I. INTRODUCTION
The concept of indivisibility has been an important subject of academic inquiry in the field of international human rights law. As debate on the issue has lost its appeal, this article considers the impact of the Convention on the Rights of Persons with Disabilities (CRPD) adopted in 2006 on this debate,Footnote 1 and suggests that it has resulted in a new understanding of the indivisibility of human rights. It argues that the Convention has pushed boundaries as it cuts across distinctions between civil and political rights, on the one hand, and economic and social rights, on the other. The mutual interlinkage of both sets of rights is an integral feature of the rights protected by this Convention.
Several scholars have claimed that the distinction between the two sets of rights has actually been blurred in the CRPD.Footnote 2 Through legal and doctrinal analysis, the article goes a step further by both investigating the validity of this claim and by considering what the blurring of the distinction between the two sets of rights means for the concept of indivisibility. Taking as examples rights usually assigned to each of these categories, it demonstrates that the Convention rights cannot be separated into two distinct sets of rights if they are to carry real meaning. This article also examines both the practical and theoretical implications of this understanding of indivisibility for international human rights law. Looking beyond the issue of disability, it suggests that less emphasis should be placed on the different categories of rights and more emphasis upon the real and actual enjoyment of human rights. The article seeks to place the issues that need to be addressed in order to make these rights more of a reality at the centre of academic enquiry.
While the role of States in implementing human rights is explored, the question of the judicial protection of economic and social rights is not examined. Not only has it already attracted considerable academic attention,Footnote 3 but it is also of little practical relevance in respect of their realisation.Footnote 4 Also, only the universal human rights instruments adopted within the UN are considered.
This article begins with a brief history of the concept of indivisibility within international human rights law (section II). This is followed by a consideration of how the CRPD has blurred the distinction between the two sets of rights, and highlighting the challenge this poses for its proper interpretation (section III). It concludes by looking at how the proposed understanding of indivisibility affects the obligations of States, shifting attention to the real and actual enjoyment of human rights (section IV).
II. INDIVISIBILITY IN INTERNATIONAL HUMAN RIGHTS LAW
A. Civil and Political and Economic and Social Rights
Over 50 years ago, States adopted the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 5 The original intention was not to draft two Covenants but to adopt a single binding international legal instrument building on the Universal Declaration of Human Rights (UDHR).Footnote 6 This approach was eventually rejected by the negotiators, the rationale being that there was a need for different methods for the implementation of particular categories of rights.Footnote 7 While civil and political rights were deemed legally enforceable, economic and social rights were regarded as aspirational goals. Therefore, whilst a supervisory committee was set up for the ICCPR, no such committee was established for the ICESCR.Footnote 8 Human rights have ever since generally been divided into two sets of rights, namely civil and political rights, or ‘first-generation rights’, and economic and social rights, or ‘second-generation rights’.Footnote 9
The two sets of rights were supposed to result in different kinds of obligations. On the one hand, civil and political rights created ‘negative obligations’. As provided for by Article 2(1) of the ICCPR, States Parties have ‘to respect and to ensure to all individuals … the rights recognized in the … Covenant’. These obligations are of immediate effect, since the duty of State Parties is only to abstain from contravening the Covenant. On the other hand, economic and social rights entailed ‘positive obligations’. According to Article 2(1) of the ICESCR, a State Party must ‘take steps … with a view to achieving progressively the full realization of the rights recognized in the … Covenant … to the maximum of its available resources’. Because of the scarcity of such resources, States Parties are allowed to achieve the objective over a certain period of time.
