Introduction to Human Rights Week 4: Typology The relevance of the generational classification: Interview with Abdoulaye Soma and Gregor Chatton I am very pleased to welcome today Professor Abdoulaye Soma and Doctor Gregor Chatton. Abdoulaye Soma, you are Professor of Constitutional and International law at the University of Ouagadougou in Burkina Faso. You wrote your PhD thesis at the University of Geneva on the theme of "Human Right to food and food security in Africa". Doctor Chatton, you have just defended your PhD thesis on the realization of Economic, Social and Cultural Rights. You are also the author of two books. The first one deals with the justiciability of Economic, Social and Cultural Rights. The second one was devoted to the typology of Human Rights. Professor Soma, Doctor Chatton, you have both given much thought to the question of Human Rights' classification into three generations and I am delighted that you have accepted the invitation to discuss this issue with us. The first question I would like to ask you is: Is this generational classification still relevant today? I will perhaps begin, Professor. Thank you very much for inviting us. It is a great honour. I will perhaps begin with a two-stage question. Is this classification still relevant today? In theory and academically, I would say yes, it is. In the academic sphere, it is necessary to subdivide the subjects in order to better understand the substance and to be able to better draw analogies or analyse some categories of rights. To that extent, the relevance remains. On the other hand, I am more reserved as for the effects of this classification into three generations of Human Rights in the sense that, first of all, doctrine as well as political actors attached a lot of negative and positive effects to it. Civil Rights are often considered as the only real Human Rights because they defend freedom against the State. On the other hand, Economic, Social and Cultural Rights are considered as less important rights; fuzzy rights; non-justiciable and costly for the State. As for the third generation of rights, they are unfortunately almost ignored by the doctrine of the Western world, while they are very important. Another negative effect of this classification which goes back to Karel Vasak who was an eminent expert of Human Rights at the UNESCO and who had probably not thought about the consequences that this classification could have on various Human Rights, is that we talk about generations. That is to say that, someone who is maybe not specialized in Human Rights, will have the feeling that we are talking about a generation that is going to replace another one which is then going to become obsolete. This is not the case. Human Rights are complementary. We know thanks to the Vienna Declaration of 1993 and even, before that, thanks to the Teheran Conference that Human Rights from different generations are interdependent. The rights of one generation can only exist and be fully recognized with the help of those of the other generations. It is a great honour for me to talk about this generational classification of Human Rights. Regarding its relevance, I quite agree with Doctor Chatton because I think that this classification is historically and didactically relevant but that it is irrelevant from a juridical point of view. Regarding the historical and didactic relevance, we have to admit that the claim and the establishment of fundamental rights in the evolution of political societies followed a chronological evolution which enshrined this division of Human Rights. In the Western liberal societies of the time, the first fundamental rights that were vindicated were freedom and equality. These rights are directed against political powers. They belong to the first generation. It was only afterwards, with the Marxist thinking and struggles, that a kind of economic transmutation led to a second generation of rights which are the Economic, Social and Cultural Rights. So, from a historical point of view, the classification and the distinction are still relevant. The first generation of rights appeared first. The second generation of rights appeared afterwards. It is important to understand that the movement of protest and of establishment of the rights belonging to the first generation was not over when the one of the second generation started. Regarding the didactic relevance: At the University, as Doctor Chatton said, we like to simplify things by categorizing or classifying them. This has cognitive virtues. At the University, this classification allows to pass the message of Human Rights and to explain the real historic process of their appearance and of their defence. However, we think that this classification has no legal relevance because the rights of the first generation are not legally different from the rights of the second generation. At least, this is not the case in the current doctrine of Human Rights. It used to be the case in what we can call the classical doctrine. The belief was that the only real rights were the ones of the first generation and that the other ones were rather programmatic rights or social objectives. Nevertheless, the Human Rights thinking changed at one point. He mentioned the Vienna Declaration of 1993. From that moment on, the idea, at the universal level, at the United Nations, within