The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights

Article excerpt

[The past few decades have witnessed an increase in the influence of private actors on domestic and international policies concerning the economy, welfare programs, taxation, trade, legislation, labour issues, education, development and other important aspects of life. This period has not only highlighted that the state alone is incapable of guaranteeing the protection of human rights, but also that human rights are prone to violations by many actors other than the state. These revelations have heightened the challenge to the conventional view that human rights obhgations bind only the state but not private actors. This article argues that the doctrine of state responsibility represents an under-utilised device for ensuring that private actors respect human rights including economic, social and cultural rights. International, regional and domestic human rights jurisprudence is investigated in order to define the precise circumstances in which state responsibility might be incurred for violations of human rights committed by non-state actors. It is also argued, considering the potential obstacles to its efficacy, that recourse to the doctrine of state responsibility should be considered as a complementary mechanism to other methods of holding non-state actors responsible for human rights violations.]

CONTENTS

I     Introduction
II    The General Rules of International Law on State Responsibility
        A  Definition of State Responsibility
        B  State Responsibility for Private Acts or Omissions
        C  The Applicability of the General Rules of International Law
           on State Responsibility to Human Rights Cases
III   State Responsibility for Violations of Human Rights by Private
      Actors
        A  The State's Duty to Protect Human Rights
        B  The Due Diligence Test
IV    State Responsibility and Violations of Economic, Social and
      Cultural Rights
        A  International Human Rights Law Cases
        B  Regional Human Rights Law Cases
V     Host State Responsibility
        A  Definition
        B  Limitations of the Host State Approach
VI    Home State Responsibility
        A  Its Recognition in International Law
        B  The Alien Tort Claims Act
        C  The Duty of Care Principle
        D  Limitations of the Home State Approach
VII   Conclusion

I INTRODUCTION

The issue of private sector responsibility for human rights is most topical in contemporary human rights discourse. In an era of globalisation, the market-oriented policies of liberalisation of markets, privatisation of state-owned enterprises, promotion of foreign direct investment and deregulation of the private sector have been given prominence. (1) Key players in the global economy such as multinational corporations ('MNCs'), international financial institutions and multilateral institutions promote these principles. (2) Their wide adoption by states has seen them ceding more powers and competencies to private actors than was the case previously. (3) As a result, it has become increasingly clear that state action alone is not sufficient to guarantee the enjoyment of human rights. For example, access to essential medicine is not only dependent on the policies and actions of the state but also on the decisions and policies of pharmaceutical corporations. Banks and other financial institutions play a critical role in ensuring access to housing. With increasing privatisation, access to such basic services as water, health, education and electricity is also dependent on the actions and policies of private service providers. (4) Further, recent experience has demonstrated that private actors, like state actors, can and often do violate human rights. MNCs, for instance, have been implicated in corruption and violations of trade union fights, International Labour Organization labour standards, environmental rights, the right to development, and civil and political rights. (5) Feminist scholars have also contended, quite persuasively, that women's and children's rights are vulnerable to infringement in private relations. …