Tuesday, September 18, 2007

Knox: Horizontal Human Rights Law

John H. Knox (Wake Forest Univ. - Law) has posted Horizontal Human Rights Law (American Journal of International Law, forthcoming). Here's the abstract:

Is international human rights law vertical, running solely between individuals and states? Or should it be horizontal as well, creating private duties on the part of individuals and corporations? In recent years, many advocates have argued that human rights law should impose more duties directly on private actors. These proposals often overlook how human rights law already carefully addresses private duties.

Human rights law has tacitly distinguished between duties owed by the individual to his or her state that run conversely to the duties of the state to promote and protect the individual's human rights, and duties on the part of individuals that correlate to the human rights of others. Converse duties are dangerous because governments may rely on them to offset their own duties. As a result, human rights law generally refuses to list converse duties and restricts the authority of governments to use such duties to limit human rights. Correlative duties can further the enjoyment of human rights, but human rights law imposes only a few correlative duties directly. Instead, it has developed a complex approach that relies largely on governments to impose private duties in the course of complying with their own duties under human rights law.

The article argues that this approach makes sense for political and practical reasons. It suggests that proposals for private duties should meet a two-part test: they should not open the door to converse duties; and they should build on, rather than undermine, the existing system of correlative duties. The article applies this test to two proposals recently presented to the UN Human Rights Commission: a draft declaration of human social responsibilities, and draft norms setting out corporate obligations under human rights law. It concludes that neither proposal meets these requirements.