A jurisprudential analysis of the enforceability of socio-economic rights in South Africa: a constitutional discourse

CHAPTER 1: INTRODUCTION

1.1 BACKGROUND

The thrust of this study is to examine and analyse the jurisprudential approach regarding the enforceability of socio-economic rights in South Africa. The unequal distribution of wealth is acute nowadays. While all wealth is concentrated in some few hands, others on the contrary, live in extreme poverty¹. Millions of people across the world are homeless or do not have access to health care services, sanitation and potable water.²

In South Africa, previously disadvantaged people are living in similar conditions³. In an attempt to curb the effect of poverty, a number of Conventions have been ratified at international level in a view to provide affected people some social and economic relief⁴. Some countries have followed this trend by including socio-economic rights in

¹ The Constitutional Court of South Africa held in Soobramoney v Minister of Health Kwazulu-Natal 1998

(1) SA 765 (CC) 1997 (12) BCLR 1696 (CC) 8 that «We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services.». See also the few number of the world?s billionaires listed on www.forbes.com compared to millions of poor people living with less than one dollar a day the across the globe.

² Anon Key facts on poverty in the world 2009 HYPERLINK http://www.stwr.org/health-education-

shelter/key-facts-shelter.html 2 September. It is estimated worldwide that 900 millions urban dwellers and over one billion rural people now live in overcrowded and poor quality housing without adequate provision for water, sanitation, drainage or the collection of household waste. See also Anon http://www.stwr.org/health-education-shelter/key-facts-health.html.2 September. It also estimated that more than one billion people in the world lack access to basic health service.

³ Anon Human Sciences Research Council 2009 HYPERLINK

http://www.sarpn.org.za/documents/d0000990/P1096-FactSheetNo1Poverty.pdf. 2 September. New estimates of poverty show that the proportion of people living in poverty in South Africa has not changed significantly between 1996 and 2001. However, those households living in poverty have sunk deeper into poverty and the gap between rich and poor has widened. It is further estimated that approximately 57% of individuals in South Africa were living below the poverty income line in 2001, unchanged from 1996. Limpopo and the Eastern Cape had the highest proportion of poor people with 77% and 72% of their populations living below the poverty income line, respectively. The Western Cape had the lowest proportion in poverty (32%), followed by Gauteng (42%).

⁴ Some of these Conventions are: the Protocol Relating to the Status of Refugees, 1967, the United

Declaration of Human Rights, 1948, the Universal Declaration on the Eradication of Hunger and Malnutrition, 1974 and the United Nations Educational, Scientific and Cultural Organization, 1960. Some of these Conventions are explored in chapter 2.

their Constitution⁵.The inclusion of these rights in the Constitution was done not without resistance. It is argued that the controversial nature of these rights militates against their judicial enforcement⁶. Another contention pertaining to the inclusion of justiciable socio-economic rights in the Constitution is the enforcing mechanism reserved to these rights. In response to all the arguments surrounding the inclusion of justiciable rights in the Constitution, the United Nations Committee on Economic, Social and Cultural Rights in its General Comments as well as the Constitutional Court of South Africa unanimously held that these rights were indeed enforceable.

1.1.1 CONSTITUTIONAL DEMOCRACY

Before the advent of the new Constitution⁷, South Africa was characterised by racial
discrimination. The 1909 Constitution⁸ of South Africa endorsed the methods that
promoted the system of discrimination. All law and regulations favoured white

⁵ Some of these countries are India, Namibia, Columbia, Ireland, Portugal and South Africa. However,

South Africa and Columbia have included enforceable socio-economic rights in their Constitutions whereas others have done so only as directive principle of state policies.

⁶ It was argued that socio-economic rights are positive in nature and enjoin the state to provide measures

that will foster the realisation of these rights. Their judicial enforcement will enable the courts to intervene in executive domain thereby violating the doctrine of separation of powers. A full discussion on the controversial nature of socio-economic rights is provided in chapter 4 of this dissertation.

⁷ The Constitution of the Republic of South Africa Act 200, 1993. Hereafter referred to as the Interim Constitution (IC).The IC was a transitional instrument, a means where a democratically elected legislature can act legally to draw up the final Constitution. The IC was an innovative step for the democracy in South Africa. It introduced for the first time the doctrine of the supremacy of the Constitution and the Bill of Rights in the Constitution. The Bill of Rights provided for in Chapter 3 of the IC contains various rights: Freedom of association, of movement of religion, belief, rights of property, education, economic activity, of residence etc. The doctrine of the constitutional supremacy provided in section 4 of the IC which reads as follows: «This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency. This Constitution shall bind all legislative, executive and judicial organs of state at all levels of government».

