As discussed in Chapter 4 socio-economic rights create obligations for states in relation to the things we need to live a dignified life: food, housing, clothing, water, education, work and associated rights, as well as the right to take part the cultural aspects of society. Even though they are of fundamental importance, the implementation and realisation of socio-economic rights lags behind civil and political rights. This is despite the international community repeatedly indicating that socio-economic rights are indivisible from civil and political rights.

The reasons for this are debated and include the nature of socio-economic rights, the meaning of progressive realisation, and issues of monitoring and justiciability. This chapter begins by identifying the sources of socio-economic rights in the UN human rights system and regional human rights systems. It then considers some of the critiques and difficulties of implementing socio-economic rights. The chapter then describes the obligations created for states by the concepts of progressive realisation and the minimum core of socio-economic rights. The chapter concludes by considering some aspects of specific socio-economic rights.

Sources of Socio-Economic Rights

The United Nations System

Articles 22 to 27 of the UDHR contain socio-economic rights.

From this initial acknowledgement of the importance of these rights in the UDHR, The Commission on Human Rights (CHR) was tasked with drafting a Bill of Rights containing both socio-economic rights and civil and political rights. However, this proved to be an impossible task. One reason suggested for this is that Western liberal states favoured a treaty that only included civil and political rights; socio-economic rights were seen as policy goals and something to be achieved by economic growth and so not suited to being included in an international treaty creating legal obligations. Soviet-bloc states considered socio-economic rights to be of fundamental importance and that these rights should be immediately implemented. The CHR attempted to draft a single treaty until 1952, when a resolution was passed to separate the rights contained in the UDHR into two draft treaties.

One of the two treaties that resulted from this drafting process is the International Covenant on Economic, Social and Cultural Rights (ICESCR). This treaty was adopted in 1966 by General Assembly Resolution 2200A (XXI) and came into force on the 23rd of March 1976. Optional protocols for both the ICESCR and ICCPR allow the treaty bodies to hear individual complaints. However, the Optional Protocol of the ICESCR was not adopted until 10 December 2008. This in contrast to the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), which entered into force in 1976.   As a result, many more complaints have been heard by the Human Rights Committee concerning civil and political rights. The decisions in these complaints serve as a valuable source in relation to defining and clarifying states obligations in relation to the rights in the treaty. Such jurisprudence in relation to the ICESCR has not had as much time to develop, and do the obligations may not be as clearly defined for the rights it contains.

As discussed below, it is widely accepted that socio-economic rights are human rights and capable of being adjudicated on by courts. However, the position of Western democracies that socio-economic rights are not rights persists. This is also exacerbated by the neoliberal economic and political model that has been embraced by countries such as the USA and UK. A neoliberal approach only recognises civil and political rights as rights that should be protected constitutionally. It is argued that a strong economy with growth would provide improved socio-economic conditions through trickle-down of wealth and increased employment. In this context, it is notable that the USA has not ratified the ICESCR and the UK has not ratified the Optional Protocol of the ICESCR.

In addition to the ICESCR, other UN international human rights treaties contain protections for socio-economic rights. This can be provided through both direct protection of socio-economic rights within a treaty, as well as indirect protection through provisions that do not guarantee specific socio-economic rights but can still be used to protect them such as non-discrimination provisions. This protection from other treaties is important, as more states have ratified (as of 2025) the Convention on the Rights of the Child (CRC), the Convention on Rights of Persons with Disabilities (CRPD) the Convention on the Elimination of Discrimination Against Women (CEDAW) and the International Convention on All Forms of Racial Discrimination (ICERD) than the ICESCR. As well as increasing the number of states that have agreed to obligations in relation to socio-economic rights, the complaints mechanisms of these treaties have been operational for longer than the Optional Protocol of the ICESCR, providing those whose rights have been violated routes of redress.

CEDAW and ICERD are treaties that aim to eliminate specific forms of discrimination. However, both also contain provisions that protect socio-economic rights. Article 5(e) of ICERD requires states to eliminate discrimination in relation to the enjoyment of social, economic and cultural rights. Likewise, CEDAW contains a general provision in Article 3 that “states especially in the political, social, economic and cultural fields” should take measures to ensure the full realisation of human rights on an equal basis with men. In addition to this general provision, CEDAW also contains reference to specific socio-economic rights including the right to health (Article 12), and the rights of rural women including in relation to an adequate standard of living, health care and social security (Article 14). The CRC and CRPD also contain provisions that include obligations in relation to socio-economic rights. The CRC contains provisions that specifically provide for the right to health (Articles 24 and 25) the right to social security (Article 26) and the right to education (Articles 28 and 29). In addition, Article 4 is a general provision, that requires states to undertake measures, to the maximum extent of available resources, to implement the socio-economic rights within the treaty. The CPRD also contains such a provision in article 4(2) with the Convention then going to recognise specific socio-economic rights. These rights include the right to education (Article 24) and the right to an adequate standard of living and social protection (Article 28).

Socio-Economic Rights in Regional Human Rights Systems

African System

The African Charter on Human and Peoples’ Rights (ACHPR) can be distinguished from other regional human rights systems based on the space devoted to socio-economic rights as well as collective rights. Collective rights are also relevant to socio-economic rights, for example the right to development in Article 22. However, despite the optimism such an approach may have warranted, it has taken some time for the African Commission on Human and Peoples’ Rights (ACmHPR) to give socio-economic rights their fullest interpretation. Mbazira has suggested this is in part due to the low number of complaints received in relation to socio-economic rights. However, two cases in the early 2000s gave the ACmHPR the opportunity to clarify the approach the ACHPR required in relation to socioeconomic rights.

In the first case, Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria, multiple rights were violated in relation to oil extraction in Ogoniland. Amin has suggested that in this case, the ACmHPR used a teleological approach to interpretation, and engaged extensively with the ICESCR. This case was also significant as the ACmHPR indicated violations of rights not directly protected by the ACHPR. The ACmHPR indicated the right to food was implicit in Article 4, the right to life, Article 16, the right to health and Article 22, the right to economic, cultural, and social development of the African Charter.

