(Source: Human Rights Law Teaching Material
Demelash Shiferaw
& Yonas Tesfa)
The term ‘human rights’, is used to denote a broad spectrum of rights ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for a dignified human existence. These rights can be ordered and specified in different ways. At the international level, a distinction has sometimes been made between civil and political rights, on the one hand, and economic, social and cultural rights on the other. This section clarifies this distinction. Since other classifications are also used, these will likewise be reviewed, without claiming, however, that these categorisations reflect an international consensus. It is also clear that the various categorisations overlap to a considerable extent.
Although human rights have been classified in a number of
different manners it is important to note that international human rights law
stresses that all human rights are universal, indivisible and interrelated (e.g. Vienna Declaration and Programme of
Action (1993), para. 5). The indivisibility of human rights implies that no
right is more important than any other.
i. CLASSIC AND SOCIAL
RIGHTS
One classification used is the division between ‘classic’
and ‘social’ rights. ‘ Classic’ rights are often seen to require the
non-intervention of the state (negative obligation), and ‘social rights’ as
requiring active intervention on the part of the state, Classfying human rights
in terms of negative and positive ovligations may have its own defects for a
certain right may involve both negative and positive obligations for its
effective realization. In other words, classic rights entail an obligation for
the state to refrain from certain actions, while social rights oblige it to
provide certain guarantees. Lawyers often describe classic rights in terms of a
duty to achieve a given result (‘obligation of result’) and social rights in
terms of a duty to provide the means (‘obligations of conduct’). The evolution
of international law, however, has led to this distinction between ‘classic’
and ‘social’ rights has become increasingly awkward. Classic rights, such as
civil and political rights, often require considerable investment by the state.
The state does not merely have the obligation to respect these rights, but must
also guarantee that people can effectively enjoy them. Hence, the right to a fair
trial, for instance, requires well-trained judges, prosecutors, lawyers and
police officers, as well as administrative support. Another example is the
organisation of elections, which also entails high costs.
On the other hand, most ‘social’ rights contain elements
that require the state to abstain from interfering with the individual’s
exercise of the right. As several commentators note, the right to food includes
the right for everyone to procure their own food supply without interference;
the right to housing implies the right not to be a victim of forced eviction;
the right to work encompasses the individual’s right to choose his/her own work
and also requires the state not to hinder a person from working and to abstain
from measures that would increase unemployment; the right to education implies
the freedom to establish and direct educational establishments; and the right
to the highest attainable standard of health implies the obligation not to
interfere with the provision of health care.
In sum, the differentiation of ‘classic’ rights from
‘social’ rights does not reflect the nature of the obligations under each set
of rights.
ii. CIVIL, POLITICAL, ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
Civil rights
The term ‘civil rights’ is often used with reference to the
rights set out in the first eighteen articles of the UDHR, almost all of which
are also set out as binding treaty norms in the ICCPR. From this group, a
further set of ‘physical integrity rights’ has been identified, which concern
the right to life, liberty and security of the person, and which offer
protection from physical violence against the person, torture and inhuman
treatment, arbitrary arrest, detention, exile, slavery and servitude,
interference with one’s privacy and right of ownership, restriction of one’s
freedom of movement, and the freedom of thought, conscience and religion.
The difference between ‘basic rights’ (see below) and
‘physical integrity rights’ lies in the fact that the former include economic
and social rights, but do not include rights such as protection of privacy and
ownership.
Although not strictly an integrity right, the right to equal
treatment and protection in law certainly qualifies as a civil right. Moreover,
this right plays an essential role in the realisation of economic, social and
cultural rights.
Another group of civil rights is referred to under the
collective term ‘due process rights’. These pertain, among other things, to the
right to a public hearing by an independent and impartial tribunal, the
‘presumption of innocence’, the ne bis in
idem principle and legal assistance (see, e.g., Articles 9, 10, 14 and 15 of the ICCPR).
Political rights
In general, political
rights are those set out in Articles 19 to 21 of the UDHR and also codified in
the ICCPR. They include freedom of expression, freedom of association and
assembly, the right to take part in the government of one’s country, and the
right to vote and stand for election at genuine periodic elections held by
secret ballot (see Articles 18, 19, 21, 22 and 25 of the ICCPR).
Economic and social rights
The economic and social rights are listed in Articles 22 to
26 of the UDHR, and further developed and set out as binding treaty norms in
the ICESCR. These rights provide the conditions necessary for prosperity and
wellbeing. Economic rights refer, for example, to the right to property, the
right to work, which one freely chooses
or accepts, the right to a fair wage, a reasonable limitation of working hours,
and trade union rights. Social rights are those rights necessary for an
adequate standard of living, including rights to health, shelter, food, social
care, and the right to education ( Articles 6 to 14 of the ICESCR).
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28. These
include the right to participate freely in the cultural life of the community,
to share in scientific advancement, and the right to the protection of the
moral and material interests resulting from any scientific, literary or
artistic production of which one is the author (see also Article 15 of the
ICESCR and Article 27 of the ICCPR).
• The
alleged dichotomy between civil and political rights, and economic, social and
cultural rights
Traditionally, it has been argued that there are fundamental
differences between economic, social and cultural rights, and civil and
political rights. These two categories of rights have been seen as two
different concepts and their differences have been characterised as a dichotomy. According to
this view, civil and political rights are considered to be expressed in a very
precise language, imposing merely negative obligations which do not require
resources for their implementation, and which, therefore, can be applied
immediately. On the other hand, economic, social and cultural rights are
considered to be expressed in vague terms, imposing only positive obligations
conditional on the existence of resources and therefore involving a progressive
realisation.
