Category Archives: Human Rights

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.

New Symposium – John Tasioulas’ Minimum Core Obligations in Economic, Cultural and Social Rights

I am four-fold excited to introduce this new mini-symposium featuring John Tasioulas’ groundbreaking work on “minimum core obligations” in Economic, Social and Cultural Rights.

First, I’m excited to debate Tasioulas’ two important new reports for the World Bank:

  • Minimum Core Obligations: Human Rights in the Here and Now (see here)

and

  • The Minimum Core of the Human Right to Health (see here).

Both are important contributions to the human rights field. In the former report, Tasioulas provides a sophisticated but accessible philosophical exploration of minimum core obligations, arguing that they represent a sub-set of Economic, Social and Cultural Rights that must be complied with immediately, thereby bypassing the doctrine of “progressive realization” that is a particular hallmark of the Convention on Economic, Social and Cultural Rights. In the latter report, he applies insights drawn from his initial conceptual work to the human right to health. In applying theory to this right, he synthesizes law and practice from international and regional systems, undertakes a comparative analysis of national law from seven states, then folds these principles into ideas about sustainable development goals and indicators constructed to measure their realization. For more detailed overviews, I direct readers to the Executive Summary and Introduction sections of each report.

Second, I am especially excited to host this symposium because it brings together some of the leading theorists and practitioners in the world. All of the eight commentators who have kindly agreed to respond to Tasioulas’ reports are eminent experts in different fields. All approach the problem from various disciplinary vantage points, providing us with a rich tapestry of perspectives on what is undoubtedly a central problem for modern conceptions of global justice. Although I will not provide more information about all the commentators for this symposium here, I do want to single out two, who I am especially honored to host. Martha Nussbaum’s work, first on the capabilities approach then on the relationship between emotions and justice, is a major influence on my thinking. I attempted to entice her to participate in an earlier symposium, to which she politely told me that she does not write for blogs, so I am especially privileged to host her in this instance. Similarly, Michael Kirby enjoys a reputation for being one of Australia’s leading judges ever and his work in human rights was a powerful inspiration to me when I first became interested in this area. I’m thrilled to host these and all the other outstanding commentators.

Third, I am particularly enthusiastic about the symbiosis between theory and practice this symposium promotes. In the blog’s manifesto, I set out how “although the blog will seek to engage with theoretical questions, it will also continuously attempt to create symbiosis with practice in an attempt to ensure that practice is defensible and theory is informed.” The aspiration is evident at multiple levels in this symposium. It is reflected, for instance, in the contributions of leading philosophers and a highly-regarded judge, by the transition from philosophy to application in the two reports, and in the practical orientation of the conceptual work for the World Bank. The symbiosis is also enabled by the multi-disciplinary perspective of the various commentators. The outstanding cast of scholars who offer criticisms of the work come from philosophy, law, medicine and international relations. I remain excited by the underlying method as well as the constructive disagreement it has generated, so hope that this type of exchange stimulates others substantively as well as methodologically.

Fourth, I am pleased that this debate contributes, perhaps implicitly, to wider discussions about the adequacy of human rights as responses to massive contemporary problems. For the longest time, human rights projected an image of political agnosticism, promising to act as a thin set of standards that preserved human dignity while allowing diverse forms of culture, religion, and political organisation to flourish around them. Increasingly, that image is disputed, in large part because human rights are perceived as inadequate responses to global inequality. If human rights did unintentionally become part of the problem in global injustice, however, this reality was likely at least partially the product of an over-emphasis on Civil and Political Rights. So, a stronger engagement with the often-times overshadowed Economic, Social and Cultural variants of international human rights promises to inform wider scholarly debates about the salience of the paradigm.

In all these respects, I am particularly excited to host what I believe is an important contribution to the field.

Upcoming Inquiries for the Field of Transitional Justice: Response to Commentaries


Colleen Murphy is a Professor in the College of Law and the Departments of Philosophy and Political Science at the University of Illinois at Urbana-Champaign, Director of the Women and Gender in Global Perspectives Program in International Programs and Studies, and Affiliate Faculty of the Beckman Institute.


Transitional justice is the process of reckoning with past wrongs in the midst of an attempted transition away from extended periods of conflict or repression. In my book, The Conceptual Foundations of Transitional Justice, I examine the question of how we should understand the “justice” of “transitional justice.” By what standard or set of principles should we judge “justice to have been done” in the way a society deals with past wrongs in the context of a transition? How should we think about the justice of processes like truth commissions, amnesty or reparations? I argue that retributive justice, corrective justice and distributive justice are not the standards to use to answer these questions.

