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.
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.
Commentary on Katharine G. Young’s article: The Minimum Core of Economic and Social Rights – A Concept in Search of Content
Ideas about global capitalism have been in constant flux since the beginning of the twentieth century. In the early 1900s, imperialist theorists such as Hobson and Hilferding argued that inter-state rivalries would bring down the castle; WWI and WWII seemed poised to do just that. Fast-forward to the 1950s and not only did this not happen but the castle was fortified and stood stronger and taller than it ever did before. The reason? Giovanni Arrighi explained in his seminal work, ‘the Geometry of Imperialism’, that changes in international capitalist relations were neutralising the inter-state rivalries of yesteryear. Briefly, vertically and horizontally integrated multinational firms were supplanting the nation-state as ‘the primary form of political organization of world capitalism’ thus reducing instances of cross-border strife. Building on and possibly even supplanting the work of Arrighi, Robinson and Harris detailed in an important article the ways in which neoliberalism was further transforming the existing capitalist order: through widespread integration of national economies in the world trading system and a restructuring of finance and production systems along global lines. Combined – and despite disagreement between the various camps – these critiques of capitalism are invaluable in comprehending the state of the world today.
Having just read Katharine Young’s article, I would argue that much more could be understood about the nature and future of our world by relating the theories of the above-mentioned scholars to the work of the Human Rights Committee as it concerns socio-economic rights. Whereas Hobson and Hilferding, Arrighi and Robinson-Harris, asserted that changes to global capitalism were the result of ‘polarising tendencies’ within the system itself, neither group seemed to consider that the conflict between neoliberalism – the epitome of an ‘obsolete market mentality’ – and society – champion of a democratic human mentality – was (and is) a key catalyst in its transformation. From the rubble of WWII emerged the Universal Declaration of Human Rights, an idealistic – albeit entirely credible – set of obligations to which states committed themselves to respect and promote. This document was followed shortly thereafter by the two Covenants, each guaranteeing a set of interrelated and, as some would later argue, mutually dependent series of rights. It is no secret, and Young’s piece attests to this, that controversy has surrounded the concretisation of socio-economic rights from the moment of their inception.
In her timely piece, Young surveys the various approaches that human rights scholars, human rights activists, and the Human Rights Committee have adopted in their advocacy for socio-economic rights. Being familiar with the literature, I can confidently state that no single article does a better job at compiling the strengths and weaknesses of each trend within the minimum core debate. But Young does more than simply survey the state of the discourse; in the final section, she argues for a reformation of the movement’s preferred approach to the minimum core – to assess a state’s positive obligations via indicators and benchmarks and its negative obligations through responsibility and causality. Despite being a little nebulous at times, her suggestion is a sophisticated one that should be examined by human rights scholars, activists, and state officials for it provides a powerful rebuttal to the justiciability, derogability, and extraterritoriality concerns that seem to perpetually circulate and to frequently undermine progress in the socio-economic rights field.
To return to my introduction, whether Young knows it or not (and seeing that her article is peppered with references to neoliberalism and trade matters, I suspect she does), she is contributing to a wider debate on the ills of unfettered capitalist expansion. When two opposing forces come into conflict ‘one of them has to come out on top’. Capitalism in general – and neoliberalism in particular – weaken democracy and strengthen the market, producing a series of social and economic dislocations. Economists from Adam Smith through to Joseph Stiglitz have been aware of this; in fact, the welfare state was inaugurated to counter-balance the inevitable impact. A variety of groups, such as social movements, non-governmental organizations, and, increasingly, human rights advocates have sought to address these dislocations by either challenging the constitutive elements of the international economic framework or – and here we find Young’s work – by democratising and humanising the global capitalist order. Indeed, Young offers us a coherent and convincing account of the potential of the minimum core, a field otherwise muddled by ambiguity and contradictions, to promote access to material items that would undoubtedly improve our collective quality of life. I would argue that she achieves this formidable feat by being persuaded herself (and, in turn, persuading readers) about two assumptions: 1) That everyone involved in the debate shares in her commitment and refreshing idealism to social justice and 2) That human rights have become a foundational element in a quasi-global constitution to which all nations are bound. Her assumptions may or may not be founded but this is inconsequential for the approach she advocates is a sound one that, and to repeat myself, deserves much consideration by scholars within the field if we are to move socio-economic rights and social justice beyond the facade of academic rhetoric.
Ultimately, Arrighi and Robinson-Harris still believe that the cyclical rise and fall of great powers at the hands of other great powers determines global capitalism’s evolutionary course. Social movements would likely dispute this claim – and the scholarly treatment of the impact of social movements on regulatory frameworks would corroborate their retort – by pointing to the numerous instances in which popular struggle has altered the course of contemporary history. The human rights movement is part of this struggle and is a powerful force in the remaking of the world along more democratic and equitable lines. Young’s ideas about indicators and benchmarks, about responsibility and causality have the potential of contributing to the struggle in a practical and meaningful way by altering our very perception of the rights we advocate for. I conclude this comment by urging others to read her article (with particular attention to the final section) and by urging Young to develop her ideas; they are most welcome and much needed.
Within the catalogue of rights—whether conceived in constitutional or international terms—economic and social rights are said to be especially indeterminate. This Article inquires into the conceptual foundations of a minimum core of economic and social rights. This concept of the minimum core has been applied to provide determinacy and even justiciability to the rights to food, health, housing, and education, and also (most ambitiously) to give substance to minimum legal obligations in both national and global distributive justice debates. This Article brings together the methodological insights of comparative constitutional law and international human rights, and traces the ways in which concepts are borrowed from each field. By doing so, this Article disaggregates three contrasting approaches to giving content to the minimum core—that of a normative essence, minimum consensus or minimum obligation. This Article further demonstrates how each approach is ultimately insufficient as a conceptualization of social and economic rights and their enforcement. It ends by gesturing towards a new way of approaching a universalized discourse of minimums in economic and social rights.
You can read the entire article here.
First, I would like to thank Opinio Juris and the Yale Journal of International Law for hosting this symposium and providing the opportunity to discuss my recent article, Who is the “Sovereign” in Sovereign Debt? Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century. I would also like to thank Tai-Heng Cheng and Mark Weisburd for their thoughtful comments on the piece. Given that their comments raise overlapping themes, I address them jointly in this response.
