Working on the Core: A Response to Commentators

John Tasioulas the Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at The Dickson Poon School of Law, King’s College London. He has held visiting appointments at the Australian National University, the University of Chicago, Harvard University, and the University of Melbourne, and has acted as a consultant on human rights to the World Bank.  He is the author of two recent reports for the World Bank: Minimum Core Obligations: Human Rights in the Here and Now and The Minimum Core of the Human Right to Health, which are the subjects of this symposium.


I am indebted to the commentators for their insightful responses to my work on minimum core obligations (MCOs). I am also very grateful to James Stewart for assembling commentators who, as a group, reflect the dauntingly multi-disciplinary character of the topic. In the course of writing the two reports, it became increasingly clear to me that a major obstacle to progress is the lack of genuine communication across disciplinary boundaries, a problem in no way confined to the academy. I hope that this symposium contributes in some small way to overcoming this obstacle.

It will be useful to begin with a brief summary of the two reports. [1] The aim of the first report was to explore the concept of MCOs, as it has emerged in contemporary human rights law and practice, with a view to identifying (a) whether it can be given a clear and coherent articulation, (b) whether this concept adds significant value to human rights discourse, (c) how minimum core obligations should be identified and their content specified, and (d) whether compelling responses could be given to some of the leading objections to the doctrine of MCOs. My answers to these questions were, in brief, as follows: (a) that there is a clear and coherent idea of MCOs, centred on the sub-set of obligations of economic, social and cultural rights that are to be immediately complied with in full by all states irrespective of resource variations among them. To this extent, MCOs impose a limit to the operation of the doctrine of progressive realisation in relation to such rights. Contrary to the views of some commentators, MCOs do not of their very nature possess the additional features of non-derogability, a special grounding, or justiciability. Whether any given MCO possesses any of these further features is a matter to be determined on the individual merits, case-by-case; (b) that the value of MCOs resides in the way that they help address the problem of prioritising compliance with human rights obligations when it is not feasible to comply immediately with all such obligations; (c) that MCOs are to be identified by a process that involves (i) attention to the proper scope of a given right, (ii) due regard for considerations of feasibility – in particular, possibility and burdensomeness – in shaping MCOs, (iii) the holistic character of specifying MCOs, so that they are jointly feasible as obligations of immediate effect when taken as a totality, and (iv) the need for a specification of MCO that is invariant in content across different societies; and (d) that two leading objections to MCOs – that they impose an unduly restrictive strait-jacket on human rights thinking, and that they are potentially counter-productive in effect – can be answered.

The second report, on the right to health, was rather more descriptive in character. It offers an inevitably limited overview of how the notion of MCOs has played out in international, regional and domestic legal contexts. However, there is an important link between the two reports, because I use the concept of MCOs developed in the first report as a basis for both interpreting and evaluating certain legal and other developments in this domain. So, for example, one of my chief interpretative claims is to cast doubt on the sweeping assertion that the important South African jurisprudence has jettisoned the doctrine of minimum core in favour of an overall assessment of reasonableness. [2] This mistaken view stems from the failure to distinguish the question whether a given minimum core obligation exists as a matter of law from whether the question that obligation is justiciable, in the sense of effectively enforceable by individual litigants through judicial orders granting them their entitlements under MCOs. The clarification of the concept of MCOs offered in the first report enables us to see that the South African jurisprudence can be interpreted as rejecting the justiciability of minimum core obligations while nonetheless embracing both their existence and their relevance within a broader reasonableness test. On the more critical front, the report argued that General Comment 14 offers an unduly broad and lavish specification of MCOs under the right to health and, more positively, sketched the role that MCOs in relation to the human right to health can play in advancing key aspects of the health-related SDGs, especially universal health care.

Law and Morality

My investigation of MCOs, especially in the first report is not, primarily, a legal project, but rather a moral-political enterprise, one with potentially important implications for law. These implications arise in virtue of the background theoretical stance I set out at the start of the report. According to this, the formative aim of international human rights law is to give effect, insofar as it is appropriate for it to do so, to a background morality of human rights. Given that connection, three legal consequences follow from the vindication of a clear, coherent and morally compelling conception of MCOs: (a) it bolsters the case for enshrining MCOs in law; (b) insofar as the best interpretation of the International Convenant on Economic, Social and Cultural Rights (ICESCR) turns on the ability of that Covenant to fulfil its aims – which is the implementation of a certain aspect of human rights morality – to that extent there is a pro tanto case for regarding the MCO doctrine as part of the best interpretation of that Covenant; and (c) on a non-positivistic interpretation of customary international law, of the kind I have developed in other writings, the moral attractiveness of the MCO doctrine has a positive but non-conclusive bearing on its legal status.

