2008]
The Minimum Core of Economic and Social Rights
157
core obligations allow the Committee to claim its own jurisdictional turf. This
might explain why the cor e obligations that are supposed to flow from the
right to work share little with the fu ndamental labor righ ts—against child
labor and forced labor—which figure in the conventions of the International
Labour Organization. 250 Moreover, this explanation aligns with a more
general trend that has resulted from the expansion of international treaties. For
example, José Alvarez ha s identified the impetu s of controlling “mission
creep” and overlapping “regime complexes” in international law:
[W]hen an [international organization] . . . becomes such an effective treaty machine that
states can no longer keep up with their resp ective reporting obligations, it is natural that
the organization itself would need to enuncia te the ‘core’ obligations expected of all
members, even though no such setting of pr
iorities is explicitly authorized by its
251
constitutive instrument . . . .
Adopting a more critical frame towards the process of “f ragmentation” in
international law, Martti Koskenniemi suggests that the speci alizations of
“trade law” and “human rights” law h ave begun to reverse established legal
hierarchies by giving greater credence to the structural bias within the relevant
functional expertise.252 This explains the different substance and greater legal
priority of core obligations emanating from the international trade regime and
the international la bor regime over the regime of human ri ghts. If we appl y
this account to the Comm ittee’s work, we can pred ict a reversal in the
normative prioritization behind core obligations, as the Committee negotiates
its own agenda in relation to organizations established under the enforceable
trade, development, and labor regi mes. The incentive on the Committee to
avoid, or at leas t control, areas of overlap subverts both the Consensus
Approach and the Essence Approach, l eaving “core obligations” a substitute
term for the Committee’s (circumvented) authority. This explanation predicts
that core obligations will become na rrower and ultimately compromised by
the strength of the other substantive regimes. Before addressing this issue
more fully below, I tu rn to a ra ther different recommende d content for core
obligations: the aspect of the mini mum core which gives rise to justiciable
complaints. This takes us outside of
the supervisory competence of the
Committee to the adjudicatory competence of both national and supranational
courts and tribunals.
250. There are important differences between the “core rights” of the ILO and the right to work
in Article 6 of the Covenant. E.g., Philip Alston, ‘Core Labour Standards’ and the Transformation of
the International Labour Rights R egime, 15 E UR. J. INT’L L. 457 (2004) (exam ining the implications of
the core rights jurisprudence of th e ILO); cf. Brian Langille, Core Labour Rights—The True Story
(Reply to Alston), 16 E URO. J. INT’L L. 409 (2005). The em phasis on “core obligations,” however, does
not reflect these differences and areas of possible overlap.
251. José E. Alvarez, International Organizations: Then and Now, 100 AM. J. INT’L L. 324, 327
(2006) (referring to the core obligations under the ILO); see also Dinah Shelton, Normative Hierarchy in
International Law, 100 AM. J. INT’L L. 291 (2006) (exam ining conflicting human rights norm s in
multiple international treaties and institutions).
252. Koskenniemi, supra note 183, at 4; see also U.N. Int’l Law Co mm’n, Fragmentation of
International Law: Difficulties Aris ing from th e Diversification and Expansion of International Law ,
U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006) (prepared by Martti Koskenniemi).
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents