Module 2 - Continued
USING MODULE 2 IN A TRAINING PROGRAM

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Post–World War II Developments

Immediately following World War II, there was great concern to develop a new, stronger in­ternational organization—the United Nations—in which the principles of human rights would play a major role.  The reasons were many.  One was the momentum that had been growing over the prior decades for the institution of an international order that would protect the full range of rights—civil and political, as well as those rights that would address the widespread suffering that workers and the unemployed had endured during the depression.  In addition, the war had broken out because of actions of Nazi and fascist regimes in Europe.  Government leaders believed that the creation of effective mechanisms to guarantee human rights would help prevent the development of such regimes in the future. 

These ideas are well expressed in the preamble to the Universal Declaration of Human Rights (UDHR) of 1948 which states that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind” and that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human fam­ily is the foundation of freedom, justice and peace in the world.”  

The United Nations Charter

The immediate impact of this emerging concern for human rights was the inclusion in the United Nations Charter, which was drafted and adopted at the San Francisco Conference of 1945, of references to the promotion and protection of human rights.  Article 1 of the Charter provides, most notably, that one of the purposes of the United Nations is

To achieve international co-operation in . . . promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.

Obligations assumed in furtherance of this aim are spelled out by articles 55 and 56 of the Charter.  These articles indicate that states must take joint and separate action in cooperation with the United Nations to promote

universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Important as they are, these provisions clearly provided only a very tentative, initial step to­wards the institution of a universal system of human rights protection.  No indication was given in the Charter as to the content of these “human rights and fundamental freedoms” nor as to the type of action required for their protection and promotion.  These provisions had, and indeed continue to have, a largely symbolic value.  They signaled simply that human rights would form a continuing arena for action on the part of the United Nations.  The task of spelling out the substance of those human rights and creating mechanisms to protect them was to be taken up by various United Nations organs (and regional organizations) in subse­quent years.

The Universal Declaration of Human Rights

The first major initiative taken by the United Nations after its formation was the creation of a Commission on Human Rights.  The commission itself was charged with the drafting of an International Bill of Rights, which was intended to form the cornerstone of the new “consti­tutional” order.  On being assigned the task, the commission decided that its efforts should be directed first and foremost towards the drafting of a declaration of human rights, which would be followed at a later stage by the drafting of a treaty or “convention,” and a document outlining methods of implementation.  The Commission drafted what was to become known as the Universal Declaration of Human Rights relatively quickly, and its draft was finally adopted by the General Assembly on 10 December 1948.

The Universal Declaration includes in its provisions a relatively full range of rights, among them not only the “classical” civil and political rights but also a number of economic, social and cultural (ESC) rights.  In articles 22-27, for example, it declares among other things that everyone has the right to social security, the right to work, the right to rest and leisure, the right to an adequate standard of living, the right to education and the right to freely partici­pate in the cultural life of the community.  These articles essentially set out the range of con­cerns that have since been brought within the compass of human rights law.

While the inclusion of a number of ESC rights within the Universal Declaration was un­doubtedly radical, the Declaration was clearly not intended to be an instru­ment to which states formally bound themselves as a matter of law.  Rather, it was regarded by the com­mis­sion as a “common standard of achievement” to which states would aspire (to employ the phrase used in the preamble) and for that reason was adopted simply by a majority vote within the General Assembly.17  The legal status of the Declaration today is not entirely clear.  While some have argued that the Decla­ration reflects, in its entirety, norms of customary international law, this would seem rather optimistic.  However, even if only parts, at present, reflect customary law, it does remain an important instru­ment not least in so far as it sets out the basic arena of human rights activity.

The International Bill of Human Rights

As was its original intention, after drafting the Universal Declaration, the Commission on Human Rights set about drafting an international human rights treaty.  This project was to be more difficult than first imagined.  By the time the commission began to deliberate on the matter, relations between East and West had begun to deteriorate.  Over the next few decades many of the organs of the United Nations became blighted by political wrangling between the socialist states on the one hand and the Western bloc on the other, and the Commission of Human Rights was no exception.  The dispute between these two political blocs as regards human rights manifested itself in differences over the priority of certain categories of human rights and their method of implementation.  The socialist states championed the cause of ESC rights, which they associated with the aims of a socialist society. They also believed that im­plementation of rights had to be undertaken by political organs, rather than by judicial or­gans, which were the preference of the West.  Western states asserted the priority of civil and political rights, which they viewed as integral to the foundation of liberty and democracy, and argued strongly for the creation of a committee or court of human rights that would oversee implementation.

