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Introduction
According to the Human Rights Advocacy and the History of International Human Rights Standards, one of the earliest political wrangling in the area of human rights was the division of these rights into several categories: economic, community, and cultural rights. Nonetheless, the overall understanding is that rights, per se, must be understood as interdependent and indivisible. Under the 1948 Universal Declaration of Human Rights (UDHR), there is no classification for rights; in addition, the accord does not aggressively set to establish an ordered rights regime.
The universality of human rights is the bedrock of international human rights jurisprudence. This core declaration since its original statement in the UNDHR in 1948 has been reaffirmed in various other human rights treaties and accords. It has been recognized that majority of the states have approved at least four or more of the fundamental human rights agreements. A number of these human rights are given universal protection by local laws across territories and cultures.
Dividing Rights: Are there any?
Even with the immensity of the human rights structure, the parties involved in the spread and advocacy of humans is comprised of a relatively small sector. Unofficially, there is a small number of “international” non-governmental organizations (NGOs) that tends to monopolize the operation of the sector. Aside from overlying the sectors, these have a preferred status with the United Nations and generate and get the most media mileage.
In the holding of the United Nations Population Fund (UNFPA), human rights must be regarded as universal, indivisible, inalienable and interrelated. These are generic in that these rights are inalienable to all individuals regardless where these are born, what racial or cultural factors, and religious elements attend the person’s circumstance. These are inalienable in that these rights cannot be removed from the person; indivisible as all liberties and guarantees have the same significance and these cannot be fully exercised or availed of without the operation of the others. These rights are given equal weight and all persons have the same right and access to these rights as these impact their daily lives.
This position was supported in the view of the 1993 Vienna Declaration, wherein the universality, interdependence, inalienability and interrelation of human rights was affirmed. In this light, the accord states that the members of the international community treat the canon of human rights equally and with the same energy. Nonetheless, even with the global community’s long standing adherence to human rights agreements, no country, or group of nations for that matter, has taken solid steps to strengthen its oratories in adhering to international human rights jurisprudence.
The literature shows that there is hardly a human rights agreement that has been subjected to greater degree of misunderstanding, undervaluing, and deliberately abused than the International Covenant on Economic, Social, and Cultural Rights. Fundamental to the chasm with regards to policy and practice is an actual conflict on the nature and state of these rights. There are those that hold that ESC rights are not ‘real rights;’ rather, these are philosophies or ideals rather than human liberties.
Nonetheless, the consensus of human rights has been subjected to numerous interpretations in the past. One of the main theses posited here is that these rights-though divided into two groups-reinforce one another and cannot be realized without the operations of the others. Interdependence and indivisibility also reject any proffer of a graded structure of rights.
However, Smith (2013, p. 55) posits that on the assumption that all rights are extensively applicable, then are these rights ‘equally applicable, or are there open or clandestine structures with regards to the importance of these rights? For example, the right to life is imperative to the enjoyment of other rights; however, there is a highly charged debate concerning the beginning of that life, whether the ‘life’ begins at conception or when the fetus is born?
In another example, societies that have been subjected to a massive natural disaster will likely prioritize food, medicines, and other relief goods over the right to have free and honest elections. Political prisoners will value freedom to express themselves over not being incarcerated in prisons. In this light, can the universality concept be reconciled with the principle of a graded rights structure? It can be stated that not all rights are equally valuable at all times; what will define the hierarchical significance of these rights is the comprehension of the rights that are needed in a certain situation. Rights that are economic in nature will be subservient to instances of political or civil needs.
With the termination of the era of détente, the argument of the gradient structure of human rights between civil and political rights (CPR) and economic, social, and cultural rights (ESCR) concepts have assumed a “North-South” element. At times, it is opined that human rights, particular CPRs, are not as important in non-Westernized societies. Butterly (2015) avers that though human rights are correctly comprehended as interdependent and indivisible, there does exist a gradient structure in terms of the significance of human rights, with CPR significantly higher in the appreciation ladder compared to the position of ESCR. Simply put, people put more weight on their civil and political liberties compared to their economic and cultural guarantees.
Though ESCR cases have been litigated in state courts for several years, there has been a dramatic rise in the frequency of cases involving ESCR in the recent times. This rise in the number of ESCR cases in the courts has evinced itself owing to the ascendance of democratic ideals in the regions of Latin America, South Africa, and in Eastern Europe. Most of the fundamental laws written in these new states, particularly in Eastern Europe, integrate socio-economic components.
