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what Henry Shue has ter med “basic rights.”88 This focus on life and survival
is able to transcend the prioritizatio n of civil and political rights over
economic and social ri ghts by drawing attention to the moral equivalence of
subsistence rights and security rights because of their mutual relation to
survival. 89 Putting to one side the difficu lties in “equivalence” once the
question of who the relevant duties holders are and what the correlative duties
consist of, 90 the focus on life, survival, and basic needs has the additional
advantage of pointing to the requirements for righ ts protections that are
apparently self-evident, rather than requirin g a more contr oversial
examination of what is needed for the satisfaction of more elaborate aims, and
a “thicker” understand ing of the good life. 91 For proponents of this survivalbased view, the boundari es drawn around the minimum core are neater, and
more cognizable, than those around the more ambitiou s formulations. Thus, a
fixed set of entitlements may emerge, he lped by less open-ended criteria such
as triage or urgency.92
Nonetheless, I ar gue that there are a number of objections to the
economy of ambition behi nd the focus on “basic needs.” Most significant is
the objection that the minimalist fo cus on survival and life misses the
important connections between dignity
and human flour ishing that are
intrinsic to many interpretations of
the right to li fe. These expansive
interpretations, issued by both in ternational human rights tribunals and
national courts, allow t he protection of life to serve as a vehicle for other
norms.93 Advocates of a sur vival-based “basic needs” inquiry dismiss these
more elevated conceptions of life as both too encompassing and too unlimited,
likening them to “a free-f or-all provision, implicated by default in all human
rights abuses that affect a pers on’s ‘dignity’ or ‘life pr ospects.’”94 Yet what
these detractors miss is that the focus on bi ological survival can s et the
interpretations of economic and social rights on the wrong ground. A focus on
needs may disclose little ab out what (or “whose”) ba sic functioning deserves
priority. We need additional principl es over simple survival, for example,
those we would find when we as k whether the minimum core of the right to
88. SHUE, supra note 78, at 19 (“[R]ights are ba sic . . . if enjoyment of them is essential to the
enjoyment of all other rights.”).
89. Id. at 25. (suggesting not only a moral equivalen ce, but perhaps the gr eater moral duty to
prevent deprivations of the material essentials of survival, because of the utter helplessness that the latter
can engender).
90. CECILE FABRE, SOCIAL RIGHTS UNDER THE CONSTITUTION: GOVERNMENT AND THE
DECENT LIFE 53-54 (2000) (suggesting that Shue’s argument sacrifices important features of rights).
91. E.g., BILCHITZ, supra note 9, at 179-80 (favoring a surv ival-based definition to the
minimum core as fitting more adequately with a thin theory of the good applicable to a diverse range of
individuals). For the source of the th in theory of the good, and its restri ction to the bare essentials, see
RAWLS, supra note 74, at 348.
92. BILCHITZ, supra note 9, at 187 (arguing that the interest in survival is the most urgent, due
to its prior importance to other values).
93. Craig Scott, The Interdependence and Permeability of Human Rights No rms: Towards a
Partial Fusion of the International Covenants on Human Rights , 27 O SGOODE HALL L.J. 769, 771
(1989) (articulating this im portant relation as one of “perm eability,” which refers to “the openness of a
treaty dealing with one category of human rights to ha ving its norms used as ve hicles for the d irect or
indirect protection of norms of another treaty dealing with a different category of human rights”).
94. Melish, supra note 14, at 326 (decrying e xpansive formulations of life as representing a
“potentially illimitable scope, capable of subsuming into their protective embrace virtually all nationally
and internationally recognized human rights”).