HUMAN RIGHTS

International Human Rights Law

Question 01

The responsibility of a State for human rights violations occurring outside of its territory

Human rights law typically identifies rights separately from prescribing what states must do to help realize rights. The foundational instrument of the modern regime - the Universal Declaration of Human Rights - recognizes that 'everyone has the right[s] to life, liberty and security of person', and to adequate 'food, clothing, housing and medical care'. The Declaration was not intended to bind states so did not prescribe state obligations. Yet it did shape expectations on the content of universal rights. The rights as formulated in the Declaration now appear in the two principal human rights treaties: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The ICCPR and ICESCR are intended to bind states and do prescribe state obligations. But they define those obligations separately from the recognized rights and with language that is, for one reason or another, ambiguous.

Henry Shue argued that the same ICCPR or ICESCR right might ground multiple obligations. And he identified three: obligations to respect, protect, and fulfill. Obligations to respect are paradigmatic obligations not to violate rights. Obligations to protect require states to restrain third parties from violating rights. Both of those obligations preserve negative freedoms - freedoms from abuse. They differ, however, in that obligations to protect are assigned to actors that do not necessarily participate in the abuse. Finally, obligations to fulfill require states to foster positive liberties. Unlike obligations to respect and protect, obligations to fulfill assume no particular abuser.

Shue's typology helped inform what states must do under the human rights treaties. Consider, for example, the ICCPR right to life. That right unquestionably grounds an obligation not to kill people arbitrarily (obligation to respect). Shue demonstrated that, based on the same right, states might have to restrain third parties from killing (obligation to protect). They might even have to provide people with access to emergency medical care (obligation to fulfil). Similarly, the ICESCR right to food had been understood to require states to try to make food more widely available (obligation to fulfil). Under Shue's approach, states might have to refrain from forcibly depriving persons of food (obligation to respect), and to prevent third parties from doing the same (obligation to protect). To be sure, these obligations could easily be phrased as new rights: the obligation to respect the right to food might be rephrased as the right not to be forcibly deprived of food by the state. But the right to food had already been conceptualized and codified in more general terms. Shue was influential because he presented a vision for developing human rights law consistently with its own conceptual and textual foundations.

Territorial Subjects

A state should also restrain third parties in its territory that are not delegates. The paradigmatic obligation-to-protect scenario involves private abuses in the state's territory. Long before the development of modern human rights law, a state ...