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Horizontal Human Rights Law

Published online by Cambridge University Press:  27 February 2017

John H. Knox
John H. Knox*
Affiliation:
Wake Forest University School of Law
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What duties, if any, does international human rights law establish for individuals, corporations, and other private actors? For many years, the conventional answer has been that it places duties on states to respect the rights of individuals and creates few or no private duties. In other words, human rights law is aligned vertically, not horizontally. But that view has regularly been challenged. Most recently, in 2003, the United Nations Commission on Human Rights (Commission), historically the most important incubator of human rights agreements, received two proposed instruments that might appear to realign human rights law horizontally: private actors would have duties as well as rights, and they would owe those duties to society as a whole or to individuals within it. The draft Declaration on Human Social Responsibilities (Declaration) would identify duties that all individuals owe to their societies; and the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (draft Norms) would set out duties of businesses under human rights law. The Human Rights Commission did not embrace the proposals before its replacement by the Human Rights Council in 2006, and the Council has not considered them. Both received some support, however, and it seems likely that their proponents will continue to pursue adoption of their principles in one form or another. This article argues that if adopted, those principles would cause serious damage to human rights law.

Type
Research Article
Information
American Journal of International Law , Volume 102 , Issue 1 , January 2008 , pp. 1 - 47
Copyright
Copyright © American Society of International Law 2008

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References

1 See, e.g., Thomas Buergenthal, International Human Rights in a Nutshell 1 (1988) (“As used in this book, the international law of human rights is defined as the law which deals with the protection of individuals and groups against violations by governments of their internationally guaranteed rights, and with die promotion of these rights.”); Christian Tomuschat, Human Rights: Between Idealism and Realism 309 (2003) (“human rights violations can, in principle, be committed only by states and/or the persons acting on behalf of the state”).

2 The draft declaration was prepared by a special rapporteur to the Commission, Miguel Alfonso Martinez of Cuba, and is appended as Annex I to his report. UN Commission on Human Rights, Promotion and Protection of Human Rights: Human Rights and Human Responsibilities, Annex I, UN Doc. E/CN.4/2003/105 (2003) [hereinafter Martínez Report and Draft Declaration]. The draft Norms were adopted by the UN Sub-Commission on Human Rights, a body of nominally independent experts. Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003) [hereinafter Draft Norms].

3 It has been suggested that only correlative duties that apply directly against private actors (the third and fourth stages in the pyramid) are really horizontal, and that all duties of states, including duties to take actions to protect rights against violation by private actors, are vertical. Craig, Scott, Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms , in Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation 45, 48-49 (Craig, Scott ed., 2001)Google Scholar. But in the parallel discussion of the horizontal and vertical effects of constitutional rights, positive duties of governments to protect constitutional rights are treated as giving those rights horizontal effect, albeit indirectly. Stephen, Gardbaum, The “Horizontal Effect” of Constitutional Rights , 102 Mich. L. Rev. 387, 434-37 (2003)Google Scholar. Similarly, “[t]he absence of direct enforcement for private parties at the international level does not necessarily bar horizontal effect; it merely means that the enforcement of the obligations for non-State entities is indirect, i.e. through the obligations that States have under the provisions concerned.” Nicola Jägers, Corporate Human Rights Obligations: in Search of Accountability 38 (2002).

4 American Declaration of the Rights and Duties of Man, May 2, 1948, Ninth Conference of American States, Acts and Documents 289 (1953)Google Scholar [hereinafter American Declaration].

5 Universal Declaration of Human Rights, GA Res.217A(III), UN Doc. A/810, at71 (1948) [hereinafter Universal Declaration].

6 For example, Article VII provides that “all children have the right to special protection, care and aid”; Article XXX says that each person has the duty “to aid, support, educate and protect his minor children.” American Declaration, supra note 4, Arts. VII, XXX.

7 Id, Arts. XII, XXXI (right and duty to acquire education); Arts. XX, XXXII, XXXIV (right and duty to participate in government); Arts. XIV, XXXVII (right and duty to work). In addition, one duty narrows the scope of a specific right, the right to participate in government: it says that each person has a duty “to refrain from taking part in political activities … reserved exclusively to the citizens of the state in which he is an alien.” Id., Art. XXXVIII.

8 Id., Arts. XXXIII, XXXIV, XXXV, XXXVI.

9 Id, Art. XXVIII.

10 Id, Art. XXXIV.

11 Here and elsewhere in this article, in discussing the link between societal interests, on the one hand, and the duties placed by society on an individual, on the other, I do not mean to suggest that such interests may be brought into oppositioñ to rights only if the interests manifest themselves as duties. A right to social security, say, might conflict with the society's interest in providing for its national defense, if the country has resources that arguably do not enable it to provide both fully, without the expression of that interest in the form of duties of individuals. But many societal interests do limit rights by taking the form of private duties, especially duties to obey laws restricting freedoms of speech, religion, work, movement, assembly, association, political participation, education, and so forth.

12 Johannes, Morsink, The Universal Declaration of Human Rights 239-40, 248 (1999)Google Scholar.

13 The “Humphrey Draft,” reprinted in Mary, Ann Glendon, A World Made New: Eleanor Roosevelt and The Universal Declaration of Human Rights, App. I, at 271 (2001)Google Scholar.

14 Morsink, supra note 12, at 241.

15 Humphrey Draft, Art. 2, in Glendon, supra note 13, at 271.

16 In addition to serving in 1947 on the committee that reviewed the initial drafts of the declaration and as the rapporteur of the Human Rights Commission, in 1948 Malik chaired both the Economic and Social Council and the Third Committee of the General Assembly during their consideration of the declaration. For an engaging description of Malik and his contributions to the negotiation, see Glendon, supra note 13.

17 Morsink, supra note 12, at 243.

18 Id. at 242.

19 See Jeremy, Waldron, Introduction to Theories of Rights 15 (Jeremy, Waldron ed., 1984)Google Scholar (distinguishing “three ways in which the special force of rights may be understood”: (1) a right is a “particularly important interest” that can be outweighed by other interests; (2) a right is to be “protected and promoted to the greatest extent possible before other interests are even taken into consideration,” but may be balanced against other rights; and (3) a right is a “strict constraining requirement[ ] on action”).

20 Of course, finding a balance between conflicting rights might be quite difficult. See Myres, S. McDougal, Harold, D. Lasswell, & Lung-chu, Chen, Human Rights and World Public Order: A Framework for Policy-Oriented Inquiry, 63 AJIL 237, 267 (1969)Google Scholar (“The precise delineation of the rights of any particular individual in any particular context must, however, always require an infinitely delicate reconciliation with the comparable rights of other individuals …”).

21 Morsink, supra note 12, at 243.

22 Id. at 244 (emphasis added). It also reversed the order of the sentences, and changed the (now) second sentence to read: “Man also owes duties to society, through which he is enabled to develop his spirit, mind and body in wider freedom.” Id.

23 The language became, “The individual owes duties to society through which he is enabled to develop his spirit, mind and body in wider freedom.” Id.

24 Id. (emphasis added). The language was Article 2 of the draft approved by the Commission at its December 1947 session. The complete draft, known as the “Geneva Draft,” is in Glendon, supra note 13, at 289.

25 Morsink, supra note 12, at 245.

26 “Ordonneau, the French delegate, explained that [adding ‘la morale' and ‘l' ordre public' to the French version of the language was necessary] ‘so as to cover everything that was contained in the English idea of general welfare' ….” The Egyptian delegate then proposed adding morality and public order to the English text to make them track one another more closely. Id. at 249.

27 Id. The Australian and Lebanese delegates raised similar points. Id. At the same session, the Commission also decided to move the language from Article 2 to the next-to-last article in the declaration, on the motion of the Chinese representative, who argued that an article on limitations on the exercise of rights and freedoms “should not appear … before those rights and freedoms themselves had been set forth.” Id. at 245.

