Second Generation Rights

SECOND GENERATION
RIGHTS
SYLLABUS
I. Socio Economic Context and Historical

Background
II. International Covenant on Economic, Social and
Cultural Rights (ICESCR) in Relation to The 1987
Philippine Constitution
III.Competing Perspectives on ESCR
IV.The Problem of Resources
V. Giving Content to ESR: Justiciability
I. SOCIO-ECONOMIC CONTEXT AND
HISTORICAL BACKGROUND
• The United Declartion of Human Rights recognizes two sets of human rights:
a. ‘Traditional’ civil and political rights
b. Economic, social and cultural rights
• United Nations adopted two separate International Covenants:
a. International Covenant on Civil and Political Rights
b. International Covenant on Economic, Social and Political rights
• The two covenants and sets of rights are, in the words adopted by the 1993 World
Conference on Human Rights in Vienna, ‘universal, indivisible and interdependent and
interrelated’.
• Disagreements as to the proper treatment of ESCR:
a. One view, these rights are superior to CPR in terms of an appropriate value hierarchy
and in chronological terms.
b. Second view, ESCR do not constitute rights
• But amidst the diplomatic and academic discourse, most part of the
position involved:
a. Support for the equal status and importance of ESR; together
with
b. Failure to take steps to entrench those rights constitutionally, to
adopt legislative or administrative provisions based explicitly on the
recognition of specific ESR as international human rights, or to
provide effective means of redress to individuals or groups alleging
violations of those rights.
• The historical origins of the recognition of ESR are diffuse. Sources varies
from:
a. Religious traditions to care for thos in need and those who cannot look
after themselves.
b. Philosophical analyses and political theory from authors as diverse as
Thomas Paine, Karl Marx, Immannuel Kant and John Rawls
c. Political programmes of the 19th century Fabian Socialists in Britain,
Chancellor Bismarck in Germany and the New Dealers in the US
d. Constitutional precedents such as the Mexican Constitution of 1917,
the first and subsequent Soviet Constitutions and the 1919 Constitution of
the Weimar Republic.
•International Labour Organization established by the Treaty of Versailles in 1919 is the most
appropriate starting point for the evolution of ideas in international human rights law. Its
purpose is to abolish the injustice, hardship and privation which workers suffered and to
guarantee ‘fair and humane conditions of labour’, it was conceived as the response of
Western coubtries to the ideologies of Bolshevism and Socialism arising out of the Russian
Revolution.
•In the interwar years, the ILO adopted international minimum standards in relation to a wide
range of matters which now fall under the rubric of ESR. They included, inter alia,
conventions dealing with:
a.Freedom of association and the right to organize trade unions, Forced labour, Minimum
working age, Hours of work, Weekly rest, Sickness protection, Accident insurance, Invalidity
and old-age insurance; and Freedom from discrimination from employment
• Partly as a result of this developments, various proposals were made during the drafting of
the UN Charter for the inclusions of provisions enshrining the maintenance of full
employment as a commitment of the Member States. The strongest version, known after
its principal proponents as the ‘Austalian Pledge’, committed UN members to take action
to secure ‘improved labour standards, economic advancement, social security and
employment for all who seek it.
• Despite significant support, the US opposed the proposal on the grounds that any such
undertaking would involve interference in the domestic, economic, and political affairs of
the states.
• Ultimately agreement was reached on Article 55(a) of the Charter, which simply states
that:
The United Nations shall promote higher standards of living, full employment and
conditions of economic and social progress and development.
• 1941 President Roosevelt had nominated ‘Freedom from want’. In his 1944 State of
the Union Address he stated:
We have come to a clear realization of the fact that true individual freedom cannot exist
without economic security and independence. ‘Necessitous men are not free men.’ People who
are out of job are the stuff of which dictatorships are made.
• President Roosebelt would like to have a second bill of rights under which a new
basis of security and prosperity can be established for all – regardless of station,
race or creed. The implementation of the rights under the second BOR aims for
human happiness and well-being.
• These rights enumerated in the 2nd BOR were reflected in a draft of International
Bill of Rights, completed in 1944. Other rights which are included are rights in
relation to education, work, reasonable conditions of work, adequate food and
housing and social security.
• These rights were also recognized in several constitution of many countries and were
submitted to the United Nations and were to prove highly influential in the preparation of the
first draft of the Universal Declaration in 1947.
• In the drafting of Articles 22-28 of the UDHR, strong support for the inclusion of ESR
came from the US, Egypt, several Latin American Countries and countries of Eastern
Europe.
• Australia and UK opposed their inclusion, as did South Africa on the ground that:
a. ‘a condition of existence does not constitute a fundamental human right merely
because it is eminently desirable for the fullest realization of all human potentialities
b. if the proposed economic rights were to be taken seriously it would be necessary
to resort to more or less totalitarian control of the economic life of the country
• After the adoption of the Universal Declaration in 1948, the next step was to
translate the rights it recognized in Articles 22-28 into binding treaty
obligations.
• By 1955, the main lines of what was to become ICESCR were agreed.
• Mains dilemmas and controversies relating to inclusion of ESCR:
a. Those who were in favour of drafting a single covenant maintanined that
human rights could not be clearly ivided into categories, nor could they be so
classified as to represent a hierarchy of values. All rights should be promoted
and protected at the same time. Without ESCR, CPR might be purely nominal
in character; without CPR, ESCR could not be long ensured
b. Those in favour of drafting two separate covenants argued that:
1. CPRs were enforceable or justiciable, or of an absolute character while
ESCR were not or might not be
2. CPRs are immediately applicable; ESCRs are progressively implemented
3. CPRs were rights of the individuals ‘against’ the State, that is,
unlawful and unjust action of the State; ESCRs were rights which the State
would have to take positive action to promote.
4. As to question of implementation: CPRs were thought to be ‘legal’
rights and could best be implement by the creation of good offices
committee; ESCR were thought to be ‘programme’ rights and could best be
implement by the establishment of a system of periodic reports.
However, it was argued that not in all countries and territories were all
CPRs ‘legal’ rights nor all ESCRs ‘programme’ rights. A CPR might well be a
‘programme’ right under one regime, an ESCR a ‘legal’ right under another. A
covenant could be drafted in such a manner as would enable States, upon
ratification or accession, to announce, each in so far as it was concerned,
which civil, political, economic, social and cultural rights were ‘legal’ rights
and which ‘programme’ rights, and by which procedures the rights would be
implemented.
II. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS IN RELATION TO THE 1987 PHILIPPINE
CONSTITUTION
• ICESCR is divided into five parts:

