On the 70th Anniversary of the Universal Declaration of Human Rights, What is UDHR and How did it Come About?

                          Mahmoud M.A.

                          Abdou

                           24 April 2018

This chapter was written as part of the author's graduation project for his MA in International Law and the Settlement of Disputes at the UN University for Peace in Costa Rica. Also See: The Human Rights Committee, the Committee on Economic, Social and Cultural Rights and Other Human Rights Treaties.

Human rights are the fundamental/inalienable privileges that everyone is born with and everyone is entitled to by virtue of simply being a person. They are “the set of fundamental moral rights that are considered necessary for a life of human dignity, and are premised on respect for the equality and autonomy of individuals.”1 Human rights are universal, indivisible, and interdependent. They are interconnected and interrelated; “they must not be viewed in isolation from one another.”2 All human beings, regardless of their race, sex, class, language, and nationality are entitled to the same rights, which cannot be taken or given away. Historical, religious, moral and philosophical roots have all contributed to the contemporary understanding of what human rights are, which is a fact that refutes the commonly held view that human rights are Western or Eurocentric doctrines. As highlighted by prominent scholars such as Smith, Anker, Shestack and Isahy, the ancient roots of the concept of human rights stretch as far back as the Hammurabi code of laws, and include ancient Greek and Roman philosophies, ancient Indian texts such as Arthashastra, Buddhism, Judaism, Confucianism, Islam, and Ubuntu.3

Rights as a concept entails having an entitlement to a particular tangible or intangible good, which means having a strong moral or legal claim that can outweigh all other competing claims to that same good.4 Nickel describes rights as specifying “who is entitled to receive a certain mode of treatment (the rightholders) and who must act on specific occasions to make that treatment available (the addressees).”5 At the same time, legal rights emerge only after “legal duties, disabilities, and liabilities” have been constructed by a government, which would then provide measures for the enforcement of the right.6 Therefore, a norm can still be a human right irrespective of the fact that it may not be enforceable before a court of law. There are other mechanisms available for holding governments accountable for violations of human rights other than courts, which include the UN global human rights system that operates more on the principle of naming and shaming, a free press, fair elections, reports of human rights bodies and organizations, national human rights commissions etc. Enforceability or justiciability before a court of law is, therefore, not determinative of the status of a norm as a human right. That, merely makes the human right more effective by providing an avenue for making governments accountable through courts, in addition to other forms of accountability.

The primary function of the human rights system is to organize and structure relationships between people, and visa vie their government. As Karl E. Klare puts it, the main purpose of “the human rights project is to erect barriers between individuals and the State, so as to protect human autonomy and self-determination from being violated or crushed by governmental power.”7 This chapter outlines the three components of the International Bill of Human Rights, which are the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Social, Cultural, and Economic Rights (ICESCR). It starts by highlighting, in relation to the concept of state sovereignty, the main pillars of early human rights practices, namely those that addressed the abolishment of slavery, the protection of minorities and aliens, and those that became evident through the treaties and conventions of International Humanitarian Law. Subsequently, the drafting process of UDHR will be explained, while giving political and historical context to the reasons behind the division of the Bill into three as opposed to one document, and the last two sections will address the context and main provisions of ICCPR and ICESCR.

State Sovereignty and the Early Developments of HRs

The state is the entity that has generally been considered “best suited to, and primarily responsible for, protecting the human rights and fundamental freedoms of its citizens;” the history of the human rights system is “inextricably bound up with the history of modern state.”8 At the same time, while being the primary gardener of human rights, the state itself could also be the violator, and the goal of the human rights system is to “set the boundary between legitimate and illegitimate intrusions by the state on individual dignity and autonomy, drawing the line between acceptable and unacceptable exercises of state power.”9

Under the classic notion of state sovereignty, no intervention by external entities was allowed in the domestic affairs of states, and in fact prior to World War II “most legal scholars and governments affirmed the general proposition, albeit not in so many words, that international law did not impede the natural right of each equal sovereign to be monstrous to his or her subjects.”10 In other words, “[t]raditional historical, philosophical, practical, political, and legal factors developed over the centuries all served to confine matters of human rights to the area of exclusive domestic jurisdiction, far from any global agenda, and thus removed from being considered as a legitimate issue for any kind of serious international action.”11 At the same time, starting in the eighteenth century, “states began to acknowledge that certain human rights situations were legitimate targets for international action.”12 From civil wars to revolutions and processes of democratization, claims of absolute state sovereignty became challenged and advanced became the “more liberal political philosophies.”13 “[I]ndustrialization and urbanization created new pressures for change; modernization unleashed forces opposed to pastoral tradition and more parochial ideas of former times; and appeals to the conscience on behalf of the welfare of others during this period increasingly began to fall on fertile soil.”14

The human rights of all people became progressively valued and accepted. As numbers totaled in the millions with a “systematic focus on race, creation of an ideology extolling racial superiority and a practice establishing racial segregation between masters and slaves, lucrative financial rewards, and impact on four continents, black slavery had no parallel in history.”15 Starting in 1806, president Thomas Jefferson of the United Stated urged in a message to Congress the withdrawal of “‘the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interest of...[the US], have long been eager to proscribe.’”16 In the United States and Britain, such statements from highly influential personalities translated into the Act to Prohibit the importation of Slaves, and the Act for the Abolition of Slave Trade, respectively, and beginning with the 1815 Congress of Vienna, “the major powers of Europe worked together to draft treaties that called for an end to the international slave trade.”17 At the same time, while significant, those early efforts for the abolishment of slavery were directed solely at bringing to an end slave trade in between states, not at the abolishment of slavery or the way slaves were treated within states, which was not addressed in an international treaty until nearly one-hundred years later.

Generally speaking, “[m]odern international human rights law is grounded in a number of historical legal doctrines and institutions...In particular...the protection of minorities, state responsibility for injuries to aliens, and humanitarian intervention;” these were the main pillars of international human rights practices before WWII.18 Following the decolonization of the Balkans from Turkish rule in the nineteenth century, agreements were signed to protect the Christian minorities in the Ottoman Empire, which were “selective in their application and, some have argued, could be said to have [had] imperialistic rather than altruistic aims.”19 Nevertheless, they were one of the early instruments that allowed states “to intervene in other states’ affairs on behalf of protected populations.”20 After WWI, interest in the protection of the rights of minorities was represented through the “Fourteen Points” document of former United States President Woodrow Wilson, which emphasized “the ideals of freeing minorities and self- determination of peoples as key components of liberal nationalism.”21 Wilson even proposed the inclusion of provisions for the protection of minorities in the Covenant of the League of Nations, but his proposals were turned down by the other major powers.22 Instead, the Covenant of the League of Nations contained two articles, Art. 22 and Art. 23, which addressed the need for protecting particular groups. Article 22 established the Mandate system over the territories held by the colonial powers that were defeated in WWI, in pursuit of “the principle that the well- being and development of peoples form a sacred trust of civilization...,”23 and Art. 23 called upon states to “endeavor to secure and maintain fair and humane conditions of labor for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend.”24

Additionally, the League of Nations served as the guardian of a system of Minorities Treaties for Central and Eastern European states, which was established via a number of treaties after WWI addressing the rights of religious and ethnic minorities in those countries.25 The significance of this system lies in the fact that it “represented a clear incursion on the state’s absolute internal control over its citizens.”26 At the same time, minorities rights were enforced “only within the borders of recently defeated or newly created nation-states, not within the territories or colonies of the victors.”27 Within those territories and colonies, the momentum of modernity and the wave of the abolishment movement inspired the call for the protection of other exploited groups in society such as women and indigenous people.28

