4.3 Minimum core obligations in the practice of the CESCR
4.3.2 Meaning and content of core obligations
The CESCR defines core obligation as duties of states to ensure the minimum essential levels of each of the rights guaranteed in the ICESCR.79It emphasises that ‘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’ under the ICESCR.80 The CESCR does not determine core obligations in terms of each individual, but rather suggests a collective determination. It requires that the number of individuals deprived of their rights should be significant to condemn a state for its failure to discharge core obligations. Accordingly, one has to first assess the number of individuals deprived of essential levels of each right.
The CESCR does not determine how many individuals constitute a ‘significant number’; it does not establish a fixed threshold, nor does it set this number in terms of the ratio of the deprived individuals to the total population in a given country. Despite the absence of a defined number, the CESCR sometimes identifies a proportion of the population suffering from the deprivation of their rights and condemns the states concerned for their failure, particularly when such states are developing countries. For example, it has expressed its concern that ‘half of the population does not have access to basic health services’ in the Sudan.81 Thus, the state should ‘take measures to ensure access to the essential primary health package for all’.82 It made a similar assessment with regard to Chad, condemning it for ‘the chronic food insecurity experienced by a large section of the
75 Concluding observations on Sweden, E/C.12/SWE/CO/6, 14 July 2016, para 20. See Concluding observations on Lebanon, E/C.12/LBN/CO/2, 24 October 2016, para 12; the Netherlands, E/C.12/NDL/CO/4-5, 9 December 2010, para 25; Chad, E/C.12/TCD/CO/3, 16 December 2009, para 25.
76 General Comment 12, paras 6 & 8.
77 Concluding observations on the Sudan, E/C.12/SDN/2, 9 October 2015, para 18.
78 See Concluding observations on Angola, E/C.12/AGO/CO/4-5, 15 July 2016, para 8; the UK, E/C.12/GBR/CO/6, 14 July 2016, para 19; Canada, E/C.12/CAN/CO/6, 23 March 2016, para 10; Italy, E/C.12/ITA/CO/5, 28 October 2015, para 45;
Ireland, E/C.12/IRL/CO/3, 8 July 2015, para 11(a); Ukraine, E/C.12/UKR/CO/6, 13 June 2014, para 5; Iceland,
E/C.12/ISL/CO/4, 11 December 2012, para 6; Spain, E/C.12/ESP/CO/5, 6 June 2012, para 8; Statement on public debt, para 4; Chairperson’s letter, para 7; Statement on available resources, para 10(b).
79 General Comment 3, para 10.
80 General Comment 3, para 10. Italics added.
81 Concluding observations on the Sudan, E/C.12/SDN/2, 9 October 2015, para 51. Italics added.
82 Concluding observations on the Sudan, E/C.12/SDN/2, 9 October 2015, para 52.
population’.83It recommended that Chad ensure ‘physical and economic access to the minimum of essential food that is sufficient, nutritionally adequate and safe to ensure freedom from hunger’.84 Diplomatic language aside, the CESCR established that the Sudan violated the right to health, while Chad violated the right to food. It clearly condemned these states for their failure to ensure minimum essential levels of the rights to health and to food for a large section of their population, which constituted as much as 50% of the total population in the case of Sudan. In both cases, the CESCR took into account the magnitude of the number of individuals deprived of the rights. However, it avoided saying that it takes as high as 50% of the population to consider them significant.
Therefore, it is submitted, the reference to the number of people deprived of minimum essential levels of rights should be understood as an emphasis on the magnitude of the deprivation.
In principle, the number of individuals deprived of their rights should be immaterial. A violation due to the failure to carry out core obligations should not be based on whether the number of individuals deprived of a right is significant or not. By definition, human rights are inherent in every individual. It is still a violation even if one individual is deprived of his or her right. The violation is more serious when an individual is deprived of the core content of his or her rights. States realise core content of rights when they discharge minimum core obligations corresponding to those rights. Indeed, the CESCR has the mandate to receive and examine communications alleging violations under the Optional Protocol to the ICESCR even if those violations affect only a single individual.85 Therefore, defining core obligations in terms of the number of individuals deprived of their rights is not useful but misleading.
Another element in the definition of core obligations is the ‘minimum essential levels’ of each right.
