2008]
The Minimum Core of Economic and Social Rights
175
“positive” formulations, and the danger of capture
into vocabularies of
institutional jurisdiction or justiciability.
The virtue of disaggregating these approaches lies in understanding the
root of the conceptual co nfusion. The resulting clar ity helps us to distill
several competing operations for the concept: in pres cribing content, ranking
obligations, signaling extr aterritoriality, and introd ucing a new language of
claiming. Many of these operations are not, in the end, suited to the concept of
the minimum core. First, positive oblig ations often rely on benchmarks to
become operational and ne gative obligations often ra ise questions of state
action and responsibility. The substance of both is informed by a rigorous
interpretation of rights, not cores, and thus to the interests that are important to
shield from politics or co st-benefit analysis. Second, limitations on rights are
likewise made permissibl e by the exercise of ba lancing, rather than by
minimizing on the interpreta tion. Third, challenges of extr aterritoriality raise
the same questions of obligations and their negative and positive implications,
but these are made mor e complex by t he additional difficult questions of
causality, mutual interdep endence, or responsibility outside of the statist
frame. And finally, the language of ri
ghts claiming matters—it requires
critical analysis, rather than mere ac ceptance, especially when misrecognition
and stigma are so quick to accompany the claims of the poor. It is thes e
operations that are obscured by t he minimum core concep t and warrant the
attention—and the ambition—of advocat es of economic and s ocial rights.
Their future answers will be important indeed.
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