However, I refrained from definitively claiming that MCOs are part of the best interpretation of the ICESCR, let alone that they are norms of customary international law. In the latter context, I was content to suggest that it is at least ‘nascent’ law or what might otherwise be called ‘soft law’. I did not take this further step because I felt that the moral question is logically prior and more pressing, but also because I did not wish to get embroiled in debates about the sources of law or treaty interpretation, such as the status to be accorded to General Comments produced by treaty bodies in either of these contexts. I welcome Michael Kirby’s insightful commentary as nudging me further on the legal side – in a direction I am not unhappy to be nudged – by mobilizing considerations of text, context, history and legal policy to affirm the legal status of minimum core obligations, at least with respect to the correct interpretation of the ICESCR.

We can now also see how Martha Nussbaum’s marvellously provocative and wide-ranging comment misinterprets the aim of the first report. Nussbaum appears to believe that I sought to establish that MCOs already exist as a matter of international law and that, in virtue of this, states have a moral obligation (perhaps enforceable erga omnes) to comply with them. In light of her generally dismissive attitude towards the legitimacy of international law, where it has not been endorsed by democratic processes within states, she is accordingly sceptical of the normative upshot of my imagined argument. But what I was concerned to argue is that there is a good reason for believing in MCOs as part of human rights morality and, to the extent appropriate, enshrining them in international law (as Nussbaum also appears to recognise in observing that “Tasioulas always emphasizes that the norms in question are moral norms” and in saying I provide good moral arguments for them). The argument was made against the background assumption that there is a defensible human rights morality and that the ICESCR broadly reflects the content of many such human rights. Nothing in Nussbaum’s comment, therefore, directly touches the main line of argument deployed in either report.

Nevertheless, both of my reports can fairly be seen as receptive to the idea that if MCOs were embodied in international law, this would count in favour of a further, legally-based moral obligation of compliance with them. It is this assumption that Nussbaum challenges on the basis of the need to probe more deeply into the legitimacy of international law. In particular, the need to address how the claims of international law (whether treaty-based or customary international law) to obedience by states can be reconciled with the sovereignty enjoyed by those very same states. Why should states be bound by such norms if they have not endorsed them through their internal democratic political processes?

Faced with this question, I must confess, I feel a little like a plumber who has been called in to fix a leaky tap being asked to give a theory of the universe as a proper intellectual underpinning for his repair work. The reason that I did not directly address Nussbaum’s big theoretical question in either report was that, following the lead of authors like John Rawls, Cass Sunstein, and indeed Nussbaum herself, I believe that my analysis of MCOs has a self-standing quality, enabling it to be endorsed by those with widely divergent answers to that question. I did not want to prevent readers from coming to such an ‘overlapping consensus’ on MCOs by unnecessarily dragging in my views on contentious philosophical questions about how state sovereignty, democracy and the legitimacy of international law should be knitted together. Nevertheless, Nussbaum is entirely correct to suggest that some kind of answer to her question is required in a fuller philosophical theory in which MCOs are a small but important fragment.

Although this is not the place to sketch the overarching theoretical structure that Nussbaum demands, even if I could do so, it is worth pointing out that I would reject both of the two alternatives that she postulates. These alternatives are world government and (her democratic version of) the Grotian approach. The first alternative I would reject for reasons made familiar by Kant and, more recently, endorsed by Rawls. A unitary global state would provoke such massive resistance that it would lapse into widespread anarchy. Or else, assuming it could quell such resistance, this would be at the cost of tyrannical oppression. But the second, Grotian alternative is also unacceptable. This is because it makes the bindingness of international law in general conditional on its acceptance by the citizenry of a democratic polity. On this view, as Nussbaum puts it, international legal norms will “actually count as [morally binding] law when nations have [accepted them] through their internal, democratically accountable procedures”. The unsatisfactoriness of this alternative is most evident in the case of non-democratic states. Was apartheid era South Africa, for example, not bound by the jus cogens norms prohibiting racial discrimination and apartheid, given that it not only did not accept any such norms but vociferously protested against them? [3] But even democratic states, such as America, may be bound by norms of international law, such as norms outlawing military intervention and torture, irrespective of whether those norms have been domestically validated. Of course, it is a further question whether, and if so how, morally binding legal norms should be enforced against states the violate them. In other words, although international law must be respectful of the sovereignty of individual states (hence, a thumbs down to world government), it does not follow that it only binds if its norms are validated by the internal processes of democratic polities (hence, a thumbs down to Nussbaum’s take on Grotianism).

