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


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


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

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

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

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

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

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

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

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

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

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

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

The Immediacy of Economic and Social Rights


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


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

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

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

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

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

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

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

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

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

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

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

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

[3] ICESCR, art. 13.

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

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


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


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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Minimum Core Obligations: Toward a Deeper Philosophical Inquiry

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and

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

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

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

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

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

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

Legal Pluralism and Justice: A Reply to Critics

This symposium has embodied everything I sought to promote in establishing this blog. First and foremost, it has housed frank but respectful criticism. In our piece The Ahistoricism of Legal Pluralism in International Criminal Law, we saw an implicit deference to extant law in prescriptive accounts of Global Legal Pluralism that we did not think could be justified normatively. In pointing this out, we spent much time discussing how to frame the argument so as to communicate respect for a set of excellent scholars who had done so much to inform our thinking about these problems, then sought out their criticism once our piece was finally complete as a mark of this respect. In turn, they have offered equally courteous and frank responses to our arguments. In all, I am so pleased that the exercise has conveyed a commitment to the primacy of ideas, a recognition of the great intellectual value of critique, and an inclination on all our parts to metabolize whatever impersonal emotions arise from scrutiny. I hope this reply registers in that spirit and promotes that scholarly culture.

I begin by offering a set of clarifications, which I suspect the piece itself should have made clearer. Ours was never a total assault on Legal Pluralism. I continue to believe that it plays a crucial role in a number of areas, in particular through its ability to undermine what James Sákéj Youngblood Henderson calls “the colonial contrived superiority of European law.”[1] Anyone with even the most rudimentary understanding of law’s role in colonialism will know that withholding recognition of other pre-existing normative systems was a key element in this contrived superiority. In this light, Legal Pluralism is particularly important because it reasserts the authority of jurisgenerative communities other than the colonizing state while undermining rigid, hegemonic conceptions of what it means to have law. In many respects, this point explains our focus on state-made criminal law, even though this is deliberately a caricature of Legal Pluralism, as Paul Berman correctly points out. Nonetheless, as I will explain, our caricature eschews even more difficult problems for Global Legal Pluralism in an attempt to focus on a core of state law that Global Legal Pluralism’s deference to the legal requires it to embrace.

Reduced to its essence, our article was largely an attack on law as a necessary repository of moral, political, epistemic or cultural variation a cosmopolitan vision of global justice might seek to promote. Thus, we argued that Legal Pluralism’s method did not count against universal norms in the ways it claimed, in large part because it overvalued law. This point warrants emphasis. We do not argue that universal norms always solve the problems we point to across the board, which would be patently absurd. Instead, we mean to reverse the argumentative onus and place the burden onto the prescriptive account of Global Legal Pluralism, insisting that just managing whatever we consider to be law globally seems overly deferential to law. Our brief histories were, in the grand scheme of things, relatively superficial attempts to “scratch the surface” to see what lies beneath law. Having peered below the surface very briefly, we sought to point out how Legal Pluralism was not necessarily counter-hegemonic, since for a large set of what would constitute law, the hegemon had beat Legal Pluralism to the punch by imposing the law in the first place. Consequently, our aim was to warn that in prescriptive guise, the concept risked entrenching unjust norms.

We were, of course, conscious that history would never be able to “distinguish this superficial transplantation of domestic criminal law into the international realm, from potentially legitimate and useful reliance on national doctrines,” as Neha Jain rightly points out. Instead, we argued that the history of much of the world’s criminal law doctrine, both national and international, should undermine confidence that Legal Pluralism was necessarily respectful of genuine cultural variation, such that it could ground some concept of justice. Our first example of Argentine criminal law procedure operated as a null hypothesis where, by “scratching the surface,” we quickly found evidence of autonomous domestic ownership of and influence over criminal law doctrine. But in all our other examples, we found nothing similar. Far from stating that there was no congruence between local values and criminal law doctrine in any of these states, our argument was merely that these histories suggest real reason for caution against an idea that Legal Pluralism is, without more, worthy of veneration. We also felt that generic attempts to circumscribe Legal Pluralism’s over-enthusiasm for law, perhaps by citing human rights as an exception, came too late in the day because too much was already smuggled in through the initial deference to whatever law might be at the descriptive stage.

To develop this point, let me begin by recounting the descriptive and prescriptive variants of Legal Pluralism, since Global Legal Pluralism depends on both. Initially, Legal Pluralism was purely descriptive, tracing its origins to anthropological inquiries into the interactions between displaced social orders and formal colonial law. To the extent that the field drew on normative ideas within this descriptive mode, the need for this engagement largely grew out of challenges to methodology; i.e. objections to what should figure as “law” within the wider sociological inquiry. I circle back to this difficulty with defining law momentarily, since I have come to believe that it must be most acute in international criminal justice. For now, I again point to a major prescriptive shift for Legal Pluralism, where many scholars have begun to argue that diversity of social phenomena we are prepared to call law is not only empirically observable, but that this state of affairs is normatively desirable for the world. Global Legal Pluralism necessarily adopts both elements, first accepting a wide array of norms as constituting law, then recommending various institutional and procedural mechanisms for managing their interface. The caricature of Legal Pluralism the article offers was an attempt to hive off some of the most difficult problems at the descriptive stage, to highlight conceptual concerns with the transition from a descriptive to a prescriptive mode.

