2008] The Minimum Core of Economic and Social Rights 115 specific, is it othe rwise context-sensitive or context-blind? 8 Is it a more general or more precise instan tiation of the parent right ?9 And, who gets to determine what it is? As applied, the concept is no le ss problematic. The United Nations Committee on Economic and Social Ri ghts (“the Committee”), the first international body to articulate the concept, has, since 1990, variously equated the minimum core wit h a pres umptive legal entitlement , a nonderogable obligation, and an obligat ion of strict liability. 10 At the constitutional level, advocates of the concept (whose positions, as we will see, are most developed in relation to the economic and social rights provisions of the South African Constitution) 11 have argued for the concept ’s immediate enforceability, justiciability, and value as a benchmar k against which government programs can be temporall y oriented and ass essed. 12 These positions, superficially persuasive for resolving the challe nges of economic and social rights implementation, are hopelessly incompatible in practice. One response to these co nceptual and doctrinal criticisms would be to jettison the concept of the minimum core. Some commentators have urged this course of action, even those who are otherwise committed to the economic universality of hum an rights.”), and Geraldine Van Bueren, Of Floors and Ceilings: Minimum Core Obligations and Children, in EXPLORING THE CORE CONTENT, supra, at 183, 184 (“[T]here would be no point in having a minimum core of state responsibility if it were not universal.”). 8. See Coomans, supra note 7, at 180. Commans warns that a sensitiv ity to context would mean that: [T]he people’s needs and the available opportun ities would determine the core of a right, rather than star ting with the r ight itself. In effect this would m ake implementation of a right dependent on the outcom e of a political bargaining process that would entail identifying the needs of the people along with the desirable and feasible opportunities, and abandoning a rights-based approach. Id.; cf. Danie Brand, The Minimum Core Content of the Right to Food in Context: A Response to Rolf Künneman, in EXPLORING THE CORE CONTENT, supra note 7, at 99, 106 (“[T]he core content is of necessity a shifting concept.”). 9. Compare DAVID BILCHITZ, POVERTY AND FUNDAMENTAL RIGHTS: THE JUSTIFICATION AND ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS 198 (2007) (“[T]he role of the court in this respect would be to set the general standard that constitutes the m inimum core obligation of the state . . . .”), with Scott & Alston, supra note 7, at 250 (advocating “the responsibility to exercise best judgment in the national and local context . . . balan c[ing] reaction to deprivation on a ‘calling it as we see it’ c ase-bycase basis with a pragmatic sense of what remedies are desirable and likely to prove effective”). 10. Compare General Comment No. 3 , supra note 1, ¶ 10, (allowing an infringement of the minimum core when “every effort has been made to use all resources that are at its disposal to satisfy, as a matter of priority, those minimum obligations”), with U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (art. 12), ¶ 47, U.N. Doc. E/C.12/2004 (Aug. 11, 2000) [hereinafter General Comment No. 14 ] (“[A] State party cannot, under any ci rcumstances whatsoever, justify its noncompliance with . . . core obligations . . . which are non-derogable . . . .”), and Statement: Poverty and Covenant, supra note 5, ¶¶ 16, 18. 11. S. AFR. CONST. 1996 ss. 26-27 (establishing rights of access to housing, healthcare, food, water, and social security). 12. See, e.g., Pierre de Vos, The Essential Components of the Human Right to Adequate Housing—A South African Perspective , in EXPLORING THE CORE CONTENT, supra note 7, at 23, 23-24, 26 [hereinafter de Vos, Essential Components] (advocating justiciability); cf. Theunis Roux, Understanding Grootboom—A Response to Cass R. Sunstein, 12 CONST. F. 41, 46-47 (2002) (suggesting a strict priority-setting approach which would outline “the temporal order in which government chooses to meet competing social need s,” with assistance from the minimum core concep t in the In ternational Covenant on Economic, Social and Cultural Rights).