I structured the article in three sections, which deal with the potential non-continuity of sovereign debt as questions of doctrine, economic feasibility, and political possibility, respectively. Perhaps more importantly, I position my discussion of sovereign debt continuity within the larger framework of asking about legitimate sovereignty, where I think it belongs. While the comments focus on the first doctrinal section, and my response here follows suit, I would welcome discussion on the other issues as well. I should also clarify that I do not intend the article to be a defense of U.S. Chief Justice William Howard Taft’s doctrinal approach in the 1923 Tinoco arbitration between Great Britain and Costa Rica. Nor do I intend to propose the award as a definitive solution to the problems of identifying illegitimate sovereign debt. Rather, I see the discussion of Taft as responding to the current hostility expressed toward weakening a strict rule of sovereign debt continuity. I hope that explicating and contextualizing this historical alternative will help to re-open what is too often considered a closed question.
Now to the comments:
Tai-Heng Cheng argues that the Taft arbitration cannot be precedent for the odious debt doctrine, at least as formulated by Alexander Sack, for two reasons. First, he highlights that private arbitrations such as this may have persuasive or secondary authority as international law but are not strictly precedential. Second, he emphasizes that the facts of the Tinoco arbitration involve regime change rather than state succession, which is the focus of Sack’s odious debt doctrine.
On the issue of what constitutes strict or technical precedent, Tai-Heng is certainly correct. Nonetheless, international legal treatises persist in citing the Tinoco arbitration as the main case for the idea that sovereign recognition in international law depends on a government having “effective control” over a territory and its people. Of course, these treatises themselves do not carry strict precedential weight (as do few things in international law), but they do point to the very high standing of Taft’s award as a source of international authority. This raises interesting empirical questions about how one portion of a finding can achieve the status of pseudo-precedent while other portions, which ground the actual award for Costa Rica, lapse into semi-obscurity for decades. Such a broad empirical question is beyond the scope of my article (not to mention this response). However, it does suggest that the embrace of the Tinoco finding on the part of mainstream jurists is only partially complete. Even if the ‘effective control’ element of the case formulates or clarifies pre-existing international law on sovereign recognition (thus explaining its higher status), the simultaneous dissociation of a government’s recognition from its absolute right to bind future generations is not – or should not be – easily ignored.
As to the second question of whether Taft’s award can even be pseudo-precedent for odious debt cancellation, given its different factual context, this depends on what one means by ‘odious debt.’ Although Alexander Sack’s formulation is conventionally understood to be *the* doctrine, there is no particularly good reason that this should be the case. Certainly Taft himself (writing in 1923) would not have had recourse to ‘the doctrine’ as formulated by Sack in 1927 or indeed to any clear pre-existing international notion of what should define ‘odiousness.’ Indeed, part of my argument is that any characterization of legitimacy or illegitimacy in state obligations necessarily implies (and reinforces) a corresponding conception of what constitutes valid sovereignty and valid sovereign action. Similarly, adopting a particular conception of legitimate sovereignty suggests that (1) sovereign contracts that violate this vision are not ‘sovereign contracts’ properly so called; and thus (2) such contracts are ‘odious’ under that particular conception of sovereignty and therefore do not extend beyond the downfall of the regime. Taft’s finding insists that even if a government has control of a territory and its people – as did the Tinoco regime in Costa Rica – that government must still comply with its own internal laws and adhere to a legitimate government purpose in entering into sovereign obligations. This counters what I call a strictly ‘statist’ or absolutist conception of sovereignty in sovereign debt, which would allow any government defined by ‘effective control’ to bind future generations, even while disregarding internal legal mechanisms or the requirement of valid government purpose; such a framework would deny the possibility of ‘odiousness’ on any characterization.
But doesn’t this broad and contingent approach leave the idea of ‘odiousness’ bereft of a clear definition? And doesn’t it raise the risk of allowing multiple competing visions of ‘odiousness’ to emerge across different forums? Yes to both, and I hope jurists and others will consider this open-endedness an invitation to further discussion. More importantly, I hope the discussion moves beyond the question of how to define (or deny) the existence of a pre-existing odious debt doctrine and addresses more squarely how any treatment of debt continuity rests upon and reinforces a broader political theory. (I should also point out that the problem of competing standards in other legal areas does not necessarily shut down economic activity; it may even help to focus direct attention on the pros and cons of pressing for greater harmonization.)
Mark Weisburd contends, additionally, that Taft’s award is not nearly as far-reaching as I suggest, and that the oil concession finding in particular stands simply for the idea that local law governs a contract if the contract so provides. While this basic formulation is true, the facts of the case invited Taft to decide whether or not the law on the books should be carefully applied to a (dictatorial) government in the same way that it would be applied to a lowly private company. It is unlikely that the Tinoco regime considered itself equally bound by its own laws (or even paid them close attention) in agreeing to this contractual provision. Furthermore, earlier theoretical approaches consider the sovereign government to be ‘above the law,’ even in a law-abiding polity. Had Taft adopted this latter statist or absolutist approach, in which local law and legitimacy are simply shaped and updated by sovereign decree or action, he would have arrived at a different conclusion.
Although I don’t make it sufficiently clear in my article, the potential use of this rule-of-law approach, as I call it, could extend beyond a context in which a government’s law was explicitly applied to that government through the interpretation of a specific contract provision (as in Tinoco). It may be the case that foreign law controls for a contract involving country Z, but the question still arises as to how Z’s government may bind itself and future generations. The foreign court could simply accept the assertions of Z’s government that it acted properly by virtue of its governmental status (statist), insist that only Z’s people acting through representative institutions could enter binding obligations (popular), or attend to Z’s constitutional principles and relevant statutes to determine whether the contract was properly concluded (rule-of-law). It could also, as an additional or separate requirement, require that the contract was entered into for a legitimate government purpose, at least so far as the creditors knew.
It is important to point out that this latter element of legitimate government purpose (an outcome oriented conception of valid sovereign action) is separate from the three other approaches, which focus on the process by which a state’s people relate to its government. I do not mean to interpret Taft’s Royal Bank finding as deriving from a particular Costa Rican legal provision, as Mark seems to suggest. It is quite clear that the Royal Bank award presents a separate and basic requirement for legitimate government purpose in sovereign contracting.