To explain this, let me start by agreeing wholeheartedly with Mireille Delmas-Marty’s eloquent statement that “choosing an exclusively state-centric perspective while the world is moving, the authors risk confining themselves to a state-centric, modern representation of LP which identifies with the rights of the state and makes the concept necessarily oxymoronic.” A theory of Legal Pluralism focused on state law alone would be oxymoronic. As our essay highlighted, “an over-emphasis on domestic criminal doctrine is anathema to true pluralism, whose very program involves looking beyond positivistic state-centered law.” Nevertheless, focusing on a segment of a field to elucidate conceptual concerns strikes me as entirely defensible. In our piece, we focused our analysis on state-centered criminal law in an attempt to avoid the wider jurisprudential problem involved in deciding what constitutes law at all. As Brian Tamanaha and many others have pointed out, that problem is a perennial thorn in Legal Pluralism’s side,[2] so we sought to bypass the conceptual impasse by criticizing a segment of the legal we believed was unambiguously so. I have since come to think that the positivistic assumption that informed this method was unjustifiable on our part, but in ways that radically strengthen our argument not detract from it.

Understandably, the rules crafted to bring about the atrocities international criminal justice seeks to address are the very subject matter legal theorists use to debate the nature of law. Since completing the paper, it has dawned on me that whether Nazi law was law at all is the paradigmatic debate for a large segment of jurisprudence; indeed the question goes to the heart of the relationship between law and morality and therefore operates as something of an acid test for so many aspects of legal theory. To cite what is probably the most celebrated example (in the Anglophone tradition), the Hart/Fuller debate is a long and in places heated dispute between the positivist tradition that would see law as identified through social facts quite apart from its moral value, and a natural law tradition that was shocked by the positivists’ willingness to confer normativity on a set of legislative enactments in Nazi Germany that were clearly morally perverse.[3] In many respects, the histories we discuss in the paper replicate these dilemmas. It stands to reason, therefore, that much of what we treat as law in the article might not be at all. This thought strikes me as very significant: it suggests that international criminal justice is not just a pleasant illustration of the normative interactions Global Legal Pluralism seeks to understand and manage. The field is at the heart of what Global Legal Pluralism means.

So, let me circle back to our caricature, showing how the natural law critique of our positivistic assumption only magnifies the concerns we raise. In our example of the inchoate crime of association de malfaiteurs in the Democratic Republic of Congo (see here, pp 33-41), we sought out a modern illustration of abhorrent criminal law doctrine in national systems comparable to the law “that allowed Joseph Stalin to sign 3,167 judicially-imposed death sentences in a single day, and Adolf Hitler to make being Jewish a criminal offence.” Our assumption, which I now think is highly disputable, was that this forcibly imposed inchoate crime of French then Belgian origins was unequivocally law; it survived the sieving off of law from religious, moral and social norms on the one hand, while distinguishing itself from the full range of non-obligatory propositions on the other. Once parsed out in this way, association de malfaiteurs was a law that both descriptive and descriptive theories of Legal Pluralism had to take seriously. Our project was to question whether Legal Pluralism should take it seriously at all, based only on its ability to pass this formalistic test. We used the apparent misalignment between local values and legal doctrine as our foil.

But Fuller, I suspect, would have doubted that association de malfaiteurs was law at all, then rebuked our positivistic attempt to avoid thorny jurisprudential problems as failed. But if our caricature fails for these reasons, it does so in ways that only galvanize our deeper point, namely, that “doctrinal pluralism is unsafe as a measure of diverse values and interests in the international community”. Perhaps Legal Pluralism is only about managing just law, such that the concept is instantly insulated from our criticism, but I see no evidence of this position in the literature with which I am familiar, and it would mark a sea-change for thinking about these problems. Then, to follow this jurisprudential line one step further in abstraction, the question becomes what the relationship is between Legal Pluralism and Justice. And here too, I now see this theme as a central but tacit pre-occupation in our paper as well as the literature more broadly. It is this unstated concern for justice, for instance, that leads scholars like Martti Koskenniemi to warn that Legal Pluralism “ceases to pose demands on the world;”[4] and Boaventura de Sousa Santos to assert that “there is nothing inherently good, progressive, or emancipatory about Legal Pluralism.”[5]

Justice is also useful in responding to criticisms based on the Rule of Law. In employing a Rule of Law frame, Kevin Davis’ excellent and thought-provoking critique of our article argues that “[d]octrines that confirm to people’s expectations are desirable, all else being equal, because they contribute to legal certainty and avoid situations that are tantamount to ex post facto lawmaking.” While there is certainly weight to this criticism, I am not sure how it squares with other principles espoused in the Rule of Law. As Waldron points out, avoiding contradictions in the law is also one of Fuller’s eight elements in the internal morality of law, and others like Dicey viewed legal equality as indispensable too.[6] Universality appears better able to achieve these competing values. But more fundamentally, as critical traditions from Feminisim to Marxism teach us, Rule of Law arguments are all vulnerable to deeper normative commitments that take some notion(s) of justice as the paramount goal. To offer an illustration from our paper, even if we do assign legal certainty primacy as an Rule of Law value, I am doubtful that it could ever ground a norm like association de malfaiteurs in the Congo. I hold this view since a norm imposed by force as part of a brutal campaign of subjugation and plunder, which operates to inhibit political participation and freedom of expression now, seems plainly unjust.