28 Id. at 249 -50. The Soviet delegate may not have helped his cause by emphasizing that “it was the laws of States that fixed the limits for the exercise of human rights and freedoms,” id. at 249, since that was precisely the concern of most members of the Commission.

29 John, P. Humphrey, Human Rights & The United Nations 65 (1984)Google Scholar.

30 Morsink, supra note 12, at 239-40; Erica-Irene, Daes, Study of the Individual's Duties to the Community and the Limitations on Human Rights and Freedoms Under Article 29 of the Universal Declaration of Human Rights, UN Doc. E/CN.4/Sub.2/432/Rev.1, at 42-44 (July 1, 1980)Google Scholar.

31 Universal Declaration, supra note 5, Art. 29(1).

32 Morsink, supra note 12, at 250; see also Daes, supra note 30, Add.l, at 12-13.

33 Morsink, supra note 12, at 22.

34 Id. at 23. Morsink reports that Greece and Lebanon made similar comments. Id.

35 Id. at 250. The Mexican statement was against a proposal by New Zealand that, Mexico argued, would have had the same effect as the Soviet proposal. Id.

36 Id. at 22.

37 Universal Declaration, supra note 5, Art. 29(2). In a third paragraph of Article 29, the Third Committee added one uncontroversial limit on the exercise of rights: “These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.”

38 Of course, most delegates did not believe that the Universal Declaration would be legally binding in any event, although a few “tried to breathe some legal life into the document” by connecting it with the references in the UN Charter to human rights, or by suggesting that its principles might be considered general principles of law within the meaning of the Statute of the International Court of Justice. Humphrey, supra note 29, at 73-74.

39 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 UNTS 277 [hereinafter Genocide Convention].

40 For example, Oscar Arias Sánchez, the president of Costa Rica, has written:

[M]any societies have traditionally conceived of human relations in terms of obligations rather than rights. This is true, in general terms, for instance, for much of Eastern thought. While traditionally in the West the concepts of freedom and individuality have been emphasized, in the East the notions of responsibility and community have prevailed. The fact that a Universal Declaration of Human Rights was drafted instead of a Universal Declaration of Human Duties undoubtedly reflects the philosophical and cultural background of the document's drafters who, as is known, represented the Western powers who emerged victorious from the Second World War.

Oscar, Arias Sánchez, Some Contributions to a Universal Declaration of Human Obligations (speech, Apr. 1997)Google Scholar. This and other InterAction Council documents cited below are available at <http://www.interactioncouncil.org>.

41 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICESCR]; European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221 [hereinafter European Convention]; American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123 [hereinafter American Convention].

42 ICESCR, supra note 41, Art. 4 (emphasis added). Besides the general limitations provision in Article 4, the ICESCR contains a specific limit in Article 8(1), which provides that the right to form and join unions, and the right of unions to function freely, are “subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.” Id, Art. 8(l)(a), (c).

43 See id., An. 2(1) (“Each State Party to the present Covenant undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant…”); see also Alexandre, Charles Kiss, Permissible Limitations on Rights , in The International Bill of Rights: The Covenant on Civil and Political Rights 290, 291 (Louis, Henkin ed., 1981)Google Scholar [hereinafter International Bill of Rights] (“One may…conclude that a general limitation clause was deemed sufficient for rights asserted as general principles, as in the Universal Declaration, or for rights which are difficult to define with precision,” as in the ICESCR). Kiss attributes the specific limit in Article 8 of the ICESCR to the idea that it is “the only provision in that Covenant which recognizes specific rights that can be protected by courts or similar bodies against invasion by the state,” and therefore requires a limitation clause—like those, Kiss suggests, in the ICCPR—that is “more stringent and pointed to the particular right.” Id.

44 ICCPR, supra note 41, Art. 2(1); European Convention, supra note 41, Art. 1; American Convention, supra note 41, Art. 1(1).

45 Kiss, supra note 43, at 292; see Humphrey, supra note 29, at 85 (A general limitations clause “applicable to the whole covenant… could become an escape clause because it would have to be drafted in such general terms. A right begins to have meaning only when you know all the limitations placed on it.”).

46 For example, the ICCPR provides that no one may be arbitrarily deprived of life and that the “sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime,” pursuant to a final judgment by a competent court. ICCPR, supra note 41, Art. 6. The American Convention is similar, although it adds more restrictions on the death penalty. American Convention, supra note 41, Art. 4. The European Convention sets out other specific circumstances under which deprivation of life is acceptable. European Convention, supra note 41, Art. 2.

With respect to the right to liberty, the ICCPR prohibits slavery, servitude, and imprisonment for debt absolutely, severely restricts forced labor, prohibits arbitrary arrest or detention, forbids deprivation of liberty “except on such grounds and in accordance with such procedure as are established by law,” and sets out specific safeguards for criminal proceedings. ICCPR, supra, Arts. 8,9,11,14. The European and American Conventions are similar. 5a? European Convention, supra, Arts. 4, 5, 6, 7; American Convention, supra, Arts. 6, 7, 8, 9.

47 See ICCPR, supra note 41, Arts. 12(3), 18(3), 19(3), 21,22(2); European Convention, supra note41, Arts. 9(2), 10(2), 11 (2); American Convention, supra note 41, Arts. 12(3), 13(2), 15,16(2), 22(3). Rosalyn Higgins calls this type of limitations provision a “clawback clause,” which she defines as “one that permits, in normal circumstances, breach of an obligation for a specified number of public reasons.” Rosalyn, Higgins, Derogations Under Human Rights Treaties, 1976-77 Brit. Y.B. Int'l L. 281, 281 Google Scholar. “Breach” seems the wrong term, however, since the point of the clauses is that the rights may be limited for the specified reasons without breaching the state's obligation under the treaty. Elsewhere, she refers more accurately to acts that would otherwise be in breach of the obligation. Id. at 307.

48 Within each agreement, they vary both in that some of the grounds for limits appear in some provisions but not in others and in that some of the grounds are stated in different terms that have no apparent difference in meaning. See generally Kiss, supra note 43, at 293-308. Kiss suggests that the second type of variation in the ICCPR is due to the fact that the clauses “were drafted, revised, and adopted at different times” in the negotiation, and that “no difference in substance was intended.” Id. at 294. For a slightly different conclusion with respect to the varying statements that limits be provided by law, see Manfred, Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 208 (1993)Google Scholar. There are also variations between agreements, some of which are important. The European Convention, for example, includes a clawback clause with respect to the right of privacy, while the ICCPR and the American Convention do not. Compare European Convention, supra note 41, Art. 8, with ICCPR, supra note 41, Art. 17 and American Convention, supra note 41, Art. 11. For a comparison of the clauses in the ICCPR and the European Convention, see Higgins, supra note 47, at 283-85.

49 American Convention, supra note 41, Art. 32(2) (“The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.”).

50 ICCPR, supra note 41, Art. 4(1); European Convention, supra note 41, Art. 15(1); American Convention, supra note 41, Art. 27(1).

51 With respect to restrictions on the right to freedom of movement set out in Article 12 of the ICCPR, for example, the drafters spent much of their time trying “to formulate limits which would adequately balance the interests of the state and of the individual without nullifying the right.” Stig, Jagerskiold, The Freedom of Movement , in International Bill of Rights, supra note 43, at 166, 171 Google Scholar; see Nowak, supra note 48, at 206. They considered, but eventually rejected as impracticable, an exhaustive list of all possible restrictions. Id. at 207. At the same time, they rejected grounds for limits such as “general welfare” because they were “too far-reaching, so broad, in effect, as to leave no right.” Jagerskiold, supra, at 171.

52 ICCPR, supra note 41, Art. 4; European Convention, supra note 41, Art. 15; American Convention, supra note 41, Art. 27; see Joan, F. Hartman, Working Paper for the Committee of Experts on the Article 4 Derogation Provision, 7 Hum. Rts. Q. 89, 121 (1985)Google Scholar (“There are many indications in the travaux préparatoires [of the ICCPR] that abuse of the derogation privilege was feared and many refinements in drafting were designed to eliminate possibilities for abuse.”).

