Section II Formalising Treaties
Chapter 3: Treaty Drafting
A. The Nature of the Rights
right to food might require that states interfere in the domestic food processing industry,224 while guaranteeing the right to housing is likely to require that the state facilitates the building of social housing.225 States that attempt to provide citizens with positive rights might accordingly sometimes run into financial difficulties in the pursuit of those goals, assuming the achievement of the goals requires significant domestic efforts. Wealthier states might face lower costs than poorer states in improving the standards afforded to citizens, even if both states have the same standards at the outset. As an example, let us consider the right to adequate food.226 Guaranteeing citizens the right to food will require that states direct resources toward the promotion and fulfilment of that right; we assume that because wealthier states have a greater availability of resources, it will be easier to direct resources to the provision of the right to food, while we also assume that the greater institutional strengths that come with being wealthier states enable these states to adapt more easily.227 By contrast, poorer states face exactly the opposite difficulties when attempting to provide their citizens with the same level of human rights standards: they find it difficult to finance a better provision of rights and struggle with institutional capacities and technical know-how. A divergence is therefore expected between wealthy and poor states, as despite both starting off from the same point, reaching each additional level is assumed to be either easier or harder, depending on a state’s wealth and institutional make-up.
In relation to positive rights, then, it is entirely conceivable that wealthy states would be more likely to comply with treaties providing for such rights, although ratification patterns might not necessarily follow in the same vein: poorer states
Rights v "Positive" Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order' [2000] 22(4) Human Rights Quarterly 1060.
224 An overview of such approaches is provided in C Peter Timmer, ‘Food Price Policy: The Rationale for Government Intervention’ [1989] 14(1) Food Policy 17.
225 There is a long heritage and connection between human rights and social democracy, manifested through social housing. See Bo Bengtsson, ‘Housing as a Social Right: Implications for Welfare State Theory’ [2001] 24(4) Scandinavia Political Studies 255.
226 This right is widely protected under various international and regional instruments. Some examples include CRC arts 24(2)(c) and 27(3); CEDAW art 12(2).
227 A wealthier state’s assumed greater adaptability is assumed to stem from its position further along a continuum of development, such that it has ‘learned by doing’ through that development process.
eager to improve their provision of positive rights might ratify in order to show commitment to the treaty’s goals, or might do so on the basis that, despite the costs of positive rights, providing for these rights might be more easily achieved if the state is a party to the treaty than if it is not. By becoming a party to the treaty, the state might gain technical knowledge from the wealthier states parties and may be able to gradually provide for the treaty-mandated standard at lower cost.228 This reflect a constructivist perspective that suggests that treaties are capable of facilitating a transfer of expertise among states, and that being a state party assists the receiving of this knowledge-transfer.
But whereas positive rights are therefore argued as being costly for states to guarantee to their citizens, guaranteeing negative rights forms a different case.
Negative rights are those rights that require that states not interfere in the lives of their citizens, but that they instead apply a hands-off approach. In this category, most of the provisions of the ICCPR are negatively framed, requiring, for example, that states provide for freedom of expression,229 the right to privacy,230 and freedom of association.231 For states, providing for these rights demands that they refrain from taking any steps that will infringe upon them, unless these can be justified.232 In this respect, negative rights are cheaper for states to provide to their citizens, as they demand non-interference, which is more easily achievable than specific and structured policies. State institutions are mandated with the task of desisting from engaging in policies that would limit the ability of the state’s citizens to exercise their rights to freedom of expression or freedom of association. Actions that should be avoided would include the introduction of legislation countering these freedoms or more indirect approaches that frustrate
228 This assumes, though, that interaction between states within the treaty system takes place, and that this interaction will assist the transfer of technical know-how between states. This is certainly not a guarantee and has not been widely found during the course of this research.
229 ICCPR art 19; ECHR art 10
230 ICCPR art 17; ECHR art 8
231 ICCPR art 22; ECHR art 11
232 The ECHR allows states to restrict rights in a number of limited cases (public interest etc.), but these restrictions are also subject to limitation (ECHR art 18); for an analysis of some of the case law in the area, see Aileen McHarg, ‘Reconciling Human Rights and the Public Interest:
Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Right’ [1999] 62(5) The Modern Law Review 671.
citizens’ enjoyment of their rights, such as restrictions on rights that might facilitate enjoyment.233
Nevertheless, the provision of negative rights might not always be without cost, and to assume that it does is oversimplification. In order to provide for rights that require state non-interference, states may need to alter domestic legislation,234 they may need to upskill bureaucrats,235 or they may need to educate their citizens.236 These measures, despite the rights themselves requiring that the state take a step back, can be both financially and politically costly. Political costs might arise if the rights in question come into conflict with each other: for example, the right to freedom of expression can conflict with the right to freedom of religion.237 Under such circumstances, providing for negative rights requires a tentative balancing of the interests of different groups existing in a state, with all groups desiring that their particular preferences be taken into account.238 Evidently, therefore, negative rights – while requiring states to refrain from taking particular actions – can also involve various costs.
Depending on the subject matter of the particular treaty under consideration, we would expect ratification and compliance costs to vary. Treaties guaranteeing positive rights are likely to be more costly for states with limited resources than for states with more extensive resources, although in both cases the requirement that the state take action to guarantee that the rights are provided for is likely to result in costs being incurred. For treaties whose subject matter largely consists of negative rights, we expected fewer costs to be incurred, as these treaties mandate
233 For example, a right to join a trade union might facilitate freedom of association, freedom of assembly, and freedom of expression, but if this right is restricted then so too might the others be.
234 See, for a treaty-specific overview, Janet E Lord and Michael Ashley Stein, ‘The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities’ [2008] 83 Washington Law Review 449.
235 This will be more costly the more institutionalized the respective human rights practices in each state and the greater the divergence between treaty provisions and state practices.
236 Such as through citizens advice offices and public campaigns.
237 The best example of this is the conflict that pertained in relation to the publication of cartoons depicting Mohammed in Denmark in 2005; See Robert Post, ‘Religion and Freedom of Speech:
Portraits of Muhammad’ [2007] 14(1) Constellations 72.
238 How this plays out is discussed, with particular reference to group that are unorganized, in Arthur T Denzau and Michael C Munger, ‘Legislators and Interest Groups: How Unorganized Interests get Represented’ [1986] 80(1) American Political Science Review 89; compare Putnam Diplomacy and Domestic Politics (n 33).
state non-interference; however, as discussed, the politicised nature of many negative rights can result in ‘audience costs’239 for states parties that protect such rights. Accordingly, it is difficult for treaty drafters to predict the likely consequences of framing a right as positive or negative, as state heterogeneity and the treaty’s subject matter will strongly influence how either a negative or a positive framing will be received.