the different Human Rights systems, is that - and this is absolutely right - all Human Rights are equivalent. From a legal point of view, it is impossible to make a difference between the rights according to the generation to which they belong. If I may summarise what you said: you are both convinced that the generational classification of Human Rights has pedagogical virtues but you are sceptical regarding the legal consequences that we attached to this classification. A major implication of the Human Rights typology is about justiciability. The case law and the doctrine have denied for a long time the justiciability of the second and the third generations of rights. Nowadays, the position has changed. We talk about the indivisibility of Human Rights. I am interested in knowing your position regarding this issue. I think that all Human Rights are justiciable. I think that this position has become the general way of thinking about Human Rights. Both the rights of the first and of the second generations can be invoked before courts. Because the thinking has changed, we think now that Human Rights are indivisible. All Human Rights contribute to safeguarding human dignity and all Human Rights need to be implemented in order to have a significant impact for the protection of human dignity. This theoretical justiciability exists. In fact, we can also easily realize that all Human Rights are justiciable. There are not many controversies regarding the justiciability of the rights belonging to the first generation. Indeed, there is an abundant case law, especially from the European Court of Human Rights concerning these rights. The justiciability of Economic, Social and Cultural Rights is also established. Indeed, examples can be found in the case law, both at the United Nations' level and at the level of some regional systems, in which judicial bodies declared admissible, and decided on the merits of cases regarding some rights belonging to the second generation. I am for example thinking of the African Commission on Human and Peoples’ Rights which has known many cases in which the defence of the rights belonging to the second generation were vindicated, especially in the Ogoni case. Even from a constitutional point of view, constitutional orders exist in which the constitutional court declares admissible cases, as said in different legal orders, regarding the rights of the second generation. Here, we can take the example of the Supreme Court of India in this case that we call Public Union Civil Liberties v. Indian State. We can also mention the case tried by the Constitutional Court of South Africa in 2001: the Grootboom case. It was about the right to housing and the right to food for children. Therefore, in reality, claims regarding all rights have been declared admissible, vindicated and decided upon before the judges. I totally agree with Professor Soma regarding his position as for the indivisibility of Human Rights. In my opinion, since the Vienna Declaration of 1993, there is no longer any doubt that the different generations are interdependent; that Human Rights condition one another and that without one "generation" the realization of another generations is not possible. In the words of the Fribourgeois Professor Meyer-Bisch, indivisibility is the need to define, to interpret and to equally ensure all rights by taking into account both interactions and logical differences. If we talk about Human Rights, there will of course be many acts of balancing in the various rights. It does not necessarily depend on generations but some rights have a more collective dimension, a more individual dimension, a more economic dimension, a more civil or political dimension. Nevertheless, all these rights need to be thought as one because they protect essential aspects of the human being and of his behaviour. Peoples' rights are an extension of this issue. Indeed, they aim at protecting the individual within a community as well as the identity of this community. The people are sometimes different from the State. These collective rights sometimes also protect minorities. So, there is an amalgam and an interdependence at this level. Then, the justiciability of Civil and Political Rights is no longer open to question. It is possible to resort first to a national and then to international case law as well as to a practice of many centuries. However, Economic, Social and Cultural Rights can now also boast of a case law which might be a little bit more recent but which is also, in some ways, older than what we think. This is for example the case of the realization of Economic, Social and Cultural Rights at the State level. We can for example think of the right to social security. The notion of social security was already conceived in the 19th century. The aim was to find a solution to the poverty of the working class by providing security against illness, accident and old age. Of course, social security was not considered as a fundamental right at that time but case law had already developed. The same is true for the right to work. The right to work includes just working conditions. We can, for example, think of Emile Zola's historical novels: the worker struggles in the mine and has no rights. He runs the risk of dying and of being dismissed, without any protection. With this working condition, a