Both Mark and Tai-Heng raise questions about how broadly applicable (or even helpful) my reinterpretation of Taft’s approach might be. Mark highlights the flagrant nature of government wrongdoing in the Royal Bank portion of the Tinoco case, and the unusual ease with which creditors knew of this wrongdoing. Tai-Heng points out that my framing of Taft’s arbitral decision “does not go very far in protecting the oppressed.” I agree, and these shortcomings are part of the reason that I present Taft’s approach with caveats. That said, I think it is an important award to resuscitate for closer contemporary study, perhaps as a minimum standard for sovereign debt continuity. The possibility of incremental doctrinal development in the face of an unchanging text is surely not foreign to jurists. The ideas of ‘legitimate government purpose’ and ‘creditor knowledge’ have developed in international and domestic law, and they need not remain stuck in a 1923 fact pattern or in 1923 international norms. Furthermore, caution and incrementalism may be virtues in formulating international legal frameworks that define sovereign action as good/bad, civilized/uncivilized, or odious/non-odious – particularly when significant capital flows are at stake. And while identifying sovereign state action through rule of law does allow oppressive governments to change the laws at will, it also forces them to enact those changes if they wish their contracts to be internationally binding. If nothing else, this makes the nature of the ruling regime more transparent to the population and provides the general public with clear grounds for identifying and resisting objectionable government policies. And, of course, none of this precludes the option of debt cancellation as a gesture of solidarity, compassion, or justice for an incoming state or regime.
Odette Lienau’s Who is the “Sovereign” in Sovereign Debt? provocatively argues that Chief Justice Taft’s method of analysis in his 1923 arbitral award in the so-called Tinoco arbitration offers a useful approach to controversies over so-called odious debts owed by states, that is, debts incurred for purposes unrelated to the well-being of the population of the state responsible for the debt. Lienau argues that Taft applied what she calls a “rule of law” approach, making the enforceablility of the obligations in question in that arbitration dependent upon the compliance of the regime incurring the debt with its own law. Such a rule, she argues, would provide some protection of a population against a corrupt government while establishing a relatively objective standard against which lenders could evaluate the risk that any particular debt would not be paid. Lienau contends that such a mode of analysis would avoid the difficulties posed by the two other most common ways of addressing odious debt situations.
One of these approaches, which Lienau labels “statist,” enforces against a state all debts formally attributable to that state. This view is justified as necessary to avoid throwing credit markets into confusion; it is problematic because it would require a state to bear the burden of all debt concluded in its name, even those debts incurred in the name of the state by officials whose intentions to steal the borrowed money were obvious at the time of borrowing. The other approach focuses on the popular legitimacy of the regime incurring the debt, and makes the enforceability of the debt dependent on the purpose for which the debt was incurred and to which the proceeds of the borrowing were applied. The advantage of this view is that the state would not be responsible for debts incurred in its name but conferring no benefit on its population; the disadvantage is that it makes the enforceablility of debt uncertain at the time the debt is concluded, in turn reducing the willingness of lenders to deal with any government not both perfectly democratic and perfectly incorruptible.
Lienau is certainly correct that the binary choice to which she objects is undesirable. It is absurd to impose the burden of the loss from a theft on the victims rather than on the thief, but it is also unreasonable to expect lenders to lend money in the knowledge that they may be denied repayment on the basis of vague standards whose applicability in a particular case may be difficult to determine. Unfortunately, it is not clear that the approach Chief Justice Taft actually took in the Tinoco arbitration will do the work Lienau asks of it.
To explain this conclusion, it is necessary to describe the two claims Taft addressed. One was brought on behalf of a British firm whose oil concession, granted by the Tinoco regime of Costa Rica, was cancelled by the government which was elected to power after Tinoco’s overthrow. The other was brought on behalf of a British bank which had extended credit to the Tinoco regime by honoring checks, totaling $200,000 in American money, drawn on a Costa Rican government account with the bank and payable, in essence, to Tinoco himself and to his brother. The Costa Rican account had been established by the deposit in the British bank of certain notes issued by the Tinoco government; the bank’s claim arose when the successor government refused to pay the notes.
Taft ruled for Costa Rica on both claims. As to the concession agreement, Taft concluded that a crucial provision, exempting the concessionaire from certain taxes, had been entered into in violation of the Costa Rican constitution, and was both unenforceable itself and so central to the agreement as to render the entire agreement unenforceable. As to the notes held by the British bank, Taft concluded that it was so obvious at the time the checks were drawn that the $200,000 was for the personal use of the Tinoco brothers rather than for governmental purposes that the bank simply could not enforce the debt against Costa Rica.
While these determinations at first blush seem to support Lienau’s argument, closer examination renders that conclusion doubtful. In the first place, as Taft noted, the concession agreement itself provided that “disputes in respect to . . . execution of this contract shall be . . . decided according to the laws of Costa Rica.” Taft was therefore not somehow crafting his own approach to resolving this matter. Rather, he was applying the internal law of Costa Rica in a case where the agreement giving rise to the claim expressly made that law applicable. To be sure, Taft did not explicitly state that Costa Rican law governed because of the language of the concession agreement; rather, he stated that “[the concession’s] validity is, as I have already said, to be determined by the law in existence at the time of its granting; and that means the law of the government of Costa Rica under Tinoco.”
Unfortunately, it is not clear where in the preceding portion of his award Taft had taken that position. The most logical explanation is that his reference is to the article of the concession agreement he had quoted earlier. This part of Taft’s award, then, appears to stand for no more than that local law should govern a contact if the contract expressly so provides, a proposition of fairly limited utility.
As to Taft’s disposition of the claim of the British bank, the problem for Lienau’s argument is about the reverse of that just discussed. Whereas the parties’ agreement appears to have been Taft’s basis for relying on Costa Rican law as to the concession agreement, it is not even clear that Costa Rican law was the source of the rule of law Taft applies to the bank’s claim. He states:
[The bank] must make out its case of actual furnishing of money to the government for its legitimate use. It has not done so. The bank knew that this money was to be used by the retiring president, F. Tinoco, for his personal support after he had taken refuge in a foreign country. It could not hold his own government for the money paid to him for this purpose.
What law imposed this obligation on the bank is not stated; certainly, Taft does not explicitly ground this obligation in the internal law of Costa Rica. The result regarding the bank, then, cannot be ascribed to the approach to sovereign debt advocated by Lienau, and the analysis Taft actually employed would not offer the advantage to creditors to which Lienau refers. That is, it is not clear that creditors’ uncertainty would be reduced if other tribunals followed Taft’s method of analysis of the bank’s claim, since it is not clear that Taft relied on a standard that the bank would have realized was applicable at the time of the transaction, even if it had assumed that its rights depended on Costa Rican law.
The bank’s claim provides a problematic precedent for a second reason. As the foregoing quotation indicates, Taft based his determination on his conclusion that the bank knew that it was paying money for Tinoco’s personal use, that is, that he was stealing the money. Indeed, he quotes “an agent of the bank” as stating that it was clear that Tinoco was about to fall at the time of the initial deposit of Costa Rican government notes. The Tinoco case, that is, was an extreme one. The dishonesty of the transaction was obvious as soon as the checks were presented to the bank. It is not at all clear how Taft would have dealt with a case where the matter was not so obvious to a lender at the time of the transaction, and thus not clear how broad the range of application of his rule would really be.
