The Purpose of Module 8

The purpose of this module is to provide clarification on the process of defining the content of ESC rights.

The module

  • provides a definition of “core content” and “minimum core content” of rights;
  • discusses the current debate about core content and minimum core content; and
  • provides an example of the way one NGO—the Venezuelan Program for Human Rights Education and Action (Provea)—went about defining the core content of the right to health and how this defining process fit into and furthered its overall ESC rights work.

Why Define Rights?

The vague and indeterminate way in which ESC rights have historically been articulated continues to be one of the fundamental obstacles to further developing their content and to spelling out a framework for action that allows for their progressive realization.  As a result of the relative inattention paid to ESC rights over the past several decades (with the notable exception of labor rights), the content and meaning of most ESC rights remain relatively ill-defined.

This lack of clarity of content is often used as a rationale for not recognizing this set of rights as rights proper.  What is not recognized or acknowledged in such situations, however, is that the greater precision as to the content of various civil and political rights has been developed over the decades and often centuries as the result of numerous public discussions, legislative debates and court decisions.  In more recent decades, for example, the guarantees provided by article 7 of the International Covenant on Civil and Political Rights (ICCPR) have gener­ated lengthy debates about what constitutes “torture” as opposed to “cruel, inhuman or de­grading treatment or punishment.”  The result of these varied discussions has been a greater clarity on what exactly constitutes the heinous violation called torture. 

Activists working to advance ESC rights may thus find themselves involved in the process of defining the content of these rights.  Because the content derives from the right itself, the building block essential for understanding and defining the content of rights is the study of international standards and documents, national constitutions, as well as interpretations and analyses of these documents. [1]   The Committee on Economic, Social and Cultural Rights (CESCR), for example, has issued a number of very important General Comments related to specific rights, which are essential for activists in this process.  (See Module 3 for further discussion on General Comments.)   While representing a client or investigating a case, ac­tivists and organizations may often have to undertake a study or compilation of existing resources, such as the General Comments, and research related topics, to arrive at a fuller elaboration and deeper understanding of specific standards in order to argue the application of the standards to the specific case.  Their arguments, in turn, may serve as the basis for a court to make a decision that lends greater precision to the parameters and dimensions of the specific right.  This can be a difficult, complex and drawn-out process, but it is essential for the development of more precise understandings and greater protection of ESC rights at the national and international levels. 

Core Content and Minimum Core Content

The CESCR, which has the responsibility for supervising and monitoring the implementation of the ICESCR, has had to confront this same dilemma.  In considering reports from states parties regarding their implementation of the guarantees in the ICESCR, how was the com­mittee to determine whether a state was in compliance or not?  In the process of tackling this question, the committee developed a conceptual distinction with which activists should be familiar—whether or not they actively employ that distinction in their work. 

According to Limburg Principle No. 25, states parties to the Covenant have the obligation “to guarantee respect for the minimum rights of survival for all,” independent of available re­sources. [2]   However, this obligation is rendered without effect to the extent that there is no standard for what constitutes this minimum extent of observance.  A tool evolved by the committee was to develop a “minimum threshold approach” whereby certain minimum stan­dards should be achieved by all states, irrespective of their economic situation.  This ap­proach is clearly seen in the committee’s General Comment 3 (see pp. 174-77).  By adopt­ing this approach, the committee believed it could avoid the problem of measuring progress against resource availability, of speculating as to alter­native courses of action, or of acquiring evidence of state re­sponsibility.  In cases where significant num­bers of people live in poverty and hunger, it is for the State to show that its failure to provide for the per­sons con­cerned was beyond its control. [3]


The “core content” of a human right refers to the set of guarantees that constitute the right.  The core content of an ESC right has both “universal” and “unique” characteristics.  The universal charac-teristics are those which apply to all rights.  Nondiscrimination is one such universal char-acteristic.  In addition, certain characteristics of the core content of each ESC right are unique to the specific right.  For example, access “to immunization against preventable epidemic or endemic diseases” is a key component of the core content of the right to health, but is not applicable to other rights. [4]

The “minimum core content” of a right is the intangible baseline level that must be guaranteed for all persons in all contexts.  It indicates a minimum below which no government should perform, even in unfavorable conditions.  Some elements of the core content may be limited in special circumstances, but the minimum core content establishes a basic minimum for the action of all governments.

