Achieving Compliance: Positive Duties Beyond the Courts

Abstract

Abstract This chapter examines non-justiciable compliance mechanisms. Drawing on regulatory theory, it argues that such mechanisms should move away from a fault-based notion, to focus on the body in the best position to bring about change. Rather than leaving enforcement to the ad hoc initiative of an individual, it aims to stimulate an internalization of the validity of human rights obligations. Sanctions or penalties are utilized only as the fall-back. Also of key importance is the involvement of stakeholders and others. The chapter also considers the risk that positive human rights duties might become severed from their roots as fundamental human rights and merge with policy-making. The chapter then considers possible applications of these theoretical insights, with a focus on the EU's Open Method of Coordination; reporting mechanisms, and human rights commissions. It concludes by constructing a ‘synergistic’ approach in which political, judicial, and non-judicial mechanisms work together to produce positive outcomes.