53 ICCPR, supra note 41, Art. 5(1); European Convention, supra note 41, Art. 17; American Convention, supra note 41, Art. 29; see also ICESCR, supra note 41, Art. 5(1). Thomas Buergenthal argues persuasively that Article 5(1) of the ICCPR adds a mens rea requirement to the limitations and derogation powers given to governments by the other clauses: “If the aim [of a limit or derogation] in fact is the destruction of any of the rights that the Covenant guarantees, then [it] would be impermissible” under Article 5(1). Thomas, Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations , in International Bill of Rights, supra note 43, at 72, 87 Google Scholar. To the same effect, see Nowak, supra note 48, at 96-97. The regional agreements make this requirement explicit. European Convention, supra, Art. 18; American Convention, supra, Art. 30.

54 Even as regards declarations of public emergency, for example, these bodies made clear early in their work that they would not completely defer to governments' views of when and to what extent rights may be limited. See, e.g., Human Rights Committee [Hum. Rts. Comm.], Silva v. Uruguay, Comm. No. 1978/34, UN Doc. CCPR/C/OP/1, at 65 (1984); Lawless v. Ireland, 3 Eur. Ct. H.R. (ser. A) (1961); Inter-American Commission on Human Rights, Report on the Status of Human Rights in Chile, Doc. OEA/Ser.L/V.2.34 (1974).

55 Kiss, supra note 43, at 291 (“The fact that there is no general limitation clause in the [ICCPR] has an important consequence: limitations are permitted only where a specific limitation clause is provided and only to the extent it permits.”). On the question of “inherent limitations” in the European context, where it has been more controversial, see Van Dijk, P. & Van Hoof, G. J. H., Theory And Practice Of The European Convention On Human Rights 763-65 (3d ed. 1998)Google Scholar.

56 ICCPR, supra note 41, Art. 4(1); European Convention, supra note 41, Art. 15 (2); American Convention, supra note 41, Art. 27(2). Other nonderogable provisions in the ICCPR and the American Convention include the right to be recognized as a person before the law and the freedoms of conscience and religion, while the latter agreement makes nonderogable several other provisions, including the right to participate in government.

57 Ronald, Dworkin, Rights as Trumps , in Theories of Rights, supra note 19, at 153, 153 Google Scholar (“Rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole.”).

58 See European Convention, supra note 41.

59 American Convention, supra note 41, Art. 32(1).

60 ICCPR, supra note 41, pmbl.; ICESCR, supra note 41, pmbl.

61 Universal Declaration, supra note 5, pmbl.

62 African Charter on Human and Peoples' Rights, June 27, 1981, 21 ILM 58 (1982).

63 The Charter does include one or two duties that could be seen as correlative. Article 28 states, “Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.” The first clause of the provision could be read as correlating roughly to the Charter's prohibitions on discrimination, while the second could perhaps be interpreted as a very soft duty to work toward the enjoyment of certain rights.

64 Id., Art. 29(2), (3), (4), (5). Article 29 also includes less troubling duties, such as to “preserve the harmonious development of the family,” “preserve and strengthen positive African cultural values … and, in general, to contribute to the promotion of the moral well being of society,” and to “contribute... to the promotion and achievement of African unity.” Id., Art. 29(1), (7), (8).

65 Richard, Gittleman, The Banjul Charter on Human and Peoples'Rights: A Legal Analysis , in Human Rights and Development in Africa 152, 154 (Claude, E. Welch Jr. & Ronald, I. Meltzer eds., 1984)Google Scholar.

66 Address by Leopold Sedar, Senghor H. E.Mr., President of the Republic of Senegal, reprinted in Regional Protection of Human Rights by International Law: The Emerging African System 121, 123-24 (Philip, Kunig et al. eds., 1985)Google Scholar.

67 Gittleman, supra note 65, at 154 (socialist states such as Mozambique and Ethiopia “had a difficult time reconciling traditional human rights conventions with socialist philosophy”).

68 See, e.g., Sheryl, Gay Stolberg, Opposition Undercuts Troops, Cheney Says of Spending5/7/ , N.Y. Times, Mar. 13, 2007, at A10Google Scholar; Michelle, Mittelstadt, Ashcroft: Critics of New Terror Measures Undermine Effort, Dallas Morning News, Dec. 7, 2001, available in Lexis, News Library, Wire Service Stories File Google Scholar.

69 African Charter, supra note 62, Art. 27(2).

70 See Wolfgang, Benedek, Peoples' Rights and Individuals' Duties as Special Features of the African Charter on Human and Peoples' Rights , in Regional Protection of Human Rights by International Law, supra note 66, at 59, 86 Google Scholar.

71 See, e.g., African Charter, supra note 62, Arts. 6 (“No one may be deprived of his freedom except for reasons and conditions previously laid down by law.”); 8 (“Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”); 9(2) (“Every individual shall have the right to express and disseminate his opinions within the law.”); 10(1) (“Every individual shall have the right to free association provided that he abides by the law.”); 12(1) (“Every individual shall have the right to freedom of movement and residence … provided he abides by the law”) (emphasis added).

72 Gittleman, supra note 65, at 159.

73 BUERGENTHAL, supra note 1, at 178 (the duty to preserve and strengthen national solidarity is “an invitation to the imposition of unlimited restrictions on the enjoyment of rights”); Benedek, supra note 70, at 89 (noting “a danger that states could try to use duties to derogate certain human rights”); Cees, Flinterman & Evelyn, Ankumah, The African Charter on Human and Peoples'Rights , in Guide to International Human Rights Practice 171, 173 (Hurst, Hannum ed., 4th ed. 2004)Google Scholar (stating that “the clawback clauses and the duties owed by the individual have the potential to undermine many of the substantive guarantees in the Charter”); Umozurike, U. O., The African Charter on Human and Peoples ‘Rights, 77 AJIL 902, 911 (1983)Google Scholar (“The concept of duties stressed in the Charter is quite likely to be abused by a few regimes on the continent.... [that] will emphasize the duties of individuals to their states but will play down their rights and legitimate expectations.” Umozurike nevertheless believes that including duties as well as rights “maintain[s] a proper balance”).

74 Makau, wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VA. J. Int'l L. 339, 367-68 (1995)Google Scholar; see also Benedek, supra note 70, at 87 (“Given the rather weak ties of allegiance African nationals… have to their young states the enumeration of a list of such duties can be taken … as an indication of a particular need of African states with regard to national solidarity and nation-building.”).

75 Mutua, supra note 74, at 375.

76 Id.; see also Fatsah, Ouguergouz, The African Charter on Human and Peoples' Rights 421 (2003)Google Scholar; Flinterman & Ankumah, supra note 73, at 173.

77 Media Rights Agenda v. Nigeria, Comm. Nos. 105/93, 128/94, 130/94, 152/96, African Commission on Human Rights [ACHR], 12th Annual Activity Report 52, 58, paras. 66, 68 (1998); see also Constitutional Rights Project v. Nigeria, Comm. Nos. 140/94,141/94,145/95, ACHR, 13th Ann. Activity Rep. 54,60, para. 40 (1999); Jawara v. The Gambia, Comm. Nos. 147/95, 149/96, id. at 96,104, para. 59 (2000); Legal Resources Foundation v. Zambia, Comm. No. 211/98, ACHR, 14th Ann. Activity Rep. 86, 96, para. 70 (2001).

78 Media Rights Agenda, supra note 77, at 58, paras. 69-70.

79 See, e.g., Zegveld v. Eritrea, Comm. No. 250/2002, ACHR, 17th Ann. Activity Rep. 116, 124, para. 60 (2003).

80 Christof, Heyns, The African Regional Human Rights System: The African Charter, 108 Penn St. L. Rev. 679, 692-93 (2004)Google Scholar.

