Reflections on Makau Mutua’s Critique of the Contemporary Human Rights CorpusElizabeth Ashford, ea10@st-andrews.ac.uk

Human Rights Workshop, University of Ghana, March 23-24 2017

Mutua Makau has presented what is in my view the most powerful and important critique of contemporary human rights discourse. I shall here analyse some of his core criticisms, and explore some of the ways in which human rights discourse ought to be re-imagined and reshaped in light of them.

It is important to be clear about the nature of Mutua’s critique. Unlike many power-related critiques of contemporary human rights discourse, Mutua is careful to distinguish his critique of that discourse from a critique of human rights themselves. The term “human rights” is ambiguous. It can refer to human rights that actually exist; that is, to persons’ moral claims against the worst forms of treatment, against which they ought to have extraordinarily strong protection. Alternatively, it can refer to the conception of human rights dominant in human rights discourse; that is, to rights that are taken to exist. Mutua’s critique is directed not at human rights themselves, but at the limited, parochial understanding of them embodied in the current human rights corpus.

Human rights pertain to be normative facts about how people ought to treat one another. Fundamental human rights pertain to be normative facts about the moral floor beneath which no-one should be allowed to sink. As normative facts, they are entirely independent of descriptive facts about how people do in fact treat one another. These descriptive facts include facts about the ways in which the discourse of human rights has been subverted through hegemonic manipulation, or limited by moral parochialism and complacent moral blind-spots. Affirmations of universal human rights against indignities and utter powerlessness are not undermined by descriptive claims about the way the language of human rights is in fact used to ratify deeply unjust hierarchies of economic and political power. On the contrary, a crucial role of human rights is to function as a as a benchmark by which to criticise dominant conceptions of them.

Of course, one possible response to power-related critiques of human rights discourse is to deny the existence of genuine human rights. Hegemonic manipulation exploits belief in existence of human rights, and one response is to reject that belief. However, this response by no means follows from power-related critiques of the discourse. A different response is to appeal to appeal to an account of genuine human rights to highlight ways in which the discourse of human rights is incompatible with adequate recognition of the values it professes to affirm and protect.

This is the project that Mutua is engaged in. As he points out, the cost of abandoning the moral notion of human rights is to lose the moral benchmark by which to critique the practice and face intellectual paralysis, and he passionately argues against this:

“For me, such a view is an abdication by some of us who are comfortable in our personal and professional lives and who seek to paralyze ourselves intellectually so that we can have a rational excuse for doing nothing. This is ultimately cowardly, opportunistic, or even anarchistic.”

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Mutua’s critique focuses on the gulf between a normatively adequate account of fundamental human rights, and the current human rights corpus. As both Mutua and Henry Shue emphase, the crucial role of fundamental human rights is to protect and empower the vulnerable against the worst forms of treatment – liable to blight or altogether destroy their lives. Among the most vulnerable are those whose basic interests are threatened by socio-economic forces beyond their control. As Mutua puts it, the purpose of human rights “is the reduction of conditions that foster human indignity, violence, poverty and powerlessness”. But the predominant international discourse of human rights, far from protecting and empowering the vulnerable, fails to acknowledge some of the most severe and pervasive threats of powerlessness and indignity, and endorses and entrenches extreme and severely unjust imbalances of economic and political power.

The book concludes with an urgent call for a reimagining or the practice, to adequately acknowledge and address economic powerlessness:

I hope that this book serves as a footprint…for the work which must be done to reconstruct the human rights corpus by constructing normatively a more inclusive doctrine for human dignity. This is literally in a state of emergency. Ruthless, hedonistic, and relentlessly individualistic and deeply exploitative beliefs and systems have in the last decade been given “universal legitimacy” by economic and cultural globalisation. The current official human rights corpus does not have the … normative tools … to unpack the complex oppressions which globalization now wreaks on individuals and communities. … the human rights corpus is simply unable to confront structurally and in a meaningful way the deep-seated imbalances of power and privilege which bedevil our world. … This is a project that must be pursued with urgency (Mutua 2002, pp. 156-157).

This paper is offered in response to that call. I offer a morally minimal account of the moral claim at the heart of affirmation of fundamental human rights, and argue that it follows from this that severe economic powerlessness should be recognised as a structural human rights violation, responsibility for which lies in large part with Western countries and citizens. While this violation significantly diverges from the paradigmatic conception of a human rights violation implicit in the corpus, it is at least as grave, and in some core respects significantly more so. I thereby hope to reinforce some of Mutua’s central claims about ways in which the corpus needs to be reshaped.