Nussbaum’s formulation of the Grotian view, which she favours, has surprising affinities with the profound scepticism towards international law propounded in recent decades by American neo-conservatives. [4] And this general impression of affinity is reinforced by the vehemence of her condemnation of the UN system as “grotesquely flawed and corrupt, totally lacking in democratic accountability, and therefore devoid of any procedural legitimacy when it comes to imposing law on people”. Nevertheless, such views, I believe, go overboard in their wholesale denial of any source of legitimate authority beyond the democratic nation state. In other writings, I have sought to sketch some of the contours of a more pluralistic conception of the global legal order, one which enables international (human rights) law to have binding authority over states that does not stem from the democratic validation of its norms, but rather from its satisfaction of the classical requirement that it enhances the conformity of states and other actors with the demands of an objective order of reason. [5] However, a condition of international law’s ability to enjoy such legitimacy is a proper respect for the (limited) claims of state sovereignty of both democratic and non-democratic states. These claims include, I believe, a limited leeway to depart from human rights demands in certain respects. There doubtless remains a lot more work to be done on these topics, especially that of elaborating on the requirement of properly respecting state sovereignty, and I hope I will have the good fortune to contribute to it with the continuing benefit of Martha Nussbaum as a main interlocutor.

Human Rights, Obligations and Feasibility

As can be seen from the responses of my commentators, the topic of MCOs polarizes informed opinion. Michael Kirby forcefully concludes that a “necessary” part of the analysis of the right to health is the inclusion of MCOs and suggests that in their absence that right would be “meaningless and devoid of real content”. In diametric opposition, Max Harris contends that the doctrine of MCOs “hollows out the potential of fully realised economic, social, and cultural rights”. It is important to register that many of these differences of opinion trace back to deeper divisions about the nature of both human rights morality and international human rights law in general, including how these two bodies of norms are related. It is therefore worth going back to these fundamentals before broaching the more specific questions regarding MCOs.

On the view adopted in my reports, international human rights law (IHRL) has as its formative aim the giving effect to a background set of moral human rights, insofar as it is appropriate to do so, by means of conferring international legal rights on all individual human beings. [6] It is this formative aim that distinguishes IHRL from other departments of international law, such as the law on the use of force or trade law. These other departments may also be vitally concerned with human rights – indeed, one of the major sources of human rights disasters in our world is illegal military interventions. But they are not concerned with human rights in the same way as IHRL is supposed to be: they are not centrally focussed on moral human rights nor on the furtherance of such rights through the specific legal technique of conferring legal rights on all individual human beings.

Given that IHRL should be, in this way, responsive to a background morality of human rights, it is important to be clear about the latter’s nature. In the first report, I emphasized the fact that human rights differ from interests in that they necessarily have obligations associated with them. Moreover, the process of identifying and specifying the content of these obligations must take into account a number of key considerations: (a) the scope of the relevant right – so, for example, I claimed that the scope of the right to health includes obligations pertaining to medical treatment, public health measures, and certain social determinants of health. Hence, obligations not to torture or to provide adequate food do not come under the right to health, even though they serve our interest in health, but rather are associated with other rights (i.e. the rights not to be tortured, and to food / an adequate standard of living); (b) the possibility of those who are subject to the obligations generally being able to comply with them, since ‘ought implies can’ rules out the existence of obligations that cannot, as a general matter, be complied with; (c) that the putative obligations associated with a given right are not excessively burdensome in terms of the costs they impose of those who bear the obligations, which explains why there cannot be a right to the ‘highest attainable’ standard of health on any strictly literal construal; and (d) the holism constraint that requires that the whole set of human rights we wish to recognise must be feasible – generally possible, and not excessively burdensome, to comply with – as a group, and not simply taken one-by-one. On my view, conceiving of human rights as involving obligations is essential to grasping their moral importance: obligations are moral reasons it is blameworthy to violate and which are in general strongly, but not absolutely, resistant to being overridden by competing considerations.

