2008]
The Minimum Core of Economic and Social Rights
165
content of economic and social rights in both international and constitutional
fields, facilitating the operation of the “p rogressive . . . realization” obligation
attached to each r ight,294 the effect of limitations, 295 and the reversal of the
burden of proof to the state which is not provid ing a minimum degree of
material protection. The Obligations Appr oach runs closest to this vision, by
focusing on the duties that flow fro m each right, but it ultimately comes
undone by its inability to account for th e multiple obligations that necessarily
correlate to each right.
I argue that instead of demarcating different rights and obligations as
“core” and “non- core,” the Committee and the court s are better equipped t o
supervise and enforce the (predominantl y) positive obligations attached to
economic and social ri ghts by using indi cators and benchmarks and the
(predominantly) negative obligations by an assessment of state responsibility
and causality.296 Indicators usually refer to a set of statistics which “indicate”
phenomena that are not directly me asurable and may be based on either
quantitative or qualitative information, as long as it can be consistently
measured over time.297 Indicators may i nvite crossnational comparisons but
may also take a deliberately self-referential character. 298 Benchmarks are
goals or targets set according to the di ffering situations of each country and
are sometimes referred to as “mi nimum thresholds.”299 Thus, in an important
respect, they do not “rank” rights so much as prior itize different temporal
targets for an evolving rights protection to meet.
Attention to indicators and benchmarks is not new. Indeed, bot h are
central to the Committee’s practice. Through a practice of “scoping”—which
involves both the state under re view and the Comm ittee—the Committee
designates adjustable targets for eac h state party to ac hieve by the next
reporting period.300 Importantly, the level of economic resources within a state
is not the only factor releva nt to setting the benchmark. 301 Like the parallel
294. S. AFR. CONST. 1996 ss. 26-27; Covenant, supra note 19, art. 2(1). Sections 26 (housing)
and 27 (healthcare, food, water, and social security) both stipulate the right in S ubsection 1, and set out
its implementation in Subsection 2, with the follo wing provision: “T he state m ust take reasonable
legislative and other m easures, within its available resources, to achie ve the progressive realisation of
this right.” S. AFR. CONST. 1996 ss. 26-27.
295. S. AFR. CONST. 1996 s. 36; see also S. AFR. CONST. 1996 s. 7(3) (identif ying the rights in
the Bill of Rights as subject to constitutional limitation); Iles, supra note 40, at 452, 455-63
(investigating the relationship between Section 36 and the “internal limitations” clauses of the economic
and social rights provisions—that is, sections 26(2) and 27(2), which reduce the am bit of sections 26(1)
and 27(1) respectively); supra note 60 and accompanying text (pointi ng out the historical links between
the core concept and limitations in German constitutional law).
296. An example of this type of analysis is undertaken in General Comment No. 7 on forced
evictions. U.N. Econ. & Soc. Council [ECOSO C], Comm. on Econ., Soc. & Cultural Rights, Report on
the Sixteenth and Seventeenth Sessions, supp. 2, Annex IV, U.N. Doc. E/1998/2 (1998).
297. For an attempt to distill a single definition of “indicators,” see Maria Green, What We Talk
About When We Talk A bout Indicators: Current Approaches to Human Rights Measurement , 23 H UM.
RTS. Q. 1062, 1076-77 (2001).
298. Katarina Tomaševski, Indicators, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra
note 4, at 531, 542.
299. Green, supra note 297, at 1080.
300. E.g., General Comment No. 15, supra note 17, ¶ 54; General Comment No. 14, supra note
10, ¶ 58; Riedel, supra note 176, at 356. Eibe Riedel has been a member of the Committee since 1997.
301. See Alicia Ely Yamin, Reflections on Defining, Understanding and Measuring Poverty in
Terms of Violations of Economic and Social Rights Under International Law , 4 GEO. J. ON FIGHTING
POVERTY 273, 300 (1997) for a critique of Robert Robertson, Measuring State Compliance with the
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