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Public Interest Law Journal of New Zealand |
Last Updated: 21 October 2014
Downsizing Rights: Why the ‘Minimum Core’ Concept in International Human Rights Law Should be Abandoned
Max Harris[*]
The ‘minimum core’ of economic, social, and cultural rights is an often-invoked concept in international human rights law and in the constitutional case law of several countries, especially South Africa. The ‘minimum core’ has been understood in different ways, but commonly refers to the notion of some essential level of protection of economic, social, and cultural rights. The minimum core has been criticised: for being too indeterminate, too rigid, inappropriate for judicial determination, unhelpful in the real world, and undermining of rights protection. Most of these criticisms can be rebutted. But more problematic is that the minimum core can have the effect of undermining, or ‘downsizing’, rights protection. In particular, by using the minimum core only in relation to economic, social, and cultural rights, the hierarchy between different generations of rights might become entrenched. It is difficult to reformulate the minimum core to overcome this problem; the weakness is embedded in the concept’s very essence. Accordingly, the concept should be abandoned in both domestic and international human rights law. Such an abandonment should result in more robust protection of all-important economic, social, and cultural rights – rights arguably neglected in New Zealand law and political life.
The concept of a “minimum core” was initially hailed, soon after its first formulations in the early 1990s, as a valuable way for defenders of economic, social and cultural rights to respond to common objections about such rights. However, the minimum core concept has become, over time, the subject of critical scrutiny by scholars and courts alike, and the ongoing value of the concept is now debatable. What is it that has proved controversial about the idea of a minimum core? Do the objections hold much weight? And what role should the minimum core concept play in future debates about economic, social, and cultural rights? This paper sets out to answer these questions. It begins in part one by sketching the minimum core concept. Attention then turns to five issues that have been raised about the minimum core idea, which help to explain why it has proven so controversial: first, whether the minimum core concept is intolerably indeterminate; secondly, whether the concept is overly rigid; thirdly, whether the concept is incapable of application by courts; fourthly, whether the concept neglects those who are deprived in developed nations; and fifthly, whether the concept undermines full protection of economic, social, and cultural rights. The paper considers in part two whether these controversies surrounding the minimum core can be resolved. This occurs in two stages of analysis. An attempt is made to sift through the five sources of contention to ascertain which objections directed towards the minimum core can be disposed of quickly, and which will require more thought and response. Then, an effort is made to determine whether the objections that remain from this filtration process require that the minimum core concept be reformulated or abandoned. Ultimately the paper concludes that the best way to resolve certain controversies may be to jettison the minimum core concept altogether. The conclusion is relevant not only to those working in international human rights law, but also to those interested in how case law on economic, social, and cultural rights in New Zealand might be best developed.
This part of the paper provides an abbreviated background to the concept of the minimum core and explains why the minimum core notion has proven so controversial. Five “controversies” have been selected from the case law and academic literature because they are the doubts most frequently raised; they have a certain degree of plausibility; and they are all concerns directed specifically at the concept of the minimum core (rather than being concerns – for instance, those relating to the separation of powers – that are antithetical to economic, social, and cultural rights generally).
The “minimum core” idea was first properly invoked in 1990 by the Committee on Economic, Social, and Cultural Rights in its Third General Comment on “The nature of States parties obligations”. The Committee expressed the view that “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party”.[1] (Other concepts resembling the minimum core idea had emerged earlier – for example, in German constitutional law – but these preceding expressions are better viewed as ancestors of a concept that was born in 1990.) There was an initial ambiguity in the meaning of the “minimum core” referred to by the Committee: it was unclear whether the minimum core represented a ranking of rights within the International Covenant on Economic, Social, and Cultural Rights, or a ranking of interests within each right. The example given by the Committee in its General Comment was as follows: “a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations”.[2] The example might be thought to have equated the minimum core to certain centrally important rights in the Covenant. However, over time the “minimum core” came to be understood to mean a core of interests within all economic, social, and cultural rights, with scholars such as Chapman developing the content of the concept by deploying it to evaluate state compliance with the Covenant.[3] This could be described as the normative dimension of the minimum core: the division it creates between various interests within rights such as the right to housing and the right to health. The South African Constitutional Court raised the profile of the minimum core further (although the Court did not endorse the concept) by considering arguments for and against the concept in cases such as Minister of Health v Treatment Action Campaign (No 2) and Republic of South Africa v Grootboom,[4] and these judgments created a further wave of academic literature about the minimum core. Much of this literature – by Liebenberg and Bilchitz,[5] amongst others – developed what might be called a temporal dimension for the minimum core concept: the idea that the minimum core requires immediate enforcement of some obligations, in contrast to other obligations which might be allowed more time to be realized. It also led to various accounts of what the minimum core entails, with Young suggesting that three approaches became popular: one based on tying the minimum core to normative foundations; another grounded in an overlapping consensus about what constitutes the minimum core; and still another focused on the obligations arising out of the minimum core. All in all, then, the minimum core is best understood as a concept (which was sketched by the Committee on Economic, Social, and Cultural Rights but has been embroidered by academics and courts) that contains a normative dimension and a temporal dimension – and that has resulted in a variety of different more detailed interpretations from scholars.
