MODULE 9

OBLIGATIONS OF STATES AND NONSTATE ACTORS
USING MODULE 9 IN A TRAINING PROGRAM

The Purpose of Module 9

The purpose of this module is to provide an overview of the nature and extent of states’ and nonstate actors’ obligations to promote and protect ESC rights.

This module

• reviews the state’s generic obligations to respect, protect and fulfill human rights;
• considers the obligations of conduct and of result;
• analyzes states’ obligations under article 2.1 of the ICESCR;
• provides a "checklist" of steps to use to examine the extent to which a state has met its obligations with respect to ESC rights; and
• addresses the responsibilities of private parties.

The Concept of Obligations

The ICESCR and related treaties provide the individual and community with a range of guar­antees related to ESC rights.  Each of these rights carries with it corre­sponding obligations by the state.  Examining the nature and extent of states’ obligations under international and na­tional human rights standards is essential in order to understand precisely what we can and should expect from states, and what this means for how our rights can best be guaranteed.  

Let us take the right to food as an example.  In the region of Kalahandi, in the Indian State of Orissa, there have been recurring starvation deaths every other year among the families of landless laborers.  Do these starvation deaths have anything to do with human rights?  One immediate reaction could be to refer to the right to food, and say that these deaths have re­sulted from a lack of access to food and therefore are linked to nonrealization of the right to food.  Who, then, is to blame?  Could we blame it on the rains that failed or the landlord who did not employ the laborers?  Alternatively, should we also blame the neighbors who did not provide food to the starving families? 

Human rights, like all other rights, are based on a relation between two parties.  The two par­ties are the claimant of a right and the entity that has an obligation to ensure that the claim is met.  It is important to identify the beneficiaries of a right and the corresponding obligations of the entity that would meet that claim. 

How about the Kalahandi case?  Rains cannot carry obligations.  Who then has the obliga­tion to ensure the right to food?  There may have been moral responsibilities on the side of land­lords and neighbors in the village.  Moral responsibilities, however, are not enough when it comes to human rights.

Human rights standards must be guaranteed by law, which is something only states can do. This is the essence of human rights: not to establish humane ethics, but to put obligations on states for certain minimum norms of conduct vis-à-vis vulnerable persons-and all persons.

How then do we reply to the question whether the starvation deaths in Kalahandi were linked to a violation of the right to food?  We must look at the state’s obli­gations under the right to food.  Human rights are violated if the corresponding state’s obli­gations are breached.  What were the obligations incumbent on the competent Indian authorities in the situation of Kala­handi?  Such an analysis cannot be avoided if we want to make a judgment on the right to food, or any other human right.  We therefore have to take a close look at states’ obligations under human rights.

The Generic Obligations: Respect, Protect, Fulfill

Look at any human right-the right to education, the right to a fair trial or the right to be free from torture.  The very names of these rights identify the standard each recognizes: to have access to education, the opportunity for a fair trial, freedom from torture.  The standard rec­ognized by a human right describes a certain quality of life.  Such a quality of life can be called its human rights standard.  By recognizing this stan­dard, the human right recognizes first of all the idea that everyone should enjoy this stan­dard at all times and that the state has the obligation to do its best to ensure that they do.  What does this mean?

First of all, states must not destroy this standard.  State authorities must not keep people from educating themselves, they must not tolerate unfair trials, they must not torture.  An obliga­tion of this type is called an obligation to respect the human rights standard, or, in short, the "obliga­tion to respect."  Such obligations are sometimes also called negative obligations, since they tell states what they must not do-torture people, undermine educational opportu­nities, conduct unfair trials. 

Positive obligations, on the other hand, oblige states not to abstain from certain action, but to take action.  With regard to persons enjoying human rights standards, states have to prevent third parties from destroying this quality of life.  States have to ensure that children are not pre­vented from attending school (for example, by their parents).  States have to prevent judges from being bribed by third parties to conduct an unfair trial.  States have to prevent children or wives from being tortured by their fathers or husbands.  An obligation of this type is called an obligation to protect the human rights standard, or, in short, the "obligation to protect." 

