Introduction to Human Rights Week 5: Human Rights obligations III. The obligation to protect Let us now talk about the obligation to protect. It seems clear today that Human Rights observation is not enough. In other words, it is not enough to respect and to passively observe Human Rights. This obligation is certainly a necessary requirement. It is however not enough. In other words, public authorities' passive attitude implies an abstention. This is an important aspect for the guarantee of the rights. However, this aspect is only a part of Human Rights realization. In other words, a more proactive attitude implying a concrete obligation to protect Human Rights in an active and positive way complements the one linked to the duty to respect them. Let me repeat the example mentioned earlier: the right to housing within the meaning of the International Covenant on Economic, Social and Cultural Rights. Respect for that right is often not enough to protect the people who are already housed. This guarantee first implies that the people who are looking for somewhere to live can really have access to a housing. From this protecting point of view, Human Rights go together with the adoption of different institutional measures linked to the adoption of respect. These measures aim at creating framework conditions. They aim at setting up public policies in order to meet the most basic needs of the human person. Historically, the obligation to protect has often been associated with, and even compared to social rights, because the realization of such guarantees cannot be content with a simple abstention. This is not enough. Please note that this is also true for freedoms or for the rule of law's guarantees. As we saw, they belong to the first generation of rights. For example, the right to an independent and impartial court implies a set of guarantees. There are elementary guarantees of the rule of law but they have to be set up through the institution, the creation, the maintenance and the effective functioning of an efficient judicial system. It often implies the adoption of costly measures by the public bodies: the construction of a building, The implementation of infrastructure, the training and the maintenance of highly qualified staff, control measures linked to the effectiveness and the independence of justice. All these aspects are linked to a so-called first generation of right but they do not follow from a simple obligation to respect. Instead, they are achieved through the adoption of proactive measures. Another example: according to the jurisprudence, prohibition against torture implies an obligation to investigate. In case of suspicion that prohibition against torture and other cruel, inhuman or degrading treatment or punishment have been violated, the obligation to investigate supposes the disposal of independent investigators with appropriate skills. The contemporary view of Human Rights is therefore still in progress. This movement distinguishes less and less the obligations attached to these rights according to the generational categories or according to the historical procedures that led to their establishment. The contemporary view of Human Rights consists in saying that all these rights imply, at different levels, an obligation to respect and an obligation to protect. These two obligations are borne by public bodies. I am taking an example from a quite recent but already famous decision from the case law of the European Court of Human Rights. The case concerns Switzerland and was tried on 13 July 2006. It questioned the impossibility for an elderly man to have a scientific valuation done to determine the filiation link with his presumed father. The person in question invoked, before the European Court of Human Rights, a violation of Article 8 of the European Convention on Human Rights which guarantees the right to respect for private and family life. In this case, the Court stated as follows: "[...] while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In determining whether or not such an obligation exists, attention must be made to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation." Based on this quotation, we can see that the obligations to respect and to protect Human Rights are two of their effects which do not implicate anymore today real distinctions between freedoms and social rights. Let me take another example. It concerns a case tried on 9 October 1979 by the European Court of Human Rights. This case was about the impossibility for a woman to have access to the Irish justice in order to initiate a divorce because she did not have enough money. In this case, the Court stated that: "The Court is aware that the further realisation of social and economic rights is largely dependent on the situation - notably financial - reigning in the State in question. On the other hand, the Convention must be interpreted in the light of present-day conditions and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals. Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The Court therefore considers, like the Commission, that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention." Another aspect linked to the legal effects displayed by Human Rights concerns their personal scope of application. We saw that Human Rights were historically created to limit the action of the State or to invite the State to intervene in order to protect the most vulnerable. In other words, the preferential addressee of Human Rights - the passive subject of these guarantees - are all the public bodies. Nowadays, we see that the State remains a natural and preferential addressee of Human Rights. Nevertheless, the State is not the exclusive addressee of these guarantees anymore. Human Rights violations can indeed also come from the individual. For example, there is a violation of the right to life when a murder occurs. Therefore, the question arises: Can Human Rights also apply to private relations? I emphasise the word "also": The point is not at all to say that Human Rights are not applicable to the relation between the individual and the State. However, is their scope of application not broader? Can they, on certain conditions, also govern private relations when violations of these rights come from individuals? This question has amply been debated at the national level regarding fundamental rights. It also arises today regarding Human Rights. Today, one of the answers given to this question is - with different shades - to tend towards a recognition of an effect in the relations of private law. First, because State laws must be interpreted consistently with Human Rights. Furthermore, Human Rights can also apply in private relations. Let me take another example from the case law of the European Court of Human Rights. This decision concerns France. The decision was issued on 29 April 1997. A person had been arrested at the airport for smuggling drugs and was expelled from France to the US. In this decision, the European Court of Human Rights states as follows: "[...] the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3". In other words "the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection." In the present case, the Court held that this risk was not established. The Court has however established the principle that Human Rights can also involve action from public bodies. There are some conditions. The threats likely to attack these rights must not only come from the State itself but also from people or private parties. Therefore, we see that, in contemporary law, the obligation to protect complements the obligation to respect. This was illustrated with the examples taken from the case law of the European Court of Human Rights. Yet, these rights and liberties come under a generation of Human Rights that we have often associated with a simple obligation of abstention. This limited dimension does not correspond to the contemporary conventional and judicial reality anymore.
