Indivisible Human Rights
Daniel J. Whelan
2010 | 328 pages | Cloth $59.95
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Table of Contents
Chapter 1. Indivisible, Interdependent, and Interrelated Human Rights
Chapter 2. Antecedents of the Universal Declaration
Chapter 3. International Guarantees and State Responsibility before the Universal Declaration
Chapter 4. From Declaration to Covenant
Chapter 5. Including Economic, Social, and Cultural Rights
Chapter 6. Division of the Covenant
Chapter 7. Indivisibility as Postcolonial Revisionism: 1952-1968
Chapter 8. Indivisibility as Economic Justice: 1968-1986
Chapter 9. Indivisibility as Restoration: 1986-2009
Chapter 10. Indivisible Human Rights: Past and Future
Appendix: Covenants on Human Rights: Drafting Procedures and Timeline
Excerpt [uncorrected, not for citation]
Indivisible, Interdependent, and Interrelated Human Rights
It is often said that all human rights are "indivisible, interdependent, and interrelated." This tripartite formulation is taken as given. In recent years, the United Nations has boldly declared that the indivisibility, interdependency, and interrelatedness of human rights is "beyond dispute." This is an interesting claim, considering that this book explores the unsettled and contested nature of the indivisibility of especially the two grand categories of civil and political, and economic, social, and cultural rights. Even if indivisibility is not beyond dispute, many continue to ascribe indivisibility, interdependency, and interrelatedness to the nature or character of contemporary human rights, as if this were entirely self-evident. For the U.N. as well as others, declaring the matter settled should prompt us to inquire: What was settled? How was it settled?
When used to describe the qualities or characteristics of human rights, the adjectives "indivisible," "interrelated," and "interdependent" usually come as a package (along with "universal"), or the separate words are used interchangeably. This is widely reflected in the scholarly literature, writings of human rights advocates and practitioners, and authoritative interpretations especially surrounding the content and obligations of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Craig Scott urges us not to pay too much attention to semantics when we consider the different meanings that the terms "indivisible," "interdependent," and "interrelated" may convey. I think we should ignore this advice, because a great deal of confusion persists about what these adjectives tell us about human rights. While the statement "human rights are indivisible, interdependent, and interrelated" seems to be the answer to a question, it is unclear what that question is. Do these adjectives say something about how human rights function, or what they mean conceptually? Do they tell us something about the historical development of contemporary human rights? Do they say something about the politics of human rights? Do these adjectives convey real meaning, or are they merely symbolic?
I liken the package of indivisible, interdependent, and interrelated human rights to the box of wires in my closet. I need an extension cord, so I go to my box, and hunt for one. I find one, but upon attempting to retrieve it, I pull up a mass of wires: my extension cord is intertwined with telephone cords, TV cable, speaker wires, audio cables, other extension cords, and a surge protector. After struggling to free my extension cord, I throw the tangled mass back into the box, thinking to myself that I really should clean up that mess sometime soon. This book attempts to undertake just such a task and bring some sense of clarity to the box of wires that is indivisible, interdependent, and interrelated human rights.
The first thing we can say with some confidence is that these concepts are centrally concerned about the relationships between the two grand categories of civil and political, and economic, social, and cultural rights. Even more than that, these adjectives are used most often in relation to the status, importance, or equality of economic and social rights vis-à-vis civil and political rights. Interestingly enough, while the terms "interdependent" and "interconnected" were used (but not often) during to the drafting of the 1948 Universal Declaration of Human Rights, the word "indivisible" was not. That term first emerged in the early 1950s, during the most fascinating period in the normative development of contemporary human rights at the U.N.—the drafting of first one, then the two Covenants on Human Rights that together with the Universal Declaration make up the International Bill of Rights. During those debates, the concept of indivisibility underwent a subtle but important transformation. While it began as a strong descriptive adjective relating to the fundamental unity of the rights in the Universal Declaration, it quickly became a rhetoric for postcolonial aspirations. That rhetoric deepened during the 1960s and 1970s, when it was deployed as a revisionist view of human rights, prioritizing economic, social, and cultural rights over civil and political rights, indispensable and inextricably linked to a variety of agendas of great importance to the developing world. Not until the 1990s did the rhetoric of indivisibility shift again. It was recast to include interdependency and interrelatedness in a rhetoric of restoration of the spirit of the fundamental unity (or, some might say, organic unity) of the rights contained in the 1948 Universal Declaration of Human Rights. I say "underlying" because the Universal Declaration barely categorizes rights and says not a word about fundamental or organic unity, indivisibility, interdependency, or interrelatedness.