There is an important question linked to positive obligations.  Are states always in a position to act according to these obligations?  Can states always prevent parents from sending their children to work and not to school?  Can states always prevent bribery of judges, or torture of wives and children?  Obviously not.  States can make such acts of third parties punishable, however, or take some other precautions to protect the human rights standard in question.  We therefore need to investigate some principles to determine in a given situation what must reasonably be expected of the state in terms of protection.

Another positive states’ obligation is the "obligation to fulfill" the human rights standards.  This state obligation requires appropria­te measures to be taken to make sure that the human rights standard is attained.  States have to provide reme­dies to address a faulty trial.  States have to guarantee access to education (public or private).  States have to provide for inter­vention in situations of torture to stop it.  This does not mean that states necessarily have to render these fulfillment services themselves.  Education need not be provided by public schools.  States, however, have to make the resources available, if necessa­ry, and have to provide legal guarantees for those groups otherwise deprived of a fair trial, of education, or of other basic standards recognized by human rights.  Therefo­re, states ultimately have to be the providers of last resort (as far as the human rights stan­dards are concerned) and maintain a corresponding infrastructure. 

The main characteristics of states’ obligations could be summarized as: States have to re­spect, protect and fulfill the related human rights standard.  These obligations are called the generic obligations.

Generic Obligations
Example-Right to Adequate Food

Nondiscrimination

A fundamental aspect of states’ obligations is that of nondiscrimination.  The principle of nondiscrimi­nation in the implementation and enforcement of human rights emphasizes the fact that everyone is entitled to the enjoyment of human rights irrespec­ti­ve of his or her color, gender, religion, ethnic, social or national origin, politi­cal or other opinion, property, birth or other status.  The principle of nondiscrimi­na­tion prohibits distinctions, exclu­sions, restric­tions and limitations in the execution of a state’s obligations that are not based on the nature of the obligation. 

States are obligated to

• eliminate discrimination by abolishing without delay any discriminatory laws or regula­tions; and
• eliminate discrimination by refraining from discri­minato­ry practices in implementing laws, regula­tions and programs.

The concept of "progressive realization" (see below) is not applicable to the nondiscrimina­tion and equality clauses.  The obligation is to ensure these immediately, not progres­sively.  The nondiscrimination principle for women is particularly emphasized in article 3 of the ICESCR to ensure the equality of women and men in the enjoyment of human rights.  This obligation includes affirmative action to eliminate conditions that contribute to discrimination.

The CESCR has followed the practice that discrimination is not restricted to those grounds specified in the Covenant and includes discrimination based on age, health status or disabil­ity.2 The nondiscriminatory clause of the Covenant includes discriminatory acts of both pub­lic authorities and private individuals.

Obligation of Conduct and Obligation of Result

Returning to the question of starvation in Kalahandi, which state obligation was breached in that case?  A facile answer could be given: Un­der the human right to food, Indian authorities were obliged to prevent hunger and malnutri­tion in Kalahandi, and since they failed to do so, India violated the right to food.  This argument, however, is not only facile; it is also false.  No state in the world can be obliged to achieve some-thing (the ab­sence of hunger and mal­nutrition) that it may not be in a position to achieve-for whatever reasons.  In order to derive a fair judgment as to whether India violated the right to food in this case, it must be determined whether the Indian federal and state governments were in a position to prevent hunger and malnutrition in Kalahandi. 

An obligation that says, "The state has to achieve result X," is sometimes called an "obliga­tion of result."  The obligation of result means the obligation to attain a par­ticular outcome through active implementation of policies and programs.  The simple fact that result X was not achieved cannot necessarily be blamed on the state in question, and therefore cannot always be called a violation of human rights.  In fact, some obligations of result may be mere programmatic statements that can be politically important for the human right, but do not help us determine a violation. 

What we would really like to see are obligations of the following type: "The state has to carry out this action," or "The state has to abstain from that action."  These obligations are called "obligations of conduct."  The obligation of conduct means that a state has to under­take a specific step (act or omission).  For example, enacting a law prohibiting forced labor is an action.  The action or conduct must be rather specific.  If the action is as unspecific as "achieving result X," the obligation of conduct is a mere obligation of result. 

