Big picture, fine lens: A response to Mohsen al Attar
My thanks to Mohsen al Attar for his comments on my Article, and to the editors of Opinio Juris and the Yale Journal of International Law for organizing this symposium.
Mohsen al Attar’s comments bring the historical critique of global capitalist arrangements to the contemporary project of human rights, particularly the under-recognized “sub-set” of economic and social rights. He responds to the conceptual micro-study of the minimum core idea, demonstrated in Parts II to IV of my Article, by emphasizing its final conceptual step. This analysis moves upwards and outwards, into the heart of debates about the future of the world economy. Yet my Article suggests the importance of combining this step with a grounded analysis of economic and social rights, as well as the basic background ideas – of market exchange, their distributive consequences and their economic and political justifications – in which they operate. It is only by taking into account the full spectrum of analysis – of both the global market framework and the contours of individual rights claims – that the formidable challenges of economic and social rights, as outlined in the concluding part of my Article, can be addressed. As al Attar notes, I advocate, in large part, a return to more explicit claims of responsibility, causality, and benchmarking, rather than the use of a minimum core proxy. In areas no less complex than the international regimes of trade, aid, security and development, as well as the structures of national economies, such an analysis is as difficult as it is necessary.
As a subject of historical critique, the minimum core concept may be mapped, as I suggest in Part I, on to developmentalist prescriptions of a minimum threshold for national and global redistribution – moderate enough to placate self-interested states and avoid production disincentives, and redistributive enough to transfer economic gains to the sectors or classes which can not otherwise access them. For al Attar, this lends a humanizing character to my suggestions. In the same way that my Article travels from constitutional to international fields of law in relation to the minimum core concept itself, al Attar correctly points out that the idea of economic and social protections is itself borrowed from welfare state design. The ameliorative necessity of such rights, which developed in lock-step with industrialization and market capitalism, were recognized by classical liberal political economists like Adam Smith. Yet their institutionalization came from political struggle and powerful alliances. Both the idea and the movement were sidelined, to deleterious effect, during the neoliberal reforms of the 1990s, and the mantra of privatization, deregulation and liberalization. The transition crises in Eastern Europe and the public health emergency in Sub-Saharan Africa, following on the heels of these reforms, serve as empirical reminders of these consequences.
Nonetheless, the prescriptions of my Article do more than humanize this fact. If it were merely humanizing, it might simply call for a push – even a “big push” – for increased foreign aid. Or it might move a little further, and adopt the “augmented” Washington Consensus, which has finally conceded the importance of social safety nets and targeted poverty reduction. Yet I suggest that there is space within the economic and social rights idea to challenge and rework the institutional forms of market exchange in more effective ways. Part V of the Article offers the beginning outline of a number of pathways.
For example, I suggest that economic and social rights can provide a set of tools for assessing the positive and negative obligations that flow from states to individuals, often via a detailed analysis of the legal protections (and privileges and immunities) that the state has offered private actors. Mohsen al Attar emphasizes the prescriptive parts of my Article – that we would do well to reflect on a state’s positive obligations via indicators and benchmarks, and negative obligations through responsibility and causality. I suggest this orientation, not to rebut justiciability, extraterritoriality and non-derogability concerns – indeed, extraterritoriality remains the most important nut to crack, and will probably be resolved by legal analogies outside of the field of human rights – but to dislodge their hold on the economic and social rights agenda. The full rebuttal is reserved – if any more is needed – to the misplaced division between so-called negative and positive rights.
Instead, my Article emphasises that positive obligations (correlating with economic, social, cultural, civil and political rights) are measurable through benchmarks and indicators: a state’s housing policy, for example, can be monitored by a process of investigation and localized adaptation that may be missed by an asserted minimum core of a housing entitlement. For negative obligations, causality arguments become more critical. By distributive analysis, much of which relies on the tools of economists, one can predict the avoidable and immense material deprivations caused by present institutional arrangements. When a breach of a negative obligation is identified, it can be remedied not only by a state desisting from the offending conduct (as traditional human rights advocacy prescribes), but also by experimenting with different institutional arrangements. In this way, causality arguments arise for positive obligations, and benchmarking activities arise for negative obligations, and so the division between negative and positive obligations itself diminishes.
International committees – al Attar mentions the Human Rights Committee, but I have also detailed the important work of the Committee on Economic, Social and Cultural Rights – and national courts, as well as policy-makers, should become more familiar with these methods and ideas, as should the human rights movement as it belatedly confronts the challenges behind the economic and social rights commitment. While the idea of fundamental material protections – of adequate food, health, housing and education – is a powerful one, it is not alone sufficient to change the current organization of national and global markets. Yet with a careful analysis of current arrangements – both upwards, with high theoretical critique, and downwards, with micro-institutional analysis – ideas remain a necessary part of this development.