Category Archives: Moral Philosophy

Reply to Barry, Gooch, Le Billon, Okowa, Stewart, and Taylor

Leif Wenar is Chair of Philosophy and Law, King’s College, London. His most recent book, Beyond Blood Oil: Philosophy, Policy and the Future, combines five essays from field leaders in political theory, philosophy and energy politics.

I would like to give thanks to James Stewart for making Blood Oil part of his excellent symposium. I have admired Stewart since I first met him at the Peace Palace in The Hague in 2010, at a major conference centered on his work on pillage of natural resources.[1] His conference was full of luminaries of international law and politics (it is where I first met two outstanding judges of the International Court of Justice, Rosalyn Higgins and Abdul Koroma), and Stewart’s research was an ideal catalyst for intense discussions over the use of international law in the fight for justice.

I would also like to thank the other commentators sincerely for their generous attention and kind words. Perhaps I might just say how much I admire each of them. Phoebe Okowa is the author of important work on international environmental and criminal law, and also the author of fine articles on the laws governing natural resources in situations of armed conflict. Philippe Le Billon is among the world’s leading experts on natural resources and conflict; I have learned much from him, including from his books such as Fueling War and Wars of Plunder,and cite his work many times in Blood Oil. Christian Barry is one of the world’s top moral and political philosophers, an expert on justice in international trade and complicity, and the co-author of the much-anticipated Ethics for Consumers.

Very special thanks are due to Simon Taylor and Charmian Gooch, whose organization, Global Witness, has changed the way I see the world. I began working on the resource curse, in 2006, as a skeptic. Although I saw the terrible ‘paradox of plenty’ in so many countries, like some of the commentators (and perhaps some readers of this symposium), I was doubtful that much could be done about it. The interests opposing action were too strong, it seemed, and the status quo too entrenched. Global Witness helped to turn me into an optimist. Again and again Global Witness has won inspiring victories against the powerful, and Blood Oil tells many of the stories of their successes.

The Khmer Rouge, Charles Taylor the tyrant of Liberia, Sierra Leone’s blood-diamond funded militias, Robert Mugabe’s military thugs, Equatorial Guinea’s dictator Teodoro Obiang, Burma’s generals, Muamar Gaddafi—all of their injustices have been exposed by campaigns led by Global Witness. The bribes by the oil companies Shell and Eni that appear to have cost the Nigerian people over a billion dollars—and the corrupt deals of Dan Gertler, allegedly one of the worst in the Congo’s long history of foreign exploiters—are also now known because of Global Witness and other determined campaigners. Because of Global Witness and its partners, whole industries in the West have made their dealings with resource-rich foreign governments more transparent, and are also more diligent in keeping conflict minerals out of their supply chains.

Indeed whole continents have changed their legislation—the EU has now mandated public registers of beneficial owners of companies, which will help to crack down on abuse of the anonymously-owned companies that facilitate tax evasion, money laundering, and corruption. Global Witness has been a leader in this campaign (and—as their exposé on ‘60 Minutes’ showed—there is still much more to be done). And Global Witness is now increasingly turning attention to environmental and climate issues, as when it revealed the secret payments that an oil company made to armed Congolese rebels, to get drilling access to Africa’s oldest and most biodiverse national park.

Simon Taylor and Charmian Gooch have helped to build Global Witness into an effective, respected, and trusted international organization, a huge accomplishment. Global Witness has brought injustices to the world’s attention that had been under the radar, challenging ‘business as usual’ and inspiring others to launch their own campaigns. As I’ve gone around the world for the last dozen years giving talks on the resource curse, people have often asked me which organizations they can support—who is ‘fighting the good fight’ for change. I always say to support Global Witness. Global Witness has shown that a relentless focus, and an implacable sense of justice, can win.[2]

Summary of Blood Oil

Blood Oil is a big book. For those who are coming to this material for the first time, it may be helpful if I start by setting out its position quickly, without the nuances or qualifications, pulling together (and occasionally correcting) some points from the summaries of the contributors.[3]

The book is about power and natural resources. Violent, coercive, and corrupt men are today selling off their countries’ resources, gaining enormous unaccountable power from the money the world gives them in return. Some of these men use this unaccountable power to oppress their people, others to start brutal wars, others to maintain themselves in luxury while their populations endure grinding poverty.

To give a few suggestive correlations, most of the authoritarian regimes, most of the civil wars, most of the most corrupt governments, and most of the hunger crises in the world today are in resource-rich states. Most of the world’s refugees are today fleeing from these states. And, soon, most of the world’s extreme poverty will be in states that export oil, metals, or gems. Resources can indeed be a curse.

The unaccountable power that these men gain from selling natural resources spells disaster for the people that they torture, and attack, and neglect. And the power that the world gifts to these men is so enormous that it often spills across borders, and indeed around the world. Most of the West’s major foreign threats and crises for the past two generations have originated in resource-exporting states. The unaccountable power of resources is bad for ‘them’ there, and it’s bad for ‘us’ here in the West too. Because of this unaccountable power, we are all ‘resource cursed.’

What is the ultimate source of the unaccountable power of these violent, coercive, and corrupt men? Ultimately, it is the world’s consumers, paying every day for the products that are made from (and transported with) the natural resources that these men sell off from their countries. Ultimately, consumers are paying for the curses that fall back on them.

And why? Why are we consumers sending our money to men responsible for such suffering and injustice? The book’s answer is a surprise. The main culprit is a legal relic from the 17th century, that we all take for granted, embedded in the domestic law of every state. This is the rule that makes it legal to buy natural resources from whoever in a foreign country can control the extractive sites by force.

So, for example, years ago when Saddam Hussein’s junta took over Iraq in a coup, every state’s default law made it legal to buy Iraq’s oil from that junta. And then years later, when ISIS took over some of those same wells by force, it became legal to buy Iraq’s oil from ISIS. (That’s why sanctions had to be imposed—to make it illegal to buy oil from ISIS.) This legal rule is called ‘effectiveness’ for natural resources—essentially, effectiveness means that ‘might makes right.’

This archaic legal rule makes no common sense. If an armed gang takes over a Shell station in your country, should the gang get the legal right to sell off the gasoline and keep the money? It also violates a primary principle of any market order, to protect property against forceful seizure. In this way, ‘might makes right’ is a standing challenge to the rule of law.

As the book shows, the rule of effectiveness has been abolished in many other areas of law over the past 300 years—indeed, this progressive abolition of effectiveness has been a major part of the moral progress of humankind. The slave trade, colonial rule, apartheid, even ethnic cleansing and genocide: all of these violent practices used to be permitted under international law, which was often little more than the legitimation of power. Today, all of these things, when they happen, are violations of international law.

In fact, the world has even abolished effectiveness for a single natural resource: diamonds. Because of the campaigning of Global Witness and its allies, it is now illegal in most states to import diamonds that have been sold by armed groups. We’ve abolished the legal rule of ‘might makes right’ for diamonds, the question is whether we could do this for oil, for metals, and for other gems too.

What gives great hope for the abolition of effectiveness for all natural resources is that a better principle for trade in these resources is already widely accepted worldwide. This is the principle that every country belongs to its people. Under this principle, each country’s resources start out as the property of the people, and any government that wants to sell off (or privatize) those resources must be minimally accountable to its citizens when it does so.[4] That is, citizens must be able to find out the government is doing with their resources, and effectively to protest this if they don’t like it. Anyone who sells off a country’s resources without being minimally accountable to the owners—the citizens—is literally selling stolen goods.

This legal principle that ‘the resources belong to the people’ was first pressed by countries in the Global South in the 1950s, and it is now proclaimed in major treaties to which almost every state is party. Both of the main human rights treaties, for example, declare in their first article that ‘All peoples may, for their own ends, freely dispose of their natural wealth and resources.’[5] States with 98% of the world’s population are already party to one of these major treaties. More, politicians and popular majorities in every world region regularly endorse the principle that every country belongs to its people. At the level of ideas, ‘popular resource sovereignty’ has already won.

Popular resource sovereignty requires a government to be accountable to the people for the country’s resources. It is the best solution to the resource curse. The power that natural resources bring cannot be made accountable from outside the country. We know this from the West’s failed attempts to control the power of oil through alliances, invasions, and sanctions over the past 40 years, especially in the Middle East. The power of natural resources can only be held accountable from within the country, by governance that is accountable to citizens. We know that popular resource sovereignty is the solution to this problem, because countries that had minimally accountable governments when resource revenues began to flow (like Norway and Botswana) have not suffered the resource curse.

Today, every importing state is maintaining a legal rule that violates popular resource sovereignty: the rule of effectiveness. Every state’s default law says, ‘Whoever can control the extractive sites by force—we will make it legal to buy the resources from them.’ This is the rule that is driving repression, conflict, corruption and more in resource-cursed states. It is the rule that importing states can now change, to respect the human right that is popular resource sovereignty.

The book’s main policy proposal is that resource-importing states pass a Clean Trade Act, which would make it illegal to buy natural resources from anyone who is not minimally accountable to the people of their country. Progressively and responsibly, importing states can get their consumers out of business with violent, coercive, and corrupt men abroad. Ending today’s bad business will not end the resource curse overnight, but it is the most that states can do to stop the damage that their laws are doing to resource-exporting countries today. It is also the most that states can peacefully do to take a principled stand for the rights of all peoples, everywhere.

Readers may need reason to believe that this legislation is politically realistic. I’m happy to help with the optimism. Clean Trade is now a registered charity, with outreach to governments, investors, lawyers, and consumers.  And we’ve already gotten a Clean Trade Act onto the legislative agenda. Brazil, the world’s fifth largest country and a leader of the Global South, has a Clean Trade bill pending in its senate that would ban all imports of oil from unaccountable governments, and also prohibit its national oil company, Petrobras, from entering into new contracts with those governments. If Brazil can introduce a Clean Trade Act, such progress should be possible in other countries too.

Beneath the Status Quo

I’ve presented the ideas of Blood Oil hundreds of times now, on every continent except Antarctica, and I’ve found a curious thing. Even though much of the book is about the law—‘the rules that run the world’—it is often lawyers who have the hardest time seeing what it is saying. Having considered this for a while, I think I understand better why. This book challenges the status quo understanding of the global legal order, which is the domain that lawyers work within every day. The pull of the status quo is so strong that even lawyers who read the book seem to pass over sections, or whole chapters, when they describe what it says in their own terms. There is a great temptation to frame the whole thing within the familiar old debates, that lawyers know so well.

I have real sympathy for these lawyers: understanding the deeper ways that the world works was also difficult for me at first. And I believe that these lawyers (and indeed all the commentators in this symposium) share the same ultimate values and goals: as Okowa says in her essay, we all believe in peoples’ ‘dignity and integrity as sovereign peoples,’ and we all support ‘the bedrock principles on which our shared security rests… the sovereign equality of peoples and the overriding imperatives of maintaining peace and order.’

Yet since some readers may be coming to these ideas for the first time, it’s important that we take these debate out of their familiar tracks. So let me say a few things clearly at the outset. Blood Oil does not recommend sanctions. It doesn’t advocate coercing anyone, or intervening in the affairs of any state. It’s not about promoting a freestanding ‘right to democracy,’ and it doesn’t aim at spreading Western ideas to non-Western countries. It doesn’t recommend military invasions. It does not claim to speak for foreign peoples, or somehow to know what citizens of other countries want. And its policies have nothing to do with subordinating foreign peoples or managing the affairs of other countries from afar.

