{"id":361,"date":"2013-02-18T13:39:53","date_gmt":"2013-02-18T18:39:53","guid":{"rendered":"http:\/\/kapoktreediplomacy.com\/hp_wordpress\/?p=361"},"modified":"2018-12-20T13:21:20","modified_gmt":"2018-12-20T18:21:20","slug":"the-critical-differences-between-first-and-second-generation-human-rights","status":"publish","type":"post","link":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/the-critical-differences-between-first-and-second-generation-human-rights\/","title":{"rendered":"The Key Differences between First and Second Generation Human Rights"},"content":{"rendered":"

(C) Kapok Tree Diplomacy. Mar 2011. All rights reserved. Jeff Dwiggins.
\n4,880 words. 17 pages double-spaced. 13 references.\u00a0 {Formerly} PAID<\/em><\/span><\/strong> CONTENT<\/strong><\/em><\/span><\/p>\n

Introduction<\/strong><\/p>\n

\"UNDHR\"<\/a>The recognition of individual human rights under international law took on a \u201cformal and authoritative expression\u201d 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 \u201ctake the form of a declaration \u2013 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\u201d (SAG 135).<\/p>\n

Following approval of the UDHR, the UN Commission, General Assembly and Third Committee began work on a more \u201cdetailed and comprehensive\u201d expression of human rights that emerged in the form of \u201ctwo principal treaties \u2013 The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)\u201d 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 \u2018International Bill of Human Rights\u2019 (SAG 133).\u00a0 <\/p>\n

While the ICCPR and ICESCR are said by the Vienna Conference (1993) to be \u201cuniversal, indivisible, interdependent and interrelated\u201d (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 \u201cfirst generation\u201d civil and political rights (CPRs) and \u201csecond generation\u201d 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 \u201cideological imperialism\u201d (SAG 140-141).<\/p>\n

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.<\/p>\n

** Update **<\/p>\n

Esteemed colleagues – This essay has been by far the most frequently downloaded essay on the entire Kapok Tree website.\u00a0 I was charging a whopping $0.99 for this comprehensive essay on first and second generation human rights.\u00a0 You can’t even buy a cup of coffee for $0.99 these days.\u00a0 The Ganxy site is going out of business so I can’t offer that paid link anymore. You can download it for free here<\/a> temporarily.
\n<\/span><\/p>\n

Preview<\/span><\/em><\/strong><\/p>\n

Section One \u2013 The ICCPR \u2013 Application, Content and Enforcement<\/b><\/p>\n

The ICCPR indicates that its rights apply<\/span> to \u201cthe inherent dignity and \u2026 equal and inalienable rights of all members of the human family\u201d (ICCPR \u201cPreamble\u201d). State parties are bound \u201cin accordance with its terms and with international law\u201d (SAG 152). Treaty obligations are to be governed by the Vienna Convention\u2019s Article 26 fundamental principle of pacta sunt servanda <\/i>which states, \u201c[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith\u201d (Dunoff, Ratner & Wippman 58).<\/p>\n

As far as content<\/span> goes, Steiner, Alston & Goodman declare that the ICCPR\u2019s rights fall into five categories: (1) \u201cProtection of the individual\u2019s physical integrity;\u201d (2) \u201cprocedural fairness;\u201d (3) \u201cequal protection norms;\u201d (4) \u201cfreedoms of belief, speech and association;\u201d and (5) the \u201cright to political participation\u201d (154). State parties undertake to protect, promote and ensure these rights are secured.<\/p>\n

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).<\/p>\n

For states have not previously recognized CPRs, the ICCPR represents normative statements of lex ferenda<\/i>, though carrying an implied obligation to recognize the rights nonetheless <\/i>(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).\u00a0 It\u2019s up to Brazil and China.<\/p>\n

Regarding enforcement<\/span> and potential remedies, Article 2.3 of the ICCPR declares, \u201cEach State Party to the present Covenant undertakes:<\/p>\n

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy<\/i> \u2026<\/p>\n

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities \u2026 to develop the possibilities of judicial remedy;<\/p>\n

(c) To ensure that the competent authorities shall enforce such remedies when granted<\/p>\n