national and then international labour legislation was created. All this has led to an economic right to work. Justiciability of social rights made a fresh start at the international level, especially with the creation of the International Labour Organization in 1919 and with the various conventions adopted within that framework. It led to what the ILO calls "Conventions on Human Rights". They protect essential aspects of the rights of the human person. Of course, it then developed within the United Nations, as mentioned by Professor Soma. Today, case laws exist, both at the national and international levels. These practices protect the rights of the second generation. We will of course mention the recent entry into force, on May 5 of this year, of the Optional Protocol relating to the Covenant on Economic, Social and Cultural Rights of the United Nations. It especially allows individuals to seize the UN Committee with individual communications on the respect of these Economic, Social and Cultural Rights. So, we have today the confirmation of their justiciability. Professor Soma is a great connoisseur of the African Charter on Human and Peoples' Rights so I am not going to tread on his toes but I am taking the liberty to mention, just like him, the decision of the African Commission on Human and Peoples’ Rights which is fascinating and new. It is about the Ogoni People in Nigeria. This people was fighting for survival faced with foreign oil companies located in Nigeria which were trying, by all possible means, to drive this people away from oil-bearing places. The government, instead of protecting its tribe, was more protective to the oil-bearing societies and was sending its army to burn villages and let the rivers and the fountains be polluted. In the Commission’s decision there is a very interesting amalgam regarding the justiciability: the protection, on the one hand, of the Peoples' Economic, Social and Cultural Rights and, on the other hand, aspects of protection of Peoples' rights to a health environment, to the survival of the people itself, and to its self-determination. I thought that it was a model which demonstrated that, according to how we approached peoples' rights, they could become justiciable. This brings me back to what we said: we talked about the Ogoni people's right to a healthy environment. This right to a healthy environment can also be found, as an individual right, at the level of the European Court of Human Rights which has handed down countless cases laws regarding the implementation and the protection of the right to a healthy environment. Some Professors from the University of Geneva wrote very interesting articles on this subject. This is for example the case of Professor Michel Hottelier and of Professor Vincent Martenet, from the University of Lausanne, who dedicated themselves to this field. It shows, one more time, that there is an interdependence and that, if there is interdependence, the justiciability of all these "generations" must be respected. Perhaps I should say one more word on the definition of justiciability because it is a concept that we often hear about but it is sometimes difficult to imagine what we mean by this term. Of course, there are many definitions. I will mention one of them: suitability of an international or a domestic norm to be invoked by the claimant before a judicial or quasi-judicial body so as to serve as a basis for a decision settling the legal question under dispute. Of course, many important factors come into consideration in the guarantee of justiciability. One of the factors is that the norm must be sufficiently clear and precise. Another factor is that the decision must resolve a concrete case, unless of course we establish a system of, for example, popular action or collective complaints. In this case, we can also imagine a justiciability regarding a general situation that will constitute a problem. But, generally, when we talk about this term, we think about individuals who can complain about a violation or we think about different ethnic groups. Finally, the judge must be legitimised to make a decision. So, the tools he uses must not interfere with the separation of powers. Regarding these three generations, when we have a look at the various decisions made by Courts and Commissions, we realize that these three subcriteria are fully respected. So, you are both in favour of justiciability of Economic, Social and Cultural Rights and of the rights of the third generation. I would like to ask you one more question: do you think that all Human Rights are equally justiciable? Well, in theory, all Human Rights are justiciable because they are all equal in terms of legal values. But we also have to admit that Human Rights are justiciable at different levels. Precisions and ease of implementation of Human Rights can be different. It is important to understand that this difference of justiciability has nothing to do with the difference between generations. The rights of the first generation are not all similarly justiciable in the same way and the rights of the second generation are not all justiciable in the same way. Difficulties of justiciability that can exist between the rights depend of the nature of the right, independently to which generation it belongs. In the protection of Human Rights, there are what I