STEMMING THE BIAS OF CIVIL AND POLITICAL RIGHTS OVER ECONOMIC, SOCIAL, AND CULTURAL RIGHTS.

Author:Qureshi, Waseem Ahmad
 
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  1. INTRODUCTION

    To comprehend the true meaning of economic, social, and cultural rights as human rights, first it is important to understand that all human rights are consistently interconnected with seemingly distant moral values, political narratives, and legal technicalities. (1) Throughout history, people have struggled to preserve human dignity, and in essence human rights are all about respecting the core of this human dignity. (2) As a natural instinct, human beings resist and react inwardly and outwardly when they feel that their dignity is abrogated by any means; (3) human dignity is both a feeling and a vision. (4) Through a certain set of rules humans have tried to protect these intuitions. (5) These rules are called human rights. However, the concept of human dignity--which is the core of human rights--has evolved. (6) Therefore, it is very much possible that a feeling that was never historically associated with human dignity is, here and now, seen as a vital core of human dignity. (7) Furthermore, the evolution of human rights has a lot to do with the consensus built among humankind. (8) The determination of human rights basically contests that humankind has consensus upon "what sort of practices violate human dignity." (9) These consensuses have developed over human history to shape human rights. (10) For example, over the last couple of centuries, (11) humanity as a whole has agreed that torture (12) and slavery (13) violate human dignity. (14) As a result, the right not to be tortured and the right not to be enslaved are both now basic human rights. (15)

    Even within a small nation, it is quite challenging to attain consensus on developing any particular human right because doing so requires deliberations and debates within societies, groups, and parliaments. (16) Further, to progress consensus, fact-finding commissions are established to gather facts and present them to the general public to highlight issues and general practices that violate human dignity. (17) If a society is convinced that a certain practice genuinely abuses human dignity, it provides its collective weight to push for legislation to embed this conviction into its national law. (18) In this way, laws protect human dignity through human rights.

    This societal conviction to protect human rights is even reflected in the wording of the preamble to the Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly in 1948, (19) which states that:

    "... the Peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women, and have determined to promote social progress and better standards of life in larger freedom." (20)

    Clearly, there are definite shared tenets of human rights that can be seen as an embodiment of the mutual characteristics of human dignity. These tenets can be categorized into four groups. First, all human rights are inherent in nature, which means that human rights arc a matter of human privilege by birth. This is why they are referred to as human rights. (21) Second, human rights and human needs are two distinct features; a government is obliged to safeguard human rights but not to fulfill any human needs. (22) Third, human rights can be claimed against governments through ascribed procedures, which means that a government has to provide a prescribed channel for the enforcement of human rights. (23) Fourth, human rights are universal. (24) In other words every human being is entitled to human rights regardless of his/her race, skin color, or religion. (25)

    In addition to these groups, there are certain kinds of other divisions among human rights that have been carved out by the international and regional legal instruments that devised them. (26) Major legal instruments that form the overall legal framework of human rights include international and regional instruments, such as treaties and agreements, and domestic frameworks, such as constitutions and legislation. (27) Together, these legal instruments protect and enforce human rights. (28) International instruments are usually international agreements, regional treaties, conventions, and declarations that have achieved global consensus. (29) These are binding on parties as agreements, and often binding on nonparties as customary international law. (30) These instruments include, for example, the UDHR, (31) the International Covenant on Civil and Political Rights (ICCPR), (32) the International Covenant on Economic, Social and Cultural Rights (ICESCR), (33) the European Convention on Human Rights (ECHR), (34) the European Social Charter (ESC), (35) and the African Charter on Human and Peoples' Rights. (36) Regrettably, the general division among human rights in the international instruments has segregated all rights into two factions: civil and political rights (CPR) and economic, social, and cultural rights (ESCR). (37)

    On the one side, CPR protect individuals' freedoms and rights in the sphere of political and civil participation from governmental, organizational, and private bodies. (38) CPR are further divided into civil rights and political rights. Civil rights ensure the physical and mental security of individuals' lives, health, and integrity. (39) They also protect individuals from all forms of discrimination, such as discrimination based on skin color, religion, race, gender, nationality, and ethnicity. (40) Civil rights mainly include the right to privacy and the rights to freedom of speech, religion, assembly, and movement. (41) By contrast, political rights protect judicial fairness and the political participation of individuals. (42) For instance, judicial fairness includes protecting the rights of the accused, such as the right to a fair trial, the right to due process, and the right to effective legal remedy. (43) Similarly, political participation includes the freedom of association, the right of self-defense, the right to vote, and the right to petition. (44)

    On the other side, ESCR protect socioeconomic aspects of human integrity. For example, ESCR safeguard the right to food, the right to education, the right to housing or land, the right to health, the right to an adequate standard of living, workers' rights, cultural rights, and the right to protection of family. (45)

    Sadly, international instruments, regional agreements, and constitutions are predisposed to under-enforce ESCR in juxtaposition with CPR. (46) In other words, the global legal framework gives more significance to CPR than ESCR. (47) This legal bias is even portrayed by the United Nations Committee of Economic Social and Cultural Rights (CESCR). The shocking reality is that states, and the international community as a whole, continue to tolerate all too often breaches of economic, social and cultural rights, which if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and lead to immediate calls for action. (48)

    The legal division between ESCR and CPR is unmistakably apparent. However, to further investigate legal predisposition and bias against ESCR in favor of CPR, this Article is divided into five sections. Section 1 will look broadly at the development of human rights. Within this section, special emphasis will be given to the development and enforceability of ESCR with an overview of the legal predispositions against ESCR and CPR. Section 2 will briefly discuss the legal division between ESCR and CPR within the parameters of exploring international instruments that lay the legal framework of human rights. Section 2 is divided into four subsections. Section 2.1 will concisely explore the UDHR. Section 2.2 will provide a comprehensive analysis of the division between ESCR and CPR in the ICCPR and the ICESCR by comparing differences in the wording of different human rights within these instruments. Within the same context, Section 2.3 will examine the general attitude of the CESCR toward ESCR by observing its stance in its general comments. At the end of this section, Section 2.4 will present the explicit division between CPR and ESCR in the regional instruments of Europe, which include the ECHR and the ESC.

    Subsequently, Section 3 will address the enforceability and justiciability of ESCR. In this context, this section will scrutinize the legal frameworks at the national level to comprehend the enforceability and incorporation of ESCR. To do so, this section is divided into three subsections, each looking at a different legal framework: Section 3.1 at India; Section 3.2 at South Africa; and Section 3.3 at the United Kingdom.

    Section 4 will then deliberate upon arguments against ESCR enforcement. Section 4 is divided into three subsections, each confronting one of these arguments. Section 4.1 will comprehensively analyze the positive/negative rights dilemma in the context of CPR and ESCR. Section 4.2 will analyze the resource allocation argument: that ESCR are not enforceable because their implementation requires substantial alteration in resource allocation, which is not a judicial but a political matter. Similarly, Section 4.3 will briefly explore the argument of definitional issues in ESCR that they are too vague to be incorporated in any legal framework.

    Finally, Section 5 will attempt to eliminate the dividing line between CPR and ESCR by providing models to purge this division.

  2. THE HISTORICAL CONTEXT

    To understand the legal predisposition against ESCR in comparison to CPR, it is essential to first comprehend the historical development of ESCR and CPR. Historically, human rights proponents were initially concerned with what can be termed "natural rights," for instance the rights to religion, liberty, property, and life. (49) It is important to note here that collectively these natural rights, in essence, do not merely contain CPR but also incorporate...

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