Those are all the old debates, within the terms of a familiar legal status quo. Our questions are deeper: what explains the status quo itself, and what can be done to change it. That’s what Blood Oil is about. Once we dig down to the subterranean channels of power in the global economy, we see things differently. In fact, those old debates look upside-down. The truth turns out to be that we are now intervening in the affairs of other countries—in very damaging ways—and that the world’s future would be better if we stopped intervening as we’re doing now every day.

Here’s the status quo. Authoritarians run oil states like Russia, Libya, Saudi Arabia, and Iran. Given this, the West has tried to control such authoritarians in many (often unjust) ways—sanctions, invasions, alliances, and sending secret agents to undermine democratic movements. But why are these authoritarians there in the first place?

Massively corrupt officials fleece the citizens of resource-rich states from Azerbaijan to Zimbabwe. Given that these corrupt officials are in power, Western corporations have unjustly bribed them to gain access to the resources. But why are these corrupt officials there in the first place?

Grueling conflicts have racked many resource-rich states. As Okowa wrote in 2013,

One of the defining features of the many recent conflicts of the past three decades, especially those in Angola, Sierra Leone, Sudan, Liberia, and more recently in the Great Lakes region of Africa, is the centrality of illegal exploitation of natural resources in causing and sustaining these conflicts. Many of these are not ideologically driven wars commanding popular support or addressing acknowledged grievances of the population. Instead they have as their focus access to the resources which, in addition to enriching the warring parties, also provides a continuous source of revenue for funding the war… Exploitation of natural resources by insurgents and governments alike has played a pivotal role in a number of protracted armed conflicts of the last two decades….They have all been financed, sustained, and exacerbated by illegally sourced minerals and other natural wealth of the territories affected.[6]

Given that these conflicts are occurring, foreign governments have tried to come up with ways to contain them and foreign corporations to exploit them. But why are the conflicts happening in the first place? Why is the status quo so oppressive, corrupt, and violent?

There are many reasons. Authoritarianism, corruption, and conflict are not only about resources, and of course these things occur in resource-poor states too. As Blood Oil says, ‘We live in a multivariate world. Many factors beyond the resource disorders have contributed to the disasters that end up in the headlines. Nothing explains everything; human affairs have more features than any one vantage can survey.’[7]

Still, one primary driver of these phenomena is the ancient rule of effectiveness. Because of effectiveness, resource-rich countries are much more likely to be authoritarian, highly corrupt, and at war with themselves. This rule explains much of the status quo—and it’s within this status quo that Western states and corporations then make their moves. The old debates are about those moves—and within these debates, I agree that what Western states and corporations have done has often been unwise and unjust. Yet we can go deeper than those old debates. The new debate is how to understand the status quo itself, and then to transform it. How can ‘might makes right’ be replaced with a better global rule, will stop driving authoritarianism, corruption, and conflict in the first place?

It’s Not about Political Recognition

Blood Oil challenges a major orthodoxy in global trade—the rule of effectiveness, by which every state makes it legal to buy natural resources from foreign authoritarians and armed groups. However, there is another part of today’s legal orthodoxy that the book does not challenge at all. These are the rules on state recognition: the rules about when states must recognize other states, and governments must recognize other governments, as legitimate. International law requires states to recognize each other’s ‘right to rule,’ and (contrary to what both Stewart and Okowa suggest) Blood Oil does not question these laws on political recognition at all. For ‘us’ in Western countries, for instance, who legitimately rules Russia or Iran or Angola is none of our business; the book doesn’t question the Russian, Iranian or Angolan governments’ ‘right to rule’ at all.

What Blood Oil does challenge is a different legal decision that states make: not political recognition, but commercial engagement. Given that international law requires states to give each other political recognition, there is a further question. Who in foreign countries will states make it legal to engage with commercially? Every state has to decide for itself from whom in other countries it will be legal to buy natural resources. These are the decisions that states should change.

This is the argument made at length in Blood Oil Chapter 7, ‘How Might Makes Right.’ Just because Charles Taylor of Liberia once forced a law through the parliament saying that it would only be legal to buy Liberia’s resources from him, that didn’t decide the matter for other states. Each sovereign state must set its own domestic laws on commercial engagement for natural resources. As the book says,

There’s a mental short circuit that can cause a blind spot here. The short-circuited reasoning goes like this: ‘Passing laws is what sovereign states do. And international law requires all states to recognize other states as sovereign. So international law requires all states to respect the laws of other states within their own laws.’

The protection against this short circuit is a crucial fact: political recognition does not require commercial engagement. Whoever rules in a foreign country and whatever laws they pass, the international law of recognition does not require any country to align its property laws with the laws of that country… Even during full political recognition, one state can refuse to align its property laws with those of another by forbidding its persons to buy what the foreign law says can be sold.[8]

This is clearest with sanctions. When a state imposes oil sanctions, for instance, it is changing its domestic laws so that it becomes illegal for its nationals to buy any oil from the sanctioned state. This is entirely a commercial matter, and has nothing to do with political recognition of the sanctioned state or government. Indeed, the book describes a case during the uprisings of 2011 when the United States changed its law to make it illegal for Americans to buy Libya’s oil from the government that it recognized politically—and even made it legal for Americans to buy Libya’s oil from rebels that no state recognized politically.

Whether or not this US policy was a wise one, the crucial legal point is that ‘who will it be legal for us to buy foreign resources from’ is a matter that each state must decide for itself. And again, this is entirely separate from the international law of recognition. Under the international laws of recognition, the United Kingdom must acknowledge, for example, the Russian government’s right to raise taxes, to defend its borders, and to issue postage stamps. Yet here is a separate, commercial question, which is not settled by any international law: will Britain make it legal for British persons to buy Russia’s oil from those who are now selling it? That’s a question for Britain’s own law to answer.

Blood Oil asks all states to stop answering this question with effectiveness, the rule of the slave trade, colonialism, and apartheid. It asks states instead to guide their commercial engagement by human rights.

Popular resource sovereignty is a human right. As above, this principle is affirmed in both of the major human rights treaties: the human rights Covenants of 1966. In fact, the rights of peoples to their resources is affirmed twice in both Covenants—these treaties affirm popular resource sovereignty more than they affirm any other human right. Popular resource sovereignty is also affirmed in major regional human rights instruments, like the African Charter on Human and Peoples’ Rights. As Okowa in 2007 eloquently explained one of the doctrines that helped to form this human right, it provides

An international standard against which the legality of natural resource exploitation by all parties to a conflict stands to be assessed.… If the terminology of peoples’ rights in the 1966 Covenants and in the African Charter is significant, then both must be regarded as imposing a set of justiciable precepts, in the form of limitations on what the government of a territory may do with resources of that territory. These instruments are clearly in force as binding treaties, creating obligations.[9]

By passing a Clean Trade Act, an importing state will be doing nothing more than to change its own domestic laws so that they respect human rights. As Blood Oil says,

a Clean Trade Act is less dramatic than more familiar foreign policy options. A country passing this Act will be changing its own laws, enforced on its own soil, regarding its own terms of trade. Not a single bomber or soldier need be sent abroad to implement these policies.

Moreover, a Clean Trade Act does not challenge the right of any regime to rule its country. An enacting state need say nothing about the legitimacy of foreign leaders, and need make no changes in the list of states receiving its diplomatic recognition…. Political recognition and commercial relations are distinct, and passing a Clean Trade Act only alters commercial relations. Leaders of a Clean Trade country can say that who holds the presidency of a resource-exporting country is ‘none of our business,’ while also saying that today its president qualifies for ‘none of our business.’[10]

As I hope this make clear, Clean Trade policy is not about ‘promoting democracy’ by challenging the right to rule of non-democratic regimes. Indeed, even within the domain of natural resources, Kuwait (for instance) is currently just ‘above the line’ in terms of minimal accountability to its citizens for resource decisions—and few would call Kuwait a democracy. Clean Trade is about power: about states ending their own contributions to the empowerment of unaccountable actors abroad.

Not Sanctions, Not Interference, the Opposite of Intervention

Stewart and Okowa worry about the effects of sanctions, and also raise concerns that a Clean Trade Act would amount to interfering with, or even neo-colonial intervention in, in the domestic affairs of other states. I share their concerns about sanctions, and I share their dismay at neo-colonial policies. Yet those worries are within the familiar old debates that accept the status quo—debates about foreign ‘state-building,’ and about Western military intervention to ‘build democracy’ abroad. Once we see what happens when states choose effectiveness, those old worries get turned on their heads. As Blood Oil says,

Determined action to reform the global resource trade must choose its tools wisely. The sharp-edged tool of military action to force democratic change is, as we’ve seen, not fit for this work. Even putting aside the efficacy of bombing for democracy, this is too much like the colonizing campaigns of the past to build the trust that the West now needs. Western nations should instead work to align their policies to fit their own principles— first by powering down their own destructive laws like effectiveness for resources. The first tools the West needs are not those for state-building; first turn off the West’s machines that are now state-razing.[11]

Let’s start with sanctions. Stewart and Okowa are right to be concerned about sanctions; but a Clean Trade Act is not sanctions. Sanctions aim to punish a specific enemy. A Clean Trade Act does not aim to punish anyone. Rather, it takes a principled stand for all people’s rights, across the board, for allies and adversaries alike.[12] The leadership of a country enacting a Clean Trade Act can say to foreign leaders,

‘We do not challenge any of you, as always we continue to recognize your right to rule your land. On matters beyond resource trade, our relations can go on as before. All we are saying is that we believe that we have no right to buy resources from you—no right, because by the principles that you and we both endorse, the owners of those resources cannot be authorizing their sale. By passing this Clean Trade Act we are building respect for the human rights of all peoples into our laws—the rights of the Saudi people, of the Russian people, of the Iranian people, of the Angolan people—the rights of all peoples, worldwide.’

Nor would a Clean Trade Act be an intervention, or an interference in the internal affairs of other states (much less would it be, as in Okowa’s more pungent descriptions, ‘coercive and intrusive,’ ‘subordination,’ ‘degrading tutelage,’ or ‘vigilante justice.’) In fact, the situation is exactly the reverse: it is our countries today who are doing the meddling. As Blood Oil explains, ‘It would be dark humor for any country with an effectiveness-based trade policy to charge a Clean Trade country with ‘political meddling.’’ To make such a charge, a leader of an effectiveness-based importing country would have to make a speech like this one:

‘Today, we choose to take Equatorial Guinea’s oil. In exchange, we choose to give hundreds of millions of dollars to a brutal dictator, knowing that the money will help him to keep power by paying for soldiers and secret police and torture chambers for political prisoners. However, if mercenaries are tempted by our money and can assassinate Obiang tomorrow, we will buy oil from whoever hired the mercenaries and assumes the presidency. We are not meddling in the politics of Equatorial Guinea. It is those who buy no oil who are meddling.’

This is not compelling… It is countries that send large sums to ‘whoever can be most coercive’ that are interfering in the internal affairs of other nations and meddling in their politics. Countries that refuse to send large sums to authoritarians and militias are the ones that are not interfering, not meddling.[13]

This is an important point, so let’s do a thought experiment to idea the point home.[14]

Saudi Arabia banned slavery in 1962—but imagine that it hadn’t. Imagine that Saudi domestic law today says that the Saudi state has the legal right to sell Saudi slaves to foreigners. In this case, should the United States set its domestic law so that Saudi slaves could be bought and owned within its own borders? That’s the equivalent of today’s rule of effectiveness for natural resources.

