TWAILing the Minimum Core Concept: Re-thinking the Minimum Core of Economic and Social Rights in the Third World

The deployment of the minimum core concept in the sphere of Economic and Social Rights (hereinafter ESRs) can be attributed to the treaty body charged with the implementation of the International Covenant on Economic and Social Rights (hereinafter ICESCR). This treaty body, the Committee on Economic, Social and Cultural Rights (hereinafter CESCR) first adopted the minimum core concept in 1990 in its General Comment No. 3 on the Nature of State Obligations [UNCESCR, General Comment No. 3: The Nature of State Parties’ Obligations (Art. 2, Para. 1 of the Covenant), 14 December 1990, E/1991/23 (Hereinafter General Comment No. 3)]. The Committee averred that a failure on their part to introduce such a minimum core obligation would have amounted to depriving the ICESCR of its raison d’être. Since the inception of this concept however, numerous criticisms have been levelled against its normative and conceptual foundations as well as its implementation in practice. This article intends to contribute to this critical reflection on the prospects and challenges of the minimum core concept by utilizing a Third World Approaches to International Law (Hereinafter TWAIL) lens to critique the application of the concept to the Third World. The Article is divided into five sections. Sections 1 and 2 briefly sketch the contours of TWAIL as a critical school of thought, and focus on highlighting its application particularly in the area of international human rights law. Section 3 thereafter takes up the task of tracing the origins and utilization of the minimum core concept by the CESCR in its assessment of compliance with the ICESCR. The penultimate Sect. 4 undertakes an ambitious critical analysis of the minimum core concept from a TWAIL perspective. The paper concludes with Sect. 5 which offers a reconceptualized application of the minimum core concept potentially capable of alleviating the TWAIL concerns raised in earlier sections of the paper.