Universal Declaration of Human Rights(UDHR) was adopted on 10th of December 1948 by General Assembly resolution 217(III).it includes civil and political rights, economic, social,
Cultural and group rights. There are quests to transform the declaration to legally binding documents, United Nations eventually adopted the two covenants, that is International covenant on civil and political rights (ICCPR) and International covenant on economic, social and cultural rights (ICESCR) in two separate instruments. The reason for the separate covenants was clearer in different arguments by scholars. In the course of two streams of arguments on whether economic and social rights received United States and western allies support or not was highly polarised that US and Western allies advocated for two separate documents while the desire for single document for both economic and political rights were from USSR and developing counties and when there was need for agreement on both sides during the cold war, US therefore advocated for ‘signature of two separate covenants to allay many fear that division of the Covenant might prioritize civil and political rights over economic, social and cultural rights.’It indicates that many countries were against proliferation of the covenants while US and allies supported the separation because a single document was then against its capitalist policy, federalism and US stakeholders support, the motion was moved by USA and its interest hold sway, the covenants were proliferated. As a result, human rights were classified into three sub division; the ‘first generation’ rights known as civil and political rights while the ‘second generation’ rights are economic, social and cultural rights and ‘group rights’ as ‘third generation rights’.But USA till now has not incorporated the covenants in its national law. ICCPR and ICESCR will be adumbrated by juxtaposing them with other bill of rights.
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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
The preamble of the covenant which was adopted in 1966 but ratified and came into force in 1976 acknowledged that the state parties to the covenants consider principles in the charter of the UN and recognized the civil and political rights in Universal Declaration of Human Rights(UDHR) and duties of individual to other individuals and community.it can be said that this covenant has its foundation in Universal Declaration of Human Rights and UN charter .Currently, there are 165 state parties and 72 signatories to the ICCPR , 113 states are also parties to the First Optional Protocol to the ICCPR..The Second Optional Protocol on abolition of death penalty was adopted for ratification in 1989 and came into force in 1991 with 71 state parties. The Covenant can be divided into a preamble and six parts, Part I -III (Articles 1 to 28) constitutes civil and political rights comparable to European and American conventions on Human Rights and African Charter on Human and Peoples’ rights and majority of these are ‘negative’ rights and briefly they are, the right to self determination,the right to life ,freedom from torture ,degrading treatment freedom from slavery and slave trade ,right to liberty and security,the right of detained persons,freedom from imprisonment from debt, freedom of movement and choice of residence,freedom of aliens from arbitrary expulsion ,right to fair trial ,Prohibition against retroactivity of criminal law ,right to recognition everywhere as a person before the law ,right to privacy, right of freedom of thought, conscience and religion, right of opinion and expression ,prohibition of propaganda for war and of incitement to national, racial or religious hatred ,right to peaceful assembly, freedom of association ,right to marry and found a family,rights of the child, political rights,equality before the law,right of person belonging to the minorities.Part IV to VI(Articles 28 to 53) contains monitoring provisions, interpretation and final clauses. The First optional protocol has 14 articles with nexus to procedures on individual complaints while second optional protocol basically amended the right to life in article 6 of ICCPR.
A cursory look at the rights shows they were copied from UDHR in order to develop it from ‘soft law’ to ‘hard law’ even the ones without nexus to it could be traced to other regional human rights, for emphasis, civil and political rights are in UDHR articles 2 to 21 while Articles 22 to 27 contains economic, social and cultural rights .ICCPR unlike Article 17 UDHR and ECHR first protocol did not however cover ‘protection to the right to property’, it also did not contain rights to nationality and asylum. UDHR is normative declaration and statement of guidance in observance of human rights universally while ICCPR and ICESCR are legally binding instrument on the basis of the principle of pacta ,sunt servanda .it confers obligation on the parties because it arises from treaty. The advantage of UDHR is that all human rights and covenants relied on it and copied copiously from it, for example civil and political rights copied from, articles 3,4,5,6,9,10 etc; economic and social rights also copied from articles 22,23,24,25,26,and 27,importantly,
ICCPR is the most comprehensive and well established UN treaty on civil and political rights.ICCPR and UDHR both share similarity by setting universal standard with the use of word ‘everyone’ ‘no one’ ‘all people’, ‘all human beings’. ICCPR nature as a ‘general and universal human rights treaty, most of its rights apply to every human being’. Article 2(1) of ICCPR disallow any discrimination in the application of the rights, however, some of the rights are applicable only to certain categories of people like Article 6(5) restriction on death penalty is applicable only to pregnant woman and under 18 years of age. Article 27 is applicable only to ethnic, religious and linguistic minorities. Article 12 on freedom of movement is applicable to lawful residents and not illegal immigrant. Article 25 on political rights is exclusive to citizens; Article 13 on lawful redress against expression is for alien. Article 24 is for children. Political rights in article 25 are not for alien but for citizens. The benefit of Article 14(2) and (3) is for those charged with criminal offences.
