An Argument for South Africa's Accession to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in the Light of Its Importance and Implications

The universality, indivisibility, interdependence and interrelatedness of all rights have been universally acclaimed since the drafting in 1948 of the Universal Declaration of Human Rights. However, despite the doctrine of indivisibility, civil and political rights (CPRs) have for a long time been treated as being enforceable judicially at the national, regional and international levels, while socio-economic rights (SERs) have not. With the elaboration and adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), which mandates the Committee on Economic, Social and Cultural Rights (CESCR) to consider individual communications detailing the violations of SERs, the justiciability of SERs was also fully recognised at the international level. This paper undertakes an analysis of the importance and implications of the individual communications procedure under the OP-ICESCR and details some of the reasons why it would be beneficial for South Africa to accede thereto. The argument for accession by South Africa to the OP-ICESCR departs from the premise that South Africa's ratification of the ICESCR is imminent. Having signed the ICESCR on 3 October 1994, the South African Cabinet on 10 October 2012 decided that South Africa should ratify the Covenant. The authors argue that acceding to the OP-ICESCR will complement domestic protection and will confirm South Africa's global leadership in the field of justiciable SERs. Logic dictates that South Africa should confirm at the international level its position as a world leader on the national justiciability and legal enforcement of SERs, as indeed it has done during the drafting process of the OP-ICESCR. Accession to OP-ICESCR, the argument continues, will not detract from the country's sovereignty, especially in the light of the requirement of the exhaustion of domestic remedies, including the condition that applicants must show that they have suffered a "clear disadvantage". In any event, South Africa already has undertaken obligations as to SERs under regional human rights treaties that are equal to and in some respect more arduous than the obligations emanating from the ICESCR.


Introduction
The universality, indivisibility, interdependence and interrelatedness of human rights Final Act of the International Conference on Human Rights (1968) para 13, which states that "[s]ince human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights, is impossible". 2 Vienna Declaration and Programme of Action (1993) para 5, which further states that "[t]he international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis". 3 The term "socio-economic rights" is used here to denote those rights encompassing the basic necessities of life. These rights have traditionally been distinguished from "civil and political" rights because they are viewed as imposing particular fulfilment obligations on states, an issue which often gives rise to arguments about resource constraints and progressive realisation. Cultural rights are in our view quite discreet from "socio-economic rights" and we therefore avoid bundling them all together as "economic, social and cultural rights". 4 The international legal instruments providing for individual communication mechanisms for CPRs include the following: First Optional Protocol to the International Covenant on Civil and Political Rights (1966)  For a comprehensive analysis evidencing the adjudication of socio-economic rights at the domestic and regional levels, see generally Langford Social Rights Jurisprudence. 7 Vienna Declaration and Programme of Action (1993)    Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2009) (hereafter OP-ICESCR). 10 See OP-ICESCR, a 18, which provides that the Protocol is to enter into force three months after the deposit of the 10 th instrument of ratification or accession. Uruguay was the tenth state to ratify, which it did on 5 February 2013. Apart from Uruguay, the countries that have also ratified the Optional Protocol include: Argentina, Belgium, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Finland, Gabon, Mongolia, Montenegro, Portugal, Slovakia and Spain. See UN Treaty Collection 2014 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en. 11 See the list of ratifying States in the footnote above.
The process of drafting an Optional Protocol for the ICESCR was not easy, however, with its opponents contending that it had not been demonstrated that an individual complaints mechanism for socio-economic rights would be practical, effective and worthwhile. 12 In the context of this debate, Dennis and Stewart 13 raised the following concerns in relation to the drafting of the Optional Protocol:  Can the treaty obligations assumed by States Parties under the ICESCR be measured, quantified, and applied in a meaningful way?  Can the review standards be the same for all countries (regardless of their levels of development) and, if not, how will such distinctions be made?  How would States Parties be able to demonstrate their levels of achievement in response to individual complaints?  How would a legally binding adjudicative regime improve States Parties' implementation of socio-economic rights?  Would a complaints mechanism under the ICESCR add meaningfully to the mechanisms and procedures already available in other international complaints regimes?
They further argued that an international adjudicatory mechanism would limit the necessary discretion of States in dealing with disparate domestic situations, with the resultant effect that States would de-emphasise the importance of socio-economic rights, thus undermining their stature and acceptability. 14 Despite these challenges, the notion of an Optional Protocol to the ICESCR garnered sufficient support to allow for its adoption and entry into force. In relation to the individual communications mechanism, it states as follows: 15 A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications as provided for by the provisions of the present Protocol.
