Obligation to Respect

The framework of state obligations under International Human Rights Law (IHRL) is commonly understood in terms of three levels or types of obligations: to Respect, to Protect, and to Fulfill. This framework, while particularly prominent in the context of Economic, Social, and Cultural Rights, is applicable to all human rights, including civil and political rights. The obligation to Respect is the most immediate and perhaps the most intuitive of these obligations.

Not to violate human rights

The obligation to Respect requires states to refrain from interfering with or curtailing the enjoyment of human rights. Essentially, it is a negative obligation, demanding that the state and its agents (government officials, police, military, etc.) do no harm. The state must not directly violate the human rights of individuals or groups within its territory or subject to its jurisdiction.

This means the state must abstain from:

• Arbitrarily killing, torturing, or subjecting individuals to cruel, inhuman, or degrading treatment (related to the right to life and freedom from torture).
• Arbitrarily arresting or detaining individuals (related to the right to liberty and security of person).
• Suppressing peaceful assembly or freedom of expression without lawful justification and necessity.
• Interfering with an individual's privacy, family life, home, or correspondence without proper legal basis.
• Forcibly evicting people from their homes or destroying property without providing alternative housing, compensation, and due process (related to the right to adequate housing).
• Preventing individuals from accessing essential services like healthcare or education where they exist and are accessible (related to the right to health and education).
• Discriminating against individuals or groups in the enjoyment of their rights.

For instance, in India, the state's obligation to Respect the right to freedom of speech (Article 19(1)(a) of the Constitution, which mirrors Article 19 of the ICCPR) means that government authorities should not arbitrarily censor speech or shut down media outlets simply because they are critical of the government, unless such restrictions fall strictly within the permissible limits defined by law and international standards (e.g., incitement to violence, defamation). Similarly, the obligation to Respect the right to health means that public hospitals should not turn away patients in emergency situations if they have the capacity to treat them.

This obligation highlights the state's fundamental duty to exercise its power within the bounds set by human rights law, acting as a shield for individuals against state overreach.

Obligation to Protect

The second core state obligation under IHRL is the obligation to Protect. This obligation requires states to take measures to prevent human rights violations by third parties. It is an obligation that goes beyond merely refraining from state action; it imposes a duty on the state to act defensively, creating a protective environment.

Prevent human rights violations by third parties

The obligation to Protect requires the state to implement legal, policy, and institutional measures to ensure that non-state actors (such as individuals, groups, corporations, or other private entities) do not violate the human rights of others. This means the state must:

• Enact and enforce laws that prohibit and punish human rights violations by private actors (e.g., laws against assault, murder, discrimination by employers, domestic violence, child abuse).
• Regulate the conduct of private entities, including businesses, to prevent them from causing human rights harm (e.g., environmental regulations to protect the right to health, labour laws to protect workers' rights, regulations for housing standards).
• Provide access to effective remedies for victims of human rights violations committed by third parties, including access to courts and other grievance mechanisms. This ensures that victims can seek justice, compensation, and hold perpetrators accountable.
• Take preventative measures where there is a foreseeable risk of human rights violations by private actors (e.g., providing police protection in areas prone to communal violence, regulating dangerous industrial activities).

Consider some examples in the Indian context:

• The state's obligation to Protect the right to life (Article 21) requires it to have a criminal justice system to prosecute individuals who commit murder or assault. It also requires the police to take action to prevent violence between communities.
• The obligation to Protect the right against exploitation (Article 23 & 24) requires the state to enact and enforce laws against human trafficking, bonded labour, and child labour perpetrated by individuals or private businesses. The Juvenile Justice (Care and Protection of Children) Act, 2015, and various labour laws serve this protective function.
• The obligation to Protect the right to a healthy environment (derived from Article 21 by the judiciary) requires the government to regulate industrial pollution caused by private companies (e.g., under the Environmental Protection Act, 1986).
• The obligation to Protect women's rights (derived from Article 14, 15, 21 etc.) requires the state to enact and enforce laws against domestic violence, sexual harassment in the workplace (as mandated by the Vishaka Guidelines, now formalised in law), and other forms of violence and discrimination by private individuals.