Words can convey meaning, or they can be used to obscure. How might one begin to define these terms? Oddly enough, the U.N. itself has never actually defined indivisibility, interdependency, or interrelatedness (perhaps we should not be surprised—after all, this is "beyond dispute"!). But we should start somewhere. I begin with the premise that these adjectives actually do convey some distinct meanings about human rights. I would like to first separate "interdependent" and "interrelated" from "indivisible." The prefix "inter-" means "between," whereas "in-" means "not." I begin first with (inter)dependency and (inter)relatedness, and then turn to (in)divisibility.
This is perhaps the least problematic aspect of our tripartite formulation. In the legal and policy-oriented literature on human rights, it predominates. To say that rights are interdependent despite their distinctiveness as particular rights means that the enjoyment of any right or group of rights requires enjoyment of others—which may or may not be part of the same category. For example, freedom of movement (a civil right) is a necessary precondition for the exercise of other civil rights (such as freedom of assembly), political rights (e.g., the right to vote), economic rights (the right to work, for example), and so forth. The language of interdependency accepts division and categorization and does not seek to overcome or ameliorate it. It takes rights as they are categorized. It is, in this sense, transcendent of categories. And despite the fact that these relationships may actually be dependent (not interdependent), we still speak of interdependency.
Some interesting conceptual work demonstrating the interdependencies between rights has sought to demonstrate the importance of supporting relationships between rights, as an instance of a grander, overall epistemology of human rights. However, as James Nickel has recently noted, "Looking at relations between particular rights is illuminating and cannot be avoided, but fully realizing this perspective requires much tedious work. If there are 40 particular human rights then combining them in pairs will yield 1560 places where supporting relations may exist. Maximal penetration comes at the cost of great complication."
What Nickel offers instead is an account of what he calls indivisibility (but which I would call interdependency) that is based on looking at families of rights, rather than individual rights and their interdependencies. The interdependence of human rights is, to my mind, relatively unproblematic, if we assume that a right to something or to be free from something is, as a right, justiciable. It becomes more problematic when one or more of the rights that are thought to be interdependent are not necessarily justiciable.
That rights are interrelated means that they are brought into a situation of mutual relationship or connectedness (indeed, early UN resolutions used the term "interconnected" instead of "interrelated"). Whereas interdependency is best suited for looking at relationships between particular rights or clusters of rights, interrelatedness has more purchase between broader categories or families of rights, as they are enumerated and expressed in multilateral treaties with a variety of monitoring institutions attached to them. One author describes interrelatedness (although he uses the term "interdependence") as permeability between categories of rights. Relatedness suggests familiarity; thus the grand categories of human rights may be thought of as interrelated insofar as their legal foundations (like the Covenants) are similar. As part of the compromise in the early 1950s over the Covenants, for example, René Cassin of France insisted that the two covenants have "as many similar provisions as possible." Thus one notices the identical preambles of the two Covenants and the inclusion of a right to self-determination in both instruments. Thus, human rights can be said to be interrelated insofar as they share common characteristics—their provenance from U.N. bodies, their legal character as treaties, that state limitations and obligations are expressed or implied, and so forth.
A significant portion of the "indivisibility and interdependence" literature of the late 1980s and 1990s emerged to explore what I am calling here the question of interrelatedness. Among the key differences between the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR are the implementation and reporting obligations of states, the scope of monitoring authority held by the oversight committees for each, and the competency of those committees and other U.N. bodies to handle complaints. This literature emerged as a result of the creation of a formal committee to oversee the implementation of the ICESCR, with similar powers and responsibilities as those of the Human Rights Committee, which monitors states-parties implementation of the ICCPR. This was an important step in the evolution of the international law of economic, social, and cultural rights, the monitoring of which would now be under the direction of an international body with international-legal characteristics. Most of this emerging literature was focused primarily on establishing and strengthening the claim that economic, social, and cultural rights were rights in the same sense as civil and political rights (i.e., that their recognition, protection, and promotion are properly the subject of international law), and that while the obligations on states-parties to the ICESCR are different from those to the ICCPR, they are obligations nonetheless. Philip Alston, who was the first Chairperson of the Committee, wrote that although the concept of economic, social, and cultural rights—as well as human rights generally—had generated controversy among philosophers for some time, the controversy should have been put to rest by the adoption of these legally binding treaties in 1966.
The literature analyzing state obligations created by the ICESCR was necessary in order to then make comparisons with the obligations within the ICCPR—obligations that were never really disputed because they were considered widely to have immediate effect. Much of the focus of this literature has been interpretive, especially of the implementation clause (Article 2 (1)) of the ICESCR, which reads: "Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."