The CESCR does not identify minimum essential levels of each of the rights. For example, one may ask, what is the minimum amount of water a person needs per day? The general comment on the right to water explains that a state violates the right to water if it fails ‘to ensure that the minimum essential level of the right is enjoyed by everyone’.86 However, it does not specify the quantity in litres or other measurements. In contrast, the Inter-American Court has held that 7.5 litres are a minimum requirement, as discussed below.87 The CESCR does not express the essential minimum levels of any right in figures. Whether the CESCR has the expertise to make such a specific determination is, of course, a different issue.
The CESCR explains that states have the core obligation to ensure access to minimum essential food, basic housing, a minimum essential amount of water, and a social security scheme that provides the minimum essential level of benefits.88 These obligations can be examined from the perspective of the obligations to respect, protect and fulfil. More relevant in this regard is the obligation to fulfil, particularly the sub-obligation to provide. In the general comment on the right to water, for example, the CESCR explains that a state violates its obligation to fulfil when it fails ‘to ensure that the minimum essential level of the right is enjoyed by everyone’.89 Although the CESCR does not clearly
83 Concluding observations on Chad, E/C.12/TCD/CO/3, 16 December 2009, para 25. Italics added.
84 Concluding observations on Chad, E/C.12/TCD/CO/3, 16 December 2009, para 25.
85 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, General Assembly resolution A/RES/63/117, adopted 10 December 2008, entered into force 5 May 2013.
86 General Comment 15, para 44.
87 Xákmok Kásek Indigenous Community v Paraguay (Inter-American Court, 24 August 2010) para 195.
88 General Comment 14, para 43; General Comment 15, para 37; General Comment 19, para 59.
89 General Comment 15, para 44.
state this point with regard to other rights, one may argue that the failure to provide minimum essential levels of a right is a violation of the sub-obligation to provide.
In principle, individuals depend on their own resources to enjoy their rights. As discussed in the previous chapter, ‘available resources’ in Article 2(1) of the ICESCR include those coming from both state coffers and private sectors. Individuals have the primary responsibility to obtain the resources necessary for the enjoyment of their rights. In that case, the state obligations to respect and protect are relevant. However, these obligations are not relevant to individuals who are unable to exercise their rights for reasons beyond their control. For such individuals, it is submitted, the obligations to respect and protect would not be relevant. The deprived are unable to exercise their rights. As a result, there is no point in requiring states to refrain from interfering with the enjoyment that does not exist in the first place. Similarly, there is no objective to be achieved by requiring states to prevent third parties from interfering with the enjoyment where there is none. Once states carry out their core obligation to provide the deprived with minimum essential levels of each right, the obligations to respect and protect would come into the picture.
The CESCR does not distinguish stages when each level of obligation becomes relevant. It generally emphasises that states must meet their ‘core obligations by ensuring that the minimum essential levels relating to the rights to housing, health, social security and education are respected, protected and fulfilled’.90 This statement obscures the difference among levels of state obligations in relation to the provision of minimum essential levels. The core obligation to fulfil, particularly the sub-obligation to provide, is limited to minimum essential levels because of resource scarcity. Nevertheless, other levels of obligations are not limited to minimum essential levels. States have the obligations to respect and protect even when the enjoyment is much more than minimum essential levels. This is particularly true with regard to the obligation to respect.
In its general comments (summarised in table 1 below), the CESCR identifies the obligations to respect and protect as core obligations, even when they do not relate to the provision of minimum requirements. Regarding the right to education, for example, it explains that the obligation ‘to ensure free choice of education without interference from the State’ is a core obligation.91 Similarly, with regard to the right to social security, it explains that the obligation to ‘respect existing social security schemes’ is a core obligation.92 In both examples, the CESCR identifies the obligation to respect as a core obligation. Examples of core obligations to protect include the protection of material interest of authors (cultural rights),93 the prohibition of harmful practices and gender-based violence (right to health),94 and the prohibition of sexual harassment (right to just and favourable conditions of work).95 In sum, the core obligations identified by the CESCR contain all levels of state obligations (ie, to respect, to protect and to fulfil).
