Ensuring that Others Behave Responsibly

Abstract

Governance produces a complex landscape of public power that state authorities have to take account of when discharging their duties under international human rights law. A traditional model of human rights law views the state as the primary duty-holder. However, to restrict the reach of human rights law to actions carried out by state bodies is extremely problematic in a context where the private and voluntary sectors are involved in service delivery and the boundary between the public and private is hazy. This article examines the approaches taken by international and domestic human rights law to the question of the applicability of human rights law. In this examination it draws upon the recent work of Anthony Giddens as a means of illustrating the socio-political context in which human rights law must now be implemented. The article argues that an understanding of Giddens’ evolving conception of the modern state is instructive in posing questions on the appropriate response of human rights law to governance. An analytical framework comprising three possible approaches – institutional, functional or regulatory – is put forward. The article argues that the shift to what Giddens calls the ‘ensuring’ state ought to entail a corresponding shift to a ‘regulatory approach’ in the interpretation of human rights obligations.