This obligation regime has been tempered by the UN treaty bodies now charged with monitoring the implementation of the two Covenants. As regards the ICCPR, the Human Rights Committee (HRC) considers that ‘[t]he legal obligation under article 2, at paragraph 1, is both negative and positive in nature’.Footnote 10 While civil and political rights entail immediate obligations, States Parties must also take concrete action to ensure their enjoyment.Footnote 11 The Committee on Economic, Social and Cultural Rights (CESCR)Footnote 12 also advised that States Parties must fulfil ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’ in the ICESCR.Footnote 13 Economic and social rights, therefore, create immediate obligations, which include the prohibition of discrimination.Footnote 14
Such a reading of the two Covenants already laid bare the porosity of the distinction between civil and political rights, on the one hand, and economic and social rights, on the other. In addition, an extensive literature grew up around economic and social rights, which both improved the understanding of their content and helped to reaffirm their legal basis.Footnote 15 A new regime of obligation was conceptualized, consisting of obligations to respect, protect and fulfil, which proved a turning point. This tripartite typology was initially proposed and developed by Eide and ShueFootnote 16 and subsequently applied by the CESCR Committee.Footnote 17 It has also come to be used for civil and political rights,Footnote 18 undermining the view that the two sets of rights concern different kinds of obligations.
The adoption of several group-specific human rights treaties further contributed to the weakening of the distinction. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) prohibit discrimination in provisions addressing both civil and political and economic and social rights.Footnote 19 It was, however, the Convention on the Rights of the Child (CRC) which first bridged the two sets of rights.Footnote 20 It provides not just a juxtaposition but a whole series of rights ‘that encapsulate different aspects of both sets of rights thereby reflecting their indivisibility’.Footnote 21 While the CRC has a specific provision concerning ‘economic, social and cultural rights’,Footnote 22 it is difficult to accurately define what rights fall within the scope of this category of rights regarding most of the Convention.Footnote 23 The incorporation of the different categories of rights into international legal instruments thus has become standard practice.Footnote 24 Such incorporation raises important questions that have not yet been studied in detail.
With the adoption of the Optional Protocol to the ICESCR (OP-ICESCR) in 2006, the CESCR Committee received the competence to consider individual communication concerning alleged violations of the Covenant.Footnote 25 This confirmed the legal enforceability of economic and social rights, which had gradually gained ground through numerous cases before domestic courts.Footnote 26 Although the OP-ICESCR has only been ratified by 23 StatesFootnote 27 and the HRC is much further ahead in exercising its quasi-judicial function,Footnote 28 the means for ensuring compliance with the two sets of rights have been equalized, at least in theory.
B. The Concept of Indivisibility
The impact of the division of human rights into two sets of rights has been mitigated by other means. Despite the adoption of the two Covenants, States were keen to stress the features common to both civil and political rights and economic and social rights. Not only was it stated that the two sets of rights create similar kinds of obligations, it was also argued that all human rights are indivisible and interconnected, which reflects the interrelationship between these sets of rights. This approach reached a milestone at the World Conference on Human Rights held in 1993, with the Vienna Declaration and Programme of Action proclaiming that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’.Footnote 29 This statement conveyed the guiding principle of human rights and has been repeated in several UN legal documents.Footnote 30 It is worth enquiring into its substance, by considering the meaning of the different cited concepts.
Universality flows from the very notion of human rights, although it has been challenged by arguments concerning cultural relativism.Footnote 31 It has gradually become acknowledged that universality does not prevent cultural particularities from being taken into account.Footnote 32 Both universality and relativity, therefore, are essential to understand the notion of human rights.Footnote 33 The fact that human rights are ‘interdependent and interrelated’ emphasises that they are mutually reinforcing. The interdependency and interrelatedness of human rights are provided for in the Preambles of both the ICCPR and the ICESCR, and were thrown into relief when it was decided to draft two Covenants.Footnote 34 This interdependence and interrelatedness can easily be illustrated in practiceFootnote 35 with some rights having dimensions which fall within the scope of both sets of rights.Footnote 36 In contrast, the concept of indivisibility remains much debated and its meaning is still contentious.
