Introduction to Human Rights Week 4: Typology VI. Generational classification: critical approach - part 2 As already mentioned, a major West-East division marked Human Rights. What was the position of the respective blocs? As far as the Soviet bloc was concerned, the rights of the first generation were mainly considered as guarantees protecting the selfish interests of the bourgeoisie and threatening the rights of the second generation. Here, we find again the Marxist criticism of the rights of the first generation. Some traces of this position still subsist today. Conversely, the Occidental bloc emphasized the priority of Civil and Political rights. Real rights belong to the first generation. In support of this argumentation, they insisted a lot on the difference between the so-called "cost-free rights" of the first generation and the so-called "costly rights" of the second generation. The idea was to say that the rights of the second generation are rather political aspirations and programmatic social goals primarily addressed to legislators. These two antagonistic visions had a very concrete influence regarding Human Rights. They led to the scission of the Universal Declaration. Let me explain: we have seen that the Universal Declaration protects civil and political rights as well as economic, social and cultural rights. Two distinct documents appeared at the universal level when it came to implementing the Declaration and to conferring binding legal force to it. The two Covenants: the ICESCR and the ICCPR, each of them enshrining one of the two generations. The same scission appeared at the European level. On the one hand, the content of the Universal Declaration was implemented in the European Convention on Human Rights of 1950 which enshrines first generation rights. On the other hand, the content was implemented in the European Social Charter which is a document enshrining second generation rights. This scission also had practical implications. The first practical consequence was to allow States to help themselves à la carte, this means to ratify the Covenant or the instrument that enshrines the rights in accordance with their ideological preferences. The second practical consequence concerns the enforcement and the implementation of the different categories of rights. Let us illustrate that with the two Covenants. The two Covenants are constructed in a symmetrical manner. Their structure is identical and Article 2 of both Covenants deals with States duties. It is however interesting to see that the two Articles are not worded in the same way. Let us first have a look at the content of the ICCPR: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant [...]." This stipulation is quite simple. States have to enforce rights as soon as they have ratified the Covenant. Let us now have a look at Article 2 of the ICESCR. We will see that its content is way more complicated and longer. "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." This content is not easy to understand, as stressed by legal scholars. It is interesting to see the appearance of some words which weaken the legal consequences of rights enshrined in the ICESCR. First, there is reference to progressive realization. Therefore, the idea is that the realization of these rights can take some time. Then, there is a reference to the budgetary constraint of States. States are obliged to the maximum of their available resources. Finally, the end of the stipulation mainly refers to legislators. It emphasizes the legislative measures to adopt. The different vision of duties following from the two Covenants also had consequences for the implementation of the rights on the international and the domestic level. As for international implementation, different systems were chosen. When the two Covenants were adopted in 1966, the General Assembly adopted three instruments: the two Covenants and an Additional Protocol. The Additional Protocol refers to the ICCPR which is the Covenant on Civil and Political Rights. This instrument allows the Human Rights Committee, which is the monitoring body of the Covenant, to rule on individuals' complaints. It is interesting to see that such a procedure was not considered for the ICESCR in 1966. Today, an Additional Protocol allowing the monitoring body of the ICESCR to rule on complaints also exists, but this Protocol only dates from 2008, so well after the end of the Cold War. As for domestic implementation, the authors of the ICCPR thought that the rights can and must be enforced. by courts or by a legal body. According to Article 2, paragraph 3, subparagraph A of the Covenant: "Each State Party to the present Covenant undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy." In the ICESCR, we are vainly looking for a stipulation which would enshrine the right to an effective remedy. Some national authorities have inferred that the rights enshrined in the ICESCR are not justiciable. What do we mean by justiciability? It means that a legal body can sanction the violation of a right. The body is therefore competent to enforce some rights. We can take a concrete example: freedom of speech is justiciable insofar as, for example, a judge can squash a ban to publish an article. The right to liberty and security is justiciable insofar as a judge can order the release of a person who is arbitrarily imprisoned. Now, as far as the Economic, Social and Cultural Rights are concerned, you read for today a judgment of the Federal Tribunal - the Federal Supreme Court of Switzerland - which deals with the question of justiciability: justiciability of Economic, Social and Cultural rights. In this case, the applicant is a student association. They attack the increase of tuition fees. Among other things, they put forward that this rise violates the right to education enshrined in the ICESCR. The right to education also covers higher education, so it applies to the students. What was the reaction of the Federal Tribunal? The Federal Tribunal analyzed Article 2 of the ICESCR and it noted that this provision mainly applies to legislators. The Federal Tribunal recognized the limits of its function and said it would not tackle the subject. The appeal is inadmissible. The case is not examined because it is considered as being political. It is therefore up to the legislators, or to the other branches of the government to deal with this issue. This is a very concrete illustration of the implications of justiciability: rights which are not justiciable are less effective. We have just seen the concrete repercussions of the West-East division. We are going to devote the next video to the second major division: the North-South division.