Rights as Substitutes

If we link our previous discussion of resource allocation with our preceding assessment of liability rules, we can conceive of a situation in which human rights can be substitutable: if it is difficult or costly to protect one right, it might be possible to protect another right that shares characteristics with the first more easily or at a lower cost. This reflects both that concept of ‘take-and-pay’

and resource allocation. In addition, though, two types of substitutes must be recognised: perfect and imperfect substitutes.³¹⁸ Perfectly substitutable human rights would be rights in relation to which citizens and the international                                                                                                                

317 Pauwelyn ‘Optimal Protection of International Law: Navigating European Absolutism and American Voluntarism’ (n 289), 70.

318 For a technical economic analysis of the distinction between these two, see Jason F Shogren and Dermot J Hayes, ‘Resolving Differences in Willingness to Pay and Willingness to Accept: Reply’

[1997] 87(1) American Economic Review 241.

community would be indifferent: a state’s failure to provide one right could be accommodated for by its success in providing another right, and whereby this satisfies Pareto optimality. We assume perfect substitutes are most likely to arise when a state’s interests and the interests of its citizens and the international community are aligned, but whereby limited resources constrain fully providing for that right. As long as the equilibrium level of human rights protection – given the state’s resources – remains the same, promisees should be equally content with a perfectly substitutable right.

However, this is highly stylised. In reality, and in a world in which achieving universal protection of human rights is a stated goal,³¹⁹ citizens and the international community are unlikely to be indifferent between various rights.

Under conditions of constrained resources, however, we assume protecting the preferred rights might not be possible, while perfect substitutes might not be always available. In certain circumstances, states will subsidise their inability to provide for one human right with provision of another right, but whereby this fails to satisfy Pareto optimality. Imperfect substitutes would be more likely to arise when the state’s preferences diverge from those of its citizens or the international community, with this assumed to be the case when a state is not fully committed to a treaty’s ethos or to maximising human rights protection. In those cases, the state supplants its failure to provide for one human right with provision of a related but not identical human right. We assume that rights are scaled and that an increasing amount of resources is required at each additional level of protection on this scale.

As an example, we consider that the right guaranteeing protection against slavery and the right guaranteeing protection against compulsory or forced labour might be substitutable if we recognise the distinctions between the two. ³²⁰ If the former relates largely to an individual’s status, which may include an                                                                                                                

319 See, generally, Richard A Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (1^st edn, Routledge 2000).

320 For an overview of European case law in which these issues are dealt with both together and separately, see European Court of Human Rights (ECHR), ‘Key Case-Law Issues: Prohibition of Slavery and Forced Labour: Article 4 of the Convention’ (December 2012); for academic research further strengthening the contention that these two issues are distinct, see Benjamin B Ferencz, Less than Slaves: Jewish Forced Labor and the Quest for Compensation (1^st edn, Indiana University Press 2002) and Daniel A Novak, The Wheel of Servitude: Black Forced Labor after Slavery (1^st edn, Kentucky University Press 1978).

obligation to work, and the latter relates largely to an obligation to work with no status necessarily attached, we can differentiate between the two on the basis of a proprietary distinction. If we assume that an individual is more likely to be subject to compulsory or forced labour than to slavery, a state may find it easier to allocate resources toward protecting individuals against slavery than against forced labour: mitigating slavery might be achievable through criminalising its proprietary aspect, whereas alleviating forced labour would require that resources are invested in investigative approaches. If states do not have the resources to undertake such approaches, guaranteeing protection against slavery may be an imperfect substitute for guaranteeing protection against compulsory or forced labour.

Equally, a similar analysis could be applied to freedom of association and freedom of assembly, which are protected both together and separately in international and regional treaties.³²¹ We might differentiate between the two on the basis that freedom of association affords citizens a participatory right, enabling them to formally engage with other citizens in relation to a collectively held belief, but whereby freedom of assembly affords citizens the right to come together to express collectively held beliefs but with no requirement that this be formal. Mostly, forming organisations will facilitate the expression of a group’s ethos more easily by reducing the transaction costs of coordination; this suggests that association is likely to be a component of assembly and assembly is likely to be an outcome of association. States might only provide for one of these rights if they cannot also provide for the other. In relation to assemblies, there may be increased financial costs associated with policing assemblies in public places,³²² while facilitating collective association associations may result in political costs.³²³ If citizens are indifferent between the rights – at least in the short term – then they might be perfect substitutes: states can assign resources toward the provision of one right rather than the other. If citizens are not indifferent between                                                                                                                

321 In the European Convention, both rights are protected in article 11, while under the ICCPR the rights can be found in article 21 (assembly) and article 22 (association).

322 For an analysis of the trade-off between these issues, see Robin Handley, ‘Public Order, Policing and Freedom of Assembly’ [1986] 7(2) Journal of Legal History 123.

