3. Civil and Political Rights 181 IMMENT ON TYPES OF STATE DUTIES IMPOSED BY HUMAN RIGHTS TREATIES tand the significance and implications of the rights stated in the ICCPR, and other human rights treaties, it is helpful to examine the related duties/ ‘to such duties clarifies the significance and even content of the related rights. s to strategies to realize a right, as by persuading the state to change its in one or another respect. The effort, then, is to deconstruct a right into its [state duties, perhaps duties that an advocate secks to have imposed on the state. Some of these duties can fairly be called correlative (corresponding) to the right — implying from your right not to be tortured the state’s correlative duty ire you. These may be the duties that come most promptly and naturally to of the rights-holder. As a practical matter and from a functional perspective, may be necessary implications from the nature of a given right even if not spelled out in treaty text — for example, a state’s duty to create and oper- ral institutions and processes if the citizen’s right to vote is to be realized. ent rights may point to different types of state duties. All depends on the the right, on the problems that it was meant to overcome or to prevent. of state duties described below are more prominent in the ICCPR, some \W, some in the International Covenant on Economic, Social and Cultural issed in Chapter 4, or in other human rights treaties. Identifying the duties that may be relevant to any one right sharpens an understanding of stinctive to and necessary to realize that Tight. should be kept in mind as we examine different kinds of rights from. ective of related variable state duties. ) At the start of the human rights regime, much weight was given to a distinc so-called ‘negative’ and ‘positive’ rights. The negative rights basically aduty of ‘hands-off’ a duty of a state not to interfere with, say, an individ- al security. The illustration of torture noted above fits well here. Thus, htnot to be tortured was imagined to impose only such a negative duty — the correlative duty not to torture. Positive rights, on the other hand, imposed ative (positive) duties on the state — in the classic case, a duty to provide food /subsidies and so on) if such provision was essential to satisfy the right hus economic and social rights such as the right to food were considered rights, which frequently required financial expenditures by the state, unlike negative rights that were thought to require merely abstention from interference with another person. It will be important to consider how ‘this negative-positive distinction remains valid in the light of the illustra- analysis below, and whether it clarifies or confuses the issues before us. the following classic presentation of this distinction in Maurice 1, ‘Are There Any Human Rights?’, in 112/4 Daedalus 12 (1983): traditional political and civil rights are not difficult to institute. For the ist part, they require governments, and other people generally, to leave a man182 Part B. Normative Foundation of International Human Rights alone.... Do not injure, arrest, or imprison him. To respect a man’s right to life liberty, and property is not a very costly exercise. As Locke and others have explained, it requires a system of law that recognizes those rights to protect those rights. But rulers are not called upon to do anything that it is unreasonable to expect of them. ....Political...rights can be secured by fairly simple legislation, Since those rights are largely rights against government interference, the greatest effort will be directed toward restraining the government's own executive arm But this is no longer the case where economic and social rights are concerned. (2) Rights are not static. They evolve. They broaden or contract over time. One way of understanding an expansion of the content of a given right (to speech, to food) is to examine the duties related to that right, and to inquire whether and how they have expanded. The argument for a broader construction of a given right often amounts to the claim that further duties ought to be imposed on the state in order to satisfy the right. Consider some examples. The right to speech implies ata minimum the government's correlative duty not to interfere with it. It should not enjoin or penalize the rights-holder who indeed speaks. A modest expansion of this ‘hands off right imposes the further duty on government to protect a speaker against deliberate interference by non-state actors. Your right to speak loses mean- ing if others are permitted to block you in various ways from publishing or orally communicating your ideas. Anargument for further expansion can be based on the claim that government must facilitate speech by assuring access of pol itical groups to the media (that is, to newspapers or electronic media whether or not owned or controlled by the state). Such arguments for expansion of the kinds of state duties can constitute a strategy of change. So attention to duties, how they differ among rights within a treaty and among treaties, and how they change over time is one vital way of examining and fostering change in the human rights regime as 2 whole. ‘The following scheme of five types of state duties derives from but modifies earl: ier writings, particularly Henry Shue, Basic Rights (2nd edn. 1996), and G. J. H. van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights’, in P, Alston and K. Tomasevski (eds.), The Right to Food (1984), at 97. (1) Respect Rights of Others This duty requires the state to treat persons equally, to respect their individ dignity and worth, and hence not to interfere with or impair their declared right whether they be physical security rights or rights to due process, equal protecti speech or political participation. This duty of respect has often been described ‘negative’ in the sense of being a ‘hands-off’ duty. The broad idea is not to wors an individual’s situation by depriving that person of the enjoyment of a declai right. ‘Of course the observance by states of this duty of respect would itself, wit the possibility of any further state duties, lead to a vast improvement in the hu condition. In this sense, the duty of respect can be seen to lie at the core of human rights regime. Compliance with it would avoid most of the worst cal ties: genocides, massacres, torture. The duty of respect is in this sense allied to’ ‘antidisaster’ element of the human rights regime — the notion that the ht3. Civil and Political Rights 183 \¢ arose and developed to prevent recurrence of the massive abomina- the twentieth century that preceded it. But observance would achieve far Fl chas realizing the basic conditions for a democratic society. nany but not all rights declared in the treaties, the duty of respect reaches es to obligate individuals and non-state entities. A person’s right to bod- or to vote imposes a correlative duty on all other persons to refrain from with it. My right to bodily security mean little unless my neighbours are by the state from violating it. On