⁸ South Africa Act, 1909 of Edward VII. This Act was also referred to as the 1910 Constitution of the

Republic of South Africa. Section 4 of the South Africa Act of 1909 stated that: «It shall be lawful for the King, with the advise of the privy Council, to declare by proclamation that... the Colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River Colony,..., shall be united in a legislative Union under one Government under the name of the Union of South Africa. On and after the day of appointed by such proclamation, the Government and the Parliament of the Union should have full power and authority within the limits of the Colonies, but the King might at any time after the proclamation appoint a Governor-General for the Union». Section 6 further proclaimed that the colonies mentioned in section four should become original provinces of the Union under the names of Cape of Good Hope, Natal, Transvaal, and Orange Free State. The original provinces were the same limits as the respective colonies at the establishment of the Union.

population to the detriment of black people. It is in this context that, the post-apartheid regime has engaged in the eradication of the past injustices and inequalities. The new era of constitutional democracy in South Africa aims at eradicating the imbalances of the past through the promulgation of legislation and policies which promote and protect human rights. Both the Interim Constitution (IC) and the 1996 Constitution⁹ acknowledge the injustices of the past and seek to redress these imbalances. For instance, the promulgation of the 1996 Constitution tries to correct the social and economic imbalances of the past. Its Preamble acknowledges these imbalances and provides that¹⁰:

We, the people of South Africa, recognise the injustices of our past. We therefore, through our freely elected representatives, adopt this Constitution as the Supreme law of the Republic so as to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights...

1.1.2 ENFORCEABILITY OF SOCIO-ECONOMIC RIGHTS

In order to redress past injustices, the Constitution has further entrenched justiciable socio-economic rights in the Bill of Rights. The inclusion of such rights for the first time in the Constitution was of political importance to the African National Congress (ANC) which has some socialist tendencies and which argued strongly for the inclusion of a

⁹ The Constitution of the Republic of South Africa Act 108, 1996. Hereafter referred to as the 1996

Constitution or the final Constitution (FC). The Interim Constitution was not intended to be a final Constitution for South Africa. The new parliament, constituted under the IC was to play the dual role of legislature and Constitutional Assembly (CA). The CA had the task of adopting a FC for South Africa within two years of its first sitting. The CA was however bound to produce a Constitution that conformed to the 34 constitutional principles that had been agreed on during the 1991-1993 political negotiations. The principles were entrenched in the IC. The Constitutional Court (CC) had to decide whether the FC complied with the 34 constitutional principles. If the CC found no deviation from the principles, it would mean that the FC was certified. A first draft was adopted by the CA on the 10 May 1996, but the CC found that it did not comply with the 34 principles in all respects and consequently referred it back to the CA. the CA adopted an amended draft on 11 October 1996. This version was subsequently certified by the CC. On 4 February 1997 it came into effect as the FC.

¹⁰ The preamble of the 1996 Constitution.

range of socio-economic rights in the Constitution¹¹. Although the final draft of the Constitution showed a schism between political parties, academics¹² were also interested in the inclusion of socio-economic rights in the Bill of Rights. In fact, socioeconomic rights have been the centre of political debate and discussions before and after their adoption in the IC and the 1996 Constitution. The discussions focus on the enforceability of these rights by the courts¹³. Another contention was the protection of socio-economic rights by the state¹⁴. The Constitutional Court (CC) in many of its decisions¹⁵ with regard to the enforceability of socio-economic rights put an end to the debate and held that these rights are indeed enforceable by courts.

The Justiciability of socio-economic rights is new in South African jurisprudence and the CC has to entertain matters pertaining to such rights after the adoption of the IC in Soobramoney v Minister of Health (Kwazulu Natal)¹⁶. Therefore the CC has to develop a method that will enable the enforceability of these rights. In this regard, it adopted the reasonable approach as its approach to interpret and enforce socio-economic rights. The reasonable approach as developed by the CC has received extensive critique. Legal scholars argue, for instance, that, the CC could adopt the minimum core as the approach to determine the enforceability of socio-economic rights. This is the case in

¹¹ In March 1995, the African National Congress (ANC) made its submission on fundamental rights to the

relevant theme committee of the Constitutional Assembly. It listed, inter alia, that socio-economic rights include freedom from hunger, the right to shelter, the right to work, the right to health, welfare rights, the right to education, and the right to a minimum income. For more reading see Devenish Commentary 358.

