VII-f. The Obligations of Non-State Actors
The primary responsibility for assuring the realization of human rights rests with states, and thus with the governments that represent them. However, non-state parties have responsibilities as well. The nature of these responsibilities remain a point of debate among human rights specialties. Rather than review the variety of positions taken in that debate, here I will simply take a position on the issue.
As something of a legal positivist on such matters, my position is based on the formulation that moral rights lead to corresponding moral responsibilities, and legal rights lead to corresponding legal duties. Legal rights are less ambiguous than moral rights because they are spelled out in the law. Non-state actors have those legal duties with regard to human rights that are specified in the relevant human rights law, whether in international law or in national law.
Specification of the legal duties of non-state actors with regard to human rights law can be examined within the framework of the four levels of obligation described earlier in Subsection VII-c. There is a broad consensus that non-state actors must respect the human rights of others, and not do anything to violate them. However, there is no general agreement that they must actively protect others whose rights are being violated. Very few writers seems to think that non-state actors have a positive obligation to act to fulfill others' human rights, whether through facilitation or through direct provision of goods or services. Some say there ought to be an obligation to take positive steps to assure that others' human rights are realized, but hardly any claim that such an obligation already exists under present international law.
Several of the international human rights treaties specify particular responsibilities of non-state actors. For example, the Convention on the Rights of the Child specifies a number of responsibilities of the family. The national law in which human rights are elaborated may elevate these responsibilities to the level of legal duties. These specifications of legal duties generally vary among nations. For example, there is a duty to assist the needy in some nations, but not in others (Glendon 199?).
Non-state actors include not only individuals and organizations within nations, but also international organizations, both governmental and nongovernmental. In my view, international governmental agencies such as the United Nation and the United Nations specialized agencies and funds, and the international financial institutions have legal duties under international human rights law. These agencies are constituted by states, and serve as the agents of states, so they are under the same obligations with regard to human rights as are states (Kent 1994b). International nongovernmental organizations (such as transnational corporations) are in principle under the jurisdiction of states, and thus they too have duties under international human rights law.
International organizations, whether governmental or nongovernmental, are not above or outside the international human rights law, but are subject to that law. Of course there is much work that remains to be done in interpreting the application of that law to non-state actors at every level. The basic premise, however, is that they are in fact subject to human rights law.
On December 9, 1998 the United Nations General Assembly adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Unversally Recognized Human Rights and Fundamental Freedoms (A/Res/53/144) (Declaration on Responsibility 1998). The declaration emphasizes the right of nonstate actors to promote the realization of human rights. Article 3 asserts that domestic law constitutes the juridical framework within which human rights should be implemented, but apart from that the declaration offers no concrete guidance with regard to the duties of non-state actors.
The question of who has what rights to act in support of the human rights of others is not a trivial one. To illustrate, the state of Massachusetts has a "Burma law" that restricts state purchaes from companies doing business in Burma (Myanmar) because of its alleged human rights abuses. This has been held unconstitutional by a federal appeals court because under the United States constitution, foreign affairs is supposed to be the exclusive domain of the federal government. The Burma law is scheduled for review by the U.S. Supreme Court.
Continue to VIII-a. Varieties of Accountability
Subsection VII-f last updated on September 26, 1999