4.3 Minimum core obligations in the practice of the CESCR
4.3.3 Characteristics of core obligations
Core obligations arguably have some characteristics that distinguish them from other state obligations. The CESCR does not provide a list of characteristics that describe core obligations. Yet from the qualifications it uses, there are some identifiable characteristics. Therefore, I would argue that core obligations are of immediate effect; that they are not subject to resource availability; that they should be prioritised over other obligations; that they are absolute; and that they are non-derogable.
First, core obligations are immediate. The minimum core approach aims at discovering immediate obligations as opposed to progressive realisation. As the CESCR emphasises, the principal obligation under the ICESCR is progressive realisation.138 Still, the CESCR recognises that the ICESCR ‘imposes various obligations which are of immediate effect’.139 Core obligations are among obligations of immediate effect.140 The CESCR explains immediate obligation in contrast to progressive realisation.
Put differently, states should implement core obligations forthwith.
Second, core obligations do not depend on the availability of resources. However, these apparent distinctions between progressive realisation and immediate obligations collapse into one if one recognises that progressive realisation is not immediate because of resource scarcity. Moreover, the CESCR does not expressly say that the implementation of core obligations does not require resources. Still, it explains the relationship between core obligations and resources. In its 2007 Statement, it explains that:
As regards the core obligations of States parties in relation to each of the Covenant rights, General Comment No. 3 states that, in order for a State party to be able to attribute its failure to meet its core obligations to a lack of available resources, it must demonstrate that every effort has been made to use all resources that are at its disposal in an effort to satisfy, as a matter of priority, those core obligations.141
From this passage, it is clear that states can attribute their failure to discharge their obligation to lack of resources; all they have to do is to explain two conditions, the first of which relates to resources.
The explanation should relate to the efforts made, not to the actual use of resources: they should explain that they made every effort to use all resources at their disposal. The other condition relates
136 General Comment 22.
137 General comment 22, para 49; General Comment 17, para 39.
138 General Comment 3, para 9.
139 General Comment 3, para 1.
140 General comment 17, para 25. Italics added.
141 Statement on Available Resources, para 6. See Statement on Refugees, para 10; General Comment 19, para 60; General comment 17, para 41; General Comment 3, para 10.
to the attention given to core obligations: states should show that they have prioritised core obligations. According to this view, the significance of the immediate nature of core obligations is weakened. The reason is simple. In principle, a state must justify why it has failed to achieve the full realisation of rights. Otherwise, there is no point in requiring progressive realisation. For this reason, it is submitted, it does not make much difference whether core obligations are subject to resource availability or not. In fact, the CESCR at times gives the impression that it requires progressive achievement of core obligations. In its concluding observations, it has declared that a ‘State party should take measures to progressively bring its State social standards in line with its core obligations under Articles 7, 9 and 11 of the Covenant’.142
Third, core obligations are absolute. One may explain core obligations in terms of defences available to states. States have no defence if they fail to comply with their core obligations. Indeed, the CESCR underlines that ‘a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations’.143 In other words, core obligations are not subject to limitation. This view has a radical consequence. It makes the core content of economic, social and cultural rights absolute, exposing some states as permanent violators, especially when minimum core is defined as absolute minimum core.
Fourth, core obligations should be given priority. The CESCR emphasises that a state must make every effort to meet its core obligations ‘as a matter of priority’.144 According priority to core obligations implies that they are more important than other obligations. The concept thus involves comparison insofar as states should execute core obligations before proceeding to others. Priority, one may argue, refers to the importance of core obligations over other obligations. In fact, the CESCR suggests this meaning in one of its statements, explaining that ‘after a State party has ensured the core obligations of economic, social and cultural rights, it continues to have an obligation to move as expeditiously and effectively as possible towards the full realization of all the rights in the Covenant’.145 Thus, it appears that the CESCR arranges the obligations under the ICESCR in hierarchical order.
Finally, core obligations are non-derogable according to the CESCR. It explains that ‘because core obligations are non-derogable, they continue to exist in situations of conflict, emergency and natural disaster’.146 Taken to its logical conclusion, this description has a certain ramification: the CESCR creates two categories of state obligations, one of which is core obligations, which correspond to the minimum core content of a right. If core obligations are non-derogable, the corresponding minimum core rights are also non-derogable. The other category relates to the remainder of state obligations.
