Griffin, Cont. ER 11, Gov E-1040 Spring 2012

Questions for today Whose rights? Which rights? (which not?) Whose duties?

Whose rights: boundary disputes Arise from focus on normative agency Human rights do not apply to children, fetuses, patients in irreversible coma, or to severely mentally defective

Recall: Six core human rights treaties The International Covenant on Civil and Political Rights, adopted in 1966 and which entered into force in 1976 The International Covenant on Economic, Social and Cultural Rights, adopted in 1966, entered into force in 1976 The International Convention on the Elimination of All Forms of Racial Discrimination (1965, 1969) The Convention on the Elimination of All Forms of Discrimination Against Women (1979, 1981) The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984, 1987) The Convention on the Rights of the Child (1989, 1990)

The Convention on the Rights of the Child Article 1 (…) a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Article 2 States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status...

The Convention on the Rights of the Child Article 13 The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice. Article 14 States Parties shall respect the right of the child to freedom of thought, conscience and religion. (…) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

Need to protect freedom of assembly?

Exercising freedom of expression?

No human rights for children -- problematic? politically – yes, hugely! – given expansionist tendencies in HR language But: concern is to make use of human rights determinate No inference from something’s being morally significant to its bearing human rights (p 86)

But are children not especially vulnerable?

Are they not potential normative agents?

Illustration: Abortion Does fetus have human right not to be aborted? – “pro life” a matter of human rights? Would be if potentiality and vulnerability were decisive for having human rights Would be odd if an acceptance of human rights could commit one to “pro life” stance on abortion

“deflationary account” rejects certain human rights Limits content of others

There should then be no such thing!

Which Rights? right to life, security of person (otherwise personhood is impossible) voice in political decision (key exercise of autonomy) free expression, assembly, free press (for exercise of autonomy not to be hollow)

Which Rights? to worship (key exercise of what many take to be point of life) to basic education and minimum provisions needed for exercise as a person – more than mere survival not to be tortured – among several evils, torture destroys capacity to decide and stick to decision

Note in passing: Illegal immigrants access to health care, basic education? YES, on this account owed to them as a human right, not as right of citizens

Which rights not -- mistakes on UDHR freedom of residence (Article 13 (1)) protection against attacks on one's honor and reputation (in Article 12) equal pay for equal work, right to holidays with pay (in Articles 23/ 24)

Read Declaration again!!

More mistakes right to work – but does include a level of income necessary to be able to exercise normative agency (Article 23) adequate level of well- being (in Article 25)

Remember: “deflationary account”

Whose obligations? Kant Consider implications of Categorical imperative for obligations widespread view independently “always act such that you treat humanity in your own person and in others never merely as means but also as an end”

Kantian obligations obligations of refraining from treating somebody merely as means are perfect and universal – no exceptions (must be done in every relevant instance), apply to everybody obligations that are perfect and non-universal – Special commitments: contracts, promises – no exceptions (must be done in every relevant instance), do not apply to everybody Obligations of providing aid are imperfect and not universal – allow for discretion, nobody has right against you

Who has to do what for whom? Perfect/universal: Everybody must refrain from harming Perfect/non-universal: Special obligations must be met Imperfect: Everybody must use discretion to give aid – Nobody has right to aid You: refrain from harming You: honor obligations you have accepted You: do your share

Negative/positive rights Negative: to refrain – not to inflict something Positive: to provide or protect – to give something Right to life: positive/negative

Problem: Human Rights? Griffin: Human rights with positive obligations difficult to accommodate on Kantian account “who has to meet positive obligations” is unanswered – Can’t be imperfect because otherwise they would be no rights – Can’t be perfect and non-universal because otherwise they would be no human rights – Can’t be perfect and universal because only negative rights are

But following Griffin, human rights do come with positive obligations some human rights are positive: those based on ‘minimal provisions’ even negative rights entail positive requirement, e.g., judicial infrastructure Such obligations have nowhere to go on Kantian account

Whose obligations? Kant’s influential understanding of obligations creates no room for positive obligations stemming from human rights Difficult and messy subject to work out who has to do what to realize human rights

Who should do what? Griffin’s answer Guided by ideas of ability – what entities *can* do Primarily governments – but not just governments International organization, transnational corporations Individuals (!)

Recall 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 Member States themselves and among the peoples of territories under their jurisdiction.

For instance: UN Global Compact UN initiative to encourage businesses to adopt sustainable and socially responsible policies, and report on implementation announced by Kofi Annan at World Economic Forum in 1999 Voluntary operation

UN Global Compact Concerned with education, networking, naming- shaming, standard-setting, inspiration, etc. – but it is not meant to create binding law No effective monitoring and enforcement provisions (often criticized for that)

Special Representative for Business and Human Rights: John Ruggie state duty to protect human rights corporate responsibility to respect human rights need for greater access to remedies for victims of business-related abuse

For instance: Kimberley Process Certification Scheme (2003) to certify origin of rough diamonds To prevent “blood diamonds" from entering mainstream markets participants must ensure no diamond originating from the country finances attempts to overthrow UN-recognized government that exports are accompanied by certificate; that no diamond is imported from (exported to) non- members

Kimberley Process: Members

Rights without existing duty-holders? Griffin: often difficulties in identifying duty-holders Some think that therefore human rights are “not really rights” needs to be able to say (roughly) who should do what – But these entities do not need to exist yet for this to be sensible – Realizing human rights is work in progress

Problem re. who ought to do what If “ability” is the answer to the question of who ought to do what, how far do we need to go? – How much CAN we do? Ability might mean: to the limits of common human motivation Might also mean: to the limits of physical and biological possibilities

“Ought implies can” “ultra posse nemo obligatur” Griffin reads it conservatively: Limits to human understanding and human motivation “And our failures in understanding are often not peripheral to morality but at its center and great enough to leave us with no belief upon which we should be willing to base our lives.” (P 98)

Illustration -- Limitations of what ought to be done: Right to life “right to survival is merely to survival as an agent” (p 98) – not as imposing as one may have thought: “right to a fair span of life” (p 101)

Human right to health Cannot literally be right to health, but to health care How far-reaching? Right to “highest attainable standard of physical and mental health” (Article 25) – as in “to the maximum of available resources” Too much!!

AIDS Governments are often not able to provide care Ability matters – for AIDS, suitable directives given to pharmaceutical industry Patent restrictions, incentives