“Transitional justice” has its own standards of justice, standards which become salient in the context of four specific circumstances. These circumstances are (1) pervasive structural inequality in the terms by which citizens and officials interact; (2) normalized collective and political wrongdoing, in which human rights violations become a basic fact of life; (3) serious existential uncertainty, where the future trajectory of a political community is profoundly unclear; and (4) fundamental uncertainty about authority given that the state is characteristically implicated in wrongdoing. In these circumstances, I argue, the central question of justice is: what constitutes the just pursuit of societal transformation? I define societal transformation as relational transformation, transformation of relationships among citizens and between citizens and officials. Justice is done when processes contribute to this relational transformation and so in a way that is sensitive to the claims of victims and moral demands on perpetrators of wrongdoing.

I am very grateful to David Tolbert and Roger Duthie, Laurel Fletcher, Steven Ratner, Nir Eisikovits, and James Stewart for their careful reading of my book and for pressing me on some of the most difficult questions for me to answer adequately. Below I respond to their queries by discussing (1) the relationship among development, peacebuilding and transitional justice; (2) the relationship between the requirements of societal transformation and the requirements for its just pursuit; (3) where I identify the limits of transitional justice.

Development, peacebuilding and transitional justice

Consider first development and transitional justice.[1] Development I take to be concerned with the expansion of individual and communal capabilities. Capabilities refer to genuine opportunities to do and become things of value, such as being adequately nourished, being employed and being educated. Genuine opportunities are a function of (1) what an individual has (e.g., skills and resources) and (2) what she can do with what she has (e.g., given the state of the built infrastructure within a community or gender norms.) Poverty from this perspective is defined in terms of deprivations, such as “inadequate resources to buy the basic necessities of life; frequent bouts of illness and an early death; living conditions that imperil physical and mental health.”[2]

The imperatives of development and transitional justice overlap to a certain extent. For example, my account of relational transformation includes fostering threshold levels of capabilities, including the capability to avoid poverty. Thus, processes that aim at or contribute to poverty reduction can promote both development and transitional justice. However, development and transitional justice may also diverge. For example, development policies may prioritize natural hazard mitigation, which is recognized to be essential to the sustainability of development but which is not essential to relational transformation. Furthermore, transitional justice is constrained in ways that development is not. Transitional justice pursues relational transformation by responding to past wrongs, and so prioritizes victims of wrongdoing, many but not all of whom are poor. Thus, development policies aimed at the most effective alleviation of poverty may not focus on the same group.

What is the role of peace in my account of transitional justice, Ratner, Tolbert and Duthie ask? Short-term peace is often a condition for the possibility of longer-term societal transformation.[3] For instance, reductions in violence, especially through cease-fires and other truces, can contribute to establishing or strengthening the conditions on which the rule of law depends. The rule of law requires restraint on the part of both officials and citizens. And part of what motivates citizens to exercise this restraint is faith in law and trust in the officials who make and enforce law. By respecting the restraint required by a period of a ceasefire or truce, citizens and officials previously in conflict can have evidence that wider restraint required by the rule of law may be possible, and so in a very minimal way begin to build trust.

Eisikovits wonders whether I have overlooked an important source of fragility in transitional contexts, which exacerbates serious existential uncertainty and fundamental uncertainty about authority: the absence of shared political history and identity. Such history and identity, he suggests, provides a shared background against which to evaluate contemporary events, resources for agreeing where political events are indeed different than challenges faced and overcome in the past. In response, I agree that the absence of shared history and identity is surely salient in many transitional contexts. Indeed, diverging and in some respects incompatible historical narratives is a crucial feature of contexts where deep divisions exist. Whether in Serbia, Bosnia, Northern Ireland or Colombia, diverging narratives are present of what wrongs were done, by whom and against whom, and what events and people should be remembered and in what way. It was in part the question of how to think about the absence of shared narratives and identity, and the implications for liberalism and democracy that my interest in political reconciliation and then in transitional justice first arose. I wondered whether what the philosopher John Stuart Mill called “common sympathies” were in fact necessary for the kind of governance he envisioned.

However, I think a key source of political fragility is a shared sense of the plausible practical possibilities through which a transitional society must navigate and of what those possibilities actually entail. If a society is emerging from a period of civil war, a return to civil war is not merely a rhetorical question politicians or citizens may ask, but a genuine practical possibility. It is one option of many along a spectrum of what may happen. By contrast, though we had a civil war 150 years ago, another civil war is not a practical possibility for Americans today despite deep political divisions and widely diverging narratives of our present moment; there is no shared sense of this being a practical possibility of where our divisions may lead. Nor do many Americans have a robust sense of what civil war would actually entail. Thus, I am more inclined to think that what exacerbates uncertainty is the fact that certain possibilities for where events may lead are not merely hypothetical and are widely recognized not to be merely hypothetical given recent history, rather than the absence of shared narratives.

