By Partha Dasgupta
The Convention on the Rights of the Child is unusual among human rights conventions in that it seeks to promote positive as well as negative rights. Negative rights, enjoying a longer tradition, stipulate that something not be done; they are rights not to be wronged in some specified way - by imprisonment without trial, for example, or by persecution for one's race, sex, or religious belief. Positive rights, by contrast, are rights to goods and benefits that are produced. In the case of the Convention on the Rights of the Child, positive rights include the right to adequate nutrition, primary health care, and a basic education.
This distinction raises interesting questions. Positive rights are produced goods and services; they are therefore dependent on resources, the allocation of which may be affected by scarcity and competition. Negative rights, on the other hand, know no such limitations; they do not have to be created, only protected, and it is therefore feasible to honour them whether a country is rich or poor (although it is worth remembering that some negative rights such as the freedom from unauthorized violence may well depend for their implementation on their being converted into positive rights - for example, the right to protection by a government agency).
The fact that negative rights do not involve direct resource costs makes it easier to argue the case for their universality and inviolability. The argument for resource-dependent positive rights, on the other hand, cannot avoid such issues as the differences in individual efforts and talents, or escape involvement in difficult issues of rewards and incentives. In some cases, it may be that an economy may simply not have sufficient resources to enable all to enjoy the right to adequate nutrition or health care. This raises the disturbing possibility that negative rights are inviolable in a way that positive rights are not (for how can a right be considered inviolable if it is not always possible to protect it?)
The Convention on the Rights of the Child implicitly recognizes this distinction between negative and positive rights. While article 24 obliges the governments of all ratifying countries to "diminish infant and child mortality" and to "combat disease and malnutrition", article 4 of the Convention makes the concession that countries "shall undertake such measures to the maximum extent of their available resources."
This is an important step in the history of human rights conventions; for it gives a practicable meaning to positive rights, and it legitimizes the holding of governments to account for progress towards their fulfilment.
Photo: The Convention on the Rights of the Child cannot be effective without ways of assessing the performance of nations in fulfilling its provisions. ©
But it also raises difficulties. For such a proviso cannot be effective unless it is possible for politicians, press, and public to assess whether a government is guaranteeing positive rights "to the maximum extent of available resources." In combination with democratic institutions and press freedoms, accepted means of monitoring progress or regression are essential; they are the basis of the public accountability by which human rights conventions gain traction in the real world.
The Progress of Nations 1993 introduced the concept of the National Performance Gap (NPG) as one measure of the extent to which positive child rights are being honoured in relation to available resources. Using three of the key indicators of positive rights fulfilment - the percentage of children adequately nourished, the percentage being educated to at least grade 5, and the percentage surviving to age five - the NPG compares each country's performance with its available resources, as measured by GNP per capita. By fitting a curve to such data from a large number of countries, it is possible to establish what level of positive rights fulfilment can be expected at any given level of income per head. The difference between the expected level and the actual level is the country's National Performance Gap (and can of course be either positive or negative).
It should be stressed that the National Performance Gap roughly records how well a country is doing in relation to the average country with the same level of economic resources. This is not quite the same as fulfilling positive rights "to the maximum extent of available resources." To evaluate this, it would be better to measure performance not against the average but against the best that has been achieved at each economic level (though even this may not represent the best that is achievable). This stricter criterion has some attraction, but it has the disadvantage of assessing countries against a standard that may reflect exceptional conditions or very different geographical and historical circumstances and may therefore not be widely accepted.
The more essential point is that National Performance Gaps, and other more absolute measures of positive rights published every year in The Progress of Nations, should become part of the regular stock-in-trade of political and public debate in the same way that economic statistics are today a part of normal political life in the world's growing number of democracies. Indeed, this is one of the points at which the synergism between negative and positive rights may be glimpsed at work.
There are those who will have parted company with this argument at an earlier stage on the grounds that governments should in the main concern themselves with protecting negative rights, and that the commodities and services necessary for adequate nutrition and better health are not rights but simply needs - and as such are best left to individual efforts and market forces. But this will not do.
A need becomes a right when a society becomes capable of meeting that need and when fulfilment of the need becomes essential to human flourishing or well-being (or when its lack leads to ill-being or destitution). And at the present time, only the State can guarantee such rights.
The extent to which basic positive rights are met and destitution is avoided is a reflection of the workings of resource allocation mechanisms within a society. The State is of course only one such agency. But in all countries at the present time, it happens to be a particularly important one. Market forces, on which more and more people in the world are becoming more and more dependent, have a demonstrated capacity to create wealth; but because they allocate resources according to purchasing power rather than need, they also have a capacity to create relative and absolute poverty (destitution). At the same time, the processes of modernization, and particularly urbanization, have been breaking down traditional mechanisms for resource control and allocation which, although not necessarily promoting equity, have often played a part in preventing destitution. To these forces must now be added the relatively new and potentially disastrous synergism by which poverty, rapid population growth, and the deterioration of the local environment are pushing large numbers of people towards a downward spiral of destitution even as the better-off move towards a corresponding upward spiral of greater investment in fewer children and generally improving incomes and local environments.*
In this context, a major role must be taken by the State if worsening inequality and growing destitution are to be avoided; there is simply no other agency at the present time that has the potential outreach and command over resources to begin to bring this about. The broad role of the State must therefore be to provide guarantees of a basic minimum living standard in order to prevent destitution or, if this proves to be not feasible in the immediate future, to pursue policies that will make it feasible in a reasonably short time.
