I am grateful, first, to Robert Cryer, Carsten Stahn and Larissa Van den Herik for the thoughtfulness with which they have engaged with my book Taking Economic, Social and Cultural Rights Seriously in International Criminal Law. Such constructive engagement is a precious encouragement not only for me as a scholar but for anyone who wishes to see the largely ‘separate epistemic communities’ of international criminal lawyers and human rights lawyers join forces in attempts to explore how each field can contribute to ‘making the world a better place for people’, and where the limitations of their fields lie. Second, my thanks to the EJILTalk! editors for providing the opportunity for a continuation of the discussion beyond the book.
Before turning to individual points, I want to briefly address two key commonalities of the comments. The first one is that all three discussants accept my central contention that existing norms of ICL can de lege lata overlap with violations of ESCR. This, in and of itself, is remarkable given the suspicion with which ESCR have long been met by international lawyers. After all, and as Larissa rightly stresses in her comment and in this book chapter, there are good reasons why ICL emphasises the principle of legality. Any attempt to link ICL with ESCR will only be convincing if it successfully engages with the decade-old (mis)conceptions of ESCR as vague aspirational objectives. Otherwise, it will not overcome what I term ‘the legal impossibility argument’, i.e. the pervasive presumption that the relative lack of attention paid to ESCR in ICL can be explained because existing ICL is inherently closed to considerations of ESCR (chapter 2). All three comments mention how debunking the old myths about the legal nature of ESCR has serious theoretical and practical but yet underexplored consequences for ICL. I am thus particularly pleased – and relieved – that the book is met with comments that enquire about the potential reach and limitations of my findings but not the general idea that it is legitimate and legally possible for international criminal lawyers to consider ESCR violations as part of what ‘their’ body of law – under certain circumstances – can engage with (and has actually done so). If the book convinces readers of the possibility of overlap between international crimes and ESCR violations, and if it succeeds in setting some terms for future debates, it will have done what I wanted it to do.
The second common theme is the idea that the link between ICL and human rights law dealing with ESCR is complex. I couldn’t agree more. As all three comments observe, the book does not wish to suggest that there is a convergence between human rights law and ICL (see also Robert Cryer’s recent post here). Indeed, the book cautions against ideas of direct ‘transplantations’ and emphasises the real differences between the two bodies of law. Read the rest of this entry…