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I•CON (2014), Vol. 12 No. 3, 710–739 doi:10.1093/icon/mou044

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Socio-economic rights, economiccrisis, and legal doctrineDavid Bilchitz *

This paper seeks to address and develop the conceptual framework for dealing with socio-economic rights in times of economic crisis. Section 2 explores a peculiar but important con -

ceptual feature of socio-economic rights, namely, the fact that they generally only give rise to positive obligations in circumstances in which individuals are unable to provide for their ownneeds. After distinguishing three different notions of crisis, I reach the conclusion that socio-economic rights do not lose their application in times of crisis: indeed, it is in these circum -

stances that they often become most important. In Section 3, I consider the legal doctrinesthat are most likely to render these rights meaningful in these dif cult circumstances. First,a variety of negative obligations persist at times of crisis and, importantly, can result in a

duty on the part of private parties to compensate for harms they cause. Second, the minimumcore approach is best placed to provide the doctrinal basis necessary to give effect to the state’s positive obligations with its emphasis on prioritization, clear standards, and accountability.Finally, I counter the argument recently raised by two authors in this journal that the doc -

trine of proportionality can provide content to social rights in times of crisis. Proportionalitycannot conceptually provide content to rights and, rather, requires, for its very coherence,supplementation by a doctrine of content. Correctly used, it provides a structured test todetermine the justi ability of any limitations the government places on its socio-economicrights obligations in times of crisis.

1. IntroductionThe economic crisis which shook the world in 2008 has had a major impact upon theplight of individuals both in the developed and the developing worlds. 1 Though start-ing with a crisis in the property and nancial markets, it has had multiple economic

* Professor of Human Rights and Constitutional Law, University of Johannesburg; Director, South AfricanInstitute for Advanced Constitutional, Public, Human Rights and International Law; Secretary General,International Association of Constitutional Law. Email: [email protected] .

1 See Ignacio Saiz, Rights in Recession? Challenges for Economic and Social Rights Enforcement in Times of Crisis, 1 J.HUM. RTS PRAC. 277, 279–280 (2009) for a brief overview of the effects of the crisis on the rights of individuals.See also THE FINANCIAL CRISIS AND DEVELOPING COUNTRIES : A GLOBAL MULTIDISCIPLINARY PERSPECTIVE (Peter Van Bergeijk,Arjan De Haan & Rolph Van der Hoeven eds., 2011) for a discussion of its effects in developing countries.

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Socio-economic rights, economic crisis, and legal doctrine 711

effects internationally. Banks, particularly in the United States, initiated a spate offoreclosures, with many people losing their homes as a result. Industrial productionreduced signicantly as there was a freeze in the credit markets and banks stopped

lending. Gross domestic product (GDP) in most developed countries fell, which in turnincreased unemployment rapidly. 2 The International Labour Organisation has esti-mated that over 50 million workers lost their jobs as a result of the crisis, with otherssuffering from reduced wages and increasingly insecure working conditions. 3 Manyindividuals were increasingly reliant on welfare payments in countries where a socialsecurity net existed, which led to increased government expenditure in this regard.The reduced income of many individuals has also had an impact on tax revenuesreceived by governments. Since individuals have had less money, they have reducedtheir spending on non-essential goods and services, which has led to a contraction of

the economy. Governments were also often required to be involved in providing sub-stantial and costly bailout packages for nancial institutions. All these conditions cre-ated the seeds for the sovereign debt crisis whereby investors lost faith in the ability ofparticular governments—such as Greece and Ireland—to repay their debts. 4 Underthese conditions, and with reduced tax revenues, many governments have sought tocurb their own expenditure. Increasingly, these so-called austerity measures have ledto reductions in spending on social welfare programs, which have deprived the mostvulnerable of their safety nets. 5 Given the economic crisis, many individuals are thusin greater need than ever; yet, ironically, often spending on their socio-economic enti-

tlements is being slashed.The economic crisis was not inevitable, and the discussion of it often obscures the

fact that it was avoidable and resulted from a range of unscrupulous practices in theproperty and nancial markets. 6 Similarly, the responses of individuals, corporations,and governments involve decisions that must take place within the constraints of thekey human rights provisions in domestic constitutions and international law. As Saizpoints out, “despite the obvious human rights dimensions of the crisis, human rightshave barely gured in the diagnoses or prescriptions proposed by the internationalcommunity.” 7 Human rights analysis, he points out, has also been largely absent fromthe public debate around the crisis and, even human rights advocates, have failedto engage in any depth with this question. 8 Academic scholarship has only recently

2 See TONY CIRO, THE GLOBAL FINANCIAL CRISIS: TRIGGERS, RESPONSES AND AFTERMATH 1–5 (2012).3 Director-General of the International Labour Organisation, Tackling the Global Jobs Crisis: Recovery through

Decent Work Policies (2009), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/docu-ments/meetingdocument/wcms_106162.pdf (last accessed July 15, 2014).

4 See CIRO, supra note 2, at 114–121 for a description of the relationship between the global nancial crisisand the sovereign debt crisis in the European Union.

5 International Labour Organisation & International Institute for Labour Studies, A Global Policy Package toAddress the Global Crisis (2008), http://www.ilo.org/public/libdoc/ilo/2008/108B09_307_engl.pdf (lastaccessed July 15, 2014).

6 For an account of the practices that led to the crisis and the personalities involved, see BETHANY MCLEAN & JOE NOCERA, ALL THE DEVILS ARE HERE: THE HIDDEN HISTORY OF THE FINANCIAL CRISIS (2011).

7 Saiz, supra note 1, at 280.8 Id .



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started to increase around this question. 9 The question thus arises as to whether thesocio-economic rights provisions in a constitution or at international law can helpguide the reaction of governments in times of economic crisis?

In answering this question, I shall seek to engage with the conceptual underpin-nings of socio-economic rights and their implications for times of crisis. In Section2, I rst explore what may be considered to be a peculiar but important conceptualfeature of socio-economic rights, namely, the fact that they generally only give riseto positive obligations in circumstances in which individuals are unable to providefor their own needs. 10 In other circumstances, they simply require other parties todesist from interfering with the ability of individuals to provide for themselves. Theimplications of these features of socio-economic rights can better be understood oncewe attain a more detailed understanding of the notion of an economic crisis. I dis-

tinguish between three circumstances of such crises: an economic crisis for particu-lar individuals; a situation in which multiple individuals are in economic crisis andgovernment nances are limited; and a situation in which the very foundations of aparticular social system are in peril. The conclusion I seek to draw in Section 2 fromthe above discussion is that situations of economic crisis are the very circumstanceswhich socio-economic rights are designed to address and, as such, play a crucial rolein determining the obligations owing from such rights.

Section 3 of this article turns to assess the legal doctrines that are most appositefor addressing circumstances of economic crisis. First, I consider the importance of

negative obligations for the protection of socio-economic rights and how these giverise both to procedural and substantive protections in such cases. I also argue, perhapscontroversially, that such rights imply a duty upon those who brought about the crisisto compensate those suffering from deprivations of their rights as a result of the crisis.An approach rooted in fundamental rights requires that such compensation directlyaddress the harms caused to individuals by the negligent or unscrupulous behaviorof the parties who brought about the crisis. Second, I turn to the positive obligationsimplied by socio-economic rights in times of economic crisis. I argue that the reason-ableness approach (as developed by the South African Constitutional Court) cannotoffer much protection for social rights in times of economic crisis. A minimum coreapproach as developed in international human rights law and in some domestic juris-dictions fares better in addressing the difcult questions of prioritization that must takeplace. Such an approach though needs to be supplemented by developing an accountof what I term a “relative minimum threshold.” Finally, I address the argument putforward by two authors in this journal recently that the doctrine of proportionalitycan help provide content to social rights in times of economic crisis. In response to

9 At the time of writing this article, I was aware of two books that were in the process of being publishedin this area (I have only had sight of two prepublication chapters from the volume by Nolan). They areCONSTITUTIONS IN THE GLOBAL FINANCIAL CRISIS (Xenophon Contiades ed. , 2013 ) and ECONOMIC AND SOCIAL RIGHTS AFTER THE GLOBAL FINANCIAL CRISIS (Aoife Nolan ed., forthcoming September 2014).

10 This conceptual feature may not be only limited to socio-economic rights but also arises in the context ofcivil and political rights which give rise to strong positive obligations, such as in the case of the right tolegal assistance.



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well as the very legitimacy of a political community means that their implicationsmust be grappled with even where their full realization may need to be tempered.These normative underpinnings also provide a lens—which places a strong emphasis

on the individual and their socio-economic vulnerability—through which the out-comes of the economic crisis can be assessed and the relevant responses developed.In this regard, it is necessary to consider in more detail certain conceptual features ofthe obligations that such rights entail in order to address how these duties may shiftin times of crisis.

