A/69/299 20. The reliance on States’ available resources to realize the right to health adds complexities to an adjudicator ’s ability to decide such issues. For example, adjudicating whether the State has taken steps to the maximum extent of its available resources may involve the determination of the extent of the State ’s available resources. Adjudicators have, however, been loath to scrutinize statements concerning the available resources proffered by States because decisions on budgetary allocations are generally deemed to be within the purview of the legislature and executive, and thus outside the proper scope of judicial inquiry. In Soobramoney v. Minister of Health, KwaZulu-Natal (1998), the Constitutional Court of South Africa concluded that people with chronic renal failure were not entitled to dialysis treatment by the State free of cost, as were emergency cases of renal failure. The petitioner’s right to receive dialysis treatment was analysed under the constitutional obligation of South Africa to progressively realize its citizens ’ right to health and its obligation to provide emergency health care. The Court found that the Government had proved that no funds were available to pro vide all persons with chronic renal failure with dialysis treatment free of cost and that it therefore had to accord priority to emergency care. The Court reached that conclusion after reviewing evidence that the Department of Health had already overspent its budget. It did not delve further into whether the amount allocated was sufficient to achieve a reasonable level of health. 21. Adjudicators’ inability or reluctance to inquire into budgetary allocations affecting the amount of resources available may b e fostered in part by the fact that the term “available resources” has not been clearly defined within the right to health framework or general comment No. 3. Available resources could be interpreted in diverse ways. It could mean a State’s entire gross domestic product or a specified percentage thereof, or it could be limited to the amount allocated to the State ’s health budget or limited to the amounts allocated to a particular health concern. Furthermore, although general comment No. 3 indicates that ava ilable resources include resources available through international assistance (para. 13), it falls short of clarifying whether available resources cover the amount actually available or the amount that could have been available had the State exerted itself in obtaining such aid. Moreover, the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights indicate that States have an obligation to develop societal resources as a way of increasing their availabl e resources, but do not indicate whether available resources should include the amount of societal resources that a State could reasonably develop but has not yet developed (para. 24). It is clear, however, that the term “available resources” refers to the totality of a State’s “real” resources (e.g. informational, technical, organizational, human, natural and administrative) above and beyond budgetary allocations. 11 Adjudicators reviewing the amount of available resources proffered by States should keep in mind that the State is required to administer the existing budget efficiently and mobilize additional resources, which may include, for example, changes to the State’s taxation policy or smart incurrence of debt. 12 __________________ 11 12 14-59014 See Rory O’Connell and others, Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (London, Routledge, 2014), chap. 3. Diane Elson, Radhika Balakrishnan and James Heintz, “Public finance, maximum available resources and human rights”, in A. Nolan, R. O’Connell and C. Harvey, eds., Human Rights and Public Finance: Budget and the Promotion of Economic and Social Rights (Oxford, United Kingdom of Great Britain and Northern Ireland , Hart, 2013). 7/22