A/HRC/23/49 legal rule.6 The commentary to the articles notes that the standard of due diligence is context specific and is dependent on the substantive international legal rule at issue. 7 13. The due diligence standard serves as a tool for rights holders to hold States accountable, by providing an assessment framework for ascertaining what constitutes effective fulfilment of a State’s obligations, and for analysing its actions or omissions. An assessment framework is especially important where the potential infringement comes through a State’s failure to act, as it can be difficult for rights bearers to assess if an omission constituted a violation of their right, in the absence of a normative basis for the appraisal. 14. With regard to non-State actors, it has been argued that: “International human rights law requires a state to take measures – such as by legislation and administrative practices – to control, regulate, investigate and prosecute actions by non-state actors that violate the human rights of those within the territory of that state. These actions by non-state actors do not have to be attributed to the state, rather this responsibility is part of the state’s obligation to exercise due diligence to protect the rights of all persons in a state’s territory.”8 15. The Inter-American Court of Human Rights was the first human rights body to hold that the American Convention on Human Rights requires States to exercise due diligence to prevent attacks on a person’s life, physical integrity or liberty on its territory and punish perpetrators and to restore the right violated and provide compensation for damages resulting from the violation. 9 This was premised on the State obligation to ensure the applicant’s human rights. The duty to prevent entails the use of all means of a legal, political, administrative and cultural nature to promote the protection of human rights and ensure that violations are considered and treated as illegal acts, leading to the punishment of responsible parties and the indemnification of victims. 10 For due diligence to be satisfied, the formal framework established by the State must also be effective in practice.11 16. One of the debates within the context of due diligence is whether it is an obligation of conduct/means or an obligation of result. 12 The general opinion is that it is one of conduct, however, failure of conduct will likely constitute failure of result. Thus it can be argued that it is the type of conduct which is important. Treaties that establish obligations to protect against rights violations often require States to take appropriate measures, without explicitly defining what measures are appropriate. Similarly, due diligence standards require States to exercise whatever diligence is due; they do not define such diligence. 13 17. The mandate of the Special Rapporteur on violence against women has for nearly two decades observed and paid attention to the responsibility of the State in general and to the principle of due diligence in particular. In assessing State responsibility to act with due 6 7 8 9 10 11 12 13 Draft articles, commentary to art. 2, para. 3. Ibid. Robert McCorquodale and Penelope Simons, “Responsibility beyond borders: State responsibility for extraterritorial violations by corporations of international human rights law”, Modern Law Review, vol. 70, No. 4 (2007), p. 618. See Inter-American Court of Human Rights (IACtHR), Velásquez Rodríguez v. Honduras, judgement of 29 July 1988. Ibid., para. 175. Ibid., para. 178. Riccardo Pisillo-Mazzeschi, “The due diligence rule and the nature of the international responsibility of States”, German Yearbook of International Law (1992), pp. 9 and 30. Monica Hakimi, “State bystander responsibility”, European Journal of International Law, vol. 21, No. 2 (2010), p. 372. 5