Sakiko Fukada-Parr’s thoughtful response shows that I needed to be clearer in the reports about what I meant in saying that human rights obligations, including obligations that belong to the sub-set of minimum core obligations, must comply with a requirement of not being unduly or excessively burdensome. Fukuda-Parr seems to believe I embrace the following two propositions about MCOs: (a) that they impose immediate obligations only regarding the provision of ‘low cost’ goods and services, and (b) that cost is a function of their market price. Having interpreted my views in this way, she understandably draws the conclusion that they lead to an ‘unnecessarily restrictive’ interpretation of MCOs. Fukuda-Parr’s critique would indeed be on target if I were committed to propositions (a) and (b). However, I reject both propositions, and explicitly so in other writings. Hence, for example, the following claim about the relevant sense of ‘cost’ or ‘burden’ in shaping obligations associated with rights:

“It is important to keep in mind, however, that ‘cost’ here is not a simple function of the real world market price of various medical services and public health measures. So, for example, one cannot simply take as given the market price that pharmaceutical companies, exploiting their market position and the rights afforded to them by intellectual property law, actually charge for their products.” [7]

Fukuda-Parr’s misreading of my feasibility criterion suggests that I should have explicitly reiterated that rejection in the first report. However, even in that report I nowhere state that MCOs must be ‘low cost’, only that they must not be ‘unduly burdensome’ to be imposed as obligations of immediate effect upon all states. The repeated qualifier ‘unduly’ is meant to allow for the possibility that burdensome demands may well be minimum core obligations. Just as a parent may have an obligation of immediate effect to risk their life in order to save their child’s life (but not to save the child’s finger from being scratched), so too a state may have an obligation of immediate effect to roll out a very costly vaccination program. The issue is always a matter of whether serving individual right-holders’ interests in a certain manner is something that it is not unduly burdensome to impose as an obligation. This will depend on the weight of the interest, the cost of fulfilling it via compliance with the supposed duty, and whether that cost is not an excessive demand on the putative duty-bearer given the benefit to the putative right-holder. Second, the ‘cost’ in question cannot simply be the price as determined by any existing institutional structure, such as the existing legal and economic arrangements regarding intellectual property rights. This would make the existence and content of human rights a function of arrangements that may themselves be deeply morally flawed because they embody certain forms of unfairness or enable relations of exploitation. Instead, cost essentially involves the burdens on resources that imposing an obligation would create given other potential ways of using the same resources. In this connection, the question arises whether it would be ‘unduly burdensome’ on pharmaceutical companies, say, to reduce significantly the unprecedented levels of intellectual property rights they currently enjoy in order better to serve the interests of those in need of access to various medicines. One way of expressing my sympathy with Fukuda-Parr’s powerful call to rebalance the right to health and intellectual property rights in favour of the former is to say that it would not be.

The issue of feasibility also crops up in Max Harris’ lively comment. Although Harris may allow that human rights (in morality or law), involve what might loosely be called ‘obligations’, he seems ambivalent about allowing considerations of feasibility ((c) and (d) above) to determine their content. Of course, I agree with him that judgments about feasibility are ‘value-laden’, but so is the judgment that feasibility should not be taken into account. The real task that confronts us is to make correct judgments about feasibility in shaping human rights norms. In this regard, I wondered who he was disagreeing with in observing that “Statements by present-day governments of what is feasible should not necessarily be accepted at face value. It might be that with significant rearrangements of those governments’ activities, enforcements of economic, social, and cultural rights would be eminently feasible”. Just as nothing in my reports endorsed market price as the ultimate determinant of burdensomeness, nothing I said endorsed taking governments’ statements about feasibility (or indeed anything else) at face value. Questions about the feasibility of human rights – about whether it is possible, or not unduly burdensome, to comply with their associated obligations – are often complex and difficult and not to be settled either by a brute appeal to price or to the (often) self-serving or obtuse say-so of governments. [8]

I will return to some of Harris’ specific criticisms of the doctrine of MCOs in the next section. But it is worth mentioning here one of the two pathways he endorses as alternatives to MCOs, which is a test of ‘proportionality’ that has become widely popular among constitutional lawyers. This is because it brings out deeper divergences in how we understand human rights and their relation to obligations. The proportionality approach casts the net extremely widely in identifying human rights, which basically consist in any legally cognizable interest. It then asks whether the measures complained of as infringing that human right might nonetheless be justified on a proportionality analysis that takes into account valid purposes served by the infringement. This proportionality approach may well avoid a role for minimum core obligations, as Harris suggests, but perhaps only at the drastic cost of failing to engage with anything recognisable as obligations at all. The upshot, as one of the leading exponents of the proportionality approach makes clear, is that to assert the existence of a human right is not to assert very much at all: “a rights-holder does not have very much in virtue of having a right… An infringement of the scope of a right merely serves as a trigger to initiate an assessment of whether the infringement is justified”. [9] Harris’ fears about ‘hollowing out’ human rights seems to return here, and with a vengeance, threatening to defeat pretty much any aspect of the supposed right possessed by the right holder.