Markus Dubber’s response takes us down a slightly different track on this justice path, where he argues that “[p]luralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy”, and then later that, “[i]ncapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about ‘pluralism’.” These types of normative concerns are slightly different to those that animated our paper, but they also play off the relationship between law and a conception of justice. So, while I view Legal Pluralism as a helpful concept to ward off “the colonial contrived superiority of European law” and agree with Sasha Greenawalt that, descriptively speaking, Legal Pluralism is inherent, I remain convinced that history is a useful mechanism to illustrate the concept’s shortcomings as a guarantor of justice. I have also become convinced that, far from raising questions that are peripheral to Global Legal Pluralism, international criminal justice poses problems at the concept’s very heart.

I am so thankful for all of the excellent criticism we have received, which has enriched my thinking considerably. I hope that some of the foregoing is useful to others as they grapple with problems of law in the global order.

 

[1] James (Sákéj) Youngblood Henderson, Postcolonial Indigenous Legal Consciousness, 1 Indig. Law J., 2 (2002), http://jps.library.utoronto.ca/index.php/ilj/article/download/27710 (last visited Apr 19, 2018).

[2] Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 375 (2008).

[3] H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. Law Rev. 593–629 (1958); Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. Law Rev. 630–672 (1958).

[4] Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Mod. L. Rev. 1, 23 (2007).

[5] Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation 89 (2002).

[6] Jeremy Waldron, Legal Pluralism and the Contrast Between Hart’s Jurisprudence and Fuller’s, in The Hart-Fuller Debate in the Twenty-First Century (Peter Cane ed., 2010).

Legal Pluralism and History: A Reply to Critics

Asad Kiyani is an Assistant Professor at Victoria Law School. He is a recipient of the 2017 Antonio Cassese Prize for International Criminal Law Studies for his article Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity.


One of the many pleasures of developing The Ahistoricism of Legal Pluralism in International Criminal Law has been the opportunity to engage with the work of leading scholars in international criminal law, legal pluralism, and comparative law. In an academic environment that increasingly turns on metrics and particular forms of scholarship and productivity, it is incredibly generous of all of the participants in our mini-symposium to share their thoughts. It represents the best of the tradition of academic engagement that they have taken the time to comment (and many have done so on earlier drafts as well). I should also thank James for being such an excellent partner on this project; I have benefited from his advice on my doctoral work, and it was a pleasure to join him as co-author here. It’s fair to say we both learned a terrific amount over the course of this project, and I enjoyed it immensely.

In what follows, I offer three overlapping responses, addressing whether historicism as a concept is relevant to pluralism in ICL today; whether the examples we study overemphasize certain values and under appreciate others; and finally, what direction the study of pluralism in international criminal law might also take us.

The insights graciously offered by Alexander Greenawalt and Paul Berman, who have written extensively and thoughtfully on pluralism in ICL, and pluralism more broadly, overlaps to an extent with Neha Jain’s comments. Put broadly, the three query whether our work impacts pluralist scholarship (Berman wonders whether ahistoricism as an analytic is relevant to the work of contemporary international legal pluralists), and whether there is a more pragmatic justification for pluralism that is important in its own right even if it does not equate to the idea of ‘value pluralism’.

As a starting point, it should be noted that the umbrella-type frameworks of Drumbl, Greenawalt, and van Sliedregt (amongst others) see pluralism as a feature of a legal structure that allows us to add in different laws and norms around the settled ‘core’ of ICL. Where gaps present themselves, we can find our answers in domestic law, either iteratively by reference to specific rules in particular instances, or comprehensively, by developing an international position on the basis of these surveys. But the questions of what is ‘core’ and how it came to be so are as important as the questions about identifying what should be filled in around that core and how. Part of our work then is to explain and critique this development of this ‘core’; that is ahistoricism coming to bear on pluralism.

The main thrust of this commentary is that our critique is overstated not because it misapprehends the work of legal pluralists, but because our focus on critiquing the aspirational ephemerality of ‘pluralism’ overlooks somewhat different rationales for incorporating domestic rules into ICL. In short, those rules offer something other than ‘value pluralism’ that is of importance: rules that have been tested in (and held up in) various legal systems, and thereby demonstrated their durability and relevance for international law. I will deal with this critique further in the next section, but note here that while such functionalism is not inherently flawed, it may also represent a particular vision of pluralism that is shallower and formalist. That vision is susceptible to papering over the underlying histories that may either be constrictive of the development of ICL, or that give lie to the claim of benefit to be derived.

One of the primary ways in which pluralists see benefits deriving from preserving legal diversity is the idea that it allows for multiple possible rules to be tested in multiple possible systems (a point Berman makes in his work on Global Legal Pluralism, and which Greenawalt cites). This is the laboratory idea: that rules can experimented with in the laboratory of global legal systems, and the testing reveals what rules are appropriate either as universal norms or in specific but circumscribed conditions. What the paper contests is  not the idea that experimentation is possible, or that diversity is valuable, but that when put into practice the experimentation rationale often exhibits an indifference to sources and an indifference to the context in which these rules are implanted. Exposing the colonial history of so many domestic criminal systems says something about both the context of the law, but even more fundamentally something about the idea that there is meaningful diversity being tested.

