Dichotomies, trichotomies or waves of duties?

Human Rights Law Review

Volumn 5, Issue 1, 2005, Pages 81-103

  Koch, Ida Elisabeth ^a  

^a Danish Institute for Human Rights   (Denmark)

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[No Author keywords available]

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EID: 23844552408     PISSN: 14617781     EISSN: None     Source Type: Journal    
DOI: 10.1093/hrlrev/ngi004     Document Type: Review

References (110)

1. Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy 2nd edn (Princeton: Princeton University Press, 1996) at 160.
2. The tripartite terminology suffers from the disadvantage that all three terms - respect, protect and fulfil - have a broader meaning both in legal and colloquial language than they do in this typology. For example, the expression 'respect' as applied in the European Convention on Human Rights has a different meaning from that which it has in the sense of the primary level of the tripartite typology. Therefore, in order to avoid misunderstandings every effort will be made to avoid using the three expressions in their broader meaning. Moreover, when applied in the specific sense of the tripartite typology each of the three expressions respect, protect and fulfil will be italicised.
3. See, e.g., van Boven et al. (eds), The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, SIM Special No. 20, Netherlands Institute of Human Rights, 1998 at 4.
4. The author disagrees with the perception of some obligations as purely negative, see infra at sections entitled 'Concluding Comments on the Tripartite Typology' and 'The Terminology of the ECtHR'. However, use is made of the expressions 'negative' and 'positive' as they are well established and the author's scepticism will be expressed by means of inverted commas.
5. See, e.g., Section I(5), Vienna Declaration and Programme of Action of theWorld Conference on Human Rights, 1993;
6. -1 IHRR 240 (1993), which reads as follows: 'All human rights are universal, indivisible and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis.'
7. See most recently Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Oxford: Hart, 1999) at Chapters III and IV
8. Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Oxford: Hart, 2003) at Chapters IV and V.
9. Scott, 'The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights', (1989) 27 Osgoode Hall Law Journal 769 at 794.
10. Sen speaks of metarights. He explains that '[a] metaright to something χ can be defined as the right to have policies p (χ) that genuinely pursue the objective of making the right to χ realisable'. For example, the metaright to food serves the purpose of giving 'a person the right to demand that policy be directed towards securing the objective of making the right to adequate means a realisable right, even if that objective cannot be immediately achieved. It is a right of a different kind: Not to χ but to p (χ). I propose to call a right to p (χ) a metaright to χ'. Sen, 'The Right Not to be Hungry', in Alston and Tomasevski (eds), The Right to Food (Utrecht: Stichting Studie - en Informatiecentrum Mensenrechten, 1984) 70.
11. For example, The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/CN.4/ 1987/17; (1987) 9 Human Rights Quarterly 122
12. van Boven et al. (eds), supra n. 3.
13. Most recently the discussion has been referred to in great detail by Sepúlveda, supra n. 6 at Chapters IV and V.
14. See Shue, supra n. 1 at 52.
15. See The Right to Food as a Human Right, 7 July 1987, E/CN.4/Sub.2/1987/ 23.
16. Eide, 'Realization of Social and Economic Rights and the Minimum Threshold Approach', (1989) 10 Human Rights Law Journal 35.
17. Ibid. at 37.
18. What Eide does not do, however, is to provide answers to the most difficult question viz that of the justiciability of fulfilment rights as such, be they of a civil or social rights character. See on this issue Koch, 'The Justiciability of Indivisible Rights', (2003) 72 Nordic Journal of International Law 3.
19. See Eide, 'Universalisation of Human Rights versus Globalisation of Economic Power', in Coomans et al. (eds), Rendering Justice to the Vulnerable: Liber Amicorum in Honour of Theo van Boven (The Hague: Kluwer Law International, 2000) 111.
20. See van Hoof, 'The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views', in Alston and Tomaševski (eds), supra n. 8, 106.
21. Steiner and Alston, International Human Rights in Context, 2nd edn, (Oxford: Oxford University Press, 2000) at 182.
22. For a more detailed description of the various suggestions see Sepúlveda, supra n. 6 at Chapters IV and V.
23. The designation 'the integrated approach' was originally introduced by Martin Scheinin: See Scheinin, 'Economic and Social Rights as Legal Rights', in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook, 2nd edn (Dordrecht: Martinus Nijhoff, 2001) 32.
