Civil and Political Rights
Articles 3 to 21 of the UDHR are concerned with the recognition of the right of all peoples to the enjoyment and protection of their ‘civil and political rights’. These rights were then specified in greater detail in a legally binding treaty adopted 18 years after the UDHR in 1966, the International Covenant on Civil and Political Rights (ICCPR).1 Over the years the interpretation of these rights has thrown more light on their scope and limits. The focus of this chapter is on the development of civil and political rights under the ICCPR, particularly in the jurisprudence of the Human Rights Committee (HRC), the body established to monitor and supervise the implementation of the ICCPR. This analysis will illustrate the practical evolution of civil and political rights since the adoption of the UDHR in 1948.
2. Philosophical Background
Notions of civil and political rights can be traced to Western liberal philosophies of the seventeenth and eighteenth centuries. Specifically, John Locke’s Second Treatise of Government proposed that men in a ‘state of nature’ had ‘natural rights’ to life, liberty and property.2 Similar ideas emerged in the Age of Enlightenment in France with the ideas of Rousseau, de Montesquieu and Voltaire, though the Continental European theorists tempered rights more with limitations, duties, and ideas of fraternity and equality along with liberty.3 They argued that such rights are rooted in the inherent dignity and rationality of human beings (or rather, ‘men’), a departure from the ‘irrational’ religious and scientific dogma that had predominated in earlier societies.4 These natural rights theories were to be highly influential in the formulation of the first constitutional guarantees of civil and political rights, which emerged in the United States (USA) and France at the end of the eighteenth century.
In classical Lockean theory, societies were formed under a ‘social contract’, under which ‘men’ maintained their natural rights subject to the qualification that they did not threaten or harm each other’s rights. The role of government was minimal, and was essentially confined to enforcement of that social contract. Otherwise, early conceptions of civil and political rights construed them as freedoms from government action, rather than entitlements to government-provided goods or services.
Despite numerous criticisms of natural rights theories from thinkers such as Karl Marx5 or Jeremy Bentham,6 natural rights theories endured and came to dominate the language of the UDHR in 1948. However, as discussed below, modern conceptions of civil and political rights have evolved far beyond their libertarian roots.
3. Categories of Civil and Political Rights
Civil and political rights can be categorized in numerous ways. They may be categorized as encompassing (1) rights of physical and spiritual autonomy; (2) rights of fair treatment; and (3) rights to participate meaningfully in the political process.7 Category 1 would include the rights to life and freedom from torture and other ill- treatment, freedom of movement, and the right to privacy. Spiritual autonomy is ensured by rights such as freedom of religion, belief and thought. Category 2 encompasses fairness in a narrow procedural sense, such as the right to a fair trial, and in a broader sense, such as a general right of equal protection of the law and freedom from discrimination. Category 3 obviously encompasses the right to vote and to stand for election, but also includes rights which are essential to a healthy political process, such as the freedoms of assembly and association. These categories overlap considerably. For example, freedom of expression can fall into all three categories. It is clearly relevant to the preservation of spiritual autonomy, to allow one to express one’s own ideas and to receive the ideas of others. It is also relevant to fair treatment: one cannot be treated fairly and equitably if one’s needs and desires cannot be heard, or if one does not have access to relevant information. Finally, freedom of expression is essential to a functional political system, so that there can be a free flow of communication between the elected and those that they represent, and within society to ensure governmental accountability.
Rene Cassin, one of the key drafters of the UDHR, categorized Articles 3–21 in the following way. Articles 3–11 concern rights to life, liberty and personal security, encompassing rights of physical liberty and fairness within the criminal process. Articles 12–17 concerned rights in civil society, including rights regarding one’s home and family. Articles 18–21 concerned rights in the polity, including political rights, rights essential to engagement within the political process, and freedom of religion.8 However, Cassin’s categories are no more watertight than the categories proposed directly above. For example, freedom of religion is surely important to one’s participation in civil society, contrary to Cassin’s characterization.
