Indivisibility of Human Rights

After several decades from the codification of human rights, there have arisen calls for the respect and recognition of their indivisibility and equality. This term of indivisibility can be interpreted through various scopes and dimensions, such as political, civil, or economical rights. With the aim to highlight their equality, and the importance of their interdependence. This paper aims to highlight the shortcomings of the division of these rights into these groups, and how it could negatively affect their indivisibility and equality. The main categorization of these rights goes to two groups: civil and political; and economic, social, and cultural rights. The issue which arises with this categorization is that some situations, societies, or political groups may favor one set of these rights, over the other, inevitably leading to the neglect and alienation of the other group. The aim of the paper is to present the theoretical approach to this issue, dividing it into several categories, in order to further familiarize the reader with the problems that may arise when the equality and indivisibility of rights are endangered. 

Introduction 

In the previous decades and centuries, there was always an issue of which set of rights should be prioritized and given the higher value, and thus higher protection than the other sets of rights. Different categories changed according to the surroundings and conditions which prevailed in these surroundings such as political climate, economical situation, and cultural traditions. 

This dilemma has been resolved with the simple solution proposed by the United Nations, and this is to treat all rights as equally important, and because of equal importance, it is crucial that all of these rights are intertwined and mutually completed, which makes them indivisible. So any motion or action which would highlight one set of rights, and give it greater importance over another would ruin this balance. The ultimate aim is to enact all of these rights, ensure their equality and implementation in all societies all over the world. ¹ 

The importance of indivisibility of human rights is derived from the fact that it provides a clear system of human rights, which afterward allows for equality of all other rights, without prioritization of any over the other. But the experience and the tradition have shown that some rights are prioritized, which automatically disrupts the scale of balance, and pushes some rights in the background. 

The aim of this paper is to approach the theme of the indivisibility of human rights from theoretical and philosophical approaches. And how did this concept got adopted over time, and how its meaning changed through the decades. 

The first chapter dresses the history of the indivisibility of human rights, the second chapter approaches human rights from the standpoint that they are contemporary, and challenges this claim, chapter three questions the premise that all human rights are equally important, chapter four discusses indivisibility as a shared characteristic of all human rights. And in conclusion brief summary and overview of the standpoint and findings are offered in order to summarize and provide an answer to whether human rights are truly indivisible and equal. 

Historical background of human rights indivisibility 

In 1950 at the United Nations General Assembly, where delegates were trying to implement the Universal Declaration of Human Rights into a legally binding treaty form, the term “indivisibility” was first used.² This term was first used in order to highlight the unity of human rights, which was a very important aspect of human rights, as it provided protection from harmful categorization. As mentioned in the introduction of the paper, Human Rights were often categorized into the political-civil and economic-social categories, indivisibility is the main tool used to counter this categorization. Also, there is an issue of highlighting suppressed narratives and issues of marginalized groups, and their human rights issues, meaning that equality of Human Rights doesn’t mean only equality of rights towards each other, but also equality of different individuals’ human rights.³ Vienna Declaration⁴ proclaimed all human rights as indivisible, but there is a lot of terms and issues left unaddressed as the clear and broad definition is not given due to the legal, political, and other limitation. This definition in Declaration only addresses specific groups in the given context and leaves the interpretation and implementation to the international community, and international human rights instruments. 

From the theoretical and philosophical approach the question arises, what does indivisibility truly means, in the language used in the Vienna Declaration indivisibility is perceived as interdependent and interrelated, and view them as mutually supplement, while some critics view these adjectives as completely different and exclusive to each other.⁵ The different proponents argue that these terms are purely rhetorical and that the meaning and application of the term are demonstrated clearly in the real world. Whether it is to protect minimum human rights standards or advocate full realization of human rights, the message stays the same. Since those times, up to modern ones, the term indivisibility has motivated large movements and actions which gave birth to many resolutions, and the creation of many institutions tasked with the protection and promotion of  Human Rights, most notably, the United Nations High Commissioner for Human Rights. These applications made Human Rights a mandatory part of international law. On the other hand, the issue of implementation and protection of these rights remains an issue that survives up to modern times, since it is left to national implementation, where nations retain their sovereignty in viewing them as indivisible or giving advantage to a certain set of rights.  