24. See the examples infra in the section entitled 'The Terminology of the ECtHR'.
25. The European Committee of Social Rights monitoring States' compliance with the European Social Charter has not, however, incorporated the tripartite terminology into its vocabulary.
26. CESCR General Comment 12, The Right to Adequate Food (Article 11), 12 May 1999, E/C.12/1999/5;
27. 6 IHRR 902 (1999) at para. 15.
28. See discussion supra and Eide, 'Economic, Social and Cultural rights as Human Rights', in Eide, Krause and Rosas (eds), supra n. 19, 23.
29. CESCR General Comment 12, supra n. 22 at para. 15. 12 May E/C.12/1999/5
30. CESCR General Comment 13, The Right to Education (Article 13), 8 December 1999 E/C.12/1999/10
31. 7 IHRR 303 (2000) at para. 47.
32. CESCR General Comment 14, The Right to the Highest Attainable Standard of Health (Article 12), 11 August 2000, E/C.12/2000/4
33. 8 IHRR 1 (2001) at para. 34.
34. Admittedly, the Committee speaks of 'existing access', thus possibly suggesting that the inclusion of all individuals and groups without discrimination may have as an acceptable consequence that the individual citizen receives less. In this way it might be possible to avoid general retrogressive measures and at the same time pay due respect to the prohibition against discrimination. It should, however, be kept in mind that individuals may have legitimate expectations to continue receiving a certain social service or benefit, and that this avenue is not necessarily practicable.
35. When explaining the obligation to fulfil, the Committee, however, speaks of rights which individuals are not able to realise themselves 'by means at their disposal' thereby suggesting that obligations to respect and protect do not relate to means which are at their disposal.
36. See e.g. General Comment 12, supra n. 22 at para. 15 and General Comment 13, supra n. 25 at para. 47. Comment 13, supra n. 25 at para. 47. CESCR General Comment supra n. 22 at para. CESCR General Comment 12, 12 May E/ C.12/1999/5
37. CESCR General Comment 15, The Right to Water (Articles 11 and 12), 20 January 2003, E/C.12/2002/11
38. 10 IHRR 303 (2003) at para. 22.
39. General Comment 14, supra n. 26 at para. 35.
40. Ibid. at para. 36.
41. See the development in the CESCR's General Comments of the obligation to respect, above.
42. CESCR General Comment 15, supra n. 29 at para. 28.
43. Ibid. at para. 21.
44. General Comment 14, supra n. 26 at para. 37 and General Comment 15, supra n. 29 at para at CESCR General Comment 14, 11 August E/C.12/2000/4
45. Thus Sepúlveda has analysed the Committee's Concluding Observations in the light of the tripartite typology and found that 'in the few cases that the Committee explicitly refers to the tripartite typology it does so in broad terms and particularly in regard to the States' obligations relating to international financial institutions'. Sepúlveda, supra n. 6 at 210. Observations in the light of the tripartite typology and found that 'in the few cases that the Committee explicitly refers to the tripartite typology it does so in broad terms and particularly in regard to the States' obligations relating to international financial institutions'. Sepúlveda, supra n. 6 at
46. See e.g. Clapham, 'The "Drittwirkung" of the Convention', in Macdonald, Matscher and Petzold (eds), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff, 1993) 163.
47. General Comment 14, supra n. 26 at para. 36 and General Comment 15, supra n. 29 at para. 28. General Comment 14, 11 August E/C.12/2000/4
48. For example, sfee the following cases. On the right to health: López Ostra v Spain A 303 (1994);
49. (1994) 20 EHRR 277
50. Guerra and Others v Italy 1998-I 210;
51. (1998) 26 EHRR 357;
52. Z and Others v UK 2001-V 1;
53. (2002) 34 EHRR 97;
54. E and Others v UK Judgment of 26 November 2002,Application no. 33218/96;
55. and D v UK 1997-III 777. On the right to housing:
56. Selcuk and Asker v Turkey 1998-II 891;
57. (1998) 26 EHRR 477;
58. Bilgin v Turkey (2003) 36 EHRR 50;
59. Dulas v Turkey Judgment of 30 January 2001,Application no. 25801/ 94;
60. Orhan v Turkey Judgment of 18 June 2002,Application no. 25656/94;
61. James and Others v UK A 98 (1986);
62. (1986) 8 EHRR 123;
63. Mellacher and Others v Austria A 169 (1989);
64. (1990) 12 EHRR 391;
65. Spadea and Scalabrino v Italy A 315-B (1995);
66. (1996) 21 EHRR 482;
67. and Velosa Barretto v Portugal A 334 (1995). On the right to social security:
68. Feldbrügge v Netherlands A 99 (1986);
69. (1986) 8 EHRR 425;
70. Deumeland v Germany A 120 (1986);
71. (1986) 8 EHRR 448;
72. Salesi v Italy A 257-E (1993);
73. (1998) 26 EHRR 187;
74. Schuler-Zgraggen v Switzerland A 263 (1993);
75. (1993) 16 EHRR 405;
76. Gaygusuz v Austria 1996-IV 1129;
77. (1997) 23 EHRR 364;
