If you think China is competing with the West only geopolitically in the South China Sea and materially in advanced technology, you are partially mistaken. As the Geneva Observer revealed, at the Human Rights Council in Geneva, the Chinese are proposing a resolution to prioritize economic, social, and cultural (ESC) rights ahead of the traditional Western civil and political rights. Beyond geopolitical and material confrontations, an ideological battle dating to the Cold War is being re-ignited over the universality of human rights and their implementation.
For the uninitiated in the history of human rights, this may seem like a typical United Nations debate. Lots of words with little substance. But as the Canadian scholar and former U.N. official Robert Cox wrote, “Theory is always for someone and for some purpose.” The Chinese attempt to prioritize ESC rights over civil and political rights is similar to the debates surrounding the Universal Declaration of Human Rights (UDHR) and the two human rights covenants in the 1940s at the height of the Cold War. This is as pertinent now as it was then.
The Chinese proposal highlights deep philosophical and cultural biases with political ramifications. If the Chinese proposal is accepted, it could show a re-alignment in priorities of human rights and a marker of shifting power relations in the multilateral system.
To set the context of today’s Human Rights Council tensions: Following 1945, the ideological struggle between Western liberalism and Soviet communism was simmering. The UDHR was proclaimed by the United Nations General Assembly on December 10, 1948. (This year is the 75th anniversary.) Under the leadership of Eleanor Roosevelt, the first chairperson of the U.N.’s Commission on Human Rights, the final document has a preamble and thirty articles. Much of the UDHR has the language of Western liberalism and America’s conception of inalienable rights. Clear differences between East and West developed during its elaboration.
The preamble begins: “Whereas the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Article 3 states its major premise: “Everyone has the right to life, liberty and the security of person.” Articles 1-21 describe political rights mostly for individuals. Articles 22 to 27 involve economic, social, and cultural rights. The first set of rights deals with individuals. The second set of rights concerns individuals as social beings
The Soviet Union and seven other countries abstained from supporting the UDHR, although it was non-binding with no legal obligations. For Soviet legal theory, the UDHR was “too judicial,” and could infringe on national sovereignty. For the Soviets and their allies, governments were more important than individuals.
The General Assembly requested the Human Rights Commission to prepare a draft covenant on human rights that was to have legal obligations. One covenant was envisioned; the General Assembly affirming that the two sets of rights were “interconnected and interdependent.” The debate surrounding the inclusion of economic, social, and cultural rights in one covenant was highly contentious. In an early draft, economic, social, and cultural rights came after political rights, similar to what was in the UDHR.
Finally, after 18 years, two covenants were adopted. The International Covenant on Civil and Political Rights was adopted in 1966 and entered into force in 1976 after it was ratified by a sufficient number of countries. The International Covenant on Economic, Social and Cultural Rights was also adopted in 1966 and entered into force in 1976. Although the two covenants were adopted by the same General Assembly Resolution, the division between them has affected human rights activities ever since. The United States signed the Covenant on ESC rights in 1977 but has not ratified it. China signed the Covenant on Civil and Political Rights in 1998 but has not ratified it.
Although officially “interconnected and interdependent,” the two sets of rights can be presented as follows: ESC rights are positive, requiring government action, resource-intensive, progressive, social, ideologically divisive, non-justiciable, and mere aspirations. Civil and political rights are negative, requiring no government interference, cost-free, precise, justiciable, non-ideological, measurable, and manageable.
While many scholars have demonstrated the close relationship between the two sets of rights, ESC rights remain essentially secondary in the West and a vestige of the East-West confrontation. They are sometimes called “red” rights. Stalin’s oft-cited line has been used by some to justify why ESC rights override other rights: “You have to break an egg to make an omelet.”
An exception to Western prioritizing civil and political rights has been the Australian N.Y.U. Professor of Law Philip Alston. The recent U.N. special rapporteur on extreme poverty and human rights, Alston started his 2020 final report with a damning critique of the failure to eliminate extreme poverty: “The world is at an existential crossroads involving a pandemic, a deep economic recession, devastating climate change, extreme inequality, and a movement challenging the prevalence of racism in many countries,” he wrote. “A common thread running through all these challenges and exacerbating their consequences is the dramatic and longstanding neglect of extreme poverty and the systemic downplaying of the problem by many governments, economists, and human rights advocates,” he noted. Long a champion of ESC rights, Alston visited the United States and the United Kingdom during his tenure, harshly criticizing both countries for their inaction to eradicate extreme poverty.
Alston is an exception to the West’s prioritizing of civil and political rights while de-emphasizing ESC rights. The philosophical and cultural biases between the two sets of rights have remained politically charged since the 1948 debate over one or two covenants. And this is what has come to the fore in the current meeting of the Human Rights Council.
According to the Geneva Observer, China and Pakistan presented Beijing’s draft resolution to the Council including a demand that the Office of the High Commissioner for Human Rights “enhance” its work in the field of economic, social, and cultural rights and calling on the High Commissioner to “set his priorities” on this issue. The draft resolution goes beyond Geneva. It calls on all pertinent U.N. agencies, regional organizations as well as civil society, to make available the resources necessary to prioritize ESC rights.
China may get sufficient support among the Council members for its resolution. If they do, it would show a significant change in human rights priorities. Beyond that, it would also show a significant power shift in international relations.
This article originally appeared in the Geneva Observer.