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Part 2 – Rohingya Deportation: Deportation is a Distinct Crime in the ICC Statute

Saif Ansari is a recent graduate of New York University, School of Law. He has previously served under Judge Nonkosi Mhlantla at the Constitutional Court of South Africa and Judge Nicola Lettieri at the Special Tribunal for Lebanon.


1. Introduction

In April 2018, the Prosecutor at the International Criminal Court filed a motion seeking guidance from the Pre-Trial Chamber about whether the court had jurisdiction over the deportation of Rohingya Muslims from Myanmar, a non-state party, to Bangladesh, a state party. In earlier discussions, commentators argued that deportation and forcible transfer are combined into a unified offense in the Rome Statute, and because crossing an international border is an element of deportation but not forcible transfer, the unified crime was complete in Myanmar. Consequently, no essential element of the crime occurred in Bangladesh, depriving the ICC of jurisdiction over the acts of deportation.

In our first post, we showed how the International Criminal Court has jurisdiction over these acts of deportation, regardless of whether or not deportation and forcible transfer are a single crime. To do this, we contested whether an “essential” element is the requisite standard. We used the crime of torture as an analogy, showing how the essential element requirement used in these discussions is of mysterious origins, poorly defined and overly demanding. Applying what we believe are more defensible tests for jurisdiction, we concluded that even if deportation and forcible transfer are a single offense, their unification does not deprive the ICC of jurisdiction over acts of deportation to Myanmar.

In this second post, we argue that deportation and forcible transfer are distinct offenses, even though they are listed in a single provision in the Rome Statute and Elements of Crimes. In effect, deportation and forcible transfer are more akin to Article 8(2)(a)(vii) of the Rome Statute (which prohibits the distinct offences of “[u]nlawful deportation or transfer or unlawful confinement”), than torture (which prohibits the infliction of physical or mental suffering as alternate means of perpetrating the same offense of torture).

On one level, our argument offers an alternate basis for the court to find that the acts of deportation in question took place in Myanmar if it disagrees with our first post. If deportation is a distinct, separate offense, the distinction turns on victims being expelled across a border “to another State,” which is highly germane to the Rohingya situation. On another level, we believe that there are important reasons to preserve the continued existence of deportation quite apart from the issue of jurisdiction in this case. In particular, we are concerned about the interpretative coherence of the Rome Statute, the distinct expressive value of deportation as a separate crime, and for sentencing.

In what follows, we propose five mutually reinforcing arguments as to why deportation remains a single, distinct offense in the Rome Statute and Elements of Crimes, despite the fact that it is listed under the same heading as forcible transfer. First, we show how a literal reading of the Rome Statute and the Elements of Crimes preserve the historical distinction between deportation and forcible transfer. We accept that the interpretation we offer is not the only interpretation available, but we believe it is analytically preferable as a matter of pure hermeneutics, and the only interpretation that squares with the other material we review. Second, we show how the drafters clearly intended for there to be a distinction between deportation and forcible transfer based on whether the displacement was within a state or across an international border. Third, we demonstrate how the ICC itself has consistently retained the distinction in its own practice to date, notwithstanding some curious language in one decision. Fourth, we marshal evidence of state practice to argue that the distinction is also firmly entrenched in customary international law. Fifth, we show why there is a distinction in the first place: because deportation and forcible transfer protect similar but different interests. We conclude that conflating deportation and forcible transfer would be a mistake in law and principle.

2. Article 7(1)(d) preserves the distinction between deportation and forcible transfer

“Deportation or forcible transfer of population” is a crime against humanity under Article 7(1)(d) of the Rome Statute. According to Article 7(2)(d), for purposes of Article 7(1)(d), “‘[d]eportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” Article 7(1)(d) of the Elements of Crimes lists the elements of the crime as follows.

Article 7(1)(d)

Crime against humanity of deportation or forcible transfer of population

 Elements

  1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
  2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
  3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
  4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
  5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Footnote 12 of the Elements of Crimes says

[t]he term forcibly is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.

Likewise, footnote 13 says

deported or forcibly transferred is interchangeable with forcibly displaced.

There is some basis to conclude that this definition combines the crimes, but overall, we find these bases unpersuasive. First, if the two offenses were distinct, one might anticipate that they merited separate definitions in the Statute itself, especially if deportation has a cross-border element that marks its particularity. This, we argue, is answered by the terms of the Elements of Crimes we discuss below. Second, the Ruto decision refers to deportation and forcible transfer as “labels” for a single “unique crime.” Nevertheless, we show below how the same paragraph in Ruto also indicates that “[t]he factor of where they have finally relocated as a result of these acts (i.e. within the State or outside the State) in order to draw the distinction between deportation and forcible transfer is thus to be decided by the Trial Chamber.”[1] We come to each of these issues momentarily, but for now, it is sufficient to observe that a coherent literal interpretation of deportation and forcible transfer support the ongoing distinction between the two normatively overlapping offenses.

To begin, just because they are grouped under the same heading, does not mean deportation and forcible transfer are the same crime. Article 7(1)(d) is an example of a disjunctive crime, or a crime that can be committed in more than one way. Disjunctive crimes are usually denoted by the insertion of the word “or” in the name of the crime and/or an element of the offense. But as the OTP shows, the Elements of Crimes lists disjunctive crimes in different ways. For example, sexual offenses under Article 7(1)(g) are listed under different headings, but “using, conscripting and enlisting children” under Article 8(2)(e)(vii) are listed under one heading. In terms of substance, the Pre-Trial Chamber in Lubanga held that the very use of “or” in the first element shows that “conscripting or enlisting” child soldiers “or using them to participate actively in hostilities” are “separate offenses” under Article 8(2)(e)(vii).[2] We believe the same is true of deportation and forcible transfer.

A systematic interpretation of the definition of deportation or forcible transfer in the Elements of Crimes supports this view. The reference to “deportation or forcible transfer” in the headings of the Elements arguably initiates a sequencing that the entire structure of the definition subsequently follows. The word “deportation” comes first in the heading, then “deported” precedes “forcibly transferred” in Element 1. “[T]o another State” is also the first location listed by Element 1. Pursuant to the same logic, “forcible transfer” follows “deportation” in the heading, marking a sequence that is matched by the words “forcibly transferred” following “deported,” and “location” coming after “to another State.” Through this sequence, “deportation” corresponds to “deported…to another State” and “forcibly transfers” corresponds to “another… location.” Systematic structure is, of course, only one attribute of good drafting, but we argue that it weighs in favor of treating deportation and forcible transfer as distinct crimes, especially when other material we review unequivocally support this reading.

Despite some lamentable ambiguity in drafting, it is clear here that footnote 13 of the Elements of Crimes does not conflict with the systematic reading we offer here. According to footnote 13, “‘[d]eported or forcibly transferred’ is interchangeable with ‘forcibly displaced.’” Some believe this language suggests that deportation and forcible transfer, taken separately, are identical. We are not persuaded by this view and believe that much discredits it. Footnote 13 says that the terms “deported and forcibly transferred” and “forcibly displaced” are “interchangeable,” not that deportation and forcible transfer are the same crime. The difference is important. In effect, footnote 13 implies that forced displacement is another description for “deported or forcibly displaced,” which is not to say that “deported,” “forcibly transferred,” and “forced displacement” are legally synonyms. Mathematically, the interpretation we offer based on the positioning of the quotation marks around “deported or forcibly transferred” as a pair is the difference between (A + B) = C and A = B = C. Put another way, it would not be safe to deduce from the fact that, because apples and oranges are fruit, apples are oranges. So, we favor the view that footnote 13 indicates that “forcibly displaced” is a term of convenience that can be used to refer to both crimes together.

Whether by coincidence or design, courts have used the closely related term “forced displacement” in precisely this fashion, especially in circumstances where the distinction between the two offenses is of no factual significance.  Although the negotiating history of the Rome Statute is silent as to the intended meaning of footnote 13, it was likely inserted in light of the ICTY’s jurisprudence, which had employed the term “forcible displacement” as an umbrella in these circumstances. In 2000, two years before the ICC Elements of Crimes were first drafted, the trial judgment in Blaškić used “forced displacement” as a synonym for “deportation or forcible transfer of civilians” when assessing acts that could constitute persecution as a crime against humanity.[3] This use of “forced displacement” as a means of referring to both crimes together instigated a major trend, even as the same courts decided that deportation was distinguishable from forcible transfer based on whether the victim was displaced across established borders. We come to the caselaw about cross-border transfers momentarily, but for now, we pause to provide slightly more evidence of the popularity of “forced displacement” as an umbrella term.

The habit of using “forcible displacement” in this manner has spanned the better part of two decades. In the appeal judgment in Krnojelać, for instance, the ICTY held that for purposes of the crime against humanity of persecution, it does not matter whether a given act of “forcible displacement” constituted deportation or forcible transfer.[4] As the ICTY subsequently held in the appeal judgment in Simić, what matters is whether the act of “forcible displacement” was carried out with the requisite discriminatory intent.[5] Most recently, the trial judgment in Milutinović held that “[a] number of elements of these offences are the same and are discussed herein under the heading ‘forcible displacement.’”[6] Therefore, a long line of cases at the ICTY refer to deportation and forcible transfer together as “forcible displacement,” usually for the purpose of proving the distinct crime of persecution. As we will see below, this caselaw also insists that there is a formal legal difference between deportation and forcible transfer. Thus, this body of jurisprudence reinforces our view that footnote 13 of the Elements of Crimes merely creates a linguistic label for the two crimes, without altering their separate legal meaning.

Finally, the ICC has also referred to “forcibly displaced” as a generic label that serves as a placeholder until such time as the distinction between deportation and forcible transfer is established at trial. In Ruto, the Pre-Trial Chamber said that it is not necessary to distinguish between the two “labels” at the pre-trial stage, not because the distinction is irrelevant, but because it is not yet apparent which of the two was committed. The Pre-Trial Chamber delegated the task of determining whether acts of forcible displacement constituted deportation or forcible transfer to the Trial Chamber based on where victims were finally relocated to—“i.e. within the State or outside the State.”[7] But in Ruto, it was apparent even at the pre-trial stage that people were “forcibly displaced” somewhere, wherever they ended up.[8] Therefore, in spite of the seemingly contradictory reference to “labels” of a “unique crime,” Ruto shows that the ICC itself has referred to deportation and forcible transfer together as “forcible displacement,” in line with the meaning we ascribe to footnote 13. For all these reasons, a literal interpretation of the provision suggests that the offenses remain distinct.

3. The drafters intended for there to be a distinction between deportation and forcible transfer

The literal interpretation we offer is, to our minds, the only interpretation that can be squared with the negotiating history of the Rome Statute and Elements of Crime. Most importantly, numerous sources indicate that the drafters of the Rome Statute intended for there to be a legal distinction between deportation and forcible transfer, and we have unearthed no evidence that suggests otherwise. We set out some of these sources here in chronological order:

  • The International Law Commission’s commentary on the predecessor to the Rome Statute explicitly references the distinction between deportation and forcible transfer as well as the fact that transfer across a border demarcates the two crimes. According to the ILC, “[w]hereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State.”[9] Of course, the drafters could have written Article 7(1)(d) in generic terms so as to encompass both, but they did not. They retained the distinction between deportation and forcible transfer out of a desire to ensure that the two remained separate crimes.
  • At the Preparatory Committee in 1996, there were three drafts of the relevant provision prepared, all of which mentioned deportation but only one of which mentioned forcible transfer in brackets.[10] Again, this suggests that the drafters considered whether there should be a distinction between forcible displacement within a state and across an international border. As the Members of the Canadian Partnership for International Justice argue in an amicus brief submitted to the ICC in support of the OTP’s request in the present case, “[t]his reflects the drafters’ awareness that they were dealing with separate crimes.”
  • Several authors who were present at the negotiating of this provision argue that states intended to maintain the distinction. According to Hebel and Robinson, “‘forcible transfer of population’ was added as an alternative to ‘deportation’ so as to encompass large-scale movements within a country’s borders.”[11] This addition and the basis for it, suggest that the language of the Rome Statute and Elements of Crimes we review above sought to create an additional complementary offense, not deliberately collapse deportation into a broader joint crime.
  • Similarly, Hall and Stahn report that that early versions of the section show that the drafters distinguished between “mass deportations or forced transfer of persons from the territory of a State [or from an area within a State].”[12] Apparently, the drafters were also given a paper by Amnesty International indicating that “forcible transfer” was inserted in order to create a distinction between forcible displacement within a state and across an international border. According to Hall and Stahn, no one objected to the distinction.[13]

All in all, we believe that these sources support the literal interpretation we offer. They provide this support by reinforcing the co-existence of two separate crimes and by providing no indication that States intended the fairly radical step of unifying two offenses into one such that deportation’s unique character disappeared.

4. The ICC usually treats deportation and forcible transfer as separate crimes

The ICC itself has distinguished deportation and forcible transfer on a number of occasions. As we have shown, in Ruto, the ICC says that “deportation” and “forcible transfer” are different “labels” for what is a “unique crime” based on the final destination of the victim.[14] But as we have also noted, the same paragraph in Ruto goes on to distinguish between deportation and forcible transfer precisely on the basis of a cross-border element by stating that “[t]he factor of where they have finally relocated as a result of these acts (i.e. within the State or outside the State) in order to draw the distinction between deportation and forcible transfer is thus to be decided by the Trial Chamber.”[15]

From this language, we deduce that “deportation” and “forcible transfer” are not merely descriptions of the underlying conduct. Indeed, it would be curious for the Pre-Trial Chamber to delegate the task of distinguishing between deportation and forcible transfer to the Trial Chamber unless there was a legal distinction between the two concepts that required consideration. Thus, despite the reference to a “unique crime,” the Court actually treats deportation and forcible transfer as separate crimes based on whether the victim crossed an international border. Importantly, a large number of cases before the ICC are consistent with this reading even though the rationale for their approach is not articulated explicitly.

In a host of other cases, the Pre-Trial Chamber has referenced either deportation or forcible transfer separately, undermining the notion that “deportation or forcible transfer” is a single offense. More precisely, in a range of arrest warrants and confirmations of charges, the ICC has described the conduct in question as “forcible transfer” only, without even mentioning deportation. The failure to reference the entire unified offense of “deportation or forcible transfer” suggests that, as we suspected, the two elements come apart and can stand alone. These cases are not rare—there appear to be at least nine such decisions.[16] For example, in the court’s arrest warrant for Omar Al Bashir, only forcible transfer is alleged.[17] There is no deportation charge because it was clear even at the pre-trial stage that any forcible displacement occurred “throughout the Darfur region” only.[18] If there was no difference between the two, or Article 7(1)(d) referred only to a joint crime, the ICC would have referenced deportation and forcible transfer together.

So in cases in which there is no allegation of a border-crossing, or it is apparent at the pre-trial stage that any forcible displacement must have taken place within national borders, the ICC confines itself to an analysis as to whether there are substantial grounds to believe that only forcible transfer was committed. But as decisions like Ruto show, to the extent to there is an allegation that deportation was committed or it is uncertain whether there was a border-crossing, the ICC references both deportation and forcible transfer. In this light, the ICC clearly treats deportation and forcible transfer as separate crimes in practice. This corroborates a literal interpretation of the elements of Article 7(1)(d), our analysis of footnote 13, and the intent of the drafters we have discussed.

5. Customary international law establishes that deportation is a distinct offense

To the extent that Article 7(1)(d) is ambiguous, Article 21 of the ICC Statute provides for the application of “applicable treaties and the principles and rules of international law.” These rules of international law are clear: deportation is a long-standing offense in its own right. The crime predates WWII, having been a war crime long before the Allies created the corresponding crime against humanity. In the wake of the war, the crime against humanity of deportation was codified in Article 6(c) of the Nuremberg Charter, Article 5(c) of the Tokyo Charter, and Article II(1)(c) of Control Council Law No. 10. As a result, deportation came to protect German nationals, stateless people and other people not previously protected by the war crime of deportation.

