By koldo Casla
It was the moment the UN General Assembly changed the face of international human rights law. Fifty years ago, on December 16 1966, the assembly passed a single resolution containing two new treaties: the International Covenant on Economic, Social and Cultural Rights (ICESCR), covering rights to housing, social security and adequate standards of living, and the International Covenant on Civil and Political Rights (ICCPR), regarding rights to a fair trial, freedom of expression and physical integrity.
Together, these two treaties constitute the core of the international system that protects human rights. Both treaties entered into force a decade later in 1976, only a few weeks apart. And both of them have received approximately the same number of ratifications to this day: 168 for the ICCPR and 164 for the ICESCR. Like all other European countries, the UK is a party to both of them.
Degrees of separation
But there are significant differences between these two treaties. The intention of those who drafted them was to flesh out the 1948 Universal Declaration of Human Rights by making the protection of rights legally binding for states. But considering that the 1948 Universal Declaration contained civil, cultural, economic, political and social rights in a single text, by creating two separate documents it was clear that the drafters wanted to introduce differences between these rights.
While all this happened during the political context of the Cold War, this was not the main reason why different types of human rights were treated differently. Rather, the decision had to do with states’ general preference for a weaker duty to protect their citizens’ economic, social and cultural rights. Countries were willing to proclaim these rights as long as this proclamation did not entail strong accountability mechanisms.
The second difference between the two treaties refers to the clarity and burden of words. Article 2(1) of the ICCPR talks about states’ obligations “to respect and to ensure [civil and political rights] without distinction of any kind”. Yet the same article in the ICESCR uses much more cryptic language about how the compliance of states to the treaty on economic, social and cultural rights will be monitored. It states:
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 realisation of the rights recognised in the present covenant by all appropriate means, including particularly the adoption of legislative measures.
It’s difficult to assess compliance if rights are meant to be “achieved progressively”, or to decide the “appropriateness” of the “means” authorities are making use of. And can we blame governments if they promise “to take steps”, but not just yet?
There are also differences in the ways states who violate these two sets of rights are held to account. When the ICCPR was adopted, it brought with it an independent monitoring body known as the Human Rights Committee.
This had three responsibilities: examining states’ abidance by the treaty approximately every five years; dealing with interstate complaints (although to date this has never been used); and receiving complaints from individuals who consider themselves to be victims of a violation of any of the political and civil rights contained in the ICCPR. A complaint can lead to detailed recommendations on the specific case which countries are expected to implement. To date, 115 countries have let their citizens complain to the UN like this, but the UK is not one of them.
But when it came to economic, social and cultural rights, the ICESCR did not contain anything similar, and this was only partly corrected in 1985 when the UN created a body to periodically assess the general level of enjoyment of these rights in those countries which have ratified the treaty.
All this means that there are three degrees of separation between the two sets of rights: different treaties that states could pick and choose from, different legal wording, and different accountability mechanisms.
An unfortunate hierarchy
Something similar happened in the European context. In 1950, the European Convention on Human Rights was set up with a relatively resourceful European Court of Human Rights devoted essentially to civil and political rights. Then, in 1961, the European Social Charterwas established (and then revised in 1996). This is monitored by the much weaker European Committee of Social Rights.
The impact of this hierarchy in which civil and political rights are given more weight than economic, social and cultural rights is visible at the domestic level, too. In the UK, for example, the very important Human Rights Act 1998 gives judges the means to apply the European Convention on Human Rights, but not the European Social Charter or the ICESCR, although the UK has ratified both treaties.
Half a century since the adoption of the two landmark human rights treaties, it is time to close the gap between human rights.
Independent human rights bodies, scholars and a growing number of practitioners have worked to define the meaning of economic, social and cultural rights and the contours of states’ obligations to uphold them.
Since 2013, individuals in 22 countries, ranging from Argentina to France and Mongolia, can also complain directly to the UN if their economic, social and cultural rights have been violated. This only applies to countries that have ratified the 2008 Optional Protocol to the ICESCR. Unfortunately, the UK is not one of them.
Yet, even in the UK, a minority of the judges in the Supreme Court has accepted that given their nature, some human rights treaties (although not the ICESCR for now) should be “directly enforceable in UK domestic law”, even without an act of parliament.
Half a century ago, human rights were internationalised with some degrees of separation. Luckily, we now have some tools that we lacked at that time – but we need to tell the government to make use of them.