After the horrendous attacks by Al-Qaeda on the World Trade Center in New York City
After the horrendous attacks by Al-Qaeda on the World Trade Center in New York City, the George W. Bush administration established the Guantanamo Bay detention camp on the coast of Guantanamo Bay in Cuba as part of the War on Terror. Secretary of Defense Donald Rumsfeld claimed that the prison site was established to detain extraordinarily dangerous people, to interrogate detainees in an optimal setting, and to prosecute detainees for war crimes . The site imprisoned the “high value detainees” including, but not limited to, Khalid Sheikh Mohammed, believed to be the No. 3 Al-Qaeda leader before he was captured in Pakistan in 2003; Ramzi bin al-Shibh, an alleged would-be 11 September 2001 hijacker; and Abu Zubaydah, who was believed to be a link between Osama bin Laden and many Al-Qaeda cells . However, the site has also detained lots of low profile terrorists as well as outright innocent people such as Abu Zubaydah who has been found to be a low-level participant of little value, and Adel Noori, one of the 22 Uighurs wrongfully detained in Guantanamo Bay detention camp .
According to the report of Susan J. Crawford, appointed by Bush to review the practices of Department of Defense in Guantanamo Bay and the military trials, at least one detainee was subjected to torture . The detainees were also denied their constitutional rights under the US jurisdiction, though they were granted these rights later by the Supreme court decision through the Rasul v. Bush case in 2004 . When the government was accused of violating several civil and political human rights of the detainees, the USFG claimed that the detention of the suspected terrorists ensures the safety of the greater populous of the US. As such, US claimed to have the right to violate the civil and political rights of the few in order to uphold the socio-economic and civil and political rights of the majority.
The justification provided by the USFG rises the age-old question of the hierarchy in human rights, namely between civil-political rights (CP) and socio-economic rights (ESC). In this paper, I will look into the purpose behind the Human Rights and the specific rights the CP and ESC rights provide. Through focusing on the case of the post-Civil Rights African Americans communities, I will argue that there is no hierarchy of the rights – both CP and ESC rights are equally important. Lastly, I will provide counter arguments to the widely accepted notions of the hierarchy in the Human Rights.
Equality of Rights
To answer the question of hierarchy we first need to define what human rights are and why do we have them. The free and loose use of the term “human rights” in the last few decades create the need for a definitive explanation that can limit the term to certain boundaries and allow us to effectively study it. As such, according to Bantekas and Oette, human rights have important dual functions: one based on principles and the other based on legal documents . Thus, human rights are basic guarantees that all people have simply because they are people . The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life . At the same time, the founding document of Human Rights, the Universal Declaration of Human Rights, bases human rights on the notion of dignity, equality, and liberty . The reality, however, is far from the idealized principles. While some principles found their way in the legal documents, namely in ICCPR and ICESCR, others are not legally recognized. Moreover, the legal recognition may be too broad or too narrow. For instance, the right to non-discrimination does not include age and therefore allows for discrimination at workplace based on age.
The Universal Declaration of Human Rights emerged in a highly polarized world, in which the Western block and the Socialist block disagreed on the proposed rights. The West focused more on the Civil and Political rights, the rights that provide security and protection to individual, while the Socialist countries focused on the socio-economic rights that focused on the provision of the rights to the society as opposed to an individual . As a result, in 1966 two different conventions were accepted by the member states of the UN: The International Covenant on Civil and Political Rights and the International Covenant on the Social, Economic, and Cultural Rights.
Civil and political rights were ratified in 1966 through the ICCPR. This block of rights argues for the provision of the so-called “basic” rights: right for life, freedom of speech, freedom of religion etc. The Civil and Political rights are traditionally viewed as negative rights: the state has to refrain from violating “basic” rights of its citizens. This can be achieved through setting judicial guarantees. For instance, the right to life and freedom of speech can be provided by restricting governments action. However, the violation of civil and political rights may be rooted in deep-seated structural factors such as discrimination against one ethnicity (African Americans) or religious groups (Ahmadiyya movement in Pakistan). The effective implementation of civil and political rights, thus, requires the rule of law, the administration of justice and democratic structures .
Socio-economic rights were also ratified in 1966 through the ICESCR. These rights promise the access to education, healthcare and etc. The social rights concept basically is about creation of binding rules in order to protect the marginalized and disadvantageous members of society by giving them opportunities in education, health, employment (and may be in other social services fields) until they become almost in the same equality as compared with the other members of society . The states, unlike with the civil and political rights, do not have to implement these rights immediately as the provision of these rights may take time. Traditionally, for the provision of these rights, the state needs to take action and invest capital, which means that the states who do not possess enough resources may not be held responsible for not sufficiently providing these rights .
