company; has allowed private oil
companies to destroy food sources; and, through terror, has created
significant obstacles to Ogoni communities trying to feed themselves.71

It can thus be argued that meeting minimum essential levels of a right is

an initial step towards progressive realisation. It is therefore part and
parcel of the concept of progressive realisation.
3 2 2 The Constitutional Court
Unlike the CESCR, the Constitutional Court of South Africa has failed to
recognise minimum core obligations based on the diversity of people’s
varying needs and contexts as well as institutional and democratic
concerns (the Court saw itself as not equipped to determine what the
minimum core standards should be).72 However, while in the Court’s
view it might not be possible to give everyone access to a core service
immediately, the state must ensure that, as explained by the CESCR in
General Comment No 3, at the very least, a significant number of
individuals have access.
Notwithstanding its failure to consider a minimum core approach to
socio-economic rights, the Constitutional Court has acknowledged that
“there may be cases where it may be possible and appropriate to have
regard to the content of a minimum core obligation to determine
whether the measures taken by the State are reasonable”.73 Also that
“evidence in a particular case may show that there is a minimum core of
a particular service that should be taken into account in determining
whether measures adopted by the state are reasonable”.74 The Court has
however failed to revisit the issue – the door seems to be closed at least
for the foreseeable future. In spite of this, through the reasonableness

69 Social and Economic Rights Action Centre and the Centre for Economic and
Social Rights v Nigeria Communication 155/96 (2001) AHRLR 60 (alleged
violations of the rights to health, to dispose of wealth and natural resources,
to a clean environment and family rights).
70 Idem par 65
71 Idem par 66
72 Grootboom parr 32-33; TAC parr 34, 35, 38, 39; Mazibuko parr 60, 61.
73 Grootboom par 33.
74 TAC par 34
 Unpacking “progressive realisation” 755

approach (discussed briefly below), it is argued that the Court thus sets
minimum standards to be met in the progressive realisation of socio-
economic rights.
It must be emphasised that minimum core obligations should be
understood within the broader framework of progressive realisation, as
it does not imply that governments should fulfil the bare minimum and
then do nothing. The South African Court in Mazibuko, though not
endorsing the minimum core obligations approach, did state that it will
be reasonable for municipalities and provinces to strive first to achieve
the prescribed minimum standard then proceed to provide beyond this
standard for those to whom the minimum is already being supplied.75
Bilchitz has provided insight into the relationship between minimum
core and progressive realisation, observing that states have an obligation
to immediately realise a minimum level of provision of a right and then
to improve the level of provision beyond the minimum on a progressive
basis.76 He explains that progressive realisation recognises that
what government is required to do is to provide core services to everyone
without delay that will meet their survival needs and then qualitatively to
increase these services so as ultimately to meet the maximal interests that
the state is required to protect.77

This approach accords with the CESCR’s approach in General Comment

No 3 of viewing progressive realisation as including the provision of
minimum essential levels of a right, which a state is then required to
improve on with time. It also accord’s with the Constitutional Court’s
view of avoiding viewing minimum core as a self-standing right but one
that is relevant to reasonableness as stated above.

3 3 Progressive Realisation and Reasonableness

3 3 1 The CESCR and African Commission
The ICESCR does not refer to reasonableness but art 8(4) of the Optional
Protocol to the ICESCR endorses this standard of review. The Optional
Protocol is a mechanism through which socio-economic rights can be
adjudicated before the CESCR.78 The wording of article 8(4) of the
Optional Protocol to the ICESCR is derived from Grootboom.79 The
Optional Protocol, as mentioned above, only recently entered into force,
hence the lack of jurisprudence from the CESCR on a reasonableness

75 Mazibuko par 76.

76 Bilchitz “Towards a Reasonable Approach to the Minimum Core: Laying the
Foundations for Future Socio-Economic Rights Jurisprudence” 2003 SAJHR
1 11.
77 Idem 12.
78 For further reading on the Optional Protocol, see Chenwi “Correcting the
Historical Asymmetry between Rights: The Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights” 2009 Afr
Human Rights LJ 23.
79 Porter “The Reasonableness of Article 8(4): Adjudicating Claims from the
Margin” 2009 Nordic J Human Rights 39 49.
756 2013 De Jure