The second case considered, amongst other rights, the right to health which is recognised in Article 16 of the ACHR. In Purohit and Anor v The Gambia, two mental health advocates filed a complaint on behalf of patients detained under mental health laws. This case is significant, as the ACmHPR articulated that the resources available to states would impact the realisation of socio-economic rights. Unlike the ICESCR there is no mention in the ACHR that the rights it contains are to be progressively realised. Progressive realisation will be discussed below but it acknowledges that resource constraints will limit the rate at which states can realise socio-economic rights. The lack of such wording in the ACHR could have meant states were expected realise all the rights in the ACHR immediately.

The ACmHR also issues guidelines and principles in relation to aspects of the Charter. Although the legal status of these documents is questioned, the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the ACHPR indicate many of the same obligations as the ICESCR and CESCR in relation to socio-economic rights. For example, progressive realisation, a minimum core of rights, and obligations to respect, protect and fulfil (see Chapter 4). These guidelines also emphasise that the right to food, right to water, and right to housing, although not explicitly protected in the ACHR, are protected implicitly in other rights.

American system

The American Convention on Human Rights was adopted in 1969. It is primarily a treaty protecting civil and political rights, but does include Article 26 which states:

However, despite this Article, the Inter-American Commission on Human Rights (ACmHR) focused predominantly on civil and political rights in their in-situ reports and country visits. Torres argues that the ACmHR saw socio-economic rights as policy goals and a matter for diplomacy.

It was not until 1999 that the American Court of Human Rights (IACtHR) began to consider socio-economic rights and develop jurisprudence in this area.  In the case of Street Children (Villagrán Morales et al) v Guatemala the IACtHR indicated the state not only should refrain from certain actions, but that positive actions were also required. The Court went on to state, in paragraph 144, that the right to life included the right to a dignified life and that “States have the obligation to guarantee the creation of conditions required in order that violations of this basic right do not occur”.

This indirect protection of socio-economic rights through civil and political rights has occurred in a number of cases. For example, in Yakye Axa Indigenous Community of the Enxet-Lengua people v Paraguay the IACtHR unanimously stated that the right to food was inherent in the right to life. In paragraph 161 the IACtHR ruled that the right to life also included the state not allowing conditions that prevent people from achieving the right to life. The ‘conditions’ in this case was the deprivation of ancestral lands that provided food for the community. In addition, the IACtHR also found violations of procedural rights and the right to equality and non-discrimination in relation to socioeconomic rights. (For a discussion see Eduardo Ferrer Mac- Gregor).

The Protocol of San Salvador was adopted in 1999. This additional protocol to the ACHR aimed to include socio-economic rights within the system of protection. Initially though, only rights in relation to trade unions and education were considered justiciable. It was not until 2003 and the case of Five Pensioners v Peru that socio-economic rights were considered by the IACtHR in a direct way. In 2017 the first direct violation of Article 26 was declared in the case of Lagos del Campo v Peru. Since this case the Court has gone on to declare violations in 11 cases.

European system

The predominant human rights system in Europe is the European Convention of Human Rights (ECHR). This treaty primarily provides protection for civil and political rights. The European Court of Human Rights has however stated that there is no brightline distinction between civil and political and socio-economic rights and there is no prohibition on the Court considering cases that dealt with aspects of socio-economic rights. In the case of Airey v Ireland, the Court famously stated:

The interconnected nature of civil and political and socio-economic rights has meant that some limited protection for components of socioeconomic rights has been provided through provisions in the ECHR. For example, Article 3, the prohibition of torture, inhuman and degrading treatment and punishment has been engaged in relation to asylum seekers left destitute. Article 8 has been used to protect aspects of the right to housing. However, this is a limited route of protection. (For further discussion see articles by Palmer, James and Thornton).

The Council of Europe also adopted the European Social Charter in 1961, but this did not fall under the jurisdiction of the European Court of Human Rights. Instead, monitoring of implementation is carried out by a Committee of Independent Experts. Although in 1995 an Additional Protocol, allowing the hearing of collective complaints was adopted, this has not been agreed to by all states. This again weakens protection for socio-economic rights in Europe when compared to civil and political rights. In 1996 the adoption of a revised Charter also potentially watered down protection as it allowed states to not assume all obligations within the ESC. The result is a system that lacks a unified framework, has limited enforcement mechanisms and limited visibility, especially in comparison to the ECHR. (For further discussion see O’Cinneide).

The final potential regional source of protection for socio-economic rights in Europe is the European Union’s Charter of Fundamental Rights of the European Union (CFEU). This contains both civil and political and socio-economic rights, for example, Article 34 contains an entitlement to social security and assistance, Article 35 contains a right to access health care, and Chapter IV Solidarity contains rights related to working conditions and collective bargaining. However, there are some tensions in the Charter and decisions of the Court of Justice of the European Union. The freedom to conduct a business is recognised in Article 16 and this has caused frictions with labour rights in the Charter. In addition, concerns have been raised about both who and in what circumstances the right to social security applies. Balancing economic policy and interests with socioeconomic rights at times limits the CFEU as a route of protection for socioeconomic rights.

Socio-Economic Rights are Human Rights

Despite frequent recognition in many international and regional human rights treaties ratified by many states, debate persists about the true nature of socio-economic rights. These debates include if socio-economic rights are ‘true’ human rights, the nature of any obligations they create for states, and if such rights can be adequately monitored and are justiciable. This section will consider these debates before considering ideas of indivisibility and their relevance for implementation of socio-economic rights.

Nature of obligations

In Chapter 4, the idea that civil and political rights require only negative obligations (the state to refrain from doing things) and socio-economic rights require only positive obligations was discussed. This assumption was demonstrated not to be correct. It is acknowledged that some socio-economic rights require a significant input of resources for full realisation. However, civil and political rights also require resources for their full implementation. However, this is not the only debate about the nature of the obligations created by socio-economic rights. In addition, this suggested lack of clarity around obligations leads some to claim socio-economic rights are not truly human rights.

