Research Paper October 2017 Minimum Core Obligations: Human Rights in the Here and Now Professor John Tasioulas 2 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW Minimum Core Obligations: Human Rights in the Here and Now Professor John Tasioulas Research Paper | October 2017 Commissioned by the Nordic Trust Fund The World Bank Disclaimer: The findings, interpretations, and conclusions expressed in this study are entirely those of the authors. They do not necessarily represent the views of the World Bank and its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent. III Contents Executive Summary...........................................................................................................................................V 1. Introduction...................................................................................................................................................1 2. The Formative Aim of International Human Rights Law: Realizing Universal Moral Rights............4 3. ‘Minimum Core’: A Taxonomy of Senses.................................................................................................. 9 4. Minimum Core: Obligations of the Here and Now.................................................................................12 The Concept of a Minimum Core Obligation.................................................................................................................. 12 The Value of the Minimum Core Doctrine....................................................................................................................... 14 5. Other Interpretations: Special Value, Non-Derogability, Justiciability............................................ 16 6. Specifying the Content of the Minimum Core Obligations................................................................ 20 1. A plurality of types of obligations may in principle feature in the minimum core of a given human right. .............................................................................................................. 20 2. Minimum core obligations are a sub-set of human rights obligations and must meet both general and specific constraints ....................................................................................... 21 3. An invariant or variable standard? ...............................................................................................................................23 4. An illustration: the obligation to prevent hunger.................................................................................................. 24 7. Responding to Objections: Excessively Rigid and Counterproductive?..........................................27 Excessively Rigid?....................................................................................................................................................................... 27 Counterproductive?. .................................................................................................................................................................. 28 8. Indicators and Benchmarks: Tools for Monitoring and Implementation......................................... 30 9. Conclusion..................................................................................................................................................32 IV Nordic Trust Fund (NTF) is a knowledge and learning initiative to help the World Bank develop a more informed view on human rights. It is designed to improve existing Bank involvement on human rights in the overall context of the Bank’s core mission of promoting economic growth and poverty reduction. The NTF is managed by a secretariat in the Operations Policy and Country Services vice-presidency (OPCS). Financial and staff support for the NTF is provided by Denmark, Finland, Iceland, Norway, and Sweden, with additional funding provided by Germany. E x ecutive Summa ry V Executive Summary • Foundations: The formative point of internation- with in full by all states. Minimum core obligations, al human rights law (IHRL) is to give effect to a so understood, are obligations of ‘immediate effect’ background morality of human rights, but only to which the doctrine of ‘progressive realisation’ insofar as it is appropriate to do so through the is inapplicable. technique of assigning individual legal rights to On the view defended in this Framework Report, all human beings. The morality of human rights it is not a defining feature of minimum core obli- consists in universal moral rights, i.e. moral rights gations that they are justiciable, non-derogable possessed by all human beings simply in virtue of or that they enjoy a special connection to an their humanity. Central to the distinctive nature of underlying value, such as human dignity or basic moral rights is that their normative content is given needs. Whether a given minimum core obligation by associated obligations. Although a variety of is, or should be, justiciable or non-derogable, or considerations (human dignity, needs, universal whether it has a special connection to a particular interests, etc.) typically ground human rights, the underlying value, is a further matter to be assessed process of establishing their counterpart obliga- on the merits, case-by-case. tions is sensitive to what is feasible, in the sense of possible and not unduly burdensome. Human • Value: Minimum core obligations help address rights are a crucial element of the objectives of the problem of how to prioritize compliance with sustainable development, but they do not exhaust human rights obligations in the context of resource those objectives. limitations by setting a minimum standard that applies to all states irrespective of differences • Concept: Civil and political human rights, such among them. This minimum standard specifies as those set out in the International Covenant on those obligations associated with economic, social Civil and Political Rights, are generally interpreted and cultural rights that all states must immediately as imposing obligations of ‘immediate effect’. By comply with in full. contrast, the rights set out in the International Covenant on Economic, Social and Cultural Rights • Content: The content of minimum core obligations are subject to a doctrine of ‘progressive realisation’ is to be determined by a process that reflects the (Article 2(1)) that enables them to be complied following considerations: with over time in light of available resources). ‘Min- a. The potential plurality of types of obligations imum core obligations’, however, are the sub-set of comprehended in the core, e.g. obligations to obligations associated with economic, social and respect, protect, fulfil, primary and secondary cultural rights that must be immediately complied obligations. Among the secondary obligations, • Challenges: Two major challenges to the doctrine it is worth highlighting the role of obligations of minimum core obligations are outlined and to seek assistance on the part of a state addressed: unable to satisfy its primary minimum core a. Although minimum core obligations set an obligations, and corresponding obligations invariant standard that applies to all states, to provide assistance on the part of states or rather than one that varies in line with resource other agents in a position to assist the state differences among them, it does not render in question. human rights law unduly inflexible in respond- b. Constraints on human rights obligations gen- ing to contextual differences among states in erally, and minimum core obligations in partic- the application of human rights norms; and ular, e.g. (i) what properly belongs within the b. Although it is possible that the minimum scope of a given human right, (ii) constraints of core doctrine generates a risk that it will be feasibility, including possibility of compliance counter-productive in relation to the objective and whether imposition of a given obligation of compliance with human rights obligations would be unduly burdensome, and (iii) the generally, there are plausible ways of minimiz- holistic constraint of consistency with other ing this risk. obligations, including other minimum core obligations which must also be complied with • Indicators and Benchmarks: Well-crafted indi- immediately and in full; cators and benchmarks are potentially valuable c. The invariance of the content of minimum core statistical tools for monitoring compliance with obligations across different states despite vari- human rights obligations, including minimum core ations in resource endowments among them. obligations, and enhancing future compliance. Minimum core obligations are a uniform set of Among other things, their judicious employment obligations that specify the minimum all states may help ameliorate the risk that identifying cer- are required to do by way of immediate compli- tain obligations as belonging to the ‘core’ may be ance with economic, social and cultural rights. variously counter-productive in effect. The substantive content of these obligations does not vary from state to state. A schematic account is offered of the derivation of a specific minimum core obligation: the obligation to prevent hunger under the right to adequate food. * For helpful comments on previous drafts I am grateful to Aris Panou, Siobhan McInerney-Lankford, Philip Alston, Angelina Fisher, Martin Scheinin, Margot Salomon, Makau Mutua, Eric Posner, Tom Ginsburg, Martha Nussbaum, Richard McAdams, Colleen Murphy, Max Harris, Konstantinos Kalliris, Tienmu Ma, and Brian Citro, as well as to audiences at NYU’s Centre for Bioethics, Fordham Law School, the University of Chicago Law School and the Dickson Poon School of Law, King’s College London. I ntroduction 1 1. Introduction T he doctrine of the ‘minimum core’ (MCD) has in recent decades achieved prominence within international human rights law (IHRL) and practice. This enhanced profile is largely attributable to the activities of the United Nation’s Committee on Economic, Social and Cultural Rights (henceforth, ‘the Committee’). As this origin indicates, the MCD has been articulated in relation to the sub-set of human rights, usually denominated as ‘economic, social and cultural rights’, that are set out in the International Covenant on Economic, Social and Cultural Rights (henceforth, ‘the Covenant’).1 In addition, some regional and domestic legal regimes, notably in Africa and South America, have recognised some version of the MCD in relation to constitutional or legal rights.2 However, this report will almost exclusively concentrate on the nature and value of the MCD as it has developed within international law and practice. 1  International Covenant on Economic, Social and Cultural Rights, In spite of the currency enjoyed by the MCD, two caveats GA Res 2200 (XXI) A (UN Doc A/6316) at 49 (Dec. 16, 1966). are worth stating at the outset. First, it is not yet obviously a 2  See, for example, Inter-American Commission on Human Rights, binding norm of international law, hence its characterization Press Communique No. 14/93, in Annual Report of the Inter-Ameri- can Commission on Human Rights 1993, IACHR Doc OEA/SER.L/V/ as a ‘doctrine’ should not be taken to convey that status. If II.85 Doc. 9 rev (11 February 1994) 603-4 and African Commission the MCD is a sound interpretation of the Covenant, then it on Human and Peoples’ Rights, Principles and Guidelines on the is legally binding on all states parties. But its interpretative Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para.16 http://www.achpr. correctness is not guaranteed simply in virtue of the Com- org/files/instruments/economic-social-cultural/achpr_instr_guide_ mittee’s endorsement. Instead, it largely depends on whether draft_esc_rights_eng.pdf the MCD coheres with the text, established interpretations, 3  The most extensive scholarly treatment, in K. Young, ‘The Mini- and underlying objectives of the Covenant. Alternatively, it mum Core of Economic and Social Rights: A Concept in Search of Content’ Yale Law Journal 33 (2008): 113, 173, questions its standing may come to acquire the status of binding law either through and utility as a legal doctrine, proposing that it is best seen as a being explicitly incorporated into a formal treaty or by evolving tool in the armoury of political advocacy. Other sceptical accounts into a norm of customary international law. Whether either of the MCD include: E. De Wet, The Constitutional Enforceability of Economic and Social Rights: The Implications of the German of these developments transpire in the future will depend Constitutional Model for South Africa (Durban: Butterworths 1996); on whether the MCD receives widespread endorsement M. Harris, ‘Downsizing rights: why the ‘minimum core’ concept from states, which in turn will largely be a function of the in International Human Rights Law should be abandoned’, Public Interest Law Journal of New Zealand 1 (2013): 169; and M. Tushnet, perceived attractiveness of the normative idea to which it ‘Social Welfare Rights and the Forms of Judicial Review’, Texas Law gives expression. Second, even leaving aside the issue of its Review 1 (2013); 169. More positive accounts of the MCD, but with legal status, a cursory investigation reveals that the MCD is variations in how they interpret the doctrine, can be found in: D. heavily contested among both practitioners and scholars as Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford: Oxford University to its meaning, practical implications, and even its ultimate Press, 2008); S. Fredman, Human Rights Transfomed: Positive Rights coherence and utility. Indeed, there have been various calls and Positive Duties (Oxford: Oxford University Press, 2008), p.84; to jettison the doctrine, or at least to downgrade its role.3 J. Tobin, The Right to Health in International Law (Oxford: Oxford University Press, 2012). 2 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW Both caveats suggest that in order to achieve a clearer and cultural human rights. The section also expands on the view of the MCD, we need to go back to basics. In particular, practical value of the minimum core obligations concept, i.e. we must begin our inquiry with an account of the nature it helps address the difficult question of priority setting in and purpose of IHRL in general. Only in this way can we situations in which resource limitations make it inappropriate properly grasp the valuable role minimum core obligations to require immediate and full compliance with all human play, or should come to play, within IHRL. This Report will rights obligations. Moreover, it does so by establishing a proceed in the following manner: universal standard applicable to all states. In section 2, an account is offered of the formative point In section 5, it is argued that interpretation (a), standing of IHRL in general. The primary goal of this domain of law, alone, offers the best account of the MCD. We should not it is argued, is to secure universal moral rights through the conjoin (a) with any of the interpretations (b), (c), or (d) in technique of conferring legal rights upon all human beings. characterizing the concept of a minimum core obligation. Hence, understanding the idea of a universal moral right is Interpretation (b) is primarily of theoretical interest, lacking key to understanding the point of IHRL, and central in turn the practical significance needed to be incorporated into the to understanding a universal moral right are the duties or MCD. Interpretation (c), in terms of non-derogability, lacks obligations that constitute its normative content. The vio- sufficient grounding in existing practice and would render lation of these obligations renders one blameworthy, and the MCD less flexible in responding to changing circum- their existence and content depend, among other factors, stances. Finally, claims about the justiciability of minimum on considerations of feasibility, including those relating to core obligations are helpfully understood as best practice what it is possible and not unduly burdensome to demand recommendations, rather than as obligations inherent in of putative obligation-bearers. Human rights, so understood, the MCD. On this view, it is to be decided on the merits, are vital elements in an adequate account of sustainable on a case by case basis, whether a given minimum core development, but they do not exhaust all of the value con- obligation is best construed as non-derogable or as apt for siderations bearing on such development. judicial enforcement. Neither conclusion follows simply In section 3, the concept of minimum core obligations from the characterization of an obligation as belonging to of human rights is explored, i.e. what it is that marks out the ‘minimum core’. such obligations among other human rights standards. Four Having outlined the concept of a minimum core obli- possible senses of ‘minimum core obligations’ are identified, gation, section 6 addresses the difficult question of how to which may be combined in various ways: (a) that sub-set of determine the content of such obligations. It sketches three obligations corresponding to economic, social and cultural main guidelines: (1) a plurality of types of obligations may human rights that must be immediately complied with in in principle feature among the minimum core obligations full by all states, irrespective of differences in the level of of a given human right; (2) minimum core obligations are resources that exist among them; (b) those human rights a sub-set of human rights obligations and must satisfy both obligations whose content or justification bears a special general and specific constraints pertaining to the proper scope connection to some underlying, high-priority ethical value, of a given human right, the possibility of compliance, the such as human dignity or basic human needs; (c) a sub-set imposition of an obligation not being unduly burdensome, of non-derogable human rights obligations, such that no and a holistic constraint of consistency with other obligations; competing considerations can ever justify a state’s non-com- and (3) the MCD constitutes an invariant standard across pliance with them, even in an emergency; and (d) those different societies, irrespective of their differences in levels human rights obligations that are or should be justiciable, of available resources; in this way, the content of obligations i.e. enforceable through domestic or supranational courts. of ‘immediate effect’ is truly universal rather than variable in Drawing, in particular, on the Committee’s General Com- light differential