International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into play in order to make the rights introduced under the Universal Declaration of Human Rights (UDHR) legally binding. Both the treaties were adopted by the United Nations General Assembly on 16 December 1966.
1) Different generations of human rights
– Ensures the rights of individuals in the political and civil aspects are protected (i.e. protects the first generation of human rights).
– Examples: freedom of opinion, freedom of expression, control of taxes, equal access to public and citizen control over the administration.
– In short, they are rights that deal with liberty and participation in political life and are individualistic with the intention of protecting individuals from the state.
– Ensures that the rights of individuals in the economic, social and cultural aspects are protected (i.e. protects the second generation of human rights).
– Examples: right to work, freedom of association and the right to education.
– In short, they are rights that guarantee equal conditions and treatment, and are not directly possessed by individuals but rather as positive duties constituted upon the government to respect and fulfil.
2) Nature of rights
– Negative in nature because it defines and sets out what should not be done by the states pertaining to the rights of individuals. For example, the Penal Code provisions are also negative in nature due to the fact that it defines and sets out offences that are prohibited.
– Positive in nature because it does not prohibit. Instead, it shows ways a state can implement certain programmes to raise the standard of living of individuals and ways to protect the human culture. For example, due to Art 13 of ICESCR which ensures the right to education, the government has a positive obligation to use their resources in ensuring this right either by paying the cost of the country’s education.
3) Judicial remedies
– Ensures that judicial remedies are provided to aggrieved persons that have had their rights violated by the state. It is justiciable and provides clear guidance on implementing remedies in court for aggrieved persons.
– Has no judicial remedies available for non-implementation and the court cannot force the state to implement provisions under ICESCR. Therefore, it is non-justiciable and there can be no adjudication by courts pertaining to the issues and they cannot be discussed in court nor can they be applied by judges.
4) Obligation under treaties
– Art 2(1) of ICCPR states that each state party undertakes to respect and ensure the rights recognized in ICCPR. As such, the rights under the treaty are immediately binding upon ratifiaction and it is the duty of the state to ensure that those rights are protected, ensured and respected. This is usually measured by the state’s conduct.
– Example: Australia signed the CCPR and they carried out of their obligations by implementing Art 17 of ICCPR which ensures right to privacy into their Privacy Act 1988.
– Art 2(1) of ICESCR states that the state party will take steps to use its maximum available resources gradually to realise the rights. As such, its obligation is more progressive, allowing the state to take its time in realising the rights under this treaty.
5) Cost of implementation
– Less costly or cost-free.
– State promises to use its maximum available resources.
6) Clarity of words
– Clear and well defined.
– Ambiguous and not well defined.
If a choice has to be made between the two covenants as to which is better, it is clear that the ICCPR is better since it protects first generation human rights, provides judicial remedies, provides immediate protection upon ratification, will not affect the State’s economy and it is also better defined.