Jean Monnet Center at NYU School of Law


5. Indivisibility and Justiciability of Freedom and other Human Rights in UN Law? Towards "Global Freedom?

The 1948 Universal Declaration of Human Rights integrated civil, political, economic, social and cultural human rights in one single legal text. However, the numerous UN declarations on the indivisible and interrelated character of civil, political, economic, social and cultural human rights have so far not been translated into reality on the worldwide level of UN law. Even though the survival and personal development of billions of people depend on the international division of labor, and unnecessary poverty, food and health problems prevent billions of people from enjoying their human rights, UN human rights law and most human rights lawyers continue to focus more on protection of civil and political rights than on economic and social human rights. The UN Covenants of 1966, for example, protect "first generation" civil and political rights more effectively than "second generation" economic, social and cultural rights.91 Only more recent UN human rights treaties dealing with specific problem areas - such as the 1979 Convention on the Elimination of all Forms of Discrimination of Women as well as the 1989 Convention on the Rights of the Child - have begun to return to a holistic human rights conception by granting equal importance to economic, social and cultural rights as to civil and political rights in their realm of protection.92 UN law still seems far away from "making the global economy work for human rights" by embedding a strong human rights culture in the worldwide division of labor.93

Human rights need to be protected, mutually balanced and reconciled not only at the national level through democratic legislation, but also across frontiers through international treaties. National and international human rights include rights to democratic participation in the exercise of government powers and rights of access to courts.94 All legislative, executive, judicial and also foreign policy activities of governments must aim at promoting human rights: "Human rights and fundamental freedoms are the birthrights of all human beings; their protection and promotion is the first responsibility of Governments."95 Does the collective intergovernmental rule-making in UN agencies and the WTO, often behind closed doors and without effective parliamentary control, comply with these human rights requirements of democratic rule-making maximizing human rights? Moreover, UN and European human rights law recognize that democratic limitations on human rights are subject to constitutional requirements of legality, non-discrimination, necessity and proportionality: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society" (Article 29 UDHR). Are the centuries-old traditions of discriminatory border restrictions against foreign goods, foreign services and foreigners justifiable in terms of human rights notwithstanding their welfare-reducing effects?

The exercise of all human rights depends on resources (such as food, information, health and educational services). Open borders enable domestic consumers to enjoy more, better and a larger variety of goods and services at lower prices than in the domestic markets, without preventing governments from applying "optimal policy instruments" for correcting "market failures" and supplying "public goods". Since legislative, administrative and judicial protection of human rights is costly and liberal trade increases national income and consumer welfare, it is not surprising that constitutional democracies tend to have open economies, whereas non-democracies often close not only their "political markets" but also their economic markets. The manifold interrelationships between decentralized, democratic coordination among autonomous citizens in "political markets" and decentralized, rights-based coordination in "economic markets" continue to be unduly neglected by the one-sided disregard of UN human rights law for the constitutional preconditions for the proper functioning of national and international economic markets as "engines" for creating and supplying economic resources needed for enjoyment and effective protection of human rights.

The new human rights challenges resulting from the modern globalization of communications, markets and governance structures illustrate the significance of a dynamic conception of liberty, as it is reflected in the Ninth Amendment of the US Constitution: "the enumeration of certain rights in this Constitution shall not be construed to deny or disparage others retained by the people".96 Constitutions and human rights instruments are historical and political documents which, even though the text may focus on particular problems at a particular time (e.g. "civil" and "political liberty" rather than "economic liberty"), should be construed as protecting individuals against all arbitrary coercion. It is no coincidence in this respect that modern constitutions of European countries with historical experiences of dictatorship (notably in Germany) protect individual freedom of personal development in the Kantian sense of maximum equal liberty across frontiers, and grant corresponding rights of access to courts and judicial review of whether legislative or administrative restraints of indvidual freedom are "unnecessary", disproprotionate or otherwise arbitrary.97 Nor is it a coincidence that almost all European countries, following their negative experiences with widespread cartelization and abuses of economic power during the first half of the 20th century, have adopted national and international competition rules since the 1950s prohibiting abuses of private and public economic power and granting citizens judicially enforceable rights against restraints of competition and abuses of "market power".98 By protecting new "transnational fundamental rights" which had previously not been recognized in national constitutions of EC member states, EC constitutional law has extended human rights across frontiers based on a dynamic conception of freedom and fundamental citizen rights.

UN law emphasizes the "indivisibility" of civil, political, economic, social and cultural human rights and the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.99 Yet, the practice of UN specialized agencies and of the WTO is still far away from understanding and regulating economic issues as human rights issues. For example, protection of private property is not mentioned in the UN human rights covenants even though private property rights are indispensable not only for economic welfare (e.g. as legal incentives assigning responsibility for maintaining an asset, for bearing the loss for not doing so, for enabling transfers of resources and an exchange economy) but also for political freedom and the rule of law.100

In the jurisprudence of the EC Court of Justice and the European Court of Human Rights, economic and social rights have been recognized long since as legal and "justiciable" rights to be protected by national and international courts.101 The entry into force in 1999 of the 1995 Protocol providing for collective complaints under the European Social Charter of 1961 confirms the increasing recognition of legal and judicial remedies for the protection also of social rights. The UN Committee on Economic, Social and Cultural Rights has consistently argued that all ICESCR rights constitute individual rights, and possibilities for collective rights guarantees, and corresponding state obligations to respect, protect and fulfil the rights of individuals and groups.102 Yet, human rights are not yet effectively integrated into the law and policies of most worldwide organizations.

91 See e.g.A.Eide/C.Krause/A.Rosas (note 46), at 15-77.

92 Cf. I.Merali/V.Oosterveld (eds.), Giving Meaning to Economic, Social and Cultural Rights, 2001.

93 M.Robinson, Making the Global Economy Working for Human Rights, in: G.P.Sampson (ed.), The Role of the World Trade Organization in Global governance, 2001, at 209.

94 See e.g.: C.Harlow, Access to Justice as a Human Right: The European Convention and the European Union, in: Alston et alii (note 4), 187-214.

95 Vienna Declaration (note 74), section 1.

96 See the criticism by Hayek (note 72) that the meaning and constitutional functions of this provision were "later completely forgotten" (at 186).

97 See e.g. Article 2 (1) of the German Basic Law: "Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law." Article 2 (1) has been construed by German courts to protect also individual economic freedom across frontiers (e.g. rights to import and export subject to democratic legislation), cf. Petersmann (note 44), at 336 et seq. Article 93 of the Basic Law protects individual access to the Federal Constitutional Court by means of direct "constitutional complaints which may be filed by any person alleging that one of his basic rights ... has been infringed by public authority."

98 See the books by Amato and Gerber above in note 17.

99 Vienna Declaration (note 90), section 5.

100 On these historical, philosophical, economic and legal links between private property and freedom see: R.Pipes, Property and Freedom, 1999.

101 See e.g. M.Scheinin, Economic and Social Rights as Legal Rights, in: Eide et alii (note 46), 41-62.

102 See E.Riedel, Rights subjected to the Complaints Procedure, paper submitted to the Workshop on the Justiciability of ESC Rights with Particular Reference to an Optional Protocol to the ICESCR at the UN High Commissioner for Human Rights, 5-6 February 2001.




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