Absolute and Qualified Rights

In previous articles, the HRC has explained that whilst there are now various different types of human rights recognised in international law, all of these rights are considered to be both fundamental and universal.  Human rights do, however, fall into different categories when it comes to their legal application and enforcement.  In part, this explains why the United Nations, when seeking to build upon its Universal Declaration of Human Rights, ultimately had to settle for two separate but parallel human rights treaties – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – rather than one single treaty, which encapsulates all human rights.

First generation rights, as they are sometimes referred to, or civil and political rights, such as the rights to liberty and freedom of expression, tend to be more readily enforceable.  They provide individuals with protection against governmental encroachment, so where a nation does intrude on an individual’s civil and political rights, the individual generally has recourse to a court of law and a legal remedy to prevent the nation from so doing.

In contrast, second generation economic, social and cultural rights; such as the right to work and the right to housing; are more of an aspiration.  Rather than obligating a nation to positively ensure that everybody has a job and a roof over their head; which would clearly place a significant financial burden on the nation; economic, social and cultural rights are more akin to statements of intent.  This is why these rights, at least in international law, are usually monitored through periodic reports by contracting nations, leaving individuals no avenue of recourse for direct enforcement.

As the meaning of human rights has evolved, third generation people’s rights have also emerged.  Largely conceived of in a post-colonial African context, in which civil and political rights represented an unwanted challenge to newly-gained sovereignty and economic and social rights were thought to be too expensive and therefore unrealistic, rights such as self-determination, peace and security, and a satisfactory environment favourable to development were thought to be more relevant.  Like economic, social and cultural rights, third generation rights are also more difficult, although not necessarily impossible, to enforce.

Within the collection of rights generally referred to as civil and political rights, a further distinction between rights that are absolute and rights that are qualified is also possible.  Some human rights, such as the prohibition of torture and slavery are considered to be absolute – it never being justifiable in human rights law for a nation to torture or enslave persons.  Other civil and political rights; including freedom of expression and, perhaps surprisingly to some, even the right to life itself; can be described as qualified rights.  This is because some limitations are permitted on these rights.  For example, Article 19 of the International Covenant on Civil and Political Rights subjects freedom of expression to restrictions where the rights or reputations of others are unduly infringed; where national security or public order are improperly threatened; and where public health or morals are disproportionately violated by the expression.  The balance between the right and the permissible limitations is regulated by requiring the limitations to be both necessary and prescribed by law; thereby maximising the right and minimising its limitations.