It is helpful to remember that the concepts of core content and minimum core content are not unique to ESC rights.  An example of minimum core content in the area of civil and political rights can be found in the right to freedom from arbitrary detention.  One element of the core content of this right is that a warrant for a person’s arrest must be obtained by the state and presented to the individual.  Another element of the core content is that an individual who is detained cannot be held for an indefinite period of time.  In the case of a declared national emergency in which constitutional guarantees are suspended, an individual may be detained without an arrest warrant.  However, even in this situation, s/he cannot be held indefinitely.  Since the requirement of an arrest warrant can be suspended, this element would not be considered part of the minimum core content of the right to freedom from arbitrary detention.  Since, however, s/he cannot be detained indefinitely, even under a state of emergency, that guarantee would be an element of the minimum core content.

A Framework for Defining Rights and Obligations
(Example—Right to Health)







Core content of a right

The specific individual en-titlements that make up a right

In the area of health, the right to immunization a-gainst preventable epidemic or endemic diseases  

State obligation

The responsibilities of the state to respect, protect, pro-mote and fulfill the entitle-ments under the right

The state is to develop pol-icies and programs to meet obligations.  In the case of the right to health, policies and programs of promotion, prevention, treatment and rehabilitation

Obligation of conduct

Obligation to undertake specific steps (acts or omis-sions)

For example, developing immunization campaigns

Obligation of result

Obligation to obtain a parti-cular outcome

Decrease in mortality from epidemic or endemic diseases

Provea's Experience in Defining Minimum Content of the Right to Health

Provea is a Venezuelan NGO working since 1992 to promote the right to health, as its main area of work, in the context of its efforts to promote ESC rights. In order to improve its capacity for both promotion and education, and its policy and case advocacy work, Provea decided to undertake a systematic research project on the right to health.

As a first step, an intensive bibliographical search was performed on the right to health. Most of the sources consulted either addressed specific aspects of the right, or treated it in an introductory or general manner. Finding that there was not enough material defining the right to health, Provea ventured to delineate a general conceptual framework for protecting the right to health. It wanted to develop an international perspective while responding to the legislative and political reality of Venezuela. To this end, international instruments and domestic provisions to protect this right were studied. More than forty organizations and individuals, Venezuelan and international, collaborated in this study.

In the course of the work, Provea realized it had to define the minimum core content of the right to health, despite the intrinsic difficulties posed and the controversy this would entail.

The following are some principles that formed the basis of Provea's work:

• Defining minimum core content is a relatively unexplored area, but it is necessary to arrive at an objective definition of each right.
• The minimum core content of a right establishes the minimal conditions that each individual should enjoy, in the absence of which the right is understood to be absent.
• Having a definition of content is a valuable instrument for enforcement, as it makes it possible to have a minimum standard for evaluating the observance of a right.
• Defining minimum contents needs to be understood as a dynamic process.5
• The principle of universality is assumed; i.e., all human beings by nature are entitled to all human rights. The fact that different legal orders may establish different levels of protection does not mean that some have more of a right than others do.6
• In a world of constant change and diverse scenarios, it is possible to identify common elements that constitute a core aspect of the right, independent of available resources or political, economic, social or cultural context.
• The definition of minimum core content must be sought in light of the nature of the right; its principles and characteristics (nondiscrimination, accessibility, interdependence, etc.) and its enforcement.
• For health, the starting point for arriving at a definition is to be found in the standards established in treaties that provide for the protection of the right, which are a necessary frame of reference, but which always need to be improved. 7
• A secondary source is a comprehensive view of health emanating from the international doctrine as to what constitutes health that has been developed by the World Health Organization, among others.
• Domestic law provisions are useful for formulating demands at the local level, and even if they cannot be extrapolated beyond the territory in which they apply, they can be helpful both as cross-references and as sources of doctrinary law.
• The progressive use of a consensus-based definition of contents beyond the formal definition,8 and their progressive validation, will help make the right increasingly enforceable.
• Arriving at a universally applicable definition of contents requires the active participation of organizations from around the world, so as to bring context-based experience within the scope of the right.
• Defining minimum obligations should complement the definition of contents, for the main objective is to ensure the observance of the right for the individual and the community, as persons entitled to it. State action is an essential yet complementary condition for achieving the right.

