14 June 2013

‘The Allocation of International Human Rights Duties (and Responsibilities) to Multiple Duty-bearers’, A Discussion of Samantha Besson’s SHARES Lecture

During a SHARES lecture on 6 June, Prof. Samantha Besson presented a recently published chapter on the allocation of international human rights duties and responsibilities for human rights in SHARES context. Building on the work of Henry Shue, among others, she offers a theory to bring our understanding of the supply side of human rights to the next level. Due to the complexity of this task, other human rights theorists have so far largely resorted to pragmatic and strategic reasoning instead of forwarding a morally coherent approach. Besson clarifies the steps to be taken as: (i) identification of human rights duties (ii) identification and justification of human rights duty-bearers; and (iii) allocation of human rights duties to human rights duty-bearers. In her contribution to a book on Poverty and the International Economic System, she argues that insufficient delineation of human rights duties and an unreflected use of the term ‘responsibilities’ for human rights has led to a conflation of the two, which diminishes clarity when it comes to identification and allocation of tasks on the supply-side.

First, in explaining human rights duties, Besson outlines that human rights are abstract norms, while duties can only be specified in a given context and in relation to a concrete threat. One right can be the basis for more correlate duties to respect, protect or fulfill and such duties can evolve over time and space. As such, duties need to be localized to be identified and consequently allocated. Moving on to the identification of duty-bearers, Besson defends an institutional account of human rights, with institutions as the primary human rights duty-bearers. She submits that human rights duties ought to be borne by national and regional polities’ institutions because human rights are systematic and egalitarian by nature, strongly linked to democracy and because institutions offer the best platform to allocate duties in practical sense. Which institutions bear duties in a certain case is determined on the basis of which institution has jurisdiction over the right holders, in the sense of effective control or authority and control. In this institutional account of human rights, individuals are subsidiary duty-bearers, whose duties only arise when they are allocated to them by these institutions or when institutions have failed. In the latter case, Besson argues that individuals mainly have duties to create institutions to then be able to secure human rights. International Organizations (IOs) generally do not have human rights duties but only responsibilities for human rights. However, post-national structures like the European Union, which can be said to constitute a polity when governing a group of individuals with equal and interdependent stakes, may have human rights duties.

Moving on to responsibilities for human rights, as opposed to duties, these are described as abstract moral requirements which are not necessarily correlate to a right. As examples, Besson mentions the Responsibility to Protect (RtoP) or the United Nations human rights responsibilities. These moral responsibilities are related to and co-existent with human rights duties, but their content is much less specific and there is a lack of institutions with the ability and legitimacy to allocate them. Besson identifies three sets of bearers of responsibilities for human rights. First, responsibilities are borne by individuals, although there is not much they can do in practice because of coordination limitations. Second, institutions other than those of the human rights duty-bearing state may also bear responsibilities, acting as instruments of global justice or as representatives of an aggregate of individual responsibility-bearers. Finally, IOs may bear responsibilities for human rights, primarily in their role as frameworks for state cooperation. The allocation of such responsibilities involves assessments of the fairness of the individual burden of various responsibility-bearers. Six grounds of distribution, identified by David Miller, may be used cumulatively, alternatively or in cascade. These grounds being: outcome, causality, harm, capacity, benefit or special ties. Miller’s proclaimed problem of re-distribution is also paid homage by Besson in the context of allocating responsibilities for human rights. The problem of re-distribution describes that it is difficult to justify global re-distribution of broad and unspecific responsibilities for human rights and the consequences this has for a state’s resources, if allocation of specific human rights duties has already taken place domestically or regionally. This results in a situation where distribution remains largely a matter of judgment of each potential responsibility-bearer in each case.

This theoretical background allows for closer scrutiny of the distribution of shared state duties and responsibilities. First of all, with regard to the distribution of human rights duties, the role of institutions is described as providing a platform for deliberation to set priorities and discuss the distributive principles on the basis of which duties should be allocated. Besson marks jurisdiction as the defining criterion to determine which institution is the platform for deliberation in any particular case. However, the picture may become obfuscated when multiple institutions belonging to different polities have jurisdiction over the same group of rights-holders. Even though different institutions have specific jurisdictional relationships with the right-holders, giving rise to a specific set of duties, additional grounds for distribution could be useful in such cases as a way of ensuring cumulative or at least complementary protection. Besson ventured that there may exist a duty of states in extraterritorial settings to allocate duties among itself and third states, but in the long run this could, for example, hinder self-determination. With regard to the distribution of responsibilities for human rights and the problem of re-distribution, it may be noted that a situation in which each potential responsibility-bearer determines for itself what part of a responsibility it assumes leaves much room for free-riding and buck-passing. Besson agreed that there may be other over-arching principles than the six grounds for distribution identified by Miller which could perhaps offer a framework for the distribution of responsibilities in the area of (different) human rights. An example could be the principle of common but differentiated responsibility (for more background information, see here), which has for instance been used in environmental law to distribute common responsibilities for climate change on a differentiated basis with reference to different actor’s capacities and historical contribution to a problem.

Finally, the duty to make institutional arrangements to secure human rights arguably exists both at the level of human rights duties and that of responsibilities for human rights. At the duties level, Besson argues that individuals have a duty under human rights law to set up institutions to secure human rights. She agreed that a similar construction at the level of responsibilities may be the most effective way forward in terms of operationalization, meaning that states have a moral responsibility to set up institutions to realize responsibilities for human rights. An example is contained in Principle 30 of the Maastricht Principles on the Extraterritorial Applicability of Economic, Social and Cultural Rights, which outlines a responsibility of states to make institutional arrangements to allocate responsibilities for ESC rights (for more background information, see here). Besson did, however, stress that it remains of importance to underwrite the difference between duties and responsibilities for human rights – something which is at times lacking in the Maastricht Principles and Commentary.

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