There are several arguments that posit that socio-economic rights are not true rights because ultimately the obligations they create are too vague and imprecise. As socio-economic rights often require positive obligations (see Chapter 4) this may include the provisions of goods and services. O’Neill argues that abstract rights about access to goods and services do not make it clear who is under an obligation to provide them. Ultimately this raises the question of who is under a duty to act in relation to any right. For example, if we take the right to health and access to medicines, should everyone be provided with medicines by the Government or do pharmaceutical companies have obligations to provide low cost or free medicines to those who would otherwise not be able to afford them? Although these are valid questions that relate to elucidating the content of rights (see Chapter 4) such questions can also apply to civil and political rights. For example, to fully realise the right to a fair trial, the state and others will need to ensure there is a fair and effective judicial system and associated infrastructure.

Objections to socio-economic rights being treated as rights are also raised due to the nature of obligations they can create. Scott and Macklem have stated said that “social rights suffer from a high degree of imprecision.” It is certainly true that the actual nature of the obligations required for realisation of socio-economic rights is not fully stated in the ICESCR or other human rights treaties. As will be discussed below, both the right to food and right to health contain several obligations, that have been in part clarified by the CESCR. However, the need to elucidate the content of obligations for states in relation to rights also applies for civil and political rights. It could be stated that the right to life only requires the state to refrain from arbitrary killing of those within its jurisdiction. However, many courts, including the European Court of Human Rights and the Human Rights Committee (HRC) have indicated the right to life contains other obligations, including the need to properly monitor operations that result in death of individuals and also the need for laws to “strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State.” (see paragraph 13.1 Suarez v Colombia). As such, the obligations for both socio-economic rights and civil and political rights can be considered imprecise until their content is elucidated by courts and other authoritative bodies.

Related to the concerns about the precise content of socio-economic rights is the argument that socio-economic rights are infeasible. For example, Gilabert argues that obligations for rights must be capable of being fulfilled. If rights are not feasible with obligations that can be fulfilled, they cannot be considered to contain obligations and so are not true rights. Civil and political rights are suggested to be feasible as they demand only that states refrain from harming those in its jurisdiction. Socio-economic rights however are not feasible as they require certain outcomes, which may not be fixed or clearly defined, and so the obligations cannot ever be fulfilled. However, as discussed above and in Chapter 4, this is not a complete reflection of the nature of civil and political rights, which can also require positive obligations. These obligations could also be considered infeasible, like the need for an effective and fair judicial system as part of the right to a fair trial. These concerns about the precise content of obligations for socio-economic rights also relate to questions of whether such rights are suitable for judicial review and enforcement.

Justiciability

Related to critiques about the imprecision of obligations created for socio-economic rights are concerns about the justiciability of socio-economic rights. The optional protocol to the ICESCR was only adopted in 2008, which limits this as a source of jurisprudence concerning socio-economic rights. However, regional human rights courts have begun to consider claims concerning aspects of many socio-economic rights (see above). Courts in several countries have adjudicated on socio-economic rights both as part of constitutionally protected civil and political rights as well as socio-economic rights included in constitutions.

Yet some of the critiques discussed above are also used to argue that courts cannot or should not adjudicate on socio-economic rights. For example, as Neier has argued the vagueness of the content of socio-economic rights in relation to duty bearers and the content of obligations may make them unsuitable for adjudication by courts. If, as is often the case, these rights are expressed in vague aspirational language, enforcement by the courts may be difficult. The CESCR has indicated in both General Comment 9, which considers the rights in the ICESCR generally, and General Comment 12, specifically concerning the right to food, that socio-economic rights are justiciable and framework legislation is often an appropriate way of achieving incorporation of these rights. Although there is evidence socio-economic rights can be adjudicated on and enforced by courts and that the CESCR favours the use of legislation to implement socio-economic rights, questions remain about the scope of the role of courts.

Another often-cited concern about the justiciability of socioeconomic rights is polycentricity. This has been likened by Lon Fuller to a spider’s web, with a complex distribution of tensions. Pulling on a strand of the web will distort it, but doubling the strength of pull will not just necessarily result in double the same pattern of distortion. Some of the weaker connections may break, changing the way the web is distorted. In practice, numerous interconnected variables means a particular judicial decision can have multiple knock-on effects, requiring extensive judicial comprehension of such effects. King has argued in response to these claims that “polycentricity is a pervasive feature of adjudication”. As such, this is not only a concern in relation to socio-economic rights. Unforeseen consequences could be the result of any judicial intervention and there may be a need for amendment of legislation or policy to limit the impact. The risk of such polycentricity can also be mitigated by the framing of legislation to define the limits of the role of the courts.

In addition, the requirement of resources and positive obligations for the realisation of socio-economic rights has been used to argue that the courts are not the most appropriate branch of government to decide on implementation. It is argued that policy concerning spending and resource allocation should be set by elected governments, not courts. This has led some to argue that socioeconomic rights are not justiciable rights at all, but policy goals. For example, the UK Government has generally taken the approach that the provisions in the ICESCR are aspirations and so better dealt with through social policy.

Appropriate resource allocation also relates to the issue of the competence and expertise of courts to deal with polycentric issues. However, Nolan and others have argued that this misunderstands the role of judges. Judges are not experts in all matters that come before them. Their expertise is considering what the law is and whether it has been correctly applied. Courts can delegate aspects of research to individuals with appropriate expertise that can inform the judges decisions in relation to the way the law has been applied. In addition, as with the issue of resource constraints, it is part of the role of courts to identify their competence and what should constrain them. The South African Constitutional Court held:

The final objection considered here is the issue of judicial deference and separation of powers. Social and economic policy has been said to be a matter for the legislature and executive as the elected representatives in a democracy. Such policies, as discussed above are often considered to require more extensive resources for implementation. How governments spend money should therefore be left to elected representatives as a matter of policy. However, as discussed above this idea is inaccurate. A functioning criminal justice system that complies with civil and political rights obligations also requires expenditure and legislation. It must also be remembered, as discussed below, that there is some level of indivisibility and interdependence of human rights. Without basic socio-economic rights, many civil and political rights are not going to be fully enjoyed. This can be seen in relation to the jurisprudence of the ECHR. A lack of adequate food has been considered under both Article 2 ECHR, the right to life and Article 3 ECHR, the prohibition of torture, inhuman and degrading treatment and punishment. Such adjudication by the ECtHR indicates that these rights cannot be separated with bright lines in terms of justiciability.

