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The Dark Side of Human Rights Author(s): Onora O'Neill Reviewed work(s): Source: International Affairs (Royal Institute

of International Affairs 1944-), Vol. 81, No. 2, Sub-Saharan Africa (Mar., 2005), pp. 427-439 Published by: Wiley on behalf of the Royal Institute of International Affairs Stable URL: http://www.jstor.org/stable/3568897 . Accessed: 05/03/2013 08:40
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Thedarksideofhuman rights'

ONORA O'NEILL

in France Edmund Burke asks In his Reflections on therevolution The question to foodor medicine? a man'sabstract Whatis theuse ofdiscussing right I shall In that deliberation them. and administering ofprocuring is upon themethod rather than theprofessor andthephysician advise to callin theaidofthefarmer always ofmetaphysics.2 More speciBurke's questionis sharp.What is the point of havinga right? unlessyou also have a way what is the point of havingan abstract right, fically to?Why shouldwe prizenatural it is thatyou have a right of securing whatever And ifwe need to ifthereis no way of ensuring their or abstract delivery? rights and the physician'not merelyof secure their delivery,are not 'the farmer but also of greater use thanpositive or naturalrights, use thanabstract greater to claim food or medicine?For a hungry person,positiveand justiciable rights thatare notjusticiable: to food are to be sure betterthanabstract rights rights store and cook food are more but those who know how to grow, harvest, still.When we are ill,positiveandjusticiand havingthe food is better useful, thatare not to healthcare are to be surebetterthanabstract able rights rights theiris and nurses are more doctors and but skilled useful, receiving justiciable: still. care better abstract to food or In a way it is surprising to findBurke discussing rights came to fullprominenceonlyin the late healthcare,forthesepresumedrights and contrasted twentieth century.They are commonlycalled welfarerights, of these with liberty This, I think,is a misnomer.The salientfeature rights. to the welfareof the recipient is not thattheycontribute (althoughthey rights to goods or services.If thereare to are likelyto do so), but thattheyare rights those goods and servicesmustbe provided,and to goods or services, be rights
Lecture This is a revisedversion of the MartinWight given at the London School of Economics on I4 fora number of helpfulcommentsat and followingthe lecture,especially October 2004. I am grateful fromConor Gearty,Nick Rengger and Chris Brown. 2 Edmund Burke, in France, Conor Cruise O'Brien, ed. (London: Penguin on therevolution Reflections Books, 1984), pp. 151-2.

International 8I, 2 (2005) 427-439 Affairs

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OnoraO'Neill and the more specifically provided by someone-forexample, by the farmer physician. which Burke campaignedwere the rights Most of the abstract against rights of theRightsofMan and of the Citizen of I789 proclaimedin the Declaration The shortlistin (Declaration rights. of1789).They are what we now call liberty statessuccinctly 'the naturalrights of man, which Article2 of the Declaration to and resistance must not be prevented... are freedom,property, security is not to be understood as a to property Needless to say,the right oppression'.3 oftenure but as a right to security ofproperty: to some amountofproperty, right it too is a libertyright,not a rightto any goods or services.4Much of the to processneeded to makeliberty withtherights Declaration of1789 is concerned to the rule of law, to habeas corpus,to whatwe would rights justiciable:rights The rights of theDeclaration now call accountablepublic administration. of1789 are rights all others and all institutions. are universal-and Liberty against rights so are the corresponding obligations. They are compromisedif anyothersare exemptfromthose counterpart obligations.If anyone may infringe my rights to freedom, and security, or to resist I have only incomproperty oppression, of thesesorts. plete and blemishedrights On closerconsideration, matters have turnedout to be rather more complicated. The institutions for securingand enforcing libertyrightsrequire an allocation of certainobligationsto specifiedothersratherthan to all others. to respectliberty First-order mustbe universal, but secondobligations rights orderobligations to ensurethat mustbe allocated. everyone respects liberty rights There is no effective rule of law withoutlaw enforcement, and law enforcement needs law enforcers who are assignedspecific tasks;thereis no effective of public administration without institutions that allocate the accountability tasksand responsibilities and hold specifiedoffice-holders to account. Neverbetween abstract theless,the asymmetry libertyrightsand abstract rightsto goods and servicesis convincing:we can know who violates a liberty right withoutanyallocationof obligations, but we cannottellwho violatesa right to have been allocated. goods or servicesunlessobligations This well-knownpointhas not impededthe riseand riseof an international human rights culturethatis repletewith claimsabout abstract to goods rights and services, now seen as universal humanrights, but oftenmuddledor vague, or both, about the allocationof the obligations withoutwhich theserights not merelycannot be met, but remain undefined.The cornucopia of universal humanrights includesboth liberty and rights to goods and services, and rights5
3 Declaration Citizen, I789, http://www.magnacartaplus.org/french-rights/ ofManandofthe ofthe Rights 4 Note alsoArticle andsacred no one 17 oftheDeclaration of1789: 'Property, beingan inviolable right, ofit;unless it,andjustandprior maybe deprived publicnecessity, legally investigated, clearly requires hasbeenpaid' compensation 5 Set outin theUN International Covenant on CivilandPolitical also I966 (CCPR). ThisCovenant Rights, various that arenotliberty See http://www.magnacartaplus.org/uno-docs/ 'recognizes' rights rights. covenant.htm.
I789.htm