The difculties often raised concerning the justiciability and enforcement of socio-economic rights are usually connected to their involving positive obligations beingplaced on organs of the state (and other actors in some circumstances). 14 In deningsuch obligations, it is necessary to specify which particular goods or services must be

delivered to whom and which actor has the responsibility for doing so. Yet, the con-ceptualization of socio-economic rights as involving primarily positive obligations is,in some sense, fundamentally mistaken. As the Constitutional Court of South Africarecognized in response to an early challenge to the justiciability of such rights, “atthe very minimum, socio-economic rights can be negatively protected from improperinvasion.” 15 Henry Shue too, in his classic work, argued for the importance of recog-nizing both negative and positive obligations which ow from socio-economic rights. 16 These insights have been enshrined in international human rights law through therecognition of three types of obligations which ow from these rights, namely, duties

to respect, protect, and fulll such rights. 17

The negative obligations owing from socio-economic rights, however, are not just important in stressing their similarities to civil and political rights; rather theseobligations give us an understanding of the division of responsibility that exists forrealizing such rights. The negative obligations owing from socio-economic rightsessentially protect people in their possession of the resources that they already have,requiring that no one harms their ability to use them to realize their socio-economicinterests. An important inference from this line of reasoning is that once an indi-vidual has sufcient resources to realize their interests in housing, food, water, andhealthcare, the only duty on the government and others is not to interfere with themin the possession of these resources and their utilization in the realization of their

14 The positive enforcement of socio-economic rights raises concerns of the content of these rights, as wellas the competence and legitimacy of judges in this area. For certain of the academic discussion of theseconcerns, see Marius Pieterse, Coming to Terms with Judicial Enforcement of Socio-Economic Rights , 20 S.AFR. J. HUM. RTS 383, 390–396 (2004); and Eric Christiansen, Adjudicating Non-Justiciable Socio-EconomicRights: Socio-Economic Rights and the South African Constitutional Court , 38 COLUM. H UM. R TS L. REV. 321,342–353 (2007). The Constitutional Court of South Africa refers to these problems in Minister of Healthv. Treatment Action Campaign 2002 (5) SA 721 (CC), ¶ 38.

15 In Re: Certication of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC), ¶ 78.16 HENRY SHUE, BASIC RIGHTS : SUBSISTENCE , AFFLUENCE AND US FOREIGN POLICY 35–40 (1996).17 See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 12, The Right to

Adequate Food (Art. 11), UN Doc. E/C.12/1999/5 (1999). See also Asjborn Eide, Economic, Social andCultural Rights as Human Rights, in ECONOMIC , SOCIAL AND CULTURAL R IGHTS : A TEXT-BOOK 9, 22–28 (AsjbornEide, Catarina Krause & Allen Rosas eds., 2001).



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important capabilities. The state also has a responsibility to ensure that there is nointerference by other private parties with the ability of individuals to use their socio-economic resources to meet their basic interests. In general, however, the responsi-

bility positively to provide for these interests lies with the individual himself/herself(unless, for some reason, he/she is unable to do so in such a way that triggers theobligations of others).

Importantly, thus, the negative obligation to respect these rights applies uncondi-tionally: in all circumstances, no other actor must interfere with the ability of indi-viduals to provide for themselves. The positive obligations to fulll (to provide specicsocio-economic resources) are, however, conditional: 18 they only arise in circum-stances where individuals are unable to meet their basic needs themselves. 19 Thisanalysis has two important consequences: rst, the positive duty actually to provide

socio-economic goods to individuals should not be regarded as the sole signicantobligation owing from socio-economic rights and greater attention must be paid tothe other duties that arise as well; second, we need to understand the circumstancesunder which the positive obligations for the realization of social rights are triggered.This reasoning has important implications for the obligations of government and theprivate sector in relation to the global nancial crisis. However, before we can under-stand the implications of these conceptual points in relation to legal doctrine at timesof crisis, we rst need to attain a more precise meaning of crisis, which is the subjectof the next section.

2.2. The meanings of crisis

Crisis is dened by the Oxford English Dictionary as a time of “intense difculty ordanger.” 20 The denition does not inform us, however, as to where the intensity arisesfrom or what the difculty or danger consists in. As a result, the notion itself can bedangerous: without clear parameters, the concept is itself malleable yet emotive. Theassertion that a crisis exists often instills a sense of panic, and can be used by gov-ernments to justify extraordinary responses that would not usually be sanctioned bythe populace. Circumstances of crisis are often also used to justify a failure to realizefundamental rights: in order to understand whether, and under what circumstances,this may be justiable, we need to attain a more precise understanding of the notionof “crisis” itself. The focus of this article is on situations of economic crisis thoughsome of the analysis and points about legal doctrine might apply to other forms ofcrisis. I shall contend that it is useful to break the notion of economic crisis down intoseveral related sub-categories. The analysis of the notions developed here stresses thatthe starting point for an analysis of economic crisis lies in its effect on individuals and

18 They may be conditional in other ways too: see BILCHITZ , supra note 12, at 78–101.19 The positive obligations of others may vary depending upon the extent to which such inability arises from

the fault of the individual in question. Though individuals bear some responsibility for their plight, indi-viduals should not be allowed to fall below the minimum core in relation to socio-economic rights even ifthe reason for their current desperate circumstances arose as a result of their own fault: see id . at 96–97.

20 Crisis , OXFORD DICTIONARIES , http://oxforddictionaries.com/denition/english/crisis (last accessed July 15,2014).



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thus is particularly apposite to the human rights context. 21 Throughout this section,I shall use the references to crisis in the landmark Grootboom case 22 decided by theSouth African Constitutional Court as an illustration of these meanings and to pro-

vide empirical context and depth to the analysis.

(a) Personal crisis

The facts of the Grootboom case place us immediately among a large number of impe-cunious people who landed up on a eld with only plastic sheeting to cover them.All these people were exposed to the driving wind and rainy conditions that prevailduring winter in the Western Cape of South Africa. The rst reference to crisis in the judgment occurs in relation to an offer by the state to “ameliorate the immediate cri-sis situation in which the respondents were living.” 23 Such conditions represent what

we may term a “personal crisis”: individuals are in desperate circumstances and lackthe ability to meet the very general necessary conditions for being free from threatsto their survival or basic well-being. 24 The crisis in the Grootboom case related to thephysical needs of individuals; however, a personal crisis may also of course arise inrelation to the emotional or psychological dimensions of an individual, where theirvery mental well-being may be shattered. A personal crisis thus arises where there is asevere threat to the well-being—whether physical, emotional, or psychological—of anindividual. Such a situation often is connected to a personal economic crisis wherebyindividuals are unable to acquire the resources to meet their own needs. Such a situa-tion may arise as a result of a number of causes.

On the one hand, an individual may suffer from a serious illness or ailment. Thatmay in itself constitute a personal crisis, though it may also precipitate a chain ofevents that exacerbate the original distress. Illness could, for instance, prevent a per-son from working and thus receiving an income. The individual in question mayconsequently be unable to pay the rent or mortgage and quickly can nd themselveshomeless. If there are no reserves of income, the individual may be unable to affordfood, and municipal services such as water, sanitation, and electricity. Very quickly, aninability to work may lead the individual into a situation of dire need.

The causes of a personal crisis may also not relate to the individual’s personal con-dition alone. An employee can be able and willing to work, yet a company decides thatit can no longer afford her services. If the economic conditions in the society are bad,or the person’s skills are not readily transferable, it can be extremely difcult to acquirework. In such circumstances, the economic and social conditions render individualsunable to work, acquire income, and meet their own pressing basic human needs.

21 For a contrasting (though not incompatible) approach to understanding the notion of crisis, see, e.g., JeanClam, What is a Crisis? , in THE FINANCIAL CRISIS IN CONSTITUTIONAL PERSPECTIVE (Poul Kjaer, Gunther Teubner &Alberto Febbrajo eds., 2011). For a classical understanding of nancial crisis rooted in economic historyand theory, see CHARLES KINDLEBERGER, MANIAS , P ANICS AND CRASHES (1996).

22 Grootboom v. Government of the Republic of South Africa 2001 (1) SA 46 (CC).23 Id. ¶ 5.24 For the philosophical foundations of this notion and how it relates to the minimum core approach to

socio-economic rights, see BILCHITZ , supra note 12, at 39–40 and 185–192.



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The 2008 nancial crisis provides an example of how general prevailing social andeconomic circumstances can lead many into situations of personal crisis.

The Grootboom judgment refers to another situation: where people are “in crisis

because of natural disasters such as oods and res, or because their homes are underthreat of demolition.” 25 The court here refers to people who are brought into a per-sonal crisis by virtue of natural disaster situations beyond their control as well as law-ful actions by private and government bodies which threaten the ability of individualsto provide for themselves.

I have focused here largely on causes in which an individual is unable to meet herown needs through no fault of her own. Of course, there will also be circumstanceswhere individual desperation results from their own decisions for which they musttake responsibility. Whatever the cause of an individual’s inability to meet their own

needs, importantly, the result is the same: these circumstances could plausibly becalled a personal crisis. 26

(b) Structural crisis

In the Grootboom case, the facts though require us to articulate another form of eco-nomic crisis: while every particular individual could have been said to be in a stateof personal crisis, importantly, there were many individuals who faced this dire situ-ation. The shortage of decent housing for these people arose as a result of deliberatepolicy choices made in the apartheid past, where the ow of black people to the urbanareas of the Western Cape was restricted by law. Consequently, the government madevery little provision for formal housing and informal settlements grew around CapeTown. 27 The housing crisis in the Western Cape is described by the judges in this caseas reaching “crisis proportions.” 28 Moreover, attempts to address this situation sincethe fall of apartheid had not been adequate: the government itself in a report admittedthat there is a “complete mismatch between demand and supply in the housing sector,resulting in a crisis in housing delivery.” 29

The situation described in Grootboom , exhibits many features of what we may terma “structural crisis.” In such situations, rst, it is important to recognize that there aremany individuals who are in (and are threatened with going into) circumstances ofpersonal crisis. This highlights the important interrelationship between these notionsof crisis. Second, the causes of the situation are themselves connected with one ormore social or economic system or structure. Any solution to the circumstances inquestion requires addressing the more general structural features that have givenrise to the problem. Third, there is often an inadequate response to the social cir-cumstances which exist. That response is often affected by the scarcity of nancial orhuman resources to address the problems in question: the large number of people in

25 Id . ¶ 52.26 The role of responsibility will of course impact upon the positive obligations that others have in such

circumstances as is discussed supra note 16.27 Grootboom , 2001 (1) SA 46 (CC), ¶ 6.28 Id. ¶ 85.29 Id. ¶ 60.