Other pillars of early international human rights practices include the doctrine of state responsibility for injuries to aliens, which allowed states to “bring claims against other states on behalf of their own nationals,” and contributed to the foundations of the “international norm that individuals should enjoy some basic protection of their rights irrespective of their national origins.”29 Further, the early system of human rights practices was strengthened by the Jus in bello (law of war) branch of International Humanitarian Law, which is the system that ensures the perseverance of human rights protection even in times of armed compact. IHL treaties that emboldened early human rights practices include the First Geneva Convention of 1864 or the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, which was followed by the Hague Convention III of 1899 regarding the rules of naval warfare, the 1929 Geneva Convention on the treatment of the prisoners of war, and post-World War II IHL instruments such as the four Geneva Conventions of 1949.30 At the same time, “[e]ven these humanitarian treaties...failed to pierce the veil of state sovereignty. None addressed the relationship between a state and its own citizens, or provided protections against acts of the home state during times of war.”31 Their significance still lies in the fact they emboldened the idea that the rights of persons could be protected under international law,” which gradually become “an established principle.”32

The Universal Declaration of Human Rights

“The atrocities of WWII, in particular those of the Nazis, emphasized the need for international protection of human rights.”33 All in all, “six million Jews, half a million Gypsies, and tens of thousands of communists, homosexuals, Church activists, and others were killed.”34 As the allied powers failed to intervene and stop the atrocities that were committed during the War, they later established the Nuremberg and Toyo War Crimes Tribunals “to prosecute German and Japanese leaders for war crimes and crimes against peace...which punished the accused for wrongs that were moral but not legal crimes at the time of commission.”35 Most importantly, “the Trials represented an important step in the internationalization of human rights law, and promoted the idea that individuals could be held legally responsible for violations of international human rights and humanitarian law – even when those violations victimized the state’s own people.”36

Whether to include provisions stressing the importance of human rights was an issue of great concern at the 1945 San Francisco Conference, where the UN Charter was drafted. Building on a declaration at a recent inter-American conference, Latin American states including Panama, Chile, Mexico, Uruguay and Cuba stressed the importance of either “including some kind of a declaration of human rights in the UN Charter” or “adopting such a document shortly after the San Francisco Conference.”37 Despite the fact that the San Francisco conference was not utilized for the drafting of a bill of human rights, the efforts of Latin American States as well as the lobbying of various civil society groups led to “a combination of US and Soviet amendments,” to the Charter and to the inclusion in it of seven different references to human rights.38 For example, the preamble of the Charter indicates the goal of Member States “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, [and] in the equal rights of men and women of nations large and small.”39

Most explicit was the reference in the Charter with regards to the creation of a human rights commission, and when the UN was finally established on October 24, 1945, issues related to human rights were ascribed to the Economic and Social Council (ECOSOC). During the first session of ECOSOC, “the Nuclear Commission on Human Rights was set up.”40 The full Commission on Human Rights was not formally established until the second session of ECOSOC, and it carried out the drafting process of the Universal Declaration of Human Rights (UDHR) between January 1947 and June 1948. The drafts of UDHR were distributed to all UN members states for comments and contributions, and the final draft was proofread by ECOSOC and the Generally Assembly’s Third Committee, before the plenary session of the 1948 General Assembly finally adopted the Declaration.41 The process of drafting UDHR was rapid and efficient; “[n]o subsequent UN standard-setting work in the field of human rights” could ever match it.42

Eighteen countries were represented at the Commission of Human Rights during the drafting period, which were as diverse as: Australia, Belgium, Byelorussia, Chile, China, Egypt, France, India, Iran, Lebanon, Panama, the Philippine Republic, the Ukraine, the United Kingdom, the United States, the USSR, Uruguay, and Yugoslavia. As Lawrence puts it, “[i]t was in this landmark document that human rights were first codified at the global level. The UDHR consists of a Preamble and 30 articles defining the human rights and fundamental freedoms to which all people are entitled.”43 The rights that are enumerated in the UDHR could be conveniently divided into the following categories:

  • Articles 1 highlights the universality of human rights;

  • Article 2 stresses the importance of implementing human rights without discrimination on the bases of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;”

  • Articles 3-20 outline civil and political rights, which include:44 the right to life, liberty and security of person; the right to freedom from slavery; the right to freedom from torture and cruel, inhuman or degrading treatment; the right not to be subjected to arbitrary arrest, detention or exile; the right to a fair trial by a competent tribunal, presumption of innocence, and freedom from the application of ex post facto laws; the right to privacy; the right to own property; the right to freedom of speech, religion, and assembly; and the right to freedom of movement;

  • Articles 22-27 list the economic, social, and cultural rights, which include:45 the right to social security, work, protection against unemployment, and equal pay; the right to rest and leisure; the right to an adequate living standard; the right to education; and the right to participate in the cultural life of the community;

  • Articles 28-30 outline general conditions for the fulfillment of those rights, including “a social and an international order in which the rights and freedoms set forth in this Declaration can be fully realized.”

The legal value of UDHR

Michael Ignatieff highlights that, “the parties to the UDHR ‘never actually believed that it would constrain their behavior’ since it ‘lacked any enforcement mechanism,’ such as a court that could impose penalties on violators.”46 In fact, UDHR was adopted by a non-binding General Assembly resolution that does not have any prima facie legal force, and it is not a treaty or a convention “subject to the ratification and accession requirements foreseen for treaties.”47 However, UDHR “carries legal weight far beyond that of ordinary resolutions or even other declarations emanating from the General Assembly.”48 Giving its status of a declaration, UDHR is not a normal GA resolution, and it has a special degree of importance.49 As stated in the Memorandum of the UN Office of Legal Affairs, “a ‘Declaration’ is a formal and solemn instrument, suitable for rare occasions when principles of great and lasting significance are being enunciated, as is the case for the Human Rights Declaration.”50

The status of UDHR’s legal value has been evolving ever since its adoption in 1948 and nowadays there are a “few international lawyers who deny the fact that the Declaration has become a normative instrument which creates legal obligations for member States of the United Nations.”51 The controversy, however, surrounds the issues of how the Declaration became legally binding, and whether or not all the rights enumerated in the Declaration are equally binding on all states.52 Between 1948 and 1976, when the two international covenants on civil and political rights and economic, social, and cultural rights were adopted, UDHR was often used as the fundamental point of reference “when governments, the United Nations, and other international organizations wanted to invoke human rights obligations, or wanted to condemn violations of them by a State.”53 In other words, during that period, the Declaration “came to symbolize what the international community understood as ‘human rights,’ reinforcing the conviction that governments had all the obligation of assuring fulfillment of the rights of the Declaration for all those individuals under their jurisdiction.”54 Most importantly, the entire UN system with its human rights bodies such as the Commission, Sub-Commission, special rapporteurs, and working groups gave UDHR “an almost ‘constitutional’ role inside the organization,” thereby adding an “obligatory value” to the Declaration.55

Jaime Oraa highlights that three main theories currently exist with regards to the legal status of UDHR. First, it is considered an “authentic and authorized interpretation” of the Charter and its provisions, since many governments and UN bodies “make constant reference to the Declaration when applying clauses of the Charter.”56 Second, a part of UDHR is considered “an expression of the general principles of law,” and as such, they form part of the sources of international law that are referred to in Article 38 of the Statute of the International Court of Justice.57 Third, many scholars view the Declaration as customary international law, “if not as regards all articles in the Declaration, then certainly as regards a considerable part of them.”58

Building on the theory that was developed by Jimenez de Arechaga on the relationship between declarations of the UNGA and customary international law, Oraa classifies UDHR as one of a “‘generative’ effect: the Declaration, at the time of its approval, is a new norm, and has the status of lege ferenda, but it constitutes the starting point for the later practice of States, a practice which is ‘repeated and uniform,’ so that the Declaration becomes a legal rule because of its customary effect.”59 The Declaration internationalized the subject of human rights after being of exclusive domestic concern for centuries. “Evidence of subsequent practice regarding the UDHR by States and bodies of the international community is abundant, and confirms its character as a customary law,” which include the citing of the Declaration by governments at international conferences and in presidential declarations, as well as its incorporation in many clauses of domestic legislations, such as in the Spanish Constitution of 1978.60