Societal transformation and its just pursuit

A second cluster of questions that the commentators raise concerns the two dimensions of transitional justice I articulate: societal transformation and its just pursuit. Ratner wonders whether societal transformation is the unique or best way of addressing the problem that the four circumstances of justice generate. In my view, societal transformation is not the only possible candidate of the problem the four circumstances of justice generate. One function of my argument in Chapter 2 is to demonstrate the limitations of some alternative ways of defining the problem of transitional justice, drawn from standard accounts of retributive, corrective and distributive justice. Relative to these alternative possibilities, I argue, transformation is the best way of conceptualizing the problem of transitional justice. As I acknowledge in the conclusion, however, there are different ways of filling out transformation than the substantive view that I articulate in Chapter 3. One may think of transformation not in terms of relationships, for example, or may think of what relational transformation requires in ways that do not invoke (only) the rule of law, trust and relational capabilities. In adjudicating among conceptions of transformation, one account would be better in my view if it more effectively responded to pervasive structural inequality and normalized collective and political wrongdoing.

How should we understand the status of the “just pursuit” of transformation, Ratner, Tolbert and Duthie all press? Is there intrinsic value to the requirements of fitting and appropriate conduct of treatment of victims and perpetrators? Could be processes of justice that respond to the claims of victims and demands on perpetrators but not aim at broader transformation? The answer to both questions in my view is yes. In my view, a just reparations scheme could narrowly aim at acknowledging wrongdoing experienced and providing compensation for losses suffered by victims, respecting the other conditions for pursuing these aims I discuss in Chapter 4. It would be just insofar as it satisfied these intrinsically important criteria for fitting and appropriate treatment of victims. However, this process would not be a process of transitional justice in my view. In transitional justice, the requirements of fitting and appropriate treatment of perpetrators and victims play an additional, instrumental role in contributing to societal transformation; the aim of transformation is necessary for a process to be one of transitional justice.

Are the requirements of societal transformation and of fitting treatment of perpetrators and victims interdependent or independent? I use just war theory as a model for understanding the relationship between the two parts of transitional justice. However, Ratner notes that the two dimensions of just war are not completely independent in practice. The justice of the cause of anti-colonial fighters came to shape the justice of their actions. In terms of transitional justice, given the tight relationship in practice between pervasive structural inequality and normalized collective and political wrongdoing, there will be a tight relationship between the prospects for societal transformation and satisfaction of the demands for its just pursuit. For example, one aspect of societal transformation is establishing threshold levels of opportunities to be recognized as an equal member of one’s community. This is also an aim of responses to individual victims, to acknowledge them as equal members of their community. Thus, by expressing recognition of the victim as an equal member of a community a process can impact the transformative aim of establishing threshold opportunities to be recognized as members of a community of a previously marginalized group. In future work, I hope to think through this question of interdependence more fully.

Can these two parts of transitional justice ever be in tension? Yes. I agree with Eisikovits’ point that there can be tensions that arise in the pursuit of societal transformation and respect for the claims of victims and demands on perpetrators. There may need to be compromises made in the pursuit of transitional justice, and one place is in balancing the demands of transformation and the demands of fitting and appropriate treatment of perpetrators and victims. The balance or compromise may be between the degree of accountability achieved and the degree of the contribution of a process to broader relational transformation. Amnesties, which Eisikovits references, can illustrate this balance, though I do not believe amnesties are necessarily incompatible with just treatment of perpetrators. Depending on the conditions which must be satisfied to be eligible for amnesty, there can be a measure of accountability for perpetrators achieved.

A different tension may arise in trying to pursue transformation in a manner consistent with the kind of relationships you aim to foster. In particular, there is a question of whether democratic relationships can permissibly be pursued non-democratically. Answering this question is difficult in part because it is not obvious what demands democracy place in choices concerning transitional justice; this is an issue I want to also take up more directly in future work. What kind of say over what kind(s) of questions should the people have for transitional justice to be democratically decided? This question underlies debates in Colombia over how to think about democratic legitimacy of the decision not to hold a second plebiscite on the revised Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, after the original version of the Final Accord failed in the first plebiscite. 

The limits of transitional justice

Stewart, Tolbert and Duthie press me on the limits of my theory. Tolbert and Duthie press me on the limits of possible processes of transitional justice, given my call to expand the processes considered beyond criminal trials, truth commissions, reparations, amnesty and memorials. Specifically, how I would evaluate educational reform? In my view, whether education will be a process of transitional justice depends. Educational changes could count as processes of transitional justice. Specifically, how history is taught may be modified to more explicitly acknowledge past wrongdoing, both as a way of recognizing the dignity and citizenship of those previously denied such recognition and as a way of facilitating societal transformation by countering denial about the prevalence of, nature of, and/or conditions that facilitated wrongdoing. Other educational reforms not specifically dealing with the wrongs of the past may contribute to societal transformation but would not count as processes of transitional justice in my view.