There are few consequences attached to the characterization of a right within some sub-category of civil and political rights. In contrast, civil and political rights are often juxtaposed against economic social and cultural rights, the subject matter of Articles 22–27 of the UDHR and of the other covenant, the International Covenant on Economic, Social and Cultural Rights (ICESCR),9with significant consequences. And yet, as with the sub-categories of civil and political rights, the strict cleavage of civil and political rights and economic social and cultural rights is flawed and simplistic, for reasons discussed directly below.
4. Civil and Political Rights ‘Versus’ Economic, Social and Cultural Rights
The UDHR did not purport to set up a hierarchy of rights, and it was initially intended that the follow-up treaties would not split up the various UDHR rights. However, Cold War politics, as well as perceptions of fundamental differences between the two sets of rights, led to a decision to split the rights into two covenants.10 Nevertheless, the preambles to the covenants each proclaim both sets of rights as interdependent, indivisible and equally important. Formal equality may be evidenced in that both covenants came into force in 1977, and both have roughly the same number of states parties as at 31 December 2009.11 The equal importance and interdependence of both sets of rights was affirmed in the Vienna Declaration and Programme of Action of 1993.12
Nevertheless, the norms in the ICCPR are far more developed than those in the ICESCR. This is not surprising, as the former have legal and historical advantages over the latter. Civil and political rights have a longer legal pedigree, having generated much jurisprudence under domestic constitutional documents, such as the US Bill of Rights, for over 200 years. Therefore, there was significant source material from domestic law for the development of civil and political rights at the international level. In contrast, economic, social and cultural rights do not have the same long history of domestic legal protection and justiciability, so those norms were less legally developed.13
Another ‘advantage’ for civil and political rights arises at the advocacy level. Those human-rights non-governmental organizations (NGOs) that have most engaged in domestic and international legal and political processes, such as Amnesty International and Human Rights Watch, have historically focused on civil and political rights. NGOs in the economic, social and cultural rights arena tended to be organizations that facilitated service delivery to disadvantaged groups, such as charitable organizations.14 Thus, there has historically been greater agitation for states by human rights advocates to ‘do something’ about civil and political rights abuses, both at home and abroad, and less pressure to address deficiencies regarding economic, social and cultural rights. Of course, historically, there has been much political agitation around economic and social issues, but not in terms of economic and social rights, and certainly not in terms of economic and social rights in other states. This distinction has broken down in the last 20 years. For example, Amnesty International no longer ignores economic, social and cultural rights issues.15 And classical service NGOs, such as World Vision, Oxfam and Médecins Sans Frontières, are now more politically active.16 Nevertheless, civil and political rights had a significant ‘head start’ over economic social and cultural rights in capturing the attention and agendas of global and domestic human rights activists.
The infrastructure for civil and political rights established by the ICCPR was, and remains, superior to that in the ICESCR. The ICCPR established an independent expert body, the HRC, to oversee its implementation. No such body was established by the ICESCR, with oversight left initially to the United Nations Economic and Social Council (ECOSOC), a political body with political agendas. Only after almost 10 years of inadequate performance did ECOSOC finally establish an independent expert body in 1985, the Committee on Economic, Social and Cultural Rights, to supervise the implementation of the ICESCR.17 Again, the theme of civil and political rights being ‘ahead’ of economic social and cultural rights is evident. The HRC had a 10-year head start over its ICESCR counterpart in developing its practices, procedures, institutional culture, and substantive jurisprudence.
Of even greater consequence are key differences between the respective obligations of states under the two covenants. The key obligation provision in the ICCPR, Article 2(1), reads:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
Therefore, the ICCPR requires states to immediately respect and ensure to all the enjoyment of the rights therein.
The parallel provision in the ICESCR, Article 2(1), reads:
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.