approach in relation to the progressive realisation. However, the

Committee has stated that in assessing state’s compliance with the
obligations under the ICESCR, it will assess the reasonableness of steps
taken, taking into account a number of factors including: the extent to
which the measures are “deliberate, concrete and targeted”; whether the
state “exercised its discretion in a non-discriminatory and non arbitrary
manner”; whether decisions not to allocate resources accords with
international human rights standards; whether the state, faced with
several policy options, adopted a less restrictive option; “the time frame
in which the steps were taken”; and whether the “precarious situation of
disadvantaged and marginalised individuals or groups” was taken into
account, in a non-discriminatory fashion but prioritised “grave situations
or situations of risk”.80
The reasonableness standard in the Optional Protocol acknowledges
the institutional roles and limitations in giving effect to the right to
effective remedies for socio-economic rights violations. The Committee’s
conception of the standard also places emphasis on transparent and
participative decision-making processes at the national level.81 In its
general comments82 and concluding observations,83 the CESCR has also
emphasised the importance of participation of right holders in decision-
making processes and genuine consultation in the development and
implementation of policies in relation to socio-economic rights.
Like the ICESCR, the African Charter is silent on the “reasonableness”
terminology. The African Commission, has however referred in its
jurisprudence to the obligation of states to “take reasonable and other
measures”84 and to take “concrete and targeted steps”85 to ensure
realisation of socio-economic rights, but does not elaborate on whether
this should be understood within the context of reasonableness as
developed by the South African Constitutional Court. The Commission

80 UN doc E/C12/2007/1 par 8.

81 Idem par 11.
82 See CESCR General Comment No 4 The Right to Adequate Housing UN doc
E/1992/23 (1991) parr 8, 12; General Comment No 5 par 14; CESCR
General Comment No 7 The Right to Adequate Housing : Forced Evictions UN
doc E/1998/22 annex IV parr 13, 15; General Comment No 14 par 54;
General Comment No 15 parr 48, 56; General Comment No 18 par 42;
CESCR General Comment No 17 The Right of Everyone to Benefit from the
Protection of the Moral and Material Interests Resulting from any Scientific,
Literacy or Artistic Production of which He or She is the Author UN doc E/C12/
GC/17 (2006) par 78.
83 See UN doc E/C12/FRA/CO/3 par 41; UN doc E/C12/NIC/CO/4 parr 11, 21.
84 Social and Economic Rights Action Centre and the Centre for Economic and
Social Rights v Nigeria Communication 155/96 (2001) AHRLR 60 par 52
85 Purohit and Moore v The Gambia Communication 241/2001 (2003) AHRLR
96 par 84. The Commission in this case “read into Article 16” on the right
to the best attainable state of physical and mental health, the obligation of
states to “take concrete and targeted steps, while taking full advantage of its
available resources, to ensure that the right to health is fully realised in all
its aspects without discrimination of any kind”. This provision thus has
some elements of progressive realisation as well as reasonableness.
 Unpacking “progressive realisation” 757

has also observed that the state bears the burden of proving that
measures adopted are reasonable;86 and that the measures should be
based on equality and objective and reasonable grounds.87
3 3 2 The Constitutional Court
The Constitutional Court employs the reasonableness approach in
assessing the government’s compliance with its socio-economic rights
obligations in the Constitution, which has been the subject of
considerable literature, and thus not restated here.88 However, if one
looks at the Court’s interpretation of progressive realisation stated above,
it is clear that the reasonableness approach is influenced by some aspects
of “progressive realisation” and “the availability of resources”.
Furthermore, the reasonableness approach has some elements of
minimum core obligations. While emphasising the progressive
realisation of socio-economic rights, the Constitutional Court also holds
that people in desperate need should not be left without any form of
assistance, intrinsically implying recognition of minimum core. The
Court in fact states in Khosa that “[a] society must seek to ensure that the
basic necessities of life are accessible to all if it is to be a society in which
human dignity, freedom and equality are foundational”.89 Based on this,
Bilchitz has concluded that in attempting to avoid recognising a
minimum core obligation, the Court has in fact incorporated an
obligation to meet, at the very minimum, the short-term needs into the
notion of reasonableness.90 The state is thus required to take immediate
interim measures of relief for those in desperate need.91
Requiring a state to take immediate measures or meet short-term
pressing needs does not release the state of its obligation to provide for
medium and long-term needs. Any measure aimed at the progressive
realisation, as discussed above, must aim at meeting the short-, medium-
and long-term needs, in order for it to pass the test of reasonableness. In
providing temporary alternative housing, as evident in the Constitutional
Court’s housing rights jurisprudence, the state cannot ignore its
obligation to make provision for permanent housing. Interim alternative

86 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya Communication
276/2003 (2010) par 172.
87 Idem parr 227, 238, 234, 296.
88 See, for example, Liebenberg “Socio-Economic Rights: Revisiting the
Reasonableness Review/Minimum Core Debate” in Constitutional
Conversations (eds Woolman & Bishops) (2008) 303-329; Liebenberg
“Enforcing Positive Socio-Economic Rights Claims: The South African Model
of Reasonableness Review” in The Road to a Remedy: Current Issues in the
Litigation of Economic, Social and Cultural Rights (eds Squires, Langford &
Thiele) (2005) 73-88.
89 Khosa par 52.
90 Bilchitz 149.
91 Kapindu, “From the Global to the Local: the Role of International Law in the
enforcement of Socio-Economic Rights in South Africa” (2009) Socio-
Economic Rights Research Series 6, Community Law Centre University of the
Western Cape 46.
758 2013 De Jure

accommodation is provided pending the provision of suitable permanent

housing by the government in consultation with those involved.92 The
Constitutional Court’s jurisprudence illustrates that it has focussed largely
on short-term needs, while leaving decisions on long-term needs in some
instances in the hands of the state.