resource endowments. It is emphasised that ment 3, section 4 contends that the main gist of the MCD pure moral reasoning is seldom able to give a fully determinate is given by interpretation (a). On this view, minimum core specification of any rights-based obligation, and that further obligations belong to the sub-set of human rights obligations determinacy may be sought through some process of social that all states must fully comply with immediately irrespec- decision, such as law. The section concludes by illustrating tive of the resource differences that exist among them. So how the foregoing considerations can be deployed to justify understood, the MCD serves to draw a limit to the operation a minimum core obligation to prevent hunger. of the doctrine of progressive realization which otherwise bears on the time-frame for compliance with economic, social I ntroduction 3 Section 7 responds to two major challenges confronting its being misunderstood or misappropriated. Finally, section the MCD as it has been interpreted in this report: (1) that 8 briefly examines how indicators and benchmarks are in seeking to specify an invariant standard of human rights statistical tools that can help monitor and enhance compli- assessment for all states, the MCD is overly rigid, lacking ance with minimum core obligations. Not being subject to a due sensitivity to important contextual factors that vary rule of law requirements, these tools can circumvent certain significantly from one state to another; and (2) that even if problems of compliance that afflict exclusive reliance upon there is a strong case in principle for the MCD, the attempt legal or regulatory standards. to give it legal effect is liable to be counter-productive due to 4 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW 2. The Formative Aim of International Human Rights Law: Realizing Universal Moral Rights IHRL’s formative aim: to realize universal moral rights to what extent human rights are best realized through any through assigning individual legal rights to all. IHRL is given legal regime.5 that department of international law whose formative aim Although human rights are fundamentally moral stan- is to realize independent moral human rights through the dards, often compelling reasons exist to seek to realize technique of assigning individual legal rights to all human them through law, e.g. to embody them in law, to make beings insofar as it is appropriate to do so. The distinct them justiciable or in some other way legally enforceable. identity of IHRL consists in the fact that it seeks to deploy The need for the ‘legalization’ of human rights can arise a specific legal technique in order to give effect to a specific from various sources: (i) to make a clear public declaration ethical notion. This is the idea of a universal moral human of commitment to these rights; (ii) to specify their content right, i.e. a moral right that possessed by all human beings more precisely than is possible through pure moral reasoning, simply in virtue of our humanity. Of course, IHRL is not the e.g. by selecting one formulation of the right from a range only area of international law that is concerned with human of eligible possible formulations; (iii) to address societal dis- rights, understood as universal moral rights. Norms such as agreement about the existence and content of such rights by those prohibiting the use of force and intervention are also in significant part justified by the way they serve human rights, for example, by erecting barriers to aggressive wars 4  A. Sen, ‘Human Rights and the Limits of Law’, Cardozo Law Review or the collapse of established social order into anarchy. But 2 (2006): 913–927 and J. Tasioulas, ‘On the nature of human rights’, in G. Ernst and J.C. Heilinger (eds), The Philosophy of Human Rights: IHRL is distinguished from other domains of international Contemporary Controversies, (Berlin: de Gruyter, 2012): 17, pp. 40-57 law in two ways: (a) the realization of human rights is its There is a different philosophical perspective according to which primary concern, and (b) it pursues this concern through human rights are essentially moral grounds for legal enactment, the distinctive legal technique of attributing universal legal e.g. J. Habermas, The Postnational Constellation (Cambridge: Polity Press, 2001), p. 122 and J. Raz, ‘Human Rights in the Emerging rights to all human beings. World Order’, Transnational Legal Theory 1 (2010): 31- 47, p. 43. Human rights are fundamentally moral in character, but 5  This anti-legalist point is vividly illustrated by the UN’s General there may be good reasons for their legalization. A human Principles on Business and Human Rights (2011) available at http:// www.ohchr.org/Documents/Publications/GuidingPrinciplesBusi- right, at this most basic level, is not an inherently legal nessHR_EN.pdf The GPs are moral-political norms, not legal prin- notion: human rights do not owe their existence to legal ciples imposing legal obligations on corporations, and the model recognition, nor does the existence of a human right always of ‘polycentric governance’ that they presuppose envisages judicial redress as only one method of enforcement among others. The point generate a strong reason to enshrine it in law, let alone to is also supported by studies that indicate that the constitutionaliza- make it justiciable.4 Hence, compliance with human rights tion of socio-economic rights, such as the right to health, has been is not automatically to be equated with compliance with counter-productive in some jurisdictions, especially in having the some body of human rights law, whether actual or advis- effect of shifting health resources from poorer to richer segments of society, see e.g. O. Ferraz, ‘The right to health in the courts of able. It is always a further question, to be determined by Brazil: Worsening health inequities?’ Health and Human Rights 11 moral deliberation in the light of prevailing circumstances, (2009): 33–34. The Formative Aim of I nternationa l H u ma n Rig hts Law: Rea li z ing Universa l Mora l Rig hts 5 laying down an authoritative standard, ideally one arrived at their interest is not sufficient to impose an obligation on others by means of an inclusive and transparent process; and (iv) to acquiesce in such compulsory acquisition. Unfortunately, to bolster compliance with human rights through various the distinction between a right and an interest has often mechanisms of domestic and international legal enforcement. been neglected both in IHRL and in human rights discourse (‘Enforcement’ here should be interpreted widely so as to more generally. One consequence has been an unprincipled include sanctions such as criticism and shaming in addition proliferation in the number of rights recognised and, more to coercive enforcement mechanisms). In virtue of one or commonly, an unjustifiable expansion of the presumed more of the considerations (i)-(iv), there is often a compelling content of any given right. justification for the enactment of human rights laws, and Given that what is at issue are moral obligations cor- the creation of sustaining practices and institutions, over responding to universal moral rights, there is no reason in and above any commitment to the morality of human rights. principle to restrict the bearers of these obligations exclusively A number of instruments, often collectively referred to as to states. Individuals, corporations, international organiza- the ‘International Bill of Human Rights’, play a fundamental tions and other agents may also be directly subject to human role in IHRL. The most basic document is the Universal rights obligations. The UN’s General Principles on Business Declaration of Human Rights (1948) 6 which, officially, and Human Rights, which directly impose human rights is not legally binding but merely hortatory, although its obligations on corporations, are powerful recent testimony provisions have achieved binding legal status by evolving to the pluralism of human rights at the level of duty-bear- into norms of customary international law or through their ers. This pluralism is especially important insofar as some incorporation into subsequent legally binding treaties. The of the statist assumptions that underpinned thinking about two other instruments which make up the ‘International Bill human rights in the middle of the previous century have of Human Rights’, and which give legal force to many of the come under strain in an era of globalization in which the provisions of the Universal Declaration, are the International capabilities of states have been eroded while those on some Covenant on Civil and Political Rights (ICCPR) (1966)7 and non-state actors, such as multinational corporations, have the International Covenant on Economic, Social and Cultural been correspondingly magnified. Rights (1966). As noted previously, the doctrine of minimum Human rights grounded in a plurality of values. The eth- core obligations has been developed by the Committee in ical foundations of human rights is a matter of controversy relation to the economic, social and cultural rights set out in among theorists. On the view adopted herein, human rights the latter Convention. In addition, a number of other, more are not grounded solely in one kind of normative consider- specifically focussed conventions make important contribu- ation (e.g. basic needs, freedom, dignity) but in a plurality tions to IHRL, such as the Convention on the Elimination of considerations. In particular, both universal human inter- of all Forms of Discrimination against Women (1979),8 the ests (e.g. knowledge, health, friendship, accomplishment, Convention Against Torture (1984),9 and the Convention on play, etc) and the idea of human dignity (the intrinsic and the Rights of the Child (1989).10 non-derivative value of each individual human being who Human rights have counterpart duties. To grasp the point has these interests) figure in the grounds of human rights. If of IHRL, therefore, we must begin by elaborating the idea this is correct, any given human right will typically serve a of a universal moral right. A key consideration is that rights variety of interests, and not just the interest that may feature involve counterpart duties or obligations (these terms are in its description, e.g. the rights to health and education. One used interchangeably). They are not merely interests whose fulfilment would be beneficial, but moral requirements that, 6  Universal Declaration of Human Rights, GA Res 217A (III), UN in the absence of justification or excuse, we are blameworthy Doc A/810 at 76 (1948). 7  International Covenant on Civil and Political Rights (ICCPR), in the event that we do not satisfy them. This follows from 999 UNTS 171, adopted 16 December 1966, entered into force 23 the fact that human rights involve counterpart obligations March 1976. that it is wrongful to violate. The right to health, for example, 8  Convention on the Elimination of All Forms of Discrimination does not extend as far as the interest in health. There are against Wimen (CEDAW), GA Res 54/180, UN GAOR 34th session Supp No 46, UN Doc A/34/46 (1980), adopted 18 December 1979, many things that would greatly enhance a person’s interest in entered into force 3 September 1981. health but to which they do not have a right e.g. being able 9  Convention Against Torture and Other Cruel, Inhuman or Degrading to compulsorily acquire the spare healthy kidney of another Treatment or Punishment, UNTS vol. 1465, p.5, adopted 10 December when they are in urgent need of a transplant. This is because 1984, entered into force 26 June 1987. 10  Convention on the Rights of the Child, A/RES/44/25, adopted 20 November 1989, entered into force 2 September 1990. 6 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW reason that this is so is that the fulfilment of some interests human rights is a utopian exercise in constructing a ‘wish list’ (e.g. health or knowledge) also has instrumental value, as a of goods that is unchecked by limitations on individual and means to the fulfilment of others interests (e.g. friendship, societal capacities and resources. The process of specifying accomplishment, etc).11 the content of individual human rights is holistic in charac- The scope of human rights defined by the subject-matter ter, reflecting the good sense in the idea of the ‘indivisibility of their associated obligations. The scope of human rights and interdependence’ of human rights. The content of one concerns the subject-matter of each human right: where one human right, e.g. to health, must be specified in a manner human right ends and another begins. Although this too is than renders it generally consistent with the content of other a contested topic, the preferable view is that human rights human rights, e.g. to bodily security. In other words, it must are individuated by the subject-matter of their associated be generally practically feasible for duty-bearers to comply obligations, not by the interests or values that they protect. with all the obligations associated with human rights. Consider, by way of illustration, the human right to health. In this process of specifying duties associated with human It protects a variety of interests, including, but not limited to, rights, it is important to appreciate how discontinuities the interest in health. This is in part because, as mentioned between human rights morality and IHRL may properly arise. above, health itself is instrumental to the realization of a Although the formative idea animating IHRL is that of giving number of other interests. But the right to health’s scope of effect to background moral human rights, it does not follow concern is determined by the subject-matter of the obligations that the rights properly established in law ought straightfor- associated with it, which primarily concern three matters: wardly to reproduce the content of those in human rights the provision of medical services, public health measures morality. Recall that IHRL should give effect to the morality and some of the social determinants of health.12 of human rights, through the technique of assigning legal This is a more constrained interpretation than the max- rights to all human beings, only insofar as it is appropriate imalist view of the scope of the right to health evident in to do so. This italicised proviso highlights the fact that often General Comment 14.13 According to maximalism, the right strong principled and pragmatic reasons exist why IHRL to health ‘subsumes’ or ‘includes’ such health-protecting should not simply mirror in content the morality of human rights as the right not to be tortured or subjected to degrad- rights. For example, some of the obligations associated with ing treatment, the rights to non-discrimination and political moral human rights may pertain to private matters—person- participation, etc. The error here is to assume that all rights al fidelity, family arrangements, etc—into which the state partly justified by the interest in health form part of the right should not intrude, since they do not fall within the remit to health. The advantages of the more constrained approach of the state’s concern with the public good. Moreover, IHRL, that is adopted herein include the following: (a) it explains as with any body of law, must be alert to the potentially why there is a list of distinct rights, and (b) it generates a counter-productive consequences of the direct legalization of more specific and practicable standard of assessment when seeking to determine the level of compliance with a given 11  For an elaboration of this pluralistic account of the grounding human right. This more constrained approach also seems of human rights, see J. Tasioulas, ‘On the foundations of human to be adopted in the Committee’s General Comment 13, on rights’, in R. Cruft, M. Liao, and M. Renzo (eds.), Philosophical the human right to education.14 foundations of human rights (Oxford: Oxford University Press): Specifying the content of human rights duties: possibility 45-70. Other approaches are discussed in the introduction to this volume, which gives a comprehensive overview of the state of the and burden. The normative content of a given human right art in the philosophy of human rights. consists primarily in the duties or obligations corresponding 12  See J. Tasioulas and E. Vayena, ‘The Place of Human Rights and to it. The proper way to specify this content is, as with the the Common Good in Global Health Policy’, Theoretical Medicine and Bioethics 37 (2016): 365-382, at pp.369-73, available at https:// questions of grounds and scope, a matter of considerable link.springer.com/article/10.1007/s11017-016-9372-x disagreement. However, two major factors that plausibly 13  CESCR General Comment No.14: The Right to the Highest Attain- determine the existence and shape of these obligations are able Standard of Health (Art. 12), E/C.12/2000/4, adopted at the considerations of possibility and burden.15 Both bear on the 22nd session of the Committee on , Social and Cultural Rights, on 11 August 2000 para.3. feasibility threshold that has to be crossed for considerations 14  CESCR General Comment No.13: The Right to Education (Art. relating to individual interests and human dignity to generate 13), E/C.12/1999/10, adopted at the 21st session of the Committee on not only reasons for action but obligations. Both of these Economic, Social and Cultural Rights, on 8 December 1999, para.57. 