of trafficking cases, though, State authorization
or control is either non-existent or difficult to
establish. There is, however, an alternative basis
upon which States may be held responsible in
the context of human rights violations, known as
the standard of “due diligence”.
now widely accepted.118 A failure on the part
of the State to protect (including from private
interference), respect, promote or fulfil its human
rights obligations – owed to every person within
its jurisdiction – is something that is directly
attributable to the State and, therefore, sufficient
to trigger its international legal responsibility.
2.3. THE DUE DILIGENCE STANDARD
Under the standard of “due diligence”, a State
is obliged to exercise a measure of care in
preventing and responding to acts by private
entities that interfere with established rights.
Failure to prevent an anticipated human rights
abuse by a private individual or entity will
therefore invoke the responsibility of the State.
Similarly, legal responsibility will arise when
the State fails to remedy abuses or violations of
international human rights law, not only because
access to remedies is of itself an established
right (see discussion of Principle 17 and related
guidelines), but also because failure by the State
to provide remedies in cases involving non-State
interference with rights is a breach of the standard
of due diligence. In other words, liability arises
where the State could have made the situation
better for the victim but failed to do so.
Under the standard of “due diligence”, the State
is not held responsible for the acts of others,
but it is held responsible for its own failure to
prevent, investigate, prosecute or compensate for
the commission of the act.
International human rights law imposes a
wide range of obligations on the State which
go well beyond the simple obligation “not
to traffic”. These are commonly identified as
obligations to protect, to respect, to promote
and to fulfil. Examples can be found in many
human rights treaties.117 The four-level typology
of a State’s obligations with respect to human
rights (to respect, protect, promote and fulfil) is
even if the person/entity exceeds authority or contravenes
instructions: Draft articles on State responsibility, articles
5 and 7. The conduct of a person/entity can also
be attributed to the State if they are acting under the
instructions of, or under the direction or control of, the
State (article 8); or if the State acknowledges and adopts
the conduct as its own (article 11).
See, for example, International Covenant on Civil and
Political Rights, article 6 (1) (“Every human being has the
inherent right to life. This right shall be protected by law”);
European Convention on Human Rights, article 1 (“The
High Contracting parties shall secure to everyone in their
jurisdiction the rights and obligations defined in Section I”);
American Convention on Human Rights, article 1 (“The
States Parties to this Convention undertake to respect the
rights and freedoms recognized herein and to ensure to
all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms”); African Charter,
article 18 (3) (“The State shall ensure the elimination of
every discrimination against women and also ensure
the protection of the rights of the woman and the child”)
(emphases added).
The “due diligence” standard has a long history
in the law of State responsibility for injury to
aliens.119 It entered international human rights
law through a landmark decision of the InterAmerican Court of Human Rights in 1988, the
117
See Asbjorn Eide, “Economic, social and cultural rights
as human rights” in Asbjorn Eide, Catarina Krause and
Allan Rosas (eds.), Economic, Social, and Cultural Rights:
A Textbook (1995), pp. 21-40. For an application of the
methodology, see Social and Economic Rights Action
Center (SERAC) and the Center for Economic and Social
Rights (CESR) v. Nigeria, African Commission on Human
and Peoples’ Rights, Comm. No. 155/96 (2002).
118
Malcolm Shaw, International Law (2003), pp. 721724; Dinah Shelton, “ Private violations, public wrongs
and the responsibilities of States”, Fordham International
Law Journal, vol. 13 (1989), p.1.
119
COMMENTARY
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