Presented at the 5th Inter-University Graduate Student Conference at Cornell Law School, March 2009.
Today’s world is witness to extraordinary inequality and the most desperate poverty. Millions of people across the world have no access to adequate food or water, basic health care or minimum levels of education. There are many avenues through which to approach the issue of improving socio-economic conditions. Courts, especially recently, have in certain countries, been seeking to ameliorate these conditions, to some extent, through the means of socio-economic rights adjudication.
For courts to effectively empower people to realize their socio-economic rights, attention to implementation of judgments is essential. A strong normative base for such judgments is just as crucial, for it serves as the foundation on which implementation is based. The standards and tests courts rely on and courts delineate in the course of socio-economic rights litigation, may affect and influence the degree to which courts can translate abstract rights into tangible reality. Minimum core is one such standard. The concept of “minimum core" in the realm of socio-economic rights seeks to confer minimum legal content for such rights. Judicial adherence to a minimum core approach is when courts take it upon themselves to give specificity to socio-economic rights which are usually framed in general terms. While the concept of minimum core is seemingly simple and evidently important, it is plagued by complexities and inherent paradoxes, as shall be demonstrated in the course of this paper. Such complexities surface in the legislative and administrative spheres, but are exacerbated when the concept is in context of judicial application.
This paper examines the “is and ought” aspect of judicial adherence to the concept of minimum core. After an analysis of how the concept has been judicially applied and post-consideration of legitimate concerns voiced by scholars, this paper attempts to recommend a way forward where the emphasis is more on meeting the aspirations driving minimum core, than fulfilling any rigid requirements mandated by the concept. The framework recommended eschews the stranglehold of semantics and does not require for explicit use of the term, “minimum core.” There still appears to be a sense of unease with the concept of minimum core in national contexts resulting in there not being that many relevant cases; so in a way this paper frames its recommendations more on what the author anticipates than necessarily knows.
Date of Authorship for this Version
Chowdhury, Joie, "Judicial Adherence to a Minimum Core Approach to Socio-Economic Rights – A Comparative Perspective" (2009). Cornell Law School Inter-University Graduate Student Conference Papers. Paper 27.