78. and Koua Poirrez v France Judgment of 30 September 2003, Application no. 40892/98.
79. Airey v Ireland A 32 (1979)
80. (1979-80) 2 EHRR 305 at para. 26.
81. Cyprus v Turkey 2001-IV 1;
82. (2002) 35 EHRR 30.
83. Ibid. at para. 277 (emphasis added).
84. See supra about the obligation to create institutional machinery.
85. Holmes and Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York/London:W.W. Norton, 1999) at Chapter 1.
86. Daintith has contributed to the discussion on the indivisibility of human rights by pointing out that virtually any type of right may bear upon the economic interest of individuals and groups. Thus, freedom of speech may be construed to protect commercial advertising; freedom of press and media necessarily provides economic guarantees to the owners of such media, and freedom of movement is an essential complement to a freedom to choose one's employment. See Daintith, 'The Constitutional Protection of Economic Rights', (2004) 2 International Journal of Constitutional Law 56.
87. See e.g. Bouamar v Belgium A 129 (1988);
88. (1989) 11 EHRR 1;
89. D.G. v Ireland 2002-III 361;
90. (2002) 35 EHRR 1153;
91. Aerts v Belgium 1998-V 1939;
92. (2000) 29 EHRR 50; Brand v Netherlands, Judgment of 11 May 2004, Application no. 49902/99;
93. and Morsink v Netherlands, Judgment of 11 May 2004, Application no. 48865/99.
94. Khokhlich v Ukraine, Judgment of 29 April 2003, Application no. 41707/98 at para. 181;
95. Kuznetsov v Ukraine, Judgment of 29 April 2003, Application no. 39042/97 at para. 128;
96. and Poltoratskiy v Ukraine 2003-V 89 at para. 148.
97. López Ostra v Spain, supra n. 39 at para. 51.
98. Pibernik v Croatia, Judgment of 4 March 2004, Application no. 75139/01 at paras 64 and 65 (emphasis added).
99. See e.g. On the Incorporation of Human Rights Conventions in Danish Law, Betænkning No. 1407, 2001, Chapter 9 and p. 327 ff (English Summary).
100. See e.g. Liebenberg, 'The Protection of Economic, and Social Rights in Domestic Legal Systems', in Eide, Krause and Rosas (eds), supra n. 19, 55.
101. At its 59th session in 2003 the Human Rights Commission decided to establish an open-ended working group with a view to considering options regarding the elaboration of an optional protocol to the CESCR. See UNHCR Res. 2003/18, Question of the Realization in All Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special ProblemsWhich the Developing Countries Face in Their Efforts to Achieve these Human Rights, 22 April 2003, E/CN.4/RES/2003/18. The open-ended working group held its first session from 23 February to 5 March 2004. The mandate of the working group was extended at the Commission's 60th session in April 2004. It held its second session in January 2005.
102. See e.g. http://www.escr-net.org which includes a database of legal jurisprudence on economic, social and cultural rights.
103. See most recently Sepúlveda, supra n. 6 at 121, where she refers to works from 1973, 1975 and 1978: Namely, Cranston, What are Human Rights? (London: Bodley Head, 1973);
104. Bossuyt, 'La distinction entre les droits civils et politiques et les droits economiques, sociaux et culturel', (1975) 8 Revue des Droits de l'Homme 783;
105. and Vierdag, 'The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights', (1978) 9 Netherlands Yearbook of International Law 69.
106. The Constitutional Court of South Africa does apply a terminology similar to that of the CESCR. However, it does not seem to have proven indispensable, let alone profitable, to the reasoning of the Court: See e.g. Government of the Republic of South Africa and Others v Grootboom and Others, CCT 11/00 of 4 October 2000 (Constitutional Court of South Africa) and Minister of Health and Others v Treatment Action Campaign and Others, CCT 8/02 of 5 July 2002 (Constitutional Court of South Africa).
107. See Cyprus v Turkey, supra n. 41.
108. See Waldron, Liberal Rights: Collected Papers, 1981-1991 (Cambridge: Cambridge University Press, 1993) at 25 [footnote retained].
109. One might consider whether the wave-metaphor is the most apt way of picturing the richness of the obligations under discussion. Waves roll and, what is more important in this context, they roll back. Duties, on the other hand, have a more stable character, and the presumption that retrogressive measures are in non-compliance with human rights might not be compatible with wave motions. Speaking of a 'continuum of duties' might be more to the point. However, it appears from the context that Shue, in the cited passage, has a general perspective on human rights: see the expression 'more sometimes than others'. Therefore, the message can hardly be misunderstood, and as the quotation in all other respects expresses very well the author's points of view, Henry Shue is given the last word.
110. Shue, supra n. 1 at 160.