Legal Foundations for Obligations

The legal concept o f human rights is based upon the theory o f universal human rights as moral and legal entitlements and duties, as envisaged in the universal bill o f human rights: ‘All human beings are bom free and equal in dignity and rights.’357 I believe that the legal conception o f human rights pertains to a demand to have an existing moral right recognised. ‘A right provides the rational basis for a justified demand. If a person has a particular right, the demand that the enjoyment o f the substance o f the right be socially guaranteed is justified by good reasons and the guarantees ought,

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therefore, to be provided.’ The development of legal obligations can be seen as commencing from the ‘four freedoms’ speech o f US President Roosevelt, culminating in the originally non-binding UDHR 1948. It is now widely accepted that part, if not

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all o f the UDHR is considered customary international law and as such has legally binding obligations upon states. However, determining whether it does constitute custom has been viewed as problematic, owing to the foundations o f the relationship that human rights law is based upon, namely a vertical relationship between the

357 A rticle 1,U D H R .. See also Pream ble U D H R , ICCPR and ICESCR. 358 Shue, 1980, p. 13.

359 Steiner. H and A lston. P, International Human R ights In C ontext - Law. P olitics and M orals. 2 nd Edition. Oxford: O U P, 2 0 0 0 , p. 143.

individual and the state, as oppose to a state to state horizontal relationship.360 As such, state practice regarding human rights had been seen as difficult to determine.361 Despite this, evidence that favours the argument that the UDHR does constitute customary international law includes, incorporation o f international human rights as contained in the UDHR into national constitutions and laws, frequent references to the UDHR by the UN and other international bodies and governments, decisions by national courts referring to the Declaration and ‘a dictum o f the International Court of Justice that obligations erga omnes in international law include those derived from the principles concerning the basic rights o f the human person.’ Even if one does not agree with these arguments, as Eide notes, ‘The UDHR imposes at least a moral obligation, if not more, on all states to seek to realise social and economic rights.’

The legal conception o f obligations within international human rights law is based upon the paired concept o f an entitlement and its correlative duty. States have human rights obligations under the UDHR, as mentioned and also under the UN Charter 1945. However, human rights have been divided into two subcategories: civil and political rights and economic, social and cultural rights. For many years this has been the accepted framework for human rights, despite the UDHR making no distinction between the two. The origins of such a framework can be seen as deriving from the decision to divide the rights contained within the UDHR into two separate legally binding covenants. The result was the following two covenants: the ICCPR 1966 and the ICESCR 1966. This controversial decision to divide the rights into two ‘sets’ o f

360 R osas. A, ‘State Sovereignty and Human Rights: Towards a G lobal Constitutional Project’ in Political Stu d ies. XLIII, pp.61-63 at p.62.

361 Steiner and A lston, 2 0 0 0 , p. 143.

362 Steiner and A lston, 2 0 0 0 , p.228. The dictum is from the ICJ Barcelona Traction Light and Pow er C om pany L im ited C ase (B elgiu m vs Spain) ICJ Reports 1970, 3.

rights was taken for several reasons, including arguments that civil and political rights and economic and social rights were o f an inherently different nature and as such, required separate instruments and that the former were justiciable, whereas the later were more political and not easily justiciable.364 One demand for dual covenants came from the USA, who declared, ‘all economic, social and cultural rights, no matter how vital their fulfilment, as less genuine rights with less binding duties.’ Thus economic and social rights were seen as either merely ‘aspirations’ with no legal basis or ‘secondary rights’ to be realised once civil and political rights had been realised. From this division o f rights, we can see a parallel division of obligations, in the concept o f positive and negative obligations. In the past, civil and political rights have been seen to encompass only negative obligations.366 Negative meaning that in order to fulfil the enjoyment o f the right, the obligations holder has only to respect that right and refrain from action that would impede upon the individual’s enjoyment o f that right. Thus these rights were seen to be ‘easier’ and less o f a burden to commit to. In contrast, economic and social rights were seen to ensue correlative positive obligations that require action by the obligation holder, to provide in order for individuals to enjoy that right.367 It was feared that those with the duty to honour the right would find the obligations too great a burden. Hence, the USA’s demand as noted above. However as Eide notes, ‘Fundamental to a realistic understanding of state obligations is that the individual is the active subject o f all economic and social development, as stated in the UN Declaration on the Right to Development, Article

364 A nnotations on the Text o f the Draft International C ovenants on Human R ights, U N D oc. A /2 9 2 9 (1 9 5 5 ), p.7. For further exam ination o f the reasoning behind the d ivision o f the rights as provided for in the U D H R see, Eide in Eide et al 2 0 0 1 , pp.9-12; Craven, 1995, pp. 16-21; A ram bulo. K, Strengthening the Supervision o f the International C ovenant on E conom ic. Social and Cultural R ights - Theoretical and Procedural A sp ects. Oxford; Intersentia, Hart, 1999, pp. 15-18 and Steiner and A lston, 2 0 0 0 , p p .242-245.

