From the above examples, it can be concluded that the Human Rights Committee is indeed concerned about the possibility that non-State actors may cause human rights violations. So far, the Committee has not fulfilled its obligation to protect human rights in a particularly radical manner. Despite the reaction against general comment No. 31, it appears to be based on a number of previous general comments in which the Committee referred to the positive obligations of States vis-à-vis public and private actors to protect human rights. However, it cannot be said that the Committee has been as detailed in its Views on individual communications. This is likely to be due to limitations on what the Committee might discuss, imposed by the subject matter of the complaint itself (e.g. in Arenz v. Germany) or simply because cases where questions of horizontal effect have tended to be declared inadmissible, so that a thorough examination or application of the relevant provisions vis-à-vis non-State actors is not justified. The indirect horizontal effect has been denounced by some as a modus operandi that is not particularly useful. Thomas Bennett described it as “an imprecise method of supposedly protecting what the fundamental rights of the individual are supposed to be.” 103 That point deserves due recognition.
On the one hand, successful cases with indirect horizontal effect may involve promoting the protection of human rights and obliging the State to take more effective measures to protect individuals from harm caused by non-State actors, thus going beyond a simple case-by-case effect, leading to more comprehensive improvements in the protection of human rights. On the other hand, the potential effects of indirect horizontal effect are limited by the limits of the powers of courts and supervisory bodies to legitimately interpret international human rights law (i.e. within the limits of the Vienna Convention on the Law of Treaties 104). While respecting these limitations, courts are often unable to provide victims of human rights interference with effective remedies (or even cases involving non-State actors) that would otherwise be available if the perpetrators had been committed by another actor. We are all subject to national laws, because we all live in a sovereign stateA political entity that regulates the affairs of its own territory without being subject to any external authority. A sovereign State is a political entity that regulates the affairs of its own territory without being subject to any outside authority. Countries are sovereign states. The United States, Mexico, Japan, Cambodia, Chile and Finland are examples of sovereign states. In the domestic law applicable in the country where it was established, or in the law applicable in the country where it was established, a legitimate authority has the power to establish, apply and enforce a system of the rule of law. There is legitimate legislative authority at the “top” and people at the “bottom.” The law could be understood as being “transmitted” to persons within its jurisdiction.
It is a vertical structure of law because there is a “higher” authority that imposes a rule of law on the people. In the United States, laws are enacted by the legislature in the form of written law, by the judiciary in the form of common law, and by the executive branch in the form of executive orders, rules, and regulations. These branches of government have the legitimate authority to create a system of rule of law, and that authority derives from the Constitution of the United States. See Figure 13.3 “The Vertical Nature of U.S. Domestic Law” for a simple illustration of the vertical nature of domestic law in the United States. Of course, through elections, people can influence who becomes a member of the branches of government and what issues are submitted to the government for review and possibly legislating, but that does not change the fact that people are subject to laws that are passed vertically. It is common knowledge among international jurists that the nature of international human rights obligations is vertical – they are owed by the state (as the holder of the obligation) to the individual (as the beneficiary). 36 It follows from the concept of `vertical` that the State, as the principal subject of international law and governed by that area, is in a `higher` position than the individual who habitually operates within a State and is therefore governed by national law. The vertical effect of human rights law results above all from the fact that, as original subjects of international law, only States become parties to human rights treaties and can therefore be legally bound by their obligations (Jan Hessbruegge points out that this inability does not exclude obligations in the non-State sector 37 ). In addition, only States may be the subject of individual complaints or cases before international human rights monitoring bodies and regional human rights courts.
Despite the growing power and influence of non-state actors, there have been no real correlative developments in international (binding) human rights standards that allow for the application of obligations between two (or more) non-state actors. The application of international human rights law between non-State actors is referred to as the “horizontal effect” of human rights and forms the basis for the legal analysis of this article. The obligation to protect human rights is part of the tripartite typology of State obligations. The typology includes the obligations to respect, protect and fulfil human rights and was proposed in its current form by Asbjørn Eide. 105 According to Eide, the protective function of human rights is the most important of all. 106 The duty to protect has received considerable attention from lawyers and practitioners. [To understand how people deal with horizontal or informal justice systems, read this interview with an anthropologist who studied this in Liberia.] Even from this superficial review of the literature, it seems clear that ethics and law are navigating similar terrain. Although the moral literature is useful in indicating the general directions that international law might follow to resolve these problems, the conceptual difficulties arising from collective responsibility and the differences between ethical norms and legal rules and doctrines suggest that ethics cannot help to solve them completely. This can be seen by examining the moral justifications for identifying citizens responsible for state misconduct: a citizen`s support for a state`s actions; the enjoyment by the citizen of the benefits derived from the State; EU citizenship as a commitment to shared responsibility; and the emphasis on the State as a unit of fundamental concern. Could these be used as a justification to restrict a citizen`s human rights? I will deal with them in reverse order. The Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises (OECD Guidelines)52 have also helped pave the way for direct horizontal impact for business. The OECD Guidelines were first adopted in 1976 and revised several times.
The most recent review took place in 2011 and led to the addition of a new chapter on human rights, in line with the UNPs, thus reinforcing the commitment to human rights already contained in the OECD Guidelines. 53 Like the Guidelines, the OECD Guidelines are not legally binding. However, they call on adhering countries to establish a “National Contact Point” (NCP), which would make it the only corporate responsibility instrument with an “integrated complaints mechanism”. 54 NCPs are mandated to “provide a platform for mediation and conciliation to help resolve cases” where the OECD Guidelines are not being followed. 55 Since the 2011 review, the NCP`s human rights caseload has increased dramatically. 56 However, some national contact points have already referred to international human rights treaties in their “final declaration” on a case. 57 While important, this is not entirely surprising, since the earlier version of the Guidelines (adopted in 2000) provided that companies must “respect the human rights of those whose activities comply with the international obligations and obligations of the host government”58 and made specific reference to the human rights legal framework. 19 This is the approach taken with respect to the Canadian Charter of Rights and Freedoms, and its application is a hybrid position that is ostensibly vertical and requires state action for the rights to apply directly, but to allow for some degree of horizontal application in private litigation. However, Charter rights do not affect the common law, although the courts have allowed their values to hold the Court within its “inherent jurisdiction.” to modify or extend the application of the common law to conform to prevailing social conditions and values”: Manning v. Hill (1995) 126 DLR (4th) 129, 156: in Hunt, supra no. 2, 431; Jane Wright, Tort Law and Human Rights (Hart, Oxford, 2001): Hart 23.