4 Assessing Compliance with Progressive

Realisation: Some Methodological
Considerations
There are numerous methodologies to assess compliance with the
obligation to progressively realise socio-economic rights. The scope of
this article does not allow for a consideration of all existing
methodologies. The aim is to provide an overview of some of the
methodologies (albeit briefly as they have been the subject of previous
writings as seen below) while drawing from the jurisprudence of the
CESCR where relevant, in order to highlight some of the issues that
should be considered when assessing compliance with progressive
realisation. The South African Constitutional Court’s approach that
speaks to three of the methodologies is then briefly considered.
Assessing or monitoring compliance in respect of progressive
realisation can be carried out by civil society, institutions of democracy
or the state itself, depending on the purpose of the assessment. For
instance, while courts play a key role in monitoring socio-economic
rights through litigation brought before them, the Constitution mandates
the South African Human Rights Commission (SAHRC) to monitor
progressive realisation of socio-economic rights by the state.93 Sadly, the
SAHRC has failed to adequately carry out this task resulting in questions
on its capacity to monitor progressive realisation and calls for an
appropriate monitoring model.94 The Court has also adopted a restrictive
approach in undertaking this task. It must also be stressed that the scope
and methods to assessing compliance with progressive realisation varies,
based on who is conducting the monitoring and its purpose.

4 1 Overview of Selected Methodologies

Current methodologies include, but are not limited to, indicators and
benchmarks, budget and expenditure analysis, violations approach, and
“combined” approaches (or methodologies that combine various
approaches). There are also various econometrics methodologies, but the

92 See generally Olivia Road & Joe Slovo cases.

93 S 184(3) Constitution.
94 Klaaren “A Second Look at the South African Human Rights Commission,
Access to Information, and the Promotion of Socioeconomic Rights” 2005
Human Rights Q’ly 539 550, 554.
 Unpacking “progressive realisation” 759

scope of this article does not allow for their consideration, and
econometric tools are also quite complex.95
4 1 1 Indicators and Benchmarks
Indicators and benchmarks are seen as important ways to monitor
progress, stagnation or retrogression in the realisation of a right over a
certain period of time.96 An indicator is a fact that indicates the state or
level of something, such as literacy rates.97 It is important in dissociating
unwillingness and the lack of commitment from incapacity.
Benchmarks are targets relating to a given human right indicator, such
as child mortality rates, to be achieved over a period of time (for example
to halve the child mortality rate in 10 years).98 Benchmarks can provide
an extremely valuable indication of progress and, accordingly, states are
required to provide indicators and benchmarks in framework legislation
and plans aimed at the realisation of rights.99 In practice though, states
have failed to meet the obligation to set indicators and benchmarks as
can be seen from various concluding observations of the CESCR.100
Concerns have been raised regarding the use of indicators and
benchmarks alone in monitoring the progressing realisation of socio-
economic rights based, largely on, the lack of information (because
information produced by the state is often inaccessible publicly) and non-
disaggregation of data.101 Another concern relates to the question of how

95 See, for example, Anderson “Using Quantitative Methods to Monitor

Government Obligations in terms of the Rights to Health and Education”
(2008). [Link]
20monitoring%[Link] (accessed 2012-06-12).
96 United Nations Report of the High Commissioner for Human Rights on
Implementation of Economic, Social and Cultural Rights UN doc E/2009/90
(2009) parr 39, 41.
97 Felner 409.
98 Idem 410.
99 General Comment No 13 par 52; General Comment No 1 parr 3 6, 7;
General Comment No 12 par 29; General Comment No 14 parr 57, 58;
General Comment No 15 parr 47, 53, 54; General Comment No 16 par 39;
General Comment No 17 parr 49, 50; General Comment No 18 parr 46, 47;
General Comment No 19 par 74-76.
100 CESCR Concluding Observations on the Second Periodic Report of Benin UN
doc E/C12/BEN/CO/2 (2008) parr 10, 31; Concluding Observations on the
Third Periodic Report of Morocco UN doc E/C12/MAR/CO/3 (2006) parr 13,
34; Concluding Observations on the Initial Report of Zambia UN doc E/C12/1/
Add 106 (2005) parr 13 35, 48, 54; Concluding Observations on the Initial
Report of Kenya UN doc E/C12/KEN/CO/1 (2008) parr 22, 24; Concluding
Observations on the Fifth Periodic Report of Poland UN doc E/C12/POL/CO/5
(2009) par 35; Concluding Observations on the Second and Third Periodic
Reports of Parguay UN doc E/C12/PRY/CO/3 (2008) par 23(i); Concluding
Observations on the Fifth Periodic Report of Finland UN doc E/C12/FIN/CO/5
(2008) parr 17, 26; CESCR UN doc E/C12/FRA/CO/3 parr 11, 31; Concluding
Observations on the Second Periodic Report of Bolivia UN doc E/C12/BOL/CO/
2 (2008) parr 27, 34; Concluding Observations on the Second to Fifth Periodic
Reports of India UN doc E/C12/IND/CO/5 (2008) par 58.
101 UN doc E/2009/90 par 43.
760 2013 De Jure

