It is probably the case (or perhaps I just hope that it is) that most international lawyers get into the area as they have some sense of justice, and also that those that became human rights lawyers did so on the basis that it is the role of such lawyering that it is to improve the lives of human beings. Where there are perhaps differences though, even amongst human rights lawyers, is about the best way to go about making the world a better place for people. It is probably fair to say that, at least in the West, the majority of human rights advocates focus on the Civil and Political Rights (CPR) angles on point. (p.10). As such, at least in legal scholarship on human rights, Economic, Social and Cultural Rights (ESCR) tend to be seen as the somewhat unloved step child of the ‘real’ (CPR) rights.
It is Dr Schmid’s goal to challenge this, through the specific lens of the extent to which international criminal law (ICL) already covers violations of ESCR (p.22). As such, the book deals with an area which has, at least in the West, received a level of attention that has been, historically, low (the two International Covenants of 1966 (on CPR and ESCRs) were the brainchildren of the West and the socialist/non-aligned States respectively, so perhaps there was more scholarship on ESCR in socialist States, there is certainly more attention given to them in Africa. Neither Convention would probably have gone through without the other, and as the Vienna Declaration (noted by Schmid e.g. at p.14, & 25) made clear, the generations of human rights (1999) need to be treated as indivisible and given the same level of focus.
Hence, I am automatically predisposed as a lawyer and person to this project, and the work. It should be said, at the (almost) outset that Dr Schmid has, in my view, written an excellent piece of scholarship, and one that is well researched, well written, and well thought through. Technically, it is refreshingly clear about its research questions and central contention (pp.1-2, 22)).
The book is broadly split into three parts. The first is largely conceptual, and is designed to refute what Dr Schmid terms (with great accuracy) the ‘legal impossibility’ argument, i.e. that ESCR are non-justiciable political aspirations. Indeed, the way in which the work proceeds is very well conceived on point. After all, if the contention to be responded to is that ESCR are merely aspirational, unlike the ‘hard’ CPRs that are the business of ICL, then proof that ICL covers ESCR is a strong counterargument. If decisions on criminal liability that relate to ESCR, with ICL’s strictures that come from the nullum crimen principle (noted at pp.71-3) that add to general concerns of legal certainty to which critics of ESCR make (or made)), then criminal liability is the a fortiori case against the legal impossibility argument. This is, to me, what Dr Schmid is arguing. If so, I agree. Read the rest of this entry…