Monitoring

Articles 16 and 17 of the ICESCR and Article 40 of the ICCPR require states to report on the implementation of the rights the Covenants contain through periodic reporting. Some have argued that  due to the difference in the nature of the rights dealt with by the two Covenants, they require different kinds of indicators for monitoring. It may appear that civil and political rights would require thematic indicators. An example would be if and how legal representation is provided to those being tried for criminal offences.  For monitoring of socio-economic rights, it may be expected that the focus would be on quantitative information, for example, levels of poverty, homelessness, and hunger. Quantitative information would usually be in the form of a numerical index, demonstrating whether levels are rising or falling.

However, in practice, monitoring of both types of rights will usually require a combination of both statistical and ‘thematic’ indicators. Statistical data can also be used for monitoring implementation of civil and political rights. Returning to the example above, metrics indicating the number of people who take up legal representation would also be informative. A low take up rate of legal representation may indicate that legal representation is not, in practice, available. It is accepted that in the case of socio-economic rights, that statistics will be important. Yet to capture the most appropriate statistics, this may need new metrics to be developed to ensure the most appropriate data is collected. Qualitative data may also be required to assess how people feel about realisation of their rights and whether they feel secure that they will have access to housing, food and health care.

Committee on Economic Social and Cultural Rights reporting guidelines

The CESCR requires state parties to report on implementation of the rights in the ICESCR within two years of ratifying the treaty and at regular intervals thereafter. The reporting process asks states to focus on particular rights and the process consists of:

1. Adoption of lists of issues:  the CESCR adopts a list of issues (LOIs) that state parties are expected to report on
2. The state party will report on this list of issues
3. Adoption of concluding observations: The concluding observations, adopted by the CESCR in a closed meeting include the positive aspects of a states progress, areas of concern, and recommendations of the Committee to address these concerns. Once the concluding observations are approved they will be uploaded onto the website of the CESCR and so are publicly available.

The specific reporting requirements indicate that states should include both thematic and statistical information. For example, states are required to indicate what if any law or policies have been implemented to facilitate realisation of the rights in the ICESCR. Monitoring and remedy mechanisms should also be described in the reports. Alongside these qualitative or thematic indicators, states should also provide “statistical data on the enjoyment on each Covenant right, disaggregated by age, gender, ethnic origin, urban/rural population and other relevant status, on an annual comparative basis over the past five years.” (See UNHRI/GEN/2/Rev. 6, p29, [3g]).

Progressive Realisation and the Minimum Core

Article 2(1) ICECSR states the rights in the Covenant are to be achieved “progressively”. This contrasts with Article 2 of the ICCPR, which describes an obligation to “respect and ensure.” The HRC has indicated this requires immediate implementation of the obligations generated by the rights in the ICCPR. This is in part a recognition that socio-economic rights for many states, due to the need for positive measures and resources for their implementation, cannot be realised immediately. Development of systems, national plans, and appropriate infrastructure takes time.  Yet despite this pragmatic justification, the progressive nature of the realisation of socio-economic rights has also led some to suggest that the ICESCR is devoid of true legal obligation. States can use resources constraints to justify inaction in realisation of the rights in the covenant.

However, good faith interpretation of the ICESCR in line with Article 31 of the Vienna Convention on the Law of Treaties would require states to immediately start implementing their obligations in accordance with their maximum available resources. This interpretation of Article 2 ICESCR, requiring immediate action by states, has been confirmed by the CESCR in its General Comment 3.  In addition, paragraph 21 of the Limburg Principles indicates that Article 2 ICESCR generates the obligation for states to move as “expeditiously as possible” in implementation of these rights and that progressive realisation is not a justification to delay implementation. It should also be noted that the right to non-discrimination contained within Article 2(2) of the ICESCR (see textbox above) is of immediate realisation, and so any policies adopted, or measures taken to facilitate realisation of the rights in the ICESCR, should apply equally to all within a state.

General Comment 3 of the CESCR on the Nature of State Parties’ Obligations confirms that progressive realisation of the rights in the ICESCR does not deprive them of “meaningful content.” It also sets out that states are required to provide a minimum essential level of each right. The CESCR confirms that a “State party in which any significant number of individuals is deprived of essential foodstuffs” is “prima facie, failing to discharge its obligations under the Covenant.” This approach is defended on the grounds that without this minimum core obligation the ICESCR would have minimal impact and undermine its very purpose. However, the CESCR also indicates that the minimum core obligation is relative; deciding whether a state has discharged its duty in respect to the minimum core should also consider the resource constraints in that country. This still requires states to “demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”

The Minimum Core

Following this explanation in General Comment 3, the minimum core of socio-economic rights has been discussed by subsequent General Comments of the CESCR and in academic literature. Although a core of socio-economic rights is often discussed by the CESCR, it is not without critics. (For an overview see Boyle et al). There are questions about how the minimum core is set; is it an absolute standard that is to be achieved by all states or is it a relative standard that is related to the socio-economic conditions in a particular state at a particular time? In the South African Constitutional Court case of Republic of South Africa v Grootboom, Yacoob J raised related concerns about how a court would ascertain the content of the minimum core. The case concerned the right to housing and Yacoob J indicated that a minimum threshold for the right to housing could not be determined as it is dependent on the opportunities for enjoyment of the right. Factors relevant to these opportunities include the availability of land, employment levels, income levels and the resources of the country.

