Doctrinal Weaknesses, Faulty Assumptions, and Short-Termism: Problems with the Minimum Core

Max Harris is an Examination Fellow in Law at All Souls College, Oxford. He is currently completing a DPhil in constitutional law and has worked as a consultant for the United Nations Development Programme.

The words ‘minimum core’ do not appear in the International Covenant on Economic, Social and Cultural Rights – or in the major regional human rights treaties. The idea of the minimum core of economic, social, and cultural rights is a gloss on what is in international human rights law, first introduced by the Committee on Economic, Social, and Cultural Rights in 1990 in a General Comment written by the Committee. That General Comment is not binding. It is therefore open to human rights lawyers, academics, and activists to choose to adopt or reject the doctrine of the minimum core; it is not inevitable that the doctrine is taken up. John Tasioulas, in two characteristically thoughtful papers for the World Bank (one on the minimum core doctrine in general, the other on the minimum core of the right to health), endorses the doctrine.

Tasioulas defines the minimum core – quite reasonably – as a “sub-set of obligations” associated with an economic, social, and cultural right, such as the right to housing or the right to education. For Tasioulas, we find the minimum core in obligations that must be complied with immediately. They must be “feasible” and “not unduly burdensome”.

In my view Tasioulas is too quick to accept the doctrine. He sees practical value in the minimum core: it helps, Tasioulas thinks, with “priority setting” where “resource implications” make it “inappropriate” to require full enforcement of economic, social, and cultural rights. But Tasioulas does not supply a positive argument for why it is inappropriate or impossible to enforce economic, social, and cultural rights in full. Political and cultural theorists, such as Mark Fisher, have argued that judgments of what is ‘possible’ or ‘realistic’ in politics are value-laden; they reflect assumptions about what governments can and should do. Legal theorists, including in international human rights law, ought to learn these same lessons and apply them to judgments of what is “feasible” or “unduly burdensome”. (Tasioulas does not define these terms, and in particular does not say when an obligation would be “unduly” burdensome.) Statements by present-day governments of what is feasible should not necessarily be accepted at face value. It might be that with significant rearrangement of those governments’ activities, enforcement of economic, social, and cultural rights would be eminently feasible.

As I have argued elsewhere, the privileging of core over non-core obligations therefore hollows out the potential of fully realised economic, social, and cultural rights. Tasioulas’ defence of the minimum core relies on the assumption that economic, social, and cultural rights cannot be secured in full; the minimum core is then presented as a second-best solution – the best that can be done in an imperfect world. Tasioulas considers the possibility that the minimum core doctrine might be “misunderstood” or “hi-jacked” in a way that sidelines parts of economic, social, and cultural rights. But the minimum core would not be “hi-jacked” if it involved the privileging of core over non-core obligations; indeed, prioritisation is meant to be one of the principal virtues of the doctrine.

Tasioulas also encourages the collection of empirical evidence to test whether the minimum core doctrine could result in sidelining of non-core obligations, and suggests an educative process could be conducted – along with other strategies being developed – if there was such sidelining. However, this is to mistake a conceptual problem for an empirical challenge to be managed. It is inherent in the concept of the minimum core that some normative hierarchy is created between core and non-core obligations. Empirical evidence can help to determine the effects of this hierarchy, but it cannot deny the existence of that hierarchy.

A further problem with Tasioulas’ account is what he says is prioritised through the minimum core doctrine: namely, obligations that can be immediately complied with. To prioritise these obligations is worrying from a development perspective. ‘Immediate compliance’ could conceivably mean one of two things. It could refer to obligations that a government can begin to take steps to comply with immediately. Or it could mean obligations that a government can completely comply with immediately. Because Tasioulas suggests that non-core obligations are subject to progressive realisation, he must understand ‘immediate compliance’ to mean the second of these options. The upshot of this is that the ‘immediate compliance’ account favours the sub-set of obligations that is short-term in outlook. Aspects of economic, social, and cultural rights that require long-term investment or institution-building cannot be protected by the minimum core. It is thus no surprise that Tasioulas concludes, in his paper on the right to health, that the minimum core of the right to health can include only “selective primary healthcare” as well as only partial delivery of Universal Health Coverage. This commitment to a short-term tilt, an approach grounded in the “here and now”, is unfortunate given that United Nations and NGO leaders have lamented the lack of long-term investment and institution-building in the world of development.

Overall, Tasioulas has drawn some helpful distinctions in these papers, in particular in sketching the difficult possible senses of ‘minimum core’, and has offered a useful review of the case law. But in resiling from the full enforcement of economic, social, and cultural rights he has been insufficiently ambitious. No minimum core exists for civil and political rights; to accept such a minimum core for economic, social, and cultural rights is to capitulate to a two-tier system of human rights protection that many human rights activists and academics have long resisted. Instead of the minimum core doctrine, judges might consider whether limits on economic, social, and cultural rights satisfy a test of proportionality (in jurisdictions where that is a usual part of judges’ human rights toolkit), or they might simply develop a more refined account of what is contained in individual economic, social, and cultural rights. Both alternative pathways would better realise the promise in the Vienna Declaration that human rights are “universal, indivisible, interdependent and interrelated.”