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THE BEARERS OF HUMAN RIGHTS’ DUTIES AND RESPONSIBILITIES FOR HUMAN RIGHTS: A QUIET (R)EVOLUTION?

Published online by Cambridge University Press:  30 October 2015

Samantha Besson
Samantha Besson*
Affiliation:
Public International Law and European Law, University of Fribourg
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Abstract:

Recent years have seen an increase of interest on the part of human rights theorists in the “supply-side” of human rights, i.e., in the duties or obligations correlative to human rights. Nevertheless, faced with the practically urgent and seemingly simple question of who owes the duties related to international human rights, few human rights theorists provide an elaborate answer. While some make a point of fitting the human rights practice and hence regard states as the sole human rights duty-bearers merely by referring to that practice, others criticize the “state-centric” approach to human rights duty-bearers and expand the scope of the latter to include any international institution beyond the state and even private actors. Curiously, however, even those more expansive accounts of human rights duty-bearers are usually very evasive about why it should be so and especially how it should work. The time has come to broach anew the issue of the bearers of human rights duties, and responsibilities of international institutions in human rights theory, addressing two challenges: focusing on relational and directed human rights duties specifically and not on duties of global justice in general, thereby distinguishing between human rights duty-bearers and other bearers of responsibilities for human rights, on the one hand, and accounting for and justifying the point of international human rights law and practice in this respect, thereby also securing internal arguments for reform, on the other. The essay’s argument is four-pronged. It starts with a few reminders about the relational nature of human rights and the relationship between human rights and duties and what this means for the specification of human rights duties. It then focuses more specifically on the identification of human rights duty-bearers, i.e., states and international institutions of jurisdiction like the European Union (EU), and the allocation of human rights duties to them. The third section of the article is devoted to the concurrent moral responsibilities for human rights that are incurred by other various responsibility-bearers outside institutions of jurisdiction. In the final section, the essay considers the (quiet) revolution potential of the EU’s fast-developing human rights’ duties, and discusses the normative implications of the development of universal international institutions’ human rights duties stricto sensu for international law and politics more generally.

Type
Research Article
Information
Social Philosophy and Policy , Volume 32 , Issue 1 , Fall 2015 , pp. 244 - 268
Copyright
Copyright © Social Philosophy and Policy Foundation 2015 

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References

1 See e.g., on that expression O’Neill, Onora, “The Dark Side of Human Rights,” International Affairs 81, no. 2 (2005): 427–39.CrossRefGoogle Scholar

2 I am using “duties” and “obligations” interchangeably.

3 See e.g., Nickel, James, “How Human Rights Generate Duties to Protect and Provide,” Human Rights Quarterly 15, no. 1 (1993): 77–86 CrossRefGoogle Scholar; Nickel, James, Making Sense of Human Rights, 2nd ed. (Oxford: Blackwell, 2007), 37–41 Google Scholar; Besson, Samantha, “The Allocation of Anti-poverty Rights Duties — Our Rights, but Whose Duties?” in Schefer, Krista Nadakavukaren, ed., Duties to Address Poverty (Cambridge: Cambridge University Press, 2013), 408–31.Google Scholar

4 I am focusing on international human rights and understand them as being at once moral and legal rights. On the mutual relationship between domestic and international human rights and on their joint moral and legal dimensions, see Samantha Besson, “Human Rights and Constitutional Law,” in Rowan Cruft, Matthew Liao, and Massimo Renzo, eds., Oxford Handbook on Human Rights (Oxford: Oxford University Press, 2015), 279–99.