Nevertheless, the indivisibility characteristic of Human Rights is really important, as it doesn’t differentiate between various sets and principles, and its approach is universal. Due to this trait many non-governmental and governmental organizations have stepped up and enhanced the monitoring techniques.⁶ This equal universal norm of Human Rights indivisibility and equality set a standard by which every nation adheres, without leaving a place where they may clash over the different applications and consideration of Human Rights in theory, in the real world, the situation is drastically different. 

Indivisibility of Human Rights through Complementarity 

Complementarity means that Human Rights do not interfere with each other, or prevent each other from being functional, instead, it means that they complement each other and ensure that they are all respected and implemented through the processes such as synergy and overlapping. Proponents of indivisibility claim that all human rights are strengthened through the achievement of a singular right and all of them are denied, or weakened with the denial of singular human rights. 

Practice of mutual reinforcement of Human Rights 

According to Scott, Human Rights are mutually reinforced through indirect connection (where Human Rights are separate); and direct connection (where Human Rights are connected directly, and they are creating subsets of other rights).⁷ The main argument is that every right is a precondition to another right, and this leads to the issue, of which right is the first one, or which one came first. Theorists are reluctant to provide an answer to this question as it would mean giving the priority, or the rule of first to a singular right, thus indirectly elevating it over the other rights, and assigning more meaning to it than to the others. Providing the answer would lead to increasing conflict between two different sets of rights (CPR and ESCR), for example, freedom of speech against the freedom of privacy. This is the primal example of the clash between private and public interests. 

With a look back on the previous examples, can we conclude that there is a mutual reinforcement between different sets of rights, if so, why are there so many tensions, and inclinations that one set of rights deserves prevalence and more importance over the other, wouldn’t the mere fact that fulfillment of one guarantee the fulfillment of the other be enough to extinguish these tensions and provide more harmony. The simple answer lies in the fact that one set of rights has been classified as individual, and the other has been classified as the collective set of rights, which inclines individuals to defend the individual set of rights more than they would defend the collective set of rights. The supporters of the indivisibility of Human Rights are classifying both sets of rights as individuals, in order to promote their protection and fulfillment and to motivate the individuals to defend and support them equally. The main argument is that every right has a partially individual and collective characteristic, and thus they are interconnected, as we can find the characteristics of one right in another one, and vice versa. Collective consists of individuals, which means that even if every Human Right is treated as an individual they together make a collection of Human Rights, adding strength to the interdependence argument.⁸ 

Indivisibility as a form of equality of Human Rights 

Equality of Human Rights per many theorists means that there is no hierarchy or any other distinction between rights which may render them into different categories through which they could be perceived as more or less important. As in other areas, there is a confrontation between HR scientists who claim that people naturally favor one set of rights over another, and this paves the way to its greater importance. Supporters of CPR argue that the right to life, freedom of movement are vital in sustaining a human being, and without them, it could be put in life-threatening situations. ESCR supporters claim that satisfying human needs is primary and most important, as it opens a road to the fulfillment of other Human Rights, as Eleanor Roosevelt pointed out, „You can’t talk civil rights to people who are hungry‟.⁹ 

Supporters of Indivisibility use the concept of equality in order to present a relationship between Human Rights which is neutral and all rights are equal, but forget the fact that the term and perception of equality have arisen from a singular set of rights, namely CPR. The term equality was popularized through two revolutions and constitutions which were made by the people which created these revolutions, where the American and French revolution, which focused solely on rights of the individual, its liberty, equality with others, and guarantee of the same rights. In other words, the fundamental characteristics of CPR are a set of rights. What they tend to derive from these two constitutions is the equality of people, and their rights, meaning that no individual enjoys more freedom or greater rights than the other. But even with these two definitions equality remains a vastly broad term, what are the norms and standards of equality, are they universal, and as such applied in every single situation and environment. Even the notion that neglecting both sets of Human Rights equally, means equality raising the need for clearer and further clarification of the term of equality. 