At the end of the First World Conference on Human Rights that was held on the 20th anniversary of the adoption of the UDHR, the Tehran Proclamation of May 13, 1968 highlighted that “the Declaration Constitutes an obligation for the international community, and that...[states] considered serious violations of human rights to be violations of the Charter.”61 Additionally, in the Helsinki Final Act (1975) Eastern and Western States declared that in the area of human rights, “States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights.”62 Furthermore, in the Vienna Declaration (1993) “the States taking part reaffirmed again ‘their commitment to the purposes and principles contained in the Charter of the United Nations and the Universal Declaration of Human Rights.’”63 All those declarations are evidence of opinio iuris, “of a decision of States concerning the legally binding character of the Declaration.”64

UDHR has signified, in principle, “that the relationship between states and individuals was no longer a matter of purely domestic law, absolutely exempt from interference from third states or the institutions of the international community.”65 In other words, UDHR “represented a major break with the Westphalian system: from now on it would be hard for states to argue that the sovereign had the right to be monstrous to his or her subjects.”66

The role of ideology

Meanwhile, it is important to acknowledge throughout the drafting process of UDHR and beyond, “various UN Member States struggle[ed] for influence,” either due to an “idealistic desire to obtain as clear and strong a human rights declaration as possible, in order to prevent violations, or to advocate human rights, “which conformed to their own national legislation.”67 An important motive particularly for the “most powerful states was the need to avoid criticism and, at the same time, to have an opportunity to criticize others. Human rights had become a weapon in the ideological warfare between East and West,” and with that came the importance of ensuring that “human rights documents conformed to national legislation and addressed the ‘weak points’ of the ideological enemy as well.”68 This reality was particularly evident as the Cold War intensified, and was the main reason behind the separation between civil and political rights on the one hand, and economic, social, and cultural rights on the other hand, into two separate documents. In short, “[c]onflicting ideologies in Soviet and Western bloc countries after the war resulted in different conceptions of what constituted a ‘fundamental’ human rights.”69

Soviet states “championed” economic, social and cultural rights, “which they associated with the objectives of socialist society.”70 On the other hand, “Western states promoted civil and political rights as the foundation of democracy...[They] viewed economic, social, and cultural rights with suspicion because many of these rights required an element of wealth distribution;” for the Western states, economic, social and cultural rights “represented the very interference with individual liberty that civil and political rights were believed to protect against.”71 Soviet bloc countries favored the adoption of a single covenant, “as they feared that Western states would use separation as a means to prevent the adoption of a covenant dealing with economic, social, and cultural rights,” while Western bloc states backed the division of rights into two covenants.72

After the adoption of the UDHR by the General Assembly, the Commission on Human Rights started the process of drafting a human rights covenant “with provisions that would be legally binding on member states.”73 The decision to further delineate civil liberties and economic, social, and cultural rights into two, rather than one, covenant(s) “was the product of conflicting political ideologies and misconceptions about the nature of human rights,” as highlighted above, “rather than the necessary consequence of fundamental differences between groups of rights.” The initial draft of the additional covenant that was prepared by the Commission in 1950 enumerated only civil and political rights; however, when the General Assembly “called upon the commission to incorporate economic, social, and cultural rights into the final covenant,” the Economic and Social Council (ECOSOC) appealed the GA’s decision citing the commission’s concern with regards to “‘the problems of placing rights and obligations of ‘different kinds’ in a single instrument.”74 Subsequently the GA agreed by a vote of 29-25 that “the commission should draft two separate covenants to be submitted for approval simultaneously.”75 The commissions’ final products of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social, and Cultural Rights (ICESCR) were adopted simultaneously by the General Assembly on December 16, 1966 and came into force in 1976.

The International Covenant on Civil and Political Rights (ICCPR)

Tomuschat highlights that human rights “must be considered an offspring of the human rights that were originally codified at national level. The substance of what was first guaranteed by procedures and mechanisms within a national framework,” argues Tomuschat, “was later strengthened by a complementary international set of rules.”76 As such, contemporary human rights discourse classifies civil and political rights as first generation and as negative rights, “which enjoin states to abstain from interfering with personal freedom.”77 Those rights are essential and important “both in and of themselves, and because they are indivisible from, and essential for, the protection of other types of rights, such as economic, social, and cultural rights.”78

Describing civil and political rights as first generation rights is inherent in the fact that “the eighteenth as well as the nineteenth century, to the extent that living instruments of positive law and not purely utopian concepts are concerned, acknowledged only one category of human rights, namely rights of the first generation.”79 For instance, the Belgian Constitution of 1831, “which had a considerable influence on constitutional developments all over Europe, lists the well-known freedoms in Article 4-23,” and in fact, during the entire 19th century, “national constitutions did not depart from that line. Invariably the catalogue of human rights, which were progressively deemed to constitute a necessary component of a modern constitutional text, were confined to classical freedoms.”80 Those rights were never omitted from national constitutions, even with the addition of new rights such as those pertaining to social and economic welfare in the Soviet Constitution of 1917, and they have remained over the century “the core of the defense strategy against arbitrary use of power by governments.”81 The International Covenant on Civil and Political Rights82 is a treaty designed to ensure state compliance with the protection of civil and political liberties within its domestic sphere. While first generation rights are generally enforced through national constitutions, this instrument erodes state sovereignty by implementing monitoring mechanisms by the international community, namely through the Human Rights Committee, of the human rights situation in the Covenant’s State Parties.

Karel Vasak was the renowned scholar who first divided human rights into different generations of first, second, and third, in way of explaining the development of human rights in Europe. However, it is important to acknowledge that while this is the categorization of rights that is generally adopted in human rights discourse, different scholars have argued in favor of the adoption of other classifications based on the progressive evolution of human rights in other parts of the world. For instance, John C. Mubangizi argues that classifying civil and political rights as first generation rights places those rights at a higher priority than other categories of rights, but in the context of Africa, what is usually described as third generation rights i.e. the right to development and the right to a healthy environment, is of a higher priority and might as well be classified as Africa’s own first generation of rights.83

Structure of ICCPR and giving content to its provisions

The Covenant constitutes the second main component of the International Bill of Rights. It is divided into a Preamble and six parts and the rights encompassed within ICCPR are generally considered strict obligations that states parties must abide by. As of this writing, 170 countries have become parties to ICCPR.84 Except for the collective right of peoples to self- determination in Article 1, “which is listed in a separate part (Part I) and which according to the case law of the Human Rights Committee is not subject to monitoring by means of individual complaints,” the Covenant only guarantees individual rights as enumerated in Part III.”85 This part of ICCPR (Art. 6-27) is considered “the ‘backbone’ of the treaty” as it lists the “substantive civil and political human rights protected under international law.”86 While excluding the right to own property, the right to have a nationality and the right to asylum, ICCPR covers all the civil and political rights that were enumerated in UDHR,87 with the aim of making the protection of those remaining rights binding on all State Parties to the Covenant. Lawrence divides those rights into the following categories: Life, Liberty and Physical Security (Articles 6-13); Judicial Process (Articles 14-16 and 26); Fundamental Freedoms (Articles 17-22); Family (Articles 23- 24); Political Participation (Article 25); and Persons Belonging to Minorities (Article 27).88 The remainder of the Covenant (Part IV – VI) contains “a number of administrative and enforcement provisions,”89 including “the international monitoring provisions, some principles of interpretation and final clauses.”90