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specifically rightsto food and rightsto health care. The rightto food is Social Covenant on Economic, proclaimedin ArticleI I of the I966 International and CulturalRights(CESCR), which asserts'the right of everyone to an of livingforhimself and hisfamily, includingadequate food, adequate standard oflivingconditions'6 and housing, and to thecontinuous improvement clothing is a nice touch!). Article i i of CESCR has been (the continuous improvement adopted as a guiding principle of the Food and AgricultureOrganisation forall'.7 The right to health (FAO), which has made itsmission'food security notjust to health anothernice touch!) is proclaimedin Article12 care: (to health, of the CESCR, which recognizes'the rightof everyoneto the enjoymentof ofphysical and mental health'.8 Article I2 hasbeen thehighest attainable standard adopted as the guidingprincipleof the World Health Organisation (WHO).9 There is an interesting difference between Articlesi i and 12 of CESCR. to food is viewed as a right attainable to adequate The right food,not to the best ... of health to standard a the attainable the to is viewed as right highest right food; of the health. and not as a right to adequate One can see why the drafters health, to adequate Covenant but in health, may have shrunkfromproclaiminga right to thehighest standard this rightas a right attainable many of health qualifying were Is this a the of health thata to standard right only right begged. questions treatment-however person can attainwith locally available and affordable to the highest standard availablegloballymeagrethatmaybe? Or is it a right however expensivethatmay be? The first is disappointingly minimal,and the to thebest?).And whatis latter barelycoherent(how can everyonehave a right the physician and otherswho actuallyhave to provide requiredof the farmer, food and health care? Uncertaintiesof this sort are unavoidable unless the thatcorrespond to rights to goods and servicesare well specified. obligations

and cynicism Norms, aspirations


Does anyofthismatter? we shouldview theDeclarations and Covenants Perhaps thatpromulgate humanrights as setting out noble aspirations, which are helpful to articulateand bear in mind when establishing institutions, programmes, and activities that allocate In we would concede policies obligations. effect, thatthe rhetoric of universal to goods or services human rights was deceptive, but defend it as a noble lie that helps to mobilize supportfor establishing
6 CESCR, ArtI I. See http://www.unhchr.ch/html/menu3/b/a_cescr.htm. 7 See theFAO website atnhttp://www.fao.org/UNFAO/about/index_en.html. 8 on rights in Article Declaration CESCR, ArtI2. The twoArticles proclaimed expand 25 iftheUniversal of Human of I948 (UDHR), whichruns hastheright to a standard ofliving for Rights 'Everyone adequate thehealth andwell-being ofhimself andofhisfamily, andmedical food,clothing, including housing careandnecessary socialservices, andtheright ofunemployment, to security in theevent sickness, old age or other lackoflivelihood in circumstances hiscontrol'. Forthe widowhood, disability, beyond text oftheUDHR see http://www.bee-leaf.com/universaldeclarationhumanrights.html. 9 The WHO's objective, as setoutin itsConstitution, is 'theattainment ofthehighest byall peoples levelofhealth', defined ofcomplete as"a state mental andsocial possible expansively physical, well-being andnotmerely theabsence ofdisease or infirmity'. http://www.who.int/about/en/.

