imposes on the State that it makes a convincing case that, even by calling upon international support,
it is unable to finance what it would take to deliver even that "essential content" of the right. Should be
State fail to make that case, it will be presumed that it has not been complying with its obligations to
prioritize the fulfilment of economic and social rights under its jurisdiction. In that sense, reliance on
the "core content" of a right introduces a baseline that is less dependent on the degree of realization of
the right that is already attained in any particular State.55 It also helps defining priorities both for
domestic efforts towards the fulfilment of human rights obligations, and for international assistance
and cooperation.56 It does not, however, allow to dispense completely with considerations related to
resource availability: the presumption that is established is relative, not absolute.
Secondly, how this "minimum essential content" of the Covenant rights is to be determined remains
contested. Because article 11 of the Covenant refers in paragraph 2 to "the fundamental right of
everyone to be free from hunger", in addition to its more general reference in paragraph 1 to "the right
of everyone to an adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions", the Committee could
easily define the core obligation corresponding to the right to food as an obligation to "take the
necessary action to mitigate and alleviate hunger".57 Perhaps this underestimated the complexity of the
task; but it had the advantage, at least, of being clearly linked to the text of the Covenant itself. Not all
rights allow for such an easy identification of the "core content", however. As regards the right to
education guaranteed under article 13 of the Covenant, the Committee considers that "this core
includes an obligation: to ensure the right of access to public educational institutions and programmes
on a non-discriminatory basis; to ensure that education conforms to the objectives set out in article 13
(1); to provide primary education for all in accordance with article 13 (2) (a) [which provides that
primary education shall be compulsory and available free to all]; to adopt and implement a national
educational strategy which includes provision for secondary, higher and fundamental education; and to
ensure free choice of education without interference from the State or third parties, subject to
conformity with “minimum educational standards” (art. 13 (3) and (4))".58 In its General Comment No.
14 on the right to the highest attainable standard of health, the Committee provides the following
description of "core obligations" corresponding to this right :
More recently, the Committee confirmed its view that resource availability remains relevant even as regards the satisfaction
of the "core content" of rights: see General Comment No. 12 (1999): The right to food, para. 17: "Should a State party argue
that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such
access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to
satisfy, as a matter of priority, those minimum obligations"; or Committee on Economic, Social and Cultural Rights,
Statement on an Evaluation of the Obligations to Take Steps to the ‘Maximum Available Resources’ under an Optional
Protocol to the Covenant (Thirty-eighth session, 2007) (E/C12/2007/1), para. 6: "As regards the core obligations of States
parties in relation to each of the Covenant rights, General Comment No. 3 states that, in order for a State party to be able to
attribute its failure to meet its core obligations to a lack of available resources, it must demonstrate that every effort has been
made to use all resources that are at its disposal in an effort to satisfy, as a matter of priority, those core obligations."
55
As noted by Robertson: "...there is an assumption, though a rebuttable one in the eyes of the Committee, that every state
possesses sufficient resources for subsistence purposes if they define resources broadly enough and are sufficiently
aggressive in resource acquisition" (Robertson, "Measuring State Compliance with the Obligation to Devote the 'Maximum
Available Resources' to Realizing Economic, Social and Cultural Rights", cited above note 2, at 702).
56
The Committee on Economic, Social and Cultural Rights has referred to an obligation to prioritise the core obligations
aimed at ensuring the minimum essential levels of rights in the context of international cooperation, stating that: "[C]ore
human rights obligations create national obligations for all States, and international responsibilities for developed States, as
well as others that are in a “position to assist”" (Committee on Economic, Social and Cultural Rights, Poverty and the
International Covenant on Economic, Social and Cultural Rights (2001) (E/C.12/2001/10), para. 16): "When grouped
together", the Committee added, "the core obligations establish an international minimum threshold that all developmental
policies should be designed to respect [...] [The duty of international assistance and cooperation] is particularly incumbent on
all [the States] who can assist, to help developing countries respect this international minimum threshold. If a national or
international anti-poverty strategy does not reflect this minimum threshold, it is inconsistent with the legally binding
obligations of the State party" (id., para. 17). On international duties of assistance and cooperation, see further below, text
corresponding to notes 151-170.
57
General Comment No. 12 (1999), cited above note 28, para. 6. See also id., para. 14 ("Every State is obliged to ensure for
everyone under its jurisdiction access to the minimum essential food which is sufficient, nutritionally adequate and safe, to
ensure their freedom from hunger"), and para. 17 ("Violations of the Covenant occur when a State fails to ensure the
satisfaction of, at the very least, the minimum essential level required to be free from hunger").
58
General Comment No. 13 (1999), cited above note 31, para. 57.
12
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents