Research Summary October 2017 The Minimum Core Obligations of Economic, Social and Cultural Rights: The Rights to Health and Education Dr Kirsteen Shields 2 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N The Minimum Core Obligations of Economic, Social and Cultural Rights: The Rights to Health and Education Dr Kirsteen Shields Research Summary | October 2017 The Nordic Trust Fund The World Bank Disclaimer: The findings, interpretations, and conclusions expressed in this study are entirely those of the authors. They do not necessarily represent the views of the World Bank and its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent. III Contents Abbreviations ....................................................................................................................................................V Executive Summary........................................................................................................................................ VII Abstract............................................................................................................................................................. IX 1. Historical Context..........................................................................................................................................1 2. Definitions of the of the MCD..................................................................................................................... 2 3. The Legal Basis of MCOs............................................................................................................................. 3 a. Legal Basis of MCOs at the International Level............................................................................................................... 3 b. The Legal Basis of ESCR MCOs at the Regional Level. ................................................................................................ 4 c. The Legal Basis of MCOs at the National Level............................................................................................................... 5 4. Choosing a taxonomy of minimum core obligations.............................................................................. 6 5. Developing a Taxonomy............................................................................................................................. 8 a. Nature of MCOs............................................................................................................................................................................... 8 i. Concept....................................................................................................................................................................................... 8 ii Scope............................................................................................................................................................................................ 8 iii Conceptual value.................................................................................................................................................................... 8 iv Content........................................................................................................................................................................................ 8 v Challenges.................................................................................................................................................................................. 9 vi Indicators and benchmarks .............................................................................................................................................. 9 b. Implications....................................................................................................................................................................................... 9 6. A 5 Step Process for ‘MCO’ Identification.............................................................................................. 10 7. Case-Study I: Right to Education.............................................................................................................. 11 a. Identification of ICESCR provisions on the right to education (Steps 1-3). .......................................................11 b. Identifying MCOs within the ICESCR right to education? (Step 4)......................................................................12 i. International level. ..................................................................................................................................................................12 ii. National level. ...........................................................................................................................................................................12 c. What has MCD been interpreted to mean in relation to the right to education? (Step 5). ......................13 i. Immediacy. ................................................................................................................................................................................13 ii. Non-derogability................................................................................................................................................................... 14 iii. Universality............................................................................................................................................................................... 14 iv. Prioritisation............................................................................................................................................................................ 14 IV T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N 8. Case-Study II: Right to Health...................................................................................................................15 a. Identification of ICESCR provisions on the right to health (Steps 1-3). ..............................................................15 b. Identifying MCOs within the ICESCR right to health (Step 4). ...............................................................................15 i. International. .............................................................................................................................................................................15 .....................................................................................................................................................................................17 ii. Regional. iii. Domestic....................................................................................................................................................................................18 c. What has MCD been interpreted to mean in relation to the right to health? (Step 5). ..............................19 9. Indicators......................................................................................................................................................21 Conclusion.........................................................................................................................................................23 Nordic Trust Fund (NTF) is a knowledge and learning initiative to help the World Bank develop a more informed view on human rights. It is designed to improve existing Bank involvement on human rights in the overall context of the Bank’s core mission of promoting economic growth and poverty reduction. The NTF is managed by a secretariat in the Operations Policy and Country Services vice-presidency (OPCS). Financial and staff support for the NTF is provided by Denmark, Finland, Iceland, Norway, and Sweden, with additional funding provided by Germany. A bbreviatio ns V Abbreviations CESCR Committee on Economic, Social and Cultural Rights ESC Economic, social and cultural ICESCR International Covenant on Economic, Social and Cultural Rights MCD Minimum Core Doctrine MCO Minimum Core Obligations E x ecutive Summary VII Executive Summary T he minimum core doctrine (“MCD”) is derived from International Covenant on Economic Social and Cultural Rights (“ICESCR” or “the Covenant”) adopted under the aegis of the United Nations (UN) and is derived from the UN CESCR’s (Committee on Economic, Social and Cultural Rights) interpretation of the Covenant. This paper describes various approaches to MCD but ultimately anchors its explanation of MCD in minimum core obligations (“MCOs”) and it develops existing knowledge on MCOs attached to economic and social rights (ESCR) under the Covenant and suggests ways in which the doctrine might have relevance for development policy and practice. • This paper demystifies MCD and the nature of and defining MCO; and in applying this theoretic MCOs by bringing together seminal contributions construct of MCOs to the right to health. from John Tasioulas and Angelina Fisher on the • This paper presents the two case studies system- legal basis of MCOs, their nature and parameters atically to draw out their inferences for the impli- and their application to the right to education and cations and application of MCOs in the contexts of the right to health respectively education and health to demonstrate how MCOs • It confirms the legal and philosophical grounding are derived from the UN ICESCR provisions. The of MCD in MCOs and it outlines the legal and analysis is structured around two questions: (i) conceptual contributions of MCD and its potential How are the MCOs to be identified in the contexts implications, including for development policy of the right to education and the right to health? and practice, for example by helping to guide pri- (ii) What has MCO been interpreted to mean in oritization and competing policy demands or by these contexts? setting limits on the blanket use of the concept of • The immediacy of the minimum core obligation progressive realization, which is sometimes mobi- (which Tasioulas suggests is the critical piece) is lized to defend failures to realize economic, social the feature that can be most clearly observed as and cultural (ESC) rights or to provide adequate the common (even if not consistent) thread both resource allocations for ESC rights realization. in the context of the right to health and in the • MCOs are identified as a sub-set of obligations context of the right to education. associated with ESC rights that must be fulfilled • Given the increased emphasis on indicators in devel- immediately and in full, by all states. opment policy and analysis as well as the growing • In addition, this paper incorporates Tasioulas’s body of work on human rights measurement and identification of key characteristics of MCOs human rights indicators, the paper also considers through a 5-step framework to assist in identifying the strengths and weaknesses of indicators in relation to MCOs. A bstract IX Abstract E conomic, social and cultural rights (ESCR), such as the right to education and the right to health, comprise one of the two principal pillars of the UN human rights framework—the other pillar of which is consti- tuted of civil and political rights (CPR); together with the UDHR, these two groups of rights comprise the “international bill of rights”. ESCR also overlap substantially with development activities, in that they share significant subject matter coverage. Put differently, development activities now occupy many areas governed by ESCR. ESCR are also central to conflicts over resource allocation which increasingly arise in both developed and developing countries as a result of crises stemming from climate change, violent conflict and war and displacement. In such resource constrained contexts, ESCR, and MCD in particular, provide a potential means to prioritise resource allocation through the identification of MCOs. In addition to generally applicable human rights their General Comments issued to interpret and guide structural principles such as universality, inalienability, the implementation of the ICESCR. In particular, the indivisibility, interdependence and non-discrimination Committee’s General Comment 3 states that particular inter alia, ESCR are subject to a number of distinct ESC rights are subject to MCOs (or more generally doctrines, such as ‘progressive realisation’ and the subject to MCD). Yet the MCD has not been effectively obligation not to adopt non-retrogressive measures translated or given practical applicability. and minimum core. Of these, the doctrine of ‘minimum This report is financed by the World Bank Nordic core’ is under-developed and often misunderstood. Trust Fund; it was written by Dr. Kirsteen Shields under At the same time, MCD should provide direction for the guidance of Aris Panou (Task Team Leader), Dr. development policy makers practitioners to estab- Siobhan McInerney-Lankford, and Melinda Good. It lish priority needs in resource-constrained contexts draws upon the work of the UN Committee on Eco- and it may help place some limits on the excessive nomic, Social and Cultural Rights (UN CESCR), specially deployment of “progressive realization” to excuse commissioned research papers by John Tasioulas of poor performance on ESC rights realisation, or defend King’s College, University of London and Angelina inadequate or inappropriate resource allocation with Fisher, of New York University, and expert inputs of, respect to ESC rights. In a more general way, MCD Prof Robert McCorquodale, Prof Aoife Nolan and par- helps recall the equal importance of ESC rights as ticipants of a June 2017 expert workshop hosted by the human rights, on par with civil and political rights. World Bank Legal Department which included experts MCD has been articulated by the UN Committee from the Health Nutrition and Population (HNP), and on Economic, Social and Cultural Rights (CESCR) in Education Global Practices of the World Bank. X T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N It forms part of a package of research papers1 com- to the development of ESC rights, to which the MCD missioned by World Bank staff, that includes papers is central and to a more informed understanding of by John Tasioulas and Angelina Fisher which seeks ESC rights in the development context. to establish the foundations, application and implica- Recognising and establishing MCOs requires devel- tions of the MCD through analysis of UN documents oping an objective normative foundation for these and regional and state practice. Tasioulas’ framework obligations. In other words, these obligations require paper provides a more in-depth analytical framework a foundation in existing legal and moral obligations for understanding MCD; this is complemented by two of states. The realisation of MCOs also requires an companion papers, which illustrate the MCD through analytical framework which addresses the definition- the examples of the right to health (Tasioulas) and al questions pertaining to MCOs, in particular their right to education (Fisher). From these case studies, identification, definition, value and content. Through the ‘immediacy’ of minimum core obligations emerges using this framework it is possible to identify a mean- as the most commonly and clearly observed feature, ing and content of MCOs as analytically ‘robust’ and other features such as non-derogable nature, justicia- ‘politically inclusive’. bility and ‘special value’ (e.g. such as a relationship to ‘human dignity’) are also discernible but less clearly. It is not the aim of this research to argue for a specific 1  The package comprises 4 papers in all: (i) this summary report; list of MCOs. Instead it seeks to elucidate the MCD and (ii) Tasioulas’s framework paper on MCO and two companion identify and define a framework through which MCOs papers on (iii) the right to health (Tasioulas) and (iv) the right to may be identified. In this respect, this work is pivotal education (Fisher). Historical Con te xt 1 1. Historical Context ESC rights, as we know them today, were first codified in states parties must prioritize the realization of people’s basic the Universal Declaration of Human Rights (1948) and later economic, social and cultural rights, and there must continual elaborated in the UN ICESCR. Disagreement amongst states progress on people’s enjoyment of ESC rights. at the time of drafting led to the provisions within the ICE- This is recognised as the inception of the MCD. Neither SCR being classed as ‘second generation’ rights subject to MCD nor MCOs feature in the text of the Covenant; the ‘progressive realisation’. This was in contrast to civil and doctrine was introduced by the Committee with the aim political rights, which were termed ‘first generation’ rights of ensuring “the satisfaction of, at the very least, minimum and subject to immediate realisation. essential levels of each of the rights is incumbent upon every According to the doctrine of ‘progressive realization’: State party.”3 Beyond the general obligation that states parties “Each State Party to the present Covenant undertakes to have to prioritize the realization of ESC rights (over expen- take steps, individually and through international assistance ditures in other areas) the Committee has used the doctrine and co-operation, especially economic and technical, to the to identify a sub-set of demands within the total body of maximum of its available resources, with a view to achieving requirements imposed by economic, social and cultural rights progressively the full realization of the rights recognized in in General Comments issued by CESCR.4 the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” 2 2  ICESCR Article 2(1). Subsequently the Committee on ESC rights (hereafter 3  Amrei Müller, “An Analysis of Health-Related Issues in Non-Inter- “the Committee)” identified steps that should be taken national Armed Conflicts” in Michael O’Flaherty and David Harris immediately regardless of the level of resource availability (eds) The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law, Nottingham Studies (CESCR General Comment 3). For example, the elimination on Human Rights (2013). of discrimination and improvements in the legal and juridical 4  In particular, see CESCR General Comment 3, ‘The nature of States systems do not necessarily pose an inordinate burden on parties’ obligations’, (Fifth session, 1990), U.N. Doc. E/1991/23, resources. Moreover, in many cases ESC rights are violated not annex III at 86 (1991), and CESCR General Comment 14, ‘The Right to the Highest Attainable Standard of Health (Art. 12)’, adopted at because resources are not available, but rather because they the Twenty-second Session of the Committee on Economic, Social have been misallocated. At any level of resource availability, and Cultural Rights, on 11 August 2000, E/C.12/2000/4). 2 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N 2. Definitions of the of the MCD The attached research papers of Tasioulas and Fisher identify • ‘Priority’ rights ‘immediacy’ as the most common and clear feature of MCOs, • ‘Immediately applicable’ rights found in UN documentation and state practice. It is important to observe that wider definitions of the MCD discernible in Lack of certainty around the meaning of minimum core UN documentation, state practice and the commentaries has impeded its utility in practice. This is compounded by of practitioners and academics exist. These have included the multiplicity of interpretations and by scepticism about discussion of the following points of definition: the coherence and utility of the doctrine, as well as what • Universal or state specific standards? (- Not specific to some commentators have observed as a lack of consistency MCOs and arises for human rights generally) in the Committee’s own interpretations and deployment of the doctrine. According to some accounts, the “minimum • Justiciable or non-justiciable? core” doctrine aims to set a quantitative and qualitative floor • Immediacy, Essence, or Consensus as the defining feature? of economic, social and cultural rights that must be immedi- ately realized by the state as a matter of priority.5 Yet these Minimum core obligations also apply across the tripartite floors are rarely identified and states’ engagement with the typology of human rights obligations, established as: minimum core doctrine and terminology is rare and where • to respect (refrain from interfering with the enjoyment states’ have articulated an interpretation of the doctrine, their of the right); interpretation has not necessarily been consistent with the • to protect (prevent others from interfering with the Committee’s. This research gathers and systemise knowledge enjoyment of the right); and precedent from the relevant UN, regional and state actors • to fulfil (adopt appropriate measures towards the full in order to identify commonalities in approaches to MCOs. realization of) economic, social and cultural rights. 