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OnoraO'Neill of greatimportance.There is somethingto be said for this justiciable rights Declarationsand Covenants as ideological documents view of human rights but many that can help mobilize energyfor action that makes a difference, would see thisas cynical. of human rights claimswould be wholly at In any case, thisinterpretation Both liberty and rights to of rights. odds with ordinary rights understandings or entitlements thatare valid are standardly seen as claim rights goods and services obligations. Rightsare seen as one side of a againstthosewith the counterpart and obligation-bearers. We normally betweenright-holders normative relationship thatnobody is obliged to respector regardsupposed claims or entitlements An understanding of thenormative honouras null and void, indeed undefined. dislink underlies and that to professional daily rights obligations arguments human rights, and of the specialrights cussion both of supposedlyuniversal createdby specific actionsand transactions contract, voluntary (treaty, promise, There a to are cannot be claim that etc.). against nobody, rights rights marriage will be rights or nobody in particular: universal all comers;special rights against will be rights others. rights againstspecifiable in favourof of rights understanding Only ifwe jettisonthe entirenormative link a merely can we break the normative between and view, rights aspirational their counterpart obligations. If we take rightsseriouslyand see them as Ifon the rather thanaspirational, we musttakeobligations normative seriously. otherhand we opt fora merelyaspirational view, the costsare high. For then we would also have to accept thatwhere human rights are unmetthereis no breach of obligation,nobody at fault,nobody who can be held to account, have to We would in effect nobody to blame and nobody who owes redress. that human claims are not real claims. accept rights would be reluctant to jettisonthe thought Most advocatesof human rights in favour of seeing them as merely that they are prescriptive or normative We generally view human rights claims as settingout requireaspirational.I? mentsfromthe standpoint of recipients, who are entitled to or havea claimto action or forbearance with corresponding From a normby others obligations. ativeor prescriptive view, thepointof humanrights claimswould be eroded if to meettheseclaims.A normative view nobodywere requiredto act or forbear of rights claimshas to takeobligations since theyare the counterparts seriously, to rights; it mustview themas articulating the normative thatfall requirements either on all or on specifiedobligation-bearers. Few proponentsof human would countenancethe thought thatthereare humanrights thatnobody rights is obliged to respect.(The converse thoughtis unproblematic: therecan be are defined;such 'imperfect' obligationseven where no claimants obligations are generally seen as moral obligations, but not as obligationsofjustice with counterpart rights.)
Io

See recently thebestphilosophical between account ofHumanRights and Griffin, James 'Discrepancies theInternational Law ofHumanRights', Aristotelian CI, 200I, pp. 1-28. Proceedings ofthe Society,

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Thedark sideofhuman rights


is not musthave well-specified The claimthatrights counterpart obligations equivalent to the commonplace piety that rightsand responsibilities go are also obligation-bearers. This which asserts together, onlythatright-holders is often, but not always, true.Many agents-citizens, teachers, workers, students, and obligation-bearers. But some rightemployees-are both right-holders the severely so holders-infants, disabled,the senile-cannot carry obligations, have no responsibilities. theclaimthatrights musthave counterpart By contrast, asserts the exceptionless obligations logicalpointthatwhere anyoneis to have a theremustbe identifiable others(either all others or specified with right others) From a normative view of rights, accurately corresponding obligations. obligaare two perspectives on a singlenormative tions and claimablerights pattern: withoutthe obligations thereare no rights. So while obligations will drop out ofsight ifwe readhumanrights as aspirations 'claims'merely rather thanrequireas theyare usuallyunderstood. ments,so too will rights, Unsurprisingly aspirational readingsof human rights documentsare not popular. However, such at leastoffer an exitstrategy ifwe concludethatclaiming without readings rights specifying counterpart obligationsis an unacceptabledeception,and findthat we can't develop an adequate normative account of obligations and rights. it would be offer to a serious account of the allocationof Clearly preferable obligationsthat correspondto all human rights.But do Declarations and Covenantsprovidean account-or even a clue-to the allocationof the oblito rights to goods and services? This pointwas gationsthatare the counterparts obscuredrafting complicatedat the birthof humanrights by the unfortunately of the 1948 UDHR,x" which gestures to the thought thatcertain lie obligations with states,then confusingly to nations,countries assignsthem indifferently and peoples as well as states. Not all of thesehave the integrated capacitiesfor actionand decision-making needed foragency, and so forcarrying obligations."I For present purposes I shall leave problems arisingfrom this unfortunate aside,and relyon the factthatin laterdocuments, drafting includingCESCR, these ambiguities are apparently resolvedin favourof assigning to obligations states thatis to the signatory states. party, This approachhas apparent in itstail. The first advantages-and stings sting is that statesthat do not ratify a Covenant will not incur the obligationsit specifies:not a welcome conclusion to advocates of universalhuman rights, since these statesthereby escape obligationsto respect,let alone enforce,the The second is sharper. The obligations created rights promulgated. sting bysigning and ratifying Covenantsare special, not universal So therights which obligations. are theircorollaries will also be special or institutional not universal human rights, Once we take a normative view of rights and obligations, rights. theymustbe matched.Ifhumanrights are independent ofinstitutional if structures, properly are not created by special transactions, so too are the corresponding they
" The text canbe found at http://www.imcl/biz/docs/humanrights.pdf Forfurther comments on some confusions aboutobligations andagency in UDHR, see OnoraO'Neill, 'Agents in Thomas ofJustice', W. Pogge,Globaljustice(Oxford: Blackwell, 2001), pp. I88-203.

