6 Economic, Social and Cultural Rights as “Positive Rights”

Prof. Rehan Abeyratne

Introduction

Traditionally, human rights have been divided into two categories: (1) civil and political rights and (2) economic, social, and cultural rights. This division emerged from a political dispute between the Western and Eastern blocs during the Cold War, resulting in two major human rights treaties – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

In addition to this political divide, the two sets of rights have also been separated on the grounds of justiciability. It has long been argued that civil and political rights are more readily enforceable in court because they are more clearly defined and do not involve complex questions of resource allocation. Economic, social and cultural rights, by contrast, were thought to be beyond the province of courts and better left to legislatures.

This chapter will introduce students to the debates surrounding positive and negative rights and argue that the distinction was largely invented for political reasons, but in fact, all human rights have both positive and negative aspects.

Learning Outcomes:

• After completing this chapter, students should know and understand:
• The historical origins of the positive versus negative rights distinction The theoretical basis of this distinction
• How the distinction is flawed, and all rights have both positive and negative dimensions

1. The Historical Origins of the Positive and Negative Rights Distinction

The distinction between positive and negative rights dates back at least to the great philosopher Isaiah Berlin. In an influential lecture entitled “Two Concepts of Liberty” delivered at the University of Oxford in 1958, Berlin famously distinguished between “positive” and “negative” liberty. This lecture was later published in 1969 volume entitled Four Essays on Liberty. Berlin defined negative liberty much as we do today, stating that it involving “an answer to the question: ‘What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons.” However, his definition of positive liberty was far different. Berlin drew from Aristotle to define this kind of liberty as permitting participation in self-government and enabling full political citizenship. Thus, it is not the freedom from government intervention, but “freedom as self-mastery” – to be an active participant in choosing the life you will lead and deciding by whom you will be governed. While this “positive” liberty is not connected to economic and social justice, Berlin’s terminology has been coopted and applied in that context.

In international human rights law, the distinction between positive and negative rights emerged out of political dispute during the Cold War. The UN Commission on Human Rights (CHR) was created in 1946 to draft the Universal Declaration of Human Rights (1948). Since the UDHR was an aspirational declaration that did not have any legally binding force, the CHR was later authorized to draft a covenant (treaty) that would elaborate on the rights in the UDHR and give them legal force. Negotiations over this covenant took place against the backdrop of the Cold War, which pitted the “Western” Bloc (comprised of the United States and Western Europe) versus the “Eastern” bloc (including the Soviet Union and other socialist states).

The Western bloc favored two separate covenants. They argued that civil and political rights were fundamentally different from economic, social and cultural rights (ESCRs). In particular, they believed that ESCRs were more difficult to implement and enforce. The Eastern bloc, however, sought to preserve ESCRs within a single covenant, arguing that all human rights are indivisible and interdependent. In the end, the CHR drafted two separate conventions that were introduced in 1966 and came into force in 1976. They are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Western Bloc endorsed the ICCPR, while the ICESCR received support from the Eastern Bloc. Today, while most countries in the international community have ratified both treaties, the historical division between the blocs can still be seen. For instance, the United States has not ratified the ICESCR, while China (which maintains a communist government, whose political views roughly align with the former Eastern Bloc) has not ratified the ICCPR.

II. The Theoretical Distinction Between Positive and Negative Rights

The distinction between negative and positive rights is rooted in the nature of the two sets of rights. Civil and political rights are categorized as negative rights, while ESCRs are characterized as positive rights. This section defines what is traditionally meant by negative and positive rights and sets forth the theoretical basis for this distinction.

Negative rights do not impose an obligation on others to provide an individual with any benefit or access to a benefit. These rights permit individuals to perform certain activities and ensure that there is no interference of this right by others. The term ‘negative’ is used because these rights are intended to impose restrictions on the state, in particular, from interfering with citizens’ enjoyment of certain individual freedoms. For instance, the First Amendment to the United States Constitution guarantees the right to freedom of speech without abridgment or interference from government. Thus, negative rights are sometimes called “liberty” rights and can be understood as protecting liberty against the government and third-party interference. Civil and political rights, in theory, fall into this category. If a state must respect your freedom of speech and assembly and refrain from taking your life or personal liberty without due process of law, it is merely abstaining from action. In other words, mere inaction on the part of the state is traditionally believed to be adequate to uphold civil and political rights. This conception of rights has been forcefully defended by Frank B. Cross, an American law professor. According to Cross, the distinction between positive and negative rights makes sense, and he proposes a test to prove this. He says:

I propose the following simple test for distinguishing between positive and negative rights–if there was no government in existence, would the right be automatically fulfilled? If there is a government in place, one must call upon that government to enforce one’s rights, whether positive or negative. However, the negative right is not dependent upon government in the sense that the abolition of government would intrinsically satisfy the right. In other words, if there is no government, it cannot establish a religion, pass a law denying free speech, or deprive its citizens of life, liberty, or property without due process.

