Book Discussion: Economic, Social, and Cultural Rights and Criminal Law, What Is, and What Should Be

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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.

There are some limitations to this though, which Dr Schmid accepts. The first is that ICL does not cover all violations of all ESCR, an opinion which is eminently sensible (as are the judgments in the book more generally). The second though, is that it only covers aspects of those rights that overlap with ICL. Quite rightly though, Schmid notes that the same is true of CPR. And this should be the case, Human Rights Law and ICL are not the same things. One is, mostly, about asking for some form of limitation of the power of the State, the other is about putting people in prison. They overlap, but are not coterminous, exactly in the manner that Dr Schmid suggests (p.41). Even so, I rather wonder if the justiciability (in the more general sense) issue was settled some time ago, insofar as Hart identified the core and periphery exists in pretty much every law, and the same applies here. I have never considered ESCRs of lesser value or necessarily less justiciable (although I was taught by David Harris on this in the mid-1990s, so may just be a chip off the masterful block). Further, the book shows, through many citations of post-World War II prosecutions that the legal impossibility argument was not really tenable after, at the latest, the publication of the Law Reports, Trials of War Criminals.

The second part of the work is proof of the central thesis, that ICL (which Dr Schmid defines broadly, including many ‘transnational’ crimes) already covers many serious violations of ESCR, and, I do not intend to cover it in any detail, essentially because I think it is an exceptional mixture of an understanding of the law and practice on point, and represents a huge contribution to the literature. It integrates the relevant law and very useful case studies, which give life to the study, which especially when it comes to ESCR is a great way of grounding what too many people believe to be rather abstract rights. I could make churlish and/or pedantic points on specifics, but -sorry, cannot help myself-one may be on the nature of intention, on which I remain a common lawyer, and remain of the view that Article 30 of the Rome Statute, sadly, excludes, as a default position, recklessness/dolus eventualis I really think that Dr Schmid has done a fantastic job of integrating the law and its application on point.

In its third part, Dr Schmid discusses the consequences of violations of ESCR where they overlap with violations of ICL. These include the issue of the jurisdiction of the International Criminal Court (which is not, in spite of much scholarship to the contrary, not the Alpha and Omega of International Criminal Law), national courts, immunities and amnesties. This is the shortest part of the book, and as such discussion is, whilst still very good, more compressed.

The jurisprudential approach adopted, is, to me at least, essentially positivist. Law and policy are strictly separated (although the latter is dealt with later on in the book (in particular Chapters 8 and 9). Some might query whether this is an appropriate approach to take. For example, the idea of using law to ‘mainstream’ human rights was castigated by Martii Koskeniemmi, on the basis that the moral pull of human rights are lost in legalisation (Martii Koskenniemi, ‘The Pull of the Mainstream’ (1990) 88 Michigan Law Review 1946). That said, far be it for me to denigrate good positivistic work such as this, At least one of the parents of modern positivism, Jeremy Bentham had a point. Even so, he distinguished descriptive and censorial jurisprudence, the former being identifying the law as it is, the latter being critiquing it from a metajuridical perspective. Dr Schmid’s work is a fine example of the former.

I perhaps would, though have liked to have seen a little more of the latter, as I am certain that Dr Schmid is more than equipped to do so. Especially, it is heartening to see reference in the work to the truly inspirational work of Johan Galtung (who, as a sidenote, was highly influential on the later work of arguably the most deeply nuanced judge at the Tokyo IMT Bert Röling). Galtung’s conception of structural violence, i.e. that (at least in this context) is violence which is social and economic, rather than direct. I think however that Galtung’s point was that this is even more pernicious owing to idea that social conditions become considered natural, (in current terms, for example, the idea that ‘austerity’ is an imperative). He did not, however, advocate that criminal law was necessarily the answer. Many (although by no means all) international criminal lawyers have a tendency to think that criminal law is a panacea for many social ills. For various reasons I am not comfortable with that position. I should make clear at that Dr Schmid, very carefully, does not seek to assert that it is, nor, directly, should it be, but it would be very, very, helpful to know where we ought to draw the line on what we criminalise in this area. I do not speak to tell, I only ask.

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Matthew Sands says

March 15, 2016

Congratulations to Dr. Schmid for this work! On the joint 50th anniversary of the two International Covenants, it is really timely to raise the profile and relevance of the ESCRs.

We work to encourage States to adopt practices that prevent torture. In doing so, we are aware of the potential for overlap between gross breaches of ESCRs and other international law violations, including those which might, in some circumstances, lead to liability in ICL.

I look forward to reading the full work in due course.