Melbourne Law School - Theses

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Start date: 2020 × End date: 2022 × Type: PhD thesis × Subject: Human rights × Subject: Action theory ×

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    The Structure of Human Rights: A Philosophical Investigation
    Phillips, William Giles ( 2020)
    There is a tendency for human rights bodies—at the international, regional, and national level—to take each human right to correspond to multiple duties. It has become almost a mantra of human rights institutions that human rights correlate with duties to ‘respect, protect, and fulfil’. This view of the structure of human rights—the Multiple Duty View—is echoed in much of the philosophical literature on human rights—and particularly the accounts of Henry Shue, John Tasioulas, and Rowan Cruft. These philosophers reject outright the claim that there is a one-to-one relationship between human rights and their duties. Instead—on their accounts— correlating to each human right are any and all of the duties that it takes to guarantee the substance of the right or to protect the interests or other features of the right-holder. In this thesis, I present a challenge to the Multiple Duty View. I claim that it struggles to make sense of important cases of waiver of human rights because it does not match each human right with a single duty of identical content. On the Multiple Duty View each human right correlates with multiple duties. So, when a right-holder releases the duty-bearer from just one (or, at least, not all) of the duties correlative to a single human right the Multiple Duty View cannot explain what happens to that right. It can only say that that right is either waived or retained, and neither properly captures the situation. I present an alternative picture of the structure of human rights that addresses this problem—the Individuation View of human rights. The Individuation View takes each human right to correspond to one duty only. As such, it registers that for every duty that a duty-bearer is released from a human right is also suppressed. I consider and address some objections to the Individuation View, including that it is inconsistent with human rights practice and leads to a proliferation of human rights by positing the existence of many more rights than the Multiple Duty View.