This obligation is crucial for ensuring that human rights are protected not only from state abuses but also from harm inflicted by powerful non-state actors within society.

Obligation to Fulfill

The third core state obligation is the obligation to Fulfill. This requires states to take positive action to facilitate or provide for the enjoyment of human rights. It is generally seen as the most demanding obligation, particularly for Economic, Social, and Cultural Rights, as it often requires significant resource allocation and programmatic efforts by the state.

Take positive steps to realize human rights

The obligation to Fulfill requires the state to actively create an enabling environment where individuals can realise their human rights. This includes taking legislative, administrative, budgetary, and other measures to ensure that individuals have access to the necessary resources, services, and opportunities. The obligation to fulfill can be further broken down into sub-obligations:

• Obligation to Facilitate: The state must create conditions under which individuals and communities can realise their rights themselves (e.g., establishing a regulatory framework that allows individuals to set up schools or healthcare facilities).
• Obligation to Provide: Where individuals or communities are unable for reasons beyond their control to enjoy a right by the means at their disposal, the state must directly provide the necessary resources or services (e.g., providing free primary education for all children, establishing public healthcare services, providing social security benefits to the unemployed or elderly).

Unlike civil and political rights, which are often seen as requiring immediate implementation (subject to permissible limitations), Economic, Social, and Cultural Rights under the ICESCR are generally subject to progressive realisation (Article 2(1) ICESCR), acknowledging that full achievement may take time and depend on resource availability. However, progressive realisation does not mean inaction. States must take deliberate, concrete, and targeted steps towards the full realisation of rights to the maximum of their available resources, without discrimination, and avoid retrogressive measures.

Examples of the obligation to Fulfill in India:

• The obligation to Fulfill the right to education (Article 21A) requires the state to establish and maintain schools, train teachers, develop curriculum, and provide free and compulsory education to children aged 6-14 through laws like the RTE Act, 2009. This involves significant budgetary allocation and infrastructure development.
• The obligation to Fulfill the right to health (derived from Article 21) requires the state to build hospitals and health centres, train medical professionals, implement public health programmes (e.g., vaccination drives, sanitation initiatives), and work towards providing universal healthcare access.
• The obligation to Fulfill the right to an adequate standard of living (derived from Article 21 and DPSP Article 47, also Article 11 ICESCR) requires the state to implement policies for poverty reduction, housing schemes (like Pradhan Mantri Awas Yojana), food security programmes (like the Public Distribution System and the National Food Security Act), and employment generation schemes (like MNREGA).
• The obligation to Fulfill the right to social security (DPSP Article 41 & 43, also Article 9 ICESCR) requires the state to establish pension schemes, provident funds, and public assistance programmes for vulnerable groups.

The obligation to Fulfill transforms human rights from mere protections into entitlements that require active state participation in creating the conditions necessary for human flourishing. Together, the obligations to Respect, Protect, and Fulfill provide a comprehensive framework for understanding the multifaceted responsibilities of states under international human rights law, highlighting that ensuring human dignity requires states to both refrain from harmful actions, prevent harm by others, and actively work towards the realisation of rights for all.

Acts of State organs and officials

In International Human Rights Law (IHRL), the question of attributing conduct to the state is fundamental to determining state responsibility for human rights violations. A state can only be held responsible under international law for actions or omissions that are considered attributable to it. The most straightforward category of attributable conduct is the actions of the state's own organs and officials.

Concept of Attribution

Under international law, particularly as reflected in the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) adopted by the International Law Commission (ILC), the conduct of any state organ is considered an act of that state under international law, regardless of the organ's position in the state's structure (legislative, executive, judicial, or any other function) and regardless of its character as central or territorial unit of the state (ARSIWA Article 4).

Furthermore, the conduct of a person or entity who is not a state organ but is empowered by the law of that state to exercise elements of governmental authority shall be considered an act of the state under international law, provided the person or entity is acting in that capacity in the instance in question (ARSIWA Article 5). This can include public corporations or private entities vested with public functions.