There are two dominant approaches to this concept that have followed each other chronologically. The first, and traditional, approach is that civil and political and economic and social rights have equal value,Footnote 37 and that there can be no hierarchy between them. According to this approach, giving precedence to a particular category of rights is ineffective, as neglecting one category hinders the fulfilment of the other. Human rights cannot be treated individually, but have to applied in an integrated way. This was expressed in the Teheran Proclamation on Human Rights, which stated that ‘[s]ince human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic and social rights is impossible’.Footnote 38 Similarly, it has been argued that economic and social rights cannot be implemented without guaranteeing civil and political rights.Footnote 39
The problem with this way of understanding indivisibility is that it does not very much reflect current practice. An overview of the general comments of UN treaty bodies reveals that the two sets of rights are not examined together or, at best, that this is done in a largely acclamatory fashion. The HRC has not paid attention to their interrelationship, and only considered how the ICCPR rights themselves are interconnected.Footnote 40 The CESCR Committee has done so very briefly by referring also to civil and political rights.Footnote 41 Even if the Committee on the Rights of the Child (CRC Committee) has highlighted indivisibility, it has not examined how both sets of rights are related even though its mandate covers the two sets of rights.Footnote 42 In contrast, and as will be further explored, the Committee on the Rights of Persons with Disabilities (CRPD Committee) has done so in detail.Footnote 43 Most textbooks continue to discuss economic and social rights separately from civil and political rights,Footnote 44 though there are a few exceptions that combine the two sets of right.Footnote 45 There is thus an evolutionary element in treating both sets of rights concurrently, although this remains a slow work in progress.
The second, more modern, approach to the concept of indivisibility stresses that human rights are strongly interdependent,Footnote 46 emphasizing that failure to take this into consideration impedes the implementation of human rights on the whole. This has led to discussion of whether the indivisibility of human rights means that they are mutually indispensable or just mutually useful.Footnote 47 The question concerns the threshold of indivisibility, that is, between ‘full’ and ‘mere’ interdependence, or between a strong and a weak concept of indivisibility. This requires an investigation of how civil and political and economic and social rights are actually intertwined, rather than just affirming the impossibility of prioritizing one category of rights over the other.
However, it is not always the case that human rights are indivisible in the sense that they are all mutually indispensable, let alone mutually useful: the degrees of indivisibility and connectedness between rights can vary.Footnote 48 This suggests that some sort of priority ought to be given to those rights that can accelerate the realization of others. From an empirical point of view, the indivisibility of human rights appears to be an exaggeration, and to claim that all rights belonging to a particular category are invisible from all those belonging to another one would be even more implausible.Footnote 49 Civil and political and economic and social rights are not invariably dependent upon each other, whatever their levels of interrelationship may be.
There is, then, lack of agreement concerning which of these two dominant approaches to the concept of indivisibility is most persuasive. The two sets of rights are rarely considered together and practice suggests that they can and are addressed individually. As a result, more is required in order to demonstrate the reality of indivisibility and to conceptualize it in a manner which contributes to the advancement of human rights. Perhaps, the statement that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’ has been repeated so many times that it has become a kind of self-sufficient slogan that turns out to be more a wish than a reflection of reality. It seems reasonable to conclude that the indivisibility of human rights has been widely used as a means to compensate for the unfortunate division into two sets of rights carried out in opposition to the spirit of the UDHR.Footnote 50
III. INDIVISIBILITY IN THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
A. Blurring of the Distinction between the Two Sets of Rights
As the most recent group-specific human rights treaty, the CRPD protects the human rights of disabled people. Proposed by Australia in 2002,Footnote 51 it was adopted on 13 December 2006, and entered into force on 3 May 2008. By July 2018, there were 177 parties to the Convention.Footnote 52
The CRPD is said to build upon the social model of disability,Footnote 53 which considers disability to be a consequence of societal organization.Footnote 54 Even though it has been argued that the Convention supersedes this model,Footnote 55 the Convention is concerned about physical and social barriers faced by disabled people. This is reflected in its scope of application, which includes people ‘who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.Footnote 56 However, the reality is far removed from the worthy objectives set by the CRPD. Disabled people have significantly fewer opportunities than others, and generally experience greater marginalization.Footnote 57
As noted by Sen, disabled people are often more reliant on the provision of additional resources than others in order to function on a daily basis.Footnote 58 As a result, and in order to protect their human rights, measures must be adopted to address the disadvantage faced by them. According to Mégret, the CRPD does more than simply ensure that the rights protected by other human rights treaties are applicable to disabled people.Footnote 59 It has enriched the notion of human rights by ensuring that these rights are tailored to their particular needs.