Out of this rich vein of academic (and, to a lesser extent, judicial) commentary on the concept, the minimum core has attracted some controversy. That controversy can be traced back to five ruptures in the debates around the minimum core. First, there has been a bluster of concern about the indeterminacy of the notion of a minimum core. The minimum core concept was developed initially to respond to the “inexact” nature of the obligation to progressively realize rights in the International Covenant on Economic, Social, and Cultural Rights, as Chapman points out[6] – and so the fact that the minimum core concept itself seems indeterminate (despite the phrase “minimum core” connoting some scientific concreteness) has caused especial consternation for courts and scholars reckoning with the idea. Yacoob J, giving the judgment of the South African Constitutional Court in Grootboom, expresses this concern (stating, “it is to be noted that the [third] general comment does not specify precisely what that minimum core is),[7] but he is just one of many who has raised the spectre of indeterminacy.
Secondly, seemingly paradoxically, there has been a swirl of discussion over whether the minimum core notion is unduly rigid. The minimum core idea aims to give essential content to economic, social, and cultural rights; it seeks to outline the basic obligations or services or outcomes that need to be secured for rights to be respected. But that impulse towards concretising a floor of protection for rights has resulted in fear that the minimum core idea does not allow for sufficient flexibility – for a government in one jurisdiction, and also for governments across jurisdictions, and jurisdictions over time (as the content of the “core” may change). In this vein, in Mazibuko O’Regan J notes while considering the right to water that “[f]ixing a quantified content [for the right] might, in a rigid and counter-productive manner, prevent an analysis of context”.[8]
A third reason for the controversy over the minimum core concept is that some have questioned whether it is conducive to implementation by the courts. In Grootboom, Yacoob J laments (in response to a submission calling for enforcement of a minimum core of the right to housing) “the complexity of the task of determining a minimum core obligation” without “the requisite information”. Whereas the Committee on Economic, Social, and Cultural Rights examined “reports by reporting States”, “[t]his Court does not have comparable information”, he says.[9] While Yacoob J may have been referring to the information presented in the case before him, it is at least arguable that he is also referring in Grootboom to the institutional limitations faced by courts more generally: courts cannot, in the same way as other bodies, survey social science and public policy literature in order to determine the minimum core of a right.
A further source of contention relates to whether the minimum core cannot provide assistance for those who face deprivation in the developed world. As Young eloquently explains, this criticism: [10]
...faults the minimum core for directing our attention only to the performance of developing states, leaving the legal discourse of economic and social rights beyond the reach of those facing material deprivation in the middle or high income countries.
The idea is that the minimum core concept can only be deployed by those in developing countries, deflecting attention away from injustices in developed countries. Wesson perhaps unwittingly demonstrates this problem, when he says sincerely: “In the developed world one might argue that the minimum core has generally already been realized through the welfare state.”[11]
Finally, on a related note, it has been argued that because the minimum core focuses on the bare essentials of rights protection, it might diminish the need for states to respect fully the rights contained in the Covenant on Economic, Social, and Cultural Rights. In Lehman’s words, when a court has “to distinguish between minimum, or essential, levels of health care versus non-essential forms of health care”, there is a danger that the “outer core” of rights protection that is created (alongside the “minimum core”) is not properly protected.[12] As well, because the minimum core is concerned with concrete realization of a right in an immediate fashion, use of the minimum core concept may marginalize other rights obligations relating to education and promotion of rights,[13] and undermine longer-term efforts to secure rights protection.
The five controversies mentioned above might be resolved through a full consideration of the arguments for and against the minimum core; it may be the case that these controversies dissolve after careful thought is given to whether the underlying criticisms have any weight. This second part of the paper begins by adopting that strategy. However, it may be that some of these controversies have endured for good reason, and cannot be so easily batted away. It may be that the only way such controversies can be resolved is through reformulating or abandoning the minimum core concept altogether. The latter section of this part considers that proposition.