However, Cross argues that positive rights will not be fulfilled if the government did not exist. In his view, economic and social justice issues, like homelessness or a lack of healthcare, would persist even if there were no government. Thus, positive rights impose obligations on others, particularly government, to take affirmative measures to remedy violations. On this theory, economic, social, and cultural rights fall into the category of positive rights. They are aimed at fulfilling certain material needs, such as food, water, and shelter, as well as providing access to the cultural life of the community. They are, therefore “positive” in the sense that they would not be fulfilled merely through government inaction; the government must take positive steps towards securing these rights.

On this account, positive rights lack the legal force of negative rights. Positive rights are cast as policy directives that do not give rise to legally binding duties and obligations. Indeed, they are often drafted in aspirational terms and subject to progressive realization. Part IV of the Indian Constitution demonstrates all these features of positive rights. The “Directive Principles of State Policy” contained in Part IV include a range of policy objectives for the state to pursue progressively and in light of resource constraints. For instance, Article 38 (2) provides, “The State shall, in particular, strive to minimise the inequalities in income.”

A final distinction is that negative rights are theoretically justiciable, while positive rights are not. There are usually two arguments offered in support of this position: (1) that ESCRs involve complex questions of resource allocation that are beyond the ken of judges; and (2), that ESCR cases involve the judiciary in policy questions that are the province of the legislature, not of the judiciary.

For all these reasons, negative and positive rights are considered theoretically separate and distinct.

The table below illustrates these differences.

Distinction between Negative and Positive Rights

III. Moving Past the Traditional Distinction – All Rights Have Both Positive and Negative Aspects

In the previous section, we looked at the traditional distinction between positive and negative rights and how ESCRs are generally classified as positive rights. This section seeks to criticize this distinction in three ways, by arguing: (1) that civil and political rights have some “positive” aspects; (2) that ESCRs have some “negative” aspects; and (3), that all human rights are interdependent and the distinction between positive and negative rights ignores this core idea.

In Basic Rights: Subsistence, Affluence and U.S. Foreign Policy, Henry Shue put forth one of the first comprehensive criticisms of the positive-negative rights distinction. He noted that even so-called negative rights (what he called “security” rights) require positive government action to be upheld. As he put it, the right to physical security is not a demand to be left alone, but rather a demand to be protected from harm. If the government is to enforce civil and political rights, such as the rights to life and liberty, it must hire and pay police officers, prosecutors, and judges. In addition, such enforcement requires the government to pay for infrastructures like courtrooms and police stations. The same can be said of the right to free speech. The police are required to protect unpopular speakers from violent acts and control crowds in public demonstrations.

In The Second Bill of Rights, Cass Sunstein goes even further than Shue in arguing that enforcement of civil and political rights requires government intervention. Sunstein, in particular, targets laissez-faire – the theory that economic markets work most effectively with no government intervention. Drawing from the insights of American legal realists, Sunstein argues that no one actually opposes government intervention. Even those individuals who desire less regulated markets or lower taxes actually directly benefit from government spending. After all, if there were no police forces or courts, the wealth that these individuals accumulated could simply be taken away by others without any recourse. Moreover, Sunstein says that even the most basic assumptions on which economies function – that wealth is represented by money and that we have individual property interests in that money (or the monetary value of our assets) – are created and enforced by the government. Money, property, and ownership are entirely human creations that governments uphold not only by protecting us from others but by printing money and by operating a legal system that recognizes the value of our money and assets. He writes, “Economic value does not predate law; it is created by law.” Thus, the enforcement of any right, be it the freedom of speech, the right to life, or property rights, depends on the proper functioning of government institutions and are therefore not free, but rather involve substantial costs.

