3.1.3

Who are ‘duty-bearers’ and ‘rights-holders’?

The UN has been central to the development of the modern human rights system of declarations and treaties. Human rights were included in the UN Charter, which established the UN in 1945. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly (UNGA) in 1948. The UDHR was at first considered nonbinding. However, it has since influenced other important human rights treaties that are legally binding. In addition, many states have adopted their own national laws promoting and ensuring human rights.

International human rights law consists of treaties that are legally binding for and between states. States become bound by such treaties if they choose to become States Parties.

States Parties to treaties are duty-bearers, which means that they have legal obligations to respect, protect and fulfil the human rights of their legally recognised citizens, who are rights-holders. States respect human rights by not violating the human rights of their legal citizens. States protect the human rights of their legal citizens by preventing non-state actors, like companies, armed groups and individuals, from violating their human rights. States fulfil their human rights obligations by taking actions, such as legislative and policy measures, and using resources to enable their legal citizens to access their human rights.

States are typically seen to have fewer legal obligations to respect, protect and fulfil the human rights of  persons who are not legally recognized citizens. Nonetheless, states are obliged to ensure fundamental  rights for all people within their borders, including those who do not have a legal citizenship status. 

Fundamental rights include absolute rights that never can be restricted, not even for people who are not legal citizens of a state. Fundamental rights also include other rights considered to be important for everyone’s survival and existence, even if some of these rights might be restricted in some situations.

If a State Party does not respect, protect and fulfil human rights according to a treaty they are obliged
to follow, they can be held accountable in the following ways:

• Treaty bodies are typically committees made up of independent experts. They oversee the implementation of particular treaties. They collect regular reports by States Parties and from additional sources, such as national civil society organisations, about the human rights performance of a State Party. They review these reports and give recommendations for how States Parties can improve their human rights performance. These recommendations are not legally binding.
• The Universal Periodic Review (UPR) is a regular, five-year overview of a state’s human rights performance across all treaties that it is a State Party to. The UPR  is based on a report by the state being reviewed and based on reports collected from international and national civil society organisations. These reports are collected by the UPR Working Group which then facilitates a hearing with the state being reviewed. Other states and civil society organisations are able to attend this hearing. The UPR Working Group then compiles all information into a report for the state that was reviewed. Recommendations in this report are not legally binding.
• The UN Human Rights Council (UNHRC) and the UN Security Council (UNSC) have their own regular hearings. These hearings discuss issues related to states’ human rights performance and international security. Both the UNHRC and the UNSC can adopt resolutions, which include actions that states need to take. Most resolutions are not legally binding.
• Special Rapporteurs are independent experts appointed by the UNHRC to review and report on the human rights performance of states. They may have a thematic focus or a geographic focus. They meet with state representatives, national and international civil society organisations, and do desk research. Following their investigation, they typically release recommendations, which are not legally binding.
• The International Court of Justice (ICJ) handles disputes between two or more States Parties related to a treaty. The International Criminal Court (ICC) handles situations of  serious human rights violations committed against civilians by representatives of the state or by non-state actors. These courts can punish violators of human rights. The decisions of these courts are legally binding. 

Treaties in international human rights law become applicable in States Parties’ own countries in one of two ways:

1. treaties become directly applicable as they are written, or 
2. States Parties write their own national laws wherein they incorporate the human rights included in the treaties. 

States Parties themselves decide which way they want to apply international human rights law in their own countries. 

REFLECTION/DISCUSSION

1. What rights do you think a person should always have, which should never be removed or restricted by others?
2. Do you think that states that violate human rights will change if the accountability mechanisms are legally non-binding? Why or why not?

 Educator’s notes 

International human rights law differentiates between different categories of rights, which in varying degrees may or may not be restricted. 

‘Absolute rights’ can never be restricted or removed in any circumstance, and under no justifications. One absolute right is the right to protection from slavery. Another absolute right is the prohibition against torture, inhuman or degrading treatment. 

All absolute rights are also ‘non-derogable rights’. Non-derogable rights are rights that cannot be restricted, not even in extreme circumstances such as if a state of emergency has been declared. 

‘Derogable rights’ can be restricted in extreme circumstances. 

‘Limited rights’ can be restricted or even removed, also in non-extreme circumstances. For example, the right to liberty might be removed if someone has committed a punishable crime and therefore is sentenced to imprisonment. 

‘Qualified rights’ are rights that could be restricted in certain circumstances, if certain criteria are met. The criteria for restricting qualified rights are usually interpreted strictly, so to limit the possibility of states to arbitrarily restrict citizens’ rights. These criteria typically include the following principles: 

Legality: Restrictions of qualified rights need to be spelled out and regulated in laws. 

Necessity: Restrictions of qualified rights have to be considered necessary to protect something justifiable, typically other rights, in a democratic society. Other measures than restrictions of qualified rights should have been tried first and these restrictions should be seen as a last resort.  

Proportionality: Restrictions of qualified rights should be proportional. This means that restrictions should not be longer in time or more far-reaching than necessary. Restrictions of qualified rights should not be invoked at all if they are only supposed to protect a minor goal of less relevance in a democratic society.  

Non-discrimination: Restrictions of qualified rights should not only apply for certain groups of people. The basic idea is that human rights are universal: everyone everywhere should have all rights, at all times. 

Examples of qualified rights are the rights to freedom of speech and the freedom of peaceful assembly. 

For a more detailed explanation of these categories of rights, see the Bingham Centre for the Rule of Law (February 2012:37-49).