State responsibility for human rights abuses committed by non-state actors under the Constitution
Van Aardt, Willem
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In the 21t century the state is powerful and touches all aspects of everyday life. The state is in control of a country and all under its jurisdiction. Decisions made and policies implemented by the state effect its citizens. Ultimately the government of a state is responsible and liable for the human rights protection of its citizens. The buck stops with the government. This study is premised on the assumption that in terms of international Human Rights Law and national Constitutional Law, the state is responsible for human rights abuses committed by non-state actors. The first and most basic obligation of the state is to protect its citizens from the infringement of their fundamental human rights. An overview of the history and ratio of the formation of states shows that the safety of the people is the highest law. The bond between government and citizen is one of mutual obligation. The citizen adheres to the laws of the state and pays taxes and in turn, the state must protect citizens from each other and from outside threats to the citizens' fundamental human rights. Subjection implies and requires protection and protection subjection. International law and international human rights norms and principles play an increasingly important role in the world today. States are no longer free to do as they like in the domestic sphere, but are bound by international law. In this study, specific attention is given to the various international treaties that the South African government has ratified without any reservation and the international legal duties that they impose. The scope and content of state responsibility for human rights abuses committed by non-state actors under contemporary international law are examined. A comparative overview of the state's duty to protect under the Inter-American and European Systems with specific reference to the United States of America and the United Kingdom is conducted. The right to security and to be free from violence is indispensable for the exercise of all other human rights. Section 12 1 (c) of the South African Constitution expressly guarantees the right to be free from violence from both public and private sources. All other relevant constitutional imperatives and recent constitutional case law clearly indicate that there is a positive legal duty on the South African government to take reasonable measures to prevent human rights violations from occurring. Despite the constitutional guarantee, the most vulnerable in South Africa continue to suffer gross violations of their right to security on a scale unseen in other liberal constitutional democracies. In conclusion, a number of recommendations are proposed as framework to improve the current de facto situation and to contribute to the establishment of a governmental value system that actually protects human rights.
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