15  The role of these considerations in shaping the obligations asso- factors give substance to the maxim that ‘ought implies can’. ciated with human rights is further discussed in J. Tasioulas, ‘On They give the lie to the familiar accusation that talk about the Foundations of Human Rights’. The Formative Aim of I nternationa l H u ma n Rig hts Law: Rea li z ing Universa l Mora l Rig hts 7 moral principles. These include the generation of widespread neatly fit into this schema for two reasons. First, as we saw, social disruption and attitudes of disrespect towards the law even though human rights typically protect human interests, and legal institutions. This is an especially salient concern they are not reducible to those interests. Human rights are in relation to IHRL given the ideological heterogeneity that not primarily a welfarist notion, but a moral one. Otherwise prevails within the international community of states. put, human rights represent the extent to which the dignity Both cases just adverted to are instances in which IHRL is and interests of individuals generate moral duties on others justifiably more restrictive that the morality of human rights; to serve those values in particular ways, e.g. by refraining but the divergence may also go the opposite way. Concerns from torturing them or by providing them with basic health about the abuse of the overwhelming coercive power at the care and education. Second, human rights are not oriented state’s disposal, for example, may counsel establishing more to the maximization of welfare but, on the contrary, often generous legal rights to a fair trial or to protection against condemn attempts to maximize welfare as morally imper- capital punishment or torture than those that exist as a mat- missible. Even if, for example, the torture of one innocent ter of pure moral reasoning, leaving in each case a healthy person would prevent the torture of two other innocent ‘margin for error’. The foregoing discussion simply gestures persons, thereby maximizing overall welfare, human rights at the potentially highly complex relationship between IHRL morality prohibits torture in this case. The mere fact that and the morality of human rights, disabusing us of the naïve greater welfare would be produced in virtue of torturing the idea that we should be seeking a one-to-one correspondence one is not of itself sufficient to justify doing so. This is not between the two bodies of human rights.16 to say that human rights can never be qualified or trumped Human rights are not exhaustive of all ethical consider- by considerations of social welfare, but only that the point ations. It is vitally important to appreciate that moral rights of qualification or trumping is not plausibly that at which (including human rights, understood as universal moral overall welfare is maximized. rights) are one ethical consideration among others. They However, it has long been recognised that the simpler do not exhaust all of the considerations that bear on how utilitarian interpretations of development as welfare maximi- individuals, corporations, states or international organizations zation rely on highly disputable premises about the nature should act. There are also prudential reasons (self-interest), of value and about the extent of our cognitive and volitional duties owed to oneself (to protect one’s health or develop capacities.18 So, the fact that human rights do not find a one’s talents), duties owed to others to which they do not hospitable environment within such interpretations is not have a counterpart right (e.g. duties of compassion or public a knock-down objection to the recognition of such rights. participation), and common goods that go beyond anything Moreover, human rights are arguably integral components claimable as a matter of right (e.g. the common good of a of development on more sophisticated accounts of the latter flourishing literary culture or of a health-conscious society).17 notion. Consider, for example, the classic definition of ‘sus- At least three consequences follow from this point. First, we tainable development’ formulated by the Brundtland Com- should not ‘inflate’ human rights to incorporate concerns mission: ‘development that meets the needs of the present that properly belong to other normative categories. Second, without compromising the ability of future generations to in assessing whether a putative human rights obligation is meet their own needs’.19 Or consider the later evolution of unduly burdensome, we also need to consider also its potential sustainable development beyond intergenerational needs in cost in terms of non-human rights based considerations, e.g. order to integrate the three elements of economic development, some common goods or non-human interests, such as those social inclusion, and environmental sustainability. Hence, in of animals. Finally, sometimes conflict situations may arise in which human rights have to be weighed not only among 16  For more extended discussions of this theme, compare A. themselves, but also against other ethical considerations, e.g. Buchanan, The Heart of Human Rights (Oxford: Oxford University the common good, environmental protection, etc. Press, 2013) with J. Tasioulas, ‘Exiting the Hall of Mirrors: Morality Human rights and development. Lastly, consider how and Law in Human Rights’ https://papers.ssrn.com/sol3/papers. human rights relate to the general rubric of development. cfm?abstract_id=2915307 17  J. Tasioulas and E. Vayena, ‘The Place of Human Rights and the Now, much here turns on how the contested notion of Common Good in Global Health Policy’, pp.375-80. development itself is to be understood. If it is given a rather 18  See, e.g. J.M. Finnis, Natural Law and Natural Rights 2nd ed. crude, utilitarian interpretation, as the goal of maximizing (Oxford: Oxford University Press, 2011) and J. Griffin, Value Judgment: overall welfare, then we cannot simply treat human rights Improving our Ethical Beliefs (Oxford: Oxford University Press, 1996). 19  Report of the World Commission on Environment and Development, as part of an account of development. Human rights do not ‘Our Common Future’, UN Doc A/42/427 (1987), p.41. 8 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW ‘The Future We Want’, the final outcome document for the as those to non-discrimination and political participation, Rio+20 Summit, sustainable development is characterized will be crucial in fleshing out the kind of ‘equitable social in the following way: development and inclusion’ that sustainable development has as its objective. For all their importance, however, human We also reaffirm the need to achieve sustainable rights cannot provide a comprehensive normative basis for development by: promoting sustained, inclusive sustainable development. Not everything we seek to achieve and equitable economic growth, creating greater regarding economic development, social inclusion and opportunities for all, reducing inequalities, rais- environmental sustainability can be intelligently articulated ing basic standards of living; fostering equitable exclusively in the language of human rights. This is perhaps social development and inclusion; and promoting most obvious in relation to environmental sustainability integrated and sustainable management of natural insofar as it incorporates vital concerns—such as the pres- resources and ecosystems that supports inter alia ervation of various species of flora and fauna—that cannot economic, social and human development while be reduced, anthropocentrically, to the way in which the facilitating ecosystem conservation, regeneration survival of these species caters to human interests, let alone and restoration and resilience in the face of new human rights. This illustrates the point, made above, that not and emerging challenges.20 all important ethical considerations are matters of human On these more sophisticated interpretations of sustainable rights. Understanding this reduces the pressure to express all development, human rights can be seen as vital components our deepest concerns in the form of human rights claims. 21 of development, but without exhausting the whole array of developmental values. So, for example, human rights are crucial in specifying the extent to which the needs of others 20  ‘The Future We Want’, UN GA Res A/Res/66/288, resolution for education, health care, food, work, and so on generate adopted by the General Assembly on 27 July 2012, p.41. obligations to fulfil them, thereby blocking the allocation of 21  See, for example, D. Wiggins, ‘Nature, Respect for Nature, and scarce resources away from those needs in order to satisfy the Human Sale of Values’, Proceedings of the Aristotelian Society mere preferences or desires. Similarly, human rights, such 100 (2000): 1-32. ‘ Minimum Core’ : A Taxonomy of Senses 9 3. ‘Minimum Core’: A Taxonomy of Senses Against the background of the account of IHRL sketched in basic forms of education is, prima facie, failing to the previous section, we can proceed to carve out the place discharge its obligations under the Covenant. If that the MCD might meaningfully play within this body of the Covenant were to be read in such a way as not law. The first question we need to address in making sense to establish such a minimum core obligation, it of the MCD is a conceptual question. What does it mean to would be largely deprived of its raison d’etre. By the characterize an obligation as belonging to the ‘minimum same token, it must be noted that any assessment core’? How do such obligations differ from their non-core as to whether a State has discharged its minimum counterparts? Only when we have secured an adequate con- core obligation must also take account of resource ceptual fix on minimum core obligations (sections 3-5), can constraints applying within the country concerned. we proceed to the question of how to specify the normative Article 2 (1) obligates each State party to take the content of the obligations that belong to the core (section necessary steps “to the maximum of its available 6). Indeed, genuine disagreements about how to specify resources”. In order for a State party to be able to the content of minimum core obligations, and about which attribute its failure to meet at least its minimum particular obligations count as belonging to the core, presup- core obligations to a lack of available resources it pose at least some agreement on the conceptual character must demonstrate that every effort has been made of such obligations. to use all resources that are at its disposition in The closest there is to a canonical formulation in the an effort to satisfy, as a matter of priority, those international sphere of the concept of a minimum core obliga- minimum obligations. tion was issued a quarter of a century ago by the Committee The starting-point in assessing the meaning, implications, in its General Comment 3 on ‘The nature of States’ parties and utility of the MCD is to arrive at a coherent and com- obligations’.22 Paragraph 10, which introduces the idea of a pelling interpretation of Paragraph 10. Investigation reveals ‘minimum core obligation’ in relation to the rights set out in a multiplicity of extant interpretations of the MCD, both in the Covenant, provides as follows (italics added): official documents and the corpus scholarly commentary, On the basis of the extensive experience gained by in addition to outright scepticism about the very coherence the Committee, as well as by the body that preceded and utility of the doctrine. Indeed, some of the scepticism it, over a period of more than a decade of examin- is itself fuelled by the unruly proliferation of competing ing States parties’ reports the Committee is of the interpretations. What, then, is it to speak of the ‘minimum view that a minimum core obligation to ensure the core obligation’ in relation to human rights? satisfaction of, at the very least, minimum essential As we have already seen, human rights norms—even when levels of each of the rights is incumbent upon every taken as a totality—are in one important sense ‘minimum’ State party. Thus, for example, a State party in which any significant number of individuals is deprived 22  Committee on Economic, Social and Cultural Rights, General of essential foodstuffs, of essential primary health Comment 3, ‘The nature of States parties’ obligations’ (Fifth session, care, of basic shelter and housing, or of the most 1990), U.N. Doc. E/1991/23, annex III at 86 (1991). 10 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW standards, since they do not exhaust all of the normative (a) Immediacy – it must be fully satisfied with considerations that bear on states and other agents (see 2, ‘immediate effect’ by all states, as opposed to above). In that sense, human rights are minimum demands belonging to that aspect of a right’s content which insofar as sound practical deliberation often needs to attend may in principle permissibly be fully complied with to more than just compliance with human rights. However, in the longer-term in accordance with the doctrine this is not the significance that ‘minimum’ has been given of ‘progressive realization’. by the most influential explications of the MCD. Instead, the MCD has usually been taken to identify a sub-set of (b) Special value – its justification or content bears demands within the total body of requirements imposed some peculiarly intimate relationship to an under- by economic, social and cultural rights. Paragraph 10 above lying, high-priority value, such as human dignity gives expression to this idea by linking the MCD not to full or basic needs required for survival. compliance with all of the obligations associated with a given human right, but rather to the fulfilment of ‘essential (c) Non-derogability – it is non-derogable as a levels’ of any such right. matter of normative force, in that it no competing How, then, is that sub-set of human rights requirements— considerations can ever justify non-compliance the ‘essential levels’ of the obligations associated with any with a human rights obligation that belongs to the given human right—to be understood? Among the various ‘minimum core’, even in an emergency. candidate explanations, it has been asserted that the MCD is that aspect of a human right’s normative content—i.e. the (d) Justiciability – it is or should be justiciable, obligations associated with it—that meets one or more of i.e. enforceable (presumably by the right-holder, the following four specifications: at least in the first instance) through domestic or supranational courts. Special value Minimum core obligations— obligation of immediate effect Non-derogable Justiciable ‘ Minimum Core’ : A Taxonomy of Senses 11 Given that all four characteristics (a)-(d), either singly reflect a special value (b), are non-derogable (c), or justi- or in various combinations, have been identified as forming ciable (d). They may or may not possess these additional the distinctive significance of the MCD, two points need features, but if they do so, it will not be simply in virtue of to be noted. The first is that the characteristics (a)-(d) are their status as elements of the ‘minimum core’. The second logically independent. Affirming any one as a hallmark of point is that the features (a)-(d) are logically compatible. In the MCD does not automatically entail the possession of any other words, there is no inherent contradiction in claiming other of the three characteristics. The features (a)-(d) do not, that the hallmark of the MCD is the joint possession or two in other words, come as an all-or-nothing package deal. So, or more of these features. The question that we must now for example, it is possible to identify the MCD in terms of address is which of these features, or which combination feature (a)—the requirement of immediate full compliance by of them, fixes the contours of the concept of a minimum all states—while denying that these obligations necessarily core obligation. 12 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW 4. Minimum Core: Obligations of the Here and Now The Concept of a Minimum Core and leges latae in his famous 1795 essay on international justice, Perpetual Peace: Obligation All of the articles listed above… are prohibitive laws According to interpretation (a), the MCD picks out those (leges prohibitivae). Yet some of them are of the aspects of the obligations associated with a given socio-eco- strictest sort (leges strictae), being valid irrespective nomic human right that must be immediately complied with of differing circumstances, and they require that the fully by all states. As the italicized words indicate, minimum abuses they prohibit should be abolished imme- core obligations possess three distinguishing features: (a) diately (Nos. 1, 5, and 6). Others (Nos. 2, 3, and immediacy: they demand immediate compliance, (b) com- 4), although they are not exceptions to the rule of pleteness: they must be fully complied with at any given time, justice, allow some subjective latitude according to and (c) universality: they bind all states (presumably, all the circumstances in which they are applied (leges states parties to the Convention) irrespective of variations in latae). The latter need not necessarily be executed wealth and other resources. On this interpretation, the MCD at once, so long as their ultimate purpose… is not is addressed to the following question: Given the existence lost sight of. But their execution may not be put of a multiplicity of human rights, and that each human right off to a non-existent date (ad calendas graecas, as typically has a multiplicity of obligations associated with it, Augustus used to promise), for any delay is per- which of these obligations must be immediately complied mitted only as a means of avoiding a premature with fully by all states? What gives point to the question is implementation which might frustrate the whole the reality that various constraints, primarily limitations on purpose of the article.23 the resources available to states, may make it infeasible to Let us now raise this question of the time-frame of com- demand that all states immediately fully comply with all pliance with respect to IHRL in general. Which human rights human rights obligations. The MCD, therefore, is a means of obligations must be immediately fully complied with by all identifying the sub-set of human rights obligations which do states? The orthodox answer importantly differs according have to be immediately fully secured by all states irrespective to the category of human right in question; in particular, of their level of development. In the language of General whether a right belongs to the ICCPR or to the Covenant. Comment 3, these are the ‘minimum essential levels’ of each The answer, in the case of civil and political rights, is that all right that all states must immediately fulfil. of them must be immediately and fully complied with by all So understood, the MCD gives expression to an intuitively states. As the Human Rights Committee stated in its General compelling idea, one that is neither especially novel nor Comment 31, para.14, the ICCPR requires that ‘unqualified’ technical. It is addressed to a question that naturally arises regarding the prioritization of the multiple obligations that bear on states. Indeed, we find the core idea clearly prefig- 23  I. Kant, ‘Perpetual Peace’ in H. Reiss (ed.), Immanuel Kant: Political ured in Immanuel Kant’s distinction between leges strictae Writings 2nd ed. (Cambridge: Cambridge University Press, 1991), p.97. Minimum Core: Obli g ations of the Here a nd N ow 13 and ‘immediate’ effect be given to all the obligations arising cultural rights. These resource