Section one briefly analyses some of Mutua’s principal criticism of the human rights practice. Sections two and three argues that there is a deep moral inconsistency between the values espoused by the human rights corpus, and its failure to recognise that severe economic powerlessness constitutes a structural violation. Section four argues, moreover, that the the model of human rights implicit in the corpus actually functions as a perfect moral loophole by which Western countries and citizens can avoid acknowledging responsibility for their role in this violation. Section give highlights the way in which this argument supports Mutua’s core critiques of the corpus.

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1) Mutua’s critique

A) His critique of the content and focus of the corpus:

i) It fails to address economic powerlessness

1: From the start, the movement and its founders did not see themselves as charged with the responsibility to address economic powerlessness. Even though the UDHR addresses some economic, social, and cultural rights, it is clear that they are an afterthought and marginalized within the document… the rights are not scripted in a way that directly confronts powerlessness and exploitation.

ii) Human rights discourse is superficial

It addresses especially graphic practices such as inhuman working conditions, but fails to address the structural arrangements and severe poverty that underpin them:

32 It is not enough to decry, as human rights NGOs do, the worst excesses of globalization, or the most shocking practices such as sweatshops and cruel labor and slavelike conditions of work. The corpus must develop a defensible normative project to address economic and social arrangements and systems. (Mutua 2008, p. 1032).

iii) It is state-focused.

It takes the principal role of human rights as being to protect citizens against certain forms of interference by the state, classified as violations of civil and political rights. It thereby ignores the moral significance for human rights of relations between citizens, and of the responsibilities of citizens:

“the human rights project basically polices the space between the state and the individual, and not between individual citizens… Yet there is nothing intrinsic about human beings that requires only their protection from the state and not the asymmetries of power among them.” (Mutua 2008, p. 1027).

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iv It ignores the historical underpinnings of current social economic and political structures.

In several compellingly argued papers, Mutua shows how the political crises facing many African countries cannot be understood without examining the effects of colonization: “[an analysis of] the failure of the post-colonial African state... should truly rest, within the dynamic of post-colonialism and the inability of the colonial state to metamorphose into a viable and prosperous political and social organization” (Mutua 1995-6, p. 518). He concludes that “At its dawn, the African postcolonial state was handed a virtually impossible task: Assimilate the norms of the liberal tradition overnight within the structures of the colonial state while at the same time building a nation from disparate groups in a hostile international political economy.” Despite this, there is a striking absence from key human rights documents of terms such as “colonialism”, and “imperialism” that are crucial to describing and formulating structural responses to “power or lack of it, and the consequent violations” (Mutua 2008, p. 1031.)

v) The moral complacency of the application of the Savage / Victim/ Saviour metaphor

Fundamental human rights demarcate the morality of the depths – the very worst forms of treatment, against which persons ought to have extraordinarily strong protection. The notion of a human rights violation denotes treatment that is morally intolerable; it is “beyond the pale”. Applying the label “human rights violator” signifies someone whose treatment of others has fallen beneath the moral threshold that separates minimally decent civilised treatment from treatment that is savage, barbarous and morally intolerable.

Mutua’s critique is directed not at the moral condemnation of certain kinds of treatment as human rights violations, but at the breath-taking hypocrisy of the way in which such condemnation is applied. Human rights discourse casts Western governments and international NGOs as human rights heroes, protecting victims against savage acts perpetrated principally by African regimes. It is directed at violations of civil and political rights, and ignores violations of socio-economic rights and overlooks the ongoing and pervasive role of Western powers in fostering economic powerlessness and indignity, in Africa and elsewhere.“The spotlight by INGOs [on violations of civil and political rights] … is appropriate, necessary and welcome….But… it does not excuse their relative inactivity on human rights violations in the West. …The ravages of globalization notwithstanding, INGOs have largely remained deaf to calls for advocacy on social and economic rights.” (Mutua 2002, p. 20).

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vi) It is parochial and ideological

Human rights pertain to be universal moral values. In fact, however, the human rights corpus is parochial, and seeks “to universalize an essentially European corpus of human rights through Western crusades”.