The obligation provision in the ICESCR is distinctly muddier than that in the ICCPR. The obligation is progressive rather than immediate, and is qualified by a state’s ‘available resources’.18
A key to the rationale behind the different obligations is the perception, dating back to their natural rights origins, that civil and political rights are ‘negative rights’, requiring only that states refrain from rights-violating behaviour, while economic, social and cultural rights are ‘positive’ in that they require states to take actions to fulfil the rights therein. Negative rights seem to require a state to do nothing, a requirement that is inexpensive and simple, justifying the more onerous ICCPR obligation. Positive rights are expensive and difficult to perform, justifying the leeway given to states under the ICESCR.19
However, the reality is somewhat different. Civil and political rights are not wholly negative: they cannot be implemented simply by a state refraining from conduct. For example, the right to a fair trial in Article 14 of the ICCPR clearly requires the establishment of adequate judicial infrastructure. Article 25, covering the right to vote, entails the establishment of the necessary apparatus to run a fair election. Articles 23(1) and 24(1) explicitly call for measures from the state to protect, respectively, families and children. Indeed, all human rights entail both positive and negative characteristics. Freedom from torture fundamentally requires states to refrain from torture; thus, it seems to be a quintessentially negative right. However, a state cannot possibly prevent torture by simply doing nothing. States must take positive steps to ensure that the opportunities for torture are minimized, that systems are in place to prevent torture, and that it is punished in the instances where it occurs. These positive duties have been confirmed by the HRC in its jurisprudence on Article 7 of the ICCPR,20 and are made explicit in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT).21 In General Comment 31,22 the HRC confirmed at paragraph 6 that the ‘legal obligation under article 2, paragraph 1, is both negative and positive in nature.” The same is true of the ICESCR: its norms, too, entail both negative and positive aspects.23
Indeed, there is an element of progressiveness also in some of the obligations in the ICCPR. For example, Article 23(4) states, in part:
States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.
The reference to ‘appropriate steps’ suggests that this obligation is not immediate, recognizing that states may take some time to erode cultural norms that dictate against equality within the family. However, no such concession is made by the HRC in the General Comment on Article 23.24
Indeed, the interdependence and indivisibility of the two sets of rights promoted in the respective covenants’ preambles has not been an empty promise. Some economic social and cultural aspects have been uncovered within ICCPR rights. The right to join a trade union is explicitly covered in both covenants.25 Furthermore, the right to life in Article 6 entails a state duty to combat socioeconomic threats to life, such as epidemics and malnutrition; states should also adopt measures to promote life expectancy and reduce infant mortality.26 Minority rights in Article 27 clearly have an important cultural component. Indeed, there are numerous examples of true indivisibility and permeability, such as the links between the right to life and the socio-economic right to an adequate standard of health care, and the right to freedom of expression and the socio-economic right to education.27
Arguably, the most significant permeation of economic, social and cultural rights into ICCPR rights has arisen in regard to Article 26, which reads:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The Article 26 guarantee of non-discrimination has famously been interpreted so as to prohibit discrimination in relation to ‘any field regulated and protected by public authorities’.28 For example, in Broeks v Netherlands, 29 Mrs Broeks alleged a violation of Article 26 entailed in her ineligibility as a married woman for an unemployment benefit, in circumstances where a married man would have received that benefit. The Netherlands responded by arguing that Article 26 only guaranteed non-discriminatory treatment in relation to civil and political rights, and was therefore inapplicable to Mrs Broeks’ claim, which concerned a social security right.30 The HRC rejected the Netherlands’ contention, and instead confirmed a broad application of Article 26. Article 26 has since been a vehicle for complaints regarding discrimination in relation to numerous economic, social and cultural rights.31
One of the biggest perceived differences between the two sets of rights was the contention that economic, social and cultural rights were not justiciable. Their non-justiciable nature was a function of the vague obligation provision, which hampered findings of violation, and the flawed positive/negative dichotomy. Civil and political rights have long been recognized as justiciable, and may be the subject of individual complaints before the HRC under the First Optional Protocol to the ICCPR.32 The existence of an individual complaints system under the ICCPR, and the absence of one under the ICESCR, have exacerbated the gap in normative material on the two sets of rights. While the HRC has decided over 1,500 cases (including inadmissible cases, which can nevertheless be instructive with regard to the normative content of a right), which help to concretize the meaning of ICCPR rights, the Committee on Economic, Social and Cultural Rights has decided none.