In response, Bilchitz has argued that the minimum core is seen as a duty to realise the basic needs necessary for survival. It then becomes an obligation for the state to ensure the needs most urgently required for survival are protected. It is also a relative standard, as what will constitute the basic needs for survival will vary from state to state. This understanding also appears to be that of the CESCR. The approach taken in the Committee’s General Comment is that the minimum core not only depends on the specific right, but also the resources available and the socio-economic conditions in the country at the time. It is also important to note that although it should be prioritised, the minimum core is not an immediate obligation, it too is to be progressively realised. However, as indicated in General Comment 3, if a significant number of people do not have access to their most basic needs, there will need to be a strong justification for this situation. Without such a justification, the state would be violating its obligations under the Covenant.

Some have also argued that in requiring only a basic level of realisation, the minimum core undermines a fuller and richer realisation of socio-economic rights. If states achieve a minimal standard, there may be no incentive to continue to work towards better realisation. This argument has some merit. Given levels of hunger and poverty in the world there is good reason to be concerned about levels of realisation of socio-economic rights. However, the obligations for states in relation to progressive realisation and taking meaningful steps towards full realisation of the rights in the ICESCR remain. Achieving the minimum core is not an end point for states, rather it is the initial point of moving towards realisation of socio-economic rights. Young has also raised a concern that the minimum core focuses attention on developing states. Again this is a valid concern, but the levels of hunger and poverty in developed states have also been criticised by UN Special Rapporteurs, and so such rights violations, including failure to provide the minimum core, are being recognised in developed as well as developing states.

It has also been suggested that the minimum core has moved away from the idea of fundamental needs that states need to address with the utmost urgency. Tasioulas has indicated that the minimum core should be feasible and not “unduly burdensome”.  In General Comment 3, it was clear that “maximum available resources” also applied to assessing if a state had realised the minimum core of a right. The obligation being met if a state had made “use of all the resources that are at its disposition.” The minimum core began to be described without this qualification, for example in both General Comments 13 and 14 of the CESCR. Expanding the minimum core beyond its original statement of the basic necessities for life risks returning the level of state obligations for the minimum core of a right to a level where its achievement will have to be a long-term goal for many states.

However, the minimum core should be seen as an obligation to ensure that the needs most urgently required for survival are protected. States should use the minimum core as a standard that helps identify those that are most vulnerable and in most need of the necessities for life. Used in this way it becomes a tool that can help states prioritise interventions to facilitate the realisation of socio-economic rights.

The Duty of Non-Retrogression

In addition to taking steps to realise socio-economic rights, there is a duty on states not to ‘backslide’ on the provision of rights. States should avoid any retrogressive measures, that is measures that reduce the realisation of a particular right. For example, during the COVID-19 pandemic, the UK government provided those in receipt of certain welfare benefits with a monetary ‘uplift’ in their weekly welfare payments. However, in September 2021, when the Government indicated these payments would be stopped, concerns were raised that this would force even more people into poverty. Oliver de Schutter indicated that this was a retrogressive measure without sufficient justification and as such contravened international human rights law and the UK Government’s obligations under the ICESCR.

The duty not to implement regressive measures, however, is not absolute. The UK Government, when it stopped the Covid-19 top up payments, breached its obligations as it had not sufficiently justified the retrogressive measure it was taking. Measures that limit rights have to be legal, legitimate and proportionate. Following the 2008 global financial crisis, many states cut spending, which had negative impacts on the realisation of socio-economic rights. In response,  Ariranga G. Pillay when Chairperson of the Committee on Economic, Social and Cultural rights wrote a letter to state parties to the Covenant indicating:

Before taking retrogressive measures, states should consider other options, including seeking aid, due to the obligation of international cooperation within the ICESCR.

Specific Socio-Economic Rights

Having considered some general obligations and principles in relation to socio-economic rights, this chapter now turns to consider: the right to food and the right to health, as examples of specific socioeconomic rights. Before considering these rights the chapter first returns to the discussion of the use of typologies to define states obligations for socio-economic rights, first discussed in chapter 4.

In chapter 4, the respect, protect and fulfil typology was described. In addition, the AAAQ framework was mentioned. As discussed in Chapter 4, these typologies are not without critics and can be difficult to apply to some aspect of rights and as a result, some argue that obligations are better determined for each individual right. However, the AAAQ is used when determining the obligations states have in relation to socio-economic rights and so is briefly described here, and examples of its use will be given in the discussion that follows below.

The AAAQ or AAAAQ Framework is used in General Comment 13 of the CESCR on the right to education. The framework which has been applied to other rights too, requires rights to be available, accessible which includes affordable, acceptable, adaptable and of suitable quality.

Right to Food

The right to food is found within Article 11 of the ICESCR

In addition, the right to food can be found in other United Nations Human Rights Conventions. Article 24 of the Convention on the Rights of the Child (CRC) requires the provision of adequate food as part of the enjoyment of the highest attainable standard of health. Article 28 of the Convention on the Rights of Persons with Disabilities requires adequate food within the right to an adequate standard of living. The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) acknowledges that in situations of poverty, women often have the least access to food. In all of these provisions, the right to food is more than just a right not to be hungry. The CESCR has provided the most expansive description of the obligations for the right to food. These obligations will be discussed, before considering how the right to food has been recognised and implemented in various states. Finally, some threats to the right to food are outlined.

Obligations for the Right to Food

In General Comment 12, the CESCR indicated that there is a fundamental right to be free from hunger. The fundamental nature of the obligation to be free from hunger is a direct manifestation of the role of human rights in protecting human dignity. Hunger can be considered an affront to human dignity; it causes both physical and mental pain and prevents people from living a life where other rights can be fully realised. The ECtHR has recognised hunger as an affront to human dignity. In several cases they have found that individuals provided with inadequate food while completely dependent on the state have been subjected to inhuman and degrading treatment. In the case of Stanev v Bulgaria, the applicant was detained in a psychiatric hospital and was provided insufficient food both in terms of quality and quantity. In several cases relating to the food provided in prisons, violations of Article 3 ECHR the prohibition of torture, inhuman and degrading treatment and punishment have also been found. (For a discussion see James).

