Each human right constitutes either a public law relationship between human beings and public authorities or a relationship between private parties.
While the first kind of normative standard aims at having the most fundamental human values and needs to be protected against excessive interference by public authorities (the vertical dimension), the second aims at protecting individuals from private parties’ acts that violate their human rights (horizontal dimension). When the State seeks to implement the obligation to protect, it is required to impose duties on persons subject to their jurisdiction.
The most typical normative structure of a human right is composed of four characteristic components. First, a subject, or more precisely, a right holder, by whom we mean an individual (natural person), a group of individuals or a non-governmental organization entitled to the legal rights and, depending on their procedural capacity, to take legitimate action to secure those rights. Secondly, a duty-holder, that is an entity, normally the State or the Government, obliged either to realize the subject’s demands or to create the conditions necessary for their realization. Irrespective of the domestic principle of separation of powers, under international law these are governments, which represent all the three powers in international relations (the executive, the legislature and the judiciary)
and thus assume responsibility for their conduct. Thirdly, an object, that is the content of any given right and any corresponding duties of the bipolar parties in the realization of that right. Finally, implementation, that is, a set of measures aimed at realizing and supervising the realization of the right concerned.
Two aspects of implementation are deliberately distinguished. Firstly, the State is required to create a conducive environment to enable the actual exercise of rights by not only abstaining from infringing individual rights but also by enacting adequate legislation and taking administrative measures. Secondly, the State is required to establish or strengthen the existing mechanisms and procedures to monitor the realization and violations of human rights.
Proper identification of the different components is important as it enables one to effectively protect human rights.
Though the identification of a right-holder, duty-holder and the object of a specific human right might not give rise to particularly difficult problems, a proper determination of implementation modalities of any human rights remains a significant task.
Application of the National Bill of Rights
Application of the Bill of Rights relates to issues of whether and how the Bill of Rights applies in a legal dispute. This further raises at least two questions: who benefits from the Bill of Rights? And who is bound by the Bill of Rights?
The issue of how the Bill of Rights applies to legal disputes also raises another question: how is the relationship between the Bill of Rights and the principles or rules of ordinary of law going to be determined? There are three possibilities.
First, the Bill of Rights may be a yardstick against which the ordinary law is tested. In this case, ordinary law will apply to the extent that it complies with the Bill of Rights. Secondly, the provisions of the Bill of Rights may be used as guidelines that influence the interpretation and application of the ordinary law and legal reform. Here, ordinary law will not only be applied to the extent that it is in compliance with the Bill of Rights, but also as infused with the values contained in the Bill of Rights. In these two possibilities, the Bill of Rights is indirectly applied.
It thus does not override ordinary law or generate its own remedies but rather respects the procedural rules, the purpose and remedies of ordinary law, but demands furtherance of the values contained in the Bill of Rights through the operation of ordinary law. Lastly, the Bill of Rights may also govern legal disputes directly.
This means that both the Bill of Rights and ordinary law may apply to the same legal dispute. In this case, the Bill of Rights overrides ordinary law and any conduct that is inconsistent with the Bill of Rights and subject to considerations relating to justiciability and constitutional jurisdiction, it generates its own set of remedies.
The purpose of the direct application is thus to determine whether there is, on a proper interpretation of the law and the Bill of Rights, any inconsistency between the two or between the Bill of Rights and conduct. The purpose of the indirect application is, on the other hand, to determine whether it is possible to avoid any inconsistency between the law and the Bill of Rights by a proper interpretation of the two