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718 I•CON 12 (2014), 710–739

such a position places strain on the ability of the state to fulll its obligations to removeindividuals from those crises.

(c) Foundational structural crisisIn some cases, a structural crisis is particularly severe and may threaten the very foun-dations of crucially important social structures. Such a crisis is what I shall refer to asa “foundational structural crisis.” A situation where the very economic structures andsystems that govern a society or the international community are threatened would bean example of a foundational economic crisis. The 1929 collapse of the stock marketaffected the global economic system and in turn led to a depression which placed mil-lions of people in situations of personal crisis. Much of the concern relating to the 2008economic crisis was that it might constitute such a foundational crisis: the solvency of

many banks was threatened which in turn had global economic repercussions.A foundational crisis has all the hallmarks of a structural crisis yet includes the

following additional dimensions: rst, the scale and extent of the effects are exten-sive; second, it affects the very continuation and viability of a vital social structure.While the Grootboom case, as we have seen, involved a structural housing crisis, thecircumstances that existed in all probability at the time did not threaten the very politi-cal and economic structures of South African society and thus did not constitute afoundational structural crisis. Should the situation, however, be left unaddressed,the increase in the number of individuals living in inadequate housing could lead tostrong political instability and continued land/property occupations that might overtime threaten the political and socio-economic order.

(d) Economic crisis and the circumstances of socio-economic rights realization

Understanding these different meanings and forms of economic crisis is importantbecause it helps us to grasp the very circumstances in which socio-economic rightsrealization becomes important. All individuals require protection for their right to con-trol resources and utilize them to achieve their socio-economic well-being. However,

where an individual is in a situation of personal crisis and unable to help herself, thecondition that triggers positive obligations to assist becomes activated.The use of the Grootboom case is illustrative as it also highlights the fact that, in

developing countries, a large number of people are in personal crisis all the time. Sincea personal crisis is in fact the trigger for the operation of the positive obligations ow-ing from socio-economic rights, such a crisis cannot in any way temper the obligationsthat others have; rather, it denes the very circumstances under which such positiveobligations become meaningful.

Moreover, for developing countries, large numbers of people are in such desper-

ate circumstances all the time. Structural crises in relation to housing provisioning(such as occurred in Grootboom ) are not the exception but the norm. 30 It is under

30 A similar point is made by Anashri Pillay & Murray Wesson, Recession, Recovery and Service Delivery:Political and Judicial Response to the Financial and Economic Crisis , in ECONOMIC AND SOCIAL RIGHTS A FTER THE GLOBAL FINANCIAL CRISIS, supra note 9.



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such conditions that the jurisprudence of courts in developing countries relating tosocio-economic rights has been developed and is of particular importance. Again, it isimportant to recognize that circumstances of structural crisis are the very conditions

under which the obligations owing from socio-economic rights become most impor-tant. The point is not only true of developing countries: it has also had relevance indeveloped countries. 31

Responding to situations where a few individuals are in a state of personal crisis is nottoo difcult for modern developed states with large amounts of resources at their dis-posal. The problem for such states begins to arise when large numbers land up in suchsituations. Indeed, the 2008 economic crisis has led to a greater number of people land-ing up in conditions of poverty in the developed world. 32 Yet, this situation is not unique:the Great Depression of the 1930s led to the severe suffering of many individuals. It

was, however, at this very time, that Roosevelt articulated the notion of freedom fromwant and a second bill of rights that covered some of the most important socio-eco-nomic rights. 33 This example illustrates the fact that the very development of the needfor socio-economic rights and the discourse surrounding it can be traced back often tocircumstances of structural, and sometimes even foundational structural, crises.

Conceptually, it is thus important to recognize that times of personal or structuralcrisis are thus not necessarily exceptional but the very conditions under which thegeneral obligations owing from such rights have the greatest importance and thepositive obligations, in particular, become activated. It is thus particularly important

to investigate the legal approach that should be adopted that can render socio-eco-nomic rights meaningful at times of crisis, which is the subject of the rest of this paper.

3. Legal doctrine, socio-economic rights andeconomic crisisAs has been mentioned, situations of personal crisis in fact trigger the positive obliga-tions owing from such rights. Yet, where these occur on a small scale, they do not

pose particularly difcult obstacles for governments to address. Difculties in meetinggovernment obligations in relation to social rights become particularly acute in casesof structural—and, even more so, in cases of foundational—crises. The focus of thissection will thus be on understanding the legal doctrinal approaches that are likely togive effect to social rights under conditions of structural (and foundational) crises. By

31 See, e.g., the following report: European Agency for Fundamental Rights , Protecting Fundamental RightsDuring the Economic Crisis (Dec. 2010), http://fra.europa.eu/sites/default/les/fra_uploads/1423-FRA-Working-paper-FR-during-crisis-Dec10_EN.pdf (last accessed July 15, 2014).

32 See, e.g., Helena Smith, Greek Homeless Shelters Take in Casualties of Debt Crisis , THE GUARDIAN (Feb. 10,2012), available at http://www.theguardian.com/world/2012/feb/10/greek-homeless-shelters-debt-crisis (last accessed July 15, 2014); and Inés Benítez, Living on Streets No Longer Exceptional in Spain ,INTERPRESS SERVICE NEWS A GENCY (Jan. 28, 2013), http://www.ipsnews.net/2013/01/living-on-the-streets-no-longer-exceptional-in-spain/ (last accessed July 15, 2014).

33 See Louis B. Sohn, How American International Lawyers Prepared for the San Francisco Bill of Rights , 89 AM. J. INT’L L. 540, 540 (1995).



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legal doctrine, I hope to investigate the principled approach the courts should adoptto considering the content of these rights as well as the possible constraints on theirrealization. First, I consider the importance of negative obligations in these contexts.

Second, I consider the positive obligations which arise under these conditions. Finally,I consider the manner in which circumstances of structural crisis may limit the obli-gations owing from these rights. Though this analysis is focused on legal doctrineand courts, what emerges from this analysis could also be used to guide wider policyresponses that take fundamental rights seriously.

3.1. Negative obligations

In the rst part of this article, I argued for the importance of the negative obligationsowing from socio-economic rights and how they are central to the very conceptual-ization of these rights themselves. Such obligations obviously become of great import-ance in the context of a structural crisis and legal doctrine should recognize this. Sucha crisis may result from actions of the government or other economic actors that haveimperiled the ability of individuals to meet their own socio-economic interests. I shallexplore certain important features of these negative obligations relevant to conditionsof structural crisis and illustrate them through considering some of the case law thathas emerged from developing countries in this regard.

(a) Procedural protections and private responsibilitiesTimes of structural crisis often lead individuals into circumstances of personal crisiswhere they are unable to meet their own socio-economic needs. Increased unemploy-ment and reduced social welfare provisioning impact negatively upon the income ofthose worst affected and, for instance, often lead those people to default on their loansand possibly their rent or mortgages. This in turn could trigger eviction proceedingswhich can result in individuals becoming homeless through no fault of their own butas a result of the economic conditions triggered by the crisis.

How can the law protect individuals in these circumstances? These circumstancessuggest importantly that public law will need to condition the application of basic pri-vate law principles in these cases. Procedural protections for people’s existing rightsare important and the courts may need to step in to develop them. Moreover, it maybe permissible to place more onerous obligations on relatively well-off private partiesto bear some losses in order to protect needy individuals from losing their ability torealize their socio-economic rights. Developing the negative obligations owing fromsocio-economic rights may thus create a barrier for the worst affected against losingtheir existing ability to meet their own needs.

These points can be illustrated through some of the case law that has developedin South Africa surrounding these negative obligations in the context of the right toadequate housing. The South African Constitution expressly provides in § 26(3) that“no one may be evicted from their home, or have their home demolished, without anorder of court made after considering all relevant circumstances. No legislation maypermit arbitrary evictions.” The Constitutional Court has used this provision and the



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relevant legislation that has been passed to allow evictions only after a court orderhas been given, only after negotiation or meaningful engagement between the par-ties has taken place 34 and, largely, only when some form of alternative accommoda-

tion is made available for the people concerned.35

The last obligation demonstratesthat harming someone’s existing rights may only be possible if conjoined with a posi-tive obligation to ensure that they are not deprived of their very ability to meet theirexisting needs.