Working from these elements, and taking as the starting point article 12 of the ICESCR, an initial effort was made to define the minimum core contents of the right to health.9 The effort to define core contents strengthened Provea's overall work in the area of protecting human rights. The process contributed to:

• strengthening the educational, awareness-raising and promotional work, on the contents of the right;
• developing strategies for enforceability vis-à-vis the national courts and legislature;
• improving the methodology for research and analysis of the situation of this right;
• identifying aspects of public policy that clearly affect the enjoyment of this right; and
• developing human rights indicators for analyzing the situation of this right.

Defining Core Content and Minimum Core Content—The Debate

The question of defining the core and minimum core contents of ESC rights is not without debate and controversy.  Some activists believe that focusing on such definition can be counterproductive to activism.  Others believe that such a focus is essential to effectiveness. 

Some of the arguments against definition focus on the difficulty of establishing universally applicable standards.  The CESCR itself has acknowledged the difficulty of defining the minimum core content of a right.  With respect to the right to health, for example, it has stated that “as the ideal of the human being is to attain the highest possible standard of living, it is not possible to fix a uniform minimum limit below which a given State is considered to be in breach of its health-related obligations.”  However, a member of the committee also said, “In contrast, it is feasible to determine, mindful of its progressive nature, whether there have been advances, setbacks, or stagnation in the enjoyment of the right to health.” 10

On the other hand, several authors maintain the need to define the minimum core content of each right as a way to identify what it is that the right confers upon those who enjoy the entitlement, and to help identify the specific obligations that a state assumes by recognizing those contents.  One author has said:  “Each right must therefore give rise to an absolute min-imum entitlement, in the absence of which a state party is to be considered to be in violation of its obligations.”11 Another author defines the core content of rights as “a limit beyond which activities limiting fundamental rights and public freedoms cannot be carried out.”12

Some who advocate for defining minimum core content argue for setting a universal standard for the enjoyment of some rights—for example, setting the number of square meters neces­sary for the guarantee of adequate housing or the number of calories necessary for the right to food.  However, those arguing against defining core and minimum core content focus on the difficulty of establishing such universally applicable standards.  Others point out that this could be construed as operating to limit the overall guarantee of rights, by establishing a de­fined standard of compliance.  Thus, it may lend itself to the argument that everything that is excluded from that content is not within the right.

Some activists maintain that the definition of minimum core content of a right is necessary to ensure the justiciability of such a right.  Establishing such a framework ensures a uniform baseline that must be respected, even by those states with insufficient economic resources,13 to promote realization of the right and to guarantee equity in the distribution of available re­sources.

Those who are not in favor of defining minimum core content point out that often the mini­mum core gets associated with those elements that cannot be derogated from or that require immediate implementation.  More importantly, minimum core content can also be seen as elements of a right that are justiciable.  The danger is that courts may inappropriately latch onto the notion of minimum core content as being the content of an ESC right that is justici­able, and leave the other components to government policies.

Focusing on minimum core content also tends to ignore violations of ESC rights in affluent countries, where the issue is usually not a failure to meet minimum core obligations, but rather to fulfill the obligation to apply “the maximum of available resources.”