Conduct in Official Capacity

Crucially, conduct is attributable to the state if it is performed by an organ or official acting in their official capacity, even if the conduct is *ultra vires* (exceeds their legal authority) or contravenes instructions (ARSIWA Article 7). The rationale is that the official is using the means and power provided by their official position, and the state should be responsible for controlling its own agents. This prevents states from escaping responsibility by claiming their officials acted improperly or without specific authorisation.

Examples in Indian Context

Illustrations of acts attributable to the State in India would include:

• Executive Actions: Arbitrary detention ordered by a police officer, torture inflicted by security forces personnel, a discriminatory order issued by a government official. Even if the torture is illegal under domestic law, the act of the police officer, acting in their official capacity, is attributable to the State of India under IHRL.
• Legislative Actions: Enactment of a law by the Parliament or a State Legislature that violates a human right guaranteed by a treaty India has ratified (e.g., a law permitting discrimination contrary to the ICCPR or CERD).
• Judicial Actions: A decision by a court that denies a fair trial or imposes a punishment prohibited by IHRL (e.g., a court upholding a practice deemed by an international body to be a form of cruel, inhuman, or degrading treatment).
• Actions of other Public Entities: Actions by officials of a municipal corporation, a public sector undertaking vested with governmental authority, or even seemingly private entities performing public functions (like detaining individuals at an airport) if they are empowered by law to exercise governmental authority.

The conduct of any individual who is part of the state's formal apparatus, from the highest elected official to a local police constable or municipal worker, when acting in their official role, is considered the conduct of the state for the purposes of international responsibility.

Acts of private individuals or entities acting under state direction or control

Generally, the conduct of purely private individuals or entities (those not acting as state organs or exercising governmental authority) is not directly attributable to the state under international law. A state is not responsible for every human rights violation committed by its citizens or corporations against others.

However, there are specific circumstances where the actions of private actors can become attributable to the state, giving rise to state responsibility under IHRL. These exceptions are also covered by the ARSIWA.

Circumstances of Attribution

Conduct of a person or group of persons shall be considered an act of a State under international law if:

• Acting on Instructions or under Direction or Control (ARSIWA Article 8): The person or group is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. This is a high threshold; it requires proving that the state directed or controlled the specific conduct that led to the violation. General control over a group's activities is usually not sufficient; specific control over the impugned conduct is often required by courts and tribunals.
• Exercising Elements of Governmental Authority in Absence of Official Authorities (ARSIWA Article 9): The person or group is in fact exercising elements of the governmental authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority. This applies to situations where the state apparatus has collapsed or is non-functional, and private actors step in to perform essential public functions (like maintaining order or providing basic services).
• Conduct Acknowledged and Adopted by the State (ARSIWA Article 11): The conduct is acknowledged and adopted by the State as its own. This covers situations where the state was not involved in the initial private act but subsequently endorses it as state conduct.

State Responsibility for Failing to Protect

Even when the conduct of a private actor is not directly attributable to the state under these strict criteria, the state can still be held responsible under IHRL for its *own* act or omission in relation to the private conduct. This typically falls under the state's obligation to Protect.

The state is responsible if it fails to exercise due diligence to prevent, investigate, prosecute, and punish human rights violations committed by private actors, or to provide effective remedies to victims. In this case, the state's internationally wrongful act is not the private conduct itself, but its own failure to take appropriate measures as required by its human rights obligations.