This article seeks to explore the importance of the individual communications mechanism under the Optional Protocol; it interrogates whether the ratification of the Optional Protocol has practical benefits for a State party and its citizens; and it considers the implications for States of its ratification. It is divided into six interrelated sections. After this brief introduction the paper undertakes an analysis of the provisions of the Optional Protocol in section 2. It then delves into a discussion 12 Dennis Provisional Rules Rule 18(6)-(9). 43 Dennis and Stewart 2004 AJIL 489-490. They argue at 496 that the task of assessing the violations of socio-economic rights is far more intricate than the task of assessing the violations of CPRs due to their interdependent and contextual nature and the fact that these rights present issues of considerably greater scope and complexity requiring more information as well as greater expertise to resolve. For an elaboration of the arguments for the insertion of assessment criteria into the text of the Optional Protocol to the ICESCR during debates in the Working Group, see Porter 2009 NJHR 43-50. 44 Dennis and Stewart 2004 AJIL 489. They further argue that even ratifying States may refuse to comply with decisions from a socio-economic rights adjudicatory body unless their decisions are based upon universally accepted principles. In this context, they contend as follows: "In order to be credible and have tangible impact, any criteria must be carefully tailored to set realistic and achievable goals. Such criteria cannot simply be decreed unilaterally by the adjudicators, but must be derived from a participatory process with input from the affected states." Protocol for the international adjudication of socio-economic rights unless a clear standard was developed beforehand which indicated the criteria that will be used to determine whether and to what extent they have violated the provisions of the ICESCR. These concerns were noted by the CESCR in its statement on the OP- The Committee is aware of States parties' interest in obtaining further clarification as to how it would apply the obligation under article 2, paragraph 1, "to take steps … to the maximum of its available resources" to achieve progressively the full realization of the rights recognized in the Covenant. Of particular relevance is how the Committee would examine communications concerning this obligation, while fully respecting the authority vested in relevant State organs to adopt what it considers to be its most appropriate policies and to allocate resources accordingly.
In responding to the concerns, the CESCR reiterated its elaboration of the nature of the obligations arising from the ICESCR in its General nature of the decision-making process in which the national measures are adopted and are being implemented. 49 In determining if a State Party has failed to take steps to the maximum of its available resources to realise socio-economic rights, the CESCR will assess the adequacy or reasonableness of measures adopted by any particular State using the following criteria: 50 (a) the extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of socio-economic rights; (b) whether the State Party exercised its discretion in a non-discriminatory and nonarbitrary manner; (c) whether the State Party's decision (not) to allocate available resources was in accordance with international human rights standards; (d) where several policy options were available, whether the State Party adopted the option that least restricts Covenant rights; (e) the time frame in which the steps were taken; and (f) whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups; whether they were nondiscriminatory; and whether they prioritised grave situations or situations of risk.
The CESCR further contended that should a State Party fail to take any measures or adopt retrogressive steps, the onus would be on the State to justify its action, taking into account the totality of the Covenant rights and the full use of its resources. 51 The CESCR acknowledges the disparities in resource availability in different contexts and between countries, and contends that in the event that a State uses "resource constraint" as a justification for the adoption of a retrogressive measure, it will assess such a claim using the following considerations: 52 (a) the country's level of development; (b) the severity of the alleged breach, in particular whether the situation concerned the enjoyment of the minimum core content of the Covenant; (c) the country's current economic situation, in particular whether the country was undergoing a period of economic recession; (d) the existence of other serious claims on the State Party's limited resources, for example, resulting from a recent natural disaster or from recent internal or international armed conflict; (e) the extent to which the State Party had sought to identify low-cost options; and (f) the extent to which the State Party had sought cooperation and assistance or rejected offers of resources from the international community for the purposes of implementing the provisions of the Covenant without sufficient reasons. 49 CESCR Statement para 11. 50 CESCR Statement para 8.
The efforts to develop universal criteria for the assessment of individual communications is an indication that the CESCR is determined to be as objective as possible while taking into account the resource differentiations between States in the fulfilment of its mandate under the Optional Protocol.
