Opinion piece: Human Rights as ‘indivisible’?

Human-rights-picture

 

‘Indivisibility’ of human rights was conceived in part to make the movement more responsive to the poverty that so manifestly plagues the modern world. International covenants are increasingly receptive to the notion, as will be shown, but the reality of such an equal status for differing categories of rights is far less clear.

The 1993 Vienna Declaration endorses the notion of human rights ‘indivisibility’, and this is re-affirmed in other covenants and protocols, notably the ‘Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008)’ and the ‘Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (2003)’. The ‘progressive realization’ of such rights found in many covenants (see below[1]) potentially disputes this idea of ‘indivisibility’ or equal status for differing categories of rights. Indeed, one observes through the covenants a different treatment of civil and political rights; the right to life[2] and the right not to be subject to torture[3] both confer on states an immediate and total obligation, and as such the differing rights are not truly indivisible.

UN Committee General Comments[4] on economic, social and cultural rights support this notion of ‘indivisibility’ by advocating “full realization” and are in line with the integrated approach to human rights espoused by the ‘Universal Declaration on the Right to Development’ as well as the ‘Convention on the Rights of the Child’. Critics, however, note that the theoretical support for ‘indivisibility’ is high while observing a poor level of state compliance with reporting obligations under the covenants.[5] The justification here seems to be that decisions with significant economic and resource implications are best taken by democratically accountable policy makers, not judges. Indeed, the protection that international human rights instruments afford these categories of rights is not the same. There tend to be judicial means of implementing the former group of rights – the ‘European Court of Human Rights’, for instance – and a weak and flexible monitoring system for the latter – ‘the European Committee on Social Rights’, monitoring the implementation of the European Social Charter.

Nevertheless, it should be noted that the international covenants do allow for victories in the field of economic, social and cultural rights, even though the form may differ to those of civil and political rights. A successful instance of the right to water being restored came with the Bolivian popular uprising against the privatization of its water system, which had doubled and tripled water rates. The Bolivian government ceded to the ‘right to water’ protestors and renationalised the water system.[6] Moreover, the African Charter[7] views these categories of rights in tandem, staying true to indivisibility by listing them on the same instrument and striking a balance where conflict arises. Indeed, this was confirmed in the case of SERAC v Nigeria, ‘clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective’[8].

‘Indivisibility’ of human rights is about not only the rejection of a legal hierarchy of civil and political rights over economic and social rights, but about exposing societal hierarchies of a more profound order resulting in the exclusion of certain rights from universal notions of dignity of the person. The rhetoric is powerful, therefore, and many international covenants support the notion. In practice, however, we have seen that such rights are rarely indivisible insofar as a greater protection is conferred on the first set of rights. What this ultimately shows is that conventions such as the Vienna Declaration reject alternative understandings of rights, dismissing “Asian values” for example, and affording absolute priority to the centrality of individualism in the human rights agenda, which flowed from the European Enlightenment era.

[1] For example, Part II, Article 2(1) of the International Covenant on Economic, Social and Cultural Rights, and reiterated in Article 33 of the ASEAN Human Rights Declaration (2012)

[2]Article 6, International Covenant on Civil and Political Rights (1966)

[3] Article 7, International Covenant on Civil and Political Rights (1966)

[4] UN General Comment No. 18 on the Right to Work

[5] The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A New Instrument to Address Human Rights Violations, http://www.globalpolicyjournal.com/articles/international-law-and-human-rights/optional-protocol-international-covenant-economic-social

[6] The Politics of Water in Bolivia, The Nation, http://www.thenation.com/article/politics-water-bolivia

[7] The African Charter on Human and People’s Rights

[8] SERAC v Nigeria [2001], http://www.achpr.org/instruments/achpr/main-features/

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