Asia Pacific Forum of National Human Rights Institutions and Global Alliance of National Human Rights Institutions
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States remain the principal actor in monitoring and enforcing businesses’ compliance with
requirements under international treaties. In particular, in Draft General Comment No. 36, the
Human Rights Committee has construed that the right to life encompasses a state ‘obligation
to take appropriate positive measures in order to protect life from all possible threats, including
from threats emanating from private persons and entities’.108 The latter obligation is of particular
relevance in the context of the current petition. The obligation to protect also requires states to take
positive measures which ensure that companies, groups or powerful individuals do not deprive
individuals of their access to economic, social and cultural rights. International jurisprudence
has held that ‘the measures to give effect to the duty to protect must include legislation, the
establishment of an effective regulatory regime, providing access to legal remedies and imposing
penalties for non-compliance’.109 As such, neither economic, social and cultural rights nor civil
and political rights offer a single model of positive or negative duties on the State. The traditional
distinction that civil and political rights impose only negative duties on States, and economic, social
and cultural rights entail only positive duties is patently inaccurate.110
40.
In sum, the historical distinction between civil and political rights and economic, social and
cultural rights has evolved into a holistic recognition of the inter-relationship between and
respective justiciability of these rights at normative level and in practice. States have repeatedly
recognized overlaps between violations of economic, social and cultural rights and violations of
civil and political rights. In jurisdictions, where the domestic machinery to adjudicate economic,
social and cultural rights is limited or unavailable, these rights have been protected “through the
judicial application of duties deriving from civil and political rights where those duties are closely
interrelated to economic, social and cultural rights obligations.”111 Importantly, even within the
limited remit of civil and political rights, environmental concerns have been linked in numerous ways
to the right to life, the right to enjoy one’s home and family life, and the right to access to justice
and to a remedy.112 Thus any attempts to argue that environmental concerns fall outside of the
ambit of the Commission’s mandate may be refuted on the basis of the fact that the enjoyment
of several civil and political rights requires a healthy environment. In this vein, States must be
responsive to evolving interpretations of international human rights law obligations, also with regard
to businesses’ human rights responsibilities, as the next section explains.