A keen observation shows that some rights are more detailed in the covenant while some are in general terms, for example Article 6,9,10, and 14(restriction) are detailed while others are generally mentioned. Other treaties however provided detailed provisions of the generally termed rights in ICCPR, for example, UN Conventions on Discrimination against Women, the Convention on the Right of the Child, Convention against Genocide, Torture, Racial Discrimination and Declaration on Elimination of Belief or Religious Intolerance. Convention on the Rights of Person with Disabilities, International Convention for the Protection of all Persons from Enforced Disappearance.All these have generated civil and political rights into details. Most importantly however, Section 40(4) enables Human Rights Committees to comment while transmitting its report and by this explain the meaning of the rights under the covenant. Importantly, Article 2(1) talked about ‘positive character’ of civil and political rights ‘it means, as in the case of economic, social and cultural rights, that states parties must take positive steps to give effect to the covenant rights and to enable individuals to enjoy their rights’.Some covenants on human rights are not without enforcement mechanism which is common in report system; whereby state parties submit report on the implementation of the rights in the covenant.Human Right Committee (HRC) has the monitoring task ascribed to it by article 28 of ICCPR to ensure compliance of state parties to their obligations and examine state reports in accordance to Article 40.It has inter-state and individual complaints procedure and this the committee has developed ‘far beyond the narrow limit of their legal framework’ due to its independent membership. The committee however lack power of forceful enforcement but only has persuasive enforcement power in term of submission of reports per time by state parties since they have obligation under Article 2(1) to respect and observe the covenanted rights.
ICCPR substantive rights can be analysed further and in relation to incorporation of same in states’ national laws, many state parties had incorporated ICCPR in their national law and allow its invocation in national courts save countries like Australia, Canada, UK , USA and few othershowever, that does not mean ICCPR is not binding on these countries. Right to life in Article 6 is about ‘arbitrary deprivation of life’ and not about ‘absolute prohibition of taking life’.In Guerreno V Columbia, where national law authorized killing by police on national interest. HRC found that national legislation could not justify Columbian police action of taking life ‘arbitrarily’. In regards to the Socio Economic aspects of Article 6, right to life must not be seen in narrow perspective, right to life can also be deprived by hunger, diseases, malnutrition and epidemics .HRC confirmed that article 6 has an aspects of socio economic rights and many people died of these than being killed, it is submitted that death can be a result of absence of implementation of social and economic interest in ICESR. It is encouraging that HRC has addressed ‘socio-economic aspects of Article 6′ which optional protocol lack ‘mechanism’ for its redress. HRC cited war, armed conflict and abortion of foetus as threat to life. Article 7 disallows torture, inhuman and degrading treatment ,and complemented by Article 10 which disallow a lesser treatment than that disallowed in Article 7.The article was expanded in scope by UN Convention Against Torture(CAT)1984.The act must be ‘malevolent and required public official as perpetrator’ of it by consent as CAT committee agreed with the author in Dzemajl et al V Yugoslavia as well as HRC in Francis V Jamaica.It is submitted that torture can be a result of social and economic deprivation like lack of housing facilities and gainful employment can cause people to sleep on the floor under the bridge which constitute torture. Also, solitary imprisonments without medical attention constitute torture. Few of the rights discussed though constitute civil and political rights, nevertheless has economic and social interest and this is applicable to almost all civil and political rights, therefore, concern must also be given to economic and social rights as well.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
The covenant was adopted alongside ICCPR to develop UDHR rights, it contains ‘second generation’ rights. it was opened for signature in 1966.it came into force in 1976 with 155 States as parties as at January 2007.During the cold war, western countries showed preference for political and civil rights while socialist states became sponsors of economic,
Social and cultural rights.ICESR covenant with new optional protocol has preamble that is similar to ICCPR that is, ‘founded on the inherent dignity of the human person’. it also has five parts, Part I of the covenant is solely on Article 1,which on right of all people to self determination with free right to pursue economic, social and cultural development and right to deal freely with their natural resources and wealth. Part II of the covenant in Article 2 to 5 states obligations and clauses that are applicable to Part III generally. Part III constitutes substantive provisions, what Cravens called ‘the heart of the covenant’
includes, the right to work,the right of fair condition of employment, the right to join and
form trade unions, the right to social securities, the right to protection of family
right to adequate standard of living, the right to health, right to education, and the right to culture and enjoyment of scientific progress .Part IV is about system of supervision by submission of periodic report to UN ,the reports which will be scrutinized by economic and social council of the UN (ECOSOC).The part also contain ‘saving clause’ with intention of ensuring developed states did not interfere excessively by means of the supervisory system in the utilization of natural resources within developing countries’.Part V is on ratification ,process of amendment ,its application to federal ,states ‘without any limitations or exceptions’and its entry into forceSome of the article of the covenant are
recognised in other international convention like Convention on the Rights of Child(1989),Convention on the Elimination of all Forms of Racial Discrimination(1965) e.t.c. The supervision of the covenant by virtues of Articles 16 and 17 is by Economic and Social Council (ECOSOC), one of the UN organs, states send their report to the Secretary General of UN, who will in turn transmit the report to ECOSOC for consideration. ECOSOC in 1985 created a new body to assist in report consideration, the body is the Committee on Economic, Social and Cultural Rights, now the main supervisory body.