Obviously, it is a live question which approach takes human rights more seriously: the view that says the obligations associated by human rights are not readily justifiably defeated versus a proportionality approach which does not confer on rights this general, but not absolute, resistance to being overridden. My own view, however, is that preserving the link with obligations that are generally resistant to defeat is crucial to the significance of human rights. [10] In this sense, one is asserting quite a lot in claiming that there is a human right not to be tortured or a human right to health. But, on a more purely political note, I also believe that the ‘proportionality’ approach, which recognises human rights to a lavish array of goods, yet is simultaneously ready to countenance extensive justified infringements of any such right, exemplifies the kind of ‘giving with one hand and taking away with the other’ that has brought the idea of human rights into disrepute in many societies.

In addition to the doctrine of proportionality, Harris concludes by mentioning another alternative to MCOs: “developing a more refined account of what is contained in individual economic, social and cultural rights”. But who could possibly object to giving such an account? But can this be done without taking very seriously the idea that such rights “contain” obligations that are not readily overridden, partly because they are shaped ab initio by considerations of feasibility? I doubt it. And, as I explain in the next section, the rights will also include MCOs, once we have dispelled Harris’ misconceptions about them. So, the second alternative to MCOs is, I believe, no real alternative at all.

I turn now to Sarah Hawkes’ comments, which make two vital observations that bear on an approach to global health policy that draws on human rights, including MCOs. The first observation is the importance of measures for maintaining the health of populations, including the prevention of illness and disease, alongside measures for treating people once they have become sick. Second, we need to consider how the determinants of health and illness have changed over time, with the rise in the 21st Century in the importance of factors such as over-consumption, corporate behaviour and lack of effective state governance.

I think both of these observations are entirely correct and that they have numerous significant implications for global health policy and human rights which are reflected in various ways in both of my reports and other of my writings. First, and most obviously, they help shape the obligations associated with the human right to health, including its MCOs. These will not only include obligations concerned with the treatment of the sick, such as obligations to afford them access to essential medicines, but also obligations pertaining to public health measures, such as vaccination, and to certain social determinants of health. It is important to observe here that the content of human rights will evolve over time in line with new challenges and opportunities for fulfilling our interests and variations in the cost of meeting the challenges and exploiting the opportunities. Secondly, when it comes to human rights, global health policy will need to rely on more than just the right to health, contrary to a thesis promoted by Lawrence Gostin and his associates. The right to health is, I have argued, limited in scope to obligations concerning the delivery of medical treatment, public health measures, and some but not all social determinants of health. But there are other human rights that play an important role in maintaining health or preventing its deterioration, such as the rights to political participation, non-discrimination, access to food and water, and to education. The latter is especially salient in view of the powerful role that the increase in women’s education has played in reducing mortality. Third, global health policy cannot take the measure of Hawkes’ observations without going beyond a normative framework focussed exclusively on human rights. A sound global health policy must also take on board non-human rights considerations, such as duties to preserve one’s own health or duties to foster the common good that are not owed to anyone as of right. Finally, Hawkes’ emphasis on the changing profile of determinants of health over time, and the increasing impact of corporate behaviour on health, necessitate a recognition that, in addition to strengthening state governance, we must embrace a plurality of agents and duty-bearers in relation to human rights (and other global health considerations). As the UN Guiding Principles on Business and Human Rights make clear, this must include human obligations imposed directly on corporations. [11]

The Distinctiveness of Minimum Core Obligations

In the first report I analysed minimum core obligations as that sub-set of obligations associated with social, economic and cultural rights that are of immediate effect. In other words, all states are obligated to comply with them in full immediately. The MCOs, so understood, set a limit to the doctrine of progressive realisation, as Gorik Ooms also points out in his helpful comment. The latter doctrine, which appears in Article 2(1) of the ICESCR, enjoins states “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”. MCOs are a sub-set of obligations to which the progressive realization is inapplicable. I further claimed that although additional features, apart from immediacy, were commonly associated with MCOs – such as non-derogability, protecting special values, and justiciability – we should not interpret MCOs as necessarily possessing these other features. Instead, it should be left as a matter of substantive, case-by-case investigation whether a given MCO should be seen (as a matter of morality or law) as possessing any of these extra features. It is the idea of obligations of ‘immediate effect’ that is the core of the minimum core doctrine.

