Daniel Warner responds to Nicolas Agostini's essay on the pitfalls of 'systemic analysis' in human rights.
Thursday, August 5, 2021
By Daniel Warner*
Nicolas Agostini’s critique of the use of the term ‘systemic racism’, in the Human Rights Council and elsewhere, is perceptive, thoughtful, and inconclusive. He rightly warns that focusing on ‘systemic racism’ obscures accountability and responsibility. “If one focuses entirely on systems,” he writes, “one risks undermining the moral or legal basis of holding individuals accountable.”
The core of his argument is that one cannot hold a system responsible. By setting up a binary ‘either/or’—either the system or the individual is responsible—he rightly shows that systemic analysis lacks “nuance and proportionality.” But what he means to say is that a system cannot be punished. A ‘system’ is a vague, overarching term. How can it be punished if accused of being responsible for human rights violations? How can it be changed? The present difficulty in attaching the term ‘system’ to the notion of responsibility is similar to an older conundrum: that of corporate responsibility. What is a corporation? Corporations are legal constructs, and systems are sociological ones. When discussing them, we endow them with human characteristics: “ExxonMobil pollutes;” “systemic racism condemns Black people to a second-class status,” and so on. We give human characteristics to non-human entities because we lack the necessary vocabulary. We project human qualities onto corporations or systems because we have no other language to describe them. Forty years ago, in a famous article, Columbia Law School Professor John C. Coffee argued that corporations have “no soul to damn, nobody to kick.” That is exactly what Nicolas Agostini says about systemic racism today. But whereas corporations can at least be punished, with fines and sanctions, systems cannot. And what about states? States are, after all, the primary subject of international law. Can states be held responsible for climate change, for example? If so, what does that mean? State responsibility was the subject of extensive work by the International Law Commission (ILC), carried out over 45 years (1956–2001). The Commission’s work was terminated in 2001, with no binding conventions or treaties resulting from it. The ILC was unable to establish obligatory arbitration between states, to agree on penalties for international crimes, or to establish any formal legal structure with which to oversee legal state responsibility. Agostini wants to punish violations but thinks that indiscriminately using systemic analyses to pursue that laudable goal might end up being counterproductive. He justly emphasizes the point that punishment is a human reaction, to violations done by humans, who must be punished as humans are punished. International law agrees with him: it remains the case that the International Criminal Court can only try individuals, not states. Discussions around corporate responsibility (as well as recent discussions on artificial intelligence ethics or work such as Toni Erskine’s on the ethics of multilateral institutions) all deal with agency. To hold someone responsible for an act is very different than holding something responsible. Historically, a soul to damn and a body to kick has been sufficient but trying to assign responsibility (and punishment) to systems or corporations is a very different ballpark—just as it is for states or multilateral institutions. Agostini raises an interesting linguistic and moral problem. How can we ever hold non-human agents responsible for wrongdoing, and can we do it using existing language? It took years for lawyers to unravel corporate responsibility. Like Agostini, I am not persuaded that holding systems responsible will get us very far. In his warning about the indiscriminate use of the term ‘systemic racism,’ he tells us that the concept may sound persuasive to the ear, but that invoking it in pursuit of meaningful change could be a fruitless task.
*Daniel Warner is the author of An Ethic of Responsibility in International Relations, and ‘State Responsibility in International Politics’ in the Oxford Research Encyclopedia of International Studies.