Echoing the Vienna Declaration and Programme of Action, the CRPD's Preamble reaffirms ‘the universality, indivisibility, interdependence and interrelatedness of all human rights’.Footnote 60 This statement is a novelty for a human rights treaty,Footnote 61 but it directs attention to the particular significance of the concept of indivisibility for disabled people. Accordingly, the Convention has intermixed civil and political rights, on the one hand, and economic and social rights, on the other. Article 4(2) nonetheless provides that ‘[w]ith regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources … with a view to achieving progressively the full realization of these rights’. This provision seems, prima facie, to perpetuate the distinction between two sets of rights, as in the ICCPR and ICESCR.
In fact, the CRPD did more than intermixing civil and political and economic and social rights; rather, it literally has done away with the distinction between the two sets of rights altogether. It is futile to try and determine which category of rights each of the Convention rights belong to. Although the proposal that economic and social rights be the subject of progressive realization was not disputed during the negotiations, an attempt to list the rights concerned eventually failed.Footnote 62 The drafters did not clarify the scope of ‘economic, social and cultural rights’. Instead, in Article 4(2) they followed the precedent set by the CRC.Footnote 63
The CRPD also did more than just take up existing rights. In addition to articulating these rights specifically with regard to disabled people, the Convention has added a number of ‘sui generis entitlements’.Footnote 64 These ‘sui generis entitlements’ include aspects that were not anticipated in existing human rights treaties, in that they concern the participation of disabled people in society as well as the promotion of their independence and autonomy.
Importantly, the CRPD requires that States Parties ‘take all appropriate steps to ensure that reasonable accommodation is provided’,Footnote 65 and failing to do so is a form of discrimination.Footnote 66 The duty to provide reasonable accommodation, therefore, is of immediate application. It is not only part of the general obligations, but is to be found in specific provisions of the Convention too.Footnote 67 This duty applies to both civil and political and economic and social rights.Footnote 68 The immediacy of the obligation narrows the sphere of progressive realization, and thus contributed to a further weakening of the distinction between the two sets of rights.
Two particular examples help demonstrate the extent to which the two sets of rights have been conflated throughout the CRPD, illustrating the approach to indivisibility taken in this Convention. The first is supposed to be drawn mainly from civil and political rights, while the second is supposed to be drawn mainly from economic and social rights.
The first example is the right to independent living. Article 19 of the CRPD provides that disabled people have the right to ‘choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement’.Footnote 69 The main concern here is with the widespread practice of institutionalizing disabled people, a concern discounted by previous human rights treaties. When done without their consent only because of having an impairment, such institutionalization constitutes a deprivation of liberty and can even amount to a form of mistreatment.Footnote 70 There is therefore an overlap between the right to independent living and the right to freedom of movement, as well as the right to liberty and the prohibition of torture, inhuman or degrading treatment or punishment, which are considered to be civil and political rights.
The right to independent living extends even further, as disabled people need support that meets their individual needs if they are to be able to define their own living arrangements. According to the CRPD Committee, this right requires that States Parties ‘take effective and appropriate measures to facilitate the full enjoyment of the right and full inclusion and participation of persons with disabilities in the community’.Footnote 71 The CRPD stipulates that disabled people must be able to access ‘a range of in-, residential and other community support services, including personal assistance’.Footnote 72 Such services ‘are not restricted to services inside the home, but must also be able to extend to the spheres of employment, education or political and cultural participation’.Footnote 73 Autistic people, for instance, require the provision of whatever support can be achieved, through house services, adapted communication and adequate training, that is fully embedded in the places where they live. The right to independent living is contingent on resolving issues related to economic and social rights. Should these issues be ignored, disabled people will remain segregated and the right to independent living will remain a dead letter. It makes no sense to assign this right, or even parts of it, to only one of the different categories of rights, because it results from the overlapping of such categories.