The elaboration of the above criteria was taken into account in the drafting of the Optional Protocol, leading to the insertion of article 8(4), which provides as follows: 53 When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.
In their analysis of this provision of the Optional Protocol, Vandenbogaerde and Vandenhole 54 have argued that this assessment criterion is unprecedented and is unique to the Optional Protocol. They contend that it was inserted by States due to a fundamental mistrust of some States in the judgment of the CESCR as well as the ideological concerns of these States as to the justiciability of socio-economic rights. 55 Griffey 56 has added to these reasons for the elaboration of article 8(4) by contending that the need for its inclusion arose from State concerns over the extent to which their policymaking and budgetary choices would come under the Committee's magnifying glass, and whether the Committee would recommend costly measures to remedy the harm caused to claimants by breaches of the Covenant. Acknowledging the importance of article 8(4) to the overall effectiveness of the individual communications regime under the Optional Protocol, Porter 57 has argued as follows: Whether the vision of a truly unified approach to human rights that is fully inclusive of claimants affirming the right to freedom from want, is actually realised through the Optional Protocol will largely depend on how its Article 8(4) is interpreted and applied. This will, in turn, inform and be informed by the way in which the principle of reasonableness review of substantive social rights claims evolves at other treaty monitoring bodies, in regional systems and in domestic law. 53 For an analysis of the drafting history of a 8 (4) Porter 58 calls article 8(4) "a double-edged sword", which can either be used restrictively to accord unlimited margin of appreciation to States' socio-economic policies to the detriment of adequate adjudication and the provision of effective remedies for substantive socio-economic rights claims, or progressively, as a mechanism aimed at responding effectively to the challenges of genuine socio-

Importance of the individual communications mechanism under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
The realisation of socio-economic rights has always been subject to the standard of "progressive realisation" as entrenched in article 2(1) of the ICESCR. This necessarily meant that the enactment of legislative, policy and programmatic frameworks was an important component of their fulfilment. Due to the prominent role national institutions play in elaborating and enacting these frameworks, many States contended that the elaboration of an Optional Protocol envisaging an international complaint mechanism would dictate to States the kind of policies to adopt, or even the type of macro-economic system to adopt. 61 The drafters of the Optional Protocol responded to these concerns by adopting the reasonableness approach as the standard of assessment of the States' socioeconomic rights implementation framework in article 8(4) of the Protocol, as well as 58 Porter 2009 NJHR 40. 59 Porter 2009 NJHR 40. 60 Griffey 2011 HRL Rev 322. 61 Langford 2009 NJHR 25-26. acknowledging the wide range of options available to States in their realisation of these rights. 62 This provision is in line with the purpose of the Optional Protocol, not as a forward-looking mechanism to act as a catalyst for social change by determining the policies to be put in place by States for the realisation of socioeconomic rights, but as a backward-gazing (ex post) monitoring mechanism which "focuses on providing accountability and remedies in those cases of alleged violations that are submitted to the Committee". 63 The Optional Protocol thus envisages States having the requisite discretion to choose the policies for the realisation of socio-economic rights that are best suited to their situation, with the CESCR assessing only the adequacy and reasonableness of the measures adopted by a State when a complaint for the violation of a particular right is brought against the specific State. This thus ensures that States retain their sovereignty as to the choice of legislative, policy and programmatic frameworks for the realisation of socioeconomic rights, as well as other national macro-economic policies.
One of the most enduring challenges to the judicial enforcement of socio-economic rights is their lack of precise, clear and enforceable content. 64  To find all obligations generated by a right and to clarify any ambiguities, practitioners must look to the case law and not simply the text of an article. Even if the rights in the Covenant look imprecise, it does not hinder their adjudication any more than civil rights. After all, interpreting and making obligations concrete by relating them to real life situations and questions is the essence of judicial work.
In dealing with individual communications for the violation of socio-economic rights, the CESCR will enhance the practical elaboration of the content of the rights entrenched in the Covenant in specific contextual situations. It will also enhance the For an extensive discussion of this contention, see Scheinin and Langford 2009 NJHR 99ff, where they argue that the previous situation of a lack of an international institutional mechanism for the adjudication of socio-economic rights had starved the rights of the requisite oxygen for their development, stating that justiciability does not depend on the nature of the norm concerned, but rather on the authority of the body making the decision. 69 Kratochvil 2009  and political rights is because they were based on existing national jurisprudence, a fact not true for socio-economic rights, and also that even after their elaboration in the ICCPR, the civil and political rights have been subjected to more judicial interpretation, with the result that their norms are clearer, more precise and better understood. Juridical elaboration of the content of socio-economic rights will thus similarly enhance the clarity and precision of the content of their norms.

