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Post No.: 0840private


Fluffystealthkitten says:


Many human rights treaties can be invoked by any affected individual who is under the ‘jurisdiction’ or ‘competence’ of any of the member States of those treaties. Jurisdiction in International Human Rights Law (IHRL) is a notion of fact, which refers to whether or not a person/situation is under the ‘effective’ control of a State and thus falls within the scope of a human rights treaty that this State is a party to. It doesn’t matter whether such control is or isn’t consistent with international law (e.g. think of the illegal activities of a secret agent operating outside her/his own State’s territory during peacetime). Therefore a State can be held accountable for any violations that an agent or organ of that State commits even outside of its national territory – a State should not be allowed to do outside of its territory what it is disallowed from doing within its own territory. Which makes sense otherwise it’s an easy loophole. Meow.


Whenever the State, through its agents, exercises control and authority over an individual (e.g. by holding the person in custody), the State is under an obligation to secure the rights and freedoms that are relevant to that individual in that situation. What’s decisive in such cases is the exercise of physical power and control over the person in question. In simple terms, any link to a member State will make that State responsible if any IHRL violations occur.


Unless a particular State is in control of a particular territory though, it’d be difficult to expect it to establish certain social and economic rights like providing schools, hospitals and housing there. ‘Territorial control’ might also be necessary for a State to establish a police force to protect citizens from things like violent crime, and thus protect their right to life. Therefore factors that may limit a State’s scope of obligations are taken into account (e.g. when a guerrilla movement has captured a part of that State’s territory). That said – even without ‘territorial control’ – couldn’t and shouldn’t a State send food and medicines to those territories to help respect the right to health? These kinds of issues are still being contested.


Notwithstanding, it’s increasingly acknowledged that the human rights obligations of a State extend beyond those located on its national territory – to all individuals who are affected by the actions or omissions of that State. States are also repeatedly called to intervene with and regulate the conduct of private actors operating outside of their national territories (e.g. transnational corporations), unless this conflicts with the sovereignty of another State. Provided they exercise effective control over a situation, States are expected to do more than simply abstain from actions that might result in a violation of human rights.


States must in general not remain passive when private individuals or private entities are violating the human rights of other private individuals or private entities. For example, if a child is being molested within her/his family home, the State must intervene to protect that child from inhuman or degrading treatment, or if a private business enterprise pollutes soils or waterways then the State must regulate the conduct of that business to protect the health of the local community.


This means that, even though only States (countries), and sometimes certain international organisations, can sign and ratify international treaties – we all as individual citizens must comply with all relevant human rights provisions within the treaties that our States are a member of, even though we as private/non-state actors didn’t directly agree to them, because the State is essentially obliged to punish us or intervene through national (domestic) laws if we don’t. Well in democracies at least, we vote into power the people who decide whether or not our countries should agree to, or leave, any international covenants, thus we do indirectly decide such laws (or we might have a chance to directly decide if a referendum is offered).


The State’s duty to protect the rights of individuals isn’t absolute, however, because its control over society is never complete (and nor should it be even if it could be) – therefore this duty is an obligation of means rather than result i.e. the State should take any measures it can reasonably be expected to adopt to prevent violations in society from occurring.


When it comes to fulfilling a negative right like not arbitrarily depriving someone of their life though, the duty to respect suggests that even if the State has adopted measures to avoid extra-judicial executions by law enforcement agencies, for instance, it won’t mean the State won’t be held responsible if such a killing still occurs.


The State’s duty to protect individuals who are being threatened by other private/non-state actors, on the other paw, is always an obligation of means – the State must adopt adequate and reasonable measures to protect the threatened individual, and if such measures are indeed adopted then the State will have satisfied its duty, even if this protection ultimately falls short. The State cannot be expected to control the hands of every citizen who holds a kitchen knife, for instance. Even though States should do whatever they reasonably can to prevent rights violations from occurring – no society is risk-free if it is a free society.


Whether a violation can be attributed to the State itself will depend on whether an individual or corporation was acting on behalf of the State or exercising elements of governmental power by delegation.


For the victims, the damage may be the same in different cases yet the legal issues raised can be different. When a police officer violently strikes a person who’s detained in a holding cell then, as an agent of the State, the State will clearly be held responsible. But when a private security agent hired by a municipality violently strikes a person for refusing mandatory security checks at the entrance of a sports stadium – determining whether the agent was acting on behalf of the State or a decentralised component of the State can be complex and sometimes borderline. (In spite of that, this particular scenario isn’t too tricky – the conduct of the private agent will be attributed to the State because she/he was acting on the instructions or under the direction or control of the State, or was empowered by the law of that State to exercise elements of government authority and was acting in that capacity. A State could also specifically accept a conduct in question as its own.)


