A Hierarchy of Rights Protection

Human rights are all rights enshrine in the Universal Declaration of Human Rights (UDHR) – classified into two grand categories of civil-political [1] and socio-economic rights. [2] The Vienna World Conference in 1993 recognized that ‘all human rights are universal, indivisible, interdependent and interrelated.’ [3] This is further acknowledged by ‘the most commendable’ [4] South African Constitution which include a range of socio-economic and civil-political rights. [5] Besides, Justice Albie Sachs states, ‘we do not want bread without freedom, nor do we do not want freedom bread; we want both.’ [6]

The principle of universality and indivisibility however is not fully embraced in international law, particularly in developed countries. [7] Furthermore, the relationship between civil-political and socio-economic rights has raised claims of hierarchical status. [8] This essay will explain the generations of human rights, then consider the desirability of a hierarchy of rights protection.

The ‘Generations’ of Human Rights

Human rights have been historically divided between ‘generations’. The first generation rights are fundamental freedom rights [9] that serve to protect citizens from excesses of the State. [10] These are negative rights that encompassed the classic civil-political rights. [11] They emerged from American and the French Revolutions. [12]

Since the eighteenth and nineteenth century, living instruments of positive law and not only utopian concepts are concerned, recognized only first generation rights. [13] The 1776 Virginia Declaration of Rights contained rights to free elections, trial by jury, respect for property, and freedom of press, but omitted social rights related to welfare function of the state. [14] Similarly, the first twelve amendments of the US Constitution guarantees only physical security and a functioning judicial system. [15] The same ideas prevailed in France where the 1789 Declaration des Droits de l’ Homme eet du Citoyen only create a functioning system of governance that does not burden the state with influential demands. [16]

The civil liberties have also monopolized the whole nineteenth century; the classic rights which became a necessary element of modern constitution were purely confined to classical freedoms. [17] Until the early twentieth century, a number of social and economic rights have been acknowledged at a constitutional level, particularly the 1917 Soviet Constitution and the German Weimar Constitution. [18] Likewise, the 1937 Irish Constitution interestingly included a provision on ‘Directive principles of social policy’. [19]

Despite these variations, first generation rights are fundamental to the constitution and have never been omitted. It provides a conceptual platform to identify other rights and distinguish two distinct thematic categories. [20] Socio-economic rights are not included but classified as second generation rights.

The second generation rights emerged under Bismarck, a German authoritarian leader who fought for welfare rights of German workers in the late nineteenth century. [21] They are a child of twentieth century and concern social welfare of persons. [22] These rights appeared quite late on the stage of constitutional developments and have frightened and fascinated constitution making bodies. [23]

Ireland was reluctant to commit itself to social welfare benefits at constitutional level after the end of World War II as the caution in handling human rights matter in general by France. [24] In France, these rights were introduced by a clause which characterized them as political, economic and social principles. [25] While Germany had restrict its post-war constitution to a general clause declaring itself as a ‘social state’ after a difficult experience under the Weimar Constitution to effectively handle social and economic rights. [26] Portugal and Spain have included second generations in their declaration an extensive lists of human rights; they were able to shift from dictatorships to democratic regimes. [27] Such recognitions and growing awareness have drew strong support from the UDHR after the World War II and are indeed part of the language of international human rights since then. [28]

The historical development of the both rights into generations caused rights to be treated differently. As Justice Albie contends, this structure will imply that second generation is less important than first. [29] It tends to illustrate a priority of rights thus establishing a hierarchy of rights protection. In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted simultaneously. Commentators in distinguishing these two have often put the legal enforceability of the socio-economic rights in doubt. [30]

There is no consensus as to the appropriate means to ensure socio-economic rights. Indeed, there has been significantly less attention to develop the content and enforcement mechanisms of socio-economic rights compared to civil-political rights. Professor Paul Hunt [31] contends while civil-political rights were privileged; socio-economic rights were the poor relations in the international human rights family for many years and were neglected and marginalized. [32] The 1993 Vienna Conference apparently was aware of this unequal treatment, thus acknowledged that both rights were legally reflected in the principle of indivisibility. [33] They are of equal importance.