Part I: Recognizes the right of people to self-determination;
Part II: Defines the general nature of states parties
obligations;
Part III: Enumerates the specific substantive rights;
Part IV: Deals with international implementation;
Part V: Contains typical final provisions of a human rights
treaty.
ICESCR key issues:
Parts II and III
CONSTITUTION
PART II
Article 2
1. Each State Party to the present Covenant undertakes to take
steps, individually and through international assistance and co-operation,
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.
CONSTITUTION
PART III
Article 6
The States Parties recognize the right to work, including:
 The right of everyone to the opportunity to gain his living by work which
he freely chooses or accepts, and will take appropriate steps to safeguard this
right.
In achieving the full realization of this right, it shall include:
 technical and vocational guidance and training programmes, policies and
techniques to achieve steady economic, social and cultural development and
full and productive employment under conditions safeguarding
fundamental political and economic freedom to the individual.
CONSTITUTION
• Article 7
• The States Parties recognize the right of everyone to the enjoyment of just and
favourable conditions of work which ensure, in particular:
• (a) Remuneration which provides all workers, as a minimum, with:
• (i) Fair wages and equal remuneration for work of equal value..;
• (ii) A decent living for themselves and their families...;
•
• (b) Safe and healthy working conditions;
•
• (c)Equal opportunity for everyone to be promoted in his employment ...;
•

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SECOND GENERATION

I. Socio Economic Context and Historical

• ICESCR is divided into five parts:

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