¹² Some of the academics are Devenish, Bilchitz, Pieterse, Iles and Liebenberg.

¹³ See for example Devenish A Commentary on the South African Bill of Rights (Butterworths Durban

1999).

¹⁴ According to Black?s Law Dictionary, justiciability is the quality or state of being appropriate or suitable

for adjudication by a court. Citing 13 Charles Alan Wright et al; Federal Practice and Procedure § 3529 at 278-79 (2ed 1984) « concepts of justiciability have been developed to identify appropriate occasions for judicial action...The central concepts often are elaborated into more specific categories of justiciability- advisory opinions, feigned and collusive, cases, standing, ripeness, mootness, political questions, and administrative questions." The justiciability debate is discussed lengthy in Chapter 4 of this study.

¹⁵ This study analyses the relevant cases where the court has developed the reasonable approach. The

leading case in this regard is Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). This concept has been reaffirmed inter alia in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 10 BCLR 1033; Resident Joe Slovo Community Western Cape v Thubelisha Home CCT 22/08 2009 ZACC 16.

¹⁶ 1998 (1) SA 765 (CC).

International Convention¹⁷. Despite this criticism, the CC has nevertheless reiterated the reasonable approach as its approach for the justiciability of socio-economic rights.

1.2 AIM OF THE STUDY

The study critically analyses the approach and jurisprudence of the CC pertaining to the enforceability of socio-economic rights. The study also analyses the suggested approach which advocates the adoption of the minimum core as an approach to entertain and enforce socio-economic rights¹⁸. It is also argued that combined methods of the reasonable and minimum core approaches will be of value for a jurisprudential foundation regarding the enforceability of socio-economic rights in South Africa.

1.3 RESEARCH METHODOLOGY

The study is based on literature review of books, articles in journal, various pieces of legislation, theses, dissertations, reports, internet sources and case law. The study is also a critical analysis of the relevant South African literature and case law where socio-economic rights can be sourced from. In addition to this, the study also discusses some International Conventions signed by South Africa and some foreign legislation and case law.

¹⁷ International Convention referred to the International Covenant on Economic, Social and cultural Rights

(CESCR) which was adopted and opened for signature, ratification and accession by the General Assembly resolution 2200A of 16 December 1966 and which came into force on the 3^rd January1976. The United Nation Committee on its General Comment N03 on section 2 of the CESCR was of the view that a minimum core obligation upon each state party to the Covenant is necessary for the satisfaction of at least a minimum of the rights. The core minimum is dealt in detail in Chapter 6 of this study.

18 In South Africa, judicial support for the adoption of the minimum core obligation can be sourced from the judgments of the High Courts. See for instance, the Cape of Good Hope High Court?s judgment in Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C).

CHAPTER 2: OVERVIEW OF SOCIO-ECONOMIC RIGHTS IN SELECTED INTERNATIONAL AND REGIONAL INSTRUMENTS

The socio-economic rights expressed in the 1996 Constitution of South Africa are also found in the International Conventions to which the country is party¹⁹. Socio-economic rights are entrenched in many United Nations (UN) instruments. This study is limited to two UN instruments: the Universal Declaration of Human Rights (the UDHR Charter or the 1948 Declaration) and the International Covenant on Economic, Social and Cultural Rights (CESCR). However, some specific international instruments dealing with socioeconomic rights are briefly mentioned within the section dealing with the UDHR document. On a region level, the African Charter on Human and People's Rights is also outlined. The purpose of this part of the study is therefore to provide an overview of socio-economic rights entailed in these selected international documents.

2.1 SELECTED SOCIO-ECONOMIC RIGHTS CONTAINED IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The UDHR²⁰ contains many provisions with regard to socio-economic rights. The
UDHR covers rights such as the right to education²¹, the right to social security, the

¹⁹ Section 39 of the 1996 Constitution provides that when interpreting the Bill of Rights a court or a tribunal

must consider international law. In S v Makwanyane 1995 (3) SA 391 CC, the CC held that: «Customary international law and the ratification and accession to international agreements is dealt with in section 231 of the Constitution which sets the requirements for such law to be binding within South Africa. In the context of section 35(1), public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which Chapter three can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and in appropriate cases, reports of specialised agencies such as the International Labour Organization may provide guidance as to the correct interpretation of particular provisions of Chapter three».