The second example illustrating the blurring of the distinction between the two sets of rights in the CRPD is the right to education. While this right is commonly said to be an economic and social right,Footnote 74 it also pertains to civil and political rights (through the right of parents to choose the education of their children).Footnote 75 Indeed, it has long been considered to illustrate the indivisibility of human rights.Footnote 76 By proclaiming a right to inclusive education, the CRPD further expands upon this indivisibility. Article 24 of the CRPD provides that States Parties must ‘ensure an inclusive education system at all levels and lifelong learning’.Footnote 77 This depends on making schools accessible to disabled children. According to the CRPD Committee, the right to inclusive education requires that States Parties adapt ‘educational environments to accommodate the different requirements and identities of individual students’.Footnote 78
This new emphasis on inclusion has led to an even greater overlap of both sets of rights, as it implies that schools should recognize and value pupils’ varied characteristics. By providing that the inclusive education system to be established must enhance ‘respect for … human diversity’,Footnote 79 the Convention seeks to encourage greater acceptance of different types of disabilities. Deaf people, for instance, who see themselves as a linguistic community, consider sign language to be more than just a tool of communication.Footnote 80 The CRPD provides that States Parties must facilitate ‘the promotion of the linguistic identity of the deaf community’ in order to achieve their full participation in education.Footnote 81 While the Convention is sometimes interpreted as authorizing segregated education for those who are deaf,Footnote 82 it does protect them from the goal of assimilating them into the mainstream. The right to inclusive education requires that States Parties ensure both equal access to education and equal respect for human differences. This right no longer just includes aspects of both civil and political and economic and social rights, but involves a blending of them into a new form of right.
B. The Indivisibility of Human Rights and Disabled People
Consequently, the indivisibility of human rights is something that matters a great deal in the context of disability. The CRPD calls for measures to give disabled people control over their lives and at the same time seeks to foster their inclusion into society. It is therefore not by chance that the Convention avoids and moves beyond the distinction between the two sets of rights. As noted by Mégret, this distinction has done a disservice to disabled people.Footnote 83 Whilst the added value of the indivisibility of human rights has long been recognized, the CRPD shows that it is an imperative if disabled people are to benefit fully from these rights.
It is worth noting that earlier international legal instruments reflected the then prevailing welfarist approach to questions of disability.Footnote 84 Although this approach has been rejected with the adoption of the CRPD, issues concerning the provision and use of resources remain relevant to the protection of human rights for disabled people. Indeed, and more broadly, it has been claimed that welfare can be more efficient than human rights when it comes to increasing well-being.Footnote 85 The Convention has found a middle way by adopting an approach that acknowledges but goes beyond welfarist approaches. Whilst the removal of barriers requires the allocation of resources, this is not the main purpose.Footnote 86 The CRPD aims to give disabled people ‘the full and equal enjoyment of all human rights’,Footnote 87 which of course depends on but requires more than the adoption of welfare policies.
The situation is now such that it is impossible to classify the rights protected by the CRPD as being either civil and political or economic and social, and this Convention cuts across such distinctions. This makes it clear that it is wrong to think that both sets of rights are concerned with different areas of life and that they have an only superficial interconnection. It also means that it is wrong to think in terms of there being a hierarchy or questions of priority between them. As in the case of women's rights,Footnote 88 privileging civil and political rights has been detrimental to the interests of disabled people. Should the socio-economic dimension be set aside and forgotten, human rights would be partially deprived of content. It is therefore imperative that this deeper connection between the two sets of rights be acknowledged. Not doing so fails to take into account the situation of disabled people and thwarts their full participation in society.
