Human Rights Obligations

Three levels of obligations

To respect, to protect, and to fulfil human rights

Absolute Rights vs. Restrictable Rights

State duties to respect rights distinguish between absolute rights that prohibit all interference and limitable rights that permit restrictions only when legally prescribed, objectives are legitimate, and proportionate (cannot go beyond what is necessary)

Shue Theory of Tripartite Duties

conceptualized the duty to aid as a duty of recovery owed specifically to victims whose rights suffered prior failures of respect or protection.

• “there are no distinctions between rights. The useful distinctions are among duties, and there are no one-to-one pairings between kinds of duties and kinds of rights.”

Shues state duties to people

I. To avoid depriving.

II. To protect from deprivation (1) by enforcing duty (I) and (2) by designing institutions that avoid the creation of strong incentives to violate duty

III. To aid the deprived (1) who are one's special responsibility; (2) who are victims or social failures in the performance of duties (I) (II-(l)), and (II-(2)); and (3) who are victims of natural disasters.

Maastricht Guidelines Framework

Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and fulfil.

Maastricht Guidelines Defintions of Obligations

1. obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights

2. obligation to protect requires States to prevent violations of such rights by third parties

3. obligation to fulfil requires tates to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights

Example of The Right to Adequate Food (Article 2) with three levels of obligations

The right to food requires governments to respect existing access (no measures to prevent access), protect people from private interference. Fulfilling this right means facilitating access and directly providing when necessary

• While some actions must be taken right away, achieving full food security requires ongoing progress over time.

• Failing to protect people from minimum essential level reuirewd to be free of hunger is a legal violation unless a government proves it every effort was made (article 2.1a). A state claiming had burden of proof and unsuccessfully asked for international aid.

• Violations of right can be through direct action or because state failed to sufficiently regulate bodies in control

• All members of society have responsibility to realize the right to food

Eide's Four Functional Tiers of State Duty

four functional tiers of obligations: Primary level: respecting individual self-sufficiency, Seoncdary level: protecting against aggressive market forces, Tertiray level: promote/facilitating opportunities for rights to be enjoyed, and directly fulfilling basic needs for those who otherwise couldn’t.

Limitations of Triparite Typology

argue it remains static because the landscape of private v. government actors is blurred, as well as issue of justiciability.

Resource Allocation in Poverty Strategies

Although deep poverty cannot be eliminated immediately and resources may be limited, governments are still legally obligated to take active steps toward realizing human rights. They must use the maximum available resources to continuously improve living conditions and guarantee rights over time.

Positive Obligations and State Omissions

Once a situation falls under a state's jurisdiction, the government is legally responsible for its own actions as well as its failures to act. When a state fails to protect individuals from rights violations committed by private actors or non-state entities, its omission constitutes an international legal violation

UN Measures to Prevent Forced Disappearances

Because families can rarely prove direct state involvement when a loved one disappears, human rights bodies established a state duty to prevent forced disappearances. Under General Comment No. 6, states must implement effective preventative measures and maintain thorough investigation procedures to protect the right to life.

Positive v. Negative Obligation

Positive obligations refer to the duties of states to actively protect and fulfill human rights, while negative obligations require states to refrain from actions that violate those rights.

Due Diligence and State Responsibility Under ICCPR

While the International Covenant on Civil and Political Rights does not directly govern private individuals, states must actively protect citizens from third-party abuses. A government violates its legal obligations if it fails to exercise due diligence to prevent, investigate, punish, or provide remedies for harm caused by private persons or corporate entities.

Ex: Governments are obligated to conduct prompt and impartial investigations whenever acts of torture, cruelty, or degrading treatment occur within their borders, even if committed by non-state actors.

State Duties Under Articles 1(1) and 2 of the ACHR

Article 1(1) of the American Convention obligates states to both respect and ensure human rights without discrimination, while Article 2 requires passing supportive laws. However, the broader duty to fully ensure rights goes far beyond merely enacting legal regulations.

Policy-Making for Human Rights Fulfillment

The obligation to fulfill requires states to create active policies specifically aimed at advancing human rights over time. Rather than just avoiding violations, governments must integrate human rights into all laws, budgets, and administrative decisions.

Progressive Realization Implications

1. Time Dimensions: Governments are allowed to set target dates and benchmarks.

2. Setting Priorities and consider tradeoffs in choosing to focus on one right over the other

• Human Rights Standards in Prioritization: While policymaking requires trade-offs, human rights rules prevent governments from delaying effort or relaxing their commitments. Any prioritization or budget choice made by a state must strictly conform to human rights principles.

• Immediate Actions for Expeditious Progress: When resource shortages prevent immediate realization of a right, governments must still start taking action right away. States are legally bound to move as quickly and effectively as possible toward full fulfillment.

• Efficient Resource Reallocation: Governments can achieve rapid human rights progress even with limited budgets by spending existing funds more efficiently. This requires reducing wasteful spending and redirecting money away from activities that mainly benefit the wealthy.

• Time-Bound Plans for Action: If fulfilling a right relies on expanding resources over time, the state must immediately create a clear, time-bound action plan. This plan must explicitly detail when and how the government will achieve full rights realization.

• Resource Trade-Offs and Incremental Growth: As new resources become available over time, states must direct those additional funds to rights that were previously underfunded. Governments should never cut funding from existing social services if doing so leads to a retrogressive decline in human rights.

• Non-Negotiable Core Obligations: Regardless of resource constraints, states must immediately fulfill core minimum obligations, such as ensuring no one starves. Core obligations are non-negotiable legal limits, meaning governments cannot make financial trade-offs that compromise basic human survival.

  
  

Two characteristics of the obligation to fulfil

1. Dynamic: since it aims towards the full realization of the right, it is necessarily open-ended and implemented progressively.

2. implications of the obligation are primarily procedural: what is required from States is that they set up procedures which will monitor the fulfilment of the right; that they adopt action plans and that they ensure, through such devices, that steps are being taken which develop the right further, making it more effective - available, accessible, acceptable, and adaptable to changing needs