constraints render it infeasi- under it.24 By contrast, the answer in the case of economic, ble—in the sense of impossible or excessively burdensome social and cultural rights laid down in the Covenant is very (second 2, above)—to require immediate compliance with different. This is due to the doctrine of ‘progressive realiza- all human rights obligations under the Convention on the tion’ set out in Article 2(1): part of all states. As para 9 of General Comment No. 3 goes on to state: Each State Party to the present Covenant undertakes to take steps, individually and through international Nevertheless, the fact that realization over time, or assistance and co-operation, especially economic in other words progressively, is foreseen under the and technical, to the maximum of its available Covenant should not be misinterpreted as depriving resources, with a view to achieving progressively the obligation of all meaningful content. It is on the the full realization of the rights recognized in the one hand a necessary flexibility device, reflecting present Covenant by all appropriate means, including the realities of the real world and the difficulties particularly the adoption of legislative measures. involved for any country in ensuring full realization of economic, social and cultural rights. On the other The Committee’s General Comment No.3, para 10, hand, the phrase must be read in the light of the on minimum core, comes directly after paragraph 9 on overall objective, indeed the raison d’être, of the ‘progressive realization’. In accordance with interpretation Covenant which is to establish clear obligations for (a), the first part of the latter paragraph explicitly contrasts States parties in respect of the full realization of the ‘progressive’ realization with obligations that must be fully rights in question. It thus imposes an obligation to ‘achieved in a short period of time’ by all states, such as move as expeditiously and effectively as possible those in the ICCPR: towards that goal. Moreover, any deliberately retro- The principal obligation of result reflected in article gressive measures in that regard would require the 2 (1) is to take steps “with a view to achieving most careful consideration and would need to be progressively the full realization of the rights rec- fully justified by reference to the totality of the rights ognized” in the Covenant. The term “progressive provided for in the Covenant and in the context of realization” is often used to describe the intent of the full use of the maximum available resources.25 this phrase. The concept of progressive realization To reprise: interpretation (a) construes the MCD in terms constitutes a recognition of the fact that full real- of a relationship with the doctrine of progressive realization. ization of all economic, social and cultural rights Even if obligations arising under the Covenant are generally will generally not be able to be achieved in a short subject to the latter doctrine, and hence may in principle be period of time. In this sense the obligation differs realized ‘over time’, there is nonetheless a core of obligations significantly from that contained in article 2 of the that must be fully complied with immediately (or in the International Covenant on Civil and Political Rights short term) by all states. These latter obligations form the which embodies an immediate obligation to respect ‘minimum core’ obligations. Regarding the core obligations, and ensure all of the relevant rights. a state cannot say that it is taking steps towards their full Now, just as with Kant’s leges latae, obligations subject realization in the medium-to-long term. Instead, they require to the doctrine of progressive realization are genuine obli- immediate full compliance, just like the civil and political gations and not merely aspirations or optional ideals. States rights relating to torture, free speech and a fair trial.26 Thus, remain under an obligation fully to comply with them even- tually, even if not immediately, and a state’s failure to ‘take 24  Human Rights Committee, General Comment No.31, ‘The Nature steps… to the maximum of its available resources’ towards of the General Legal Obligation Imposed on States Parties to the this end contravenes that obligation. Full compliance cannot Covenant’, (18th session, 2004), CCPR/C/21/Rev.1/Add.13, adopted be postponed indefinitely, to a ‘non-existent date’, thereby on 29 March 2004. 25  CESCR General Comment 13 on the right to education, para 44: depriving economic, social and cultural rights of all practical ‘The realization of the right to education over time, that is “pro- force. However, the point of the doctrine of progressive real- gressively”, should not be interpreted as depriving States parties’ ization is to register the insuperable difficulties that limited obligations of all meaningful content. Progressive realization means that States parties have a specific and continuing obligation .to resources pose for many states when it comes to complying move as expeditiously and effectively as possible towards the full immediately or in the short-term with economic, social and realization of Article 13”.’ 14 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW according to General Comment 3, the provision of ‘essential are to be complied with immediately. Since the Covenant foodstuffs’, ‘essential primary health care’, ‘basic shelter and and ICCPR feature obligations demanding ‘immediate’ housing’, and ‘the most basic forms of education’, must be compliance, yet the doctrine of progressive realization is realized immediately, even if other, non-core obligations of not supposed to extend to the latter, it seems preferable to the relevant rights may permissibly be delivered over the interpret the MCD in line with the second approach, not as longer-term. part of the doctrine of progressive realization but rather as The way in which MCD draws a limit to the general limiting its domain of operation. applicability of the doctrine of progressive realization is very clearly brought out by the Committee’s General Comment The Value of the Minimum Core Doctrine 13 on ‘The Right to Education (Art 13 of the Covenant)’, which states in paragraph 43 that “[w]hile the Covenant The concept of obligations demanding immediate provides for progressive realization and acknowledges the compliance, which is highlighted by interpretation (a) of constraints due to the limits of available resources, it also the MCD, is undoubtedly one that has very real practical imposes on States parties various obligations which are of value. It addresses a difficult and recurrent problem of immediate effect”. In similar terms, General Comment 12 on human rights compliance: how to prioritize the competing ‘The Right to Adequate Food (Art 11)’, acknowledges that demands arising from human rights obligations, whether the the right to adequate food will be realized progressively, but obligations associated with a single right or a multiplicity of then immediately enters a qualification using the language them, when resource constraints make it infeasible to comply of ‘core’ obligations: ‘However, States have a core obliga- immediately with all of these obligations. To the extent that tion to take the necessary action to mitigate and alleviate it provides an answer to this question, the MCD shows that hunger… even in times of natural or other disasters”.27 More IHRL does not simply set out a series of obligations that recently, a report by the Special Rapporteur on the right to states must comply with. It also provides valuable guidance health has endorsed what looks like a clear-cut version of on the vital, second-order question of how to prioritize com- (a): ‘The right to health imposes overlapping obligations of pliance with these obligations in cases in which immediate immediate effect on States. They include… the core obliga- compliance in full with all of them is simply infeasible in tion to ensure the minimum essential levels of the right… Immediate obligations are outside the ambit of article 2(1) of 26  For interpretations of the MCD broadly along these lines, see D. the International Covenant on Economic, Social and Cultural Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights, ch.6; S. Liebenberg, ‘South Rights. Core obligations are the minimum essential level of Africa’s Evolving Jurisprudence on Socio-Economic Rights: An Effec- a right and are not progressively realized’.28 tive Tool in Challenging Poverty?’, Law, Democracy and Development If the MCD is to be understood in relation to the doctrine 6 (2002): 159, p.176; J Tobin, The Right to Health in International of progressive realization, as interpretation (a) proposes, a Law, pp.238ff.; S. Fredman, Human Rights Transformed, p.84f. 27  CESCR, General Comment No 12: The Right to Adequate Food question remains as to the precise nature of that relation. (Art 11), (12 May 1999) UN Doc E/C.12/1995/5, para 6. In para On one view, the MCD is a component of the doctrine of 16, the Comment goes on to draw a distinction between obligations progressive realization, specifying ‘the minimum or first steps that must be immediately realized and those subject to progressive realization: ‘Some measures at these different levels of obligations of that states must take as they embark on their progressive States parties are of a more immediate nature, while other measures obligation to fully realize a given human right’.29 According are more of a long-term character, to achieve progressively the full to a somewhat different view, the MCD is not among the realization of the right to food’. Other examples: General Comment 13, on the right to education, para 57; CESCR General Comment No. initial steps required by progressive realization, but rather a 15: The Right to Water (Arts. 11 and 12), E/C.12/2002/11, adopted set of requirements that have to be satisfied immediately, and on 20 January 2003. hence are not subject to progressive realization, but which 28  ‘Right of Everyone to the enjoyment of the highest attainable instead operate as an independent threshold beyond which standard of health’, (11 August 2014) UN Doc A/69/150, para. 10. Somewhat confusingly, having said that core obligations are outside the latter doctrine may in principle apply. On this second the scope of article 2(1) on progressive realization, the report appears view, the MCD demarcates obligations of immediate com- to contract itself by speaking of ‘the immediate obligation… to take pliance in just the same sense that civil and political rights steps towards the progressive realization of rights’. 29  J. Tobin, The Right to Health in International Law, p.245. This impose such obligations insofar as they are not interpreted interpretation finds support in General Comment 13, para. 43, as subject to a doctrine of progressive realization. The key although in a way that threatens to lose the contrast between mini- point is not that these obligations are to be complied with mum core and progressive realization. Tobin preserves the contrast by limiting the minimum core to the universally necessary first steps first in a sequence of progressive realization, but that they of progressive realization. Minimum Core: Obli g ations of the Here a nd N ow 15 all the circumstances. In this way, the IHRL on economic, notice of the bare minimum that they must do with respect to social and cultural rights emerges as a more comprehensive, immediate compliance. This clarifies the normative position and sophisticated, framework for guiding state action than both of the primary bearers of human rights obligations, and many believe it to be. potentially also the bearers of secondary obligations—other Moreover, the MCD is one important means by which states or international agents ‘in a position to assist’—in cases IHRL can respond to the criticism, made by human rights where there is non-compliance with primary obligations. sceptics such as Eric Posner, that in light of the large number It is worth registering, however, that the MCD, as artic- of human rights obligations and the limited resources avail- ulated by interpretation (a), potentially is in tension with able for their fulfilment, states can always plausibly justify the idea that human rights—the totality of civil and political non-compliance with any given obligation by appealing rights, on the one hand, and economic, social and cultural to the need to comply with other such obligations. If this rights, on the other—are ‘indivisible, interdependent and criticism is sound, human rights would be largely rendered interrelated’.32 On a very strong construal of this latter idea, nugatory as a basis for both the guidance and criticism of civil and political rights cannot be fully secured unless eco- state policy. As Posner puts it: ‘The dilemma for human rights nomic, social and cultural rights are also fully secured, and enforcers is that they cannot demand that states comply vice versa. If so, civil and political rights, which as we have with all rights perfectly, but if they do not, then they have seen are all to be fully complied with immediately, must also no basis for criticizing a country’s decision to allocate more require immediate full compliance with economic, social and resources to satisfy one rather than another’.30 This problem cultural rights. This would leave no room for the ‘progressive is seemingly exacerbated, in the case of economic, social and realization’ of some obligations associated with the latter cultural rights, by the potential for self-serving invocations of category of rights, and hence no room for the idea behind the doctrine of progressive realization as a cover for present the MCD that obligations of immediate effect are only a sub- non-compliance. set of the obligations associated with these rights. However, Although by no means a comprehensive answer to chal- there are other ways out of this quandary that enable us to lenges of the kind highlighted by Posner, MCD doctrine is one preserve the MCD. One solution is to abandon the idea that mechanism through which IHRL sets a limit to permissible the obligations associated with civil and political rights are trade-offs and compliance delays in cases involving economic, all of immediate effect. Another way out is to adopt a more social and cultural rights. Human rights obligations that fall modest interpretation of the thesis that the two categories of within the ‘core’ are to be complied with immediately, hence human rights are ‘indivisible, interdependent and interrelated’. must be prioritized over those that do not belong within the In particular, it could be argued that full compliance with core. So, for example, a state cannot appeal to the need to obligations of civil and political rights, even if they are all of fulfil the human right to education by means of establishing immediate effect, requires partial but not full compliance with high-level research institutes as a justification for delaying at least some economic, social and cultural rights. Perhaps the provision of ‘the most basic forms of education’. Such most plausibly, versions of both lines of response could be an ordering of priorities is blocked by the fact that the pro- deployed in tandem. vision of primary education falls within the core of the right In conclusion, although the idea of ‘minimum core’ to education.31 does not explicitly feature in the text of the Covenant, it is There is an additional aspect to the value of the MCD arguable that it is defensible as part of an interpretation of worth noting. If the invariant interpretation of the doctrine is the Covenant that is essential to giving effect to the latter’s accepted (see section 6, below), the minimum core obligations object and purpose. are invariant across all states, irrespective of resource differ- ences that obtain among them. The MCD therefore not only 30  E. Posner, The Twilight of Human Rights Law, (Oxford: Oxford offers an answer to the pressing question of prioritization, University Press, 2014), p.92. 31  See CESCR General Comment 13, para 6f. but one that is universally applicable. It specifies a ground 32  Vienna Declaration and Programme of Action, adopted by the floor of immediate compliance with Covenant rights that World Conference on Human Rights in Vienna on 25 June 1993, binds all states. In virtue of the doctrine, all states are put on A/CONF.157/23 at I.5. 16 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW 5. Other Interpretations: Special Value, Non-Derogability, Justiciability Given its fidelity to authoritative texts and practice, its obligations a distinctive practical significance. Perhaps human conceptual coherence, and its practical appeal in securing rights requirements with this connection have a special plausible Covenant objectives, there are strong reasons to weight, e.g. they are non-derogable (as per interpretation treat interpretation (a) as the conceptual spine of the MCD. (c)). Alternatively, it may be that the connection explains Whatever else it does, the MCD picks out those aspects of why the norms in question must be immediately complied the obligations associated with Convention rights that must with by all states (as per interpretation (a)). In either case, be immediately fully realized by all states. We must now the relevant explanation would have to be produced, which consider whether any of th e interpretations (b) to (d) should is no simple task. It is, moreover, highly doubtful that the be added to (a) as elements of the MCD, bearing in mind the presence of any category of value is always sufficient to gen- earlier point (section 3) that it is logically possible to affirm erate obligations of immediate effect. Even as basic a value (a) without also embracing any of (b)-(d).33 as the preservation of life from imminent threat can fail to (b) Special value. This interpretation asserts an intimate generate an obligation, let alone a rights-based obligation connection between the MCD and certain key values, such of immediate effect, if it is not feasible (because it is impos- as human dignity or basic human interests.34 No doubt it sible or excessively burdensome) to impose an obligation may be worth isolating a ‘core’ of human rights obligations to undertake the action required to preserve life. At best, I in this way. The success of any such enterprise, however, think, an appeal to a special value could only be necessary, is by no means to be taken for granted. On the one hand, it not sufficient, to establish obligations of immediate effect. could be argued that all human rights derive from the same But even if a plausible account linking non-derogable underlying value, e.g. human dignity, hence no meaningful obligations, or those of immediate effect, to a special cat- differentiation along this dimension exists between core and egory of values were forthcoming, practical relevance will non-core obligations. Alternatively, it may be that any attempt have been secured only through forging a link with one of to isolate a privileged value basis for the core would fail because all human rights obligations are standardly grounded 33  An example of a view that seems to combine (a) with (c) and (d), in a multiplicity of considerations (as suggested in section see M. Scheinin, ‘The Concept of “Core” Rights and Obligations’, 2, above). But even if the project succeeds, it would seem in D. Shelton (ed), The Oxford Handbook of International Human to be principally of theoretical interest, lacking the practical Rights Law (Oxford: Oxford University Press, 2013), p.537 according to whom the MCD picks out ‘those dimensions of ICESCR right [that] relevance needed to justify its recognition as a legal doctrine. are immediate, not conditioned by the possible lack of resources, and After all, what would follow—as a practical matter bearing even directly applicable (justiciable)’. He connects this to a notion on what anyone was required or permitted to do—from the of ‘core’ obligations that also applies to civil and political rights. Cf. Art. 19(2) of the German Constitution which regards the core content realisation that some human rights obligations had a link of constitutional rights as incapable of being justifiably infringed. with a special category of value? 