Human rights and the strength of corresponding duties

It is, meanwhile, common in the debate about basic rights or human rights to refer to the substances of these rights (Henry Shue) or the rele-vance of the goods that are protected by these rights (Thomas Pogge) in order to justify their important status. Furthermore, it is notoriously controversial whether positive rights have a weaker normative status

than their negative counterparts. The underlying idea is that negative rights protect the classical liberal goods of life, liberty and property, while positive rights or social rights refer to subsistence, the goods need-ed to lead a decent life like home, shelter, need-education, health etc. (Orend 2002). What is of interest for us here are the positions of Henry Shue and Onora O’Neill, who have investigated human-rights-correspond-ing duties. Let us first have a look at Shue’s position.

Shue’s idea is that it is not rights but duties that are positive or neg-ative. He claims that there is a symmetry between negative as well as positive rights and corresponding duties to avoid depriving (negative duties) on a first level. Secondly, there are institutional duties to protect people from being deprived of their rights or the goods that they protect (positive duties) on the second level. Thirdly, there are duties to aid the deprived (positive duties). In Shue’s picture, subsistence rights lead to the same structure of corresponding duties as security rights. So subsis-tence rights are not exclusively positive, and security rights not exclu-sively negative.

Furthermore, Shue claims that honoring subsistence rights can often involve not transferring commodities to people, but rather preventing people from being deprived of the commodities or the means to pro-duce or buy the commodities (Shue 1996, 51). But, as I pointed out elsewhere (Mieth 2008; Mieth forthcoming), the analogy between se-curity and subsistence with regard to corresponding duties is not con-vincing. Shue has the idea that subsistence should not be destroyed where it is already given. But this is not the only case we have to con-sider here. If we look at the social human rights as described in Article 25 (1) of the declaration of human rights, it seems that those whose sub-sistence is not yet or no longer given also have a human right to be pro-vided with the means to subsist. “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his fam-ily, including food, clothing, housing and medical care and necessary so-cial services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

If we distinguish between the protection of one’s actual power to control the means of one’s ability to existagainstothers and the transfer of money or goodsfromothers in order to establish an adequate standard of living, we see that in the second case duties of omission do not play a primary role. The way in which Article 25 is formulated implies not only that people should not be deprived of their basic social goods

but also that they have a right to be provided with them where they are not in place. Here we are back to the problems mentioned in section I.

It seems that to provide someone with goods (which means an improve-ment of his situation) would be classified as a positive duty whereas avoiding depriving him (which means not deteriorating his situation) is a negative one. However, we have also seen that securing someone’s basic goods can be part of a strong duty, as in the case of the drowning child. Still, though it is clear in the case of social human rights that al-though the first criterion for strong duties, reference to a basic good, is met, it is not per se given that the other criteria for strong duties, rea-sonable demandingness and determinateness, are also fulfilled. Should this lead into a skeptical position towards social human rights?

Onora O’Neill is very skeptical of the existence of social human rights and their normative status because, as she points out, the strength of a right depends on the existence of institutions that allocate the cor-responding duties (O’Neill 1996 and 2005). I think that we best under-stand Onora O’Neill’s skepticism about the universality of social human rights by starting with the insight that the guarantee of social security mentioned in Article 25 (1) of the declaration requires the fulfillment of positive duties right from the start. Referring to the assumed asym-metry between positive and negative duties, O’Neill claims that there is an asymmetry between negative and positive human rights: negative human rights (classical human rights to life, liberty and property) entail corresponding universal negative duties that we owe every right-holder.

These duties can be fulfilled by all duty-bearers (symmetry between right-holder and duty-bearer). Positive human rights (e. g. social rights) entail corresponding special positive duties that have to be fulfilled only by certain individuals (asymmetry between right-holder and duty-bear-er). They are special universal rights: everybody has them, but not ev-erybody has to fulfill corresponding duties. The allocation of corre-sponding duty-bearers is dependent on institutions, hence so is the ex-istence of social rights. If our critical interpretation of Shue’s approach is correct, O’Neill has a strong point. Positive rights seem more demand-ing right from the start if subsistence must be provided for by others.

Positive human rights understood in this way are dependent on institu-tional duty allocation right from the start.

O’Neill’s thesis is that we can distinguish between human rights in a full sense and mere manifesto-rights by the nature of corresponding ties. Negative rights have corresponding doubly universal negative du-ties (everybody owes their fulfillment to everyone). Furthermore, these

duties are perfect (which means that their content is determined). Pos-itive rights are dependent on institutionalization since the content of corresponding duties and the determination of adequate duty-bearers presuppose institutional allocation. The counterintuitive point in O’Neill’s conclusion seems to arise if we conceive of human rights as moral rights or justified moral claims that arise independent of institu-tional arrangements and have a critical potential in evaluating their le-gitimacy. If the foundation for the existence of human rights lies in their protection of necessary or basic goods or basic interests, to which all individuals have a right deriving from their moral status (their dignity), then it seems wrong to maintain that the existence of some of those rights is dependent on their institutionalization. It seems that negative and positive human rights can be derived from the combination of the equal moral status of all human beings (dignity) and their basic needs or interests for basic goods.

That is where Elizabeth Ashford’s critique of O’Neill’s position sets in (Ashford 2006). She holds that the determination of duty-bearers is not a condition for theexistenceof social human rights. By contrast, Ash-ford considers the institutional allocation of corresponding duties itself as a duty that corresponds to social rights. Even so, this notion does not solve the problem of the determination of corresponding duties. Neg-ative and positive human rights may exist as moral rights, independent of their effective institutionalization, but they may nevertheless remain unfulfilledif their substance or content is not efficiently protected. And this can best be secured by a determination of corresponding duty-bear-ers as well as by a determination of the content of the rights-corre-sponding duties. What remains notoriously difficult in particular is the determination of rights-corresponding positive duties.

If we say that human rights protect basic goods by adequate institu-tional arrangements, the decisive question is: what if the instituinstitu-tional al-location of positive-human-rights-corresponding duties fails? In the world we live in today, institutions do not effectively secure social human rights everywhere. Institutions may be unjust or, in many cases, might not even exist yet. James Griffin’s (Griffin 2008) proposal is to distinguish between primary duties that have the same content as human rights and secondary duties to promote human rights. In the case of negative duties this seems clear: I must not kill or torture others (primary duty with the same content as the human right not to be killed or tortured). In the case of social human rights it is, however, not clear what content corresponding primary duties would have. If there is a

human right to adequate housing or food or social security, it is not at all clear how I individually should directly provide for these things con-cerning poor people worldwide. The difference that Griffin makes be-tween primary duties and secondary duties seems to blur here.

Again, Ashford’s point would be that there are individual duties to institutionalization since it is not the existence but the fulfillment of human rights that is dependent on institutionalization. If human rights can be efficiently secured only by institutional arrangements and these are not in place, there are human-rights-corresponding individual duties to establish these institutions.

The question is: How strong are these individual duties? If they are the only social-rights-corresponding duties under given circumstances, they would have to be very strong if we would expect them to guaran-tee the fulfillment of human rights, just as we suppose that negative human-rights-corresponding individual duties (not to kill, not to tor-ture) are very strong and that we commit serious moral wrongs if we violate these duties. What I am afraid of is this: Social-human-rights-corresponding individual institutionalization-duties are only weak, though this is not due to their being positive duties, but because they are underdetermined and might be overdemanding. It is in most cases simply unclear what individuals should do in order to establish better in-stitutions worldwide.