As such, the goal of human rights is to ensure the decency of human life. This definition provides that there is no distinction between the two blocks of the rights. Both Civil and political rights as well as the socio-economic rights are equal in their importance and without one, a citizen cannot enjoy a decent life. Therefore, the provision of both rights is important for achieving the goals of human rights. One cannot worry about freedom of speech when he has nothing to eat. Vice versa, a person also cannot worry about access to education while he is worried about his life. While the declaration of human rights adopted in 1948 did not divide the rights into two different groups and viewed the rights to be indivisible from each other and interdependent, the covenants accepted in 1966 divided the rights into 2 camps, mainly due to the ideological disagreements of the two superpowers. Therefore, the question of hierarchy is intrinsically the question of democracy vs communism, and it should be disregarded as human rights are above the geopolitics and should exists regardless of the views of the former or modern-day superpowers.
Civil and Political rights and Socio-economic rights in the African American communities in the US
The Civil Rights movements of the 1960s in the US provided greater rights to the marginalized groups within the US society. The direct actions and grassroots protests organized from mid 1950s to 1968 resulted in massive legislative reforms. Combining various strategies, peaceful and violent, various groups and organized social movements accomplished the abolishment of the legalized racial segregation and discrimination in the United States. The Civil Rights Act of 1964 expressly banned discrimination based on race, color, religion, sex, or national origin in employment practices; ended unequal application of voter registration requirements; and prohibited racial segregation in schools, at the workplace, and in public accommodations . The Voting Rights Act of 1965 reinstated and protected voting rights for minorities. The Fair Housing Act of 1968 banned discrimination in the sale or rental of housing. As such, the Civil Rights movement ensured provision of civil and political rights to the segregated communities of the US. The Civil Rights Act enforced the right for non-discrimination, the Voting Rights Act provided right to vote, and the Fair Housing Act provided the right for equality. While these Acts contributed positively to the lives of the marginalized community, it did not address all the issues. The Acts mainly focused on the Civil and Political Rights and disregarded to the socio-economic rights. As a result, racism and segregation was not rooted out of the American system.
The failure of the Civil Rights Movement to provide socio-economic rights to the African American community allowed for racism and discrimination to continue in education, healthcare and federal laws. The disparities in opportunity between white Americans, who enjoy both civil and political, and socio-economic rights, and black Americans who enjoy only partly civil and political rights clearly show the importance of providing both sets of rights. The peculiar case of the United States, where one group enjoys socio-economic rights and other group does not, reveals the dangers of creating hierarchy of rights.
The lack of explicit act on right for education for all, allows for racism to still be very much intact in the education sector in the US. The famous Brown v. Board of Education case did not address the institutionalized racism present in the US system and in fact contributed to it. The Supreme Court of the US concluded that the “Segregation with the sanction of law has a tendency to retard the educational and mental development of Negro children” . The famous win for the African American in education was only due to racist, paternalistic, Kipling-esque vision of the then Supreme Court judges. The failure to provide legal protection and equal access to education to the African Americans is still taking a detrimental effect on American society. According to the U.S. Education Department report in 2014, public school students of color get more punishment and less access to veteran teachers than their white peers . The U.S. Education Department’s 2011-2012 Civil Rights Data Collection, which examined 97,000 public schools with more than 49 million students, reported that black students are suspended at triple the rate of white students. Annually, 16 percent of black students were suspended compared to 5% of white students. The data also shows that the inequalities begin as early as preschool: black students make up 18 percent of preschool enrollment, but they comprise 48 percent of preschool students receiving more than one suspension out of school while white students, representing 43 percent of preschool students, only receive 26 percent of out-of-school suspensions more than once . The failure of the US legislative system to effectively protect the rights of the African Americans provided by the US Constitution reflects the dangers of denying certain rights to a group.
The discrimination and failure in providing socio-economic rights to African Americans do not stop at the education sector. The Black communities suffer from racism in healthcare sector as well. As reported by National Center for Health Statistics, the black and other minorities in the US get sick more often, receive worse care, and die more of preventable diseases as compared to the white Americans . These disparities were first reported in the 1980s by National partnership for action to end health disparities. While these organization succeeded in reaching some improvements, the health disparities in the US are still ongoing . Sadly, the US is a deadly, difficult and disempowering place for people of color, where health care plays a crucial role in maintaining the status quo . The Affordable Care Act is profoundly racialized as well. Black and Latino people make up 48 percent of all Americans who fall into the “coverage gap” created by the states that refuse to expand Medicaid . Higher uninsured rates among these groups impede progress toward reducing yawning inequities in health outcomes ranging from maternal mortality to cancer to AIDS. These failures in provision of socio-economic rights to the African American communities are the root cause of inequality in the US. The failure of the African American communities to advance in the American society is a result of the US government preventing socio-economic right to the group.