In addition, some advocates oppose defining minimum core content, since doing this may tend to focus on the “negative” or civil right components of ESC rights as the minimum.  For example, with regard to the right to housing, the core may shift to focusing on the right to due process while conducting evictions—thus, the stress would be on civil rights issues.  Consequently, there is a danger that defining the core content may not contribute to devel­oping substantive aspects of ESC rights.

However, despite all these debates, there is a general consensus that core content simply means the key components of the right.  It is accepted that those concerned with ESC rights should play a role in developing an international consensus on the key components of rights. 

Authors: This module is based on a paper prepared by Ligia Bolívar and Enrique González



1. International Human Rights Internship Program, Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic, Social and Cultural Rights (Washington, D.C.: International Human Rights Internship Program, 1997).

2. See Module 3 for a further description of and cite to the Limburg Principles.

3. Matthew C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (Oxford: Clarendon Press, 1995), 141-43.

4.  Provea, Health as a Right: Framework for National and International Protection of the Human Rights of Health (Caracas, 1996), 39.

 5.  “The content of the rights protected by a given convention may be subject to a progressive defi­nition.”  In Pedro Nikken, La protección internacional de los derechos humanos: Su desarrollo progresivo,  IIDH,  Ed. Cívitas (Madrid, 1987), 117.

 6.  To cite an example from civil rights: The fact that the death penalty exists in more than 90 states worldwide does not mean that their citizens do not have the right to life.  What it does mean is that they live under a legal order that is in violation of international human rights law.  This does not strip them of their entitlement to that right, since there is a supranational order that enshrines it.

 7.  To maintain that a specific right is limited to what is agreed upon in international treaties is equivalent to understanding that legislation cannot be perfected.  Imagine what would have hap­pened had this position been advocated in 1946, before the adoption of the UDHR.

 8.  In this regard, Provea shares the vision put forth by Special Rapporteur Danilo Türk, who, when referring in his final report on the realization of ESC rights to the barriers that “illustrate the great distance between the world aspiration for these rights and their recognition, on the one hand, and their effective observance, on the other” defends the “need to overcome purely legalistic attitudes with respect to ESC rights.”  See the Final Report of the Special Rapporteur of the Sub-Commis­sion on Prevention of Discrimination and Protection of Minorities, Danilo Türk, The full realiza­tion of economic, social and cultural rights, UN ESCOR, Commission on Human Rights, Forty-eighth Sess., Agenda Item 8, UN Doc. E/CN.4/Sub.2/1992/16 (1992).

 9.  The results of the overall research project are available in Spanish.  See Provea, El derecho a la salud:  Marco nacional e internacional de protección del derecho humano (Caracas, 1996).

10. Juan Avarez Vita, “Discussion note,” in CESCR: Report on the ninth session, E/C.12/1993/19, p. 63. Vita is a former member of the CESCR.

11.  Philip Alston, “Out of the Abyss: The Challenges Confronting the New UN Committee on Eco­nomic, Social, and Cultural Rights,” Human Rights Quarterly 9, (1987). 352-53.  Alston is a  former chairperson of the CESCR.

12.  Carlos Ayala, “Consideraciones sobre el desarrollo legislativo inadecuado de derechos y garan­tías constitucionales,” in Constitución y Reforma: Un Proyecto de Estado social y democrático de Derecho (Caracas, 1991).  Ayala is a former chairperson of the Inter-American Commission on Human Rights.

13.  “Every State that has accepted legal obligations . . . agrees that under all circumstances, including periods characterized by resource scarcity, basic minimum obligations and corresponding essen­tial rights remain in place.”  “Commentary to the Maastricht Guidelines on Violations of Eco­nomic, Social and Cultural Rights, Guideline Nos. 9 and 10,” Human Rights Quarterly 20, no. 3 (August 1998): 717.

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