Stewart’s post highlights the international character of many contemporary conflicts and the causal role of international actors in maintaining repressive regimes and in atrocity. Such actors include multinational corporations as well as foreign governments.  He also correctly notes the implicit in my account is a focus on a single domestic society. How can my framework account for the global dimensions of transitional justice? Here are some preliminary thoughts, which I look forward to expanding on in greater detail in my next project. Consider first the requirements for the fitting and appropriate treatment of perpetrators and of victims. Those moral demands do not have geographical limits. There is no principled reason to cordon off the role of international actors implicated causally in atrocity. The question is: how, by whom, and for what purpose(s) will these demands be pursued? Accountability for international actors may be pursued for its own sake, and not just by a transitional society but also by, for example, the home country where a corporation is based. Accountability may be pursued for its own sake and also for the sake of societal transformation; this would be a case of its pursuit as part of transitional justice. When pursued as part of transitional justice, the question of the form accountability will take to facilitate societal transformation is one for the transitional society in question primarily to decide, subject to parameters set by international law. Finally, in terms of transformation itself, I also agree with Stewart that our interdependent global order and influential actors like multinational corporations mean that that transformative possibilities will not in many cases be set or determined by domestic actors alone. I also agree that global justice, by which philosophers mean justice in the background global institutional order that shapes the distribution of goods and resources, may be important for its own sake and for enabling, or at a minimum not undermining, local transformation of relationships between citizens and officials.

Fletcher, Tolbert and Duthie all approach my book from the perspective of practitioners and ask: will my book make a difference to transitional justice theory and practice? They note ways in which my account is responsive to concerns among practitioners and scholars, including the fact that structural marginalization and discrimination are key factors in mass violence. Fletcher also suggests that my account provides guidance on how to move beyond currently intractable disagreements concerning, for example, how to balance legal duties to truth, reparations, accountability and non-recurrence, where these duties can be thought of as reflecting duties of different kinds of justice. Instead, my account she rightly notes suggests we instead ask: what processes will transform relationships both among citizens and between the state and citizens? My hope is that my book can contribute to shaping and rethinking the questions asked by both scholars and practitioners, though only time will tell if this indeed becomes the case.

 

[1] The brief points made here I develop in greater detail in Deliberative Democracy and Agency: Linking Transitional Justice and Development, in Lori Keleher and Stacy J. Kosko (eds.), Agency and Democracy in Development Ethics (Cambridge University Press, forthcoming 2018).

[2] I draw on the capability approach to development pioneered by Amartya Sen and Martha Nussbaum. The quote is from James Foster, Suman Seth, Michael Lokshin, and Zurab Sajaia, A Unified Approach to Measuring Poverty and Inequality (Washington DC: World Bank, 2013)

[3] The question of the relationship between peace and transitional justice I develop in some detail in Colleen Murphy, Political Reconciliation, the Rule of Law, and Truces, 13 Journal of Global Ethics 28 (2017).

Appraising Transitional Justice Through the Just War Theory Analogue


Steven R. Ratner is Bruno Simma Collegiate Professor of Law at the University of Michigan. His teaching and research focus on public international law and on a range of challenges facing governments and international institutions since the Cold War, including territorial disputes, counter-terrorism strategies, ethnic conflict, state and corporate duties regarding foreign investment, and accountability for human rights violations.


Colleen Murphy’s The Conceptual Foundations of Transitional Justice offers a significant addition to our understanding of transitional justice (TJ) in at least three ways.

First, Murphy deserves accolades for traversing numerous disciplinary divides in her approach to TJ. For scholars seeking to build more bridges between international law and philosophy, this books offers an excellent way as to how it can be done. Although legal scholarship on TJ has recognized many of the goals that Murphy defends, lawyers will benefit from the careful way in which she discusses trade-offs and priorities. Philosophers, on the other hand, should learn the importance of direct engagement with the key legal sources, including the workings of several TJ mechanisms.

Second, Murphy’s explanation of the justice of TJ moves us beyond both political and legal ways of thinking about TJ. Students of politics tend to think about TJ in terms of its success or failure for the particular country, with different measurements of those terms. Lawyers take the “justice” in TJ to mean that the starting point must be criminal justice, although they realize that TJ must encompass other goals like truth, acknowledgment, reparations, and measures for non-recurrence. They also tend to zero in on the scope of a state’s duties under international law (e.g., are amnesties allowed? Is there a right to the truth?)

Murphy helps us see that TJ is a matter of justice as philosophers understand that concept. She also emphasizes the necessity of defining clearly the subject matter of justice – that the justice of one thing (e.g., the basic structure of a liberal state) is quite different from the justice of something else (e.g., a TJ course of action taken by a state). Chapter 1 thus offers up the criteria of a TJ situation, so we know why the justice of that thing is worthy of inquiry. The four criteria that she offers seem to encompass the real-world cases that we ordinarily think of as concerning TJ and to raise morally important questions.

