This orthodox view has been challenged on at least two fronts. On one hand,
many argue that due to globalization the state has lost much of its control on what
happens in a given country. As such, it is unrealistic to hold the state accountable
for violations where the primary agents are multinational corporations, interna-
tional organizations, organized crime or terrorist groups. It has become necessary to
target these entities directly.
On the other hand, academics and activists involved with, for instance, women’s
rights or the rights of children find that there are patterns of rights violation that are
so subtle and pervasive that it is impossible to address them through the state
mechanism without destroying private life. As an alternative, they argue for
human rights education, according to which every person should see himself not
only as a right holder but also as a duty bearer towards his fellow men.
Indirect Application to Nonstate Agents Legally speaking, the idea that the sole
duty bearer for human rights is the state is quite secure. Nevertheless, human rights
law has been applied indirectly to nonstate agents through three legal constructions.
One is the duty to protect, which will be explained in the next subsection. The second
is the doctrine of vicarious liability, according to which under certain circumstances
the acts of certain individuals that do not officially represent the state are construed
as acts of the state. The third doctrine is that of “irradiation effect,” according to
which normal statutes such as the Civil Code or the Criminal Code should be
interpreted in light of constitutional principles, which often include human rights.
12.5.2 Types of Duties
Negative and Positive Rights Historically, there has been significant tension
between “negative” or “liberty” rights and “positive” or “welfare” rights. The
first refer to rights that secure for the individual a space free of state intervention,
and the second refers to rights that aim to secure state intervention that guarantees a
minimum level of well-being to individuals. Freedom of speech and the right to
privacy are typical examples of the first set of rights, and the right to housing and
the right to food are typical examples of the second.
The division between the two sets of rights is usually meant to discriminate
against the positive rights on grounds that state intervention is, generally speaking,
a dangerous thing, or because they are costly and cannot realistically be enforced on
a universal basis.
At the UN level, the negative rights are called “civil and political rights” and the positive
rights are called “economic, social and cultural rights”. The tension between these two sets
of rights was a dominant theme in the drafting of the main UN global treaties for the
protection of human rights. The Universal Declaration of Human Rights (UDHR) included
both types and at first the idea was to make a single binding human rights treaty with the
same content as the UDHR. Nevertheless, first world countries strongly resisted the
inclusion of economic, social and cultural rights in a binding treaty, while socialist
countries championed their primacy. As a result of this controversy, it was decided to
split the rights into two covenants, resulting in the ICCPR and the ICESCR we have today.12 Human Rights 271