2008]
The Minimum Core of Economic and Social Rights
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The concept anticipates three accom
plishments. For international
lawyers attempting to give legal bite to the standard of obligation established
by the Covenant, the mi nimum core initiates a common legal standard,
disassembling the inherent relativism of the programmatic standard of
“progressive realization” set out in the text of the Covenant.37 This standard of
obligation, which distinguis hes the Covenant from other human rights
instruments, gives state parties the latitude to implement rights over time
depending upon the availability of necessary resources, rather than requiring
them to guarantee rights immediately. 38 Nevertheless, the Committee has
insisted that the “progressive realization” of the Covenant rights requires the
taking of “deliberate, conc rete and targeted” steps. 39 The minimum core
provides an understanding of the direction that the steps should follow and an
indication as to when their direction becomes retrogressive.40
Secondly, for those hoping to prov ide an objective standard across
different state systems of political
economy, the minimu m core concept
purports to advance a baseline of socioeconomic protection across varied
economic policies and vas tly different levels of available resources. 41 States
parties to the Covenant repr esent most of the present-day diversity in choices
of political and socioecono mic ordering (with the notable exception of the
United States, whi ch has si gned, but not ratified the Covenant). 42 For
peoples of that [targeted] State”). With respect to develop ment, see General Comment No. 15 , supra
note 17, ¶ 38; General Comment No. 14 , supra note 10, ¶¶ 39-40, 45; and Statement: Poverty and the
Covenant, supra note 5, ¶ 17 (“ When grouped together, the core obligations establish an international
minimum threshold that all developm ental policies s hould be designed to respect.”). W ith respect to
trade, see General Comment No. 12 , supra note 33, ¶ 20; and U.N. Econ. & Soc. Council [ECOSOC],
Comm. on Hum an Rights, Report of a Mission to th e World Trade Organization , U.N. Doc. No.
E/CN.4/2004/49/Add.1 (Mar. 1, 2004) (prepared by Paul Hunt).
37. In 1987, Rapporteur Philip Alston had pointed to this problem in recommending that the
Committee “must find a way of conveying to states th e fact that p riority must be accord ed to th e
satisfaction of minimum subsistence levels of enjoyment of the relevant rights by all individuals.” Philip
Alston, Out of the Abyss? The Challenges Confronti ng the New U.N. Committ ee on Economic, Social
and Cultural Rights, 9 HUM. RTS. Q. 332, 359-60 (1987).
38. See Covenant, supra note 19, art. 2(1); cf. International Covenant on Civil and Politica l
Rights, G.A. Res. 2200A, U.N. GAOR, 21st Se
ss., U.N. Doc. A/RES/2200 (Dec. 16, 1966), 999
U.N.T.S. 171 (entered into force Mar. 23, 1976) [her einafter ICCPR]. For an illum inating discussion of
the history of drafting this standard of obligation, see Alston & Quinn, supra note 27.
39. General Comment No. 3, supra note 1, ¶ 9.
40. Id. (describing the in consistency between “d eliberately retrogressive measures” and
progressive realization). Although the Committee described retrogression as a m ove away from the
direction of full realization (rather than a m ove below any m inimum), there are unexplored parallels
between a “ratchet-effect” standard of retrogression and a state-speci fic minimum core. For a criticis m
of the Comm ittee’s refusal to make deliberately retrogressive measures a prim a facie violation, see
CRAVEN, THE INTERNATIONAL COVENANT, supra note 5, 131-32. For a hint of this relationship at the
national level, see Kevin Iles, Limiting Socio-Economic Rights: Beyond the Internal Limitations Clause,
20 S. AFR. J. HUM. RTS. 448, 458, discussed infra note 321.
41. See, e.g., Limburg Principles on the Implementation of the International Covenant on
Economic, Social and Cultural Rights, Annex, U.N. Doc. E/CN.4/1987/17 (June 2-6, 1986) reprinted in
9 HUM. RTS. Q. 122, 126 (1987) (“States parties are obligat ed, regardless of the level of econom ic
development, to ensure respect for minimum subsistence rights for all.”); Maastricht Guidelines on
Violations of Economic, Social and Cultural R ights, U.N. Doc. E/C.12/2000/13, reprinted in 20 HUM.
RTS. Q. 691, 695 (1998) (“Such m inimum core obligations apply irrespective of the availability of
resources of the country concerned or any other factors and difficulties.”).
42. See generally Barbara Stark, Economic Rights in the United States and International
Human Rights Law: Toward an “Entirely New Strategy ,” 44 H ASTINGS L.J. 79 (1992) (exploring the
compatibility of the Covenant’s rights, as self-mon itored in other W estern industrialized dem ocracies,
with those of various states in the United States). The Covenant has been before the Senate since 1978.