34  For a survey of some view of this kind, see K. Young, ‘The Min- Now, the proponent of interpretation (b) might reply that imum Core of Economic and Social Rights: A Concept in Search of Content’, pp.126-40. the connection to a special set of values does give certain Other I nterpretations: Speci a l Va lue, N on-Dero g a bility, Justicia bility 17 the other interpretations, e.g. in the above discussion, inter- interpretation. After all, in what sense is it meaningful to pretations (c) and (a), respectively. This conclusion suggests hold a state subject to an obligation to provide ‘essential that (b) by itself does not have enough practical significance primary health care’ or ‘the most basic forms of education’ to constitute the meaning of the MCD. It can at best play in the midst of events such as a devastating natural catastro- a subsidiary role to one of the other interpretations of that phe or a massive outbreak of armed conflict that render it doctrine. If so, it is arguably preferable to focus on those other literally impossible to do these things? Moreover, as shall be interpretations and not to characterize the MCD, in addition, discussed below, allowing derogation from minimum core by reference to (b). Instead, it will be a further matter, to obligations in extreme circumstances helps address one of be determined by substantive argument, whether or not the main objections to the MCD, i.e. that it is excessively non-derogability, say, or immediacy, bear special relations to rigid in imposing certain invariant and immediate demands a distinct underlying class of justifying values picked out in on all states (see section 8, below). Instead, it should be a the manner of interpretation (b). This would also have the further question, to be addressed on the merits on a case-by- pragmatic benefit of disentangling the concept of minimum case basis, whether any particular minimum core obligation core obligations from ongoing controversies about the value is non-derogable. Some core obligations may be derogable, considerations that generate human rights obligations. The whereas others are not. The mere fact of belonging to the concept of minimum core obligations would remain neutral minimum core category would not, on this view, automati- regarding the substantive question of the values that properly cally entail the status of non-derogability, even if it does not generate such obligations. In this way, it would exemplify the exclude that status. phenomenon of ‘incomplete theorization’ that is common, (d) Justiciability. On this interpretation, at least those and often very useful, in law.35 obligations that belong to the minimum core are or should (c) Non-derogability. According to this interpretation, no be made justiciable, i.e. enforceable through domestic or competing considerations can ever justify non-compliance international courts. The link between justiciability and with a human rights obligation that belongs to the ‘mini- minimum core obligations can be formulated at varying mum core’, even in the case of an emergency. (An exception levels of strength, as the following sample versions of (d) might be permitted in the case of competing considerations exemplify, progressing from the weaker to the stronger: (i) that are themselves minimum core obligations). Perhaps minimum core obligations are in principle eligible for judicial the clearest affirmation of this interpretation is to be found enforcement, i.e. there is no general and conclusive reason in General Comment No.14, paragraph 47: ‘It should be against ever making them justiciable, (ii) in general there is stressed, however, that a State party cannot, under any cir- good reason to make minimum core obligations justiciable, cumstances whatsoever, justify its non-compliance with the albeit one defeasible in the circumstances, and (iii) it is core obligations set out in paragraph 43 above, which are mandatory to make minimum core obligations justiciable, non-derogable’.36 However, this interpretation of the MCD is although again this general requirement may be defeasible contestable. To begin with, it has limited support in practice in particular circumstances. and is in tension with General Comment 3, para. 10, which We can dismiss formulation (i) as too weak to mark out appears to countenance the possibility of justified infringement minimum core obligations, as it appears to be a character- of core obligations by a state ‘when every effort has been istic of obligations associated with human rights generally, made to use all resources that are at its disposal to satisfy, including those in the Covenant. Hence, it cannot pick out as a matter of priority, those minimum obligations’.37 Indeed, as has been pointed out, General Comment 14 itself affirms 35  C. Sunstein, ‘Incompletely Theorized Agreements’, Harvard Law such an ambitious set of obligations as part the core of the Review 108 (1995): 1733-1772. 36  The non-derogability of the minimum core of the right to health is right to health—obligations that many developed nations also affirmed in ‘Right of Everyone to the enjoyment of the highest would struggle to satisfy—that it fits poorly with the idea attainable standard of health’, (11 August 2014) UN Doc A/69/150, that these obligations are to be complied with in full by all para.11: ‘Even if an obligation of immediate effect depends on states even in emergency situations.38 resources, a State may not rely on the lack of resources as a defence or excuse for not fulfilling the obligation’. Given its patchy support in practice and the fact that there 37  The derogability of the minimum core obligations has recently been is no natural inference from the immediacy of an obligation endorsed by the Committee in recently endorsed in its Statement on to its non-derogability, it may be best to resist characteris- ‘An Evaluation of the Obligation to Take Steps to the “Maximum of ing the MCD in line with (c). Nor is it clear that there are Available Resources” under an Optional Protocol to the Covenant’, E/C.12/2007, 21 September 2007, para.6. good reasons of principle favouring the non-derogability 38  J. Tobin, The Right to Health in International Law, p.240. 18 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW the distinctive character of the MCD insofar as it identifies a of these general points suggest caution about interpreting sub-set of human rights obligations. By contrast, formulation the MCD as embodying a recommendation of justiciability. (iii) seems excessively strong in positing the existence of a second-order obligation to make minimum core obligations Conclusion. Interpretation (a), in terms of obligations that justiciable. Instead of adopting mandatory language in relation must be immediately fully complied with by all states, con- to justiciability, the Committee’s General Comments tend stitutes the essence of the MCD; the ‘core’ of the minimum to ‘encourage’ the adoption into the domestic legal order of core doctrine, as it were. As we saw above (section 4), it provisions in international instruments recognizing a given captures an idea that has a distinctive practical significance economic, social or cultural right, partly on the basis that and which does not in itself entail any of the other interpreta- domestic courts would be thereby empowered to adjudicate tions (b)-(d). The question that we have addressed is whether at least violations of the ‘core content’39 or ‘core obligations’40 the MCD should be understood as a conjunction of (a) with associated with that right. one or more of the interpretations (b)-(d). We have found The foregoing suggests that formulation (ii) has the best good reason to sideline (b), since by itself it has no practical foothold in the practice of the Committee. Again, however, significance, and could at best form part of the explanation of (b) construed along the lines of (ii) is not a sufficient spec- why a norm should be understood as (a) requiring immediate ification of the minimum core. This is because the General compliance, (c) non-derogable, or (d) justiciable. Interpreta- Comments cited above appear to envisage reasons for also tion (c) lacks sufficient support in practice and threatens to making the non-core components of economic, social and diminish the value of the MCD, leaving it vulnerable to the economic rights justiciable. Therefore, justiciability can at best criticism that it is excessively rigid. We should therefore allow work in tandem with another interpretation—most plausibly, that the derogability or otherwise of a given minimum core (a)—in demarcating the minimum core of a given right. But obligation is to be determined case-by-case, on the merits. By should the very concept of a minimum core obligation be contrast, interpretation (d) enjoys more institutional support, interpreted as including a recommendation of justiciability? especially if we interpret it as recommending, rather than The answer to this question is a matter open to reasonable requiring, the justiciability of minimum core obligations. But contestation. Two reasons militate against this view, but not given the fact that the recommendation seems to extend to conclusively so. First, insofar as (ii) embodies what is in all Convention obligations, the controversy about the utility effect a ‘best practice recommendation’, it may seem odd to of justiciable economic, social and cultural rights, and the incorporate it into the very idea of a minimum core obligation. oddness of embodying a non-binding recommendation into It might promote clear thinking to separate the question of the concept of a minimum core obligation, there is good what minimum core obligations essentially are—obligations reason to resist incorporating justiciability into the MCD. At of immediate effect, according to (a)—from non-binding best, justiciability might be taken to belong to the periphery, recommendations about how they are to be implemented. rather than the core, of the MCD itself. Second, the case for that best practice recommendation is In short, it would likely obscure the contribution of the itself open to dispute. It is widely acknowledged that the MCD in identifying obligations of immediate compliance justiciability of economic, social, and cultural rights poses to saddle it with the additional, and highly consequential, special challenges. These largely centre on concerns about implication that these obligations must also possess one or the capacity of courts, in light of judges’ limited expertise in more of the features (b)-(d). Whether any component of a matters of economic, social and cultural policy and their lack human right’s minimum core obligations does or should of a democratic mandate, to adjudicate on what the demands possess these additional qualities is, instead, a complex and of such rights are and whether they have been violated in a given instance.41 It may be, moreover, that making Covenant rights justiciable is an effective and legitimate policy in some 39  See, e.g. General Comment 12, on the right to food, para 33 and jurisdictions, given their history, institutional structure, CESCR, General Comment No.18: The Right to Work (Art. 6 of the Covenant), E/C.12/GC/18 (February 6, 2006), para 49. legal traditions, level of development and so on, but that in 40  See, e.g. General Comment 13, on the right to health, para.60. other jurisdictions it is preferable to rely on administrative 41  For a discussion of ‘important reasons not to equate the definition review, a national human rights institution or the individual of the minimum core to the decision rules leading to justiciability complains procedure under the Optional Protocol to the Cov- and remedies’, see K. Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’, pp.162-3. enant adopted by the UN General Assembly in 2008.42 Both 42  Optional Protocol to the Covenant on Economic, Social and Cul- tural Rights, GA Res. A/RES/63/117, adopted on 10 December 2008. Other I nterpretations: Speci a l Va lue, N on-Dero g a bility, Justicia bility 19 context-sensitive matter to be determined case-by-case on Step 3: Identification of the content of the obligations the balance of the legal and ethical merits. associated with a given right in light of consider- In light of interpretation (a), we can now outline sche- ations such as possibility and burden. matically the steps that have to be followed in identifying the ‘minimum core’ obligations associated with any given Step 4: Identification of the sub-set of obligations right in the Covenant: associated with the right that must be fully complied with immediately by all states (the ‘minimum core Step 1: Identification of a given human right in the obligations’) and hence do not come within the Covenant, e.g. the human right to health. doctrine of progressive realization. Step 2: Identification of the scope of that right, i.e. its Step 5: Identification of the consequences of non-ful- appropriate subject matter. For example, in the case filment of minimum core obligations, including of the human right to health, obligations pertaining secondary duties arising for the target state and to medical treatment, public health measures and other states or international agents. certain social determinants of health. Step 1 Identification of a given human right in the Covenant, e.g. the human right to health. Step 2 Identification of the scope of that right, i.e. its appropriate subject matter. For example, in the case of the human right to health, obligations pertaining to medical treatment, public health measures and certain social determinants of health. Step 3 Identification of the content of the obligations associated with a given right in light of considerations such as possibility and burden. Step 4 Identification of the sub-set of obligations associated with the right that must be fully complied with immediately by all states (the ‘minimum core obligations’) and hence do not come within the doctrine of progressive realization. Step 5 Identification of the consequences of non-fulfilment of minimum core obligations, including secondary duties arising for the target state and other states or international agents. We have already addressed Steps 2-3 (in section 2 above). Steps 4 and 5 will be considered in section 6. 20 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW 6. Specifying the Content of the Minimum Core Obligations So far we have been concerned to spell out the concept of Negative v positive obligations. Some obligations asso- a minimum core obligation: to identify the kind of human ciated with a human right require a state to desist from rights standard to which it refers. We have seen that there specified conduct (negative obligations), and are violated is a strong case for conceiving of the MCD as referring to a by the prohibited acts of commission.43 Other human sub-set of human rights obligations, i.e. those that must be rights obligations require that the state embark on some fully secured with immediate effect by all states, in accordance conduct (positive obligations), and are violated by acts with interpretation (a). This still leaves open the controversial of omission.44 Thus, the Committee has claimed, in rela- matter of what the content of the minimum core obligations tion to the minimum core of the human right to health, is, or should be, for any given human right at any given time. that there is a positive obligation to secure ‘essential Indeed, it is the challenge of giving a determinate content primary health care’,45 and a negative obligation not to to minimum core obligations that is one of the persistent undertake any retrogressive measures incompatible with sources of scepticism about the coherence and utility of core obligations under the right.46 the doctrine. However, once that concept has been fixed by reference to obligations of immediate effect, we are better Obligations to respect, protect, fulfil. Following in the placed to specify the content of minimum core obligations. footsteps on the philosopher Henry Shue’s influential In this process, we should not be surprised to discover that work on basic subsistence and security rights, the Com- the Committee has occasionally faltered when characterising mittee has also taken up the threefold classification of the content of core obligations. The real question, however, is obligations to respect, to protect, and to fulfil.47 Obliga- whether a principled basis exists for making judgments about tions to respect are primarily negative obligations that the content of minimum core obligations. In making such the state must itself comply with, such as the obligation judgments, the following three general guidelines plausibly not to deny access to health care on the basis of gen- offer such a basis for content-specification. der discrimination and the obligation not to enter into agreements with other states, international organizations 1. A plurality of types of obligations may 43  See, for example, General Comment 14, the right to health para. 48. in principle feature in the minimum core 44  See, for example, General Comment 14, the right to health, para. 49. of a given human right 45  General Comment 3, on the nature of states parties’ obligations, para 10. But for a significantly more expansive interpretation of that right’s minimum core obligations, see General Comment 14, on the Human rights doctrine has developed a number of ways of right to health, paras 43(a)-(f) and 44 (a)-(e)). 46  General Comment 14, the right to health, para. 48. categorizing the various kinds of obligations that are associated 47  H. Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign with a given human right. Any of these types of obligations Policy 2nd ed. (Princeton: Princeton University Press, 1997). See also may in principle feature in its minimum core. The manifold Maastricht Guidelines on Violations of Economic, Social and Cultural categorizations include the following: Rights (Maastricht, Netherlands, 22-26 January 1997). S pecif y ing the Content of the Minimum Core Obli g ations 21 or other agents that would impact negatively on the as important as this secondary positive obligation of right to health.48 Obligations to protect are primarily assistance in the event of actual non-compliance by the positive obligations on the state to take measures to target state with the primary minimum core obligation, prevent violations of a human right by third parties. there is a secondary negative obligation on the part of For example, such obligations are violated by a state’s states and other relevant agents not to subject the target failure to regulate the activities or individuals, groups state to conditions, e.g. the imposition of programmes of or corporations to prevent them violating the right to economic austerity and debt repayment schedules, that health through the marketing of dangerous medicines or will predictably have the effect of preventing the latter the pollution of water, air and soil.49 Finally, obligations from meeting its minimum core obligations.53 to fulfil are primarily positive obligations that a state must itself comply with. Illustrations of the violation of these obligations, according to the Committee, include 2. Minimum core obligations are a sub- the state’s failure to adopt policies to reduce gender set of human rights obligations and discrimination in the provision of health facilities, must meet both general and specific goods and services or its failure to adopt or implement a national health policy.50 constraints Minimum core obligations are a sub-set of the obligations Obligations of conduct v obligations of result. Obligations associated with any given right: they are those obligations of conduct are mandatory steps that must be taken, that are to be given immediate effect by all states. Hence they or processes required to be put in place, for the direct must satisfy the general constraints that apply to all human realization of given right, e.g. reasonable steps towards rights obligations and in addition they must satisfy the spe- the adoption of a national health strategy through a cific constraints that apply to that sub-set of obligations that participatory process that engages all relevant parties. should be give immediate effect. One general constraint is Obligation of result specify outcomes states are obligated that the obligation must properly fall within the scope of the to secure, such as the provision of certain elements of human right in question, rather than some other right. So for primary health care or the quality and quantity of food example, in specifying the core obligations under the right to and water necessary for survival.51 health, General Comment 14 refers to access to ‘minimum Primary v secondary obligations. Primary obligations essential food’ and ‘basic shelter, housing’.54 However, food, are those obligations directly requiring a state to do or shelter and housing do not come within the proper remit of refrain from doing certain things. Secondary obligations the human right to health (Article 12 of the Covenant), but are second-order in character, relating to a state’s failure are rather components of the right to an adequate standard (or potential failure) to comply with primary obligations. of living (Article 11). Again, the error consists in attributing Secondary obligations may also arise for third parties in to the right to health all obligations that are partly justified the case of non-compliance or potential non-compliance by the way they advance our interest in health. by the target state. According to the Covenant, these third parties may be states, international organizations or other bodies in a position to assist. Thus the Cov- 48  General Comment 14, the right to health, para. 50. enant refers to the need for ‘international assistance 49  General Comment 14, the right to health, para. 51. 50  General Comment 14, right to health, para. 52. See also, for this and cooperation’ to ensure compliance with the rights typology, General Comment 12, the right to adequate food, para. 15. it sets out (Articles 2(1), 11(2), 15(4), 22 and 23). The 51  See General Comment 3, on the nature of states parties’ obliga- Committee has affirmed an obligation ‘on all those in tions; Maastricht Guidelines, para 7. 52  CESCR, Statement: Poverty and the International Covenant on a position to assist, to provide “international assistance Economic, Social and Cultural Rights, E/C.12/2001 (May 10th, 2001_, and cooperation, especially economic and technical” to para 16; see also General Comment 14, the right to health, para. 45. enable developing countries to fulfil their core obliga- 53  For a useful discussion in relation to the policy of austerity, see tions’.52 Corresponding to this secondary obligation on M. Salomon, ‘Of Austerity, Human Rights and International Insti- third parties ‘in a position to assist’, states that have tutions’, European Law Journal 21 (2015): 521.See also Report of the Special Rapporteur on the Right to food A/HRC/10/5/Add.2 violated or are at risk of violating a given human right (February 11, 2009). have an obligation to seek third party assistance. Just 54  General Comment No.14, para. 43(b),(c). 22 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW Another vitally important general constraint is that the unduly burdensome in light of the requirement to satisfy obligations must be feasible in a dual sense: possible to immediately the other core obligations. comply with and not excessively burdensome. Of course, the Marshalling these points, we can begin to appreciate starting-point for the affirmation of the existence of a human how disagreements as to the content of minimum core right (a universal moral right), is some important value obligations can be addressed in a principled manner. A consideration, such as an aspect of human dignity or one or dramatic illustration of such a disagreement regarding the more universal human interests. But a right is not the same human right to health is the seemingly radical discrepancy as the value considerations that ground it. Instead, whether between two of the Committee’s own General Comments. a right exists will be a matter of whether considerations of On the one hand, General Comment 3 refers to an obligation individual dignity and individual interest suffice to impose to provide ‘essential primary health care’ (para. 10). On the an obligation on others. And an obligation, which is the other hand, General Comment No. 14, on the right to health, content of a right, will only exist if it is feasible, which is offers a very demanding list of requirements under the rubric in turn a matter of it being possible to comply with and not of core obligations (para. 43(a)-(f)), and then adds to them unduly burdensome. In light of this, we can see the mistake a series of further requirements that it describes as being of in asserting that a human right to health is a flawed basis for ‘comparable priority’ (para 44 (a)-(e)). General Comment healthcare policy on the grounds that it represents ‘a claim No. 14 includes requirements—such as the adoption and on funds that has no natural limit, since any of us could implementation of ‘a national public health strategy and plan get healthier with more care’.55 Precisely what distinguishes of action on the basis of epidemiological evidence, addressing our interest in health from our right to health is the fact that the health concerns of the whole population’—that many feasibility constraints shape the content of the obligations developed states are a long way from realizing any time associated with the latter. These obligations do have a natural soon. It is arguable that, on closer inspection, the minimum limit: that imposed by considerations of feasibility. core obligations it specifies fail to meet the requirements of What is more, in the case of minimum core obligations, feasibility as obligations that should be immediately realized any candidate obligation must satisfy a more stringent ver- by all states irrespective of their level of resources. This con- sion of these feasibility constraints: an obligation qualifies clusion seems to follow even more obviously if we endorse for membership of the minimum core only if it is feasible General Comment 14’s view that minimum core obligations to insist on all states fully complying with it immediately, are non-derogable.56 rather than in the medium-to-long term (which is the weaker There is no need to address here the question of what feasibility requirement applicable to non-core obligations the content of the minimum core obligations of the right to in accordance with the doctrine of progressive realization). health is once feasibility constraints are properly factored A final point to recall here is that the process of specify- in. Instead, two points are worth emphasizing. First, these ing the obligations associated with a given human right is a constraints offer genuine, and not hopelessly indeterminate, holistic one. The MCD consists in a multiplicity of obligations: guidance in the specification of the content of minimum core obligations deriving from distinct human rights (to education, obligations. Second, there is a limit to how much moral rea- health, an adequate standard of living, etc) and also potentially soning can deliver in spelling out the content of any human multiple obligations arising from the self-same right (e.g. in right, including its core obligations. In particular, it is a mistake the case of the right to health, a combination of obligations to suppose that pure moral reasoning will always generate pertaining to medical treatment, public health measures and a uniquely correct, or operationally adequate, specification social determinants of health). Just as the general process of the minimum core. It might be, instead, that alternative of specifying the obligations associated with human rights specifications are eligible or that extra content needs to be norms is a holistic one (see 2, above), the same is true of the specification of that component of any given human 55  W. Easterly, ‘Human rights are the wrong basis for health care’, right that constitutes its minimum core. The set of minimum Financial Times Oct 12, 2009 http://www.ft.com/cms/s/0/89bbb- da2-b763-11de-9812-00144feab49a.html#axzz3ym5AIA9w core obligations must be such that, as a totality, they meet 56  This chimes with the assessment of John Tobin: ‘the vision of the feasibility threshold imposed by possibility and cost to the minimum core obligations of states under the right to health, as qualify as obligations that together demand immediate full advanced by the ESC Committee, is disassociated from the capacity compliance on the part of all states. In other words, they of states to realize this vision. It simply does not offer a principled, practical or coherent rationale which is sufficiently sensitive to the must be immediately fully realizable simultaneously, and context in which the right to health must be operationalized’, The the immediate satisfaction of each obligation must not be Right to Health in International Law, p.240. S pecif y ing the Content of the Minimum Core Obli g ations 23 added to make the obligations practically workable standards. bear on the question of whether a particular state is taking In that case, it will be necessary to embody, through legal adequate steps progressively to realize the fulfilment of processes, a choice of some eligible specification or other non-core obligations. To make the content of human rights of the minimum core. Law will in that way bring an extra, obligations, whether they be core or non-core, a function of socially valuable injection of determinacy to our thinking the resource capacities of state would transgress the ‘one about human rights that is not available when we consider world, one standard’ idea that animates IHRL. them purely as the deliverances of moral reasoning. It is also worth noting that an invariant interpretation generates a more readily applicable and less contentious 3. An invariant or variable standard? standard of assessment than one tailored to the specificities of resource capacities in each state. When seeking to determine One important question, on which no settled consensus whether or not a state is complying with its minimum core exists, is whether the MCD constitutes an invariant standard obligations, we have to assess it against a substantive level of requiring the same substantive ‘minimum essential level’ of immediate human rights protection that applies uniformly to human rights protection across all societies, or whether the all states. We do not have to engage in an extra, and poten- level of protection required adjusts in response to differences tially complicated and controversial, process of identifying in states’ resources and capabilities. Views on this question the specific minimum core obligations that are applicable to divide between proponents of an invariant (or absolute) and a a particular state in light of its resource endowment before variable (or relative) standard.57 Both standards are supposed embarking on the process of assessment. Since the MCD is to be objective, but only one of them relativizes the content supposed to identify urgent human rights requirements it of minimum core obligations to resource capacities that may is, other things being equal, especially desirable to identify vary from one state to the other. On the invariant view, Mali such standards by means of a process that is comparatively and Switzerland must secure the same ‘minimum essential less complicated and contestable. level’ of human rights protection under the MCD. On the The invariance of the obligations has implications for how variable view, the minimum core obligations will demand a we assess feasibility in specifying the content of the obligations significantly higher level of rights protection in the case of associated with a given human right. We need a standard- relatively wealthy Switzerland as compared to poorer Mali. On ized baseline of state capacity—as defined by resources in the latter view, but not the former, whether an obligation is a broad sense, so as to encompass not only wealth, natural ‘core’ or ‘non-core’ for a state will partly depend on the level resources, but also levels of institutional and technological resources of the state in question, since this will affect what capacity—that can serve in fixing a uniform set of obligations may be reasonably imposed as an obligation of ‘immediate that applies to all states. Presumably, this will be the same effect’. Although versions of both alternatives are logically baseline of state capacity that is assumed in fixing the content eligible, the invariant interpretation seems on balance supe- of the human rights in the International Covenant on Civil rior, both on the grounds of fit with existing practice and as and Political Rights. The baseline is not ascertained by asking a means of advancing the purposes of the MCD. what is feasible for the most dysfunctional or ‘failed’ state Taking variations in resources into account has its place 57  For the view that the ‘minimum core’ is state-specific or relative, within the doctrine of progressive realization, which concerns see C. Scott and P. Alston, ‘Adjudicating Constitutional Priorities the timetable for compliance with obligations that are invariant in a Transnational Context: A Comment on Soobramoney’s Legacy for all states. But we have construed the MCD as a doctrine and Grootboom’s Promise’, South African Journal of Human Rights to which progressive realization does not extend. Instead, 206, 250 16 (2000): 206, p.250. For an absolutist reading, see G. the MCD defines the threshold of immediate human rights van Buren, ‘Of Floors and Ceilings: Minimum Core Obligations and Children’, in D. Brand and S. Russeld (eds), Exploring the Core obligations to be met by all states regardless of variations Content of Socio-Economic Rights: South African and International in resources that exist among them. Just as human rights Perspectives (South Africa: Protea Boekhuis, 2002), p184. For seeming standards generally are invariant across different states,58 endorsements of the invariant reading, see Limburg Principles on the International Covenant on Economic, Social and Cultural Rights, notwithstanding massive variations in resources globally, so Annex, U.N. Doc. E/CN.4/1987/17 (June 2-6, 1986); Maastricht too on this reading are minimum core obligations. In other Guidelines on Violations of Economic, Social and Cultural Rights, words: non-core obligations are invariant standards applying U.N. Doc. E/C.12/2000/13. 58  See, e.g. G. Brown (ed.), The Universal Declaration of Human to all states that may in principle be satisfied in due course, Rights in the 21st Century: A Living Document in a Changing World. whereas core obligations are invariant standards that must A report by the Global Citizenship Commission (Cambridge: Open be immediately satisfied by all states. Resources differences Book, 2016), pp.65-66. 