71
See Scheinin and Langford 2009 NJHR 100, where they note the concern of opponents of an Optional Protocol that the CESCR has either been too far-reaching in some of its General Comments or has been insufficiently precise in some of its Concluding Observations. particular. 72 However, with the adoption of the Optional Protocol giving it the ensuing mandate to consider individual communications, the CESCR will have to adjust this expansive approach and adopt a more juridical approach to treaty interpretation so as to strengthen the foreseeability and consistency of its jurisprudence. 73 The CESCR will thus, more likely, be relatively conservative in its consideration of individual communications under the Optional Protocol than it was in its interpretation of rights under the more dialogic State reporting mandate.
States are differently situated in terms of their prevailing social conditions as well as the availability of structural, human and financial resources for the realisation of socio-economic rights. This was the reason why the "progressive realisation" standard was adopted in the ICESCR and why there was opposition to the adoption As a mechanism for human rights enforcement under the UN system, the Optional Protocol similarly suffers from challenges affecting most such mechanisms. Some of these challenges result from political and ideological compromises made during drafting; some arise from the composition and role of the CESCR; and others from limited capacity and resources. These challenges are discussed below.

Challenges due to political and ideological compromises
One of the major challenges to the effectiveness of the individual communications mechanism under the Optional Protocol results from the fact that it is the outcome of a compromise fraught with political and ideological struggles, leading to the adoption of an instrument with weaker wording and weaker procedural protection. 78 The challenges resulting from compromise in the international elaboration of legal instruments with a global reach are described by Antonio Cassese 79 as follows: [UN complaint mechanisms] tend to be so conditioned, in their unfolding, by political and diplomatic considerations, that often their final result is rather weak, being couched in terms that are too general or too diplomatic.
This was the situation with the Optional Protocol, leading to the watering down of certain provisions such as the failure to include a provision for collective complaints; the deletion of the requirement that local remedies must be effective if they are to be considered as remedies worthy of exhaustion; the requirement that communications be submitted within a year after the exhaustion of local remedies; 77 For an elaboration of the reasonableness approach adopted under a 8(4), see s 2 above. the inclusion of the inter-state and the inquiry procedures as opt-in provisions; as well as the unprecedented inclusion of "assessment criteria" under article 8(4). 80 With a relatively weak procedure, the concerns are that the complaint mechanism will not be able to meaningfully consider violations of socio-economic rights and enhance their overall protection, which was the very reason for the elaboration of For example, in relation to the deletion of the provision requiring domestic remedies to be effective, it has been suggested that these concern can be addressed by the  The challenge as to capacity, in terms of the time available for the CESCR to undertake its duties, as well as its professional capacity to undertake its diverse duties, is genuine and needs to be looked into more carefully. Justice Langa 98 acknowledged the need for adequate capacity to handle all the challenges that the adjudication of socio-economic rights entails, and advised that for the CESCR to be able to undertake its role effectively, it would be crucial to have members with the requisite skills, qualifications and capacity to employ creative solutions to ensure compliance with the Committee's findings. These concerns were also acknowledged during the drafting process of the Optional Protocol, and the Chairperson in her elements paper considered the need to enhance the capacity of the CESCR through the hiring of professional staff to assist the Committee in its individual communications mandate. 99 The CESCR also acknowledged these challenges with regard to its capacity to handle the complexity of ESCR adjudication at the international level, and it responded to these challenges by detailing in its provisional rules of procedure the possibility of establishing Working Groups or designating Rapporteurs to make recommendations to the Committee or to assist the Committee in a specified way in its individual communications mandate. 100 Though a genuine challenge, the issue of capacity can be effectively bridged through the hiring of professional staff to assist the CESCR with its work, as well as by the CESCR engaging professional bodies in its individual complaints mandate. 97 See Human Rights Law Resource Centre 2009 http://www.hrlrc.org.au/files/op-icescr-hrlrcsubmission-to-government.pdf para 31-34, where they affirm that even though views and recommendations from the CESCR will be non-binding legally, States have a duty to take steps to implement them in good faith in cooperation with the CESCR and treat the views as "authoritative determination by the organ established under the Covenant itself" (footnote omitted). 98 Langa 2009

Resource constraints
Concerns about the availability of resources within the UN are closely linked to the capacity concerns raised above. 101 During the negotiations and the drafting process in the Working Group, concerns were raised as to the viability of the creation of a new complaints mechanism within the UN system, taking into account the reality of the dwindling resources available to the UN treaty monitoring mechanisms. 102 It was observed that due to these constraints, the creation of the complaints mechanism would severely eat into the resources of the CESCR, with the result that the quality of its work on treaty monitoring and the consideration of State reports would decline. 103 These are genuine concerns, but the dire situation being faced by people whose socio-economic rights are violated extensively all over the world with adverse consequences cannot be overlooked simply due to disquiets about costs. To respond to these capacity and resource constraint challenges, the Office of the High Commissioner for Human Rights (OHCHR) has undertaken a process of harmonisation of the work of the different UN treaty body mechanisms to enhance the efficient use of resources and to increase the support of the Secretariat to the different mechanisms. 104 The streamlining of administrative and support services being offered to the different international complaint mechanisms by the OHCHR will ensure that the available resources are used effectively to improve the operations of the complaint mechanisms for the benefit of victims of socio-economic rights violations.