Odette Lienau is to be commended for devising an original approach to the odious debt dilemma. Her proposed solution, however, needs work.
My thanks to Opinio Juris and the Yale Journal of International Law for inviting me to comment on an excellent article by Odette Lienau titled “Who is the Sovereign in Sovereign Debt?” 33 YALE J. INT’L L. 63 (2008).
Odette addresses with aplomb the difficult problem of whether a government should be made responsible for the financial debts incurred by a prior despotic government. She accurately points out that this problem implicates two conflicting global policies: “financial workability” and “greater attention to states’ underlying populations.” (p. 110). Canceling debt risks damaging creditors’ balance sheets and credit markets, as well as limiting the state’s access to future capital. But imposing debts incurred by a despot on his victims after he is long gone seems unfair.
Odette looks back to move forward. She reinterprets Chief Justice Taft’s famous 1923 Tinoco arbitration award to propose a solution to balance the needs of credit markets and the formerly oppressed. Taft decided that Costa Rica would remain responsible for sovereign debts incurred by Frederico Tinoco, the former Minister of War who had seized power unconstitutionally. However, sovereign debts could only have been made in accordance with Costa Rican law and for governmental purposes. Thus, Costa Rica was not responsible for concessions that were never properly made under Costa Rican law. It was also not responsible for $200,000 in loans purportedly extended to Costa Rica but in fact lent to finance Tinoco’s trip abroad and an advance payment to his brother. Extrapolating this decision as “precedent for odious debt cancellation,” (p. 90) Odette proposes that governments today should be responsible for the sovereign debts incurred by their predecessor government even if that government was despotic and abusive. The only exceptions would be if the debts had not been incurred in accordance with the state’s domestic laws, or if they were not for legitimate government purposes.
Odette’s careful development of her thesis has many marks of good scholarship: the framing of an international problem; the identification of conflicting policy goals; the study of past decisions; and, importantly, the invention of an alternative approach to promote and harmonize the relevant policy goals. With some modesty, Odette states: “The . . . analyses presented here are insufficient to ground a strong policy proposal.” (p. 110). How might this be so?
Doctrinally, the Tinoco arbitration is not precedent for anything. Arbitrations, being privately sponsored systems of dispute resolution, derive their authority from the consent of parties to the arbitration. Thus, arbitral awards have long been held to bind only the parties and only in that dispute. An award may be persuasive, or even a subsidiary source of international law, as provided for by Article 38 of the Statute of the International Court of Justice codifying the customary law on sources of international law. However, to call it precedent strictu sensu is overstating its legal authority.
Further, contrary to what some scholars have asserted, the Tinoco arbitration does not support a doctrine of odious debt. The Tinoco arbitration concerned government succession, not state succession. The putative doctrine of odious debt could only apply to state succession, not government succession.
In state succession, there are no comprehensive rules as to whether the successor state continues to be bound by the obligations of its predecessor state. Thus, an odious debt doctrine, if it existed, could supply rules governing a narrow category of debt obligations to fill the interstices.
In government succession, international law has long held that a successor government is always responsible for the debts of its predecessor. As Odette reproduces Taft’s invocation of John Basset Moore: “Though the government changes, the nation remains, with rights and obligations unimpaired.” (p. 74).
The Tinoco award is consistent with exclusion of a doctrine of odious debt from government succession. Taft stated that restorationist Costa Rica government was responsible for the debts of the Tinoco government. The successor Costa Rica government was not responsible for the concession in question not because it was nullified by odiousness, but because it was improperly executed under the law applicable to the concession. The successor government was not responsible for the debt incurred by Tinoco for his personal use not because it was a state debt invalided by odiousness, but because it was never a state debt to begin with, even if it was dressed up in sham words to disguise it as such. Under the award, had the Tinoco government incurred debts under Costa Rican law to buy arms or pay soldiers to murder, rape and plunder resistance fighters, the resistance could have found themselves responsible for those debts when they formed the restorationist government.
Ultimately, however, since Odette is concerned with the invention of law, doctrinal irregularities of her proposal under existing law are of less import. What matters most is whether the proposal does what it says it will do.
Here the devil is in the details. Odette states that one advantage of her proposal is that “it presents a coherent framework for understanding internationally valid sovereign action on the basis of a state’s internal rule of law.” (p. 81). But if the rule of law in this context means simply that tyrants will have to enter into loans or concessions with foreigners by complying with proper domestic legal procedures, this proposal does not go very far in protecting the oppressed. One of the hallmarks of tyrants is their ability to change laws to suit their whims.
Another potential advantage of Odette’s proposal is that it is supposed to “pay greater attention to a state’s underlying populations.” (p. 110). When ravaged by a despot, a state desperately needs money: to rebuild its roads; educate its children; care for its injured. There is no nexus between the injustices of the past and the financial needs of the future. Canceling loans that financed oppression in the past does not necessarily account for the impact on access to fresh loans and damage to business relationships. Conversely, respecting debts incurred legitimately does not account for their financial burden on the population. If the policy goal is to stabilize and develop transitional states, then the law we recommend should not fixate on old grievances. Instead, the legal principle guiding renegotiation should focus on the effect of termination or continuity of obligations on the state moving forward.
One of the joys of membership in the international college of jurists, along with Odette and others, is the intellectual exchanges that unite us in the search for better laws. Opinio Juris has enhanced this experience by providing an opportunity here to debate, discuss, and disseminate. I look forward to vigorous responses from Odette and others, after which I hope we will have a drink together.
Who is the “Sovereign” in Sovereign Debt? Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century (Abstract)
Combining legal interpretation with political science analysis, this Article highlights the competing “statist” and “popular” conceptions of sovereignty at stake in sovereign debt issues. It argues that these two dominant approaches do not exhaust the offerings of intellectual history and considers an alternative approach that emerged in the early twentieth century and may be of relevance again today. The Article contends that U.S. Chief Justice Taft’s foundational 1923 Tinoco decision, which grounds the current approach to sovereign governmental recognition, has been misinterpreted to support a purely statist or absolutist conception of sovereignty. It argues that a proper interpretation presents an intermediate or “rule of law” framework that coincides with Taft’s domestic jurisprudence and provides an alternate conception of sovereignty for the current lending system. In emphasizing the historical and theoretical contingency of the current sovereign debt regime, this Article problematizes the assumption in mainstream international finance that only a narrow conception of sovereignty and a strict practice of debt repayment are consistent with a functioning sovereign credit market. Considering the economic and geopolitical context of Taft’s decision, the Article also suggests that the changing nature of creditor competition may partially account for variations in the concept of sovereignty underlying sovereign debt.
