Balancing rights and duties : implications for human rights

Abstract

A long standing criticism of human rights has argued that they tend to over emphasize rights at the expense of duties. In so doing, human rights have been held responsible for various social maladies including 'inherent individualism', 'litigiousness' 'soaring divorce rates' and the 'breakdown of traditional . communities'. In recent years powerful voices have joined in this critique of human rights due to the increased prominence of African and Asian orientation towards human rights and the intensification of the culture wars in the United States and other Western countries. This thesis seeks to engage with the debate from a primarily legal perspective, asking whether there is a need to give increased prominence to duties within human rights texts and institutional practice and, if so, how this could be done. After situating the modem concept of a right within a historical and comparative perspective, the space occupied by duties within international human rights law is investigated, concluding that, while as a matter of juridical logic, duties must necessarily be conferred, if these laws are to be properly interpreted according to what the text in fact states, duties are conspicuous by their absence. This is followed by a study of the jurisprudence of the European Court of Human Rights to demonstrate that, despite this absence, the Court, in its role to spell out the meaning of the rights' provisions in human rights law, has expanded, clarified and introduced duties, developing in the meantime the doctrince of 'Positive Obligations on States'. The real significance of the marginalization of duties is revealed and it is shown that the negative social impact of human rights is more clearly connected to a discursive reality than to the text. On the strength of this analysis, an investigation of the various attempts to redress the balance by giving more prominence to duties within international human rights law follows, and concludes that the present reluctance or rejection to adopt a remedy to the disequilibrium is affecting human rights. In the light of the findings of the research carried out, the thesis presents some guidelines as to how common ground can be reached. Specifically emphasizing the importance, on one hand, of working within existing human right treaties and institutions and, on the other hand, of finding a way to liberate oneself from the grip which human rights have on our language and, therefore, on our morals.