5  U.N. Doc. E/C.12/1993111, para. 5; M. Craven, “Assessment of the In the widest sense, the term also potentially overlaps with progress on adjudication of economic, social and cultural rights” other categorisations of rights such as: in J. Squires, M. Langford, M., B. and Thiele (eds.) The road to a remedy: Current issues in the litigation of economic, social and • ‘Minimum floor’ rights cultural rights (2005) Australian Human Rights Centre and Centre on Housing Rights and Evictions, p. 39. The Leg al Basis of MCOs 3 3. The Legal Basis of MCOs ensure the satisfaction of, at the very least, minimum a. Legal Basis of MCOs at the essential levels of each of the rights is incumbent International Level upon every State party.” ‘Minimum essential levels’ were applied to the contexts of The legal basis of Minimum Core Obligations (MCO) sup- foodstuffs, primary health care, basis shelter and housing, plements a generic obligation set out in the ICESCR which and education. General Comment No 3: places an obligation on the state parties to: “[U]ndertake to take steps, individually and through Box 1: A note on the Legal Status of international assistance and co-operation, especially General Comments economic and technical, to the maximum of its available resources, with a view to achieving pro- General Comments are issued by the UN human gressively the full realization of the rights recognized rights monitoring bodies and are intended to give in the present Covenant by all appropriate means, guidance on the interpretation of treaties, although they are not legally binding sources of law. They including particularly the adoption of legislative are properly understood as “authoritative state- measures.” (Article 2) ments of the law”. As Angelina Fisher observes: This provision has been interpreted by the Committee on “As a general matter, General Comments of ESCR to include: the human rights committees do not constitute • An immediate obligation to take steps towards the binding legal pronouncements. However, over realisation of the rights time General Comments have arguably acquired • An immediate obligation to not adopt regressive measures a normative role. For example, regional human rights commissions and courts often treat them The Committee on ESCR issues General Comments to assist as “internationally accepted ideas of the various the interpretation of particular provisions of the Covenant. obligations engendered by human rights” and as “authoritative statements of the law”. Many In an effort to define the normative content of each of domestic courts consider General Comments the ICESCR rights, the CESCR issued General Comment No as supplementary means of interpretation and 3 in 1990. General Comment No 3 confirms that a ‘minimum often refer to them alongside judicial prece- core obligation’ attaches to each of the rights contained in dents.” (Angelina Fisher, ‘Minimum Core and the Covenant: Right to Education’, at page 14., citing Conway “On the basis of the extensive experience gained Blake, “Normative Instruments in International Human Rights Law: Locating the General Com- by the Committee, as well as by the body that pre- ment”, Center for Human Rights and Global ceded it, over a period of more than a decade of Justice Working Paper (2008), http://chrgj. examining States parties’ reports, the Committee org/wp-content/uploads/2012/07/blake.pdf) is of the view that a minimum core obligation to 4 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N “Thus, for example, a State party in which any “By the same token, it must be noted that any significant number of individuals is deprived of assessment as to whether a State has discharged its essential foodstuffs, of essential primary health minimum core obligation must also take account care, of basic shelter and housing, or of the most of resource constraints applying within the country basic forms of education is, prima facie, failing concerned. Article 2 (1) obligates each State party to discharge its obligations under the Covenant.” to take the necessary steps “to the maximum of its available resources”. In order for a State party to The General Comment also identified the risk of not be able to attribute its failure to meet at least its having minimum essential levels: minimum core obligations to a lack of available “If the Covenant were to be read in such a way as resources it must demonstrate that every effort to not establish such a minimum core obligation, has been made to use all resources that are at its it would be largely deprived of its raison être.” disposition in an effort to satisfy, as a matter of Resource constraints are inherent to the doctrine of priority, those minimum obligations.”6 ‘minimum core’: Box 2: Features of MCOs discernable in the work of the UN Committee on ESCR Key associated features of MCOs developed in UN Committee on ESCR General Comments (especially GCs# 3, 13, 14 and 22) (a) Immediacy It must be fully satisfied with “immediate effect” by all states, as opposed to belonging to that aspect of a right’s content which may in principle permissibly be fully complied with in the longer-term in accordance with the doctrine of ‘progressive realization’. (b) Special value Its justification or content bears some peculiarly intimate relationship to an underlying, high-priority value, such as human dignity or basic needs required for survival; (c) Non-derogability It is non-derogable as a matter of normative force, in that it no compet- ing considerations can ever justify non-compliance with a human rights demand that belongs to the ‘minimum core’, even in an emergency; (d) Justiciability It is or should be justiciable, i.e. enforceable (presumably by the right-holder, at least in the first instance) through domestic or supranational courts. 6  Para 10, Committee on Economic, Social and Cultural Rights, General Comment 3, ‘The nature of States parties’ obligations’, (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), reprinted in Compilation of General Comments and General Rec- b. The Legal Basis of ESCR MCOs at ommendations. Adopted by Human Rights Treaty Bodies, U.N. Doc. the Regional Level HRI/GEN/1/Rev.6 at 14 (2003). 7  Inter-American Commission on Human Rights, “Human Rights of Migrants and Other Persons in the Context of Human Mobility in MCO for ESCR have been developed in regional human rights Mexico” (2013); Annual Report of the Inter-American Commission on instruments at the Inter-American, African and European Human Rights 1993, OEA/Ser.L/V.85 Doc. 9 rev. 11 February 1994, levels. MCO are not included in the Arab Charter on Human Chapter V; Juvenile Reeducation Institute v. Paraguay, Judgment Rights.7 They are also included in legal documents, reports (IACtHR, 2 Sep. 2004). 8  The African Commission on Human and Peoples’ Rights, Princi- and jurisprudence of the Inter-American Commission on ples and Guidelines on the Implementation of Economic, Social and Human Rights,8 the African Commission on Human and Cultural Rights in the African Charter on Human and Peoples’ Rights, http://www.achpr.org/files/instruments/economic-social-cultural/ achpr_instr_guide_draft_esc_rights_eng.pdf The Leg al Basis of MCOs 5 Peoples’ Rights and the European Court of Human Rights.9 international treaty for instance), Fisher suggests that courts he evolution of the MCOs in regional human rights is are the appropriate institution to delineate the meaning and elaborated in the case studies below. content of the minimum core. c. The Legal Basis of MCOs at the National Level 9  See generally I.E. Koch, Human Rights as Indivisible Rights: The Protection of Socio-Economic Demands Under the European Conven- tion on Human Rights, Dordrecht (2009), and jurisprudence such It is relatively rare for states to employ the “minimum core” as; Cypres v. Turkey (2001), para. 219. terminology which may be due to the association of the 10  Similarly, in reviewing laws on social protection in India and doctrine with the UN ICESCR.10 That is, the minimum core Indonesia, Chopra notes that although “[j]udicial decisions that require a particular service to be delivered could be understood as doctrine is likely to be invoked when the ICESCR is invoked, impliedly including that service in the state’s minimum, immediately which is not as common at the domestic level; and where effective obligations…courts have not engaged with the concept the ICESCR is not invoked, but rather domestic legal norms, of the minimum core or sought to define it.” Surabhi Chopra , “Legislating Safety Nets: Comparing Recent Social Protection Laws alternative terms are likely to be used. Fisher’s review of in Asia”, Indiana Journal of Global Legal Studies, Vol. 22, No. 2 selected jurisdictions suggests that it is very rare for states to (Summer 2015), pp. 573-629. At the same time, Chopra observes employ the “minimum core” terminology, but that alternative that when Indian government attempted to prescribe the minimum terms such as ‘basic education’ in the context of the right requirements for ensuring “adequate quantity of quality food at affordable prices” in the National Food Security Act (2014), it created to education, which resemble the minimum core doctrine an unambiguous but extremely spare right that was far thinner than do appear. In addition, there exist divergent approaches the conception of right to food under international standards. By between institutions at the domestic level in relation to the contrast, Indonesia created a universal system of social security that avoids assigning immediately deliverable, minimum core duties to UN ICESCR. In those instances where the courts are empow- the state, but instead “conceptualizes social security as a right to be ered to refer to the UN ICESCR (through incorporation of progressively realized, thereby creating expansive but weak rights”. 6 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N 4. Choosing a taxonomy of minimum core obligations “The starting-point in assessing the meaning, those affected. Subsequent work of CESCR has not implications, and utility of the MCD is to arrive at a integrated this approach however. coherent and compelling interpretation of Paragraph 10.” Tasioulas11 11  John Tasioulas, Nordic Trust Fund /World Bank Paper 1, ‘Mini- Taxonomies which seek to define the content MCD have mum Core Obligations: Human Rights in the Here and Now’, page emerged through discussion of the CESCR’s MCD in academic 12 citing the Committee on Economic, Social and Cultural Rights, General Comment 3, ‘The nature of States parties’ obligations’, or policy spheres. Leading academics have addressed the (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), MCD from different angles. Most of these anchor the MCD reprinted in Compilation of General Comments and General Rec- in minimum core obligations (MCOs), though some anchor ommendations. Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 14 (2003). Paragraph 10 states: “On the basis it instead in rights. Some of the key taxonomies to emerge of the extensive experience gained by the Committee, as well as by are: (i) Alston and Scott’s approach that seeks to identify the body that preceded it, over a period of more than a decade of a framework that make MCOs workable – they propose examining States parties’ reports the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very through universal and state specific standards; (ii) Young’s least, minimum essential levels of each of the rights is incumbent approach that addresses what MCO represent in terms of upon every State party. Thus, for example, a State party in which any ‘normative value’ - essentially what makes MCOs, MCOs; significant number of individuals is deprived of essential foodstuffs, and (iii) Tasioulas’s approach which focuses on the nature of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge and implications of MCOs. its obligations under the Covenant. If the Covenant were to be read These key taxonomies are summarised and contrasted in such a way as not to establish such a minimum core obligation, broadly below. it would be largely deprived of its raison d’être. By the same token, it must be noted that any assessment as to whether a State has i. The “two minimum cores”: This approach, advo- discharged its minimum core obligation must also take account of cated by Scott and Alston and broadly supported resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps “to the max- by Müller, proposes “two minimum cores” – one imum of its available resources”. In order for a State party to be able that is universal evidencing the absolute floor and to attribute its failure to meet at least its minimum core obligations another that is state-specific.12 The ‘absolute floor to a lack of available resources it must demonstrate that every effort of obligations’ terminology is used in relation to has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.” social security policy at the international and national 12  Scott, Craig, and Philip Alston, “Adjudicating Constitutional levels.13 The state-specific obligations element was key Priorities in a Transnational Context: A Comment on Soobramon- to early developments at CESCR. Philip Alston, who ey’s Legacy and Grootboom’s Promise”, South African Journal of Human Rights 16 (2000): 206-268; Amrei Müller, “An Analysis of played a key role in drafting the General Comment has Health-Related Issues in Non-International Armed Conflicts” in observed that the original intention of the CESCR was Michael O’Flaherty and David Harris (eds) The Relationship between that a minimum core would be set at the national level Economic, Social and Cultural Rights and International Humanitarian Law, Nottingham Studies on Human Rights (2013) by the political authorities and its adequacy would 13  For example: CESCR, ‘Social protection floors: an essential element subsequently be subjected to political contestation of the right to social security and of the sustainable development through the exercise of civil and political rights by goals’ (15 April 2015) UN Doc. (E/C.12/2015/1, paras. 7-8). C hoosin g a taxon om y of mi n im um core obl ig atio ns 7 ii. Young’s taxonomy is based on the nature of rights iii. Tasioulas’s taxonomy is substantiated in the frame- associated with MCD. She identifies the MCD as being work paper on MCOs and in his companion paper on based on the essence, consensus or obligation of the the right to health. This taxonomy focuses on defin- rights. She explains that different bodies have sought ing the nature of obligations rather than the nature to establish that MCOs should be representative of of the rights in relation to the MCD. He considers either the essence of the rights or ‘needs’ at issue;14 the four key associated features of MCOs to be; (a) the consensus around the right;15 or the level of obli- Immediacy; (b) Special content; (c) Non-deroga- gation around the right.16 It is highlighted that there bility; and (d) Justiciability. He considers the hier- is no consensus on the substantive meaning of each archy and prioritisation, compatibility and integral- of the key aspects of rights. For example, there is no ity of each feature to the MCO and advocates that agreement as to whether the essence of the MCOs immediacy is the defining feature. This taxonomy is relates to the level of right realisation necessary developed below. for human survival or the level necessary for human dignity. Box 3: Summary of MCD taxonomies in academic literature Taxonomy Advocate Focus Terms of definition Challenges /Risks “Two Minimum Scott and Alston Blend of minimum Absolute floor of The process and Cores View” obligations and obligations; practices for content of rights State-specific establishing state obligations. specific obligations have not been established. “Three Young Nature of rights Essence; No consensus on framing rationale of Approaches Consensus; survival or dignity Taxonomy” Obligation “Four Tasioulas Nature of obligations Immediacy; There is the general Associations” risk that the Special content; Taxonomy taxonomy reduces the significance or Non-derogability; meaning of those Justiciability rights not considered ‘minimum core’. 14  For example; the Inter- American Commission on Human Rights, in Annual Report 1979-1980, Inter-American Comm’n on Human Rights,OEA/Ser.L/V/II.50, doc. 13 rev. 1, at 2 (1980), available at http://www.iachr.org/annualrep/79.80eng/chap.6.htm. Supported by Fons Coomans, “Exploring the Normative Content of the Right to Education as a Human Rights: Recent Approaches”, http://www. corteidh.or.cr/tablas/r27050.pdf Also by David Bilshitz, “Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance”, 119 S. African L.J. 484 2002; “The minimum core is to be specified in relation to the basic needs that we all share.” 15  For example, this approach is employed by The Maastricht Guide- lines on Violations of Economic, Social and Cultural Rights 1997. 16  This is the approach developed by Tasioulas in his commissioned research. 8 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N 5. Developing a Taxonomy a. Nature of MCOs is at issue are moral obligations corresponding to universal moral rights, there is no reason in principle As Tasioulas’s taxonomy is the predominant one in this to restrict the bearers of these obligations exclusively commissioned research, the following section explains its to states.”18 components in more depth. In the framework paper, Tasiou- iii Conceptual value las describes the: (i) concept (ii) scope, (iii) conceptual value, (iv) content, (v) challenges and (vi) indicators and Conceptually, MCOs encompass a sub-set of ESCR benchmarks of MCOs obligations that must be immediately complied with in full by all states. This conceptual value sheds the i. Concept prevailing and blanket dogma of ‘progressive realisa- tion’ of ESC rights but according to Tasioulas, does With respect to conceptual foundations, Tasioulas not automatically confer related key characteristics establishes a basis for MCOs within international of justiciability, non-derogability, and connection to human rights law which in turn, he asserts, is an underlying value such as human dignity. grounded in morality and in concepts of justice. iv Content ii Scope In relation to content, Tasioulas proposes three In terms of scope, Tasioulas proposes that a distinc- main guidelines: tion can be made between the interests that rights serve (e.g. health and education) and the interests 1. A plurality of types of obligations may in principle to which they may be instrumental (e.g. friendship feature among the minimum core obligations of a or knowledge). given human right; 2. MCOs are a sub-set of human rights obligations and Tasioulas rejects the approach which assumes that all rights must satisfy both general and specific constraints partly justified by the interest in health form part of the right pertaining to the proper scope of a given human right, to health (the ‘maximalist’ approach identifiable in some the possibility of compliance, the imposition of an UN General Comments). Instead he advocates for a more obligation not being unduly burdensome, and a holistic constrained approach to identifying rights situations. He constraint of consistency with other obligations; gives the example of the right to health’s scope of concern 3. The MCD constitutes an invariant standard across is determined by the subject-matter of the obligations asso- different societies, irrespective of their differences in ciated with it, which primarily concern three matters: the levels of available resources; in this way, the content provision of medical services, public health measures and of obligations of ‘immediate effect’ is truly universal some of the social determinants of health.17 With respect to scope in the wider sense, Tasioulas 17  John Tasioulas, supra at page 8. also includes actors. He states; “Given that what 18  John Tasioulas, supra at page 7. Develop in g a Taxon omy 9 rather than variable in light differential resource • Contextualization: Indicators must be context endowments. sensitive. Furthermore, Art 2(2) ICESCR infers that there is a minimum • Fetishization: Compliance with indicators must core obligation on states not to discriminate on the imper- not be a replacement to enhancing compliance missible grounds when seeking to secure Covenant rights. with human rights. instead indicators should Therefore, in reality it is unlikely that any ESC right does be seen as ways of promoting compliance with not have an associated minimum core. the MCD.21 v Challenges b. Implications Tasioulas identifies 4 sets of objections to the MCD. They can be abbreviated to: Understanding MCD and Immediacy: - Are all MCO’s Immediate and Vice versa? • Misplaced objection to non-derogable norms or Aligning MCD with immediacy potentially brings several justiciability of ESCR. benefits. Essentially, it addresses “the thorny problem of the prioritization of competing demands”22 arising from rights • That the process of identification lacks coher- and responds to criticism that states can always plausibly ence, - ‘is intolerably indeterminate’. justify non-compliance with any given obligation by appealing to the need to comply with other such obligations. In such • That the MCD is excessively rigid, lacking contexts, the MCD doctrine can serve as a mechanism which sensitivity to important contextual factors that sets a limit to permissible trade-offs and compliance delays in differ significantly from one state to another. cases involving economic, social and cultural rights. The other characteristics of justiciability, non-derogability and special • The attempt to give legal effect to the MCD is values are compatible with immediacy and are important but likely to be counter-productive in practice. not uniform components of the MCD. All MCOs are immediate obligations. However immediate obligations may not be met On the key point that the MCD creates excessively rigid obli- due to lack of resources, and in such circumstances a duty gations that may be counter-productive in practice, Tasioulas to assist on the part of third parties emerges. argues: “It is precisely the point of an adequate deployment The CESCR Committee has repeatedly made clear that of the MCD, on the invariant view, to identify immediate there are situations in which immediate achievement of human rights obligations that apply to all states irrespective MCOs will be impossible: for instance, in its statement of resource variations.”19 This does not exclude scope for that ‘any assessment as to whether a State has discharged some variance in relation to ‘contextual or situational rela- its MCO must also take account of resource constraints tivity’, through ‘margin of appreciation’ or ‘subsidiarity’ or applying within the country concerned. For a state to be ‘proportionality’, nor does it exclude evolution in standards able to attribute its failure to meet at least its MCO to a lack beyond the substantive standard. of available resources it must demonstrate that every effort has been made to use all resources that are at its disposal in vi Indicators and benchmarks an effort to satisfy, as a matter of priority, those minimum Tasioulas asserts: “Assessing compliance with the obligations. So an MCO undoubtedly creates a priority in minimum core obligations should draw on tools terms of outlining what states must prioritise in terms of such as benchmarks and indicators, but that these ESR realisation while accepting that it may not always be could not displace the MCD from its vital role.”20 The possible for states to satisfy the MCO, in which case a duty to assist emerges. effective use of indicators to monitor and enhance the implementation of human rights depends on responding to certain important challenges. Tasioulas highlights three: 19  John Tasioulas, supra, at page 32. 