Additionally, the Covenant is supplemented by two Optional Protocols, and State Parties can choose whether or not to sign them when becoming parties to ICCPR. Optional Protocol I of 1966, which entered into force in 1976 as well, “sets up a quasi-judicial complaints procedure for the treaty,” and Optional Protocol II of 1989 aims at “the abolition of the death penalty.”91 Optional Protocol I contains 14 articles and the 11 articles of Optional Protocol II constitute “an amendment to the right to life in Article 6 of the ICCPR.”92 As of this writing more than two- thirds of State Parties to ICCPR or 116 countries are also parties to the first Optional Protocol, and 85 countries are parties to the second Optional Protocol.93 In accordance with the Vienna Convention on the Law of Treaties (Article 19.C), it is permissible to make reservations on the provisions of a treaty at the time of ratification or accession “to the extent that” such reservations “are compatible with the object and purpose of the Covenant.”94 More than 150 reservations and “declarations of interpretation on many substantive and procedural provisions in the Covenant and the First Optional Protocol” have been submitted by State Parties, but none have so far been submitted relative to the Second Optional Protocol.95

In terms of the language of the Covenant, except for “the detailed minimum rights of the accused in a criminal trial in Article 14, the rights of persons deprived of liberty in Articles 9 and 10, as well as the restrictions on the death penalty in Article 6, most rights are formulated in rather general terms.”96 For this reason, giving content to, and clarifying the ambiguities regarding the real meaning of the rights that are listed in ICCPR is one of the tasks of the Human Rights Committee, which issues general comments “that give additional detail on how to define and implement” those rights.97 For example, on the issue of reservations on the Covenant, the HRCee issued general comment No.24 in November 1994, which highlighted “provisions in the Covenant that represent customary international law...may not be the subject of reservations.”98 Further, in a controversial comment, the committee highlighted its belief that the provisions of the Vienna Convention on the Law of Treaties “are inappropriate to address the problem of reservations to human rights treaties” since, in this context, “the principle of inter-State reciprocity has no place.”99

The Human Rights Committee is the body that is in charge of monitoring the implementation of ICCPR and its general comments “exert great persuasive authority, are elaborate and detailed, and provide a wealth of information on how we should understand these civil and political rights.”100 From a legal and practical perspective, those general comments “let states and other actors know exactly what things are protected by ICCPR.”101 On the issue of reservation, general comment No.24 of the HRCee highlights that it is the sole body entrusted by the Covenant to determine whether or not any given reservation by a state party “is compatible with the object and purpose of the covenant.”102 If the HRCee determines that “a reservation is considered incompatible, the Committee applies the respective provision to the State Party without benefit of reservation.”103

Other sources for giving content to the rights enumerated in ICCPR include “the decisions of international and regional judicial and semi-judicial bodies.”104 The decisions of judges and arbitrators are not only helpful in drawing the line between the rights of the individual vs. state power, but they also “map out the borders of the rights under scrutiny, and subsequent disputes will take all of these prior decisions into account.”105 Examples of such judicial and semi-judicial bodies include the International Court of Justice, the European Court of Human Rights, and the quasi-judicial individual complaints procedure of the Committee on the Elimination of Discrimination Against Women, to name a few. Further, more detailed provisions, relative to the rights of ICCPR, can be found in other human rights treaties and conventions such as “the UN Conventions against Genocide, Torture, Racial Discrimination, Discrimination against Women, the Convention on the Rights of the Child and the Declarations on Religious Intolerance, on Enforced Disappearances or on the Rights of Disabled Persons.”106 Furthermore, state practice and the interpretation of civil and political rights by national courts plays a significant role “in helping to elaborate the meanings of the various human rights. For example, when a national court in a state like South Africa makes a ruling about the right to a fair trial, this becomes part of international practice with regard to that right.”107 Decisions by national courts are not binding on other states; however, judges in international and other national courts could sometime use them as a reference in formulating their own conclusions about the rights in question.

 

Negative and Positive Obligations of State Parties’

States are legally bound by the provisions of ICCPR, immediately after becoming a party to the Covenant and are expected to take “such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”108 This means that after joining ICCPR, states become under the legal obligation to respect, protect (ensure), and fulfill the rights enumerated by the Covenant, as is particularly highlighted in the Committee’s general comment No. 31.109 To respect is a negative obligation that “requires governments to refrain from directly violating” human rights, and to refrain “from restricting the exercise of these rights where such is not expressly allowed.”110 However, as stated in GC No. 31, states are also under the positive obligation of ensuring and fulfilling ICCPR rights once they become parties to the Covenant.

While states are under the negative obligation to respect the rights of the Covenant, nearly all the rights that are enumerated in the Covenant are “accompanied by limitation clauses which permit the reduction in their scope depending on the existing social needs.”111 A list of permitted limitations as outlined in the Covenant, as well as the derogations that are permitted during a state of public emergency, have been compiled by a group of 31 international law experts in 1984, in what became known as The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, and was later adopted by the HRCee.112

For instance some articles in ICCPR such as those relating to the right to life (Article 6, (1)), or the protection of privacy (Article 17), “only prohibit arbitrary interference,” and “the political freedoms in Articles 18, 19, 21, and 22 expressly empower the States Parties to impose certain restrictions.”113 Article 12 with regards to the freedom of movement; Article 18 with regards to the freedom of thought, conscience and religion; Article 19 with regards to the freedom of expression; Article 21 with regards to the right to peaceful assembly; and Article 22 with regards to the right to freedom of association, explicitly state that such restrictions “must be necessary” for the sake of “ensuring the general welfare.”114 Articles 14(1), 21, and 22(2) add that “the yardstick of necessity must be gauged within the context of ‘democratic society;’” and a number of provisions such as Articles 9(1), 12(4), 17(1), and 25 specify the conditions of “unreasonable restrictions.”115 Additionally, Part II (Art. 2-5) of ICCPR “forbid discrimination of any kind,” for example on the basis of sex, color, religion, race, or national origin, “in the application of the rights of the treaty, and requires State Parties to provide remedies to those whose rights under the ICCPR are breached.”116 Generally speaking, limitations placed on a certain right should not mean “extinguishing” that right all together.117

Additionally, Article 4 allows governments to suspend the Covenant rights “during times of public emergency. [However], this means that states may cease protecting certain rights for a time. It does not mean that the rights are lost: individuals continue to hold their human rights, even if they are temporarily not being fulfilled.”118 In order to fulfill the conditions that allow State Parties to temporarily suspend covenant rights, the Siracusa Principles indicate that a state of public emergency amounting to “threatening the life of the nation” should exist and should also be declared as such by the concerned government.119 In general comment no. 29, the HRCee explained that “not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation...” and it added that “[d]uring armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help...to prevent the abuse of a State’s emergency power.”120 More than 20 State Parties “have notified of various derogation measures and justified them with internal difficulties, such as ethnic conflict, terrorism, guerrilla war or social unrest.”121 In some cases such as in Colombia and the military dictatorship in Chile and Uruguay, the Committee “considered the respective derogation measures as violations of the Covenant.”122

The Siracusa Principles highlight that derogations of the rights set forth by ICCPR must be “strictly required by the exigencies of the situation.”123 In other words, they must be “limited in duration, geographical coverage, and material scope...they must apply no longer and no further than is strictly necessary.”124 At the same time, the Principles classify some rights as “non-derogable” rights that may not be suspended even in times of public emergency. Those rights include the right to life (Article 6), freedom from torture, cruel, inhumane or degrading treatment (Article 7), freedom from slavery or involuntary servitude (Articles 8 (1) and 8 (2)), the right not to be imprisoned for contractual debt (Article 11), the prohibition of retrospective criminal legislation (Article 15), the right to recognition as a person before the law (Article 16), and finally the right to freedom of thought, conscience, and religion (Article 18).125 The right to freedom of thought, conscience, and religion, is both a non-derogable right, as well as a right that “maybe limited for the sake of ensuring the general welfare,” which means that “while it is never acceptable to deny a person the right to freedom of thought, conscience, and religion, it is acceptable to place reasonable restrictions on its exercise.”126