Interestingly enough, the court has also suggested that there may be burdens thatprivate parties have to bear in ensuring that the provisions relating to access to hous-ing are not abrogated. In the Blue Moonlight properties case, it stated that individualowners might have to be “patient” and endure some restriction on their rights of own-ership in order to ensure that an eviction occurs under circumstances that are just

and equitable and individuals are not rendered homeless.36

Similarly, in the context ofthe right to education, the court has held that a private party may not “interfere withor diminish the enjoyment of a right.” 37

The court also was prepared to create procedural protections for borrowers whodefault from their loans in the case of Jaftha v. Schoeman ,38 for instance, which dealtwith a small debt of around USD 80. When the borrower was unable to pay the debt,the lender sought to execute against the home of the borrower in order to recouphis loan. The Constitutional Court found that there was a negative content to theright to have access to housing and that “any measure which permits a person to

be deprived of existing access to adequate housing, limits the rights protected insection 26(1).” 39 Such a measure could only be justied in terms of the general limi-tations clause in the South African Constitution. The court ultimately ordered thatcurrent legislation be read to require that the sale of a home in execution of a judg-ment for the repayment of a debt could only take place after a court has consideredall relevant circumstances and, effectively, an adequate balancing of interests hastaken place. A court could refuse to order execution against a home where the debtwas small and the borrower would land up homeless. A subsequent decision hasdeclared the rules of the High Court to be unconstitutional to the extent that reg-istrar could order execution against the immovable property of individuals without judicial oversight. 40

These decisions are important for a number of reasons and illustrate the developmentof legal doctrine relating to the negative dimensions of socio-economic rights. First,they indicate that the state through its various branches of government is required

34 See Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v. City of Johannesburg 2008 (3) SA 208 (CC).

35 City of Johannesburg v. Blue Moonlight Properties, 2012 (2) SA 104 (CC), ¶ 96.36 See id. ¶ 40: “in certain circumstances an owner may have to be somewhat patient, and accept that the

right to occupation may be temporarily restricted.”37 Governing Body of the Juma Masjid Primary School v. Essay, 2011 (8) BCLR 761 (CC), ¶ 58.38 Jaftha v. Schoeman, 2005 (2) SA 140 (CC).39 Id. ¶ 34.40 Gundwana v. Steko Development, CC 2011 (3) SA 608 (CC).



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to regulate the manner in which private relations take place and ensure that privaterelationships do not violate the fundamental rights of individuals: the conscation of ahome of a lender cannot automatically be justied to satisfy a small debt to a borrower.

The negative obligations to ensure individuals retain their existing access to socio-eco-nomic goods can thus require positive action by the state (in fulllment of what is oftentermed the state duty to protect). Second, they highlight the fact that private partiesmay be required to bear certain burdens on their property rights in order to maintainexisting access to socio-economic goods for needy individuals. 41 Lastly, these casesshow the importance of procedural remedies in providing negative protections such ashaving a court consider the range of relevant circumstances and interests in decidingwhat should be done, and a duty on the relevant parties to engage meaningfully.

(b) Intervention in markets and nancial regulationAs has been mentioned, the obligation to ensure individuals are not deprived of theirexisting access to socio-economic goods may require the state to take positive action inthis regard. An important component of exercising this duty to protect would involveintervention in markets and nancial regulations so as to ensure that individuals arenot placed in positions of desperation as a result of structural economic crises. 42 One ofthe most interesting developments in this regard took place in Colombia during a struc-tural housing crisis in late 1999 which threatened the homes of about 200,000 mort-gagees. 43 At the time, housing nance was dependent on the interest rates which wereset by the market. For a range of reasons, the interest rates in the late 1990s reached33 percent, which, of course, caused repayments on loans to skyrocket. 44 The housingnance regime was challenged in the Constitutional Court which held a large hearingin which a wide range of parties were invited to speak including bankers, economists,government ofcials and others. The court eventually struck down the law regulatingmortgages on procedural grounds, namely that it had to emanate from parliament andnot the executive. The court’s holding stimulated a change in the system with parlia-ment amending a number of the provisions including, importantly, tying interest ratesto the rate of ination. Even with these changes, the constitutionality of the new legalregime regulating the nancial markets was also challenged. The court held that thenew law was constitutional only under certain conditions: one of these involved cappingthe interest rates at the lowest interest rate being charged in the Colombian economy. 45

41 It is also justiable (through taxation and other means) to interfere with the existing access of well-offindividuals to socio-economic resources for purposes of ensuring that the positive obligations can be ful-lled to those who are unable to meet their own needs.

42 The duty to protect includes both negative and positive obligations: I include it under the “negative” head-ing as its focus is on ensuring that individuals are not harmed by other individuals or companies. For adeontic analysis of the duty to protect, see Michael Dafel, The Negative Obligation of the Housing Right: AnAnalysis of the Duties to Respect and Protect , 29 S. AFR. J. HUM. RTS 591, 599 (2013).

43 See, generally , Magdalena Sepúlveda, Colombia, in SOCIAL RIGHTS JURISPRUDENCE : EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW 144 (Malcolm Langford ed., 2008).

44 See David Landau, The Reality of Social Rights Enforcement , 53 HARV. INT’L L.J. 190, 216 (2012) for adescription of the crisis.

45 Id. at 217–218.



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Through its interventions, the Constitutional Court of Colombia ensured thatmany people who would have lost their homes were able to retain them. 46 In sodoing, the court’s intervention has been criticized for primarily benefiting the mid-

dle classes.47

This criticism, however, obscures the fact that important financialregulatory measures such as those that were generated by the court’s interven-tion, in this instance, helped to avert a larger crisis, in which many more peoplecould have been rendered homeless. By protecting the existing ability of individu-als to provide their own housing, the court also reduced the burden on the stateactually to provide shelter or homes to individuals. In this way, the positive obliga-tions of providing for those who were in more desperate circumstances becamemore attainable.

The Colombian intervention indicates the importance of regulatory interventions

to reduce the number of people harmed by the economic crisis. It also indicates the factthat the recognition of socio-economic rights does not support an economic approachwhereby the state is required to abstain from regulating as much as possible. Indeed,the global economic crisis of 2008 has shown the dire effects that can occur througha failure by states adequately to regulate and allowing greed alone to dictate how mar-kets operate. Several regulators in the United States—such as the Federal Reserve andthe Ofce of Thrift Supervision—negligently failed to employ the statutory powers attheir disposal and, in some cases, there is “evidence of deliberate decisions to ignoreexisting regulations.” 48 The Securities and Exchange Commission was expected to

oversee nancial rms and credit rating agencies but, for a variety of reasons, failed todo so effectively. 49 Legislative changes (inuenced by a libertarian attitude to nancialmarkets) left important credit derivatives unregulated and eliminated the separationbetween commercial and investment banking. 50

All these failures led to severe consequences for the fundamental socio-economicinterests of many individuals who had no part in bringing about the crisis. The eco-nomic institutions of society are not a law unto themselves: they are to be governedby normative principles such as fundamental rights that are at the foundation ofinternational and constitutional law. 51 The challenge is for states to recognize thathuman rights law places obligations upon them to develop interventions in marketsthat ensure individuals will not be deprived of their socio-economic rights as a resultof the questionable actions of others.

46 See also Rodrigro U. Yepes, The Enforcement of Social Rights by the Colombian Constitutional Court: Cases andDebates , in COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE FOR THE P OOR? 127,135–137 (Robert Gargarella, Pilar Domingo & Theunis Roux eds., 2006).

47 Landau, supra note 43, at 218.48 MARC JARSULIC , A NATOMY OF A FINANCIAL CRISIS: A REAL ESTATE BUBBLE, R UNAWAY CREDIT MARKETS AND REGULATORY

FAILURE 96 (2010).49 Id. at 96.50 See id. at 96 and 113–127 for a clear outline of the various forms of regulatory failure that took place.51 Principles of Justice, according to John Rawls, are precisely there to regulate the basic structure of the

legal order. See JOHN RAWLS , A THEORY OF JUSTICE 6 (rev. ed., 1999) where he writes: “the primary subject of justice is the basic structure of society, or more exactly, the way in which major social institutions distrib-ute fundamental rights and duties and determine the division of advantages from social co-operation.”



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(c) Compensation from private parties

An important corollary of this thinking is to consider the responsibilities of privateparties where they indeed bring about structural crises where a large number of

individuals are no longer able to provide for their own basic needs. The global eco-nomic crisis of 2008 was not an act of nature: it was a crisis triggered by deliberatedecisions taken by many global nancial actors which can be characterized as show-ing “reckless disregard for obvious dangers.” 52 Those decisions involved activities,such as granting loans to people who had insecure nances and also creating mort-gage structures, which meant that individuals would owe more money to the banksthan was contained in the value of their homes, if house prices failed to rise. 53 Therisk of such mortgages was then packaged to create a variety of nancial productswhich were sold and spread the risk throughout the nancial system. 54 When indi-viduals defaulted on their loans, and when property prices appeared not to rise, thewhole system collapsed. A wide range of private actors including mortgage origina-tors, banks, credit-ratings and insurance companies were involved in creating thisbubble which eventually burst. Large amounts of government nances were con-troversially used to bail out certain banks and other nancial institutions from themess they created in order to avert an even greater foundational crisis. 55

Yet, there is an important question as to whether we should in fact be holdingthese various private actors liable for the damage that they were largely responsiblefor bringing about. This is particularly signicant since the nancial crisis has ledindividuals into circumstances of personal crisis and of being unable to meet theirbasic socio-economic interests, thus triggering the positive obligations of the state.Such a situation should require culpable nancial actors to be required to compen-sate individuals for the losses they incurred and, at least, to contribute positivelytowards ensuring their socio-economic rights are realized. 56 To the extent thatgovernments have been obligated to provide for the needs of their citizens affectedby the crisis, these private companies should also be required to compensate the

52 See JARSULIC , supra note 47, at 96, who characterizes the decisions of these nancial actors in this manner.53 Obviously, many individuals also bear some responsibility for accepting such mortgages. Nevertheless,

many of the most aggressive companies were not fully honest with mortgagees and used their igno-rance of law and nancial detail to make such loans. MCLEAN & NOCERA, supra note 6, at 130, quoteformer loan ofcers at Ameriquest (one of the major mortgage originators) as saying that they deliber-ately hired young and inexperienced people as “they were less likely to realize that ‘they were screwingpeople over’ as one of them put it.” These authors also indicate that “fraud was an everyday occur-rence” ( id .). Of course, many individuals were affected by the crisis who never took any of these loansat all.

