Crossing the Boundaries: the place of human rights in contemporary scholarship
Afternoon panel session:
Ms Carla Clarke
What's in a name: does it really matter whether wealthier states recognise an obligation of international cooperation and assistance?
Despite the reality of today's global interdependence, the question of the extraterritorial obligations of states remains relatively unexplored in human rights circles. While there is periodic outcry that so much global poverty persists in the face of plenty, the issues are seldom framed in terms of the extraterritorial economic and social rights obligations of wealthier states.
It is instead in philosophical circles that systematic attention has been given to the question of the duties owed by wealthier states and their citizens to those less well-off in other countries. Although a number of different theories of global justice have emerged (utilitarian, duty-based and rights-based), they have certain significant features in common. Most notably, by paying close regard to the reality of the existing global order, they derive requirements of positive action from negative duties and emphasise an institutional understanding of such duties.
By contrast, the human rights literature on the economic and social rights obligations of states to those outside their own territory is decidedly limited. While various UN bodies and some scholars have begun to advance an obligation of international assistance and cooperation, as derived principally from the UN Charter and Article 2(1) of the International Covenant on Economic, Social and Cultural Rights, the lack of rigorous analysis is readily apparent. Most significantly, and in direct contrast to the global justice theories, the negative respect component of any duty of international cooperation is seen as relatively undemanding. Whereas, in fact, a properly understood respect component demands both positive action and structural change.
There is already considerable consensus among international development agencies, and indeed governments, as to what form such action should take to ensure greater global equity. There is clearly a case for collaborative action between such organisations and human rights practitioners so as to provide a normative underpinning to demands for policy reforms, particularly in the field of trade and agriculture, and for structural changes of such organisations as the World Trade Organisation.
Accordingly, it does matter not only that states recognise their extraterritorial obligations but that greater regard is had by those within the human rights field to such obligations.
Dr Rowan Cruft
Is severe poverty a human rights violation?
Contemporary philosophers frequently argue that severe poverty constitutes a human rights violation. If their arguments are correct, then the widespread incidence of severe poverty across the globe represents perhaps than the most pervasive human rights violation currently perpetrated. I shall assess this thesis by focusing on two issues:
The distinction between positive and negative rights
I argue that most philosophical theories of the moral foundations of human rights imply that human rights include both non-interference rights and assistance rights. Yet everyday thinking strongly favours the thesis that human rights are predominantly non-interference rights: while wealthy people might accept that they are not currently doing enough to help the global poor, they would surely not accept that their failure to offer sufficient aid makes them human rights violators, morally equivalent to torturers or killers. I shall explore this discord between foundational philosophical theory and actual practice.
Individual and collective violators
Who qualifies as a rights violator when a person suffers severe poverty? Do individual wealthy people violate the human rights of poorer people? Or are these rights violated by institutions? Or by no one at all? I shall investigate and defend the thesis that, if severe poverty does constitute a human rights violation, then it is often a violation perpetrated by collectives.
My primary aim, in examining the two issues outlined above, is to clarify the notion of collective responsibility to which we must be committed if we are to be willing - as our foundational philosophical theories imply that we should - to regard severe poverty as a human rights violation. A significant secondary aim concerns my avowedly normative disciplinary perspective: as a moral philosopher, I offer conclusions about how people should regard themselves, on the basis of arguments that start from fundamental moral principles. I hope my paper will show how moral philosophy can inform and illuminate public policy choices and the political choices of individuals; and in turn, such a philosophical approach needs to be empirically informed and illuminated by external interdisciplinary criticism.
Dr Wouter Vandenhole
Human rights law and its paradoxical potential for contributing to human development
The legal nature of human rights law represents at the same time its strength and its weakness. A paradox appears: for human rights law to be potentially relevant in fostering human development, it is to conform with mainstream legal conceptualisation. However, mainstream legal conceptualisation also seriously limits that potential. The observations and conclusions made in this paper draw upon legal attempts to link human rights law to human development, as exemplified for example by the right to development, social action litigation in India and the elaboration of third state obligations under the ICESCR.
Human rights law can only be genuinely relevant for human development when it is sufficiently contained within the mainstream legal paradigm, i.e. when the specificity and distinctiveness of (human rights) law is sufficiently recognized. Stretching the boundaries of human rights law too far leads to weak legal recognition, reduced legitimacy and waning potential impact on the ground.
At the same time, the boundaries of the law also hamper human rights law in appropriately addressing some of the major issues of human development. In other words, the boundaries represent real limits of the law. Individualism, proceduralism and (domestic) state centrism - which are rather central to human rights law - restrain its ability to contribute significantly to human development. While these limits may gradually and partially be overcome, that is not so for the rule of law. A degree of respect for the rule of law is an absolute pre-condition for human rights law to be relevant. As the situation in many developing countries is at odds with this pre-condition, the potential of human rights law for human development is confined rather seriously.
Human rights lawyers should fully acknowledge this paradox and look beyond the law to overcome it. At a practical level, complementary non-legal strategies can be explored. Conceptually, lawyers may benefit from submitting this paradox to the scrutiny of other disciplines.
Dr Polly Vizard
Sen v Pogge on global poverty and human rights
This Paper is part of a broader project examining the ways in which the work of the Nobel Laureate Professor Amartya Sen has advanced international thinking about global poverty as a human rights issue. The Paper compares Sen's "capability approach" as a basis for thinking about global poverty and human rights with the alternative framework developed by Thomas Pogge. Both the "capability approach" and Pogge's theory of "severe poverty as a violation of negative duties" are shown to support the idea of "freedom from severe poverty as a basic human right". However, there are important differences. The Paper examines the limitations of Pogge's "minimalism" and establishes the ways in which Sen moves beyond a "minimalist normative position" whilst avoiding Pogge's charge of "implausibility". Particular emphasis is placed Sen's treatment of the need for the explicit introduction, development and justification of "subordinate evaluative criteria" (especially "subordinate evaluative criteria" that focus on the "reasonableness" of actions or courses of action performed) when practical action is limited by resource or other feasibility constraints. The Paper contends that this approach provides a clearer basis for the elucidation of a class of positive obligations of reasonable assistance and aid in the field of global poverty and human rights than Pogge's class of "positive derived duties". In particular, Pogge's attempt to establish severe poverty as a human rights violation under a "minimalist normative position" focuses on the active causation of severe poverty (narrowly construed). His attempt to justify a class of "positive derived duties" within this framework gives rise to certain tensions and inconsistencies. In contrast, in moving beyond a "minimalist normative position", Sen points towards a theory of human rights in which practical action that fails to satisfy a "reasonableness" threshold can be characterised in terms of non-fulfilment or violation of human rights-based claims. The Paper examines how Sen's treatment of this issue avoids Pogge's charge of "implausibility". The "value added" of Sen's approach for the conceptualisation of emerging international legal standards in the field of global poverty and human rights is also explored.