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OnoraO'Neill

ifobligations arethecreatures ofconvention, so too are obligations; conversely therights. These unwelcome of taking the humanrights documents at implications facevaluemight be avoidedin several One well-known is ways. thought that ourselves to liberty there is no allocation so longas we confine rights problem, ifall others sincetheserights are onlycomplete are obligedto respect them. We can coherently see universal as of institutions or liberty rights independent and read the of instruments that deal with as transactions, parts liberty rights rather thancreating thoserights suchclaims would be a affirming (justifying that do notfacean allocation further But thefact task). liberty rights problem to those them raises that offers small comfort just (although enforcing problem) forexample who hope to show thatrights to goods or services, to foodor human A areuniversal rather than thecreatures ofconvention. medicine, rights view of human cannot view and normative to food medicine as rights rights whiledenying that there areanypre-institutional pre-institutional counterpart orobligation itmust takea congruent viewofthecounterholders; obligations But this that suchrights must be special, institutional part obligations. suggests than of rather universal human There course, is, nothing rights rights. wrong or problematic aboutconventional or institutional but ifDeclarations rights, andCovenants create to goodsandservices, claims that areuniversal rights they or human lack Declarations and Covenants cannot showthat justification. rights and someparticular of institutional is configuration rights obligations univeror desirable, or evenjustifiable. sally optimal Thisdilemma be fudged to goods theideaofhuman might byallowing rights A viewofrights andservices to drift between twointerpretations. to goodsand services as independent of institutions and transactions could be cited as a basis for somerather than other institutional offering justifying arrangements. A viewofrights to goodsandservices as thecreatures ofconvention couldfit withwell-defined institutional but offers no claims counterpart obligations, abouttheir other than thefact that havesigned (some)states justification up to is a desperate them. this Yet is Equivocation strategy. equivocation justificatory in discussions of claims. common human rights disconcertingly withinnormative This dilemma views of rights and obligations can be inmore resolved than oneway.We couldconclude that arefundaliberty rights anduniversal, andclaimthat mental canbe justified without reference to they or institutions, but concedethatrights to goods and services Covenants are thatcan be justified positive) rights special(institutional, onlyby appealto suchas signing andratifying Covenants. We couldtry to specific transactions, of specialrights a configuration and the institutional that structures justify them andtheir we might secure Forexample, that counterpart obligations. argue certain to goodsand services and their rights counterpart obligations protect or thattheyhave utilitarian basic humanneeds or interests, or economic that andsecure Or we couldjustify institutional structures define justification. andobligations moredeeply to a theory ofthegood special rights byappealing

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Thedark side ofhuman rights


or a theoryof duty (Kantians).The option thatis closed is to (moral realists) and obligations are corollary normative but that claimthathumanrights claims, So there are thereare some universalrights withoutcounterpart obligations. If none of plentyof possibilities-althougheach may raiseits own difficulties. thesepossibilities can be made to work,the default positionwould be to reject normative views of humanrights and to see humanrights claimsas aspirational and to that need treat the taskof establishtoo) (noting aspirations justification a to institutions that allow for justiciable claims as task be ing guided in partby And then,it may seem, we in effect endorsea appealingto those aspirations. Declarationsand Covenants. cynicalreadingof the human rights

State obligations
These are awkward but I think that others problems, maylie deeper.The deepest problem may be thatthe obligationsassignedto statesby some of the most Declarations and Covenants are notthe corollariesof the human significant thatthe documents rights proclaim.The Covenantsdo not assignstates straightforward to have to be all, liberty (after obligations respectliberty rights rights respectedby all, not only by states),but rathersecond-orderobligationsto secure respectforthem. Equally, theydo not assignstatesobligationsto meet to goods and services, but rather second-orderobligations to ensure that rights that theyare met. For example,Article2 of the CESCR proclaims Each StateParty to thepresent Covenant undertakes to takesteps, and individually international assistance and co-operation, economic and technical, through especially to themaximum ofitsavailable witha viewto achieving the resources, progressively fullrealisation of the rights in the present Covenantby all appropriate recognized theadoption oflegislative measures.'2 means, including particularly the fullrealisation of ... rights... by all appropriate 'Achievingprogressively means' is evidently not merelya matter of respecting the rights recognizedin CESCR. It is a matterof ensuringthatothers-both individualsand instituthatcorrespond to thoserights. Latercomments tions-carryout the obligations of the Office the Commissioner for Human by High Rightsspell out some of the obligations thatstates are takento assumeiftheyratify thetwo Covenants.I3 An immediateand encouragingthoughtmightbe that if the obligations Declarationsand Covenants are notthe assignedto statesby the international the of human to counterparts rights proclaimed,but second-orderobligations ensure or secure respectforsuch rights, then thismay resolve the allocation to goods and services.Statesparty to a Covenant are seen as problemforrights and the instrument. It would acquiringspecial obligations by signing ratifying
12 I3

Article 2 CESCR at http://www.unhchr.ch/html/menu3/b/a_cescr.htm. Thenature Art. Fifth ofthe 2, para.I oftheCovenant, session, I990, Office ofStates parties obligations, for HumanRights, CESCR General comment HighCommissioner 3, http://www.unhchr.ch/tbs/ doc.nsf/(symbol)/CESCR+General+comment+3 .En?OpenDocument.

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OnoraO'Neill did not have counterthenbe clearthatthosespecial,second-order obligations universal humanrights. let alone counterpart They are second-order partrights, of first-order and obligations. rights obligationsto secure some configuration are withoutcounterpart This thoughtmay be helpful:since obligations rights withoutcounterpart we can coherent(unlike rights obligations), normatively view of the obligations assumedby statesthatsign and ratify take a normative Human rights enter the Covenants,and can see themas setting requirements. of of as the content second-order into the Covenants only indirectly aspects stateobligations. But a second thoughtis farless congenial to those who would like to see Ifthe obligations thatthe Declarationsand Covenhumanrights as normative. to states are not thecounterparts ofthehumanrights theseinstruments antsassign declare or recognize,then theyalso do not definethe first-order obligations of human rights.Rather the problem of giving a that are the counterparts of Declarationsand Convenantsis devolved instantiation coherentnormative for which may (or may not) set out to securepositiverights to the states party, documentshave normative theircitizens.If the claims of the human rights force they must be matched by obligations;if they are not matched by theyare at best aspirational. obligations, if the supposed As I suggestedearlier,it may not be wholly a misfortune in the and Covenants are seen as declared Declarations aspirations. Legal rights commentators mightbe willingto say thatthereis stillsubstancein there,in to realizetheseaspirations. Nonthatthe Statespartytake on real obligations make the mistakeof thinking that Declarations and lawyersmay habitually universalhuman rights, but Covenants claim that there are pre-institutional theirmistakeis not necessary-althoughpolitically convenient-for progress of the underlying towardsthe realisation once stateshave signed aspirations, This a is coherent but to be withthosewho seek position, unlikely popular up. which theysee to base ethicaland politicalclaimson appeals to human rights, as normatively fundamental rather thanas the creatures of the conventionthat to realize aspirations to are anchoredin the Covenants thatassignobligations states. And thereare further If we read Declarationsand Covenantsas difficulties. instruments by which statesassume second-orderobligationsto define and allocatefirst-order thatcorrespond to certain humanrights (now no obligations seen as all with A universal lie states? why should the obligations longer rights), and only states, have the powers necesplausibleanswerwould be thatstates, the relevant second-order to defineand allocatefirstobligations saryto carry The story orderobligations and rights to individuals and institutions. is told of a journalistwho asked the bank robberWillie Suttonwhy he robbed banksand we mightreply got the puzzled answer:'That's where the moneyis'. Similarly to anyone who wonders why Declarationsand Covenants assignobligations thatare to secure human rights to states by pointingout thatthat'swhere the power is.