The result is not only that the CRPD has placed both sets of rights on an equal footing, but also that the very existence of the division into civil and political and economic and social rights has itself become a hindrance to the proper interpretation of the Convention. While human rights more often than not have been approached through the lens of this distinction, the CRPD has compounded the different categories of rights throughout its different provisions.
This new appreciation of the indivisibility of human rights is not only a matter of implementation: it is embedded into the various rights as set out in the Convention. This not only affects the implementation of these rights and strengthens their interrelationship but also questions the entire approach of categorizing human rights into two distinct sets of rights. The CRPD has provided a more far-reaching and comprehensive way of understanding indivisibility that bears upon the very content of human rights. The crux of the issue is that the two sets of rights have become inseparable to the point where seeking to differentiate between them becomes pointless. Both sets of rights are co-essential as human rights of disabled people. Such an understanding recognizes not only that the distinction between the two sets of rights is artificial but also that all human rights have different features that can include civil, political, economic, social, cultural as well as other dimensions, and that all these dimensions are always interjoined.
However, this understanding may be conflicting with the obligation regime created by the ICCPR and ICESCR and extended in the CRPD. As Article 4(2) of the Convention makes the notion of progressive realization only applicable to economic and social rights, States Parties must be told which rights are concerned. Since, as will be seen in section IV, no definite answer can be given, other solutions must be found, one of which is to identify just what aspects of a particular right fall within the scope of either civil and political or economic and social rights.Footnote 89 This, however, is a mistaken approach. Dissecting the Convention rights might permit such formal identification but would not help their practical enjoyment. These rights are too hybrid to be successfully implemented by such an artificial device.Footnote 90 In the examples of rights given earlier, the choice of place of residence is hollow if autistic people cannot freely opt for living arrangements other than in institutions, because these are the only places where their particular needs can be adequately met or because the applicable legislation makes the assistance required inaccessible elsewhere. Similarly, the goal of inclusive education is worthless if deaf children must adapt to school by being obliged to give up aspects of their cultural identity that ties them to their deaf peers, who may of course include their own parents. And all of this while leaving aside the question of general obligations, including the duty to provide reasonable accommodation. As a result, civil and political and economic and social rights have unexpectedly become indistinguishable from each other within the CRPD. They have become so interwoven that fracturing them undermines the whole of the Convention.
The proclamation that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’ and recognition of obligations to respect, protect and fulfil have drawn particular attention to the interrelationship between civil and political and economic and social rights. The CRPD has pressed ahead with this development, making the categorization of human rights into two distinct sets of rights difficult, if not impossible, to carry out. This Convention thus represents the next stage in the process of dissolving the distinction between the two sets of rights. This is not an isolated phenomenon but one that characterizes the entire CRPD. By going beyond established distinctions in the field of international human rights law, the Convention has brought out a more holistic view of human rights.Footnote 91 Human rights must be seen increasingly as a single entity if they are not to be deprived of real meaning. This way of understanding indivisibility does not just attribute equal value to both sets of rights or argue that these sets of rights are actually intertwined, but reflects the idea that they are mutually inextricable from each other.
IV. THE REAL AND ACTUAL ENJOYMENT OF HUMAN RIGHTS
The fact that States could not agree upon the methods for implementing civil and political and economic and social rights eventually led to the adoption of both the ICCPR and the ICESCR. As has been seen, this crystallized a division of human rights into two sets of rights. This division emerged as a result of an ideological divide correlating to different viewpoints between ‘West’ and ‘East’ in the aftermath of World War II. The argument that Western States mostly dismissed economic and social rights would, however, have been a ‘myth’, since support for such rights would have been well alive during the drafting of the two Covenants.Footnote 92 The truth is that these rights started to loose attraction in the 1970s, although they had roots that in fact go back as far as the French Revolution and, according to some, even as far as the Magna Carta.Footnote 93
Following this, the categorization of human rights into two distinct sets of rights has been associated with the State as being either intervener or abstainer. This accentuated the dichotomy between ‘positive obligations’, on the one hand, and ‘negative obligations’, on the other. As once argued by Berlin,Footnote 94 freedom has been considered to be either positive or negative.Footnote 95 Nonetheless, the dichotomy between ‘positive obligations’ and ‘negative obligations’ is difficult to distinguish in practice, and from a policy perspective any right raises questions concerning distribution of resources.Footnote 96
As a result, the central issue is not whether but how States should use their resources in order to meet their human rights obligations. Whether they have done so requires considering both the amount of expenditure and the generation of revenues.Footnote 97 Moreover, the resources to be taken into account include not only financial, human and natural resources but also the national and international resources potentially available.Footnote 98 As this is a continuing process, it is essential to have regard to monitoring mechanisms that can offer an accurate picture of efforts undertaken, such as indicators and budget analysis.