The sheer volume of material written about this one paragraph reflects the extent to which it is open to a wide range of interpretations on the part of states. Due to the pervasive assumption that economic, social, and cultural rights require direct provision of resources by the state, one writer noted that the "maximum available resources" clause causes immense confusion: "It is a difficult phrase—two warring adjectives describing an undefined noun. 'Maximum' stands for idealism; 'available' stands for reality. 'Maximum' is the sword of human rights rhetoric; 'available' is the wiggle room for the state." Scholars and advocates have devoted equal attention to exploring and interpreting the meaning of "taking steps"; the role of (especially technical) cooperation; "progressive achievement"; and the content of "all appropriate means." The aim of this literature is to demonstrate that economic, social, and cultural rights are really rights. Thus, the language of interrelatedness demonstrates equality of importance or legitimacy of economic, social, and cultural rights in relation to civil and political rights.
The concept of interrelatedness, in my view, is really about how human rights have been expressed institutionally. This is most evident in the evolution of institutions to promote economic, social, and cultural rights that are similar to those for civil and political rights, despite the differences between the two different regimes. The latest development in this evolution is the U.N. General Assembly's adoption, after nearly twenty years of advocacy and negotiation, of an Optional Protocol to the ICESCR that will allow the Committee on Economic, Social and Cultural Rights to adjudicate state-to-state complaints, receive individual and collective complaints, and initiate inquiries into alleged violations of the Covenant. This move toward greater institutional interrelatedness, in the minds of many advocates, has symbolic value as well, bringing economic, social and cultural rights one step closer to indivisibility of the two grand categories of human rights.
THE RHETORIC OF INDIVISIBILITY
We are left now with indivisibility—the meaning of which in this tripartite formulation is the most difficult to pin down, because it carries significant conceptual and symbolic weight. The word itself—meaning "incapable of being divided, in reality or thought"—conjures powerful symbolic imagery—or even articles of faith. Consider Catholics' belief in the indivisibility of the Holy Trinity—God the Father, the Son, and the Holy Spirit. The American pledge of allegiance declares that Americans constitute "one nation…indivisible." For Hobbes, the awesomeness of the sovereign emanated from the indivisibility of his sovereignty. While the words "interdependent" and "interrelated" suggest the bringing together of two or more things into a mutual harmony, they still acknowledge separateness. If something is indivisible, dividing that thing renders it impotent. The claim that the two grand categories of human rights are indivisible—which is the subject of this book—carries no less symbolic meaning. But this powerful rhetoric has shifted and evolved over time.
The rhetoric of indivisibility first emerged during the late 1940s and early 1950s, when the United Nations was engaged in deeply serious debates about how to codify the rights (expressed as principles) contained in the Universal Declaration of Human Rights into binding international law. At first, it was the intention of the U.N. Commission on Human Rights to include only civil rights in the Covenant contemplated by the original "international bill of rights" plan. The Commission intended then to draft further Conventions and additional instruments on other categories of rights once the U.N. had adopted the Covenant. Before this could happen, the General Assembly requested that the Covenant include economic, social, and cultural rights alongside the already drafted civil rights. The Commission drafted these articles and separate implementation measures for them in 1951. The following year, after significant debate, the General Assembly modified its earlier decision, requesting the Commission on Human Rights to draft two separate human rights Covenants: one covering civil and political rights; the other, economic, social, and cultural rights.
During these debates, those countries that lobbied for a single legally binding covenant including both categories of human rights were particularly concerned about two things: First, if the Covenant did not include economic, social, and cultural rights, they would never be expressed in a binding treaty. Second, they wanted the West to give as much attention to the cause of securing economic, social, and cultural rights as they did to civil rights, by insisting that their ability to meet their national obligations required a guarantee of international development resources from the West as the postcolonial era was just getting under way. However, a number of other postcolonial states, such as India, also recognized that economic, social, and cultural rights were still individual rights, and that governments of postcolonial states—not the international community—would be primarily responsible for their implementation. It was during these contentious debates over the inclusion, drafting, and division of the Covenant—as I recount in Chapters 4, 5, and 6—that the seeds of the rhetoric of indivisibility were planted.
As I show in Chapters 7 and 8, the rhetoric of indivisibility began to shift significantly from the mid-1950s until the early 1980s. With the division of the Covenants a reality, the rhetoric of indivisibility became revisionist—that economic, social, and cultural rights were indispensable to broader international policy goals especially of postcolonial states in Latin America, the Middle East, Asia, and (later) Africa. In the mid-1950s, economic and social rights became a rhetorical touchstone for a move to include a right of self-determination of peoples as a human right in both Covenants. By the early 1960s, ending colonialism and colonialist practices—such as racism and apartheid—became core human rights issues. By 1968, when the international community met for its first International Conference on Human Rights and into the 1970s, this revisionism settled on a new formula of indivisibility: that the realization of economic, social, and cultural rights had priority over civil and political rights. This was first reflected in the Proclamation of Teheran, issued at the close of the 1968 International Conference on Human Rights: "Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development."
