The Limits of Positive Obligations in Human Rights Law. From protection to coercion
s. 169-188
Doi:
https://doi.org/10.5040/9781509991471.ch-009
Embracing the correlativity thesis – the claim that for every right there must be a companion duty, and vice versa – can strengthen legal doctrinal analysis, help to unmask leaps in reasoning, allow rights and duties to be analysed and discussed interchangeably, facilitate demands of duty fulfilment as a matter of right, and mediate between legal doctrinal scholarship and theorists. This chapter has identi- fied three possible reasons to resist correlativity, none of which is persuasive. First, the apparent indeterminacy of duties in positive rights cases vanishes at the point of litigation and enforcement. Second, the value agnosticism of the correlativity thesis only applies to normative reasoning about rights, and does not preclude the use of correlativity to pick apart the legal outcomes of such normative reasoning. Third, while there is a strong case to be made that human rights must contain a multitude of interdependent duties in order to be real and effective, this start- ing point does not preclude the subsequent disaggregation of such duties, or the coupling of such duties with lesser rights.
