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5. Responsibility for Human Rights

These issues of social and economic rights have put the subject of responsibility firmly on the table, but we thought it appropriate to address it at a more general level as well.

Responsibility for rights has a number of aspects. In this section we are concerned with two of them: first, responsibilities for securing the subject matter of each right; and second, responsibilities of rights-bearers themselves. A third set of responsibilities – for monitoring, investigating, and remedying rights violations – is discussed in section 6.

The UDHR enumerates rights, but it does not specify who carries the corresponding duties. The Declaration seems to assume that states are the primary bearers of responsibility. There is also a suggestion in the document that responsibility for upholding human rights may fall on individuals and entities below the level of the state, and on organizations above the level of the state. Indeed, the proclamation clause of the preamble states 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.” Moreover, Article 28 provides that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”

For some rights – such as the due process provisions in Articles 9 to 11 – it is obvious that states are the principal targets of the constraints. For the rest, the explanation for the UDHR’s openness on the question of responsibilities probably has more to do with the political resistance that would have met any attempt at explicit specification in 1947 and 1948. This would have been especially true of any attempt to specify international or nation-to-nation obligations in regard to social and economic rights. It might also have been true of social and economic rights generally, inasmuch as debate about the specification of duty-bearers would have opened up intense ideological disagreement about political economy.

While acknowledging the obstacles that would have faced any effort at specification in 1948, our task now is to expand on the reference to “every individual and every organ of society” in the preamble and on the reference to everyone as “entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” in Article 28. The rights in the Declaration should be understood as generating duties for states, international institutions, corporations, private persons, and even rights-bearing individuals themselves.

5.1 The special role of states

The role of states remains essential. Given the realities of our world – this was even more the case in 1948 – states must be regarded as the main guarantors of the rights of their own citizens. States still control the basic structure of each nation’s polity and legal system, and the overall structure of governance in each society. This is true whether we are talking about civil and political rights or social and economic rights.

States are duty-bound to the human rights of their citizens in several ways. First, states have inherent responsibility for certain institutions, like the legal system, which human rights directly constrain. Second, states also have a degree of control over other institutions and structures on which human rights impose limitations. Third, states have a greater power of enforcement against rights-violators than any other entity in society. Fourth, and conversely, states can become a major threat to human rights. Fifth, and fortunately, states also can furnish – through the division of their powers – the major safeguard against state-based threats.

The special position of states is not just a matter of effectiveness and control. States claim a form of legitimacy that distinguishes them from other entities and agencies operating, whether lawfully or unlawfully, in a society. The UDHR and the covenants aim to impose human rights-based conditions on this legitimacy.

The laws and national constitutions of states, in most instances, will be the first recourse to address any violations of human rights, and should be regarded as the ordinary mode of human rights implementation. Indeed, the human rights regime initiated by the UDHR was intended as a foundation not only for the subsequent covenants and international agreements, but also for the laws and national constitutions of individual countries.

In a globalized world, it is also the duty of each state to concern itself to a certain extent with the human rights of persons outside its borders, taking into account the following four forms of influence: first, the effect of the state’s own policies and actions on other countries; second, the impact on other countries of the way in which it participates in international institutions; third, the provision and efficacy of development aid; and fourth, the response to rights abuses in other countries, either by way of criticism and public denunciation or, in the last resort, by intervention and support for intervention.

While states have the primary responsibility for ensuring the human rights of their citizens, there are numerous examples of situations where governments no longer control substantial tracts of territory, no longer control the military or have a monopoly on force, lack legitimacy, and are unable or unwilling to provide public services. In these situations, who is responsible for the human rights of the population? This issue needs to be urgently addressed by the international community.

