Human Rights Transformed: Positive Duties and Positive Rights

30 Pages Posted: 13 Aug 2006 Last revised: 20 Feb 2015

Sandra Fredman

University of Oxford Faculty of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Abstract

In the post world war landscape of the United Kingdom, positive duties to provide welfare to individuals have been firmly situated within the politics of the welfare state. Conspicuously absent in this arena has been the discourse of human rights. Indeed, when the decision to enact a justiciable bill of rights was finally taken, it was the European Convention on Human Rights ("ECHR"), with its emphasis on civil and political rights, which was incorporated. This reflects a well-established view that civil and political rights are duties of restraint, preventing the state from interfering with individual freedom rather than casting positive duties on the state to act. As such, they are thought to be more appropriate for judicial resolution than positive duties. Protection by the state against want or need is assigned to the realm of policy, and socio-economic rights to the realms of aspiration. However, the attempt to draw a rigid distinction between negative and positive obligations has come under increasing strain in the developing human rights case law, and with it the demarcation between civil and political rights on the one hand and socio-economic rights on the other. Nowhere is this tension more evident than in the recent string of cases brought by destitute asylum seekers whose right to basic social support had been withdrawn because they had not applied for asylum at the port of entry. Their claim was based on one of the most fundamental of human rights: the right not to be subjected to inhuman or degrading treatment or punishment under Art.3 ECHR. In Limbuela, the House of Lords unanimously held that in order to avoid a breach of Art.3, the Secretary of State was obliged to provide support. The recognition of positive duties and of the role of human rights within the welfare arena coincides with a fundamental reshaping of the understanding of responsibility and its relationship to rights within the welfare state itself. The state's responsibility is no longer conceived of as a unidirectional provider of a package of benefits, but instead in terms of facilitation and empowerment of individuals. Correspondingly, the rights bearer is characterised as an active agent instead of a passive recipient. Nor does responsibility flow only between the state and the individual. Also brought into focus is the role of community, within which the responsibilities of individuals to each other are valued together with the individual's self interest. The aim of this article is to analyse the interaction between positive obligations within the human rights jurisdiction and political responsibility within the welfare state. The first part examines positive duties in the human rights arena. The second part considers their counterparts within the policy arena, tracking the influence of political theories such as liberalism, social democracy, communitarianism and civic republicanism. The article then turns to justiciability, and examines the effect of relocating traditionally political duties into the field of human rights. It draws on jurisprudence from India, South Africa, Canada and the EU to consider three possible approaches to adjudication: directive principles, reasonableness and equality and concludes that the guiding principle should be the reinforcement of democracy. The article concludes that evolving notions of political responsibility bring a valuable perspective to bear on positive duties in the human rights field. The recognition of structural constraints on individual autonomy has led to a well-established acknowledgment that the state has the responsibility to provide for basic needs. At the same time, freedom consists in people being actively involved in shaping their own destiny rather than being passive recipients. Thus the state's role is to strengthen human capability through facilitative measures, instead of ready made delivery. Nor does poverty consist only in low income, but includes other sources of deprivation of basic capabilities. Thus rights are not only about transfer of income; but also include facilitative measures to enhance individuals' capability to achieve their desired functioning, whether through investment in human capital, provision of public facilities or protection from oppressive working conditions. State responsibility is then matched by active citizenship, and provision is not a burden on tax-payers but a benefit to the community as a whole. A human rights framework of positive duties plays a pivotal role. The House of Lords in Limbuela has articulated a basic value of our unwritten constitution, namely that the state is responsible for preventing destitution which arises as a consequence of the statutory regime. Equally important is the recognition that this responsibility arises as much when the statute excludes as when it actively oppresses. It has been argued above that courts have a legitimate function in furthering democracy where those affected do not have an effective voice in the political process, either because they are outsiders, or because they do not have the economic security and independence to exercise their civil and political rights fully. Moreover, enforcing positive duties need not take courts out of their sphere of competence: courts can uphold a duty without specifying how much expenditure is necessary to fulfil it. Indeed, courts already insist that resources be allocated to fulfil basic civil and political rights such as the right to a fair trial. This paper has attempted to sketch the beginnings of a framework for justiciable human rights duties which constrains state responsibility without eclipsing it. Limbuela is clearly only the first step in an important new development.

Suggested Citation

Fredman, Sandra, Human Rights Transformed: Positive Duties and Positive Rights. Oxford Legal Studies Research Paper No. 38/2006; Public Law, pp. 498-520, 2006. Available at SSRN: https://ssrn.com/abstract=923936

Sandra Fredman (Contact Author)

University of Oxford Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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