The concept of ‘minimum essential levels’ of each right is central to the CESCR’s definition of core obligations, however, this trend has not continued over time. It seems that the change occurred when the CESCR identified core obligations for each right. The general comments do not specify the obligation to provide minimum essential levels for every right. In its general comment on the right to
90 Concluding observations on Sweden, E/C.12/SWE/CO/6, 14 July 2016, para 20. Italics added.
91 General Comment 13, para 57.
92 General Comment 19, para 59(c).
93 General Comment 17, para 39(a).
94 General Comment 22, para 49(d).
95 General Comment 23, para 65(e).
food adopted in 1999, the CESCR did not identify the obligation to provide minimum essential food. A year later, it explained that the right to health requires states to provide not only minimum essential food but also basic shelter and water. This shows that core obligations corresponding to some rights overlap. This is particularly true with regard to the rights to health, food and water. In some general comments, the CESCR does not specify the obligation to provide minimum essential levels. Examples are the general comments on the right to work and cultural rights.96
Table 1: Summary of core obligations
Common Core Obligations Other Core Obligations
1. Right to Food (art 11), General Comment 12 (1999)
▪ mitigating and alleviating hunger 2. Right to Education (art 13), General Comment 13 (1999)
▪ national educational strategy 3. Right to Health (art 12), General Comment 14 (2000)
▪ national health strategy and plan of action
▪ non-discrimination
▪ equitable distribution of goods and services
▪ minimum essential food
▪ basic shelter, water and sanitation
▪ essential drugs 4. Right to water (art 11), General Comment 14 (2002)
▪ national water strategy and plan of action
▪ non-discrimination in access to water and water facilities and services
▪ equitable distribution of facilities and services ▪ monitoring the realization of the right to water
▪ minimum essential amount of water
▪ physical access to water facilities or services
▪ personal security while accessing water
▪ low-cost targeted water programmes
▪ access to sanitation (prevent water borne diseases) 5. Right to Culture [benefits of authors] (art 15(1)(c)), General Comment 17 (2005)
▪ equal access to remedies ▪ protection of the interests of authors
▪ Recognition of authors as creators
▪ protection of the material interests of authors
▪ balancing the interests of authors with rights of others 6. Right to Work (art 6), General Comment 18 (2005)
▪ national employment strategy and plan of action
▪ non-discrimination and equal treatment
▪ access to employment
7. Social security (art 9), General Comment 19 (2007)
▪ national social security strategy and plan of action
▪ non-discrimination
▪ monitoring the extent of the realization
▪ minimum essential level of benefits
▪ non-interference in existing social security schemes
▪ taking steps to implement social security schemes 8. Right to Take part in cultural life (art 15(1)(a)), General Comment 21 (2009)
▪ participation in the design and implementation of laws and policies
▪ non-discrimination and gender equality
▪ right to identify oneself with one or more communities
▪ right of everyone to engage in cultural practices
▪ elimination of barriers preventing access to culture 9. Right to Reproductive health (art 12), General Comment 22 (2016)
▪ national strategy and action plan
▪ universal and equitable access to goods and services
▪ access to effective remedies
▪ access to facilities, services, goods and information
▪ prohibition of harmful practices
▪ Safe abortions and post-abortion care and counselling
▪ access to education and information
▪ essential medicines, equipment and technologies 10. Right to Just and favourable Conditions of work (art 7), General Comment 23 (2016)
▪ national policy
In addition to the provision of minimum essential levels, the CESCR identifies other elements of core obligations. Some of these elements are peculiar to state obligations corresponding to a particular right. For example, one of the core obligations relating to the right to water is ensuring personal security while accessing water.97 The implementation of this obligation is important in areas where right-holders, particularly women and children, travel for several hours to fetch water. Given that the ICCPR guarantees the protection of personal security, one may question the significance of identifying such protection as a core obligation under the ICESCR.98 This example may indicate that the CESCR sometimes regards the protection of civil and political rights as a core obligation of economic, social and cultural rights.
Other elements are applicable to almost all rights for which the CESCR has identified core obligations.99 These include the obligations (1) to adopt a national strategy; (2) to ensure non-discrimination in the enjoyment of rights; (3) to ensure equitable distribution of facilities and services; (4) to monitor the levels of realisation; and (5) to provide remedies. These core obligations appear in relation to two or more rights. Although the CESCR omits these obligations in relation to some rights, one may argue that they are applicable to all rights. Thus, they are labelled as ‘common core obligations’ in Table 1 shown above. They are discussed below separately.