Beyond the fundamental right that people have to be free from hunger, the CESCR has also indicated that the core content of the right to adequate food consists of:

The CESCR also emphasises that the right to adequate food is not to be narrowly conceived as a sufficient package of calories. The scope of the right to food encompasses the way food is produced, including sustainable production, the cultural acceptability of food and acknowledgement of the cultural importance of food.

If this is considered in the context of the AAAQ network, the core of the right to adequate food requires food to be available and accessible in ways that are affordable. This food must be of sufficient nutritional quality as well as safe and cultural acceptability is required. Accessibility requires food that is produced in ways that are sustainable.

Finally, the statement of the right to food in Article 11 ICESCR (see above) indicates that states should cooperate internationally to facilitate realisation of the right to food. This can include the provision of food aid. However, in a world where food and agricultural products are widely traded, and certain international aid and economic programmes can require adoption of certain agricultural practices, states should also ensure that their actions within international organisations such as the World Trade Organization and the World Bank do not hamper the realisation of the right to food in other states.

State Implementation of the Right to Food

As with all human rights the CESCR has confirmed that the most appropriate way for states to implement the right to food will vary from state to state. However, in most cases this will require a national food strategy. In addition, the CESCR has indicated the potential of framework laws requiring benchmark and target setting and monitoring to facilitate the realisation of the right to food. This approach has been followed by some states. For example, the Dominican Republic introduced a law that recognises the right to food and creates a framework for a national system of food security and food sovereignty (For a discussion of food sovereignty including this law, see Wittman).

Other states have the right to food in their national constitutions. Article 27(1)(b) of the South African Constitution contains the right to have access to sufficient food and water. In Colombia, the constitution contains direct protection of the right to food for children. Article 44 states, “Children have fundamental rights to: life, health and social security, and adequate food.” However, even in states where the right to food is not protected directly, constitutional courts have protected the right to food by considering it included in protected rights. This is the same approach that regional courts have taken, using the right to life and the prohibition on torture and inhuman and degrading treatment to protect peoples’ right to adequate food. Such an approach was adopted in India in the cases of Kishen Pattnayak & another v. State of Orissa and People’s Union for Civil Liberties (PUCL) v. Union of India and others. The Supreme Court ruled the right to life included the right to food and used interim orders to require government food distribution programmes and better implemented government programmes for free school meals, and subsidising food for vulnerable groups.

Threats to the Right to Food

Sufficient food is produced in the world to feed its current population. Hunger is a consequence of a failure to distribute food and ensure everyone has access to food, rather than inadequate production and true food shortage. Access to food and its distribution is influenced by food prices, trading, and distribution and access in states. The war in Ukraine and sharp rise in energy prices in 2022 exacerbated the rise in huger during the COVID-19 pandemic, due to dramatic price rises in some food stocks.

In addition to war potentially resulting in food shortages and increased food prices, climate change is a significant threat to the right to food. Climate change, by increasing the risk of extreme weather events risks damaging crops. Flooding reduces land available for agriculture. Increasing temperatures will change where crops can be grown and also change the pests that can impact crop growth. At the same time the way food is produced can reduce carbon emissions and so impact climate change, for example reducing the inputs such as water, fertiliser and pesticides, as well as using farming techniques that improve carbon sequestration in soil. In addition, the number of animals farmed for human consumption and the way these animals are farmed can also reduce carbon emissions. As the minimum core of the right to adequate food indicates food production should be sustainable, states are obligated to factor such considerations into their food and agriculture policy.

Our food system is global. War and climate change are just two examples of global threats that can impact peoples ongoing ability to access an adequate diet. Antimicrobial resistance, which is discussed below in the context of the right to health, also has implications for the right to food. International cooperation to identify and address these threats in a coordinated way will be fundamental to ongoing efforts to fully realise the right to food and ensure everyone has access to an adequate diet both now and in the future.

The Right to Health

Article 12(1) of the ICESCR contains the right “to the enjoyment of the highest attainable standard of physical and mental health”. This section will discuss the obligations created by the right to the enjoyment of the highest attainable standard of health, the way the right to health is implemented at regional and national level, and the difficulties with accessing medicines and the impact of antimicrobial resistance on the right to health.

In addition, the right to health is found in other international human rights treaties. For example, Article 5(j)(iv) of ICERD requires the right to public health and health care be provided without discrimination on the basis of race, colour, or national or ethnic origin. Article 12 of CEDAW requires not only the elimination of discrimination in health care, but also access to services related to family planning and access to “appropriate services in connection with pregnancy, confinement and the post-natal period.” Article 24 of the CRC contains an extensive statement of the right to health in children.

Obligations for the Right to Health

Despite being included in the ICESCR and other human rights treaties, the right to health, as a feasible human right, has been the subject of discussion and criticism. Health is complex, it is a combination of biological factors, external factors such as the environment and diet, natural events, such as aging, and random events, such as accidents. However, health can also be influenced by state policies and state omissions. Environmental pollution, access to preventative health care and healthy diets, regulating tobacco and alcohol and policies in relation to medicine access can all improve the standard of health people achieve. This then raises the question of what the precise obligations are for the achievement of the highest standard of health. O’Neill has questioned if this means the standard achievable locally, which could be low due to minimal resources available, or whether it is a global standard.

Related to the question about how the highest attainable standard would be set are questions about what the state obligations would be in relation to what needs to be done and by who. In addition, as with all socio-economic rights there are concerns about the extensive resource implications of realising a right to health and whether, as a result, courts should be adjudicating on the right. However, in 2003 Gauri reported that of 165 countries with written constitutions available to review, 73 made reference to a right to health care and 29 of the 165 required free health care for some groups of the population. In addition, as will be discussed below, both regional and national courts have adjudicated on matters that are components of the right to health.

