Socio-economic rights, economic crisis, and legal doctrine

Abstract

This paper seeks to address and develop the conceptual framework for dealing with socioeconomic rights in times of economic crisis. Section 2 explores a peculiar but important conceptual feature of socio-economic rights, namely, the fact that they generally only give rise to positive obligations in circumstances in which individuals are unable to provide for their own needs. After distinguishing three different notions of crisis, I reach the conclusion that socioeconomic rights do not lose their application in times of crisis: indeed, it is in these circumstances that they often become most important. In Section 3, I consider the legal doctrines that are most likely to render these rights meaningful in these difficult circumstances. First, a variety of negative obligations persist at times of crisis and, importantly, can result in a duty on the part of private parties to compensate for harms they cause. Second, the minimum core approach is best placed to provide the doctrinal basis necessary to give effect to the state's positive obligations with its emphasis on prioritization, clear standards, and accountability. Finally, I counter the argument recently raised by two authors in this journal that the doctrine of proportionality can provide content to social rights in times of crisis. Proportionality cannot conceptually provide content to rights and, rather, requires, for its very coherence, supplementation by a doctrine of content. Correctly used, it provides a structured test to determine the justifiability of any limitations the government places on its socio-economic rights obligations in times of crisis.