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The dark sideofhuman rights to But the thought thatit makessense to assignall second-order obligations to states because they,and only they,have the defineand allocate obligations is oftenless thancomforting. theseobligations power to discharge Many states violaterather thanrespect humanrights. second-order to Assigning obligations defineand allocatefirst-order and rights to agentswho do not even obligations thatcorrespondto those rights obligations reliably respectthe first-order may like putting foxesin chargeofhen houses. It is trueenough thatthose be rather the fullrealization of humanrights who are to achieve progressively musthave capacitiesto do so-but it does not followthatthosewith (a good rangeof) the to do so. Some states-not only those we necessary capacitiescan be trusted thinkof as rogue states-disregardor overridemany of the Covenant rights. Some sign and ratify the relevantinternational but make limited instruments, efforts to work towardstheirfullrealization. Other states lack thepower to carry the obligations to 'achieve progressively the full realisationof the rightsrecognized' in Declarations and Covenants. Weak states-failed states, such demandingobligaquasi states-cannot carry tions. Althoughthey may not alwaysviolate them,they cannot secure their stillless can theyensurethattheirinhabitants inhabitants' have liberty rights; effective entitlements to goods and services. It is an emptygesture to assignthe to weak states, obligationsneeded forhuman rights comparableto the empty gesturemade by town councils in Britainin the I98os thatproclaimedtheir towns nuclearfreezones. Indeed, even strong and willingstates may findthat the fullrealisation of the rights theycannot 'achieve progressively recognized' in Declarationsand Covenants.Strongstates mayhave a monopolyof thelegitimate use offorcewithintheirterritories; but theyseldomhave a monopolyof the effective ofpower. There are plenty use of otherforms of reasonsforthinkabout thespecific character ofstatepower,and forquestioning the ing carefully assumptionthat powerful-let alone weak-states can carrythe range of second-orderobligationsthattheyostensibly take on in signingand ratifying human rights instruments. Given these realities, it may be worth reconsidering whetherall secondorderobligations to securehumanrights shouldlie withstates. Perhapssome of themshould lie with powerfulnon-state actors,such as transnational corporaor major religious,cultural, tions,powerfulnon-governmental organizations, and professional and educationalbodies. The assumption thatstatesand states alone should hold all the relevantobligationsmay reflect the extraordinary dominanceof statepower in the late twentieth rather thana timeless century, solutionto the problemof allocating to providegoods and services obligations For presentpurposes, I shall leave these unsettling effectively. possibilities and politicalcosts unexplored,but say a littlemore about some of the cultural that are linked to persistent confusionbetween normativeand aspirational views of human rights.

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Onora O'Neill

andblame Control
but are groundedin universal are not pre-conventional, If humanrights rights, then thereis-at the veryleast-an the special obligationsassumedby states, awkward gap between realityand rhetoric.The second-orderobligationsof states are discharged by imposing first-order obligations on others and and statepower, and thatof The is that state them. agency reality enforcing institutions that (partially) secure is used to construct derivativeinstitutions, and to controlthe action of individuals and thatto do thisit is necessary rights, If to the and in detail. states are secondinstitutions discharge party systematically humanrights and ratifying orderobligations Covenants, theyassumein signing are respectedby all, but must they must not only ensure that libertyrights will deliverrights to whose discharge obligations assignand enforcefirst-order will not Human it is be the to all. and services evident, beings, merely goods but will carry the intendedburdens. of theseobligations, intendedbeneficiaries The system of controlthatstatesmustimpose to ensurethatthese obligais likelyto be dauntingly tionsare discharged complex. Yet, as Burke pointed if we are to have food and medicine is the active what we need out, really be of 'the farmer and the physician'.Can thatactive engagement engagement secured or improvedby imposingdetailedand complex obligationson those There is much to consider first-order the relevant who are to carry obligations? comhere,and I offer verybriefcommentsunderfourheadings:complexity, pliance,complaintand compensation.

