How human rights shape social citizenship: on citizenship and the understanding of economic and social rights. (Abstract through II. Human Rights Lawmaking: Social Citizenship Going International?, p. 201-234)

• Published date: 22 March 2014
• Author: Davy, Ulrike
• Date: 22 March 2014

Abstract

This Article reconceptualizes citizenship, a notion usually tied to the nation state, as "layered. " Human rights may serve as the international "layer" of citizenship, addressing nationals and non-nationals alike. It took some time, however, for "social" citizenship to emerge as a human rights issue and, hence, for human rights to become an international layer for social citizenship rights granted on the national level. Around 1993, states started to accept a human rights-based obligation toward the poor, requiring social policies to focus on targeted, individual welfare.

Nowadays, poverty mitigation is the human rights core of "social" citizenship.

TABLE OF CONTENTS
                INTRODUCTION
                I. CITIZENSHIP CONCEPTS REVISITED
                 A. State of the Art: Citizenship and Human Rights as Uneasy
                 Companions
                 B. Moving Forward: "Layered" Citizenship
                II. HUMAN RIGHTS LAWMAKING: SOCIAL CITIZENSHIP GOING
                 INTERNATIONAL
                 A. Social Citizenship
                 B. Economic and Social Rights: The Making of the UDHR
                 C. Economic and Social Rights: The Making of the ICESCR
                 D. International Social Citizenship
                III. STATES TALK UNDER THE ICESCR: SOCIAL CITIZENSHIP GOING
                 GLOBAL
                 A. The Setting: Human Rights Machinery Under the ICESCR
                 B. The Sample: State Party Reports from 1977 to 2011
                 C. Economic and Social Rights: The Reading of the States
                 Parties
                 1. States Commit to Economic and Social Rights
                 2. States Engage in Reinterpreting Social Rights
                 D. International Social Citizenship
                CONCLUSIONS
                

INTRODUCTION

As a theoretical concept, "citizenship" is familiar to sociologists, political scientists, and legal scholars. The meaning of citizenship, however, differs widely. Legal scholars and authors theorizing democracy tend to use a narrow notion, linking citizenship more or less strictly to political rights: Citizenship is supposed to describe the status of individuals who have the right to participate directly in decision-making in political matters or the right to choose representatives through elections. (1) These active citizens are defined in a rather exclusionary manner, since participatory rights are believed to depend on citizenship acquired according to citizenship law (only nationals qualify for the status), although some notions of "responsible" or "participatory" citizenship may reach beyond decision-making or voting rights in a strict sense. (2) Scholars following T.H. Marshall's seminal 1950 essay (3) conceptualize citizenship as a legal status encompassing civil rights, political rights, and social rights. Whether narrowly or broadly conceived, citizens are often juxtaposed with opposites, at times with burghers or economic citizens, (4) but most frequently with aliens whose legal status differs considerably from the status of citizens. (5) Citizenship concepts transcending the nation state are either confined to the political in a narrow sense--"world citizenship" then refers to democratic participation on the global level (6)--or the concepts rely on the (individual) feeling of belonging to the planet. (7) In the latter case, global citizenship is not a legal status, but derives from the individual claim of being an Earth citizen. Either way, citizenship concepts seldom connect citizenship and international human rights. (8) For legal scholars, the connection between citizenship and human rights indeed seems far-fetched, given their narrow focus on political rights. Sociologists and political scientists are silent, (9) skeptical, (10) or simply equate world citizenship with human rights, yet abstain from reflecting upon the relation. (11)

