Civil & Political Rights vs Economic, Social and Political Rights
“Civil and political rights set out in the International Covenant on Civil and Political Rights, as first generation rights, hold greater importance in comparison to economic, social and political rights, as set out in the International Covenant on Economic, Social and Cultural Rights.”
This piece aims to analyse the extent to which social, economic and cultural rights (ESC from hereafter) have been treated differently in comparison to civil and political rights (CP from hereafter). The covenants that contain these rights are; International Covenant on Civil and Political Rights (ICCPR from hereafter) and the International Covenant on Economic, Social and Cultural rights (ICESCR from hereafter).
The evolution of human rights must be understood in order to truly evaluate the difference, and indeed if there is one between ESC and CP rights. Human rights are a very new concept in today’s world; they came about as a response to the atrocities that were shown in the two world wars. The United Nations was established in 1945. In the same year that the UN came into existence, the leaders of the developing world decided that human rights were to take an important stand in the UN’s Charter, stating in the preamble:
"We the peoples of the United Nations [are] determined […] to reaffirm faith in fundamental human rights."[1]
The UN Charter[2] introduced a number of bodies and functions, which were to deal with human rights; one of the most notably famous bodies that the Charter introduced was the Commission of Human Rights.[3] The Commission decided that it would first of all work on a declaration, rather than a treaty. An international declaration presents a set of values, which hold high political significance and stands as more of a recommendation. Introducing a treaty would have made these ideas binding in international law. This declaration consisted of the ICCPR and the ICESCR and Protocol. The General Assembly had ideally wanted to have one single covenant. However, Member states reflected an East-West divide; the East opposing the importance of civil liberties and the West being wary of the ICESCR, in the hopes of maintaining state sovereignty.[4] Ideally, the General Assembly would have liked to draft one covenant to show the indivisibility and interdependence of the rights.[5]
The ICCPR protects civil, political rights and freedoms.[6] A typical example of a CP right would be one’s Right to Life[7]: this right is absolute. On the other hand, the ICESCR protects social, economic and cultural rights.[8] An example of this is the Right to Education[9]. ESC rights have historically been known to concern the quality of ones life.
When discussing the “equality” concerning both set of rights, should examine the wording of both covenants. The ICCPR, Article 2 states: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and jurisdiction.”[10] Whilst, the ICESCR, Article 2 states: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation.”[11] The ICCPR wording of state action is far more direct and urgent, in comparison to the gradual action that states are encouraged to take in the wording of the ICESCR.
As well as the wording of the two covenants, the view that SEC rights are reliant on resources and direct government intervention also plays a role in these rights being undervalued. When implementing the ICESCR, the state is in a position where it has to consider the resources that it has available to supply the justice. Whereas, the ICCPR is not dependant on resources, giving the states an easier approach to implement and uphold these rights. Critics of ESC rights have described them as more privileges than legally enforceable rights due to the resources available by the state.[12] Okeowo also emphasises “a right is a legally enforceable phenomenon, same is not true of a privilege,”[13] which may present the possible reason as to why the rights in each covenant are treated, in some aspects, differently.
CP rights are seen as first-generation rights, whereas ESC rights are described as second-generation rights. These descriptions have been misinterpreted by individuals and have led to the misunderstanding that ESC rights are less important. This is shown in the case where the U.S. government in 1982 argued that rights that no government can infringe (CP rights) would never be watered down to the status of rights, which the government only has an obligation to secure (ESC rights).[14] This is a prime example of where states have openly placed importance on one set of rights over the other.
ESC rights are described to be vague, opaque and normative in their foundations[15] as well as the fact that they are not based on national jurisprudence.[16] The international community has found it relatively easier to implement CP rights and this is shown in the failure of actually developing jurisprudence of ESC rights since the ICESCR in 1996.[17] Studies that have been orchestrated by the UN, themselves have shown that there is very little evidence to prove that ESC rights identify legal character in order to implement these rights in the same way that CP rights hold.[18] Thus, the UN, have understood the difficulty that states have implementing ESC rights on their own.
Robbins argues that CP rights were interpreted as absolute, whilst ESC rights were simply seen as “progressive” rights.[19] Okeowo outlines that if a CP right is breached, it is easy to determine the victim, perpetrator and remedy[20], whilst these are very challenging things to identify if the right infringed is an ESC right. The Economist is adamant that when it comes to ESC rights, states, “It is hard to determine whether such a right has been infringed, let alone who should provide a remedy or how.”[21] States are clearly at odds with the interpretation of ESC rights and are more comfortable with implementing CP rights, thus not necessarily thinking that CP rights hold greater importance.