the other hand, the other duties identi- tegories (2) to (5) below are in most cases associated only with the state. ehuman rights treaties, individuals or non-state entities are generally not to bear direct duties to protect other individuals against physical attack de housing for them. Such issues about the character and range of indi- ies are considered elsewhere at pp. 509 and 517, infra. This Comment only state duties. Institutional Machinery Essential to Realization of Rights srights may be impaired or effectively annulled not only by government’s interference with them (torture, preventing a citizen from expressing sor voting), but also by its failure to put in place the institutional machinery for the realization or practice of the right. Political participation offers le illustration. A citizen’s right to yote means little unless a government fains fair electoral machinery that makes possible the act of voting, count- fballots and so on. Voting rights are, then, hardly cost-free for government. ‘simply a matter of ‘hands off’. Public funds must be expended to create ucture on which the practical realization of the right depends. Public ist be taken to be certain the voting mechanisms function fairly and hon- negative—positive distinction, while having some utility, is inadequate cribe this duty, as well as the state’s duty to institutionalize rights that is ed in category (3) below. Rights/Prevent Violations al human rights treaties make explicit the state’s duty to protect against and nt violations of rights — for example, Article 2 of the ICCPR that gives vic- s{violations the right to a remedy. Again institutional machinery is required, ance to comply with a specific command of the treaties. In the case of the ,that command is expressed through the state’s duty in Article 2 to ‘ensure to dividuals’ the recognized rights. States must then do the necessary to ensure. -y must provide a police force to protect people against violations of their (to physical security, or free speech, or property) either by state or non-state te’) actors. They must create normative systems like tort or criminal law, as sinstitutions like courts or jails, processes like civil suits or criminal prosecu- order to maintain a system of justice that provides remedies for violations sanctions on violators. This duty to protect has been vital to the devel- ent of CEDAW and women’s rights.184 Part B. Normative Foundation of International Human Rights As in category (2) above, the state’s duty to protect/prevent involves state expenditures. Again, the negative-positive rights distinction is not helpful. The classic ‘negative’ rights here demand the classic ‘positive’ protection. It is difficult to imagine a right for which this is not true. As Henry Shue, in Basic Rights (2nd edn. 1996) puts it: ‘All these activities and institutions [of government, like police, courts, jails] are attempts at providing social guarantees for individuals’ security so that they are not left to face alone forces that they cannot handle on their own. How much more than these expenditures one thinks would be necessary in order for peo- ple actually to be reasonably secure... depends on one’s theory of violent crime, but it is not unreasonable to believe that it would involve extremely expensive, ‘positive’ programs... A demand for physical security is not normally a demand simply to be left alone, but demand to be protected against harm. Itis a demand for positive action... Note that the concepts of protect and prevent, though linked in this category (3), can take on quite different meanings, depending on context. For example, pro- motion of cultural change (category (5) below) about, say, violence against women may help to prevent such violence, Prevention may then be realized in the long run through strategies well outside such everyday forces for protection as police. (4) Provide Goods and Services to Satisfy Rights ‘The state’s duty here is primarily to provide material resources to the rights-bearer, like housing or food or health care, matters associated with the International Covenant on Economic, Social and Cultural Rights. (Resources provided by the state may go directly from it to the individual rights-bearer, as by providing food stamps or subsidized public housing, or it may go indirectly to the ultimate bene: ficiary through, say, subsidies to construction firms that will then offer low-rent housing.) Unlike the duty of respect (do not worsen the situation of the rights- bearer), this duty to provide generally is meant to improve the situation of the rights-bearer. It is most evident and explicit in this category (4) that the state must expend public funds to meet its duties. It is for this reason that state duties related to wel fare rights have most frequently been described as affirmative (positive). Unlike categories (2) and (3) above, both of which also involve state expenditures, these expenditures are at the core of, are the very essence of, the individual right. They are not merely incidental to it, essential means to realize some other right, as for example state expenditures for police are essential to fulfil a duty to protect. # On the other hand, the realization of economic and social rights need not depend on ‘direct’ or ‘indirect’ provision by the state in the sense described above, Other, radically different policies may achieve the goal of satisfying a right to, say food. For example, one way of overcoming poverty and malnutrition in rural might be to undertake a programme of expropriation and land reform that we increase employment and yield and thereby make more people self-sufficient respect to food. Again, monetary or fiscal policy designed to lower unemploy3. Civiland Political Rights 185 dhence malnutrition and homelessness could reduce the need for direct provi- moffunds or goods. Such characteristic policies of the modern welfare state may ce the direct or indirect provision of funds or goods measures of last rather resort. }) Promote Rights state duty refers to bringing about changes in public consciousness or percep- an or understanding about a given problem or issue, with the purpose of allevi- ing the problem. In certain contexts, such promotion of rights may be a usefull or d essential path towards their better recognition by non-state actors. Like the otection, it generally requires the state to expend funds and create the insti- ‘that are necessary to promoting acceptance of the right. Thus a state's duty to omote often involves public education — for example, school education or pub- s meant to change attitudes about violence towards women or children. motion to achieve such types of cultural change plays vital role in CEDAW. jotion underscores the point that these categories of duties are not discrete. -are often complexly interrelated, and indeed overlap. For example, fulfilment duty to promote may bear on the duty not only to provide but also to protect, as 1 the state promotes and disseminates knowledge about the evil consequences mination that may reduce, say, racism or homophobic violence.