could call endless notions. The notions are open-textured and they must be made clear by the judge. Justiciability is not simple because of these endless notions. It is difficult but the judge has to tackle it. The same is true of the right to a fair trial. We talk about the notion of fair trial. Of course, equity fairness is a relative notion. It can be subjective. We could say that the justiciability of the right to a fair trial is more difficult. Indeed, the notion that underpins it can subjectively vary. We can see that the right to a fair trial belongs to the first generation. Let us talk about a right belonging to the third generation, such as the right to development. development is an elusive concept. In a concrete case, it can be difficult to identify an element of development and to punish a State that would not have implemented this element of development. The judicial control of some notions can be a little bit delicate. On the other hand, the accessibility and the understanding of some rights is way simpler. We can call these notions "simple notions" or "subtle notions". I am for example thinking of the prohibition of torture, which is absolute. Either we put somebody through torture or we did not. So, this notion is a little bit simpler to implement than the notion of development or the notion of fair trial. Such rights can be found among the first generation of rights but also among the second generation of rights. Among the second generation of rights, I am especially thinking of the right to food whose the normative content was decided by the international body competent do so. I am thinking of the UN Committee on Economic, Social and Cultural Rights which is instituted to ensure that States implement the international Covenant on Economic, Social and Cultural Rights. It is therefore competent to interpret the provisions of the Covenant. This Committee published a general observation to spell out the normative content of the right to food and now, we know that the content of this right is clear: there are not many possible interpretations and subjectivity in the application of this right. Both the right to food and the prohibition of torture are precise. The justiciability of these rights is therefore simple. It is easy for the judge to implement them. And they belong to different generations. To sum up, all Human Rights are justiciable. There is a scale of justiciability among Human Rights but this difference has nothing to do with the classification of Human Rights into generations. Precision is very important for justiciability. Indeed, the classical doctrine believed that a norm was not justiciable if it was not precise. As it is not precise, it needs further legislative concretization in order for its content to be clarified. As soon as the international guaranteed norm has a clarified content, the legislative implementation is not needed anymore to spell out the content of the right. So, the right is way more justiciable when its content is clear. Doctor Chatton, do you agree with what Professor Soma just said or would you like to add anything? Not much to add after the brilliant analysis of my colleague, Professor Soma. However, I do not completely agree with him on one particular point. Precision is indeed fundamental for justiciability. But we can also use the criteria of determinability. It means that a norm is not necessarily precise from the beginning. It can however become precise thanks to the interpretation. Professor, you mentioned the right to a fair trial. It is indeed a very vague notion and we see in today's case law - which is constantly developing - that we can get very important subprinciples which regularly have an influence on the case law of the national Supreme Courts. However, this concept was developed by centuries old practice of national Courts and international bodies which gave all the precision to it thanks to interpretations, recommendations and the soft law. Thanks to that, we can now conceive the framework of this right during a fair trial. The prohibition of torture. We talk about the inviolable core of human dignity touched by torture. Nevertheless, we recently had cases in which some States tried to interpret and to question this concept of torture. We talk about the waterboarding practice in the United States. They said that it was not torture because it was a reduced form of torture. They actually said it was rather a reinforced form of witness hearing. We also had the issue concerning this child who was abducted in Germany and the police threatened to subject a suspect to torture if he did not reveal the hiding place of this child. The child's life depended on this and the policemen thought they could still save him. Again, what does torture mean? Are we already putting somebody through torture when we threaten to do so? In the Gäfgen v. Germany case, the European Court of Human Rights said that, yes, this fell into the ambit of Article 3 of the European Convention on Human Rights. This is just to point out that even the clearest terms are sometimes subjected to benevolent or malicious interpretations, with a purpose of instrumentalisation or not. It is not always easy to differentiate the various fundamental rights. This was my first point. Now, are there any differences in the scale of justiciability? I hesitated for a long