As Jain points out, the literature on legal transplants is already highly sensitive to the context in which facially similar rules are applied and develop over time, in ways that might serve to reflect local needs and perhaps even local values. From our point of view, this sensitivity to context and history is often absent when engaging in such exercises in ICL. There, the determinative factor often seems to be whether the rule is present, without regard to how it is embedded, even though it is the system along with the rule itself that conditions the outcome of the experimentation. For all the talk of laboratory testing, very little attention is paid to the experiment itself: how the law was designed, what it was designed to do, and what effect it has had. Instead, when the ‘experimentation’ rationale is put into practice, the Darwinian persistence of a law is taken as proof of its success and therefore relevance to international tribunals. To the extent that these concepts of a legal core and legal experimentation are central to explanations of pluralism in ICL, then ahistoricism is also relevant.

*          *          *          *          *

While Berman wonders if our historical enquiries are relevant to the present, it is also suggested that perhaps we take our historical analysis too far. For example, what of complementarity, Greenawalt asks? Should DRC’s legal history disqualify it from accessing complementarity at the ICC? There is no absolute answer to be offered he says, and is wary that we might propose such (presumably in part because this would be what Kevin Davis describes as a pedigree-based distinction). His concern is further important to us because of the danger that our historical analysis will be used to justify the accessibility of complementarity procedures (and therefore an affirmation of sovereignty) to only Western states whose domestic systems procedurally and substantively replicate international ones. This marginalization of Third World states and their legal agency would seem to run against what Jain rightly identifies as our concern with ICL’s continuing exclusion of the Global South as a norm-generator.

We are not of the view that we have fully resolved the balancing exercise Greenawalt rightly says needs to be engaged when decisions are being made about whether to permit or utilize domestic laws instead of international ones. However, that balancing exercise needs to be more attendant to the experimentation that elsewhere seems to justify greater pluralism. When that experimentation process — i.e. the practice of the domestic law —  reveals extensive state-sourced violence (say through association de malfeiteurs in DRC), those factors ought to be considered.

Is this too obvious? Are the examples we rely upon extreme because they express concern about the remote possibility that obvious rights violations might somehow be tolerated in ICL under the guise of pluralism (recast here as an extreme relativism)? Greenawalt suggests that the examples we focus on shed little light because they clearly offend universal values. Davis takes a different tack, suggesting in his intriguing commentary that our suspicion of local law that is based on the substantive values they (fail to) uphold ignores extremely important factors. We overemphasize the values these local laws offend he says, rather than appreciate the principles they support, and in particular we overlook core rule of law precepts.

Davis suggests our pessimism leads to an assessment of national laws that is overly onerous, and queries whether any national law would pass muster from our view. He is concerned with our focus on doctrinal pedigree, which leads to national laws being suspect on their origin (often colonial), evolution (often undemocratic), or application (repressive). This, he says, “is a stringent test, probably too stringent.”

This is a problem in particular because in his view we overlook the rule of law values that accrue when the law is predictable and stable. Disrupting local norms on the basis of international standards represents its own form of imperialism we would do well to shy away from. He suggests that in critiquing contemporary international lawmaking, we bypass a more obvious answer – representative democracy – that might assuage our concerns about the legitimacy of local laws and, by extension, pluralist methodology. We share some of the concerns raised by Davis, but for slightly different reasons which leads to important and different conclusions.

First, as important as predictability and stability may be, international tribunals arguably have a special obligation to not validate illiberal laws under the umbrella of pluralism, complementarity or some other diversity-based argument given the centrality of international human rights norms to their functioning. It is worth noting then, in response to the suggestion of several of our helpful interlocutors that ICL would not tolerate such obvious rights violations and that we are building a case against a problem that does not exist, that the intersection of competing visions of fundamental rights remains unresolved in both national and international criminal contexts.

Whether it be association de malfeiteurs, the conditions of detention of international criminals (including the estimated 10,000 who died while awaiting trial in Rwanda), the culpability of child soldiers, the difference in punishment that may attach to those tried in the Hague versus their collaborators tried in national courts, or how the Akayesu definition of sexual violence was later constricted by the ICTY’s use of comparative analyses of national law, it remains the case that international criminal law struggles to respond to the thorny questions that arise in defining human rights norms.

On that point, it is worth raising the question of universality again (and repeating a reply in a slightly different register): that the examples we attend to are clearly infringements of universal values, and thus we are arguing against no one in particular. Left unaddressed here though is that the sense of what is a universal norm to be protected remains deeply contested, as we show through our analysis of the Draft Code of Crimes Against Peace and Security of Mankind, and with the Apartheid Convention and indeed in the important regional variation between human rights regimes.  Contestation remains on fundamental issues, and the history of human rights doctrine in the post-war era resists the triumphalism often associated with human rights. There is an inextricable historical link to power associated with the concept of universality, and pluralist schemas that seek to declare and then build around those universals must reckon with those histories and dynamics as well.

