International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. In all these documents, and in many other international documents and regional documents like the European Convention on Human Rights, it is clear that the obligations are seen as secondary.

When you look closely, the covenants and other documents do not assign to the states obligations to meet rights, but second-order obligations to ensure that rights are secured and are met. That may be a very reasonable route. For example, in the Covenant on Economic, Social, and Cultural Rights, we read that each state party to the present covenant undertakes to take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized or proclaimed in the present covenant by all appropriate means, including particularly the adoption of legislative measures. One might again think Bertrand Russell’s thought. In fact, some people, in the very era in which the Universal Declaration was drafted, did warn (prophetically, I think) that it was dangerous to be looking at the rights without looking at the obligations.

I cannot resist quoting to you the first sentence from a book that should be better known, by Simone Weil, a French philosopher who came as an exile to this country but died before the Second World War ended. Those two sentences read, “The notion of obligations come before that of rights, which is subordinate and relative to the former. A right is not effectual by itself, but only in relation to the obligation to which it corresponds, the effective exercise of a right springing not from the individual who possesses it, but from other men who consider themselves as being under a certain obligation towards him.”

Lawyers have a way of dealing with these issues about difficult underpinnings. Maybe we should take a tip from Jeremy Bentham and think about law and institutions sooner, rather than trying to treat proclamations as justifications. That is not going to make everybody happy, because many people want to think that human rights are pre-conventional and that law just comes along afterward to tidy up, recognize, institutionalize, and secure preexisting rights. There may nevertheless be something to be said for taking some of the arguments of the legal positivists seriously.

One view quite often found among international lawyers is the following. When human rights were first proclaimed in the declaration and the covenants, they indeed lacked authority. That was mere proclamation. But now, the relevant covenants have been signed and ratified by the states parties, so now they are binding. Now they are real obligations. Note, however, that there is a sting in the tail here. Signature and ratification will not establish universal rights, and human rights are meant to be universal rights. What signature and ratification will establish is a special obligation on those states that sign and ratify—hence not on all states, and it is not a universal obligation. Moreover, they establish a special obligation that is not the counterpart of any universal right, but an obligation to institutionalize certain positive rights—that obligation to achieve progressively the full realization, etc. We are not going to find a justification, theoretical underpinnings, down that route.



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