Examples in Indian Context (Attribution vs. Failure to Protect)

• Paramilitary/Militia Groups: If a state government in India secretly instructs or directs a private militia or vigilante group to attack a specific community, the actions of the militia could potentially be attributable to the state under Article 8 of ARSIWA. However, proving this specific direction or control can be difficult.
• Failure to Protect from Private Violence: If a communal riot occurs and the police are present but stand by and allow members of one community to attack another, the state is responsible for failing to protect the right to life and security of the victims, even though the physical acts of violence were committed by private individuals. This is a breach of the obligation to Protect.
• Corporate Harm: If a private company in India violates environmental laws leading to severe pollution that harms public health (violating the right to health), the company's act is not directly attributable to the state. However, the state could be responsible if it failed to enact adequate environmental regulations, failed to monitor the company, failed to enforce the laws, or failed to provide access to remedies for the affected community. This would be a breach of the state's obligation to Protect and potentially Fulfill.
• Private Detention: If a private security company is contracted to manage a detention centre and its guards engage in torture, the state might be responsible under Article 5 of ARSIWA if the company is exercising elements of governmental authority (like detention) under the law. Even if not, the state would be responsible for failing to regulate, supervise, and monitor the private company to prevent torture (breach of obligation to Protect).

In practice, when a human rights violation involves private actors, IHRL usually addresses the state's responsibility through its failure to meet its obligations to protect individuals from such acts, rather than directly attributing the private act to the state, unless the link between the state and the private conduct is very strong (direction, control, or adoption).

Breach of Treaty Obligations

A state incurs responsibility under International Human Rights Law when it commits an internationally wrongful act. According to ARSIWA Article 2, an internationally wrongful act exists when conduct consisting of an action or omission:

• Is attributable to the State under international law; and
• Constitutes a breach of an international obligation of the State.

In the context of human rights treaties, a breach of obligation occurs when the conduct attributable to the state is not in conformity with what is required of it by that treaty, regardless of the conduct's character (ARSIWA Article 12). This means the state has failed to meet the standard of conduct or result required by the human rights obligation it has voluntarily undertaken by ratifying the treaty.

Failure to Meet Obligations to Respect, Protect, or Fulfill

A state breaches its human rights treaty obligations if its attributable conduct (act or omission) is inconsistent with any of the three levels of obligations:

• Breach of the Obligation to Respect: This occurs when the state, through its organs or officials, directly violates a human right (e.g., arbitrary killing by police, censorship of speech, discriminatory laws). This is typically an immediate obligation – the state must refrain from such acts *now*.
• Breach of the Obligation to Protect: This occurs when the state fails to take necessary and reasonable measures to prevent human rights violations by private parties, or fails to investigate, prosecute, and provide remedies for such violations (e.g., failure to prosecute perpetrators of domestic violence, failure to regulate polluting industries, inaction against caste-based discrimination by non-state actors). This requires the state to establish and maintain a functioning legal and institutional framework.
• Breach of the Obligation to Fulfill: This occurs when the state fails to take positive steps required to facilitate or provide for the realisation of human rights, particularly economic, social, and cultural rights (e.g., failure to allocate maximum available resources towards primary education, failure to adopt a national health policy addressing preventable diseases, taking retrogressive measures that worsen access to housing without justification). For many ESC rights, the standard is not immediate full realisation, but demonstrating continuous and deliberate progress towards full realisation, without discrimination. A breach occurs if the state is not taking steps, is taking steps below its available resources, is discriminating in its efforts, or is deliberately taking steps backward.

Establishing a Breach

To establish a breach, it must be shown that:

• An act or omission occurred that is attributable to the state.
• The state has a binding international human rights obligation (i.e., it has ratified the relevant treaty).
• The state's act or omission is inconsistent with the content of that obligation (Respect, Protect, or Fulfill), based on the standard of obligation required by the treaty (immediate or progressive realisation).

Human rights treaty bodies (like the Human Rights Committee or the CESCR) play a key role in assessing whether a state is in breach of its obligations, primarily through their review of state reports and their Concluding Observations, and for states that have accepted the relevant procedures, through examining individual communications or conducting inquiries.

For example, if India, having ratified the ICESCR, significantly cuts its budget for primary education without a compelling justification, resulting in a decline in school enrollment and quality, the CESCR might find this to be a retrogressive measure and a breach of India's obligation to progressively realise the right to education under Article 13 of the ICESCR.