Having said this, the ICESCR provides that economic and social rights must be realized progressively from within the State's available resources.Footnote 99 The notion of progressive realization applies only to such rights, as the ICCPR makes no such provision. This notion can provide an excuse for States to evade their commitments, constituting something of a ‘monstrous serpent’ in international human rights law. Be that as it may, it also explains why considerations of whether States have followed through on these commitments has tended to concentrate on economic and social rights. While civil and political rights also call for steps to pursue their implementation, the unavailability of resources will not alter their possible violation. The focus, therefore, is on whether there has or has not been a breach even though the occurrence of such breaches necessitates going further with the goal of giving effect to those rights. As civil and political rights must be implemented immediately, there is little consideration of the actual need of realizing them too. This raises the question why social and economic rights are the only rights to be subject to progressive realization.Footnote 100 The problem is that this progressive realization is tied up with those rights as a result of the ICESCR.
In the end, it does, then, remain necessary to know which category a particular right belongs to. It is nevertheless suggested that this cannot really be known, and particularly so as regards the CRPD. As shown in the previous section, it is hardly feasible to associate CRPD rights with only one category of rights. While this could be done—wrongly—for particular aspects of one of the Convention rights, assigning such a right to one category of rights rather than the other not only inhibits its realization but runs the risk of undermining the very freedom that that right provides. The CRPD recognizes that the implementation of human rights will continue to be restricted if disabled people are unable to exercise these rights. Even if it is possible to distinguish between sets of rights at an abstract level, doing so produces serious obstacles with respect of its application.
As a result, the differentiation between duties of immediate application and duties of progressive realization has proven to be immaterial. Human rights are always concerned with both kinds of duties, but in any event they are not assignable to any category of rights as would be required to uphold this differentiation. The solution is not to abandon the notion of progressive realization which, on the contrary, should be more deeply and more fully appreciated. Rather, it means extending the methodologies that support this notion to the entire field of international human rights law.
Rather than dwelling on positive and negative obligations, with civil and political and economic and social rights in the background, it is important to appreciate how existing ‘regulatory regimes’ lead to acute forms of marginalization.Footnote 101 As argued by Van Parijs, ‘real’ freedom is not a question of protecting positive or negative freedom but of securing a similar level of opportunities for everyone.Footnote 102 This points to the necessity of insisting on focussing on the practical benefits which a right is intended to deliver and which may vary according to the circumstances.
As illustrated by the CRPD, the advent of group-specific human rights treaties has accelerated such ways of thinking about indivisibility. These human rights treaties entail greater sensitivity to the particular characteristics of protected individuals whose needs call for measures that go beyond the formal recognition of human rights. By guaranteeing appropriate support in furtherance of this end, the CRPD has given more tangible effect to the indivisibility of human rights. What has come to matter is the real and actual enjoyment of these rights, regardless of questions of categorization.
