LW331/LW431 Human Rights - Lecture 4 – Friday 10 March 2023

CIVIL AND POLITICAL

RIGHTS/ECONOMIC,
SOCIAL AND CULTURAL
RIGHTS

Dr Morsen Mosses,
Lecturer
USP School of Law
OVERVIEW

 Learning outcomes for the topic

 Civil and political rights

 Economic, social and cultural rights

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LEARNING OUTCOMES

 Discuss the importance of the International Covenant on

Civil and Political Rights (ICCPR), the International
Covenant on Economic, Social and Cultural Rights
(ICESCR) and their Protocols

 Demonstrate a critical understanding of the scope,

structure and contents of the two Covenants

 Distinguish Social and Economic Rights from Civil and

Political Rights

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CIVIL AND POITICAL
RIGHTS/ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
 Introduction
 After 1948, general agreement on translating the substance
of the UDHR into abiding document

 Question: In one instrument? Or arrangement according to

specificities?

 Different views during the cold war. View that prevailed:

Arrangement according to specificities – the implementation
process should not be identical; economic and social rights
partaking more of the nature of goals to be attained;
whereas civil and political rights had to be respected strictly

 This separation has been abandoned in recent decades – the

enjoyment of all human rights is interlinked
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CIVIL AND POITICAL
RIGHTS/ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
 Introduction
 Civil and political rights:
-Restrict the powers of the government in respect of actions
affecting the individual and his or her autonomy (civil rights
and liberties)
-Confer opportunity to people to contribute to the
determination of laws and participate in government (political
rights)

 Economic, social, and cultural rights

-Freedoms, privileges and entitlements that individuals and
communities require to live a life of dignity. They include the
rights to food, housing, health, education, cultural identity…

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CIVIL AND POLITICAL RIGHTS

 Introduction
 ICCPR adopted in 1966 and entered into force in 1976

 The Covenant follows the structure of the UDHR, with a

preamble and 53 articles, divided into 6 parts

 The Optional Protocol to the International Covenant on Civil

and Political Rights deals with ICCPR violations and the
process of individual complains.

 The Second Optional Protocol to the International Covenant

on Civil and Political Rights, aiming at the abolition of the
death penalty (Protocol).

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CIVIL AND POLITICAL RIGHTS
 Substantive part (arts 1-27)
 Art 1: Right to self-determination – Integral element of basic
human rights and fundamental freedoms

 Arts 2-5: General principles, including freedom from

discrimination

 Art 6: Right to life (Undoubtedly the most fundamental of all rights.

All other rights add quality to the life in question and depend on the
preexistence of life itself for their operation. Smith, p.216)

 Art 7: Ban on torture, inhuman or degrading treatment or

punishment

 Art 8: Ban on slavery and forced labor

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CIVIL AND POLITICAL RIGHTS

 Substantive part (arts 1-27) Cont.

 Art 9: Right to liberty and security of person

 Art 10: Treatment of persons deprived of liberty

 Art 11: No imprisonment for failure to perform contractual

duties

 Art 12: Freedom of Movement

 Art 13: Due process for expulsion of aliens

 Art 14-15: Right to a fair trail

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CIVIL AND POLITICAL RIGHTS

 Substantive part (arts 1-27) Cont.

 Art 16: Right to recognition everywhere as a person before
the law (Prohibition of discrimination)

 Art 17: Freedom from interference with privacy, family,

home and correspondence

 Art 18: Freedom of thought, conscience and religion

 Art 19: Freedom of expression

 Art 21: Freedom of assembly

 Art 22: Freedom of association

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CIVIL AND POLITICAL RIGHTS

 Substantive part (arts 1-27) Cont.

 Art 23-24: Family and child protection

 Art 25: Right to political participation

 Art 26: General ban on discrimination

 Art 27: Minorities rights

 Other part (arts 28-53)

 Arts 28-45: Human Rights Committee

 Arts 46-47: Interpretation of ICCPR

 Arts 48-53: Final clauses 10

CIVIL AND POLITICAL RIGHTS
 Rights afforded by the ICCPR can be divided into 5 general groups
(Alston & Goodman, p.160)
 Protection of the individual’s physical integrity, Eg provisions on
torture, arbitrary arrest and arbitrary deprivation of life;

 Procedural fairness when government deprives an individual of

liberty, Eg provisions on arrest, trial procedure and conditions of
imprisonment;

 Equal protection norms defined in racial, religious, gender and

other terms;

 Freedoms of belief, speech and association, Eg provisions on

political advocacy, practice of religion, press freedom, the right to
hold an assembly and form association;
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 The right to political participation.