20  John Tasioulas, supra, at page 37. • Anchoring: Indicators must be attached 21  John Tasioulas, supra, at page 36. (‘anchored’) to key attributes of a given human 22  John Tasioulas, supra, at page 17. right. 10 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N 6. A 5 Step Process for ‘MCO’ Identification Tasioulas outlines schematically the steps that have to be • Step 3: Identification of the content of the obligations followed in identifying the MCOs associated with any given associated with a given right in light of considerations right in the Covenant: such as possibility and burden. • Step 1: Identification of a given human right in the • Step 4: Identification of the sub-set of obligations asso- Covenant, e.g. the human right to health. ciated with the right that must be fully complied with • Step 2: Identification of the scope of that right, i.e. its immediately by all states (the ‘MCOs’) and hence do appropriate subject matter of its associated obligations. not come within the doctrine of progressive realization E.g. in the case of the human right to health, obligations • Step 5: Identification of the consequences of non-fulfil- pertaining to medical treatment, public health measures ment of minimum core obligations, including secondary and certain social determinants of health duties arising for the target state and other states or international agents. Box 4: Five steps to identify MCOs In the case studies below Steps 1-3 are grouped together (section a), and steps 4 and 5 treated separately (sections b and c respectively). Case-Study I : Rig ht to E ducation 11 7. Case-Study I: Right to Education The international human rights framework protects right (a) Primary education shall be compulsory and to education in the UN ICESCR and the UN CRC and under available free to all; regional human rights instruments in European, American and African contexts. (b) Secondary education in its different forms, The MCD relates specifically to the ICESCR, therefore the including technical and vocational secondary following analysis identifies (a) the relevant provisions of the education, shall be made generally available and ICESCR, (b) commentary on which of these are ‘minimum accessible to all by every appropriate means, and core’ and (c) the implied meaning of minimum core. Many in particular by the progressive introduction of free provisions, both overlapping and additional, on the right to education; education are included in the UN CRC. In order to ensure greater precision, this case study only considers the ICESCR (c) Higher education shall be made equally acces- provisions, but a further analysis could be applied to the UN sible to all, on the basis of capacity, by every appro- CRC provisions. priate means, and in particular by the progressive introduction of free education; a. Identification of ICESCR provisions on (d) Fundamental education shall be encouraged or the right to education (Steps 1-3) intensified as far as possible for those persons who have not received or completed the whole period ICESCR, Article 13, provides that states are required to: of their primary education; “recognise the right of everyone to education…[,] agree that education shall be directed to the full (e) The development of a system of schools at all development of the human personality and the sense levels shall be actively pursued, an adequate fellow- of its dignity, and shall strengthen the respect for ship system shall be established, and the material human rights and fundamental freedoms. … agree conditions of teaching staff shall be continuously that education shall enable all persons to participate improved. (Article 13(1) and (2)).24 effectively in a free society, promote understanding, In addition, ICESCR, Article 14, further provides that if a state: tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the “[h]as not been able to secure in its metropolitan activities of the United Nations for the maintenance territory or other territories under its jurisdiction of peace.”23 compulsory primary education, free of charge, [the state] undertakes, within two years, to work out and ICESCR, Article 13, also lists a series of measures necessary to achieve the full realization of this right: 23  ICESCR, Article 13. 24  ICESCR, Article 13. 12 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N adopt a detailed plan of action for the progressive right to education (e.g., ensuring that children are not implementation, within a reasonable number of prevented from attending schools by third parties), and years, to be fixed in the plan, of the principle of • the “fulfil” obligation means that the state must adopt compulsory education free of charge for all.”25 measures towards full realization of the right (e.g., by The CESCR has also established that the following conditions ensuring that education is culturally appropriate, of apply to all ICESCR rights: good quality; taking appropriate legislative, regulatory and budgetary measures, etc.) The obligation to fulfil (i) states must immediately take steps towards incorporates both an obligation to facilitate and an realization of the right to education to the maximum obligation to provide.27 of its available resources (i.e., inaction cannot be justified by lack of resources) and; ii. National level (ii) states must not adopt retrogressive measures According to Fisher, at the national courts level “minimum (i.e., states cannot repeal existing guarantees or core” term is rarely used in national laws, state reports to take backward steps that will minimize realization human rights bodies or jurisprudence.” Most (but not all) of rights).26 states’ national laws guarantee the right to compulsory free primary education – this generally includes, provision of schools, furniture, textbooks, and transportation. These b. Identifying MCOs within the ICESCR are considered to be essential conditions to the realization right to education? (Step 4) of the right to basic education. This possibly stems from the Article 14 general recognition that the right to primary In order to define the contours of the obligation, the work of education for all includes obligation to provide education the UN committees and international and national jurispru- to children with disabilities, children in detention and other dence is of relevance. It is the treaty bodies, in relation to the vulnerable groups. right to education; the CESCR and CRC, that introduced the term “minimum core” and, (as noted by Fisher) they have 25  ICESCR, Article 14. predominantly defined the term for purposes of evaluating 26  ? states’ compliance with the ICESCR. Although focusing on 27  Special Rapporteur on the Right to Education: http://www.ohchr. the ICESCR provisions, the work of both the CESCR and CRC, org/EN/Issues/Education/SREducation/Pages/SREducationIndex.aspx are relevant as both have interpreted the ICESCR provisions to have ‘minimum core’ content, as well as the work of the UN Special Rapporteur on the Right to Education. The extent to which the MCD has been interpreted and applied at the national level is also considered. i. International level The UN Special Rapporteur on the Right to Education has defined the three types of obligations attaching to the right to education in the following way: In particular: • the “respect” obligation means that the state must refrain from interfering with the enjoyment of the right to edu- cation (e.g., must respect the right of parents to choose their children’s schools), • the “protect” obligation means that the state must pre- vent others from interfering with the enjoyment of the Case-Study I : Rig ht to E ducation 13 Fisher provides the following summary of the MCOs28 : “Minimum Core” obligations for the right to education: • to provide access to public educational institutions and programs without discrimination (this includes the requirement for government to establish and fund educational institutions as well to permit third party to do so) • to secure access for all to primary education that is compulsory and free of charge toensure that education is of good quality (this includes the requirement that the government set minimal standards of health and safety as well professional requirements for teachers) • to ensure that education is directed to the development of human personality and sense of digni- ty, that it enables all persons to participate in a free society, and that it promotes understanding among ethnic, national, racial and religious groups • to ensure that instruction is provided in appropriate language so that the language is not foreign to either the students or the teachers • to prohibit corporal punishment • to adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education; and • to ensure free choice of education without interference from the State or third parties, subject to conformity with “minimum educational standards” “If the Covenant were to be read in such a way as c. What has MCD been interpreted not to establish such a minimum core obligation, it to mean in relation to the right to would be largely deprived of its raison d’être. By the education? (Step 5) same token, it must be noted that any assessment as to whether a State has discharged its minimum The following analysis applies the taxonomy developed by core obligation must also take account of resource Tasioulas in order identify the qualitative dimension of the constraints applying within the country concerned. MCD in relation to the right to education. The next section Article 2 (1) obligates each State party to take the mirrors this analysis in relation to the right to health. The necessary steps “to the maximum of its available analysis seeks to identify factors that are consistent to the resources”. In order for a State party to be able to MCD across legal systems in both developed and developing attribute its failure to meet at least its minimum core countries. obligations to a lack of available resources it must demonstrate that every effort has been made to use i. Immediacy all resources that are at its disposition in an effort MCOs are subject to immediate realization. MCD is not subject to satisfy, as a matter of priority, those minimum to availability of resources and not dependent on the level of obligations.”29 development, although the regional treaty bodies (and some national courts) differentiate between the existence of the 28  Angelina Fisher, Nordic Trust Fund /World Bank Paper 3, “Mini- MCO and implementation of the said obligation (the latter mum Core” and the “Right to Education”, October 2017. 