You can read the entire article here.
I wish to thank Karima Bennoune for her criticisms and comments on my article “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law.” I wish also to thank Jon Finer and the editors of the Yale Journal of International Law for this wonderful opportunity to discuss the piece.
The inspiration behind Suspect Symbols is the idea of “value pluralism” which, as stated in the Introduction, takes the plurality of valuable options and ways of life to be ultimate and irreducible. The defining features of value pluralism are thus its anti-monistic position as an ethical theory, its view that conflicts of values are an intrinsic part of human life and that there is no single right answer in choosing between them, and that conflicts between entire ways of life suggest that not only individuals but also communities may be the principal bearers of rights (and duties) in pluralist political orders.
If we think even for a moment about current controversies in the world involving claims to freedom of religion—whether the so-called affaire du foulard in France and other European nation-states (and importantly also Turkey); the Muhammad cartoons controversy in Denmark and other predominantly Western states; or various areas of family law on issues such as marriage, divorce and custody—we can’t help but be struck by the variety of normative settlements both within and between different ways of life and the patchwork of legal dispensations that actually exist in the world. All states enact laws limiting the religious activities or practices of individuals and groups in that society to some extent, and in doing so all states assert certain specified reasons and grounds of justification for such limitations.
Irrespective of how such issues as the wearing of the Islamic headscarf may be resolved in particular domestic legal systems, the animating question for my work is how such questions are to be addressed as matters of international law. Do such practices perhaps violate or are they rather protected by international human rights norms regarding freedom of religion and belief and other associated rights? What, in particular, would we need to know in order to make such a determination? Indeed, is such a determination possible either as a matter of law or at the level of theory?
These are the questions that Suspect Symbols seeks to engage. Using the affaire du foulard as its theme, the article explores how even neutral laws of general applicability such as France’s Law 2004-228 banning the wearing of ostentatious religious symbols in public schools can result in claims of differential treatment (and thus unfair discrimination) by restricting the activities of only certain individuals or groups. Such questions of equal treatment, in turn, call into question the historical relationship between religion and the state with each state’s particular religious identity and constitutional matrix giving rise to its own complex patchwork of compromises and dispensations. The article’s general argument is that, together, such considerations of religious, ethnic and cultural diversity—and, in particular, deeply-held conceptions of individual and collective identity—suggest certain limits to the rationalist ambition of advancing a tidy and universally applicable theory of religious freedom in international law.
In this respect, the project is similar in inspiration to John Gray’s recent attempt to formulate a variety of “agonistic” liberalism which is “grounded, not in rational choice, but in the limits of rational choicelimits imposed by the radical choices we are often constrained to make among goods that are both inherently rivalrous, and often constitutively uncombinable, and sometimes incommensurable, or rationally incomparable”. See John Gray, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age 68-9 (1995). The argument thus pursues three lines of critique similar to those earlier advanced by Joseph Raz in his Morality of Freedom, as follows:
(i) in terms of method, by rejecting the notion of a fixed structure of basic liberties in recognition of the fact that the form of rights that best promotes autonomy is necessarily indeterminate and variable;
(ii) by recognizing that intrinsically valuable forms of human flourishing and ways of life enter into the value of autonomy itself such that forms of autonomous choice will vary in different societies; and
(iii) in acknowledging that incommensurabilities between ultimate values set a limit to the rationalist ambitions of legal and political philosophy.
Given this as the underlying ethos and logic of Suspect Symbols, it is rather dispiriting to note that Professor Bennoune has apparently commented on the article she wished I had written rather than the one I actually wrote. Rather than take up the article’s central conceptual and theoretical challenges regarding value pluralism and incommensurability of value, what attracts Bennoune’s initial interest and concern is footnote 214 at the end of the article and its discussion of the Shah Bano case. In particular, Professor Bennoune’s criticizes my account of Shah Bano for being insensitive to issues of gender equality and for “express[ing] little concern for Muslim women themselves who may be denied post-divorce maintenance” under Islamic family law in India. The article thus “only centers inter-group dynamics, not intra-group dynamics” and, while it does suggest “contestation as a remedy” in cases of conflict between competing claims to religious freedom and gender equality, it makes “no suggestion of what such a process could or should produce—or how it is to be mediated—or how women can be empowered within it.”
These are justified and very real concerns (which incidentally I personally share) and there are indeed libraries discussing this specific aspect of the relationship between religion and human rights. But in choosing the particular perspective of gender equality and the patriarchal structure of religious law and practice, Professor Bennoune misses the main point of the article. First, why should an article directed to the question of value pluralism substantially privilege one particular type of equality claim over others? There can be no doubt that women are an oppressed group whether in different religious groups or nation-states themselves (see, e.g. Catherine MacKinnon’s “Women’s Status, Men’s States” in her Are Women Human? And Other International Dialogues at pp. 1-14). But why focus on this particular oppressed group as against others? Why not focus, e.g., on the claims of children who may suffer various severe harms in the family, religious groups and states (think of the recent case involving the forced removal of 450 children from a polygamous Mormon group in Texas)? Why not focus on sexual minorities who face various forms of “dual subordination”, e.g. lesbian Muslim women in India who may seek to reject oppressive patriarchal religious structures only to find that the secular Indian state criminalizes a particular form of sexuality? What about discrimination by religious majorities themselves against certain religious or non-religious minorities (think, e.g., of states such as Iran, Israel or Russia)? And what about discrimination by states towards non-nationals on the basis of religion, ethnicity, gender, sexuality, and so on? These issues are not addressed in the article either; but this does not make them less important or not questions of genuine concern.
Second, and more critically, what is the normative basis for Professor Bennoune’s apparent privileging of claims to gender over religious equality? As illustrated by the detailed discussion of laws proscribing the wearing of the Islamic headscarf in the four nation-states of France, Germany, Turkey and the United States, the article addresses the question of how the State in essence protects whatever state interests it has as against the claims of religious groups. This is not a debate primarily within religious communities, but between religious communities and the State (or majority group) itself. Regardless of the merits of competing positions, the interesting question is why such debates within religious communities create different normative claims to those between religious communities and the state. Here, the idea of value pluralism allows us to see that there is in fact more than one substantive equality claim at issue.
