2008]
The Minimum Core of Economic and Social Rights
135
African Commission on Human and Peoples’ Rights has held that the right to
food “is inseparably linked to the dignity of human bei ngs and is t herefore
essential for the enjoyment and fulfillment of other rights as health, education,
work and political participation.”120
Advocates of the value of human di
gnity contend that it enriches
socioeconomic jurisprudence by justifyi ng claims for social services when
groups lack material conditions necessary for a life of dignity and by focusing
on the actual needs and circum stances of each individual. 121 Interpretations of
dignity consistent with the protection of economic and social rights affirm
“that people who are denied access to the basic social and economic rights are
denied the opportunity to live their lives with a semblance of human
dignity”122 and that “a social failure to va lue human dignity is at stake when
individuals and groups experience depr ivations of subsistence needs.” 123 Such
a value goes beyond mere survival needs, by attending to the effect on dignity
of various redistributive interventions or omissions.
Nonetheless, the value of di gnity creates its own challenges for
substantiating the minimum core. As recognized by commen tators in both
international law and constitutional law, “dig nity” can be measured
subjectively or obj ectively. 124 In its subjective sense, dignity (and its
correlative—the harm of injury to dignity) refers to the subjective effect of
treatment on a claimant’ s feelings of self-worth and s elf-respect. 125 The
subjective measure of dignity allows context and individual circumstances to
be taken into account, yet it also has two disadvantages. First, it is pr ecisely
this sensitivity to contex t that prevents its useful ness as a more general guide
to determining the minimum core of economic and social rights, if we
understand that to be a fixed and universal (or even society-wide) measure.
Secondly, the subjective measure of harm to dignity pulls the interpretation of
rights in a stat us quo-preserving direction by keeping the allo tments in place,
which might be unjusti fied on more obj ective grounds. It is not implausible
that in the area of economic and social rights, subjective dignity might be
harmed by redistribution away from the wealthy and might also fail to disturb
the low expectations of poor people about their entitlements. 126 I argue that a
120. Soc. and E con. Rights Action Ctr. for Ec on. and Soc. Rights v. Nigeria, Comm. No.
155/96, 2001-2002 Annual Activity Report of the African Commission on Human and Peoples’ Rights,
Annex V, ¶ 68, available at http://www1.umn.edu/humanrts/africa/comcases/155-96b.html (declaring
obligation not to destroy or contaminate food sources).
121. Sandra Liebenberg, The Value of Human Dignity in Interpreting Socio-Economic Rights ,
21 S. AFR. J. HUM. RTS. 1, 18 (2005) [hereinafter Liebenberg, Interpreting Socio-Economic Rights].
122. Pierre de Vos, Substantive Equality after Grootboom: The Emergence of Social and
Economic Context as a Guiding Value in Equality Jurisprudence, 2001 ACTA JURIDICA 52, 64 (2001).
123. Liebenberg, Interpreting Socio-Economic Rights, supra note 121, at 23.
124. E.g., Schachter, supra note 111; cf. Weinrib, supra note 116, at 15-16 (exam ining
universal and particularized meanings of human dignity).
125. RAWLS, supra note 74, at 225, 386-89 (describing self -respect as the m ost important
primary good).
126. Varun Gauri, Social Rights and Economics: Claims to Health Care and Education in
Developing Countries, in HUMAN RIGHTS AND DEVELOPMENT: TOWARDS MUTUAL REINFORCEMENT,
supra note 95, at 78, 80 (noting “the habit of individuals subject to deprivation to lower their standards
regarding what they need, want, a nd deserve”). For a description of this tendency, and a radical
proposal for challenging it, see U NGER, supra note 74, at 514 (setting out an institutional program to
destabilize certain obstinate conceptions of rights protections and security).
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