On 10 December 2008, the 60th anniversary of the UDHR, the UN General Assembly adopted an Optional Protocol to ICESCR which will come into force when 10 states have ratified it.33 Its coming into force will usher in a new era of justiciable global economic social and cultural rights. Thus, one of the most important, yet incorrect, perceived differences between the two sets of rights will finally be dispelled.
5. Individual and Collective Rights
The rights in the ICCPR are essentially rights of individuals. The exception is the right of self-determination, a right of peoples in Article 1.34 The HRC has found that this right is not justiciable under the Optional Protocol, on the basis that that instrument only envisages complaints by individuals.35 This interpretation is unnecessarily conservative, and has significantly weakened the effectiveness of Article 1.36
While the other rights are cast as individual rights, some of them necessarily envisage enjoyment by groups of individuals, such as the Article 22 right of freedom of association, Article 23 family rights and minority rights under Article 27. Furthermore, the inherent individualism in the ICCPR is tempered by the fact that most of the rights therein can be limited by proportionate measures designed to fulfil the legitimate countervailing interests of society, such as promotion of public order, public health, national security, or public morals.37
6. Cultural Relativism
The notion of cultural relativism poses a significant challenge to the universality of human rights. Cultural relativist arguments postulate that the application of human rights varies according to the different cultures of states. Such arguments have tended to target civil and political rights more than economic social and cultural rights. Such arguments generally emanate from non-Western states, which is perhaps unsurprising given the Western philosophical origin of civil and political rights.
The text of the ICCPR indicates that the rights therein are universal. Furthermore, states have freely ratified the treaty, so it is perhaps unconvincing for states to subsequently claim some sort of cultural exemption from the rights therein. However, some room for cultural difference in application is given.38 For example, reservations to the ICCPR are allowed.39 Furthermore, the application of various permissible limitations can vary according to the circumstances of a state. In particular, the limitations allowed for ‘public morals’ must vary according to the prevailing moral climate in a state.40 Article 27 confers cultural rights on minorities, confirming that human rights in fact promote cultural diversity. Finally, the HRC has occasionally conceded cultural differences in application of rights. For example, in Aumeeruddy-Cziffra et al. v Mauritius, it stated that the rights of family protection in Article 23(1) would ‘vary from country to country and depend on different social, economic, political and cultural conditions and traditions’.41 Similarly, regarding the age of majority for the purposes of Article 24, the right of a child to protection, the HRC has stated that that age is determined by each state in accordance with ‘relevant social and cultural conditions’.42
On the other hand, the HRC has condemned certain cultural practices as breaches of the ICCPR, implicitly rejecting cultural defences of those practices. For example, it has condemned discrimination against gays and lesbians, female genital mutilation, hudūd punishments and prohibitions on apostasy in Islamic states, polygamy, and prohibitions on abortion.43 Its strongest rejection of cultural relativism arose in General Comment 28, which addressed equality of rights between men and women:
Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes…. States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights ….44
A related argument is that of ‘economic relativism’.45 This theory postulates that economic development is the legitimate priority of developing states, so civil and political freedoms can be delayed while a state develops its economy to a satisfactory level.46 This argument suggests that civil and political freedoms somehow undermine the promotion of economic development in vulnerable economies. For example, it might be argued that opposition groups with a free rein distract or undermine governments in achieving their economic goals, and might prompt unhelpful U-turns in economic policy. While developed states can withstand and absorb subsequent economic pressures, developing states do not have that luxury. On the other hand, civil and political rights facilitate government accountability, which helps to guard against corruption and bad governance, both of which can have devastating economic effects.47
The HRC has strongly rejected any hint of economic relativism in the application of the ICCPR. For example, it has not permitted states to justify poor prison conditions,48 court delays,49 or arbitrary restrictions on restitution schemes50 on the basis of budgetary constraints. Exceptionally, the HRC has indicated that the right of the family to measures of protection does vary according to a state’s economic circumstances.51
In its ‘General Comment 31 on the Nature of the General Legal Obligation of States Parties to the Covenant’, the HRC rejected cultural and economic relativism unambiguously:
The requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.52