As a consequence of these alleged differences, it has been
argued that civil and political rights are justiciable whereas economic, social
and cultural rights are not. In other words, this view holds that only
violations of civil and political rights can be adjudicated by judicial or
similar bodies, while, economic, social and cultural rights are ‘by their
nature’ non-justiciable.
Over the years, economic, social and cultural rights have
been re-examined and their juridical validity and applicability have been
increasingly stressed. During the last decade, we have witnessed the
development of a large and growing body of case-law of domestic courts concerning
economic, social and cultural rights. This case-law, at the national and
international level, suggests a potential role for creative and sensitive
decisions of judicial and quasi-judicial bodies with respect to these rights.
iii. FUNDAMENTAL AND BASIC RIGHTS
Fundamental rights are taken to mean such rights as the
right to life and the inviolability of the person. Within the UN, extensive
standards have been developed which, particularly since the 1960s, have been
laid down in numerous conventions, declarations and resolutions, and which
bring already recognised rights and matters of policy which affect human
development into the sphere of human rights. Due to the concern that a broad
definition of human rights may lead to the notion of ‘violation of human
rights’ losing some of its significance has generated a need to distinguish a
separate group within the broad category of human rights. Increasingly, the
terms ‘elementary’, ‘essential’, ‘core’ and ‘fundamental’ human rights are
being used.
Another approach is to distinguish a number of ‘basic
rights’, which should be given absolute priority in national and international
policy. These include all the rights which concern people’s primary material
and non-material needs. If these are not provided, no human being can lead a
dignified existence. Basic rights include the right to life, the right to a
minimum level of security, the inviolability of the person, freedom from
slavery and servitude, and freedom from torture, unlawful deprivation of liberty,
discrimination and other acts which impinge on human dignity. They also include
freedom of thought, conscience and religion, as well as the right to suitable
nutrition, clothing, shelter and medical care, and other essentials crucial to
physical and mental health.
Mention should also be made of so-called ‘participation
rights’. For instance, the right to participate in public life through
elections (which is also a political right; see above) or to take part in
cultural life. These participation rights are generally considered to belong to
the category of fundamental rights, being essential preconditions for the
protection of all kinds of basic human rights.
iv. OTHER
CLASSIFICATIONS
Freedoms
Preconditions for a dignified human
existence have often been described in terms of freedoms
(e.g., freedom of
movement, freedom from torture, and freedom from arbitrary arrest). United
States President, Franklin D. Roosevelt, summarised these preconditions in his
famous ‘Four Freedoms Speech’ to the United States Congress on 26 January 1941:
• Freedom
of speech and expression;
• Freedom
of belief (the right of every person to worship God in his own way);
• Freedom
from want (economic understandings which will secure to every nation a healthy
peace-time life for its inhabitants); and
• Freedom
from fear (world-wide reduction of armaments to such a point and in such a
thorough fashion that no nation would be able to commit an act of physical
aggression against any neighbour). Roosevelt implied that a dignified human
existence requires not only protection from oppression and arbitrariness, but
also access to the primary necessities of life.
Civil liberties
The concept of ‘civil liberties’ is
commonly known, particularly in the United States, where the
American Civil Liberties Union (a non-governmental
organisation) has been active since the 1920s. Civil liberties refer primarily
to those human rights which are laid down in the United States Constitution:
freedom of religion, freedom of the press, freedom of expression, freedom of
association and assembly, protection against interference with one’s privacy,
protection against torture, the right to a fair trial, All the rights of
workers. This classification does not correspond to the distinction between
civil and political rights.
Individual and
collective rights
Although the fundamental purpose of human rights is the
protection and development of the individual (individual rights), some of these
rights are exercised by people in groups (collective rights). Freedom of
association and assembly, freedom of religion and, more especially, the freedom
to form or join a trade union, fall into this category. The collective element
is even more evident when human rights are linked specifically to a membership
of a certain group, such as the right of members of ethnic and cultural
minorities to preserve their own language and culture. One must make a
distinction between two types of rights, which are usually called collective
rights: individual rights enjoyed in association with others, and the rights of
a collective.
The most notable example of a collective human right is the
right to selfdetermination, which is regarded as being vested in peoples rather
than in individuals (see Articles 1 of the ICCPR and ICESCR). The recognition
of the right to self-determination as a human right is grounded in the fact
that it is seen as a necessary precondition for the development of the
individual. It is generally accepted that collective rights may not infringe an
universally accepted individual rights, such as the right to life and freedom
from torture.
First, second and third generation rights
The division of human rights into three generations was
first proposed by Karel Vasak at the International Institute of Human Rights in
Strasbourg. His division follows the principles of Liberté, Égalité and Fraternité of the French Revolution.
First generation rights are related to liberty and refer
fundamentally to civil and political rights. The second generation rights are
related to equality, including economic, social and cultural rights. Third
generation or ‘solidarity rights’ cover group and collective rights, which
include, inter alia, the right to
development, the right to peace and the right to a clean environment. The only
third generation right which so far has been given an official human rights
status - apart from the right to self-determination, which is of longer
standing - is the right to development (see the Declaration on the Right to
Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna
Declaration and Programme of Action (Paragraph I, 10)). The Vienna Declaration
confirms the right to development as a collective as well as an individual
right, individuals being regarded as the primary subjects of development.
Recently, the right to development has been given considerable attention in the
activities of the High Commissioner for Human Rights. The EU and its member
states also explicitly accept the right to development as part of the human
rights concept.
While the classification of rights into ‘generations’ has
the virtue of incorporating communal and collective rights, thereby overcoming
the individualist moral theory in which human rights are grounded, it has been
criticised for not being historically accurate and for establishing a sharp
distinction between all human rights. It would be more interesting if how hte
concepts of generations of tights is at adds with the Tehran Proclummation or
the UDPA was described or explained.
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