As with many socio-economic human rights, the work of the CESCR and special rapporteurs, as well as the adjudication of the right by courts, have helped delineate the obligations that are required by the right to the highest attainable standard of physical and mental health. The first thing to note, as stated by Paul Hunt, the former special rapporteur for the right to health, is that the right to health is not just a right to health care. Although the ability to access health care is an important component of the right to health, the right also includes underlying determinants of health. These include access to clean water and sanitation, adequate healthy food and access to information.

In General Comment 14, the CESCR defined core obligations for the right to health:

The CESCR, although indicating the importance of health care in General Comment 14, does not require this to be free (see paragraph 12).  They also explain that the highest attainable standard of health should take into account the “individual’s biological and socio-economic preconditions and a State’s available resources.” As such, this is a relative standard, determined in relation to both individuals and the state in which they live. The CESCR, in General Comment 14 has stated, using the AAAQ framework, that the right to health contains the following interrelated elements, which will also depend on the current conditions in the state party:

• Availability: this requires a functioning health care system, including facilities, good services and public health programmes. It also includes those things required for the underlying determinants of health such as sanitation and drinkable water.
• Accessibility: this requires that these facilities, goods and services are physically and economically accessible without discrimination. Accessibility also requires information provided about health issues is accessible and not a bar to receiving and understanding health issues.
• Acceptability: this requires healthcare and services to be respectful of culture, gender, life-cycle requirements and be confidential.
• Quality: health facilities, services and goods must be both medically and scientifically appropriate, with appropriate staff training, skilled medical personnel, suitable drugs in a clean and safe environment.

An important component of the right to health is the right to reproductive health. A particular concern are the globally high levels of maternal death. Many such deaths would have been preventable if sufficient resources had been available. The World Health Organization reported that in 2023, 700 women per day died from preventable causes related to pregnancy. Around 90% of maternal deaths occurred in low and lower-middle-income countries. General Comment 24 of the Committee on the Elimination of Discrimination Against Women provides an extensive discussion of the healthcare needs of women and how this should be respected, protected and fulfilled by states. The Committee emphasises among other obligations, the importance of confidentiality, removal of measures that may restrict women’s access to healthcare such as the need for authorisation from husbands, parents or the authorities and the provision of services acceptable to women.

Implementation of the Right to Health

In General Comment 14, the CESCR indicate a range of obligations for states in relation to implementation and realisation of the right to health. The CESCR also emphasises the need for legislative or other measures, including national health plans that ensure equal access to health care, preventative health care programmes and the underlying determinants of health. There is also a need for infrastructure to ensure health services in the form of reproductive health facilities, medical personnel and sufficient hospitals and clinics, even in rural areas. Equitable distribution of mental health services is also identified as an important component of the right to health.

Legal protection of the right to health and its adjudication by courts can take several forms. States may enact specific legislation that protects aspects of the right to health. Courts may consider the right to health to be implicit in other rights, and finally the right to health may be included in states’ constitutions. At the beginning of this section, it was noted that the right to health features in the constitution of many states in some form. Such constitutional protection has led to adjudication of aspects of the right to health by national courts. For example, in South Africa, the availability and accessibility of medicines and health care has been considered.

Article 27 of the South African Constitution includes the right to have access to health care services, including reproductive health care. It also indicates that no one can be refused emergency medical treatment. The obligations in relation to emergency medical treatment are of immediate effect. However, Article 27 indicates that “the state, must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.” This wording indicates that the right to health care services is not of immediate realisation and can be limited by resource constraints. The issue of where limited resources should be allocated is a complex, polycentric issue, which also raises questions about the separation of powers (see section above on justiciability). However, the South African Constitutional Court has adjudicated on cases concerning access to health care.

In the case of Soobramoney v Minister of Health the complainant, Mr Soobramoney suffered from renal failure, diabetes and heart disease. His local hospital had a limited number of dialysis machines and no funds to purchase more. As a result, the hospital prioritised dialysis for those patients who would be eligible for kidney transplants. Mr Soobramoney was not eligible due to his heart disease. He was unable to pay for private treatment and if no dialysis was provided for him, he would die. Mr Soobramoney claimed this policy violated both his right to life and right not to be refused emergency medical treatment. The Court did not find violations of either right. A broad interpretation of the right to life, as taken by the Indian Supreme Court in relation to the right to food and the right to health, was not necessary as the South African Constitution contained the right to health. The Court also did not consider this to be a situation relating to emergency treatment. A violation of this aspect of the constitutional right to health would occur when people who suffered sudden serious illness or accident were denied services where they were available.

This case is significant as it clarified the nature of the right not to be refused emergency medical treatment. In addition, it set out the role of available resources in relation to rationing of access to limited health care resources. The Court accepted, as stated by Sachs J, “the rationing of life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care” (see paragraph 52). Such rationing will have to consider whether, if treatment and resources are granted to one individual, could they provide for everyone in a similar position? At times the needs of society will have to be prioritised above an individual. When considering if decisions made violated the right to health care as stated in Article 27 of the South African Constitution, the courts should consider whether it is rational. If decisions are rational and taken in good faith, the courts should be slow to interfere.

Soobramoney can be contrasted with Minister of Health v Treatment Action Campaign (No 2). TAC which concerned the availability of a retroviral drug. The drug could drastically reduce the rate of transmission from mothers living with HIV/AIDS to their newborn babies. The benefits of this drug were well known; it had been used successfully in pilot schemes, and it was approved for use to reduce transmission to newborn babies. However, the government had no plans to provide the drug more widely, despite it being available for free from the manufacturer for five years. Unlike Soobramoney, this was a case brought on behalf of all pregnant women living with HIV/AIDS rather than an individual.

The Court indicated that Article 27 of the Constitution does not require immediate access to all treatments. Rather the obligation in relation to access to health care was to be realised progressively. Recognising their limitations in relation to complex matters such as health care policy, the Court did however indicate they would consider the reasonableness of healthcare policies in relation to the right to health. In doing so they emphasised the lack of resource constraints that were an issue in Soobramoney, and the number of lives of newborn babies that would be saved by a single dose of the drug. As such the policy was found to violate Article 27 of the constitution. These two cases indicate that courts can adjudicate on the right to health. The Court recognised its potential limitations in relation to complex polycentric issues and accepted that resource constraints are a relevant consideration. However, the Court was still able to review the rationality and reasonableness of Government policies and in one case find a violation of the right to health.