81 For the authority of the Commission, see African Charter, supra note 62, ch. II.

82 Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court of Human Rights, Art. 30, June 10, 1998, Doc. OAU/LEG/EXP/AFCHPR/PROT(III) (entered into force Jan. 25, 2004), available at <http://www.africa-union.org>. Cases may be brought to the Court by the Commission as well as states party to the protocol creating it. Id., Art. 5. Individuals and nongovernmental organizations may bring cases only against states that have declared that they accept such jurisdiction. Id., Arts. 5(3), 34(6).

83 Heyns, supra note 80, at 691.

84 It may be more accurate to think of specification as a range (from “less specific” to “more specific”) rather than a switch (from “not specific” to “specific”). And while there are clearer differences between specification, placement, and enforcement, the dividing lines may not always be precise. In other words, the pyramid may be smooth-sided rather than a ziggurat.

85 It has been suggested that multinational corporations are now more powerful than some governments. E.g., Jordan, J. Paust, Human Rights Responsibilities of Private Corporations, 35 Vand. J. Transnat'l L. 801, 802 (2002)Google Scholar (“ [Decisions and activities of many large multinational corporations are capable of doing more harm to persons and resources in ways that thwart human rights than decisions and activities of some nation-states.”). Those making this argument tend to look only at economic size, not at indicia of power like armies, police forces, prosecutors, and courts, which governments generally have and corporations generally do not.

86 Countries have faced similar issues with respect to the horizontal effect of constitutional rights and have reached a variety of points on the spectrum between pure vertical duties, in which rights give rise to duties only for governments, and full horizontal effect, in which rights may be enforced directly in courts against private actors. Gardbaum, supra note 4 (reviewing the positions of Canada, Germany, Ireland, South Africa, and the United States, among other countries); see Mark, Tushnet, The Issue of State Action/Horizontal Effect in Comparative Constitutional Law, 11-CON 79 (2003)Google Scholar (suggesting structural and political reasons why countries differ in their approach to the issue). Gardbaum describes how domestic legal systems may give constitutional rights different degrees of indirect horizontal effect by applying them to different types of litigation between private parties and to the actions of courts and the legislative and executive branches of government, as well as by imposing duties on governments to protect against private interference with them.

There are important differences between horizontality in the context of constitutional rights and in the context of international human rights law. Most important, human rights law, with important but limited exceptions, lacks clear lines of authority by which a supreme court or legislature can impose new rules or interpretations of existing rules on unwilling governments or private parties, and lacks an international structure through which those rules may be enforced. The formulation of horizontal human rights law therefore depends largely on the consent of states that vary greatly in their views of the relationship between the individual and the state, the scope of rights, and the role of governments in protecting rights against private interference, and its enforcement depends on the willingness of those states to lend their domestic legal systems to that end. These constraints are not present in the same way in the case of constitutional rights. Among other consequences, the variation in governments' own approaches to horizontal constitutional rights may make it more difficult for them to agree on a uniform approach to horizontal human rights law.

87 Holding private actors responsible for violations of human rights law when they are either acting as de facto governments, or acting together with governments in a common scheme, raises quite different issues from holding them responsible when they are acting as private actors. When private actors act as if they were a government, it may be appropriate to treat them as a government. This article addresses only situations in which the private actor is acting neither as a government nor in complicity with a government.

88 See Stephen, Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 714-15 (2001)Google Scholar (when countries adopted new constitutions after World War II, “ [i] n order effectively both to protect, and express their commitment to, fundamental human rights and liberties, country after country abandoned legislative supremacy and switched to an entrenched, supreme law bill of rights that was judicially (or quasi-judicially) enforced”).

89 ICCPR, supra note 41, Art. 2(1).

90 Nowak, supra note 48, at 36 (“The duty to respect… means that the States Parties must refrain from restricting the exercise of these rights where such is not expressly allowed.”).

91 See 1 The New Shorter Oxford English Dictionary on Historical Principles 827 (1993)Google Scholar (defining “ensure” as “Secure, make safe (against, from, a risk etc.)”; “Secure (a thing) for or to a person”); Sarah, Joseph, Jenny, Schultz, & Melissa, Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary 24 (2000)Google Scholar (“It is … likely that the general duty in article 2(1) on States to ‘ensure' ICCPR rights entails a duty, of perhaps varying degrees of strictness, to protect individuals from abuse of all ICCPR rights by others.”). Nowak emphasizes that the term “ensure” requires the state to take positive steps to give effect to the rights generally. Nowak, supra note 48, at 36-37. Among the state's duties of performance are “positive measures to protect against private interference” with respect to certain rights. Id. at 38.

92 Yoram, Dinstein, The Right to Life, Physical Integrity, and Liberty , in International Bill of Rights, supra note 43, at 114, 119 Google Scholar; see Joseph, Schultz, & Castan, , supra note 91, at 129-30 Google Scholar.

93 Hum. Rts. Comm., General Comment No. 31, UN Doc. CCPR/C/21/Rev.l/Add.l3, para. 8 (May 26, 2004).

94 European Convention, supra note 41, Art. 1 (“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention.”); American Convention, supra note 41, Art. 1(1) (states parties “undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms”); Convention on the Rights of the Child, Art. 2(1), Nov. 20, 1989, 1577 UNTS 3 [hereinafter CRC] (states parties “shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction”). Although the European Court of Human Rights has read the European Convention to require states to protect rights against private interference, scholars have disagreed on the degree to which the term “secure” in the Convention leads to this result.

See Jágers, supra note 3, at 41-42. The Court has explicitly relied upon the term in some cases, however, in conjunction with the language setting out the specific right. See, e.g., Z v. United Kingdom, App. No. 29392/95, 34 Eur. H.R. Rep. 3, para. 73 (2002) (noting that the parties' Article 1 obligation to “secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals”).

95 Commission Nationale de Droits de l'Homme et des Libertés v. Chad, Comm. No. 74/92,2000 Afr. H.R. L. Rep. 66, 68, para. 20 (1995).

96 Committee on Economic, Social and Cultural Rights, General Comment No. 12, UN Doc. E/C. 12/1999/5, para. 15 (May 12, 1999) (right to food); & General Comment No. 14, UN Doc. E/C. 12/2000/4, para. 33 (right to health).

97 Convention on the Elimination of All Forms of Racial Discrimination, Art. 2(a), (d), Dec. 21, 1965, 660 UNTS 195 [hereinafter CERD]; Convention on the Elimination of All Forms of Discrimination Against Women, Art. 2(d), (e), Dec. 18, 1979, 1249 UNTS 13 [hereinafter CEDAW].

98 General Comment No. 31, supra note 93, para. 8 (in certain circumstances, a failure of a state party to ensure rights under Article 2 of the ICCPR would give rise to a violation by the party of the rights, as a result of its “permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities”); see August, Reinisch, The Changing International Legal Framework for Dealing with Non-state Actors , in Non-State Actors and Human Rights 37, 79 (Philip, Alston ed., 2005)Google Scholar; Stephanie, Farrior, State Responsibility for Human Rights Abuses by Non-state Actors, 92 ASIL Proc. 299, 302 (1998)Google Scholar (“The standard most frequently articulated has been drawn from traditional state responsibility doctrine governing protection of aliens from private violence—the ‘due diligence' standard.”). The leading case is from the Inter-American Court of Human Rights. Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4, para. 172 (July 29, 1988).

Not all references by UN treaty bodies to states' duties to protect human rights against private interference refer to “due diligence,” however. Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations, State Responsibilities to Regulate and Adjudicate Corporate Activities Under the United Nations Core Human Rights Treaties: An Overview of Treaty Body Commentaries, UN Doc. A/HRC/4/35/Add. 1, at 10 (Feb. 13,2007) [hereinafter SRSG Report]. And the European Court of Human Rights, which has developed an extensive jurisprudence on the topic, has used other baseline standards, such as “reasonable and appropriate measures.” See, e.g., Plattform “Ärzte für das Legen” v. Austria, 139 Eur. Ct. H.R. (ser. A), para. 34 (1988). Nevertheless, “due diligence” captures the general approach of treaty bodies and international tribunals: that states must take measures, which vary depending on the circumstances and the nature of the rights in question, to protect the exercise of human rights from interference by private actors.

