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.