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The Inadequacy of our Traditional Conception of the Duties Imposed by Human Rights

Published online by Cambridge University Press:  20 July 2015

Elizabeth Ashford
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Extract

I argue that our traditional conception of the duties imposed by human rights is unable to acknowledge the nature of many contemporary human rights violations. The traditional conception is based on a broadly deontological view according to which human rights impose primarily negative and perfect duties, and these duties are held to be specific prohibitions on certain kinds of actions (duties not to kill, assault and so on). I argue that given this conception of the nature of the duties imposed by human rights, not only claims to aid, but in addition, claims against many of the most serious and prevalent contemporary active harms will not count as genuine human rights claims. These harms increasingly result from extremely complex causal chains involving the behaviour of a huge number of agents, few or none of whom can be singled out as responsible for a serious harm to any specific victim. Institutional structures can have just as central a role to play in specifying and allocating responsibility for fulfilling many of the negative duties imposed by human rights as the positive duties. These structures can therefore be equally important in the realisation of both kinds of rights. Before the necessary institutional reforms have taken place, both kinds of rights are equally genuine, and ground the imperative of justice to reform existing social institutions.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 19 , Issue 2 , July 2006 , pp. 217 - 235
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2006

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References

I am grateful to the support of the Harvard University Edmund J. Safra Foundation Center for Ethics for enabling me to work on this paper and for the very helpful feedback I received there, especially from Arthur Applbaum and Dennis Thompson. I am also grateful to David Lyons, Thomas Pogge and Leif Wenar for their very helpful comments on some of the paper's arguments.

1. O’Neill, Onora, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996) at 130, n. 4.CrossRefGoogle Scholar

2. WHO (World Health Organisation), The World Health Report 2004 (Geneva: WHO Publications) at 120-25Google ScholarPubMed. Admittedly, causing millions of deaths may not fit the legal definition of genocide as denoting the intentional extermination of a certain racial group. However, when term ‘genocide’ is applied in the context of assessing the moral gravity of human rights violations, so as to decide what political action is called for, the most important notion is that of mass killing. In this context, disputes over whether an instance of mass killing fits the more technical definition of genocide can seem beside the point.

3. For a sustained and forceful argument that the global institutional order plays a crucial causal role in the high level of chronic poverty, see Pogge, Thomas, World Poverty and Human Rights (Cambridge: Polity Press, 2002).Google Scholar

4. Shue, Henry, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996).Google Scholar

5. O’Neill, supra note 1 at 133.

6. I am taking the term “duty” to refer to Kant’s term “Pflicht”, and am taking duties to be held unconditionally, whereas obligations are generated by duties in particular circumstances.

7. O’Neill, Onora, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996) at 130, cf. 133.CrossRefGoogle Scholar

8. Ibid. at 132.

9. Parfit, Derek, Reasons and Persons (Oxford: Oxford University Press, 1984) at 80–81 Google Scholar.

10. Pogge, Thomas, “Real World Justice” (2005) 9 J. Ethics 29 at 48 Google Scholar.

11. Pogge, discusses this example in Realizing Rawls (Ithaca, NY: Cornell University Press, 1989) at 27 Google Scholar, and in O’Neill, supra note 1 at 233-47.

12. In fact, an important part of the abolitionist movement was an attempt to encourage people to boycott products of slave-labour and to make available alternative products.