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Published online by Cambridge University Press: 20 July 2015
Does the fact that my actions cause someone to lack access to the objects of her human rights make me a human rights violator? Is behaving in such a way that we deprive someone of access to the objects of her human rights even when we could have avoided behaving in such a way, sufficient to maintain that we have violated her human rights? When an affluent country pursues domestic policies that will foreseeably cause massive deprivation abroad in order to improve its already prosperous economy, has this country violated the human rights of the very poor just by doing so? If international organizations such as the International Monetary Fund and the World Trade Organization pursue policies that lead to an increase in the global poverty rate, are such organizations human rights violators? Can an individual undertaking certain actions in the market place that render insecure the access of the worst-off to the objects of their human rights be blamed for violating their rights?In this article I discuss the thesis that claims that whenever we cause, or contribute to the cause of, someone else’s lack of access to the objects of her human rights, we are human rights violators. I contend that this thesis, which seems to underpin the arguments of many cosmopolitan authors taking part of the global justice debate, is mistaken. In order to achieve this end, I analyze several alternative formulations of the causal thesis. My conclusion is that before it can be said that an agent has violated someone else's human rights, it has to be proven that this agent has caused, or contributed to the cause of, a state of affairs where someone lacks access to the object of some of her human rights, by infringing a duty not to do so. Furthermore, I maintain that this must be a perfect, as opposed to an imperfect, duty.
I want to thank Saladin Meckled-Garcia, David Karp, Neomal Silva, Chiara Cordelli, Laura Valentini, Alex Brown, Osvaldo Guariglia, Mariano Garreta Leclercq, Marina Velazco, the editors of the Canadian Journal of Law and Jurisprudence and an anonymous referee for their extremely useful comments to earlier versions of this paper. I also want to thank the Agency for the Promotion of Science and Technology of Argentina (PICT 38190) and the National Research Council of Argentina (PIP 5137) for their financial and institutional support.
1. See Ashford, Elizabeth, “The Inadequacy of our Traditional Conception of the Duties Imposed by Human Rights” (2006) 217 Can. J. L. & Juris. 217at 219, 228.CrossRefGoogle Scholar
2. See also Ashford, , “The Duties Imposed by the Human Right to Basic Necessities” in Pogge, Thomas, ed., Freedom from Poverty as a Human Right (Oxford: Oxford University Press, 2007) at 203.Google Scholar It may be possible that Ashford is tacitly assuming the existence of some implicit general duty, correlative to a right not to suffer from hunger or extreme poverty. Given her notion that being part of a causal chain leading to a human rights violation is sufficient to bear responsibility for such a violation, I think that this is not the case. If she is, nevertheless, assuming the existence of such duty, and she can come up with a clear explanation of what this moral principle is and how it operates, then her view does not need to conflict with the view that I am going to defend in this article.
3. Honore, Tony, “The Morality of Tort Law. Questions and answers” in Owen, D., ed., Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995) at 80.Google Scholar See also Thomas Pogge, “Severe Poverty as a Human Rights Violation” in Pogge supra note 2 at 16-18. Needless to say, if in any of these examples the agents acted negligently, for example, by failing to obtain the relevant information when it was, or could be, available to them with a reasonable effort, then they may be responsible for the resulting human rights violations.