The result of this cold-war polarization was effectively to prevent the adoption of a single all-embracing treaty.  The proposed treaty was divided into two parts—one dealing with civil and political rights, the other with economic, social and cultural rights—and each part was drafted as a separate treaty.  The dispute also considerably prolonged the drafting process, which continued until 1966.  The adoption of the International Covenant on Civil and Politi­cal Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, however, completed the work of the United Nations on what is called the International Bill of Human Rights. 

The main difference between the two covenants as they were adopted, apart from the obvious difference of subject matter, is that the ICCPR specifically envisaged the creation of a Hu­man Rights Committee composed of independent experts charged with the responsibility for overseeing implementation by a system of petitions, among other means.18  The ICESCR, however, was to be implemented by the Economic and Social Council—a political organ of the United Nations—which would oversee a reporting procedure.19  As we shall see below, the latter arrangement proved to be something of a hindrance for the development of the ICESCR, which was only overcome when a Committee on Economic, Social and Cultural Rights was created in 1986.

Other Human Rights Treaties

The adoption of the International Bill of Human Rights did not end the work of the United Nations in setting standards for human rights.  Indeed, by 1966 the UN had already adopted two other relevant instruments.  The Genocide Conven­tion was drafted in 1948, and had en­tered into force in 1951,20 and the Con­vention on the Elimination of All Forms of Racial Dis­crimination was adopted in 1965.21  Over the next few decades, various organs of the United Nations continued the process of drafting international human rights treaties leading to the adoption of, among others, the Convention on the Elimi­nation of All Forms of Discrimina­tion against Women (CEDAW) in 1979,22 the Convention Against Torture in 1984,23 and the Convention on the Rights of the Child (CRC) in 1989.24  Each of these treaties supplements and enhances the basic guarantee enunciated in the two Covenants and deals with a specific category of problems or class of persons.  With the ex­ception of the Torture Convention, all include several provisions dealing specifically with ESC rights.  (See Modules 4 and 5 for further discussion of CEDAW and CRC.)

Apart from the universal instruments drafted by the United Nations, a number of human rights instruments have been drafted by UN specialized agencies such as the ILO, UNESCO and others.  In addition, regional organizations, which in some parts of the world form the main focus of human rights work, have developed their own standards.   In fact, the first re­gional instrument to be drafted, the American Declaration of the Rights and Duties of Man,25 was adopted before the Universal Declaration.  The three best-known regional instruments are the European Convention for Human Rights,26 the American Convention on Human Rights27 and the African Charter on Human and Peoples’ Rights.28  Apart from the African Charter, these do not deal in any comprehensive way with ESC rights.  In the European con­text, there is a separate instrument—the European Social Charter29—that deals with such rights.  In the Americas, the Additional Protocol to the American Convention dealing with ESC rights30 provides for a system of petitions in relation to a number of rights, but it has yet to be adopted.  (See Section X for more on regional treaties and enforcement mechanisms.)

National Constitutions

The development of human rights norms has also had an impact on national constitutions. Most postcolonial states that emerged in the 1950s and 1960s incorporated some elements of the Universal Declaration of Human Rights into their constitutions.  However, for the most part, civil and political rights were incorporated as fundamental rights, while economic and social rights were classified as matters coming under state policy.

This divide is gradually narrowing, with some countries incorporating both sets of rights within the fundamental rights provisions of their constitutions.  The 1987 Constitution of the Philippines includes a provision in article 13 on social justice and human rights.  In its defi­nition of social justice, article 13 focuses on economic and social rights: full protection is to be accorded to labor; just distribution of all agricultural lands is to be promoted; the rights of farmers and fisherfolk are to be respected; and a program of urban land reform and housing is to be established, as is a system of health care.  The Philippine Constitution specifically rec­ognizes the role of independent, people’s organizations in enabling the people to pursue and protect their legitimate and collective interests and aspirations through peaceful and lawful means.

The constitution that is the most remarkable in its incorporation of ESC rights is the one adopted by South Africa in 1996.  Chapter 2 of the South African Constitution guarantees fundamental rights to every citizen.  These fundamental rights in addition to traditional civil and political rights include several ESC rights:

• the right to an “environment that is not harmful to their health or well-being” (chapter 2, sec. 24);
• the right of access to adequate housing (chapter 2, sec. 26);
• the right of access to health care services, sufficient food and water, and social security (chapter 2, sec. 27);
• the right to a basic education (chapter 2, sec. 29); and
• the right to “use the language and to participate in the cultural life of their choice” (chap­ter 2, sec. 30).