The two covenants were created and put into force in 1966: the ICCPR having a reporting procedure put in place (inter-state and individual complaints), whereas the ICESCR was awarded with a reporting procedure to monitor its implementation. [22] Onyango stresses the importance of both rights, arguing, “What does it mean to have a right to vote if one is too hungry to lift the ballot paper?”[23] Scholars noticed the marginalization of human rights and are calling for more centralized human rights, rather than what Robbins describes as the “monopolization” that has occurred for far too long between the East and West.[24]
The General Assembly has faced much criticism over creating two covenants for both sets of rights. Whelan argues that ESC rights held great importance for developing Third World countries.[25] Freeman contended that the East/West divide debate was used as an excuse to not give ESC rights the respect that they deserved.[26] The two covenants contain rights that are both equal in their nature and cannot exist without one another, however, conflicting ideologies of the time (when they were drafted) created the misconceptions regarding the nature of human rights.[27] Chekwe and Flood stress that ESC and CP rights are indivisible and interrelated but this has not been translated into decisions.[28]
In order to award both ESC and CP rights equal standing could be to introduce international law that would combine both of these rights under one. The argument against combining both covenants would be that member states are already sceptical to implement the ICESCR. Member states do not want to give greater weight to UN human rights in comparison to their own, domestic law. This was presented in the Tinoco case in Costa Rica.[29] It was argued here that even under international law, the constitution proved to hold greater standing. Similarly, Fidel Castro’s violations of running mock elections are a clear insult to the human rights to the people of Cuba. Riesman argues that these rights threaten the sovereignty of nations, thus the encompassment of the rights would deter members from fulfilling minimal human rights requirements.[30]
In examining ESC and CP rights, we must regard the universalism vs cultural relativism. Those who come from the school of thought of universalism as Henken have described this view as “to call them (human rights) human suggests they are universal […] to call them “rights” implies that they are claims as a right […] they need not be earned or deserved.”[31] This would mean that an individual in Europe is subject to the same protection as an individual in Africa. The argument of universalism highlights that human rights are the most basic of rights based on simply existing as a human, excluding cultural boundaries, where states are able to chose which rights are enforceable and which are not.
However, cultural relativists believe that shared cultural rights do not exist; it is not justifiable for states to impose cultural ideas upon another state. This was strengthened by the Chinese delegate to the World Conference on Human Rights in Vienna, emphasising “one should not and cannot think the human rights standard and model of certain countries as the only proper ones, and demand all other countries to comply with them.”[32] Nevertheless, scholars have argued that a minimum requirement and a plan with goals are important to a fair implementation of the law. As Kofi Annan stated, “It is the universality of human rights that gives them their strength.” [33]
The courts play an immensely important role in upholding ESC and CP rights on an equal pedestal. Many courts enforce ESC rights in respect to their constitution, as is the case in India. In India, the constitution is used as a basis in order to encompass ESC and CP rights. In the case of Olga Tellis[34], the Supreme Court had to broaden its definition of right to life, in line with ESC rights. A collection of people living in the slums of Bombay sued the local council for depriving them of shelters with no offer of alternative accommodation. The court stated that this had serious consequences, stating that it would lead to infringing their right to life. In this case, the right to life was interpreted in a very broad sense. The court stated that states should use their domestic law (in this case, the constitution) as a mechanism to make wider interpretations when it comes to the rights of human beings, regardless of whether those rights are CP or ESC rights. Similarly, in the case of Paschim[35] the Supreme Court gave the right to healthcare to a patient who was refused medical treatment for a brain haemorrhage. Similarly to the Olga Tellis case, the court decided to judge this case on the broad interpretation on the right to life. Both cases show how important the role of the courts are in enforcing ESC rights.