Third, and the focus of my comment, Murphy adopts an original methodological hook for analyzing the justice of a state’s TJ choices, namely to examine separately the just goals of TJ and the just means of carrying it out. Her analogy is to the two branches of just war theory (and the of law of war as well), namely the jus ad bellum (JAB) and the jus in bello (JIB). She thus develops what she calls the jus ad bellum analogue (JABA) and the jus in bello analogue (JIBA). This bifurcation of justice has the potential to provide a new level of clarity in our thinking, as we accept the need to look at two aspects of the process and not merely one.

At the same time, the JABA/JIBA approach raises some new conceptual questions. First, within the JABA itself, although the goal of social transformation (ST) – which she equates with relational transformation (RT) – is morally compelling, is that goal the only — or the principally — just goal for TJ? To return to the legal paradigm, in the case of the JAB, we can say that the only legally defensible reasons for a state to use force against another state are self-defense, authorization from the Security Council, and, on some accounts, humanitarian intervention. It is a necessary and sufficient condition of JAB legality that the state action be based on one of these three grounds. But does ST/RT meet the necessary/sufficient test? Though Murphy shows that ST through RT can respond to the four unique moral problems of a TJ situation, it is not clear if ST is the best or only means to address those problems. And even if it is the best or only method, why does that make it just in the same sense that JAB tells us the necessary and sufficient conditions for a just (or legal) war?

Second, and relatedly, because many TJ situations arise after prolonged violence in a country (not just “normalized and collective wrongdoing”), one wonders what role in the JABA is played by solidification of domestic peace. The serious existential uncertainty that helps define a situation needing TJ can extend to whether the peace will even hold. Murphy points out (p.111) that stability has its own value, as people still need to live their lives, with school, businesses, marriages, and ordinary living continuing. Yet those seem to take a back seat to ST.

Certainly, elites in a transitional situation can use the canard of solidification of the peace as a way to avoid any serious ST. I’ve witnessed this myself when I served on two UN accountability panels, for Cambodia and Sri Lanka, where the triumphalist elites running those countries each insisted that trials, or even investigations, of international crimes would re-ignite civil wars (by the Khmer Rouge and the LTTE, respectively) that were clearly over. But certainly it seems morally compelling goal of TJ to ensure that peace is maintained in those situations where it might be precarious. ST via RT can provide a way to long-term domestic peace, but it is not at all clear that it can provide short-term peace. Transformation may have to be put on hold to placate the losers or those with the ability to upset the transition.

Third, the JABA/JIBA tool can give rise to some new questions regarding a just TJ. International law doctrine generally holds that JAB and JIB operate independently. Under the so-called “separation thesis,” the legality of going to war is not affected by how it is carried out, and vice-versa. In particular, a state that obeys the rules of war (JIB) cannot be relieved of its liability for an aggressive war (JAB); and states that use force for legally acceptable reasons (JAB) still must obey the rules of war (JIB), even against aggressors. This principle explains the practice of the International Committee of the Red Cross of not commenting on the underlying legality of a war, as it insists that all parties must comply with the JIB.

Yet JAB and JIB are not actually completely independent. After states banned most uses of force in Article 2(4) of the Charter, states adjusted the JIB in the 1949 Geneva Conventions to make clear that territory annexed by the occupier was still legally occupied. And as most states began to accept that anti-colonial wars were lawful, they changed the jus in bello in the 1977 Additional Protocol I to state that anti-colonial fighters who did not resemble traditional soldiers would also receive most of the privileges of combatantcy and not be treated as illegal fighters. (See Addition Protocol I, arts. 4, 44). So it turns out that the legality of the recourse to force can affect the legality of the conduct of the war.

In Murphy’s use of the JIBA/JABA model, the thrust of her Chapter 4 seems based on the separation thesis – that we judge the justice of the manner of a transition independently of its goals. She thus usefully says TJ responses must be “fitting or apt” (p. 163), which turns on four features (pp. 163-72). First, they must address six moral imperatives, i.e., they must respond to the perpetrators by (1) repudiating their wrongs and (2) holding them accountable; they must respond to the victims by (3) acknowledging the wrongs against them, (4) recognizing their status as victims, and (5) providing reparation; and they must respond to both by (6) promoting nonrecurrence. These correspond to goals widely accepted by practitioners of TJ in international organizations and NGOs.  Second, they must reflect the relations among the relevant actors. Third, they must reflect the gravity of the offense. And fourth, they must reflect cultural expectations. She goes on to show, through good examples, how, different institutional responses – e.g., the ICTY and the Ugandan Amnesty Commission – did not “fit” based on those criteria. And she astutely observes the importance for states of “active coordination” by domestic and international actors to make sure that each TJ mechanism is considered in connection with the others, rather than in isolation.