²⁰ The Universal Declaration of Human Rights (UDHR), 1948 was adopted by the General Assembly on the

10 December 1948. South Africa played an important role in the creation of the UN and has been a party to the UN Charter since the beginning. However, South Africa was also one of the eight countries that abstained from adopting the UDHR. South Africa?s apartheid policies of racial discrimination led to a number of steps being taken against it by the UN. In 1974, South Africa was excluded from participating in the General Assembly of the UN and from participating in the activities of a number of specialised agencies of the UN, such as the International Labour Organisation (ILO) and the Food and Agriculture

right to work²², the right to an adequate standard of living including health, food, housing and clothing and the right to participate in cultural activity of the community²³. Some of these rights are detailed below. Some international documents have been promulgated and ratified under the auspice of the UN to specifically give content of the rights expressed in the UDHR. Some of these documents are also outlined in this study.

2.1.1 THE RIGHT TO SOCIAL SECURITY

The UDHR reads inter alia as follows²⁴:

Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-operation and in accordance with the organisation and resources of each State, of the

Organisation (FAO). Today there are 19 specialised agencies in the UN system. Many of these agencies make substantial and important contribution to the UN human right system. The UDHR is almost universally accepted as being the main guide to the meaning of the human rights commitments in the UN charter, and most of its provisions have been included in treaties and national Constitutions. Some of its provisions have also become part of customary international law. Significantly, the UDHR protects both civil and political rights and socio-economic rights. Its preamble provides that «... the peoples of the United Nations have in the charter reaffirmed their faith in the fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, ... member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms and,... a common understanding of these rights and freedoms is of the greatest importance for the full realisation of this pledge».

²¹ Article 26 of the UDHR provides that:» (1) everyone has the right to education. Education shall be free, at

least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children.

²² Article 23 of the UDHR reads as follows: «(1) everyone has the right to work, to free choice of

employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests».

²³ Article 27 UDHR reads as follows: «(1) everyone has the right freely to participate in the cultural life of

the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author».

²⁴ Article 22 of UDHR.

economic, social and cultural rights indispensable for his dignity and the free development of his personality.

The above section compels national and international entities to provide everyone with social security. According to Rensburg and Lamarche, social security is one form of social protection and refers to the contribution scheme of social protection in terms of which employees contribute for unexpected events and can be in the form of private scheme or public scheme²⁵. A number of international documents under the initiative of the UN have been adopted and ratified to protect social security of vulnerable group of people. Among these are the treaties on the protection of refugees and stateless persons for instance, the Convention relating to the Status of Refugees²⁶, the Protocol Relating to the Status of Refugees²⁷, the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families²⁸; the Convention on the Elimination of all Forms of Racial Discrimination²⁹ and the Convention of the rights

²⁵ Rensburg and Lamarche 2009 HYPERLINK http://

www.chr.up.ac.za/centrepublications/socio/socio.html 210.10 June. De Waal, Currie and Erasmus Bill of Rights 407. Social security refers to insurance scheme to which workers and employers contribute for the purpose of financial old-age pensions, medical and unemployment insurance. Social protection or assurance refers to needs-based assistance financed from public fund. For instance, as pointed out by Linda and Lucie, the current social assistance program in South Africa covers the following: the state old age pension, the disability grant, the child support grant, foster grant and the care dependency grant. For further reading on the distinction between social security and social assurance, see in this regard Devenish Bill of Rights 367.

²⁶ The Convention relating to the Status of Refugees, 1951 entered into force on the 22^nd April 1954; Its

Preamble states that the «The High Contracting Parties consider that: , ... the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,... that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms...» Moreover, Article 24 (1) (b) of the Refugees Convention on labour legislation and social security states the contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals inter alia to Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations.

²⁷ The Protocol Relating to the Status of Refugees, 1967 entered into force on the 4^th October 1967.

²⁸ The International Convention on the Protection of the Rights of all Migrant Workers and Members of their

Families, 1992 entered into force on the 1^st July 2003.

²⁹ The Convention on the Elimination of all Forms of Racial Discrimination, 1963. The Convention was

proclaimed by the General Assembly resolution on the 20^th November 1963 and entered into force on the 4^th January 1969.

of the Child³⁰. Another Convention that deals specifically with workers? social security is the International Labour Organization (ILO)³¹. The ILO has been established to focus, inter alia, on social security. It provides recommendations which have binding effect on states which have ratified it.

2.1.2 THE RIGHT TO AN ADEQUATE STANDARD OF LIVING

The right to an adequate standard of living is a composite right which is comprised among others of, the right to adequate health, food, clothing and social assistance. In this regard, a specific provision of the UDHR provides that³²:

(1) Everyone has the right to standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

In addition to the above fundamental section of the UDHR, some International Conventions pertaining to specific rights are also outlined. The above provision broadly stresses the fact that any human being is entitled to a minimum standard of living. This minimum is the threshold below which no living condition is acceptable. Therefore, any

³⁰ The Convention of the rights of the Child, 1989. The convention was adopted and opened for signature,

ratification and accession by General Assembly on the 20^th November 1989 and entered into force on 2 September 1990.