to determine what would be realistic and reasonable pace of progress in

the light of available resources.102 An understanding of how progressive
realisation relates to resources (considered above) is relevant in this
regard.
4 1 2 Budget and Expenditure Analysis
The OHCHR has identified different ways of conducting budget analysis.
The first is referred to as static analysis, which evaluates a given budget
by itself.103 This involves, from a socio-economic rights perspective,
mapping out the allocation of resources for each right and comparing
them with the percentage of other allocations, which provides an
indication of the government’s priorities.104 Alternatively, one could
map out the main beneficiaries of some budget allocations. In the area of
education, an example of non-compliance is where a significant
percentage of the budget is allocated to subsidise private schools that
cater for children from middle to high-income families compared with
public schools serving low-income sectors of population, which would
show that the priorities of government are not in line with its obligation
to pay particular attention to the vulnerable and marginalised.105 The
second budget analysis approach is referred to as dynamic analysis,
which compares the evolution of budgets over time, looking at variations
in allocations and spending over different periods.106 An example of
non-compliance is underspending in an area where targets have not been
met or where indicators show significant gaps in the full realisation of
socio-economic rights. This would imply that the government is not
meeting its obligation to take steps to the maximum of available
resources. Consistent underspending over a number of years in a
particular sector would also show that planning is inadequate or funds
are not released promptly.107
The CESCR has considered how states have allocated resources. In
doing so, the Committee analyses macro-budget information relating to
the national budget allocated to a specific sector, paying particular
attention to the adequacy/sufficiency of the budget, government’s
priorities in terms of resource allocation, lack of clear strategic lines in the
budget in relation to the vulnerable and marginalised, regressive patterns
of social spending and mismanagement of international cooperation aid.
For instance, the Committee raised concern over the decrease in the
budget allocated to education in a particular state, despite the rapidly
rising number of children in the school age.108 This implies that budget
allocation must take into consideration the changes in the size of
beneficiaries of a particular right. The Committee then used

102 Felner 411.

103 UN doc E/2009/90 par 48.
104 Idem par 49.
105 Idem par 50.
106 Idem par 48.
107 Idem par 54.
108 UN doc E/C12/AGO/CO/3 parr 39.
 Unpacking “progressive realisation” 761

macroeconomic growth as a yardstick in assessing the state’s

compliance, raising concern about insufficient jobs for men and women
despite the country’s macroeconomic growth, and the state’s failure to
take advantage of this growth to promote policies to create jobs
especially for the marginalised and disadvantaged.109 The Committee
has also raised concerned over high levels of defence expenditure in
contrast with shrinking budgets for key socio-economic rights areas;110
and regressive patterns of social spending.111 Continuous decrease of
resources allocated to social sectors such as health and social protection,
while budgetary allocations to defence and public security are increased
considerably and international development aid has been provided,
would amount to a breach of the progressive realisation obligation.112
Budget and expenditure analysis is a challenging exercise as socio-
economic rights are not always broken down within the state’s budget
lines, and funds allocated for other rights can be related to or have an
impact on socio-economic rights. The OHCHR has cited the example of
birth registration, which is a civil right but also relates to the enjoyment
of socio-economic rights such as health, social security and education.113
In addition, Felner has warned that although budget allocation to a
specific sector could, in many instances, be an indication of the level of
commitment to promoting that sector, it should not be used as the single
indicator in assessing compliance. This is because, other than the budget
allocated to a specific social sector, there are several factors related to the
availability of resources in a state that bear upon the progressive
realisation of socio-economic rights. These include the impact of
economic growth on the expenditure spent per person in a given social
sector, the impact of extra-sectoral spending on the realisation of socio-
economic rights, regressive patterns of social spending, and inefficiency
in the use of resources.114 Another challenge with this approach relates
to the role of civil society in assessing compliance with progressive
realisation (most human rights activists do not have the technical skills,
time and resources to undertake complex budget analysis).115

109 Ibid.
110 CESCR Concluding Observations on the Second Periodic Report of the
Democratic People’s Republic of Korea UN doc E/C12/1/Add 95 (2003) par 9.
111 CESCR Concluding Observations on the State of Implementation on the ICESCR
in Kenya UN doc E/C12/1993/6 (1993) par 17; CESCR Concluding
Observations on the Second Periodic Report of Algeria UN doc E/C12/1/Add71
2001-11-30 parr 18, 20, 34, 40.
112 UN doc E/C12/COD/CO/4 par 16.
113 UN doc E/2009/90 par 53.
114 Felner 412-414.
115 Felner 420.
762 2013 De Jure