B) Mutua’s methodological critiques of the corpus

i) its underlying normative and ideological assumptions are not explicitly stated

“Nor are there any extended philosophical postulates or ideological justifications in the UDHR, or in any of the two principle human rights covenants. These are glaring omissions, especially for the launch of a universal creed. The lack of extended theories and philosophical justifications for the human has mystified and obfuscated the normative and cultural gaps in the corpus. This “masks its deficits, and makes it difficult to debate them in the open. It is an exercise that is akin to shadow boxing”

ii) It is presented as a “final truth”

The corpus is not genuinely open to deep critique. “The human rights movement must not be closed to the idea of change or believe that it is the “final” answer. It is not. This belief… invites “end of history” conclusions…It is an assertion of a final truth. It must be rejected. (Mutua 2002, p. 3).

iii) it has not taken on board a range of critiques from critical thinkers round the globe.

The critiques of the corpus from Africans, Asians, … and a host of critical thinkers round the globe are the avenue thought which human rights can be redeemed and truly universalized.

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What he is calling for, then, is a genuinely open debate about the normative underpinnings of the corpus, in light of which it can be subjected to deep critique, and radically reimagined.

I now argue that there is indeed a fundamental inconsistency between the value at the core of affirmation of fundamental human rights – persons’ universal moral status and justifiable demand not be treated in ways that are incompatible with minimally adequate recognition of that moral status – and its downgrading of socio-economic rights. I begin by offering a set of sufficient conditions for constituting a human rights violation that is so morally minimal that rejection of it cannot be credibly viewed as compatible with minimally adequate recognition of persons’ universal moral status, and then argue that socio-economic structures can meet those conditions. I aim to show, then, that a normatively adequate account of human rights ought to acknowledge a category of structural human rights violations. I then argue that current pervasive economic powerlessness meets those conditions and should be classified as a structural human rights violation. I further argue that responsibility for this violation lies in large part with countries and citizens in the North. Thus, far from being the human rights heroes, Western governments and citizens are participating in a massive violation of a fundamental human right. The state-based model, which Mutua critiques, lacks historical depth and geographical width, and functions as the perfect moral loophole.

2) Why An adequate account of human rights has to acknowledge a category of structural human rights violations

i: the notion of a human rights violation and its underlying moral assumption:

I take fundamental human rights to be rock-bottom moral claims of paramount moral importance, held by every human being simply in virtue of their moral status as a human being. Thus, the central moral assumption underlying the affirmation of some fundamental human rights is that each person has moral status, and can therefore justifiably demand not to be treated in ways that are incompatible with minimally adequate recognition of that moral status. As Henry Shue puts it, basic human rights constitute “the morality of the depths” and “everyone’s minimum reasonable demand against the rest of humanity”.1 Similarly, Mutua

1 Shue 1996, p. 19. My use of the term “fundamental human rights” closely resembles Shue’s term “basic rights”, but my focus in this paper is slightly different. Shue defines basic rights as those rights enjoyment of which is essential to the enjoyment of any other human right, and argues that the right to subsistence is indeed a basic right. (I have defended a development of this argument, in Ashford 2009). My focus here, by contrast, is on showing that the positive and negative duties to respect the right to subsistence have a moral force parallel to that of duties to respect the right against torture. As I argued in section 1, the category of positive duties to respect the right to subsistence, non-fulfillment of which violates the right, does not easily fit with Shue’s tripartite division of duties.

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describes human rights as demarcating the moral floor beneath which no-one should be allowed to sink.

Human rights violations constitute the kind of treatment that is liable to mar or altogether destroy persons’ lives. However, it is not the magnitude of the harms alone that marks out human rights violations, but the fact that the inflicting or allowing of these harms constitutes treatment of individuals that is morally intolerable. I now present a set of sufficient conditions for constituting such morally intolerable treatment that is is so morally minimal and uncontentious that rejection of it cannot credibly be held to be compatible with minimally adequate recognition of persons’ universal moral status.

ii Sufficient conditions for constituting a human rights violation.

There is much debate over what grounds the universal moral status of persons, and what kinds of treatment are fundamentally incompatible with minimally adequate acknowledgement of that moral status. Nevertheless, I take it to be uncontroversial that a sufficient condition for constituting such treatment is that the treatment predictably, avoidably and unjustifiably inflicts extremely severe harms – harms liable to blight or destroy persons’ lives. Following Claudia Card, these kinds of harms can be termed “ruinous suffering”. The claim that the unjustifiable infliction of ruinous suffering constitutes a human rights violation is uncontroversial to the point of having an air of tautology.

