Support to Constitution Building

Different types of rights

1. The "first generation rights" are civil and political rights, like the rights to associate and to assemble together, freedom of expression, the right to vote and stand for elections, and the right to participate in public affairs. These rights are closely associated with democracy.
   
   
2. The next group of rights are social, economic and cultural rights. They include the right to education, employment, shelter, health, and food.
   
   
3. Rights which pertain to the whole community are sometimes known as "third generation rights": right to a clean, healthy and sustainable environment, to peace, to nurturing of one's culture and to development.
   
   These categories represent different dimensions of rights, and to some extent represent different economic and philosophical ideologies – though the distinctions should not be overstated. It is misleading to suggest that these groups of rights followed each other in historical progression. Rights to health were recognised on the international level around the end of the nineteenth century – before international law concerned itself with civil and political rights. And the Universal Declaration of Human Rights dealt with both civil and political and economic social and cultural rights (click for the English version, for Nepali and for Hindi).
   
   Unfortunately, rights got caught up in the cold war. When time came to put the Universal Declaration into the binding form there was a fundamental disagreement between those (mostly western countries) that emphasized civil and political rights and those (mostly socialist and third world countries) that argued that economic and social rights were more important for development. So there are two covenants.
   
   
   • Civil and political rights are directed to ensuring a secure space for individuals to pursue their values and interests and are largely aimed at limiting state intervention in their lives.
     
     
   • Economic, social and cultural rights on the other hand may require the state to take specific action to facilitate the enjoyment of the rights and assume an active state. The state is not required necessarily to provide free education or medical services, etc. but to pursue policies that enable individuals, families and groups to earn a living and ensure these facilities for themselves—by providing an honest administration, equitable distribution of resources, and appropriate policies.
     
     
   • The third category of rights also requires an active role for the state, in part as a regulator. It requires the state and other authorities to pursue sensible policies which do not exhaust or destroy natural resources or waste money on weapons, but instead create conditions for peaceful and consensual living, and establish opportunities for individuals and groups to pursue economic and social interests in fair, conducive and equal conditions.
   
   
4. Today it is recognised that all categories of rights are equally necessary for a life in dignity and peace, and that they are indivisible and interdependent. For example education and literacy (which are classified as social rights) are necessary for the full exercise of freedom of expression (which is classified as a civil right). Similarly a clean environment is necessary for health and for the right to life more generally (bringing together all categories of rights). Freedoms of expression and association are essential to protect campaigners on the environment from government harassment. It is simply not true that civil and political rights protection requires only state restraint, and the others require positive state action and state expenditure: for example, the protection of people from discrimination (a civil right) requires not only that the state not discriminate but that it prevent others from doing so, while elections (a political right) are extremely expensive. On the other hand, the state can be a positive violator of economic, social and cultural rights (for example by unfairly evicting squatters which may violate the right to housing) as well as a 'mere' negative violator by failing to provide services.
   
   
5. Economic, social and cultural rights are often (wrongly) regarded as 'hand outs' to the poor. But in fact state obligations that arise out of these rights are primarily to establish policies and institutions, and create opportunities that facilitate the endeavours of the people to provide education, health, shelter and food for themselves. A policy that depended entirely on handouts would in fact be inconsistent with the primary function of human rights, which is to protect human dignity. A framework of economic, social and cultural rights requires the state to allocate resources very carefully to ensure that there is no extravagance or wastage, and that resources are not squandered on prestige but essentially non-productive uses, like huge aircraft for government officials, or big cars for ministers and senior civil servants. Instead resources should be allocated for productive purposes which create opportunities and enable people to engage in agriculture and other occupations. For example, if bad roads prevent people from marketing their products, this can be viewed as a violation of economic rights – but providing roads would be far from giving handouts. By investing in infrastructure, removing unnecessary restrictions, enhancing human resource development, pursuing sensible policies about the sustainability of natural resources, ensuring honest and efficient bureaucracy, the state can provide the environment conducive to the achievement of the goals of economic, social and cultural rights.
   
   
6. The Covenant on Economic Social and Cultural Rights obliges a government to 'take steps,… to the maximum of its available resources, with a view to achieving progressively the full realization of the rights … by all appropriate means' (Art. 2) – not to achieve miracles. The nature of the obligation has been analysed in some detail by the Committee on the Covenant. Firstly the state must achieve 'at the very least, minimum levels of each of the rights' and to give priority to achieving this minimum level. Beyond that the duty is to 'respect, protect, promote and fulfil' the rights: respect means not to interfere itself with the right; protection is against infringement by others; promote involves education and encouragement; fulfilment involves the positive action of the state to achieve the right. In fact this way of analysing the duty of the state fits perfectly well its duty with respect to civil and political rights, too.