Many academics have stated that the South African constitution does the best job at safeguarding ESC rights as well as CP rights. In the case of Soobramoney[36] the claimant was denied treatment for renal dialysis. The treatment was crucial to prolong his life. The court, however did not take the same approach as the Indian Supreme Court. The court stated that as the case involved budgetary allocations and other financial allocations, the court had to restrict itself in understanding the circumstances and the reasonable resources that were available to the authorities. The court decided that it did not have the power to assume the role of the state regarding issues of allocating budget. However, in another healthcare case of TAC[37] the government limited the availability of who would receive a drug to prevent HIV/AIDS passing from mother to child. It is important to highlight that the drug was provided for free by the manufacture and the state did not have to spend on those resources. The government stated that the court should not decide on cases where it is the executive’s job to consider cases such as public policy. However, the court responded asserting that the court can act where policy made by the government is against the constitution. South Africa has made it clear that courts will take the approach of justiceability rather than policy.[38] When it comes to budgetary issues, the British court stated that it was not the role of the courts to allocate budget, even though the life of a child was at stake in R v Cambridge.[39]
The treatment of ESC rights in Europe has been rather different. Europe has seen the development of a more serious take on these rights through an integrated approach by the Human Rights Committee and supervisory institutions of the ECHR in order to enforce ESC rights. The case of Zwaan-de Vries v the Netherlands[40]concerned Dutch legislation that stopped married women from claiming a particular unemployment benefit, which was available to unmarried women and all men (regardless if they were married or not). This was based on the archaic view that men, in the 21st century would always be the “breadwinner” of the household. Furthermore, in order to rebut the presumption to prove that one was entitled to the benefits, women would have to provide the court with evidence that they were the breadwinners; however this legal duty did not apply to married men. The Committee explained: “Article 26 (of the ICCPR) requires that when such legislation is adopted […] the legislation must comply with Article 26 of the Covenant.”[41] Briefly stating that the covenants must be respected and complied with, however, in this case for example, the covenant does not impose an obligation on the state to provide for social security.
It is clear to see that there is much debate over ESC and CP rights. CP rights have been treated differently due to the fact that they are justiciably, whilst ESC rights are not as those decisions do not fall within the functions of the legislature.[42] National courts have paid more attention to CP rights due to the fact that SEC rights are dependent on resources, thus government intervention is needed. Developing countries are much more likely to help preserve ESC rights, this is especially prevalent in the interpretation of the ICESC in South Africa and India, as illustrated by case law.[43] On the other hand, the UK places greater importance on individual rights such as freedom of expression and fair trial.[44] Academics have called for new binding law that would combine ESC and CP rights in order for a balance to be struck and for both rights to be interpreted in a fair and just manner to implement the human rights that the UN promised in the UDHR. This would, however threaten state sovereignty as well as cause problems between states as not all states hold the same cultural values, for example. Overall, it is fair to conclude that the hierarchy is somewhat a product of the lack of clarity that have come with ESC rights, rather than the idea that CP rights holding greater importance.
[1] Charter of the United Nations, Preamble, < http://www.un.org/en/documents/charter/preamble.shtml >
[2] Ibid, Article 1 < http://www.un.org/en/documents/charter/chapter1.shtml >
[3] The mandate for the Commission for Human Rights derives from Articles 1 < http://www.un.org/en/documents/charter/chapter1.shtml >, 13 < http://www.un.org/en/documents/charter/chapter4.shtml> and 55 < http://www.un.org/en/documents/charter/chapter9.shtml> of the Charter of the United Nations.
[4] K. Arambulo, “Drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Can an Ideal Become Reality?” 2 U. C. Davis J. Int'l L. & Pol'y 111 (1996)
[5] Ibid, p 115.
[6] The International Covenant on Civil and Political Rights < http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>
[7] Ibid, Article 6.
[8], The International Covenant on Social, Economic and Cultural Rights < http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx >
[9] Ibid, Article 10.
[10] The International Covenant on Civil and Political Rights, Article 2, < http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx >
[11] The International Covenant on Economic, Social and Cultural Rights, Article 2, < http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx >
[12] The Economist Leaders Article: Human Rights Stand up for your rights. The old stuffy ones, that is: newer ones are distractions in ‘The Economist’ print edition of May 22nd, 2007.