5 See e.g., Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), 109–10, 113–17, 122–25 and 160–74; Raz, Joseph, “Human Rights without Foundations,” in Besson, Samantha and Tasioulas, John (eds), The Philosophy of International Law (Oxford: Oxford University Press, 2010), 321–37.Google Scholar

6 Cristina Lafont, “Human Rights and the Legitimacy of Global Governance Institutions,” Revista Latinoamericana de Filosofía Politica II, no. 1 (2013): 1–33, 6–7. See also Lafont, Cristina, “Accountability and Global Governance: Challenging the State-Centric Conception of Human Rights,” Ethics and Global Politics 3, no. 3 (2010): 193–215.CrossRefGoogle Scholar

7 See e.g., Nickel, “How Human Rights”; Nickel, Making Sense of Human Rights, 38–41; Lafont, “Human Rights.”

8 See e.g., Pogge, Thomas, World Poverty and Human Rights, Cosmopolitan Responsibilities and Reforms, 2nd ed. (Cambridge: Polity Press, 2008)Google Scholar; Griffin, James, On Human Rights (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar; Tasioulas, John, “Towards a Philosophy of Human Rights,” Current Legal Problems 65 (2012): 1–30.CrossRefGoogle Scholar

9 See, however, Shue, H., Basic Rights, 2nd ed. (Princeton, NJ: Princeton University Press, 1996), 157 Google Scholar; Miller, David, “Distributing Responsibilities,” Journal of Political Philosophy 9, no. 4 (2001): 453–71.CrossRefGoogle Scholar

10 See e.g., Nickel, “How Human Rights,” 81–82, 85; Nickel, Making Sense of Human Rights, 38–39; Griffin, On Human Rights, 104–5; Lafont, “Human Rights,” 27.

11 See e.g., Andrew Kuper, “Introduction: The Responsibilities Approach to Human Rights,” in Global Responsibilities: Who Must Deliver on Human Rights? (New York: Routledge, 2005), ix–xxii; Thomas Pogge, “Human Rights and Human Responsibilities,” in Kuper, ed., Global Responsibilities, 3–35; Wenar, Leif, “Responsibility and Severe Poverty,” in Pogge, , ed., Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford: Oxford University Press, 2007), 255.Google Scholar

12 See e.g., Beitz, The Idea of Human Rights, 109–10.

13 See Nagel, Thomas, “The Problem of Global Justice,” Philosophy and Public Affairs 33, no. 2 (2005): 113–47.CrossRefGoogle Scholar

14 See also Griffin, On Human Rights, 65.

15 See e.g., Kuper, “Introduction,” xxii; Pogge, “Human Rights and Human Responsibilities”; Wenar, “Responsibility and Severe Poverty.”

16 See, however, Nickel, Making Sense of Human Rights, 38–39; Beitz, The Idea of Human Rights, 109–10, 113–17.

17 I will refer to international “institutions” instead of “organizations” to refer to all past, existing, and future institutions that are neither states nor private actors, and not only to existing international organizations under international law.

18 See e.g., Schutter, Olivier de, International Human Rights Law, 2nd ed. (Cambridge: Cambridge University Press, 2014), 147 ff.Google Scholar

19 Contra: Lafont, “Human Rights,” 6–7.

20 See Besson, Samantha, “The Law in Human Rights Theory,” Zeitschrift für Menschenrechte – Journal for Human Rights 7 (2013): 120–50.Google Scholar

21 See e.g., Beitz, The Idea of Human Rights.

22 See e.g., Griffin, On Human Rights; Tasioulas, “Towards a Philosophy of Human Rights.”

23 See for a full account, Besson, Samantha, “La structure et la nature des droits de l’homme,” in Hottelier, Michel and Hertig, Maya, eds., Introduction aux droits de l’homme (Brussels: Bruylant, 2014), 19–38.Google Scholar

24 See Besson, Samantha, “The Egalitarian Dimension of Human Rights,” Archiv für Sozial- und Rechtsphilosophie Beiheft 136 (2012): 19–52.Google Scholar

25 See Anderson, Elizabeth S., “What Is the Point of Equality?” Ethics 109, no. 2 (1999): 289, 313.CrossRefGoogle Scholar

26 See Anderson, “What Is the Point of Equality?” 288–89.

27 See Buchanan, Allen, “Moral Status and Human Enhancement,” Philosophy and Public Affairs 37, no. 4 (2009): 378–79.CrossRefGoogle Scholar

