Three Kinds of Duties Nowadays, the strict division between liberty or negative
rights and welfare or positive rights has lost ground. It is increasingly recognized
that a single human right may give rise to many duties; some of these duties may be
negative and others positive.
In this respect, human rights are now seen to be a lot like the right of ownership explained in
Chap. 5. The right of ownership could be broken down in analysis and in practice into
various smaller components; likewise, human rights can be broken down into specific
duties of different sorts.
To state this in modern terminology: any right may give rise to duties (1) to
respect, (2) to protect, and (3) to fulfill.
Duties torespectare negative and are complied with by the state by refraining
from doing something: from impairing the enjoyment of a right.
Duties toprotectrequire the state to take action to prevent third parties from
impairing the enjoyment of a right of another individual.
Duties tofulfillare positive and require the state to take action (such as aiding,
providing, or informing) in order to ensure that somebody enjoys a right that he is
presently not enjoying.
So, for example, the traditional “negative” or “liberty right” freedom of speech gives rise to:
- a duty to respect in the sense that the state should not censor speech that criticizes the
government, - a duty to protect, in the sense that the state must protect protesters from harassment and
intimidation that could discourage speech, and (maybe) - a duty to fulfil, that the state must take steps to encourage pluralism in media.
Likewise, the traditionally “positive” or “welfare right” to education gives rise to:- a duty to respect, that the state should not ban certain children from receiving an
education, - a duty to protect, that it should ensure that family stereotypes do not impede girls from
getting an education, and - a duty to fulfil, to make public education available for everyone.
Different Degrees of ResponsibilityCompliance with these different duties can-
not be required in the same fashion. While it may make sense to make the state
immediately liable if it fails to respect a human right, as occurs in cases of
intentional killing or torture, the same thing cannot be said for the other two
types of duties. The state can never guarantee that persons are absolutely protected
from malevolent third parties. Failure to protect should only arise when a state does
not exercise due diligence in carrying out this role.
Finally, the obligation to fulfill can only be understood as being conditioned on
the material resources that the state has to carry out its role as a provider. A breach
of an obligation to fulfill implies a capacity to carry out the required expenditures or
a culpable failure to increase such capacity over time.
The South African Constitution (1996) contains many prominent welfare rights. In the case
Grootboom and Others v Government of the Republic of South Africa and Others (2000),
the South African Constitutional Court devised an influential test to see whether the272 G. Arosemena