ICCPR, ICESCR AND PROTECTION
Preamble of both covenants indicates they are both Civil and Political rights as well as economic, social and cultural rights. The two covenants are like a coin with two sides.
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The 1993 Vienna declaration of programme of action recognised the ‘interdependence’ and interrelationship of both covenants. Both covenants contribute to the erga omnes principle and care must be taken trying to classify rights into ‘superior’ or ‘inferior’, in hierarchical terms so as not to affect the credibility of human rights.Both covenant codified in treaty form the rights in UDHR. Parties can not terminates both covenants once ratified, it is an obligation that can not be denounced because they have no temporary nature.Both covenants believe in ‘collective right to self determination’, the right allows ‘all people to freely determine their political status and freely pursue their economic, social and cultural development’and both instruments are legally binding and they are treaties that must be respected. Both instruments copied copiously from UDHR and both rights are product of cold war era between USSR and its allies and USA and its allies. Universal language and terms are in the two covenants, UDHR shows the interdependency of the covenants before they were separated and made binding treaties. The compactness and interdependency still reflects in their articles, for example, rights to form Trade Union in ICESCR is recognised as freedom of association by ICCPR, Article 13 of ICESCR deal with education and liberty of parents to choose school for their children can be seen in Article 18 of ICCPR right of parents to choose religion and moral education of their child; Article 2 and 26 deal with prohibition of same discriminations and both recognise family
They are interrelated to the extent that one will be miserable without the other covenant.
The difference between the two covenants can first be seen in both covenants Artcle2 (1)
of ICCPR is assertive while Article 2(1) of ICESCR is passive .ICESCR is subject to the ‘maximum of its available resources’ and ‘with a view to achieving progressively’ while
ICCPR put it that state parties ‘undertakes to respect and ensure’ compliance. The language in ICESR has been criticised ‘for devoid of meaningful content and only impose ‘programmatic’ obligations upon government’. ‘The tenor of the economic covenant is promotional rather than mandatory, the covenant is designed to promote economic and social welfare, not to hinder it by placing states under obligations, that prevent widespread economic and social reform’The enforcement machinery of ICESC is not as strong as that of ICCPR, State party under ICESC is to submit report every five years to the committee on economic, social and cultural rights(CESCR)with the aim of achieving same purpose as human right committee of ICCPR but of which the outcome of CESCR has been more ‘political’ than ‘legal exercises’Unlike ICCPR,ICESCR has no right of individual petition because the intention of ICESCR is not to interfere with ‘State Control’ over citizen and non citizen at the same pedigree as ICCPR.HRC according to article 40 of ICCPR, is the only mandatory monitoring procedure that the covenant established, it received report at the first year of its entry into force and subsequently in accordance to committee requests. Their report is publicly examined, the inter state procedure is not better than mediation and conciliation procedure and committee can only express its view on this basis which may not be accepted by state party, and Parties to First Optional Protocol had submitted themselves to the jurisdiction of Human Rights Committee, in ‘practice, a total of 844 individual communication relating to 59 states have so far been dealt with by the committee of which 248 were declared inadmissible and 308 were decided on their merits by so called final views under Article 5(4)of the optional protocol’.