Argument for Accession to the Optional Protocol by South Africa
The argument for accession by South Africa to the OP-ICESCR departs from the premise that South Africa has become (or at least will very soon be)  104 Pillay 2012 http://www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf 32ff. 105 As South Africa has already signed the ICESCR, the term "ratification" is used to denote the formal acceptance of the treaty as binding on the country; and given that South Africa -as a some significant steps towards its ratification. In particular, on 10 October 2012 Cabinet approved ratification of the Covenant. 106 The process has subsequently moved to Parliament in accordance with section 231(2) of the South African Constitution, which provides that an international agreement must be approved by both Houses of Parliament, namely the National Assembly and the National Council of Provinces, by way of a resolution of ratification, before approval becomes legally binding upon the Republic. Although this process has been stalled significantly, it is still on-going and it is hoped that South Africa will soon ratify the ICESCR. 107 Having enacted a Constitution which entrenches a very extensive corpus of human rights, including justiciable socio-economic rights, and having made progressive steps towards ratifying the ICESCR, the substantive international human rights instrument providing for these rights, the question for South Africa in relation to the accession of the OP-ICESCR is not so much one of enlarging the scope of human rights standards, but one of adding to the enforcement of the already accepted standards. 108 Ratification of the ICESCR is important as it will ensure substantive uniformity in the normative standards for the realisation of socio-economic rights at the national and international level and cure the supposed difference in the structure of socio-economic rights as provided in the 1996 Constitution and the ICESCR. 109 Further, as the ratification process should in principle be preceded by a renewed non-state party to the Covenant -has not been in a position to sign the OP-ICESCR, the argument is that South Africa should accede to the Optional Protocol either simultaneously with ratifying the Covenant, or as soon as is feasible thereafter. Initial signature, followed by ratification of the OP-ICESCR will in our view be an unnecessary waste of time. 106 See Government Communications 2012 http://www.gcis.gov.za/content/newsroom/mediareleases/cabstatements/11Ict2012 where it was decided as follows: "Cabinet approved that South Africa accede to the United Nations International Covenant on Economic and Cultural Rights. The recommendation will be tabled in Parliament for ratification in line with Section 231(2) of the South African Constitution. The Covenant is a key international treaty which seeks to encourage State Parties to address challenges of inequality, unemployment and poverty, which are critical to the strategic goals of governments." Africans in general, and to the international community at large. These beneficial interests largely dovetail with the major reason for the elaboration of an OP-ICESCR, which is to enhance the realisation of socio-economic rights at the national and international level. During the debates in the Working Group sessions, the following potential benefits of the Optional Protocol to future state parties, in general, were noted: 112 A complaints mechanism would: encourage States parties to ensure more effective local remedies; promote the development of international jurisprudence, which would in turn promote the development of domestic jurisprudence on economic, social and cultural rights; strengthen international accountability; enable the adjudicating body to study concrete cases and thus enable it to create a more concise jurisprudence.
