Wednesday, 25 August 2010

Second Generation of Human Rights?

Under the auspices of the United Nations, there are two 'types' of human rights:

I) First generation human rights - Civil and Political rights - the right to be free from torture; the right to life; the right to freedom of expression;; the right to be free from persecution for beliefs or views; etc...; and

II) Second generation human rights - Economic, Social and Cultural rights - including the right of gender equality; the right to have the opportunity to work and accept by work freely without force or coercion; the right to fair working terms and conditions; the right to social security and social insurance; the right to adequate living standards ; the right to be free from hunger; the right to education; the right to be in 'the highest attainable standard of physical and mental health'; etc...

Both are as important as each other, for the lack of second generation rights will certainly give rise to certain figures violating first generation rights in order to fully enjoy their interpretation of second generation rights. Both sets of rights are indivisible, interdependent and interrelated. In fact, they are one. Breaches of economic, social and cultural rights are tolerated all too often and fail to provoke the same expressions of horror and outrage when civil and political rights are breached. Evidently, they have enjoyed lesser status, even though human rights are indivisible.

So, the United Nations convened and adopted the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). During the same session, the UN General Assembly adopted the International Covenant on Civil and Political Rights, 1966 (ICCPR).

However, the ICCPRs, an international instrument of law that seeks to protect and promote human rights, as depicted in the Universal Declaration of Human Rights, 1948, has a treaty-body committee that operates a monitoring and enforcement mechanism; albeit in the form of the United Nations Human Rights Council, as well as the Committee on Civil and Political Rights and the Human Rights Committee. ICESCR does not benefit from any human rights related treaty-body that operates within a similar remit of the ICCPRs; it lacks enforcement, monitoring bodies and even a procedure in which individuals or groups can communicate their complaints about violations of their provisions. In effect, the ICESCR is a piece of legislation without teeth, and nothing more.

It has taken the United Nations seventeen years to establish a means in according the ICESCR with a monitoring body, and a mechanism for communicating complaints. Many, many UN sessions have taken place between 1993 and 2003 - under the banner of the Commission of Human Rights; the Human Rights Council; and Economic and Social Council - until the concept of drafting an Optional Protocol was established. Even then, the UN sessions that eventually led to the three sessions (2004, 2005 and 2006 sessions) of the Working Group merely discussed the option to have an Optional Protocol. By 2004, the first session of the Working Group was underway and many obstacles were thrown onto the path of realizing a monitoring body and complaints mechanism to the ICESCR in the form of the Optional Protocol.

On 10 December, 2008, the UN adopted the Optional Protocol to the ICESCR. However, two years on and it has not entered into force. By virtue of Article 18 of the Optional Protocol, it will only enter into force three months after when ten states have ratified it. At present, in 2010, only two states have ratified it and thirty three states have merely signed it. The United Kingdom, United States of America, and Russian Federation have not even signed the Optional Protocol, let alone ratify it. Therein remains the problem - legally, they do not have to, it's "Optional". Thirty-one of the thirty-three states who signed it have not ratified it. Once in force, the Optional Protocol will be another legally binding instrument. None of the states, but two, appear to want such a human rights instrument to become legally binding.

Forty-three years on from the date of its adoption, and its legal protection appears to be 'put on ice'. Why should it have taken so long simply to establish a communications mechanism? Why could not the 'experts' who drafted the ICESCR have considered the need to include some form of an enforcement mechanism for it at the draft stages, when they had done so for the ICCPRs?

There are already issues that have considerably delegitimized the credibility of the Human Rights Council and demonstrated the flaws contained within its Universal Periodic Review; the ICCPRs are struggling to be effectively enforced by the incompetence of the UN. Where, then, does such a farce of so-called procedure leave the status of effectively protecting and enforcing 'second generation human rights'?

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