Now let’s imagine that the US has long had a law allowing Saudi slaves to be bought and owned within its own borders. And imagine that, after determined activism, the US then enacts a law banning the importation of Saudi slaves, and the sale of Saudi slaves on American territory. Would this new law be interfering in Saudi internal affairs? Would this law be a coercive and intrusive foreign policy, a neo-colonial intervention that manages Saudi Arabia from afar? Would it be an act of vigilante justice, subordinating Saudi Arabia to a degrading foreign tutelage?

I can’t believe that the commentators, or anyone today, would believe so. Nothing in international law (of recognition, or anything else) requires any state to change its laws to align with the laws of a state that sells slaves. Any country that has banned the importation of foreign slaves has merely aligned its own laws with human rights—with the human rights of all people to be free. And this is all that a country that passed a Clean Trade Act would be doing. Nothing in international law requires any country to align its own laws with the Saudi laws that say that the Saudi state has the right to sell off Saudi oil without accountability to the people. And in fact, the human rights treaties that nearly all states (including Saudi Arabia) have ratified affirm the rights of the people over their resources.[15]

It is true that the crime of slavery is worse than the theft of a nation’s resources. Yet there is a difference in the other direction too. Britain’s campaign to ban the Atlantic slave trade in the 19th century was a one in which the most economically advanced Western country imposed ‘its’ values on other countries. By contrast, the campaign for the legal recognition of popular resource sovereignty was a campaign of the Global South. Starting with Chile in 1952, it was ‘Third World’ states—against strong opposition from the West—that insisted on the legal principle that a country’s resources belong to its people.[16] The campaign for popular resource sovereignty was an anti-imperialist campaign waged by developing countries trying to resist the exploitation of their natural resources by Western corporations. The historic success of this campaign by the Global South can now be leveraged to advance the rights of all peoples today.

Both Stewart and Okowa rightly condemn neo-colonialism. Yet it is the status quo—which Okowa in particular defends so passionately—that is more vulnerable to this charge. It has often been noted that in the end the Western imperial powers were not so unhappy about ‘losing’ their resource-rich colonies, which had become troublesome and expensive to govern from afar.[17] The imperialists saw that after independence, they could still extract the natural resources that they wanted from the colonies, without having to bear the costs of rule them. They would just need their corporations to bribe the post-independence strongmen to get the resources—or their corporations might need to pay off armed groups when civil wars broke out.

In this history, Western imperialists were happy enough to see their colonial rule replaced by authoritarians, corrupt officials, and civil conflict—because their countries still got the resources out. ‘Independence’ merely reduced their expenses. Those who defend today’s status quo by endorsing the law of ‘might makes right’ must defend its interference in the internal affairs of resource-rich states, partly for the benefit of the former colonial powers.

Principles and Consequences

Passing a Clean Trade Act is a dramatic thing for states to do. Though implementation could be gradual, and good diplomacy will be essential, passing an Act will be a major change in international trade. Running through all the commentators’ remarks is an understandable concern about the consequences of making such reforms. Will it be worth it for states to make a stand on principle? Are there unintended consequences that might cancel out the benefits of making these reforms?

These are crucial questions. Blood Oil carefully considers the consequences of the policies it recommends, using the empirical literature to project those consequences as responsibly as possible. Yet the book also raises on one point. When we wake up tomorrow, our country will have a law in place saying who it’s is legal to buy natural resources from. Our choice is not ‘Clean Trade or not Clean Trade.’ Our choice is ‘Clean Trade or effectiveness.’ And those who choose effectiveness for tomorrow must also take responsibility for the consequences of their choice.

Here is a summary passage from Blood Oil, based on research by Michael Ross, that highlights a few of the consequences of the choice of effectiveness over the past forty years.

For forty years, oil states have been noisy distractions to the quiet successes of the developing world. While non-oil states have generally been getting richer, freer, and more peaceful, the oil states are no richer, no more free, and no more peaceful than they were in 1980. Many oil states have even gotten worse—Gabon’s average income fell by almost half over the quarter century from 1980; Iraq’s fell by a full 85 percent. Long internal conflicts have ravaged countries like Algeria, Angola, Colombia, and Nigeria. Two headline figures are that these oil states are 50 percent more likely to be ruled by an authoritarian government, and poorer ones are twice as likely to experience civil war, as non-oil states. The oil states are also more financially opaque and volatile on average than non-oil states, and… they allow women fewer opportunities to enter politics or to work outside the home.[18]

These are just some dimensions of the resource curse on exporting states. Those who endorse effectiveness for tomorrow must accept the consequences of their choice for the people of these states tomorrow. Indeed, we can expect these consequences now to get worse. Because of climate change, the oil-exporting states around the equator will be getting hotter, and hungrier, and thirstier, just as they go through a youth bulge and these regions fill up with more powerful explosive and drones. Those who choose effectiveness tomorrow must consider that their choice may bring a future that is even worse than the past.

More than this, it is vital to understand the range of reasons there are to abolish effectiveness for natural resources. When I speak to people in government in Washington and London, we mostly don’t talk about human rights. These conversations are all about national security. Effectiveness is not only bad for ‘them there.’ It also seriously threatens ‘us here.’ (This is the argument of Chapter 6 of Blood Oil, ‘Curses on Us.’)

Let’s head backward in time through the last forty years, and look for common factors in the West’s major foreign threats and crises. Recently we have seen Putin meddling in Western elections and invading a European country, Ukraine. From 2014, the Syrian conflict swelled a refugee crisis that fired nationalist populism in Europe. Next, think of ISIS, with its beheadings and its sexual slavery. Then Gaddafi, who sponsored terrorists from the Munich Olypics attackers to the Lockerbie bombers. Think of the terrorist attacks in London on 7/7/05, and in America on 9/11/01, which were planned by Al Qaeda. Before Al Qaeda, Saddam Hussein destabilized the Middle East  in 1990 by invading Kuwait and Saudi Arabia. Since 1979, the Iranian regime has funded militant groups from Hezbollah to Islamic Jihad. And going back to the 1970’s and 80’s, the Soviet Union posed the West with its greatest existential threat when it raced ahead in the nuclear arms race.

A lifetime of foreign threats and crises, with one common factor. All of these threats and crises came from states that export a lot of oil. Let’s agree right off that the West’s responses to the authoritarians and armed groups listed were often ill-advised and immoral. Yet, again, we also need to ask why the authoritarians and armed groups were there in the first place. (And, for Al Qaeda and other jihadist groups, where they derived their extreme, fundamentalist version of Islam.) Again, oil does not explain everything—it’s a complex world, and each threat and crisis has several causes. And yet, again and again, the foreign threats and crises in our headlines have emerged from oil states, and have been driven by unaccountable men empowered by the money that we as consumers have sent them.

The past forty years have shown that the West cannot contain the unaccountable power of oil from outside exporting countries, through alliances or invasions or sanctions. There is only one source of accountability over the power of oil and other resources, which is the people of the country, who live right there, on the ground, every day. Respecting popular resource sovereignty is the political solution for lifting the resource curse, on ‘them’ and on ‘us.’ When we wake up tomorrow, our countries will have a choice: Clean Trade or effectiveness. I accept the consequences of the law that I recommend.[19] Those who endorse continuing with effectiveness must also own the consequences of the law that they support. Tomorrow’s threats and crises will be on them.

While pressing for the abolition of effectiveness, reformers should be determined but never utopian. Stewart imagines campaigners who think, ‘once consumers refuse to purchase natural resources that are stolen from peoples, authoritarian governments will fall, resource wars will dissipate, poverty will decline and human beings will prosper.’ But that kind of thinking is unrealistic. As Blood Oil says,

Abolishing effectiveness for resources can start today, but it won’t be finished tomorrow. This won’t take sixty years, like abolishing the slave trade—yet resistance will be significant, and setbacks will happen.

And once more, the world is not monocausal or even oligocausal. Resources are something, but not everything… Even the best policies will fall far short of magic. The resource-diseased countries that we’ve studied, such as Saudi Arabia and Equatorial Guinea, have many weaknesses beyond resources; they may not become stable constitutional democracies even in the medium term. We should also remember that in many resource-disordered countries, corruption is not a fault in the system, it is the system—so changing the basic structure of governance will take time. More, there are many important global challenges—such as nuclear proliferation and banking secrecy— that resource reforms by themselves will not meet. The finale of our journey is not an earthly Paradiso; we press on.

Strategies for Progress

The campaign for abolishing ‘might makes right’ for natural resources faces significant challenges. This is not the work of a single day or year. Because the opposing forces are so entrenched, any successful campaign must move on several fronts at once. Which strategies will be best for reforming ‘the rules that run the world’?

Barry is a leading authority on supply chains and on consumer complicity in injustices abroad. He sets out the challenges of individual action for change, before going on to consider some alternatives. Barry says,

The natural approach would be to work together to bring about legal reform in our own countries so as to delink ourselves from non-clean trade.  As a claim about what we ought to do, this seems unobjectionable. However, the path from what we ought to do, to what I and other individuals reading his book ought to do, is an uneasy one. I cannot count on others doing what we ought together do in deciding how to act.  Indeed, the unwillingness of others to do what we ought to do may change what I ought to do.

Barry is here raising the familiar problem of the connection between individual action and collective action. Twenty years ago, your deciding to recycle would not, by itself, have changed anything about how your community dealt with trash. Today, your deciding to eat free-range or vegan food will not, by itself, change anything about how your country regulates factory farming. No individual’s action is decisive—and sometimes it seems as though no individual’s action can have an impact at all. And yet, when one looks at examples like these, individual actions have made (and we hope will make) all the difference.

The most compelling story of individual action turning into major reform is the abolition of the Atlantic slave trade, which I sketch in Blood Oil and which is told at length in Adam Hochschild’s magnificent book, Bury the Chains.[20] When individuals began to boycott ‘blood sugar’ harvested by slaves on British plantations in the Caribbean, the forces set against the end of the slave trade were much more powerful than the forces that might oppose Clean Trade today. And yet, they did it—individual by individual, the anti-slavery boycott, combined with campaigns on several other fronts, made the slave trade illegal, first in the British colonies, and then across all of the slave-trading empires.

It may seem that individual action cannot be efficacious against the forces set against it. Yet as these and many other examples show, reform efforts based on individual action have often succeeded. We can hope that climate change will be another case like this—that individual action to reduce emissions will be part of a global campaign that turns the world away from the dangerous trajectory that it is currently on. Individual action is never sufficient for success, but as history shows it is often necessary. We should not give up on individual action before the campaigns begin.

Barry considers some individual actions that seem less promising. For example, he wonders whether individuals could impose a tax on themselves for the proportion of their spending that is on natural resources from resource-cursed countries. As he says, this would be difficult to do. The world’s supply chains are elaborate and ever-shifting, and for oil in particular they are opaque. Oil and oil products are used in many links in the supply chain for any particular good. For consumers to work out for themselves what their tax should be is currently well-nigh impossible.[21] As Barry says, consumers could demand more transparency from companies. Yet for companies constantly to update the proportion of ‘clean’ oil used to make their products would require quite expensive changes in global business practices. There is also the question of how this information could be conveyed to consumers in a way that would be useful to them.[22]

Clean Trade takes a different approach. Instead of trying to follow the oil, it follows the money. For our campaign, we asked: where are the big oil companies making their profits from extracting oil? Clean Trade has done the numbers, and compiled them into a ranking that shows which companies are doing more business with authoritarian regimes. This ranking is now available on the Clean Trade website, as part of its ‘Weekend Freedom’ campaign. This campaign says, for drivers who fill up on the weekends and have a choice of branded stations, ‘Why not do business with a company that does less business with dictators?’ This will send a message to the oil companies that consumers notice when they make deals with regimes that keep their people from being free. (For drivers who are even more committed, the website notes that the index can be used to decide where to fill up, all week long.)

