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Home Human Rights Economic Social Cultural Rights Book Discussion: Introducing Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

5 Responses

  1. Miroslav Baros

    This is an interesting and pretty ambitious idea: to include the so-called “second generation” human rights (with full respect to the author’s suggestion that the indivisibility is harmful!) into international criminal law when their domestic protection and promotion is pretty bad and it is getting worse since 2008. Being “aspirational and progressive” in terms of acquiring a higher legal status makes it very difficult in my mind to make this argument; but good luck!

  2. Miroslav, your reaction illustrates that some of the long-refuted assumptions about economic, social and cultural rights (ESCR) continue to be made. One of these assumptions is the idea that all aspects of ESCR are inherently and always ‘aspirational and progressive’ (while civil and political rights would somehow have no aspirational dimensions?). In the words of Louise Arbour, this idea is really ‘an old misconception that dies hard’. I deal with this and similar assumptions in quite some detail esp. in chapter 2 and 3 of the book (or in this article if you are interested: http://ijtj.oxfordjournals.org/content/8/3/362). Also, I would respectfully caution against the use of the vocabulary of ‘generations’ of human rights (thanks for the qualifier – so-called generations!). The generational analogy simply makes no sense. The rights in both Covenants (and elsewhere) have common origins and the term ‘generation’ seems to presume the prioritisation of civil and political rights. Also, would the right to self-determination belong to ‘generation zero’ as it is contained in the first article of both Covenants?
    In any event, if you don’t mind, I should thank you for providing a spontaneous illustration of an important starting point of my book, i.e. what I term the ‘legal impossibility argument’ and the corresponding and (in my view: unfortunately) far too widespread assumptions about hierarchies of human rights.

  3. Sunčana Roksandić Vidlička

    The “legal impossibility” of adjudicating ESC rights in the international criminal law arena is a clear misconception (see e.g. Nuremberg economic trials). Unfortunately, serious economic crimes and violations of economic, social and cultural rights have often been neglected in criminal proceedings and/or reports of truth commissions that have followed economic transitions or conflicts. It is a matter of time when this will change (in the TJ filed it did already). Obviously, post-conflict state building based primarily on enhancing civil and politic rights did not prove itself to be a total success story. Moreover, in my opinion, the ICC should engage in prosecuting serious economic crimes that violate economic, social and cultural rights, especially since it was proven many times that committing those crimes perpetuates and facilitates armed conflicts.
    I must add that my research also focused on the concepts of criminal responsibility for severe economic offences committed in the transitional period, as well as on establishing serious economic criminal offence as crime under international law (forthcoming 2016). Evelyn’s excellent research gave me more arguments to emphasize legal and social preconditions under which serious economic offences in general may be characterized as crimes under international criminal law.
    To underline, the scholarship in this filed is and should be rising. Talking about peace and security, TJ and ICJ without mentioning ESC rights and serious economic crimes just makes no sense. Even ICC’s former prosecutor called for such prosecutions to be conducted before the ICC. Addressing seriously ESCR should be “The topic” for international criminal justice arena (including ICC). It is not more a question of being aspirational or progressive, it is a necessity.

  4. Miroslav Baros

    Evelyne
    I was simply referring to the fact that social, economic and cultural rights are different in substance and their implementation and not only in the intensity of violations as somebody also noted. I also wanted to suggest that there is an incongruity in argument that, in spite of this group of rights not being equally protected even in Europe (for example in the UK there is simply no “legal” protection for “most economic, social and cultural rights” (please see: Joint Committee on Human Rights, 21st Report: http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/183/18305.htm) they should be included in international criminal law. So I do not have choice but to respectfully disagree that the distinction illustrates a “long-refuted assumption” as you state; you state Ms Louise Arbour in support of the claim. Conceptually speaking I agree that the generational analogy makes no sense and that any divisibility is rather harmful. But don’t forget that the classification was first suggested by a politician in 1979. But it also reflected the Western states’ approach to human rights with the implicit prioritisation. More recently, in its Report on Austerity Measures and Economic and Social Rights in 2013 the UN HRHC assessed the impact of austerity on those rights only; so to suggest that the issue had authoritatively been settled and the distinction “refuted” I have to reject.
    As far as the “right to self-determination” is concerned (I don’t really see the relevance of making reference to this right in your response, apart from probably intending to expose my misunderstanding by asking if I would categorise this right as “generation zero”!? – surely would not) that particular right would, according to the generational analogy belong to the “third generation” or “groups” rights because of which many, as you know deny the category the status of human rights. And finally, I do not use the generational analogy; as you noted I qualify it with “so-called” descriptor, but thank you for the warning!

  5. Thanks for engaging with the topic. Miroslav, my argument is not that ESCR ‘should be included in international criminal law’ – as Larissa van den Herik cautions, there cannot be any direct ‘transplants’ given that the two bodies of law are very distinct. Rather, my argument is that de lege lata, international criminal law can already engage (and has engaged) with many claims that factually relate to violations of economic, social and cultural rights.
    On the other points of disagreement: In his post, Carsten Stahn makes an important point about the difficulty of the idea of dividing rights into ‘groups’ or categories in the first place – I will elaborate on this tomorrow in my response. happy reading!