Second, as suggested earlier, local correspondence — whether it be to cultural values or the expectations of a polity — necessarily says nothing about the supposed twin pragmatic benefits of pluralism that concern themselves with whether local law is suitable as part of international law. The first of these is the idea that thorny questions of international criminal law may be resolved through experimentation with a variety of different possible solutions that are offered by diverse local legal regimes; the second is that we can develop universalist international law by surveying national regimes and identifying nodes of commonality the diverse legal cultures have independently struck upon. Our position is that even where these regimes correspond with local values or expectations, the underlying justificatory factor of diversity may be absent simply because the vectors of history and legal imperialism are such that these various national regimes are largely duplicative of one another and their Angle-European origins. Thus both experimentation and justification on the basis of independent agreement lose resonance given the erasure of diversity that predates contemporary pluralist moves.

Davis further suggests that a consequence of our stringent test is that it leads inexorably towards a demand for international drafting from first principles, which is a process that is likely to be deeply unsatisfactory to all. We agree that such a process would be imperfect, and recognize in particular the inherent imbalances in negotiation and drafting that often replicate international power imbalances . However, without abandoning the possibility of an inclusive, equal negotiating process, we note that there are other possible approaches.

One episode that is missing from our published article in the American Journal of Comparative Law, but included in the longer draft available on SSRN (which was shared with all our invited commentators), is the development of more liberal criminal procedure code in Argentina over an extended period of time. That federal code borrowed from multiple legal systems, including a quite important influence from the criminal procedure code of Cordoba province. Conscious efforts to liberalize Argentine procedure involved legislators setting an agenda and legal experts providing advice as to how to reshape the federal code, and the eventual dispersion of this code as a model for other Latin American countries who similarly sought to liberalize their criminal procedure. This fusion of legal principles, and deliberate consideration and adoption, neither demands rewriting the law from scratch (as Davis suggests is a necessary corollary of our approach) nor does it forgo the important principles Davis articulates in his reflection: that there is value in a law that is stable but not ossified, and which adheres to the expectations of those it binds. In this respect, we find common ground with Davis and so many of our other thoughtful and generous interlocutors from which to argue for a more inclusive pluralism.

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Where then does the study of pluralism in ICL take us? For Dubber, studying pluralism is in part a way to reflect on the legitimacy of ICL: “Pluralistic international criminal law thus become international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy.” Similarly, Mireille Delmas-Marty’s typically profound reflections highlight the ambivalence of pluralist approaches as both resistance and reconciliation.

The propriety of the concern arises first with the very real problem that, per Dubber, ICL purports to judge individuals based on the questionable premise that it is only “their capacity for autonomy, or self-government” that is relevant, “rather than their place on some status hierarchy”. It is compounded by a second insight, that ICL is not law per se, but really a system of policing in the sense of coercive and discretionary governance that adjudicates over and punishes the morally inferior (if not evil) wrongdoers who commit international crimes. The turn to pluralism, Dubber suggests, recognizes and is primarily a mode for managing this legitimacy deficit by softening the Western imperialist legacy of ICL by infusing it with local, values.

Of great interest here is that central debates about how to manage pluralism and complementarity and related diversity-focused concepts only sharpen the hegemonic origins of much of international criminal law. It is only when there is a question of incorporating the law of a non-Western state that the issue becomes particularly thorny, given that first there is a clear familiarity between Western domestic and international law, and that most of the attention of international criminal tribunals is directed at non-Western states.

But we do not need pluralism to tell us that the practice of international criminal law seems imbalanced in the legitimacy-threatening sense that Dubber describes; that story can be told through critical reflections that focus on the hypocrisy of international criminal practice. That being said, understanding ICL as a system of coercive discretionary governance may help us recognize the limits of pluralism in ICL, where the idea of ‘legal’ pluralism seemingly presupposes a structure of largely unified and hierarchical formal law of the state or of international tribunals. What this concept of legal pluralism leads to – and I do not claim that Delmas-Marty endorses this outcome – is the exclusion of non-state legal orders from  the realm of possible responses to international crime. She rightly warns that our historical analysis risks suggesting that legal pluralism must be state-centric.

One of the concerns with our paper, and with other approaches to legal pluralism in ICL, is the difficulty with finding spaces for non-state law. Though criminal law is often conceptualized as necessarily state-sourced, the context of transitional justice suggests that some flexibility may be needed: it is not necessarily the case that the law to be applied in respect of international crime be ‘criminal law’ per se. I do not propose to carve out that space at this juncture, but only to note that we are alive to those concerns. When we refer to legal pluralism’s descriptive origins (in contrast to more prescriptive contemporary modes), it is precisely that history of legal pluralism to which we refer: the history of Sally Engle Merry and John Griffiths and the classical sense of legal pluralism as identifying and describing non-state normative orders as ‘legal’.

Rather than carve out that space, let me take what space remains and sketch out what I argue in a work-in-progress is a fundamental limit on the possibility of non-state law becoming part of pluralism in ICL. I have argued elsewhere that the selectivity problem of international criminal tribunals is most acute in respect of the partiality shown within conflicts, where only  certain political actors are prosecuted, and not others, even though multiple parties are responsible for comparably grave crimes. This political-prosecutorial alignment is a function of the gatekeeper role played by local political authorities in respect of international criminal prosecutions: state authorities control access to witnesses and evidence, and can thus force tribunals to make compromises on which cases to pursue.