Unlike South Africa, the Indian Constitution does not contain a justiciable right to health. Article 47 of the Indian Constitution does contains a directive principle. This principle is a “Duty of the State to raise the level of nutrition and the standard of living and improve public health.” As this is a directive principle it is not enforceable by the courts. However, the Courts have protected the right to health indirectly as part of the right to life, a right that is enforceable by the courts. In the case of Consumer Education and Research v Union of India the Indian Supreme Court indicated that the right to life included hygienic conditions in the work place (see paragraph 24). The case concerned asbestos exposure in the workplace and the court found that the state has failed to enforce regulations that protected the workers from chronic exposure to a dangerous material. The right to life was considered to include “robust health and vigour without which worker would lead a life of misery” (see paragraph 25). The Indian Supreme Court have also found that the right to life also includes a right to access emergency medical treatment. In the case of Paschim Bangar Khet Mazdoor Samity v State of West Bengal, the failure of multiple hospitals to provide emergency treatment to an agricultural worker who had suffered serious head injuries and the lack of available beds in public hospitals were found to be a violation of the right to life.

The protection of the right to health can be facilitated by legislative measures. In Costa Rica, the right to life is protected in Article 21 of the Constitution. The Costa Rican Supreme Court have found aspects of the right to health to be protected by Article 21. In Mr William García Álvarez v Caja Costarricense de Seguro the Court found a violation of the right to life in relation to the complainant being refused retroviral treatment by the state. Private treatment was expensive, making the treatment inaccessible. However, Costa Rica also has a General Health Act and integrated health system which considers the health of the population as a public good. This system has resulted in Costa Rica having the lowest infant mortality rate in Central America as well as the highest life expectancy. This demonstrates the importance of national planning and legislation to implement the right to health, as indicated by General Comment 14 of the CESCR, alongside protection by the courts.

Threats to the Right to Health

Access to Medicine

A component of access to health care and the right to the highest attainable standard of health is being able to access medicines. Many drugs are developed by large multinational pharmaceutical companies. These companies invest extensively in drug development and then wish to patent their products to provide protected return on that investment through sales of the drug, without others being able to manufacture these drugs. This results in potential clashes between the right to health and the right of the pharmaceutical companies to patent their drugs through intellectual property law. The World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has codified the increasing scope of patents in drug development.

However, these trade rules can limit the ability of states to restrict the patentability of drugs, meaning reduced access to affordable treatments, especially those that are newly developed. The Indian Supreme Court has adjudicated on the issue of low cost locally produced generic versions of patented drugs, and in the case of Bayer Corp and Another v Union of India and Others the Court quotes Sean Pager who argues that patent protection is the “ugly face of globalization, seemingly a hazard to public health and travesty of social justice” (see paragraph 31).  The potential impact of pharmaceutical companies on the realisation of the right to health, and especially access to medicines is related to broader questions about businesses and the realisation of socio-economic rights. In many countries resources needed for the realisation of socio-economic rights, such a food, drugs, and housing often mainly supplied by the private sector. This then raises question about when and how states should intervene in these private markets to ensure access to these vital resources for all and that rights are not being violated. (For resources discussing these issues see further reading).

Antimicrobial Resistance

Antimicrobial resistance (AMR) is a threat to several human rights, including the right to life, the right to food and the right to health. It is predicted that 10 million people a year will be killed by infections resistant to antimicrobials by 2050. AMR has the potential to render otherwise treatable infections fatal due to the ineffectiveness of drugs that bacteria and other microorganisms become resistant to. In addition, the use of antibiotics in food production will be affected by AMR, which will impact the accessibility of a nutritious adequate safe diet. Tackling and reducing levels of AMR requires reduced use of antimicrobials in people and agriculture, reduced environmental contamination and the development of new drugs, that can be reserved to treat resistant infections in people.

AMR is often framed as a technical scientific problem, that requires similar solutions. However, AMR also needs to be considered as an issue of equity both for the current generation and future generations. Access to antibiotics is not equally distributed across the world, with large numbers of deaths in developing countries due to treatable bacterial infections. At the same time, the heaviest burdens of antibiotic resistance infections are also located within developing countries in Sub-Saharan Africa. Failure to tackle antibiotic resistance and preserve our access to effective antimicrobial treatment is also an issue that will potentially affect the health of future generations. Consideration of the impact on the ability of people to access affordable medicines, as part of the right to health, needs to be a central feature of measures to tackle AMR.

Further Reading

David Bilchitz, ‘Taking Fundamental Rights Obligations Seriously: Examining the Duties of Pharmaceutical Corporations to provide the COVID-19 Vaccine’ (Cambridge Core Blog, 2021).

David Birchall, ‘Reconstructing State Obligations to Protect Socio-Economic Rights in an Era of Marketization’ (2022) 71 International and Comparative Law Quarterly 227.

Katie Boyle, Diana Camps, Kirstie English, Jo Ferrie, Aidan Flegg and Gaurav Mukerjee, Access to Social Justice. Effective Remedies for Social Rights (Bristol University Press, 2025).

Phillipe Cullet, ‘Patents and Medicines, The Relationship between the TRIPS and the Human Right to Health’ (2003) 79 International Affairs 139.

Luke D Graham, ‘Reasserting the Right to Adequate Clothing in International Human Rights Law’ (2024) 24 Human Rights Law Review 1.

Lidija Knuth and Margaret Vidar, Constitutional and Legal Protection of the Right to Food Around the World (Food and Agricultural Organization, 2011).

Macolm Langford, ‘The Impact of Public Interest Litigation: The Case of Socioeconomic Rights’ (2021) 27 Australian Journal of Human Rights 505.

Suggested Citation – Clare James, ‘Socio-Economic Rights’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)