Useful as it is to monitor each country's progress in fulfilling positive rights "to the maximum extent of available resources", the longer-term aim must therefore be to move towards a time when positive rights, like negative rights, can also be regarded as absolute and inviolable. It is therefore necessary to turn to the question of whether such positive rights as those set out in the Convention on the Rights of the Child - including the right to adequate nutrition, primary health care, and a basic education - can be afforded in an absolute rather than a relative sense. If they cannot, then, at best, they constitute a separate category of rights because they cannot be considered inviolable and it is not feasible to ask the State or any other agency to guarantee them.
There are a number of ways of approaching the question of affordability. Taking sub-Saharan Africa as an example, and taking government expenditure on basic needs as a measure of the effort towards positive rights fulfilment, we find that such expenditures amounted to less than 3% of GNP (1985 figure). According to World Bank estimates, the financial requirement for a broadly based human resource development strategy designed to meet basic needs would total approximately 5.5% of GNP. The necessary increase is therefore very small, and looks particularly affordable when we bear in mind that military expenditure at that time was running at approximately 4.2% of GNP. For the year 2000, World Bank estimates of the financial requirement for meeting basic needs in sub-Saharan Africa amount to just under 7% of GNP. This conclusion is in line with the argument advanced by UNICEF to the effect that today's knowledge and technology make it possible to provide basic protection for the normal physical and mental development of all children at a cost that all nations can afford.
There is no reason to think, therefore, that the poorest of poor countries cannot afford to meet positive rights as well as negative ones. And if the countries of sub-Saharan Africa can afford it, then so can the countries in the Indian subcontinent. In poor countries as a whole, expenditure on health and on education in the mid-1980s amounted to 1.6% and 3.8% of GNP respectively, while expenditure on the military was 4.3%.
To take another approach, the lack of positive rights such as basic nutrition and health care is closely correlated with extreme poverty and hence can be measured by the poverty gap - the minimum amount of additional income, expressed as a percentage of a society's aggregate income, which, if it is obtained by the poor, can eliminate extreme poverty. In sub-Saharan Africa and the Indian subcontinent, the resources required for closing the poverty gap and eliminating extreme poverty amount to approximately 4% of national income. In short, it is largely a myth that the governments of developing countries cannot afford to guarantee basic positive rights - and especially adequate nutrition, primary health care, and basic education - to all of their children.
So far, the case for guaranteeing positive rights, and for the State's taking a leading role in this endeavour, has been argued from the point of view that the State is the only resource allocation agency, at the present time, that can command the necessary means of preventing widespread human destitution or ill-being. But it is interesting to reflect that the kind of action required by the State, if it is to fulfil this responsibility, follows closely the kind of action that is required, in the light of recent experience, if some of the most basic elements of a successful development policy are to be put into place. Adequate nutrition, primary health care, and basic education are not only positive rights but also the most basic of investments in economic growth and in the development of stable and flourishing societies.
Much detailed evidence has been amassed in recent years to the effect that increases in nutrition and health status are associated with increases in productivity. Similarly, primary education has repeatedly been shown to be one of the most productive investments that a poor nation can make. Even more particularly, research over the last decade has shown that the guaranteeing of positive rights for girls and women is one of the most powerful of all mechanisms for promoting social and economic development. Improvements in female education, for example, have been shown to correlate closely not only with wider opportunities for women themselves but also with lower infant and child mortality rates, improvements in child growth and nutritional health, higher health facility usage rates, higher rates of contraceptive use, later age at marriage, falling fertility, and lower rates of maternal mortality and morbidity.
It will be obvious from this catalogue of potential benefits that the meeting of positive rights such as those enshrined in the Convention on the Rights of the Child would also be a major contribution to many of the fundamental goals of a long-term development policy and to the urgent task of reversing the downward spiral of extreme poverty, rapid population growth, and environmental deterioration that now represents a threat to both past achievements and future hopes in so many developing nations.
Finally, the prevention of destitution may be a positive rights issue in the sense that destitution sits uncomfortably with almost any notion of what constitutes a civilized and humane society, but it is also central to a government's responsibility for maintaining social and political order; already destitution and worsening inequality pose major threats to social cohesion in many nations.
Honouring positive rights is therefore not a side-issue for governments, a luxury which must wait until it can be afforded, but a challenge which is also fundamental to economic progress, social cohesion, and political stability.
Partha Dasgupta is Frank Ramsey Professor of Economics at the University of Cambridge. A Fellow of St. John's College, Cambridge, he has also held professorships in economics and philosophy at Stanford University. He is a Fellow of the British Academy, and a Foreign Member of both the American Academy of Arts and Sciences and the Royal Swedish Academy of Sciences.