Stephen Vasciannie, Contributor
IAN BOYNE has written a critical piece in The Sunday Gleaner of December 23, 2001, concerning papers which Dr. Lloyd Barnett and I presented at the Roundtable on Human Rights sponsored by the UNDP in Jamaica. My first inclination was to ignore Mr. Boyne's comments, as it appears to me that Mr. Boyne has not really taken the time to read the full text of either paper. However, silence on my part could be regarded as acceptance of Mr. Boyne's criticisms, so I have gone against my initial reaction.
My paper on human rights, entitled 'Human Rights in Jamaica: International and Domestic Obligations', was in response to a clear and specific mandate.
I was asked: (a) to undertake a review of various international treaties, conventions and protocols that bear on human rights and human development, to which Jamaica is a party, (b) to review Jamaican law in order to assess the extent to which human rights are enjoyed in Jamaica, having regard to the international obligations undertaken by Jamaica, and (c) to make recommendations concerning methods by which Jamaica's human rights record may be improved, having special regard to the implementation of Jamaica's international obligations.
In addition, bearing in mind that numerous rights have been classified as human rights in various treaties, the UNDP very correctly asked me to confine my analysis to five specific rights, namely, the right to life, freedom from cruel and inhuman conditions, and the rights to employment, education and health. In this way, a fair degree of attention could be given to each right, and to an assessment of the extent to which each right has been implemented in Jamaica.
Mr. Boyne's analysis pays no attention to the sensible mandate I was given, even though this is set out clearly on pages 2 to 3 of my paper. Rather, he suggests or implies that I pay insufficient attention to economic and social rights, and presents his own arguments in support of economic and social rights. He concedes that both papers deal with economic and social rights, but then cuts straight through that concession: in my case, he does this by stating that in my "Conclusions and Recommen-dations", scant attention is given to economic rights or social rights. This presents an unfair picture of what I have discussed concerning economic and social rights, for the paper reviews, in some detail, the economic and social rights I was asked to consider, and my conclusions and recommendations actually explain why I opted to spend little time on these rights at the end of the paper.
For the record, three of the five rights discussed in my paper fall in the category of economic or social rights, pages 1 to 23 of the paper deal with both civil and political rights as well as economic and social rights, and pages 48 to 68 deal separately and specifically with the situation concerning particular economic rights and social rights (education, health and employment) in Jamaica.
It is, of course, a matter of subjective assessment whether this is insufficient attention to economic and social rights, but, bearing in mind that the paper is 77 pages long, covering economic and social rights (either alone, or in conjunction with civil and political rights) in about one-half of the text seems to be a reasonable allocation of space in my books.
First generation rights
But this really should not be a matter of word-counting. The literature of international law concerns itself primarily with "three generations" of human rights. The so-called first generation, civil and political rights, has traditionally been championed by Western countries, which can trace their emphasis to such national instruments as the French Declaration of the Rights of Man, the American Bill of Rights, and in the view of Mrs. Thatcher, to the Magna Carta. These first generation rights have largely been incorporated into the International Covenant on Civil and Political Rights, a treaty to which Jamaica is party.
The second generation rights, economic and social rights, were given greater emphasis by communist countries during the Cold War era. The reasoning of the communist countries was straightforward enough: they took the view that civil and political rights were all right, but one needs to have food, shelter and employment, and that these needs were to be given primary significance.
The third generation of rights has evolved largely at the insistence of developing countries, and it includes for sure the right to self-determination, and more arguably as a matter of law, the right to development. On another occasion, I will give greater attention to third generation rights, but for now (bearing Boyne in mind), it may be worthwhile to contrast first and second generation rights more fully.
In Jamaica, the tendency to give greater attention to civil and political rights, as human rights, is perfectly understandable. The serious problems of civilian murder (against the right to life), police killings (against the right to life), atrocious prison conditions (against the injunction against cruel and inhuman treatment) all stand as violations of the International Covenant on Civil and Political Rights. These are longstanding violations, and it is quite appropriate for members of civil society to keep reminding the State of these incursions. More-over, these rights are, generally speaking, accepted as rights that we should all have as individuals. They acknowledge mans inhumanity to man, and place restraints on State and individual conduct, on the assumption that as a human being, I am entitled to certain basic rights, just because I am a human being. In the main, too, civil and political rights are justiciable: they can be enforced by courts as legal rights. For these reasons, it is hardly surprising that the Jamaican Constitution lists several civil and political rights as Fundamental Rights and Freedoms in Chapter III thereof.
