Introduction to Human Rights Week 4: Typology III. Second generation: economic, social and cultural rights Let us open the second drawer in which we will find the rights of the second generation: Economic, Social and Cultural Rights. These rights go back to the 19th century. According to Vasak, they embody the value of equality. These rights are also protected at the universal and regional levels. At the universal level, we find them again in the Universal Declaration of Human Rights and in the other Covenant, the Covenant on Economic, Social and Cultural Rights also called "the ICESCR". At the regional level, except for one exception, all the major conventions protect the Economic, Social and Cultural Rights. The content of the European Convention of Human Rights is exclusively limited to the so-called first generation of rights. At the European level, the European Social Charter is a specific convention which protects the rights of the second generation. The same is true on the American continent. The Protocol of San Salvador protects the rights of the second generation. This protocol completes the American Convention on Human Rights which only devotes one provision - Article 26 - to the rights of the second generation. Just like the first generation, the rights of the second generation are divided into several subcategories. There are indeed three subcategories: economic rights, social rights, and cultural rights. I am first going to talk about economic and social rights before talking about the third subcategory of cultural rights. Economic and social rights have their roots in socialist and communist ideology. Indeed, Marx was very critical towards the rights enshrined in the Declaration of the Rights of Man and of the Citizen, which belong to the first generation of rights. In his book "On the Jewish Question", published in 1844 Marx wrote: "Above all, we note the fact that the so called rights of man, as distinct from the rights of the citizen, are nothing but the rights of a member of civil society – i.e., the rights of egoistic man, of man separated from other men and from the community." What is freedom for the poor, according to Marx? Freedom to starve to death. Property is a right which allows the people who have property to exploit the ones who do not have any. In other words, the rights of the first generation are not useful. They do not take into account the interests of the proletariat, originated in the Industrial Revolution. Anatole France eloquently said the same thing in his book "The Red Lily" published in 1894: "Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this. In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread. In this quotation, Anatole France attacks formal equality. According to formal equality, all citizens are equal before the law, the law applies equally to all of them. Of course, begging is prohibited for everyone. But let us have a look at the facts. A ban on begging especially affects the poor. This ban is not relevant for rich people. In other words, formal equality is not enough for the poor. We should aim for substantive equality, this is equality in the social reality. Therefore, the value of equal opportunity, or even of equal results, underlies the rights of the second generation. In order to achieve substantive equality - an equality of opportunity or of results - the State cannot remain passive. It must act. It must, for example, provide the most elementary goods and services to the people. It must also adopt social policies. It must, for example, institute a free and compulsory education system. Therefore, the rights of the second generation allow the individuals to demand services from the State. This is why the rights of the second generation are also referred to as "entitlements" or "rights as swords". For example, the State violates the right to housing if it leaves the citizens sleeping under the bridges. It violates the right to food if it leaves the people starving to death. We see here another image of the State, different from the one underlying the first generation. According to the first generation, the ideal State is the night watchman State, this is the minimal State. On the other hand, the second generation conceives of the State as a welfare State. Which rights belong to economic rights and to social rights? Economic rights are linked to the status of workers. Workers are people who exercise a dependent gainful activity. These rights for example contain: freedom of association and the right to strike. These rights aim at protecting the collective action of the workers. There is also the right to work, that is to say the opportunity to earn a living with a freely chosen or accepted work. There is also the right to just remuneration and to a reasonable working time as well as the guarantee of hygiene and safety at work. Social rights, now. Social rights are independent from the status of being a worker. These human rights belong to all human beings. These rights aim at meeting the most elementary needs of the people. We can identify four fundamental needs: food, health and hygiene, housing, and clothing. These four needs are also protected in the Covenant on Economic, Social and Cultural Rights. This is, for example, the case in Articles 11 and 12 of the Covenant. Article 11 of the Covenant is worded as follows: "The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions." As for Article 12, it enshrines the right to physical and mental health. Even though social rights belong to everyone, these rights are de facto more relevant for the more destitute people of the society. This had repercussions at the international level of Human Rights. Indeed, some conventions are nowadays enshrined to vulnerable groups. These specific conventions protect groups who need particular protection. This is for example the case of women, children, people belonging to ethnic or racial minorities and also the disabled. Until now, we have been talking about economic and social rights as well as about specific conventions. It might be important to make clear that these specific conventions do not belong to the second generation. However, the basic value underlying these conventions is also substantive equality: some people need special protection. Now, what about cultural rights? We have not talked about them yet. Cultural rights belong to the third subcategory of the second generation of rights. The basic idea behind these rights is that personal identity is closely tied to one's cultural background. These rights have their roots in the 19th century. At that time, there was criticism of the Enlightenment and its way of considering that a man was an isolated individual. Here, the emphasis is placed on the fact that a person belongs to a cultural community. Generally speaking, cultural rights protect the participation in and the access of every person to the cultural life. This raises the issue of knowing what we mean by cultural life or by culture. These terms are difficult to define and they are debated. Inspiration can be found in the work of UNESCO. Another useful definition was suggested in the so-called Fribourg Declaration. This Declaration was developed by a interdisciplinary working group under the auspices of the University of Fribourg. How does this Declaration define culture? "The term “culture” covers those values, beliefs, convictions, languages, knowledge and the arts, traditions, institutions and ways of life through which a person or a group expresses their humanity and the meanings that they give to their existence and to their development." Which rights belong to cultural rights? This question is also debated. Cultural rights belong to the less defined subcategory. According to the authors, the concepts of cultural rights vary. If we consider a rather minimalist concept of cultural rights, we will find the following rights: - the right to education - the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits - the freedom indispensable for scientific research and creative activity. - the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