The demand of the Muslim community in India for an autonomy regime and legal recognition of religious and other “personal” laws is a demand against the Indian state for substantive equality on the basis of religion or belief. In a case such as Shah Bano where a conflict arose between a Muslim personal law requiring the return of the marriage settlement upon divorce and the payment of maintenance only for the period of iddat, and the Indian Code of Criminal Procedure requiring monthly maintenance in specified situations of need, we are thus faced with a genuine conflict not between a liberty claim on the one hand and an equality claim on the other, but between two competing conceptions of equality: one protecting India’s Muslim minority against other majority and minority groups and the other the equal rights of women in India regardless of religion. Why recognize or privilege only the second substantive equality claim and not the first? And if both claims are to be given their due, how are the conflicts between them to be resolved?
One possibility is for the State to exercise its overriding legislative power—what Robert Cover once called the state’s “jurispathic” mode of coercively suppressing the “fecundity of the jurisgenerative principle” through the domination of autonomous paideic communities under a unitary law. But if so, what principle should the state employ? Professor Bennoune presumably believes the state ought to privilege whatever is best for women according to some conception of liberal substantive rights. Of course, if certain (nonliberal) religious communities are themselves strongly represented in state-based processes of democratic deliberation, then this may possibly defeat this objective (or, alternatively, may show the inadequacy of state law to protect the religious freedom of various minority groups). Thus, Bennoune must either be assuming a certain form of secular liberal democratic state or the applicability of international human rights norms such as Article 5 and 16(1) of CEDAW. (It is interesting to note that India has a reservation to both these provisions agreeing to abide by them only “in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent”). But what is this conception of equality exactly and who is to decide both its substantive meaning and its scope of application? Does it entail the version of maintenance upon divorce currently seen as meeting the demands of substantive gender equality in say France, or Australia, or perhaps Brazil? Or is it rather the latest account advanced by Catherine MacKinnon, or Abdullahi An-Na’im, or perhaps by Professor Bennoune herself? And how exactly is any such an account to be squared with the Indian Constitution’s commitment in Articles 26-28 to guarantee the communal autonomy of India’s religious minorities?
We may also ask whether the ultimate goal sought under the twin banners of “secularism” (or “equal individual rights”) and “gender equality” is for religious personal law to disappear altogether and to be replaced by a uniform civil code? Recall, e.g., Susan Moller Okin’s striking statement in her essay Is Multiculturalism Bad for Women? that it “is by no means clear, from a feminist point of view, that minority group rights are ‘part of the solution’” and in the case of nonliberal minority groups in liberal states, “female members of the culture … might be much better off if the culture into which they were born were either to become extinct (so that its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women—at least to the degree to which this value is upheld in the majority culture.” Is this the possibility of a “final solution” of which Isaiah Berlin once spoke—the prospect that mankind could be made ‘just and happy and creative and harmonious for ever’, for which no price could be too high to pay”? If so, what exactly is the price to be paid, how is to be exacted, and what, if any, are the possible alternative futures?
Ironically, in order for the state to be right in its codification of the demands of substantive gender equality, it must ignore or simply override the nuanced and contested internal arguments within religious communities themselves (the very “internal politics and debate among Muslims and those of Muslim, North African, and Arab heritage” which Bennoune oddly claims are “disappeared” in my article). The argument of Suspect Symbols is that there are strong normative reasons why the state ought to exercise considerable deference to the arguments going on there and that the struggle over the status quo ought not to be decided solely by the state according to what prevailing national majorities (recall the intolerant and threatening role of the Hindu Right in the Shah Bano controversy) or secular liberal academics, judges or bureaucrats decide.
Of course, how such claims are to be mediated is, yes, essentially-contested but require at a minimum an intersubjective and dialogic understanding of rights discourse. A helpful illustration of this dynamic is the current debate in South Africa over the recognition of Muslim personal laws. (Incidentally, this issue is now arising in a number of “Western liberal democracies” such as in Canada where the Ontario Law Reform Commission is reviewing whether Islamic principles of family and inheritance law could be used to resolve disputes within the Muslim community in Canada, and in England where the Archbishop of Canterbury has recently noted that Muslim communities seek the freedom to live under sharia law and has urged an exploration of what “might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom.”) After extensive consultations with Muslim communities, the South African Law Reform Commission proposed in July 2003 a draft Muslim Marriages Act which inter alia recognizes Muslim marriages (including polygynous marriages) and deals with a myriad of issues from registration, to dissolution, to custody of and access to minor children, and to issues of maintenance (both spousal and child support). In response, the South African Commission for Gender Equality (CGE) has drafted an alternative bill called the Recognition of Religious Marriages Act which is stated to be a “secular bill of general application” and which provides for the recognition of all religious marriages (thus avoiding issues of codification of specific religious doctrines).
For a recent discussion of the tensions between these two bills, see the research report by Rashida at www.law.harvard.edu/programs/hrp/documents/Manjoo_RashidaWP.pdf. These are precisely the type of conflicts which value pluralism both anticipates and celebrates. In South Africa, we can thus see a robust constitutional dispensation which provides the normative space for contestation between what Shachar has termed a “religious particularist” conception of pluralism in which different religious communities have legal power over issues of personal status and a “secular absolutist” conception in which the state has authority over family law matters and all citizens are subject to a uniform secular family law. That this contestation will yield varying forms of legal pluralism and accommodation while at the same time seeking to maintain the existence of different majority and minority cultures should not surprise us either descriptively or normatively.
Far from attempting to “opt out of the debate between universality and cultural relativism” as Professor Bennoune alleges, such a view of value pluralism seeks to take both notions seriously and endorses neither illiberal nationalism nor religious fundamentalism. If this has a “whiff of relativism” to it then yes, guilty as charged. But, following Steven Lukes, we should be careful to note that pluralism differs from relativism in at least three ways:
(1) pluralists see value choices as determined by “fundamental moral categories and concepts that are part of people’s being, thought and sense of identity,” whereas relativists see “whole outlooks as determined by forces of which people are unaware;”
(2) pluralists see cultural differences as “bridgeable” whereas relativists do not; and
(3) pluralists take the “values that divide cultures, groups and individuals to be objective, whereas relativists do not.”