Therefore, the state authorities must have the \u201cinstitutional machinery\u201d necessary to recognize, secure and enforce CPRs (SAG 188). Moreover, the Inter-American Court of Human Rights acknowledged, \u201cThe State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal \u2026 to identify those responsible, impose the appropriate punishment and ensure the victim adequate compensation\u201d (SAG 215).<\/p>\n

However, the U.S. Senate Committee on Foreign Relations qualified an implied ICCPR obligation to regulate private conduct by saying, \u201cIndividual privacy and freedom from government interference in private conduct are also recognized as among the fundamental values of our free and democratic society\u201d (SAG 211). Engle counters, \u201cthe public\/private divide [is] a convenient screen to avoid addressing women\u2019s issues\u201d (SAG 222).<\/p>\n

Challenge of Enforcement – Defining Violations<\/i>. Beyond the public\/private barrier to enforcement of CPRs ….<\/p>\n","protected":false},"excerpt":{"rendered":"

The recognition of individual human rights under international law took on a \u201cformal and authoritative expression\u201d 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 \u201ctake the form of a declaration \u2013 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\u201d (SAG 135). <\/p>\n

\tFollowing approval of the UDHR, the UN Commission, General Assembly and Third Committee began work on a more \u201cdetailed and comprehensive\u201d expression of human rights that emerged in the form of \u201ctwo principal treaties \u2013 The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)\u201d 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 \u2018International Bill of Human Rights\u2019 (SAG 133). <\/p>\n

While the ICCPR and ICESCR are said by the Vienna Conference (1993) to be \u201cuniversal, indivisible, interdependent and interrelated\u201d (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 \u201cfirst generation\u201d civil and political rights (CPRs) and \u201csecond generation\u201d 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 \u201cideological imperialism\u201d (SAG 140-141). <\/p>\n

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. <\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"advanced_seo_description":"","jetpack_seo_html_title":"","jetpack_seo_noindex":false,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"enabled":false},"version":2}},"categories":[772,5,229],"tags":[816,807,782,217,22,819,793,814,794,216,812,787,796,811,791,780,778,777,802,211,214,806,792,789,783,775,210,212,252,815,804,790,781,808,817,810,798,820,797,785,801,717,799,784,779,800,809,813,788,213,803,818,175,774,773,51,208,805,776,786,795],"class_list":["post-361","post","type-post","status-publish","format-standard","hentry","category-human-rights-and-conflict","category-international-relations","category-paid-content","tag-a-priori","tag-aspirational","tag-brazil","tag-cat","tag-china","tag-civil-rights","tag-coercion","tag-collective-good","tag-constitution","tag-convention-against-torture","tag-courts","tag-enforcement","tag-enlightenment","tag-entitlements","tag-european-court-of-human-rights","tag-freedom-from-torture","tag-freedom-of-religion","tag-freedom-of-speech","tag-government-of-south-africa-vs-grootboom","tag-iccpr","tag-icescr","tag-inalienable","tag-intensity","tag-intentional","tag-inter-american-court-of-human-rights","tag-international-bill-of-human-rights","tag-international-covenant-on-civil-and-political-rights","tag-international-covenant-on-economic","tag-israel","tag-jus-cogens-peremptory-norms","tag-justiciability","tag-landau-convention","tag-lex-ferenda","tag-liberty-rights","tag-maastricht-guidelines","tag-natural-rights","tag-negative-rights","tag-political-rights","tag-positive-rights","tag-privacy","tag-progressive","tag-punishment","tag-reasonable","tag-remedy","tag-right-to-life","tag-right-to-work","tag-rights-to-goods","tag-rights-vs-resources","tag-severe","tag-social-and-cultural-rights","tag-socio-economic-rights","tag-special-rapporteurs","tag-treaties","tag-un-general-assembly","tag-undhr","tag-united-nations","tag-universal-declaration-of-human-rights","tag-universal-rights","tag-vienna-convention","tag-violation","tag-waterboarding"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p31a0x-5P","jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/361","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/comments?post=361"}],"version-history":[{"count":16,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/361\/revisions"}],"predecessor-version":[{"id":860,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/361\/revisions\/860"}],"wp:attachment":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/media?parent=361"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/categories?post=361"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/tags?post=361"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}