Thursday, March 4, 2021

The Covenants on Civil a political and Economic, social and Cultural Rights

(Source: Human Rights Law Teaching Material

Demelash Shiferaw & Yonas Tesfa)

After the adoption of the Universal Declaration, the Commission on Human Rights embased on the second part of “the Bill of Human Rights” namely the development of norm that were undisputedly binding on those states that choose to adhere to them. The General Assembly at its first session in 1946 assigned the commission the task of preparing an “international bill of rights.” Today, the International Bill of Rights is regarded as consisting of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two optional protocols. The commission proposed in 1950 to keep all rights in one convention. However, USA and some other western countries argued against this proposal and in 1951 they succeeded in persuading the General Assembly not to follow the recommendations of the Commission on Human Rights but instead decided in favor of two separate conventions, on civil and political rights and the other on economic, social and cultural rights. The arguments put forward by USA and others were centered around asserted differences in regard to the possibility for the individual to legally enforce his rights and the different kind of monitoring mechanisms the two sets of rights would require. 


In hindsight one can question whether this decision has well served the cause of human rights. Today, most proponents of human rights instead find it essential to emphasize the interrelationship and mutually reinforcing nature of the various human rights. The tendency in the subsequent development of standards, starting already in the sixties with the Convention on the Elimination of Racial Discrimination and on wards, has been to either bring up a particular subject and regulate it in greater depth or to take up the protection needs of individuals or groups that are especially prone to discrimination or in need of particular protection. In regard to the substantive rights dealt with in treaties or instruments of the latter kind e.g. on refuges, against racial discrimination, against discrimination of women, on children, on minorities this holistic approach has been followed.

Accordingly, civil, cultural, economic, political and social rights are all dealt within those instruments. 


It should also be noted that although the rights dealt with in the covenants are contained in two different documents, it has been emphasized in UN resolutions and documents that the covenants belong together and should be seen as a whole. In only a few instances, a state has decided to adhere only to one of the two. As of January 2001, 146 states are parties to the Covenant on Civil and Political rights and 142 states to the covenant on Economic, Social and Cultural Rights. 


The two covenants contain some identical or similar provisions, such as the right to self-determination

(Article 17 both covenants) and the principle of non-discrimination (Article 2 of both covenants). Also the safeguard clauses that the rights should not be used as a pretext for the destruction of other rights, are the same (Article 5 of both covenants). 




                            The International Covenant on Civil and Political Rights 

The International Covenant on Civil and Political Rights contains 53 articles, of which 27 are of a normative character. It also consists of a first optional protocol adopted at the same time as the Covenant in 1906, establishing a procedure for individual complaints, and a second optional protocol, adopted in 1989 aiming at the abolition of the death penalty. As of January 2001, 98 states are parties to the first protocol and 45 states to the second.  


Pursuant to Article 28 of the Covenant, a Human Rights Committee is established, consisting of 18 members, who are nominated and elected by states but who serve in their individual capacity. Its mandate is to consider the reports that all states parties are under a duty to submit regularly to the committee, to consider interstate complaint and to deal with the individual complaints that may come before it under the first optional protocol 


                            The International Covenant on Economic, Social and Cultural Rights 

The International Covenant on Economic, Social, and Cultural Rights consists of 31 articles, of which the first 15 are of a normative character and the last 16 of a more procedural nature. In its normative articles it sets out many of the fundamentals for the well being and prosperity of an individual. Each state party is under an obligation to undertake steps “to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in the present covenant, by all appropriate means, including particularly the adaption of legislative meansures” (Article 27 the Covenant). A core provision is Article 11, which recognizes the rights of everyone to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions unfortunately, as the committee itself has noted, in many parts of the world there exists a disturbingly large situation. Much debate had been held on the difficulties to enforce and measure to what extent a state party is fulfilling its obligation under the Covenant. However, several fundamental principles apply, e.g. the important principle of non-discrimination. Also, the exercise of particular economic, social or cultural rights presupposed or is linked to the exercise and enjoyment of rights of a civil or political nature. For example, the enjoyment of many cultural rights presupposes the rights to freedom of association, of religion and expression. 


The international community has in the last years pointed to the need to give increased attention to economic, social and cultural rights. The denial of these are often the first steps towards alienation and polarization in societies, which in turn lead to increased risks for violent conflict and further oppression. Any focus on measures of a truly preventive character will sooner or later embark on discussions about improved implementation of human rights and not the least in regard to the principle of nondiscrimination and economic, social and cultural rights. 


The covenant on Economic, Social and Cultural Rights do not make provision for the establishment of a separate treaty body. Instead, the responsibility for the supervision of the Covenant is entrusted to the Economic and Social Council (ECOSOC) originally; the ECOSOC delegated this work to a special group of government experts. However, in 1985, the ECOSOC decided to instead create the Committee on Economic, Social and Cultural Rights, a body composed of eighteen members, elected by ECOSOC from a list of candidates nominated by states parties for terms of four years. Members serve in their individual capacities, and meet twice a year for sessions of three weeks duration. The main function of the committee, as will all others of the six treaty bodies, is the examination of state report.  

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