Besides the generations’ classifications, these gaps are one of the reasons to different treatment of rights. They came about by the prominence of western countries to civil-political rights in the cold war divide. [34] The justiciability of socio-economic rights have subsequently been extensively ignored and neglected. [35] Despite the principle of indivisibility declared by the Vienna Conference, bridging the gaps between civil-political and socio-economic rights is perhaps the best proof to their equal importance and symbiotic relationship. [36]

The Indivisibility of Human Rights

The generations’ classifications are now seen as inaccurate. The principle of indivisibility is an important aspect of human rights that many international instruments have specifically refers to. [37] Similarly, it is embraced by numerous scholars and advocates. [38] However, many have ascribed it in an entirely self-evident manner. It is questionable for the UN and others that have declared the matter settled. Civil-political rights are often seen as higher in the hierarchy of protection than socio-economic rights.

Macklem observes that ‘social rights often suffer from a painful lack of precision with respect to the nature and extent of obligations that attach to the state party.’ [39] This indicates that socio-economic rights are imprecise hence doubting the legal enforceability. [40] This argument is however, inconsistent with Pieterse; he remarks that courts are good at statutory interpretation and they should do the same in construing how the branches of state can cooperate to enforce socio-economic rights. [41] Likewise, Blichitz assumes judicial responsibility to define and clarify the extent of obligations imposed upon the government. [42] It is however argued such judicial enforcement of socio-economic rights will threaten the legislative powers to make law in the public interest. [43] It is in fact difficult to maintain an inflexible distinction between socio-economic and civil-political rights which have little controversy over judicial enforcement. [44]

South Africa is perhaps the ‘centre of legal developments of this area.’ [45] Its Constitution embraces greater transparency, participatory democracy, protection of cultural values and socio-economic equality. [46] It protects some socio-economic rights and the courts have the powers to scrutinise state compliance to the obligations to such rights. Furthermore, the preamble of the African Charter on Human and Peoples’ Rights strikes unequivocally stating ‘that the satisfaction of socio-economic rights is a guarantee for the enjoyment of civil-political rights.’ [47] The implementation obligation of states under the Charter arises immediately, not qualified by considerations of ‘available resources.’ [48]

Besides, the South African Constitution Court has taken a standard of reasonableness to measure government policy and legislation. Cass Sustein observes this approach as an administrative law model and praises its effectiveness in making appropriate demands on government, ‘without displacing democratic judgments about how to set priorities’. [49] It is also held in Grootboom [50] that

‘…our constitution entrenches both civil and social rights that in our bill of rights are interrelated and mutually supporting. There cannot be doubt that human dignity, freedom and equality, the foundational values of our society are denied those who have no food, clothing or shelter.’ [51]

These are recognised to be a notable achievement of South Africa Constitution, a hierarchy of rights protection can hardly be seen.

It is nonetheless debatable that socio-economic rights should have been given constitutional status, hence the controversies continue. Following the development of South African jurisprudence and the recognition of such rights in other jurisdiction, legal practitioners have always strive to achieve a effective legal means of protecting and enforcing these rights. [52] The South African model has the potential if developed more effectively to offer greater protection to socio-economic rights. [53] The approach might be a valuable guidance for jurisdictions like the UK with no constitutional socio-economic rights.

Mary Robinson is however puzzled, ‘If the principle of indivisibility of human rights is not fully embraced in developed countries, how effective can efforts be to insist that economic globalisation should be shaped by the international human rights law.’ [54] In considering a periodic report from the UK, the UN Committee on Economic, Social and Cultural Rights asserts that the government representatives gave the impression that socio-rights were not of the same nature or priority as civil-political rights incorporated under the Human Rights Act 1998. [55] Moreover, the UK considers the ICESCR subservient to the UN Charter. [56] Even so, UK courts are engaging in the protection of socio-economic legislative rights and interests under judicial review decisions by the Human Rights Act 1998. [57] .

The indivisibility of human rights is indeed clear in the UK even though there is no explicit recognition of socio-economic rights. In Ex parte Joint Council for the Welfare of Immigration [58] , Simon Brown LJ held that to deny the asylum seekers benefits that they could not work, would create ‘… a life so destitute that… no civilized nation could tolerate.’ [59] Thus, it is largely agreed that socio-economic rights is one of the essential element to ‘right to life’. [60] Ewing further confirms that social rights are ‘logically prior’ to exercising civil-political rights [61] and thus they are not a distinct categories of rights.

