A broader conception of human rights is consistent with their original foundation in human dignity. International law generally is understood to be based on a mix of customary practice and consent. States are either bound to those norms that achieve the distinction of customary law or those they explicitly consent to through treaties. However, human rights law has in large measure defied these narrow categories by suggesting an additional foundation – human dignity.
Human dignity makes certain claims on all other actors, state and non-state, regardless of custom or consent. The Universal Declaration of Human Rights and the twin covenants do not merely recognize those rights considered customary or previously consented to, but those derived “from the inherent dignity of the human person.”12 As Profesor Henkin explains:
The international system, having identified contemporary human values, has adopted and declared them to be fundamental law, international law. But in a radical derogation from the axiom of “sovereignty,” that law is not based on consent: at least it does not honor or accept dissent, and it binds particular states regardless of their objection… [nor] is it based on ancient axioms, or on traditional natural law, or on Roman law; it is not based on “custom” or on state practice at all.13
This is significant insofar as the emphasis on the human person places human rights beyond the narrowness of particular treaties or at a minimum suggests a broad interpretation of these treaties and their corresponding duties. Human rights obligations linked to human dignity may be violated by a host of actors; the exclusive focus on the state must be viewed as pragmatic or contingent, rather than necessary.
Despite common perception to the contrary, international law has long contemplated duties for non-state actors. 14 Early treaties outlawing piracy and slavery were clearly directed at private parties.15 The 1948 Genocide Convention declares that “persons committing genocide … shall be punished whether they are constitutionally responsible rulers, public officials or private individuals.”16 The Nuremberg Tribunal lent strong support to this principle by trying both state actors and private individuals: "international law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the Government are criminal when done by a private individual
All of the major human rights treaties contemplate both private and state duties. As the Universal Declaration states: “The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall … promote respect for these rights and freedoms…”20 The American Declaration of the Rights and Duties of Man (as suggested by the name) is even clearer about private duties: “The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man.”21 The covenants reaffirm the obligations of individuals: "the individual, having duties to other individuals and to the community to which he[sic] belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant."22
C. Global Changes Supporting a Broader Human Rights Vision
Over the past half century, the vision of the powerful state sovereign has become increasingly anachronistic. Today’s governments are besieged by a host of outside actors over whom they have ever decreasing capacity to control.23 Rapid privatization, free trade agreements, economic integration, and the explosion of TNCs, have tremendously limited government prerogatives, particularly among the smaller, developing countries.24
No longer … can states pretend to be autonomous. The most important forces that affect people’s lives are global in scale and consequences. Even the most powerful states recognize serious global constraints on their capacity to affirm their own national interest above all else
The global changes limiting state capacities are particularly relevant to the field of ESCR.26 While civil liberties and formal political rights are generally consistent with the demands of the market place, ESCR are often at odds.27 Neo-liberal reforms have gradually whittled away at state authority over economic and social spheres. Human welfare and the environment have been increasingly left to the vagaries of the market, with governments playing almost a secondary role in trying to ensure basic levels of welfare for their populations.28 The UN Special Rapporteur on ESCR describes the changes in these terms:
The flurry of many States romantically to embrace the market as the ultimate solution to all of society’s ills, and the corresponding rush to denationalize and leave economics, politics and social matters to the whims of the private sector, although the theme of the day, will inevitably have an impact upon the full realization of economic, social, and cultural rights.29
12 Preamble of ICESCR and ICCPR. “The American states have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality," American Declaration, Intro.
13 Louis Henkin, Sibley Lecture: Human Rights and State “Sovereignty,” 25 Ga. J. Int’l & Comp. L. 31, 38 (1994).
14 For a broad discussion of the application of human rights to non-state actors, see Chapman, Andrew, Human Rights in the Private Sphere 89-133 (1993); Paust, Jordan J., The Other Side of Right: Private Duties Under Human Rights Law, 5 Harv. Human Rts. J. 51 (1992).
15 See Paust, id. at 51-58.
16 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Feb. 23, 1989) art. 4.
20 Universal Declaration of Human Rights, preamble.
21 The American Declaration, Preamble. The Declaration elaborates specific duties of the individual in articles 19-38. See comparable articles in both the African Charter on Human and Peoples’ Rights (arts. 27-29) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 17).
22 Preamble, ICCPR and ICESCR.
23 For a legal analysis of the implications of recent global changes, see Grossman, Claudio & Bradlow, Daniel Are We Being Propelled Towards a People-Centered Transnational Order?, 9 Am. U.J. Int’l L. & Pol’y 1(1993); Matthews, Jessica, The Age of Non-State Actors, Foreign Affairs, (Jan/Feb, 1997) (“The absolutes of the Westphalian system – territorially fixed states where everything of value lies within some state’s borders; a single secular authority governing each territory and representing it outside its borders; and no authority above states -- are all dissolving.”).
24 See generally, Global Dreams, Richard Barnet & John Cavanagh (1995).
26 Perhaps most strikingly in the assumption of free market reformers that short-term suffering is necessary for long-term growth, and that growth alone will provide for the general welfare. As the UN Committee on ESCR cautions, “full realization of human rights can never be achieved as a mere by-product, or fortuitous consequence, of some other developments, no matter how positive. For that reason, suggestions that the full realization of economic, social and cultural rights will be a direct consequence of, or will automatically flow from the enjoyment of civil and political rights are misplaced.” UN Doc. E/1993/22, Annex III.
27 While the positive/negative distinction between CPR and ESCR should not be exaggerated, the promotion of ESCR would seem to require a stronger state with greater resources. Moreover, the legal norms and most powerful institutions governing international relations are more amenable to CPR than ESCR.
28 Certainly, these reforms have often brought economic growth, but it is growth without any guarantees for the general welfare of the population, and just as often the poorest sectors been left even further impoverished. See UNDP, Human Development Reports, 1990 - 1996; Juan Luis Londoño, Poverty, Inequality, and Human Capital Development in Latin America, 1950-2025, (World Bank Latin American and Caribbean Studies, 1996). This is not to overlook essential factors in exacerbating poverty fully under the control of the state, such as corruption and poor planning.
29 Türk, Danilo The Realization of Economic, Social and Cultural Rights: Final Report E/CN.4/Sub.2/1992/16 ¶27 (1992).