One may call these non-core obligations, although the CESCR does not use these terms. There are aspects of a right that correspond to these non-core obligations, which one could call the peripheral content of a right. Qualifying core obligations as non-derogable implies that non-core obligations and the corresponding peripheral content of a right are derogable. There is no point of qualifying core obligations as non-derogable unless one wants to distinguish them from derogable obligations. As a
142 CESCR, Concluding observations on Ukraine, E/C.12/UKR/CO/6, 13 June 2014, para 15. Italics added. See Concluding Observations on India, E/C.12/IND/CO/5, 8 August 2008, paras 20 & 45.
143 General Comment 14, para 47. See General Comment 15, para 40.
144 Statement on Available Resources, para 6. See Statement on Refugees, para 10; General Comment 19, para 60; General comment 17, para 41; General Comment 15, para 6; General Comment 3, para 10.
145 CESCR, ‘Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’, Statement adopted on 4 May 2001, E/C.12/2001/10, 10 May 2001, para 17.
146 Statement on Refugees, para 9. See General Comment 14, para 47; General Comment 15, para 40.
result, all rights under the ICESCR have derogable and non-derogable aspects. Both derogability and non-derogability run through the ICESCR, since the CESCR identifies core obligations for almost all rights under the ICESCR. However, this does not sit well with the conventional concept of derogation and its place under the ICESCR.
The ICESCR does not contain a derogation clause, a provision that allows states to suspend rights guaranteed by a treaty during a state of emergency.147 In contrast, the International Covenant on Civil and Political Rights provides for a derogation clause.148 It permits states to suspend the enjoyment of some of the rights it guarantees. These are derogable rights. It clearly prohibits derogation from some provisions that guarantees rights such as the right to life.149 These are non-derogable rights. States cannot suspend them during a state of emergency. The CESCR does not use the concept in this sense. It does not distinguish derogable rights from non-derogable ones. One may argue that it regards a single right as having both derogable and non-derogable aspects. This flows from qualifying core obligations as non-derogable.
The CESCR does not address the absence of a derogation clause from the ICESCR. The absence of such clause may mean that the ICESCR does not permit states to derogate from rights it guarantees.
In other words, states cannot suspend rights guaranteed under the ICESCR during times of emergency. The purpose of the ICESCR is to ensure that a state implement the rights it guarantees.
The drafters would have included any exception, as is the case with the ICCPR, if that were necessary.
As Alston and Quinn convincingly argue, a combination of three factors explains the absence of a derogation clause.150 These are the nature of the rights, the general limitation clause, and the nature of state obligations under the ICESCR.151 Müller justifies the absence on the ground of the purpose of derogation such as the protection of public order.152 She argues that ‘it is hard to imagine a situation in which it is necessary to deny people their rights to food, health care or basic shelter in order to maintain or restore the public order’.153 She rightly concludes that it is not necessary to suspend economic, social and cultural rights in times of emergency.154
From the foregoing, one may wonder whether the concept of non-derogability has any significance at all. According to Coomans, ‘the qualification of core obligations as non-derogable would greatly strengthen their legal character’ since they would apply under all circumstances.155 This conclusion assumes that the nature of rights under the ICESCR, or at least core obligations corresponding to such rights, have been derogable or have some comparable nature before the CESCR introduces the qualification. However, if one acknowledges that the ICESCR rights or their corresponding obligations
147 The ICESCR refers to the term ‘derogation’ under Article 5(2), which provides that: ‘There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent’. This provision is not a derogation clause.
148 ICCPR, art 4.
149 ICCPR, art 4(2).
150 Philip Alston & Gerard Quinn, ‘The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) Human Rights Quarterly 156-229, 217.
151 Alston & Quinn (n 150) 217
152 Amrei Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9/4 Human Rights Law Review 557—601, 593.
153 Müller (n 152) 593.
154 Müller (n 152) 593.
155 Fons Coomans, ‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 11/1 Human Rights Law Review 1—35, 23.
are non-derogable in the first place, the CESCR’s qualification has no significance. It might even have a worse consequence and create a wrong perception that non-core obligations are derogable.