In order for value pluralism not to lapse into the subjectivism of either utopian universalism (fundamentalism, whether religious or secular) or apologetic relativism (illiberal nationalism), it must strive for objectivity by continually seeking an overlapping consensus on the conflicting ends that divide cultures, groups and individuals. What needs to be recognized is that claims of equality and nondiscrimination—even in the most liberal of societies with their own historically contingent public-private divides—raise fraught and complex questions in their relationship to religion and culture. If the plurality of conflicting values is to be mutually respected (rather than uncritically dominated by a single value or a particular set of values originating in late 18th century Enlightenment thought), conflicts between equality norms and collective identities must be interpreted and intersubjectively discussed in continuity with each society’s historic traditions and reference points. Indeed, it is now widely recognized that “fundamentalist” resistance to the redefinition of cultural and religious forms can be correlated with the extent to which outside portrayals or attempts to influence a tradition are made in condemnatory or contemptuous terms. As Charles Taylor has observed, this is a “self-reinforcing dynamic, in which perceived external condemnation helps to feed extreme reaction, which calls down further condemnation, and hence further reaction, in a vicious spiral.” If the argument of Suspect Symbols is not just “literate” but correct, then the case to be argued against well-meaning advocates such as Professor Bennoune is: “Pluralism for the liberals; relativism for the cannibals.”
Response to Peter Danchin’s “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law
I am grateful for the opportunity to read and comment on Peter Danchin’s “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law.” The tolerance that it advocates reflects a generally healthy human rights impulse. Hence, I wish that I could write a positive response to the article into which a great deal of thought and work has obviously gone. Unfortunately, while it is well-written and literate, I disagree with a number of its ideas – and find some of them especially alarming from a women’s human rights perspective.
Like much writing in the field of international human rights on freedom of religion, the article is virtually gender blind and fails to seriously take into account the extensive literature in feminist legal theory and in women’s human rights on the range of implications of collective rights for women. Indeed, in his account of the Shah Bano case in India – in footnote 214 – Danchin tellingly worries about the potential essentializing of Islamic culture and history that can come from critiques of gender discriminatory practices of Islamic family law in India, but expresses little concern for Muslim women themselves who may be denied post-divorce maintenance under that body of law. Moreover, it may mean very different things for men than for women that his value pluralism “calls into question the exaltation of individual autonomy.” Some men can take such autonomy for granted within the collective, many women cannot. Ultimately, Danchin only centers inter-group dynamics, not intra-group dynamics. He does not seriously question who speaks for a community nor does he interrogate who defines the claims of a group in a group rights framework.
While his theory of value pluralism is articulately argued, it is unclear what it actually means in the real world of conflicts over human rights, especially for women. He suggests that his aim is to “satisfy and mediate” both the “demand for substantive equality between religious and cultural groups in a theory of toleration and differential treatment by the state and the demand for substantive equality in terms of the treatment by the religious minority of the autonomy of its own members.” However, something has to give in resolving such claims when they conflict – and in the real world it is usually women’s human rights that are surrendered to the particular, to the communal, and to religious justifications for sex discrimination. Human rights law offers insufficient guidance on resolving such conflicts between the right to religious freedom and the right to gender equality. While Danchin suggests contestation as remedy (in footnote 220), he makes no suggestion of what such a process could or should produce – or how it is to be mediated – or how women can be empowered within it.
As to the issue of religious symbols, I will focus only on his discussion of headscarves worn by Muslim women, a topic on which I have written. (For a full exposition of my own views, please see Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression and Women’s Equality Under International Law, 45 Colum. J. Transnat’l. L. 367 (2007). This article is cited in Danchin’s footnote 18. However, the point in Danchin’s text to which the footnote attaches fails to convey the complex, contextual point I was trying to make, and the specific quote in the text is not attributable to me.) Other than my article, Danchin cites almost exclusively literature on his side of the debate on this question. The many critical views of headscarves and their meanings for women written by people of Muslim heritage, like Chahrdott Djavann’s, BAS LES VOILES ! (2003) or Ghais Jasser’s The Twin Evils of the Veil, 5 Soc. Identities 31 (1999), or Malika Zouba’s Voile et dépendance, 59 Confluences Méditerranée 33 (Fall 2006), to name but a few, are omitted.
Danchin refers to religious fundamentalist movements as a “perceived threat” on page 6. In fact, women’s human rights experts like Hilary Charlesworth and Christine Chinkin have argued that religious fundamentalisms represent one of the greatest contemporary threats to the human rights of women. Yet, this topic remains largely overlooked in much of the human rights literature outside of the specialized field of women’s human rights. International human rights scholarship and critique has often portrayed a range of complex socio-political questions as simple matters of difference and individual rights to freedom of religion. No topic has more thoroughly manifested these shortcomings than the commentary on the regulation of headscarves in French public schools.
In the polarizing post-September 11 environment, many international human rights advocates and other critical voices have understandably been concerned with not appearing to be discriminatory against Muslims. To avoid this pitfall, such voices have often responded with a thin anti-racist account of the headscarf controversy in France, an account simply pitting a racist French state against headscarved Muslim girls who are being hampered from expressing their individual religious beliefs. In this narrative, as in Danchin’s article, all of the internal politics and debate among Muslims and those of Muslim, North African, and Arab heritage on this topic is thereby “disappeared.”
I conducted research last summer in the Muslim community in France among those many members of the community who support the ban on religious symbols in public schools as a way to combat pressure on women and girls, and on the secularism that secures their rights, by fundamentalist Muslim organizations. (See The Law of the Republic Versus the “Law of the Brothers”: Muslim and North African Voices in Support of the French Law on Religious Symbols in Public Schools, in HUMAN RIGHTS ADVOCACY STORIES (Deena Hurwitz et al. eds., forthcoming 2008)). Some women and girls may wear such garments as a personal religious or other choice (though the latter term needs to be understood in nuanced, contextual ways). However, fundamentalist groups have been strong proponents of headscarves and other “modest” clothing – pushing more and more restrictive garments that often have nothing to do with the local traditions or heritages of the women and girls in question. For example, girls of North African heritage are exhorted to wear the imported Iranian hijab and djilbab – specific garments entirely foreign to North African religious tradition prior to the Iranian revolution. Coercion and violence are sometimes used to impose such “dress codes.”
Danchin asserts that “In most religious traditions, the wearing of religious symbols or attire – for example the Jewish yarmulke, the Sikh turban, or the Islamic hijab – is not a simple matter of choice, but a matter of religious duty, ritual and observance. (emphasis added)” With regard to the hijab, this is – to borrow his favored paradigm – highly contested. He is choosing one particular interpretation. Many Islamic feminists, and others, dispute the interpretation of religious tenets that make such covering a religious duty per se. And, in any case, for the most part, such “duties” have largely been interpreted by men.