323 Sidney Tarrow, Power in Movement: Social Movements, Collective Action and Politics (1^st edn, Cambridge University Press 1994); Gene Sharp, The Politics of Nonviolent Action, Part Two: The Methods of Nonviolent Action (1^st edn, Porter Sargent Publishers 1973).

the two rights, then preferences will not be satisfied with the protection of only one of the rights.

Evidently, improving standards in a world with finite resources is restricted by a state’s availability of resources, by the nature of the rights as positive or negative, and through the requirement that rights are not just protected, but also promoted. Adherence to treaty-mandated obligations would be dealt with differently by each state, assuming a heterogeneous availability of resources. In cases in which states cannot fully provide for one right, then a substitute right might be appropriate, at least until the state’s resources improve.

As mentioned, the problem of limited resources and efficient allocation is closely related to the question of the appropriateness of a liability rule as the default protection regime: if a state has limited resources but is committed to protection of human rights generally, that state may wish to adjust its resource allocation so as to fit its domestic constraints. The following stylised example in relation to a hypothetical state illustrates this.

Our state is relatively poor and with a young population. The resource constraints the state faces mean that it may be incapable of providing for the rights of this burgeoning demographic, despite the state being generally committed to human rights protection. Owing to significant demographic change, the state finds that its resources do not facilitate achievement of the same level of protection for young people as had been previously achievable. As it becomes clear that the state cannot provide for all of the rights protected under the Children’s Convention, and as renegotiation with all states parties to the treaty would be prohibitively difficult (as under a property rule), we suggest that the state might unilaterally ‘take’ the entitlements protected in the CRC. The state would breach its treaty obligations to the international community and to its citizens. To balance this, we assume that the state is required to compensate for its failure to adhere to its obligations. In a perfect model, compensation would be equal to breach.

While abstract, this is an application of a liability rule to international human rights law: it allows states to breach their obligations but to ‘pay’ for this. What’s important, however, if we extend the GATT application of a liability rule for breach of obligations to our model, is that the ‘payment’ made much be equivalent to the breach and that it must rectify the assumed harm caused to the international community and the other stakeholders.

The state is assumed to be able to achieve the same overall level of human rights protection by improving protection in other areas, in which the marginal cost of improving standards might be lower. To that end, we assume that by reducing the human rights protection afforded to young people – on the basis of resource constraints and increasing costs at each level of protection due to demographic change – the state will be able to increase the level of protection afforded to other sections of society – which we assume relates to the older population on the basis of the changing demographics – to such a degree that an equilibrium level of protection will be reached.³²⁴ In other words, it substitutes its protection of the human rights of large section of society (young people) with protection of the human rights of a smaller section of society (older people) and whereby the equilibrium level of protection remains the same. The state’s availability of resources and the heterogeneity of its population are assumed to be determinative in its ability to achieve an equilibrium level of protection. The unilateral taking of the entitlement, however, will also have consequences for the international community. Assuming that that community is content with the state reallocating protection across society, no moral outrage is expected.

However, if externalities materialise, such that lower protection levels for children result in a higher number of younger refugees fleeing to other states, then greater moral outrage among states with younger populations or in states more committed to the protection younger citizens might affect the preferences of those states for a liability rule. In this way, while a breach of treaty obligations according to a liability rule might not reduce overall protection within the state itself, the global equilibrium may be lowered.

In this sense, it is imperative that it is possible to monitor the degree to which states are shirking on their commitment to the rights enshrined in international treaties. In reality, however, it borders on impossible for a monitoring body to determine whether a state has subsidised its lack of commitment to one human right with its strong commitment to another human right. But while welfare maximisation might exist in this case, assessing the stability of that continued commitment might not be possible. What remains                                                                                                                

324 It will increase, in this example, if the overall valuation of the rights afforded to the older population is higher than the valuation of the rights afforded to the younger population. This takes account of the size of the respective groups. This does not account for the valuation placed on rights protection by parties not in each respective group.

central to this discussion on the possible application of a liability rule and the relevance of substitutes to breaches of international human rights law, therefore, is the question as to whether a liability rule results in a Pareto efficient allocation of rights. A state’s decision not to strive for the provision of high levels of protection across all areas of human rights, but to pick and choose the rights that it can provide for, must fulfil Pareto efficiency. So while the size of the youth demographic might be larger, the gains made by the higher level of protection of the human rights afforded to the older generation should equal or outweigh those losses.

This analysis of the relevance of a liability rule and substitutes to human rights law has shown its application would pose both normative and theoretical challenges. States would be permitted to breach their treaty obligations if, in doing so, they pay compensation to the parties whom they have harmed. That compensation has been analogised as a substitute human right, and whereby its provision ensures that the state’s overall level of protection remains stable. We follow this approach further in a chapter 8 by investigating how other forms of compensation might be paid in human rights contexts.