7.4.1 Treaties and commentaries

Most human rights conventions oblige States Parties to take certain measures, whether by domestic legislation or otherwise, in order to protect the rights of individuals in their jurisdiction. Various examples will be provided below. Some treaty provisions clearly indicate that the measures need to include remedies for victims and penalties for perpetrators in order to make the rights effective. Additionally, the States Parties' obligations are sometimes formulated in such a manner that they explicitly extend to third party acts, i.e. parties other than state agents. International law might therefore demand of States that they regulate private behaviour in order to protect human rights. For example, article 3 of the Slavery Convention (1926) clearly includes third parties:

Or, article V of the Genocide Convention (1948) which refers to penalties:

Article 1 of the European Convention on Human Rights (ECHR, 1948) requires more generally: "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

There is little doubt that the State has a duty to ensure that non-state actors in the private sector do not engage in direct or indirect discrimination. In that respect, the International Convention on the Elimination of All Forms of Racial Discrimination (1965) reads in article 2(d): "Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation." [Emphasis added]1

Article 2 of the International Covenant on Civil and Political Rights (ICCPR, 1966) stipulates in respect of the States Parties' obligations:

Articles 1 and 2 of the American Convention on Human Rights (Pact of San Jose, Costa Rica, ACHR, 1969) and article 1 of the African [Banjul] Charter on Human and Peoples' Rights (ACHPR, 1981) placed similar duties on State Parties.

By article IV.2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), the State Parties to this Convention also pledged to act in respect of third parties:

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) has been in the forefront of efforts to make it clear that States have positive duties to protect individuals from violent acts of other individuals and groups. Respectively, Articles 2 (e),(f) and 5(a) cite that the State Parties commit:

The UN Committee on the Elimination of Discrimination against Women (CEDAW Committee)2 builds on the concept of due diligence under general international law to protect individuals from infringements of their rights committed by non-state actors. See its General Recommendation 19 (1992), paragraph 9, which focused on how to prevent violations:

This was followed by similar wording in the UN Declaration on the Elimination of Violence Against Women (1993). Article 4(c) was adopted by consensus and

avows:

The references to due diligence in these last two texts have been used to develop a set of positive obligations for States with regard to violence by non-state actors.5 An example can be found in the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para, 1994), i.e. the first human rights convention which explicitly mentions the term due diligence (article 7(b)):

A similar view was employed in 2004 by the Human Rights Committee in its General Comment regarding the ' Nature of the general legal obligation imposed on States Parties to the Covenant' (i.e. the treaty body to the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)). This Committee recommended:

The Inter-American Commission on Human Rights (2008),7 and the political bodies of the Council of Europe (2002)8, and the UN General Assembly (2004)9 have also recognised due diligence standards as requiring swift and effective action against perpetrators of human rights. Furthermore, the due diligence standard as a tool for the elimination of violence against women was the main subject of the 2006 Report of Yakin Erturk, the UN Special Rapporteur on Violence against Women.10 Erturk has consistently noted that where the State fails to act with due diligence to prevent violence, including by private actors operating in the private sphere, or to investigate and punish such violence or provide compensation, the State can be held internationally responsible for the infringement upon a human right by private acts.

The above quotations provided some examples of the use of the term 'due diligence' in human rights law. Yet, when 'due diligence' is used in a treaty text or in commentaries by treaty bodies, the concept remains broad. It is therefore valuable to study how international human rights courts have interpreted its meaning in specific cases.