Yet I wonder whether, like the law, strict separation does not offer a complete description of the two aspects of justice. In particular, is there a connection between the JIBA requirements and the JABA requirement? It would be nice to explore how each of the imperatives regarding perpetrators and victims advances ST/RT or how the imperatives might change if the goals were different from ST/RT. I agree with her inclination, which she justifies in the conclusion, not to ask how “any specific kind of response” (p. 198) actually contributes to ST, but it would help to know how the six imperatives (which are one level up in generality) do so.

Second, in thinking about the six moral imperatives for TJ responses, one might ask why are they not also – or instead – part of the JABA, i.e., the just goals of a transition? International organizations like the UN and other scholars of TJ generally describe those six imperatives as part of the end, in part because ST/RT sounds too academic as well as idealistic, but also because they see those imperatives as part of the goals of TJ. So are these six imperatives intrinsically valuable, regardless of their actual effect on ST/RT? Intrinsically valuable but also instrumentally valuable?

Murphy ends with an important plea for a holistic view of justice, one sensitive to the JABA and all the many elements of the JIBA. I certainly agree, although maybe the international organizations have it right by having us consider justice only from the latter perspective. If a state finds the proper mechanisms that meet the six moral goals in a way that that also respects the other three JIBA criteria, does it matter whether its goal is ST/RT or something else? One could consider that a great success and also be confident that societal transformation would follow on its own.   At the same time, by justifying ST/RT as the ultimate long-term just solution to the unique problems of TJ, Murphy has helped us see where the state eventually needs to go.

Fragility, Authority and the Ethics of Transitions


Nir Eisikovits is an Associate Professor of Philosophy & Director of the Applied Ethics Center at the University of Massachusetts Boston.  His areas of expertise include Transitional Justice and Post War Reconstruction, Ethics of War, and International Relations Theory.


Colleen Murphy’s new book on transitional justice displays her signature blend of analytic rigor, elegant writing and empirically anchored theorizing. She follows up her excellent first book on political reconciliation with a volume on what it means to transform a war torn society so that it can, ultimately, become reconciled. The just pursuit of political transformation, Murphy argues, is at the heart of the idea of transitional justice. This is the best, most ambitious philosophical account of transitional justice that I have read. The book can be read with great utility by scholars and students seeking to understand the unique conditions and dilemmas surrounding transitions, as well as by policy makers interested in fashioning decent and legitimate transitional institutions.

In this essay I will focus on Murphy’s characterization of the unique circumstances holding during times of transitions. To develop a normative account of transitional justice one needs to understand the conditions that countries struggling to make a start after war or mass atrocity face. This is why Murphy’s book must begin with laying these conditions out.

Murphy tells us that transitional states are characterized by pervasive structural inequality – a legacy of the unjust social arrangements that held in the past. Consider, for example, how apartheid misshaped the life prospects of Blacks in South Africa and the resulting deep inequalities. These states also suffer from a normalization of collective and political wrongdoing (to stay with the South African example, consider that for many in that country the apartheid state – through its institutions and actors – was seen as an agent of harm). It made your husband disappear, it enlisted your sister to spy on her own people, it made you worry about the safety of your children.

Under such circumstances, Murphy reminds us, major crimes become normalized – an expected part of life’s fabric: “wrongdoing such as rape, disappearing or torture… becomes a basic fact of life for individuals in the midst of conflict … a fact around which individuals must orients their conduct” (55). The third feature of transitions is “serious existential uncertainty”: political instability, lack of resources and the lingering influence and power of the old guard make countries that try to emerge from prolonged violence especially fragile. We just don’t know if they will make it through and many of them don’t, or at least fail to make it through as democracies (consider Egypt’s post Arab Spring turmoil, or even the authoritarian version of Rwanda that emerged under Kagame). Finally, there is fundamental uncertainty about authority: does a transitional regime have the political, legal and moral authority to “rule and enforce rules?” (72) and does it have the authority to address past wrongs and work towards social transformation – especially if those wrongs were legal at the time of commission and if the new regime is not completely purged of those who were influential in the past?

I would like to further flesh out some of these conditions – especially the last two – and suggest some implications for political transitions. The fundamental uncertainty about authority and political fragility attendant to transitions are exacerbated by a lack of political traditions and the lack of a shared political history and identity. In settled democracies both leaders and citizens can appeal to a store of past experiences and some settled views or traditions about how to deal with extreme circumstances. These traditions can provide guidance and a background against which to judge current conduct, even when it is extreme or unprecedented (in fact, the very ability to agree that the conduct of an official is unprecedented and completely strays from widely accepted traditions can buttress existing institutions and put current turmoil in context).

