The obligations of States to protect and fulfil human rights

THE PUBLIC-PRIVATE DIVIDE

Human rights law requires State agents to respect, protect and fulfil human rights standards and rules established at the international, regional and national levels. 

Historically, this set of rules and the concomitant scrutiny have focused on actions directly attributable to State agents, based on their commission or acquiescence, such as killings, torture and arbitrary detention. The obligation of States to respect human rights, including women’s rights, referred to the obligation to refrain from doing anything that could violate those rights. Any wrong committed within the private sphere, without any direct intervention by State agents, was not considered a human rights violation. However, since the 1980s and 1990s, the women’s rights movement has increasingly criticized this interpretation of human rights as perpetuating violations of women’s human rights and stemming from male bias. 

It is now recognized that the obligations of States to protect and fulfil human rights clearly encompass the duty to protect women from violations committed by third parties, including in the private sphere, and to take positive steps to fulfil their human rights. The Convention on the Elimination of All Forms of Discrimination against Women covers both public and private acts. Its article 2 (e) specifically addresses the obligation of States to address discrimination against women perpetrated by any person, organization or enterprise, and its article 2 (f) concerns the modification and abolition not only of discriminatory laws and regulations, but also of customs and practices. Its article 5 (a) requires States “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”.

The Committee on the Elimination of Discrimination against Women as well as other United Nations human rights bodies and mechanisms have observed that States have obligations to address acts committed by private actors. In particular, the Committee on the Elimination of Discrimination against Women’s general recommendation No. 19 (1992) on violence against women spells out that “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights ….” Similarly, the Human Rights Committee confirmed, in its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, that States have both negative and positive obligations—to refrain from violating human rights and to protect as well as fulfil human rights, including by protecting rights holders against acts committed by private persons or entities. Under human rights law, the due diligence standard serves to determine whether the State has taken effective steps to comply with its human rights obligations, in particular the obligation to protec.

http://www.ohchr.org/Documents/Publications/HR-PUB-14-2.pdf