An analysis of the Kalahandi situation would obviously start from the observation that a cer­tain obligation of India under the right to food (namely, access to food for the poor in Kala­handi) was not achieved.  In order to undertake a human rights analysis, however, we have to consider the obligations of conduct as specifically as possible.  To arrive at a human rights verdict, we have to discover specific acts not taken by state authorities, although these acts were obligatory under the right.  These steps could have been reasonably expected to be taken, and failure to do so to have caused-or not prevented-the starvation deaths.  Did there exist state programs for distribution of food in emergency situations?  If not, why not?  If yes, why were the victims not reached by these programs?  Why were the victims so vul­nerable in the first place?  Why did they not have enough access to land and water?  Was the agrarian reform program implemented?  Did there exist food-for-work programs?  Did the local authorities perhaps conspire with the landlords to keep the landless away from the few water sources that remained?  Evidence has to be collected and eventually judged-just as with any other human rights violation. 

The concepts of obligation of conduct and obligation of result provide an effective tool for monitoring the implementation of ESC rights. (See Module 19 for more discussion on moni­toring.)

States’ Obligation under Article 2(1) of the ICESCR

The obligation of states parties under the ICESCR is contained in article 2.1. 

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

At first glance, this obligation seems rather weak.  A closer investigation demonstrates, how­ever, that this is not the case.  In fact, the obligation is as strong as possible, and nothing stronger is necessary. 

Many elements of this obligation need explanation.  What is meant by the "full realization" of rights?  What is the role of the "maximum resources" provision?  What is "progressive achievement"?  Which international obligations are implied by this article?

The full realization of rights

What is the role of the state in ensuring that the beneficiaries realize their human rights? What must states do to enable a vulnerable person to force them to meet their obligations?  The answer is that the state must provide vulnerable people with tools (implements), so that each person can use these tools to make a state meet its generic obligations.  This activity of states is called implementation. 

In the case of Kalahandi the right to food is realized not by a change of weather that saves the crops, and thereby provides the starving workers with a job and pay at the last minute, nor by some aid organization distributing food packages.  The right to food is realized by the victims and their support groups, for example, if they get a remedy for the malfunctioning of a ration shop that should have had guaranteed supplies of rice, or if they get into a food-for-work program.  Both the existence of ration shops, food subsidies or transfers in case of need, and the means for the beneficiaries to address malfunctioning of such programs are part and par­cel of the state’s implementation under the right to food.  States have to strive to ensure that there are no gaps in the programs to meet the generic obligations to protect or fulfill, which also include the obligation to ensure that the victims find an effective remedy.  This then would be a situation of "full implementation."  Moreover, states must see to it that these pro­grams and the remedies for their malfunctioning are known to the people and are accessible to them.  Knowledge is perhaps the most important of all tools.  On the basis of full imple­mentation there is hope that a situation of full realization (for example, of the right to food) can be achieved.

We should also note that the nature of the steps to be taken should not be confused with a particular form of government.  The CESCR in its General Comment 3 has clarified this as follows:

The undertaking to take steps neither requires nor precludes any particular form of government or economic system . . . provided that it is democratic and that all human rights are thereby respected.  Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predi­cated exclusively upon the need for, or the desirability of, a socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any other particular approach.  In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems.

The "maximum of available resources" provision

Nobody can be obliged to do something that is beyond his or her capaci­ty; an obligation is only incumbent upon a state if the state has the resources and in­frastruc­tu­re to meet this obli­gation.  Whether a positive obligation is binding may therefo­re depend on the resour­ces availa­ble.  States quite often try to defend themselves against allega­tions of brea­ching a cer­tain positive obligation by claiming that this obligation was not binding on them due to lack of resour­ces.

A judgment on such claims requires an analysis of the resources available.  The avail­ability of resources refers to the resources of society and not only the resources within the current budget.  It is true for most states that the executive is bound to the budget cleared by the leg­islature.  It is equally true that the legislature, as much as the executive, is part of the state (separation of powers) and therefore must observe human rights obligations and the maxi­mum resources provision.  If a legislatu­re denies a government the budget necessary to meet the state’s obligations, although these resources are available in society, this has to be con­sidered a violation of human rights by the legislature.  