The substantive debate, of course, concerns the question of what constitutes the unjustifiable infliction of ruinous suffering. Nevertheless, I also take it to be uncontentious that the infliction of severe harms is unjustifiable if the harms are foreseeable, could be avoided at moderate cost to every duty-bearer, and are not justified by any countervailing moral considerations. (The phrase “moderate cost” has to include a moderate economic cost relative to the overall level of available resources, such that it could be distributed in a way that would avoid sacrificing anyone’s essential interests.)

I should emphasise that this is only an analysis of a set of sufficient conditions for constituting a human rights violation; it is by no means offered as a full analysis of the notion of a human rights violation or intended to imply that the infliction of ruinous harm constitutes a violation only if it could be avoided at moderate cost.

Where ruinous harm is inflicted even though it could be avoided at moderate cost to every agent, the infliction of that harm is flagrantly incompatible incompatible with minimally adequate recognition of the moral value of the victims’ lives. Griffin appeals to the notion of “discarding” persons’ lives. This connotes destroying persons’ lives in a way that treats their lives as of no value – as merely disposable, like rubbish. Inflicting ruinous suffering or death, merely to avoid a moderate profit reduction, amounts to the discarding of persons’ lives.

This account of human rights appeals only to minimal and uncontentious moral premises, and captures the special moral force of the notion of a human rights violation. First, the duty not to treat persons in this way is of paramount moral importance. Second, since the harms are avoidable, it is built into this duty that it is practicable. Third, since the infliction or allowing of the harm is unjustifiable, then it is also built into the duty not to treat

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persons in this way that the treatment cannot be justified by appeal to countervailing moral considerations; the force of all the relevant moral considerations has already been taken into consideration in arriving at the judgement that the allowing or infliction of the harm is unjustifiable. Therefore, the duty not to violate a human right is not itself appropriately standardly subject to being balanced and weighed up against opposing moral considerations, but has a peremptory moral force.

While this account of the sufficient conditions for constituting a human rights violation is morally minimal, it nevertheless also avoids arbitrarily restricting the applicability of the concept to certain social contexts. In particular, it can be applied directly to structures.

iii structural human rights violations

If the foreseeable combined effect of certain aspects of the ongoing patterns of behaviour that emerge from complex large-scale global interaction is the infliction of extremely severe harms, that are liable to blight or altogether destroy persons’ lives, and that deprive persons of the object of a fundamental human right; and if there are feasible and feasibly achievable alternative social structures under which the harms could be avoided, at moderate cost to every duty-bearer; and if there are no other countervailing moral considerations that might justify the infliction of the harm; then those patterns of behavior constitute a structural human rights violation.

By the term “structure” I mean any patterned interaction. The patterns constitute a structural violation in virtue of the nature of the trade-offs the patterns themselves instantiate: since their predictable combined effect is the unjustifiable and cheaply avoidable infliction of devastating harms, liable to blight or altogether destroy persons’ lives, then the patterns instantiate a trade-off between agents’ aims and interests, and the interests of the victims, that is fundamentally incompatible with minimally adequate recognition of the moral value of those victims’ lives, to the point of amounting to the discarding of their lives.

The respect in which such harms are avoidable is that there are feasible and feasibly achievable alternative social structures in which they would be avoided. This requires the institutional specification and enforcement of a schema of regulations and duties compliance with would avoid the harms. Agents who participate in structural violations are under a shared duty to implement such a schema, underpinned by the abstract general duty of justice, held by all and owed to all, not to discard persons’ lives. The violation consists in the ongoing shared failure to have instituted the regulations that would avoid the harms. Thus, failure to have specified legally binding obligations – and thereby removed the flaccidity of the right against such harms – itself constitutes a structural violation.

The most illuminating explanation of the emergence of the laws and norms that structure behavior in a way that constitutes a violation is likely to be an evolutionary explanation, in terms of the selection and staying power of certain norms and rules. At this evolutionary level of analysis of structural violations, the way in which the selection and staying power of certain norms and practices reflects the vested interests of powerful economic actors, in conjunction with a marked absence of consideration for the overall

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impact of the structures on those whose lives are predictably blighted or destroyed by them, become salient.

There is no assumption that it must be possible to identify specific, intentional decisions to perpetrate or orchestrate the infliction of severe harm. Such an assumption is implicit in the Nuremberg model of identifying human rights violations, which, as Mutua notes, is the model paradigmatic in international human rights law. The prosecution focused on a handful of perpetrators responsible for instigating a momentous policy decision to target and destroy the Jews, along with certain other groups of people.

