Tuesday, January 24, 2012

Human rights as demands for communicative action

A key issue with human rights is how to allocate duties correlative to rights claims. But the philosophical literature, drawing largely on naturalistic or interactional accounts of human rights, develops answers to this question that do not illuminate actual human rights problems.  Charles Beitz, in recent work, attempts to develop a conception of human rights more firmly rooted in, and helpful for, current practice. While a move in the right direction, his account does not incorporate the domestic practice of human rights, and as a result remains insufficiently instructive for many human rights challenges.  

This paper addresses the problem of allocating correlative duties by taking the practices of domestic courts in several countries as a normative benchmark. Upon reviewing how courts in Colombia, India, South Africa, Indonesia, and elsewhere have allocated duties associated with socio-economic rights, the paper finds that courts urge parties to move from an adversarial to an investigative mode, impose requirements that parties argue in good faith, and structure a public forum of communication.  The conclusion argues that judicial practice involves requiring respondents to engage in communicative, instead of strategic, action, and explores the implications of this understanding of human rights.

Can social and economic rights be enforced? From one perspective, the answer is obviously yes. The great majority of national governments provide, finance, and regulate health care, education, social protection, housing and other basic services for large blocks of citizens; and many of those citizens have available to them judicial, administrative, and political means to assess the adequacy of their legal entitlements.

But the question is more vexing when it is understood as: Can social and economic rights be enforced as human rights? Moving to an understanding of social and economic entitlements as human rights complicates the enforcement question in two ways. First, it generates coordination problems. This occurs because a human rights conception increases the number of agents who are bearers or potential bearers of the duties correlative to the social and economic rights of any given rights holder. Not only citizens‘ own states, but foreign governments, compatriots, foreign citizens, NGOs, and other foreign and domestic private actors become potentially responsible for fulfilling human rights. At the same time, the human rights conception also means that, from the perspective of the duty bearer, potential claimants to whom duties are owed include not only citizens and others nearby but every human being. These two changes make enforcement more challenging because the duties to fulfill human rights are then widespread, but unallocated. Rights holders are unclear to which duty bearer they should take their claims. For duty bearers, incentives to free ride on the contributions of others increase.

WB. Author:Gauri, Varun ; Brinks, Daniel M.Document Date: 2012/01/01.Document Type: Policy Research Working Paper.Report Number: WPS5951.Human rights as demands for communicative action

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