4 1 3 Violations Approach
This approach was first proposed by Chapman116 and involves
identifying violations that signify negative compliance with obligations.
The CESCR avoids using the terminology “violation” in its concluding
observations where a state has failed to meet its obligations; instead, it
merely expresses its concern over a state not meeting its obligations or
refers to a “breach” of obligations, sometimes qualified with the word
“serious”. However, the CESCR might not be able to avoid the “violation”
terminology, considering the opportunity to consider complaints alleging
violations of the rights in the ICESCR under the Optional Protocol to the
ICESCR.
With the violations approach, three types of violations have to be
distinguished.117 The first is violations resulting from state action and
policies (such as adoption of legislation or policies that are incompatible
with pre-existing legal obligations relating to rights or adoption of
deliberately retrogressive measures). The second is violations relating to
acts or policies that reflect discrimination (such as failure to abolish
discriminatory laws that impact on enjoyment of rights). The third is
violations resulting from a state’s failure to fulfil minimum core
obligations (such as failure to put in place policies to implement rights).
The violations approach has been criticised for being punitive rather
than facilitative;118 for over-generalising the elements that would
constitute violations and avoiding the complexities of the concept of
progressive realisation;119 and for detracting attention from the broader
state obligations to promote socio-economic rights.120 Notwithstanding
the criticisms, the violations approach has been seen to be “even more
salient” with the adoption of the Optional Protocol to the ICESCR; and if
used with indicators, can “enhance treaty compliance” and the
enforcement of obligations, “including progressive realisation
obligations”.121

116 Chapman “A ‘Violations Approach’ for monitoring the International

Covenant on Economic, Social and Cultural Rights” 1996 Human Rights Q’ly
23.
117 Chapman 43; Maastricht Guidelines parr 14-15; General Comment No 19
par 64.
118 Anderson & Foresti “Assessing Compliance: The Challenge for Economic
and Social Rights” 2009 J Human Rights Practice 469 471; Anderson &
Foresti “Achieving Economic and Social Rights: The Challenge of Assessing
Compliance” (2008) Overseas Development Institute Briefing Paper 2 2-3
[Link] (accessed 2012-06-
12).
119 Olowu An Integrative Rights-Based Approach to Human Development in Africa
(2009) 202.
120 Klaaren 552.
121 Kalantry, Getgen & Koh “Enhancing Enforcement of Economic, Social and
Cultural Rights Using Indicators: A Focus on the Right to Education in the
ICESCR” 2010 Human Rights Q’ly 253 254, 299, 310.
 Unpacking “progressive realisation” 763

4 1 4 Combined Approaches
The “combined” approaches briefly explained in this section are: the
“three-step methodological framework” and the “basic framework” both
proposed by Felner,122 the Index of Social and Economic Rights
Fulfillment (SERF index) developed by Randolph, Fukuda-Parr and
Remer,123 and the OPERA framework developed by the Center for
Economic and Social Rights.124 The combined approach, as seen below,
incorporates indicators and benchmarks, budget and expenditure
analysis and violations.
4 1 4 1 The Three-Step Methodological Framework
The three-step methodological framework is broken down as follows:
Step 1 is the identification of deprivations and disparities in the
enjoyment of socio-economic rights, using outcome indicators. This step
measures the essential levels of enjoyment of socio-economic rights,
progressive realisation over time, available resources in relation to
progressive realisation, and inequality in enjoyment of socio-economic
rights in order to ascertain deprivations and disparities. Step 2 is to
identify main determinants of deprivations and inequalities that help in
assessing the extent to which the state is complying with its obligations.
The determinants include provision, poverty and cultural barriers, and
direct (participation, quality and capacity) and indirect factors (demand
factors and performance of right-bearer) that affect outcomes. Step 3 is
to assess the adequacy of policy efforts to address the determinants
identified in step 2. This involves identifying policy failures in the
provision and utilisation of essential goods and services, and monitoring
resource allocation, using the basic framework (explained below).
4 1 4 2 The Basic Framework
The Basic Framework also comprises three steps. Step 1 requires a
comparison of social indicators with gross domestic product (GDP) per
capita, thus enabling one to measure progress over time in accordance
with a country’s development. For example, a social indicator such as
primary school completion rates as a proxy for the enjoyment of the right