5.2 Other entities

The fact that one entity – like a state – has responsibility for a given right is quite compatible with other entities also having their own obligations. Rights generate waves of responsibility, and those responsibilities may fall on an array of duty-bearers.

a. Sub-national governments

Though national state responsibility is primary, the position of sub-national governments also needs to be addressed. Often the governments of local, devolved, provincial, and state entities have considerable autonomy, and they may not be entirely under the control of the national government so far as upholding rights is concerned.

b. International institutions

Global and regional institutions, including those associated with the UN (like the Security Council), the IMF, and the World Bank, should regard themselves as bound by human rights. Even if they do not have an affirmative responsibility to provide what is necessary for rights, they have a responsibility not to undermine human rights or make them more difficult to secure. Even when an organization believes itself to have a legal immunity, it is appropriate for that immunity to be waived in cases of egregious violations of human rights. The Commission believes that these responsibilities should be made explicit. The Commission also calls for international institutions to sign and ratify international human rights agreements.

c. Corporations

Since 1948, the power concentrated in global companies has reached unprecedented levels. When country gross domestic product (GDP) is compared to annual company revenues, half of the 100 largest economies in the world today are private corporations. States have a responsibility to exercise appropriate oversight over corporations operating in their jurisdictions, to ensure their compliance with human rights standards. In practice, however, many states have been unable or unwilling to act. Companies often operate in weak states where there is a profound governance gap. They have also flexed their political and economic influence to undermine state oversight, by demanding deregulation and by lobbying for business-friendly regulations that diminish the capacity of governments to promote environmental and social protection.

In light of this expansion in corporate power and the governance gap in many states, there should be a firm expectation that companies will respect human rights. Stakeholders, shareholders, employees, and constituencies including civil society, responsible investors, trade unions, and consumers are increasingly demanding that corporations attend seriously to policies and practices addressing human rights. Generational shifts in attitudes to consumption and broader access to information on company operations through new media sources are also exerting pressure on companies to comply with the human rights standards applicable to their industries. In 2011, the UN adopted the Guiding Principles on Business and Human Rights, which establishes a “protect, respect and remedy framework” that requires businesses to adhere to policies and practices that respect human rights in their day-to-day business operations. Over time, companies have also agreed to be bound by various international obligations, for example through their participation in the framework of the International Labour Organization (ILO), which is committed to dialogue and cooperation among governments, employers, and workers, and to the development of standards addressing conditions of work.

Given that the bulk of the world’s employment is in the private sector, the Commission considers that certain provisions of the UDHR, such as Article 23 on the conditions of work, should be interpreted as imposing duties on corporations. Of course, national governments have the primary responsibility for establishing and enforcing the legal frameworks within which businesses operate. But in the many situations where national governments are failing to protect their own people, it is incumbent on global corporations and their investors and financiers to develop and abide by human rights standards that extend beyond the jurisdiction of any one state.

We must also accept that the role and importance of business organizations reaches beyond conditions of work. Corporations have become important actors alongside states, and perform governance functions that transcend their roles as employers and workplace proprietors. They also play a prominent part in the communities in which they operate, and have a major impact on issues of migration, food security, the empowerment of women, and environmental sustainability. Consequently, companies have obligations in these areas, not only to respect but also to advance human rights in the states where they do business.

There are reasons to believe that the influence of large global companies will continue to multiply. This points to the need for new mechanisms to strengthen corporate compliance with human rights. Engaged citizens, stakeholders, and civil society groups have an indispensable role to play in working with corporations to develop practical and effective ways to secure human rights. Such efforts should be undertaken in collaboration with national governments, taking into account the willingness and capacity of states to protect their own people. When states fail to act, corporations and other stakeholders need to develop alternative measures to ensure that basic rights are being respected.

Thus companies need to work with key stakeholders to develop industry minimum standards on human rights, and metrics to monitor and assess compliance. Multi-stakeholder initiatives that hold businesses accountable to agreed standards through reporting and monitoring can help drive a race to the top and give consumers and investors the information they need and are now demanding to guide their purchasing and investment decisions.

Home states, which directly benefit from the economic activity generated by global companies, must take steps to ensure that companies under their jurisdiction respect human rights in their operations abroad.

d. Private persons

The Commission is attracted to the idea that individuals – ordinary men and women – should be thought of as the ultimate bearers of the duties that correspond to human rights. In the final analysis it is everyone’s responsibility to respect and look out for each other’s rights. (This does not replace the primary responsibility of states, since states are the main mechanism through which people carry out their duties in regard to human rights and the mechanism by which their duties are coordinated and made effective.)