In addition to the negative obligation of respecting Covenant rights, a state party has the obligation of protecting (ensuring), and fulfilling those rights. To protect the Covenant rights, or the obligation “to ensure” according to Article 2(1), means that “the government must not only refrain from certain acts, but...it must also take steps to prevent other actors – such as individuals and corporations – from violating rights as well.”127 This is a positive obligation, because in order to protect rights, certain action is required by the government. In accordance with Article 2(3), states have to adopt legislative and other measures “to safeguard certain rights institutionally by way of procedural guarantees or the establishment of relevant legal institutions,” for example sufficient number of courts or tribunals to protect the right to a fair trial.128 This positive obligation applies to all Covenant rights; “[e]ven a so-called classic negative right as the prohibition of torture contains the positive obligation to take effective steps for the prevention of torture (by means of education, procedural guarantees, etc) and for the investigation of alleged acts of torture.”129

Further, the obligation to fulfill the rights of the Covenant implies that governments “must take steps to create an environment in which each person’s rights can be fully realized;” which is also a positive obligation that “may require a government to take significant action and allocate resources to the fulfillment of civil and political rights.”130 For example, to fulfill the right to vote, a government may have to set up “additional polling stations, translate ballots into multiple languages, and add wheelchair access in order to give anyone a real ability to exercise their right.”131 Additionally, State Parties are sometimes considered to be under the obligation to promote human rights, “by establishing and supporting human rights education programs and encouraging respect for human rights.”132

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

The last part of the International Bill of Human Rights addresses the economic, social and cultural rights, or what is generally described in human rights discourse as the positive/second generation rights. The International Covenant on Economic, Social and Cultural Rights (ICESCR)133 “essentially repeats the provisions already enunciated in UDHR, but adapts them to the needs of application by public authorities” as “binding legal obligations.”134 As of this writing, 167 states are parties to the Covenant.135 The Optional Protocol supplement of ICESCR was adopted in December 2008, for the purpose of setting up “an individual complaints procedure,” similar to that of Optional Protocol I (1966) to the ICCPR, to be administered by the Committee on Economic, Social, and Cultural Rights. The Protocol was opened for signatures in September, 2009 by any state that has signed and ratified ICESCR, and as of the date of this writing, 23 countries are parties to it.136 It has entered into force on May 3, 2013, with the ratification of the 10th state.

The structure of this second covenant is very similar to that of ICCPR, as Parts I and II of both treaties “list several structural or overarching guarantees.”137 Using the same wording as that of Part I in ICCPR, Part I in ICESCR further emboldens the right to self-determination of people, and Part II, Article 2, provides for guaranteeing the rights of the treaty without “discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Additionally, Part II lists general provisions pertaining to state obligations (Article 2(1)) and with regards to limitations (Articles 4 and 5).

Similarly to ICCPR, Part III is the “backbone” of this treaty, since it “lists the substantive economic, social, and cultural rights protected under international law,” which include all of the economic, social, and cultural rights contained in UDHR, “plus a host of additional rights.”138 In addition, the rights listed in this part are accompanied with “measures and steps to be taken by States.”139 Lawrence divides those rights into the following categories: work (Articles 6-8); social security and social protection (Article 9); protection and assistance of the family (Article 10); adequate standard of living (Article 11); health (Article 12); education (Articles 13 and 14); and cultural life (Article 15).140 The remainder of the Covenant deals with “administrative and enforcement provisions,”141 along with the individual complaint procedure under the Covenant’s Optional Protocol.

Second generation rights

Economic, social, and cultural rights are described as second-generation rights as opposed to the first generation rights of the 19th century, because they are “a child of the twentieth century, when societies assumed their responsibilities for the ‘social question.’ As a novelty, they both fascinated and frightened constitution-making bodies.”142 Starting in the early twentieth century, there was “a growing awareness in the constitutional systems almost everywhere in the world that it is not enough for a state to abstain from interfering with individual entitlements.”143 With the “large increase in factual power” of governments over their constituents, they became “burdened to an ever-growing extent with ensuring the wellbeing of their citizens,”144 as the positive nature of those rights reflected the costly obligation of the state to “(re)distribute” its resources for the sake of their gradual fulfillment.145 Those rights “deal with entitlements and freedoms related to an adequate standard of living. They stress self- development, the quality of life from the perspective of protecting human dignity.”146 At the same time, “official recognition of the ‘essential’ nature of economic, social, and cultural rights has not resulted in effective protection of these rights in practice.”147

The Committee on Economic, Social, and Cultural Rights that was created in 1985 as the body in charge of monitoring state compliance with the obligations of ICESCR, pointed out in Vienna in 1993 in a statement delivered at the World Conference on Human Rights that violating civil and political rights “is loudly and rightly condemned by the international community,” while violations of the economic, social and cultural rights are “all too often tolerated as unfortunate realities.”148 In other words, “the legal status of civil and political rights was believed to be stronger than the one [related to] esc-rights. This difference in legal nature had also consequences for the way in which non-observance of the rights could be challenged.”149 To a large extent, conceiving those rights as “different both in nature and in value” has to do with the fact that they were enumerated in a separate covenant.150 Additionally, until 1985, the predecessor of the Committee on Economic, Social, and Cultural Rights, the Sessional Working Group, was widely criticized due to its poor performance, “including its superficial examination of states’ reports, its failure to establish standards for evaluation of those reports, and the poor attendance of its members.”151

As Beth Lyon highlights, “Although economic, social and cultural rights formed a significant part of the original post-war body of human rights doctrine, they were casualties of ideologically based Cold War politics, remaining unenforced and underdeveloped until the creation of the UN Committee on Economic, Social and Cultural Rights...in late 1980s.”152 This Committee has fostered the gradual process of developing the Covenant “from a stepchild to a full member of the human rights family,” and it has contributed greatly to strengthening the place of economic, social, cultural rights internationally.153 However, there is still “a need for a stronger commitment by States parties to the Covenant norms that they have accepted voluntarily.”154 This is especially the case given the fact that economic, social, and cultural rights are often viewed as non-justiciable, “that is not suitable for review by courts.”155

ICCPR vs. ICESCR

When comparing ICCPR with ICESCR, “the wide conceptual divergence” between the two covenants becomes evident.156 For instance, Part II, Article 2(1) of ICESCR states that “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, 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 adoption of legislative measures” (emphasis added). In juxtaposition to the requirement of “strict compliance” with the provisions of ICCPR, it is usually argued that the obligations under ICESCR are merely “promotional,” and many of the terminologies in ICESCR have been criticized “for allowing states too much leeway in the fulfillment of their obligations under the Covenant.”157 Additionally, ICESCR does not contain any reference to “domestic remedies in case of alleged violations,” and it only has “a State reporting procedure to assess progressive realization.”158

Moreover, the “normative content of most economic, social, and cultural rights is substantially less well understood than that of political and civil rights...The vagueness of the covenant has seriously impeded the protection of ICESCR rights.”159 As a result, “even those states that are committed to fulfilling their obligations under the covenant will have difficulty ascertaining what exactly their obligations are.”160 Additionally, many of the rights enumerated in ICESCR such as those regarding the choice of schools in Article 13(3) and (4), and those pertaining to scientific research and creative activities in Article 15 (3), “belong to the classical liberal heritage,” which makes it “significant, in this regard, that the text of these provisions does not refer to national measures of implementation, which, indeed, are not necessary to the extent that governments are simply enjoined to respect individual freedom.”161 Furthermore, state obligations with regards to some of the rights in this Covenant are simply “to respect individual’s efforts.”162 For example, particularly with regards to the right to work “the most important facet may be the obligation of the state not to interfere with the professional activity deployed by persons desirous of earning their own living.”163

 

In addition, a careful examination of ICESCR “reveals that it deliberately refrains from establishing true individual rights,” which is why second generation rights are also generally referred to as group rights.164 The substantive rights in ICCPR are generally listed beginning with the clause: “everyone has” or “no one shall,” thereby “granting rights directly to the individual.”165 On the other hand, ICESCR “uses language, such as: ‘The States Parties to the present Covenant recognize the right of everyone...’ It has been argued therefore that this treaty is directed primarily towards governments to take measures, and only indirectly to individuals.”166 In fact, until the recent coming into force of the individual complaint procedure of the Optional Protocol of ICESCR, individuals were able to “derive and invoke their esc- rights” only after “they have been implemented in law and practice at the domestic level.”167