A fledgling United States considering John Adams’ prolonged absences from the capital and his temper tantrums in a very different way from a modern United States assessing President Trump’s behavior. In the intervening two and a half centuries the country gradually developed a set of expectations and traditions about how its leader should act. An observer of Adams could legitimately ask whether that was what a president was supposed to do (ironically, as Vice President, Adams who was very aware of the fragility of the institutions of the new republic and tried to invest the presidency with grandeur and gravitas by proposing various titles by which the president should be known. His efforts were unappreciated, ultimately earning him the moniker “his rotundity”). An observer of President Trump’s antics has an answer to that question. Stated differently, it is easier for settled democracies to get through periods of significant political fragility. What makes these hardships less existentially frightening in settled polities is the existence of political traditions, shared history, some sense, if you will, of political identity, that can put threats in context (“we’ve been through worse…” “don’t panic – remember how many people supported Nixon in the first few months after his maleficence was made public …” “we have a self correcting political system” and so on).

Transitional polities, then, are precarious because, on the one hand, so much hangs on the success of their transitional processes and, on the other, they have little guidance and very few tools to successfully shepherd themselves through. Spain immediately after Franco was often steps away from falling back into a dictatorship. South Africa after the demise of apartheid was similarly close to the brink. And in each case these countries were pretty much flying blind – dependent on the political instincts of their leaders, international good will, the exhaustion of their citizens, and, frequently, dumb luck. Under these circumstances, one wonders how much we can expect, morally, from a process of political transformation. Murphy invokes a fascinating analogy to Just War Theory and its distinction between Jus ad Bellum (the justice of the decision to go to war) and Jus in Bello (the justice of the war’s conduct), to remind us that a transition is subject to two layers of moral judgment: first, whether it seeks to create the right institutions and instill the right principles and, second, on how it does these things. But the combination of political fragility and lack of clear lines of authority which Murphy describes, raise questions about whether transitions to democracy can really be pursued democratically and about the moral meaning of a failure to do so.

Spain’s transition was facilitated by a pacto del olvido or pact of forgetting – a refusal, for many decades, to talk about the horrors of the civil war and the crimes committed in its aftermath. South Africa’s transition was facilitated by the work of its Truth and Reconciliation Commission (TRC). Both of these, in very different ways, were failures to live up to standards of the rule of law. The Spanish Pacto for the obvious reason that it completely sidelined the need of victims for public acknowledgement; the TRC because its hearings jettisoned basic tenets of the rule of law and because, to paraphrase Michael Ignatieff, it inaugurated South African democracy by letting a bunch of murderers get away with murder. And yet there are reasons to give both of these states a moral pass. Not a permanent pass; it is, of course, much more problematic to insist on silence in Spain now than it was in the 1970’s, and South Africa cannot continue to build its legal system on truth for amnesty arrangements. But given the extreme fragility, high stakes and lack of legal and political standards to guide action – we tend to view these “sins” of transition leniently. Murphy, even though she considers the different ways transitional policies can fail the “jus in bello” test, does not quite consistently consider the possibility that governments engaged in transitions are structurally set up to fail it or to seriously risk failing it.

Compartmentalizing Transitional Justice


In August this year, three French investigating judges were appointed to assess allegations that the Bank BNP Paribas was complicit in the Rwandan Genocide. According to the Financial Times, “[t]he bank is accused of transferring more than $1.3m of funds used to finance the purchase of 80 tonnes of weapons by a Rwandan general that allegedly broke a UN embargo and helped to arm the perpetrators of the country’s genocide.” Because much of my scholarly engagement with international criminal justice has focused on these sorts of allegations, for better or worse, I tend to assess normative accounts of the field with cases like this in mind. In what follows, I use the BNP Paribas case as a theme in commenting on Colleen Murphy’s excellent book, entitled The Philosophical Foundations of Transitional Justice (CUP, 2017). In part, I use this frame to shed light on an element of atrocity’s etiology that, in popular imagination at least, still seems shrouded in denial. More importantly for present purposes, though, I wonder if cases involving business participation in atrocity might offer a slightly different vantage point from which to evaluate conceptual models of transitional justice.

Murphy’s insightful account of the field points to four different features of societies in transition that make justice claims in these contexts a breed apart from those that apply in stable democracies. Contrary to Posner and Vermeule, Murphy eloquently argues that transitional justice is not like normal justice; it is qualitatively different because of the fundamentally distinct circumstances that constitute periods of political transition. As she explores in great depth, these surrounding political circumstances include: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. The combination of these circumstances in transitional contexts means that ordinary ideas of retribution, corrective justice, and restitution do not cater to the needs of affected societies. The misfit with these usual concepts of justice is so acute that we must craft an entirely new, distinct brand of justice that follows its own logic and answers to its own self-consciously defined first principles.

There is much I am attracted to in this approach and its brilliant execution. Let me start by pointing to the project’s apparent grounding in philosophical pragmatism. Surely, concepts of justice are context-sensitive. Undoubtedly, a major part of the problem for the field lies in avoiding blunt universalisms that do further violence to societies struggling to shed the heavy yoke of mass violence. At the same time, Murphy is clearly aware of the dangers of venerating the local at all costs; she astutely highlights the difficulties with over-correcting in favor of the local where she observes that “[r]adical contextualism can be just as problematic as an un-nuanced universalism.” (p. 81). Thus, transitional justice is philosophically pragmatic (by the by, I use this tradition to think about corporate responsibility here). Yet, if the concept of justice in transitional justice will always be context-sensitive, this leaves me wondering about the borders between the local and universal in Murphy’s self-contained concept of transitional justice, how this compartmentalized approach to justice will interface with others in a global society, and whether modulations in type of actor will affect the theory.