29  Para 10, Committee on Economic, Social and Cultural Rights, is subject to availability of resources). General Comment 3, ‘The nature of States parties’ obligations’, (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), UN Committee on Economic, Social and Cultural Rights, reprinted in Compilation of General Comments and General Rec- General Comment 3, para. 10 implies immediacy: ommendations. Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 14 (2003). 14 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N ii. Non-derogability iv. Prioritisation Only the African Commission takes the view that “minimum When resources are scarce, the MCO pertaining to the right core” obligations are non-derogable. to education require that prioritization is to be given to vulnerable children. iii. Universality There is a lack of clarity if the MCO is universal, state-spe- cific or both. Case-Study I I : Rig ht to Health 15 8. Case-Study II: Right to Health As Paul Hunt, former UN Special Rapporteur on the right to (d) The creation of conditions which would assure health, and lead author of General Comment 14, observed to all medical service and medical attention in the recently: ‘Guidelines on international economic, social, and event of sickness.31 cultural rights are increasing. Nonetheless, on the whole, the In addition, the human right to health – standardly, in the international interpretation and application of these human formulation of a ‘right of everyone to the enjoyment of the rights is a relatively recent enterprise’30 highest attainable standard of physical and mental health’ - has been incorporated into a large number of subsequent treaties and United Nations instruments.32 a. Identification of ICESCR provisions on Also, as with the right to education case study, Article 14 the right to health (Steps 1-3) ICESCR is relevant to the application of the right to health. The human right to health is enshrined in Article 12 of the b. Identifying MCOs within the ICESCR International Covenant on Economic, Social and Cultural Rights (ICESCR). It provides: right to health (Step 4) 1. The States Parties to the present Covenant recognize i. International the right of everyone to the enjoyment of the highest Sub- Step 1: ‘Essential primary care’ attainable standard of physical and mental health. With respect to the right to health, CESCR includes ‘essential primary health care’ as an MCO.33 As Tasioulas notes, the 2. The steps to be taken by the States Parties to the possibility that forms of secondary and tertiary health care, present Covenant to achieve the full realization of or certain social determinants of health, also feature among this right shall include those necessary for: 30  P. Hunt, ‘Interpreting the International Right to Health in a (a) The provision for the reduction of the stillbirth-rate Human Rights-Based Approach to Health’, Health and Human and of infant mortality and for the healthy devel- Rights Journal (2016), p.13. 31  International Covenant on Economic, Social and Cultural Rights, opment of the child; GA Res 2200 (XXI) A (UN Doc A/6316) at 49 (Dec. 16, 1966) 32  UN world summits that reference the right to health include (b) The improvement of all aspects of environmental the Vienna Declaration and Programme of Action, adopted by the and industrial hygiene; World Conference on Human Rights (Vienna), 14-15 June, 1993, esp. paras. 11, 18, 24, 31, and 41; the Programme of Action of the United Nations International Conference on Population and Devel- (c) The prevention, treatment and control of epi- opment; and the Declaration and Programme of Action of the Fourth demic, endemic, occupational and other diseases; World Conference on Women. Three of the eight UN Millennium Development Goals (December 2000) (MDGs) directly relate to the right to health: reducing child mortality (4); improving maternal health (5) and combating HIV/AIDS, malaria and other diseases. 33  Para. 10. 16 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N the right’s MCO is left open. The synergy between ‘essential (c) To ensure access to basic shelter, housing and primary’ health care and MCO leads to questions of definition sanitation and an adequate supply of safe and in relation to ‘essential’ and ‘primary’. potable water; Tasioulas’s uses UNICEF’s formula for ‘selective primary health care’ (known as the GOBI FF) to fill the gap. This (d) To provide essential drugs from time to time acronym encompasses the following (capitalization added): defined under the WHO Action Programme on Essential Drugs; “[G]rowth monitoring for under nutrition; Oral rehydration therapy to treat childhood diarrhoea; (e) To ensure equitable distribution of all health facilities, goods and services; Breastfeeding to ensure the health of young chil- dren and (f) To adopt and implement a national public health Immunization against six deadly childhood diseases’ strategy and plan of action on the basis of epidemi- supplemented by ‘food supplementation; ological evidence, addressing the health concerns of the whole population; the strategy and plan of Family spacing; and action shall be devised and periodically reviewed, Female education.”34 on the basis of a participatory and transparent process; they shall include methods, such as right Tasioulas also supports Tobin’s extension that selective to health indicators and benchmarks, by which primary health care should also combine: progress can be closely monitored; the process by which the strategy and plan are devised as well as “the provision of food and water necessary for sur- their content, shall give particular attention to all vival as an account of a feasible set of minimum core vulnerable and marginalized groups. obligations associated with the right to health.” 35 The Comment also lists a series of obligations of “comparable Tasioulas critiques this definition on the basis that; “[D]espite priority” to those enumerated as featuring in the minimum its strength at the level of principle, it does not enjoy strong core:38 support in international legal practice as an exhaustive account of the minimum core obligations of the right to health.”36 (a) To ensure reproductive, maternal (pre-natal as well as post-natal) and child health care; Sub-Step 2: Expansive obligations in relation to services, other rights and public health measures. (b) To provide immunization against the major General Comment 14 offers a more detailed and expan- infectious diseases occurring in the community; sive set of MCOs than General Comment 3’s reference to “essential primary health care” and adopts a wide-ranging (c) To take measures to prevent, treat and control characterization of the human right to health as a whole epidemic and endemic diseases; which covers: services; other human rights;37 and extensive public health measures and social determinants of health (d) To provide education and access to informa- within the content of the right to health. tion concerning the main health problems in the General Comment 14 sets out schedule of MCOs under community, including methods of preventing and the right to health in para. 43 (a)-(f): controlling them; and (a) To ensure the right of access to health facilities, (e) To provide appropriate training for health per- goods and services on a non-discriminatory basis sonnel, including education on health and human especially for vulnerable or marginalized groups; rights. (b) To ensure access to the minimum essential 34  UNICEF, State of the World’s Children 2009 (New York, 2009), p.31. food which is nutritionally adequate and safe, to 35  J. Tobin, The Right to Health in International Law, p.247. 36  John Tasioulas, Paper 1, ‘Minimum Core Obligations: Human ensure freedom from hunger to everyone; Rights in the Here and Now’, at page 6. 37  General Comment 14, the right to health, para 3. 38  General Comment 14, The Right to Health, para 44. Case-Study I I : Rig ht to Health 17 Sub-Step 3: Extension to sexual and reproductive health on sexual and reproductive health, that is non-dis- The ESCR’s Committee’s General Comment No.22, on The criminatory, non-biased, evidence-based and taking Right to Sexual and Reproductive Health, specifies core into account the evolving capacities of children and obligations in this sub-field of the human right to health: adolescents; 49. States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels (g) To provide medicines, equipment and technol- of the right to sexual and reproductive health. In this regard, ogies essential to sexual and reproductive health, States parties should be guided by contemporary human including based on the WHO Essential Medicines rights instruments and jurisprudence, as well as the most List; and current international guidelines and protocols established by the UN agencies, in particular WHO and UNFPA. The core (h) To ensure access to effective and transparent obligations include at least the following: remedies and redress, including administrative and judicial ones, for violations of the right to sexual (a) To repeal or eliminate laws, policies and and reproductive health.39 practices that criminalize, obstruct or undermine individual’s or particular group’s access to sexual ii. Regional and reproductive health facilities, services, goods The African Commission on Human and Peoples’ Rights: and information; MCOs are explicitly adopted in the ‘Principles and (b) To adopt and implement a national strategy and Guidelines on the Implementation of Economic, action plan, with adequate budget allocation, on Social, and Cultural Rights’ of the Banjul Charter, sexual and reproductive health, which is devised, passed by the African Commission on Human and periodically reviewed and monitored through a Peoples’ Rights.40 The Principles identify the follow- participatory and transparent process, disaggregated ing MCOs associated with that right, echoing much by the prohibited grounds of discrimination; of the analysis in General Comment 14 (para. 67): (c) To guarantee universal and equitable access The MCOs of the right to health include the follow- to affordable, acceptable and quality sexual and ing at a minimum: reproductive health services, goods and facilities, in particular for women and disadvantaged and a. Ensure the right of access to health facilities, marginalized groups; goods and services on a non-discriminatory basis, especially for vulnerable or marginalised groups; (d) To enact and enforce the legal prohibition of harmful practices and gender-based violence, b. Ensure the provision of essential drugs to all those including female genital mutilation, child and who need them, as periodically defined under the forced marriages and domestic and sexual violence WHO Action Programme on Essential Drugs, and including marital rape, while ensuring privacy, particularly anti-retroviral drugs; confidentiality and free, informed and responsible c. Ensure universal immunisation against major decision-making, without coercion, discrimination infectious diseases; or fear of violence, on individual’s sexual and reproductive needs and behaviors; d. Take measures to prevent, treat and control epi- demic and endemic