Lives blighted or destroyed through structural violations are not intentionally targeted or officially relegated to an inferior social status. Nevertheless, an evolutionary explanation of the norms that underpins them does reveal an internal logic, which involves the pursuit of profit maximization regardless of the devastating impact on others’ lives. Those lives effectively do not count; as I have argued, they are discarded. However, they are discarded not through being intentionally targeted and officially relegated to an inferior social status, but through being so marginalised and invisible that that there is no recognition, either in official law or in prevalent moral norms, that they have been wronged by the grievous harms that have been unjustifiably inflicted on them. A principal role of acknowledging a category of structural violation is to bring moral and juridical scrutiny to bear on the combined effects of structures.

iv) the nature of the shared duty to end the infliction of structural harms

By the term “shared” I mean that the duty is held by individual agents – there is no presumption of collective agency and responsibility – but each agent has only partial responsibility for tis fulfillment. Paradigm violations involve a one to one link between a specific victim and a specific perpetrator, in virtue of which that perpetrator can be singled out as individually responsible for the harm inflicted on the victim. That link standardly requires a clear causal link in conjunction with mens rea: the intention to perpetrate or orchestrate the direct infliction of severe harm on particular victims. The relevant notion of liablity is that of culpability and guilt for a violation that has occurred.

By contrast, the notion of responsibility of principal relevance to structural violations is both shared and forward-looking: a vast number of agents share responsibility for the predictable devastating combined effect of their ongoing patterns of behavior, and for agitating for and implementing the structural reforms needed to avoid that harm. Individual agents have to take some degree of personal responsibility for the combined effect, even though they cannot be singled out as individually responsible for the severe harms inflicted on particular victims. This reinforces Mutua’s claims that an adequate account of human rights needs to acknowledge the responsibility of individual citizens for avoiding extreme inequalities and economic powerlessness. (My focus is principally on the responsibility of citizens of affluent countries.) The agents are together liable for the cost of the structural reforms; thus, the relevant notion of liability is shared liability to the cost of avoiding a violation.

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There are indefinitely many institutionalized schemas of regulations compliance with which would avoid the harm, but they each constitute a different way of realizing the same overarching shared duty, to avoid the harm.

I have so far been focusing on structures that result in the infliction of severe harm. However, in certain circumstances, to which I now turn, the allowing of severe harm should also be classified as a human rights violation.

v) The allowing of severe harms as a human rights violation

There is in fact a widely held intuition that there are certain circumstances in which the duty of aid can constitute a general duty of justice, non-fulfillment of which constitutes a human rights violation. There is, for example, widespread recognition of a general positive duty of justice to administer emergency medical care to illegal immigrants; while such immigrants are denied many welfare rights, the right to emergency health care is held to be a general human right, rather than a special right grounded in reciprocal relationships with fellow citizens. 2

The underlying rationale for this duty, I suggest, is that in circumstances in which an agent could at small personal cost prevent a drastic and irrevocable threat to a person’s basic interests, liable to blight or altogether destroy his life, then the failure to do so would be incompatible with minimally adequate recognition of the moral value of that person’s life. As Griffin argues, the notion of the discarding of persons’ lives can also be applied to omissions of this kind. The example he gives is that of failing to toss out a life preserver to stop someone drowning. This would, he argues, constitute the “discarding” of that person’s life; it would amount to allowing the person’s life to be thrown away.

The duty of easy rescue is geared to small-scale social contexts, in which one agent directly encounters another person in dire straits. Once more, though, it is important to avoid arbitrarily limiting our conception of duties of justice so that they are not applicable to contemporary large-scale social contexts.

I suggest that the underlying rationale for taking agents to be under general duties of justice to perform easy rescues also constitutes a rationale for a shared general duty of justice to reform social structures that allow cheaply preventable ruinous harm; in both cases, the duty is underpinned by the abstract general duty of justice not to discard persons’ lives by allowing them to be thrown away. In the case of random, small-scale and episodic emergencies, this duty of justice not to discard persons’ lives underpins a duty of easy rescue. In the case of ongoing social structures that allow ruinous harms that could be prevented at moderate cost under feasible and feasibly achievable alternative structures, the duty of justice not to discard persons’ lives imposes on the participants of such structures a shared duty of justice to implement structural reforms that would avoid the harms.

2 James Griffin discusses the example of the statutes regarding the welfare rights of illegal immigrants in the State of California (Griffin 2008, p.182).