99 See Velásquez Rodríguez, supra note 98, para. 175.

100 Id., para. 174 (noting the state's “legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation”); see Farrior, supra note 98, at 302; Addendum to the February 2007 SRSG Report, supra note 98, at 21.

101 See note 93 supra and corresponding text (emphasis added).

102 For an analysis of whether specific rights may give rise to private duties, see Jägers, supra note 3, at 48 -70.

103 See, e.g., ILO Convention No. 98, July 1,1949 (requiring parties to safeguard workers' rights to organize and bargain collectively); ILO Convention No. 105, June 25,1957 (requiring parties to abolish forced labor); ILO Convention No. 138, June 26, 1973 (requiring parties to set a minimum age for employment); ILO Convention No. 155, June 22, 1981 (requiring parties to regulate occupational safety and health); ILO Convention No. 182, June 17,1999 (requiring parties to ban the worst forms of child labor). ILO Conventions are available at <http://ilo.org/ilolex/english/>.

104 CERD, supra note 97, Art. 5(f).

105 CEDAW, supra note 97, Art. 13(b).

106 See, e.g., United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20,1988,1582 UNTS 164; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), Sept. 23, 1971, 24 UST 564, 974 UNTS 177.

107 Even though the decisions are binding only with respect to the state party to the case, as a practical matter other states that do not wish to be found in violation of the same rights in follow-on cases are likely to see such cases as giving authoritative interpretations with which they must comply.

108 For detailed descriptions of the jurisprudence of the European Court with respect to the positive obligations of states to protect human rights from interference by nonstate actors, see Andrew, Clapham, Human Rights Obligations of Non-state Actors 349-420 (2006)Google Scholar; Alistair, Mowbray, The Development of Positive Obligations Under The European Convention on Human Rights by The European Court of Human Rights (2004)Google Scholar; Keir, Starmer, Positive Obligations Under the Convention , in Understanding Human Rights Principles 139 (Jeffrey, Jowell & Jonathan, Cooper eds., 2001)Google Scholar.

109 Siliadin v. France, App. No. 73316/01, paras. 89, 112 (July 26, 2005), available at <http://www.echr.coe.int>.

110 Hatton v. United Kingdom, App. No. 36022/97, 37 Eur. H.R. Rep. 28, para. 119 (2003).

111 See Nowak, supra note 48, at xix, xxiv.

112 See, e.g., Hum. Rts. Comm., General Comment No. 20 (1992), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1 /Rev. 1, at 30, para. 2 (1994) (“It is the duty of the State party to afford everyone protection … against [torture and cruel, inhuman, or degrading treatment], whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.”); CERD Comm., General Recommendation No. 20, The Guarantee of Human Rights Free from Racial Discrimination, in Report of the Committee on Racial Discrimination, UN GAOR, 51st Sess., Supp. No. 18, Annex 8, at 124, para. 5, UN Doc. A/51/18 (1996) (“To the extent that private institutions influence the exercise of rights [referred to in Article 5 of CERD] …, the State party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination.”); Comm. on Economic, Social and Cultural Rights, General Comment No. 12, UN Doc. E/C. 12/1999/5, para. 19 (“Violations of the right to food can occur through [inter alia ] …. failure to regulate activities of individuals or groups so as to prevent diem from violating the right to food of others…”)• See generally Clapham, supra note 108, at 319 - 34 (reviewing treaty bodies' statements on private duties).

113 E.g., Comm. on Economic, Social and Cultural Rights, General Comment No. 14, UN Doc. E/C.12/2000/4, para. 35 (the duty to protect the right to health requires parties, inter alia, “to prevent third parties from coercing women to undergo… female genital mutilation”); & General Comment No. 18, UN Doc. E/C. 12/GC/18, para. 25 (2005) (“The obligation to protect the right to work includes the responsibility of States parties to prohibit forced or compulsory labour by non-State actors.”).

114 CEDAW Comm., General Recommendation No. 19, Violence Against Women, in Report of the Committee on the Elimination of Discrimination Against Women, UN GAOR, 47th Sess., Supp. No. 38, at 1, paras. 6,7, UN Doc. A/47/38 (1992).

115 Id., para. 24(t). The committee concluded that states may “be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.” Id., para. 9.

116 Declaration on the Elimination of Violence Against Women, GA Res. 48/104, Art. 4(c), (d) (Dec. 20,1993). In the interest of full disclosure, I should note that I was the U.S. representative to the working group of the UN Commission on the Status of Women that drafted the declaration.

117 The law of treaties requires interpretation of treaty provisions to take into account “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.” Vienna Convention on the Law of Treaties, Art. 31 (3)(a), opened for signature May 23,1969,1155 UNTS 331. Although few General Assembly resolutions would qualify as such subsequent agreements, this resolution was adopted unanimously (thereby including all of the parties to CEDAW) and arguably establishes the parties' agreement regarding the interpretation of CEDAW.

118 Treaty interpretation also looks to “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.” Id., Art. 31(3)(b).

119 See International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and The Developing International Legal Obligations of Companies 11 (2002)Google Scholar [hereinafter Beyond Voluntarism] (International standards “can help to harmonise rules at a time of weak national regulation. They can act as a common reference point for national law, setting benchmarks, drawing attention to core minimum requirements and establishing clearly what is not permissible.”).

120 In addition, the African Charter enunciates one or two correlative duties amid its many free-standing, restrictive duties. These provisions are too general, however, to give rise to specific private obligations. See note 64 supra. As with the indirect duties described in the previous section, these general direct duties could take on more meaning if they were authoritatively interpreted by the African Human Rights Commission or Court and/or by state agreement or practice.

121 Genocide Convention, supra note 39, Arts. 1, 6.

122 Id, Art. 4.

123 International Convention on the Suppression and Punishment of the Crime of Apartheid, Arts. 1(1), III, Nov. 30,1973,1015 UNTS 243.

124 Writing in 1997, Steven Ratner and Jason Abrams stated that although “the prevailing view until fairly recently remained that crimes against humanity require an element of state action,” recent developments suggested that the requirement “is now outdated,” although “some sort of ‘official' action remains embedded in the concept.” Steven, R. Ratner & Jason, S. Abrams, Accountability For Human Rights Atrocities In International Law 66-67 (1997)Google Scholar. Their view was borne out the following year, when the Rome Statute defined crimes against humanity to include specific acts “committed as part of a widespread or systematic attack directed against any civilian population,” which could be “pursuant to or in furtherance of a State or organizational policy to commit such attack.” Rome Statute of the International Criminal Court, Art. 7, July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute] (emphasis added).

125 Rome, Statute Google Scholar, supra note 124, Art. 5(1). The Rome Statute also includes within its list of crimes of concern to the international community the crime of aggression, but leaves it outside the Court's jurisdiction until it is defined. Id., Art. 5(2); see also International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention, Advisory Opinion OC-14/94, Inter-Am. Ct. H.R. (ser. A) No. 14, paras. 52-53 (Dec. 9,1994) (noting that international law “may grant rights to individuals” and “may also determine that certain acts or omissions on their part could make them criminally liable” under international law, and that responsibility at times is enforceable by international tribunals. “Nevertheless, at the present time individual responsibility may only be invoked for violations that are defined in international instruments as crimes under international law, such as crimes against peace, war crimes, and crimes against humanity or genocide, which, of course, also affect specific human rights.”).

126 Slavery Convention, Art. 2, Sept. 25, 1926, 212 UNTS 17.

127 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Art. I, Apr. 30, 1956, 18 UST 3201, 266 UNTS 3.