Now, the idea of an obligation of immediate effect, although apparently rather elementary and historically traceable back to Kant and beyond, can nonetheless be misunderstood. Unfortunately, it seems to me that both Max Harris and Katherine Young have misinterpreted the idea.

The most straightforward misunderstanding is Harris’. He takes the doctrine of MCOs to assume that “economic, social, and cultural rights cannot be secured in full”, and that therefore we should aim at the second-best solution of securing the sub-set of obligations associated with these rights that are “minimum core”. But this is a serious misconstrual of the idea of MCOs. It should go without saying that all properly justified human rights – including economic, social and cultural rights – should be fully secured. This is because securing them is a matter of obligation, and obligations are non-optional. There is no question of dividing up human rights obligations into a compulsory core component and an optional non-core component. Rather, the doctrine of MCOs tackles the question of what to do when, because of resource constraints, it is genuinely not feasible to secure all human rights immediately. Contrary to the impression conveyed by Harris, that is a question that is addressed in the ICESCR, in the first instance, not by the doctrine of MCOs but rather by the doctrine of progressive realization. The doctrine permits states to take steps to realise economic, social and cultural rights progressively over time where resource constraints preclude securing them immediately. MCOs set a limit to the operation of the doctrine of progressive realisation by specifying a sub-set of obligations that must be immediately satisfied in full by all states. Perhaps Harris is hostile to MCOs because he rejects the doctrine of progressive realisation, which sets up a contrast between economic, social, and cultural rights, on the one hand, and civil and political rights, on the other, as well as opening up the possibility of a sub-set of obligations associated with economic, social and cultural rights that must be immediately complied with. On this view, all human rights obligations are of immediate effect, with no leeway for progressive realization. Quite apart from the fact that such a view is heterodox as a matter of legal doctrine, I doubt that a cogent moral case exists for it.

A more sophisticated confusion about MCOs is to be found in the commentary by Katherine Young. She conflates minimum core obligations – obligations of immediate effect – with a very different idea, i.e. that of obligations that enjoy an absolute sequential priority in relation to their compliance. Hence, she seems to believe that I am committed to the idea that states are “require[d] [to] discharge core obligations towards primary education before other levels [of education] are addressed”. But this form of absolute sequential priority forms no part of the idea of minimum core obligations, as I explained them. The minimum core doctrine does not say that MCOs must always be fully complied with before a state embarks on any steps towards complying with non-core obligations; instead, it makes the far more moderate claim that, in a context where resource limitations preclude a state from complying with both core and non-core obligations, other things being equal it must prioritize the core obligations, leaving the non-core obligation to be progressively realized over time. [12]

An example from private life may serve to clarify the distinction between immediacy and absolute sequential priority that I have in mind. A parent, Brian, has an obligation to feed his child which is immediate – it must be realised here and now. Brian also has, let us say, a parental obligation to build up a fund for the future tertiary education of their child, an obligation that is to be progressively realised over time. May Brian undertake work during the day towards building up his child’s education fund before he cooks his child dinner that evening? Of course he may. Brian’s immediate obligation to provide dinner for the child is perfectly complied with, even if its fulfilment was preceded by a day’s work aimed at progressively realising the obligation to build up an education fund. If, however, Brian were going out to work in the evening in order to build up the education fund, leaving his child hungry at home, then he would be violating the immediate obligation. To call an obligation an obligation of immediate effect is not to say that non-immediate obligations may never be engaged with before the immediate obligation is complied with. Rather, it is to say that, in a situation of resource constraints that prevent both obligations being complied with, other things being equal the compliance with the immediate (core) obligation must not be sacrificed in favour of compliance with the non-core obligation.

So, let us shift now to an international illustration. If Bill Gates offers to pay the full costs of establishing and maintaining a tertiary education system in a less developed country, the government of that country is not required to turn away the gift on the basis that it must first fully comply with minimum core obligations. If the gift is expressly tied to this purpose, and its acceptance entails no further costs for the receiving state, then the state can accept it as part of the progressive realisation of its non-core obligations regarding education. This is because the non-core obligations are not being complied with by the state at the expense of the core obligations. If, instead, Gates had simply gifted the country a large sum of money, and the state chose to spend it on tertiary education, while leaving obligations to provide primary education unmet, then it would be contravening a minimum core obligation.

So, with this confusion between minimum core obligations and obligations that enjoy absolute sequential priority out of the way, it seems to me that there is no obstacle to Young embracing minimum core obligations. Indeed, she herself explicitly acknowledges the need for prioritization in the fulfilment of human rights obligations. Once freed of misinterpretation, minimum core obligations – or whatever else we choose to call obligations of immediate effect – are a key way of articulating these priorities.