Below, these benefits are elaborated on and placed in a specifically South African All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in Chapter 2. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. Court further noted in para 44 as follows: "A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those, whose needs are the most urgent, and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right." Despite this wide array of protection mechanisms, there may be instances where these mechanisms fail to adequately or effectively protect the socio-economic rights of South Africans, with severe implications for equality, human dignity and freedom, values that underpin the national constitutional project. If this occurs, access to an international mechanism provides an essential procedure by which individuals can access a remedy to repair a contravention. Such a mechanism at the international level is provided for by both the individual communication mechanism established under the OP-ICESCR and the opt-in inquiry procedure under the Protocol.
Mazibuko v City of Johannesburg provides an example of a case where the individual complaint mechanism may have been relevant. In this case, the Constitutional Court overruled both the High Court and the Supreme Court of Appeal with regard to the content of the right to adequate water (the sufficiency of the free basic water that was being provided by the City) and the legality of pre-paid water metres in the poorer parts of the City of Johannesburg. 114 The availability of the international mechanism would have enabled the litigants to access an alternative forum for the amelioration of their dire health and sanitary situation, taking into account the normative purposes and values underpinning socio-economic rights as contained in the ICESCR and the jurisprudence of the CESCR in relation to the right to water as contained in General Comment Number 15. 115 It is crucial that international complaints mechanisms, as provided for under the OP-ICESCR, are available to right-holders as they provide a complementary avenue for rights claimants to access justice, thereby enhancing the overall realisation of socioeconomic rights. 116 This is acknowledged by Simmons, 117 who argues that "these complaints can complement and support broader domestic social movements to prod governments to change public policies and priorities". The availability of this are brought to bear in national policy decision-making for the realisation of socioeconomic rights. The importance of these international quasi-judicial mechanisms in the domestic protection of rights is further affirmed by Roach 118 who, in discussing the importance of the First Optional Protocol to the International Covenant on Civil and Political Rights, states as follows: Complaints under the Optional Protocol operate in an asymmetrical fashion; they guard against under-enforcement as opposed to over-enforcement of rights at the domestic level and thus serve as a potential buffer against the sense of complacency that can occur when domestic courts find that no rights have been violated.
Therefore, by acceding to the OP-ICESCR, South Africa will enhance the protection of these rights through the provision of further complementary safeguards against their violation, thus enhancing the potential that the social transformation envisaged by the 1996 Constitution is actually achieved for the majority of South Africans. 119 Accession will signal South Africa's humility in accepting that that there may be cracks, however small, in its protective framework. By proclaiming its commitment to the justiciability of these rights as an international commitment it further solidifies this position and makes its future reversal all the more improbable. Accession will also signal its continued commitment to the eradication of poverty, inequality and marginalisation through all the available legal means, domestically and internationally. 120 The incorporation of wording from the Grootboom judgment suggests, as does the drafting history, that just as the South African Constitutional Court has incorporated jurisprudence from the CESCR into its own domestic jurisprudence, so has South African jurisprudence now informed the text of an international human rights instrument. There are a number of aspects of the reasonableness standard affirmed in the Grootboom decision which should, in turn, inform the interpretation and application of Article 8(4) of the Optional Protocol.

Acceding to the OP-ICESCR will affirm South
By acceding to the Optional Protocol, South Africa will continue being the beacon for other States in emphasising the justiciability of socio-economic rights both at the national and international level, with the result that these rights are better protected in domestic jurisdictions around the world and in the international sphere. 126 Together with the requirement of international solidarity in the realisation of socioeconomic rights in all parts of the world, these should encourage South Africa to accede to the Optional Protocol. This is especially so in the light of South Africa's effort to maintain a high profile internationally as a State which is human rights compliant and which has taken serious strides to enhance domestic adjudication of socio-economic rights. 127 Failure to become a party to the Optional Protocol would contradict this key aspect of South Africa's foreign and international development Peoples' Rights as contained in the preamble paragraph 8 of the Charter, which provides as follows: [It is] essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.
Widespread ratification of the Optional Protocol in Africa would enhance the respect, protection, promotion and enforcement of socio-economic rights in Africa, and thus improve the dire human development situation evidenced by the pervasive poverty and the lack of access to basic goods and services.