Complexity
Detailed controlis needed to 'achieve progressively the fullrealisation' of very of be sets which must rights, mutually conflicting adjusted. potentially complex in the age of human rights has become prolix It is no wonder thatlegislation it have to seek to ensurethatindividuals and and demanding.Those who frame institutions conformto a verylarge numberof constraints in all activities, so have to set and enforcevery detailed requirements.I4 It is now common in imposeshighlycomplex procedures developed societiesto findthatlegislation withdutiesto register, dutiesto obtainpermission, dutiesto consult, thatbristle as well as to to discloseand to record, requirements rights appeal, proliferating to report.Such legislationis typically supplementedby copious regulation, forms relentless 'guidance', prolix codes of good practiceand highlyintrusive of accountability. These highly detailedforms of socialcontrolmaybe unavoidable in a public culturethataimsto 'achieve progressively thefullrealisation' of an extraordinarily so has to impose complex demands complex set of rights, and burdenson all activities and all areasof life.
I4

state: MichaelMoran,TheBritish modernism andhyper-innovation Oxford (Oxford: University regulatory high is neither its that thenew regulatory state liberal nordecentralizing, Press, despite 2003). Moranargues commitment to human Rather itis bothinterventionist andcentralizing in waysthat colonize rights. andthephysician. hitherto domains ofcivil those ofthefarmer relatively independent society-including

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are demandingforthe stateagenciesthatare supposedto set the The results fortheinstitutions and police thesystem. They can be dementing requirements the first-order and individualsthatare to carry obligations- not least forthe active engagement. and the physician.Complex controlsriskstifling farmer Those of whom too much that is extraneousto theirbasic tasks-growing and food, caringforthe sick-is requiredare likelyto resentthe proliferating to to obtain consult third to requirements parties, time-consuming permissions, or record,to disclose,to reportand to complywith the demandsof inspectors for control and accountability These requirements impose heavy regulators. of human and financialcosts, and are often damaging to the performance on their to Those who face these burdens tasks. attempts perform primary and the physician-may complyand tasks-the farmer demandingsubstantive resent(and sometimesengage in defensivepractices);they may protestand complain; or they may withdrawfromactivitiesthat have been made too burdensome. The costs of complex control systemsare paid in increasing in lessactive and resentment, and ultimately wariness and weariness, scepticism and others who come to see 'the farmer and the by by engagement physician', as rather than as themselves right-holders. primarily obligation-bearers

Compliance
who are subjectto hypercomplexlegislation, and control Individuals regulation two roles. As obligation-bearers theirrole is compliance; as right are offered holdersthey are permitted and encouraged to seek redressand to complain on whom firstwhen othersfailto comply. The individualsand institutions are imposedin the name of securing humanrights are offered orderobligations limitedoptions:theycan soldierloyallyon in compliancewith the obligations states theycan exitfromthe tasksthat impose; theycan voice theirdiscontent; have been made too burdensomeby the excess complexity of legislation and regulation.'5Loyal compliancebecomes harderand more burdensomewhen the sheer number and complexityof requirements imposed damages the be with which substantive tasks can achieved. Voicing concern and quality objecting to these controlsprovides some, but limitedrelief.Exit fromthe activities thathave been made too burdensomemay oftenbe the mostreasonable and the preferred and the physician',exit means option. For 'the farmer givingup growingfood and caringforthe sick. There maybe waysof extending humanrights thatdo not carry thesecosts, thatuse a 'lighter touch', thatachieve 'betterregulation'.i6 But thejury is out At present, in the UK, thejuggernautof human on thismatter. and certainly
'5 See Albert andloyalty: 0. Hirschmann, todecline andstates Exit,voice infirms, responses organizations MA: Harvard a classic ofthese Press, I970), for (Cambridge, University analysis options.

I6

The UnitedKingdom established a Better in 1997.It promotes TaskForce the government Regulation 'five ofbetter whicharesaidto be Proportionality, regulation' principles Accountability, Consistency, andTargeting is a nicetouch!). website See thetask force's athttp:// Transparency (consistency www.brtf.gov.uk/.

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Onora O'Neill and of the regulatory demands,at everystageoflegislation rights process,tends to increasecomplexity even when the costsfor'the farmer and the physician', and the damage to the servicestheyprovide,are high and well known.

