Toward a Unified Theory of Human Rights Obligations: Collapsing Rights Typologies into a More Usable, Enforcement-Oriented Taxonomic Schema

Posted: 2 Apr 2011

Date Written: March 31, 2011

Abstract

The status of socioeconomic rights as fully enforceable norms has been contested for generations. International legal scholars have responded by generating a series of typologies in an effort to clarify the nature of these rights, their corresponding obligations, and the relevant standards for their legal assessment. These typologies, recognized in the U.N.’s General Comments and regularly drawn upon in the academic literature and comparative caselaw, include such distinctions as those between negative and positive rights or duties, the obligations to respect, protect and fulfill, immediacy vs. progressivity, minimum core content and the prohibition on regressivity, and directly vs. indirectly justiciable rights. Missing from the literature, however, is any analysis of how these normative classifications relate to one another, and when one versus another should be applied in a particular institutional or enforcement context. The messiness and often conflicting nature of the resulting puzzle reinforces the contested nature of the underlying norms, accentuating claimed differences between socioeconomic and civil-political rights and assertions that each is subject to distinct kinds of enforcement or implementation procedures.

This Article seeks to bring greater coherence to this messy terrain by collapsing the standard set of typologies into a more usable taxonomic schema, one that applies equally to all categories of rights. That schema introduces two additional typological distinctions - those between conduct- and result-based obligations, on the one hand, and between individual- and collective-oriented duties on the other. The key conceptual elements expressed in the standard set of rights typologies are then re-situated within the resulting framework, demonstrating how they interrelate in practical application. The Article concludes by explaining the instrumental, practical, and jurisdictional reasons why such a framework should be embraced as a general conceptual schema for understanding the dimensionality of human rights obligations and their enforcement through a wide variety of institutional implementation fora

Suggested Citation

Melish, Tara J., Toward a Unified Theory of Human Rights Obligations: Collapsing Rights Typologies into a More Usable, Enforcement-Oriented Taxonomic Schema (March 31, 2011). Available at SSRN: https://ssrn.com/abstract=1800139

Tara J. Melish (Contact Author)

SUNY Buffalo Law School ( email )

School of Law
525 O'Brian Hall
Buffalo, NY 14260-1100
United States
(716) 645-2257 (Phone)

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