54 For a general analysis of the causes of the crisis, see James Crotty, Structural Causes of the Global FinancialCrisis: A Critical Assessment of the “New Financial Architecture” , 33 CAMBRIDGE J. ECON. 563 (2009); andW HAT CAUSED THE FINANCIAL CRISIS (Jeffrey Friedman ed., 2011).

55 For example, the United States passed the Emergency Economic Stabilization Act 2008 which eventuallyresulted in USD 700 million being ear-marked to buy toxic mortgage assets from struggling nancialinstitutions in the US: see CIRO, supra note 2, at 94–98 for more detail.

56 See, e.g., David Bilchitz, Do Corporations Have Positive Fundamental Rights Obligations? , 25 THEORIA 1, 11–16(2010).



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government which would lessen the tax burden on the vast majority of people wholacked any responsibility for the crisis that ensued. 57

Such a duty to compensate ows from a failure of those private parties to comply

with their negative obligations not to interfere with the existing access of other indi-viduals to socio-economic resources that enable them to meet their needs. Wherethere is such a violation, private parties should be held liable for having brought aboutthe situation where the affected individuals are unable to meet their needs. 58 Such aduty to compensate ows logically from the duty to respect the socio-economic rightsof others, the latter duty having been recognized clearly in several General Commentsunder the International Covenant on Economic, Social and Cultural Rights (ICESCR) 59 and in some domestic jurisdictions. 60 The duty to protect fundamental rights whichfalls on the state does not entail that the state be required to indemnify private par-

ties from bearing responsibility for their actions: it should rather require the state toensure that they do not violate the rights of others and, where they do, to ensure theyare required to provide remedies such as nancial compensation. The recognition thatcompensation may be payable, however, does not necessarily translate into an imme-diate obligation to do so. 61 Where the nancial institution or private actor is strug-gling to survive, it would be counter-productive to seal its fate with such a burden.However, many banks, for instance, have now moved beyond the point of solvency,and are, once again, making signicant prots. In this situation, it is unclear why thestate (and thus tax-payers) are required to bear the full burden for their mistaken deci-

sions; indeed, it would be a clear consequence of the rights-based reasoning I havearticulated to hold them responsible, particularly, for the severe effects of the crisis onindividuals. It is important to recognize that a rights-based approach would not regardit as being sufcient that a large penalty be imposed on a particular company, whichis then paid into the general coffers of the tax authorities. 62 The state would need to

57 One particular difculty with ensuring adequate compensation is paid in 2008 is that many of the com-panies, which were implicated in causing the crisis, are based in the United States, and compensationclaims would likely be prosecuted there. However, the implications of the crisis went beyond the bordersof the United States and had a global impact on the rights of many individuals in other countries. Furtherresearch is required to nd a mechanism whereby private actors can be held responsible (at an interna-tional level) for the harms they cause across borders and to ensure that any compensation paid reachesthe individuals who are worst affected.

58 Thomas Pogge makes a similar argument in relation to global poverty: he argues that the unfairnessof the global nancial institutions imposes a duty to compensate for our contribution to these harmsthrough working towards institutional reform and protecting victims of current injustices. See THOMAS W.POGGE, W ORLD POVERTY AND FUNDAMENTAL RIGHTS 19–26 (2002).

59 See, e.g., General Comment No. 12, supra 17, ¶ 15.60 See, e.g., the discussion in Section 3.1.1, supra , of the situation in South Africa.61 General Comment No. 12, supra note 17, ¶ 16, for instance, recognizes that “[s]ome measures at these

different levels of obligations of States parties are of a more immediate nature, while other measures aremore of a long-term character, to achieve progressively the full realization of the right to food.”

62 In late November 2013, JP Morgan Chase agreed to pay USD 13 billion in a settlement with the US gov-ernment concerning its activities that led to the nancial crisis. The Justice Department indicated that thebank admitted selling mor tgages to investors that should never have been sold. From a fundamental rightspoint of view, the settlement though is not entirely satisfactory as only a minor portion of it is focusedon providing relief to individuals and it is not indicated how large parts of the government portion will



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ensure that the compensation payable is designed in such a manner that it can reachthe individuals whose socio-economic rights have been affected by the crisis. The statecould, for instance, require banks to restore individuals to the homes they lost, or to

provide them with cheap nance to assist them in acquiring new homes. If money ispaid to the state, it should also indicate how this is being used to provide tax relief tothe worst affected and to create more generous welfare programs for them.

3.2. Approaches to positive obligations

Thus far, I have considered the importance of developing legal doctrine relating to thenegative obligations owing from socio-economic rights in times of structural eco-nomic crisis. Given that many individuals will end up in situations of personal crisis— being unable to meet their basic needs—during such times, consideration must also begiven to the positive obligations of the state under these conditions. In this discussion,I shall focus on what I take to be the two main legal doctrinal approaches that havebeen developed in the case law and academic literature surrounding these obligationsand consider their applicability in times of economic crisis.

(a) Reasonableness

The Grootboom judgment is usually regarded as having articulated what is termed a“reasonableness” approach to socio-economic rights adjudication: the court requires

the government rst to adopt a program to realize these rights and, second, courtswill evaluate whether that program is reasonable or not. The court in Grootboom doesnot stop there but outlines a number of factors that will play a role in determiningreasonableness. A reasonable program, according to the court does the following: it(a) allocates responsibilities and tasks to different spheres of government; (b) ensuresappropriate nancial and human resources are available; (c) is capable of facilitatingthe realization of the right; (d) is reasonable in both conception and implementation;(e) is balanced and exible; (f) attends to crises; (g) responds to the needs of those whoare in the most urgent and desperate situations; (h) does not exclude a signicant seg-

ment of the population; (i) balances short, medium and long-term needs; (j) does notrequire an ideal program prior to implementing one that assists individuals; (k) doesnot discriminate unfairly between persons. 63

benet those who were worst affected. Of the USD 13 billion, only USD 2 billion will be used for consumerrelief, which will include loans the banks are forgiving and reducing monthly repayments. A further USD2 billion will be used for new loans in areas which were hardest hit by the housing crisis. USD 4 billion isgoing to a settlement with the government mortgage nancing institutions Fannie Mae and Freddie Mac,and USD 5 billion in civil penalties to other United States government departments and agencies. See Karen Freifeld, Aruna Viswanatha & David Henry, JPMorgan Agrees $13 billion Settlement with U.S. overBad Mortgages , REUTERS (Nov 19, 2013), available at http://www.reuters.com/article/2013/11/20/us- jpmorgan-settlement-idUSBRE9AI0OA20131120 (last accessed July 15, 2014).

63 These criteria can be gleaned from Grootboom , 2001 (1) SA 46 (CC), ¶¶ 39–44, Treatment ActionCampaign, 2002 (5) SA 721 (CC), ¶ 81, and Khosa v. Minister of Social Development, 2004 (6) SA505 (CC) ¶ 68. A similar list (with some variations) is developed in David Bilchitz, The Right to Health , in CONSTITUTIONAL LAW OF SOUTH A FRICA 56A-12 (Stu Woolman et al. eds., 2006).



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taken concrete actions to this effect. The Constitutional Court could not in fact strikedown its measures as being “unsuitable” given that its articulated goal was achiev-ing long-term solutions to the housing crisis in the Western Cape. 68 The fact that the

government had made no provision for the short-term housing of those who were indesperate need could not be challenged on grounds of “suitability” given that its statedgoal was providing housing for all in the longer-term.

This problem of the malleability of the “suitability” criterion becomes even more acutein times of economic crisis: governments have often made arguments as to why an aus-terity package, for instance, of cutting important social benets will be a crucial measurein order to secure greater benets for all in the longer term; 69 or why large sums of moneypaid to prop up the banks are suitable measures to ensure the nancial system does notcollapse which in turn will prevent serious harm to individual rights. 70 Without some

stronger conception of the obligations of governments at these times, it would seem hardto fault many government actions that impact negatively on the realization of many indi-vidual’s socio-economic interests on grounds of “unsuitability” or “irrationality.”

Serious problems are also connected with the equality dimension of reasonableness.Equality generally fails to provide an understanding of the level of provision required bysocio-economic rights: equality could be attained with the government providing noth-ing to all, very little to all, or a high-level of benets to all. In times of crisis, this featureof equality becomes particularly problematic: the government can reduce the benetsof everyone radically without abrogating the equality dimension. 71 Moreover, equality

generally requires that, once the government develops a particular program, such a pro-gram be applied equally to all. However, in times of structural crisis, we have a seriousdifculty: it may not be possible, given the scarcity of resources that has arisen, to granteveryone equally the same benets. There may be a particular justication under suchconditions for a departure from equality and a prioritization of those in most urgentneed. The equality dimension of reasonableness is unable to help in this situation. 72

68 See David Bilchitz, Giving Socio-Economic Rights Teeth: the Minimum Core and Its Importance , 119 S. AFR. L.J. 484 (2002).

69 See , for examples of the austerity measures in European countries, EU Austerity Drive Country by Country , BBCNEWS (May 21, 2012 15:46 pm), http://www.bbc.co.uk/news/10162176 (last accessed July 15, 2014).

