Whereas the global community is implored to treat all human rights equally and with the same emphasis, to-date, one of the contested areas in the human rights discourse is whether there exists a hierarchical preference for the two major categories of rights, namely; civil and political rights (CP) on one hand and economic, social and cultural (ESC) rights on the other. This divergence traces back to the sharp ideological contradictions prevailing during the Cold War period in the 1940s with the Western powers emphasizing civil and political rights, while the Eastern bloc highlighted the significance of economic, social and cultural rights. Attempts by the Universal Declaration of Human Rights (UDHR) to provide for both categories of rights yielded little. This led to the adoption of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966 to elaborate the two classifications of rights. Collectively, the three instruments are referred to as the International Bill of Human Rights.
To some extent, this separation diffused but did not conclude the tensions. Sohn notes that some states expressed unwillingness to sign the ICESCR because the rights therein largely rely on “a sound national economy.” Unsurprisingly, scholars like Mutua contend that in spite of being widely accepted in international law, the “content and meaning” of economic, social and cultural rights is still comparatively low. This view resonates with Sohn’s assertion that the near unanimous endorsement of the ICCPR demonstrates that civil and political rights reflect human values which have been evolving over the years. The above viewpoints illustrate the unceasing hierarchical debates on the two generations of rights.
In the practical world, economic, social and cultural rights as well as civil and political rights are Siamese twins – intimately linked and inseparable. Their conceptual indivisibility implies that it is impossible to fully realize one category without the enjoyment of the other and that the achievement and/or failure of one class of right is contingent on the other group because they are mutually reinforcing. This is not strange. Most pre-cold war legal texts, though predominantly civil and political in nature, had traces of economic, social and cultural rights embedded within them. The right to property in the French Declaration of the Rights and Duties of Man and the ‘general welfare’ inference in the preamble to America’s Constitution attest to this. Scholarly inquiry in this regard can corroborate this notion. In their book, Ilias Bantekas and Lutz Oette exemplify that “the right to life is to some degree dependent on adequate food and water, decent housing and health care.” Even within the United Nations (UN) framework, this linkage has been emphasised. The Committee on Economic, Social and Cultural Rights (CESCR) has observed that “the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfillment of other human rights” under international human rights law. Consequently, when closely scrutinized, categories of rights such as “civil and political rights” or “economic, social and cultural rights” make little, if any, sense as they are artificial and even self-defeating.
This notwithstanding, some glaring distinctions can be inferred from the instruments that provide for the two groups of rights. It has been posited that the marked difference between the ICCPR and ICESCR stems from “their treatment after coming into force” with the former ostensibly requiring immediate as opposed to gradual action in the latter. However, this assertion may be unsustainable because CESCR in General Comment 3 identified some rights in the ICESR which are of equally immediate action. Additionally, one can argue that economic, social and cultural rights deal with the quality of one’s life and require a high level of financial investment in the form of jobs, water, health, food education et cetra unlike civil and political rights. This can be explained by the attitude of some national courts that matters of economic, social and cultural rights are an exercise of executive powers. Inadvertently, this worldview could be said asserts the supremacy of civil and political rights because executive power is derived largely from the exercise of civil and political rights. Nonetheless, it is also note-worthy that there’s growing jurisprudence on economic, social and cultural rights at the national level which is shaping the attitude towards ESC rights internationally. A classic example is the Grootboom case where the court observed that the failure to prioritise housing for the ‘absolutely homeless’ amounted to a failure to take reasonable steps to progressively realize the right to housing.
Furthermore, the heavy reliance of economic, social and cultural rights on State resources as compared to civil and political rights makes the former’s status fragile. It has to a large extent negatively impacted their full development and realization over the years, especially in developing states. This assessment may however be countered by the fact that not all obligations under ICESCR, like legal and policy reform have direct resource implications. In the same breadth, it can be opined that realising civil and political rights equally requires a degree of financial commitment, like setting up and operating an effective judicial system to adjudicate conflicts.
To deal with this relationship, an integrated approach has been adopted by judicial bodies. The United Nations Human Rights Committee in S. W. M. Broeks v. The Netherlands disregarded that fact that the issue of unemployment benefits overlapped ESC rights and CP rights and that it could nevertheless consider the application under the ICCPR. However, the fact that this case fused ESC rights into CP rights and not the other way around could lend credence to the assertion that the status of ESC rights is not yet developed and remain largely aspirations that sometimes ride on the back of civil and political rights for enforcement.
Generally, over the years, the international community has found it comparatively easier to implement civil and political rights which has accorded them a heightened status as opposed to other groups of rights which have been side-lined. The view that they are more established and less contested reflects this reality and shines a light on the ideal and practical situation of the two classes of rights.