2 States, Non-State Actors and Human Rights
2.3 Horizontal Effects of Human Rights
2.3.3 Horizontal Effects Without State Involvement
The horizontal effect of human rights concerns the ability of human rights to have effect in relations between individuals.147 Even the most core human rights documents have expected that the realisation of human rights will denote their enforcement on a horizontal level. The Universal Declaration of Human Rights (from here UDHR) acts an example and the backdrop to all human rights instruments that succeeded it in years to come. The UDHR sets ‘a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction’.148 The UDHR is a non-binding instrument, but can be argued to have gained a juridical role and could even be considered to be customary international law. The basic
143 Rick Lawson, ‘Out of Control. State Responsibility and Human Rights: Will the ILC’s Definition of the “Act of State” Meet the Challenges of the 21st Century?’ in Monique Castermans-Holleman, Fried van Hoof and Jacqueline Smith (eds), The Role of the Nation-State in the 21st Century: Human Rights, International Organizations and Foreign Policy Essays In Honour Of Peter Baehr (Brill Publishers 1998) 115.
144 European Court of Human rights, Costello-Roberts v. United Kingdom (25 March 1993), 26.
145 ibid 27.
146 European, Court of Human Rights, Waite and Kennedy v. Germany (18 February 1999).
147 Pariotti (n 105) 142.
148 UDHR (n 30) 1.
theoretical obligations of non-state actors can even hence be deducted from the UDHR.
The term “organs of society” goes beyond the notion of state and thus includes non-state actors. Some scholars have asserted that ‘every individual and every organ of society’ includes companies, as it does not exclude any actors from its applicability.149 States are not able to limit human rights to only relations between state and individual, but must also accept their existence between private actors.
The UDHR could be viewed to include a positive obligation of companies to not interfere with the rights it declares.150 When states are demanded to ensure that the human rights of all individuals are not violated, they are also compelled to ensure that a private actor does not commit such violations.151
International human rights treaties and instruments are written directly for states, but they do not restrict obligations only to states. For example, the Genocide Convention clearly notes that genocide is punished even when the offenders are private individuals.152 The International Convention on the Elimination of All Forms of Discrimination Against Women requires states to take all appropriate measures to eliminate discrimination against women by any enterprise.153 Article 3 of the Geneva Conventions binds all members, including non-state actors, in an armed conflict. Both the ICCPR and the International Covenant Economic, Social and Cultural Rights impose horizontal duties for private actors to ‘strive for the promotion and observance of the rights recognized in the present Covenant’ and prohibit interpretations limiting the enjoyment of protected rights by ‘any State, group or person’.154 CESCR has noted that even though only states are parties to the Covenant, ‘all members of society’, which includes in their words the private business sector, ‘have responsibilities regarding the realization of the right to
149 Louis Henkin, ‘The Universal Declaration at 50 and the Challenge of Global Markets’ (1999) 25 Brooklyn Journal of International Law 17, 25; Lucien J Dhooge, ‘Human Rights for Transnational Corporations’
(2015) 16 Journal of Transnational Law and Policy 197, 209; Anita Ramasastry, ‘Corporate Complicity : From Nuremberg to Rangoon ’ An Examination of Forced Labor Cases and Their Impact Multinational Corporations’ (2002) 20 Berkeley Journal of International Law 91, 96; David Weissbrodt and Muria Kruger,
‘Human Rights Responsibilities of Businesses as Non-State Actors’ in Philip Alston (ed), Non-State Actors and Human Rights 2 (Oxford University Press 2005) 330; Kinley David and Tadaki Junko, ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law’ (2003) 44 Virginia Journal of International Law 931; 948; Jordan J Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) 35 Vanderbilt Journal of Transnational Law 801, 812; Peter T Muchlinski, ‘Human Rights and Multinationationals: Is There a Problem?’ (2001) 77 International Affairs 31, 40; David Weissbrodt,
‘Business and Human Rights’ (2005) 74 University of Cincinnati Law Review 55, 61; David Kinley, ‘Human Rights as Legally Binding or Merely Relevant?’ in Stephen Bottomley and David Kinley (eds), Commercial Law and Human Rights (Dartmouth Publishing Company 2002) 38.
150 Stephens (n 8) 77; Henkin (n 149) 25.
151 August Reinisch, ‘The Changing International Legal Framework for Dealing with Non-State Actors’ in Philip Alston (ed), NonState Actors and Human Rights (Oxford University Press 2005) 79.
152 Convention on the Prevention and Punishment of the Crime of Genocide, A/RES/260 (1948) 31.
153 Convention on the Elimination of All Forms of Discrimination against Women (n 115) 2.
154 International Covenant on Economic, Social and Cultural Rights, Treaty Series, vol. 993 (1966) 5(1).
health’.155 Similarly, the CESCR notes that the individual’s right to food of gives rise to responsibilities for private actors.156 Certain horizontal norms exist in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Non-Applicability of Statutory Limitations to War Crimes. All these international treaties directly regulate horizontal relations.
Obviously when obligations are directly assigned to private actors, they can also be prosecuted for infringements of those responsibilities. In addition, the OECD Bribery Convention clearly notes non-state actors are directly regulated under its provisions.157 Article 2 states ‘each Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official’.158
155 General Comment No. 14 (n 125) 42.
156 Committee on Economic and Social and Cultural Rights, General Comment No. 12: The Right to Adequate Food (Art. 11), E/C.12/1999/5 (1999) E/C.12/1999/5).
157 Ratner (n 9) 482; Weissbrodt and Kruger (n 149) 333.
158 OECD Bribery Convetion (n 121) 2.