‘Decisions are neither legally binding nor politically enforceable’ and by implication, compliance are left at the mercy of relevant state organs for adoption of the committee’s recommendations which based its decisions on written submission of parties before it.
SHOULD HUMAN RIGHTS BE PRIMARILY CIVIL AND POLITICAL ALONE?
The two rights are sacrosanct to balanced protection of human rights since the two
Covenants are interrelated; therefore one must not be neglected at the expense of the other. The juxtaposition of both covenants above shows that they are interwoven and interdependent, though this has been criticised as a compromise after the failure to equate ICESR with ICCPR which is not true. it is submitted that the foundation of both covenants made them equal but the cold war separated them and classified them into ‘generations of rights’ if ICESR had been considered with ICCPR as a single document, it would have been ‘ first generation rights’ as well, after all UDHR never desire the instrumental divorce.
It has been argued at one extreme that economic and social rights are superior to civil and political in hierarchical standard of value, the argument well founded, for example, what essence is the political rights to an illiterate who doesn’t know his right? Economic and social right can correct this. Again, what essence is freedom of speech and expression to an hungry man? Economic and Social rights like right to work and right to food or standard of living can solve this. Displaced and homeless will only understand freedom of association as avenue for crime. it is therefore submitted that total deficiency of social and economic interest will lead to counter productivity of civil and political freedom. if Social and economic interest are deficient in mass and free civil or political will society, it will eventually hamper the latter. Hunger, Homelessness, economic frustration can cause violence and breach of civil and political rights, the civil and political problems in Rwanda, Somalia and Niger Delta in Nigeria were due to social and economic imbalance that ICESR can address for peace to reign. Economic and Social interest are instrumental to societal peace. Should human rights therefore be concerned primarily with protection of civil and political rights? The analysis above answers the question, the two covenants are contiguously related and where they are not, they complement each other. The argument of critics against economic and social interest can be summarised and dismissed as follow. That civil and political right has binding obligation language whereas economic and social right has passive and ‘progressive achievement’.One may partially agree with this but law is not static, it has progressive formation of a binding nature, it only allow state party to have assessment of resources for steady implementation. Another criticism is that to observe civil and political rights, state party has to abstain from doing act against the rights and these are ‘negative rights’ whereas state party has to intervene to observe economic and social rights and this makes it ‘positive rights’. One may rightly say here that some civil and political rights required prompt intervention too like economic and social right. It has been argued that civil and political right are easier to implement because of little resources required while economic and social right required substantial resources for implementation. it is submitted that resources wasted in political right alone is enough to take care of economic and social interest, especially in developing countries, resources wasted on rigged election, bribery and corruption on political reasons and payment of political office holders is enough to fix economic and social interests. it is submitted that political rights in expression through democracy, is the most expensive rights in the world. ICESCR was criticised further that it lacked enforcement mechanism and that the content of the right is not as authoritative as ICCPR. Argument premised on ICCPR Inter state and individual procedures of complaints while that of ICESCR is weak. This problem has received the attention of UN General Assembly when on 18 June 2008, HRC adopted Optional Protocol on Economic, Social and Cultural Rights and 10 December 2008,UN adopted it, the optional protocol in its Article 2 provides for Inter State and Individual Complaint Procedure like ICCPR in economic, and social rights Complaints, Article 1 states that CESR can receive communication on breach of economic, social and cultural rights. The protocol was opened for signature in September 2009; this is a primary focus on economic and social interests. State membership and cooperation with International Organisations are making them to protect and promote indirectly and directly Economic, Social and Cultural rights, organisations like UNDP, UNICEF and specialised agencies like IMF .ILO,UNESCO and few NGO in cooperation with chapter IX of UN charter.
The school of thought that believes that the two covenants are interrelated and interconnected is the best. Most Articles in ICCPR has economic and or social interest, Primary concern for civil and political rights only will collapse the rights itself. ICESCR is no longer weak in its enforcement with September 2009 open signature of its Optional Protocol. Giving primary attention to civil and political rights as opposed to economic interest is no longer in compliance with new World economic order, if States can fund political rights via democracy, they must be able to fund economic and social interest, many government of State parties that neglects economic and social interest do fail woefully in civil and political mandates, why? Because economic and political interest falls within primary values encompassing children and family interest and unit of family makes a state .it is high time States began to honour the covenant they entered into 33 years ago (1976) with intention to be bound on pacta sunt servanda principle. The era of its gradual development is gone with 2009.Absence of war or conflict is not an assurance of peace and security but sincere determination in solving economic and social obstacles. Political and civil rights will only exist at the assurance of economic and social interest.
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