Response to Leonard S. Rubenstein

Leonard S. Rubenstein offers a thoughtful response to my article on how international monitoring and advocacy organizations that use a methodology of public shaming can best advance economic, social, and cultural (ESC) rights. His article makes three basic points.

First, he notes that such organizations can make useful contributions beyond exposing government misconduct and subjecting it to public opprobrium. Namely, he suggests that they can provide technical assistance to governments on implementing ESC rights and help with capacity building for national or local NGOs that seek such rights. Second, he contends that such international organizations need not be as concerned with advocating tradeoffs among competing ESC rights because fears of limited resources—a "zero-sum game"—are overblown. Third, he disagrees with my perceived preference for condemning "arbitrary" government conduct to the exclusion of violations of particular ESC rights.

On the first point, I largely agree with him. On the second, I regretfully suspect he has an overly sanguine view of the problem. And on the third, I fear he has misunderstood me.

As I stated at the outset of my article, its focus is "organizations such as Human Rights Watch that rely foremost on shaming and the generation of public pressure to defend rights." Rubenstein apparently misunderstands this focus when he says that I believe that "naming and shaming" is "the only appropriate method for international human rights organizations to use." On the contrary, I explicitly acknowledge "various ways to promote ESC rights," such as public mobilization, standard setting, litigation, and technical assistance. However, my essay focuses on the practical question: When does "our ability to investigate, expose, and shame" work most effectively? In asking that question, I do not mean to preclude other important methodologies. But given the number of organizations that are interested in using a shaming methodology—and given Human Rights Watch's own parochial interest in when this methodology works—I focus on shaming.

Rubenstein responds by highlighting two forms of technical assistance that might usefully be pursued: helping governments develop systems that will best implement ESC rights and building the capacity of national or local NGOs to better lobby for ESC rights. Both of these tasks are undoubtedly useful. Obviously, however, they have nothing to do with the main question posed in my article: When does shaming work?

Second, Rubenstein takes issue with my argument that realizing ESC rights often requires tradeoffs in scarce public resources—a sort of zero-sum game. In my view, international organizations that use public shaming are well-placed to point out when a government is not making a conscientious effort to progressively realize ESC rights—for example, when the government allocates resources in an arbitrary or discriminatory manner. But shaming is relatively ineffective when the issue is only how a government that is conscientiously committed to realizing ESC rights should divide up scarce resources—for example, whether funds should be spent on health care or education, or even on infrastructure projects that it is hoped will expand the economy and provide more resources for basic needs.

At times, Rubenstein recognizes the inevitability of these tradeoffs, but other times he seems to want to wish them away. For example, he concedes that governments face "competing priorities as well [as] constituencies to satisfy." But he then offers several unsatisfactory arguments to suggest that these zero-sum allocations of resources can somehow be avoided, and thus that public shaming can work even when an unfulfilled ESC right is due solely to inadequate resources.

For example, he contends, "The question . . . is not simply about allocation, but level of investment." But that's a word game because there are limited resources for "investment" as well, and governments must still decide whether to "invest" in, say, housing or food, health or education. Public shaming doesn't work any better when there are inadequate funds for "investment" than it does when there are inadequate funds for ordinary government operations to promote ESC rights.

He goes on to suggest that these tradeoffs might be avoided by focusing on "core obligations." He explains that those obligations include, for example, "minimum essential levels of health," meaning "primary...