Ultimately, Clean Trade does aim at coordinated legislation among states, to make the legal transition from international resource trade based on effectiveness to trade based on popular resource sovereignty. Legislation is the ultimate goal for reasons that Le Billon spells out in his discussion of voluntary initiatives at the company level. There needs to be a legally-enforced ‘level playing field’ for companies, to keep defectors from gaining competitive advantage. Yet while legislation is the ultimate goal, it is a goal that often requires consumer and citizen pressure to achieve. This is why Barry’s discussion of individual action is so important.

One point on which Barry and I are in furious agreement is that, as he says, ‘We can surely limit significantly the degree to which we consume it and products composed of it. And it seems we should take on such costs, if that is really what it takes to refrain from putting lots of money in the hands of repressive regimes.’ I agree—and as I’m certain that Barry would also say, we should reduce our consumption of oil not only for the sake of human rights, but for the sake of the climate as well.

It is urgent that humanity reduces its use of oil—indeed, its use of all fossil fuels—as quickly as possible. The best way to end blood oil is to end the use of oil entirely. These two crucial campaigns can reinforce each other—we can have ‘win-wins’ for both.

The first step for devising such strategies is to make an honest assessment of where we are with fossils. Humanity must reduce its use of fossil fuels as quickly as possible—and this will take concerted action, because humanity today depends on fossil fuels for its energy. In fact, the reality is that humanity today is highly dependent. One doesn’t get a good sense of this from the news, where many stories are about the rapid advance of renewable energy sources. Renewables are indeed rapidly advancing—yet from a very low baseline. The sober fact is that today humanity gets 85% of its energy from fossil fuels. And, for all of the progress, all renewables combined today provide around 4%.[23] (For an analogy, add up some foods that you eat now that provide 85% of your calories, and also foods that provide 4% of your calories. It’s certainly possible for you to make a ‘food transition’ that would bring those percentages closer to even, yet this would take determined effort.)

Oil, and so blood oil, will still be used for some time. This is why we need reinforcing campaigns to limit emissions, and—as the 2015 Paris Agreement says—to limit them through a ‘just transition’ that respects human rights. Reducing the use of oil will reduce the unaccountable power in the hands of violent, corrupt, and coercive men in resource-cursed states—and reducing the power of those men will reduce the global instability that hinders further international coordination on climate. The climate and Clean Trade campaigns should offer each other significant arguments and initiatives that support each other.

In the ‘Green Trade’ section of Blood Oil, the following argument, based on the principle that ‘the oil belongs to the people,’ is offered to push faster action on climate:

Over half of the world’s oil production, and over half of the world’s oil reserves, cannot be exported without violating property rights. This oil is ‘stranded’ in the sense that no one can rightly sell it: it is stranded because it cannot be sold without passing stolen goods. On strict market principles, more than half the world’s oil is right now not available to be exported at all.[24]

This argument should be especially potent when directed at powerful international actors (such as corporations and Western governments) that have always taken the protection of property rights as a top priority. We now show them that respect for property rights requires that we not buy stolen goods, based on a principle of ownership affirmed in treaties that they have long pledged to respect. For those who valorize capitalism and the roles as ‘market actors,’ this argument shows that oil use must be reduced quite significantly, right away.

One argument will never be enough, so we should look for more ‘win-wins’ on climate and on human rights. As mentioned above, a Clean Trade Act in a country like the United States would lead to a modest increase in the price of gasoline, which would help to speed the transition to renewable energies.

And, as Barry suggests, consumers can do much too.[25] One current Clean Trade initiative is a campaign against ‘Blood Plastic.’ If something is plastic, then it’s oil—so purchasing it may be spending money that entrenches the worldwide resource curse. And especially destructive are single-use plastics, which stimulate continuous demand for oil and which often end up damaging marine environments. Consumers can take positive action on all of these fronts by saying, ‘Don’t use single-use.’ Skip the straw, bring your bag, steel your bottle—it’s not unrealistically demanding to avoid single-use Blood Plastic, and by doing this consumers can take a first step after which further steps will seem easier. (More campaigns, such as ‘Washed Clean’ and the ‘Toycott,’ are described in Blood Oil.[26])

And Clean Trade has more, reinforcing campaigns as well. As Le Billon suggests, legal strategies are promising. Clean Trade is currently pursuing legal complaints against international corporations that buy fossil fuels from the world’s most oppressive regimes. We are also hopeful for action in international litigation, where a democratic successor to an authoritarian regime could dispute an unfavorable resource contract by showing that the previous regime could not have been authorized by the owner of the resource (the citizens) to enter into the contract. We will also be pressing for investors and businesses to respect the human right of popular resource sovereignty, declared in treaties that they have already pledged to honor.

There’s so much that we can do, individually and together, on many fronts, to lift the world’s resource curse. Stewart, Okowa, Barry and I may have local disagreements about this issue or that, but I admire each of them, and in the end I take issue mostly with the strain of pessimism that sometimes creeps into their remarks. This is a tough time in politics, as we all know. But those who have come before us have endured worse, and have kept going, and eventually they have won over challenges larger than those we now face. As Blood Oil says, we have to see the world with both eyes at once. The world is much worse than it should be, but in many ways it’s much better than it was—because determined individuals took resolute action for positive change.

Which brings us back again to Simon Taylor, Charmian Gooch, and Global Witness. Whenever pessimism about the world and its future takes hold, one might remind oneself what Global Witness has accomplished already, against what seemed to be impossible odds. Progress is possible, tomorrow’s heroes are acting right now. The sober lesson is that progress does not come by itself—it does take a great deal of hard work, by individuals coming together and making common cause. Yet progress can come. There is much we can do today to make the world a better home for humanity tomorrow.


BP. 2018. BP Statistical Review of World Energy. 67th edition.

Adam Hoschchild. 1995. Bury the Chains: Prophets and Rebels in the Fight to Free an Empire’s Slaves. New York: Houghton Mifflin.

ICCPR. 1966. International Covenant on Civil and Political Rights. 999 UNTS 171.

ICESCR. 1966. International Covenant on Economic, Social, and Cultural Rights. 993.

Phoebe Okowa. 2013. ‘Sovereignty Contests and the Exploitation of Natural Resources in Conflict Zones’, in Current Legal Problems 66.1: 33-73.

Phoebe Okowa. 2007. ‘Natural Resources in Situations of Armed Conflict: Is there a Coherent Framework for Protection?’ International Community Law Review 9.3: 237-62.

James Stewart. 2011. Corporate War Crimes: Prosecuting the Pillage of Natural Resources. New York: Open Society Institute.

Leif Wenar. 2017. Blood Oil: Tyrants, Violence, and the Rules that Run the World. Updated edition. New York: Oxford University Press.

Leif Wenar.


. The Right of Peoples over Natural Resources. (available on request,

Leif Wenar, Michael Blake, Aaron James, Christopher Kutz, Nazrin Mehdiyeva, and Anna Stilz. 2018. Beyond Blood Oil. Lanham, MD: Rowman & Littlefield.

[1] Stewart 2011.


[3] For readers interested in more details and footnotes, shorter summaries of the book are now available. An open-access, policy-oriented summary is in the Progressive Review at A fuller summary is in the first chapter of the author-meets-critics volume, Beyond Blood Oil. Wenar et. al., 2018.

[4] In the US, sub-soil resources are often privately owned. This is compatible with the principle, insofar as the relevant authorities were minimally accountable when they passed the laws that allowed private acquisition of what were, up until then, publicly-owned resources.

[5] ICCPR, ICESCR, common Article 1(2). Stewart raises the important point that international law has also affirmed the rights of indigenous peoples to the natural resources of their traditional lands. These legal rights of national peoples and indigenous peoples are compatible. I say a little about this in Wenar 2017, pp. 198-200, and much more in Wenar [forthcoming].

[6] Okowa 2013, pp. 37-39.

[7] Wenar 2017, p. 81.

[8] Wenar 2017, p. 111.

[9] Okowa 2007, pp. 246, 257, discussing the doctrine of ‘permanent sovereignty over natural resources.’ I survey the current status of popular resource sovereignty in international law in a working paper, available on request (

[10] Wenar 2017, p. 285.

[11] Wenar 2017, pp. 276-77.

[12] Okowa worries that a Clean Trade Act would be a ‘witch-hunt’ that would ‘be a rallying point for political Islam.’ Currently, passing a Clean Trade Act would disqualify resource imports from, for example, Russia, Burma, Iran, Saudi Arabia, and Angola—countries of different world regions, with quite different histories, religious and ethnic compositions, and relations to the West. Okowa might need to spell out in more detail how her concerns might eventuate.

[13] Wenar 2017, pp. 296-97.

[14] This case is based on a parallel example inWenar 2017, pp. 119-20.

[15] Saudi Arabia is party to the Arab Charter of Human Rights, which affirms all peoples’ rights over their resources.

[16] Wenar [forthcoming].

[17] See Wenar 2017, p. 115.

[18] Wenar 2017, p. xv.

[19] The best question I’ve ever gotten when speaking on the reforms I advocate is whether I would still press for them were it my own life that would be sacrificed in the transition to a better world. My answer was, ‘of course yes.’

[20] Hochschild 1995.

[21] These problems with supply chains would not affect a Clean Hands Trust, as Barry suggests. To set up such a trust, an enacting state only has to know how much stolen oil is going into a target country. (This is easy to find out, as most internationally-traded oil is transported on huge tankers, already tracked by satellites.) The enacting state then simply collects the value of that stolen oil from duties on imports from the target country, and holds that money in trust. See Wenar 2017, pp. 289-91.

[22] There has been an attempt at a certification scheme to generate something like ‘Fair Trade Oil,’ but it seems not to have gotten traction so far. See Equitable Origins, EO100 Site Certification scheme

[23] BP (2018).

[24] Wenar 2017, p. 304.

[25] As Barry says, for instance, consumers can purchase a conflict-free Fairphone; gems guaranteed not to be taken from combat zones are also available at retailers like Brilliant Earth.

[26] Wenar 2017, p. 292.

A Clarion Call

Simon Taylor is the Founding Director of Global Witness, UK, Europe.  Simon’s areas of expertise include environmental sustainability, peace and human rights, and responsible supply chains.  Simon is increasingly focusing on climate change, with a particular interest in the way in which the fossil fuel industry has corrupted and co-opted global politics to such an extent that it has been able to prevent appropriate action to address the climate crisis.

Charmian Gooch is the Director and Co-Founder of Global Witness.  Charmian developed and launched Global Witness’s ground-breaking campaign to combat ‘blood diamonds’; Global Witness was nominated for the 2003 Nobel Peace Prize as a result of this work.  In 2014 Charmian was awarded the TED Prize, given to an ‘extraordinary individual with a creative and bold vision to spark global change’. In 2014, Charmian along with Global Witness co-founders Patrick Alley and Simon Taylor, received the Skoll Award for Social Entrepreneurship, awarded to ‘transformative leaders who are disrupting the status quo’.