Part I of this Article contributes to conceptualizing citizenship from the perspective of human rights law. Do human rights spell out some fundamental elements of citizenship that states need to take into account when defining (national) citizenship rights? I will argue that citizenship concepts can no longer ignore that the legal status of individuals is--to some extent--framed by international human rights law. Parts II and III of the Article contribute to the understanding of human rights, in particular the understanding of economic and social rights, often termed "second generation human rights." (12) Against the backdrop of the concept of citizenship, I shall ask: Do second-generation human rights promise what Marshall called "social citizenship," i.e., a particular legal status characteristic of the (modern) welfare state? Social citizenship has rarely been dealt with, especially in a global setting. (13) This Article concentrates on the rights regime established by the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). (14) The ICESCR elaborates in greater detail what had already been proclaimed in the 1948 Universal Declaration of Human Rights (UDHR). (15) The ICESCR contains the very essence of U.N.-sponsored economic and social rights. (16) These rights are the prime candidates for directing social policies at the national level and, hence, for promising social citizenship. Part II of the Article argues that, historically, economic and social rights embraced a variety of state policies aiming at "social welfare." Marshallian social citizenship was not the dominant program. But things changed when U.N.-sponsored economic and social rights became the focus of states mandated to translate these rights into realities on the ground. Part III of the Article explores how the states parties to the ICESCR describe their policies when reporting to the committee established under the Covenant in order to watch over the implementation of economic and social rights. (17) I shall demonstrate that the states parties to the ICESCR nowadays increasingly talk about policies involving the ingredients of social citizenship. Through widespread shifts in the understanding of U.N.-sponsored economic and social rights, the granting of social citizenship is no longer just an option for implementing states, but about to become an obligation states parties cannot escape.

The arguments of Parts II and III rely on debates driven by state agents acting as either state representatives in United Nations lawmaking forums (U.N. documents from the 1940s and 1950s) or on reports submitted to the reviewing committee under the ICESCR by the states parties (state party reports from 1977 to 2011). The choice of sources underlying the Article reflects the rules of the 1969 Vienna Convention on the Law of Treaties (VCLT)., (18) Inquiries into the meaning of a (human rights) treaty are meant to also have recourse to, inter alia, the preparatory work (travaux preparatoires) or state practice subsequent to the entry into force of the treaty which establishes the agreement of the parties regarding its interpretation. (19) For obvious reasons, scholarly work on state practice is usually confined to a limited number of case studies compiling domestic legislation or domestic jurisprudence. (20) In order to make the basis for the arguments of the Article as broad (and global) as possible, I chose to collect and evaluate all the state party reports submitted under the ICESCR from 1977 through 2011 (546 reports). These reports are not state practice per se, but purport to describe and reflect upon state practice; the reports provide firsthand information on the states' readings of their human rights obligations and on how they present the situation on the ground in an international forum. If uniform, the reports may indeed indicate agreement among the states parties regarding the interpretation of the ICESCR. That source of information has never been explored before. Hence, Part II of the article provides a novel (historical) account on the birth of U.N.-sponsored economic and social rights. Part III presents new empirical data on how the states parties to the ICESCR read these rights, covering a period of almost four decades. Non-governmental organizations (NGOs), other civil society actors, or national judiciaries are not within the focus of the Article. (21)

I. CITIZENSHIP CONCEPTS REVISITED

A. State of the Art: Citizenship and Human Rights as Uneasy Companions

Studies into citizenship usually start from T.H. Marshall's essay on citizenship and social class. (22) In that essay, Marshall reflected upon the roots of the twentieth century (European) welfare state, just at the time when the British welfare state was about to be born. Marshall organized his historical narrative along three elements of "citizenship," a term used to denote three particular sets of rights which, he believed, had expanded over time. (23) For Marshall, citizenship clearly pertains to modernity; citizenship defines the (legal) position of the individual in a modern nation state. (24) Civil rights (e.g., liberty of the person, freedom of faith, right to own property) were the first to come; Marshall dates these rights back to the eighteenth century, when modern civil rights had begun to emerge. (25) Political rights (primarily voting rights) were added in the nineteenth century. (26) In the twentieth century and inspired by "the modern drive towards social equality," (27) citizenship came to also include social rights, ranging "from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in the society." (28)

For the purposes of this Part of the Article, the most interesting part of Marshall's essay is how he characterizes "rights." Four characteristics seem pertinent. First, unlike entitlements prevailing in the pre-modern era, citizenship rights do not relate to birth or class. (29) The rights are created, not god-given or inferred from reason. Secondly, the rights are individual rights, bestowed upon singular human beings (not upon groups or on account of group membership). (30) Thirdly, the rights are believed to be equal, i.e., the same for all who are...