70 See , for examples of bailout agreements in United States and Europe, Jim Brunsden, Rebecca Christie &Fred Pals, Bank Bailout Deal Struck in EU Talks Decrees Writedowns , BLOOMBERG (June 27, 2013), http://www.bloomberg.com/news/2013-06-26/eu-nance-chiefs-said-to-reach-deal-on-failing-banks.html (last accessed July 15, 2014); and Moira Herbst, The Bank Bailout Cost US Taxpayers nothing? Think Again ,THE GUARDIAN (May 28, 2013), http://www.theguardian.com/commentisfree/2013/may/28/bank-bail-out-cost-taxpayers (last accessed July 15, 2014).

71 Notions of substantive equality attempt to reduce the problem of leveling down in this way: yet, those notionsinevitably involve supplementing pure equality analysis with other values and considerations. See, e.g.,LIEBENBERG, supra note 66, at 163–214; Cathi Albertyn & Beth Goldblatt, Towards a Substantive Right to Equalityin Constitutional Conversations 231 (Stu Woolman & Michael Bishop eds., 2008); and Sandra Fredman, ThePotential and Limits of an Equal Rights Paradigm in Addressing Poverty , 22 STEL. L. REV. 566 (2011).

72 The case of Nokotyana v. Ekurhuleni Metropolitan Municipality, 2010 (4) BCLR 312 (CC) raises inter-esting questions concerning the relationship between equality and prioritization which I have soughtto address in David Bilchitz, Is the Constitutional Court Wasting Away the Rights of the Poor?: Nokotyana vEkurhuleni Metropolitan Municipality , 127 S. AFR. L.J. 591 (2010).



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The last dimension of reasonableness, namely, the priority dimension, appears to bemost important and helpful in circumstances of crisis. The state is required to attendto the needs of those who are in the most urgent and desperate circumstances, and to

“make appropriate provision for attention to housing crises and to short, medium andlong-term needs.” 73 While the reasonableness approach makes mention of this dimen-sion of priority, it fails to provide guidance as to how to determine what constitutesurgency and desperation in any detailed manner. In fact, in some ways it includes aninherent tension between the equality and priority dimensions without providing anyclarity as to how to resolve this conict. In order to determine who has priority, thereis a need, at least, to provide some general standards as to the level of provision belowwhich individuals cannot be allowed to fall and what constitutes an “urgent” needwarranting a priority response. It is the “minimum core” approach which explicitly

attempts to do this and its merits—under conditions of crisis—now warrant analysis.

(b) Minimum core

The minimum core approach derives from General Comment 3 of the United NationsCommittee on Economic, Social and Cultural Rights where it was recognized that “aminimum core obligation to ensure the satisfaction of, at the very least, minimumessential levels of each of the rights is incumbent upon every state party.” 74 While thegeneral positive obligations in relation to socio-economic rights require “progressiverealization,” states are required to meet a minimum threshold of provision as a matterof priority. If they fail to do so, they will be in prima facie breach of their obligations.A strict test is developed for a state claiming it is unable to meet its obligations on thegrounds of a lack of available resources: “it must demonstrate that every effort hasbeen made to use all resources that are at its disposition, in an effort to satisfy, as amatter of priority, those minimum obligations.” 75

Recently, the United Nations Committee has released a letter to all state parties,which addresses their obligations in relation to socio-economic rights in times of cri-sis. This letter recognizes that such a crisis may require some changes in policy andadjustments in the implementation of the rights under the Covenant. The committeelays out a number of requirements with which any such adjustments must comply:importantly, the committee recognizes that any policy must identify “the minimumcore content of rights, or a social protection oor, as developed by the InternationalLabour Organisation, and ensure the protection of this core content at all times.” 76

The United Nations Committee thus sees the minimum core approach as being ofimportance in responding to situations of structural crisis: the committee, in my view,

73 See Grootboom, 2001 (1) SA 46 (CC), ¶ 43.74 Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of States

Parties Obligations (Art. 2(1) of the Covenant), ¶ 10, UN Doc. E/1991/23 (1990).75 Id.76 Letter from Ariranga G. Pillay, Chairperson of the Committee on Economic, Social and Cultural Rights

(May 16, 2012), Ref. No. CESCR/48th/SP/MAB/SW, available at http://www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf (last accessed July 15, 2014) (pertaining to the protection ofCovenant rights during times of nancial or economic crisis).



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is correct in this assessment for several reasons. First, the approach is one that requiresan understanding of a threshold below which individuals should not be allowed to fallwithout a very strong justication. Placing such a strict requirement on government

policy renders the approach peculiarly apposite for application in times of crisis wheregovernments often claim an unconstrained discretion to take emergency measures toaddress the crisis, sometimes, with limited attention being paid to the human cost ofthe policy measures they adopt.

Second, the approach requires that courts and government agencies give thoughtto the prioritization of resources for those in greatest need. Times of structural crisisplace the possibility of the full realization of socio-economic rights in jeopardy: it isthus necessary to pay strong attention to how resources should be distributed underconditions of intensied scarcity and who has priority in this regard. Importantly, the

minimum core approach requires a society to recognize that the question of distribu-tive justice does not vanish at times of structural or even foundational crisis: rather,socio-economic entitlements, in situations of greater scarcity, require that the distri-bution of resources occurs across the society in such a manner that those who areworst affected are, at least, still able to meet their basic socio-economic needs.

Lastly, the minimum core approach also requires detailed attention be paid tothe meaning and content of socio-economic rights through the specication of thethresholds of resources that must be provided to individuals. The UN Committee hasleft some vagueness about these thresholds: I have attempted to give a philosophical

account of how courts and international bodies can determine the content of thesethresholds. 77 The rst threshold or minimum core can be formulated as involving thegeneral conditions necessary to be free from threats to survival; 78 the second “suf-ciency” threshold concerns achieving the general necessary conditions to be in a posi-tion to realize one’s purposes or to live a life of dignity. 79 The minimum core approachrequires that priority attention be devoted to the rst threshold while recognizing aduty upon states progressively to realize the second threshold. 80 As has been men-tioned, the approach assists states to prioritize where resources are scarce while alsorecognizing that the minimum core is only the starting point for the realization ofsocio-economic rights.

The usefulness of such an approach has been demonstrated in a serious humani-tarian crisis which arose in Colombia, where 40 years of armed conict led to 3–4million people being displaced from their homes. 81 These large numbers of internallydisplaced persons (IDPs) were from very vulnerable rural groups and were often liv-ing in conditions of great desperation. After receiving numerous individual petitions,the Constitutional Court eventually declared that the fundamental rights of IDPs

77 See BILCHITZ , supra note 12, at 38–46 and 185–196.78 Id. at 39–40 and 187–188.79 Id. at 40–45, and 191–194.80 Id. at 193–194.81 See, generally , Manuel J. Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia , in JUDICIAL

PROTECTION OF INTERNALLY DISPLACED PERSONS : THE COLOMBIAN EXPERIENCE 1 ( Rodolfo Arango Rivadeneira ed.,2009). I also rely on this text for a translation of sections of the judgment discussed below.



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were being violated in a systematic manner, and declared an “unconstitutional stateof affairs.” 82 The court made some very important comments about how to addresssocio-economic rights in a time of humanitarian crisis. It stated that “it will not always

be possible to satisfy, in a simultaneous manner and to the maximum possible level,the positive obligations imposed by all the constitutional rights of the entire displacedpopulation, given the material restrictions at hand.” 83 Nevertheless, a minimum levelof the rights of the IDPs had to be protected immediately. These minimum levels “arethose that have a close connection with the preservation of life under elementaryconditions of dignity as distinct and autonomous human beings.” 84 The court heldimportantly that “[i]t is there, in the preservation of the most basic conditions thatpermit a dignied survival, where a clear limit must be drawn between the State obli-gations towards the displaced population of imperative and urgent compliance, and

those which, even though they must be fullled, do not have the same priority . . . .”85

This reasoning was then used to identify a number of minimum rights—includingthe right to life, a basic level of subsistence, essential medical services and sanitation— that had to be realized as a matter of urgency through positive action on the part ofthe state. The court made a number of far-reaching orders to try and ensure the otherbranches of the state addressed the problem of the IDPs, which importantly involvedensuring, as a matter of priority, that adequate human and nancial resources weremade available to meet a minimum level of these rights, that a program was developedspecically to address the problem, and that the government report on progress made

in this regard. The court also adopted another important feature of the minimum coreapproach: it set standards against which the actions of other branches of governmentcould be evaluated but did not seek to order the exact means by which these standardsmust be realized. 86

The IDP case in Colombia has had much success in directing government attentionto the pressing problem of IDPs. 87 This occurred in a situation of scarce resources andstructural crisis. The case illustrates the manner in which the lot of the most vulner-able can be improved through a number of important doctrinal elements: rst, thereis a need for the setting of priorities concerning who deserves the most urgent atten-tion; second, the goals and standards that government action must comply with mustbe elaborated upon; and, third, the legislative and executive branches of governmentmust be held to account through, for instance, being required to report on the mea-sures they have taken to address the social right in question and be subject to judicial

82 Colombian Constitutional Court, Decision T-025 of 2004.83 Id. § 9.84 Id.85 Id.86 This distinction, I have argued, is of great importance in delineating the role of courts in determining the

content of socio-economic rights: see, e.g., David Bilchitz, Constitutionalism, the Global South and Economic Justice, in CONSTITUTIONALISM OF THE GLOBAL SOUTH : THE A CTIVIST TRIBUNALS OF INDIA , SOUTH A FRICAN AND COLOMBIA 41, 86 (Daniel Bonilla Maldonado ed., 2013).

87 See Landau, supra 43, at 225–229 who also explores the reasons (mainly relating to political context) ofthe success in the IDP case as opposed to some less successful interventions in seeking to address struc-tural problems in the health-care system.