Similarly, if the Human Rights Committee (monitoring ICCPR) finds through its reporting procedure that arbitrary detentions by police are widespread and systematic in India, it might conclude that India is breaching its obligation to Respect the right to liberty (Article 9 ICCPR) and potentially its obligation to Protect from arbitrary detention by state agents by failing to adequately train or discipline police.

The legal consequence of a breach of a human rights obligation is state responsibility, which entails consequences such as the duty to cease the wrongful act (if it is ongoing), the duty to provide assurances of non-repetition, and the duty to make full reparation for the injury caused (including restitution, compensation, and satisfaction).

Circumstances Precluding Wrongfulness

In international law concerning the responsibility of states for internationally wrongful acts, certain circumstances can operate to preclude the wrongfulness of conduct that would otherwise constitute a breach of an international obligation. This means that even if a state's action or omission is inconsistent with an international obligation (such as a human rights treaty obligation), the conduct is not considered internationally wrongful if one of these circumstances is present and operative. These circumstances do not nullify the obligation itself, but provide a legal justification for the state's non-performance in that specific instance.

However, it is absolutely crucial to note that in the context of International Human Rights Law (IHRL), these circumstances are subject to strict limitations. According to Article 26 of the ILC's Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), "Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law." Peremptory norms, or *jus cogens*, are fundamental principles of international law accepted by the international community of states as norms from which no derogation is ever permitted. Many core human rights, such as the prohibitions of genocide, torture, slavery, racial discrimination, and potentially arbitrary deprivation of life, are considered *jus cogens*. Therefore, circumstances precluding wrongfulness generally cannot be invoked to justify violations of such fundamental human rights.

Consent, Self-defence, Force Majeure, Distress, Necessity

Here are the main circumstances precluding wrongfulness as codified in ARSIWA, along with their limited applicability in IHRL:

Consent (Article 20)

The consent of a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent. In the human rights context, this is rarely applicable as human rights obligations are primarily owed to individuals within the state's jurisdiction, not just to other states. A state cannot consent to another state violating the human rights of people within its territory.

Self-defence (Article 21)

The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations (Article 51). While states have the right to self-defence, measures taken in self-defence must still comply with international humanitarian law (which applies during armed conflict) and international human rights law (which applies at all times). For example, lethal force in self-defence must still adhere to the principles of necessity and proportionality, and *jus cogens* norms like the prohibition of torture or arbitrary killing remain binding even in self-defence scenarios.

Force Majeure (Article 23)

The wrongfulness of an act of a State not in conformity with an international obligation is precluded if the act is due to force majeure, that is, the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. This applies only if the situation was not caused by the state's own conduct. In IHRL, force majeure might, in very exceptional circumstances, preclude the wrongfulness of failing to *fulfill* certain socio-economic rights (e.g., inability to deliver essential services due to a sudden, devastating natural disaster), but it cannot justify violations of civil and political rights or *jus cogens* norms (e.g., a natural disaster does not justify arbitrary detention or torture).

Distress (Article 24)

The wrongfulness of an act of a State not in conformity with an international obligation is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author's life or the lives of other persons entrusted to the author's care. This applies to situations where an individual state agent is forced to breach an international obligation to save lives (e.g., a captain of a state vessel entering a foreign port without permission to save the lives of those on board due to a storm). Like force majeure, this circumstance cannot justify violations of *jus cogens* norms. In human rights terms, it might be relevant for an official breaching a minor rule to save lives, but not for committing torture or arbitrary killing.

Necessity (Article 25)

Necessity refers to situations where a state's action, not in conformity with an international obligation, is the only way for the State to safeguard an essential interest against a grave and imminent peril, and the act does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. This is a highly restrictive circumstance, rarely accepted by international courts, and Article 25(2) explicitly states that necessity cannot be invoked if the international obligation in question excludes the possibility of invoking necessity, or if the State has contributed to the situation of necessity. Most importantly, necessity cannot be invoked to justify violations of human rights that protect essential interests of the international community, particularly *jus cogens* norms. For instance, no claim of national security necessity can justify torture or genocide.