What does this mean in a concrete situation?  How can we deter­mine whether states use the maximum resources available?  Basically, this has to be approa­ched on a case-by-case basis.  Situations when maximum available resources have not been used for the implementation of human rights are very often quite obvious.  If states claim that some obligations are not binding due to lack of resources, the burden of proof should be with the state making such claims. 

The CESCR has acknowledged the importance of resources in fulfilling human rights stan­dards, but it does not consider that resource availability is an escape clause.  For example, it has stated that "in cases where significant numbers of people live in poverty and hunger, it is for the State to show that its failure to provide for the persons concerned was beyond its con­trol."3

The CESCR developed the idea of minimum core obligations to refute the argu­ment that lack of resources hinders fulfillment of obligations.  The committee has observed that every state has a minimum core obligation to satisfy minimum essential levels of each of the rights in the Covenant.  It has clarified in General Comment 3 that a state party

in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is prima facie failing to discharge its obligations under the Covenant . . . In order for a State Party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources, it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

The CESCR has made it clear that "even where the available resources are demon­strably in­adequate, the obligation remains for a State Party to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances."4  In addition, the committee has stated that, "even in times of severe resource constraints . . . vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted pro­grammes."5

The progressive achievement of rights

It is normally assumed that because resources are required for the realization of ESC rights, they are incapable of immediate implementation.  However, the CESCR has stated: 

the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaning­ful content.  It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realiza­tion of economic, social and cultural rights.  On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant, which is to establish clear obligations for States Parties in respect of the full realiza­tion of the rights in question.  It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.6

The CESCR has made it clear that "progres­sive realization" is not an escape clause.  It has also concluded that "progressive realiza­tion" includes not only con­tinuous improve­ment but also the obligation to ensure that there are no regressive devel­opments.  The committee has stated that "any deliberately ret­rogressive measures . . . would require the most careful consideration and would need to be fully justified by reference to the totality of the rights pro­vided for in the Covenant and in the context of the full use of the maximum of available resources."7

International obligations

Article 2(1) of ICESCR explicitly mentions "international assistance and co-operation."  This raises the issue of in­ternational obligations for human rights.  In the present context of globalization in which the role of the state is in­creasingly reduced, international obli­gations assume even more importance.  Some nation-states find it increas­ingly difficult to meet their obligations to protect and fulfill ESC rights standards.  One of the reasons for that is the fact that some of the most im­portant "third parties" (like transnational business or finance) operate outside the regulatory frameworks of national economies.  The community of states has so far not managed to regulate the globalized economy with a framework of ESC rights.  The regulation currently taking place through international trea­ties and institution-building is largely geared to the in­terests of those same third parties that need to be regulated. 

The CESCR in its General Comments has examined some aspects of international assistance and cooperation under article 2(1).  It has clarified that in "accor­dance with articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, interna­tional cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all states.  It is particularly incumbent upon those states which are in a position to assist others in this regard."8

Regarding promotion of respect for human rights in the context of development programs, the committee has stated that two general principles are important.   

The first is that the two sets of human rights are indivisible and interdependent.  This means that the efforts to promote one set of rights should also take full account of the other . . . In negative terms, this means that the international agencies should scrupu­lously avoid involvement in projects which, for example, involve the use of forced labour . . . or involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation9. . . The second principle is that development cooperation activities do not automatically contribute to the promo­tion of respect for economic, social and cultural rights.  Many activities undertaken in the name of "devel­opment" have subsequently been recognized as ill-conceived and even counter-productive in human rights terms.  In order to reduce the incidence of such problems, the whole range of issues dealt with in the Covenant should be given specific and careful consid­eration.10

Conclusions on States’ Obligations

To sum up: What are the steps involved in applying a rights-based perspective to determine the nonenjoyment of ESC rights?  Since human rights violations are defined as breaches of related state obligations, our human rights analysis basically must identify and understand what obligations are involved.. 

The following is a suggested model of steps for applying a human rights approach to exam­ine the violation of ESC rights.

• The first step is to look at the specific human rights standard.  Its absence or a severe threat to the standard may trigger an investigation of the related state obligations.  In Kalahandi, there is evidence of starvation-the absence of access to food.