Young also makes two somewhat cryptic remarks worth addressing. The first is that the Committee and other regional bodies have made “efforts” to “demarcate” minimum core obligations and obligations of immediate effect as “separate categories”. To this extent, she regards my interpretation of MCOs as departing from existing human rights law and practice. As Young recognises, even if this were true, it would not touch the main substance of my thesis, which is a moral case for recognising MCOs understood as immediate obligations. But even leaving this point aside, I find it difficult to respond to Young’s claim because she does not document any examples of where such a clear demarcation is made to set against my case for interpreting references to MCOs by the Committee as essentially obligations of immediate effect. Perhaps she means that the Committee has associated MCOs not just with the feature of immediacy, but also with features such as non-derogability and justiciability. This is something I repeatedly acknowledge in my first report, but there I also gave reasons for favouring a disaggregated conception of MCOs: making immediacy the core feature of MCOs, with the presence of other features to be determined on a case-by-case basis. I think this is the most attractive interpretation of MCOs that also fits the often unclear and inconsistent claims made on the topic by the Committee.

Young’s other remark is that my analysis of MCOs helps foster the unhealthy tendency to downgrade economic, social and cultural rights as compared with civil and political rights. Here I would make two points in reply. Insofar as we are talking about the two Covenants, it is clear that the doctrine of progressive realisation explicitly applies only to economic, social, and cultural rights. This ‘downgrading’ of socio-economic rights is a matter of law, not an artefact of my own theory. Second, in my report, I stated that once we have vindicated a role for MCOs in relation to socio-economic rights, we might logically be led to extend their application to civil and political rights, since resource constraints of the kind that arise in the case of the former also crop up in relation to the latter. Contrary to a formerly widespread mythology, civil and political rights cannot be contrasted with socio-economic rights on the basis that they are systematically non-burdensome or entail only ‘negative’ obligations. In my view, the moral force of MCOs, along with the idea of progressive realisation, is not confined to economic, social and cultural rights but applies to civil and political rights as well, whatever the existing legal situation may be. But this is a discussion for another occasion.

Gorik Ooms’ comment reminds us that although MCOs impose primary obligations on states in relation to their own people, they also impose secondary obligations on other states and international agents in the event, or likelihood, of non-compliance with those primary obligations. In my reports, I briefly addressed secondary obligations to assist states that are unable to comply with their MCOs. In addition, I also mentioned a secondary obligation not to impose conditions on states that will foreseeably lead to their inability to meet their MCOs, referencing the important work of Margot Salomon on the imposition of austerity measures on debtor countries. [13] Ooms’ comment goes further and, drawing on my analogy with parental obligations, contemplates an obligation to treat those governments that are able, but unwilling, to meet their MCOs in the way that we treat perpetrators of ‘crimes against humanity’. What is immediately in the offing here, presumably, is some form of intervention against the state in question or punishment of officials responsible for the MCO-violating policies.

If, as Ooms anticipates, my response to this bold proposal is somewhat guarded, this is for two reasons. First, I would be loath to build into the very concept of MCOs that they are triggers of intervention or punishment in the event of their extensive violation. And this for reasons similar to my resistance to interpreting MCOs as inherently non-derogable or justiciable. Building in this feature threatens to obscure the fundamental point of MCOs, which is to identify obligations of immediate effect associated with economic, social and cultural rights. There is no reason, a priori, to suppose that this concern maps neatly onto a norm relating to intervention or punishment. The result is that the fundamental point of MCOs risks being distorted. A more practical concern, which is a corollary of this one, is that linking MCOs in a wholesale way with intervention or punishment risks generating pressure to interpret them as more minimal demands than would otherwise be the case, given the severity of the consequences of breaching them. The second reason for my cautious reception of Ooms’ proposal is more general and relates to my scepticism about the tendency to move easily from normative claims about human rights to enforcement claims about intervention or punishment. I have outlined some of my misgivings on this front in criticising those trends in recent philosophy that essentially construe human rights as triggers for intervention. [14] But I think similar concerns extend to the tendency to perceive human rights through the lens of criminal law. These concerns are amplified in the case of violations of socio-economic rights which often concern structural matters for which a finding of criminal responsibility can be problematic. [15] None of this is to say that I reject Ooms’ intriguing proposal, but rather that I would like to see it fleshed out more fully. Any version of his proposal that is liable to be persuasive, I believe, will be more complex than a norm that simply appeals to the fact that some MCO has been extensively violated in a situation in which this could have been avoided.