To begin, I am not entirely clear whether the BNP Paribas case falls within the bounds of transitional justice, on Murphy’s thoughtful definition or any other. On the one hand, it makes sense to treat the case as an element of transitional justice, assessing it against the very insightful standards Murphy has articulated. Apart from the alleged causal link to the genocide, our ability to alleviate the four characteristics that are particular to transitional societies is probably heavily dependent on transforming business—absent global economic revolution, post-conflict societies desperately need direct foreign investment that makes its way to people in survival economies instead of fuelling kleptocratic governments, corrupt patronage networks and brutal armed groups. On the other hand though, foreign economic actors are not clearly part and parcel of the affected society, precisely because they are outsiders culturally and geographically. The primary community of interest in discussing the moral legitimacy of the BNP Paribas case is likely French, not Rwandan, so the conceptual standards we would employ to scrutinize the case’s conceptual propriety lie beyond the special realm of transitional justice.

If the borders of a siloed concept of transitional justice are slightly unclear, the foregoing leads me to wonder about whether there is a geographical element to this theory. Are the principles of justice that govern transitional justice necessarily linked to features of a discrete, local political order? In other words, Murphy’s argument skillfully implies a plurality of justice (not just law), but I wonder if the different compartments of justice we create by disaggregating the concept aren’t overly geographically bound. We rightly think of Gacaca, the Rwanda Tribunal, and a host of other institutions and programs undertaken in Rwanda as falling within the transitional justice paradigm, in large part because the four characteristics that constitute the transitional paradigm stem from a single society reeling after mass violence within a single country. But importantly, the causal factors that gave rise to these atrocities were not geographically constrained in the same way. Foreign businesses in non-transitional societies allegedly contributed to the Rwandan Genocide too. So, which concept of justice—which set of principles—will govern the BNP Paribas case?

A causal account of atrocity might also suggest different rationale for justice. In her helpful discussion, for instance, Murphy points out that retribution does not easily match the needs of transitional societies since it assumes that wrongdoing is “deviant, individual and personal.” (p. 59). To focus just on deviance, the argument is that accountability is usually predicated on infrequent transgressions within an otherwise compliant society, so the retributive model collapses under the weight of widespread, normalized mass violence. Personally, I have always harbored vague misgivings about this argument, since it seems to assume a very temporally static, geographically bound notion of deviance (crimes in Nazi Germany were normalized at the time but deviant by even local standards measured before and after the war, and similarly, crimes in Rwanda were normalized there in 1994, but judged deviant by a thin concept of global community even at the time). Both these intuitions are very disputable, but there is another that business cases help bring into sharper relief—perhaps the actions of a particular foreign company implicated in atrocity were highly deviant even when violence was normalized for local citizens?

So, if the validity of justifications for punishment turn on which justice paradigm we choose and the type of actor implicated, these realities invite a wider set of reflections of how a compartmentalized concept of transitional justice interfaces with others in a globalized society. Here too, I wonder if the self-contained account is water-tight. For example, if globalization was born in colonialism, and actions of many foreign companies represent modern iterations of longstanding commercial practices consummated there, is there not a risk that a state-centric, geographically grounded concept of transitional justice will overlook the long history of foreign actors fomenting bloodshed for profit that at least dates to Leopold in the Congo? As for the present, what can we say about spikes in global demand for coltan for cellphones, tin for circuit boards and now cobalt for car batteries playing an important causal role in bringing about the mass violence transitional justice exists to remedy? Is there a danger that the very structure of transitional justice will leave these out?

Perhaps even the element of “transition” lends itself to this concern. Murphy rightly cites to a literature that queries whether transition matters to transitional justice, but cases like BNP Paribas add a new angle to those perspectives. In a conversation I had recently with the leading Argentine prosecutor of dictatorship-era crimes, he explained that as far as he could tell, the transition only implicated a particular cadre of political elites: “as for the businesses that supported the dictatorship, they remained the same before and after the transition.” If corporations are merely auxiliary to brutal authoritarian rule, this commercial continuity across political transition is probably less problematic, but if businesses enjoy a major share of power in affected communities, political regime change may not constitute a transition sufficient to move us into an analytically separate justice paradigm. Thus, for the businesspeople, it can be unclear what moral work the transition does in militating for or against their accountability.

I hope some of the foregoing provides useful food for thought, albeit from a relatively non-traditional vantage point. Without doubt, Professor Murphy’s rich and important book will animate discussions such as these for decades to come.