24 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW in the world. This would be comparable to specifying the sex, language, religion, political or other opinion, national obligations of parenthood by reference to what is feasible for or social origin, property, birth or other status’, echoing a the most incompetent of parents. Instead, since the subject theme also present in Article 26 of the ICCPR. Presumably, matter concerns obligations of immediate effect that we can on the basis that non-discrimination is a civil and political feasibly attribute to all states, we have to ask the following right, and that rights of the latter sort are of ‘immediate question for each and every putative minimum core obli- effect’, it would seem to follow that there is a minimum core gation: Can this obligation be imposed on all states, in the obligation on states not to discriminate on the impermissible reasonable expectation that for almost all states, for almost grounds when seeking to secure Covenant rights. all of the time, it is possible and not unduly burdensome for It is not the aim of this Framework Report to argue for a them immediately to comply with the putative obligation in specific list of minimum core obligations. Its focus has been full? Of course, there is no single correct answer to the precise on elucidating the concept of a minimum core obligation and level at which the baseline of state capacity should be set. setting out principled guidelines for determining the content Nonetheless, there are real constraints on its specification. of such obligations. However, for the purposes of illustrat- And, at the point at which moral reasoning is exhausted in ing the MCD, this section outlines very schematically the setting the baseline, we have to resort to some form of social derivation of one minimum core obligation that has a good decision reflected in law. claim to being paradigmatic: the obligation to prevent hunger. Any adequate specification of the invariant set of min- Since General Comment 12, on the right to adequate food, imum core obligations, on this view, would allow for two is for the most part a sound exemplification of the five step possibilities. The first is that at any given time there may be procedure for adducing minimum core obligations offered a handful of ‘failed states’ that are not at the baseline level above (section 5), reference will be made to it throughout. of state capacity used to fix the content of such obligations. Step 1. Identification of a general human right. Another possibility is that an emergency situation may arise—the outbreak of war or a natural disaster—which for Article 11(1) of the Covenant sets out a right to ‘adequate a period pushes a given state below the baseline capacity. food’ as falling within the scope of the broader right to an In each case, we can say that although the minimum core ‘adequate standard of living’. obligations apply to the state in question, a justification or excuse exists for non-compliance. Crucially, secondary Step 2. Identification of the scope of the right. obligations would then presumably arise in both cases, e.g. on the part of the states in question, to seek assistance in In the words of the Committee, the right to adequate food is meeting the minimum core obligations and rebuilding state concerned with securing to all human beings ‘physical and capacity, and on the part of other states or international economic access at all times to adequate food or the means agents in a position to assist, to take measures to provide for its procurement’.59 Therefore, obligations will come within that assistance. the scope of the right to adequate food to the extent that they are concerned with securing such access and such means. 4. An illustration: the obligation to prevent hunger Step 3. Identification of the content of the obligations associated with the right. We cannot take for granted that in the case of each and The main elements of the content of the right to adequate every economic, social and cultural right in the Covenant food are characterized as follows by the Committee: (1) there will be one or more associated minimum core obliga- ‘The availability of food in a quantity and quality sufficient tions. Theoretically, it is possible that some of these rights to satisfy the dietary needs of individuals, free from adverse do not contain any minimum core obligations as part of their substances and acceptable within a given culture’; (2) ‘The normative content, so that the totality of the obligations accessibility of such food in ways that are sustainable and that associated with them are subject to progressive realization. do not interfere with the enjoyment of other human beings’.60 However, it is unlikely that this possibility is realised, espe- Presumably, the Committee judges that these obligations cially if we take into consideration the non-discrimination meet the requirement of feasibility, but with the proviso that clause in Article 2(2) of the Covenant. This requires states to guarantee that the rights contained therein shall be ‘exer- 59  General Comment 12, the right to food, para. 6. cised without discrimination of any kind as to race, colour, 60  General Comment 12, the right to food, para. 8. they are subject to the doctrine of progressive realization, the minimum core obligation to prevent hunger. Arguably, and so may be fully realized only in the longer-term given it encompasses chronic hunger at the very least. Second, resource constraints.61 as the Committee has observed, ‘the roots of the problem of hunger and malnutrition are not lack of food but lack of access to available food, inter alia because of poverty, by Step 4. Identification of minimum core obligations large segments of the world’s population’.66 Given that food associated with the right, i.e. those to be fully com- shortages are not the fundamental problem, the feasibility plied with immediately by all states. of the minimum core obligation concerns the possibility and General Comment 12 distinguishes between obligatory mea- burdensomeness of immediately securing people’s access to sures under the right to adequate food that are of a ‘more enough food to avoid hunger. In determining the feasibility immediate nature’ and those that ‘are more of a long-term of this obligation, the findings of Amartya Sen’s research on character’.62 This is entirely consonant the distinction between famines have great importance.67 Sen shows that compliance core and non-core obligations associated with a right that with civil and political rights, such as freedom of speech has been defended in this Framework Report. It goes on and rights to democratic political participation, plays a vital to state that the ‘minimum essential level’ of the right to role in ensuring access to food and preventing famine. The adequate food—that which constitutes the minimum core key point here is that the feasibility of the minimum core or immediate obligation applicable to all states—involves obligation to avoid hunger must be assessed in light of the securing for all people ‘access to the minimum essential fact that all states have an obligation to secure immediately food which is sufficient, nutritionally adequate and safe, civil and political rights which, according to Sen, are major to ensure their freedom from hunger’.63 This corresponds determinants of access to food. This strengthens the case for with the more specific ‘fundamental right of everyone to be a minimum core obligation to prevent hunger, and perhaps free from hunger’ set out in Article 11(2) of the Covenant, militates in favour of its encompassing hidden, as well as which is only a component of the broader right to adequate chronic, hunger. food, since the latter requires access to food required to It is worth noticing, however, that General Comment meet “dietary needs” and not just to ensure freedom from 12 is ambiguous as to whether or not this minimum core hunger and starvation. obligation to ensure freedom from hunger is derogable in an This is a very plausible analysis of at least one minimum emergency. Paragraph 6 suggests that it is non-derogable: core obligation associated with the right to adequate food.64 ‘States have a core obligation to take the necessary action to We can take it to provide a somewhat fuller gloss on the obli- mitigate and alleviate hunger as provided for in paragraph 2 gation to provide access to ‘essential foodstuffs’ identified as of article 11, even in times of natural or other disasters’. Para- a core obligation in General Comment 3, para.10. No doubt graph 17, on the other hand, can be read as countenancing more elaboration is needed, so as to pin down the precise the possibility that the core obligation to prevent hunger is content of an obligation that satisfies the operative require- defeasible in circumstances of severe resource constraints ments of feasibility that apply to minimum core obligations: that make provision of access to food ‘impossible’. We can that it be possible for the generality of states to comply with draw on the distinction between a state’s primary and sec- immediately and in full, and that they can do so without ondary obligations to resolve this ambiguity. The primary imposing excessive burdens on them. The following two minimum core obligation is an obligation to secure for all observations bear on this discussion of feasibility. food that is sufficient to ensure their freedom from hunger. First, the notion of ‘hunger’ must be unpacked. One meaning it bears is ‘chronic hunger’, defined by the Food 61  General Comment 12, the right to food, para. 14. and Agriculture Organization (FAO) as the insufficient 62  General Comment 12, the right to food, para. 16. 63  General Comment 12, the right to food, para. 14. intake of energy (calories) and proteins. For the years 2010- 64  It is arguable that right to be free of hunger is a norm of general 12, the FAO estimated 870 million people were chronically customary international law, hence binding even on states that are hungry. Another definition of hunger is ‘hidden hunger’, not parties to the Covenant, see FAO, The Right to Food Guidelines: which concerns insufficient micronutrients, e.g. vitamins, Information Papers and Case Studies (Rome, 2006), pp.103-106. 65  J Sachs, The Age of Sustainable Development (New York City: in the diet.65 Clearly, fully realizing the right to adequate Columbia University Press, 2015), pp.318-9. food requires, among other things, access to food needed 66  General Comment 12, the right to food, para. 5. 67  A. Sen, Poverty and Famines: An Essay on Entitlement and Depri- to avoid both kinds of hunger. An important task, however, vation (Oxford: Oxford University Press, 1990); A. Sen, Development is to determine which kind of hunger is encompassed by as Freedom (Oxford: Oxford University Press, 2001). 26 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW Clearly, extreme circumstances can arise – natural disaster, in derogating from the primary minimum core obligation to warfare—that render it impossible or unduly burdensome prevent hunger, due to resource shortages in emergency cir- to fulfil this obligation immediately and in full, given cumstances, a secondary obligation is triggered to do what it resource limitations. Therefore, the primary obligation may can to ‘mitigate and alleviate hunger’ in those circumstances. be derogable in such emergencies, which is not to say that In addition, the state has an obligation to seek international it is always derogable in case of emergency—it depends on support to secure the right to adequate food—an obligation its severity. However, in those emergency circumstances in to take steps to obtain such support in order to forestall which the state is justified in derogating this minimum core non-compliance with the right or to help ensure future com- obligation, it comes under a secondary obligation to do what pliance. This secondary obligation to seek help is matched it can to ‘mitigate and alleviate hunger’. This obligation is by corresponding secondary obligations on those states and not the same as the primary obligation to prevent hunger by international organizations ‘in a position to assist’ to provide ensuring everyone’s access to food, but is instead triggered assistance and cooperation to ensure the fulfilment of the by non-compliance with the latter. primary core obligation.68 In addition, as noted previously, these other agents have a negative secondary obligation not to undertake activities that will prevent states from meeting Step 5. Identification of secondary duties of the their primary obligations under the right to adequate food.69 target state and other agents. In the previous paragraph we have already identified one 68  General Comment 12, the right to food, paras. 36, 38, 39, 40, 41. of the target state’s secondary duties. Where it is justified 69  General Comment 12, the right to food, para. 37. R espon d in g to O bjections : E xcessively Rig id a nd Counterproductive? 27 7. Responding to Objections: Excessively Rigid and Counterproductive? Various objections have been directed at the utility of the given human rights obligation due to resource limitations, MCD within IHRL. Some are premised on attributing to that that obligation is not a viable candidate for inclusion in the doctrine features that we have seen do not properly belong minimum core. This is precisely why the minimum core to it, such as the idea that minimum core obligations are comprises only a sub-set of human rights obligations, those non-derogable norms or that they are always to be made that are not subject to the doctrine of progressive realization justiciable (see section 5, above). Others depend on claims that takes into account variations in resources. that are dubious, for example, that the process of specify- Still, a critic might argue that a truly universal and ing minimum core obligations is hopelessly indeterminate invariant reading of the MCD lowers the bar of human rights (see section 6, above).70 In this section, however, we shall compliance unduly for states that have resource capacities address two other, large-scale objections: (1) that in seeking well above the global average. Does it not seem peculiar to to specify an invariant standard of human rights assessment suppose that the obligations of immediate effect applicable for all states, the MCD is excessively rigid, lacking sensitivity to Switzerland are identical to those applicable to Mali, to important contextual factors that differ significantly from given the immensely greater resources at the disposal of one state to another, and (2) that even if, in principle, the the former? It is important to note that the invariant reading MCD is a cogent doctrine, the attempt to give it legal effect of the MCD does not carry this untoward implication. The is likely to be counter-productive in practice with regard to MCD identifies those obligations of immediate effect that the ultimate objective of improving states’ compliance with apply to all states irrespective of variations in their resource economic, social and cultural rights. endowments. These are the ‘minimum core obligations’. As for the non-core obligations, they are subject to the doctrine Excessively Rigid? of progressive realization. But the permission to realize progressively given by this doctrine is significantly condi- It might be objected that the invariant reading of the MCD tional in character: it makes it permissible to take measures is unappealing because it is insensitive to salient differences to realize non-core obligations progressively, rather than among the states that bear human rights obligations.71 If the immediately, only insofar as resource constraints justify objection is couched in terms of differences in levels of resourc- this approach. However, to what extent, if at all, resource es among states, the answer is that it is precisely the point of an adequate deployment of the MCD, on the invariant view, to identify immediate human rights obligations that apply to 70  For an overview of objections, see M. Harris, ‘Downsizing Rights: all states irrespective of resource variations. Minimum core Why the ‘Minimum Core’ Concept in International Human Rights obligations are the very least that all states must immediately Law Should be Abandoned’. 71  ‘Fixing a quanitifed content might, in a rigid and counter-productive undertake by way of human rights compliance. If it is not manner, prevents an analysis of context’, O’Regan J in Mazibuko v generally feasible to demand the immediate fulfilment of a City of Johannesburg [2009] ZACC 28 at 60. 