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oversight in relation to the programs they develop to address the crisis. It appears thatthese principles could be successfully adapted to other circumstances of structural (orfoundational) crisis as well and, in fact, they have been used in other crises that have

arisen in Colombia.88

However, it may be countered that the minimum core approach may indeed be use-ful in developing countries where ensuring a minimum threshold for everyone repre-sents an improvement from a situation where people may literally starve to death or becompletely homeless. Yet, in developed countries, it could be argued, the level of well-being of most individuals exceeds this minimum threshold—dened as the generalconditions to be free from threats to survival—by far. The minimum core approachwould then require us to prioritize a threshold of provision that falls way below whatmost people in those societies would regard as minimally adequate. The approach is

thus not particularly helpful in addressing the situation caused by a structural eco-nomic crisis (such as occurred in 2008) as it does not offer a way of addressing thevery real suffering of those who have not reached the minimum core threshold but,nevertheless, suffer severe losses to their economic security and well-being throughthe crisis.

This objection challenges us to think about the impact that societal expectations haveon the specication of the thresholds required by socio-economic rights. It appears tome that there is a still a strong virtue in having a universal objective standard thatapplies across the world that ows from the most basic needs and interests of human

beings in being free from threats to survival. 89 That universal standard remains ofimportance also in developed countries: at times, those falling below this threshold areignored because of incorrect factual assumptions that everyone in the society is livingabove that basic minimum standard (consider those who sleep rough in the UnitedKingdom or, until recently, without any access to healthcare in the United States). Therst level of prioritization in developed countries must be to ensure that all individualsare above the absolute minimum which can be affected by an economic crisis.

Situations of structural crisis, however, may also mean that states are not able toensure that all individuals in developed countries are above the second “sufciencythreshold.” If it is possible to ensure that individuals remain in this position, then thatmust be guaranteed of course. However, if it is not possible to do so—which may be

88 David Landau, The Promise of the Minimum Core Approach: The Colombian Model for Judicial Review ofAusterity Measures, in ECONOMIC AND SOCIAL RIGHTS AFTER THE GLOBAL FINANCIAL CRISIS , supra note 9, considersthe manner in which the Colombian Courts have applied various facets of the minimum core approachto several crises that have arisen in that country. He also defends the general promise of this approach foradjudication during times of crisis.

89 KATHARINE YOUNG, CONSTITUTING ECONOMIC AND SOCIAL RIGHTS 39 (2012) contends that even this threshold“reveals its own controversies and indeterminacies.” She concedes later on, though, that this thresholdcan “still deliver a nominate standard which may allow for a context-sensitive adjustment in particu-lar cases with little precedential importance” ( id. at 40). My specication of such a threshold (discussedabove) was meant to function as a standard, which may of course vary with individuals and contexts(housing that protects individuals from the elements will be different in hot and cold climates). The stan-dard though remains sufciently determinate to remain helpful in specifying a minimum threshold andattempts to undermine this have not been convincing.



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the case in times of economic crisis—then, it still becomes important to set a mini-mum threshold of provision that falls between the absolute minimum described aboveand the sufciency threshold. This is not too difcult to accomplish as a “relative

minimum threshold” can be set which would involve determining the level of socio-economic well-being which in a particular society is regarded as the minimum belowwhich individuals should not be allowed to fall. Such a threshold cannot be below theabsolute minimum core “survival threshold” but can provide better provisioning thattakes account of societal expectations concerning the minimum conditions of well-being that are acceptable within a particular society. Some international bodies haveindeed already sought to develop the minimum core approach in this direction: theEuropean Committee on Social Rights of the Council of Europe has sought to specifya minimum threshold of provision relative to what is regarded as minimally adequate

across Europe.90

Even with these modications, however, the key doctrinal elements(outlined above in relation to the IDP case) of the minimum core approach remain:that a rational system of setting priorities must be developed; rm goals and standardsbe articulated; and a system of accountability and reporting be given effect to.

3.2. Limitations, derogation, and proportionality

One of the difculties that arises in a situation of a structural crisis is the fact that it is oftenstated that “it is not possible” to realize some of these rights and therefore, under these con-ditions, the state may legitimately limit the entitlements of individuals in this regard. TheInternational Covenant on Economic and Social Rights expressly recognizes the possibilityof limiting these rights: “limitations may be placed on these rights only if compatible withthe nature of these rights and solely for the purpose of promoting the general welfare ina democratic society.” 91 In this section, I consider, rst, whether the complete suspensionor derogation of social rights obligations is permissible at times of economic crisis. I thenturn, second, to consider the role of the doctrine of proportionality in determining thepermissible limitations of social rights under conditions of economic crisis.

(a) Is derogation appropriate?

Structural crisis creates a sense of panic and constraint which has led fundamentalrights provisions often to be largely ignored. 92 This response suggests that, at timesof crisis we should consider that fundamental rights provisions can be suspended,or in legal terms derogated from. 93 A derogation of “a right or aspect of a right is its

90 See, e.g., its report on Armenia which considers the “minimum quantity of food and non-food items which isnecessary for an individual to maintain a decent standard of living and be in good health” against the povertythreshold for that particular country: European Committee of Social Rights, Conclusions: Armenia (2009), 2009/def/ARM, http://hudoc.esc.coe.int/esc2008/document.asp?item=0 (last accessed July 15, 2014).

91 International Covenant on Economic, Social and Cultural Rights, art. 4, Dec. 16, 1966, S. Treaty Doc.No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3.

92 See Saiz, supra note 1, generally for the limited consideration of human rights provisions in the responseto the crisis.

93 See, generally , Emilie M. Hafner-Burton, Laurence R. Helfer & Christopher J. Fariss, Emergency and Escape:Explaining Derogations from Human Rights Treaties , 65 INT’L ORG. 673 (2011).



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“retrogression in the enjoyment of these rights. The Committee realizes that someadjustments in the implementation of some of these Covenant rights are at timesinevitable.” 97 Unfortunately, the Committee does not specify exactly how we are to

consider these “adjustments”: are they to be regarded as “retrogressive measures” or“justiable limitations” on the obligations outlined in the covenant? Such a classica-tion would help determine the applicable legal standards for determining whether thegovernment’s changes are permissible.

The Committee does proceed to lay out certain requirements with which anychanges in policy relating to socio-economic rights must conform. One of theserequirements, is that such a “policy is necessary and proportionate, in the sense thatthe adoption of any other policy, or a failure to act, would be more detrimental to eco-nomic, social and cultural rights.” 98 This formulation invokes the “proportionality”

test which is used in many domestic contexts across the world when constitutionalcourts are considering whether the limitation of a right is justiable or not. 99

The proportionality inquiry ultimately seeks to evaluate the benets to be achievedby the infringing measure against the harms caused through violating fundamentalrights. Judges have developed a particular reasoning process to give structure to suchan analysis. The rst part of this process involves considering the purpose of the mea-sure that limits a fundamental right. Jurisdictions vary on how they characterize thisstage: in Germany, for instance, the purpose must simply be a “legitimate purpose”; 100 in Canada, the objective must be of “sufcient importance to warrant overriding a

constitutionally protected right or freedom.” 101

The second part of this process is the proportionality inquiry proper which “exam-ines the relationship between the object and the means of realizing it. Both the objectand the means must be proper. The relationship between them is an integral part ofproportionality.” 102 There are three key components to the proportionality test in thisregard. The rst stage requires that the infringing measures be “rationally connectedto the objective.” 103 I shall refer to this as the “suitability requirement” which essen-tially holds that a measure that infringes a right can only be justied if it is suitablefor realizing the purpose it is designed to achieve. The second stage requires that themeans “impair ‘as little as possible’ the right or freedom in question.” 104 I shall refer tothis as the “necessity” requirement. Finally, the third stage requires that the benetsof the infringing measure must be proportional to the violation of fundamental rights

97 Pillay, supra note 75, at 2.98 Id.99 Proportionality is now an approach that is used worldwide by a range of Constitutional Courts. The

most famous analysis of the various components of the proportionality inquiry (as used by the GermanConstitutional Court) with an analytical defense thereof comes from the work of ROBERT A LEXY, A THEORY OF CONSTITUTIONAL RIGHTS (2002) which has inuenced my exposition in this paper.

100 See Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence , 57 U. TORONTO L.J.383, 388 (2007).

101 R v. Big M Drug Mart Ltd. [1985] 1 SCR 295, 352 (Can.).102 Aharon Barak, Proportional Effect: The Israeli Experience , 57 U. TORONTO L.J. 369, 371 (2007).103 R v. Oakes [1986] 1 SCR 103, ¶ 70 (Can.).104 Id.