Acceding to the OP-ICESCR will encourage the development of uniform assessment standards internationally for the realisation of socio-economic rights and thus ensure greater consistency
Different national and regional courts have adopted different approaches and strategies in the judicial adjudication of socio-economic rights. mechanism for the adjudication of socio-economic rights has the potential to comprehensively combine these different approaches to build a progressive international jurisprudence aimed at enhancing the full realisation of these rights globally. 130 This international jurisprudence will not only enhance the development of the content of socio-economic rights, but will also help ascertain the specific contours of States' international socio-economic rights obligations, leading to legal certainty and its attendant improvement in the implementation of and compliance with these rights. 131 Simmons 132 emphasises this by stating as follows: Allowing individuals to lodge complaints can be an important part of the process of gradually coming to a clearer understanding about what social and economic rights entail and what constitutes a good faith effort on the part of States Parties to comply with their international legal obligations.
In the application of this international jurisprudence on socio-economic rights at the national level, it is also important to note that the views resulting from the individual communications mandate of CESCR under the Optional Protocol are non-binding, which means that the domestic courts will still retain the power to scrutinise and censure the jurisprudence from the CESCR when considering its potential influence on domestic democratic decision-making, with the result that judicial power is not irrevocably transferred to the international level. 133 As the leader in domestic socioeconomic rights adjudication, South Africa could thus benefit greatly from this international comparative jurisprudence in its own national adjudication of socioeconomic rights, with the result that these rights would be better protected nationally and victims of their violation would be afforded adequate and effective remedies. 134 This is acknowledged by Langa, 135 who argued as follows: It is therefore useful to have progressive international instruments leading the development towards an increased protection of fundamental human rights. International instruments can assist the courts in understanding human rights and influence governments to legislate effectively to protect human rights.
So far South African courts have only sparingly utilised the jurisprudence emanating from the CESCR in the development of domestic socio-economic rights jurisprudence, with the courts emphasising that they do not have to follow the interpretive guidance of the CESCR. 136 This is likely to change with the ratification of the ICESCR, the possible accession to the OP-ICESCR and the development of comparative international jurisprudence, with the effect that the courts will not only be inward-looking but will also look outwards to the more protective comparative jurisprudence emanating from the international level. 137 This will ensure that socioeconomic rights are better protected at the national and international level.

Africa's sovereignty and institutional integrity
Sovereignty concerns, informed by unease about the integrity of national processes of adjudicating socio-economic rights, may be allayed by referring to the requirement that domestic remedies need to be exhausted before a communication will reach the CESCR, and, in particular, as article 4 stipulates, that the applicants have to show that they suffered a "clear disadvantage"; by the possibility, allowed for under article 7, of friendly settlement before the Committee; and by the complementary role of the CESCR in its individual communications mandate. The competence of the Committee is contoured by the restrictions of article 8(4) of the Optional Protocol, which enshrines the reasonableness approach in the adjudication of socio-economic rights at the international level. In this constrained role, the CESCR is, like any other judicial or quasi-judicial body, mandated to review only the reasonableness of the measures that have been put in place to enhance the realisation of socio-economic rights, respecting the State's margin of appreciation due to the plurality of the choices of measures that can be put in place to realise these rights. The CESCR is thus not mandated to dictate to States which measures to adopt or which macro-economic policies to adopt in order to enhance the 136 CHR and SAIFAC "Memorandum to the Department of Justice" para 6. 137 See Van der Burg 2012 ESR Review 7. realisation of socio-economic rights. This is acknowledged by Porter 138 in his assessment of article 8(4), where he contends as follows: While the CESCR is directed by Article 8(4) not to shy away from adjudicating these critical claims, it is at the same time directed not to lose sight of the fact that its role is to focus on compliance with the ICESCR and on the fundamental values it protects. The CESCR will not, under the reasonableness review that is endorsed in Article 8(4), impose its own policy choices when other choices may be available and preferred as a means to ensure compliance with the ICESCR. It will not confuse its role with that of the respondent government or other institutions better placed to design and craft appropriate policies and programs.
