Applying the human rights standard to the specific situation of fragile states

For fragile states, the problem arises that universally applicable human rights impose obligations they hardly can meet, either for lack of effective internal regulatory or enforcement power or for lack of sufficient means. The

ICESCR takes the latter difficulty into account through the obligation to realize economic, social, and cultural rights progressively (article 2.1).10 Thus, the covenant does not require states to fulfill the rights immediately, but “to move as expeditiously and effectively as possible towards that goal,”11 and “to the maximum of its available resources” (article 2.1). Even the “minimum core obligation” under each covenant right, namely “to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights” is not an absolute obligation, but must take into account the resource constraints within a country.12 However, if a state demonstrably is not able to fulfill even the core rights, it is obliged to use resources available through international cooperation and assistance.13 Whether the international community, in turn, is obliged to provide such help—as the ICESCR Committee assumes—will be examined later.

The ICCPR does not contain a comparable provision on progressive implementation of the rights guaranteed. This difference reflects the—now outdated—understanding that civil and political rights contain “negative obligations,” that is, they require mere abstention, while economic, social, and cultural rights give rise to “positive obligations,” that is, they necessitate action by the state and hence the use of financial resources. Under a modern concept of human rights, all human rights encompass three dimensions of obligations—to respect, to protect, and to fulfill (Eide 1989, 37; Simma 1998, 872, with reference to Shue 1980). This means that the state has to abstain from interfering with the exercise of the right (“to respect”), it has to take measures against violations of the right by private actors (“to protect”), and it has to create the necessary social conditions for an effective exercise of the right (“to fulfill”). Even the “respect” dimension may require the state to take (costly) action; in order to respect the right to a fair trial, for example, the state must set up an independent court system. Equally, the “protect” dimension of the right to life obliges the state to establish a police force. Nevertheless, it is no oversight that the ICCPR does not limit the extent of the states’ obligations to their available resources. Rather, the immediate effect of the obligations arising out of the rights guaranteed by the ICCPR reflects the premise underlying that covenant that it is the purpose of the state to ensure the Hobbesian minimum—physical security, both from willful violence and from forcible self-help. Consequently, a state’s fragility alone is no reason for lowering the standards of the ICCPR.

The same conclusion holds true for human rights under customary international law. This is borne out by the fact that the Universal Dec?laration of Human Rights does not contain an obligation to “progressive implementation.” rule of law

A second core element of good governance is the rule of law. In numerous declarations, the international community committed itself to realizing this principle.14 Although the rule of law as understood by common law systems differs from related European concepts, namely, Rechtsstaat and etat de droit, a minimum content derives from human rights. In particular, restrictions of human rights are permissible only if provided by law, that is, if there is a prior law of general applicability that was properly enacted and is accessible for the public (Nowak 2005, article 19, marginal no. 46). Moreover, such laws and their application must respect the principle of equality before the law (article 26, ICCPR). Lastly, at least for criminal and civil matters, control through independent courts is necessary (article 14, ICCPR); in all other cases of alleged violations of a human right, there must be an effective remedy (article 2.3, ICCPR). By these minimum requirements, the rule of law ensures that the supremacy of the law is upheld and thus that restrictions of human rights are foreseeable. For states that are not bound by the ICCPR, the supremacy of law and the independence of the judiciary are binding as general principles of law (Rudolf 2006, 1024 and Rudolf 2000, 486-93, respectively). No special rules apply to fragile states because, as the Human Rights Committee emphasizes, the maintenance of the rule of law is most needed in times of emergency.15 responsiveness

“Responsiveness” as an element of good governance means that governments must be “responsive to the needs and aspirations of the people”16 The international community reaffirmed that “solid democratic institutions responsive to the needs of the people” are a key factor for economic development.17 The concept of responsiveness can be traced back to the 1986 Declaration on the Right to Development of the U.N. General Assembly, which also acknowledges the duty of all states to pursue development policies aimed “at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation"18 Consequently, responsiveness reflects the conviction that human beings are at the center of the development process. It is thus closely connected with participation: responsiveness is the purpose and—ideally—also the result of participation.

The international documents cited here do not permit the conclusion that responsiveness, in the sense of a duty to be responsive, exists under public international law. However, states are bound by law to create central preconditions of responsiveness. Freedom of opinion and freedom of association are necessary for the population to formulate its demands toward state authorities and to express its support for, or criticism of, state policies. Only if the population can express itself without fear of sanctions will state authorities learn of the people’s needs and demands. Although such expressions are more effective if based on sound facts, states are not duty-bound to provide transparent decision making: freedom of opinion does not (yet) encompass a right of access to all information available to a state (Rudolf 2006, 1023).

Mechanisms of accountability of public authorities are a further means of realizing responsiveness. With respect to policy makers, the most promising means are political sanctions—the fear of not being reelected. Although general international law does not oblige states to establish and uphold a democratic system, the human right to political participation provides a sufficient basis for this political sanction of nonresponsiveness.

 
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