“Reasonableness” is a standard of review often used for by courts for making a determination as to the constitutionality or lawfulness of legislation and regulations, particularly in common law jurisdictions, and through which judges will assess whether the questioned law or practice can be justified vis-à-vis the objectives targeted and the constitutional rights to be protected.
The standard of “reasonableness” may be invoked in a variety of contexts and for different purposes in ESC rights litigation. Not all such invocations are identical or parallel concepts, so importing the standard from one case to another will not always be appropriate. The degree of deference to the choices of legislative and administrative authorities will also vary significantly. Still, it is striking to note how often one variant or another of the concept has been relied upon by judicial and quasi-judicial bodies, especially in cases involving positive obligations of the State to fulfil ESC rights.
In the area of ESC rights litigation, the South African jurisprudence has played a particular exemplary role, especially the Grootboom case from the Constitutional Court of South Africa. Examining the constitutional right to adequate housing, the Court held that the State’s housing policy was unreasonable and unconstitutional because it focused on long-term development of housing, but did not provide shelter for those who were currently homeless. The Grootboom case has been influential in development of the doctrine of the South African Court and of judicial and quasi-judicial bodies beyond South Africa when deciding on cases of positive obligations in the area of ESC rights.
Especially in the absence of harmonized domestic understandings and uses of the standard of reasonableness, it is interesting to consider developments at the international level. In this perspective, it is important to note that a reasonableness test was included in the Optional Protocol to ICESCR. Under article 8.4 the Committee on Economic, Social and Cultural Rights (CESCR) shall consider the “reasonableness” of the steps taken by the State Party in accordance with the rights laid out in the ICESCR. 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 ICESCR. In a 2007 statement issued to inform the negotiations of the Optional Protocol to the ICESCR, the CESCR gave some indications as to what criteria would be considered in assessing what measures taken by States could be deemed “adequate or reasonable”:
“In considering a communication concerning an alleged failure of a State party to take steps to the maximum of available resources, the Committee will examine the measures that the State party has effectively taken, legislative or otherwise. In assessing whether they are “adequate” or “reasonable”, the Committee may take into account, inter alia, the following considerations:
- The extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights;
- Whether the State party exercised its discretion in a non-discriminatory and non-arbitrary manner;
- Whether the State party’s decision (not) to allocate available resources was in accordance with international human rights standards;
- Where several policy options are available, whether the State party adopted the option that least restricts Covenant rights;
- The time frame in which the steps were taken;
- Whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups and, whether they were non-discriminatory, and whether they prioritized grave situations or situations of risk.”
Application of the reasonableness test – Examples of variations in different jurisdictions
In certain instances, a stricter test of “rationality”, rather than reasonableness has been adopted to assess the propriety of a restriction on an ESCR right. For example, in the US Supreme Court case of USDA v. Moreno, the Court declared that an agency assistance program was “wholly without any rational basis” when it denied food stamps to any household containing a person who was not related to the other members of the household. Evidence suggested that the law had been enacted to prevent persons from alternative communes from applying for social assistance.
In Eldridge v. British Columbia (Attorney General)  3 S.C.R. 624, the Supreme Court of Canada, found that the Government had failed to demonstrate that it had a reasonable basis for denying medical interpretation services in light of their costs. In order to justify a limitation of a Charter right, the Government must establish that the limit is ‘prescribed by law’ and is ‘reasonable’ in a ‘free and democratic society’.
In Lindiwe Mazibuko & Others v. City of Johannesburg & Others, further detailed below, a case alleging violation of right to have access to sufficient water under section 27 of South-African Constitution, the Constitutional Court held that the right of access to adequate water did not require the State to provide upon demand every person with adequate water, but rather required State to take reasonable legislative and other measures to realize achievement if the right within available resources.
→ Residents of the Joe Slovo Community, Western Cape v. Thubelisha Homes and others, 2010 (3) SA 454 (CC)
- 245. “Reasonableness”, “Unreasonableness” or even “rational basis review” are different but close standards of review used in various jurisdictions. For a more exhaustive account see B. Griffey, The ‘Reasonableness’ Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, in Human Rights Law Review 11:2 (2011), pp. 275-327, at pp. 305-309.↵
- 246. The full decision is accessible at: http://www.constitutionalcourt.org.za/Archimages/2798.PDF. For a case study see ICJ Justiciability Study, pp. 38-39.↵
- 247. The reasonableness standard was adopted, after some negotiation, by the open-ending intergovernmental Working Group elaborating the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 10 December 2008, entered into force 5 May 2013), G.A. res. 63/117 [hereinafter OP-ICESCR] based partly on the South African experience. See B. Porter, The Reasonableness of article 8(4) – Adjudicating Claims from the Margins, Nordic Journal for Human Rights, Vol.27, No.1, pp. 39-53 (2009).↵
- 248. See ICJ Commentary on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, pp. 80-84, accessible in English, Spanish and French at: https://www.icj.org/comentario-del-protocolo-facultativo-del-pacto-international-de-derechos-economicos-sociales-y-culturales-commentary-to-the-optional-protocol-on-economic-social-and-cultural-rights/; and B. Griffey, supra note 245.↵
- 249. Committee on Economic, Social and Cultural Rights, Statement: “An evaluation of the obligation to take steps to the “maximum of available resources” under an optional protocol to the covenant”, UN Doc. E/C.12/2007/1 (2007), para. 8.↵
- 250. US Department of Agriculture v. Moreno, 413 US 528 (1973).↵
- 251. Lindiwe Mazibuko & Others v. City of Johannesburg & Others, Case CCT 39/09,  ZACC 28, Constitutional Court of South Africa (2009).↵