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3) Severe poverty as a structural human rights violation

A: the infliction of severe poverty

It is widely agreed that much severe poverty does result from persons’ coming to be actively deprived of the means of subsistence. This is a straightforward violation of the negative duty correlative to the human right to subsistence. The infliction of severe poverty is liable to result in physical deterioration or death, just as surely as the most vicious physical assault. It thereby constitutes structural violence, in the literal sense.

The salient difference between physical assaults and structural violence is the scale and complexity of the causal chains involved. Whereas an act of assault involves a particular agent(s) directly inflicting severe harm on a particular victim, structural violence is the combined effect of the ongoing patterns of behavior of a vast number of agents.

Given this complexity, an empirical analysis of the causes of the infliction of severe poverty are inevitably contentious. However, it cannot be credibly denied that an adequate analysis has to have historical depth and geographical width.

i) The historical underpinnings of current social, political and economic strucutres.

First, those born into affluent countries are the beneficiaries of enduring economic structures that can in part be traced back to historical processes that enriched the North through the legal theft of natural and social resources from countries in the South (including through slavery, and through a colonial system under which imperial powers were held legally entitled to own the resources of the colonies). The North was also enriched by a process of industrialisation that involved using up far more than an equitable share of fossil fuels (still the cheapest form of energy) and of the absorptive capacity of the Earth. Since both these resources are finite, the North has thereby deprived countries that have not yet fully industrialised of their share

An analysis of nature of ongoing impact of this theft on the socio-economic structure of the countries involved has to invoke an account of the relation between resources, institutional development and prosperity. Given the complexity of socio-economic structures and ongoing disgagreement among economists about how to analyse them, there is a danger here of intellectual paralysis in the face of ongoing empirical disagreement. In order to try to avoid such paralysis, let us consider three empricially modest claims about the relation between social institutions and resources.

First, against a social background in which people are strong enough to hold their rulers to account, the build of up capital can consolidate sound and legitimate social institutions. This plausible hypothesis is borne out by the historical record, which indicates that it is the more affluent societies that have tended to establish well-ordered regimes (Wenar 2016).

Second, conversely, severe scarcity of resources can undermine the development of sound social institutions, and foster civil conflict.

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Third, against the background of social structures in which a monopoly of force is in the hands of non-accountable strongmen, giving those strongmen a ready supply of resources this is likely to be detrimental to the development of sound and legitimate institutions liable to foster general prosperity.

Let us now turn to the implications of these three assumptions for analyzing the historical underpinnings of severe poverty. First, the theft of natural and social resources under colonialsm enriched the economies of the countries that had colonies, and fostered their institutional development. Insofar as affluent countries and their citizens were enriched through theft, the resources rightfully belong to those other countries. This follows from the simple and straightforward liberal principle that one cannot rightfully inherit economic entitlements without also inheriting the liabilities that the process of their acquisition incurred. Thus, failure to the compensation that is owed constitutes (currently legal) theft. Given that many of those countries lack the resources to secure the means of subsistence for all their citizens, this theft contributes to deprivations of the means of subsistence, and therefore has devastating consequences The second implication is that the plunder of resources from colonized countries greatly hampered the development of sound institutions. This was further undermined by certain colonial policies, such as divide and rule, as Mutua et al have shown.

Third, turning to the present policies of Western powers, as Leif Wenar has arguedthe principle that “might makes right”, that underpinned slavery and colonialism, continues to govern international law regarding the sale of natural resources such as oil (Wenar, ibid.). The International Resource Privilege legally entitles whoever has effective control over a country to sell off the country’s resources, however brutal and repressive they are and even if they cannot on any plausible measure be judged to be accountable to the citizens. The resources of a country morally belong to its citizens, and legally belong to them in official international law. However, because such leaders are not accountable to the people, the Resource Privilege does in fact legally entitle those leaders to steal the resources from the people, and it entitles us to purchase stolen goods.

Such leaders have little or no incentive to enable poor citizens to have access to even enough share of the value of the resources to meet their basic needs, precisely because they are not accountable to them. By contrast, they have a strong incentive to spend the money stolen from those citizens on weapons and on buying off the militia, in order to consolidate their oppressive rule. Thus, an entirely predictable result of the Resource Privilege is that the poor in these countries are deprived of the resources that rightfully belong to them even to the point of being deprived of the means of subsistence. Furthermore, another entirely predictable feature is that the poor are actually severely harmed by the resources that have been stolen from them, since the money is used on arms for internal oppression or for brutal conflicts over the resources. At the same time, it guarantees affluent countries a cheap supply of oil.