Accession to the Optional Protocol by South Africa will thus not detract from the sovereign mandate and responsibility of the relevant national government institutions to put in place specific measures aimed at the realisation of socioeconomic rights. On the contrary, all that a review under the Optional Protocol will do is to enhance State accountability for the realisation of the Covenant rights at the international level; 139 encourage openness to a wide array of remedial options and engagement with relevant actors in the implementation of Covenant rights; and create new forms of institutional relationship between the government, international institutions and claimants of human rights in the realisation of socio-economic rights. 140

Acceding to the OP-ICESCR will not create extra onerous international human rights obligations for South Africa
South Africa has ratified United Nations legal instruments creating individual complaint mechanisms, some of which already provide for at least some socioeconomic rights and allow for their adjudication by bodies with a status similar to that of the CESCR. 141  Although South Africa has ratified the African Charter, the Women's Rights Protocol and the Court Protocol, so far no socio-economic rights communications or cases Discrimination against Women (1999) (OP-CEDAW) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) (MWC). 142 At the regional level South Africa has ratified the following legal instruments providing for an individual communications mechanism: the African Charter on Human and Peoples' Rights (1981); the African Charter on the Rights and Welfare of the Child (1990); the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2003); and the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (1998 have been filed against it either at the African Commission or the African Court. The lack of socio-economic rights communications against South Africa in these complaint mechanisms is unlikely to be due to a lack of knowledge of the existence of these mechanisms, but is more likely to be due to the fact that potential claimants see little added value in having recourse to these complaint procedures due to the adequacy of the available domestic remedies. This is likely to be unchanged even if South Africa accedes to the OP-ICESCR.
Acceding to the Optional Protocol will thus not create more onerous obligations for South Africa above and above similar -and even more onerous -obligations it has already undertaken under these other legal instruments. It thus makes sense for South Africa to accede to the Optional Protocol, as ratification will re-affirm South Africa's commitment to a continued constructive engagement with treaty monitoring bodies at the regional and international level.

Acceding to the OP-ICESCR will enhance national awareness and appreciation of socio-economic rights and the international mechanisms available for their enforcement
Accession to the Optional Protocol is likely to enhance the overall understanding of socio-economic rights among South Africans, as the Optional Protocol obliges States to widely distribute and disseminate the ICESCR and the Optional Protocol itself, as well as the views and recommendations emanating from the CESCR under its individual communications procedure. 148 Widespread knowledge of the Covenant, the Optional Protocol and other materials emanating from the CESCR at the national level would enhance domestic advocacy for the improved realisation of socioeconomic rights by individuals, groups as well as civil society organisations, with the effect that the national dialogue would be more inclusive and comprehensive. It would also improve the national civic monitoring and evaluation of the government's legislative, policy and programmatic framework for the realisation of socio-economic rights using international standards, with the result that the government's 148 OP-ICESCR a 16. accountability for the domestic implementation of socio-economic rights in South Africa would be enhanced. 149

Conclusion
The adoption and the coming into force of the OP-ICESCR provides an important opportunity for the enhanced protection, promotion and full realisation of socioeconomic rights in line with the international law principle of the indivisibility, interrelatedness and interdependence of rights. In empowering the CESCR to consider individual communications and through its inquiry procedure, it provides an important avenue for the continued effort at the reduction of poverty by providing an opportunity for individuals and communities at the margins of society to attack poverty-enhancing violations of socio-economic rights at the international level. This was aptly captured by the former High Commissioner for Human Rights, Louise Arbour, 150 who stated that the Optional Protocol: [w]ill provide an important platform to expose abuses that are often linked to poverty, discrimination and neglect, and that victims frequently endure in silence and helplessness. It will provide a way for individuals, who may otherwise be isolated and powerless, to make the international community aware of their situation.
Accession to the Optional Protocol by South Africa may thus go a long way towards enhancing the protection of socio-economic rights at the national level, may improve the efforts to enhance substantive equality, to reduce poverty and improve standards of living, as well as to enhance the achievement of the transformative goal of the 1996 South African Constitution of transforming South Africa into an egalitarian and caring society.
We believe that a strong case exists for South Africa's accession to the OP-ICESCR.
In fact, it is difficult to conjure up credible or convincing counter-arguments. Logic impels too strongly that South Africa should confirm at the international level its 149 See Chenwi and Hardowar 2010 ESR Review 5, where they contend that "the OP-ICESCR promotes the culture of accountability and helps empower poor, vulnerable and marginal groups, and both of these objectives are encouraged by the South African Constitution". Also see Petherbridge 2012 http://blogs.sun.ac.za/seraj/files/2012/11/South-Africas-pending-ratificationof-the-ICESCR.pdf. 150 Arbour date unknown http://www.un.org/apps/news/story.asp?NewsID=27069&Cr=arbour.
position as a world leader on the national justiciability and legal enforcement of socio-economic rights, as, indeed, it has done during the drafting process of the Optional Protocol.