This was attained seemingly be incorporating the CPR found in capitalist societies, inclusive of the right to freedom of speech and the conduct of democratic suffrage; nonetheless, though these states adopted many of the practices found in Western democracies, these made sure that these would retain the ESCR model found in socialism; concepts such as job tenure, social security and public educational facilities were retained in these states.
There is a great deal of discussion regarding the ability of the judicial system to litigate cases of ESCR. There are apprehensions that the courts do not have the necessary resources to deal with these kinds of cases dealing with the appropriation of national resources. Nonetheless, research will show quite the opposite. The judiciary has time and again been able to tackle complicated issues regarding civil and political liberties even with the engagement of technical or economic issues. For example, the courts have been able to adequately resolve issues such as recent resolutions in the US judicial system and attendant ‘spy programs’ in the case adjudicating people’s privacy guarantees.
In areas where conflict can possibly arise between these categories of human rights such as in the area of religious liberties-right to congregate, for example- as well as various rights, the initial step in the resolution of this argument is the determination of any gradient structure in the area of human rights, and in cases that there are gradient instances, where one right seems to take precedence over another, what is the character of that right. One observation in this area is that, as stated through this work, is that human rights are universal, indivisible, interdependent and interrelated. Simply stated, humans rights must and should be treated as a whole: no liberty may be rejected or displaced to be able to resolve disputes in the realm of human rights.
Another observation in this argument is that in cases that conflicts do arise, the Vienna agreements do not give any direction that point to a hierarchical arrangement on rights, that one right is more superior to another. Nonetheless, actual practices seem to contradict this assertion. For example, when judges have to decide on cases involving human rights, and since international human rights agreements do not a structured graded appreciation of rights, in areas of fundamentalist, non-Westernized countries, the rights of the people were determined by means other than international law; religious dogmas, for example, was used in fundamentalist states.
It can be stated that both sets of ‘rights’ have a ‘shared essence;’ it can be stated that for the two sets to be complimentary, the two must have a point of differentiation. If there is no point of digression, then the two sets cannot be compared as the two are merely mirror images of each other.
Bibliography
Websites
Human Rights Advocacy and the History of International Human Rights Standards <http://humanrightshistory.umich.edu/problems/indivisibility (accessed 2 March 2016)
Ghai, Yash “Human rights and social development: towards democratization and social justice” <http://www.ucl.ac.uk/dpu-projects/drivers_urb_change/urb_governance/pdf_democ_empower/UNRISD_Ghai_HR_and_Social_Development.pdf (accessed 2 March 2016)
United Nations Human Rights Office of the High Commissioner, “What are human rights?” <http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx (accessed 2 March 2016)
United Nations Population Fund, “Human rights principles” <http://www.unfpa.org/resources/human-rights-principles (2005) (accessed 2 March 2016)
Anthony, Dorothea, “Indivisibility of human rights: a theoretical critique <https://www.uts.edu.au/sites/default/files/law-form-dorothea-anthony.pdf (accessed 2 March 2016)
Books
Brems, Eva, Human Rights: Universality and Diversity (Leiden: Martinus Nijhoff Publishers, 2001) 444
van Erp, Stephan. Vestricht, Lea, Longing in a culture of cynicism (2008) (Berlin: LIT Verlag) 165
Smith, Rhona K.M.. Text and materials in International Human Rights (London: Routledge, 2013) 55-57
Journals
Butterly, Luke “Freedom and bread: on the justiciability of economic and social rights” (2015) Westminster Law Review Volume 3 issue 2 <http://www.westminsterlawreview.org/Volume3/Issue2/wlr29.php (accessed 2 March 2016)
Pritchard, Sarah, “The jurisprudence of human rights: some critical thought and development in practice” (1995) Australian Journal of Human Rights Volume 2 issue 1 <http://www.austlii.edu.au/au/journals/AJHR/1995/2.html (accessed 2 March 2016)
Quane, Helen, “A further dimension to the interdependence and indivisibility of human rights?: recent developments concerning the rights of indigenous peoples” (2009) Vol. 25 Harvard Human Rights Journal <http://harvardhrj.com/wp-content/uploads/2009/09/Quane.pdf (accessed 2 March 2016)
