Ensuring that Others Behave Responsibly
| Published date | 01 December 2011 |
| DOI | 10.1177/0964663911413494 |
| Date | 01 December 2011 |
| Subject Matter | Articles |
Article
Ensuring that Others
Behave Responsibly:
Giddens, Governance,
and Human Rights Law
Alison Mawhinney and Iorwerth Griffiths
Bangor University, UK
Abstract
Governance produces a complex landscape of public power that state authorities have
to take account of when discharging their duties under international human rights law. A
traditional model of human rights law views the state as the primary duty-holder. How-
ever, to restrict the reach of human rights law to actions carried out by state bodies is
extremely problematic in a context where the private and voluntary sectors are involved
in service delivery and the boundary between the public and private is hazy. This article
examines the approaches taken by international and domestic human rights law to the
question of the applicability of human rights law. In this examination it draws upon the
recent work of Anthony Giddens as a means of illustrating the socio-political context
in which human rights law must now be implemented. The article argues that an under-
standing of Giddens’ evolving conception of the modern state is instructive in posing
questions on the appropriate response of human rights law to governance. An analytical
framework comprising three possible approaches – institutional, functional or regulatory
– is put forward. The article argues that the shift to what Giddens calls the ‘ensuring’
state ought to entail a corresponding shift to a ‘regulatory approach’ in the interpretation
of human rights obligations.
Keywords
accountability, Giddens, governance, human rights, non-state actors
Corresponding author:
Alison Mawhinney, School of Law, Bangor University, Bangor, Gwynedd LL57 2DG, UK
Email: a.mawhinney@bangor.ac.uk
Social & Legal Studies
20(4) 481–498
ªThe Author(s) 2011
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DOI: 10.1177/0964663911413494
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The emergence of new forms of government increasingly complicates and challenges the
operation of the established protection arrangements for international human rights law.
The rolling back of the state through the privatization and contractualization of state
activities creates a distribution of power very different from the one envisaged by a tra-
ditional model of human rights law. This increasingly widespread way of governing is
not a transient phenomenon and the challenge for human rights law is to understand and
adapt to the reality of governance if it is to remain relevant to contemporary society
(Craig, 2002: 552).
Theories emerging from literature on governance provide a useful ‘language for re-
describing the world’ and for understanding the complexity of modern government
(Rhodes, 2000). Governance recognizes that government in the classical sense is less and
less a reality and that new methods of control and regulation are required that do not
assume that the state or the public sector has a monopoly of service provision (Hirst,
2000). In the context of human rights protection, a governance perspective on the distri-
bution of power in contemporary society can direct attention towards the appropriate
applicability of human rights law within this new mode of governing and the changing
nature of state responsibility. The following definition of governance provides a useful
description of this changed method of governing:
Governance refers to the process whereby elements in society wield power and authority;
and influence and enact policies and make decisions concerning public life and economic
and social development. Governance is a broader notion than government, whose principal
elements include the constitution, legislature, executive and judiciary. Governance involves
interaction between these formal institutions, their spokesmen, and civil society. Govern-
ance has no automatic normative connotation. However, typical criteria for assessing gov-
ernance in a particular context might include the degree of legitimacy, representativeness,
popular accountability and efficiency with which public affairs are conducted.
1
This definition of governance recognizes that non-state actors exercise power and,
through this power, have the ability to impact upon the lives of individuals. It points
to governance as a process that requires interaction between these non-governmental
sites of power and the traditional governmental sites of power. Furthermore, it acknowl-
edges that the workings of good governance ought to involve values common to conven-
tional understandings of ‘good government’ – such as accountability and legitimacy.
Governance, understood in this sense, may be seen as the increasingly prevalent method
by which society is governed and in which the actions of a wide variety of actors must be
coordinated to deliver services to the public according to certain normative standards.
The emergence of non-state service provision as an element of governance poses a
challenge for human rights protection. A traditional model of human rights law views
the state as the primary duty-holder. If the state delegates its functions to non-state bod-
ies, how does it ensure that it does not neglect its duties to protect human rights in this
process? This article examines the approaches taken by human rights law to this ques-
tion. In this examination it draws upon the recent work of Anthony Giddens as a means
of illustrating the socio-political context in which human rights law must now be imple-
mented. The article argues that an understanding of Giddens’ evolving conception of the
482 Social & Legal Studies 20(4)
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