Davis, Dennis M. --- "Socio-economic Rights: Has the Promise of Eradicating the Divide between First and Second Generation Rights Been Fulfilled?" [2011] ELECD 388; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 28

Section Title: Socio-economic Rights: Has the Promise of Eradicating the Divide between First and Second Generation Rights Been Fulfilled?

Author(s): Davis, Dennis M.

Number of pages: 13

Extract:

28. Socio-economic rights: has the promise of
eradicating the divide between first and second
generation rights been fulfilled?
Dennis M. Davis



On 16 December 1966, the International Covenant on Economic Social and Cultural Rights
was adopted by the General Assembly of the United Nations.1 The preamble to this Covenant
proclaimed boldly that economic, social and cultural rights constituted a recognition that `in
accordance with the Universal Declaration of Human Rights, the ideal of free human beings
enjoying freedom from fear and want can only be achieved if conditions are created whereby
everyone may enjoy his economic, social and cultural rights as well as his civil and political
rights'.
The Covenant became part of international law upon its entry into force on 3 January 1976.
This ratification represented the possibility of a significant rupture of the traditional distinc-
tion between negative and positive rights or, using the phrase employed in the title to this
contribution, the distinction between first and second generation rights.
Traditionally civil and political rights were seen as the provision of defences of the indi-
vidual citizenship against excessive state control. But even these negative rights held positive
implications. As Henry Shue2 wrote, `the complete fulfilment of each kind of right involves
the performance of multiple kinds of duties'. In essence, every right, both negative and posi-
tive, contains three correlative duties, namely the duty to avoid depriving, the duty to protect
from deprivation and the duty to aid the deprived. For example, the right to ...