diseases; (e) To take measures to prevent unsafe abortions and to provide post-abortion care and counselling for those in need; 39  The ESCR’s Committee’s General Comment No.22, on The Right to Sexual and Reproductive Health. At para 49. (f) To ensure all individuals and groups have 40  African Commission on Human and Peoples’ Rights, Principles access to comprehensive education and information and Guidelines on the Implementation of Economic, Social and Cul- tural Rights in the African Charter on Human and Peoples’ Rights, http://www.achpr.org/files/instruments/economic-social-cultural/ achpr_instr_guide_draft_esc_rights_eng.pdf 18 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N e. Provide education and access to information to provide essential drugs. The Court protected the concerning the main health problems in the com- right to health through its connectivity with the munity, including methods of preventing and justiciable rights to life and to personal integrity, controlling them. finding a violation of “the obligation to monitor and supervise the provision of health care services, African Commission Jurisprudence: within the framework of the right to personal integ- There has not been a significant amount of liti- rity and of the obligation not to endanger life”.45 gation on the right to health at either national or European: regional levels in Africa.41 However, one regional case worth mentioning is Purohit v The Gambia, The Revised European Social Charter, however, where the Commission not only accepted the doc- includes in its Article 11 a right to health but makes trine of progressive realization – the doctrine that no explicit reference to MCOs or obligations of provides the background rationale for the MCD’s immediate effect; rather the European jurisprudence operation – but also stressed the importance of includes the phrase “take appropriate measures”, non-discrimination in the fulfilment of the right to which is suggestive of the doctrine of progressive health, an element with a strong claim to inclusion realization. within the core obligations associated with that iii. Domestic right: ‘having due regard to this depressing but real state of affairs [poverty in Africa rendering the full Selective examples from national jurisprudence realization of the right to health impossible), the are focused on ‘obligations of immediacy’ not on African Commission would like to read into article 16 ‘minimum core obligations’. Tasioulas finds that: the obligation on part of states party to the African “The comparison between the jurisdictions suggests Charter to take concrete and targeted steps, while six major conclusions: (a) even when a minimum taking full advantage of its available resources, to core obligation exists under the right to health, it ensure that the right to health is fully realised in may nonetheless be derogable in the light of resource all its aspects without discrimination of any kind’.42 limitations; (b) that the existence of minimum core Inter-American System Jurisprudence: obligations is a separate matter from the question of how best they are best implemented, in partic- The MCO “to ensure access to . . . an adequate supply ular, the question of the nature of the role, if any, of safe and potable water”, specified by the ESCR that should be accorded to courts in defining and Committee as part of the right to health (General enforcing them (c) that the modes of judicial imple- Comment No. 14, para. 43(c)), was explicitly rec- mentation are various, and are not limited to the ognized by the Inter-American Court in Xákmok case of individual claimants being able to enforce Kásek Indigenous Community v. Paraguay.43 The their right to their individual entitlements through Court found that Paraguay had violated the right the courts, (d) that courts may play an important to a dignified life under Article 4(1) of the Amer- role alongside other organs of the state in defining ican Convention, by failing to provide sufficient and enforcing minimum core obligations, (e) that amounts of water to an indigenous community that had been forced off its land. The Court cited General Comment No. 15 of the CESCR in support 41  See, for a comprehensive and recent overview, E. Durojaye (ed), of a specific MCO to provide 7.5 litres of water per Litigating the Right to Health in Africa: Challenges and Prospects. 42  Purohit v The Gambia (2003) AHRLR 96, para 84. person per day: 43  Xákmok Kásek Indigenous Community v. Paraguay, Series C no. 21 (2010) http://www.corteidh.or.cr/docs/casos/articulos/ Gonzales Lluy and Family v Ecuador ,44 a case seriec_298_ing.pdf. See also subsequent case of Chinchilla Sandoval involving treatment for infection with HIV as a and Others v Guatemala http://www.corteidh.or.cr/docs/casos/ articulos/seriec_312_esp.pdf (regarding a woman with diabetes who result of a blood transfusion. In a key passage, the died in prison, raising questions of access to adequate treatment – Court explicitly drew a connection between the right case not yet available in English translation) 44  Gonzales Lluy and Family v Ecuador (Judgment of 1 September, to health in the Protocol of San Salvador and the 2015). MCOs set out in General Comment 14, especially 45  Id., para. 193. Case-Study I I : Rig ht to Health 19 the role of the respective organs of government in justifying that every effort has nevertheless been made these processes may legitimately vary from one juris- to use all available resources at its disposal in order to diction to another, depending on contextual factors, satisfy, as a matter of priority, the obligations outlined such as judicial traditions, the relative efficacy and above.’48 States unable to comply with right to health are legitimacy of various branches of government, and under an obligation to seek international cooperation and so on; and (f) that essential medicines (including assistance,49 and developed countries have an obligation antiretrovirals for HIV infection), non-discrimination, to provide cooperation & assistance (Art 2(1) ICESCR). and access to minimum levels of food and water figure prominently among obligations of immediate Immediacy effect in states where the notion of minimum core Certain health obligations are of immediate effect and are obligations is recognize.”46 not subject to progressive realization. This includes core obligations, such as non-discrimination. The Sustainable c. What has MCD been interpreted to Development Goals reflect a number of core obligations, such as access to health facilities, goods and services on a mean in relation to the right to health? non-discriminatory basis, access to food, shelter, housing and (Step 5) sanitation, safe and potable water and essential medicines, and ensuring universal coverage of health-care services. Other As with the right to education, the following analysis applies core obligations that will be essential to realizing the Goals the taxonomy developed by Tasioulas for the MCD to the include the revision of the national and subnational legal and right to health. The analysis seeks to identify factors that policy environment and the amendment or enactments of are consistent to the doctrine across legal systems in both laws and policies when necessary; the adoption of a national developed and developing countries. The following draws health strategy that addresses the right to health; and the on Tasioulas’s report The Minimum Core of the Human equitable distribution of health facilities, goods and services.50 Right to Health. The African Commission on Human and Peoples’ Implications for process Rights: MCOs are explicitly enshrined in The Afri- Tasioulas draws several inferences in relation to process: can Commission on Human and Peoples’ Rights, • “Perhaps the most compelling contribution [of General ‘Principles and Guidelines on the Implementation of Comment 14] is the emphasis MCD places on non-dis- Economic, Social, and Cultural Rights’ in the Banjul crimination in the access to health facilities, services and Charter.51 The Principles characterize ‘minimum core goods in para. 43(a).” This non-discriminatory norm obligations’ as among ‘immediate’ obligations that seems a pre-eminent candidate for inclusion within set a limit to the doctrine of progressive realization MCOs attached to the right to health because it reflects a background right of non-discrimination (Art. 2(2) of the Covenant) which, like civil and political rights generally, 46  John Tasioulas Paper 2, The Minimum Core of the Human Right imposes obligations of ‘immediate effect’.47 to Health at page 28. 47  See also CEDAW COMMITTEE, Gen Rec 24 on the right to health • “Another significant aspect of the account of MCOs of women under article 12 of the Convention. Committee on the elaborated by the General Comment is the emphasis on Elimination of Discrimination against Women, General Recommen- transparent and participatory procedures in the formu- dation No. 24, ‘Women and Health’, UN Doc A/54/38 Rev 1 (1999): states under an obligation to ensure non-discriminatory access to lation of health policy in para. 43(f). Both innovations health care for women, and that these health care services must highlight the fact that in addition to the delivery of goods take into account the particular needs of women. 48  General Comment 14, the right to health, para 5. and services, MCOs of the right to health may also incor- 49  General Comment 14, the right to health, para 52. porate demands regarding just procedures.” 50  “Right of everyone to the enjoyment of the highest attainable • Furthermore, as Tasioulas notes, General Comment 14 standard of physical and mental health” (5 August 2016), UN Doc addresses lack of resources by generating obligation of A/71/304, para. 28. See also para 77. 51  African Commission on Human and Peoples’ Rights, Principles prioritisation and of international assistance: ‘If resource and Guidelines on the Implementation of Economic, Social and Cul- constraints render it impossible for a State to comply tural Rights in the African Charter on Human and Peoples’ Rights, fully with its Covenant obligations, it has the burden of http://www.achpr.org/files/instruments/economic-social-cultural/ achpr_instr_guide_draft_esc_rights_eng.pdf 20 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N (para. 16): “These obligations include but are not obligations”.54 There is also precedent from the limited to the obligation to take steps, the prohibition Inter-American System where it was found that of retrogressive steps, minimum core obligations member States bore an obligation ‘regardless of and the obligation to prevent discrimination in the the level of economic development, to guarantee a enjoyment of economic, social and cultural rights.” minimum threshold of these rights [in the American Declaration and the American Convention]’.55 MCOs, understood as obligations of immediate effect, is mobilised also in the Commission’s ‘Resolution on Tasioulas notes that “The non-derogability of Access to Health and Needed Medicines in Africa’,52 the MCOs of the right to health was apparently which requires states to meet ‘immediately… the reaffirmed more recently in a report of the Special minimum core obligations of ensuring availability Rapporteur on the right to health”56 but concludes and affordability to all of essential medicines as that it is difficult to draw conclusions in relation defined by the country’s essential medicines list and to derogability. the WHO Action Programme on Essential Drugs’. 