Complaint
First-order are also right-holders, and it may be that the obligation-bearers are burdenstheirobligations the impose recompensed by rights theyenjoy as a result of others discharging their obligations.However, the experience of is not symmetric with thatof obligation-bearers. Individualsact right-holders as right-holders when In has that situationthey only something gone awry. and compensation.The legislation and regulation may complain,seek redress of statesthattake human rights oftenprovide a rangeof remediesseriously for those with the time, energy,courage (or foolhardiness) to pursue them. When complaints redress be achieved work, and, compensationmay be may secured.But oftenthe experienceof complainants is less than happybecause the processof achievingredress is complex,exhausting and frustrating, and the remediesless thanwould satisfy and assuagea sense of injury.Since the role of is too oftenone thatexhausts, demoralizes and undermines active complainant engagement, manywho are wrongeddo not choose thiscourse of action. For 'the farmerand the physician' and for many others the choice is mainly between loyaltyand exit: givingvoice is not generally a positiveexperience, since it requires complainantsto see themselvesas victims ratherthan as activelyengaged.

and blame Compensation


The best outcome of the voice option is that,withluck and persistence, those who take on the role of victimor complainant achieve redress and compensation, or some opportunityfor the dubious pleasures of casting blame. has itspositiveside-although it maybe hardto achieve, Compensationclearly limitedin amountand is not alwaysworththe struggle the complexthrough itiesof process.Blamingby contrast is a readily availableand cheap pleasureeven for complainants whose case is not upheld. Those who cast blame can appropriate,enjoy and prolong their role and statusas victims,can enjoy and a feelingof superiority, even if theycannot quite identify or indignation demonstratethe failingsof others. If it proves impossible to identifya blameworthyculprit,they can at least blame the system,that is to say the institutional framework thatis failing to achieve 'progressively the fullrealisation of the rights ... all means,including recognized by appropriate particularly the adoption of legislative measures'. There is a darkand tempting undercurrent of pleasurein blaming.Nobody has written about the psychologyof blaming,or about its murkyappeal and insidious psychologicaleffects, more brilliantly and darklythan Nietzsche.

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side Thedark rights ofhuman


of the farmer and the are particularly Some of his comments apt to the realities physician: for for and capacity pretexts willingness inventing Suffering peopleall havea horrible over emotional feelings. Theyalready they're brooding enjoytheir suspicions, painful theentrails oftheir and apparent bad actions Theyransack pastand present, damage. in whichthey arefree to feast on an agonizing fordarkand dubiousstories, looking on their own poisonous and to getintoxicated anger.They ripopen the suspicion to death from scars. oldest bleedthemselves wounds, friends, they long-healed Theyturn 'I am suffering. to them intocriminals. andanyone elsewho is closest wives, children, must be to blamefor that'.'7 Someoneor other I do not wish to suggest thatthe humanrights cultureinevitably promotesthis rancorousapproachto life.But I do not thinkwe should accept at face value othersas agents. the view thatit is all about respectforpersonsand treating the weak and vulnerable.But it is also Much of it is indeed about protecting about extending the power of states over non-state actors and human about establishing of controland discipline thatextendinto individuals, systems theremotest comersoflife,about running people's livesforthemwhile leaving themwiththe consolingpleasures ofblame. As BernardWilliamsputsit,blame is 'the characteristic in which obligations reactionof the morality and system' have become the sole ethicalcurrency.'8 rights We findit unsurprising thatthe rulingideas of past eras have been superseded and modified, and we can hardlydoubt thathuman rights are a central rulingidea of our age. Yet we do not findmuch currentdiscussionof the likelihood thatthe idea of human rights the same fate.Public dismay suffer course is for the most part admiring,and oftenrepresents human rightsas we may questionanything-excepthuman and progress: unquestionabletruth dominant thehumanrights moveIndeed,unlikesome earlier ideologies, rights. ment has acquired the beguilingfeature of being an ideology not only of and forthe rulingclasses, but an ideologyfor-and increasingly of-the oppressed. This seemsto me a good reasonforthinking and critically particularly carefully about the internal structure of humanrights to be lessgestural claims,fortrying about theirbasisand theirlimits, and forbeing more explicitabout theircosts as well as theirbenefits. The farmer and the physician, and otherswhose work and commitment are indispensable, are the keyto securing a decentstandard of lifeforall: theiractiveenthusiasm and efforts are morevaluablethantheirdour theirresentful let alone their procedures, compliancewith prescribed protest, refusal to contribute.

whichdraws on earlier 5. Thistranslation, received canbe found at TheNietzsche channel's athttp://www.geocities.com/ website versions, e 15. thenietzschechannel/onthe3 .htm#3 '8 Bernard Ethics andthe limits Williams, (London:Fontana, ofphilosophy I985),p. 177.

17 Friedrich The PartIII, Section Nietzsche, ofmorals, genealogy

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