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HUMAN RIGHTS QUARTERLY
Vol. 39
difficulty exposed in discussions of obligations that travel beyond the state
border is determining precisely where these obligations begin and end. According to Sigrun Skogly and Mark Gibney, “[i]t would be neither pertinent,
nor practical, to imply that all states are responsible for all human rights
enjoyment everywhere. Rather, there has to be a relatively direct link to
activities of the state across borders.”46 Accordingly, those that dismiss the
very existence of international obligations do so on the basis that it is nigh
impossible to establish causal, moral responsibility between a duty-bearer’s
action or omission in a foreign territory on the one hand and a violation of
an individual’s right living in another territory on the other.47
For illustrative purposes, suppose parties (assumed wealthier) have an
international obligation to provide assistance, to the extent that available
resources allow, for fulfilling social rights for individuals of other (assumed
poorer) parties. Even under the unrealistic simplification that there are only
two types of parties: one group (group wealthy) that has the resources available to provide assistance, and another group (group poor) that requires
that assistance if it is to provide the welfare basket for its community, still,
a “direct link” cannot be attributed. The obligation does not reveal precisely
what group wealthy ought to do in order to be compliant. Neither does it
reveal if all members of group wealthy are under an obligation to assist
group poor. Likewise, it does not reveal whether group wealthy ought to assist every member of group poor or only a selection, and if only a selection,
on what basis the selection be made. This, as Tobin notes in his monograph
on the right to health, “is a perfect example of an ‘imperfect obligation.’”48
Though imperfectness does not wipe international obligations clean of
any moral significance, what it does generate is an obligation with limited
strength. An international obligation to provide (financial) assistance for the
fulfillment of social rights requires only that a duty-bearer “give genuine
46. Sigrun I. Skogly & Mark Gibney, Transnational Human Rights Obligations, 24 Hum. Rts.
Q. 781, 795 (2002).
47. The literature analyzing the causal role of many explanatory factors (including international institutions, domestic institutions, history, culture, disease, factor endowments,
and much else) is vast. Yet, an established causal link between action or omission and
deprivation across borders remains to be seen. See, e.g., Polly Vizard, Pogge -vs- Sen on
Global Poverty and Human Rights, 3 Éthique et Économique 1 (2006); Thomas Pogge, World
Poverty and Human Rights (2002); Thomas W. Pogge, Human Rights and Global Health:
A Research Program, in Global Institutions and Responsibilities: Achieving Global Justice 190
(Christian Barry & Thomas W. Pogge eds., 2005); Thomas Pogge, “Assisting” the Global
Poor, in Ethics of Assistance: Morality and the Distant Needy 260 (Deen K. Chatterjee ed.,
2004).
48. Tobin, supra note 7, at 341 (using the notion of imperfect obligations in the Kantian
sense that imperfect obligations are grounded by the notion that everyone has a duty
to be beneficent; leaving discretion as to what, to whom, and how often assistance be
provided).