52  The African Commission on Human and Peoples’ Rights, meet- Non-derogability ing at its 44th Ordinary Session held in Abuja, Federal Republic of Nigeria, from the 10th to 24th November 2008, available http:// The Committee has occasionally described core www.achpr.org/sessions/44th/resolutions/141/ obligations as non-derogable53 and at other times 53  General Comment 14, the right to health, para 47. 54  UN CESCR General Comment No.3, suggested that MCOs may be overridden in some 55  Annual Report of the Inter-American Commission on Human cases of resource constraints: “in order for a State Rights 1993, OEA/Ser.L/V.85, Doc. 9 rev.11 February 1994, Chapter part to be able to attribute its failure to meet at least V, available at http://www.cidh.org/annualrep/93eng/chap.5.htm 56  Right of Everyone to the enjoyment of the highest attainable its MCOs to a lack of available resources it must standard of health”, (11 August 2014) UN Doc A/69/150, para 11: demonstrate that every effort has been made to use ‘Even if an obligation of immediate effect depends on resources, a all resources at are at its disposition in an effort State may not rely on the lack of resources as a defence or excuse to satisfy, as a matter of priority, those minimum for not fulfilling the obligation’. I n dicators 21 9. Indicators One of the most significant influences shaping the content antiretroviral therapy, skilled birth attendance) and the of human rights, national priorities, and relatedly MCOs, is other to monitor the proportion of a population protected the growing use of human rights indicators.57 from catastrophic or impoverishing out-of-pocket health Fisher notes that: “As early as 1990, then-Special Rappor- expenditures.61 teur on Economic, Social and Cultural Rights, Danilo Türk The intersection of indicators with MCD should be noted noted that “indicators can . . . assist in the development of with caution. The qualitative dimensions of the MCOs (which the ‘core contents’ of some of the less developed rights …, have been central to this NTF research) risk redefinition or and can provide a basis from which a ‘minimum threshold even omission if reduced to numerics, and potentially risk approach’ can be developed.”58 […] Since then, the popularity being politicised. In her paper, Fisher notes: “Indicators are of indicators has increased exponentially.” Their intended use inherently reductive. […] the creation of global indicators has been for monitoring compliance rather than defining the is often a highly political process, as negotiations over SDG content of the rights., however these objectives can overlap indicators aptly illustrated, where deciding which indicator with detrimental consequences.59 to chose often has little to do with what is normatively desir- In relation to the right to education; a list of proposed able or relevant to the rights regime but rather with what is human rights indicators has been prepared by the Office measurable and what data is available. “ of High Commissioner for Human Rights which include structure, process and outcome indicators. Moreover, the OHCHR Right To Education Project provides a public list 57  See e.g. OHCHR, Human Rights Indicators: A Guide to Measurement of 150 indicators for measuring the right to education (the and Implementation (2012); World Bank: Human Rights Indicators in Development: An Introduction (2010). project is in the process of creating a Right to Educations 58  U.N. Econ. & Soc. Council [ECOSOC], Realization of Economic, Index); SDGs has 11 indicators for Goal 4 (Ensure inclusive Social and Cultural Rights, ¶ 7, U.N. Doc. E/CN.4/Sub.2/1990/19 and equitable quality education and promote lifelong learning (July 6, 1990). Young advocates for such use of indicators as well. Young, supra. See also, around the same time; World Conference opportunities for all), the World Bank has over 3000 edu- on Human Rights, Apr. 19-30, 1993, Report on the Seminar on cation-related indicators (which includes education-related Appropriate Indicators to Measure Achievements in the Progressive indicators produced by other organizations, like the OECD), Realization of Economic, Social and Cultural Rights, 3, U.N. Doc. A/CONF.157/PC/73 (Apr. 20, 1993). and there is an additional group of indicators that measure 59  For an excellent analysis on the use of human rights indicators, see learning (e.g., TIMSS, PIRLS, PISA, UWEZO, etc.) Ann Janette Rosga and Meg Satterthwaite, “The Trust in Indicators: In relation to the right to health; the OHCHR has like- Measuring Human Rights,” 27 Berkeley J. Int’l L. 256 (2009), http:// wise developed a detailed set of human rights indicators, its.law.nyu.edu/faculty/profiles/representiveFiles/satterthwaite%20 -trustinindicators_F87546AC-1B21-6206-60D8FF1DE73901F1.pdf which also include structure, process and outcome indicators. 60  SDG Sub-Goal 3.8: “Achieve universal health coverage, including Furthermore the Sustainable Development Goals Indicators financial risk protection, access to quality essential healthcare ser- (IAEG-SDGs) propose two indicators related to the SDG vices and access to safe, effective, quality and affordable essential medicines and vaccines for all.” of ‘universal health coverage’.60 These are; one to monitor 61  United Nations Statistics Division, Results of the list of indicators tracer interventions (e.g. complete childhood immunization, reviewed at the second IAEG-SDG meeting (November 2, 2015). 22 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N Another widely held objection to reliance on indicators 62  See Follow-Up and Review of the Sustainable Development Goals is that collecting and reporting data is a resource-intensive Under the High Level Political Forum (2015), Annex 1, report prepared process and that there is a dearth of reliable data and varying by the NYU Law International Organizations Clinic and UNDP. In addition to mandated reporting, a list of proposed human rights statistical capacity across states. States are already mandated indicators has been prepared y the Office of High Commissioner for to report a plethora of indicators and data,62 and given the Human Rights; the Right To Education Project provides a public list scarcity of resources and lack of capacity experienced by of 150 indicators for measuring the right to education (the project is many countries, states may spend resource on the collection in the process of creating a Right to Educations Index); SDGs has 11 indicators for Goal 4 (Ensure inclusive and equitable quality educa- of certain data rather than investing in state infrastructure tion and promote lifelong learning opportunities for all), the World to improve areas of rights provision.63 Bank has over 3000 education-related indicators (which includes education-related indicators produced by other organizations, like the OECD), and there is an additional group of indicators that measure learning (e.g., TIMSS, PIRLS, PISA, UWEZO, etc.) 63  This concern was raised at the NTF Project Expert Validation Meeting held at the World Bank on June 20th 2017. Con clusion 23 Conclusion T his paper consolidates research undertaken to define and substantiate the MCD at the heart of the UN’s ESCR framework, including in-depth research of the MCD in the rights to health and education. It has explained the origins MCD within the work of the UN’s Committee on Economic, Social and Cultural Rights, its interpretation in the academic literature and the significance of the MCOs for understanding and prioritising the legal obligations attached to ESCR. The paper has also outlined how the introduction of the MCD signals a paradigm shift from the prevailing dogma of ‘progressive realisation’ of ESCR which is sometimes deployed to defend failures to dedicate adequate resources to ESCR or justify shortcomings or delays in terms of ESCR realization. MCD signals that the rights at issue are subject to obligations of universal application with immediate effect. In substantiating the MCD through MCOs, this that many jurisdictions have incorporated ESCR so paper does not purport to create a ‘shopping list’ as to make them justiciable in domestic courts. The of human rights obligations that bind states. Rather, research undertaken by John Tasioulas establishes that it has sought to identify an analytical framework justiciability is not a pre-condition for an obligation by which states and other stakeholders (including to be considered as a MCO. development partners) can work towards identifying Questions outstanding relate to the specific nature MCOs in respect of ESCR on a case-by-case basis. of MCOs in given contexts, for example in relation to The work of UN CESCR provides guidance and broad public health or primary education in development recommendations for countries in order to do this. contexts. As the number of contexts is inexhaustible, This research has sought to bring that guidance to not to mention ever-changing, so too is the precise life by answering some of the questions which arise nature of obligations attached to each context. This in relation to MCOs and to draw on UN, regional and research has attempted to consolidate what we do domestic practice to develop an account of its practi- know about the operation of MCOs in relation to the cal application for the rights to health and education. right to education and the right to health from UN General questions that frequently arise include: ‘are documentation, state and regional practice. Beyond the MCOs universal or state-specific obligations?’ and this it has sought to develop a framework through are ‘ESCR justiciable?’. On the basis of the UN docu- which obligations may be identified. mentation and academic commentary this research While identifying certain human rights obligations concludes that MCOs are universal in principle, but as MCO helps to prioritise the rights they attach to, that they may operate differently according to context. and whilst there may be emerging practice about In relation to justiciability, the research undertaken identifying those rights, outstanding questions remain by Angelina Fisher for this project demonstrates in relation to the prioritisation of rights. In particular, 24 T H E M INIM U M CO R E O BL I GAT I O N S O F ECO N OMI C, SOCI A L A N D CULTURA L RI G HTS: T H E R IG H TS TO H E A LT H A N D E D U C AT I O N who should decide on that prioritisation – the state, as subject to MCOs have on the wider catalogue of UN, regional bodies, communities or stakeholders? ESCR. In other words, what are the risks attached to What effect does the classification of certain rights this endeavour, beyond its clear benefits? Con clusion 27