Decisions like the trial judgment in Krnojelac[19] and the decision on motion for judgement of acquittal in Milošević[20] at the ICTY draw on WWII caselaw to show that deportation is established as a separate, standalone offense in customary international law. For example, in Baldur Von Schirach, the Nuremberg Tribunal convicted the Nazi politician of deportation for the forcible displacement of 60,000 Jews from Vienna to concentration camps in occupied Poland.[21] And in Milch, the tribunal convicted a member of the German forces of deportation for purposes of slave labour both as a war crime and a crime against humanity.[22] In a concurring opinion, Judge Philip argued “[d]isplacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations.”[23]

Moreover, deportation is clearly distinguished from forcible transfer, which is treated as an “other inhumane act.” The trial chamber in Krstić held that “[b]oth deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.”[24] The trial chamber drew the same distinction in Krnojelac, holding that deportation required forcible displacement across a national border, whereas forcible transfer required forcible displacement within national borders.[25] As a result, the trial chamber in Naletilić held that the jurisprudence of the court had established that deportation and forcible transfer were different crimes based on whether the victim had been forcibly displaced within a state or across the border.[26]

Admittedly, there was one rogue decision that dispensed with the cross-border element of deportation as a way of collapsing the distinction between forcible transfer and deportation, but this reasoning was quickly overturned then consistently rejected ever since. In an outlier judgment, the trial chamber in Stakić declared that crossing a border was not an element of deportation after all. Disregarding precedent, the trial chamber also held that deportation protects “the right and expectation of individuals to be able to remain in their homes and communities without interference by an aggressor.”[27] Thus, according to this judgement, the final destination of the victim was of no relevance. The novel interpretation of deportation in Stakić was born of Judge Schomburg’s distaste for the open-ended scope of “other inhumane acts” as a residual category of crimes against humanity. However, his attempt to remove forcible transfer from “other inhumane acts” then force it into deportation was quickly rejected.

In the Stakić appeal, the ICTY clarified that deportation is forcible displacement “across a de jure state border or, in certain circumstances, a de facto border.”[28] According to the appeals chamber, crossing an international border became an element of deportation with the adoption of the Geneva Conventions and Additional Protocols after WWII.[29] Every decision since that time has cited the appeals judgment in Stakić as establishing once and for all the requirement that deportation be across a border of some kind. As a result, the appeal judgment in Stakić reflects the current consensus that deportation is a distinct offense in its own right, that deportation and forcible transfer are separate offenses, and that deportation is forcible displacement across an established border. Thus, customary international law seems to provide yet another basis for treating the two offenses as distinct.

6. Deportation and forcible transfer protect different legal interests

Deportation and forcible transfer as crimes against humanity protect an interest in peaceful residence or the rights and expectations that ordinarily inhere in a person’s abode or home. In the appeal judgment in Stakić, the ICTY holds that “[t]he protected interests underlying the prohibition against deportation include the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location.”[30] This is reflected in the very definition of “displacement.” In the trial judgment in Prlić, the ICTY holds that displacement or “removal” for purposes of deportation occurs when a person travels so far away from home that they are no longer able to effectively enjoy these rights.[31] But as the OTP shows, it is one thing to be expelled from one’s home, and forced to flee to another part of the same country, but it is quite another to be forced to flee across the border to another country altogether. According to the OTP, “deportation also protects a further set of important rights: the right of individuals to live in the particular State in which they were lawfully present—which means living within a particular culture, society, language, set of values, and legal protections.”[32]

In other words, a person forced to flee a country incurs an additional harm—the violence of being thrown into a completely new socio-cultural milieu in which he or she has a radically different legal and political status. Of course, there are any number of ways a court might characterize the interests that underlie deportation and forcible transfer. Reasonable people will differ about what these interests are, but this disagreement around the fringes does not camouflage the widely held view that there is an important normative difference here—the difference between being forced to flee from London to Manchester, and being forced to flee from London to Moscow. Obviously, in any one case, the harm incurred by the victim might vary. Say a person lives near the border, and is forcibly displaced far away to the other side of the same country, depriving them of their culture and familial connections. In certain circumstances, this may be more serious than the harm they would have incurred were they forcibly displaced just across the border. This exception to the rule, however, does not mean that the interests that underlie deportation and forcible transfer are the same, or that deportation is not worse than forcible transfer in the majority of cases. We believe that the Rome Statute as well as the ICC itself appreciate this important difference.

7. Conclusion

Although the definition of deportation and forcible transfer in the Rome Statute and the Elements of Crimes cannot be held up as an exemplar of legislative clarity, the factors we have reviewed suggest that deportation and forcible transfer remain distinct offenses. This view is supported by a systematic interpretation of the Elements of Crimes, by evidence that the drafters clearly intended this result, and by customary international law. What is more, notwithstanding the Ruto decision which appears to have attempted to have things both ways, the ICC itself has consistently treated deportation and forcible transfer as separate crimes in its decisions thus far. Of course, there may be factual scenarios in which treating these two crimes as if they were the same is legally innocuous and practically helpful, as the ICTY cases on “forced displacement” show. In the case of the Rohingya Muslims, however, it matters a great deal whether they were forcibly displaced within Myanmar or across the border to Bangladesh, so one cannot brush aside legal formalities. Ultimately, whether or not the Court intervenes in Myanmar and Bangladesh is a difficult moral, political and practical question, but we do not believe the law we have addressed here precludes it.

 

_______________________

[1] The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, para. 268.

[2] Lubanga Trial Judgment, para. 609.

[3] Blaškić trial judgment, para. 234.

[4] Krnojelac appeal judgment, para. 224.

[5] Simic appeal judgment, para. 172 (“The Appeals Chamber recalls that for the purposes of a persecutions conviction, it is not necessary to distinguish between the underlying acts of “deportation” and “forcible transfer” because the criminal responsibility of the accused is sufficiently captured by the general concept of forcible displacement.”). Early cases at the ICTY also distinguished between “forcible displacement” within or across national borders. In Krstić, the trial chamber held that “[s]ince the Srebrenica civilians were displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law.” See Krstić trial judgment, para. 531. The trial chamber also cited Kupreškić, in which it held that “forcible displacement” was another inhumane act for purposes of article 5(i) of the ICTY statute, whether it took place within a state or across an international border. See Kupreškić trial judgment, para. 523.

[6] Milutinovic trial judgment, para. 163.

[7] Ruto, supra fn. 1, para. 268.

[8] Id.

[9]  Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries, 1996, Article 18(g), commentary, p. 49. See also footnote 27 of the OTP brief, which makes the same reference.

[10] Christopher K. Hall and Carsten Stahn, The Rome Statute of the International Criminal Court: A Commentary, 3rd ed (Oxford: Hart, 2016), “Article 7: Jurisdiction, Admissibility and Applicable Law,” p. 194, fn. 293.

[11] H von Hebel and D Robinson, The International Criminal Court: the making of the Rome Statute: Issues, Negotiations, Results, Crimes Within the Jurisdiction of the Court,” p. 99.

[12] [12] Christopher K. Hall and Carsten Stahn, The Rome Statute of the International Criminal Court: A Commentary, 3rd ed (Oxford: Hart, 2016), “Article 7: Jurisdiction, Admissibility and Applicable Law,” p. 96, fn. 300.

[13] Id.

[14] Ruto, supra fn. 1, para. 268.

[15] Id.

[16] See, (1), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1.Corr, 27 April 2007, pp. 45, 48, 56 (Deportation is not discussed at all. There is only a forcible transfer charge, discussed in paras. 69 and 74, under counts 9, 20 and 51, for forcible displacements throughout Sudan.); (2), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ahmad Harun, ICC-02/05-01/07-2, 27 April 2007, pp. 7, 10, 15-16 (There is no discussion of deportation. There are only forcible transfer charges for forcible displacements throughout Sudan, under counts 9, 20 and 51.); (3), Prosecutor v Harun and Kushayb, ICC PT. Ch. I, Warrant of Arrest for Ali Kushayb, ICC-02/05- 01/07-3-Corr, 27 April 2007, pp. 8, 10, 16-17 (Counts 9, 10, 20, and 51 discuss forcible transfer only. There is no discussion of deportation, the warrant being only for forcible transfers in Sudan.), (4), Prosecutor v Al Bashir, ICC PT. Ch. I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, p. 92 (There is only a forcible transfer charge—no deportation charge. The pre-trial chamber concludes that there are reasonable grounds to conclude that people were merely displaced “throughout the Darfur region.” See para. 100.); (5), Prosecutor v Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009, pp. 7-8 (The arrest is issued for forcible transfer, among other things. Deportation is not included and not mentioned in the warrant. See pp. 6-7.); (6), Prosecutor v Al Bashir, ICC PT. Ch. I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, 12 July 2010, p. 6 (There is only a forcible transfer charge. There is no discussion of deportation. See pp. 6-7.); (7), Prosecutor v Hussein, ICC PT. Ch. I, Public redacted version of “Decision on the Prosecutor’s application under Article 58 relating to Abdel Raheem Muhammad Hussein”, ICC-02/05-01/12-1-Red, 1 March 2012, pp. 29-30 (Counts 8, 18 and 41 concern forcible transfer. The allegation made by the prosecution is that people were forced from their homes in the Wali Salih locality in West Darfur, to other places in the same locality. Deportation is not mentioned at all.; (8), Prosecutor v Hussein, ICC PT. Ch. I, Warrant of Arrest for Abdel Raheem Muhammad Hussein, ICC-02/05-01/12-2, 1 March 2012, pp. 8, 11 (There is a forcible transfer charge, but no deportation charge. Deportation is not even mentioned.); and, (9), Prosecutor v Ntaganda, ICC PT. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, paras. 36, 64-68, p. 63 (Counts 12 and 13 concern forcible transfer of population and displacement of civilians as a crime against humanity and as a war crime. There is no charge or mention of deportation.).

[17] Prosecutor v Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009.

[18] Id., p. 6.

[19] Krnojelac trial judgment, paras. 472-5. See also fn. 1429.

[20] Prosecutor v Milošević, Decision on Motion for Judgement of Acquittal, paras. 49-52.

[21] International Military Tribunal Judgment, Vol I, p. 319.

[22] Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No.

10, Vol. II, pp. 773-879.

[23] Id., p. 865.

[24] Krstić trial judgment, paras. 521

[25] Krnojelac trial judgment, para. 474;

[26] Naletilić trial judgment, para. 670.

[27] Stakić trial judgment, para. 677

[28] Stakić appeal judgment, para. 278

[29] Id., paras. 292-4.

[30] Stakić appeal judgment, para. 277.

[31] Prlić trial judgment, para. 49.

[32] OTP request, para. 17.

Part 1 – Rohingya Deportation: Whether Deportation and Forcible Transfer are a Single Crime is Irrelevant to ICC Jurisdiction

Saif Ansari is a recent graduate of New York University, School of Law. He has previously served under Judge Nonkosi Mhlantla at the Constitutional Court of South Africa and Judge Nicola Lettieri at the Special Tribunal for Lebanon.


Introduction

In April this year, the Office of the Prosecutor at the International Criminal Court filed a motion seeking something akin to an advisory opinion from the Pre-Trial Chamber on whether the Court enjoys jurisdiction over the deportation of Rohingya Muslims from Myanmar to Bangladesh. The issue has given rise to significant debate and inspired no less than eight excellent amicus briefs, as well as a consolidated response by the OTP, largely because it raises important principles for the Rohingya crisis as well as for the functioning of the Court more generally.

According to the OTP, the ICC may assert jurisdiction over the deportation of Rohingya Muslims from Myanmar to Bangladesh despite the fact that Myanmar is not a party to the Rome Statute, “because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).”[1] In contrast, critics have argued that deportation and forcible transfer are fused into a single crime in the Rome Statute, such that crossing an international border is not an essential element of the offense, depriving the Court of jurisdiction.

In this, our first of two posts on the topic, we wonder whether an “essential” element that all sides adopt in this discussion sets too high a standard for determining jurisdiction. We argue that an element need not be essential to a crime in order to ground the Court’s jurisdiction over an offense. Not only does Article 12(2)(a) not require that an essential element of an offense take place on the territory of a state party, adopting this standard would deprive the Court of the ability to prosecute what we call disjunctive crimes in many very ordinary situations.

By “disjunctive crimes,” we mean offenses, like deportation and forcible transfer, that are either included as alternate ways of perpetrating a single offense, or multiple, distinct offenses contained in one and the same provision of the Rome Statute. Torture, for instance, offers an example of a single offense that can be perpetrated in more than one way, since it criminalizes the infliction of mental or physical pain. The prohibition on “[u]nlawful deportation or transfer or unlawful confinement”[2] provides an illustration of multiple crimes in a single provision. We call these crimes disjunctive because their use of “or” creates alternatives as to how they can be perpetrated.

In a subsequent post, we argue that deportation and forcible transfer remain distinct and separate crimes within the Rome Statute. We will not rehearse the various arguments for that view presently, principally because we believe that the issue may be irrelevant for the purposes of jurisdiction in the Rohingya case. To our minds, far better substitutes for the “essential” element test employed throughout these discussions include: (a) whether any element of the offense was perpetrated within a state party; or, (b) whether a particular manifestation of a crime was completed within a state party. Said differently, if the “essential” element requirement leads to plainly perverse outcomes for disjunctive crimes in the Rome Statute, we should adopt a standard focused on any element of the crime or the element that completes a particular manifestation of the offense. As we will see, if we adopt either of these alternative tests, debates about whether deportation and forcible transfer are one offense or two fall away in significance.

Several caveats are necessary before we begin our discussion. First, we have not addressed the term “conduct” in Article 12 of the Rome Statute, partly because discussions about essential elements have focused on the deportation/forcible transfer dyad exclusively, but mainly because we profess to have no real expertise on questions of jurisdiction. By contrast, we are now completing a multi-year project on deportation and forcible transfer, so thought to offer these thoughts on that aspect of the wider legal issue. Second, we take no position here on whether deportation and/or forcible transfer might be ongoing crimes as advanced in several amici briefs.[3] Although we do not explore this argument here, we note that it would also transcend much of the debate. Finally, we remain agnostic about whether the ICC should intervene in Myanmar/Bangladesh. That decision raises complex moral and political issues, which extend well beyond our expertise.

Deconstructing the Essential Element Standard

We begin by noting our lack of certainty about the origins of the essential element standard. The Rome Statute does not require that an “essential” element of an offense take place on the territory of a state party in order to establish jurisdiction. Article 12, which defines jurisdiction, is silent on the issue. Of course, the Statute does not indicate that an essential element is not necessary or that a lesser standard, including those we posit as more coherent here, would be sufficient. Nevertheless, one might anticipate that a requirement that would restrict the court’s jurisdiction over and above the terms already set out in the Statute would require explicit legal authority.

As we say, we are far from expert in questions of jurisdiction in public international law or before the ICC, but from our preliminary inquiries, we have found no basis in statute, custom or caselaw for this added “essential element” requirement. On its face, then, there is real ground for skepticism that an element of an offense must be “essential” to the commission of the crime in order for the ICC to acquire jurisdictional authority over the crime. Moreover, as we argue below, we are concerned that the requirement would have a major and unjustifiable impact on the Court’s ability to try disjunctive crimes.