28 See Anderson, “What Is the Point of Equality?” 288–89.

29 See e.g., European Court of Human Rights, Zdanoka v. Latvia, March 16, 2006 (appl. no. 58278/00).

30 See also Dworkin, Ronald, Justice for Hedgehogs (Harvard: Belknap Press, 2011), 335–39.Google Scholar

31 See Besson, Samantha, “The Legitimate Authority of International Human Rights – On the Reciprocal Legitimation of Domestic and International Human Rights,” in Føllesdal, Andreas, ed., The Legitimacy of Human Rights (Cambridge: Cambridge University Press, 2013), 32–43.CrossRefGoogle Scholar

32 See also O’Neill, “The Dark Side of Human Rights,” 433.

33 See Raz, Joseph, “On the Nature of Rights,” Mind 93, no. 370 (1984): 196, 200.Google Scholar

34 See Waldron, Jeremy, “Introduction,” in Theories of Rights (New York: Oxford University Press, 1984), 10–11 Google Scholar; Beitz, Charles R. and Goodin, Robert E., “Introduction: Basic Rights and Beyond,” in Beitz, Charles and Goodin, Robert, eds., Global Basic Rights (Oxford: Oxford University Press, 2009), 1–24, at 10.Google Scholar

35 See Shue, Basic Rights, 52–53, 60.

36 See Shue, Basic Rights, 52.

37 See Beitz and Goodin, “Introduction,” 13.

38 See Shue, Basic Rights, 59, 61, 173.

39 See Shue, Basic Rights, 120.

40 See e.g., Griffin, On Human Rights, 104–5.

41 See e.g., Shue, Basic Rights.

42 See e.g., Nickel, “How Human Rights”; Pogge, “Human Rights and Human Responsibilities,” 8 ff.; Nickel, Making Sense of Human Rights, 38–41; Beitz, The Idea of Human Rights, 113 ff.

43 See e.g., Shue, Basic Rights, 56–57; Thomas Pogge, “Shue on Rights and Duties,” in Beitz and Goodin, eds., Global Basic Rights, 113–30.

44 See e.g., Nickel, “How Human Rights”; Nickel, Making Sense of Human Rights, 38–41; Beitz, The Idea of Human Rights, 113 ff.

45 See Shue, Basic Rights, 166 ff.; Beitz and Goodin, “Introduction,” 9 and 15.

46 See also Nickel, “How Human Rights,” 81.

47 See Shue, Basic Rights, 166 ff.; Beitz and Goodin, “Introduction,” 15–16.

48 See Besson, “The Extra-Territoriality of the European Convention on Human Rights,” based on European Court of Human Rights, Al-Skeini and Others v. the United Kingdom, July 7, 2011 (appl. no. 55721/07).

49 See e.g., European Court of Human Rights, Catan and Others v. the Republic of Moldova and Russia, October 19 2012 (appl. no. 43370/04, 18454/06, and 8252/05).

50 See Raz, Joseph, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1995), 215.CrossRefGoogle Scholar

51 Despite its retroactive influence on the latter, the question of the allocation of remedial responsibilities for the violation of human rights duties should be carefully delineated conceptually from that of the allocation of human rights duties in the first place.

52 Articles on the Responsibility of States for Internationally Wrongful Acts; see UN General Assembly, Resolution 56/83 (December 12, 2001).

53 See e.g., European Court of Human Rights, O’Keeffe v. Ireland, January 28, 2014 (appl. no. 35810/09).

54 Draft Articles on the Responsibility of International Organizations; see UN General Assembly, Resolution 66/100 (December 9, 2011).

55 See e.g., European Court of Human Rights, Al-Dulimi and Montana Management Inc. v. Switzerland, November 26, 2013 (appl. no. 5809/08).

56 See Besson, Samantha, “Human Rights and Democracy in a Global Context – Decoupling and Recoupling,” Ethics and Global Politics 4, no. 1 (2011): 19–50.CrossRefGoogle Scholar

57 See Miller, David, “National Responsibility and Global Justice,” in Tinnevelt, Ronald and Schutter, Helder de, eds., Nationalism and Global Justice, David Miller and His Critics (London: Routledge, 2011) 25 Google Scholar; David Miller, “A Response,” in Tinnevelt and de Schutter, eds., Nationalism and Global Justice, 192; David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), 56 ff.