Second generation rights
Second generation rights tend to be a little more complicated. In the first place, several economic and social rights require significant expenditure by State before they can be fully realised. So, for instance, if we posit that there is a right to education, then we are simultaneously arguing that the State has a duty to make such payments to ensure that an efficient system of education is in place. This does not deny the existence of the right to education, but it raises questions: is this right to be applicable to secondary and tertiary levels? Is the society ready to make tax payments to the full extent required for "free education" to tertiary level, and so on. These questions rapidly become part of the society's discourse on the budget, and highlight the fact that economic and social rights tend to be more circumscribed by economic constraints than civil and political rights happen to be.
Secondly, economic and social rights have to overcome the problem of justiciability. Let us say, for instance, that I have the right to work, and that I find myself unemployed. Exactly how can I ensure that my right is enforced? In our system of government, the State cannot simply force a private company to employ me, and there will clearly be limits on the employment capacity of the State itself. So, in the end, the courts will have to address the issue of unenforceable rights.
Thirdly, even the main treaty on the subject, the International Covenant on Economic, Social and Cultural Rights (the ICESCR), acknowledges that some economic and social rights are not rights in the sense that would be recognisable by a court. More specifically, in this treaty, States do not guarantee that specific economic and social rights will be enforced; rather, by virtue of Article 2, each State Party "undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures".
This lays bare the problem of economic and social rights. For these rights, States promise only to take steps, as limited by available resources, progressively to give these rights full effect.
So, if I try to have my right to health enforced against the State, I may legitimately be faced with the retort that the State has taken all the steps it can afford, so tough luck with respect to my individual right to health. In these circumstances, it seems that the economic and social rights are really statements of intention, laudable goals of policy, but at least in some instances, they do not constitute rights.
Certainly within common law systems of jurisprudence, the existence of a right, stricto sensu, connotes the existence of a duty placed on someone to ensure respect for that right: many economic rights seem to lack this correlative duty. I encourage Mr Boyne to read Hohfield, Fun-damental Legal Concep-tions as Applied in Judicial Reasoning, if he continues to have a problem with this point.
So then, one may enter into a broad legal and philosophical discussion on the true nature of economic and social rights if one so desires. And, in that discussion, there is considerable scope for the view that at least some civil and political rights are conceptually different from some economic and social rights. Moreover, even persons who do not regard, say, the right to employment as a right, properly so-called, but a statement of a desirable social objective, can still believe that the State should make every effort to ensure that the right to employment is available to as many persons as possible.
Finally, Mr Boyne's article, though relatively short, demonstrates more than adequately his lack of analytical rigour and methodological sophistication. He tends to classify persons to suit his own ends, without justifying his classification or misclassification.
Thus, Dr. Barnett and I are "two conservatives known for civil liberties advocacy", I am a "neoliberal on economic matters", "right wingers like Wilmot Perkins" are dismissed out of hand, and, out of embarrassment, "highly sophisticated and able intellectuals like Trevor Munroe have jumped on the civil/political liberties, anti-security forces bandwagon while neglecting his heritage of struggle for economic and social rights for the broad masses". I suppose we just have to take this kind of twaddle for what it is.
Clueless
But, from a legal point of view, I wish to emphasise that Mr. Boyne really doesn't have a clue what he is talking about. One of the basic methodological points in law is that you must know your sources. So, for instance, if you are making a legal presentation on human rights in Jamaica, your legal sources, or your sources concerning what makes a rule binding, would be legislation, the common law, and, depending on the context, international law (mainly treaties and customary law).
Mr. Boyne quotes or refers to documents such as the UNDP Human Development Report, the Decla-ration on the Right to Develop-ment and the Vienna Declaration and Programme of Action, as if they are legal documents binding on States. They are not; they simply set out perspectives of different persons or groups, and so, in themselves, do not provide legal authority for the points articulated by Mr. Boyne.
For them to become binding as law, they would need to pass into the corpus of customary law by a process that Mr. Boyne has clearly not heard about.