UK human rights awareness develops after the incorporation of European Convention of Human Rights. Francesca Klug however contended that ‘the incorporation has not proved as dramatic or unsettling for the British way of life as some predicted’. [62] Furthermore, Lord Hoffman in Mathews v Ministry of Defence [63] submits that ‘…there is no trace of economic rights in the Convention…without which many of the other rights would be a mockery.’ [64] Mary Robinson might be correct when he highlights the possible problem that ‘emphasis on the European Convention and its jurisprudence has prevented the other commitments of the government on the parallel ICESCR.’ [65] Likewise, socio-economic rights are non-justiciable principle based on Ireland’s constitutional language. [66]

ICESCR has not been ratified in the US. The US administrations have consistently rejected the socio-economic rights notwithstanding they were drafted into the UDHR from their proposals and Eleanor Roosevelt played a notable role in the process. [67] Although US have completely rejected social and economic benefits as constitutional entitlements; such benefits are nevertheless provided without hesitations at the level of ordinary legislation. [68]

The issues usually arise with the enforceability methods. With the increasing numbers of jurisprudence that consider socio-economic rights, they are no longer obscure than civil political rights. [69] Sandra Liebenberg concludes it well,

‘it is through recourse to the conventions of constitutional interpretation and their application to the facts of different cases that the specific content and scope of a right emerges with greater clarity… the content of many socio-economic rights is less well-defined… is more a reflection of their exclusion from processes of adjudication than of their inherent nature.’ [70]

Every human right imposes positive and negative obligations. Although it is generally argued that civil-political rights are negative and socio-economic rights are positive, the nature of rights is flexible, as Toebes puts it ‘the former requires state to act… the latter may also require states to refrain from activity.’ [71] In fact, it is incorrect to classify rights to types of duty. The challenge to its justiciability appears to be based on the false distinction that overestimates the difference between the two rights. [72]

Some might also argued that enforcement of socio-economic rights may have budgetary constraints, thus civil-political should be prioritised. However, McCann v UK [73] recognised state obligation to investigate suspicious deaths of individuals under state custody that require government expenditure. Likewise, Scialacqua v Italy [74] accepted that right to life requires state to provide vital medical treatment in saving life. Van Bueren is therefore correct in quoting Schachter v Canada [75] that ‘any remedy granted by a court will have budgetary repercussions, be it a money saving or expenditure.’ [76]

Human rights might be framed in an open texture, so that their meaning is concretised by the courts through responding to individual circumstances and historical developments appropriately. Therewith, in securing the fullest protection of individual rights, the symbiotic relationship of both rights in advancing constitutional ideas of dignity, equality and freedoms should be emphasised. States are not in position to limit either rights, they have duties to promote ‘human’ rights according to the principle of indivisibility.

Both rights are equal. The ‘generations of rights’ era is over, it is thus important to reiterate that it is undesirable to establish a ‘hierarchy of rights’ that lead to a prioritise protections.

Conclusion

The historical evolution of international human rights law saw the artificial and misleading separation of both rights into different covenants with separate characters. [77] Besides, majority of the states purely recognised civil-political rights in their constitution. The US experience nonetheless illustrates that both rights are importantly secured. These have created an illusionary hierarchy of rights protection.

Both rights are human right. The principal of indivisibility is confirmed by Senator Jose Diokono’s experience in developing legal aid in Asia. He observes that

‘…many legal aid lawyers for the poorer people have been detained; a few have been shot and wounded during peaceful assembly… [it is] a painful lesson to learn that we cannot enjoy civil-political rights unless we enjoy socio-economic rights, any more than we can insure the latter, unless we can exercise the former… [it is] true that a hungry man does not have much freedom of choice but when a well fed man does not have freedom of choice, he cannot protect himself against hunger.’ [78]

Furthermore, ‘…fear tends to be the order of the day within a system that denies the existence of basic human rights,’ [79] and that ‘freedom from fear can only be relieved if everyone enjoys socio-economic and civil-political rights.’ [80] These have formed a solid support for the interrelatedness of human rights.

Kofi Annan then stressed that ‘…in time of global tensions and division, some wish to focus on civil-political rights, others would like to see equal attention on socio-economic rights, complaining bitterly that the if you are struggling to live, voting is no longer important…’ [81] He believes ‘the cause of human rights has the potential to bridge those division and restore a sense of common purpose among States and nations.’ [82]

In conclusion, human rights are our rights and do not deserve to be hierarchically protected, every human are entitled to their ‘own’ rights. Socio-economic rights should be entrenched as fundamental, perhaps a call for an International Covenant of ‘Human Rights’ would tighten the gaps between both rights. Today, ICCPR have 72 signatories, 43.64% of the 165 parties; ICESCR have 69 signatories, 43.13% of the 160 parties. [83] Considering that ICCPR have additional five parties, a mere difference of 0.51% simply concludes that both rights are empirically treated equally.