Before we engage with that concern more squarely, we should also point out our uncertainty about what an essential element is. Up until this point, the term has served as fulcrum for much of the debate about jurisdiction in this case, although it has escaped explicit definition throughout. From these discussions, we take it to mean that an element must be necessary to the commission of the crime for the ICC to enjoy jurisdiction over that offense. According to this argument, in the case of deportation/forcible transfer of the Rohingya Muslims to Bangladesh, crossing a border is not necessary because the offense could be legally and was factually completed at the point the victims were forced from their homes in Myanmar, well before they reached Bangladesh.

Thus, given that crossing a border is a contingent and not necessary element of what some view as a fused crime of “deportation and forcible transfer,” the essential element standard arguably operates to preclude jurisdiction when Myanmar is not a state party. So, because of this essential element requirement, whether deportation and forcible transfer really are a single unified offense or two separate crimes, and whether a cross-border element is required for one or both has real world implications for both the Rohingya Muslims and the Court.

We contest the salience of those questions by doubting that the essential element requirement can bear the weight placed upon it. To illustrate our thinking, we use the first disjunctive offense we pointed out by way of introduction, namely, torture. We employ torture because it is clearly a single offense, so by selecting it as an analogy we isolate the debate about whether deportation and forcible transfer are separate or unified crimes. As mentioned, our subsequent post argues that forcible transfer and deportation are separate offenses as a matter of law, but for argument’s sake, we assume the contrary here. The torture analogy is also useful because, to reiterate, torture is made disjunctive by the possibility of perpetrating the offense by inflicting only mental or only physical pain (for analytical purposes, we leave aside the truism that in real life, neither disjunct in torture can likely be perpetrated without impacting the other).

If the essential element standard deprives the ICC of jurisdiction where only a contingent element of a crime is satisfied, the standard would preclude the prosecution of just mental torture in a state party. This is true even if one strips the Myanmar/Bangladesh example of the controversial non-state party/state party aspect—the essential requirement standard would have this effect if all of the acts constituting mental torture occurred in a single state party, say New Zealand. Analytically, because mental suffering is not a necessary element of torture (physical suffering will suffice), the Court could not have jurisdiction over the offense because the case of purely mental suffering involves a contingent, not essential, element of the crime. Consequently, if there was widespread mental torture constituting a crime against humanity in New Zealand, the ICC would not have jurisdiction because mental suffering is not essential.

This position is both absurd and far reaching. It would preclude jurisdiction over disjunctive crimes in many far simpler scenarios. This is because even in instances where all elements are satisfied in a single state party (i.e. physical and mental suffering was inflicted in New Zealand), the disjunction makes each of the disjuncts unnecessary for the commission of the crime.

We return to Myanmar/Bangladesh to observe different illustrations of the absurdity an essential element requirement brings about. Employing the torture analogy in the Myanmar/Bangladesh situation, if a group of victims were physically tortured in Myanmar, then mentally tortured in Bangladesh, one could hardly argue that the ICC’s jurisdiction over the mental torture in Bangladesh is precluded because these victims suffered a different manifestation of the same crime in Myanmar. The mental torture in Bangladesh may not be legally essential to the commission of the crime, but it is likely sufficient to ground jurisdiction over a distinct manifestation of the crime that takes place there.

Or, to explore a different variant by employing the crimes(s) deportation/forcible transfer, if an essential element of the crime(s) were the standard in a situation where Myanmar was a state-party to the Rome Statute, the ICC might still not be able to prosecute acts of forcible transfer in Myanmar because even forcible transfer is not a necessary element of the crime(s) of “deportation or forcible transfer”—the Elements of the Crimes indicate that “deported…to another State” is an alternative means of establishing the same offenses.

We believe that the foregoing shows how all sides should dispense with the essential element standard. In its place, we posit that any element of the offense should be sufficient for purposes of jurisdiction, or alternatively, an element that completes a particular manifestation of the offense. For reasons that follow, we think it clear that the deportation of the Rohingya Muslims from Myanmar to Bangladesh satisfied either of these two alternative standards.

The Rohingya Muslims were Unequivocally “Deported…to Another State”

Having dispensed with the essential element requirement, it remains to be determined if and how deportation to Bangladesh satisfied: (a) any element of the crime(s); or (b) whether it completed a particular manifestation of an offense in Bangladesh. Here, we begin by noting that much of the argument thus far has referred to the “cross-border” element of deportation, “crossing a border” and “crossing an international border.” This language may be implicit from wording in the relevant aspect of the Elements of Crimes, but it is not a verbatim replication of the provision that is binding on the Court in this case, so we set out then analyze the literal language in the Elements of Crimes that define deportation and forcible transfer. These Elements of Crimes read as follows:

Article 7(1)(d)

Crime against humanity of deportation or forcible transfer of population

Elements

  1. The perpetrator deported or forcibly [footnote 12] transferred, [footnote 13] without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
  2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
  3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
  4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
  5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

[footnote 12]  The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.

[footnote 13]  “Deported or forcibly transferred” is interchangeable with “forcibly displaced”.

If we focus on Element 1 above, we notice immediately that the structure of the offense is divided into multiple disjuncts. We also know from our previous discussion that requiring an essential element of an offense as a prerequisite to jurisdiction will defeat disjunctive offenses like this, because none of “deported”, “forcibly transferred,” “to another State”, “location”, “expulsion” or “other coercive acts” are necessary for the realization of the crime. In other words, there are multiple combinations of these contingent elements that are sufficient to establish the offense(s), even though none of them by themselves are essential for the commission of the crime.

Thus, if we back away from the essential element standard, we soon see that any element, or perhaps the element sufficient to complete a particular manifestation of the crime, are far more compelling bases for thinking about jurisdiction where there are multiple disjunctions within an offense.

This brings us to the permutation of deportation/forcible transfer whereby a perpetrator “deported” victims “to another State.” Even if we concede that deportation/forcible transfer is one unified crime (again, we contest this in our next post), one sufficient means of perpetrating this arguably unified crime would involve  a perpetrator who has “deported” victims “to another State.” Clearly, in the Rohingya situation, these phenomena take place in Bangladesh. The Elements of the Crimes mention “deported” in the past tense. This implies having crossed a border already. Plus, the element explicitly states that one of the contingent ways of committing deportation/forcible transfer involves rendering victims “deported…to another State.” Given that this crime is not inchoate, the Rohingya are only “deported…to another State” once they enter Bangladesh. Thus, it seems fairly uncontroversial that one of the ways of perpetrating deportation/forcible transfer occurs in Bangladesh.

And, recalling our earlier torture discussion, we know that this logic holds regardless of whether the disjunctions in the Elements above come together to form a single unified offense (like mental or physical suffering in torture) or whether they constitute separate, distinct crimes housed within one and the same provision of the Statute and Elements (like “[u]nlawful deportation or transfer or unlawful confinement”). We surmise, therefore, that whether deportation and forcible transfer are unified or distinct is irrelevant for purposes of jurisdiction.

This reasoning holds regardless of how we interpret footnote 13 of the Elements of Crimes. In our next post, we explain how equating “deported and forcibly transferred” with “forcibly displaced” in footnote 13 likely borrowed from a habit of using the umbrella term “forced displacement” as a catchall when the distinction between deportation and forcible transfer was factually immaterial. The practice developed first in the Blaškić trial, prior to the drafting of the Elements of Crimes, where the court used “forced displacement” as a term of convenience for deportation and forcible transfer in assessing allegations of persecution. For better or worse, that practice caught on. As we will show in our next post, there is much supporting this view and nothing in the history of the provision suggesting a contrary interpretation. But even if others disagree with this reading of footnote 13, it does not eviscerate the element “deported…to another State,” which is not essential for the commission of the offense(s), but likely adequate to ground jurisdiction.

Conclusion

This initial post acts as a precursor to and qualification of our next post. Momentarily, we will argue that deportation and forcible transfer are separate crimes, more akin to the provision in the Rome Statute that criminalizes “[u]nlawful deportation or transfer or unlawful confinement” than to torture, a single unified offense with disjunctive parts. Nevertheless, this initial post has queried whether the distinction matters for the purposes of jurisdiction, largely by assuming the single unified crime thesis we disagree with, then by critiquing the essential element standard it relies on.

From this analysis, we believe that being “deported…to another State” is an element of a crime against humanity that very clearly takes place in Bangladesh. Likewise, being “deported…to another State” completes a particular manifestation of the deportation/forcible transfer crime in Bangladesh. To our minds, the argument that the crime was complete in Myanmar beforehand misses that many international crimes have different disjunctive elements, and that a particular campaign of terror can and will often involve multiple variations of one and the same offense.

 

[1] Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 9 April 2018, para 2.

[2] Art. 8(2)(a)(vii) ICC Statute.

[3] For a helpful summary, see Prosecution Response to Observations by Intervening Participants, paras. 27-31.

Working on the Core: A Response to Commentators


John Tasioulas the Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at The Dickson Poon School of Law, King’s College London. He has held visiting appointments at the Australian National University, the University of Chicago, Harvard University, and the University of Melbourne, and has acted as a consultant on human rights to the World Bank.  He is the author of two recent reports for the World Bank: Minimum Core Obligations: Human Rights in the Here and Now and The Minimum Core of the Human Right to Health, which are the subjects of this symposium.


Overview

I am indebted to the commentators for their insightful responses to my work on minimum core obligations (MCOs). I am also very grateful to James Stewart for assembling commentators who, as a group, reflect the dauntingly multi-disciplinary character of the topic. In the course of writing the two reports, it became increasingly clear to me that a major obstacle to progress is the lack of genuine communication across disciplinary boundaries, a problem in no way confined to the academy. I hope that this symposium contributes in some small way to overcoming this obstacle.

It will be useful to begin with a brief summary of the two reports. [1] The aim of the first report was to explore the concept of MCOs, as it has emerged in contemporary human rights law and practice, with a view to identifying (a) whether it can be given a clear and coherent articulation, (b) whether this concept adds significant value to human rights discourse, (c) how minimum core obligations should be identified and their content specified, and (d) whether compelling responses could be given to some of the leading objections to the doctrine of MCOs. My answers to these questions were, in brief, as follows: (a) that there is a clear and coherent idea of MCOs, centred on the sub-set of obligations of economic, social and cultural rights that are to be immediately complied with in full by all states irrespective of resource variations among them. To this extent, MCOs impose a limit to the operation of the doctrine of progressive realisation in relation to such rights. Contrary to the views of some commentators, MCOs do not of their very nature possess the additional features of non-derogability, a special grounding, or justiciability. Whether any given MCO possesses any of these further features is a matter to be determined on the individual merits, case-by-case; (b) that the value of MCOs resides in the way that they help address the problem of prioritising compliance with human rights obligations when it is not feasible to comply immediately with all such obligations; (c) that MCOs are to be identified by a process that involves (i) attention to the proper scope of a given right, (ii) due regard for considerations of feasibility – in particular, possibility and burdensomeness – in shaping MCOs, (iii) the holistic character of specifying MCOs, so that they are jointly feasible as obligations of immediate effect when taken as a totality, and (iv) the need for a specification of MCO that is invariant in content across different societies; and (d) that two leading objections to MCOs – that they impose an unduly restrictive strait-jacket on human rights thinking, and that they are potentially counter-productive in effect – can be answered.

The second report, on the right to health, was rather more descriptive in character. It offers an inevitably limited overview of how the notion of MCOs has played out in international, regional and domestic legal contexts. However, there is an important link between the two reports, because I use the concept of MCOs developed in the first report as a basis for both interpreting and evaluating certain legal and other developments in this domain. So, for example, one of my chief interpretative claims is to cast doubt on the sweeping assertion that the important South African jurisprudence has jettisoned the doctrine of minimum core in favour of an overall assessment of reasonableness. [2] This mistaken view stems from the failure to distinguish the question whether a given minimum core obligation exists as a matter of law from whether the question that obligation is justiciable, in the sense of effectively enforceable by individual litigants through judicial orders granting them their entitlements under MCOs. The clarification of the concept of MCOs offered in the first report enables us to see that the South African jurisprudence can be interpreted as rejecting the justiciability of minimum core obligations while nonetheless embracing both their existence and their relevance within a broader reasonableness test. On the more critical front, the report argued that General Comment 14 offers an unduly broad and lavish specification of MCOs under the right to health and, more positively, sketched the role that MCOs in relation to the human right to health can play in advancing key aspects of the health-related SDGs, especially universal health care.

Law and Morality

My investigation of MCOs, especially in the first report is not, primarily, a legal project, but rather a moral-political enterprise, one with potentially important implications for law. These implications arise in virtue of the background theoretical stance I set out at the start of the report. According to this, the formative aim of international human rights law is to give effect, insofar as it is appropriate for it to do so, to a background morality of human rights. Given that connection, three legal consequences follow from the vindication of a clear, coherent and morally compelling conception of MCOs: (a) it bolsters the case for enshrining MCOs in law; (b) insofar as the best interpretation of the International Convenant on Economic, Social and Cultural Rights (ICESCR) turns on the ability of that Covenant to fulfil its aims – which is the implementation of a certain aspect of human rights morality – to that extent there is a pro tanto case for regarding the MCO doctrine as part of the best interpretation of that Covenant; and (c) on a non-positivistic interpretation of customary international law, of the kind I have developed in other writings, the moral attractiveness of the MCO doctrine has a positive but non-conclusive bearing on its legal status.

However, I refrained from definitively claiming that MCOs are part of the best interpretation of the ICESCR, let alone that they are norms of customary international law. In the latter context, I was content to suggest that it is at least ‘nascent’ law or what might otherwise be called ‘soft law’. I did not take this further step because I felt that the moral question is logically prior and more pressing, but also because I did not wish to get embroiled in debates about the sources of law or treaty interpretation, such as the status to be accorded to General Comments produced by treaty bodies in either of these contexts. I welcome Michael Kirby’s insightful commentary as nudging me further on the legal side – in a direction I am not unhappy to be nudged – by mobilizing considerations of text, context, history and legal policy to affirm the legal status of minimum core obligations, at least with respect to the correct interpretation of the ICESCR.

We can now also see how Martha Nussbaum’s marvellously provocative and wide-ranging comment misinterprets the aim of the first report. Nussbaum appears to believe that I sought to establish that MCOs already exist as a matter of international law and that, in virtue of this, states have a moral obligation (perhaps enforceable erga omnes) to comply with them. In light of her generally dismissive attitude towards the legitimacy of international law, where it has not been endorsed by democratic processes within states, she is accordingly sceptical of the normative upshot of my imagined argument. But what I was concerned to argue is that there is a good reason for believing in MCOs as part of human rights morality and, to the extent appropriate, enshrining them in international law (as Nussbaum also appears to recognise in observing that “Tasioulas always emphasizes that the norms in question are moral norms” and in saying I provide good moral arguments for them). The argument was made against the background assumption that there is a defensible human rights morality and that the ICESCR broadly reflects the content of many such human rights. Nothing in Nussbaum’s comment, therefore, directly touches the main line of argument deployed in either report.

Nevertheless, both of my reports can fairly be seen as receptive to the idea that if MCOs were embodied in international law, this would count in favour of a further, legally-based moral obligation of compliance with them. It is this assumption that Nussbaum challenges on the basis of the need to probe more deeply into the legitimacy of international law. In particular, the need to address how the claims of international law (whether treaty-based or customary international law) to obedience by states can be reconciled with the sovereignty enjoyed by those very same states. Why should states be bound by such norms if they have not endorsed them through their internal democratic political processes?

