1 Normative character of international human rights
1.3 Obligations and violations approach
The most common approach analyses human rights norms from the perspective of indi
vidual. The rights approach is interested in subjective rights. The common deficiency of this
33See e.g. at 2 of the Declaration on the Rights to Development.
34Family, NGO, unions etc.
35Eide, 2001.
36The research will not touch upon the obligation of the first two dutyholders and will concentrate in different obligations of the state.
system is making conclusions on the subjective nature of right without fully discussing all the obligations imposed on state.
Another way of analysing these norms is from the perspective of state obligations. For ex
ample, obligations of the state in protecting right to health differ substantially from obligations in protection of right to vote.
Classification of state obligations helps to analyse material scope of rights in order to conclude, what are the measures the state has to take in order to provide full realization. Fur
thermore, as the consequences of obligations differ, the consequences of violations of rights can be looked at in more systematic way. As the current research deals with international ob
ligations of the states, only the minimum core obligations of right to social security can be found. The possible consequences are not discussed.
The text of the ECS and CESCR is laconic, thus the practice of the supervisory bodies the European Committee on Social Rights and UN Committee on Social, Economic and Cultural rights, has to be researched. These bodies make their conclusions based on state reports and they do not have the authority to address individual complaints. Therefore they approach the protection of individual human rights through the prism of the responsibility of the state. This makes their practice particularly valuable for the research.
It is relatively common to analyse compliance with international human rights instruments by enumerating acts and omissions which constitute violations – the socalled violations ap
proach.37 It was first introduced in 1996 by Audrey Chapman and number of other researchers have since discussed international instruments from the perspective of violations.38 The most detailed development in this regard was the adoption of Maastricht Guidelines on the Viola
tions of Economic, Social and Cultural Rights39 which was the result of unanimous agreement of more than 30 experts in the field of human rights and economic and social rights in particu
lar.
Current study takes an obligations approach with primary focus on the obligations that in
37Chapman, 1996.
38See e.g. Leckie, 1998; Dankwa, Flinterman and Leckie, 1998.
39Maastricht Guidelines.
ternational instruments impose on States Parties. It is well established that failure of a state to comply with the obligations in the international instruments is a violation of a treaty.40
Third possible approach for analysing rights is violations approach. It starts with identify
ing the violations of the rights i.e. it identifies the acts of omissions by which the state fails to comply with the instruments without first identifying these obligations.
When Chapman first introduced the “violations approach” she noted that a systematic monitoring of economic, social and cultural rights required five methodological precondi
tions:
1. conceptualization of the specific components of each enumerated rights and the con
comitant obligations of States Parties;
2. delineation of performance standards related to each of these components, including identification of potential major violations;
3. collection of relevant data, appropriately disaggregated by sex and variety of other variables;
4. development of an information management system for these data to facilitate ana
lysis of trends over time and comparison of the status of groups within a country;
5. ability to analyse this data in order to determine patterns and trends.41
None of these 5 conditions was fulfilled at the time and therefore “violations approach”
was the most feasible and effective alternative to monitor economic, social and cultural rights.42
M. Sepulveda has suggested that although Chapman's position was coherent and consist
ent in her time Now it is time to define the obligations as definition of obligations is the first logical step in determining whether a violation exists.43 Author of the current research be
40ILC Draft Articles on State Responsibility, 2001, article 12 provides that there is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character. For commentaries on draft articles see Crawford, 2002.
41Chapman, 1996, p. 29.
42Chapman, 1996, p. 29 and 36.
43Sepulveda, 2003, p 2022.
lieves that this approach proves to be more useful for the benefit of the States Parties, because in order to know whether certain facts disclose a violation of international obligations, it is ne
cessary to first establish with precision the content of these obligations and the normative content of the rights.
Concentration on obligations rather than violations does not mean that the two approaches are alternatives to each other. Rather, they complement each other. The obligations approach is the first step in identifying possible state obligation. Second step would be identification of possible violations of these obligations and the third would concentrate on the international/national measures and remedies as well as the question of justiciability.
In the ILC articles on state responsibility the search for the concrete obligations under in
ternational law corresponds to the search for primary norms and violation of these norms brings international responsibility that is contained in the secondary norms of the ILC draft articles.44
The European Court of Human Rights has noted that the European Convention on Human Rights:
“[...] comprises more than mere reciprocal engagements between the contracting States. It creates, over above a network of mutual bilateral undertakings, objective ob
ligations which[...] benefit from “collective enforcement”.45
Thus, as human rights treaties entail unilateral commitments, that other states can not be relied upon to ensure compliance. The institution of international supervisory mechanisms through the creation of international human rights courts or semijudicial organs has become the accepted form to guarantee effective compliance with human rights treaty obligations.
44The ILC has stated that it must be stressed again that the articles do not purport to specify the content of the
primary rules of international law, or of the obligations thereby created for particular States. In determining whether given conduct attributable to a State constitutes a breach of its international obligations, the principal focus will be on the primary obligation concerned. It is this which has to be interpreted and applied to the situ-ation, determining thereby the substance of the conduct required, the standard to be observed, the result to be achieved, etc. There is no such thing as a breach of an international obligation in the abstract, and chapter III can only play an ancillary role in determining whether there has been such a breach, or the time at which it occurred, or its duration. ILC Draft articles, Commentaries 2001, Chapter 3, para. 2.
45ECtHR: Ireland v. United Kingtom.