Abstract
This chapter examines what we can learn from human rights documents and human duties declarations regarding the nature of the duties correlative to the human right to an adequate standard of living, and the duties to the community. Regarding the former duties, I find that such documents do not at all sufficiently clarify the nature of individual duties concerning global subsistence needs. These are, therefore, further clarified in Chap. 5.
Regarding the duties to the community, by contrast, the study of the relevant human rights documents – particularly the travaux préparatoires of the Universal Declaration –will prove far more fruitful. We will find that duties to the community were considered an essential part of the Universal Declaration from the very beginning. The drafters’ intention with Article 29 was to illustrate how individual rights function in a larger moral context, a context that next to rights also includes duties, public order and general welfare. Furthermore, it will become clear that the Universal Declaration rejects, by way of Article 29, the view of the lone rights-bearer for whom the claims of the community are but so many burdens, and instead affirms the interdependence between the individual and the political community in which she finds herself.
The fulfillment of duty by each individual is a prerequisite to the rights of all […] While rights exalt individual liberty, duties express the dignity of that liberty.
ADRDM , Preamble
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Notes
- 1.
Critics have argued that income data is too narrow a measure to assess poverty. The Human Development Reports of the United Nations Development Programme (UNDP), for example, have used Amartya Sen’s notion of “capabilities” to assess the quality of life and human welfare worldwide: “Freedoms and capabilities are a more expansive notion than basic needs” (UNDP 2011, p. 1). Nonetheless, the use of income data will suffice here to provide an idea of the enormous scale of the problem of poverty worldwide.
- 2.
Inter-American Court of Human Rights . Villagrán Morales et al. v. Guatemala (the ‘Street Children’ Case). Judgment of Nov. 19, 1999 (Merits). Inter-Am. Ct. H.R. (Ser. C) No. 63, para. 144.
- 3.
Inter-American Court of Human Rights, Villagrán Morales et al. v. Guatemala. Joint concurring opinion, para. 4.
- 4.
Cf. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights . Reprinted in (1998) Human Rights Quarterly, 20(3), 691–704. Guideline 6: “Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and fulfill.” This tripartite classification of duties, however, comes from the field of philosophy, specifically from the work of Henry Shue : Shue 1980, p. 52.
- 5.
CESCR. Statement on Poverty, para. 7.
- 6.
Ibid., para. 8.
- 7.
CESCR . General Comment No. 12, para. 15.
- 8.
CESCR. General Comment No. 3: The Nature of States Parties Obligations (Art. 2(1)). E/1991/23 (14 December 1990), para. 10.
- 9.
CESCR. General Comment No. 12, para. 36.
- 10.
CESCR . General Comment No. 12, para. 38.
- 11.
CESCR . General Comment No. 3, para. 13.
- 12.
The best known of these scholars would, of course, be Thomas Pogge: Pogge 1992, p. 246; Pogge 2008, pp. 70–1.
- 13.
The agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is held to severely limit access to advanced medicines in poorer countries . Cf. Pogge 2008, Chapter 9.
- 14.
CESCR . General Comment No. 12, paras. 40–1. Paragraph 40 discusses the role of NGO’s, whereas paragraph 41 contains a number of recommendations for international financial institutions with regard to securing the right to food; cf. CESCR. General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12). E/C.12/2000/4 (11 August 2000), paras. 63–5.
- 15.
CESCR. General Comment No. 12, para. 20.
- 16.
When individual duties are mentioned, the CESCR suddenly uses the word “responsibility,” whereas it always uses the word “obligation” to refer to the duties of states. Wherein the difference between “responsibility” and “obligation” consists, however, is left unsaid, as is the reason for attributing the one term to states and the other to individuals.
- 17.
The authors’ parenthetical remark in this passage suggests that when it comes to ancillary duty-bearers they are not so much interested in the duties of individuals, but rather with those of (transnational) corporations. Indeed, following the quoted passage, this suspicion is confirmed, as the authors go on to only discuss the duties of corporations.
- 18.
The DHSR also contains an article prescribing a duty correlative to the right expressed in Article 28 UDHR : “Every person has the duty to contribute actively to the achievement, both at the international level and in his or her own community/society, of an international and social order under which all the rights and freedoms recognized in the Universal Declaration of Human Rights and in other pertinent international instruments are made fully effective” (Article 11). Unfortunately, this article does not provide us with any information concerning the shape this duty ought to take in practice. For instance, what does “contribute actively” entail? A similar criticism can be leveled against Article 18(3) of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (adopted by the General Assembly of the United Nations on 9 December 1998): “Individuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized.” What does that “role and responsibility” require of us? How much is “appropriate?”
- 19.
UN Doc. E/CN.4/AC.1/3 (4 June 1947).
- 20.
UN Doc. E/CN.4/AC.1/SR.3 (13 June 1947), p. 10.
- 21.
UN Doc. E/CN.4/AC.1/W.2/Rev.2 (20 June 1947).
- 22.
Ibid.
- 23.
UN Doc. E/CN.4/AC.1/3/Add.1. (11 June 1947), p. 5.
- 24.
Ibid., p. 6.
- 25.
UN Doc. E/CN.4/AC.1/3 (4 June 1947), p. 2: “In the exercise of his rights every one is limited by the rights of others and the just requirements of the State and of the United Nations.”
- 26.
UN Doc. E/CN.4/AC.1/3/Add.1. (11 June 1947), p. 12.
- 27.
UN Doc. A/C.3/304/Rev.1 (30 October 1948).
- 28.
UN Doc. A/C.3/345 (17 November 1948).
- 29.