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736 I•CON 12 (2014), 710–739

that is caused. This I shall term the “proportionality stricto sensu requirement” whichultimately involves weighing up the harms caused to fundamental rights against thebenets of the infringing measure. At this stage, for instance, “[t]he more severe the

deleterious effects of a measure, the more important the objective must be if the mea-sure is to be reasonable and demonstrably justied in a free and democratic society.” 105

The application of the proportionality test to socio-economic rights involves muchcomplexity and needs to be thought through in some detail, a question which liesbeyond the scope of this paper. 106 Contiades and Fotiadou, however, have recentlyargued in this journal that a proportionality test can itself provide the legal doctrinethat effectively determines the application of socio-economic rights in times of cri-sis.107 They contend that, apart from a “defensive” aspect to proportionality where it isused as a means of defending rights against limitations, there is also a “creative” ele-

ment to proportionality which involves its use “as a tool to give content to rights.”108

They contend that “in its creative dimension, the principle of proportionality dictatesthe steps of a structured balancing test, in order to enclose in the uid, exible con-tent of social rights the demanding balancing acts regarding the social, economic andscal policy. Such balancing acts become more crucial in the era of economic crisisand destabilization of the welfare state, as the lawmaker and the judge are required todecide who shall bear the burden of the cuts and the restructuring of redistributionmechanisms.” 109

Proportionality, they argue, in the context of social rights, in fact generates sub-

stantive content for those rights and where a right must give way, “this does not stripthe right of its strength.” 110 In the context of economic crisis, “[t]he key issue is den-ing the content of social rights in order to come up with a way to shield them fromlimitations imposed due to economic crisis. Proportionality emerges as the basic toolto do that.” 111

The authors contrast their claims about proportionality with the stricter minimumcore approach to socio-economic rights. Dening a minimum core which is difcultto limit, they claim, may scare judges in times of crisis and lead to social rights beinglargely ignored. On the other hand, including a proportionality test in the very deni-tion of these rights, “has the potential to trigger their reinforcement and further devel-opment due to their ability to accommodate reality and conicting policies. The burdenis thus shifted to proportionality as a method that can protect the substance of rightsnot by excluding them from conict, building a wall around them, but by ensuring

105 Id. ¶ 71. This outline of the proportionality inquiry draws on the analysis in David Bilchitz, Necessity andProportionality: Towards a Balanced Approach? , in REASONING R IGHTS : COMPARATIVE JUDICIAL ENGAGEMENT (LioraLazarus, Christopher McCrudden, and Nigel Bowles eds., July 2014).

106 See, e.g., Kevin Iles, Limiting Socio-Economic Rights: Beyond the Internal Limitations Clauses , 20 S. AFR. J. HUM. RTS 448 (2004); and LIEBENBERG, supra note 66, 186.

107 Xenophon Contiades & Alkmene Fotiadou, Social Rights in the Age of Proportionality: Global EconomicCrisis and Constitutional Litigation , 10 INT. J. CONST . L. 660, 665 (2012).

108 Id. at 665.109 Id. at 666.110 Id. at 670.111 Id. at 671.



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that this conict is conducted in accordance to the constitution.” 112 Proportionality,also, they contend, by rendering highly context-specic rulings, enables a dialogue totake place between the legislature and the judiciary which enhances the protection of

these rights and does not preclude further political debate.These claims, in my view, reect a serious misunderstanding of the proportionalityinquiry and what it can offer in protecting social rights. I wish to highlight severalproblems with this view, particularly for giving effect to socio-economic rights in timesof crisis.

The rst important question concerns the relationship between the proportionalityinquiry and the content of fundamental rights. The authors continually assert thatproportionality can help give content to socio-economic rights without providing anyclarity as to how it does so. Proportionality is in fact a formal test (with various sub-

components) that helps decision-makers reach determinations as to the circumstancesin which it is permissible to limit rights. The test, however, only works where we havea preexisting understanding of the content of particular rights and the weight to beaccorded to them. This point can be understood better by considering two of the mostimportant sub-inquiries involved in determining proportionality. 113

The “necessity” test involves determining whether there is an alternative measure(to the current one under consideration) that sufciently realizes the governmentalpurpose but is less restrictive of the right in question. 114 In order to make a judgmentin this regard, it is vital to have an understanding of how different alternative mea-

sures impact upon a fundamental right. To do this, however, one needs to have someunderstanding of the preexisting content of such a fundamental right as otherwisethe test will be meaningless: how can one judge the impact of different measures on aright if one does not know what one is having an impact upon? The necessity test thuspresupposes an understanding of the existing content of any right.

Similarly, in relation to the balancing component of proportionality, it is only pos-sible to make a judgment as to whether the harms to the right caused by the limitingmeasure are proportional to the benets to be achieved by it if we have some pre-existing idea as to what the right entails, and how to judge the seriousness of anyviolation thereof. The inquiry also requires us to have some understanding of the“weight” or strength of the interests that are affected. Contra Contiades and Fotiadou,the proportionality test thus cannot itself supply the content of fundamental rights;rather, it assumes there is an understanding of such content in order for it to operateeffectively. 115

The same point is true about the virtues of dialogue that the above authors arguestrongly in favor of. Sandra Liebenberg too, for instance, advocates adopting a more

112 Id. at 672.113 I have already discussed the weakness of the suitability inquiry (and, in particular, under circumstances

of crisis) in relation to the doctrine of reasonableness.114 This formulation follows the analysis of the necessity inquiry in Bilchitz, supra note 104.115 Perhaps Contiades and Fotiadou propose a completely different understanding of proportionality: they

never articulate in their article such a conception. Moreover, if it is completely different, in what sense doesit remain the proportionality inquiry which has been recognized by constitutional courts across the world?



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738 I•CON 12 (2014), 710–739

vague approach towards social rights in order to promote dialogue between the otherbranches of government and the courts. 116 Dialogue too, however, requires parties tothe conversation to have particular views which can be engaged upon. The failure

to have a conception of the content of rights means that any dialogue that results isweak and not guided by normative principles. 117

All these points indicate the serious shortcomings of applying a “weak approach” tothe content of socio-economic rights in times of economic crisis which is focused on avague, undened proportionality standard. Indeed, if rights are dened by a balanc-ing process of multiple competing criteria, it appears highly likely that very limitedprotections will result at times of structural crisis. Legislatures and executives are par-ticularly fond of pointing out the scal difculties of the state, and spending on socialprograms, as we have seen, is often the target of savage cuts. Without any strong view

of the socio-economic entitlements that individuals have which is not dependent uponthese difcult social and economic conditions, it appears highly likely that such cir-cumstances will lead states simply to redraw the boundaries of these entitlements ina manner that is extremely weak and ts these conditions. Social and economic rightswill thus have little role in actually placing constraints upon government action andchallenging their responses to these conditions, which is precisely necessary if theyare to provide normative guidance at times of crisis.

What then is the place of the proportionality inquiry in relation to social rights? AsI have argued, it does not determine the initial content of these rights; rather, in my

view, it functions in the same manner as it does in relation to civil and political rights,namely, by providing a detailed formal test for deciding the permissibility of limitationson the content of such rights. It may indeed be the case that the government cannotsucceed in fullling all its obligations in relation to social rights and some exibility isrequired for them to respond to the crisis. The proportionality test allows us to evalu-ate the purpose for which such rights are limited and the various sub-inquiries help usdetermine whether such a limitation is in fact proportional to the harm caused to therights in question.

Importantly, a strong conception of these rights assists in the very application of thetest itself in such circumstances. Should the state claim it cannot meet its minimumcore obligations, courts will be aware that the most basic interests of individuals— which are protected by these obligations—have a strong priority and weight in anyproportionality inquiry. While there may be some circumstances in which such limita-tions could be justiable, these will be very limited and the state will bear a strong bur-den of justication in this regard which will affect the manner in which the necessityand balancing inquiries are evaluated. It will, of course, be more possible for the stateto justify departures from the sufciency threshold. Proportionality does, however,here also offer some clear formal constraints on any state action: a clear, legitimatepurpose must be identied for any limitation to be legitimate, and the measures in

116 LIEBENBERG, supra 66, at 47–48.117 See David Bilchitz, Does Sandra Liebenberg’s New Book Provide a Viable Approach to Adjudicating Socio-

Economic Rights? , 21 S. AFR. J. HUM. RTS 556 (2011).



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question must be capable of meeting the tests of suitability, necessity, and balancing.No doubt, some of the latter determinations will be made more difcult in times ofeconomic crisis: the virtues of a strong approach to the content of socio-economic

rights together with a proportionality inquiry into whether limitations are permissiblewill be that legislative and executive action will be subject to detailed critical scrutinywhich will help determine whether the measures they adopt are indeed acceptable orunnecessarily infringe upon the fundamental rights of individuals.

4. ConclusionThis article has sought to engage with the conceptual framework for dealing withsocio-economic rights in times of economic crisis. I have sought to demonstrate thefact that socio-economic rights do not lose their application in times of crisis: indeed,it is in these circumstances, that they often become most important. Attending to theconcrete implications and content of these rights is of importance in helping to guidegovernmental responses and, indeed, the attitude of the courts. I have attemptedto consider the legal doctrines that are most likely to render these rights meaning-ful in these difcult circumstances. A variety of negative obligations persist at timesof economic crisis which include both procedural and substantive measures and,importantly, can result in a duty on the part of private parties to compensate for harmsthey cause to the existing access other individuals have to socio-economic resources.The minimum core approach, it was argued, was best placed to provide the doctrinalbasis necessary to give effect to the state’s positive obligations at times of crisis withits emphasis on prioritization, clear standards and accountability. Circumstances ofcrisis, in general could not provide a justication for derogating from socio-economicrights provisions; however, the doctrine of proportionality could assist in determiningunder what conditions the obligations to realize socio-economic rights may justiablybe limited. The approach proposed here recognizes that crisis situations in fact bringto the fore urgent questions of distributive justice and cannot, in general, provide the justication for ignoring anyone’s core socio-economic entitlements. An approachrooted in fundamental rights also shifts the perspective from which we engage withan economic crisis: it is not simply about abstract questions concerning the nancialmarkets and losses of speculators; we are required to focus on the concrete harmsto the most fundamental of individual interests and how these are to be remedied.Though an economic crisis—such as that which occurred in 2008—may indeed leadto a contraction of certain socio-economic entitlements, it is important that this pro-cess occurs in such a way that ensures the economic culprits of the crisis are requiredto pay compensation and that priority is given to those who are worst off.



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