General Comments of the Committee on Economic, Social and Cultural Rights and the Obligations of State Parties

Giving those ambiguities and shortcomings of ICESCR in comparison to ICCPR, “one of the main challenges facing the Committee was to clarify the nature of States parties’ obligations resulting from Article 2(1) of the Covenant.”168 The general comments of the Committee on Economic, Social, and Cultural Rights “have helped to clarify the content of the ICESCR,” as well as “to identify the minimum core content of each ICESCR right.”169 Those comments are “quite elaborate and enumerate the details of each of the rights they address...whether or not they have legal force, they exert great persuasive authority, and provide a wealth of information on how we should understand economic, social, and cultural rights.”170 They are “based on the examination of State reports and are meant to assist States parties in the implementation of the Covenant at the domestic level.”171 Among others, the general comments of the Committee have identified since 1989 the minimum core content of the right to adequate food, the right of access to employment, the right to health, the right to education and the right to adequate housing. For example, in general comment no.13, the Committee sets the core content of the right to education to be: availability, accessibility (non-discriminative, physical accessibility, and economic accessibility), acceptability, and adaptability.172

Generally speaking, State Parties are under the minimum obligation of insuring the satisfaction of the core minimum requirements of ICESCR rights. In view of general comment no. 3, if those minimum core contents of each right are not realized, the Covenant would be “deprived of its raison d'être” and “a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic form of education, is prima facie, failing to discharge its obligations under the Covenant.”173 At the same time, the duties of State Parties with regards to this Covenant “must take into account the scarcity of resources, which any human community has to reckon with,” and the wording of the ICESCR itself is a reflection of the realities concerning “the availability of sufficient resources.”174 This has also been taken into account in general comment no.3 of the Committee, in which it is acknowledged that a State Party’s realization of Covenant rights needs to be carried out “to the maximum of its available resources,” and that “progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time.”175

However, Article 2 of the Covenant still emphasizes that obligations under the Covenant were still carrying an immediate effect, which is an obligation “to move as expeditiously and effectively as possible” towards the goal of “the full realization of the rights in question.”176 Therefore, “while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force...”177 With regards to the issue of available resources, general comment no. 3 highlights that a State party is under the obligation “to demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, the...minimum obligations.”178 Additionally, general comment 3 emphasizes that “even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstance.”179 And “even in times of severe resources constraints whether caused by a process of adjustment of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.” This also does not preclude resources available “from the international community through international cooperation and assistance,” which is particularly underlined by the provisions of Articles 11, 15, 22, 23, 55 and 56.180

 

In effect, the above arguments have “dismissed any assumptions that the ICESCR offers states discretion in fulfilling their obligations under the covenant.”181 Further, as Lawrence highlights “while states have many obligations under ICESCR, the government is not required to provide free health care, education, water, food, and other goods and services.”182 The obligation placed on the government “generally progressively, but in some cases immediately, [is] to ensure that the facilities, goods, and services that are required for the enjoyment of economic, social, and cultural rights are available and accessible at affordable prices.”183 The only few areas where the government is obliged to provide free services, according to ICESCR, include that of the provision of primary education, but the government may also be required to “provide subsidized or free services,” in cases of severe poverty, conflict, or natural disaster in order to ensure availability and access.184 Additionally, the provision of those services is by no means restricted to governments, since “the facilities, goods, and services necessary for the enjoyment of economic, social, and cultural rights may be dispensed by either public or private service providers, or any combination thereof, so long as they remain available and accessible at an affordable price.”185

The 1986 Limburg Principles, which were formulated at an expert meeting in Maastricht, the Netherlands on the Implementation of the International Covenant on Economic, Social, and Cultural rights, have “echoed the opinion of the committee that States parties to the ICESCR have an obligation to begin immediately to take steps to fulfill their obligations. Moreover, the Principles held States parties accountable for ensuring protection of minimum subsistence rights, regardless of the level of the state’s economic development.”186 In other words, “the phrase ‘progressive realization’ imposes an obligation ‘to move as expeditiously and effectively as possible’ towards full realization. Deliberately retrogressive measures which imply a step backwards in the level of enjoyment of rights, would require careful consideration and full justification in light of object and purpose of the Covenant.”187

Generally speaking, there are five areas “in which states must...take immediate action” in juxtaposition to the “progressive realization” of the majority of the rights in ICESCR. Those five areas are identified by Lawrence to be: 1) eliminating discrimination; 2) “ensuring the protection of economic, social, and cultural rights that maybe immediately implemented,” which include, according to the Committee: equal pay for equal work, the right to form and join trade unions and to strike, the obligation to protect children from economic and social exploitation, the provision of free and compulsory primary education, the obligation to respect the liberty of parents to choose schools other than those established by public authorities so long as they conform to minimum educational standards, the obligation to protect the liberty of individuals and bodies to establish and direct educational institutions so long as they confirm to minimum standards, and the obligation to respect the freedom indispensable for scientific research and creative activity; 3) “‘taking steps’ to begin the progressive realization of rights,” which must be “‘deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant;’” 4) “ensuring that no retrogressive measures are taken;” and 5) “meeting minimum core obligations.”188

Violations, Justiciability, Limitations and Derogations

With regards to what constitutes a violation of ICESCR, the Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, which were formulated by international legal experts ten years after the Limburg Principles, indicate that “states parties have an obligation to respect, protect, and fulfill each of the rights entrenched in the ICESCR. Failure to perform any of these obligations violates the covenant.”189 In fact, the majority of the general comments of the Committee uses the language of respect, protect, and fulfill, “to define negative and positive state obligations” with regards to the provision of economic, social, and cultural rights.190 For instance, with regards to the right to health, a state is obliged to respect that right, by not preventing individuals from “accessing health services, or discriminat[ing] against certain groups in terms of access or distribution of services;” it is obliged to protect that right, by regulating and controlling “the quality of pharmaceutical drugs manufactured and sold in its territory;” and it is obliged to fulfill this right, by helping “facilitate individuals’ access to the right to health.”191 While removing the dichotomy between positive/negative rights, the Maastricht Guidelines have also “gone some way in dispelling the myth that social and economic rights are different in kind, and more difficult to protect, than ‘negative’ civil and political rights.”192

Building on the Limburg Principles, Audrey Chapman has devised a framework for distinguishing between three types of violations when it comes to economic, social, and cultural rights: “violations resulting from actions and policies on the part of governments; violations related to patterns of discrimination; and violations related to a State’s failure to fulfill minimum core obligations emanating from rights.”193 Additionally, the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights “distinguish between violations as a consequence of active interference (acts of commission) by the state” such as forcefully evicting people from their homes, “and a failure to act (acts of omission by the State),” such as a state’s failure to adopt laws on non-discrimination.194 In fact, “violations related to discrimination” are also included in the Maastricht Guidelines, in addition to the violations related to the satisfaction of the minimum core of ICESCR rights.195 Further, the Maastricht Guidelines highlight that violations are usually related to “the unwillingness to comply with treaty obligations,” due to, among others, “a lack of political will, wrong policy choices made deliberately, retrogressive measures and corruption.”196 On the other hand, “the inability of a State to comply” with the provisions of the Covenant, due to i.e. “an objective lack of resources as a result of natural disasters” does not constitute a violation; it rather calls “for international assistance and cooperation.”197