Such an understanding of indivisibility could lead to another way of approaching the implementation of human rights. What would matter is no longer the timing of the implementation of these rights, that is, whether now or later, but the effectiveness of doing so, that is, the guarantee that these rights can in fact be and are in reality exercised and enjoyed. The European Court of Human Rights understood this very early on when it declared that the European Convention on Human Rights (ECHR) ‘is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.Footnote 103 The effectiveness of human rights’ implementation means that the actual exercise of such rights must be brought to the fore. The debate must not only concern the allocation of the resources necessary to reach that goal, which is where it usually stops, but must also include discussion of political arrangements in order to reach it. The requirement to provide enabling conditions for the exercise of human rights thus gives a socio-economic dimension to classical ‘liberal’ rights.Footnote 104
What is therefore important is to create a shift in focus by examining the means of improving the practical enjoyment of human rights. The true question that States must ask themselves is what they are to do in order to guarantee that human rights make sense for any individuals, whatever the situation that they might be in. This involves consideration not only of disability, race, gender, age and sexual orientation but also of poverty, environment, dependency, participation and any other human rights issues that require special attention.
In order to achieve this, human rights should be understood as each and every human right. For too long, human rights have received a narrow interpretation that puts economic and social rights in the background. The dichotomy between ‘positive obligations’ and ‘negative obligations’ originated from the desire to differentiate civil and political from economic and social rights, though it subsequently served to demonstrate that the two sets of rights call for similar kinds of obligations. Meanwhile, it has left a legacy that continues to lower the status of economic and social rights. The necessity of rooting those rights more firmly into international human rights law remains as pressing as ever in times of rising inequalities.
The proposed understanding of the indivisibility of human rights may help achieve this, since it contributes to the teasing out of the nexus between the notion of human rights and civil and political rights. It calls for restraint in aligning the content of human rights with any particular category of rights. It also discourages leaning upon these categories in order to differentiate what must be achieved both now and over time.
One possible objection to this way of understanding the indivisibility of human rights is that it may result in economic and social rights fading even further into the background. The answer to this objection is that drawing greater attention to these rights appears to have yielded limited results with regard to their implementation. Obligations deriving from economic and social rights, by and large, continue to be evaded.Footnote 105 The reason is that continued reference to different categories of rights can contribute to tacit denial of their equal status. Employing such categories creates scope for the pretence that these categories have divergent foundations.Footnote 106 They do have shared foundations,Footnote 107 whereas setting them against each other seemingly provides moral grounding for granting some rights more value than others. As stated by the Special Rapporteur on Extreme Poverty and Human Rights, ‘[a] conception of human rights that implicitly accepts a radical hierarchical distinction between the two sets of rights … is one that is fundamentally incompatible with international human rights law’.Footnote 108 Hence, accepting that human rights are indivisible, as is argued here, and, moreover, acting accordingly might outweigh the purported beneficial effects of continuing to approach them as comprising distinct sets of rights.
V. CONCLUSION
This article has considered the indivisibility of human rights in light of the CRPD. Back in 1952, the so-called ‘Separation Resolution’ meant that there would be separate human rights treaties for civil and political rights, on the one hand, and economic and social rights, on the other.Footnote 109 The resultant division into two sets of rights was primarily driven by questions concerning legal enforceability. The article has advanced a concept of indivisibility which breaks down this division, and the CRPD can be seen as a further step in the process of undermining such an injudicious categorization of human rights. Repeating the mantra that human rights are ‘universal, indivisible, and interdependent and interrelated’ does not by itself bring this about. This article has, however, suggested that the Convention provides powerful insights into the indivisibility of human rights, and how this indivisibility might be better understood and realized.
The article argued that the CRPD has generated a new understanding of the indivisibility of human rights, insofar as it considers civil and political and economic and social rights as inextricably bound together. It has shown both how the Convention has led to the blurring of the distinction between the two sets of rights and how the blurring of this distinction has recast the way indivisibility needs to be approached. It has also analysed the problems caused by this new appreciation of indivisibility, especially with regard to the notion of progressive realization, and highlighted the consequent demand to put a greater emphasis on the actual and real enjoyment of human rights. This new understanding of the indivisibility of human rights could accelerate attention in scholarship on all matters affecting the actual exercise of these rights, because it emphasizes the supreme importance of focussing on the effectiveness of their implementation. This can also be a stepping stone towards elevating the position of economic and social rights under international human rights law generally.
