25 Second Generation Rights

Dr. Aneesh V. Pillai

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Table of contents

1.      Learning outcomes

2.      Introduction

3.      Types of second generation rights

3.1.    Right to work

3.2.   Right to form trade union

3.3.   Right to social security

3.4.   Rights of women and children

3.5.   Right to adequate standard of living

3.6.   Right to highest attainable physical and mental health

3.7.    Right to education

3.8.   Cultural and intellectual property right

4.      Conclusion

 

1. Learning outcome

The students are given an opportunity to examine the characteristics of socio-economic and cultural rights. At the end of the discussion, they will be able to find out which are civil and political rights, which are socio-economic and cultural rights from among given rights.

2. Introduction

Socio economic rights are otherwise called as second generation rights. These rights involve financial liability for the State. They are thus not naturally given things, though these things are essential for the existence of the human beings. From the perspective of a developing country, socio economic rights are more important than the civil and political rights. Because, without the realisation of the former, the latter is not of much significance. These rights are recognised in the UDHR and the International Convention on Socio Economic and Cultural Rights (ICESCR) in the international level, and in the Additional Protocols of European Convention, American Convention on Human Rights and African Charter on Human and Peoples’ Rights. Let us now find which these rights are.

Socio economic and cultural rights also differ from the civil and political right due to another factor also, that usually a group or class like workers, minority, disabled, aged people, children, poor people, etc. Also, it aims at protection of more number of people in the society that makes it “socio”.But, still it cannot be called group rights, because the enjoyment of these rights is still in the individual level, as will be seen from the discussion below on each right.

3. Types of Socio- economic and Cultural Rights Right to work

The ICESCR Article 6 provides the right to work thus:

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.”

This right also includes just and favourable conditions of work like, minimum wage, fair wage, equal remuneration for equal work, decent living, safe and healthy working conditions, equal opportunity for promotion, rest and leisure, and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

It is very clear from the wordings of this right that, though it addresses all employees, and their welfare, and that the enjoyment of this right is individualistic, and not collective. For example, take the case of minimum wages. It is to be given to each worker, and each individual gets benefited by that.

Also, this is qualified to be a socio economic right due to the involvement of the huge economic burden on the State for the realisation of this right. Equal remuneration for equal work, minimum wages, fair wage, safe and healthy working condition- these all are words which indicate the heavy financial burden on the State for the realisation of this right, and thus a positive action from the State. In the case of civil and political right the State is supposed to refrain from doing certain things, while in the socio economic rights, State is under an obligation to act. Thus this right is fit to the classification of the socio economic rights due to two reasons- one is the involvement of economy, and the other is the individualistic enjoyment of this right by a class called the workers.

  1. The States Parties to the present Covenant undertake to ensure: Right to form trade union
    • The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
    • The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
    • The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
    • The right to strike, provided that it is exercised in conformity with the laws of the particular country.
  2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
  3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. (ICESCR, Article 8)

This right though seems to be collective in nature, it is also individualistic in nature. It is a right to be part of an organisaiton by an individual. Each individual will have individual rights by virtue of being a part of the organisation. The exercise of this right is individualistic just as a right to freedom of speech and expression, freedom of association, or assembly as is seen in the part of first generation right. After exercising this right, what is formed is an trade union, and as a unit the trade union functions for realisation of individual right. The right to strike also falls within this category. Thus, this is also an individualistic right and not a group right.

But, one thing that makes this right different is, it is more similar to civil and political right as there is no involvement of economy in this right. The State need not spend money for the realisation of this right. But, it is categorised as a socio economic right, as it is closely related to the right to work, and labourers. Thus, it need not be considered as an independent right. But it can be considered as a part of the right to work, just as a right to rest and leisure, which is a part of right to work but which does not involve any economy.

Right to social security

This right also involves expenditure, as it covers insurance schemes, and other types of helps to downtrodden and poor for social security. Any help extended to the weaker will fall this category. Thus, this also falls well within the category of socio economic rights. This right is also not a group right because security is to be given to each individual, and the beneficiary is each individual in their individual capacity.“The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.” (ICESCR, Article 9).