128 Id, Arts. 3(1), 6(1) (emphasis added).

129 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts. 4(1), 7(1), Dec. 10,1984, S. Treaty Doc. NO. 100-20 (1988), 1465 UNTS 85 [hereinafter Convention Against Torture]; International Convention for the Protection of All Persons from Enforced Disappearance, GA Res. 61/177, Arts. 4, 7(1), 11(1) (Dec. 20, 2006) [hereinafter Disappearances Convention] (not yet in force). Although both conventions are primarily directed against state actors, they include within their scope private actors acting with the “acquiescence” of the state (with respect to disappearances) or “a public official or other person acting in an official capacity” (torture). Disappearances Convention, supra, Art. 2; Convention Against Torture, supra, Art. 1(1).

130 Ratner & Abrams, supra note 124, at 10.

131 The Disappearances Convention does provide that “[t]he widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.” Disappearances Convention, supra note 129, Art. 5 (emphasis added). To that extent, then, the convention could be read as establishing a new direct obligation on individuals.

132 Cf. Bruno, Simma & Andreas, L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AJIL 302, 313 (1999)Google Scholar. However, there is no reason why offenses such as torture and disappearances may not be called “international crimes,” since the term “international” may be justified by their specification by international law.

133 Jordan Paust has taken a far more extreme position than Ratner and Abrams, arguing that human rights law directly places a vast range of duties on private actors. He writes: “Most human rights instruments speak generally of particular rights of each person or everyone without any mention of or limitation concerning which persons or entities owe a corresponding duty. Thus, most duties are generally not limited to state actors and do reach private persons or entities.” Paust, supra note 85, at 810. The statement of a right without reference to a correlative duty would not necessarily imply that everyone in the world bears the duty, but in any event Paust's description is inaccurate. Human rights treaties explicitly provide that it is the states party to the treaties that have the duties to ensure and achieve the realization of the human rights set out in the agreements. E.g., ICCPR, supra note 41, Art. 2(1); ICESCR, supra note 41, Art. 2(1); CERD, supra note 97, Art. 5; CEDAW, supra note 97, Art. 2(1); CRC, supra note 94, Art. 4. The Universal Declaration does not include such a statement of duties because it was not intended to be legally binding, but the clear intention of the governments adopting it was that the duties were to be held by states. In the process of drafting the declaration, the members of the General Assembly adopted a resolution stating that the human rights in the declaration “presuppose the existence of corresponding duties on the part of States,” which the drafters put off formulating until the conclusion of “an appropriate instrument.” Morsink, supra note 12, at 239. The “appropriate instrument” turned out to be the two covenants. Paust also reads Article 5(1) of the covenants, which state in identical terms that the covenants give no state, group, or person a right to destroy or limit the rights set out in them, as meaning that everyone has a duty not to destroy or limit the rights. Paust, supra, at 813. But the absence of a right to do something is not the same as a duty not to do it.

134 Carlos, M. Vazquez, Direct vs. Indirect Obligations of Corporations Under International Law, 43 Colum. J. Transnat'l L. 927, 940-41 (2005)Google Scholar.

135 Id. at 934.

136 Steven, R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443, 481 (2001)Google Scholar. As noted above, however, I do not share Ratner's view that treaties that merely oblige states to prosecute or extradite offenders do place duties directly on private actors.

137 Rome Statute, supra note 124, Art. 12. With respect to crimes committed on board an aircraft or vessel, the question is whether the state of registration is a party or has accepted jurisdiction. Id.

138 Id, Art. 17(1).

139 Id, Art. 17(2).

140 Id, Art. 17(3).

141 Human Rights Commission [UNHRC] Res. 2000/63, available at <http://www2.ohchr.org/english/bodies/chr/regular-sessions.htm>; UNHRC Decision 2001/115, available at id.; UNHRC Decision 2002/110, in Report on the 58th Session, UN Doc. E/CN.4/2002/200, at 34.

142 Martínez Report, supra note 2.

143 Draft Declaration, supra note 2, Arts. 1, 3.

144 Id., Art. 5.

145 See Prosper, Weil, Towards Relative Normativity in International Law? 77 AJIL 413, 415 (1983)Google Scholar.

146 The declaration also sets out some duties owed by states, e.g., “towards achieving the establishment of an international and social order in which the rights and freedoms enshrined in the Universal Declaration of Human Rights and other international instruments can be made effective,” “to revitalize the principle of international cooperation, particularly that related to the materialization of the right to development,” and to “abstain from promoting or supporting … the activities of individuals, groups, institutions or organizations that are in contradiction with the provisions of the Charter of the United Nations.” Draft Declaration, supra note 2, Arts. 7, 8, 10.

147 Id., pmbl.

148 Id, Arts. 14, 21.

149 Id., Art. 12. Compare id. with African Charter, supra note 62, Art. 27(2).

150 Draft Declaration, supra note 2, Art. 17.

151 Id., Arts. 18 (“duty not to legitimize or incite religious fanaticism, as well as to promote respect for the beliefs of others”); 19 (“duty to participate in the established procedures to facilitate his or her participation in the political life of a specific community to which he or she belongs, or in the society as a whole, in particular, by exercising his or her right to vote”); 24 (“right and the duty to work to the degree permitted by his or her physical and intellectual capacities”) (emphasis added).

152 InterAction Council, A Universal Declaration of Human Responsibilities (Sept. 1,1997) [hereinafter InterAction Declaration]. The group has included Jimmy Carter, Valery Giscard d'Estaing, Malcolm Fraser, and Helmut Schmidt.

153 See, e.g., InterAction Council, Chairman's Report on the High-Level Expert Group Meeting, “Human Rights and Responsibilities in the Age of Terrorism,” paras. 15,17(Apr. 1-2,2005) [hereinafter InterAction Report] (noting that the Universal Declaration “began as a series of principles, not law…. [O]ur document on responsibility also starts with principles…. A World Charter on Responsibility, adopted by the United Nations, would not have legal force. But like the Universal Declaration of Human Rights, it will be a light on the hill.”). Some of these supporters may not realize that the Universal Declaration of Human Rights is now viewed as “at least significant evidence of customary international law.” Hurst, Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. Int'l & Comp. L. 287, 322 (1996)Google Scholar.

154 InterAction Declaration, supra note 152, Art. 3.

155 E.g., id., Art. 5 (“Every person has a responsibility to respect life. No one has the right to injure, to torture or to kill another human person.”).

156 Ben, Saul, In the Shadow of Human Rights: Human Duties, Obligations, and Responsibilities, 32 Colum. Hum. Rts. L. Rev. 565, 585-86 (2001)Google Scholar.

157 Instead of a responsibility not to discriminate against one another on the basis of gender, race, or religion, for example, the InterAction Declaration says that”Every person, regardless of gender, ethnic origin, social status, political opinion, language, age, nationality, or religion, has a responsibility to treat all people in a humane way.” InterAction Declaration, supra note 152, Art. 1.

158 Id, Art. 14.

159 Daes, supra note 30, at 37 (the Universal Declaration does not set out detailed duties of the individual to the state “for the simple reason that the cardinal object of the Declaration is the protection of the rights of individuals in relation to the State. History has shown that there is a need for such protection, whereas there is no imperative necessity to safeguard the State against individuals.”).

160 Martínez Report, supra note 2, at 3.

161 InterAction Declaration, supra note 152, at 1 (Introductory Comment).

162 Martínez Report, supra note 2, at 3; InterAction Report, supra note 153, at 1. The idea that the drafters of the Universal Declaration (not to mention the many subsequent human rights treaties) ignored social duties because they were all Westerners infatuated with individualism is simply wrong, as part I explains.

163 UNHRC Res. 2000/63, supra note 141.

164 Kathleen, Mahoney, Response to Hans Kung's Remarks on Global Ethicand Human Responsibilities Google Scholar (n.d.), available at <http://www.scu.edu/ethics/practicing/focusareas/global_ethics/laughlin-lectures/mahoney-response.html>.