Faced with this question, I must confess, I feel a little like a plumber who has been called in to fix a leaky tap being asked to give a theory of the universe as a proper intellectual underpinning for his repair work. The reason that I did not directly address Nussbaum’s big theoretical question in either report was that, following the lead of authors like John Rawls, Cass Sunstein, and indeed Nussbaum herself, I believe that my analysis of MCOs has a self-standing quality, enabling it to be endorsed by those with widely divergent answers to that question. I did not want to prevent readers from coming to such an ‘overlapping consensus’ on MCOs by unnecessarily dragging in my views on contentious philosophical questions about how state sovereignty, democracy and the legitimacy of international law should be knitted together. Nevertheless, Nussbaum is entirely correct to suggest that some kind of answer to her question is required in a fuller philosophical theory in which MCOs are a small but important fragment.

Although this is not the place to sketch the overarching theoretical structure that Nussbaum demands, even if I could do so, it is worth pointing out that I would reject both of the two alternatives that she postulates. These alternatives are world government and (her democratic version of) the Grotian approach. The first alternative I would reject for reasons made familiar by Kant and, more recently, endorsed by Rawls. A unitary global state would provoke such massive resistance that it would lapse into widespread anarchy. Or else, assuming it could quell such resistance, this would be at the cost of tyrannical oppression. But the second, Grotian alternative is also unacceptable. This is because it makes the bindingness of international law in general conditional on its acceptance by the citizenry of a democratic polity. On this view, as Nussbaum puts it, international legal norms will “actually count as [morally binding] law when nations have [accepted them] through their internal, democratically accountable procedures”. The unsatisfactoriness of this alternative is most evident in the case of non-democratic states. Was apartheid era South Africa, for example, not bound by the jus cogens norms prohibiting racial discrimination and apartheid, given that it not only did not accept any such norms but vociferously protested against them? [3] But even democratic states, such as America, may be bound by norms of international law, such as norms outlawing military intervention and torture, irrespective of whether those norms have been domestically validated. Of course, it is a further question whether, and if so how, morally binding legal norms should be enforced against states the violate them. In other words, although international law must be respectful of the sovereignty of individual states (hence, a thumbs down to world government), it does not follow that it only binds if its norms are validated by the internal processes of democratic polities (hence, a thumbs down to Nussbaum’s take on Grotianism).

Nussbaum’s formulation of the Grotian view, which she favours, has surprising affinities with the profound scepticism towards international law propounded in recent decades by American neo-conservatives. [4] And this general impression of affinity is reinforced by the vehemence of her condemnation of the UN system as “grotesquely flawed and corrupt, totally lacking in democratic accountability, and therefore devoid of any procedural legitimacy when it comes to imposing law on people”. Nevertheless, such views, I believe, go overboard in their wholesale denial of any source of legitimate authority beyond the democratic nation state. In other writings, I have sought to sketch some of the contours of a more pluralistic conception of the global legal order, one which enables international (human rights) law to have binding authority over states that does not stem from the democratic validation of its norms, but rather from its satisfaction of the classical requirement that it enhances the conformity of states and other actors with the demands of an objective order of reason. [5] However, a condition of international law’s ability to enjoy such legitimacy is a proper respect for the (limited) claims of state sovereignty of both democratic and non-democratic states. These claims include, I believe, a limited leeway to depart from human rights demands in certain respects. There doubtless remains a lot more work to be done on these topics, especially that of elaborating on the requirement of properly respecting state sovereignty, and I hope I will have the good fortune to contribute to it with the continuing benefit of Martha Nussbaum as a main interlocutor.

Human Rights, Obligations and Feasibility

As can be seen from the responses of my commentators, the topic of MCOs polarizes informed opinion. Michael Kirby forcefully concludes that a “necessary” part of the analysis of the right to health is the inclusion of MCOs and suggests that in their absence that right would be “meaningless and devoid of real content”. In diametric opposition, Max Harris contends that the doctrine of MCOs “hollows out the potential of fully realised economic, social, and cultural rights”. It is important to register that many of these differences of opinion trace back to deeper divisions about the nature of both human rights morality and international human rights law in general, including how these two bodies of norms are related. It is therefore worth going back to these fundamentals before broaching the more specific questions regarding MCOs.

On the view adopted in my reports, international human rights law (IHRL) has as its formative aim the giving effect to a background set of moral human rights, insofar as it is appropriate to do so, by means of conferring international legal rights on all individual human beings. [6] It is this formative aim that distinguishes IHRL from other departments of international law, such as the law on the use of force or trade law. These other departments may also be vitally concerned with human rights – indeed, one of the major sources of human rights disasters in our world is illegal military interventions. But they are not concerned with human rights in the same way as IHRL is supposed to be: they are not centrally focussed on moral human rights nor on the furtherance of such rights through the specific legal technique of conferring legal rights on all individual human beings.

Given that IHRL should be, in this way, responsive to a background morality of human rights, it is important to be clear about the latter’s nature. In the first report, I emphasized the fact that human rights differ from interests in that they necessarily have obligations associated with them. Moreover, the process of identifying and specifying the content of these obligations must take into account a number of key considerations: (a) the scope of the relevant right – so, for example, I claimed that the scope of the right to health includes obligations pertaining to medical treatment, public health measures, and certain social determinants of health. Hence, obligations not to torture or to provide adequate food do not come under the right to health, even though they serve our interest in health, but rather are associated with other rights (i.e. the rights not to be tortured, and to food / an adequate standard of living); (b) the possibility of those who are subject to the obligations generally being able to comply with them, since ‘ought implies can’ rules out the existence of obligations that cannot, as a general matter, be complied with; (c) that the putative obligations associated with a given right are not excessively burdensome in terms of the costs they impose of those who bear the obligations, which explains why there cannot be a right to the ‘highest attainable’ standard of health on any strictly literal construal; and (d) the holism constraint that requires that the whole set of human rights we wish to recognise must be feasible – generally possible, and not excessively burdensome, to comply with – as a group, and not simply taken one-by-one. On my view, conceiving of human rights as involving obligations is essential to grasping their moral importance: obligations are moral reasons it is blameworthy to violate and which are in general strongly, but not absolutely, resistant to being overridden by competing considerations.

Sakiko Fukada-Parr’s thoughtful response shows that I needed to be clearer in the reports about what I meant in saying that human rights obligations, including obligations that belong to the sub-set of minimum core obligations, must comply with a requirement of not being unduly or excessively burdensome. Fukuda-Parr seems to believe I embrace the following two propositions about MCOs: (a) that they impose immediate obligations only regarding the provision of ‘low cost’ goods and services, and (b) that cost is a function of their market price. Having interpreted my views in this way, she understandably draws the conclusion that they lead to an ‘unnecessarily restrictive’ interpretation of MCOs. Fukuda-Parr’s critique would indeed be on target if I were committed to propositions (a) and (b). However, I reject both propositions, and explicitly so in other writings. Hence, for example, the following claim about the relevant sense of ‘cost’ or ‘burden’ in shaping obligations associated with rights:

“It is important to keep in mind, however, that ‘cost’ here is not a simple function of the real world market price of various medical services and public health measures. So, for example, one cannot simply take as given the market price that pharmaceutical companies, exploiting their market position and the rights afforded to them by intellectual property law, actually charge for their products.” [7]

Fukuda-Parr’s misreading of my feasibility criterion suggests that I should have explicitly reiterated that rejection in the first report. However, even in that report I nowhere state that MCOs must be ‘low cost’, only that they must not be ‘unduly burdensome’ to be imposed as obligations of immediate effect upon all states. The repeated qualifier ‘unduly’ is meant to allow for the possibility that burdensome demands may well be minimum core obligations. Just as a parent may have an obligation of immediate effect to risk their life in order to save their child’s life (but not to save the child’s finger from being scratched), so too a state may have an obligation of immediate effect to roll out a very costly vaccination program. The issue is always a matter of whether serving individual right-holders’ interests in a certain manner is something that it is not unduly burdensome to impose as an obligation. This will depend on the weight of the interest, the cost of fulfilling it via compliance with the supposed duty, and whether that cost is not an excessive demand on the putative duty-bearer given the benefit to the putative right-holder. Second, the ‘cost’ in question cannot simply be the price as determined by any existing institutional structure, such as the existing legal and economic arrangements regarding intellectual property rights. This would make the existence and content of human rights a function of arrangements that may themselves be deeply morally flawed because they embody certain forms of unfairness or enable relations of exploitation. Instead, cost essentially involves the burdens on resources that imposing an obligation would create given other potential ways of using the same resources. In this connection, the question arises whether it would be ‘unduly burdensome’ on pharmaceutical companies, say, to reduce significantly the unprecedented levels of intellectual property rights they currently enjoy in order better to serve the interests of those in need of access to various medicines. One way of expressing my sympathy with Fukuda-Parr’s powerful call to rebalance the right to health and intellectual property rights in favour of the former is to say that it would not be.

The issue of feasibility also crops up in Max Harris’ lively comment. Although Harris may allow that human rights (in morality or law), involve what might loosely be called ‘obligations’, he seems ambivalent about allowing considerations of feasibility ((c) and (d) above) to determine their content. Of course, I agree with him that judgments about feasibility are ‘value-laden’, but so is the judgment that feasibility should not be taken into account. The real task that confronts us is to make correct judgments about feasibility in shaping human rights norms. In this regard, I wondered who he was disagreeing with in observing that “Statements by present-day governments of what is feasible should not necessarily be accepted at face value. It might be that with significant rearrangements of those governments’ activities, enforcements of economic, social, and cultural rights would be eminently feasible”. Just as nothing in my reports endorsed market price as the ultimate determinant of burdensomeness, nothing I said endorsed taking governments’ statements about feasibility (or indeed anything else) at face value. Questions about the feasibility of human rights – about whether it is possible, or not unduly burdensome, to comply with their associated obligations – are often complex and difficult and not to be settled either by a brute appeal to price or to the (often) self-serving or obtuse say-so of governments. [8]

I will return to some of Harris’ specific criticisms of the doctrine of MCOs in the next section. But it is worth mentioning here one of the two pathways he endorses as alternatives to MCOs, which is a test of ‘proportionality’ that has become widely popular among constitutional lawyers. This is because it brings out deeper divergences in how we understand human rights and their relation to obligations. The proportionality approach casts the net extremely widely in identifying human rights, which basically consist in any legally cognizable interest. It then asks whether the measures complained of as infringing that human right might nonetheless be justified on a proportionality analysis that takes into account valid purposes served by the infringement. This proportionality approach may well avoid a role for minimum core obligations, as Harris suggests, but perhaps only at the drastic cost of failing to engage with anything recognisable as obligations at all. The upshot, as one of the leading exponents of the proportionality approach makes clear, is that to assert the existence of a human right is not to assert very much at all: “a rights-holder does not have very much in virtue of having a right… An infringement of the scope of a right merely serves as a trigger to initiate an assessment of whether the infringement is justified”. [9] Harris’ fears about ‘hollowing out’ human rights seems to return here, and with a vengeance, threatening to defeat pretty much any aspect of the supposed right possessed by the right holder.

Obviously, it is a live question which approach takes human rights more seriously: the view that says the obligations associated by human rights are not readily justifiably defeated versus a proportionality approach which does not confer on rights this general, but not absolute, resistance to being overridden. My own view, however, is that preserving the link with obligations that are generally resistant to defeat is crucial to the significance of human rights. [10] In this sense, one is asserting quite a lot in claiming that there is a human right not to be tortured or a human right to health. But, on a more purely political note, I also believe that the ‘proportionality’ approach, which recognises human rights to a lavish array of goods, yet is simultaneously ready to countenance extensive justified infringements of any such right, exemplifies the kind of ‘giving with one hand and taking away with the other’ that has brought the idea of human rights into disrepute in many societies.

In addition to the doctrine of proportionality, Harris concludes by mentioning another alternative to MCOs: “developing a more refined account of what is contained in individual economic, social and cultural rights”. But who could possibly object to giving such an account? But can this be done without taking very seriously the idea that such rights “contain” obligations that are not readily overridden, partly because they are shaped ab initio by considerations of feasibility? I doubt it. And, as I explain in the next section, the rights will also include MCOs, once we have dispelled Harris’ misconceptions about them. So, the second alternative to MCOs is, I believe, no real alternative at all.

I turn now to Sarah Hawkes’ comments, which make two vital observations that bear on an approach to global health policy that draws on human rights, including MCOs. The first observation is the importance of measures for maintaining the health of populations, including the prevention of illness and disease, alongside measures for treating people once they have become sick. Second, we need to consider how the determinants of health and illness have changed over time, with the rise in the 21st Century in the importance of factors such as over-consumption, corporate behaviour and lack of effective state governance.

I think both of these observations are entirely correct and that they have numerous significant implications for global health policy and human rights which are reflected in various ways in both of my reports and other of my writings. First, and most obviously, they help shape the obligations associated with the human right to health, including its MCOs. These will not only include obligations concerned with the treatment of the sick, such as obligations to afford them access to essential medicines, but also obligations pertaining to public health measures, such as vaccination, and to certain social determinants of health. It is important to observe here that the content of human rights will evolve over time in line with new challenges and opportunities for fulfilling our interests and variations in the cost of meeting the challenges and exploiting the opportunities. Secondly, when it comes to human rights, global health policy will need to rely on more than just the right to health, contrary to a thesis promoted by Lawrence Gostin and his associates. The right to health is, I have argued, limited in scope to obligations concerning the delivery of medical treatment, public health measures, and some but not all social determinants of health. But there are other human rights that play an important role in maintaining health or preventing its deterioration, such as the rights to political participation, non-discrimination, access to food and water, and to education. The latter is especially salient in view of the powerful role that the increase in women’s education has played in reducing mortality. Third, global health policy cannot take the measure of Hawkes’ observations without going beyond a normative framework focussed exclusively on human rights. A sound global health policy must also take on board non-human rights considerations, such as duties to preserve one’s own health or duties to foster the common good that are not owed to anyone as of right. Finally, Hawkes’ emphasis on the changing profile of determinants of health over time, and the increasing impact of corporate behaviour on health, necessitate a recognition that, in addition to strengthening state governance, we must embrace a plurality of agents and duty-bearers in relation to human rights (and other global health considerations). As the UN Guiding Principles on Business and Human Rights make clear, this must include human obligations imposed directly on corporations. [11]

The Distinctiveness of Minimum Core Obligations

In the first report I analysed minimum core obligations as that sub-set of obligations associated with social, economic and cultural rights that are of immediate effect. In other words, all states are obligated to comply with them in full immediately. The MCOs, so understood, set a limit to the doctrine of progressive realisation, as Gorik Ooms also points out in his helpful comment. The latter doctrine, which appears in Article 2(1) of the ICESCR, enjoins states “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”. MCOs are a sub-set of obligations to which the progressive realization is inapplicable. I further claimed that although additional features, apart from immediacy, were commonly associated with MCOs – such as non-derogability, protecting special values, and justiciability – we should not interpret MCOs as necessarily possessing these other features. Instead, it should be left as a matter of substantive, case-by-case investigation whether a given MCO should be seen (as a matter of morality or law) as possessing any of these extra features. It is the idea of obligations of ‘immediate effect’ that is the core of the minimum core doctrine.

Now, the idea of an obligation of immediate effect, although apparently rather elementary and historically traceable back to Kant and beyond, can nonetheless be misunderstood. Unfortunately, it seems to me that both Max Harris and Katherine Young have misinterpreted the idea.