Meanwhile, the issue of the justiciability of economic, social, and cultural rights remains present as “[i]t is one thing to have a treaty and an authoritative interpretation of its provisions by a treaty body. However, it is quite another thing to be able to invoke those provisions before a domestic court.”198 This is explained by Coomans as “the ability to claim a remedy before an independent and impartial body when a violation of a right has occurred,” since it is usually argued that those rights are non-justiciable.199 At the same time, as Coomans asserts, juticiability should be interpreted as “a fluid concept” rather than as a “static concept” attached to that of the separation of powers between the different branches of government, since the implementation of policies related to those rights is generally left to “governmental action that cannot be defined in terms of law.”200 Coomans highlights that to the contrary of the classical view that holds a right to be justiciable only if it is enforceable before a judicial organ, the justiciabilty of a right depends on many factors, including: “the characteristics and context of a particular case..., the attitude/approach of the judge dealing with the case..., the role of the judiciary in the domestic system..., the wording of the provision invoked..., [and] the relationship between national and international law...”201

As highlighted in the Committee’s general comment no.3, many of the provisions of ICESCR “would seem to be capable of immediate application by judicial and other organs in many legal systems,” i.e. the right to equal pay for work of equal value.202 Additionally, in general comment no.9, the Committee emboldened the fact that “while the general approach of each legal system needs to be taken into account, there is no Covenant right which could not, in the general majority of systems, be considered to possess at least some significant justiciable dimensions.”203 General comment 9 adds that “the adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent.”204

Finally, as with the rights that are enumerated in the ICCPR, State Parties to the ICESCR may also limit and restrict Covenant rights for the purpose of promoting the general welfare of society. However, “this can be done only in very narrow circumstance, and only to the extent necessary.”205 In accordance with Article 4, such limitation have to be lawful, “compatible with the nature of the right,” and they have to be “enacted for the purpose of ensuring the general welfare.”206 However, in contrast to ICCPR, there are no general derogation clauses in ICESCR. “This means the rights contained in the ICESCR continue to apply even in times of public emergency, and states are never allowed to suspend them altogether.”207 At the same time, since the majority of ICESCR provisions follow the rule of progressive realization “to the maximum extent permitted by available resources, a state may argue that in times of conflict it simply has fewer resources to devote to the fulfillment of these rights.”208

Notes

1 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” Ch. 1 in Human Rights (Peace Operations Training Institute: Virginia), p. 11
2 Ibid. See also “The Proclamation of Teheran, Final Act of the International Conference on Human Rights” (1968). A/CONF.32/41; and the “Vienna Declaration and Programme of Action,” (1993). A/CONF.157/23
3 See in Particular: Rhona Smith and Christien van den Anker’s The Essentials of Human Rights (Essential Reference), Hodder Arnold Publications, 2005; Shestack, J.J. (1998), “The Philosophic Foundations of Human Rights,” Human Rights Quarterly, 20.2, pp 201-234; and Micheline R. Ishay, “Early Ethical Contributions to Human Rights,” Ch. 1 in The History of Human Rights: From Ancient Times to the Globalization Era University of California Press (2008), pp.15-61
4 James Nickel (2007), “Human Rights as Rights” Ch.2 in Making Sense of Human Rights 2nd ed. (Wiley- Blackwell: USA, UK, and Australia). p 25
5 Ibid. p.25
6 Ibid. p.29; See also Amartya Sen, “Elements of a Theory of Human Rights,” Philosophy and Public Affairs, vol.32, no.4 (Autumn, 2004), pp.315-356
7 Karl E. Klare (1991), “Legal Theory and Democratic Reconstruction: Reflections on 1989,” University of British Colombia Law Review, vol.25, No.97
8 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” p. 15
9 Ibid.
10 Tom J. Farer and Felice Gaer (1993), “The UN and Human Rights: At the End of the Beginning,” in United Nations, Divided World (Second Edition), Adam Roberts and Benedict Kingsbury, eds. (Oxford: Oxford University Press), p.240
11 Paul Gordon Lauren (1998) “To Protect Humanity and Defend Justice” Ch. 2 in The Evolution of International Human Rights: Visions Seen (University of Pennsylvania Press: Philadelphia), p. 37
12 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” p. 16
13 Paul Gordon Lauren (1998) “To Protect Humanity and Defend Justice,” p.37
14 Ibid.
15 Ibid, p.38.
16 Ibid
17 Jessica C. Lawrence, (2012) “History and Philosophical Foundations of Human Rights,” p. 16
18 Ibid.
19 Ibid. Such treaties include the Treaty of Paris (March, 30 1856) and the Treaty of Berlin (July 13, 1878)
20 Jessica C. Lawrence, (2012) “History and Philosophical Foundations of Human Rights,” p. 16
21 Ibid, p.17
22 Henry J. Steiner, Philip Alston, and Ryan Goodman (2007), International Human Rights in Context: Law, Politics, Morals (Third Edition) (Oxford: Oxford University Press), p.98
23 See the Covenant of the League of Nations: http://www.refworld.org/docid/3dd8b9854.html
24 Ibid.
25 Treaty of Versailles, June 28, 1919, Jessica C. Lawrence, (2012) “History and Philosophical Foundations of Human Rights,” p.17
26 Jessica C. Lawrence, (2012) “History and Philosophical Foundations of Human Rights,” p.17
27 Ibid. p.17-18
28 See Paul Gordon Lauren (1998) “To Protect Humanity and Defend Justice.”
29 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” p.18
30 See also Paul Gordon Lauren (1998) “To Protect Humanity and Defend Justice.”
31 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” p.18
32 Ibid., p.19
33 Ashild Samnoy (1999) “The Origins of the Universal Declaration of Human Rights: How the Process Started,” Part 2 in Alfredsson, Gudmundur and Eide, Asbjorn (eds.) The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Hijhoff Publications: The Hague, Boston, London), p.3
34 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” p. 19
35 Ibid.
36 Ibid.

146

37 Ashild Samnoy (1999) “The Origins of the Universal Declaration of Human Rights: How the Process Started,” p.4 38 Ibid.
39 UN Charter – Preamble
40 Ashild Samnoy (1999) “The Origins of the Universal Declaration of Human Rights: How the Process Started,” p. 5

41 Ibid., p. 5-6
42 Jakob Th. Moller (1999) “The Universal Declaration of Human Rights: How the Process Started,” Part 3 in Gudmundur Alfredsson and Asbjorn Eide (eds.) The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Hijhoff Publications: The Hague, Boston, London), p.24
43 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” p.20
44 Ibid. p.23
45 Ibid. p.24
46 Ibid. p.22
47 Asbjorn Eide and Gudmundur Alfredsson (1999), “Introduction” in The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Hijhoff Publications: The Hague, Boston, London), p.xxx ; Jaime Oraa (2009), “The Universal Declaration of Human Rights,” in Isa, Felipe Gomez and Feyter, Koen de (eds) International Human Rights Law in a Global Context (University of Deusto: Bilbao), p.217
48 Asbjorn Eide and Gudmundur Alfredsson, “Introduction,” p.xxx
49 Jaime Oraa, “The Universal Declaration of Human Rights,” p.217
50 Memorandum of the United Nations Office of Legal Affairs, United Nations Secretariat, Doc. E/CN.4/L.610
51 Jaime Oraa, “The Universal Declaration of Human Rights,” p.220
52 Ibid.
53 Ibid., p.223
54 Ibid.
55 Ibid.
56 Ibid.
57 Ibid., p.229
58 Ibdi., p.225. For a list of UDHR provisions that have become part of customary international law, the incorporation of the UDHR into national laws and constitutions, as well as jurisprudence reference to it, see in particular: International Law Association, “Final Report on the Status of the Universal Declaration of Human Rights in National and International Law,” ILA Report of the Sixty-Sixth Conference, Buenos Aires (Argentina), London 1994
59 Jaime Oraa, “The Universal Declaration of Human Rights,” p.225; See also Jimenez de Arechaga, El Derecho internacional Contemoraneo, Madrid, 1980, pp.19-42
60 Jaime Oraa, “The Universal Declaration of Human Rights,” p.225 & 226
61 Ibid. p.227.
62 Ibid. p.228
63 Ibid.
64 Ibid.
65 Jessica C. Lawrence (2012) “History and Philosophical Foundations of Human Rights,” p.22
66 Ibid.
67 Ashild Samnoy (1999) “The Origins of the Universal Declaration of Human Rights: How the Process Started,” p. 8
68 Ibid., p.9
69 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” in Isfahan Merali and Valerie Oosterveld (eds) Giving Meaning to Economic, Social and Cultural Rights. (Philadelphia: University of Pennsylvania Press), p.41
70 Ibid.
71 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.41
72 Ibid.
73 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.39 [emphasis added]
74 Ibid. p.40-41; Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” in Human Rights: between Idealism and Realism (New York: Oxford University Press), p.33.