CIVIL AND POLITICAL RIGHTS
 Other treaties related to civil and political rights
 International Convention on the Elimination of All Forms of
Racial Discrimination 1966 (ICERD)

 Convention on the Elimination of All Forms of

Discrimination against Women 1979 (CEDAW)

 Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment 1984 (CAT)

 Convention on the Rights of the Child 1989…

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ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 Introduction
 ICESCR adopted in 1966 and entered into force in 1976

 The Covenant follows the structure of the UDHR, with a preamble

and 31 articles, divided into 5 parts

 The Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights deals the complain and enquiry
mechanisms

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ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 Part III = Substantive part of the ICESCR
 Art 6-7: The right to work

 Art 8: The right to join and form trade unions

 Art 9: The right to social security

 Art 10: The right to protection of the family

 Art 11: The right to an adequate standard of living, including the

right to food, clothing, and housing

 Art 12: The right to health

 Art 13-14: The right to education

 Art 15: The right to culture 14
ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 Key concepts on ESCRs (see the OHCHR website)
 Are economic, social and cultural rights fundamentally different from
civil and political rights?
 No. Separation in the past during the cold war (West/East). Return
to original architecture of UDHR. In recent decades, Human Rights
Treaties have integrated all rights (Eg Convention on the Rights of
Child or Convention on the rights of persons with Disabilities)

 Economic, social and cultural rights require high level of investment

(financial and human) to ensure full enjoyment. Civil and political
rights also require investment for their realization (infrastructures
such as a functioning court system, minimum living conditions for
prisoners, free and fair elections…)

 In reality, the enjoyment of all human rights is interlinked – Harder

for individuals who cannot read and write to find work, participate
in political activity and exercise their freedom of expression… 15
ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 Key concepts on ESCRs (see the OHCHR website)
 Can each of us claim economic, social and cultural rights?
 Yes. ESCRs are, like other human rights, the birth right of every
human being. Examples of individuals denied their ESCRs: A
child excluded from primary school because of school fees, a
woman paid less than her male colleague for the same work, a
person in a wheelchair unable to enter a theatre because there is
no ramp…

 ESCRs may have a collective dimension (forced evictions, cultural

rights…), but they are also individual rights (right to adequate
housing…)

 ESCRs usually require collective public effort to ensure

progressive realization
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ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 Key concepts on ESCRs (see the OHCHR website)
 What are the obligations of States on economic, social and cultural
rights?
 Central aspect of States’ obligations – to take appropriate
measures towards the full realization of ESCRs.

 States are required to take steps to the maximum of their available

resources to achieve progressively the full realization of ESCRs
(art 2(1) of ICESCR)

 States are also required to take immediate action – Eg to

guarantee the enjoyment of ESCRs without discrimination

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ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 Key concepts on ESCRs (see the OHCHR website)
 What are examples of violations of economic, social and cultural
rights?
 A violation of ESCRs occurs when a State fails in its obligations to
ensure that they are enjoyed without discrimination or in its
obligation to respect, protect and fulfil them

 A few examples:
-Contamination of water, for example with waste from State-owned
facilities (right to health)
-Systematically segregating children with disabilities from
mainstream schools (right to education)
-Failure to prevent employers from discrimination in recruitment
(based on sex, disability, race, political opinion, social origin, HIV
status…) (right to work)…

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ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 Can economic, social and cultural rights be litigated at courts?
 Yes. Decisions of courts in many countries demonstrate that these
rights can be subject to judicial enforcement

 Nonetheless, the justiciability of ESCRs has traditionally been

questioned for a number reasons:
-ESCRs seen as too vaguely worded to allow judges to justify decisions
on whether violations have occurred (Eg What constitutes adequate
housing? fair wage?...) – But, filling the gaps in legislation is a function
of the judiciary
-The realization of ESCRs depends on government policies – It is the
function of the judiciary to ensure that the policies are consistent with
the constitutional principles and obligations under international
human rights law
-Monitoring progressive realization of ESCRs can rely on several
mechanisms including the court
= Judicial enforcement of human rights is fundamental (a right without 19

a remedy raises questions of whether it is in fact a right)