When a father violently hits his child in the family home – the State has a duty to protect individuals even when it isn’t directly responsible for violations committed by private/non-state actors. So the State has a duty to intervene, to the extent reasonably possible (as an obligation of means), to prevent violations caused by private conduct and to provide remedies to the victims (e.g. investigate cases and prosecute violators as best as they can) where preventative measures fail.


If a person suffering from severe depression commits suicide whilst in State custody, the State will only be held responsible if the individual had requested support but that support was denied. This will be the case even if the potential consequences of not providing her/him help could’ve been inferred, or if forcing help upon her/him wouldn’t have overly burdened the public authorities. The State could also argue that permanently monitoring the inmate via CCTV would’ve disproportionately impinged upon her/his right to have her/his privacy respected. The State should act to protect if it happens to spot evidence that a real and imminent risk of suicide is about to happen, or is obviously in the process of happening, though.


If a person wishes to commit suicide due to an incurable and debilitating or painful disease, and wishes to enlist the help of her/his spouse to do so because she/he cannot do it on her/his own, then this is typically prohibited in order to protect vulnerable persons from the risk of abuse. Inciting or assisting someone’s suicide would typically be regarded as a criminal offence, even if the person requesting to die wished to renounce her/his right to life. But if the suicide were self-administered (as is the case in places where ‘assisted suicide’ is legal) then it’s argued that the State should respect the individual’s freedom to waive her/his own right to life. The State shouldn’t impose on all members of society its own conception of ‘the good life’.


These above scenarios invoked the idea that individuals should be free to make certain choices and even waive certain rights regardless of whether they’re in their best interests or not – but in the State custody case, the State is seeking to justify why it has been protecting so inadequately; whilst in the assisted suicide case, the State is being denounced for wanting to protect too excessively!


The authorities cannot arrest or place every terror suspect under close 24/7 surveillance even if someone claims that they might be dangerous (without any concrete evidence of an actual plot to commit terror), because this would violate the respect for that individual’s private life or liberty – even if, with the benefit of hindsight, one terror suspect maybe per hundred might commit an act of terror. One would’ve had to expect the State to have done more – but would you want to live in a surveillance State in this case? One might believe that those who commit terror are ‘blindingly obvious’ according to their race or religion, but such assumptions are grossly unreliable and thus unlawfully discriminatory. (Post No.: 0829 covered civil and political rights.) Overall, an infringement of a right isn’t in itself sufficient to assign State blame whenever there’s a conflict of rights.


The State has a duty to ensure that transnational corporations that are based in their territories do not violate human rights wherever they operate. States should provide access to justice for foreign victims who have suffered harm from acts or omissions by such corporations. Victims, whistleblowers and human rights defenders who seek to prevent, expose or ensure accountability in cases of corporate abuse should be protected too.


Business enterprises that operate transnationally make up the most rich and some of the most powerful organisations in the world. Some transnational corporations are much more powerful than smaller States in terms of their wealth, population/user base who’ve agreed to their rules/terms and conditions, and international and national political influence. They thus have a huge impact on the rights of humans across the modern world (e.g. when it comes to exploiting mineral resources and cheap labour in ‘developing’ countries). And since they operate at a global scale, they arguably need to be better regulated under a global legal regime when it comes to IHRL. More detailed IHRL provisions are arguably needed since corporations have become more complex over time.


But it’s difficult to get enough States to ratify more detailed, legally-binding international treaties focusing on transnational corporations and other business enterprises because of conflicts of interests. What are the incentives for both corporations and States to ensure human rights in this area when there are other incentives like profit maximisation and brand reputation for the corporations, and ensuring a level playing field in international trade and investment or promoting the economic performance of corporations based in their own territories for the States? Questions regarding such treaties would include extraterritorial jurisdiction, their enforceability, scope and more too. The space around corporate human rights accountability will hopefully continue to develop.


The UN Guiding Principles on Business and Human Rights (UNGPs) has been one development. And a business enterprise cannot be excused for failing to comply with its own duties just because the host State isn’t complying with its duties. The duties of a company exist independently from both the State on which territory it operates and the company’s State of origin. These international duties exist over and above compliance with national laws and regulations protecting human rights too.




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