Ensuring the recognition of ESC rights in national constitutions is part of the struggle to ad­vance these rights.  The South African Constitution is an encouraging sign of what is possi­ble.

At the same time, the history of the emergence of human rights shows that legal recognition of a right is only a first step.  Various obstacles, particularly related to local and/or national customs, practices or culture, may continue to obstruct the full enjoyment and protection of a right that has been legally protected.  Legal prohibitions of racial discrimination in the United States, for example, have not succeeded in eliminating the practice.  In most countries women have, in practice, not been in a position to enjoy specific rights (for example, equal pay for equal work) recognized at the national and international levels.  It is thus essential for activists to know not simply the international and national legal and constitutional status of human rights, but to understand the extent to which human rights—particularly the rights of vulnerable groups, such as women and children—are protected in practice. 

Legal Obligations Assumed by States under International Human Rights Law

Treaties are essentially contractual in nature, and therefore it is necessary for states to “con­sent to be bound” in order for them to be legally responsible for fulfilling the obligations.  Since much of international human rights law concerns the implementation of treaties, the general principle is that only those states that are party to the treaty concerned are bound by the human rights obligations in question.  That being said, it is clear that simply because a state does not ratify a human rights treaty does not mean that it can evade all responsibility for its actions under international law.  To begin with, states clearly have a moral obligation to comply with certain basic human rights standards, which they may ignore only at the risk of universal condemnation.  This in itself is reinforced in two ways.  First, the existence of universal obligations to protect human rights is evident in the fact that some human rights are now regarded as forming part of customary international law.  The prohibi­tion against tor­ture, for example, is an obligation that devolves upon states irrespective of whether they have signed or ratified a relevant treaty.  The same may be said of genocide and forced disappear­ances.  This is not to say that treaties are unimportant—indeed they provide much-needed mechanisms of enforcement—but simply that the obligation to protect and promote human rights is an obligation incumbent upon all governments and states whether or not they have officially agreed to treaty obligations.

The obligatory nature of human rights protection and promotion is reinforced further by the terms of the UN Charter that apply to all member states (and therefore the vast majority of states in the world today).  Although the term “human rights and fundamental freedoms” is not spelled out, this does not excuse states when they indulge in practices that are uncon­scionable or that offend basic standards of humanity.  United Nations actions against South­ern Rhodesia, South Africa and Iraq, for example, have in the past been justified by reference to the human rights provisions in the Charter.  It is envisaged that the United Nations will con­tinue to insist upon certain basic standards being adhered to by its members.

Fundamental Principles of Human Rights

Inherent dignity of human beings: According to the Universal Declaration, human rights de­rive from the “inherent dignity . . . of all members of the human family.”  Thus, although human rights might be formalized in treaties, declarations and bills, their origin and justifica­tion is essentially pre- or extra legal.  Human rights, in other words, are not the creation of law or of legislators, and they do not exist simply because governments or states say as much.  Rather, they are a moral entitlement that derives from our membership in the “human family” and represents a standard against which law may be tested. 

Equality and non-discrimination: It follows from this first principle that human rights, by virtue of their very nature, are possessed by all in equal measure.  Whatever our social, eco­nomic, cultural or political status, whatever the conditions in which we live, we are, in prin­ciple at least, entitled to the same basic rights and freedoms.  The idea of equality and non­discrimi­nation is a fundamental, underlying principle of human rights. As article 2 of the Universal Declaration states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, with­out distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status.

Indivisibility and interdependence of human rights: The process of standard-setting within the United Nations was infected by the ideological battle between East and West.  This ideo­logical separation, which became concretized in the drafting of the two separate treaties, has contributed to an enduring per­ception that the two catego­ries of rights are necessarily distinct and even conflicting.  In recent years, however, a more nuanced understanding of human rights has been growing in acceptance, one which holds firm to the idea that all human rights are indivisible, interrelated and interdependent.  The idea finds its expression in several dif­ferent ways.

It has come to be recognized that the prioritization of civil and political rights cannot be justi­fied in cases where individuals live in poverty and degradation.  In such cases, action taken to promote decent standards of health, hygiene and housing are clearly more important for the individual concerned than any claim to freedom.  Secondly, it has been increasingly ac­knowledged that the two sets of rights are integrally related.  Proper education is necessary for the full enjoyment of freedom of expression, and by the same token, protection of civil and political rights is more likely to contribute to the creation of a society in which the ESC rights of the population will be met than otherwise. Finally, the idea of interdependence is reinforced in a formal sense by the fact that the divi­sion between the categories of rights is itself imperfect.  Article 27 of the ICCPR, for exam­ple, protects the rights of persons be­longing to ethnic, religious or linguistic minorities to “enjoy their own culture, to profess and practise their own religion, or to use their own lan­guage.”  Similarly, article 22 of the same treaty protects the right to “form and join trade unions,” a right that is recognized in the same terms in ar­ticle 8 of the ICESCR.