time. I think there are some. I totally agree with Professor Soma on this point: not because we categorized a right in the first, second or third generation but because of the obligations that a right would generate. Of course, I refer to the model of the three types of main obligations which was especially created by the UN Committee for Economic, Social and Cultural Rights. The duty to respect a right - so, an abstention. The duty to protect a right - so, a legislative or a factual intervention of the State, especially when a person is in concrete danger: the police has to do something if a person tries to attempt suicide. Finally, the obligation to implement a right. This requires broader coordination. According to the obligation or to the claim that an individual will make before an authority, we will see, I think, if a right is justiciable or not. We should then weigh the interest: What is the interest of the community? What is the interest of the individual? What is prominent? And, when the duties are onerous in terms of coordination or of positive obligations of the State: to what extent must the State undertake efforts in order to help this individual in these particular circumstances. So, this is where I see a difference of scale in justiciability but it concerns all the different categories of Human Rights. Maybe - but I can neither exclude it nor prove it - as regards the second generation of Economic, Social and Cultural Rights, an individual's claim asks more often relates to positive State duties. So, issues of justiciability would arise a little bit more often than at the level of Civil and Political Rights. But it is really a question of nuance and of the claims made. In today's case law, even when we talk about claims to provide goods and services, for example, to the most vulnerable people, there is justiciability of these rights. When we see a poor person in front of us, who has no food, nowhere to live or nothing to wear, we know what this person's fundamental needs are. These fundamental need makes the right justiciable in the eyes of the judge. I especially refer to a rather old case of the Federal Supreme Court of Switzerland which had created ex nihilo a right to minimum conditions of subsistence which was then enshrined by the new Swiss Federal Constitution. Just to say that when we see a need, we can also see what the terms of justiciability are. Two points. First, I would like us to distinguish the justiciability of a right and the interpretation of a right. As Favoreu said it after Kelsen, interpretation is a process that cannot be dissociated from the application of a norm, that is to say from any legal rule, no matter the degree of precision of the legal rule. So, a judge has to interpret any legal norm. Justiciability is the ability for the norm to be invoked before judicial bodies. Here, there is an objective process to assess the quality of the norm in order to know if it is capable of being subjected as such as to juridical implementation. When we talk about justiciability, an analysis needs to be done concerning each norm to see what is the legal incorporation of the concerned norm: What is its accuracy? What is its aptitude to be subject to a discussion in court. You see. This is why we say that the rights of the second generation were sometimes enshrined in broad terms and are less justiciable than the rights of the first generation. This was the caricature. But it was said that the vague nature of a norm is independent from its classification in any particular category. A norm is often knowingly enshrined in vague terms in a legal instrument in order to leave some space, either to the margin of appreciation of States or to the power of interpretation of the judge. Second point that I wanted to complete is linked to the different layers of obligations that the various Human Rights imply. Of course, as Doctor Chatton said, all Human Rights imply these three levels of obligations: to respect, to protect and to fulfill. Obviously, the two first levels of obligations are not subject to debate because what creates or violates the obligation is clear. The obligation to respect is just an obligation to refrain. We just have to check if the State took action in order to discuss this obligation. The obligation to protect is actually an obligation for the State to act in order to protect against a violation. This is also easily evaluated in court. On the other hand, there is a great deal of discussion regarding the obligation to fulfil and to give effect to the rights. What is implementation? If we take a concrete case, is it possible to say, based on the action taken by the State, if an implementation took place or not? Obviously, this last level of obligations can result in a lot of discussions. Nevertheless, we saw that the Committee on Economic, Social and Cultural Rights interpreted this notion. Now, the onus of proof lies on the State. There is a change regarding the onus of proof. The State must now demonstrate that everything was done and that the undertaken action was the best it could do in a concrete situation. You see. I thank you very much. You have already mentioned the different obligations which can be derived from Human Rights and this is an issue that we will talk about in the next module. So, thank you very much. Thank you. Thank you.