Shue, 1980, p.6.

366 Eide in Eide et al, 2 0 0 1 , pp.23-24. 367 Eide in Eide et al, 2 0 0 1 , pp.23-24.

2.368 The individual is expected whenever possible, through his or her own efforts and by use o f own resources, to find ways to ensure the satisfaction o f his or her own needs.’ As such, the individual has a personal obligation and responsibility for the enjoyment o f their own economic and social rights. This responsibility upon the individual is often missing in analyses o f obligations regarding economic and social rights and thus ensures that the burden upon the state is argued as larger than is actually the case.

This false dichotomy o f rights does not reflect the reality o f the enjoyment or violations o f human rights. One example that illustrates this point is the well- documented case o f the human rights violations carried out by the Nigerian government against the Ogoni Peoples o f Nigeria. The Ogoni were initially protesting that because their lands were being taken from them to be used for oil extraction, their right to food and housing (Article 11 of the ICESCR) were being violated. In turn, when the people o f Ogoni held protests, the authorities violated inter alia their right to

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freedom o f expression, right to liberty and security and their right to life, by breaking up the protest by force, shooting and killing participants and destroying their village by burning down property.371 Hence initial violations o f economic and social rights resulted in further violations of civil and political rights. This example highlights the interdependence o f civil and political and economic and social rights. It

368 Original footnote om itted. Footnote added; U N Declaration on the Right to D evelop m en t, A rticle 2 reads, in part, (1) ‘The human person is the central subject o f developm ent and should be the active participant.’ (2 ) ‘A ll human beings have a responsibility for developm ent, individually and co llectiv ely , taking into account the need for full respect for their human rights and fundam ental freedom s, as w ell as their duties to the com m unity, w hich alone can ensure the free and com plete fulfilm ent o f the human b ein g .’

369 Eide in Eide et al, 2 0 0 1 , p.23. 370 A rticles 19, 9 and 6 o f the 1CCPR.

371 For the full details o f this case see Human R ights W atch, N igeria. The O goni Crisis. A C ase-Studv o f M ilitary R epression in Southeastern N igeria, V ol. 7, N o. 5, July 1995.

is evident then, that personal dignity cannot be upheld if vital aspects o f basic economic and social rights are violated. Personal dignity is reliant upon the enjoyment o f these rights, as the enjoyment o f these rights affects the enjoyment o f liberty and security. As such, if obligations regarding economic and social rights are not met, then meeting the obligations regarding liberty and security (seen as civil and political rights) is also difficult.

It is also clear that this dualistic concept of civil and political rights with correlative negative obligations and economic and social rights with positive obligations is further flawed. If we look at an example, the obligations regarding the right to a fair trial (Article 14 of ICCPR), entails provision that the obligation holder, in this case the state, is to provide a functional and fair legal and judicial system. Thus, it entails a positive obligation on behalf o f the duty holder. Likewise, the right to health as contained in Article 12 ICESCR, provides an obligation on the part o f the duty holder to refrain from actions that would be detrimental to the individual’s health, for example, to refrain from coercive medical procedures or refrain from denying or limiting equal access for all persons, to preventive, curative and palliative health services.372 Hence, this economic and social right ensues a negative obligation. It is evident then, that both sets o f rights ensue both types o f correlative duties / obligations and to divide obligations as described is to ascribe to a key misconception

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concerning human rights.

C ESC R, GC 14, para.34.

373 Shue (1 9 8 0 , p.55) also dism isses this once popular thesis that E S C R ’s entail o n ly p ositive obligations and argues that both civ il and political rights and econom ic, social and cultural rights entail obligations that are both p ositive and negative. See also Skogly. S, ‘Extra-national O bligations towards econ om ic and social rights’, A W orking Paper for the International C ouncil o f Hum an R ights P olicy. July 2 0 0 1 , p.4.

So, who holds these obligations? Under international human rights law, the state is seen as the main obligation holder, correlative to the entitlements o f any individual within their sovereign territory. It is important to note that the individual does not have to be a citizen o f the state, only to be within state borders. The state can be seen as the main obligation holder, as it is the state that execute law and order in the modem world system and the state that enters into the international treaties. As such, it falls to the state to protect its people. Within this context then, as John Stuart Mill wrote, ‘To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of.’374 As Skogly notes, this does not mean that the state is the only obligation holder and the obligations o f other actors are becoming ever more significant. Previously, provisions concerning human rights obligations have focused in the main, upon the state. This focus has, in turn, led to new concerns over whether conceptions of obligations are sufficiently comprehensive in light o f

376 globalisation and trans-national trade.