On closer inspection, it seems that the first four doubts raised about the minimum core concept above can be rebutted – convincing counter-arguments can be mounted. While it is understandable that the South African Constitutional Court has raised doubts about indeterminacy, first of all, it is unclear that the minimum core of rights is any more indeterminate than the meaning of rights more generally – including “traditional rights” such as freedom of speech. It seems an entirely compelling response to this doubt that more determinacy can be achieved over time, by “reasoned elaboration” of principles through different cases (of the kind advocated for by the legal process school).[14] Fredman notes, persuasively, that Robert Alexy’s method of principled optimization can be used to determine “which parts of the obligation [pertaining to the minimum core] are urgent”.[15] As for the second concern relating to rigidity, Bilchitz explains that those making the rigidity criticism underestimate the flexibility in the “minimum core” – and to the extent that there is some rigidity, that is justifiable, given the importance of the rights secured by the minimum core.[16] Such a reply appears persuasive to those who accept at least that economic, social, and cultural rights are defensible in principle. The third source of controversy, relating to the courts’ inability to apply the minimum core concept, may contain a kernel of truth: a court may not always have sufficient information to determine the limits of a minimum core. However, this is a problem that can be worked through on a case-by-case basis; it does not represent a fatal objection to the minimum core concept. As Liebenberg has noted, the lack of information is a challenge that arises in the application of other rights, as well, and a court need not be prescriptive in outlining the minimum core.[17] Lack of information is a practical factor that courts should bear in mind, but it is not a consideration that undermines the minimum core concept. Fourthly, it would appear that the doubt that the minimum core might lead to an excessive emphasis on developing countries’ standards can be met with a robust approach to implementing the minimum core in the developed world (which ensures that breaches are not overlooked), and a willingness to maintain accountability in the developing world where the minimum core is not being satisfied. These four controversies can hence be resolved through careful reasoning and thoughtful responses to the doubts raised.
The fifth controversy, however, is not so easy to dissolve; indeed, it becomes even more difficult to overcome upon close scrutiny. Some might say that it is quite defensible for the minimum core to be given priority over other aspects of a right. However, this is to neglect major components of economic, social, and cultural rights, through a gloss that arguably finds no basis in the text of the international covenants. It seems problematic for the status of rights that, in effect, rights might be read down to ensure compliance only with the minimum core. Liebenberg comments in general terms: [18]
The strategic importance of socio-economic rights as tools in anti-poverty initiatives will diminish if the courts interpret them as imposing weak obligations on government and fail to protect them as vigorously as they do the other rights in the Bill of Rights.
Unfortunately this may be the effect of enforcing the minimum core. Enforcing the minimum core may amount to imposing only “weak obligations on government” (if only parts of rights are enforced) – and more perniciously, it may lead to unequal protection between civil and political rights, and economic, social, and cultural rights, since it is only the latter that is limited by the minimum core concept.
This lingering fifth controversy might be resolved by reformulating the minimum core concept or abandoning it altogether. Does Young’s reformulation of the minimum core provide a solution to the problem of two-tier protection of rights? Young proposes a focus on benchmarks and indicators of compliance with economic, social, and cultural rights, coupled with recognition of the open-ended nature of rights, the need for balancing of rights against other interests, and the utility of using “minimum core” language as a rhetorical device.[19] This alternative approach is superficially alluring. But it does not escape the problem faced by the minimum core: namely, that a commitment to immediate yet partial enforcement of a right may imperil full protection of that right in the long-term. Indeed, Young’s recommended use of benchmarks and indicators may exacerbate the problem, leading to further fixation on implementation of minimum standards (at the expense of a right’s more complete protection and promotion).
Ultimately the problem of under-protection of rights through deployment of the minimum core concept seems so difficult to shake off that it might justify abandonment of the minimum core concept altogether. Constraints of brevity prevent an alternative solution from being properly developed here. However, it is suggested that an approach that places more emphasis on the use of the proportionality test in analysis of economic, social, and cultural rights may be valuable; that is, alleged breaches of economic, social and cultural rights should be evaluated with reference to a proportionality test, as occurs with breaches of other rights.[20] That approach turns attention away from the definition of the right towards the propriety of state conduct, and allows judges to draw on more familiar jurisprudence. It also has the advantage of bringing economic, social, and cultural rights onto the same plane as civil and political rights (something not achieved by use of the “minimum core” concept). Some might say that this is to undermine the jurisprudence of the Committee on Economic, Social, and Cultural Rights. However, there is a need for constructive criticism of the Committee from supporters of economic, social, and cultural rights; a commitment to the cause of such rights does not require a defence of all of the Committee’s outputs. Others might argue that abandoning the minimum core could set back rights protection, removing the need for urgency and reintroducing indeterminacy. This is an empirical assertion that needs testing. But this paper proceeds on the optimistic, positive presupposition that courts and rights-protecting institutions around the world may now be ready for a more wholehearted embrace of economic, social, and cultural rights – inner core and outer core included – and that such a robust commitment can only advance protection of rights around the world.
