John Knox has published a long and dense yet fascinating article, “Horizontal Human Rights Law” in January’s issue of the American Journal of International Law. In it, he asks considers whether international human rights law, designed to prescribe how states may and must treat their citizens, also impose human responsibilities on citizens themselves?
Thinking that it maybe should, the now-defunct Human Rights Commission took up the issue before it disbanded in 2006, an effort which culminated in a Draft Declaration on Human Social Responsibilities that aimed to lay out both the horizontal duties that individuals own one another as members of society, and the vertical duties owed to their states and governments (like the duty to obey the law or serve the nation).
Knox points out that existing human rights law already enshrines correlative duties – that is, duties to one another – in the limits it allows states to place on the exercise of individual rights, and the requirement that states pass and enforce laws criminalizing the abuse of human rights by private actors like corporations or family members.
What earlier multilateral negotiations rejected, however, and what the Draft Declaration would also promote if adopted, is a set of converse duties – duties owed by individuals to the state itself. Knox argues against the Declaration on these grounds: if rights, which are designed to curtail how the state may treat its citizens, are contingent on human duties owed to the state, then this would undermine the entire concept of non-derogable human rights:
“Correlative duties are truly horizontal… they run between actors on the same legal plane, and, unlike converse duties, they appear to further, rather than undermine, the enjoyment of human rights. Converse duties ahve the potential ot undermine human rights because the government may rely on them to offset the duties it owes to the individual under human rights law.
Human rights law should do more to develop specific private duties to promote and protect human rights. But advocates of new proposals for private duties should ensure that their proposals strengthen, rather than weaken, the existing system of horizontal human rights law.
The Draft Declaration on Human Social Responsibilities fails. It is a collection of converse duties that raise the very concerns that led to the rejection of lists of private duties in human rights agreements.”
I generally agree with Knox’s broad argument. However I’m not certain I can agree with his reading of the Draft Declaration, at least on the basis of some of the examples he gives. (I have not yet had time to read the declaration closely myself.) An example that caught my eye was this one:
“Rather that attempt to delineate duties that the right of freedom might place on private actors, the draft declaration would limit that right: ‘Ever person linked to the mass media has the duty to provide information with due objectivity and discretion based on sounds reasoning, the verified truth of the information give and absolute fidelity to what is said by the sources consulted about it.'”
I’m not certain I see how this example represents a converse duty to be feared rather than a correlative duty to be embraced. It could be enumerated as a media informant’s right not to be misquoted or to have their experiences sensationalized for profit. But it’s expressed as a corresponding duty.
While I expect Knox’s general argument about the dangers of converse duties are valid, it’s too bad he used this particular example to make his point, since this seems like precisely the kind of correlative duty the human rights system should be finding ways to promote. It’s often amazed me at how strict the standards of confidentiality, informed consent and fidelity are for social scientists, and how lax the standards and oversight are for journalists. Since human lives can in fact be lost when journalists act unethically (which sometimes give the state an excuse to clamp down on press freedom per se), it seems that the human rights regime perhaps should be able to reach and punish such harms directly. That way, journalists would have their own set of incentives to police themselves, and any excuse for blanket repression of press freedoms by the state would be eliminated.
Perhaps a more nuanced argument would be not to oppose the Draft entirely, but simply oppose converse duties. I think we need a clearer discussion than Knox provides of how to distinguish one kind of duty from another, however.