Social Rights as Components in the Civil Right to Personal Liberty: Another Step Forward in the Integrated Human Rights Approach?

AuthorIda Elisabeth Koch
Published date01 March 2002
Date01 March 2002
DOIhttp://doi.org/10.1177/016934410202000103
Subject MatterPart A: Article
SOCIAL RIGHTS
AS
COMPONENTS IN
THE
CIVIL
RIGHT
TO
PERSONAL
LIBERTI:
ANOTHER STEP FORWARD IN
THE
INTEGRATED HUMAN RIGHTS APPROACH?
IDA ELISABETH KOCH"
ABSTRACT
The
article seeks to get closer
to
an
understanding
of
the legal implications
of
the notion
of
the
indivisibility
of
human
rights as distinct from the philosophical implications. While thefirst
part
of
the
article (Sections I-IV) deals with the notion
of
indivisibility in ageneral
way
by
discussing
possible interpretations
and
legal principles for pursuingan integrated
human
rightsapproach,
the second
part
ofthe
article (Sections V-VIII) deals with indivisibility in the concretecontext
of
deprivation
of
liberty for medical
or
social reasons. Despite increased awareness
of
the
possibilities
of
an integrated
human
rightsapproach,1the European
Court
of
Human
Rights has
in this particularcontext been reluctant to accept ablurred dividingline between social
and
civil
rights.
By
emphasising the close connection between the existence
of
treatment
and
the duration
of
the confinement, the article, however, argues that fulfilment
of
the civil right to personal
liberty
is
dependent
on
recognition
of
the interdependencebetween social rights
and
civil rights.
Even though social
and
civil rights have been separatedinto
two
conventions proportionality
and
teleological considerations lead to the conclusion
that
the (social) right to treatment ought to be
considered
an
integrated component
of
the (civil) right to personal liberty.
1INTRODUCTION
'Human rights are (
...
)indivisible, interdependent and interrelated.
The
international community must treat human rights globally in afair and equal
manner,
on
the same footing and with the same emphasis ...
'2
The
abovepassage
is
from theVienna Declaration and Programme
of
Actionfrom 1993,
but
the
view
that the
two
sets
of
rights -economic, social and cultural rights and civil
and
political rights -are indivisible goes
as
far back
as
modern human rights
themselves.
The
principle
of
indivisibility
was
contained in
the
so-called separation
resolution No. 543 from 1952
by
which the decision
was
taken to separate the rights
enumerated in the Universal Declaration into
two
covenants,S the International
Ph.D., Senior Researcher
at
the Danish Centre for Human Rights.
The
designation the integrated approach
was
originally introduced
by
Martin Scheinin.
Cf
Scheinin, M., 'Economic
and
Social Rights as Legal Rights', in: Eide,
A.
et al. (eds.) Economic,
Social
and
Cultural Rights: ATextbook, Martinus NijhoffPublishers,
The
Hague, 2001.
Vienna Declaration
and
Programme
of
Action, Section
1,
para. 5,
1993.
The
principle
of
indivisibility
is
formulated in the following
way
in the resolution: 'Whereas the
GeneralAssembly affirmed, in its resolution 421
V.
(V)
of
4December 1950
that
the enjoyment
of
civic
and
political freedoms
and
of
economic, social
and
cultural rights
are
interconnected
and
interdependent',
and
that
'whendeprived
of
economic, social
and
culturalrights, man does
notrepresent the
human
personwhom the Universal Declaration regards as the ideal
of
the free
NETIlERLANDS QUARTERLY OF HUMAN RIGHTS, VOL. 20/1,
29-51,
2002.
©NETIlERLANDS
INSITIUTE
OF HUMAN RIGHTS
(SIM).PRINTED
IN
THE
NETHERLANDS. 29
I
NQHR
1
/2002
Covenant
on
Economic, Social and Cultural Rights (ICESCR)
and
the International
Covenant
on
Civil
and
Political Rights
(ICCPR}.4
At the European level, the notion
of
indivisibility
is
implicit in the preamble to the European Convention
on
Human
Rights
from 1950 (ECHR).
The
preamble initially refers to the Universal Declaration
of
Human
Rights and goes
on
to presenttheconventionas
'the
first steps for the collective
enforcement
of
certain
of
therights stated in the Universal Declaration'.
The
European
Social
Charter
from 1961 covers the remaining rights -
the
economic, social
and
cultural rights.
That
human
rights are indivisible, interrelated
and
interdependent
has been
repeated for 50 years now, but
our
conception
of
the notion
of
indivisibility
is
still very
confused.
It
does indeed have positive
and
pleasantassociations,
but
it has also become
arhetorical slogan. Repeating it does
not
give
more
substance to it, and no
one
really
knows what
it
is
that
thewholeworld hasagreed upon.
As
expressedby Antonio Cassese
'this convenient catchphrase serves to
dampen
the debatewhile leaving everything the
way
it
was,.5
What
are
therefore the political and legal implications
of
the indivisibility
notion
at
the
international
and
indeed also
at
the national level?
Human
rights are to
be implemented
at
the national level,
and
sometimes
we
place adisproportionate
emphasis
upon
international legal sources and remedies
at
the
expense
of
the national.
Several factors have adisturbing impact
on
the
efforts to obtain aconceptual
clarification
of
the
principle ofindivisibility. Despite the
end
of
the
coldwar, economic,
social
and
cultural rights enjoy amuch weaker protection
than
civil and political rights,
and
we
are actually witnessing
two
concurrent discussions -
one
concerning
the
indivisibility
of
human
rights and
another
questioning
the
legal
nature
of
half
therights,
namely the economic, social and cultural rights.
The
present article deals with the notion
of
indivisibility
at
first
in
ageneral
way
without, however, attempting to define precisely what indivisibility might imply
(Sections I-IV).
The
second
part
of
the article (Sections V-VIII) deals with the notion
of
indivisibility in the concrete context
of
deprivation
of
liberty.
Allover
the
world
mentally ill people,
drug
addicts andothers sufferingfrom social disorders are deprived
of
their liberty for indeterminate periods
of
time because
of
their need for social and
medical care, and the duration
of
the confinement
is
likely to be
dependant
on
the
character
and
the quality
of
the treatment.
The
rationale for indeterminate detention
in these situations
is
exactly the uncertainty as regards the duration
of
the social
disorder.
It
is
usually
not
possible to predict how (soon) the person in questionwill react
to agiven treatment.
The
issue to be discussed in this context
is
therefore whether the
rightto social and medical assistance can be considered
an
integrated component
of
the
civil right to personal liberty. Can the lawfulness
of
adetention be considered without
also considering the treatment during the detention?
man
..
:
Cf
the ICESCR
and
the ICCPR,
both
from 1966.
Cassese, A., 'Are
Human
Rights Truly Universal?', in: Savic, O. (ed.), The Politics
of
Human
Rights, Verso, 1999, p. 159.
30

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