Focus on the substance of Rights rather than on the abstract of Rights. 

In order to further elaborate, and clarify the term of equality supporters of the indivisibility argue for the fulfillment of rights in substance, and through the notion of fulfillment of all rights, therefore their equality shall be guaranteed. This can be done by considering the historical and cultural implications, characteristics of the development of singular rights, and limitations that may be imposed upon this development. Taking developing countries as an example, they need development and fulfillment of both sets of Human Rights, but priority is always placed on the ESCR set of rights, in order to fulfill the CPR set of rights there is always a need for strong economic conditions and high standards of living in order to properly address the CPR set of rights. 

Indivisibility as a Shared Characteristic of Human Rights 

Another perception of indivisibility is that all human rights share a common characteristic of indivisibility, and this is what makes them equally important. According to Novogrodsky  ESCR set of rights shares the same essence as the CPR, which only reinforces the notion of indivisibility.¹⁰  What is important to add is another characteristic that is shared between the rights, and that is to protect human dignity. It finds its support and argument in many legal documents, international organizations, and basic notions of moral philosophies. Dignity is considered as a CPR concept and is often used interchange and same sentence as equality, and justice. Dignity is important because of the foundation it lays for the fulfillment and protection of Human Rights, often being used as a reminder of their indivisibility and equality.  

On the other side, there is an argument that there are some characteristics shared between the two sets of rights, but that this shared characteristic stops here. Those who claim this, say that if there are so many shared characteristics then human rights are tall the same, and there is no need for differentiation and placement into different groups. It is also hard to argue that every single right and its fulfillment directly influences the others, as it is hard to prove a real-life connection and provide clear empirical evidence or example of such occasion. And according to this, we shouldn’t automatically assume that all human rights are similar and have the same characteristics, and also we can argue that rights are independent of each other, or they are partially dependent, so there are arguments for both arguments. Such as that there is full interdependence or that there is no interdependence, or that there is a shared characteristic of rights, or that all rights are unique. Most probably the case is that the truth is somewhere in the middle, with no clear-cut definition or limitation on interdependence, and shared characteristics. 

Indivisibility as a characteristic not shared among Human Rights  

This approach to the human rights characterization views Human Rights as unique and without shared characteristics and as such indivisibility as well is not perceived as a shared or essential characteristic. Proponents of this idea claim that human rights themselves are a definition of complex human activity and they are not bound by certain definitions and distinctions.¹¹ And even the categorization of human rights into two different sets (CPR and ESCR) is merely done to enable the justiciary and theoretical clarifications. According to Koch:  

There is a certain overlapping and intertextuality between the two sets of rights that seems to permit or even mandate an interpretation that dissolves the boundaries between the two distinct categories. … there are no watertight divisions between the two sets of rights.¹²  

According to this, and taking into account that Human Rights are often characterized as interdimensional, different in theory and practice, and mixed, we can conclude that it is not necessary or even correct to categorize human rights into specific groups or norms, except for the sake of clarification and easier implementation. Indivisbilists tend to differentiate the rights according to the form not according to the content. For them, categorizations and divisions of rights arose from the historical practices and implementations of rights. Differences between the East and the West served only to highlight these divisions and categorizations. They claim that form of Rights changes according to the major historical events which shape the future of all aspects of society and as such, they impact Human Rights, an example of the War of Independence in North America, The Revolution in France, the end of apartheid in the South African Republic and so on. After World War II, the Universal Declaration of Human Rights (UDHR) was drafted in order to prevent atrocities in the future as ones that were committed by the Nazis. It is easy to assume that Human Rights exist from the first codifications of laws, but it is wrong, as it took hundreds and thousands of years to codify and enact laws that promote and protect Human Rights as we know them today. 