The most straightforward misunderstanding is Harris’. He takes the doctrine of MCOs to assume that “economic, social, and cultural rights cannot be secured in full”, and that therefore we should aim at the second-best solution of securing the sub-set of obligations associated with these rights that are “minimum core”. But this is a serious misconstrual of the idea of MCOs. It should go without saying that all properly justified human rights – including economic, social and cultural rights – should be fully secured. This is because securing them is a matter of obligation, and obligations are non-optional. There is no question of dividing up human rights obligations into a compulsory core component and an optional non-core component. Rather, the doctrine of MCOs tackles the question of what to do when, because of resource constraints, it is genuinely not feasible to secure all human rights immediately. Contrary to the impression conveyed by Harris, that is a question that is addressed in the ICESCR, in the first instance, not by the doctrine of MCOs but rather by the doctrine of progressive realization. The doctrine permits states to take steps to realise economic, social and cultural rights progressively over time where resource constraints preclude securing them immediately. MCOs set a limit to the operation of the doctrine of progressive realisation by specifying a sub-set of obligations that must be immediately satisfied in full by all states. Perhaps Harris is hostile to MCOs because he rejects the doctrine of progressive realisation, which sets up a contrast between economic, social, and cultural rights, on the one hand, and civil and political rights, on the other, as well as opening up the possibility of a sub-set of obligations associated with economic, social and cultural rights that must be immediately complied with. On this view, all human rights obligations are of immediate effect, with no leeway for progressive realization. Quite apart from the fact that such a view is heterodox as a matter of legal doctrine, I doubt that a cogent moral case exists for it.

A more sophisticated confusion about MCOs is to be found in the commentary by Katherine Young. She conflates minimum core obligations – obligations of immediate effect – with a very different idea, i.e. that of obligations that enjoy an absolute sequential priority in relation to their compliance. Hence, she seems to believe that I am committed to the idea that states are “require[d] [to] discharge core obligations towards primary education before other levels [of education] are addressed”. But this form of absolute sequential priority forms no part of the idea of minimum core obligations, as I explained them. The minimum core doctrine does not say that MCOs must always be fully complied with before a state embarks on any steps towards complying with non-core obligations; instead, it makes the far more moderate claim that, in a context where resource limitations preclude a state from complying with both core and non-core obligations, other things being equal it must prioritize the core obligations, leaving the non-core obligation to be progressively realized over time. [12]

An example from private life may serve to clarify the distinction between immediacy and absolute sequential priority that I have in mind. A parent, Brian, has an obligation to feed his child which is immediate – it must be realised here and now. Brian also has, let us say, a parental obligation to build up a fund for the future tertiary education of their child, an obligation that is to be progressively realised over time. May Brian undertake work during the day towards building up his child’s education fund before he cooks his child dinner that evening? Of course he may. Brian’s immediate obligation to provide dinner for the child is perfectly complied with, even if its fulfilment was preceded by a day’s work aimed at progressively realising the obligation to build up an education fund. If, however, Brian were going out to work in the evening in order to build up the education fund, leaving his child hungry at home, then he would be violating the immediate obligation. To call an obligation an obligation of immediate effect is not to say that non-immediate obligations may never be engaged with before the immediate obligation is complied with. Rather, it is to say that, in a situation of resource constraints that prevent both obligations being complied with, other things being equal the compliance with the immediate (core) obligation must not be sacrificed in favour of compliance with the non-core obligation.

So, let us shift now to an international illustration. If Bill Gates offers to pay the full costs of establishing and maintaining a tertiary education system in a less developed country, the government of that country is not required to turn away the gift on the basis that it must first fully comply with minimum core obligations. If the gift is expressly tied to this purpose, and its acceptance entails no further costs for the receiving state, then the state can accept it as part of the progressive realisation of its non-core obligations regarding education. This is because the non-core obligations are not being complied with by the state at the expense of the core obligations. If, instead, Gates had simply gifted the country a large sum of money, and the state chose to spend it on tertiary education, while leaving obligations to provide primary education unmet, then it would be contravening a minimum core obligation.

So, with this confusion between minimum core obligations and obligations that enjoy absolute sequential priority out of the way, it seems to me that there is no obstacle to Young embracing minimum core obligations. Indeed, she herself explicitly acknowledges the need for prioritization in the fulfilment of human rights obligations. Once freed of misinterpretation, minimum core obligations – or whatever else we choose to call obligations of immediate effect – are a key way of articulating these priorities.

Young also makes two somewhat cryptic remarks worth addressing. The first is that the Committee and other regional bodies have made “efforts” to “demarcate” minimum core obligations and obligations of immediate effect as “separate categories”. To this extent, she regards my interpretation of MCOs as departing from existing human rights law and practice. As Young recognises, even if this were true, it would not touch the main substance of my thesis, which is a moral case for recognising MCOs understood as immediate obligations. But even leaving this point aside, I find it difficult to respond to Young’s claim because she does not document any examples of where such a clear demarcation is made to set against my case for interpreting references to MCOs by the Committee as essentially obligations of immediate effect. Perhaps she means that the Committee has associated MCOs not just with the feature of immediacy, but also with features such as non-derogability and justiciability. This is something I repeatedly acknowledge in my first report, but there I also gave reasons for favouring a disaggregated conception of MCOs: making immediacy the core feature of MCOs, with the presence of other features to be determined on a case-by-case basis. I think this is the most attractive interpretation of MCOs that also fits the often unclear and inconsistent claims made on the topic by the Committee.

Young’s other remark is that my analysis of MCOs helps foster the unhealthy tendency to downgrade economic, social and cultural rights as compared with civil and political rights. Here I would make two points in reply. Insofar as we are talking about the two Covenants, it is clear that the doctrine of progressive realisation explicitly applies only to economic, social, and cultural rights. This ‘downgrading’ of socio-economic rights is a matter of law, not an artefact of my own theory. Second, in my report, I stated that once we have vindicated a role for MCOs in relation to socio-economic rights, we might logically be led to extend their application to civil and political rights, since resource constraints of the kind that arise in the case of the former also crop up in relation to the latter. Contrary to a formerly widespread mythology, civil and political rights cannot be contrasted with socio-economic rights on the basis that they are systematically non-burdensome or entail only ‘negative’ obligations. In my view, the moral force of MCOs, along with the idea of progressive realisation, is not confined to economic, social and cultural rights but applies to civil and political rights as well, whatever the existing legal situation may be. But this is a discussion for another occasion.

Gorik Ooms’ comment reminds us that although MCOs impose primary obligations on states in relation to their own people, they also impose secondary obligations on other states and international agents in the event, or likelihood, of non-compliance with those primary obligations. In my reports, I briefly addressed secondary obligations to assist states that are unable to comply with their MCOs. In addition, I also mentioned a secondary obligation not to impose conditions on states that will foreseeably lead to their inability to meet their MCOs, referencing the important work of Margot Salomon on the imposition of austerity measures on debtor countries. [13] Ooms’ comment goes further and, drawing on my analogy with parental obligations, contemplates an obligation to treat those governments that are able, but unwilling, to meet their MCOs in the way that we treat perpetrators of ‘crimes against humanity’. What is immediately in the offing here, presumably, is some form of intervention against the state in question or punishment of officials responsible for the MCO-violating policies.

If, as Ooms anticipates, my response to this bold proposal is somewhat guarded, this is for two reasons. First, I would be loath to build into the very concept of MCOs that they are triggers of intervention or punishment in the event of their extensive violation. And this for reasons similar to my resistance to interpreting MCOs as inherently non-derogable or justiciable. Building in this feature threatens to obscure the fundamental point of MCOs, which is to identify obligations of immediate effect associated with economic, social and cultural rights. There is no reason, a priori, to suppose that this concern maps neatly onto a norm relating to intervention or punishment. The result is that the fundamental point of MCOs risks being distorted. A more practical concern, which is a corollary of this one, is that linking MCOs in a wholesale way with intervention or punishment risks generating pressure to interpret them as more minimal demands than would otherwise be the case, given the severity of the consequences of breaching them. The second reason for my cautious reception of Ooms’ proposal is more general and relates to my scepticism about the tendency to move easily from normative claims about human rights to enforcement claims about intervention or punishment. I have outlined some of my misgivings on this front in criticising those trends in recent philosophy that essentially construe human rights as triggers for intervention. [14] But I think similar concerns extend to the tendency to perceive human rights through the lens of criminal law. These concerns are amplified in the case of violations of socio-economic rights which often concern structural matters for which a finding of criminal responsibility can be problematic. [15] None of this is to say that I reject Ooms’ intriguing proposal, but rather that I would like to see it fleshed out more fully. Any version of his proposal that is liable to be persuasive, I believe, will be more complex than a norm that simply appeals to the fact that some MCO has been extensively violated in a situation in which this could have been avoided.

Human rights today, as leading authorities have warned, are under pressure. [16] Some of these pressures are exogenous. They include rampant economic globalization, the rise of political authoritarianism, and a spreading ‘populist’ backlash. The external character of these pressures can foster the illusion that all human rights morality and law really needs is a combination of better PR and more effective enforcement mechanisms. But this would be an overly optimistic assessment, overlooking the extent to which human rights thought and practice has been undermined from within. These internal pressures often stem from a failure to grasp the proper, and limited, scope of human rights morality and, by extension, of international human rights law. The process of internal renewal that is needed is one that takes the philosophical underpinnings of human rights more seriously, including their nature as sources of obligation that do not exhaust the entire field of moral concern, as well as addressing questions of prioritization in the face of resource constraints. In this process of renewal, we will need to draw on a repertoire of concepts that we can articulate clearly and distinctly. MCOs are, I believe, an important component of this conceptual repertoire. As the insightful reflections of the contributors to this symposium show, their nature and potential warrant greater study by lawyers, philosophers, economists, ordinary citizens and others who are genuinely committed to the cause of human rights.

 

[1] The first report, which sets out a general framework for understanding the idea of minimum core obligations, is J. Tasioulas, Minimum Core Obligations: Human Rights in the Here and Now (Nordic Trust Fund / World Bank, 2017). The second report, which addresses minimum core obligations in relation to the human right to health, is J. Tasioulas, The Minimum Core of the Human Right to Health (Nordic Trust Fund / World Bank, 2017).

[2] J. Tasioulas, The Minimum Core of the Human Right to Health (Nordic Trust Fund / World Bank, 2017), pp.15-19.

[3] J. Tasioulas, ‘Custom, Jus Cogens and Human Rights’, in C. Bradley (ed.), Custom’s Future: International Law in a Changing World (CUP, 2016), pp.95-216.

[4] J. Kyl, D.J. Feith, and J. Fonte, ‘The War of Law: How New International Law Undermines Democratic Sovereignty’, Foreign Affairs July/August 2013.

[5] J. Tasioulas, ‘The Legitimacy of International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (Oxford University Press, 2010) and J. Tasioulas, ‘Human Rights, Legitimacy, and International Law’, American Journal of Jurisprudence (2013) 58: 1-25.

[6] For a fuller account, see J. Tasioulas, ‘Exiting the Hall of Mirrors: Morality and Law in Human Rights’, in T. Campbell and K. Bourne (eds), Political and Legal Approaches to Human Rights (Routledge, 2017).

[7] J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382, p.374 https://link.springer.com/content/pdf/10.1007%2Fs11017-016-9372-x.pdf

[8] A fuller discussion of considerations (b), (c) and (d) can be found in J. Tasioulas, ‘On the Foundations of Human Rights’, in R. Cruft, M. Liao, and M. Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015).

[9] M. Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’, in G. Pavlakos (ed.), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publications, 2007), p.139.

[10] For powerful criticisms of the proportionality doctrine from this sort of perspective, see G. Verdirame, ‘Rescuing Human Rights from Proportionality’, in R. Cruft, M. Liao, and M. Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015) and F.J. Urbina, A Critique of Proportionality and Balancing (Cambridge University Press, 2017).

[11] Many of these points are developed further in J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382 https://link.springer.com/content/pdf/10.1007%2Fs11017-016-9372-x.pdf

[12] A similar confusion may also be at work in Harris’ claim that MCOs entail a ‘short-term’ outlook that leads to the neglect of ‘long-term investment or institution-building’. We can see that Harris’ conflation of MCOs with a policy of short-termism is mistaken from the fact that it makes perfect sense to engage in long-term investment and institution-building to secure MCOs in the future when they arise, e.g. the prevention of famine or the provision of primary education in years to come. Similarly, a parent may need to adopt long-term policies, e.g. maintaining a healthy lifestyle and diet, in order to be able to comply with their immediate obligations to their child now and in the future.

[13] J. Tasioulas, Minimum Core Obligations: Human Rights in the Here and Now (Nordic Trust Fund / World Bank, 2017), p.21

[14] J. Tasioulas, ‘Towards a Philosophy of Human Rights’, Current Legal Problems 65 (2012) pp.1-30.

[15] For a powerful antidote to a fixation on criminal law in relation to human rights, see the chapter entitled ‘The Awkwardness of the Criminal Law’ in O. Fiss, The Dictates of Justice: Essays on Law and Human Rights (Republic of Letters, 2011).

[16] P. Alston, ‘The Populist Challenge to Human Rights’, Journal of Human Rights Practice 9 (2017), pp.1-15.

Doctrinal Weaknesses, Faulty Assumptions, and Short-Termism: Problems with the Minimum Core


Max Harris is an Examination Fellow in Law at All Souls College, Oxford. He is currently completing a DPhil in constitutional law and has worked as a consultant for the United Nations Development Programme.


The words ‘minimum core’ do not appear in the International Covenant on Economic, Social and Cultural Rights – or in the major regional human rights treaties. The idea of the minimum core of economic, social, and cultural rights is a gloss on what is in international human rights law, first introduced by the Committee on Economic, Social, and Cultural Rights in 1990 in a General Comment written by the Committee. That General Comment is not binding. It is therefore open to human rights lawyers, academics, and activists to choose to adopt or reject the doctrine of the minimum core; it is not inevitable that the doctrine is taken up. John Tasioulas, in two characteristically thoughtful papers for the World Bank (one on the minimum core doctrine in general, the other on the minimum core of the right to health), endorses the doctrine.

Tasioulas defines the minimum core – quite reasonably – as a “sub-set of obligations” associated with an economic, social, and cultural right, such as the right to housing or the right to education. For Tasioulas, we find the minimum core in obligations that must be complied with immediately. They must be “feasible” and “not unduly burdensome”.

In my view Tasioulas is too quick to accept the doctrine. He sees practical value in the minimum core: it helps, Tasioulas thinks, with “priority setting” where “resource implications” make it “inappropriate” to require full enforcement of economic, social, and cultural rights. But Tasioulas does not supply a positive argument for why it is inappropriate or impossible to enforce economic, social, and cultural rights in full. Political and cultural theorists, such as Mark Fisher, have argued that judgments of what is ‘possible’ or ‘realistic’ in politics are value-laden; they reflect assumptions about what governments can and should do. Legal theorists, including in international human rights law, ought to learn these same lessons and apply them to judgments of what is “feasible” or “unduly burdensome”. (Tasioulas does not define these terms, and in particular does not say when an obligation would be “unduly” burdensome.) Statements by present-day governments of what is feasible should not necessarily be accepted at face value. It might be that with significant rearrangement of those governments’ activities, enforcement of economic, social, and cultural rights would be eminently feasible.

As I have argued elsewhere, the privileging of core over non-core obligations therefore hollows out the potential of fully realised economic, social, and cultural rights. Tasioulas’ defence of the minimum core relies on the assumption that economic, social, and cultural rights cannot be secured in full; the minimum core is then presented as a second-best solution – the best that can be done in an imperfect world. Tasioulas considers the possibility that the minimum core doctrine might be “misunderstood” or “hi-jacked” in a way that sidelines parts of economic, social, and cultural rights. But the minimum core would not be “hi-jacked” if it involved the privileging of core over non-core obligations; indeed, prioritisation is meant to be one of the principal virtues of the doctrine.