The most worrying assertion that Danchin makes here is to refer to women who wear the hijab as those who “take [their] religious obligations seriously.” (page 6) In this worldview, Muslim women who do not cover become those who do not take their religious obligations seriously – rather than simply having a different interpretation of what it means to be a Muslim woman. Such a view of them can have a range of grave consequences, from ostracization to violence, in the real contexts where women face these dilemmas. It is precisely such implications which have led some feminists of Muslim origin to argue that the wearing of headscarves by some girls in schools, especially schools with a high percentage of Muslim students, can indeed have a negative impact on the human rights of other girls. Thus, some limits on the wearing of headscarves in school in particular contexts may come within exceptions to the right to express religious belief as found, inter alia, in Article 18(3) of the International Covenant on Civil and Political Rights. Danchin, like a number of Anglophone human rights critics of the French law, rejects this possibility out of hand.
His attempt to exempt himself from having to deal with the actual context of these problems, by stating in footnote 11 that he will not consider “relations between local ethnic and religious groups and movements in foreign countries, or the political mobilization of different groups and the nature of their demands with the resulting potential for violence or other rights violations” suggests that he is avoiding the very heart of the problem. The failure of liberal and human rights forces to comprehend and respond forcefully to the menace of religious fundamentalisms, in this particular manifestation to Muslim fundamentalist pressure on women and girls to cover, needs to be addressed.
As to Danchin’s attempt to opt out of the debate between universality and cultural relativism by offering the additional alternative of value pluralism – this alternative has a whiff of relativism itself. He notes that “there is a plurality of ways of thinking not just about the good, but also about the right.” In some ways this is a healthy reminder to avoid hegemonic constructs of universality. On the other hand, for women in particular contexts, such equivocation can be perilous. Danchin posits that “(h)uman rights are not immutable truths[,]” but rather “conventions, whose contents vary as circumstances and human interests vary”. In some ways this is again a helpful warning against Western liberal human rights imperialism. But for those on the frontlines of the struggles against movements that seek to deny women’s equality, and to justify grave and pervasive forms of sex discrimination in the name of religion and culture, such language can represent a damaging capitulation. This approach risks deconstructing the tools they need most.
While I believe the motivation of this article is to advance the laudable goal of preventing religious discrimination in a time of prejudice, because of Danchin’s failure to contextualize, he ends up arguing the very theoretical “view from nowhere” that he critiques. As he is an obviously erudite human rights theorist, I urge him to re-think his approach to these crucial questions.
Consider the following statutory provision:
In public schools, students are prohibited from wearing symbols or attire through which they conspicuously exhibit a religious affiliation.
Such a law, now familiar in the wake of the recent affaire du foulard in France, appears prima facie to violate the most basic tenets of the right to freedom of religion and belief in international law. Article 18(1) of the International Covenant on Civil and Political Rights provides that everyone has the right to freedom of thought, conscience, and religion, including the freedom “either individually or in community with others and in public or private, to manifest . . . religion or belief in worship, observance, practice and teaching.”
In most religious traditions, the wearing of religious symbols or attire—for example, the Jewish yarmulke, the Sikh turban, or the Islamic hijab—is not a simple matter of choice but a matter of religious duty, ritual, and observance. Within different traditions, there are a variety of ways in which religious symbols work. In Christianity, for example, the crucifix is worn as an ornament of conviction whereas in Judaism the yarmulke is worn as a matter of religious obligation.
For certain ethnic, religious, and cultural groups (whether they comprise the majority or a minority), wearing religious or traditional dress is closely bound up with spiritual practices and is a defining element of group identity. For Islamic girls and women the wearing of the hijab may be a form of social obligation which is religiously-motivated rather than a matter of religious duty per se. This, in turn, has an intergenerational dimension with the continuity of religious tradition being seen as a critical factor in the survival of specific cultural, religious, and linguistic groups.
While the specific historical reasons for the wearing of religious symbols and attire may vary in different religious traditions, the one common feature is the centrality of such practices to the manifestation of religious belief. Given this widely-acknowledged fact, on what possible grounds—and for what reasons—can a state seek to limit this aspect of the freedom to manifest one’s religion?
Considerable scholarly attention has been paid in recent years to the French law proscribing the wearing of religious symbols in public schools and to the issue of Muslim minorities in European nation-states more generally. This Article responds to a deeper concern. Stepping back from these debates, and from some of the more comfortable philosophical and jurisprudential assumptions upon which they appear to rest, it aims at a more rigorous theoretical treatment of the subject.
The Article thus asks whether there is a coherent notion of religious freedom in international law and, if not, why not? In identifying certain problematic aspects of the extant literature, it advances an argument which seeks to overcome the current impasse in liberal theorizing: the idea of value pluralism as a theoretical basis for religious freedom in international law. By acknowledging rather than seeking to avoid the disabling indeterminacies of rights discourse, and by recognizing the intrinsic connection between individual autonomy and communal goods, value pluralism opens new pathways for reimagining the limits of liberal theory and for cultivating an ethos of engagement toward currently intractable questions of subjectivity and intersubjectivity.
The full article can be read here.
The Yale Journal of International Law is pleased to inaugurate its partnership with Opinio Juris in this first online symposium. This week’s symposium will feature three articles recently published in Vol. 33-1 of YJIL, available here.
Our discussion today will focus on the controversies that have arisen over attempts by states to regulate their citizens’ wearing and display of religious symbols. In his article, Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law, Peter Danchin (U. Maryland) looks to cases from France, Turkey, Germany and America, in an attempt to determine whether there is a coherent notion of religious freedom in international law and, if not, why not? He advances his own, novel theory, rooted in the discourse of value pluralism. Professor Karima Bennoune (Rutgers) will be the respondent.
On Tuesday, Odette Lienau (Harvard) will discuss Who is the “Sovereign” in Sovereign Debt?: Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century. In her article, Lienau, a Ph.D.-candidate in Government, blends legal interpretation and political science analysis to propose a third way of conceptualizing and evaluating issues of sovereign debt, beyond the dominant dichotomy between the “statist” and “popular” approaches. Her intermediate or “rule of law” framework emerges from an innovative reinterpretation of a landmark opinion by William Howard Taft. Professors Arthur Mark Weisburd (UNC) and Tai-Heng Cheng (New York Law School) will be the respondents.
The symposium will conclude on Wednesday with a discussion of The Minimum Core of Economic and Social Rights: A Concept in Search of Content, by Katharine G. Young (Harvard). In her article, Young, an S.J.D. candidate, explores what she terms the “indeterminate” landscape of economic and social rights in an attempt to conceptualize a minimum core. Professor Mohsen al Attar (U. Auckland) will respond.
We encourage you to join in the online discussion this week. Throughout the symposium, we hope that you will visit our website to read full copies of the articles and to continue the scholarly conversation.