Leif Wenar quotes Einstein “The specific problems we face, cannot be solved using the same patterns of thought that were used to create them.” He has embraced this quote with gusto and worked out, in a fascinating and detailed way, many of the ramifications of a complete shift in the way in which resources are traded.

We must be clear that Leif Wenar in Blood Oil, writes very positively, and at length about Global Witness, the organisation that we co-founded with Patrick Alley about 25 years ago. This included interviews – see Chapter 17 – and so readers of this blog might be forgiven for thinking we are perhaps biased towards his arguments. We have tried hard not to be and tried instead to distance our reading selves from both Leif Wenar and Blood Oil.

His Clean Trade Policy is a thought provoking way into a very complex problem. He is essentially arguing that the entire way that oil, and other resources are traded is morally untenable and must be changed to a more equitable approach to trade. He makes fascinating comparisons with the ending of the repugnant slave trade and points out that “many of the great movements for moral progress in the past three centuries have been morally simple. All humans should be free: the hard work was ending slavery.”

Anything which helps frame a path towards tackling the resource curse and associated corruption, conflict, grinding poverty, human rights and environmental abuses is to be welcomed. After the targets agreed at the UNFCC 2015 Paris Climate Agreement 2016 this is also a welcome conversation about how to get off fossil fuels as fast as is practical.

Leif Wenar’s focus on oil as the most valuable commodity traded across borders makes a lot of sense. Oil is so utterly ubiquitous – look around you and virtually everything within a 10 foot radius of where you are sitting has been produced from oil, made using oil or transported using it  –  so it can be very hard to imagine a future where the trading of it might look very different. Blood Oil frames a very different way of thinking about trade, the current inherent power relationships and how to change it. He has very detailed and well thought through suggestions for how to achieve that change.

Could it be considered a bit Panglossian? Well, yes in some ways but that is the easy way not to engage with an important argument. We could nit-pick and point out, for example, that USA oil independence has come at very high environmental cost. But Leif Wenar has anticipated many of the questions that the reader might raise and worked with other experts to address them. Global Witness has experienced that same sense of incredulity at an idea:  in 1999 it launched the call for oil companies to publish the revenues that they pay in the countries that they pay them as a simple mechanism to drive transparency and undermine the many facets of the resource curse. At the outset of this campaign people laughed at the naivety of this seemingly simple question. It has since gone on to become a global movement and an unstoppable wave of change despite industry fightbacks. It has also become very mainstream thinking.

The broad sweep of his argument is very compelling and his detailed recommendations are a really useful way to look at and understand the trade in oil and other extractives and their often appalling consequences at so many levels. It is a comprehensive clarion call for global change.

Wenar’s New Right to Democracy Through Peoples’ Sovereignty over Natural Resources

A substantial portion of the natural resources we consume are stolen. My own thinking about this problem emerged from the ground-up, so to speak, as I realised that certain atrocities I was involved in investigating for an international criminal tribunal almost two decades ago were facilitated by resource predation that was completely devoid of any legal authority. This initial sense of shock was later followed by an unwelcome realisation that the same was true for a substantial body of resource transactions in wars throughout the world, and that in large part, these realities represent a continuation of practices instantiated in colonialism. Initially, my scholarly work involved thinking about how the war crime of pillage might apply to these wartime transactions,[1] and after a long period away from the topic working on tangential themes, I am now completing a second project considering how using pillage of natural resources to address resource wars might bolster (or undermine) the passivist ambition behind the prohibition on the use of force in international law. It is a pleasure to host a discussion of Wenar’s overlapping work, and to present a set of criticisms that apply to my earlier thinking to some extent too.

Wenar’s book starts with similar intuitions to my own, but he takes matters in a narrower, broader then different direction altogether. His focus is narrower than mine in that he is preoccupied with the theft of oil and oil alone. Although many of his insights might be easily transposed to other natural resources, his analysis reasonably selects one of the most spectacular exemplars. Yet his focus is broader than mine because, even though he certainly takes resource predation in war into account and references plunder on occasion, his analysis is not tied to warfare in any meaningful way. On the contrary, Blood Oil is a text that highlights how deference to “might makes right” in international law enables the theft of natural resources the world over by conferring title in natural resources on whatever actor is able to forcibly control them. For Wenar, this control need not necessarily be achieved through warfare, providing his arguments with far wider normative sweep. By implication, Wenar’s project is considerably more ambitious than my own, but this comes at the price of increased exposure to arguments from a critical perspective that I hoped he might react to.

Blood Oil’s most significant contribution lies in its recourse to democracy as a solution to the underlying problem, indeed it may be that democracy is Wenar’s central pre-occupation. I have set out how Wenar gets to democracy through natural resources in my introduction to this symposium,[2] but I summarize my reading of that trajectory again here briefly. Reflecting earlier work in the philosophical tradition, Wenar argues that international law’s willingness to recognize political groups that forcibly acquire control over natural resource endowments makes international law complicit in the collapse of domestic institutions, the ubiquity of coup cultures, the predominance of patronage networks as forms of political governance, and the catastrophic consequences these phenomena entail for local populations. In his own words, “[r]ewarding violence with rights makes a nonsense of property.”[3] Doing so “violates rights on a massive scale, and it causes enormous suffering;”[4] and it undermines democracy since “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”[5]

Wenar’s solution is to turn international law against itself by formally insisting on the pre-existing rights of peoples to their natural resources in international human rights treaties, then declaring stolen resources that are alienated in violation of the four principles he announces to ascertain whether peoples have demonstrated meaningful consent to the sale of their resource wealth.[6] Through this method, he ties what he calls “bare-bones civil liberties and basic political rights”[7] to the ability of states to pass good title in resources harvested from within their territory. The implications of the legal construction he supports are stark: non-democratic states cannot sell natural resources. As Wenar puts it, “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”[8] Thus, peoples’ ownership over natural resources acts as a mechanism to ratchet up global democracy. Although much moral and political philosophy would support this goal, I here invite Wenar to reflect on analogies with areas of international law that also suggest the danger of important unintended consequences.

A perspective that draws on a critical history of international law seems particularly germane since international law has a long history of: (a) attempting to use international human rights law to leverage democracy; (b) making international recognition conditional upon a putative government’s democratic credentials; and (c) ostracizing communities from global trade based on their government’s deficiencies. I wonder, therefore, if engaging with this history alongside Wenar’s innovative new argument also reinforces the value of an intellectual dialogue between philosophy and international law.[9] At a certain juncture in this brilliant text, Wenar is critical of “international lawyers” as part of the problem. I want to disaggregate that group slightly by demonstrating some diversity of opinion amongst them and, in keeping with the focus of this blog, show how the history of international law offers different vantage points that may be intellectually useful to this global justice project. As I say, I am also motivated to ask Wenar to respond to criticisms that, to some extent, are also applicable to my own earlier work.

While Wenar is eager to undercut international law’s deference to “might makes right,” he simultaneously relies on international law in order to call pre-existing and legal the peoples’ right to natural resources he uses to do that work. Stated differently, instead of arguing for people’s rights over natural resources as a purely normative matter, he places important weight on his view that the concept is already instantiated in international human rights treaties. Doctrinally, that view sides with some international lawyers,[10] and plays down the very numerous references to states as owners of natural resources alongside peoples in international law.[11] More importantly though, I wonder if this deference to human rights doctrine leaves a core philosophical question unanswered. Since reading his excellent book, it has struck me that on the normative plane, the distinction between states versus peoples as owners of natural resources may boil down to a contest between rule of law and democracy as primary objectives. Thus, I wonder if readers might benefit from a leading moral and political philosopher’s assessment of whether rule of law is a more viable target to shoot for in the global resource sector.

Relatedly, what constitutes a “people” for Wenar’s theory is of major importance. This is particularly true if the contest between states’ and peoples’ ownership over natural resources overlooks indigenous rights to resource wealth within established nation states.[12] The United Nations Declarations on Rights of Indigenous Peoples stipulates that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Likewise, an important body of caselaw is developing within human rights bodies affirming indigenous rights to natural resources.[13] Thus, I wonder if treating “peoples” as an abstraction leaves unaddressed a whole set of questions that will likely be crucial to an indigenous perspective on these questions, such as how to understand indigenous ownership of natural resources as against majoritarian preferences within the post-colonial state, and equally importantly, whether using self-determination to affirm peoples’ rights to natural resources also enables political autonomy.[14]

As for democracy, Wenar’s work has important analogs in international law’s attempts to promote democratic governance, which might also assist his work. Wenar’s use of people’s ownership of natural resources to promote global democracy is interesting and novel, but the method itself has a long pedigree. In 1992, for instance, Thomas Franck wrote an especially influential article entitled The Emerging Right to Democratic Governance, wherein he too appealed to aspects of international human rights law to bolster democracy building.[15] Whereas Wenar draws on the peoples’ right over natural resources contained within the human right to self-determination, Franck used a range of different civil and political rights in the construction of his equivalent. Self-determination was certainly one of Franck’s emphases, but in addition, he pointed to freedom of expression in human rights treaties, the right to a participatory electoral process in the Universal Declaration of Human Rights, and the right to peace enshrined in the UN Charter.[16] The particular human rights Franck and Wenar employ partially overlap, but their strategies are more or less identical.

In Franck’s earlier iteration of the argument, the risks of imperialism were a central concern, so I wonder how Wenar would address these risks. While Franck wrote between the fall of the Berlin Wall and September 11, when all things seemed politically possible, much of his article was dedicated to tempering the anxiety that this new right to democratic government would turn out to be a trojan horse for neo-colonialism. Franck couched this worry in international law terms too, by exploring how the imposition of democracy might transgress the international law norm of non-interference in the domestic affairs of a state.[17] As we will see, that countervailing principle offers something of a push-back to projections of political uniformity globally. For Franck, his democratic norm ultimately sailed on the safe side of these rocks in ways that may be helpful to Wenar’s argument, but as a reflection of the relative diversity of opinion in the field, other international lawyers saw far greater peril. Martti Koskenniemi, for instance, called the argument “messianic,”[18] objecting that it amounted to “a call for contextual management of far-away societies in reference to Western liberal policies.”[19]

In a similarly critical spirit, Susan Marks’ review of the whole democratic entitlement movement in international law warned that “dire consequences” could follow when legitimacy is denied non-democratic states.[20] Her concern that the deployment of human rights as a mechanism for pro-democratic intervention might end up having predominantly negative, even dire, effects points to a second important theme I take up momentarily. For now, it is sufficient to summarize that Wenar’s use of human rights to generate democratic entitlements is anticipated in international law, that his intellectual predecessors were seriously preoccupied with the potential pitfalls involved in implementing the right, and that a major segment of international law scholarship criticized the endeavor as counterproductive. This history raises the interesting question whether Wenar’s new hook—natural resource ownership—can transcend these concerns and the politics that caused a rise and then fall of this very similar agenda at a point in history that was probably more amenable to the project.[21]

Beyond just human rights norms, the international law governing recognition offers a second parallel that might provide helpful insight. After all, it is the doctrine of recognition in international law that sustains the “might makes right” principle Wenar rightly views as a cause of so much suffering. In addressing this issue, Wenar views Western conferral of privileges over resource endowments to foreign authoritarian regimes via the international law of recognition as one of the primary means by which the West causes global poverty. To paraphrase the argument, Singer’s child drowning in the puddle is not the appropriate metaphor for our obligations vis-à-vis the global poor because we placed and maintain the child in the puddle, in part because our international laws of recognition confer warlords with title in natural resources.[22] To my mind, this critique of recognition likely misses the clearer ways the West causes poverty and fails to engage with the competing values recognition seeks to balance. Even if the doctrine of recognition is unquestionably a causal influence on this deplorable state of affairs, the deeper question is whether it is a necessary evil in the ugly world we find ourselves in.