Tasioulas also encourages the collection of empirical evidence to test whether the minimum core doctrine could result in sidelining of non-core obligations, and suggests an educative process could be conducted – along with other strategies being developed – if there was such sidelining. However, this is to mistake a conceptual problem for an empirical challenge to be managed. It is inherent in the concept of the minimum core that some normative hierarchy is created between core and non-core obligations. Empirical evidence can help to determine the effects of this hierarchy, but it cannot deny the existence of that hierarchy.

A further problem with Tasioulas’ account is what he says is prioritised through the minimum core doctrine: namely, obligations that can be immediately complied with. To prioritise these obligations is worrying from a development perspective. ‘Immediate compliance’ could conceivably mean one of two things. It could refer to obligations that a government can begin to take steps to comply with immediately. Or it could mean obligations that a government can completely comply with immediately. Because Tasioulas suggests that non-core obligations are subject to progressive realisation, he must understand ‘immediate compliance’ to mean the second of these options. The upshot of this is that the ‘immediate compliance’ account favours the sub-set of obligations that is short-term in outlook. Aspects of economic, social, and cultural rights that require long-term investment or institution-building cannot be protected by the minimum core. It is thus no surprise that Tasioulas concludes, in his paper on the right to health, that the minimum core of the right to health can include only “selective primary healthcare” as well as only partial delivery of Universal Health Coverage. This commitment to a short-term tilt, an approach grounded in the “here and now”, is unfortunate given that United Nations and NGO leaders have lamented the lack of long-term investment and institution-building in the world of development.

Overall, Tasioulas has drawn some helpful distinctions in these papers, in particular in sketching the difficult possible senses of ‘minimum core’, and has offered a useful review of the case law. But in resiling from the full enforcement of economic, social, and cultural rights he has been insufficiently ambitious. No minimum core exists for civil and political rights; to accept such a minimum core for economic, social, and cultural rights is to capitulate to a two-tier system of human rights protection that many human rights activists and academics have long resisted. Instead of the minimum core doctrine, judges might consider whether limits on economic, social, and cultural rights satisfy a test of proportionality (in jurisdictions where that is a usual part of judges’ human rights toolkit), or they might simply develop a more refined account of what is contained in individual economic, social, and cultural rights. Both alternative pathways would better realise the promise in the Vienna Declaration that human rights are “universal, indivisible, interdependent and interrelated.”

Conceptualizing Minimum Core Beyond Affordable Goods and Services – Trade for Human Rights as a Minimum Core Obligation


Sakiko Fukuda-Parr is a Professor of International Affairs at The New School. She is a development economist interested in human development and capabilities and the broad question of national and international policy strategies. Her current research includes projects on public policies and economic and social rights, and the impact of global goal setting on international development agendas.  Professor Fukuda-Parr serves on the UN Committee on Development Policy as Vice Chair, The Lancet-University of Oslo Commission on Global Governance for Health, and the boards of the International Association for Feminist Economics, the Center for Economic and Social Rights, and Knowledge Ecology International.


Minimum Core – translation of obligation of immediate effect as minimum level of rights enjoyment

In his report on the Minimum Core Doctrine (MCD) Tasioulas states: “the essence of the concept will be taken to be the sub-set of obligations associated with socio-economic rights that must be immediately complied with in full (obligations of immediate effect)” (p. 3). He contrasts these against those obligations that require significant resources and are therefore subject to ‘progressive realization’. Thus, the defining characteristic of MCD is that it differentiates obligations between those of immediate effect and those of progressive realization. And the focus is on the nature of the obligations (what the state must do when) rather than the nature of substantive rights (the condition of people’s lives).

However, the discussion about what constitutes minimum core obligations in substance focuses on the nature of rights enjoyment and a package of minimum goods and services that would be required rather than the nature of obligations. This starts with General Comment 3 that refers to ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’, and to the provision of ‘essential primary health care’ (ICESCR quoted in Tasioulas p. 5). Further, human rights-based practice begins to specify specific types of diseases to be treated and goods and services that would be included in the minimum, as under the ‘selective primary health care model’ adopted by UNICEF (Tasioulas p. 5).

Thus, the concept of minimum core obligations has become translated as a right to a minimum set of goods and services, specifically identified with the provision of primary health care, including specific services such as oral rehydration therapy, immunization against six childhood diseases, and access to essential medicines on the WHO list. A key criterion in developing this list is affordability which makes immediate provisioning possible. Ironically – as I will discuss below – prevailing prices of such goods are therefore important to defining minimum core obligations rather than their importance for people in leading healthy lives.

This conception of MCD around low cost goods and services is unnecessarily restrictive. It is also out of line with concerns to meet pressing and priority health needs of the population. It departs from the original concept of obligations of immediate effect. It limits the consideration of the wide range of measures that national governments should take to expand the enjoyment of the right to health such as by reversing damaging policies or setting new ones. A salient example is policy choices governments might make in the area of intellectual protection provisions in free trade and investment agreements.

Intellectual property, trade agreements, and access to medicines

One of the pressing threats to the human right to health is the trend to include stronger intellectual protection in bilateral and plurilateral trade agreements. Since the introduction of the WTO TRIPS agreement that made strong intellectual property (IP) protection a requirement for all signatory countries, health and human rights activists have protested their effects on public health priorities, particularly in restricting access to life saving medicines[1]. More than two decades on, even stronger IP provisions – ‘TRIPS Plus’ – have proliferated in new bilateral and plurilateral agreements, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP), that was agreed in January 2018 by 11 countries[2]. These provisions strengthen patents held by pharmaceutical corporations by making patentability easier, and delaying the introduction of generic competition that would lead to lower prices and wider diffusion. Moreover, the new ‘trade agreements’ increasingly incorporate wide ranging provisions for investment – such as provisions for investor/state dispute settlement, public procurement, state owned enterprises and more – that strengthen investor rights and impose limitations on policy options for national governments in pursuing public health[3]. These agreements are being negotiated with little consideration of their effects on the government obligation to fulfill the right to health; rarely are public health impact assessments made.

IP and trade policies for human right to health as a Minimum Core Obligation

There is much that countries can do to make IP-related trade agreements less damaging to public health priorities if not promote them[4]. To start with, governments can make more proactive use of the flexibilities incorporated in the TRIPS agreement to make life saving medicines available at affordable prices. Countries can reject TRIPS plus provisions. Or they can also reject free trade agreements. These are all approaches that some countries – such as Thailand, Colombia, and Brazil have adopted. Even more important, countries that are defending IP holders interests, should refrain from joining corporations in taking retaliatory action against those countries that do use the flexibilities[5]. For example, US government places countries that use TRIPS flexibilities on the Special 301 watch list that monitors IP enforcement and lists countries where enforcement is inadequate or weakening. One of the concerns is with “troubling indigenous innovation policies that may unfairly disadvantage U.S. rights holders in foreign markets.” (USTR 2018)[6].

Though much has happened to expand access to life saving, high cost, patented drugs, and to invest in innovations for public health priorities, many gaps remain. Millions of people around the world lack access to medicines, and these include new branded medicines that carry very high prices – for example latest cancer drugs approved generally cost over US$100,000 for a year’s course of treatment, the new hepatitis C drug costs $1000 per pill or $84,000 for a course of treatment[7]. Access to such drugs is critical to life and is surely a priority for the fulfillment of the human right to health and the human right to life. Yet latest lifesaving drugs are not on the WHO essential medicines list as they are too expensive and cannot be provided universally. But this is because of the IP driven medical research and development system, enforced through trade agreements, that governments are obliged to comply with. At the same time, research and development (R&D) lag for high priority challenges because they do not offer attractive investment potential. This includes not only tropical diseases that afflict poor people and poor countries, but priorities for people of all levels of income, such as new antibiotics to combat growing antimicrobial resistance (AMR). Proactive government action, to coordinate internationally and promote priority investment in medical R&D by mobilizing public, private, and philanthropic resources would go a long way to fill these innovation gaps. Numerous initiatives have been taken in this direction but much more can be done.

Taking a proactive approach to designing trade and investment policies that align with public health priorities and that do not undermine the right to health is therefore an important human rights obligation of governments. I would argue that this is an important minimum core obligation because it is one that can be implemented with immediate effect, without large investment of resources. But many countries – particularly small developing countries – that have little economic or political clout in trade negotiations are faced with difficult trade-offs between joining trade and investment agreements to benefit from the global economy, and the need to protect policy space for pursuing their public health priorities. It is incumbent on all countries therefore to work collectively to promote systemic change and develop global principles and mechanisms for a more equitable policy framework for financing medical innovation. Many proposals have been made, not least by the series of global commissions that have addressed the contradictions between trade and health over the years. Pursuing these measures that would work towards greater equity in access to medicines – particularly all lifesaving medicines, and not just the inexpensive ones that are on the WHO essential medicines list – is surely a minimum core obligation of states necessary for the fulfillment of the human right to health.

[1] While intellectual property protection rewards investors, it creates barriers for diffusion. It also hinders innovation for social priorities such as diseases of the poor that do not create a market demand. The tension is recognized in the TRIPS agreement itself that includes measures – commonly referred to as “TRIPS flexibilities” – that can be taken when the IP provisions get in the way of public health priorities.

[2] Without the US that withdrew from the original 2016 agreement.

[3] For summary discussion of these issues, see McNeil et al 2017.

[4] For overview see report of the UN High Level Panel on Access to Medicines and Innovation 2017

[5] Several cases have been documented since the early 2000s, such as the case of Thailand that has used a compulsory license for HIV/AIDS drug in 2006, to more recent case of Colombia’s effort to issue a compulsory license for a cancer drug. Such efforts have met with retaliatory actions such as corporations threatening to withdraw their products from the market, or with being put on US government’s Special 301 watch list of countries where IP enforcement is weakening.

http://www.ip-watch.org/2018/04/27/ustr-annual-special-301-report-seeks-intensify-action-china-colombia-canada/

https://www.ictsd.org/bridges-news/bridges/news/thailand-issues-compulsory-licence-for-patented-aids-drug

[6] Office of the US Trade Representative, 2018 Special 301 Report.

https://ustr.gov/sites/default/files/files/Press/Reports/2018%20Special%20301.pdf

[7] http://www.pharmacytimes.com/resource-centers/hepatitisc/will-hepatitis-c-virus-medicaton-costs-drop-in-the-years-ahead

The Concept of ‘Minimum Core Obligations’: Guidance for International Obligations


Gorik Ooms is a human rights lawyer and a global health scholar, Professor of Global Health Law & Governance at the London School of Hygiene & Tropical Medicine, Adjunct Professor at the Law Faculty of Georgetown University, and Visiting Professor at the Faculty of Medicine and Health Sciences of Ghent University. He is a member of the Lancet-O’Neill Institute and the Georgetown University Commission on Global Health and the Law. 


The concept of ‘minimum core obligations’ was originally advanced by the United Nation’s Committee on Economic, Social and Cultural Rights (henceforth, ‘the Committee’) to address the pitfall of ‘progressive realisation’, stipulated in the International Covenant on Economic, Social and Cultural Rights (henceforth, ‘the Covenant’).

For the readers who are not familiar with this legal jargon:

  • Human rights can be broadly (and somewhat artificially) divided into two families: freedoms and entitlements. Freedoms are the rights we have because our societies are obliged to not do something: they are (somewhat misleadingly) called negative rights, because the corresponding obligation is negative. For example, our freedom of expression relies on societies not interfering when we express our opinion, no matter how much our society dislikes our opinion. Entitlements are the rights we have because our societies are obliged to do something: they are called positive rights, because the corresponding obligation is positive. For example, our entitlement to education relies on our society collecting financial resources and subsidising schools. While the Universal Declaration of Human Rights contains human rights of both families, freedoms and entitlements were separated when the International Covenant on Civil and Political Rights and the Covenant were written. Freedoms were included in the International Covenant on Civil and Political Rights, entitlements were included in the Covenant.
  • Freedoms are supposed to be cheap for societies, as it does not cost anything to not interfere with people when they express their opinion, practice their religion and so on. Obviously, it can cost quite a lot to establish and run a police and justice system that will protect these freedoms – the idea that freedoms are cheap is an illusion. Nevertheless, all states that ratified the International Covenant on Civil and Political Rights are expected to realise all freedoms immediately. Entitlements are understood to be quite expensive. Therefore, states that ratified the Covenant are expected to realise all entitlements progressively. While we all have a right to attain the highest standard of health we can attain, the corresponding obligation of our societies is “to take steps”, in accordance with “maximum available resources” (Article 2(1) of the Covenant). Therefore, while we all have the same right to health, in principle, the efforts we can claim (like prevention or treatment) depend on the wealth of the society we live in.
  • States that ratified the Covenant accepted to be monitored by a commission of experts: that is essentially the job of the Committee. The Committee understood that the concept of progressive realisation, while reasonable, became an easy excuse for states that did not really try hard. Therefore, in its General Comment 3, the Committee argued that “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party.” The crucial argument is that “[i]f the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être”. In other words: if states can easily argue that they are willing but, unfortunately, unable to realise these entitlement rights, these rights are meaningless.

As soon as the concept of minimum core obligations gained currency, it divided scholars. One the one hand, it seems to contradict the principle that ‘ought implies can’, in Latin: ‘ad impossibilia nemo tenetur’. Nobody, no state, can be held to do the impossible. To avoid that, we could define minimum core obligations at the level of whatever the poorest state is reasonably able to do. But that would set a standard at such a low level that it would deprive the concept of minimum core obligations of its raison d’être: only a handful of countries would be challenged by such a standard. In General Comment 14, on the right to health, the Committee followed a different path. In paragraph 43, it established a list of minimum core obligations, which include food, water, sanitation, housing, essential medicines… In paragraph 44, it established a list of “obligations of comparable priority”. Then in paragraph 45, it avoids the ‘ought implies can’ pitfall, by referring to another element in Article 2(1) of the Covenant, name the obligation to take steps “individually and through international assistance and co-operation”. In other words, if some states are willing but unable to meet their minimum core obligations, other states are obliged to step in: the ‘ought implies can’ principle is applied to all states (that ratified the Covenant) collectively; together, they can. While I support that interpretation, in principle, as long as states needing assistance have no practical means to make wealthier countries provide the assistance they should provide, it does not solve the problem.

John Tasioulas’ working papers on Minimum Core Obligations and The Minimum Core of the Right to Health have many virtues. The most brilliant element, in my opinion, is the way he deals with the abovementioned dilemma.

The baseline is not ascertained by asking what is feasible for the most dysfunctional or ‘failed’ state. This would be comparable to specifying the obligations of parenthood by reference to what is feasible for the most incompetent of parents. (Minimum Core Obligations, pages 23-24.)

Where should we look for the baseline then? In recent years, the concept of ‘failed states’ has been replaced by ‘fragile states’, or ‘fragile situations’. The World Bank keeps a Harmonized List of Fragile Situations. The list includes countries or territories with a low Country Policy and Institutional Assessment (CPIA) score, and/or the presence of a United Nations and/or regional peace-keeping or political/peace-building mission during the last three years, if these countries or territories are eligible for support from the International Development Association (IDA). The IDA – also known as the ‘soft loan arm’ of the World Bank – supports ‘low income countries’: countries with a Gross National Income (GNI) of less than US$1005 per capita. So, a practical and sensible approach would be to look at the states that have a capacity immediately above these fragile states: countries that are about to ‘graduate’ from low income country status, with a better CPIA score and no recent peace-keeping or peace-building interventions. Senegal comes to mind: the GNI per capita is $950 according to the World Bank Atlas method. Or Cambodia, where the GNI per capita is $1140.

Looking at the level of ‘efforts to improve health’ (healthcare, water, sanitation, housing,…) these countries do provide would only be the first step. What we really want to know is the baseline these countries can provide.

