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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

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

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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

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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.

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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).

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

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

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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.

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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.

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