[13] Okeowo, Demola, Economic, Social and Cultural Rights: Rights or Privileges? (December 12, 2008). Available at SSRN: http://ssrn.com/abstract=1320204 or http://dx.doi.org/10.2139/ssrn.1320204, p 24
[14] D. J. Harris, Cases and Marerials on International Law, 6th ed., Sweet and Maxwell, 2004, p. 655
[15] Office of the United Nations, High Commissioner for Human Rights, Frequently Asked Questions on Economic, Social and Cultural Rights, Fact Sheet No. 30, p 30. < http://www.ohchr.org/Documents/Publications/FactSheet33en.pdf > accessed on 10/05/2015
[16] K. Arambulo, “Drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Can an Ideal Become Reality?” 2 U. C. Davis J. Int'l L. & Pol'y 111 (1996), p 116.
[17] The Realization of Economic, Social, and Cultural Rights: Problems, Progress, U.n. ESCOR Comm. on Hum. Rts., 31st Sess., U.N. Doc. E/CN.4/1108/Rev.1 (1975)
[18] Ibid.
[19] M. Robbins, “Powerful States, Customary Law and The Erosion of Human Rights Through Regional Enforcement” California Western International Law Journal, Vol. 35, (2005): 275-302, p 289.
[20] Okeowo, Demola, Economic, Social and Cultural Rights: Rights or Privileges? (December 12, 2008). Available at SSRN: http://ssrn.com/abstract=1320204 or http://dx.doi.org/10.2139/ssrn.1320204 p, 13.
[21] The Economist Leader’s Article – Human Rights Stand up for your rights. The old stuffy ones, that is: newer ones are distractions in ‘The Economist’ print edition on May 22nd, 2007.
[22] J. Donnelly , Universal Human Rights, In Theory and In Practice (3rd ed., Cornell University , United States 2013)
[23] J. Oloka-Onyango, Reinforcing Marginalized Rights in an Age of Globalization: International Mechanisms, Non-State Actors, and the Struggle for Peoples’ Rights in Africa, 18 AM. U. INT’L L. REV. 851, 852 (2003)
[24] M. Robbins, “Powerful States, Customary Law and The Erosion of Human Rights Through Regional Enforcement” California Western International Law Journal, Vol. 35, (2005): p 285.
[25] Indivisible Human Rights: A History – Daniel J. Whelan, p 62.
[26] Ibid, p, 63.
[27] Ibid.
[28] Ibid.
[29] Great Britain v Costa Rica 1 U.N. Rep. Int’l Arb. Awards 369 (1923)
[30] W. M. Reisman. “Sovereignty and Human Rights in Contemporary International Law.” The American Journal of International Law, Vol. 84, No. 4 (Oct., 1990), p, 870.
[31] Rhoda Howard, Dgnity, Community and Human Rights in Human Rights in Cross-Cultural Perspective 81 (Abdullahi An-Na’im ed., 1991).
[32] Patrick D. Curran, Universalism, Relativism and Private Enforcement of Customary International Law, 5 Chi. J. Int’l L. 311 (2004)
[33] Kofi Annan, Message by the United Nations Secretary-General in Reflections on the Universal Declaration of Human Rights 18 (Barend van der Heijden & Bahia Tahzib-Lie eds., 1998) in, M. Robbins, “Powerful States, Customary Law and The Erosion of Human Rights Through Regional Enforcement” California Western International Law Journal, Vol. 35, (2005): 275-302
[34] Olga Tellis v Bombay Municipal Corporation
[35] Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal
[36] Soobramoney v Minister of Health
[37] Treatment Action Campaign v Minister of Health
[38] Government of South Africa v Grootboom
[39] R v Cambridge
[40] Zwaan-de Vries v the Netherlands, 2005, 5SA 721 (CC)
[41] M. Scheinin, 'Human Rights Committee' in M. Langford (eds), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (1st, Cambridge University Press, United Kingdom 2008).
[42] Okeowo, Demola, Economic, Social and Cultural Rights: Rights or Privileges? (December 12, 2008). Available at SSRN: http://ssrn.com/abstract=1320204 or http://dx.doi.org/10.2139/ssrn.1320204, p 14.
[43] Government of South Africa v Grootboom Constitutional Court of South Africa Case CCT 11/00 October 2000 and Olga Tellis v Bombay Municipal Corporation, Supreme Court of India AIR 1986, Supreme Court 18 – Both cases emphasized the importance of economic, social and cultural rights.
[44] This was the case as it was seen in R v Lord Chancellor, ex p. Witham (1997) 2 AII ER 779 and R v Secretary of State for the Home Dept., ex p. Simms (1999) – note that these cases were pre-Human Rights Act
