This is part of a September Feature at Legally Flawed, where writers choose an article and try to rebut it using logic and reason. Enjoy Rebuttal Rounds!
David Bilchitz, in his book “Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights”, talks about a minimum core for socio-economic rights that can be implemented by countries. In this blog post, author Mary Kavita Dominic argues against this logic. She envisages an alternative to the set rule. Read on to know more.
Contextualising the Debate
The roots of one of the most riveting academic debates in human rights literature, run quite deep. Perhaps, one can start with the distinction (somewhat artificial?) between civil-political and socio-economic rights. I refer, in particular, to the different compliance mechanisms envisioned for these sets of rights under the ICCPR and the ICESCR.
Just a perfunctory glance at the compliance clauses in these instruments would tell you that while civil and political rights are to be immediately enforced by all state parties, socio-economic rights are only subject to progressive realisation.
Thus, while states are required to immediately guarantee the right to vote to every citizen, they may not be obliged to guarantee housing for everyone on an immediate basis. The latter is merely subject to programmatic realisation.
This raises several pertinent questions. What does the duty of progressive realisation entail? How do we ensure that the state is sincerely complying with its duty of progressive realisation? When can we hold a state accountable for violation of this duty?
In an attempt to answer these myriad questions, the CESCR in 1990, came up with a concept that even the most vociferous critics would concede to be revolutionary. The Committee mooted the idea of vesting states with ‘minimum core’ obligations, which required them to satisfy the minimum essential levels of each socio-economic right, as a matter of priority.
This was further developed by Bilchitz in his book – “Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights.” In the context of the right to housing, he argues that the notion of ‘progressive realization’ implies the movement from the realization of the minimal interest in housing (minimum core) to the realization of the maximal interest. In other words, he envisages minimum core to be a practical benchmark against which states’ compliance with the duty of progressive realisation can be evaluated.
However, I argue that the concept of minimum core is inherently vague and difficult to determine. A potential alternative is considered, which I believe achieves all that the notion of minimum core purports to achieve, sans the inherent indeterminacy plaguing it. Unlike Bilchitz, I do not believe that identifying a minimum core is intrinsic to the progressive realisation of socio-economic rights.
Is Minimum Core Indeterminate?
Bilchitz defines minimum core as those interests that are intrinsic to one’s basic needs and survival. In the context of housing, for example, he defines the minimum core as the right to shelter that protects one from exposure to elements.
It cannot be disputed that notions of survival and basic needs can, to a limited extent, furnish practical standards against which a state’s performance is assessed. For instance, in Olga Tellis, the eviction of pavement dwellers in Bombay without providing them alternate accommodation in the city, deprived them of their sources of livelihood and hence threatened their survival. Therefore, applying Bilchitz’s formula, it would be possible to construe that the state had violated its obligations in relation to the minimum core of housing rights.
But can such a universal notion of survival or basic needs be applied to all fact situations? For instance, consider the example of a wheel-chair user. In relation to his right to housing, does the “survival-based’ formulation require that he be afforded shelter which protects him from ‘exposure to the elements’ or that he also be afforded shelter which can be accessed by him without external assistance (via ramps or elevators)?
It was precisely this criticism that was levelled against the concept of minimum core by Justice Yacoob in the South African case of Grootboom. He opined that the needs in the context of right of access to adequate housing were diverse. These would vary according to factors such as income, unemployment, availability of land and poverty. What is necessary for survival in rural communities may not be the same for those inhabiting cities.
Similarly, the minimum core can also vary according to the economic and social history as well as the circumstances of a country. The commodities required for survival in a developed country might potentially differ from those required in a developing country. Therefore, should core obligations be defined generally or with regard to specific groups of people?
As pointed by Young, even a scientific assessment of the commodities necessary for biological survival can reveal its own controversies and indeterminacies. This was foreseen by Amartya Sen when he pointed out that the requirements of survival were not as straightforward as one would assume.
It is in light of such indeterminacy that one must turn to alternatives for monitoring the progressive realisation of socio-economic rights.
Is there an Alternative to Minimum Core?
Contrary to what Bilchitz argues, it is quite arduous to derive a universal standard for each right, that can operate as its core minimum. Therefore, as opposed to artificially carving out a minimum core, it would be prudent to keep the general language of rights as expansive as possible, where different conflicting views on the content of rights can be accommodated. Consequentially, in the afore-mentioned example of the wheelchair user, the right to housing could incorporate both interpretations of survival.
Within this all-encompassing right, it then falls upon the state to exercise its discretion and determine which aspect of the right should be assigned priority. Depending on the local variables, it can establish its own benchmarks, as a matter of legislative policy and work towards progressive realisation of the right. In order to ensure that the state is sincerely complying with its progressive realisation goals and not determining the benchmarks arbitrarily, the same can always be subject to judicial scrutiny. Therefore, if the state sets benchmarks that prioritise building mansions for the rich as opposed to resettling evicted slum dwellers, this would be open for challenge in a court of law.
This model not only furnishes practical benchmarks but also protects the most vulnerable, all of which were the purported aims of the ‘minimum core’ concept. At the same time, it is not riddled by the ambiguities inherent in the latter.
Mary Kavita Dominic is an alumnus of National University of Advanced Legal Studies, Kochi. She is also the recipient of the prestigious Rhodes Scholarship and is pursuing her Master’s in Oxford University. In her law school days, she was known for her quick wit and erudite knowledge put to use in debates, both national and international.