Once we would have such a baseline established, a double question arises:

  • What should the international community do with regards to countries that are willing but unable to achieve the baseline?
  • What should the international community do with regards to countries that are able but unwilling to achieve the baseline?

Here again, Tasioulas’ brilliant analogy provides guidance (although I am not sure he would agree). Countries that are willing but unable to live up to their minimum core obligations should be treated like we would treat parents that are willing but unable to be responsible parents: the international community should assist them, not as a matter of charity but as a matter of justice. Countries that are able but unwilling to live up to their minimum core obligations should be treated like we would treat parents that are able but unwilling to be responsible parents. They should be treated as states that violate human rights on a scale – if measured by the consequences – that may exceed most acknowledged ‘crimes against humanity’. The international community has a responsibility to protect the people of these countries.

The Immediacy of Economic and Social Rights


Katharine Young is an Associate Professor of Law at Boston College Law School.  Her scholarship focuses on comparative constitutional law, economic and social rights, constitutional theory and positive state obligations, international human rights law, and public law and gender.


In his report to the World Bank on the highly contested concept of “Minimum Core Obligations” in international human rights law, Professor Tasioulas proposes an interpretation which equates the concept with unqualified temporal priority: minimum core obligations are the sub-set of obligations associated with economic, social and cultural rights that must be immediately complied with in full by all states. These are special obligations, he suggests, to which the ICESCR’s express doctrine of “progressive realization” does not apply. These obligations are understood as invariant in content for all states parties (despite states’ different background resources), uniform and constrained by their connection to a particular right. They are to take priority, ceteris paribus, over other obligations associated with economic, social and cultural rights.

I have great sympathy for efforts to limit the reach of the progressive realization doctrine, and to reinforce the conceptual priors that drive the content of economic, social and cultural rights. And Tasioulas’s preference for an approach that directs attention to the time frame in which obligations must be discharged is very important. Yet his equation of priority with immediacy is a short-term, ameliorative, and likely counterproductive approach to the intolerable and all-too familiar delay that attends these rights. In this brief comment, I want to outline what I take to be the broad question of temporality in the ordering of economic, social and cultural rights obligations, the way Tasioulas’s answer may minimize it, and why it matters.

Let me first commend the important contribution, to public policy audiences, offered by the crisp distinction of the various roles imported onto the minimum core concept. Since the Committee on Economic, Social and Cultural Rights first expressed the view, in 1990 with General Comment No. 3, that where a “significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education”, that state is “prima facie, failing to discharge its obligations”, that seemingly uncontroversial view has been deployed in multiple ways. The concept itself has stood in as a proxy for rules of justiciability or non-derogation, or to the values of human dignity or basic needs.[1] Indeed, my 2008 article pointed to these competing – and often incompatible – interpretations as a reason for directing research and practical energies elsewhere: first, to improve the reliability of indicators and other monitoring data in measuring realization, including of the rights of the most vulnerable; second, to explore balancing and proportionality as doctrines that have become flexible, if highly debated, tools to enforce rights; and third, to give concrete content to the extraterritorial obligations set out in article 2(1) of the ICESCR and elsewhere. And indeed, it is in these directions that the last decade of scholarship on economic and social rights have focused, alongside the recognition that such rights, while becoming standard in many of the world’s constitutions and statutes, were diverging in substantive legal content.[2]

And yet the minimum core persists: attractive to those who might think a minimalist content is the most we can hope for under background conditions of extreme poverty and inequality and invariably limited resources. For Tasioulas, this means ascribing temporal priority – that minimum core obligations should be those of “immediate effect”. Let us leave to one side that this interpretation is contrary to the Committee’s and other regional efforts to demarcate “minimum core obligations” and “immediate obligations” as separate categories, and to interpret each in light of the indivisibility and interdependence of all human rights. Perhaps departures such as Tasioulas’s may be warranted – interpretive efforts are not always consistent and may anyway be evolving. Instead, let us examine what is implied by a strategy to limit the doctrine of “progressive realization” by expanding the reach of the minimum core.

I suggest that this proposal for “minimum core obligations”, which are to be discharged immediately and prior to other obligations, replicates age-old distinctions between categories of rights, and fails to appreciate the distinctiveness of the idea that, when moral rights are transposed to legal rights, they create legal duties on the state (as a primary matter). The preferable view is to maintain an interpretation of economic, social and cultural rights that is conducive to regional and network efforts at setting standards, more open to claimants’ demands, and better equipped to address the prevailing framework of laws that contribute to such stark material deprivation.

First, advocates of the distinction between “first generation” civil and political rights, and “second generation” economic, social and cultural rights claimed that these two types of rights were fundamentally different, in that only the former could lead to obligations of immediate effect. The argument in support of economic, social and cultural rights had to overcome precisely that view, by proving that that immediacy did not correlate with importance. Tasioulas’s attempt to privilege a sub-set of economic, social and cultural rights that acquire this same status essentially brings back that ill-fated distinction, only this time internal to the category of economic, social and cultural rights.

While some interpretations of progressive realization also reinforce that distinction, the better view is that the obligation does not set out a space of unaccountable delay whenever resources are required. An obligation towards progressive achievement, as it appears in the Universal Declaration of Human Rights of 1948, applies to all rights; its special formulation for economic, social and cultural rights was contested at the time of the ICESCR’s drafting, with some representatives suggesting a reasonable time frame, or even a time limit, should accompany the clause. The Committee’s General Comments have pointed to an obligation to take expeditious and effective steps as part of progressive realization, and duties of non-retrogression have also been analysed. And the omission of progressive realization in subsequent treaties, such as in CEDAW – despite some reversals, such as the CRPD – might suggest a recognition that accountability and appropriate flexibility can be generated without it.

In addition to reviving that distinction, Tasioulas misunderstands the nature of the primary duty bearer: the state. His emphasis on an unqualified priority for certain obligations fails to appreciate that, for the state, temporal sequence cannot be commanded by a “minimum core” of rights. Immediacy in fact pertains to all claimants. The most vulnerable can, of course, demand special duties, but to insert a doctrine which requires other obligations to be suspended until those duties are discharged is to misunderstand this role. It may play into certain neoliberal prescriptions that have been discredited on various grounds, as my 2008 article warned, and at the very least entrench a stunted idea of state obligations to oversee – and even to plan – the economy.

Let me demonstrate with an example from the right to education. Tasioulas asserts that a state cannot prioritize high-level research institutes over the provision of primary schools. This point is, of course, elementary and wholly independent of the proposed minimum core doctrine: the ICESCR itself, in one of its longest articles, sets out important priorities. Primary education is to be compulsory and free for all; higher education is to be equally accessible, on the basis of capacity.[3] But to require the discharge of core obligations towards primary education before other levels are addressed is to misunderstand this article, the much more nuanced General Comment No. 13, and the task of a state. How might a government respond to a transnational corporation, seeking to market secondary and tertiary education, for instance, if it is to be put in breach of its duties if it does not wait until primary education is secured? Clearly, a state’s legal obligations to take steps to regulate this sector are just as important – and just as immediate – as the former.

Delay of rights is akin to denial of rights – a premise recognized, among other charters of rights, in the 1215 Magna Carta. The intolerable waiting associated with the full realization of economic and social rights must be monitored: infringements, including those induced extraterritorially, must give rise to enforcement (encompassing the soft measures Tasioulas helps to specify). This interpretation is consistent with the idea that economic and social rights rest on freedoms that are both especially important and socially influenceable, in one important formulation:[4] an interpretation which extends to all economic and social rights, not just those confined to a “minimum core”. Human rights are designated – and warrant that designation – because they are for the here and now. We should not elevate a minimalist, ameliorative and short-term doctrine in order to make that clear.

[1] Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 Yale J. Int’l L. 113 (2008).

[2] See, e.g., the many contributions of the forthcoming The Future of Economic and Social Rights (Katharine G. Young, ed., Cambridge University Press), including, as especially pertinent, Ran Hirschl et al, Justiciable and Aspirational ESRs in National Constitutions; and Olivier de Schutter, A Proposed Framework on Progressive Realization and Public Finance.

[3] ICESCR, art. 13.

[4] E.g., Amartya Sen, ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 315-356.

Ensuring the Minimum Core Encompasses the Right to Health-Promoting Environments


Sarah Hawkes is a medical doctor with a degree in sociology and a PhD in epidemiology. She is Professor of Global Public Health at University College London where she leads a research theme analysing the use of evidence in policy processes, particularly in relation to gender and health, and sexual health. She is also Director of the newly established UCL Centre for Gender and Global Health


The foundations of public health have various origins; I am going to confine myself to a starting point in the 17th century. In 1662 the haberdasher John Graunt became the founding father of modern demography and epidemiology when he published “Bills of Mortality” and exposed the inequalities of both life and death . Using church registry records, Graunt revealed that life expectancy for men and for those who live in cities was shorter than for women and rural populations, respectively. Men, he determined, “die by reason of their vices”. Women might be living longer than men, but Graunt also recognised that they were more likely to be sick from “Breedings, Abortions, Child-bearing, Sore-breasts, Whites, Obstructions, Fits of the Mother, and the like.” Meanwhile, Graunt’s comparisons of the city of London and rural Hampshire concluded that the “Fumes, Steams, and Stenches of London do so medicate, and impregnate the Air about it, that it becomes capable of little more” and contributed to the observed mortality rates in the city.

A similar picture could be said to exist in public health, epidemiology and demography today. Men live shorter lives than women in every country in the world. The life expectancy gap ranges between 1 year in the poorest countries (e.g. Mali) to over 10 years in the countries of the ex-Soviet empire – where much of the gap is determined by rates of exposure to alcohol. Meanwhile, anyone who has experienced the smog of Delhi or Beijing will testify to the impact on human health at individual and population levels.

Moving forward from Graunt, to the 19th Century, and attempts to improve population health were now seen to be interwoven with improving the social, economic and political conditions under which people live: Engels (1844) remarked that “The men wear out very early in consequence of the conditions under which they live and work” , and the recognized father of public health, Virchow, writing about how to prevent typhus in the 1840s noted that we should focus on “education, together with its daughters, freedom and welfare”.

By the 1970s, the physician Thomas McKeown was able to disrupt prevailing empiricist and reductionist concepts of public health even further by examining the idea that “human health depends on understanding the structure and function of the body and the disease processes that affect it….and consider [what this might mean for] health services, medical education and medical research”. McKeown examined in-depth the improvements in population health that had taken place over the course of 3 centuries. Most of the reductions in mortality rates (at young ages) in England and Wales and in Sweden were due to declines in infectious diseases. It would be reasonable to assume that this decline was strongly associated with improvements in medical care, but one reason that McKeown’s work was such a hit with medical sociologists in the 1970s and ‘80s was his empirically-derived conclusion that by far and away the greatest declines in rates of infectious diseases occurred before the advent of antibiotics or vaccines (with the exception of smallpox). Whether talking about tuberculosis, measles or polio – medical interventions to treat or prevent these infections arrived after the diseases had already significantly declined.

I mention these historical antecedents to give a public health context to my reading of John Tasioulas’ seminal work on Minimum Core Obligations and the concept of the Minimum Core of the Human Right to Health. Professor Tasioulas presents ideas that are powerful, inspirational, and importantly, can guide practical and pragmatic ways forward for those involved in setting priorities for resource (human, financial, logistical) allocation in health. In reviewing the legal (and some may argue, social justice) standards for deciding upon core obligations, Professor Tasioulas draws upon a rich legal and political scholarship. Academic public health is frequently less erudite, but, nonetheless, I propose that applying a more public health lens to Professor Tasioulas’ work allows for further practical refinement of these ideas, in two areas in particular.

Firstly, we need more recognition – from the worlds of law, politics, economics, social justice, and others – of the importance of keeping populations healthy alongside the current focus on ensuring treatment for people once they are sick. This is not, of course, to denigrate the role of the medical and allied professions in their roles as providers of health care to sick people. We are all going to need medical attention at some point in our lives (some sooner than others, some more frequently, and some for more complex medical conditions). But a discourse that focuses on treatment rather than prevention of illness/maintenance of good health, seems to me to be a unidimensional preoccupation for most societies. If we can apply concepts of core obligations for promoting healthy environments alongside realising the right to medical care, then we are likely to see improvements at levels of population health as well as improved health service coverage data.

Secondly, once we have agreed that keeping populations healthy is part of the minimum core, then we need to figure out how to do so. This is where the historical lessons are so important in showing how the health of populations improves or declines. Historically populations were largely at risk of infectious diseases and under-nutrition – and many of the prevailing human rights standards in health seem to reflect the epidemiology at the time of their writing (1940s and 1960s). In the 21st Century, more of us are going to die from the side-effects of over-consumption and over-exposure – processed food, alcohol, tobacco, environmental pollutants – than from any other set of risk factors. I propose that the time has come for us to recognise that we need a legal framework that recognises the determinants of health and illness have changed since international human rights law in relation to health was first formulated and codified. A set of minimum core legal responses that act to protect the health of the public by addressing 21st Century determinants – driven, frequently, by corporate behaviours and lack of effective governance on the part of state bodies – needs to be identified. Equally important as identification, we need solid mechanisms for holding states to account for protecting the health of populations alongside ensuring access to care when for those who are sick.

As a final note, I have a more personal reflection on Professor Tasioulas’ work. For too long public health has been stuck in a silo of its own making – unable to move into multi-sectoral action or conversation as we did not have the language to speak to other sectors and professions. The expansion of the study of population health beyond the counting of numbers to meaningful engagement with those disciplines that are able to show us potential ways forward – and the legal basis for doing so – is a very welcome development. Professor Tasioulas’ work exemplifies the kind of academic scholarship that is capable of challenging established ways of working, while also proposing ways forward that are pragmatic, actionable, and, most importantly, equitable. I am delighted that he has applied his expertise, ideas and proposals to the realm of public health – the health of populations can only benefit as a result.

Minimum Core Obligations and the Right to Health: A Legal Analysis


The Hon. Michael Kirby AC CMG is an international jurist, educator and former judge, including as President of the New South Wales Court of Appeal and as Justice of the High Court of Australia.  His recent international activities have included member of the Eminent Persons Group on the Future of the Commonwealth of Nations (2010-11); Commissioner of the UNDP Global Commission on HIV and the Law (2011-12); Chairman of the UN Commission of Inquiry on DPRK (North Korea) (2013-14); and Member of the UN Secretary-General’s High Level Panel on Access to Essential Healthcare (2015-16).  He is also heavily engaged in international arbitrations; domestic mediations; and teaching law.


I offer my commentary on John Tasioulas’s theoretical exposition of “Minimum Core Obligations: Human Rights in the Here and Now”. My views are very similar to those expressed by Professor Tasioulas. Essentially, they involve a close analysis of the textual language of the relevant international instruments that constitute the foundation of the international law of human rights, as it extends to the ‘right to health’. They also involve consideration of contextual matters, matters of history and matters of legal policy.

The textual foundations are to be found in the WHO Constitution of 1946, the Universal Declaration of Human Rights 1948 (UDHR), article 25; the International Covenant on Economic Social and Cultural Rights 1966 (ICESCR), article 12, and the General Comment number 14 on the ICESCR of 2000.