28 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW constraints justify such an approach will vary from one state Thirdly, if we adopt an interpretation of the MCD according to another depending on the level of resources available to to which its obligations are not inherently non-derogable, as them. This means that while a poorer state may legitimately suggested above (see section 5) there is always the possibility invoke the doctrine of progressive realization in relation to that an emergency situation may arise in which minimum some non-core obligations, a richer state may not be able to core obligations are defeated by countervailing consider- do so, because comparable resource constraints do not exist ations, including resource shortages arising from war or in its case. Hence, a state may be required to give immediate natural disasters. In judicial contexts, doctrines such as that effect to non-core obligations, because it has the resources of ‘proportionality’ may be deployed in order to determine to do so. What distinguishes minimum core obligations, whether there is a good justification for departing from the however, is that these are the obligations to which all states minimum core obligations. Of course, in such situations, are required to give immediate effect. secondary obligations to assist on the part of other states So far, the MCD has been defended against the objection and international organizations will normally be triggered. that it wrongly fails to take into account resource differ- Finally, it is entirely compatible with the invariant ences between states in determining the ‘minimum core’ interpretation of the MCD that the content of minimum core obligations that apply to them. However, it is important to obligations changes over time, as assessments about feasibil- keep in mind how an invariant standard may nonetheless ity may change in light of factors such as climate change or accommodate considerable variability in other, especially technological and scientific advances. Access to the Internet non-resource-related, respects. or to antiretroviral drugs, for example, can come to be part Firstly, there is the phenomenon of what might be called of the minimum core of the human rights to education and ‘contextual relativity’: meeting the self-same obligation may health, respectively, as the cost of providing them decreases require different state conduct in light of environmental, over time. The minimum core of a human right is therefore cultural or other differences. For example, which languages not forever set in stone, but can evolve over time. What the must be taught under the right to education will depend, invariant interpretation insists upon, however, is that at among other things, on the languages that happen to be the any given point of time in its evolution it imposes the same official or prevalent means of communication within a given substantive standard of immediate human rights compliance society. Similarly, the right to adequate clothing—adequate for all states irrespective of their resources. to offer protection from the elements and ‘to appear in public without shame’—will require access to a winter coat in Scot- Counterproductive? land but not in Suriname. In such cases, different courses of conduct, attuned to specificities of cultural or environmental The concern that the MCD is counterproductive targets not context, are needed to discharge what is meaningfully one its intrinsic merits, but the presumed consequences of its and the same obligation. being established and widely endorsed as a legal doctrine Secondly, the minimum core may be formulated in such or even as a ‘soft norm’ of IHRL. The worry is that the lan- a way as to permit states to choose from a diverse but limited guage of ‘minimum core obligations’ lends itself to being array of ways of fulfilling it, exemplifying a phenomenon misunderstood, or perhaps even to being hi-jacked, so as sometimes referred to as ‘margin of appreciation’ or ‘sub- to suggest that only the ‘core’ obligations are important, or sidiarity’. Thus, it could be that different packages of health worth worrying about, or ‘real’ obligations, as opposed to care provision, or different kinds of educational curricula, the ‘non-core’ obligations associated with a human right. In satisfy the abstract standard or human rights protection set less developed countries, the unwelcome consequence may by, respectively, ‘essential primary health care’ and ‘the most be that human rights efforts are disproportionately focussed basic forms of education’. It is compatible with an invariant on securing core obligations, while non-core obligations are minimum core to confer freedom on states to exercise a choice side-lined or ignored instead of being taken seriously in the within this constrained range. The rationale for conferring way that the doctrine of progressive realization demands. such freedom may be of various kinds. It might be a way of In more developed countries, the unwelcome consequence addressing contextual relativity; but another possibility is may be that human rights generally come to be seen as of that it can reflect the importance of an element of self-de- no real practical significance, as the ‘essential minimum’ termination in the concrete specification of human rights levels specified by core obligations are perhaps complacently obligations that may not be fully determinate at the level of the deliverances of pure moral reasoning. R espon d in g to O bjections: E xcessively Rig id a nd Counterproductive? 29 assumed to be amply fulfilled, and non-core obligations are Now, this concern about the counter-productiveness perceived as unimportant or merely aspirational.72 of the MCD is a genuine one, but it is a worry that is not Naturally, any such practical ill-effects would depend confined to that doctrine. Such a problem is always liable to on a misunderstanding or misappropriation of the MCD. arise when any category of international legal norm—such as ‘Core’ obligations are not to be simplistically equated with peremptory norms of jus cogens—is singled out as possessing ‘important’ obligations. Instead, they are a sub-set of the a distinctive normative significance. Fortunately, there are totality of obligations associated with a human right, all a number of responses that can be made to the objection of which are important in virtue of being human rights from counter-productiveness. First, there is a need for reli- obligations. However, minimum core obligations enjoy an able empirical evidence to determine the extent to which additional form of importance, i.e. they are obligations of the phenomenon at which it gestures is real and not merely immediate effect in the case of all states notwithstanding speculative. Second, the concern, to the extent that it tracks resource differences. Moreover, the MCD does not operate in a real phenomenon, highlights the need for clarity about the normative isolation but in the context of other doctrines, such precise nature of the MCD, and also the need to embark on as that of progressive realization, which imposes important an educative process to ensure that the distinctive meaning demands regarding the fulfilment of economic, social and of ‘minimum core’ obligations is adequately understood not cultural rights beyond the core. only by state officials and international organizations, but Nonetheless, the concern about the potential count- also by non-governmental organizations concerned with er-productiveness of the MCD is one that should be taken human rights and, indeed, by ordinary citizens. Third, once seriously, as we can see by means of a comparison with empirical data about the incidence of counter-productivity civil and political rights. After all, as noted above (section has been collected and analysed, it will be possible to start 4), civil and political rights are not subject to a doctrine of formulating strategies for presenting the MCD in ways that progressive realization. Instead, the obligations associated that help counteract this tendency. Some of these strategies with them are all to be given ‘unqualified’ and ‘immediate’ may relate to the nature of the indicators by means of which effect.73 But at the same time, it has long been understood compliance with minimum core obligations is monitored that compliance with civil and political rights has significant and implemented. resource implications. Setting up the requisite judicial and executive institutions, and elaborating and implementing 72  For such concerns, see K. Young, ‘The Minimum Core of Eco- appropriate policies and regulatory frameworks, in order nomic and Social Rights’, p.114; M. Wesson, ‘Disagreement and the to secure rights such as those to a fair trial and political Constitutionalisation of Social Rights’, Human Rights Law Review participation, are hugely costly endeavours. Constraints 12 (2012) 221 at 242; K. Lehman, ‘In Defence of the Constitutional Court: Litigating Socio-economic Rights and the Myth of the Mini- on available resources may impose obstacles to imme- mum Core’ American University International Law Review 22 (2006): diate compliance, just as in the case of economic, social 163 at 182; J. Klaaren, ‘A Second Look at the South African Human and cultural rights. Yet there is no doctrine of progressive Rights Commission, Access to Information, and the Promotion of realization with respect to civil and political rights and no Socioeconomic Rights’, Human Rights Law Quarterly 27 (2005): 549 at 552. On the basis that the MCD threatens to ‘downsize’ associated doctrine of a ‘minimum core’. In trying to make economic, social and cultural rights, it has been argued that the sense of this discrepancy, one plausible explanation is that doctrine should be abandoned in favour of a proportionality test, in the introduction of a distinction between core and non-core M. Harris, ‘Downsizing Rights: Why the ‘Minimum Core’ Concept in International Human Rights Law Should be Abandoned’. obligations, although in principle valid, is thought to pose 73  Human Rights Committee, General Comment 31, on the nature an unacceptable risk of being counter-productive in precisely of the general legal obligation imposed by the ICCPR, para. 14. the way described above. 30 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW 8. Indicators and Benchmarks: Tools for Monitoring and Implementation We have already discussed the ‘operationalization’ of human urged states to set benchmarks so as to facilitate human rights. In the first instance, IHRL is itself an enterprise that rights compliance.75 is aimed at giving effect to a background morality of human Indicators and benchmarks promise to inject the empir- rights—insofar as it is appropriate to do so via the mechanism ically-based methodology of social science and big data of individual legal rights assigned to all human beings (sec- into the human rights enterprise, adding a useful tool to its tion 2, above). Secondly, we saw that one of the reasons for existing, primarily moral and legal, repertoire. They are a preferring the invariant reading of the MCD over the variable valuable supplement to human rights thinking and potentially reading is that the former is a more readily applicable, and especially important in helping to underwrite conclusions less controversial, standard for assessing the behaviour of about the extent to which economic, social and cultural rights states (section 6, above). But now we turn to a further topic, are being ‘progressively realized’ over time.76 However, their the operationalization of both human rights generally, and effective use to monitor and enhance the implementation of minimum core obligations specifically, by means of human human rights depends on meeting certain important chal- rights indicators. These have been defined as: ‘specific lenges. Here, we can highlight three. information on the state or condition of an object, event or outcome that can be related to human rights norms and Anchoring. First, and most fundamentally, there is a need standards; that addresses and reflects human rights principles to ensure that the indicators and benchmarks chosen and concerns; and that can be used to assess and monitor adequately track components of the normative content the promotion and implementation of human rights’.74 of any given human right, including its minimum core Whereas compliance with human rights is intrinsically obligations. In the jargon, this involves identifying the valuable, the significance of indicators is purely instrumen- ‘attributes’ of a given human right—the key components tal. They are tools of social science the purpose of which is to better equip us to monitor the extent of human rights 74  Office of the High Commissioner of Human Rights, Human Rights compliance and to improve compliance in the future. Such Indicators: A Guide to Measurement and Implementation (New York indicators can be either quantitative or qualitative in char- & Geneva, 2012), p.16. 75  See, for example, General Comment 14, on the right to health, acter. Quantitative indicators are mainly expressed in a paras. 57-8. numerical form, as numbers, percentages, indices, e.g. the 76  Indeed, a UN conference in preparation for the Vienna Conference rate of enrolment or school-aged children, or the proportion on Human Rights in 1993 concluded that indicators could ‘assist of one-year olds immunized against vaccine-preventable with the development of “core contents” of economic, social, and cultural rights’ (Report of the Seminar on Appropriate Indicators to diseases, etc. Qualitative indicators are expressed in more Measure Achievements in the Progressive Realization of Economic, narrative or evaluative terms, e.g. the status of ratification Social and Cultural Rights. Report of the secretariat to the World of a given human rights treaty. Benchmarks can be specified Conference on Human Rights preparatory committee, 4th session, Geneva, Switzerland, April 20, 1993. A/CONF.157/PC/73), p.8, cited in relation to indicators by requiring a specific value for a in S. E. Merry, The Seductions of Quantification: Measuring Human given indicator, e.g. raising the rate of enrolment of school- Rights, Gender Violence, and Sex Trafficking (Chicago IL: University aged children to 90%. The Committee has at various times of Chicago Press, 2016), p.175. I n d icators a n d Benchma rks: Tools for Monitoring a nd I mplementation 31 of its normative content, the bundle of obligations this danger in relation to indicators. Contrary to their associated with it. Hence, the process for specifying the status as instruments for monitoring the implementation content of these obligations, including the minimum of human rights, they may come to be fetishized, so core, discussed in sections 2 and 6 is all-important. that the concern with scoring well on various indicators As a next step, it is crucial to devise indicators that becomes an end in itself, crowding out the ultimate are suitably anchored in these attributes, so that their objective of enhancing compliance with human rights. measurement helps us monitor compliance and enhance Because indicators are, by design, more amenable to future implementation. It is important to note that just measurement than the underlying human rights they as the obligations associated with a human right may be are seeking to measure, this risk is a very real one. quite diverse in character (see the taxonomy of kinds of This is why the proposal to replace the MCD with reli- obligations in section 6(1)), so too indicators will be of ance on benchmarks and indicators seems especially correspondingly different kinds, e.g. structural indica- misguided.77 Although the problem of counter-produc- tors, concerned with legal instruments and institutions tiveness does arise for the MCD, the proposal to replace it (e.g. ratification of relevant treaties), process indicators, with benchmarks and indicators confronts an even more measuring ongoing efforts to comply with human rights egregious version of the same problem. This is because commitments (e.g. human rights complaints received indicators, unlike minimum core obligations, are merely and the proportion redressed), and outcome indicators, of instrumental significance, helping us to measure the measuring the extent to which human rights are enjoyed extent to which intrinsically significant standards—the (e.g. literacy rates by targeted population group). obligations associated with human rights, including the minimum core—are being realized. Contextualization. Although human rights obligations are in general invariant, as are minimum core obligations, However, rather than conceiving of indicators as replace- we have noticed that they may nonetheless demand ments for the MCD—a somewhat incoherent notion in any somewhat different measures depending on contextual case, since we would still need to specify the independent factors that vary from one state to another (see section standards regarding compliance with which they serve as 7, above). Hence, the implementation of these universal indicators—they can instead be seen as ways of promoting obligations may need to be measured by indicators that compliance with the latter doctrine, in part by ameliorating also vary from one state to another, since they will be the concern about counter-productiveness that we previously tailored to the different contexts inhabited by each state. noted. The potential counter-productiveness of the MCD So, to take the simplest example, indicators regarding arises in the first instance from the fact that minimum core literacy will test for competence in different languages obligations are legal or regulatory standards and, as such, depending on which language is prevalent in the state must comply with the rule of law requirement of being pub- in question. But the process of contextualization can licized in advance to those subject to them. It is primarily become more complicated when seeking an indicator this fact of being declared in advance that generates the that effectively measures the core obligation to provide worry that states may respond to them in a manner that is ‘essential primary health care’. The specific forms of counterproductive. Indicators may potentially help address such care that must be provided, in fulfilment of the this problem because, as statistical devices, they are not in the relevant minimum core obligation, may differ depending same way governed by rule of law requirements, including on the specific health risks present in a given state, e.g. the requirement of advance notice. Indicators can therefore whether there is a non-negligible risk of contracting a potentially provide an independent check on compliance tropical disease such as malaria. with human rights obligations generally, and minimum core obligations in particular, without running the same risk of Fetishization. We saw that a challenge confronted the being misunderstood or misappropriated. MCD insofar as there is a risk that it might have the unintended effect of downgrading or displace the non- core obligations associated with economic, social and 77  K. Young, ‘The Minimum Core of Economic and Social Rights’, cultural rights. There is an even more acute version of pp.164-173. 32 M INIM U M COR E O BL I GAT I O N S : H U M A N R I GHTS I N THE HE RE A N D N OW 9. Conclusion I t has been argued in this report that the MCD is a valuable nascent doctrine of IHRL, one that facilitates the realization of the rights set out in the Covenant. It does so by picking out a particular sub-set of obligations: those that must be immediately given full effect by all states irrespective of resource differences among them (section 4). This is the essence of the idea of a minimum core obligation, and it addresses a persistent problem: the temporal prioritization of competing human rights obligations in the context of resource constraints. The Covenant is better equipped to further the realization of economic, social and cultural rights in a principled and practical manner when read in the light of the MCD. It has been further argued that the MCD should not be understood as necessarily embodying notions of special value, non-derogability or justiciability, which are distinct from, and may obscure, its focus on obligations of immediate effect (section 5). An account has been given of how we can then proceed to adduce the content of minimum core obligations, taking into consideration their potentially diverse character, the scope of the associated right, the need to satisfy constraints of feasibil- ity and overall consistency, and the invariant character of the standard they establish (section 6). Two major objections to the MCD were addressed: that it is excessively rigid in enforcing a ‘one size fits all’ prescription and that the propagation of the doctrine might be counterproductive in fostering human rights compliance through its being misunderstood or misappropriated. Finally, it was argued that assessing compliance with the minimum core obligations needed to draw on tools such as benchmarks and indicators, but that these could not displace the MCD from its vital role. Conclusion 35