The Contemporary Context

Rights have emerged as a result of people’s strug­gles in various historical periods.  These struggles did not take place in a vacuum.  Gains that were made and defeats that were suffered occurred in the context of and in large part resulting from the specific economic, political and social conditions prevailing at the time.  In order to be effective, it is essential for today’s activists to understand the con­texts within which rights historically achieved recognition.  They must also understand the con­tem­porary economic, political and social contexts within which they themselves act. 

Human rights achieved formal recognition within the historical context of the nation-state. Civil and political rights have long been perceived as an essential buffer protecting the indi­vidual from the abusive exercise of state power.  The state’s responsibility to protect econo-mic and social rights has been based on the assumptions that the state, through its taxing authority, has far greater resources than do individuals, and that through those resources the state has the ability to ensure that all those living within its ambit enjoy a certain level of so­cial and economic security.

The economic, political and social context within which human rights have historically been recognized has been undergoing enormous changes in the past couple of decades.  These changes, in turn, have had and will have profound implications for efforts to protect and promote ESC rights. 

These changes have been the result of a process that has been termed “globalization.”  Glob­alization rests on the assumptions that the free market is the best arbiter of the efficient use of resources and that the state is a cumbersome economic actor, whose intervention in the mar­ket causes wasteful distortions.  The conclusion to be drawn from these assumptions is that the market should be given free rein and the state’s role in the economy minimized.  Propo­nents of globalization maintain that if these steps are carried out, resources will be used to maximum efficiency—and the largest number of people will benefit from their use.  The ac­cent thus is on linking domestic capital with international capital, according to the logic that by such links weak economies can benefit from the flow inward of capital, technol­ogy and management techniques.  The term “globalization” reflects these global connections. 

The principal actors involved in the process of globalization are discussed in greater detail further on in the manual (see, for example, Section IX).  However, some of the implica­tions of globalization should be men­tioned here, since they touch directly on a range of ESC rights issues ad­dressed in various other up­coming modules.

Flowing from the belief in the ineffi­ciency of the state, there has been an increasing push towards privatiza­tion—the devolution of state assets and responsibilities onto private ac­tors.  State lands have been sold to private individuals and corporations; state enterprises  (e.g., utilities), re­sources (e.g., oil, coal), services (e.g., transportation) and functions (e.g., prisons, social welfare services) have been turned over to the private sector.  Mecha­nisms, processes, laws and regulations that had been established to allow for democratic control over these properties and functions have been dismantled or significantly curtailed, so that central aspects of the lives of individuals and communities are far more subject to the whim of private actors over which they have no legal control than they were before.

Various groups of individuals and institutions have benefited from globalization.  Globaliza­tion, for example, has encouraged a freer flow of information among states, and everyone has, in general terms, gained from this.  However, the overall benefits of the trend towards globalization have accrued principally to large, transnational enterprises—corporations and banks—which can more easily move capital and investments in and out of countries to take advantage of cheaper wages and more favorable economic conditions.  A growing number of these enterprises now command far greater economic and political power than do many states.  They are responsible first and foremost to their shareholders.  Unlike elected govern­ments, they have no inherent responsibility to the millions of people for whose lives their de­cisions to invest or disinvest have huge implications.  The latter have virtually no control over them.

The implications of these changes for ESC rights activism are enormous.  International hu­man rights law and most national human rights protections are directed to the state; it is, in general, the state, not private actors, that is legally responsible for protecting and pro­moting human rights.  In such a context, what does a community do when the land on which it has historically relied is sold by the state to a private owner?  Where can workers turn when the company for which they work provides wages far below those needed for a decent stan­dard of living?  What happens to the future of children who cannot afford the fees charged by pri­vatized education systems?  As the state is “whittled away,” to whom does the individual turn for protection against the impact of the actions and decisions of private actors whose deci­sions may be made thousands of miles away?  How is it possible for a weakened state to hold to account an enterprise that has greater financial resources than it does itself and that can withdraw its investments on a relative whim?  These and numerous other questions aris­ing from the sweeping changes wrought by globalization are posed directly and indirectly in the modules that follow.  

Author: This module is based on a paper prepared by Matthew Craven. 

USING MODULE 2 IN A TRAINING PROGRAM

NOTES