As for the differentiation and categorization of Human Rights, many supporters of indivisibility claim that Human Rights were split into different categories due to the Cold War, the split between the West and East, and capitalism and socialism. After the end of the Cold War and due to the great rise in liberalism many claims that CPR due to the liberal characteristics gained more importance than the ESCR, which brought the need for indivisibility and the need to portray and keep all rights indivisible, prior to these events, all Human Rights were naturally considered indivisible and equal.¹³ 

Conclusion 

The aim of this paper was to present the idea of indivisibility and equality of Human Rights through main characteristics of Human Rights, and those which are considered and defined by the theorists, and proponents of indivisibility theory, none less the argumentation in every chapter has presented arguments for and against the claims carried out in the main lines of each chapter, through consideration of both sides. To conclude the whole ordeal and list out the final conclusion proves demanding but through further examination, we can see that indivisibility as a claim didn’t prove to influence the status of Human Rights. ESCR and CPR set of rights still remain different, and as such the outlook and perception of these hasn’t changed, and the treatment has stayed the same, with countries giving advantage and priority to the CPR over ESCR set of rights. After the end of the Cold War and the start of globalization, this trend only swept over those regions of the world which haven’t been influenced yet, no equality or new balance between Human Rights was created. 

Proponents of the indivisibility theory blamed the outcome on the unwillingness to further clarify two different sets of rights, and through this clarification bring more common treats to the practice and theory of Human Rights. nevertheless, the practical treatment of Human Rights by international organizations and countries has stayed the same, without inclinations that it will change in the future, or rather a major historical event needs to take place in order for societies to perceive it differently. The attempt to promote the idea of indivisibility as a characteristic same as interconnectedness and interdependence has only reinforced the existing claims due to the nature of CPR, it can go as far as having a negative effect on the promotion of Human Rights and idea on indivisibility, creating animosity and reluctance to perceive them as such. 

The final conclusion is that Human Rights as of now, and in these times are best left as they are, ensuring that they are promoted and protected, with keeping track of how exactly the claim of indivisibility fares in the real world, without attempts to artificially impose this trait due to the theoretical and ideological differences and disputes. And possibly in the future when certain major events take place, Human Rights will naturally follow the events and nature of them, and adapt according to the requirements, and these adaptations and evolutions may bring the notion of indivisibility as it is perceived today. 

Bibliography 

Articles 

• Baxi, Upendra, ‘What Happens Next is Up to You: Human Rights at Risk in Dams and Development’ (2001) 16 American University International Law Review 1507. 
• Besson, Samantha, ‘The European Union and Human Rights: Towards a Post-National Human Rights Institution?’ (2006) 6(2) Human Rights Law Review 323. 
• Copelon, Rhonda, ‘The Indivisible Framework of International Human Rights: A Source of Social Justice in the U.S.’ (1998) 3(1) New York City Law Review 59. 
• Koch, Ida Elisabeth, ‘Social Rights as Components in the Civil Right to Personal Liability: Another Step Forward in the Integrated Human Rights Approach?’ (2002) 20(1) Netherlands Quarterly of Human Rights 29. 
• Novogrodsky, Noah, ‘The Duty of Treatment: Human Rights and the HIV/AIDS Pandemic’ (2009) 12 Yale Human Rights and Development Law Journal 1. 
• Petersmann, Ernst-Ulrich, ‘On ‘Indivisibility’ of Human Rights’ (2003) 14 European Journal of International Law 381. 
• Scott, Craig, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27(4) Osgoode Hall Law Journal 769. 
• Wilde, Ralph, ‘NGO Proposals for an Asia-Pacific Human Rights System’ (1998) 1 Yale Human Rights and Development Law Journal 137. 

Books 

Koch, Ida Elisabeth, Human Rights as Indivisible Rights: The Protection of SocioEconomic Demands Under the European Convention on Human Rights (2009). 

International Sources 

• Universal Declaration of Human Rights, GA Res 217 A (III) (adopted 10 December 1948). 
• Vienna Declaration and Programme of Action: Report of the World Conference on Human Rights, Vienna, 14-25 June 1993, UN Doc A/CONF.157/23 (1993); 32 ILM 1661 (1993).