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THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 33: 113
evidence, addressing the healt h concerns of the whole population.” 244 It is
difficult to determine whether the Comm ittee designated these obligations as
core because of t heir immediate practicability or their grea ter moral salience;
on both grounds, the core obliga
tions are subject to criticism. 245 The
Committee’s response to the practicability of the core obligations (and by
implication, their affordability) is to posit a duty of assistance and cooperation
on both state parties and non-state actors who are “in a position to assist.”246
In its latest General Comments, the Committee has once again shifted its
articulation of core obligations. Although they follow the same template, core
obligations are now more general.
Thus, for example, a recent General
Comment, published in 2005 i n relation to the right to work, suggests that
“core obligations” relate mainly to duties of nondiscrimination. 247 The
substance of these “core obligations ” contains little overlap with the
normatively prioritized principles of the right to work in other (specialized)
treaties.
Two different sorts of explanation account for the C ommittee’s
diverging methodology with re spect to core obligations . The first is the most
obvious. It suggests that the Committee issues comments on different rights in
the Covenant and finds it appropriate to adapt its orientation to the unique
obligations raised by each right . For example, the right to health raises more
complex issues of priorities, duties, an d supervision than do the rights to food
and water.248 The right to work, to o, entails unique hist orical and ideological
challenges by virtue of its more exp licit incompatibility w ith capitalist labor
markets and global economic integration. 249 At base, this explanation grasps
that all economic and so cial rights ar e not created equal and that the
Committee’s modifications of “core obl igations” respect this difference.
Nonetheless, it fails to account for th e timing of the Comm ittee’s shifts, and
the fact that rights which raise
similar distributional questions and
challenges—such as food and water—ar e assigned very different core
obligations.
The second explanation for the
Committee’s shift follows a more
expansive view of its efforts within the international treaty system. It registers
the pressures on th e Committee to operate meaningf ully with respect to the
Covenant while not impacting other substantive treaty regimes. On t his view,
244. Id. ¶ 43(f) (setting out a partic
ipatory process and a refe rence to indicators and
benchmarks to give content to the process).
245. Karrisha Pillay, South Africa’s Commitment to Health Rights in th e Spotlight: Do We
Meet the International Standard? , in EXPLORING THE CORE CONTENT, supra note 7, at 61, 66-68
(recommending that South Africa’s healthcare priorities not be set by General Comme nt No. 14 because
of its f ailure to includ e an obliga tion to m eet the challenge of the HIV/ AIDS pandemic as core);
Benjamin Mason Meier, Employing Health Rights for Global Justi ce: The Promise of Public Health in
Response to the Insalubrious Ramifications of Globalization , 39 C ORNELL INT'L L.J. 711, 735-36 (2006)
(suggesting that the essential drugs goal can be met by few states).
246. General Comment No. 15, supra note 17, ¶ 38 (“particularly incumbent on States parties .
. . and other actors in a position to assist”); General Comment No. 14, supra note 10, ¶ 45.
247. General Comment No. 18, supra note 17, ¶ 31.
248. E.g., BILCHITZ, supra note 9, at 220-25 (proposing a
pplication of an additional
“pragmatic” minimum core for the right to healthcare, as opposed to a more prin cipled approach to the
minimum core specified for food, water, and shelter).
249. Richard Lewis Siegel, The Right to Work: Core Minimum Obligations
, in CORE
OBLIGATIONS, supra note 225, at 21, 24-26.
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