The supposed difficulty in establishing an individual right to (unspecified) standards of healthcare is that, unlike other clauses in the International Bill of Rights, the language of article 12 of the International Covenant on Civil and Political Rights (ICESCR) is expressed in terms of what the States parties “recognise” and agree that what they recognise is to be attained in a particular way, namely by “steps to be taken… to achieve the full recognition of this right”. This differentiation in expression, when compared for example to the language of the ICCPR, has been invoked to suggest that the ‘right to health’ is not an individual right, enforceable against the duty bearing state on the initiative of the right enjoying individual. It is merely a hortatory expression, equivalent to stating that the nation states of the world will “do their best” to provide healthcare to their citizens and others. Such a view would be seriously detrimental to an entitlement that, in practical terms, is one of the most important and urgent amongst the claims that human beings assert, and feel the need of. The right to health and to life are central to human existence. It would defy the logic of including references to the right to health in the context of the International Bill of Rights to downgrade it. It would not be consistent with subsequent developments of international law and policy, including the adoption of the United Nations Strategic Development Goals, 2015 (SDGs).

An argument against acceptance of ‘minimum core obligations’ in relation to the human right to health is that such an expression does not appear in any of the foregoing core documents. Thus it is said that it lacks an express foundation upon which to build such an important asserted right. However, it is common in legal analysis to derive meaning not only from express provisions but also from provisions which are necessarily implied in the express provisions of the text under examination. This is especially so in the case of a text which is designed to express the universal human rights of everyone, everywhere, at all times and in respect of all activities of humankind in all of its variety. In such texts it is not surprising that there will be implications. Implications are inherent in any textual analysis. The lack of an exact explicit textual source for the asserted minimum core obligations is not, therefore, fatal to their existence otherwise, as derived from a close analysis of the textual foundation together with the consideration of all other relevant factors.

The central concept that gives rise to the ‘minimum core obligations’ is a recognition of the fact that the obligations imposed on nation states commenced immediately that the treaty establishing those obligations came into force in international law in respect of the nation concerned or alternatively in respect of a sufficient number of the nations that have ratified the treaty, so as to bring the treaty into operation as a source of international law. In the case of the ICESCR, it was adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI) of 16 December 1966. In accordance with article 27, it entered into force on 3 January 1976. Therefore, at least from the date upon which the ICESCR came into force (1976), and possibly earlier, the obligation has been imposed, certainly on States Parties, in accordance with article 2.1 to “take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.

Moreover, in article 2.2 the States Parties… “Undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’’ This is a machinery provision. It implies that rights are already being accumulated and must be exercised in the particular ways stated.

Such provisions of the ICESCR clearly envisage that rights will begin to exist under the treaty, at the latest when it comes into force. They will be progressively enlarged over time thereafter, both by the action of individual State Parties and by the collective action of all States Parties.

It follows that, since at least 3 January 1976, in respect of the individual States Parties or the collectivity of all States Parties (even possibly all States although not yet parties), the progressive realisation of rights has been begun, is happening, is continuing to evolve and is intended to so evolve. It has content and substance and this is ultimately discoverable.

From this it follows logically that there is no State Party which, in 2018, in the here and now, begins with a blank page so far as the right to health is concerned. That right has been progressively evolving since being adopted by the community of States Parties of the world. Accordingly there is already, in the world, a necessarily varying degree of achievement of the right to health. But no State (certainly no State Party to the ICESCR ) is now in the position that it has lawfully done nothing. That would be a breach of the obligation imposed by article 2.1 and of the assumption expressed in article 2.2.

This is why it is permissible, by this analysis, to recognise that the evolution that has been happening has given rise to varying but nonetheless real and substantive attempts by the States Parties to achieve at least some of the attributes inherent in the right to health expressed in article 12. It will vary. Its precise contents will be disputable. But it has substance and it is discoverable.

Given that it is now 42 years since the ICESCR entered into force and became part of international law, it follows that there is already a body of compliance with the obligations of articles 2 and 12, varying though that compliance may be from state to state. Sometimes the variation will be a result of the individual state’s lack of appropriate means to realise the right. Sometimes it will be the result of the lack of international assistance and cooperation. Sometimes it will be nothing more than the lack of proper attention by the state to the duty which it has assumed in articles 2.1 and 12. It is both necessary and appropriate to break down the various explanations as to why states have (and have not) progressively realised attributes of the right to health, as they have promised to do by article 2.1. That promise is not just an empty phrase. It does not permit a Nation State which is a party to the ICESCR to do nothing and to treat its obligations as wholly meaningless, non-binding or non-justiciable. The obligation assumed is a real one in a real treaty that imposes real obligations in international law.

Once this reasoning has taken analysis to this point, it is both reasonable and appropriate to examine the extent of the progressive achievement of the right to health promised by the Nation State by breaking down that obligation into the question whether what can now be seen as minimum core obligations have been realised or not. Adopting this approach has the advantage of encouraging a timetable for the states of the international community, doubtless a timetable that is partly universal and partly dependent on the “available resources” and any “technical assistance” available to the state concerned.

The adoption of the SDGs by unanimous decision of the General Assembly of the United Nations in 2015 lends credence to this analysis. It envisages universal achievement of specified goals some of which are there spelt out. Relevant to the right to health, these are set out in SDG 3. They are not inconsistent with the ICESCR rights and obligations. On the contrary, they are an indication that substantive and real goals are to be identified by the international community and to be achieved, in some cases by all countries.
Looking back, then, at the language of the ICESCR that expresses the requirements of international law, it is a necessary, certainly available, analysis of the right to health that is there stated that it will contain minimum core obligations that all Nation States are to achieve now for the fulfilment of the rights of individuals (citizens and otherwise) for whom the Nation State is responsible.

There is also a practical or policy reason for supporting this analysis. This is that it encourages the type of approach that is reflected in the SDGs: the fixing of targets, the expression of achievable goals, and the fulfilment of the real needs of individual human beings in what Professor Tasioulas has aptly described as the “here and now”. If it were otherwise, the right to health as stated in the WHO Constitution of 1946, and as expressed in the UDHR of 1948, article 25 and as envisaged in the ICESCR of 1966, which came into force in 1976, would be no more than political sloganeering and national posturing. Given the circumstances at the conclusion of the ‘’great and terrible war‘’ that gave birth to the United Nations Charter of 1945 and the foregoing provisions of other international instruments (including the International Bill Of Rights) it should not be assumed that the right to health, so important to human beings everywhere at all times, is so meaningless and devoid of real content.

These are the textual, contextual, historical and policy reasons why I support the assertion by Professor Tasioulas that a proper construction of contemporary international law supports the existence (‘In the here and now’) of minimum core obligations of the right to health. The challenge therefore becomes that of giving content to the concept. It is not whether the concept exists, is viable, is consistent with the applicable international law and should of necessity, be spelt out of that law so that the norms of international law are given real operation for often vulnerable people.

Professor Tasioulas has given a proper legal interpretation to the relevant source of international human rights law. Moreover, he has given that law meaning so that it fulfils its purpose and reflects the urgency of the right in question, especially since the adoption of the SDGs.

Minimum Core Obligations: Toward a Deeper Philosophical Inquiry

Martha C. Nussbaum is the current Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, where she is jointly appointed in the Law School and the Philosophy department.


There are two ways one might read John Tasioulas’s impressive analysis of minimum core obligations.  First, one might see it as a set of moves inside an ongoing discourse in the community of practitioners and academics who work on international human rights law.  Second, one might read it as a freestanding document addressed to intelligent people everywhere who are concerned with the substantive issues that human rights talk addresses.  I will begin with a brief summary of what someone taking the first approach might say, but I will then focus on the second approach.

Within the discourse about minimum core obligations as it currently exists, Tasioulas’s discussion is a class act, rigorously argued and cogent.  Among its very great merits are its helpfully clear analysis of different senses of “minimum core,” its very sensitive discussion of contextual and resource-related (possible) variations, its wonderful discussion of indicators and norms, which corrects some pernicious confusions, and its cogent responses to the objections that these moral norms are either excessively rigid or counterproductive. Tasioulas raises discussion to a new plateau of philosophical clarity and subtlety.

But let me turn to the second approach. For me, not a practitioner or even a theorist of international human rights law, the document is frustrating, and the most important questions seem utterly neglected.  This is more a request for another document than a criticism of this one, but let me describe the questions that I hope Tasioulas will go on to address.

The burning question is: What, if any, is the moral importance of the nation and national sovereignty?  To put things very crudely, the philosophical tradition about human rights takes two approaches.  On one approach, we really ought to aspire to a world government, in which the coercive force of law is used to enforce human rights everywhere. Some would see the United Nations as an imperfect and temporary proxy for that world government.  In any case, international human rights law is fully binding as law, and it is a piece of world government in a world that does not yet have a fully formed world government.  Nations have practical importance, since little will get done in our world without them. But they do not have moral importance.  It would be better if they just yielded up their power to the evolving human rights framework.

On the other approach, associated with Grotius, the idea of the nation-state has moral importance.  This importance is twofold. First, nations are morally important because they are vehicles of their people’s autonomy: for their desire to lead a life that is chosen by them, giving themselves laws of their own choosing.  And second, a closely related point, nations have moral importance because of their accountability, the fact that people can say yes or no to laws that coerce them, and to the basic structure of the nation’s institutions itself.  Grotius could certainly allow that at some point a federation of nations might develop sufficient accountability to play this moral role; but it seems that then it would be a federated nation, like India or the U. S., and not therefore an exception to his argument.  There can be little doubt that the UN lacks the features that make nations (even highly defective ones) morally central.

To put it another way: in a federated nation, basic rights may and should be enforced against states that don’t recognize them.  But that is because the nation’s constitution, where such rights are enumerated, is chosen by the people and accountable to the people.  It is their basic structure. There is no analogue at the level of the nation, no accountable, people-chosen basic structure.

A Grotian such as me will insist that the space between nations is a moralized space, not just a Hobbesian force field.  This means that we can and should argue about moral norms, including arguing that some of them are so morally important that they ought to be accepted by all nations and incorporated into the legal systems of all nations.  But these norms will actually count as law only when nations have done so through their internal, democratically accountable procedures.  In the meanwhile, we may and should use persuasive moral arguments, but we should not say that what we are producing is law.  Some international law is clearly law in the full-blown sense, ratified by treaties that are taken seriously by the nations that ratify them.  But most international human rights law is not like this.  Even when nations do ratify these documents they do not do so (for the most part) with the intention of making all of the nation’s laws subject to the scrutiny of those rights norms.  The arguments I have made in support of my Capabilities Approach over the years are persuasive moral arguments, and I believe nations should incorporate them into their constitutional or other account of fundamental entitlements.  But I certainly don’t think that there is anything about the approach that is or should be enforceable unless and until people do so.

It is important for people of good will, seeking a better and more moral world, not to leap prematurely into the (however moralized) space between nations.  One must always beware of leaching sovereignty away from the nation and its institutions, which are chosen by the nation’s people, and turning it over to an international realm that is not decently accountable to people through their own political choices.   When I read that Tasioulas’s account of the minimum core originated in a UN committee on cultural rights, I find myself almost laughing.  Having worked for many years in the UN system, I see it as grotesquely flawed and corrupt, totally lacking in democratic accountability, and therefore devoid of any procedural legitimacy when it comes to imposing law on people.  A UN committee may still say many good things, and Tasioulas’s moral arguments are good arguments. But they should stand or fall by their moral force, and we should leave it to the nations to decide what to do with them. Tasioulas always emphasizes that the norms in question are moral norms, so I wish he had just stopped there, rather than using, as he usually does, the added term “law.” International agencies and international documents should be understood as in essence normative statements that attempt to persuade the world.  As such they may have great value, even if they are not enforced or enforceable as law: they testify to an emerging consensus, and can then be used by protesters in each nation to bring pressure to bear on their governments.

A concrete example will illustrate this valuable contribution. (I have made this argument at length in “Women’s Progress and Women’s Human Rights,” Human Rights Quarterly 38 (2016), 589-622.) Women’s human rights were long unrecognized by most of the nations of the world – meaning both that the world did not recognize for women the same rights that it did for men (e.g. voting rights, employment rights), and also that concerns urgent for women (sexual violence, domestic abuse, contraception) did not make it onto the world’s agenda at all.  Today there is great progress around the world on the first issue – even Saudi Arabia gave women the vote in 2015 and is in the process of extending yet other rights to women – and at least some progress on the second, with much greater global awareness than at any time in human history of the toll taken by sexual violence, domestic battery, sexual harassment in the workplace, lack of respect for home-based work as work, and lack of control over fertility and childbirth.  These issues are now on the world’s agenda.  Even if there is still a lot of bad behavior, it is already important that it has been named as bad.

How much of this progress is attributable to international agreements such as CEDAW?  I argue that this question is not quite the right question to ask.  Basically, international agreements are important parts of international movements, and the moral work that is done in international society is often enormously important, bringing people together around a common set of demands and complaints, and giving them opportunities to meet, exchange ideas, and reinforce one another.  The international women’s movement (like the disability rights movement, to cite but one other example) has for years now brought together women from many different countries.  Prior to international mobilizing, women were pretty isolated, and had no world fora in which to develop ideas and strategies.  The various women’s congresses have built a valuable type of solidarity and ferment, and this energy has surely contributed greatly to the progress of women in most nations of the world.

But what about documents?  Meetings usually need some conclusion, some piece of writing that expresses what has been agreed.  In this case the feminist revolution needed to coalesce around a list of normative claims.  Without that, people would not go to the next meeting.  They would think that wheels were spinning. Documents propel things forward, give a sense of a progressing common cause.  Once that cause produced CEDAW, and that agreement was taken back to the nations of the world and ratified by most of them, the very fact of ratification (though it meant little) gave new impetus to domestic political efforts.

CEDAW accomplished little directly.  It is also a deeply flawed document, skirting round some of the most important issues, such as access to artificial contraception, and counting women’s work as work in national income accounts.  It has also not altered the relentlessly male-centered perspective of other human rights documents.  As Eleanor Roosevelt warned from the beginning, giving women a separate lobby and a separate document is a double-edged sword, possibly sidelining women’s energies, which might have been used to fight in the more inclusive forum.  In this case, however, there is no doubt that the UN has always been and remains a profoundly patriarchal institution, hostile to women’s equality. Fighting in the more inclusive forum would have been frustrating and probably doomed, whereas the mobilization of women worldwide to create a text that stands before all the world, affirming women’s equality, has proved politically and strategically valuable, no matter what the defects of the document and the yet greater defects of its implementation, which basically amounts to a handful of domestic court cases in countries with woman-friendly judiciaries (India and Botswana) in which the fact that the nation ratified the treaty has been used to effect legal change.

In short: in this case and in many others, international documents are not legally enforced and do not amount to a world constitution.  But this is good, according to the Grotian picture I have been developing. It is more appropriate that these documents remain persuasive norms, to be enforced through domestic policies, including constitution-making, legislation, and judicial interpretation – occasionally citing the document itself, but more often influenced by the arguments and the persuasive climate of the international community that led to and received additional impetus from the document.  International society remains primarily a moral realm of persuasion, and only becomes a truly political realm occasionally, and in exceptional cases.  However, this does not mean that the process of creating and ratifying documents is useless: it creates solidarity and a sense of common goals, enabling powerful transnational movements to arise and to influence national policies.

My example does not concern minimum core obligations as such (though some women’s rights undoubtedly belong to such a core), and is intended only to clarify my claim about international quasi-legal documents: that their value is as persuasive moral arguments that help people in each nation achieve greater justice.

This, then, is the set of issues that I’d like to see Tasioulas address. If he agrees with me, even partially, then I think he should write up the moral arguments for each of the minimum core obligations as persuasively and rigorously as possible, on his own as a philosopher and not as a committee member writing a report, together with his own arguments (whatever they are) about the nation-state and its role, and try to persuade the international community. The present report, however excellent, leaps over the deepest questions and therefore can address only a community of practitioners for whom these deeper questions either are uninteresting or have been answered somehow.  It cannot persuade even the skeptical philosopher, and it certainly can’t persuade the world.