122 See generally Felner op cit.

123 Randolph, Fukuda-Parr & Lawson-Remer “Making the Principle of
Progressive Realization Opartional – The SERF Index: An Index for
Monitoring State Fulfillment of Economic and Social Rights Obligations”
(2009) [Link] (accessed 2012-07-
06); Fukuda-Parr, Lawson-Remer & Randolph “SERF Index Methodology:
Version 2011.1, Technical Note” (2011) [Link]
content/uploads/2011/02/[Link] (accessed 2012-07-07);
Randolph & Guyer “SERF Index Methodology: Version 2012.1, Technical
Note” (2012) [Link]
[Link] (accessed 2012-07-07).
124 Center for Economic and Social Rights “The OPERA Framework: Assessing
Compliance with the Obligation to Fulfil Economic, Social and Cultural
Rights” (2012). [Link]
the%20OPERA%[Link] (accessed 2012-07-07).
764 2013 De Jure

to education can be compared with GDP per capita as a proxy for

available resources. This implies that if a country simultaneously
experiences a reversal in a social indicator and a significant economic
growth, this would indicate non-compliance with its obligation to
progressively realise the specific right. This step is however not helpful in
all instances as countries normally make some progress over time. Step
2 requires an analysis, using quantitative tools, of resource allocations
(the magnitude, composition and distribution) in order to ascertain
whether a state is devoting the maximum of its available resources to the
progressive realisation of rights. For instance, in relation to the right to
education, if the primary education expenditure ratio of a state (which is
the relevant indicator), when compared to other countries (in the same
region with similar needs and overall income), is lower, then that state is
not complying with its obligation to devote the maximum of its available
resources towards the progressive realisation of the right to education.
Step 3 is an analysis of expenditure per capita on specific social sectors.
Such as analysis could assist in the identification of common policy
problems that hinder progressive realisation of rights, establishment of
types of policy strategies a state should adopt and disclosure of “deeply
embedded inefficiencies” in the use of resources. For example, if a state
has a low level of financial commitment to a social sector that also has a
low level of expenditure per person in that sector, this would imply a
violation of its obligation to devote its maximum available resources to
the progressive realisation of the relevant right. One can deduce, with
regard to step 3 that an effective and accurate analysis of expenditure per
capita would require data that is properly disaggregated. For instance, if
the poor are not further classified into rural and urban, when using
expenditure per capita in relation to the poor in general, it would be
difficult to establish if the expenditure is balanced or equitably
distributed between the rural and urban poor.
4 1 4 3 The SERF Index
The SERF index is relevant in measuring a state’s compliance with its
obligations of results in relation to the fulfilment of the substantive socio-
economic rights in the ICESCR.125 It thus focuses on outcomes in the
enjoyment of rights. The index makes use of indicators and benchmarks
and uses “objective, survey-based data published by national and
international bodies to measure the performance of countries and sub-
national units”.126 The index has two steps: the first involves using
indicators to measure the extent to which the different socio-economic
rights are enjoyed; and the second involves measuring the extent to
which the state is required to fulfil these rights.127 The SERF index is
useful in measuring progression and retrogression in rights fulfilment as
well as disparities between regions or groups. However, it is quite
technical. It also does not measure aspects such as the extent to which a

125 Randolph et al op cit.

126 Ibid.
127 Ibid.
 Unpacking “progressive realisation” 765

state has guaranteed procedural rights such as participation, non-

discrimination and accountability, which could be seen as a limitation in
terms of the index’s comprehensiveness.
4 1 4 4 The OPERA Framework
The OPERA model is a four-step framework that can be used to analyse
various aspects of the obligation to fulfil socio-economic rights. The
rationale behind its development was due to the fact that existing
frameworks have developed in isolation and in a fragmented way.128 As
the name suggests, the frameworks looks at “Outcomes, Policy Efforts
and Resources to make an overall Assessment”.129 Unlike the SERF
index which focuses on obligations of results, the OPERA framework
looks at both obligations of conduct and of results.130 Step 1
(“Outcomes”) requires using indicators to collect data in order to
measure levels of rights enjoyment.131 Step 2 (“policy efforts”) involves
identifying legal and policy commitments, examining their content and
implementation, and analysing the policy processes.132 Step 3
(“resources”) involves analysing planned and actual resource
expenditure, resource generation and relevant policies.133 Step 4
(“Assessment”) requires identification of contextual factors that limit
rights enjoyment, understanding the constraints that the government
faces and determining compliance.134 The Framework proposes a
human rights-based analysis. Accordingly, it identifies in relation to each
step, relevant human rights standards and principles, including various
procedural rights that should be taken into account in monitoring the
fulfilment of socio-economic rights as well as the tools and techniques to
be used. A positive aspect of the OPERA framework is that it can be
adapted to various contexts.

