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The Minimum Core of Economic and Social Rights
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It may lead to abstract interpretations that fail to re sonate with rightsclaimants, to provide the much-needed detail of the priorities and politics
behind rights formulations, or to gi ve a reliabl e measure for effective
enforcement or supervision in positiv e law. While useful in connecting
political and ethical justific ations to the interpretati on of economic and social
rights, this approach is problematic when it acts to close off, rather than open,
a conversation on rights.
The second approach, discussed in Part III, situates the minimum core in
the minimum consensus surr ounding economic and soci al rights. Under this
theory, the fledgling conce pt of the minimum core gains universal credibility
by tying its fortunes to the basic—and not hypoth etical—consensus reached
within the communities cons tituting each field. Such an approach unites the
themes of legitimacy and self-determination common to both international and
constitutional law and is consistent with the practice-bound determinations of
the Committee, which originally relied largely on the accretion of content
from state reports to fo rmulate the min imum core.16 Yet this type of method
propels international and constitutional formulations along different and
uncertain paths, setting limits on th e capacity for gui dance of each in
establishing appropriate—and appropriable—content for the minimum core.
The end result is an amalgam of univers al and country-specific cores, whose
adjustability belies the pret ensions of each “core” to represent an absolute
(and nonderogable) minimum.
The third approach locates the minimum core in th e content of the
obligations raised by the right, rather than the right itself. This approach has
been employed in the more recent General Comments of the Committee.17 Of
the three perspectives, the focus on obligations admits the greatest attention to
the institutional aspects of supervising, enforcing, and claiming rights, which
the first approach deliberately defers, and the second only implicitly fosters.
Thus, a division of core and non-core obligations most explicitly addresses the
institutional competence of the international organ declaring noncompliance,
or of the domestic court declaring a violation of a justiciable obligation, and
may factor in pragmatic considerations of costs and feas ibility in assessing
which obligations to treat as core. Yet, as Part IV of this Article shows, the
practical constraints th at are given prominence
within the concept of
minimum core obli gations—namely the supervisory competence of the
Committee, or the jurisdictional comp etence of a court— ultimately carry it
too far from its normative ambitions.
After examining each appr oach, Part V presents what it deems to be
more plausible alternatives. It suggests that the minimum core concept will
always elude attempts at definiti on along essentialist, po sitivist, or even
institutionalist lines. Instead, it argues th at a better approach is to reverse the
16. General Comment No. 3, supra note 1, ¶ 10.
17. See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural
Rights, General Comment No. 18: Th e Right to Work (art. 6) , ¶ 31, U.N. Doc. E/C.12/GC/18 (Feb. 6,
2006) [hereinafter General Comment No. 18]; General Comment No. 14, supra note 10, ¶¶ 43-45; U.N.
Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rights, General Comment No. 15:
The Right to Water (arts. 11, 12) , ¶¶ 37-38, U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003) [hereinafter
General Comment No. 15].