Human Rights Violations Arising from Conduct of Non-State Actors
54 Pages Posted: 15 Mar 2014
Date Written: March 14, 2005
The conduct of non-state actors can give rise to human rights violations to a greater extent than one would expect. Human rights law, interpreted in the light of general international law, applies to every private actor that is endowed with state power in any form. It applies to private entities that perform public functions and state-owned entities that are misused for political purposes. The state can also incur human rights responsibility for private conduct that it adopts as its own and for the conduct of de facto agents or hierarchically structured agent groups, over whom it exercises effective control. Finally, human rights responsibility also ensues where non-state groups, such as insurrectionary movements, usurp state power. The Westphalian paradigm of state responsibility has traditionally limited international law to hold only the state (rather than the usurpers themselves) responsible, but this short-coming is gradually being corrected as a customary norm emerges which extends human rights obligations also to non-state actors governing territory.
Abuses of true non-state power are checked as well. Existential human rights are to be protected by reasonable and appropriate measures under all circumstances, bearing in mind countervailing human rights. In addition, the state has human rights obligations to protect the individual from non-state abuses of power, wherever access to public or tangible social goods is concerned and there is a disproportionate power relationship between the competing non-state actors.
However, the current system suffers from one grave weakness. It is based on the premise that states are strong enough to check the range of agents that form part of the machinery of government, and that they can fulfill all their protective duties. If we are really experiencing a power shift away from the state and toward the non-state realm, this foundational premise becomes shaky. At the same time, as state capability to protect is weakening, their ambit of protective obligations to protect is widening, since the non-state sector expands into former state domains. The obvious answer would be to supplement the existing framework of vertical and diagonal human rights obligations with horizontal obligations for those non-state actors that seem to accumulate power, most prominently transnational corporations. The emerging duty for non-state actors not to become complicit in human rights violations of states is a first step in the right direction.
Keywords: international law, human rights, non-state actors, de facto authorities, rebel groups, attribution, due diligence
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