4. Scanlon refers to the idea of bearing causal responsibility for something as attributability. Scanlon, Thomas, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998) at 277.Google Scholar Miller, instead, prefers the term ’’remedial responsibility.” Miller, David, ’’Distributing Respnsibilities” in Kupper, Andrew, ed., Global Responsibilities: Who Must Deliver on Human Rights? (New York: Routledge, 2005) at 95.Google Scholar See also Watson, Gary, ”Two Faces of Responsibility” (1996) 24 Phil. Topics 227.CrossRefGoogle Scholar Note that in this context the notions of foreseeability and control are normative rather than descriptive. In fact, they do not refer to the actual capacities or fore-seaability and control that a certain individual has in a certain situation, but to the capacities she should have had, taking the standard person as a measure. See Ripstein, Arthur, “Equality, Luck and Responsibility” (1994) 32 Phil. & Pub. Affairs 3 at14.CrossRefGoogle Scholar
5. Scanlon, ibid. at 277; Watson, ibid.; Miller, David, “Holding Nations Responsible (2004) 114 Ethics 240 at 245.CrossRefGoogle Scholar
6. See Ripstein, supra note 4 and Ripstein, Arthur, Equality, Responsibility and the Law (Cambridge: Cambridge University Press, 2001)Google Scholar [Equality]. For a discussion of this issue applied to the specific case of global justice and world poverty, see Montero, Julio, “Global Deprivation: Whose Duties. Some Problems with the Contribution Principle” (2008) 39 Metaphilosophy at 621.CrossRefGoogle Scholar
7. I borrow this example from Arthur Ripstein. See Ripstein, , “Justice and Responsibility” (2004) XVII Can. J. L. & Juris. 361 at 369.CrossRefGoogle Scholar
8. Honore, supra note 3 at 81. Arthur Ripstein calls this an “agency conception of responsibility,” which he defines as a conception according to which the moral significance of responsibility derives from the ways in which a person acts in the world rather than, in distinction, upon what one may expect of others. See Arthur Ripstein, supra note 7 at 361.
9. Pogge, supra note 2 at 16.
10. Meckled-Garcia, Saladin, “On the Very Idea of Cosmopolitan Justice” (2008) 16 J. Pol. Phil. 245 at 266.CrossRefGoogle Scholar
11. It may perhaps be claimed that my past actions have engendered certain social expectations which I now ought to meet. I am assuming this is not the case. Anyway, I think this claim is mistaken: the fact that someone decides to take advantage of my actions does not impose any further obligation on me, unless I voluntarily undertake such an obligation. For similar examples see Ripstein, supra note 4 at 13 and Honore, Tony, “Responsibility and Luck” (1998) 194 Law Q. Rev. 531 at 541.Google Scholar
12. For this distinction see Miller, supra note 4 at 97.
13. Feinberg, Joel, Social Philosophy (Englewood Cliffs, NJ: Prentice Hall, 1974) at 222.Google Scholar
14. See Ripstein, supra note 7 at 361.
15. Miller, supra note 4 at 98; see Ripstein, supra note 7 at 369.
16. There may be other senses in which we can bear moral responsibility for something even if we played no relevant role in causing it. For example, if my child breaks my neighbour’s window while playing with his ball, it could be claimed that, under certain use of the term “moral,” I am morally responsible for apologizing and paying for a new window.
17. For the sake of this debate, we can take an agent to have behaved in a negligent way if she has infringed a certain standard of care, which depends on considerations about what we owe to each other and may vary according to the situation. In this vein, we certainly demand more care in activities that are particularly dangerous for third parties, or that may affect their vital interests. See Kenneth Simmons, “Contributory Negligence: Conceptual and Normative Issues” in David Owen, ed., supra note 3 at 70; Ripstein, supra note 4 at 7; and Honore, supra note 11 at 552.
18. See Meckled-Garda, supra note 10 at 268.
19. Ashford, supra note 2 at 215.
20. In support of this account, see Gregor, Mary, Laws of Freedom (Oxford: Blackwell, 1963) at 100 Google Scholar, Baron, Marcia, “Kantian Ethics and Supererogation” (1987) 84 J. Phil. 237 at 250CrossRefGoogle Scholar, and O’Neill, Onora, Towards Justice and Virtue (Cambridge: Cambridge University Press,1996) at 184, 195, 197.CrossRefGoogle Scholar
21. This brief discussion regarding the status of social and economic human rights and the duties correlative to them is partially inspired in some of Sunstein’s theses. See Sunstein, Cass, Designing Democracy: What Constitutions Do? (Oxford: Oxford University Press, 2001) at ch. 10.Google Scholar
22. For this debate, see Kant Grundlegung zur Metaphysik der Sitten at Ak 4:424 ff., and the Rechtslehre at Ak 6:239-6:342.
