7.4.0 Introductie

International human rights treaties require of the parties to such treaties, i.e. the State Parties, to ensure that their citizens can enjoy human rights. The obligations on State Parties are often categorised in three levels: the obligations to respect, to protect and to fulfil human rights. These obligations entail that States should withhold from violating these rights, but also that they should take measures to assure that the rights will not be violated and will be fulfilled.

The duty to protect is commonly referred to as a 'positive obligation' (or 'responsibility from omission' or 'duty of due diligence').1 Referring to this positive State obligation, an individual whose rights have been violated by another private actor, can call upon his rights towards the State.2 If the police or a court as state agents do not protect the human rights of such individual when called upon, the State can be considered to have violated its international responsibilities under the relevant human rights treaty.3 As States obviously cannot control the behaviour of private actors, the fulfilment of their positive obligation cannot be measured by the achieved result: it therefore qualifies as a ' due diligence' obligation, i.e. the State is expected to employ all possible means and measures to prevent violations.

The term ' due diligence' is often used in international law as an indicator of the level of effort that a State Party to a treaty should employ to discharge its obligations under such a treaty: has the State applied due diligence?4 According to Professor Malcolm Shaw, the test of due diligence is in fact the standard that is accepted generally as the most appropriate one, at least in the context of preventing harm to another State by environmental pollution.5 He points out that the due diligence test undoubtedly imports an element of flexibility into the equation and must be applied in the light of the circumstances of the case in question. Case law has catered for new norms and instruments applicable to the State duty to employ due diligence. For instance, the elements of remoteness and foreseeability have become part of the framework of the liability of States: a State must base its actions on an assessment of possible risks and harm. Furthermore, due diligence refers to those measures which are generally considered to be appropriate and proportionate to the degree of risk of harm in the particular instance. The measures can include legislative, administrative and other actions, including the establishment of suitable monitoring mechanisms to implement the measures.6

The duty of States to take any necessary measures to protect individual rights is developed in case law pertaining to human rights. In order to understand this concept, one should look closely at the context in which positive obligations are recorded, and specifically the rights at issue, and what extent of effort - the due diligence - is required.