In sum, this paper has offered five reasons for the controversy of the minimum core concept. They need not be recapitulated here. They can be synthesized in the following way: the minimum core concept has proven controversial because of uncertainty about the scope and content of the concept, and concerns about the implications of applying the concept (for courts, developed countries, and rights protection generally). The foregoing analysis has shown that most of these controversies can be resolved through consideration of counter-arguments. But the controversy that cannot be disposed of so easily relates to whether the minimum core concept undermines the full protection of economic, social, and cultural rights. It has been suggested that the only way to resolve this controversy is to abandon the concept altogether.[21] The abandonment of the minimum core concept may, it is hoped, pave the way for a regime of promotion of economic, social, and cultural rights that is more long-term, equivalent to the fuller protections offered to civil and political rights, and more conducive to the public interest. No attempt has been made in this paper to focus on New Zealand jurisprudence on economic, social, and cultural rights. But as lawyers and judges begin their belated efforts to weave economic, social, and cultural rights into the fabric of New Zealand law, the suggestion of this paper has been that New Zealand lawyers and judges should not give the minimum core concept too much weight in the case law. Rather than deepening or enlarging human rights protection, the minimum core concept is likely – in effect – to downsize economic, social, and cultural rights. And that outcome must be resisted, given that economic, social, and cultural rights have already been neglected in New Zealand law (and arguably in New Zealand politics) for some time, and that the realization of these rights is an urgent ethical priority.
[*] Max Harris completed a BA/LLB (Hons) from the University of Auckland and a Bachelor of Civil Law from the University of Oxford. He is currently in his first year of studying a Master of Public Policy at Oxford.
[1] Committee on Economic, Social,
and Cultural Rights “Third General Comment: The Nature of States
parties’ obligations,”
5th sess, UN Doc E/1991/23 (14
December 1990) at [10].
[2] CEDAW,
“Third General Comment,” above n
1.
[3] Audrey R Chapman “A
‘Violations Approach’ for Monitoring the International Covenant on
Economic, Social and Cultural
Rights” (1996) 18 Human Rights Quarterly
23 at 46–65.
[4] See Minister of Health v
Treatment Action Campaign (No 2) [2002] ZACC 15; [2002] 5 SA 721 (CC) and Republic of
South Africa v Grootboom (1) [2000] ZACC 19; 2001 (1) SA
46.
[5] See David Bilchitz
Poverty and Fundamental Rights: the Justification and Enforcement of
Socio-Economic Rights (Oxford University Press, Oxford, 2007) at chapter 6;
see also Sandra Liebenberg “South Africa’s evolving jurisprudence
on
socio-economic rights: An effective tool in challenging poverty?” (2002) 6
Law, Democracy and Development 159 at
176.
[6] Chapman, above n 3, at
23.
[7] Grootboom, above n
4, at [30].
[8] Mazibuko
v City of Johannesburg [2009] ZACC 28 at
[60].
[9] Grootboom, above
n 4, at [32].
[10] Katharine G.
Young “The Minimum Core of Economic and Social Rights” (2008) 33
Yale J. Int'l L.
113 at 114 (internal footnotes
omitted).
[11] Murray Wesson
“Disagreement and the Constitutionalisation of Social Rights” (2012)
12 H.R.L. Rev. 221 at 242.
[12]
Karin Lehman “In Defense of the Constitutional Court: Litigating
Socio-economic Rights and the Myth of the Minimum Core”
(2006) 22
Am.U.Int'l L.Rev. 163 at 182.
[13] See Jonathan Klaaren
“A Second Look at the South African Human Rights Commission, Access to
Information, and the Promotion
of Socioeconomic Rights” (2005) 27 Human
Rights Law Quarterly 549 at
552.
[14] See the discussion in
Jeremy Waldron Torture, Terror and Trade-offs: Philosophy for the White House
(Oxford University Press, Oxford, 2010) at
285.
[15] Sandra Fredman Human
Rights Transformed (Oxford University Press, Oxford, 2008) at
85.
[16] Bilchitz, above n 5, at
208.
[17] Liebenberg, above n 5,
at 174.
[18] See Liebenberg,
above n 5, at 160.
[19] See
Young, above n 10, at
164–173.
[20] An approach
with some similarities to my suggested solution is developed in: Xenophon
Contiades and Alkmene Fotiadou “Social
Rights in the Age of
Proportionality: Global economic crisis and constitutional litigation”
(2012) 10 I.J.C.L 660.
[21] This
may have implications for civil and political rights, since some areas of civil
and political rights jurisprudence (such as
free speech jurisprudence on
political speech as opposed to other forms of speech) have flirted with an
equivalent of the minimum
core concept.
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