In so far as the legal norms to be applied are part of the tacit arrangement that permits international tribunal involvement without threatening the current arrangements of domestic political power, non-state law finds itself on the outside looking in. In several of the conflicts that international criminal tribunals seek to exercise jurisdiction, part of what is at stake is the modes by which competing parties are to be governed. Should the state be built in the Western, liberal, enlightenment model that Dubber suggests attends to international criminal law? Or should there be a prioritizing of customary non-state legal orders and traditions?   For state authorities to defer to non-state legal orders as a means of response to international crimes would arguably translate into a recognition that its political opponents have some political legitimacy. If international criminal law is not the end of political conflict, but only its continuation in a slightly more decorous forum, then such concessions in the legal sphere may well amount to concessions in (and inflammations of) the underlying conflict as well.

In this light, accepting pluralism in its classical sense, as recognizing non-state legal orders as valid normative structures that have salience in contemporary states, requires not that scholars be willing to challenge the histories of international law, but that states themselves be willing to challenge their own histories – to move beyond the ahistorical narratives of conflict that they often promote – in order to give effect to the aspirational qualities that animate international criminal law and practice. Ahistoricism remains germane.

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I thank again James for his collaboration on this extensive project over the last several years, and our extremely insightful commentators – Mireille Delmas-Marty, Paul Berman, Neha Jain, Alexander Greenawalt, Markus Dubber and Kevin Davis — whose analyses have provoked much reflection. It has been a privilege to engage with all of their ideas.

– AGK

Pluralism and the Alegitimacy of International Criminal Law


Markus D. Dubber is Professor of Law and Director of the University of Toronto’s interdisciplinary Centre for Ethics. Much of Markus’s scholarship has focused on theoretical, comparative, and historical aspects of criminal law.


Stewart & Kiyani’s sweeping article, The Ahistoricism of Legal Pluralism in International Criminal Law, makes an important contribution to the literature on international criminal law, and many other topics besides. It covers so much ground that I’m in no position to comment on much, or even most, of it, but I’ll spell out a few of the thoughts that arose while reading this stimulating paper.

Historical analysis as critical analysis. Given my own (mis-)adventures in historical analysis of law and historical methodology,[1] it’s no surprise that I wholeheartedly agree with the authors that international criminal law, and in fact all of criminal law (comparative and domestic, regional and parochial) needs more history, to paraphrase Christopher Walken. The authors not only insist that it’s worth looking into the history of legal norms but also aren’t shy about putting that historical inquiry to critical use. It’s not just that historical analysis is worth doing for its own sake (I certainly learned a lot from their article) but this historical analysis then allows them to formulate a critique of a position(s) they describe as “pluralism.” And so we see, for instance, that Japanese criminal law is German criminal law and that, in fact, Japanese criminal law swallowed German criminal law whole for a specific (power-political) reason in a specific historical context, as a kind of exercise in self-colonization or preemptive imperialization. I have no idea whether this story holds water, but it makes sense on its face, and certainly enough sense to suggest the need for further inquiry and, more important for the authors’ purposes, the need to take a breath before treating Japanese criminal law as specifically (and characteristically? genuinely?) Japanese criminal law, whatever that would mean, and whyever that would matter.

Pluralism. Why it would matter, according to the authors, is: pluralism! “Pluralism,” in the authors’ telling, comes in a descriptive and a normative flavor. Their paper takes issue with both versions, though the second—normative—one takes the brunt of their critical question-raising (which, in the end, politely pulls its punches and, as a result, never quite evolves into an all-out critique). The descriptive version is “ahistorical” and, more important, misleading because international criminal law isn’t always as pluralistic as it might appear: if historical analysis shows that, to stick with our example, Japanese criminal law is German criminal law then what looks like pluralism is really just duplicatism: German criminal law by different names. But, leaving that aside, even if we maintain—descriptively—a distinction between Japanese and German criminal law (they are, after all, not identical!), then the supposed fact of pluralism doesn’t translate into the desideratum of pluralism. For it turns out that local doctrinal norms may be poor indicators of local social norms because (ignoring a more basic question regarding the relationship between—artificial?—doctrinal norms and—real?—social norms) they may not be truly local, all the way down; upon closer inquiry of the historical kind, they instead turn out to be foreign, alien, “irritating,” “partial,” “dysfunctional.”

International criminal law. But why does pluralism matter? Why is it a good thing that pluralism is a good thing in international criminal law? I take it the apparent interest in, and professed preference for, legal, social, cultural, etc. pluralism (or “diversity”) has something to do with the existential anxiety of international criminal law. Is it legitimate? Is it imperialistic? Is it racist? Socially, cultural, politically, economically, legally hegemonic? Since self-government (most obviously by personal consent), the familiar mode of legitimation of modern (liberal) law, including—at least in theory—modern criminal law, isn’t available in the self-made sui generis, stateless, asovereign, and nonhierarchical realm of international criminal law, its oppressive potential, I suppose, is thought to be mitigated (rather than acknowledged and justified) by showing respect for a vague notion of “pluralism.” “Pluralism” here might mean nothing more than not universalism or not Western/Northern imperialism (leaving conveniently unclear what it is, rather than what it is not). Pluralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy.

