Stimulated by the challenging reactions of four critics, this essay clarifies and elaborates a view I had laid out in an earlier issue of this Journal. (1) I will begin with a brief summary account and defense of my main thesis and will then expand on various aspects of it by engaging my critics one by one.
The topic of my inquiry can be defined through three distinctions. The first distinction concerns the different ways in which individual and collective agents can be related to unfulfilled human rights. Here, first, a human rights deficit may lie beyond an agent's capacities. In such cases, the agent bears no responsibility for the deficit (insofar as it lies in the past) and has no responsibilities in regard to it (insofar as it lies in the future). Second, an agent may have the capacity to diminish a human rights deficit and may then bear some responsibility for it (by virtue of neglecting a positive duty to reduce it) or have a responsibility to alleviate it. Third, an agent may have a role in bringing about a human rights deficit and may then (by virtue of violating a negative duty not to harm) bear some responsibility for it or have a responsibility not to contribute to it in the future. I call all and only such active contributions to the nonfulfillment of human rights, when they are foreseeable and reasonably avoidable by the agent, human rights violations. And I focus on cases of this kind, in part because I share the common view that, holding fixed what is at stake for the agent and for others, negative duties not to violate human rights are more stringent than positive duties to alleviate human rights deficits.
Moving to the second distinction, both kinds of duties have both institutional and interactional applications. The fulfillment of human rights depends on institutional arrangements such as laws, rules, conventions, practices and procedures, and human agents therefore have institutional responsibilities to help ensure institutional arrangements under which human rights are fulfilled insofar as this is reasonably possible. Holding institutional arrangements fixed, the fulfillment of human rights also depends on human conduct; and human agents therefore have additional interactional responsibilities to adjust their conduct so that it helps ensure the fulfillment of human rights. Because the profound importance of institutional responsibilities is still poorly understood, my focus is on them and especially on the negative duty not to contribute to the design or imposition of institutional arrangements under which human rights foreseeably and avoidably remain unfulfilled. Slavery in the United States serves as a relevant example. This slavery was not merely a crime, practiced by slaveholders and slave traders, but also an unjust social institution, which many other citizens also helped to uphold. Unlike their affluent Swedish contemporaries, such U.S. citizens were not merely bystanders, able to relieve some of the brutality inflicted on slaves; they were playing an active role in lending strength and legitimacy to the state that enforced property rights in persons within its territory. Like slaveholders and slave traders, these other citizens were actively violating human rights, albeit institutionally. My work here focuses specifically on such institutional human rights violations.
The third distinction is that between national and supranational institutional arrangements. The last thirty years have seen the rapid emergence of a dense regime of supranational institutional arrangements that--typically negotiated among officials from several countries or emerging through their regular interactions--structure and regulate human interactions within and across their jurisdictions. As exemplified by the rules and procedures of the World Trade Organization, such supranational institutional arrangements have a profound influence on national governance and the distribution of individual life prospects. Insofar as this regime generates a reasonably avoidable excess of unfulfilled human rights, it is arguably unjust, and agents contributing to its imposition are violating human rights insofar as they can and should foresee its adverse human rights impact. Fully specified, my focus is then on human rights violations that agents commit through their joint contributions to upholding unjust supranational institutional arrangements.
The existing international discourse on human rights is focused on the interactional responsibilities of states, with heavy emphasis on their negative duty to respect, and their positive duties to protect and to fulfill, their own citizens' human rights. Some institutional responsibilities have been belatedly recognized in the wake of the United Nation's General Comment on the Right to Adequate Food, (2) which assigns states a positive duty to facilitate human rights fulfillment through appropriate institutional reforms: to "pro-actively engage in activities intended to strengthen people's access" to the objects of their human rights. I extend this thought by emphasizing that states and other human agents also have negative duties not to contribute to the design and imposition of institutional arrangements that foreseeably produce reasonably avoidable human rights deficits. In terms of content, this duty does not add anything to the now-recognized duty to facilitate.
But as a negative duty, it has much greater stringency, which persists undiminished as one moves from friends and neighbors to distant strangers: while positive duties to promote human rights fulfillment may be much stronger to those close to us than to distant foreigners, no similar gradient exists for negative duties not to harm. The recognition of negative duties not to contribute to the design and imposition of supranational institutional arrangements that are not human-rights compliant discloses then the real possibility that we--reasonably well-off citizens of affluent countries--are involved in large-scale institutional violations of the human rights of distant foreigners whose deprivations we are inclined to relegate to the bottom of our moral priority list.
Readily available evidence suggests that basic social and economic human rights remain unfulfilled for roughly half the world's population and that the design of supranational institutional arrangements plays a major role in explaining why the poorest segment of humanity is suffering a rapid decline in its share of global household income. The latest figures from Branko Milanovic, then principal economist in the World Bank's Development Research Group, show that the global household income share of the three poorest deciles of humanity declined from 1.52% in 1988 to 1.25% in 2008. This implies that the 2008 income share of the world's poorest 2 billion people would have been over 21 percent higher, if these three deciles had in the preceding 20 years participated proportionately in global economic growth. There is much celebration of the great efforts the world has supposedly made--in connection with the Millennium Development Goals, for instance--to "lift people out of poverty." But, clearly, the effect of all this heavy lifting was overwhelmed by structural forces working to magnify global inequality. Milanovic's data show that the richest five percent of the world's population increased their share of global household income from 42.87% in 1988 to 45.75% in 2008.* 4 Had this substantial shift of nearly three percent of global household income gone to humanity's poorer half instead, it would have easily sufficed to end severe poverty on this planet.
The judgment that these trends really are substantially driven by the great importance that decisions about the design of supranational institutional arrangements have been acquiring is further supported by data about the richest segment of the U.S. population. This elite group has the best opportunities to shape supranational rules in its favor because the U.S. government is still the dominant force in international negotiations and because U.S. politicians are extraordinarily dependent on private money and therefore especially easy targets for successful lobbying. Looking just at the richest 1/100 percent of the U.S. population, we find that it increased its share of national household income from 0.86 percent in 1978 to 5.47 percent in 2012--gaining 539% over and above the rise in the U.S. average in come. (5) These 31,000 people now have about half as much income as the poorer half (155 million) of Americans and about the same income as the poorest 35% (2.5 billion people) of humankind. (6) The dramatic ascendancy of this group after a steady 50-year decline illustrates the importance of the supranational institutional arrangements that have emerged with such profound influence in the globalization period following the end of the Cold War. These arrangements are, in the first instance, the work of the more powerful states, which dominate the creation and revision of supranational rules and also exert pressure toward accession and compliance. But then the rule-shaping conduct of these states is itself shaped by their most influential constituents, the top executives and shareholders of the larger enterprises. These constituents are not hostile to the world's poor, they merely seek to bend supranational rules in their own favor so as to capture a larger share of global income for their firms and themselves. And they are quite successful at this game. The investment research firm Strategas has been selecting, in each calendar quarter, those ten percent of companies in the S&P 500 index that spend the most on lobbying as a percentage of their assets. The "Strategas Lobbying Index" tracks the investment returns that would be realized by investing and re-investing, each calendar quarter, equal amounts into these fifty biggest spenders on lobbying. This investment strategy would...