Human Rights Have To Be Seen As Composed Of Both Civil And Social Rights
Human beings are born equal in virtue, dignity, status, rights and honor. These are moral claims that are inviolable, inalienable, inherent and absolute in all human individuals by virtue of their humanity alone. These claims are portrayed today as human rights and have legal power established according to the law-creating processes of societies, both on a national and international level. The basis of these legal rights is the consent of the governed i.e. the consent of the subjects of these rights.
Conventional thinking on social, economic and cultural rights stressed that they were separable from civil and political rights and that they imposed positive rather than negative obligations on the State and its agencies. Both arguments asserted a somewhat secondary nature of social, economic and cultural rights. They were seen as second-generation rights – something of a luxury – to be implemented once civil and political rights were already in place. This view is now unsustainable. The social, economic and cultural rights are now essential and inseparable from civil and political rights.
There are certain reasons for this new perspective. The understanding of the link between poverty and abuse of human rights provided by the United Nation Development Programme was an important factor. Human rights have been understood as a key factor in promoting accountability and social justice. This links social justice to international action at both political and economic level to offset the inequalities produced by globalization. Poverty being a human rights problem needed to be eradicated, which required political human rights aimed at inclusive democracy based not only on the accountability of government for its own acts, but also obligations of other state actors. This approach is based on the new position of no real distinction between social and economic, and civil and political rights. The UNDP ( Human Development) used the idea of ‘social justice’ to develop these arguments.
The conventional approach to rights stressed that universal rights were rights to liberty. Social and economic rights, by contrast, are positive rights. They require the institutions which they address, to do something. The conventional argument claimed social and economic rights could not be universal and were specific to certain obligations and therefore somehow considered secondary to civil and political rights. It thus seems that the absence of institutions was the fundamental problem. The work of Amartya Sen is perhaps the most useful in conceptualizing the link between rights and institutions. Sen provides a distinction between institutional rights and background rights. Background rights articulate profound abstract principles that the political community may hold to be overarching.
The sensible distinction then is not between social and economic rights and civil and political rights, rather it is about the way in which both sets of rights are articulated and given institutional form. In Sen’s analysis, this means that abstract rights or background rights must become concrete rights that make the means of their realization clear.
Alan Gewirth shares with Sen a sense of the importance of social and economic rights but goes much further in linking rights to a concept of community. The link is important because it goes a long way to rebutting a central criticism made of all forms of rights, that they are inherently individualistic. Gewirth argues that social and economic rights are central to rethinking how rights can be related to a notion of community characterized by mutual duties and obligations.
A community is not just constituted by rights and obligations. It involves some agreement over the terms by which both economy and welfare are organized. Gewirth uses the International Covenant on Economic, Social and Cultural Rights (ICESCR) to investigate this question of social organization.
Gewirth argues that the existence of poverty is a prima facie violation of human rights.
One of the key rights in the Covenant (ICESCR) is ‘the right to work’. This includes the right of everyone to the opportunity to gain a living by work which they freely choose or accept. It places certain duties on a State party to ensure ‘steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual’.
Article 7 recognizes ‘the right of everyone to the enjoyment of just and favorable conditions of work’. These conditions include a right to remuneration, safe and healthy working conditions, equal opportunities and ‘reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays’. In keeping with these rights, Article 8 ensures that state parties recognize the right to form and join trade unions, and for unions themselves to have rights, including the right to strike. Article 9 recognizes the right to social security.
Article 10 is similar to Article 23 of the International Covenant on Civil and Political Rights (ICCPR.) The description of the family as the natural and fundamental group unit of society is common to both Articles, as is the assertion that marriage should be entered into with the free consent of the intending parties. Article 10 goes further, though, in asserting that ‘special protection’ should be ‘accorded to mothers during a reasonable period before and after childbirth’ and this means that ‘working mothers should be accorded paid leave or leave with adequate social security benefits’. Paragraph 3 of Article 10 can also be read alongside Article 24 of the ICCPR. Article 10 elaborates children’s rights as a means of protecting them against ‘economic and social exploitation’. Article 24 is more concerned with guaranteeing the civic status of the child.
Article 11 covers the right of everyone to an adequate standard of living for themselves and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The second paragraph goes on to recognize ‘the fundamental right of everyone to be free from hunger’. Guaranteeing both rights means that States must co-operate to create measures that are needed to improve methods of production, conservation and distribution of food (home and abroad) to remedy the issues of equitable distribution of world food supplies in respect of need. Article 12 relates to ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. State parties must undertake certain obligations to meet this standard.
In Article 13, State parties undertake to ‘recognize the right of everyone to education’. Education is defined as ‘directed to the full development of the human personality and the sense of its dignity’; it is also rooted in a human rights context. Education strengthens the respect for human rights and fundamental freedoms. Education is, ultimately, about the creation of an articulate citizen. It should allow all persons to participate effectively in a free society, promote understanding, tolerance and friendship.
This new approach to social and economic rights stresses upon the centrality and meaningful general considerations of human rights. Social and economic rights have to be seen as fundamentally linked to civil and political rights in determining the basic obligations of governments. Social and economic rights can be seen as important tools in the struggle against poverty. They can also be seen as essential elements for thinking about a political community. From the social perspective, governments have certain obligations towards their citizens. If we bring together the work of Sen and Gewirth we can have a sophisticated approach to the central topic. To commit to human rights is to commit to civil and political as well as social and economic rights.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