With respect to rights that rely on fiscal resources – social and economic rights in particular – individuals have clear duties as taxpayers. More generally, citizens have negative duties not to oppose or agitate against human rights. They may also have positive duties to form social movements and NGOs that actively support and lobby for human rights. They have duties to play their part in maintaining a culture of rights in society and in the world at large. And individuals have the responsibilities of global citizenship in relation to the specific demands of human rights.

Article 29(1) of the UDHR is germane in this context. It asserts that “everyone has duties to the community in which alone the free and full development of his personality is possible.” From the perspective of global citizenship, “community” means not just the national community but also the world community, whose structures increasingly protect or deny human rights at every level: local, national, and global.

5.3 Responsibilities of rights-bearers

Finally, we emphasize again that rights-bearers themselves have responsibilities with respect to their own rights and responsibilities as rights-bearers to the rights system as a whole and to society generally.

The responsibility of rights-bearers requires us to recognize that: rights may at times be legitimately limited; there is a duty to listen to and consider any reasons given for the limitation of rights; and that the fulfilment of some rights is costly and that this may render rights not immediately achievable. In a sense, these responsibilities recognize the need for us to have a democratic dialogue about the fulfilment of rights, and a dialogue requires a commitment to both listening and engaging. We believe that if the value of dialogue on rights is recognized, the protection and fulfilment of human rights is likely to be advanced.

Some commentators argue that rights-bearers often act irresponsibly in claiming human rights protections by being over-zealous in pursuing rights campaigns or by adopting the posture of victim. In our view, such commentary risks downplaying or soft-pedalling human rights abuses or blocking serious and important interpretive debates. Human rights are designed, among other things, to protect people from the worst evils that can be inflicted on them. They are designed to facilitate a clamoring for attention for victims of abuse, even when this is uncomfortable for other members of society. We must never lose sight of this.

Sometimes the complaint is that rights are being claimed by individuals who have already shown that they are socially irresponsible or who are accused of crimes or suspected of terrorism. We believe that not the slightest concession should be made to this critique of human rights. Just as Articles 18 and 19 of the UDHR are intended, among other purposes, to protect those who hold dissident views or who believe in an unpopular creed, so certain human rights must be understood as operating for the benefit of those who have come under public suspicion of crime or other anti-social activity. We view with horror the suggestion that these protections should be diminished on the grounds of “responsibility.”

Of course, a culture of human rights should not foster a purely passive sense of entitlement. This may be even truer when we think about social and economic rights that specify and privilege certain material interests that all people have – interests in social security, in an income sufficient for “an existence worthy of human dignity,” in rest and leisure, in a certain standard of living and of health, and so on. That these rights are expressed as such in a document that – whatever else it does – imposes duties upon states should not be read as meaning that the state has the sole responsibility here. Instead, and this must be acknowledged and emphasized, the UDHR assumes that primary provision for most of these rights will be made by individuals themselves through gainful work and employment. That is the heart of Article 23. It affirms that, wherever possible, individuals have a duty to provide for themselves and for those who are dependent upon them. And in recognizing that the economy must be such as to satisfy certain conditions – adequate remuneration, justice in the conditions of work, worker organization, and holidays with pay, amongst others – the UDHR by no means retreats from the position that in this context individuals too are responsible for themselves.

Nor is any such retreat envisioned in the Declaration’s call to make provision, socially and collectively if necessary, for the well-being of the most vulnerable. Again, that does not detract from the central principle in these articles that individuals, broadly speaking, have a responsibility as well as a right to work for a living. The Commission is adamantly opposed to any critique of social and economic rights that ignores this or that contends or implies that social and economic rights foster a culture of idle entitlement.

5.4 No closed model of responsibility

It would be a mistake to develop a rigid or closed model of responsibility for rights, or to conclude that rights are of no value until responsibilities are actually specified. The advantage of specifying rights first is that this provides a basis for thinking about the duties of the state and other entities.

The Commission has judged that it is both sensible and essential to retain an open and developing sense of where responsibilities lie, since the environment in which rights have to be satisfied is constantly changing.