In practice, states have waxed and waned in their willingness to make democratic credentials prerequisites for their recognition of foreign states and/or governments. In 1907, the Foreign Minister of Ecuador, Carlos Tobar, announced that his government would not recognize any entity that came to power through extra-constitutional means.[23] In 1913, President Wilson formally adopted this doctrine too, then employed it for the better part of two decades to withhold recognition from various would-be governments in South and Latin America.[24] By 1932, however, the practice of making recognition conditional on forms of government, democratic or otherwise, had fallen from favour.[25] Recipient states viewed the practice as a hypocritical violation of the principle of non-intervention in domestic affairs, since no government could trace its lineage to an unbroken line of democratic legitimacy.[26] And most significantly, withholding recognition from non-democratic regimes created a two tiered system; one within the bosom of international law and the other a group of pariahs. Quite apart from replicating standards of civilization, this bifurcation robbed states of a legal framework for governing their inevitable dealings with non-democratic regimes.[27]

In theory, the scholarly literature on recognition is extensive and diverse, but some of the leading scholars are also reluctant about treating democracy as a sine qua non for recognition in international law. Brad Roth, for instance, concludes his masterful treatment of these issues by arguing that “the absence of a meaningful ‘democratic entitlement’ in the international system ought not to be lamented; though superficially attractive, assertions of a new ‘democratic’ legalism pose serious dangers to international peace and security, and even to democracy itself.”[28] I provide a concrete illustration below, but I want to pause to bring the practice and theory of recognition together to show how they offer a significant contribution to the more recent philosophical projects focused on global justice. The combined effect of this international law theory and practice is that, whatever one might think of the underlying argumentation, the supposition that “might makes right” is an evil to be overturned likely requires a supplemental inquiry into whether the alternative might make matters even worse.

These concerns become particularly apparent if we turn to international law’s experience with sanctions. The assumption in Wenar’s great book (and sometimes in my own earlier thinking) is that once consumers refuse to purchase natural resources that are stolen from peoples, authoritarian governments will fall, resource wars will dissipate, poverty will decline and human beings will prosper. I have come to wonder if this logic mimics early thinking about sanctions in international law, where international institutions pressured whole societies in an attempt to coerce their uncooperative governments to comply with international law obligations. Significantly, experience has shown that depriving local populations of access to global markets because of their government’s intransigence can have debilitating effects for local peoples, without necessarily changing their government’s behavior as desired.[29] In fact, sanctions’ social, physical and psychic impact could even rise to the level of a crime against humanity in certain circumstances. The question is, could these unintended side-effects also flow from attempts to coerce democracy, thereby providing an illustration of the “dire consequences” and “dangers to international peace and security, and even to democracy itself” that critics have warned about?  

This brings me to two final queries about this highly original, brilliantly written, hugely important book. Perhaps the fact that this new project focuses on natural resources offers a point of differentiation with all that came before in international law, which will allow it to steer clear of some of the objections I share here. Likewise, an appeal to consumers directly could possibly bypass international law and the politics that undergird it, to better achieve the enormously important goals Wenar seeks to promote. Both these questions strike me as valuable further inquiries that could be helpful to those who are for or against the new form of promoting democratic entitlement globally that Wenar has developed. In this spirit, it is a real pleasure to host Wenar’s work on this blog, which I constructed in a bid to promote exactly this type of critical but respectful dialogue about aesthetically pleasing, paradigm shifting work in the service of crucially important values.

[1] See Corporate War Crimes: Prosecuting Pillage of Natural Resources. See also,

[2] See New Symposium: Leif Wenar’s Blood Oil: Tyrants, Violence and the Rules that Run the World.

[3] Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World 73 (1 edition ed. 2015).

[4] Id. at 334.

[5] Id. at xlviii.

[6] Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs). Id. at 227.

[7] Id. at 228.

[8] Id. at 229.

[9] For the leading scholarly work in this spirit, see Steven R. Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (1 edition ed. 2015). A mini-symposium on his book is online here.

[10] See, for instance, Emerka Duruigbo, Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law, 38 Geo. Wash. Int’l L. Rev. 33 (2006).

[11] In reviewing this doctrinal question many moons ago, my own work drew on much scholarly literature, General Assembly Resolutions and treaty provisions. To cite an example of the last of these, Article 21(1) of the African Charter on Human and Peoples’ Rights states that “[a]ll peoples shall freely dispose of their wealth and natural resources,” whereas Article 21(4) of the same treaty indicates that “states parties … shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 56-60. My own review concluded that “given that permanent sovereignty over natural resources vests in both peoples and states, the doctrine can arguably be relevant to pillage cases in either scenario.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, para. 58.

[12] See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 61-65.

[13] Ibid.

[14] Karen Engle shows how concerns about encouraging political self-determination among indigenous peoples led states to recognize but limit self-determination during the negotiation of the UN Declaration on Rights of Indigenous Peoples. See K. Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, 22 Eur. J. Int. Law 141–163, 144–148 (2011).

[15] Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992).

[16] Ibid.

[17] Ibid, at 68.

[18] Martti Koskenniemi, Legal Cosmopolitanism: Tom Franck’s Messianic World, 35 N. Y. Univ. J. Int. Law Polit. 471–486 (2002).

[19] Martti Koskenniemi, Intolerant Democracies: A Reaction Responses, 37 Harv. Int. Law J. 231–234, 233 (1996).

[20] Susan Marks, International law, democracy, and the end of history, in Democratic Governance and International Law 532–566, 565 (Gregory H. Fox & Brad R. Roth eds., 2000), (last visited Feb 27, 2019).

[21] J. d’Aspremont, The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks, 22 Eur. J. Int. Law 549–570 (2011).

[22] Thomas W. Pogge, World Poverty and Human Rights (2008).

[23] Ti-chiang Chen, The International Law of Recognition, with Special Reference to Practice in Great Britain and the United States 108 (1951), (last visited Nov 9, 2016).

[24] Ibid.

[25] Id. at 108.; d’Aspremont argues that there was a resurgence of democracy as a criteria for recognition after the 1990s. See Jean d’Aspremont, L’Etat non-démocratique en droit internationalion: Etude critique du droit international positif et de la pratique contemporaine (2008).

[26] Chen, supra note 22 at 108.

[27] Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, 48 Int. Comp. Law Q. 545–581, 568–570 (1999).

[28] Brad R. Roth, Governmental Illegitimacy in International Law 413 (1999).

[29] See, for example, The Sanctions Decade: Assessing UN Strategies in the 1990s, (David Cortright & Lopez, George A. eds., 2000); Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (1 edition ed. 2007).

Ending the Tyranny of Anonymous Commodities: Trade Rules Can End the Laundering of Stolen Goods and Improve Governance in Producing Countries

Philippe Le Billon  is Professor at the University of British Columbia with the Department of Geography and the School of Public Policy and Global Affairs.  His main research areas include the political economy of war, the governance of primary commodity sectors, and illicit financial flows.

Every day, consumers worldwide spend about US$11 billion on oil products. For those controlling its flow, oil provides a concentrated revenue stream without equal and a source of enormous social power. Economic development in the twentieth century owes much to the cheap and flexible energy that an expanding flow of oil has provided. But this development has come at a high price, especially for people in producing regions.[1]

Turning oil wealth into broadly based social development is a massive challenge for producing countries. Oil-field development requires large capital investment but creates relatively few direct jobs. Developing ‘through oil’ thus largely relies on the capture and allocation of oil revenues. While oil earnings are generally impressive, they are also highly volatile and often negatively distort the rest of the economy. Too often, oil wealth also disproportionately ends up with ruling elites and foreign corporations, despite oil being in most cases “public property.” These challenges require sound long-term policies, robust and accountable governance institutions, and a diversified economy able to withstand the effects of windfall. Yet oil wealth can work against these requirements by fuelling short-term populist policies or unrealistic long-term plans, concentrating rather than diversifying economic activity through overvalued currency and labour-market distortions, and weakening instead of consolidating institutions through corruption, bloated bureaucracies, as well as entrenched patronage and patriarchy.[2]

These challenges are often compounded by the destructive will and personal interests of rulers in oil producing countries. Oil wealth can sustain tyrannies by breaking the link between taxation and representation, supporting belligerent autocrats, and securing the support of foreign powers eager to selectively maintain rulers for the sake of oil supplies and lucrative contracts. In some of the worst cases, oil wealth sustains chronic insurgencies and enables aggressive leaders to take their country to war.[3] Not only is oil stolen from its rightful owners, the people, millions can die as a result of its proceeds being spent by corrupt and incompetent rulers.

Hundreds of scholars have examined these effects, including lack of accountability of resource-fuelled autocrats and rebels, the complicity of corporations and consumers, and the blowbacks resulting from dealing with resource-rich autocrats. In turn, the fair-trade movement, blood diamond & conflict mineral campaigns, and repeated UN embargoes have all pursued (at least in principle) the goal of reducing the suffering arising from the violence of commodity production, unaccountable supply chains, and abuses of power by commodity-funded rulers.

With ‘Blood Oil’, and the advocacy associated with the book, Leif Wenar raises further public awareness on these problems, and squarely puts international law governing commodity trade on the policy agenda. Wenar’s core argument is that ‘might makes right’ still constitutes the foundational norm of commodity trading: Whoever controls a country can sell its resources. His main call is thus to put an end to the unlawful control of resources by illegitimate and unaccountable rulers. The core solution, for Wenar, is a Clean Trade regime vigorously implementing a more expansive and robust definition of ‘stolen goods’.

The idea of restricting trade to ‘clean commodities’ is not novel, but such restrictions have so far fallen short of a systemic redrawing of trade rules around exporting regime characteristics. Campaigns on diamond trade first targeted the apartheid regime in South Africa before moving on to blood diamonds sustaining rebellions in Angola and Sierra Leone; yet the ‘Kimberley Certification’ scheme failed to move beyond rebellion to cover human rights and environmental abuses. Civil society organizations have also rallied against specific commodity exports, but these campaigns have generally targeted the complicity of individual western companies, rather than the resource ownership of rulers in exporting states. The United Nations Security Council imposed commodity sanctions in at least 26, though mostly on rebel groups rather than governments. Individual governments, and most notably the US, have also imposed unilateral sanctions on specific regimes, but selection criteria had more to do with US ‘national interests’ than with the security and well-being of population in exporting countries. More systematically, several schemes have attempted to limit commodity exports to those matching norms of good governance, but these have looked at practices within specific sectors, rather than the type of regime and the record of rulers in exporting countries.[4]

Overall, commodities still remain largely anonymous when it comes to their rightful owners and social impacts. This has no place in the workings of 21st century commodity trade; when so many traceability instruments and information channels are available to inform authorities and consumers about the provenance and impacts of commodities in producing countries. Voluntary instruments are likely to remain limited in their effectiveness, precisely because they are working in a competitive market characterized by an uneven ethical playing field. While some companies may see an interest in ‘clean-sourcing’, many will continue to look at the bottom line. More specifically, the oil market is relatively fluid, and do-gooders will carry the brunt of price differentials for ‘fair oil’ while others will reap the benefit of lower prices for ‘stolen oil’. State-led public policies on sourcing would be more effective, but decisions would come under pressure from many other dimensions, including supply security, affordability, and geopolitical concerns – reproducing many of the distortions observed for UN Security Council sanctions. The best avenue may rest in the legal domain: when claimants can get compensation for having their goods stolen by their illegitimate rulers, and corporate intermediaries in the receiving of stolen goods can be deterred through extensive fines. Corruption by international companies has not come to an end, but some progress has been made since heavy fines and costly reputational damage incentivized companies to change their practices.[5] The same can occur with stolen goods.