23. See, for example, Gregor, supra note 20 at 98; Baron, supra note 20 at 250, Sen, Amartya “Elements for a Theory of Human Rights” (2004) 32 Phil. & Pub. Affairs 315 at 341CrossRefGoogle Scholar; O’Neill, supra note 20 at 199. Another way of describing this kind of discretion may be by reference to what Samuel Scheffler calls an “agent-centred prerogative,” meaning a prerogative an agent has under certain circumstances to prioritize her own preferences over fostering what would be the best state of affairs from an “objective” viewpoint. See Scheffler, Samuel, The Rejection of Consequentialism (Oxford: Clarendon Press, 1994).CrossRefGoogle Scholar
24. See O’Neill, supra note 20 at 151.
25. Nor can it be claimed that I have infringed my general duty of beneficence.
26. For extremely illuminating discussions on issues of collective responsibility, see Feinberg, supra note 13 and Kutz, Christopher, Complicity (Cambridge: Cambridge University Press, 2001).Google Scholar
27. O’Neill, Onora, Faces of Hunger (London: Allen and Unwin, 1986) at 160.Google Scholar
28. Singer, Peter, “Famine, Affluence and Morality” (1973) 1 Phil. & Pub. Affairs 229.Google Scholar For an exhaustive debate of this sort of case, see Unger, Peter, Living High & Letting Die: Our Illusion of Innocence (Oxford: Oxford University Press, 1996).CrossRefGoogle Scholar
29. O’Neill, Onora, Bounds of Justice (Cambridge: Cambridge University Press, 2000) at 105.CrossRefGoogle Scholar
30. O’Neill, Onora, “The Dark Side of Human Rights” (2005) 81 Int’l Affairs 427 at 429-31.CrossRefGoogle Scholar
31. O’Neill, supra note 29 at 100-09 and 115-30. For the sake of clarity, it must be said that O’Neill’s main thesis is that duties are always prior to rights in so far as there are more duties than rights. Although this is an extremely interesting issue, I do not need to address it here. In effect, my only claim in this paper is that there are no human rights without clear correlative perfect duties, irrespective of whether duties are prior to rights or not.
32. O’Neill maintains that what she calls “mere liberties” do not require correlative duties. Since this assertion may be contested and is not central to my discussion, I remain neutral regarding the issue of whether mere liberties require counterpart obligations and refer simply to “claim-rights” for the sake of clarity.
33. At the very least these are negative duties. Whilst I also think they may be positive duties, I prefer to remain neutral in this respect for the sake of this paper (see Shue, Henry, Basic Rights: Subsistence, Affluence and the U.S. Foreign Policy (Princeton, NJ: Princeton University Press, 1996).Google Scholar Note also that by the above mentioned correlation between rights and duties I am not simply referring here to the formal, Hohfeldian link between claim-rights and duties, but rather making a substantive or normative point regarding the implications of saying that one has a human right to something. See, for example, Hart, Herbert, “Are there any Natural Rights” in Waldron, Jeremy, ed., Theories of Rights (Oxford: Oxford University Press, 1984).Google Scholar
34. I do not intend to deny that obligations correlative to human rights may be positive as well as negative—in this line, see, for example, Henry Shue, supra note 33. I simply purport to be neutral on this issue for the sake of this article.
35. Shue, Henry, “Mediating Duties” (1988) 98 Ethics 687 at 702.CrossRefGoogle Scholar
36. See, for example, Nickel, James, “How Human Rights Generate Duties to Protect and Provide” (1993) 15 Hum. Rts. Q. 77 at 80.CrossRefGoogle Scholar In some cases it may be claimed that failing to bring about, or failing to work toward bringing about, an agent capable of delivering on human rights does not constitute a human rights violation itself but rather a mere infringement of that human right. Unfortunately I have no space to explore this possibility here.