This anxiety about legitimacy turns out to be both appropriate and inapposite, at the same time. Appropriate because there is a very real problem with a system of international criminal law that threatens and inflicts penal violence on persons, insofar as that system holds itself out a system of law in a very particular, liberal, Western, enlightenment sense, namely in the sense of a then-radically new mode of governance grounded in the conception of the subjects and objects of penal power as persons marked by, and only by, their capacity for autonomy, or self-government (rather than their place on some status hierarchy or other, e.g., patriarchalism). This enormous, and prima facie unmeetable, legitimacy challenge is not unique to international criminal law; it applies to any (but only any) political-legal regime that regards itself as committed to this conception of law, domestic, regional, international, global.

Inapposite insofar as international criminal law is, in fact, a misnomer.[2] Instead of conceptualizing international criminal law as a system of law, it may be useful to regard it as a regime of police, where police is understood as that long-pedigreed patriarchal mode of governance on which the modern conception of law cut its teeth during the long turn of the eighteenth century. In this (historicizing…) light, international criminal law appears as an alegitimate regime of discretionary governance in which technically and supposedly asovereign subjects exercise penal power over categorically distinct—and inferior—objects (pirates, ex lex, outlaw, vogelfrei, hostis humani generis, all vanquished, none victorious, evil creatures beyond the pale, for whom punishment under international criminal law is a merciful alternative to a far worse fate, etc.).

Incapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about “pluralism.” Sensitivity to pluralism, in this light, appears as part of a general attempt to obfuscate and thereby to manage, rather than to address, the fundamental legitimacy crisis of international criminal law as law…ironically, by highlighting the superior character and benign intentions, if not the benevolence, of its subject-protagonists, however unconstrained by, say, formal “principles of legality” their penal actions may be.

[1] E.g., Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005); Markus D. Dubber, “Legal History as Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law,” in Oxford Handbook of Legal History (Markus D. Dubber & Christopher Tomlins eds., forthcoming 2018) [SSRN].

[2] See Markus D. Dubber, “Common Civility: The Culture of Alegality in International Criminal Law,” 24 Leiden Journal of International Law 923 (2011) [SSRN]; see generally Markus D. Dubber, The Dual Penal State (forthcoming 2018).

The Inherent Pluralism of International Criminal Law


Alexander K. A. Greenawalt is a Professor of Law at the Elisabeth Haub School of Law at Pace University. His research focuses on criminal law, international law, and the laws of war.


I am grateful to James Stewart for inviting me to participate in this symposium on the provocative, deeply researched, and illuminating article that he and Asad Kiyani have authored. I have enjoyed engaging Stewart’s work over the years—including in a recent article on complicity which greatly benefitted from his writings—and I look forward to reading more of Kiyani’s work.

Let me start by identifying some points of agreement. I share the authors’ conviction that it is worth looking for right answers in criminal law, and I agree that those answers can transcend sometimes superficial doctrinal differences among legal systems (indeed, my above-linked article on complicity advances precisely such a claim). I also agree that it is misguided to romanticize difference for the sake of difference and that one must avoid the casual assumption that national criminal laws always have claim to deep cultural authenticity within the societies they regulate.

As Stewart and Kiyani note, I have used the word “pluralism” to defend a particular approach to international criminal law (“ICL”). Stewart and Kiyani are skeptical about pluralist approaches to ICL, but I struggled when reading their article to understand how exactly their position might impact my own, or indeed the actual practice of ICL. In part, this is because I find their account of pluralism somewhat elusive. Sometimes the authors seem to suggest that pluralism means blind deference to every doctrine of domestic criminal law no matter how oppressive. Elsewhere (among other approaches), they associate pluralism with a method by which ICL might arrive at consensus international standards—namely, by embracing rules derived from national criminal law that reflect a “real degree of inclusive, plural, cosmopolitan values” and are “doctrinally plural within a diverse, conflicting, sometimes inter-penetrating system of criminal law.” I am not aware of any scholar who has advanced the first position and the second claim is not one that I would associate with pluralism in the sense that I have used the term, although it does resemble a standard methodology embraced by international criminal tribunals attempting (sometimes misleadingly as the authors observe) to marshal support for universalist claims about the content of ICL.

I am curious, as well, about how exactly Stewart and Kiyani’s broad rejection of pluralism informs the actual practice of international criminal justice institutions. Take, for instance, the International Criminal Court’s (“ICC”) complementarity requirement which sometimes requires the Court to defer its jurisdiction in favor of criminal justice at the national level. Suppose the ICC is pursuing a suspect in the Democratic Republic Congo (“DRC”) who is being investigated at the national level for the same conduct. Do the authors believe that complementarity can or should apply in a case like that, or should the systemic, historically rooted deficiencies they identify in the DRC’s criminal law categorically preclude deference in all cases? Or perhaps complementarity itself should be abandoned because it inherently introduces the problems of pluralism that the authors explore? How then should a global system of ICL proceed if it rejects domestic prosecutions of international crimes?

The most obvious solution I can glean from Stewart and Kiyani’s article is that the world must coalesce around a single, best, cross-cultural and universal approach to all questions of criminal law and procedure, one that is devoid of power politics or cultural bias. If the world can achieve that, then I agree that the normative defense of pluralism becomes quite unconvincing indeed. But if that is the claim, then the authors must establish far more—and overcome far greater hurdles—than they do in this article.