147

75 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.33
76 Ibid. p.25
77 Ibid. p.24

78 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” Ch. 2 in Human Rights (Peace Operations Training Institute: Virginia), p. 37
79 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.26

80 Ibid.
81 Ibid. p.27
82 See Annex B for the full text of ICCPR and its Optional Protocols I and II
83 See for instance, John C. Mubangizi, “Towards a new approach to the classification of human rights with specific reference to the African context.” African Human Rights Law Journal (2004), Vol.93 No.4, pp.93-107
84 An updated number of state parties to ICCCPR, as well as a list of them is available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en
85 Manfred Nowak, “The International Covenant on Civil and Political Rights,” in Isa, Felipe Gomez and Feyter, Koen de (eds) International Human Rights Law in a Global Context (University of Deusto: Bilbao), 2009, p. 278
86 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 38
87 Ibid.; Manfred Nowak, “The International Covenant on Civil and Political Rights,” p.278
88 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 38
89 Ibid.
90 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p.277
91 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p.39
92 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p. 277
93 For an updated list of State Parties to Optional Protocol (1966), follow this link: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en; For an updated list of State Parties to Optional Protocol (1989), follow this link: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en
94 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p. 282
95 Ibid. p.283
96 Ibid., p.278
97 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 40
98 General Comment 24, November 2, 1994, UN Doc. CCPR/C/21/Rev.1/Add.6
99 Ibid.
100 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 40
101 Ibid.
102 General Comment 24, November 2, 1994, UN Doc. CCPR/C/21/Rev.1/Add.6
103 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p.283
104 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p.40
105 Ibid.
106 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p. 278
107 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p.40
108 Article 2. ICCPR.
109 General Comment No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004)
110 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p.42; Manfred Nowak, “The International Covenant on Civil and Political Rights,” p. 280
111 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p. 38
112 See UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4
113 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p. 280
114 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p. 38; Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p.43

148

115 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p. 38
116 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 37 117 Ibid. p. 43

118 Ibid.
119 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4
120 General Comment 29, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001).
121 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p. 2284
122 Ibid.
123 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4
124 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 43
125 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4
126 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 43
127 Ibid. p.42; See the illustrative diagram of the different state obligations in Office of the United Nations High Commissioner for Human Rights, Fact Sheet No.33, “Frequently Asked Questions on Economic, Social and Cultural Right,” (2008), p.16
128 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p. 280-181; for additional information about those positive obligations of state parties under Article 2(3), see General Comment No.31 (U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004)).
129 Manfred Nowak, “The International Covenant on Civil and Political Rights,” p.181
130 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties I: The ICCPR,” p. 42
131 Ibid.
132 Ibid.
133 See Annex C for the full text of ICESCR
134 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,” Ch.3 in Human Rights (Peace Operations Training Institute: Virginia), p.61; Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.37
135 For an updated list of state parties, follow this link: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en
136 See Annex C for the full text of the Optional Protocol. An updated list of State Parties can be found on: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en
137 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,” Ch.3 in Human Rights (Peace Operations Training Institute: Virginia), p.61
138 Ibid., p.62
139 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” in Isa, Felipe Gomez and Feyter, Koen de (eds) International Human Rights Law in a Global Context (University of Deusto: Bilbao), 2009, p. 298
140Lawrence, Jessica C. (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,” p.62
141 Ibid.
142 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.27
143 Ibid. p.27-28
144 Ibid. p. 28
145 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.41
146 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p.297
147 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p. 42
148 Committee on Economic, Social and Cultural Rights, “Statement to the World Conference on Human Rights.” Vienna (1993), U.N. Doc. (A/CONF.157/PC/62/Add.5, annex I, paras. 6-7)
149 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p.296

149

150 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.41
151 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.46

152 Beth Lyon, “Discourse in Development: A Post-Colonial Theory ‘Agenda’ for the UN Committee on Economic, Social and Cultural Rights,” Journal of Gender, Social Policy & the Law, vol. 10 No.3 (September 2002), p.536
153 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p. 293-294
154 Ibid. 293-294

155 Ibid. p.294
156 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.38
157 Ibid. p.39; Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.42
158 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p. 296
159 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.43
160 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.39
161 Ibid.
162 Ibid.
163 Ibid. p.40
164 Ibid. p.39
165 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p. 296
166 Ibid.
167 Ibid.
168 Ibid. p.304
169 Christian Tomuschat, (2003), “The Different Generations of Human Rights: from Human Rights to Good Governance,” p.47
170 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,”p.63
171 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p. 302
172 Committee on Economic, Social and Cultural Rights, “General Comment No. 13 (1999). UN Doc. E/C.12/1999/10
173 Committee on Economic, Social, and Cultural Rights, General Comment 3 (1990).
174 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.42 & 47
175 Committee on Economic, Social, and Cultural Rights, General Comment 3 (1990).
176 Ibid.
177 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.47
178 Committee on Economic, Social, and Cultural Rights, General Comment 3 (1990).
179 Ibid.
180 Ibid.
181 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.48
182 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,” p.66
183 Ibid.
184 Ibid.
185 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,” p.66
186 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.48
187 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p. 305
188 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,” p.65-66
189 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.48
190 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p. 307

150

191 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,”p.66
192 Chisanga Puta-Chekwe and Nora Flood (2007), “From Division to Integration: Economic, Social and Cultural Rights as Basic Human Rights,” p.48-49
193 Fons Coomans, “The International Covenant on Economic, Social and Cultural Rights,” p. 308
194 Ibid.
195 Ibid. p.308-309
196 Ibid. p.309
197 Ibid.
198 Ibid. p.310
199 Ibid.
200 Ibid.
201 Ibid.
202 Committee on Economic, Social, and Cultural Rights, General Comment 3 (1990).
203 Committee on Economic, Social, and Cultural Rights, General Comment 9 (1998).
204 Ibid.
205 Jessica C. Lawrence (2012) “Developing Legally Binding Human Rights Treaties II: The ICESCR,”p.67
206 Ibid.
207 Ibid.
208 Ibid.
209 Michael O’Flaherty (2002), “The Human Rights Committee,” Ch. 2 in Human Rights and the UN: Practice Before the Treaty Bodies. (Martinus Nijhoff Publications: The Hague/London/New York), p.28
210 Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” Ch.9 in International Human Rights in Context Vol.II (Clarendon Press: Oxford) p.501
211 Theo Van Banning et al, (2004) “Important Features of the International Supervisory Mechanisms to be Taken into Account when Submitting a Complaint.” Ch.2 in Universal and Regional Human Rights Protection: Cases and Commentaries (University for Peace: Costa Rica). p.7
212 Ibid. p.502
213 Michael O’Flaherty (2002), “The Human Rights Committee,” p.29
214 Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” p.502
215 Ibid., p.502
216 Michael O’Flaherty (2002), “The Human Rights Committee,” p.29; Henry J. Steiner and Philip Alston (1996), “Treaty Organs: The ICCPR Human Rights Committee,” p.501
217 Michael O’Flaherty (2002), “The Human Rights Committee,” p.29
218 Ibid., p.30
219 Ibid.
220 Ibid.
221 Ibid.
222 Ibid. p.31
223 Ibid.
224 Ibid. p.31
225 Ibid.

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