165 Louis, Henkin, Introduction to International Bill of Rights , supra note 43, at 3 n.*Google Scholar; see Michael Ignatieff, Human Rights as Politics and Idolatry 69 (2001) (“Human rights exist to adjudicate these conflicts [between individual and group interests], to define the irreducible minimum beyond which group and collective claims must not go in constraining the lives of individuals.”).

166 Its full name is the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. GA Res. 53/144, annex (Dec. 9, 1998) (emphasis added).

167 As the U.S. representative to the negotiation in 1992 and 1993,1 experienced this negotiating dynamic personally.

168 Articles 17 and 18(1) of the declaration simply restate, with slight variations, the language of Article 29(1) and (2) of the Universal Declaration. The negotiators did add two general provisions on responsibilities, which are more dangerous. Article 18(2) and (3) provide that” [individuals, groups, institutions and non-governmental organizations” have a role and a responsibility “in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes,” and “in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized.” Id., Arts. 17, 18.

169 Michael, J. Dennis, The Fifty-sixth Session of the UN Commission on Human Rights, 95 AJIL 213, 216 (2001)Google Scholar.

170 UNHRC, Report on the Fifty-ninth Session, UN Doc. E/CN.4/2003/135, at 433-34.

171 UNHRC Decision 2004/117, in Report on the Sixtieth Session, UN Doc. E/CN.4/2004/127, at 333 [hereinafter 2004 UNHRC Report].

172 UNHRC Decision 2005/1II, in Report on the Sixty-first Session, UN Doc. E/CN.4/2005/135, at 344 [hereinafter 2005 UNHRC Report].

173 UN Doc. E/2005/SR.38, at 8-9 (2005).

174 See Freedom House, Freedom in the World Google Scholar, available at <http://www.freedomhouse.org>.

175 For a list of the countries as evaluated by Freedom House in 2006 (based on their records in 2005), see id. (search “Freedom in the World” for 2006; then follow “Tables and Charts” hyperlink). For a list of the countries voting for and against authorizing Martinez to continue work on the declaration, see UN Doc. E/2005/SR.38, supra note 173, at 8-9. Of the ECOSOC members labeled Free by Freedom House, 21 voted against and 7 voted for; of those labeled Partly Free, 4 voted against and 7 voted for; and of those labeled Not Free, all 9 voted for.

176 Such differences may help to explain why some democracies, such as India, Jamaica, and South Africa, have supported continued consideration of the declaration.

177 Although the draft InterAction Declaration has not been presented for formal votes by governments, Ben Saul suggests that “a number of authoritarian countries … have supported [it because] it dilutes State responsibility towards individuals and increases individual responsibility towards the State.” Saul, supra note 156, at 605.

178 Draft Norms, supra note 2. For an analysis of the draft Norms by the special representative appointed by the secretary-general to identify and clarify international standards with respect to businesses and human rights, see John, Gerard Ruggie, Business and Human Rights: The Evolving International Agenda, 101 AJIL 819 (2007)Google Scholar. For a description by one of the principal drafters, which includes a detailed history of the process that led to their adoption, see David, Weissbrodt & Muria, Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 97 AJIL 901 (2003)Google Scholar.

The application of international human rights law to corporations has received an immense amount of scholarly attention in recent years. A partial list includes Clapham, supra note 108, at 195-270; Human Rights Standards and the Responsibility of Transnational Corporations (Michael, K. Addo ed., 1999)Google Scholar; Jägers, supra note 3; Non-state Actors and Human Rights, supra note 98; Larry, CatáBacker, Multinational Corporations, Transnational Law: The United Nations' Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility in International Law, 37 Colum. Hum. Rts. L. Rev. 287 (2006)Google Scholar; Rebecca, M. Bratspies, “Organs of Society”: A Plea for Human Rights Accountability for Transnational Enterprises and Other Business Entities, 13 Mich. St.J. Int'l L. 9 (2005)Google Scholar; Surya, Deva, UN's Human Rights Norms for Transnational Corporations and Other Business Enterprises: An Imperfect Step in the Right Direction? 10 ILSAJ. Int'l & Comp. L. 493 (2004)Google Scholar; Claire, Moore Dickerson, Human Rights: The Emerging Norm of Corporate Social Responsibility, 76 Tul. L. Rev. 1431 (2002)Google Scholar; David, Kinley & Junko, Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law, 44 VA. J. Int'l L. 931 (2004)Google Scholar; Paust, supra note 85; Ratner, supra note 136; Paul, Redmond, Transnational Enterprise and Human Rights: Options for Standard Setting and Compliance, 37 Int'l Law. 69 (2003)Google Scholar; Amy, Sinden, Power and Responsibility: Why Human Rights Should Address Corporate Environmental Wrongs , in The New Corporate Accountability 501 (Doreen, McBarnet, Aurora, Voiculescu, & Tom, Campbell eds., 2007)Google Scholar; Vázquez, supra note 134. Not all of these works address the draft Norms, although almost all do support some form of corporate responsibility for human rights violations under international law. Some scholars have made proposals of their own, of which two of the most detailed are Ratner, supra, and Kinley & Tadaki, supra.

179 The draft Norms are the most important, but far from the only, recent effort to describe correlative duties as directly applying to private actors. The Human Rights Commission has adopted resolutions condemning various kinds of private conduct as violating, threatening, or aiming at the destruction of human rights. See, e.g., UNHRC Res. 2004/44, pmbl., in 2004 UNHRC Report, supra note 171, at 153, 155 (expressing concern at the “gross violations of human rights perpetrated by terrorist groups”); UNHRC Res. 2005/15, para. 4, in 2005 UNHRC Report, supra note 172, at 58 (calling the dumping of toxic and dangerous products and wastes a “serious threat to human rights”); UNHRC Res. 2005/31, para. 1, in id. at 124 (describing hostage taking, “wherever and by whomever committed,” as “a serious crime aimed at the destruction of human rights”); UNHRC Res. 2004/46, para. 4, in 2004 UNHRC Report, supra, at 164 (declaring that gender-based violence against women, whether carried out by public or private actors, “constitutes a violation of the human rights and fundamental freedoms of women”). This article does not address those resolutions.

180 See Draft Norms, supra note 2, para. 1 (“Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national l a w … “ ); see also id., para. 12 (calling on such corporations and enterprises to respect and contribute to the realization of both economic, social, and cultural rights and civil and political rights, especially “the rights to development, adequate food and drinking water, the highest attainable standard of physical and mental health, adequate housing, privacy, education, freedom of thought, conscience and religion and freedom of opinion and expression, and [to] refrain from actions which obstruct or impede the realization of these rights”).

The draft Norms define “other business enterprise” to include “any business entity, regardless of the international or domestic nature of its activities.” Id., para. 21. Confusingly, the Norms state that they “shall be presumed to apply, as a matter of practice, if the business enterprise has any relation with a transnational corporation, the impact of its activities is not entirely local, or die activities involve violations of the right to security as indicated in paragraphs 3 and 4.” Id. It is unclear what effect this language would have on the applicability of the Norms to businesses that do not fall within one of these categories. John Ruggie reads it as exempting them. Ruggie, supra note 177, at 823. But David Weissbrodt, one of the members of the Sub-Commission working group that drafted the Norms, states that they “still apply to such businesses,” although implementation of the Norms will focus on businesses that meet the specified criteria. Weissbrodt & Kruger, supra note 178, at 910.

181 Draft Norms, supra note 2, para. 2.

182 Id., para. 3.

183 Id., paras. 5-9.

184 Id, paras. 11,13,14.

185 Weissbrodt & Kruger, supra note 178, at 913.

186 See Ruggie, supra note 178, at 827.

187 In theory, international bodies charged with interpreting human rights law, such as the UN treaty bodies and regional human rights courts, could reinterpret human rights agreements to give rise to direct duties on corporations. But doing so would require a fundamental change in the entire approach of such bodies toward private duties, as described in part II. They are highly unlikely to undertake such a transformation without direction from the parties to the treaties to do so.