[1] Bridge, Gavin, and Philippe Le Billon. Oil. John Wiley & Sons, 2017.

[2] Ross, M. (2012). The oil curse: how petroleum wealth shapes the development of nations. Princeton University Press.

[3] Le Billon, P. (2012). Wars of plunder: Conflicts, profits and the politics of resources. New York: Columbia University Press; Colgan, J. D. (2013). Petro-aggression: When oil causes war. Cambridge University Press.

[4] Le Billon, P., & Nicholls, E. (2007). Ending ‘resource wars’: Revenue sharing, economic sanction or military intervention? International Peacekeeping14(5), 613-632; Carisch, E., Rickard-Martin, L., & Meister, S. R. (2017). Commodity Sanctions. In The Evolution of UN Sanctions (pp. 111-132). Springer, Cham.

[5] Samanta, S., & Sanyal, R. (2016). The Effect of the OECD Convention in Reducing Bribery in International Business. Global Business and Management Research8(1), 68; Arbatskaya, M. N., & Mialon, H. M. (2017). The Impact of the Foreign Corrupt Practices Act on Competitiveness, Bribery, and Investment. Available at SSRN:

Blood Oil: A Plea for Progressive Reform or a Philosopher’s Utopia?

Phoebe Okowa is Professor of Public International Law at Queen Mary University of London.  Her teaching interests are in the broad area of Public International Law, especially the law of armed conflict, international environmental law and international criminal law.  She has been a Visiting Professor at New York University School of Law, University of Lille and Stockholm. A member of the Permanent Court of Arbitration, she has advised Public Sector Organizations on questions of Public International Law and served as a member of the IUCN Committee on Environmental Law and the International Law Association Committee on Transnational Enforcement of Environmental Law.

This is an important book. Although not the first to document the extreme deprivation that exists in countries abundant with natural resources or the kleptocratic manner in which those in authority enrich themselves at the expense of their populations, it is to my knowledge the first to offer a systematic explanation of our collective complicity as citizens in this kleptocratic enterprise. The existing literature whether by international lawyers or political scientists, have largely documented the complicity of governments and large corporations in atrocities perpetrated by autocratic and unaccountable regimes as well by rebel groups; collectively, these groups have been able to inflict unimaginable misery on political communities, domestic and international through revenues generated by natural resources.  The first part of this book is largely confirmatory of the themes in the existing body of literature that have explored the predatory and destabilizing role of natural resources in perpetuating autocracy, religious intolerance, mass human rights abuses and general global insecurity.  But this is not a rehearsal of well–trodden arguments or sweeping generalizations. The book is meticulously researched and backed by impressive data as evidenced by the detailed account of the extensive abuse of power by President Obiang of Equatorial Guinea, a country and a president not usually the stuff of headlines! But it is not just explanatory of the pernicious effects of natural resources especially oil.  The book postulates an agenda for change, a plea for responsible citizenship that would require individuals in rich countries to give up their dependence on oil from repressive regimes, loosely categorized as those governments that are in not in any way accountable to their populations especially natural in resource matters.

Thematically this review is by no means comprehensive and in many ways reflects my own disciplinary biases as a public international lawyer.  However, it is probably a good area to focus on because from the outset, the author does not hide his disdain for the normative framework of international law and its supporting institutions.  He is particularly critical of international law’s broad acceptance of governments’ ‘effective control’ as the basis of authority and it’s concomitant failure to give substance to ‘popular sovereignty’ in natural resource transactions. Broadly, he sees international law’s unquestioning acceptance of ‘effectiveness’ as being in conflict with its commitment in international treaties, that the resources of a territory belong to its people. Moreover drawing on examples from domestic law, he points out the inherent contradiction in a system notionally committed to the rule of law also sanctioning a power structure characterized by ‘might is right’. The Putin’s, Obiang’s or Gaddafi’s are able to sell oil because by the rules of the system they are the recognized depositaries of public power, free to dispose of the natural resources of their territories even in the absence of tangible benefit to the populations themselves. Put crudely that international law itself sanctions the theft of natural resources by odious regimes from citizens who rightly own it.

It is true that international lawyers have long accepted that in general ‘effective control’ not democratic legitimacy or popular sovereignty is the basis of authority in international law. This is not because they would not prefer things to be otherwise – international law has never claimed that this it is a just or morally defensible rule, but it is a rule the reflects an acceptable compromise between the twin demands of justice and order in a pluralist community of states. It also a nod to the reality that co-operation and peaceful co-existence may in fact entail a considerable degree of deference to governance structures that are plainly undemocratic.  Few would disagree that effective control is in fact the bedrock on which, however imperfect, the present system of international peace and security rests.  The values that underpin Wenar’s plea for change have in fact been considerably undermined in post Gaddafi’s Libya or Saddam’s Iraq by misguided attempts to create a more democratic and accountable framework of governance, and to prioritize the demands of justice. To be clear, he is adamant that his is no call for pro-democratic intervention, but the coercive and intrusive economic measures advocated for in his Clean Trade Act would in each case have an effect, potentially as catastrophic as the military interventions in Iraq and Libya but this time affecting a multiplicity of regimes and millions of citizens. There are good reasons why the strictures on intervention are not limited to use of force but extend to all forms of economic and political coercion, especially when intended to bring about regime change.

There is also the deeply troubling fact that we live in an international system characterized by profound political inequality and in which the United States and the United Kingdom have played a pivotal role in the marginalization of states from the Global South, and have themselves been complicit in propping up some of the most repressive governments that emerged during the cold war period. Against this backdrop, any proposal of oversight by citizens of these same countries plays straight back into the narrative of subordination, a civilizing mission in all but name.  Moreover, it is surprising that not much thought is given in the book as to how those likely to be destabilized by the proposed system of boycott may react to them; for to have any veneer of legitimacy it must act at least in concert or with the the tacit approval of those with a stake in the system.  Congolese artisanal miners as the doomed US legislation (Dodd Franck 2010) indicates or Nigerian citizens dependent on oil revenue are unlikely to take very kindly to system of degrading tutelage overseen by American or British consumers, deciding when best to buy oil from their governments and when to retreat. Wenar’s remedial proposal has all the hallmarks a citizen sanctioned system of vigilante justice, without oversight or any form of accountability to the populations likely to be affected. Moreover, it assumes as a matter of fact that the citizens of rich nations, empowered to exercise oversight will act on principle free from bias or the influence of domestic partisan interests. The Dodd Franck conflict mineral legislation introduced in 2010 was designed to prevent US corporations from buying conflict minerals that were fuelling violence in the DRC is swiftly being reversed by the Trump administration not because of its devastating socio-economic impact, as the de facto boycott of Congolese minerals took hold, but because it puts US companies at a competitive disadvantage in the international market.  The litigation in US Courts challenging the Dodd Franck Act was singularly concerned with the first amendment rights of American corporations and the livelihoods of local stakeholders impoverished in the wake of its implementation has played no role at all in the formulation of American policy.

There in are fact good reasons why all legal systems including international law, generally frown on self-help, and when sanctioned, only as a most exceptional measure, and subject to important humanitarian safeguards. In the absence of adjudicatory structures of oversight, self-help quickly degenerates into an institutionalized system of witch-hunt against so called ‘pariah states’. The systematic boycotts proposed in the book, to the extent that it will be directed at largely oil producing Islamic states will if nothing else be a rallying point for political Islam and the attendant security implications.

The Nigerians, Venezuelans, or Saudi’s may wish for a more just and democratic framework for the distribution of oil revenues but arguably not at the expense of their own dignity and integrity as sovereign peoples. The futility of prolonged economic sanctions in Iraq and their effect in helping Saddam Hussein consolidate his hold on power, as an Arab hero resisting the forces of neo-colonialism, is a cautionary tale against attempts to bring about political change through external economic coercion. In the form outlined, Wenar’s Clean Trade Act sits rather uncomfortably with the sovereign equality of peoples and the overriding imperatives of maintaining peace and order. This is not to say that states must do as they please or that we must always look the other way, but any forms of pressure brought to bear must be consistent with the bedrock principles on which our shared security rests. A targeted campaign of boycott with a declared objective of regime change, even if that change emanates from the people themselves must also recognize that is a course of action potentially destabilizing the very communities it is meant to protect.

Blood Oil and the Individual Consumer

Christian Barry is a Professor of Philosophy in the Research School of the Social Sciences at the Australian National University. His areas of expertise are moral and political philosophy, with a focus on issues of international justice.

At the beginning of his inventive masterwork Blood Oil  Leif Wenar tells a compelling story about how individual consumers are implicated in severe harm abroad. We are accustomed to the depredations of authoritarian regimes, civil conflict, widespread human rights violations and extreme poverty far removed from our day to day activities. We can ring our hands and shake our heads, but what do we really have to do with any of these happenings? And given that we have little to do with them, how much cost can we actually be expected to take on to try to mitigate them? Wenar grabs us by the lapels and shakes us from such acquiescent patterns of thinking. He argues that we are contributing to many such harms, and doing so directly though our everyday purchasing behavior. We are not, as we suppose, innocent bystanders, but are unwitting contributors to death and terror, filling the pockets of merciless men who steal their countries’ resources and terrorize their populations (xvi) when we fill our tanks and do our shopping at the local mall.

While the casual links between individual consumers and these harms may be long and complex, the mechanisms that hold them together are, on Wenar’s telling, surprisingly simple. The problem is that trade is governed by “an archaic rule of international trade that violates the most fundamental rule of capitalism: to protect property rights.” This archaic rule is what Wenar calls effectiveness. The content of this rule is that “coercive control over a population (“might”) will result in legal control over that population’s resources (“right”)(xlv). Basically, “whoever can seize it may sell it” (76). Effectiveness creates powerful incentives for people to take and maintain control over resources, which explains why so many resource-rich countries suffer from social and political dis-function. And it is because of this rule that the money we spend at filling stations and on consumer goods goes back into the pockets of oppressive rulers and fuels intense and violent competition over the control of resources.

Yet while Wenar confronts individuals directly for their role in this deeply unjust system of trade, the reform proposals he offers are not things that individuals, qua individuals, can do. Rather, they focus primarily on what states can do to make their trade governed by the principle of popular sovereignty over resources, rather than effectiveness (‘might makes right’). That is, states must cease to engage in trade in resources with governments that fail to meet even quite minimal standards of legitimacy—a Clean Trade Act (283). And they must impose tariffs on goods imported from countries that use resources from such regimes as inputs to their production, with the funds held until they can be returned to the exporting countries once their governments are legitimate—a Clean Hands Trust (289).