Other features of the operation of global social institutions and transnational corporations that make a significant contribution to the infliction of severe poverty include the resistance from the agricultural lobby to removing protectionist trade policies, and by certain business organizations to reform of tax laws that divert revenues from poor countries.

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Turning to the prevalent mores in affluent countries, these include the failure to scrutinize complacent assumptions about the root causes of severe poverty, and to agitate for reform of practices that are severely harmful to the global poor.

B) The allowing of severe poverty as a structural human rights violation

Given the overall level of global economic and social resources, on modest empirical assumptions there is a plurality of feasible and feasibly achievable schemas of duties that secure persons’ access to the means of subsistence, at moderate cost to every agent. Under such circumstances, the persistence of life-threatening severe poverty constitutes the discarding of persons’ lives. As Mutua argues, the extremity of the inequality of current distributions of wealth and power in itself constitutes an indignity.

C) Why an adequate account of human rights has to acknowledge this violation.

Failure to do so is incompatible with the two main accounts of the role of human rights.

i: It is a standard threat to basic interests

Let us consider, first, the widely accepted account of the role of fundamental human rights, as protecting persons’ basic interests against standard threats. On Shue’s classic formulation of this account, standard threats are threats that are fairly common as opposed to remote, and that are feasibly eradicable at reasonable social cost.

Structural violations pose an actual and ongoing threat to persons’ most basic interests. The threat posed by sever poverty, far from being random and remote, is an actual and ongoing threat to the basic interests of a vast number, who belong to a particular socio-economic group, and who are in many cases precluded from the outset from any realistic chance of a minimally decent life. Moreover this threat could feasibly be prevented at moderate economic cost.

Clearly, an account of human rights that adequately fulfills this role ought to protect a vast number from being, from the outset, precluded from any reasonable chance as a result of actual and ongoing threats to their basic interest that could be cheaply prevented.

ii: it constitutes an indignity

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Let us now turn to the expressive role of human rights as affirmations of persons’ universal moral status. My analysis of structural violations appeals to the notion of discarding persons’ lives. Although they are not officially relegated to an inferior social status, a set of structures that fails to recognize that the harm inflicted on them constitutes a structural violation is, I have argued, incompatible with minimally adequate recognition of the moral value of their lives.

4) The state-based model as the perfect moral loophole

International human rights law takes human rights to be principally claims against right-holders’ own governments. While some human rights are erga omnes, for most human rights, including the human right to subsistence, the addressee of the right, with sole responsibility for respecting the right and sole accountability for actual violations of it, is taken to be the right-holders’ own government. Thus, responsibility for human rights violations is held to lie with right-holders’ own governments, and the responsibility of the international community is taken to be that of protecting people against such violations.

Paradigmatic human rights violations are state crimes - acts of mass atrocity perpetrated by agents of the state - and paradigmatic international human rights tribunals are the Nuremberg trials of Nazi war criminals. The principal role of human rights, on this model, is to protect people against atrocities perpetrated by their own governments. The responsibility of the international community is conceived as a back-up responsibility, to enforce or facilitate fulfilment of the government’s duty to respect the right.

Accordingly, in the case of the human right to subsistence, the addressee of the right, with sole responsibility for fulfilling the primary duties to respect it, is held to be right-holders’ own governments. The right is not taken to impose on the international community any legally binding duties, let alone a primary duty non-fulfilment of which constitutes a violation.

This has several implications, which function as a loophole by which the international community can avoid acknowledging its role in a massive ongoing structural human rights violation.

i) This model does not challenge existing structures of power

The primary duties imposed by human rights are duties to respect the right. Otherwise put, they are duties not to violate the right. The agent who fails to fulfil these primary duties incurs the label “human rights violator”. Secondary duties, by contrast, are back-up duties to facilitate or enforce the primary duties.

Primary duties not to violate human rights have a special moral stringency. Indeed, David Miller argues that the secondary duty to secure the right to subsistence when the agents

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assigned responsibility for fulfilling the primary duties have defaulted on those duties should be seen as a humanitarian duty, rather than a duty of justice. He argues that an additional duty of justice cannot be imposed on an agent merely because other agents fail to discharge their duties of justice (Miller 2005, p. 76). Certainly, primary duties are held to have a more stringent force than secondary duties, and to be rightfully enforced. Miller seems to be appealing to the intuition here that it is implausible to take agents to be under demanding and enforceable duties of justice as a result of the wrongful behavior of others.