In summary, while these circumstances exist in international law, their application to human rights obligations is severely limited, particularly regarding non-derogable rights and *jus cogens* norms, reflecting the fundamental and absolute nature of certain human rights protections.

Reparation for violations

When a State commits an internationally wrongful act, including a violation of its human rights obligations, it incurs international responsibility. A primary consequence of this responsibility is the obligation to make full reparation for the injury caused by the internationally wrongful act (ARSIWA Article 31). The fundamental principle of reparation, as articulated by the Permanent Court of International Justice in the 1928 *Chorzow Factory* case, is that it must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.

In the context of human rights violations, reparation aims not only to compensate the victim but also to ensure accountability, prevent recurrence, and restore dignity.

Restitution, Compensation, Satisfaction, Guarantees of non-repetition

ARSIWA Article 34 outlines the forms that full reparation may take. These forms are not mutually exclusive and are often combined to provide adequate redress for human rights violations:

Restitution (Article 35)

Restitution is the primary form of reparation. It aims to re-establish the situation that existed before the internationally wrongful act was committed, provided this is not materially impossible and does not involve a burden out of all proportion to the benefit derived from restitution instead of compensation. In the human rights context, examples include:

• Release from arbitrary detention or imprisonment.
• Return of confiscated property.
• Repeal or amendment of laws found to be in violation of human rights.
• Reinstatement in employment if dismissal was wrongful.
• Restoring nationality wrongfully revoked.

Restitution is about restoring the status quo ante.

Compensation (Article 36)

Compensation is required to cover any damage, including material and moral damage, caused by the internationally wrongful act, insofar as such damage is not made good by restitution. Compensation is the monetary element of reparation. It aims to place the victim in a position equivalent to the one they would have been in financially had the violation not occurred. In human rights cases, compensation can cover:

• Loss of earnings due to arbitrary detention, injury, or loss of life.
• Medical expenses resulting from torture or mistreatment.
• Cost of psychological or physical rehabilitation.
• Moral damage (pain, suffering, anguish, loss of opportunity) suffered by the victim and their family. Assessing moral damage often involves considering the severity of the violation, its duration, and its impact on the victim's life.

Compensation is a crucial form of reparation, particularly when restitution is impossible or insufficient.

Satisfaction (Article 37)

Satisfaction is required for the injury caused by an internationally wrongful act insofar as it cannot be made good by restitution or compensation. Satisfaction addresses non-material injury and aims to restore the dignity of the victim and acknowledge the wrongfulness of the state's conduct. It must not be out of proportion to the injury and may not take a form humiliating to the responsible State. Forms of satisfaction in human rights cases include:

• Formal acknowledgment of the breach by the responsible state.
• A public apology by the state.
• Bringing to justice those responsible for the violation (investigation and prosecution).
• Public commemoration of the victims.
• Judicial pronouncements of the violation by national or international courts.

Satisfaction is particularly important for egregious violations or where material loss is difficult to quantify but the moral injury is significant.

Guarantees of non-repetition (Article 30(b))

Although listed as a separate consequence of an internationally wrongful act in ARSIWA Article 30, Guarantees of non-repetition are often considered an integral part of full reparation in human rights cases, aimed at preventing future violations. This requires the state to take measures to ensure that similar violations do not occur again. Examples include:

• Repeal or amendment of laws that facilitated the violation.
• Implementation of effective training programmes for state officials (e.g., police, judiciary, prison staff) on human rights standards.
• Strengthening of domestic legal and institutional frameworks for human rights protection (e.g., establishing independent oversight bodies).
• Disciplinary measures against responsible officials (beyond criminal prosecution, which falls under satisfaction/accountability).

The combination of these forms of reparation aims to provide comprehensive redress to victims of human rights violations, hold the state accountable, and contribute to preventing future abuses. The determination of appropriate reparation is often made by national courts or international human rights bodies (like the European Court of Human Rights or the Inter-American Court of Human Rights) when they find a state has breached its human rights obligations.