³¹ According to Mertus Human Right , the International Labour Organization (ILO) was founded in 1919

under the Treaty of Versailles and became the first specialised agency of the UN in 1946 and is also the oldest continuously existing international organisations. The ILO has set detailed accepted standards on workers? rights and created a usual highly participatory system of enforcement since its inception. The standard-setting work of the ILO has long been related to the UN human rights system. Many of the early ILO Conventions provided language for the International CESCR and CCPR and the later Conventions have likely been elaborated upon through recent ILO Convention. However, compliance has largely been left to private voluntary standard-setting by corporation themselves and monitoring by international Non-Governmental Organisations (NGOs). This has prompted many to call for still greater institutional enforcement mechanism.

³² Article 25 of the UDHR.

state party to the UDHR is under an obligation to respect and ensure that its citizens enjoy a minimum standard of living. Many International Conventions have been signed and ratified by many countries to give effect to the UDHR. For instance, the human rights standard to adequate health and housing are found in many International Conventions. In addition to the Conventions mentioned above with regard to the right to social security which also deal with the right to health and housing, some other Conventions are: the American Declaration of the Rights and Duties of Man, 1948 (Article XI and XVI); the International Labour Organisation Convention N0 102 Concerning Minimum Standard of Social Security, 1952; the European Social Charter,1961(Articles 12,13,16 and 17); the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution (39/1994) on «Force Evictions'³³ etc.

The World Health Organisation (WHO)³⁴ deals particularly with the right to health. Its Preamble proclaims that the enjoyment of the highest standard of living is one of the fundamental rights every human being is entitled to without distinction of race, gender, political belief or social condition. The right to adequate food quoted from the above article, is also widely established in international instruments. The most important international instrument is of course the UDHR cited above. Another instrument is the Universal Declaration on the Eradication of Hunger and Malnutrition, 1974 (UDEHM)³⁵. The right to food is also found in specific documents that deal for instance with the rights of vulnerable groups (children, women, refugees etc). The Convention of the Rights of the Child, 1989 cited above is such an example. It requires state parties in Article 24(2) (c) with regard to children to combat diseases and malnutrition through the provision of adequate nutritious food³⁶. Another example is the Convention on the

³³ Rensburg andLamarche2009HYPERLINK http:// www.chrup.ac.za/centrepublications/socio/socio.html

340-356.10 June.

³⁴ The World Health Organisation 2009 http: // www.who.int/governance/ 15^th June. The Constitution of the

World Health Organisation was adopted at the International Conference on Health on the 22^nd July 1946 and entered into force on the 7 April 1948.

³⁵ The Universal Declaration on the Eradication of Hunger and Malnutrition, 1974 was adopted on 16

November 1974 by the World Food Conference convened and endorsed by the General Assembly resolution on the 17^th December 1974.

³⁶ Article 24 (2)(c) of the Convention of the Right of the Child, 1989 provides that states parties shall

pursue full implementation of this right and, in particular, shall take appropriate measures: to combat

Elimination of all Forms of Discrimination against Women, 1979³⁷. The right to education is also entrenched in international instruments as a fundamental right. The United Nations Educational, Scientific and Cultural Organisation (UNESCO)³⁸ Convention against Discrimination in Education is one example. Its Preamble provides that the right to education is recognised by the UDHR. The purpose of the Convention is to institute collaboration among the nations with a view to furthering for all universal respect for human rights and equality of educational opportunity. The right to education is also enshrined in specific international documents dealing with the protection of vulnerable groups. The Convention on the Rights of the Child, 1989 once more contains a provision pertaining to the progressive realisation of the rights of child to education³⁹.

diseases and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution.

³⁷ The Convention on the Elimination of All Forms of Discrimination against Women, 1979 was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by its provisions. Article 12(2) of the Convention on the Elimination of All Forms of Discrimination against Women, 1979 reads as follows: «Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation».

³⁸ The United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention against Discrimination in Education, 1960 was adopted by its General Conference at its eleventh session in Paris on the 14^th December 1960.

³⁹ Article 23 (3) and (4) of the Convention of the Right of the Child, 1989 states that: « State parties shall....

ensure that the disabled child has effective access to and receives education, training, health care services, ...in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development ; States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services,...».