• The second step is to ask why these people are starving.  What has been the role of the authorities in all of this?  Has there been some immediate failure that is responsible for the starvation deaths?

• In the third step, we try to determine whether the obligations in questions are respect-bound, protection-bound or fulfillment-bound.  Have police driven these people from their land (obligation to respect)?  Have the landlords deprived them of their land, water or harvest?  Could the state authorities have prevented it (obligation to protect)?  Did public distribu­tion systems or food-for-work programs exist for the vulnerable group?  If so, why did the starving people not access them?  Were they not accessible (obligation to fulfill)?

• In the fourth step, if we suspect a breach of protection-bound or fulfillment-bound obli­gations, we need to check the obligations to see whether this obligation was incum­bent on Kalahandi.  For example, we should examine why there was no public distribu­tion system.  Was it because of lack of resources?  Was it justified or not?

If there was not enough money available to help the Kalahandi victims, perhaps there was enough money to help other peasants in a similar situation elsewhere in the region.  We should examine whether discrimination exists.  For example, are the Kalahandi victims dalits (untouchables) or tribals?

The burden of proof for lack of funds rests on the state of India.  However, our analysis should nonetheless develop a clear understanding of the general situation of the avail­ability of funds and infrastructure.  Were there infrastructural shortcomings in establish­ing programs to fulfill people’s access to food that could not have been addressed by the state in a reasonable period of time?

• If not, we have to determine, in the fifth step, who in the state’s service failed to make the existing programs and systems work according to the state’s obligations?

Thus, we may be able to identify on the basis of sufficient evidence a breach of an obligation under the right to food.  We should be able to identify the responsible authority or person.  Such an analysis of obligations is necessary before drawing conclusions on the extent of en­joyment or nonenjoyment of ESC rights. 

Obligations of Nonstate Actors

An orientation that is heavily state-centered fails to take into adequate account the changing environment, at both the national and international levels, where nonstate actors-such as corporations, fundamentalist groups and armed opposition groups-are having an increasing impact on the enjoyment of ESC rights.  The history of human rights law indicates that hu­man rights were intended to pro­tect the individual against excessive use of state power.  The key conventions and treaties make explicit that only states hold human rights obligations.  The ICESCR, for example, states, "Each State Party to the present Covenant undertakes to take steps . . . " International human rights law thus does not oblige private actors (whether corporations or others) to act in particular ways, and therefore they cannot be brought to ac­count directly through human rights law.  How then is it possible for activists to address the negative impact on ESC rights of the activities of such private parties?

It is important to remember that the obligations of nonstate actors under national law may not be the same as they are under international law.  Section 8 of the South African Constitution, for example, places specific human rights obligations on private parties.  Possibilities avail­able under national law to hold nonstate actors to account must thus be explored. 

There are also exceptions to the general rule that international human rights law is not appli­cable to private actors:  

1.    While corporations are generally considered nonstate actors, state-owned corporations are considered to be part of the state.  They and their employees are therefore under the same human rights obligations as the state.  The criteria for determining when a company is a part of the state depend on the particular jurisdiction in question. 

2.    In some states such as India, the Supreme Court has placed human rights obliga­tions upon nonstate actors.  In one case, for example, dealing with whether doctors could deny treatment to patients, the court held that the right to life meant every doctor, including those not working for the state, "had a professional obligation to extend his service with due expertise for protecting life."11 And perhaps more pertinent, in a case relating to the prevention of occupational disease, a court decided it could

 . . . give appropriate directions to the employer, be it the state or its undertaking or private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people.12

3.      There are certain treaties-like the Genocide Convention and the treaty setting up the new International Criminal Court-that do place human rights obligations on individuals.  In a recent case in the United States, a district court held that any private individual vio­lated human rights law by "participation in the slave trade."  This judgment (currently on appeal) confirmed that the US company, Unocal, could be held as a private corporation to have violated human rights law through its forced labor practices in Burma.13  (See box on the next page for more details on this case).

While the general rule thus is that nonstate actors (including companies) cannot commit hu­man rights violations, human rights law does oblige states to regulate the conduct of nongov­ernmental actors, including corporations, to ensure they do not commit human rights abuses.  This is part of the obligation to protect, discussed in the first part of this module.