Racism and denial of right to the African American communities are further advanced through the existence of the so-called Jim Crow laws that disproportionately target the minorities in the US. This can be observed by looking at the drug laws in the US that disproportionately focus on the African American communities, as well as focusing on the black incarceration rates in the US. The artificial legal differences between the powder cocaine (more expensive, more harmful, pure cocaine) and crack cocaine (less expensive, less harmful) created by the court classifications allow for the courts to protect the right of majority white users of powder cocaine while incarcerate the users of majority black crack cocaine users. The drug laws also target small-scale drug dealers incarcerating them for decades. In the 2015 National Survey on Drug Use and Health, about 17 million whites and 4 million African Americans reported having used an illicit drug within the last month. However, nearly 80% of people in federal prison and almost 60% of people in state prison for drug offenses are black or Latino . In 2014, African Americans constituted 2.3 million, or 34%, of the total 6.8 million correctional population, while making up only 13.4% of the whole population . Since incarceration in the US strips the detainees of their right to vote, the Jim Crow laws are effectively preventing African Americans from voting and achieving equal representation in the legislative branch of the government.
The failure/unwillingness of the US government to provide equal socio-economic rights to the African American communities are contributing to the racial inequality. The black Americans have earned their civil and political rights through the Civil rights movement of the 1960s, yet these rights are insufficient to contribute to the decency of the human life as seen by the examples of Jim Crow laws as well as racism in education and healthcare. The failure of integrating the black communities into the wider society in the US through greater access to socio-economic rights resulted in the failure of the US government in the provision for decent life of black Americans. Only the provision of equal socio-economic rights to the African American community and the abolishment of institutionalized racism will pave way for the success of the African Americans.
Negative Rights v. Positive Rights
The interdependence of the rights and the importance of the socio-economic rights are highly debated. Some groups claim that negative rights are the only judiciary rights and as such positive rights are inferior to the negative rights, while other groups claim that non-derogable rights are superior to derogable rights.
The advocates of the negative rights argue that the negative rights impose nothing on states while the positive rights make claim on the limited resources. This division, however, fails as both the civil and political rights as well as the socio-economic rights can be classified as both negative and positive rights. The enforcement of the Civil and Political rights, namely the right for life, requires regulation by apparatus of legislation as well as training of the police. In this sense, the right for life becomes both negative, as the government has to prevent itself from murdering its citizens, and positive right as the government needs to invest into police training to stem police violence (#BLACKLIVESMATTER) . As stated by Fredman, civil and political rights are not alone in channeling both negative and positive rights. The socio-economic rights give rise negative duties in addition to the positive duties, thereby overlapping with civil and political rights. The right to be housed includes a restraint on the state from unlawful evictions, covering the same ground as the civil and political rights to respect for privacy, home, and family life” . Similarly, the right to life and education invoke the principles of positive and negative rights. there are examples of ambiguous positive and negative duties in the principles of right to life and education. For example, right to life can be considered as positive duty as well. This comprises the right not to die of preventable reasons by governments, such as exposure, starvation, or reasonably evitable illnesses. Similarly, right for education enhances both positive and negative rights respectively on economic and social, and civil and politi/cal rights. Through civil and political lens, the government is restricted from interfering into the process of education, namely by furthering the religious agenda in schools .
Non-derogable Rights
Some academics introduce the notion of derogable rights and claim that the non-derogable rights are superior to the derogable ones. The scholars look at the argument from the international law perspective, arguing that the non-derogable rights are superior to derogable rights as they have to be upheld regardless of the circumstances. Scholars of this belief also argue that all other rights are dependent on the non derogable rights . The systematic violation of the non-derogable rights make it impossible for the citizens to enjoy other rights. However, the violation of other rights, namely right for food also prevents the citizens from enjoying the right to live or the right for freedom of speech. For instance, if people are unable to eat or if they die as a consequence of dysentery and other diseases of the poor, then all the other rights are irrelevant. As such, the derogability of a right does not matter since all rights are interdependent and violation of derogable right will, in one way or another, result in violation of non-derogable right and vice versa.
Conclusion
The age-old question of hierarchy in the Human Rights was mainly perpetuated by the ideological differences of the two world powers at the time of signing the Universal Declaration of Human Rights. While the Western states gave more importance to the rights of the individual, the socialist states focused on the rights of the society. As such, the Us and allies supported the Civil and Political Rights while the USSR and the Soviet bloc supported the socio-economic rights. In this paper, I have looked at the notion of human rights and the logic behind it in order to evaluate the importance of the civil and political rights and socio-economic rights. I have concluded that the argument of hierarchy of the rights is based on the geopolitical interests of the world powers and that both groups of rights are equally important in achieving the decency of human life. Through the example of the African American communities in the US we have observed the importance of providing both civil and political rights as well as socio-economic rights to people. Lastly, I have considered possible counter arguments to the equality of the rights.
