4. When must the State intervene to protect human rights? Flashcards
Is the duty of States to protect human rights by intervening between private actors an obligation of means or result?
The duty to protect is an obligation of means as it is not absolute ie. the State cannot be expected to control everything. The duty to protect must be reasonably understood to mean that the State needs to take any measures that it can be reasonably expected to adopt to prevent the violation from occurring.
What are the constraints to protecting the rights of private actors?
- budget
- individual freedoms
- conflicting human rights
Why is it more difficult for a State to defend itself for not having intervened in the case of a transnational corporation as opposed to a violation occurring within a family?
Because of the State’s obligation to adhere to the right to respect private and family life
Can a State be held responsible for the actions of a State official or State entity even if that official or entity exceeds their authority or contravenes instructions?
Yes. The conduct of an organ or person empowered to exercise elements of governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity even if it exceeds its authority or contravenes instructions.
For a State to be held accountable for the actions of private individuals resulting in human rights abuses, what conditions must be met?
The State was expected to do more
The expectation was reasonable
The State was in a position to do better - this may include budgetary considerations
In Pretty v UK 2002 which was a Euthanasia case where the defendant was arguing that assisted suicide was a right under Article 2 (ECHR - right to life), Art 3 (prohibition of inhuman and degrading punishment/treatment) and Art 8 (right to privacy). The Court found that interference by the State in the form of disallowing assisted suicide was justified. What was the Court’s argument?
That a right to life could not be conferred as a right to assisted dying or the right for an individual to choose death over life
That section 2 was intended to safeguard life and protect the vulnerable and that clear risks of abuse would ensue if assisted dying was made legal.
That the State is entitled to intervene to protect the rights of individuals where there are strong policy reasons to do so
In Younger v UK (2003), the government is accused of failing to protect the right to life when a prisoner commits suicide in his cell. The applicant argued that had the authorities ensured that the prisoner was seen by a doctor or nurse the suicide may have been prevented. The prisoner had confided to his solicitor that he was a heroin user and was just beginning to experience withdrawal symptoms. The Court ruled in favour of the government. What was the Court’s argument?
That the officials could not have reasonably foreseen from the prisoner’s action or behaviour that the prisoner was in real or immediate risk of suicide
That even if the prisoner had been seen by a medical practitioner, it could not be demonstrated that there was a real possibility that this interaction would have alerted authorities to a real and immediate risk of suicide that could then have been prevented
What defence may a State use for not adequately intervening to protect a human rights violation by a private individual?
That it would have placed a disproportionate burden on the State
That it would have imposed a disproportionate restriction on the rights of others
Where the violating action is not an action that the State could not have reasonably foreseen
Where State interference would likely not have altered the outcome
What conditions must be met for an employer to impose restrictions on the rights of employees?
Wretlund v Sweden 2004. In a case where an employee in a nuclear plant is forced to undergo drug tests, the Court declares that by agreeing to take a position in a nuclear plant the applicant has accepted certain restrictions to his right to private life. On what basis did the Court argue that this interference can be considered necessary?
A company may impose restrictions provided a) the employee has agreed to those restrictions and
b) the company has legitimate reasons for imposing the restriction in question
On the basis that the drug test was required to fulfil the legitimate aim of public safety
That in undertaking employment with a nuclear plant, the individual had accepted certain restrictions to his rights
There is a tendency for international human rights courts, where human rights happen to collide ie. be in conflict, to defer to the assessment made by the States and allow them a broad margin of appreciation. (eg. Odievre v France - an adopted person seeks to find out the identity of her birth parents conflicting with the mothers right to remain anonymous) What does this mean?
The international court is leaving it to the State to determine the best course of action.
Under what circumstances might the conduct of a transnational corporation be attributable to a State?
where the conduct of the corporation is attributable to the State or
where the State failed to adequately discharge its obligations to protect human rights by regulating the corporations conduct
What is the principle of practical concordance?
The principle of practical concordance, suggested by Hesse, looks for a compromise between the rights in conflict by respecting each of the rights and optimising one against the other, rather than by attempting to balance rights which results in sacrificing one right against the other.
The Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council on 16 June 2011, outlines the responsibilities of transnationals with respect to human rights obligations. Are these binding?
No. They are based on a duty to ‘do no harm’ and act with due diligence to prevent human rights abuses. Discussions have been launched within the Human Rights Council on new legally binding instruments for transnational corporations and other business enterprises.
