Kapok Tree Diplomacy

(C) Kapok Tree Diplomacy. Mar 2011. All rights reserved. Jeff Dwiggins.
4,880 words. 17 pages double-spaced. 13 references.  {Formerly} PAID CONTENT

Introduction

The recognition of individual human rights under international law took on a “formal and authoritative expression” following the end of World War II when the United Nations (UN) General Assembly adopted the Universal Declaration of Human Rights (UDHR) in 1948 (Steiner, Alston & Goodman (SAG) 134). The UNDHR was designed to “take the form of a declaration – that is, a recommendation by the General Assembly to Member States that would exert a moral and political influence on states rather than constitute a legally binding document” (SAG 135).

Following approval of the UDHR, the UN Commission, General Assembly and Third Committee began work on a more “detailed and comprehensive” expression of human rights that emerged in the form of “two principal treaties – The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)” which were both approved in 1966 and both entered into force in 1976 through the required number of ratifications (SAG 136). The ICCPR and ICESCR were designed to be more legally binding than the UDHR. Collectively, these three documents are often referred to as the ‘International Bill of Human Rights’ (SAG 133). 

While the ICCPR and ICESCR are said by the Vienna Conference (1993) to be “universal, indivisible, interdependent and interrelated” (263), there is not universal agreement that the two sets of rights are in fact universal or that they are of equal political and moral weight. The complete set of rights was split into two documents for a reason. With the advent of the Cold War, ideological differences began to emerge over commitments to “first generation” civil and political rights (CPRs) and “second generation” economic and social rights (ESRs) (SAG 136). This bifurcation of rights is often challenged by many as an unfair hierarchical categorization, while others may point to CPRs as being an attempt at Western “ideological imperialism” (SAG 140-141).

This essay will explore the critical differences between the two documents as well as some similarities. Moreover, the essay will examine the content, application and enforcement characteristics of each document, challenges to enforcement, the nature of each set of rights and their critical differences, and conclude with the assertion that CPRs are more important.

** Update **

Esteemed colleagues – This essay has been by far the most frequently downloaded essay on the entire Kapok Tree website.  I was charging a whopping $0.99 for this comprehensive essay on first and second generation human rights.  You can’t even buy a cup of coffee for $0.99 these days.  The Ganxy site is going out of business so I can’t offer that paid link anymore. You can download it for free here temporarily.

Preview

Section One – The ICCPR – Application, Content and Enforcement

The ICCPR indicates that its rights apply to “the inherent dignity and … equal and inalienable rights of all members of the human family” (ICCPR “Preamble”). State parties are bound “in accordance with its terms and with international law” (SAG 152). Treaty obligations are to be governed by the Vienna Convention’s Article 26 fundamental principle of pacta sunt servanda which states, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (Dunoff, Ratner & Wippman 58).

As far as content goes, Steiner, Alston & Goodman declare that the ICCPR’s rights fall into five categories: (1) “Protection of the individual’s physical integrity;” (2) “procedural fairness;” (3) “equal protection norms;” (4) “freedoms of belief, speech and association;” and (5) the “right to political participation” (154). State parties undertake to protect, promote and ensure these rights are secured.

Among the rights the ICCPR recognizes are the right to life (Article 6), freedom from torture (Art. 7), freedom from slavery (Art. 8), right to liberty and security of person (Article 9), right to equality under the law (Art. 14 & 26), right to the freedom of thought, conscience and religion (Art. 19), right of peaceful association (Art. 21) and peaceful assembly (Art. 22), and the right to vote (Art. 25) (ICCPR).

For states have not previously recognized CPRs, the ICCPR represents normative statements of lex ferenda, though carrying an implied obligation to recognize the rights nonetheless (SAG 163-164). For many states, the ICCPR represented an obligation to end racial and gender discrimination (SAG 175). In China, for example, one study suggests there are 50 million missing women based on the ration of men to women, and in Brazil women are often raped and assaulted without punishment being meted out to the violator (SAG 181, 183). With China being a signer to ICCPR (1998) and Brazil acceding to it as well (1992), such statistical information begs the question of what enforcement mechanisms are available to address infanticide and rape (UN Treaty Collection).  It’s up to Brazil and China.

Regarding enforcement and potential remedies, Article 2.3 of the ICCPR declares, “Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy …

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities … to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted

Therefore, the state authorities must have the “institutional machinery” necessary to recognize, secure and enforce CPRs (SAG 188). Moreover, the Inter-American Court of Human Rights acknowledged, “The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal … to identify those responsible, impose the appropriate punishment and ensure the victim adequate compensation” (SAG 215).

However, the U.S. Senate Committee on Foreign Relations qualified an implied ICCPR obligation to regulate private conduct by saying, “Individual privacy and freedom from government interference in private conduct are also recognized as among the fundamental values of our free and democratic society” (SAG 211). Engle counters, “the public/private divide [is] a convenient screen to avoid addressing women’s issues” (SAG 222).

Challenge of Enforcement – Defining Violations. Beyond the public/private barrier to enforcement of CPRs ….