4.3.2.1 Obligation to adopt a national strategy
A strategy, by definition, is a plan of action.100 It involves setting goals, identifying actions to achieve the goals and mobilising the necessary resources to execute those actions.101 The CESCR usually emphasises the need to adopt and implement a national strategy. In its first general comment on state reporting, it explained that states have an obligation to ‘adopt a detailed plan of action for the progressive implementation’ of each of the right guaranteed in the ICESCR.102 This obligation springs from the undertaking to take steps by all appropriate means provided under Article 2(1) of the ICESCR.103 The CESCR emphasised that the obligation to devise strategies and programmes for the implementation of these rights is ‘not in any way eliminated as a result of resource constraints’.104 The CESCR identifies the obligation to adopt and implement a strategy as a core obligation for most of the rights.105 It omits this obligation from some rights, particularly the rights to take part in cultural life, housing, and food. It is not clear why the CESCR omits this obligation from some rights. As the CESCR has already explained, the obligation to adopt a strategy is implied in Article 2(1) of the
97 General Comment 15, para 37.
98 ICCPR, art 9(1).
99 The CESCR has not identified core obligation for the right to housing and the right to protection of the family.
100 See English Oxford Living Dictionaries, <https://en.oxforddictionaries.com/definition/strategy> accessed 22 May 2018.
101 Wikipedia, <https://en.wikipedia.org/wiki/Strategy> accessed 22 May 2018.
102 CESCR, General comment No. 1: Reporting by States parties, E/C.12/1989/5, 1989, para 4.
103 CESCR, General comment No. 1: Reporting by States parties, E/C.12/1989/5, 1989, para 4.
104 General Comment 3, para 11.
105 CESCR, General comment No. 23 (2016) on the right to just and favourable conditions of work (Article 7 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/23, 27 April 2016, para 65(d); General comment No. 22 (2016) on the right to sexual and reproductive health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/22, 2 May 2016, para 49;; General Comment No. 19: The right to social security (art. 9), E/C.12/GC/19, 4 February 2008, para 59; The Right To Work: General comment No. 18, Article 6 of the International Covenant on Economic, Social and Cultural Rights, E/C.12/GC/18, 6 February 2006, para 31; General Comment No 15: The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, 20 January 2003, para 37(f); General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4), 11 August 2000, para 43; General Comment No. 13: The right to education (Article 13 of the Covenant), E/C.12/1999/10, 8 December 1999, para 57.
ICESCR, a progressive realisation provision applicable to all substantive rights in the ICESCR.106 From this, one may argue, states have the obligation to adopt a strategy for every right guaranteed in the ICESCR.
The CESCR stipulates what a national strategy should contain. It provides more details with regard to some rights than it does with regard to others. In its general comment on the right to water, for example, it stipulates that a state has an obligation:
To adopt and implement a national water strategy and plan of action addressing the whole population; the strategy and plan of action should be devised, and periodically reviewed, on the basis of a participatory and transparent process; it should include methods, such as right to water indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all disadvantaged or marginalized groups.107
In this passage, the CESCR indicates the scope and content of a national strategy. As to the scope, it explains that a national strategy should address the entire population of the concerned State party. It also explains that states should give particular attention to vulnerable groups as an important part of the population. In principle, one may argue, a strategy adopted for the whole population is applicable to vulnerable groups. Still, it is in relation to these groups that the obligation to provide usually arises. Therefore, any national strategy should set separate goals to be achieved with regard to them. Such strategy should also identify actions to be taken to achieve the goals. In terms of content, a national strategy should provide for methods of monitoring the progress. Thus, strategies should include indicators and benchmarks. Moreover, the CESCR specifies other requirements. The process of adopting a national strategy should be participatory and transparent.108 A strategy should be reviewed from time to time.
In its concluding observations, the CESCR frequently expresses its concern that the State concerned has no strategy in place and calls upon it to adopt one.109 Sometimes, it requires the adoption of a strategy on a very specific aspect of a right, such as ‘teenage and youth health’,110 ‘child poverty’,111
‘domestic and gender-based violence’,112 and ‘homelessness’.113 For the states that have already adopted various strategies, the CESCR calls on them to implement or monitor the implementation.114 However, it hardly explains that states should adopt strategies because it is among their core obligations.
106 CESCR, General Comment No. 1: Reporting by States parties, E/C.12/1989/5, 1989, para 4.
107 General Comment 15, para 37(f). Italics added.
108 General Comment 15, para 37(f).
109 Concluding observations on Honduras, E/C.12/HND/CO/2, 11 July 2016, para 34; Tunisia, E/C.12/TUN/CO/3, 4 November
109 Concluding observations on Honduras, E/C.12/HND/CO/2, 11 July 2016, para 34; Tunisia, E/C.12/TUN/CO/3, 4 November