188 Ruggie, supra note 178, at 820 (reporting that the Human Rights Commission “reacted coolly” to the Norms).

189 See id. at 824 (quoting Weissbrodt & Kruger, supra note 178, at 901).

190 See Ratner, supra note 136, at 541-42.

191 Martínez Report, supra note 2, at 13.

192 InterAction Council, Report on the Conclusions and Recommendations by a High-level Expert Group Meeting (Apr. 20-22, 1997).

193 African Charter, supra note 62, pmbl.

194 Weissbrodt & Kruger, supra note 178, at 905 n.25.

195 For a survey of the treaty bodies' views on indirect corporate duties arising from UN treaties, see SRSG Report, supra note 98.

196 Ruggie, supra note 178, at 826.

197 Ratner, supra note 136, at 496-97.

198 Id. at 526-30. 199 Id. at 530.

200 Kinley and Tadaki propose an alternative approach: focusing on rights that are both universally recognized and relatively concrete, such as freedom from torture, or both important and particularly susceptible to harm from transnational corporations, such as environmental rights, indigenous rights, and four “core” labor rights. Kinley & Tadaki, supra note 178. In addition to the difficulty of obtaining consensus on which rights are the most important, they may underestimate the difficulty of determining which human rights should give rise to duties on corporations. For example, they state that there are some human rights duties that, “no matter what perspective is adopted, are inappropriate, if not practically impossible,” to place on transnational corporations, giving as examples the rights of criminal defendants, such as the presumption of innocence and freedom from arbitrary arrest. Id. at 967. But Ratner suggests that if a corporation seeking to remove a union activist gave false information to a prosecutor, it would “in some sense help[ ] to deprive the defendant of a fair trial.” Ratner, supra note 136, at 493. In the same way, the corporation might be considered to be violating the defendant's rights to the presumption of innocence and not to be arbitrarily arrested—the very rights Kinley and Tadaki used to illustrate that some human rights could not give rise to private duties.

201 Specifically, businesses are required to comply with “relevant international agreements, principles, objectives, responsibilities and standards with regard to the environment.” Draft Norms, supra note 2, para. 14.

202 An obligation of a party to the Montreal Protocol to reduce its production of an ozone-depleting substance by 50 percent, for example, does not necessarily imply that every corporation within that party should reduce its production by the same proportion.

203 Draft Norms, supra note 2, para. 14.

204 The best introduction to the issues remains Human Rights Approaches to Environmental Protection (Alan, E. Boyle & Michael, R. Anderson eds., 1996)Google Scholar.

205 See Allen, Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law 123 (2004)Google Scholar (“In the case of human rights, as with moral rights generally, the correlative obligation is conceived as being especially weighty…. [I]f we have a right to something, then the mere fact that depriving us of it would maximize social good is not itself a sufficient reason for doing so.”); Ignatieff, supra note 165, at 20 (“When political demands are turned into rights claims, there is a real risk that the issue at stake will become irreconcilable, since to call a claim a right is to call it nonnegotiable, at least in popular parlance.”); James, W. Nickel, Making Sense of Human Rights 17 (1987)Google Scholar (“Part of the rhetorical appeal of this concept is that having a right to something means having a strong enough claim to outweigh other claims to that thing.”).

206 Beyond Voluntarism, supra note 119, at 17 (quoting Michael, R. Anderson, Public Interest Perspectives on the Bhopal Case: Tort, Crime or Violation of Human Rights? in Public Interest Perspectives in Environmental Law 153, 167 (David, Robinson & John, Dunkley eds., 1995)Google Scholar).

207 The most detailed efforts in this respect have been a series of decisions by the European Court of Human Rights finding environmental interests to be protected by Article 8(1) of the European Convention, which states that” [e] veryone has the right to respect for his private and family life, his home and his correspondence.” See Hatton v. United Kingdom, supra note 110; Guerra v. Italy, App. No. 14967/89, 26 Eur. H.R. Rep. 357 (1998); LópezOstra v. Spain, 303-C Eur. Ct. H.R. (ser. A) 38 (1994); Powell & Rayner v. United Kingdom, 172 Eur. Ct. H.R. (ser.A)(1990).

208 Beyond Voluntarism, supra note 119, at 18 (the language of human rights “has the ability to mobilise support around proposals to improve the lives of human beings and to censure perpetrators”).

209 Reinisch, supra note 98, at 68 (“The threat of lost sales of products produced in an environmentally harmful way, by disregarding core labour standards, or otherwise having negative human rights implications has proven to be a highly effective deterrent against such activities.”).

210 See Sean, D. Murphy, Taking Multinational Corporate Codes to the Next Level, 43 Colum. J. Transnat'l L. 389 (2005)Google Scholar.

211 Amartya, Sen, Elements of a Theory of Human Rights, 32 Phil. & Pub. Aff. 315, 321 (2004)Google Scholar (stating that “pronouncements of human rights are quintessentially ethical articulations, and they are not, in particular, putative legal claims, despite considerable confusion on this point”). Sen acknowledges that moral rights have often served as the basis for legislation, and that “this is indeed an important use of human rights,” but he emphasizes that to recognize this connection “is not the same as taking the relevance of human rights to lie exclusively in determining what should ‘appropriately be made the subject of coercive legal rules.'” Id. at 327. Some of the confusion between human rights and international human rights law may arise from the seminal role of the Universal Declaration with respect to modern human rights discourse in both the moral and the legal spheres.

212 Fifteen years ago, Nigel Rodley made a cogent argument for using the term “human rights” only to describe a relationship between a person and a government, and never to describe a relationship between two private actors. Nigel, S. Rodley, Can Armed Opposition Groups Violate Human Rights? in Human Rights in Thetwenty-First Century 297 (Kathleen, E. Mahoney & Paul, Mahoney eds., 1993)Google Scholar. But whether it ever made sense to draw such a sharp distinction, it is too late to maintain it now that the term is commonly used more broadly. That does not mean, however, that human rights necessarily give rise to the same duties for other private actors as they do for governments. Still less does it mean that international human rights law should give rise to the same duties.

213 August Reinisch even describes it as “the most efficient legal tool in securing human rights vis-á-vis corporate activities.” Reinisch, supra note 98, at 89.

214 The ATCA states in its entirety that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. §1350 (2000).

215 Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). The Court cited the prohibition on piracy as the paradigmatic example of such a norm.

216 Id. at 732-33 (footnote omitted).

217 Beyond Voluntarism, supra note 119, at 3.

218 Id. at 77.

219 Vázquez, supra note 134.

220 For suggestions as to how the monitoring mechanisms should do more in this respect, see Jägers, supra note 3, at 257-58.

221 Draft Norms, supra note 2, para. 16.

222 Office of the UN High Commissioner for Human Rights, Funding and Budget, at <http://www.ohchr.org/EN/AboutUs/Pages/FundingBudget.aspx>. The UN budget for policing human rights compliance for the entire world amounts to about half the city budget of Winston-Salem, North Carolina, a town of under 200,000. City of Winston-Salem, Total Budget Summary, at <http://www.ci.winston-salem.nc.us/Home/Departments/Budget/Articles/FY2006-2007AdoptedBudget> (describing budget expenditures of about $329 million).

223 Ruggie, supra note 178, at 823.

224 Some proponents of direct corporate duties recognize these problems. See Kinley & Tadaki, supra note 178, at 998 (noting that the “lack of sufficient resources is … capable of undermining any, or all, of these proposals [to use existing human rights institutions]. Each one of them would certainly add to the demands on the already stretched resources and the overburdened agenda of the [Human Rights] Commission specifically, and the UN generally.”); see also Beyond Voluntarism, supra note 119, at 156 (acknowledging that “existing UN human rights enforcement procedures are poorly-resourced and often ineffective”).

225 Paust, supra note 85, at 802.