4 2 Methodologies that the Constitutional Court has Used

The Constitutional Court has used some of these methodologies
explained in the preceding section, particularly indicators and
benchmarks, budget and expenditure analysis and violations approach,
in its enforcement of socio-economic rights. With regard to indicators
and benchmarks, the Constitutional Court has called on the national
government (as in Mazibuko), to clearly set targets it wishes to achieve in
respect of socio-economic rights so that citizens are able “to monitor
government’s performance and to hold it accountable politically if the
standard is not achieved” or is unreasonable.135 The Court has used the

128 Center for Economic and Social Rights “Seminar: New Horizons in
Economic and Social Rights Monitoring” [Link]
id=1253 (accessed 2012-07-07).
129 Centre for Economic and Social Rights 1.
130 Idem 10.
131 Idem 11.
132 Idem 13.
133 Idem 17.
134 Idem 20.
135 Mazibuko parr 61, 70.
766 2013 De Jure

reasonableness standard in other cases as a benchmark against which

government’s performance is measured.136
On budget and expenditure analysis, while the CESCR has been,
comparatively speaking, robust in its budget and expenditure analysis,
the Constitutional Court has been cautious in undertaking budgetary
analysis or scrutinising resource allocation (the same can be said for the
African Commission). Though Grootboom did not concern resource
constraints issues, the Court emphasised that financial and human
resources must be made available for the implementation of measures
aimed at the progressive realisation of socio-economic rights, to avoid
the government’s action being seen as unreasonable.137 The Court
added that the government is required to plan, budget and monitor the
fulfilment of immediate needs and the management of crisis.138 In
Soobramoney, the Court avoided dealing with budgetary issues but it is
clear in the Court’s judgment that in the face of resource constraints,
there must be clear criteria for regulating access to rights.139 In TAC and
Khosa, the Court engaged with and rejected the state’s contention that it
did not have the requisite resources.140 In Rail Commuters,141 the Court
was of the view that an assertion of resource constraints would require
careful consideration.142 In TAC, the evidence was that provision of anti-
retrovirals (ARVs) would save money, which the Court accepted. Khosa,
on the other hand, was different in terms of a concrete examination of
budgetary increases.
In relation to the violations approach, the Constitutional Court has
identified violations of socio-economic rights and granted relief in
individual cases. With regard to the first category of violations identified
above, Abahlali is an example, where the Constitutional Court ruled
against legislation that was contrary to the Constitution and housing
legislative framework, as it undermined protections against arbitrary
evictions. For the second category, Bhe143 and Gumede144 are illustrative
examples of such violations in the South Africa jurisprudence. As for the

136 Idem parr 78-102; See also Khosa parr 44, 48-49, 53-57; Grootboom parr 39-
45.
137 Grootboom par 39.
138 Idem par 68.
139 Soobramoney par 31.
140 TAC par 118 -120, 135; Khosa parr 58-67, 60, 62.
141 Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 4 BCLR 301
(CC) par 88 (positive duties imposed by the South African Transport
Services Act 9 of 1989 to secure the safety of commuters).
142 The Court also considered budgetary allocations in the case of Premier,
Province of Mpumalanga, v Executive Committee, Association of State-Aided
Schools, Eastern Transvaal 1999 2 BCLR 151 (CC), in which it set aside the
provincial government’s policy decision to terminate the payment of
subsidies to certain schools and ordered that payments should continue for
several.
143 Bhe v Magistrate, Khayelisha 2005 1 BCLR 1 (CC) parr 91-93, 241 (challenge
of the African customary law principle of male primogeniture).
144 Gumede v President of the Republic of South Africa 2009 3 BCLR 243 (CC)
parr 34, 35-36 (a challenge of legislation that recognised a husband as the
 Unpacking “progressive realisation” 767

third category, the Constitutional Court, as observed above, has been

reluctant to endorse minimum core obligations but has gone ahead to
find the state to be in violation of its obligations by not providing the
basic necessities of life such as alternative accommodation in the event
of an eviction and social assistance to permanent residents.
Despite considering the above methodologies, the Court has not
developed a comprehensive standard on progressive realisation. This has
resulted in attempts by other institutions to look at existing
methodologies with the goal of developing a methodology that would be
suitable to the South African context.

4 3 Fleshing out Methodologies in the South African

Context
It is evident from the methodological considerations above that a single
methodology cannot be used to adequately assess compliance with
progressive realisation. Also, the type of methodology used would be
influenced by who is carrying out the assessment and the purpose of the
assessment. As noted earlier in this article, the Constitutional Court (and
subsequently the government) has focussed on a restrictive approach to
progressive realisation that focuses on “access”, paying little attention to
“actual improvements in access”; hence, the need to properly
understand progressive realisation and what to consider in assessing
compliance with this obligation.
The SAHRC has used a violations approach in monitoring socio-
economic rights, which Klaaren believes could be misconceived in the
South African context.145 He then called for a new model that
emphasises the role of information146 but fails to provide much to start
with as regards the design, content and format of a new model. The
SAHRC has been considering a model – progressive realisation and
constitutional accountability model – for monitoring compliance with
progressive realisation, which has three phases.147 The first phase
involves using key quantitative data to identify deprivations and
disparities of outcome in respect of the particular right with reference to
access, fulfilment, enjoyment and progressive realisation. The second
phase is a determination of the reasons for the status of the right and the
deprivations identified in the first phase. The third phase is two-fold: an
assessment of the adequacy of policy efforts and an undertaking of legal
interventions in respect of violations identified. The model seems to
draw from the existing approaches as indicators and benchmarks,

