Duties of the Individual
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Author: Adamantia Rachovitsa
Required knowledge: sources of international law; individuals
Learning objectives: understanding the role and function of individuals duties in international human rights law
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Duties of the Individual
Under domestic law, the fulfillment of various duties by individuals is commonplace. National constitutions and ordinary legislation in almost all states in the world regularly provide, for example for the duty to pay taxes, the duty to vote, the duty to serve in the army or the duty of the parents to care for their child's well-being. Nonetheless, individuals have limited duties under international law, such as specific duties under international humanitarian law or international criminal law. The question addressed in this section is what place, if any, is given to individual duties in international human rights law.
B. Individual Duties in International Human Rights Law
International human rights instruments acknowledge the existence of individual duties. Article 29(1) of the Universal Declaration on Human Rights states that 'everyone has duties to the community in which alone the free and full development of personality is possible'. Similarly, the preambles of the International Covenant on Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights also acknowledge that individuals have duties.
With that being said, one cannot escape noticing that human rights law does not emphasise individual duties. This is because in international human rights law, states are the duty-bearers, assuming the obligation to protect certain individual rights and freedoms. The state enjoys the monopoly on exercising power and, therefore, individuals warrant protection from the abuse of power. Consequently, the decision to effectively exclude lists of individual duties from most human rights treaties was conscious, due to concerns that governments could rely on these duties to restrict human rights unlawfully. It is for this reason that one should distinguish between duties towards the state and duties towards others. Since the underlying structure of human rights entails the protection of the individual from the state, individual duties towards the state need to be carefully scrutinised so as to avoid potential abuse.
C. The Legal Appreciation of Individual DutiesEdit
In general, human rights law offers concrete avenues for the duties of the individual to be accommodated as possible restrictions on human rights as long as these restrictions have a legal basis, pursue a legitimate aim and are necessary. Individual duties may also have a certain legal bearing when interpreting the scope of human rights . The Tanganyika Law Society case is the only instance where the African Court on Human and Peoples' Rights had the opportunity to clarify the function of duties but it did not do so.
More specifically, individual duties towards the state, when in the public interest, may be considered as restrictions imposed on a human right. Human rights treaties may also contain an explicit reference to a duty. For instance, Article 19(3) ICCPR refer to the duties of journalists in he exercise of the freedom of expression. Furthermore, human rights law also takes duties towards other individuals into account. First, the 'rights and freedoms of others' is one of the legitimate aims for which certain human rights can be restricted. Second, human rights treaties may contain a clause prohibiting the abuse of rights. Third, crucially, the protection of the rights and freedoms of others has been indirectly incorporated into the growing jurisprudence on states' positive obligations, that is instances in which states are obliged to exercise due diligence so as to ensure that human rights are protected from interference from private parties. Finally, it should not go unnoticed that certain human rights treaties confer specific duties upon individuals, such as parents' duties towards their children under the Convention on the Rights of the Child (CRC).
D. Human Rights Instruments in which Individual Duties Have a Prominent RoleEdit
Specific human rights treaties and documents place a pronounced emphasis on individual duties. This is the case with the 1948 American Declaration of the Rights and Duties of Man and the 1981 Universal Islamic Declaration on Human Rights. However, no equivalent elaboration of duties found its way into the Inter-American Convention on Human Rights or the Revised Arab Charter. The only treaties that provide for detailed individual duties are the African Charter on Human and Peoples' Rights (ACHPR) (Articles 27-29) and the 1990 African Charter on the Rights and Welfare of the Child (Article 31).
The lists of duties provided in the foregoing instruments have many similarities. Most of these duties are owed to the state. Individual duties are seen as a marker of culture and a manifestation of a communitarian approach to human rights. For instance, African (rural) society is underpinned by the dialectic relationship between the individual and the group. Communitarian considerations stemming from an African, Asian or Arab perspective do not necessarily resonate with the Western, strictly individualistic human rights paradigm. The duty to preserve and strengthen positive African cultural values in one's relations with other members of society, in the spirit of tolerance, dialogue and consultation, under Article 29(7) ACHPR is an apt example. At the same time, however, casting these principles as duties may 'come dangerously close to destroying or denying human rights as they have been understood'. There is also a serious risk that states will involve duties as a pretext for imposing far-reaching restrictions on human rights.
The provisions on duties toward others may offer novel perspectives for conceptualising certain aspects of human rights law. Yet, in many instances, their vaguely phrased wording does not allow us to determine whether they are of a moral or legal nature. There is also a lack of clarity regarding who the beneficiary of a given duty is intended to be (e.g., the state, society, other individuals) or what its precise content entails. The foregoing challenges should not in themselves lead us to dismiss individual duties as a concept all together. There is scope for the implementation of individual duties on a community and societal level, thereby preserving and nurturing communal and cultural practices and values. Such practices, however, need to protect individuals from discrimination.
- F Ouguergouz, La Charte Africaine des Droits de l'Homme et des Peuples (Graduate Institute Publication 1993) 83-129
- CG Weeramantry, Islamic Jurisprudence - An International Perspective (Macmillan 1998)
Summary of main pointsEdit
- Human rights law acknowledges but does not emphasise individual duties.
- Duties of the individual may be appreciated in human rights law as possible restrictions on human rights or in the context of interpretation. The indirect consideration of individual duties manifests itself into the growing jurisprudence on states’ positive obligations.
- Individual duties are seen as a marker of culture and a communitarian approach to human rights thus offering the possibility of novel perspectives. Yet, there is a risk that states will invoke duties as a pretext for imposing far-reaching restrictions on human rights.
- The confusion surrounding their moral or legal nature, the lack of clarity regarding who the beneficiary of a given duty is intended to be or what their precise content entails are factors not favouring the exploration of the potential of duties in human rights law.
- The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
- Preambular para 5 respectively. See also Article 32(1) of the Inter-American Convention on Human Rights and Article 3(1) of the Revised Arab Charter on Human Rights.
- JH Knox, 'Horizontal Human Rights Law' (2008) 102 American Journal of International Law 1, 34.
- Tanganyika Law Society and Legal and Human Rights Centre and Revered Christopher R Mtikila v Tanzania, 14 June 2013, paras 100, 107(2), 112, 115.
- Articles 12(3), 18(3), 19(3), 21 and 22 of the ICCPR.
- Article 5 of the ICCPR; Article 17 of the European Convention on Human Rights.
- Knox (n 1) 1-2.
- Articles 3(2), 5, 9, 14(2), 18(1), 19(1) and 27(2) of the CRC.
- JAM Cobbah, 'African Values and the Human Rights Debate: An African Perspective' (1987) 9 Human Rights Quarterly 309.
- J Donelly, 'Human Rights and Human Dignity: An Analytical Critique of Non-Western Conceptions of Human Rights' (1982) 76 The American Political Science Review 303, 312.
- F Viljoen, International Human Rights Law in Africa (OUP 2007) 249.
- M Malila, The Place of Individuals' Duties in International Human Rights Law: Perspectives form the African Human Rights System (PhD thesis, University of Pretoria 2017) 270-307.
- Malila (n 10) 303-307.
- MW Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press 2002) 93.
- W Adiel, The Protection of Freedom of Expression in Africa (Edwin Mellen Press 2016) 730-770.