The word “community” was chosen precisely because it does not exclusively refer to one particular community (as the word “state” does, for instance). Rather, it refers to communities both larger than the national community (regional communities or the international community at large) and smaller (e.g. the city you belong to, your neighborhood, and so forth).
- 30.
UN Doc. E/CN.4/SR.77 (28 June 1948), p. 2.
- 31.
Morsink explores various explanations for Chang’s odd behavior: Morsink 1999, pp. 245–6.
- 32.
UN Doc. E/CN.4/SR.77 (28 June 1948), p. 2
- 33.
Ibid., p. 3.
- 34.
Ibid.
- 35.
For an extensive explanation of this analogy , see: Glendon 2001, Chapter 10.
- 36.
UN Doc. E/CN.4/AC.1/W.2/Rev.2 (20 June 1947), Articles 3 and 4.
- 37.
According to this fourfold division, the first column is formed by Articles 3 through 11, the second by Articles 12 through 17, the third by Articles 18 through 21, and the fourth by Articles 22 through 27: Glendon 2001, p. 174.
- 38.
Certainly there are absolute rights: the right to not be enslaved by another, for example, or the right not to be tortured. In the case of other rights, however (e.g. the rights to freedom of expression, freedom of religion, freedom of assembly, freedom of movement, as discussed in Sect. 2.3.1), rights must be balanced with the rights of others and the interests of the community, or the common good.
- 39.
“Now, Therefore, THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction.”
- 40.
Eventually two separate covenants were drawn up, the ICCPR and the ICESCR, which were both adopted in 1966.
- 41.
Note the similarity with the appeals for “voluntary self-obligation” and a global ethic, as we found them in several of the human duties declarations. These aspects were nearly unanimously denounced by human rights scholars as paternalistic: not only could the government demand obedience to the law, but it could also demand that citizens be virtuous. All the more surprising, then, that we find a very similar call for civic virtue in the Universal Declaration. It would seem that the drafters of the Universal Declaration would have found themselves in agreement with the drafters of the recent human duties declarations concerning the point that legal rights without morality cannot long endure and that, therefore, voluntary self-obligation is needed.
- 42.
Jeremy Waldron makes a similar point in arguing for the necessity that people be educated to the “cosmopolitan dimension of their civic responsibibilities:” “if anything, the absence of a coercive institution to secure and sustain necessary structures of life and practice at a global level … makes it all the more important for us to use ‘citizens of the world’ as an idea regulating our actions” (Waldron 2003, p. 41).
- 43.
In fact, Article 26(1) also contains a duty: “Elementary education shall be compulsory” (emphasis added).
- 44.
UN Doc. E/CN.4/SR.67. (25 June 1948), p. 13.
- 45.
Some duties to the community could, in fact, be legally enforceable duties. The duty to obey the law, to vote, and to work are some examples.
- 46.
UN Doc. E/CN.4/AC.1/W.2/Rev.2 (20 June 1947).
- 47.
This is not to dismiss the immense quantity of literature on political obligation of course, nor the fact that several scholars have argued that political obligation cannot be legitimized (see, inter alia: Wolff 1998; Simmons 1979). I am not interested in questions of legitimization here, however, as that would require an entire book unto itself. Rather, my point is merely that this duty is unproblematic as far as the question of its status as a duty of justice is concerned.
- 48.
I will explain why I refer to duties to the community as “civic duties ” at the end of this subsection.
- 49.
- 50.
For reasons of brevity, I am not able to provide a complete defense of our political obligations and the principle of fair play. I merely wish to add here that a common criticism against the principle of fair play, as provided by, e.g., A. John Simmons , concerns the point of viewing our obligations as owed to the community because the benefits are the product of a cooperative venture. Thus, Simmons holds that the principle of fair play fails to justify political obligations, because most of us simply “do not regard the benefits of government as the product of a cooperative scheme,” but rather as something that we purchase from the government through paying taxes. Therefore, Simmons continues, many feel that “if debts are owed at all, they are owed not to those around us, but to our government” (Simmons 1979, p. 139). I would argue, however, that this critique is not so much a critique of the fair play justification of political obligations, but rather a critique (unintentionally, to be sure) of how we perceive ourselves and those with whom we live in a political community. All this criticism therefore does is confirm the necessity of cultivating civic virtue , that is, to see ourselves as participating in a common endeavor.
- 51.
Here one sacrifices one’s time and effort for the common good. One imagines that such civic participation results in a better functioning of the democratic community one is a part of.
- 52.
Examples of such duties to the community can be found in Article XXXIV ADRDM , which states that every able-bodied person has a duty to “render whatever civil and military service his country may require for its defense and preservation, and, in case of public disaster, to render such services as may be in his power.” The ECHR does not contain separate articles prescribing such duties to the community, as the ADRDM does. However, in Section 3 of the article prohibiting slavery and forced labor, it states that the term “forced and compulsory labor” does not apply to military service (or the alternative civilian service for conscientious objectors), “any service exacted in case of an emergency or calamity threatening the life or wellbeing of the community” and “any work or service which forms part of normal civic obligations” (Article 4(3) ECHR). Even the ECHR, therefore, recognizes not only duties to exercise one’s rights in a responsible fashion, as expounded in Chap. 2, but also such duties to the community.
- 53.
- 54.
A more contemporary account of this position is provided by Robert Paul Wolff, who argues that in the absence of direct democracy political obligations in general are incompatible with autonomy: Wolff 1998.
- 55.
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Boot, E.R. (2017). Two Contentious Duties. In: Human Duties and the Limits of Human Rights Discourse. Studies in Global Justice, vol 17. Springer, Cham. https://doi.org/10.1007/978-3-319-66957-1_4
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