144 family head, with ownership of and control over all family property in the
family home).
145 Klaaren 550, 554.
146 Idem 554.
147 Jacobs “Demystifying the Progressive Realisation of Socio-Economic Rights
in South Africa” (2009) 13-15. Paper Presented at the Public Seminar on
Monitoring ESC Rights, Australian National University, 2009-10-19. http://
[Link]/PESCR/Publications/[Link] (accessed 2012-06-04).
768 2013 De Jure

analysis of resource allocation and use, and identification of violations

would be used. The legal intervention dimension is quite novel and its
effectiveness could be enhanced if there is co-operation between the
SAHRC and civil society organisations and human rights institutions in
the implementation of this aspect of the third phase.
Recently, the Studies in Poverty and Inequality Institute (SPII) has
proposed that progressive realisation, in the South African context, be
measured along four dimensions – access, geography, adequacy and
quality.148 Though the four dimensions, as indicated by SPII, draw form
a report of the SAHRC, it is also a restatement of key elements of rights
that the CESCR has considered in assessing state’s compliance with
progressive realisation; some of which (such as access)149 have also been
considered by the Constitutional Court. SPII notes that the vision of
transformation would be achieved if the four dimensions are taken
together in assessing state compliance.150 The proposed approach is still
being developed, so does not provide much to enable one to undertake
a proper analysis of its adequacy.
Notwithstanding this, if progressive realisation is to be effectively
assessed in the South African context, one needs to go beyond
accessibility, geography, adequacy and quality to look at other issues that
have been highlighted in this article, including placing particular
emphasis on assessing budgetary priorities in the light of human rights
standards and international cooperation aid and its use, access to
information and meaningful engagement in the provision of goods and
services. Alternatively, an expansive understanding of these dimensions
that allows for the inclusion of other aspects based on various contexts
could be adopted.151

5 Conclusion
For decades now, there has been growing advocacy on the effective
implementation and enforcement of socio-economic rights. These efforts
are however undermined if there is ambiguity in relation to how the

148 Studies in Poverty and Inequality Institute Measuring the Progressive

Realisation of Socio-Economic Rights in South Africa (2011) 22-25.
149 See Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2008 11 BCLR 1123 (CC) par
85, where the Court held that the content of the right to food comprises
“availability” and “accessibility”. Note that the case did not focus on the
right to food per se as it was an appeal against a Supreme Court Appeal
judgment concerning a proviso added to the definition of agricultural land
in the Subdivision of Agriculture Land Act 70 of 1970.
150 Studies in Poverty and Inequality Institute (2011) 24-25.
151 A number of illustrative questions that can be considered are outlined in
Chenwi “Monitoring the Progressive Realisation of Socio-Economic Rights:
Lessons from the United Nations CESCR and the South African
Constitutional Court” Research Paper written for Studies in Poverty and
Inequality Institute (2010) 60-61 [Link]
Progressive%20realisation%20Research%[Link] (accessed 2012-
07-07).
 Unpacking “progressive realisation” 769

concept of progressive realisation should be understood and applied in

socio-economic rights cases. This article has unpacked the concept of
progressive realisation by first looking at the understanding of the
concept in general and elaborating on three aspects stemming from that
understanding. It is evident that a progressive realisation approach to
socio-economic rights enforcement would add value to the concepts of
“desperate need” and “reasonableness” developed by the South African
Constitutional Court. Progressive realisation, however, goes further than
desperate need as it places emphasis on improvements in access once
those in desperate need have been granted access. If one takes Mazibuko
for instance, if the Court had adopted a progressive realisation approach
that is not restrictive, it would have not only focussed on the review of
the relevant policies and the improvement of the policies but would have
looked at the actual level of improvements of rights enjoyment;
otherwise, the policies remain excellent in “paper” and not practice.
This article has also engaged with methodological considerations in
assessing compliance with progressive realisation, which are useful in
ascertaining whether sufficient steps have been taken to progressively
realise socio-economic rights. Assessing compliance with progressive
realisation is, however, a complex and demanding task, that even the
courts, due to their often limited research capacity, would require
assistance (through the placing of the relevant information before it) in
terms of undertaking the assessment. The fact that there are many socio-
economic rights with different dimensions and the relevant obligations
of states have various dimensions adds to the complexity of such an
exercise. Notwithstanding this, reviewing achievements and detecting
failures and gaps, among others, could result in re-orienting state action
when needed. For this to be done effectively, a comprehensive
framework needs to be developed. The Constitutional Court would also
have to take the bold step of going beyond measuring progressive
realisation through, for instance access and constant review of policies,
to actually develop the concept of appropriateness and adequacy over
time. The Court also has to be more robust in its budget and expenditure
analysis.