Chapter 2 | Page 51
place, non-intervention or respecting of this right by the State could not be very
meaningful for these individuals.
The obligation to protect requires the State to take legislative, administrative
and other steps, to prevent and forbid the violation of rights and freedoms by
third parties. Obligation to protect involves a higher level of State expenditure,
particularly in relation to the legal and administrative mechanisms required for
the prevention of third party violations. For example, in order to protect the
right to work, the State must put in place proper legal and regulatory
safeguards to ensure that individuals are able to enjoy this right free from
abuse and violations by employers and others.
The obligation to fulfil requires the State to take positive measures and ensure
the effective realisation of the rights.24 Although the term ‘fulfil’ has a positive
connotation, this should not be taken to mean that the State only has an
obligation to directly provide for individual rights. Rather, the State must focus
on facilitating, promoting and, only where necessary, providing to ensure the
enjoyment of these rights. The key part of this obligation is the responsibility
and commitment to take appropriate measures to enable and empower
individuals and groups to provide the facilities and services for themselves in
order to enjoy their rights. The State’s obligation to provide is relevant only ‘in
situations where the individuals are not able to ensure adequate access by
their own means’,25 or ‘providing the remainder of what individuals cannot
provide for on their own’.26
Supplementing individuals’ efforts to realise their rights by providing the
necessary support is in keeping with the idea of ‘bringing capabilities for
people’.27 This approach better aligns with notions of human dignity, as
24
Peter R Baehr, Human Rights: Universality in Practice (Palgrave, London, 2001), 33.
25
Economic and Social Council, Report of the United Nations High Commissioner for
Human Rights, Geneva, Agenda Item 14 (g) of the provisional agenda, UN Doc E/2007/82
(25 June 2007), 10.
26
Künnemann, above n 15, 328.
27
Sigrun Skogly, 'Is there a right not to be poor?' (2002) 2(1) Human Rights Law Review 5980, 63.
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