Right of the women and children

The States Parties to the present Covenant recognize that:

  1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
  2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
  3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. (ICESCR, Artilce 10)

This right is two folded- in the case of mothers, special leave with adequate social security benefits indicates the involvement of financial burden to the State. In the case of children- the State is required to protect children from economic and social exploitation. Thus, on the one hand, the State is required to Act positively and on the other, while protecting children from economic exploitation, the State is most often to help the family of the children with financial assistance. Both these aspects make this fit into the classification of socio-economic right, added the fact that this is aimed at groups called women and children.

Right to adequate standard of living

  1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
  2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
  • To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
  • Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

This right is the most fundamental and minimum of all rights as far as sustenance of a person is considered. As the content of this right like adequate food, clothing and housing, freedom from huger etc. indicates, the State has to spend a handsome amount of its budget for realisation of this right. Thus it is a positive economic help from the State. Thus this right is qualified to be a socio economic right. At the same time, this right is individualistic also, and it is not a group right. This is clear from the very fact that the word used is right of everyone.

Right to highest attainable physical and mental health

  1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
  2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
    • The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
    • The improvement of all aspects of environmental and industrial hygiene;
    • The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
    • The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

This right also requires the State spend money for medical treatment for physical as well as mental diseases, reduction of still birth, infant mortality, making available nutritious food etc. This also surely involves spending of money by the State. Thus it is qualified to be The right is individually owned, and thus is not a group right also.

Right to education

  1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
  2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
    • Primary education shall be compulsory and available free to all;
    • Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
    • Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
    • Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
    • The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
  3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.
  4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

This right also requires positive help from the State which involves financial burden to the State. When education is to be made free in the primary level, the fellowship is to be given, schools and colleges should be established, teachers are to be given remuneration, State expenditure is involved. Thus, this right also qualifies to be a socio-economic right.

Cultural and intellectual property Rights

The States Parties to the present Covenant recognize the right of everyone:

  1. To take part in cultural life;
  2. To enjoy the benefits of scientific progress and its applications;
  3. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
  • The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
  • The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
  • The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

This right has two dimensions- one is the cultural and the other is intellectual. State parties are required to positively take steps to ensure the right of everyone to take part in the cultural life. So, though this right does not involve financial aspect, the positive intervention from the State is required, which makes this right also a socio economic right. The intellectual property right part is also like that. Because, to protect the interest of an author, through copyright demands making of a law which creates this right. This is a positive step to be taken by the State. Thus this is also a socio-economic and cultural right. This is also an individualistic right, as it is enjoyed by an individual in the individualistic capacity.

4. Conclusion

Thus, socio economic and cultural rights involve three aspects- one is the positive involvement of the State. Second, involvement of economy, and the third is it is given to a class of persons who are usually weaker- but the enjoyment of it is in the individualistic level. We found that among all the rights given in the ICESCR, they fell within category of socio economic rights, as they satisfy the above mentioned requirements.

But, among the civil and political rights, and in the African Charter on Human and Peoples Rights, there are certain rights which can be enjoyed only collectively, and individualistic enjoyment is impossible. These are called Group Rights. They may be socio economic or civil and political in nature. But, they fall in the category of group rights because of their characteristic of being owned by many people. The next chapter discusses about the Group Rights.

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Reference

  1. P Alston, ‘A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?’ 29 Netherlands International Law Review (1982) 307, 316.
  2. C. Wellman, ‘Solidarity, the Individual and Human Rights’ 22 Human Rights Quarterly (2000) 639, 641.
  3. K Vasak, ‘Pour une troisième generation des droits de l’homme’, in C Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles (ICRC & Nijhoff, 1984) 837, quoted in PH Kooijmans, ‘Human Rights – Universal Panacea? Some Reflections on the So-called Human Rights of the Third Generation’, 37 Netherlands International Law Review (1990) 315, 315.