With respect to the right to subsistence, it makes a significant difference whether the duties it imposes on affluent countries are taken to be, or whether affluent nations and citizens are held to share responsibility for fulfilling the primary duties themselves. If citizens in affluent countries are held to share responsibility for non-fulfillment of the primary duties not to violate the right to subsistence then, in Pogge’s words, “the buck stops with us”. Recognition of this would clearly be inconsistent with failure to acknowledge legally binding duties.

The implicit assumption that underlies taking the international community to be under only secondary duties and responsibilities with regard to the right to subsistence has to be that the primary responsibility for their plight lies with their own government. This assumption, however, as we have seen, is not credible. First, it lacks historical depth.

ii) It lacks historical depth

Given that socio-economic structures endure, an adequate account of the structural underpinnings of severe poverty has to have historical depth, and include analysis of the way in which colonialism undermined the conditions for the development of sound institutions and for economic development. However, the state-based model takes responsibility for the under-fulfilment of socio-economic rights to lie solely with the policies of right-holders’ current governments. This serves, in effect, to wipe the moral slate clean for affluent countries that were enriched in part through theft of the natural and social resources under colonialism. At the same time, as Mutua notes, the African postcolonial state was handed a “virtually impossible task”

In fact, arguably one of the motivations behind decolonisation was to put an end to the rising tide of claims from third world countries to a share of the riches of empire and for recognition that socio-economic rights imposed legally binding duties on affluent countries.With decolonisation, that battle was lost altogether, and sole responsibility for respecting such rights was handed to the post-colonial governments.

iii) It builds in a hypocritical application of the savage / victim / saviour trope.

If the responsibility of the international community, with regard to the human right to subsistence, is thought to be limited to that of fulfilling secondary back-up duties to facilitate

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and enforce fulfilment of the primary duties, then this builds in from the outset a casting of its role as human rights heroes, protecting victims abroad against violations perpetrated by their governments.

By contrast, violations of the primary duties carry a special moral opprobrium. The label “human rights violator” signifies treatment of others that has transgressed the threshold that separates minimally decent treatment from treatment that is morally intolerable. The framing of the right to subsistence in international law excludes ex ante the very possibility that, with regard to socio-economic human rights, affluent nations’ treatment of others is morally intolerable and beyond the pale.

5) Returning to Mutua’s Challenge

I hope to have reinforced Mutua’s call to subject the current human rights corpus to a deep critique, and shift the moral spotlight to moral spotlight to social and economic rights,and “confront structurally and in a meaningful way the deep-seated imbalances of power and privilege which bedevil our world” and “the ravages of globalization” and the enduring structural effects of colonialism.

I have argued that a normatively adequate conception of human rights should take the the persistence of life-threatening severe poverty to constitute a structural human rights violation that demands abolition. Implementing structural reforms that would end such poverty is an urgent demand of basic justice, and a condition on the moral legitimacy of existing global as well as domestic social political and economic structures.

Mutua points out, to recall, argues that terms such as “colonialism” and “imperialism” are strikingly absent from human rights discourse. As I have argued, they have to be at the forefront of analysis of the structural underpinnings of severe poverty. Since structures endure, an adequate analysis of them has to have historical depth.

This analysis also has to have geographical width. As I have argued, affluent countries and citizens share responsibility for violating fundamental socio-ecoomic human rights including the right to subsistence. This reverses the standard complacent application of the savage / victim / saviour metaphor. While we should, as Mutua notes, condemn acts of savagery by “Third World despots”, we should also acknowledge a deeper underlying structural violation that both fosters conflict and despotism and, in itself, blights or altogether destroys millions of lives each year, responsibility for which lies in large part with agents of affluent countries.

Works Cited:

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James Griffin, On Human Rights (Oxford: Oxford University Press 2008).Makau Mutua, “Human Rights and Powerlessness: Pathologies of Choice and Substance,” Buffalo Law Review 56 (2008), 1027-1034.,Makau Mutua, Human Rights: A Political & Cultural Critique (Philadelphia: University of Pennsylvania Press, 2002).Makau Mutua, “Putting Humpty Dumpty Back Together Again: The Dilemmas of the Post-Colonial African State,” Brooklyn Journal of International Law 505 (1995-1996), 504-536.Shue, Henry Shue, Basic Rights, 2nd edn (Princeton: Princeton University Press 1996)

Shue, Henry, Climate Justice: Vulnerability and Protection (Oxford: Oxford University Press, 2014). Wenar, Blood Oil: Tyrants, Violence, and the Rules That Run the World (Oxford: Oxford University Press 2016).

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