In the context of civil and political rights, this obligation, for example, requires the state to establish an effective police force and criminal justice system.  If the state allows violence against individuals to be committed with impunity, then it may have violated its obligations to ensure the right to life.  The state is not being held responsible for the acts of the nongov­ernmental actor, but for failing to take steps to prevent it from violating the rights of others. 

The state’s obligation in respect of nongovernmental actors has most often been discussed in the human rights literature on the state’s failure to investigate and prosecute men who com­mit violence against women.  One legal commentator makes the following point:

A reason given . . . in considering atrocities to women not human rights violations, politically or legally, is that they do not involve acts by states.  They happen between nonstate actors, in civil society, unconscious and unorganised and unsystematic and undirected and unplanned.  They do not happen by virtue of state policy . . .

The abuse of women does not pretend to be official.  But the cover up, the legitimisa­tion and the legalisation of the abuse, is.  It is done with official impunity and legalised disregard.  The abuse is systematic and known, the disregard is official and organised, and the effective Governmental tolerance is a matter of policy . . . We need to look at unenforced laws; those that exist but nothing is ever done with them, such as the law against battering . . . 14

This analysis is key to considering how the state can violate civil and political rights obliga­tions-particularly in relation to the right to life-in the context of the activities of other nonstate actors.

The Inter-American Court of Human Rights has considered the extent of the state’s obliga­tion with respect to violence committed by nongovernmental actors, which could include corporations.  The court stated in the Velasquez Rodriguez case (which has persuasive authority in other jurisdictions):

[The obligation to ensure the free and full exercise of Convention rights] implies the duty of the States parties to organise the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of ju­ridically ensuring the free and full enjoyment of human rights.  As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognised by the Convention and, moreover, if possible, attempt to restore the rights violated and provide compensation as warranted for damages resulting from the violation . . .

An illegal act which violates human rights and which is initially not directly imput­able to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to pre­vent the violation or to respond to it as required by the Convention.

In certain circumstances, it may be difficult to investigate acts that violate an individ­ual’s rights.  The duty to investigate, like the duty to prevent, is not breached because the investigation does not produce a satisfactory result.  Nevertheless, it must be un­dertaken in a serious manner . . . where the acts of private parties are aided in a sense by the government, thereby making the State responsible on the international place.16

More recently, the European Court of Human Rights has ruled on the extent of the state’s obligation in relation to protecting the right to life.  Osman 1 was a case where a teacher had formed a disturbing attachment to a pupil in his school, which resulted in the teacher’s killing the father of the pupil.  The question before the Court was whether the state had done enough in relation to its obligations under the right to life.  The Court held:

It is common ground that the state’s obligations . . . extend beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement ma­chinery for the prevention and sanctioning of breaches of such provisions . . .

[W]here there is an allegation that the authorities have violated their positive obliga­tion to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.17

Though this involves the right to life (a civil and political right), its violation may arise in the context of ESC rights.  The interconnection of the two is never more apparent than in rela­tion to corporate activities.  The corporate deprivation of the right to life, for example, takes place when a person is trying to exercise his right to safe working conditions (ICESCR, art. 7) or right to environmental health (ICESCR, art.12).

The state’s obligation to protect civil and political rights also applies to its obligations in re­spect of ESC rights.  The CESCR accepts that state responsibility extends not only to the acts or agents of the state, but also to nongovernmental actors over whom the state has or should have control.  In 1993 the committee, for example, made this comment in relation to the im­plications of fatwahs (religious edicts) on creative freedom:

While appreciating the fatwahs are issued by the religious authorities and not by the State organizations per se, the question of State responsibility clearly arises in cir­cumstances in which the State does not take whatever measures are available to it to remove clear threats to the rights applicable in Iran in consequence of its ratifica­tion of the Covenant.18

The application to the actions of private actors of this state "obligation to protect" is dis­cussed in greater detail in Module 25 on corporations.

CESCR’s General Comment 3, The nature of States parties’ obligations, follows this module.

Authors: The author of the first part of this module, on states obligations, is Rolf Künne­mann.  The primary author of the second part, on nonstate actors, is David Bergman.

USING MODULE 9 IN A TRAINING PROGRAM

NOTES