172
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 33: 113
social rights and obligations in th e area of trade is as complex 344 as it is
urgent.345 Yet, it is not clear that the conce pt of the minimum core assists us
any better than the general language of economic and soci al rights, and the
analysis of the obligations they might entail.346
D.
Making Claims: A Word on Language
If the minimum core is unable to a ssist in the difficult challenges of
prescribing rights or of ranking obligations, its in tuitive appeal may reside
elsewhere. Do advocates of t he minimum core ( and, as noted by one S outh
African commentator, “[m]ost human rights scholars are minimum core
campaigners”) 347 perceive something that these anal ytics miss? Does the
concept retain a hold on our normative imaginations that we should be wary to
discard?
These remarks on language follow the intuition that there is much to be
gained from a concept that directs at
tention and priority in the area of
economic and social rights to those groups most marginalized, vulnerable, and
subject to the greatest leve l of materi al disadvantage. This applies to both
international and na tional planes of legal decis ionmaking. And yet this
intuition points to a different intellectual strategy than that raised by the other
activities. Rather than attempting to reconcile the minimum core concept with
settled foundations, a new research
agenda may assess its potential
instrumentally and criti cally. In one sens e, this move is in keeping with the
wider project of instrumenta lizing the vocabulari es of s ocial justice, with all
of its attendant dange rs and opportunities. 348 In other, more aesthetic terms,
this strategy departs from the search for th e “rhetoric of or der” behind the
claims of the core of economic and soci al rights, but instead seeks to assess
the concept as an “energ y source,” one that migh t inspire or motivate change
or reform.349 We are no longer within the “r igorously charted moral space of
344. Andras Sajo, Socioeconomic Rights and the International E conomic Order, 35 N.Y.U. J.
INT’L L. & POL. 221, 250 (2002) (suggesting but dismissing in the present environment the possibility of
legal obligations, but recognizing the
“intellectual challenge” presented); cf. Thomas Pogge,
Introduction, in FREEDOM FROM POVERTY AS A HUMAN RIGHT: WHO OWES WHAT TO THE VERY POOR?
1, 6 (Thomas Pogge ed., 2007).
345. E.g., ROBERT HOWSE & MAKAU MUTUA, INT'L CTR. FOR HUMAN RIGHTS & DEMOCRATIC
DEV., PROTECTING HUMAN RIGHTS IN A GLOBAL ECONOMY: CHALLENGES FOR THE WORLD TRADE
ORGANIZATION
(2000),
http://www.ichrdd.ca/english/commdoc/publications/globalization/wtoRightsGlob.html
(examining
legal obligations to respect human rights in trade and investment agreements).
346. Research into the relevant legal responsibil ities have inspired a range of “linkages”
studies. E.g., Joel P. Trachtm an, Legal Aspects of a Poverty Age nda at the WTO : Trade Law and
“Global Apartheid,” 6 J. INT’L ECON. L. 3 (2003) (canvassing liberaliza tion and redistribution as
measures that are bo th within th e institutional reach of the W TO); cf. Robert Wai, Countering,
Branding, Dealing: Using Social Rights in and around the International Trade Regime, 14 EUR. J. INT’L
L. 35 (2003).
347. Lehmann, supra note 6, at 180.
348. E.g., FRASER & HONNETH, RECOGNITION OR REDISTRIBUTION, supra note 26; see also
Kerry Rittich, The Future of Law and Development: Second Generation Reforms and The Incorporation
Of The Social , 26 M ICH. J. INT'L L. 199, 241 (2004) (“in second generation reform s, human rights are
better understood not as the answer to the social deficit but as the terrain of struggle”).
349. Pierre Schlag, Rights in the Postmodern Condition , in LEGAL RIGHTS, supra note 76, at
263, 264.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents