Title: Real Human Rights: the Fallacy of a Rights Hierarchy
Walter Sebastian Adler
Abstract:
The historic process of United Nations Human Rights treaty implementation has been from the beginning national interest-driven, highly politicized, and hegemon-directed. Since the founding conferences leading to the 1948 Universal Declaration of Human Rights (UDHR), there have been ceaselessly contentious debates on the subject of “real rights”, “progressive implementation” and the responsibility of nation-states to implement frameworks of national law and economic practice to ensure these rights for their respective citizens. It has long been understood that the ratification and practical implementation of this international legal framework if fully binding might hold hegemon powers accountable for their global economic manifestations and hold all 206 States accountable to those within their borders for civil, political, economic, social, and cultural rights.
After the 1966 division of rights along the ideological parameters of the Cold War into the International Covenant on Civil & Political (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR); there emerged an equally implementation useless debate until they were ratified in 1976. Throughout the codification of the nine subsequent Rights Instruments and their Optional Protocols; it has argued that there was a concept of “real rights”, a hierarchy of importance to attain them, and most importantly vast disagreement as to what degree were the state powers were accountable to uphold their treaty obligations.
With the 1989 fall of the Berlin Wall marking the end of the Cold War and the economic collapse of the Warsaw Pact’s command economies; Human Rights have been divested of this imposed ideological division. A new tide of international jurisprudence has begun to address the critical issues of implementation, accountability, and state responsibility. However, it is the victors of the Cold War conflict that championed the notion of Civil and Political rights to be established before and above Economic, Social, and Cultural obligations.
This essay will critically address the Western-Free Market claim that “only civil & political rights, but not economic and social rights”, are “real” human rights.
Real Human Rights: the Fallacy of a Rights Hierarchy
“A particularly eloquent affirmation of the positive value of human rights as normative grounding for social justice was provided by the closing speech of the World Social Forum in Porte Alegre, Brazil, in February 2002, delivered by the winner of the Nobel Prize for Literature, Jose Saramago. He spoke about “the multiple movements for resistance and social action that are fighting to establish a new, distributive and commutative justice that all people can come to recognize as intrinsically theirs, a justice that protects freedom and rights, and not any denial of them.” He added,
… [W]e already have a readily understandable code of practical application for this justice, a code embodied for the past fifty years in the Universal Declaration of Human Rights, those thirty essential, basic rights that these days are mentioned only vaguely, if not systematically disregarded. …. [I]n terms of the integrity of its principles and the clarity of its objectives, the Universal Declaration of Human Rights, just as it is now worded and without changing a single comma, could replace to advantage the platforms of every political party on Earth.” (Marks, S. p.7)
Introduction
The issue of “rights validity” is not an interesting point to those that have the fruits of neither covenant after all these years of high minded diplomacy. Most of the world population is still quite both economically impoverished and politically unfree. There is no real differentiation to be made in hierarchy or the realization of the CPR over the ESCR if one truly believes in the primacy of the UDHR distilled and expounded into the subsequent treaties. It is a provenly time-consuming and frustrating exercise to utilize Human Rights as theoretically binding toward anything beyond a populist mobilization maneuver. To that end, both lawyers and NGOs have used them admirably in recent years to internationalize struggles for social justice via a rhetoric divested of class warfare. Nation States; hegemons, developing, and development dependent alike have no national interest in this “human rights enterprise” succeeding, and they never have. A development-dependent nation, or a developing one may like the idea of hegemon powers bound by treaty to aid their “right to develop”. That does not mean they all wish to institute the civil and political duties and open up their societies to real democratization. The United Nations and the vast web of committee bureaucracies it has generated has been and shall remain a vast rhetorical platform for a diplomatic jet set and an international legal technocracy to haggle over documents as facts on the ground remain largely unchanged for the bottom billion, and surely with a “generous” $3.00 a day poverty line we might be so bold as to extend the number of those wretched teeming masses to around 3 billion impoverished souls.
It is not a question of whether CPR is more valid, or “real” than those identified in the ESCR; the issue is more as to who utilizes these rights and to what practical end. Since no international body can guarantee or enforce implementation of either the CPR or ESC rights; it is the strategic imperative of the people to select appropriate rights-based frameworks for their particular localized struggle. Born of that perspective, there are no “real rights” only appropriate vehicles to legitimize grassroots struggle under the legal architecture of these treaties.
Presentation of Positions
The basis of a “Real Right” would be founded in a given system’s ability to enforce it. Lacking such a system all rights are equally intangible yet simultaneously serving quite well as an international list of demands for the masses impoverished under the current state system. These rights real or imagined will not be granted in courtrooms. Their existence bears bright light on the hypocrisy of the international actors that have taken them on as a transparent charade for conducting a global poverty business.
There can be no “Real Rights” without real defense and enforcement.
It is a gross mockery of the UDHR’s thirty founding articles that a full sixty-six (66) years have passed since the signing of the original document and so few on this earth have much to show for this largely rhetorical enterprise. Since the time of Eleanor Roosevelt’s steering committee and the creation of the United Nations Charter; since the 1966 legal dualism of the ICCPR & the ICESCR; there are no less than nine separate rights instruments that have been brought into effect alongside the International Bill of Rights and the various Optional Protocols. There exists a full scaffold of non-binding legal apparatuses; a quickly emerging body of precedent for national utilization in national court systems and a wide range of UN-sponsored and NGO-oriented agencies directing campaigns. They are the basis of the new South African constitution. The issue of “Real Rights” is ridiculous at this stage while there are still no truly valid enforcement mechanisms. There are numerous grievance platforms, but no international legal mechanism to sanction rights violations except in the form of “gross violations” in the form of ICC war crimes. Hegemon powers are beyond the reach of any Human Rights tribunals. We should not expect that to change anytime soon. There must be a legitimate appreciation that most of the world’s working class and poor only have the vaguest idea of what these rights even contain. It is not about legally expanding definitions and generating new international frameworks. That has obviously failed. A better understanding of “real” v. “constitutional” v. “imagined” i.e. first generation civil political, as opposed to second and third-generation economic social, should be grounded in that common people know neither. If the rights cannot be defended and if no pressure can brought on governments to enforce them, they are worth only the idea their words embody and the paper upon which they are printed.
The Universal Declaration is the basis for all subsequent covenants and treaties and within it are the benchmarks for establishing “Real Rights”.
Contained within its thirty articles are the basis for both the negative (freedoms from) and positive rights (duties to) frameworks. As this essay rejects the utility of future jurisprudence or U.N. negotiation to meaningfully advance rights I present the argument that anything found in the UDHR is a “Real Right”; anything extrapolated into ICCPR or ICESCR is a “right’s duty” any signatory government can be held responsible to deliver, and anything signed off in other HR instruments is a “rights responsibility”. The second-generation rights are those found within the dual covenant documents of 1966. Everything else, i.e. the third generation is a specific supporting claim to what has been previously promised.
In the period between 1948 when the UDHR was proclaimed until the time that ICCPR/ICESCR into normative effect in 1976; the original UDHR was the “international standard of achievement” and the foundation of the divergent 1966 Covenants.
Thus, for more than 25 years, the Universal Declaration on Human Rights stood alone as an international” standard of achievement for all peoples and all nations”. It became known and was accepted as authoritative both in States that became parties to one or both of the Covenants and in those that did not ratify or accede to either. Its provisions were cited as the basis and justification for many important decisions taken by United Nations bodies; they inspired the preparation of a number of international human rights instruments, both within and outside the United Nations system; they exercised a significant influence on a number of multilateral and bilateral treaties; and they had a strong impact as the basis for the preparation of many new national constitutions and national laws. (UN Fact Sheet No.2 (Rev.1), p. 4)
Though many, including Ayer Neier, would argue that economic redistribution is a noble imperative; he believes that “no assertion of rights” will change the current economic calculus, and that civil political (negative rights) have to be objective and not up for any deliberation. Since capabilities obviously greatly vary, and governmental cost for negative rights is lower, he argues this a natural basis for first priority and elevated status as “real rights”. He also argues that keeping civil political rights as the primary standard takes a position that is legally defensible, while ESCR are much too subjective to win in a court of law.
For the most part, although there may be some small exceptions, it cannot take place through the assertion of rights. I do not think that rights are an abstract concept. I think they are a contract between a citizen and a state, or a citizen and her community, and that a citizen has to be able to enforce her side of that contract. Rights only have meaning if it is possible to enforce them. But there has to be some mechanism for that enforcement, and adjudication seems to be the mechanism that we have chosen. Therefore, from my standpoint, if one is to talk meaningfully of rights, one has to discuss what can be enforced through the judicial process ( Neier, p. 3).
My response to that specific argument is that the courtroom should not be viewed as the primary arena of Human Rights attainment.
No one can be politically free who is economically impoverished.
It’s not a question of negative/positive rights but instead duties, responsibilities, and accountabilities. Both sets are threatening to entrenched elites. The CPR because they are basis for protest, democratization, mobilization and the ESCR because they impose duties that are not normative payouts for the government.
The first issue in considering the holistic approach to human rights is the opposite trend of dividing human rights into categories deemed different by nature and specifically of distinguishing between civil and political rights, on the one hand, and economic, social, and cultural rights, on the other. It has been argued that the former are “freedoms from” or “droits- attribut,” whereas the latter are “rights to” or “droits-créance.” The former are said to be absolute or of immediate applicability, whereas the latter are relative or for progressive realization. The former are characterized by violations that must be redressed regardless of resources, while the latter are programmatic, calling for cooperation and utilization of resources. These neat distinctions, which developed throughout the Cold War, are disappearing in theory and practice. They represented divergent priorities of the competing ideological blocks. In the post–Cold War period there is no longer an ideological rationale for favoring one category” of rights over another. The holistic approach connects all human rights, dispensing with many of the traditional distinctions between categories of rights.” (Marks, p.2-3)
DM Davis summarizes three arguments in his brief to exclude the so-called second and third-generation rights from the South African constitution. First, is the difficulty of adjudication and enforcement of ESCR rights. Second, the conceptual difference of negative rights being “freedoms from” are far easier to enforce and grant than “economic entitlements to”. Thirdly, the impracticalities of a universal economic expectation being met.
I would wholeheartedly agree that if one was to accept the current limitations of courts and governments to implement the agreed-on rights as is, it would be easier and more practical to assure first-generation CPR to those of the ESCR which if in place would fundamentally alter class and political dynamic in most of the world’s countries. Davis makes a series of valid points that the South African constitution, as high-minded as it may be has not yielded socio-economic progress via adjudication around rights. I however refuse to accept again that we view rights attainment within the realm of the Machiavellian or the real-politic.
If Ayer Neier’s argumentation rests on prioritization based on raising an objective international civil political standard and DM David’s brief rests on applicability or rights jurisprudence to economic reality, then I argue a third way. It is not about accepting current frameworks as progress or rejecting the use of law. It is about fundamental understating of the minds of the poor. They do not differentiate between freedom and opportunity. They have neither.
All Real Rights are therefore dependent on both the CPR and ESCR, they reinforce each other. Instead of viewing them as legal tools to leverage inefficient states we must see them as a rallying point to remove existing governments, and replace them with those that can guarantee and protect all Human Rights without a hierarchy to them.
Conclusion
The only value Human Rights now have is to give us a common language in our respective liberation struggles.
Paul Farmer, coming from public health and social medicine, is another voice for social justice who uses human rights as a privileged normative instrument. Drawing on the insights of liberation theology, which “argues that genuine change will be most often rooted in small communities of poor people,” he uses the methodology “observe, judge, act” to challenge unjust structures and understand how a social justice approach can be used to address disease and suffering. He explains, “For me, applying an option for the poor has never implied advancing a particular strategy for a national economy. It does not imply preferring one form of development, or social system, over another…A truly committed quest for high-quality care for the destitute sick starts from the perspective that health is a fundamental human right.” (Paul Farmer, p. 140.)
With that that quote in mind I refer the question of “Real Rights” back to the question of do the poor care? I think they do not. They did not partake in the length deliberations or conferences to draft these rights nor were they asked to elect the political leaders who signed off on them. With over 1/3 of the Human race living in some degree of poverty, I think it useful to measure the social merit of an instrument in relation to its liberatory capacity for the most impoverished. In that regard, I conclude that real rights are based on three criteria. Their ability to be enforced and defended, their articulation in the UDHR and supporting instruments, and their merit in linking the civil political directly to the economic and social.
I like billions of other human beings was not a party to the creation of these documents, nor do I believe that the act of codifying them was the act of granting me real rights, real protections from the elites. I embrace them as a framework because they are consistent. As a baseline, they are an adequate tool to begin to understand our collective demands for human development and freedom. Suffice to say they will be won with struggle and resistance. Not more conferences, frameworks, and pedantic debates on the fate of the long-suffering poor.
References:
Craven M, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (2002) pages 6-29.
Davis D, “Socio-Economic Rights: The Promise and the Limitation – The South African Experience” in Daphne Barak-Eraz and Aeyal M Gross (eds) Exploring Social Rights: Between Theory and Practice (2007) pages 193-212.
Davis D, “The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive Principles,” 8 South African Journal on Human Rights 473-488 (1992).
Farmer, P (2003). Pathologies of Power: Health, Human Rights and the New War on the Poor, Berkeley: University of California Press
Glendon MA, “The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea,” 16 Harvard Human Rights Journal 27-39 (2003).
Hamm B, “A Human Rights Approach to Development” 23 Human Rights Quarterly 4, pages 1005-1017 (2001).
Neier A, “Social and Economic Rights: A Critique,” Human Rights Bulletin 13(2) (Winter 2006).
Marks S, “The Human Rights Framework for Development: Seven Approaches” pages 5-6 (2003).
Lewis H, ‘“New” Human Rights: U.S. Ambivalence Toward the International Economic and Social Rights Framework’ in Cynthia Soohoo, Catherine Albisa and Martha Davis (eds) Bringing Human Rights Home: A History of Human Rights in the United States, pages 104-144.
Pedro Olinto, Kathleen Beegle, Carlos Sobrado, and Hiroki Uematsu. World Bank Poverty Report (2013) Number 125. The State of the Poor.
UN Fact Sheet No.2 (Rev.1), The International Bill of Human Rights.
WALTER SEBASTIAN ADLER 