Horizontal Human Rights Law

It may seem relatively obvious why duties owed by individuals to the state, of the type that were proposed for the Universal Declaration of Human Rights, are problematic: they can be used by states to limit its duties to individuals and thus limit the scope of their human rights. But what about the duties each of us owe to one another to respect human rights? These correlative duties, running horizontally between individuals, seem more likely to further human rights than to undermine them, don’t they?

At a moral level, it’s easy to argue that each of us has obligations with respect to others’ human rights, although it can be difficult to specify the content of those obligations. But as a matter of international human rights law, the basis of the obligation can be as complicated as its substance. Over the last several decades, human rights law has developed a kind of pyramid of private horizontal duties. With respect to many duties, it merely contemplates that governments should protect human rights from violation by private actors, and leaves the specification and enforcement of the duties to the governments themselves. Human rights law specifies a smaller, but still large, number of private duties, again leaving their enforcement to governments. Through international criminal law, it directly places a few duties, such as the duty not to commit genocide, and through institutions like the International Criminal Court, it enforces those duties under limited circumstances. These duties may be conceptualized as forming a pyramid, with the first level representing the least degree of involvement by international law, and the fourth level the highest.

In the article that I’ve been drawing from in these posts, entitled Horizontal Human Rights Law, which will be published in the AJIL later this year, I argue that this approach to private duties has several important benefits, and that to maintain these benefits, new proposals for private duties should meet a two-part test. First, they should do no harm: they should be limited to correlative duties and should not provide a basis for converse duties. Second, they should do some good. The proposals should build on, rather than undermine, the existing pyramid of correlative duties: they should either clarify indirect duties or, if they seek to establish new direct duties, they should show that the imposition of indirect duties would be inadequate. I apply this test to the declaration of human social responsibilities I described in my last post and conclude that it fails the first step: it’s really designed to set out converse vertical duties, not true horizontal ones. I also apply it to an instrument with quite a bit more support from human rights academics and activists: the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, adopted by the UN Sub-Commission on the Promotion and Protection of Human Rights in 2003. The Norms fail the test too, but rather than explain here why I think so, I’ll leave that for the article, and instead take a moment to explain where the UN initiative is now.

In the eyes of many, the draft Norms are the most important recent development in the long effort to bring human rights law to bear on corporations. But the Norms met with opposition from most corporations, and weren’t adopted when they were presented to the Human Rights Commission. Instead, the Commission asked the Secretary General in 2005 to appoint a Special Representative on the topic of business and human rights, to identify and clarify international standards and policies in relation to business and human rights, and submit views and recommendations to the Commission. The SG appointed Harvard professor John Ruggie, who had helped him with the UN Global Compact, and Ruggie has been working on his mandate ever since. Ruggie has made clear that while the Norms have some useful elements, on the whole they’re a distraction from the real task. (He explains his mandate and his current views in the October issue of the AJIL.) In February, he reported to the HR Council on standards, but he asked for and received another year to give his recommendations on what should be done in this area. To that end, he’s holding a series of consultations, one of which is in Copenhagen tomorrow and Friday, and I’m sitting on a plane even as I type, waiting for it to take me there. If all goes well, my next post will be from Denmark! If you’re interested in finding out more about Ruggie’s work, a good starting point is here. You might also be interested in this letter from 151 human rights groups to Ruggie telling him what they think he should do in his remaining time.