If civil and political rights have “positive” aspects, ESCRs have “negative” aspects too. On a practical level, this is more evident with some ESCRs than with others. Take cultural rights for example. They are protected both within the ICCPR and ICESCR. While Article 27 of the ICCPR protects the right of minorities to profess and practice their culture, Article 15 of the ICESCR requires states to recognize the right of all citizens to take part in cultural life and benefit from the protection of moral and material interests emanating from authorship of literary, artistic or scientific works. The right to education is similar in this respect. Article 18 of the ICCPR requires states to “have respect for the liberty of parents, or legal guardians, to ensure the religious and moral education of their children in conformity with their own convictions.” Meanwhile, Article 13 of the ICESCR requires, inter alia, that the state provide free and compulsory primary education to all children. Both these rights, therefore, have both “negative” and “positive” aspects.

Other ESCRs also have “negative” aspects even if they are less apparent. The right to food, at first glance, appears to be a wholly “positive” right. After all, if individuals do not have adequate food or access to food, the government must take affirmative steps to provide food to them. But the right to food does not just involve government handouts or subsidies. It also protects individual food supplies or access to food from others’ interference. For instance, if a farmer grows his own food and a third-party destroys his crops, his right to food is infringed. Therefore, the government must protect farmers’ crops from private acts of destruction. In this sense, the right to food is much like a civil and political right – the government must operate law enforcement and legal systems to protect the food supplies of each citizen, just as they would protect the right to free speech or personal liberty.

On a more fundamental level, the positive/negative rights distinction is problematic because it conflicts with our understanding of international human rights. Since the UDHR (1948), it has been widely agreed that human rights are indivisible and interconnected. The deprivation of some rights often leads to the deprivation of others, which is why states must strive to uphold all rights and, in general, should not prioritize certain rights over others. The rights contained in the ICESCR are subject to progressive realization, but that does not mean that they are lesser rights. Indeed, serious economic and social inequality not only violates ESCRs but also directly contributes to civil and political rights violations. For instance, a starving or severely malnourished person is unlikely to vote, participate in cultural or social life, or even be able to exercise her freedom of speech. A homeless person living on the street is not just deprived of the right to housing; she also does not enjoy the right to personal liberty, security, or a dignified life.

Thus, the distinction between negative and positive rights is deeply problematic and, in many ways, is misleading as to the nature of ESCRs. It is still important to know and understand the distinction, however, as it persists today in the academic literature. And, for political reasons, it explains the dichotomy between civil and political rights in the ICCPR and ESCRs in the ICESCR. This is an important feature of the international human rights architecture we have today.

Summary

The distinction between positive and negative rights emerged from Isaiah Berlin’s 1958 lecture on “Two Concepts of Liberty.” Berlin’s conception morphed into the form we know today due to a political conflict in the Cold War. Following the adoption of the UDHR in 1948, the Western and Eastern Blocs could not agree on a single human rights covenant to give legal force to the UDHR’s provisions. The UN Commission on Human Rights, therefore, drafted two covenants – the ICCPR and ICESCR – which divided civil and political rights from economic, social and cultural rights. The former was understood to be “negative” rights, while the latter were classified as “positive” rights.

The theoretical distinction between positive and negative rights has largely focused on the role government plays in rights enforcement. Frank Cross, for instance, has argued that civil and political (“negative”) rights can be fulfilled simply by government inaction, or the absence of government, while ESCRs require positive state action to be enforced. Other differences between the rights are (1) that ESCRs are usually framed as policy directives and/or are subject to progressive realization, while civil and political rights are not, and (2) that ESCRs are non-justiciable because they involve complex issues of resource allocation that are beyond the scope of judicial competence and are best left to legislatures.

However, in at least three ways, the positive/negative rights distinction is problematic. First, so-called “negative rights” have important “positive” dimensions. The state must employ police forces, prosecutors and judges to enforce rights to liberty and free speech. Moreover, even the most fundamental aspects of property ownership and economic value are created by government, so even those who supposedly oppose government intervention, actually strongly support the sort of intervention that allows them to retain their property and accumulate wealth. Second, “positive” rights like ESCRs also include “negative” aspects, which require the government, for instance, not to discriminate against minority cultures and to protect the food supplies of citizens from the destructive acts of third-parties. Finally, all human rights form part of an indivisible and interdependent scheme. If states were to enforce only civil and political rights, but not ESCRs, it might lead to large social and economic inequalities that would lead to civil and political rights deprivations. After all, people who are starving or homeless do not have their rights to liberty or to a dignified life upheld.

Reference

1. “Justiciability of Economic, Social, and Cultural Rights in Domestic Law”.
2. Cass R. Sunstein, The Second Bill of Rights (New York: Basic Books, 2004)
3. International Commission of Jurists, “Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability”, Human Rights and Rule of Law Series
4. Four Essays on Liberty