Human rights today, as leading authorities have warned, are under pressure. [16] Some of these pressures are exogenous. They include rampant economic globalization, the rise of political authoritarianism, and a spreading ‘populist’ backlash. The external character of these pressures can foster the illusion that all human rights morality and law really needs is a combination of better PR and more effective enforcement mechanisms. But this would be an overly optimistic assessment, overlooking the extent to which human rights thought and practice has been undermined from within. These internal pressures often stem from a failure to grasp the proper, and limited, scope of human rights morality and, by extension, of international human rights law. The process of internal renewal that is needed is one that takes the philosophical underpinnings of human rights more seriously, including their nature as sources of obligation that do not exhaust the entire field of moral concern, as well as addressing questions of prioritization in the face of resource constraints. In this process of renewal, we will need to draw on a repertoire of concepts that we can articulate clearly and distinctly. MCOs are, I believe, an important component of this conceptual repertoire. As the insightful reflections of the contributors to this symposium show, their nature and potential warrant greater study by lawyers, philosophers, economists, ordinary citizens and others who are genuinely committed to the cause of human rights.


[1] The first report, which sets out a general framework for understanding the idea of minimum core obligations, is J. Tasioulas, Minimum Core Obligations: Human Rights in the Here and Now (Nordic Trust Fund / World Bank, 2017). The second report, which addresses minimum core obligations in relation to the human right to health, is J. Tasioulas, The Minimum Core of the Human Right to Health (Nordic Trust Fund / World Bank, 2017).

[2] J. Tasioulas, The Minimum Core of the Human Right to Health (Nordic Trust Fund / World Bank, 2017), pp.15-19.

[3] J. Tasioulas, ‘Custom, Jus Cogens and Human Rights’, in C. Bradley (ed.), Custom’s Future: International Law in a Changing World (CUP, 2016), pp.95-216.

[4] J. Kyl, D.J. Feith, and J. Fonte, ‘The War of Law: How New International Law Undermines Democratic Sovereignty’, Foreign Affairs July/August 2013.

[5] J. Tasioulas, ‘The Legitimacy of International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (Oxford University Press, 2010) and J. Tasioulas, ‘Human Rights, Legitimacy, and International Law’, American Journal of Jurisprudence (2013) 58: 1-25.

[6] For a fuller account, see J. Tasioulas, ‘Exiting the Hall of Mirrors: Morality and Law in Human Rights’, in T. Campbell and K. Bourne (eds), Political and Legal Approaches to Human Rights (Routledge, 2017).

[7] J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382, p.374

[8] A fuller discussion of considerations (b), (c) and (d) can be found in J. Tasioulas, ‘On the Foundations of Human Rights’, in R. Cruft, M. Liao, and M. Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015).

[9] M. Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’, in G. Pavlakos (ed.), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publications, 2007), p.139.

[10] For powerful criticisms of the proportionality doctrine from this sort of perspective, see G. Verdirame, ‘Rescuing Human Rights from Proportionality’, in R. Cruft, M. Liao, and M. Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015) and F.J. Urbina, A Critique of Proportionality and Balancing (Cambridge University Press, 2017).

[11] Many of these points are developed further in J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382

[12] A similar confusion may also be at work in Harris’ claim that MCOs entail a ‘short-term’ outlook that leads to the neglect of ‘long-term investment or institution-building’. We can see that Harris’ conflation of MCOs with a policy of short-termism is mistaken from the fact that it makes perfect sense to engage in long-term investment and institution-building to secure MCOs in the future when they arise, e.g. the prevention of famine or the provision of primary education in years to come. Similarly, a parent may need to adopt long-term policies, e.g. maintaining a healthy lifestyle and diet, in order to be able to comply with their immediate obligations to their child now and in the future.

[13] J. Tasioulas, Minimum Core Obligations: Human Rights in the Here and Now (Nordic Trust Fund / World Bank, 2017), p.21

[14] J. Tasioulas, ‘Towards a Philosophy of Human Rights’, Current Legal Problems 65 (2012) pp.1-30.

[15] For a powerful antidote to a fixation on criminal law in relation to human rights, see the chapter entitled ‘The Awkwardness of the Criminal Law’ in O. Fiss, The Dictates of Justice: Essays on Law and Human Rights (Republic of Letters, 2011).

[16] P. Alston, ‘The Populist Challenge to Human Rights’, Journal of Human Rights Practice 9 (2017), pp.1-15.