For example, even if the world were to coalesce around the unitary theory of perpetration that the authors advocate (rejecting formally differentiated modes of criminally participation) I don’t see how the general choice of a unitary versus differentiated model is especially important in comparison to the host of other choices affecting guilt, innocence, and degrees of culpability that must be decided upon under either model.

Perhaps, however, one should read Stewart and Kiyani to advance a more modest claim that universalism is something to work for, that some universal answers are accessible, and that the blind embrace of pluralism is both threatening to this project and harmful given the colonial origins and distortions evident in many criminal law systems. If that is the claim, then I agree with the central thrust of the argument, but my own defense of pluralism does not proceed from the assumption that national criminal law demands blind deference or that it necessarily has some claim to deep cultural authenticity. To me, the central question is not one of universalism versus pluralism, but of how to manage the pluralism that unavoidably has accompanied the establishment of ICL. I also believe that my own framework accommodates many of the concerns that the authors raise, and so I will attempt in the remainder of this post to sketch out some of my own thoughts on this issue and attempt to see how they may accommodate at least of some of the concerns raised by Stewart and Kiyani.

I begin with the fact that there is variety in the criminal law. I agree (even outside the colonial context) that variety need not have any deep cultural basis. While differences among states may sometimes reflect important cultural fault lines, they are just as likely to reflect arbitrary, and sometimes pernicious, historical vestiges or the influence of judicial interpretation.

International law, in its current state, is hardly agnostic about this diversity. The body of international law that most broadly regulates these choices is international human rights law (“IHRL”). Many of the examples that Stewart and Kiyani invoke—judicial bias after World War I, restrictions on freedom of association, anti-blasphemy laws—reflect straightforward human rights violations. As a matter of IHRL (as the authors themselves acknowledge), these examples already offend universal values.

ICL, by contrast, presents only a limited intervention by international law into matters of criminal law. ICL evolved, in my view, not to harmonize national approaches to criminal law, or even to define and regulate uniquely “international” offenses in some qualitative sense, but instead to enable institutional interventions that counteract unique obstacles to the prosecution of certain especially grave offenses. The point of prosecuting Holocaust crimes at the International Military Tribunal at Nuremberg, for example, was not to reject German criminal law’s general judgments about how to define and assign liability for murder in ordinary cases. The point was to counteract and ensure accountability for the specific ways in which Nazi Germany had made an exception to those judgments by converting the state into a system of domestically authorized mass extermination. I believe that ICL speaks the most strongly when it works to justify and define the scope of such interventions, and it speaks more tentatively (although not entirely without authority) when it addresses more general questions about what it means to be a criminal.

How does this way of looking at things interact with Stewart and Kiyani’s specific claims? In previous work I have explored the example of the Erdemović case at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) involving a soldier who was forced under threat of death to participate in a firing line that massacred Bosnian Muslim civilians.   The ICTY Appeals Chamber rejected the defense on (I believe unpersuasive) policy grounds, notwithstanding the unresolved nature of the question under international law and the fact that many states, including all the republics of the former Yugoslavia, take a more permissive approach to duress.

I do not know whether Stewart and Kiyani have access to an optimal, universalist approach to duress. My position is that the ICTY should have looked to Bosnian law under the circumstances. In advancing this argument, I do not assume that the Bosnian criminal code reflects a deeply embedded and culturally specific approach to duress. Rather the Bosnian law reflects a fairly standard civil law approach that the state inherited from its prior membership in communist Yugoslavia. I think that the law of duress presents unavoidably hard questions, that all the dominant legal approaches to the issue are problematic in some respects, and that the Bosnian law falls within a range of reasonable disagreement that neither offends core human rights value nor the specific purposes of ICL. In a case like that, I don’t think that ICL has a strong interest in overriding the local law to deprive the accused of a defense which his society affords to other similarly situated persons. But even if one disagrees with that specific conclusion, the same problem arises in other guises. Suppose that the Bosnia’s own courts were prosecuting Erdemović for international crimes. Must those courts also prefer the ICTY’s approach to duress over their own? And what about ordinary domestic prosecutions for non-international crimes? Wherever one draws the line, the basic problem remains: absent universal, global agreement on how to handle duress, some defendants must be treated differently from others based on perhaps arbitrary, non-culpability driven reasons. Similar issues arise with respect to other standards of responsibility, principles of sentencing and so forth. Must ICL take an absolute position on every one of these questions, no matter how tangential the doctrinal issue is to ICL’s core mission?

At the same time, I agree (and have argued) that is desirable to have a single, comprehensive set of ICL rules that are available for use by a global court like the ICC and in other contexts where reliance on domestic legal principles proves problematic or undesirable. There are many reasons to favor this restult, including problems that Stewart and Kiyani explore as well as concerns having to do with clarity and administrability. But I do not think that those reasons exhaust all the procedural contexts in which ICL finds itself enforced. In the end, implementation of ICL involves a number of situation-specific considerations that cannot be resolved by broad appeals to either universalism or pluralism. Instead, there are a balance of factors to consider. Stewart and Kiyani convincingly elucidate some important factors that may sometimes arise. But they do not, in my view, eliminate the need for such balancing.