58 See the 2013 Draft Accession Agreement of the EU to the ECHR: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1%282013%29008rev2_EN.pdf.

59 See Nickel, Making Sense of Human Rights, 40–41.

60 See e.g., Griffin, On Human Rights, 104–5.

61 This duty to have human rights duties of individuals in a given political community, which is a duty correlative to a right (to have human rights), is distinct from the responsibilities to have human rights of all discussed below.

62 See Miller, “Distributing Responsibilities,” 464 ff.; Miller, National Responsibility and Global Justice, 98 ff.

63 See Beitz and Goodin, “Introduction,” 17.

64 See Nickel, “How Human Rights,” 81.

65 See Nickel, Making Sense of Human Rights, 85.

66 See e.g., the pending case before the European Court of Human Rights, Hassan v. United Kingdom (appl. no. 29750/09) (on concurrent jurisdiction by the United Kingdom and the United States).

67 See also Samantha Besson, “Science without Borders and the Boundaries of Human Rights – Who Owes the Human Right to Science?” European Journal of Human Rights (2015): forthcoming.

68 See e.g., European Court of Human Rights, Al-Jedda v. the United Kingdom, July 7, 2011 (appl. no. 27021/08).

69 See Beitz, The Idea of Human Rights, 109 and 163.

70 Not all responsibilities to respect correspond to a right, however, and hence not all responsibilities to respect human rights are directed and owed to those right-holders.

71 See United Nations General Assembly Resolution 63/308, The Responsibility to Protect, A/RES/63/308 (14 September 2009).

72 See United Nations, Guiding Principles on Business and Human Rights, 2011, http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.

73 See the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights, 2011, http://www.fidh.org/IMG/pdf/maastricht-eto-principles-uk_web.pdf.

74 See United Nations, Guiding Principles on Extreme Poverty and Human Rights, 2012, http://www.ohchr.org/Documents/Publications/OHCHR_ExtremePovertyandHumanRights_EN.pdf, par. 93–94.

75 See Beitz, The Idea of Human Rights, 117, 163.

76 The distinction between human rights duties and responsibilities for human rights is not one of perfect versus imperfect duties, therefore.

77 See also Beitz, The Idea of Human Rights, 108; David Miller, “The Responsibility to Protect Human Rights,” in Lukas H. Meyer, ed., Legitimacy, Justice, and Public International Law (Cambridge: Cambridge University Press, 2000), 233.

78 See Beitz, The Idea of Human Rights, 108.

79 Those responsibilities for human rights of all individuals are distinct from (and concurrent to) the subsidiary human rights duties of individuals in a given political community pre-institutionalization or post-failure of their institutions, just as the responsibilities for human rights of all states are distinct from (and concurrent to) the human rights duties of any given state of jurisdiction.

80 See Miller, “The Responsibility to Protect Human Rights,” 241.

81 See Shue, Basic Rights, 178.

82 See Miller, “Distributing Responsibilities,” 464 ff.; Miller, National Responsibility and Global Justice, 98 ff.

83 See also Beitz, The Idea of Human Rights, 170–71.

84 See Miller, “Distributing Responsibilities,” 468 ff.

85 See Miller, “The Responsibility to Protect Human Rights,” 241 ff.

86 See Miller, National Responsibility and Global Justice, 82–83.

87 See Shue, Basic Rights, 166 ff., 180.

88 See Shue, Basic Rights, 160–61.

89 See Beitz and Goodin, “Introduction,” 22–23.

90 Beitz, The Idea of Human Rights, 173–74.

91 See Miller, “The Responsibility to Protect Human Rights,” 246; Miller, National Responsibility and Global Justice, 274.

92 See Benhabib, Seyla “Claiming Rights Across Borders: International Human Rights and Democratic Sovereignty,” American Political Science Review 103, no. 4 (2009): 691–704.CrossRefGoogle Scholar

93 See Besson, “Human Rights and Democracy in a Global Context.”