Supposing that Wenar’s analysis of what states ought to do—adopt Clean Trade—is correct, where does this leave the individual consumers with which he begins? One answer might seem straightforward: individual consumers should join together to bring about the changes in the policies of the states that represent them to comply with the norms of Clean Trade. Wenar points out that it is only because our domestic legal regimes treat despotic regimes as entitled to sell their countries’ resources to us, and because they protect out property rights in the things we buy involving such resources, that the archaic rule remains in place. It is our governments that identify which foreigners possess legal rights to sell foreign resources to us, and were they to suspend such rights (as in the case of the executive order targeting Sudan) we could not purchase them (106, 108). So the natural approach would be to work together to bring about legal reform in our own countries so as to delink ourselves from non-clean trade.

As a claim about what we ought to do, this seems unobjectionable. However, the path from what we ought to do, to what I and other individuals reading his book ought to do, is an uneasy one. I cannot count on others doing what we ought together do in deciding how to act.  Indeed, the unwillingness of others to do what we ought to do may change what I ought to do. If it turns out that the concerted action of willing individuals will be highly unlikely to bring about the reforms Wenar proposes, where does that leave us? This is not an idle question. Although Wenar carefully shows how his reforms may be incentive compatible, there are also, he notes, very powerful interests that would be mobilized against them (230). Certainly, no major political party in any Western country has made trade reforms of this type part of their agenda, and it is hardly obvious that this will change in the near future.

Note that the kind of responsibility that Wenar has attributed to consumers—not to contribute to harming innocent people and stealing resources that belong to them—is quite stringent. We cannot easily excuse ignoring this responsibility by appealing to the costs to ourselves of doing so, or to other valued moral ends that our conduct will bring about if we act against it (as Wenar details, existing trade generates great benefits, as well as harms, which might be diminished with reduction in trade volumes (x). So throwing up our hands in frustration at the unwillingness of others to help bring about the desired institutional reforms while getting on with our ordinary business is not, on this reasoning, an option. Nor would the option of supporting Clean Trade policies that we are confident will not be adopted now or in the near future seem sufficient. One option would be for individuals to withdraw from involvement in trade with countries that do not practice popular resource sovereignty. Wenar suggests that this is not really feasible. He notes that it is nearly impossible to function in modern societies without using petroleum-based products (xxxvi). But this argument is not entirely convincing. While it may be true that we can hardly avoid consuming oil, we can surely limit significantly the degree to which we consume it and products composed of it. And it seems we should take on such costs, if that is really what it takes to refrain from putting lots of money in the hands of repressive regimes.  So at the very least his argument would seem to trigger a quite stringent responsibility to reduce consumption—an implication he does not explicitly embrace in his book. Alternatively, individuals might seek to avoid consumption of oil from at least those countries that do not embrace popular sovereignty over resources. Wenar is skeptical that we can do this either, noting that the supply chains involving such products are too complex and intertwined.  But should we accept that it is really impossible to gain more information about where the oil we consume is from? Would it not be possible for citizens to start to demand such information from firms that sell goods to them? Pressure of this sort might be difficult to generate, but arguably much less difficult than bringing about substantial institutional reform. And as Wenar there are example campaigns such as ‘publish what you pay’ that are at least encouraging in this regard. There seem certainly to be some instances in which we can shift from non-clean trade to clean (or at least cleaner) trade, such as when a new product like the FairPhone appears that is functionally equivalent to other mobile devices without involving components sourced via non-clean trade. Wenar claims that “it’s difficult to imagine being a Fair Trade consumer of oil”, but surely individuals can at least do a bit better than they do at present. Moreover, skepticism about the ability to learn more about the province of goods and services sits somewhat uncomfortably with Wenar’s own proposal of a Clean Hands Trust, which requires that we return funds to exporting countries once their governments restore popular sovereignty over resources. How would we know what we should return to whom unless we are able to track, at least roughly, where the inputs to consumer goods are coming from? His own proposals seem to depend on the feasibility of reliable schemes of certificates of origin (409).

When it comes to the stringent responsibility not to contribute to severe harm, acting contrary to it triggers a requirement to take on quite significant costs to address the hardships of the victims. So if it is infeasible to withdraw from involvement in non-clean trade, this seems to trigger quite demanding duties to address their effects. How should such duties be discharged? All things being equal, individuals should take action in the manner that is most likely to remedy the most amount of harm. One possibility will be to take on cost to support Wenar’s proposals. We can vote, lobby, contribute to those who are seeking to bring about these changes. But if the forces allied against such changes seem unlikely to be overcome, what individuals should do may diverge considerably from what we together should to. I ought to orient my efforts where they will have the greatest chance of success. What alternative strategies might I take? Some of these are already suggested by Wenar’s proposal at the state level. We as individuals could self-impose a tax on goods that come to us through non-clean trade. Ideally, these funds would not be held in trust, but rather directed back to those harmed insofar as there is any chance this would do any good. While I have been speaking of individuals, there is no reason they cannot join together with like-minded others to create organizations that pool such resources and acquit them responsibly.

Blood Oil is an important work, and individuals need to think seriously about what they ought to do in light of its analysis given the many obstacles to the adoption of the far-reaching policy reforms that Wenar defends in this work. Failing to take action as individuals while waiting for institutional reform has another disturbing implication—those who continue to harm innocent people and steal their property become liable to being harmed in self-defense, as well as having their (stolen) property appropriated by its rightful owners or others acting on their behalf.

New Symposium: Leif Wenar’s Blood Oil: Tyrants, Violence and the Rules that Run the World

I’m very pleased to host this new symposium on Leif Wenar’s book Blood Oil: Tyrants, Violence, and the Rules That Run the World (OUP, 2015). This major new text takes up the problem of the resource curse and its discontents, offering a politically ambitious, substantively provocative, beautifully written, and highly accessible treatment of a major global problem. I was especially excited to see a leading political philosopher address the relationship between natural resources and global justice, and to pick up on our overlapping concern for the widespread theft of natural resources globally. Wenar not only explains the problem with great clarity, he also offers a bold prescriptive way out of the predicament. In this symposium, he submits to respectful scrutiny from a range of scholars from diverse disciplinary backgrounds who contest different aspects of his argument. Before I introduce the commentators, I add to a longer summary he himself has written by presenting some brief background about the central arguments in the book.

Wenar’s major claim is that most natural resources are stolen. He takes this view for a variety of reasons, but predominantly because the international legal order allows any armed group, no matter their how weak their democratic credentials, to enjoy legal title over a state’s natural resource endowments. In Wenar’s language, the international order’s deference to “effectiveness” is morally perverse in that it embraces “might makes right.”[1] According to Wenar, this perversity engulfs the entire global resource sector: “‘Might makes right’ is as much true for an autocrat in coercive control of an oil-rich country as it is for a band of militants who seize a mine by force. In both cases, the alchemy of effectiveness transmutes the iron of coercion into the gold of legal title.”[2] And yet, if peoples own natural resources, international law’s deference to effectiveness as part of this dark alchemy enables theft.

The implications of Wenar’s thesis are sweeping. As he argues, international law’s overly-permissive stance towards violent resource predation “violates rights on a massive scale, and it causes enormous suffering.”[3] Deontologically speaking, Wenar argues that “[r]ewarding violence with rights makes a nonsense of property.”[4] Consequentially, he draws on the resource curse literature to show how resource endowment is negatively correlated with rates of armed violence, severe poverty and all other measures of social dysfunction. Perhaps his farthest-reaching argument, however, is that international law’s perverse embrace of “might makes right” undermines democracy: “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”[5] Thus, Wenar sees redressing this dynamic in global resource governance as crucial in promoting democracy.

Wenar finds the norms necessary to achieve the political transformation to global democracy via resource governance in pre-existing international law,[6] echoing the international law scholars who discovered an emerging right to democracy at the close of the Cold War.[7] In particular, he relies on self-determination in human rights instruments and the notion of permanent sovereignty over natural resources to conclude that peoples own natural resources. For the bulk of the remainder of the book, he seeks to establish the circumstances under which state officials cannot act as agents of the people in resource transactions, negatively delineating the circumstances wherein the purported alienation of people’s resources is incapable of passing good title.

On this score, Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs).[8] The political ramifications are substantial. As Wenar explains, “[i]n concrete political terms, these conditions require that citizens must have at least bare-bones civil liberties and basic political rights.”[9] Consequently, for Wenar, popular sovereignty over natural resources guarantees some semblance of democracy: “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”[10]

The book addresses itself to a public audience, presumably because its overall conclusion is that we Western consumers are inextricably bound up in this violence and can do something politically transformative in response to it. To illustrate, at the beginning of the book, Wenar promises to “probe how consumers come to be legally chained to distant warlords. For surely those warlords had no legal right to their plunder?”[11] He goes on to argue that these problems are so ubiquitous that we consumers are all implicated, concluding that “[o]ur moral taint is a certainty… we all own stolen goods.”[12] In calling on us to address this moral taint, Wenar places the issue alongside some of the most infamous historical manifestations of “might makes right” — such as the slave trade, colonialism, apartheid, and territorial conquest[13] — insisting that addressing the theft of natural resources is the boldest yet still realistic global political project our generation might undertake to further this emancipatory moral trajectory.[14]

As will be apparent from my recitation of the argument, a project of this breadth and ambition will attract a broad variety of opinion. To foster critical debate on this topic, I am pleased to have brought together a group of scholars and practitioners from diverse backgrounds to offer reflections, criticisms and new vantage points on these issues. As is my normal practice, I have placed the names and affiliations of commentators on an accompanying page that lists all of the current and past contributions to this blog (see here). Nevertheless, let me explicitly showcase the disciplinary diversity they offer. This symposium hosts a leading scholar in the philosophy of global justice, a prominent international lawyer from Africa, arguably the leading scholar on resource wars globally and the founders of the NGO Global Witness. I also contribute a series of reactions based on the difficulties that have arisen in the theory and practice of attempts to promote democracy in international law, before inviting Wenar to respond to criticisms. I hope that the resulting body of thought is stimulating to all those concerned by the egregious underlying problem.

[1] Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World xlv (1 edition ed. 2015).

[2] Id. at xiv.

[3] Id. at 334.

[4] Id. at 73.

[5] Id. at xlviii.

[6] Wenar, supra note 1 at See Chapter 11 Popular Resource Sovereignty and Chapter 12 The State of the Law.

[7] Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992); Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int. Law J. 1–70 (1995); Anne-Marie Burley (Slaughter), Toward an Age of Liberal Nations Symposium: Nationalism and Internationalism: Shifting World Spheres, 33 Harv. Int. Law J. 393–406 (1992).

[8] Id. at 227–228.

[9] Id. at 228.

[10] Id. at 229.

[11] Id. at xlv.

[12] Id. at xx.

[13] Id. at 311.

[14] Id. at 358. Like “the abolition of the slave trade, the liberation of the colonies, the end of white rule, and the many campaigns for human rights,” “[t]he reform of ‘might makes right’ for natural resources will be the next of these movements.”

Working on the Core: A Response to Commentators

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


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

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

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

Law and Morality

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

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

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

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

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

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

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

Human Rights, Obligations and Feasibility

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

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

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

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

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

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

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

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

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

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

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

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

The Distinctiveness of Minimum Core Obligations

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

[7] J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382, p.374

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

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

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

[11] Many of these points are developed further in J. Tasioulas and E. Vayena, ‘The place of human rights and the common good in global health policy’, Theoretical Medicine and Bioethics (2016): 365-382

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Intellectual property, trade agreements, and access to medicines

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

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

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

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

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

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

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

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

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

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

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