By the late 1970s—after the Covenants had entered into force—the United Nations brought a whole host of global issues under the umbrella of human rights, including the "unjust international economic order," the proliferation of arms, continuing colonialism and imperialism, and the problems of underdevelopment and global poverty. The indivisibility rhetoric first articulated at Teheran was institutionalized further, clearly prioritizing economic, social, and cultural rights in terms of these other global concerns, beginning with General Assembly Resolution 32/130 (1977) and eventually leading to the 1986 "Declaration on the Right to Development," which was declared as an inalienable human right, an indivisible and interdependent part of international human rights.
As Chapter 9 illustrates, by the time of the World Conference on Human Rights in 1993, the end of the Cold War, the further development of the U.N. human rights machinery, a newly emerging scholarship on human rights, and a dramatic increase in the number of civil society organizations dealing with human rights, a third rhetoric of indivisibility emerged, that of restoration. Consider the following from the Vienna Declaration: "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms."
On close reading, one is struck by how dramatically different the idea of indivisibility is reflected in the Proclamation of Teheran and the Vienna Declaration. The Proclamation uses the sole term "indivisible" in the strongest sense: that choosing civil and political rights and ignoring economic, social, and cultural rights renders the enjoyment of the former impossible. The following sentence further contends that economic and social development are prerequisites for the realization of human rights—which, given the wording, suggests a privileging of economic, social, and cultural rights over civil and political rights.
In contrast, the Vienna Declaration introduces the more familiar, quadripartite formulation of universal, indivisible, interdependent and interrelated rights—a formulation that is now standard fare in official U.N. documents and widely used by scholars, advocates, and practitioners. But there are two emphases here: one is about the equality of different categories of rights as rights (note that it does not mention "civil and political" and "economic, social, and cultural" by name); the second is about the nature of obligations on states—that they are universal despite differences or particularities between states. These are but two small examples of the different meanings and contexts that indivisible human rights bear. The 1968 Proclamation subtly reflects U.N. politics on the question of international development at the time. By 1993, the emphasis seems to have shifted to the universal nature of human rights and state obligations—an important move that will open a door for some scholars and advocates to begin to identify violations of economic, social, and cultural rights.
This recent theme of indivisibility as restoration compels us to begin our investigation with the direct ancestors of the Universal Declaration of Human Rights. The rhetoric of restoration is about restoring the organic unity of the Universal Declaration itself—a unity that was compromised by the division of rights into separate conventions. While I do not recount the drafting history of the Universal Declaration of Human Rights, Chapters 2 and 3 do explore the ancestry of the Declaration—the numerous proposals and drafts prepared by a variety of civil society organizations, and agencies within the U.S. federal government during World War II. Those were influenced by other bills of rights and declarations whose genealogy extends back before World War I. These are worth exploring in detail, as they shed some light on the ways in which civil, political, economic, and social rights came to be integrated within general ideas about a bill of rights that might be drafted as part of the postwar order (as the Universal Declaration and the Covenants would become). My examination reveals the reasoning of early human rights advocates, not just about what should be included in a bill of rights, but more important, how those rights should be guaranteed, protected, and promoted. This is especially enlightening when we see how these early visionaries conceived of economic and social rights and the balance between the state and the market that would have to be struck for those rights to be realized at the level of the state. This is the focus of Chapter 2. Chapter 3 explores the international dimensions of these bills of rights.
When these advocates decided to include economic and social rights along with civil and political rights in their draft declarations and bills, they were not compelled to invoke the language of indivisibility, or even unity. They found that concept embedded within the very notion of the obligations and duties of modern states, properly defined. This is where my investigation begins, and the point to which it returns in the conclusion.
A WORD ON SOURCES AND MATERIALS
The methods I use here were largely inspired by Johannes Morsink's landmark work on the drafting of the Universal Declaration. This book makes extensive use of original U.N. documents, including summary records of meetings of the General Assembly, its Third Committee (on Social, Humanitarian, and Cultural Affairs), the Economic and Social Council, and the Commission on Human Rights. I also looked closely at the travaux préparatoires of significant General Assembly resolutions, draft articles in the human rights Covenants, proposals for measures of implementation and monitoring, and so forth.
Because this kind of work has so often been missing from the literature on contemporary human rights, and because I believe it is important to understand the subtleties and nuances that are part and parcel of the history of indivisibility, I have made this material available on my Web site, at http://www.hendrix.edu/politics/politics.aspx?id=43640. Prompts to those materials appear in the notes from each chapter as well.
Finally, readers who are not familiar with the flow of work through the U.N. system might find the Appendix useful, especially while reading Chapters 4, 5, and 6.