He 9780198767237 Chapter 7

7.
Categories of rights
International Human Rights Law (3rd

edn)
Edited by Daniel Moeckli, Sangeeta Shah, Sandesh
Sivakumaran, and David Harris
Publisher: Oxford University Press Print Publication Date: Dec 2017

Print ISBN-13: 9780198767237 Published online: Sep 2018
DOI: 10.1093/he/
9780198767237.001.0001
7. Categories of rights
Chapter: (p. 135) 7. Categories of rights
Author(s): Theo van Boven
DOI: 10.1093/he/9780198767237.003.0007
Summary
This chapter seeks to identify different categories of human rights,

but in doing so recognizes the indivisibility, interdependence, and
interrelatedness of all human rights. A first categorization
distinguishes civil and political rights from economic, social, and
cultural rights. This distinction is, however, increasingly contested
and should not disguise the mutual relationship between these rights
as essential conditions for the life and well-being of the human
person. A second distinction is that between the rights of individuals
and the rights of collectivities, in particular indigenous peoples.
Collective rights offer parameters for the effective enjoyment of
individual rights. A third distinction is that between core rights and
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other rights, raising the issue of whether there is a ranking among

human rights as to their fundamental nature. It is argued that basic
substantive rights determining the life, survival, dignity, and worth of
individuals and peoples may be considered as core rights. The
chapter finally discusses the question of whether ‘new human rights’
are emerging. It advises that this question be approached with
caution and that human rights should be understood in an inclusive
and newly focused manner, encompassing hitherto marginalized and
excluded groups and human beings.
1 Introduction
There is a certain uneasiness about classifying human rights in

different categories. Leading UN documents state that all human rights
are indivisible, interdependent, and interrelated. Whatever categories of
human rights one may have in mind—civil, political, economic, social, or
cultural rights; individual or collective rights; core rights or other rights—
intersections bear out that all rights are interlinked and that categories or
classifications correspond more to conceptual premises than to realities.
The relative inadequacy of human rights categories and classifications
becomes evident when the focus is on the human being whose enjoyment
of rights and freedoms depends on prevailing conditions of freedom from
fear and freedom from want. Domestic and international policies, insofar
as they take into account the holistic nature of human rights, transcend
human rights categorizations and classifications.
The comprehensive and holistic nature of human rights was recognized

by US President Franklin D Roosevelt when, in his famous speech of
1941, he mentioned ‘four essential freedoms’ that must be guaranteed to
all persons everywhere in the world: freedom of (p. 136) speech and
expression, freedom of worship, freedom from want, and freedom from
fear.1 This forward-looking four freedoms message served as one of the
sources of inspiration for the UN International Bill of Rights and
continues to inspire policy-makers. For example, former UN Secretary-
General Kofi Annan, in his landmark report In Larger Freedom: Towards
Development, Security and Human Rights for All, drew extensively on the
freedom from want and freedom from fear paradigm.2 A major thrust
thereof is that development, security, and human rights are not only
interlinked, they also reinforce each other.3 In order to attain larger
freedom, human rights must be an integral part of development and
security policies. Even though this chapter reviews various categories of
human rights, this should neither distract from the indivisibility of all
human rights, nor from their comprehensive and holistic nature.
2 Categories of human rights
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2.1 Economic, social, cultural rights/civil, political rights
Much attention has been given over the years to the distinction between,
on the one hand, economic, social, and cultural rights (such as the rights
to an adequate standard of living, education and work, dealt with in
Chapters 10 and 12) and, on the other, civil and political rights (such as
the rights to life and integrity of the person, the freedoms of thought,
expression, association, and assembly, and the rights to liberty and a fair
trial, dealt with in Chapters 9, 11, and 13).4 There is indeed a significant
difference between the two as far as the nature of states parties’
obligations under the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and the International Covenant on Civil and
Political Rights (ICCPR) are concerned. While Article 2 ICESCR provides
for the progressive realization of economic, social, and cultural rights and
acknowledges the constraints due to limits of available resources, the
parallel Article 2 ICCPR prescribes the obligation to respect and ensure
all civil and political rights as an immediate obligation. Accordingly, the
Committee on Economic, Social and Cultural Rights has viewed the
concept of progressive realization as a recognition that full realization of
all economic, social, and cultural rights will generally not be achieved in a
short period of time. Since progressive realization is an essential
objective, not in the abstract but to the maximum of available resources,
a question arises regarding how such an obligation of the state is to be
interpreted in times of economic depression and shrinking resources as
experienced at the end of the first decade of the twenty-first century. An
essential bottom-line to be respected under all circumstances, even in
times of shrinking resources, is that of non-discrimination, which the
Committee termed ‘an immediate and cross-cutting obligation in the
[ICESCR]’.5
Nevertheless, the Committee on Economic, Social and Cultural Rights has

pointed out that, despite this difference, there are also significant
similarities between the ICESCR and the ICCPR. In particular, the
ICESCR imposes various obligations of immediate effect.6 Thus, there are
a number of provisions in the ICESCR that, as the Committee has pointed
out in its General Comment 3, would seem to be capable of immediate
application by (p. 137) judicial and other organs in many domestic legal
systems. Among these are the elimination of discrimination (Articles 2(2)
and (3)), the right to form and join trade unions and to strike (Article 8),
protection of children and young persons from economic and social
exploitation (Article 10(3)), equal remuneration for work of equal value
without distinction of any kind (Article 7(a)(i)), the provision of free and
compulsory primary education for all (Article 13(2)(a)), the liberty of
parents to choose schools for their children, other than those established
by public authorities (Article 13(3)), and the liberty of individuals and
bodies to establish and direct educational institutions which conform to
certain minimum standards (Article 13(4)).7
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In addition to the difference between obligations of immediate effect and

progressive realization, it is quite common to advance further criteria to
distinguish civil and political rights from economic and social rights by
contrasting the concept of freedom rights with that of welfare rights or by
referring to duties of the state not to intervene as opposed to duties to
take positive measures. Such distinctions are helpful but do not apply
across the board insofar as there is no strict dividing line between civil
and political rights on the one hand and economic and social rights on the
other.
While the status of civil and political rights as human rights is largely
uncontested, this is less true for economic, social, and cultural rights.8
The latter are sometimes referred to as ‘aspirations’ phrased in terms of
rights but without legal enforceability. The media, many NGOs, public
officials, as well as public opinion generally understand human rights in
terms of the right to life, the abolition of the death penalty, the
prohibition of torture, the right to privacy, freedom of information and
expression, freedom of religion or belief, and the right to vote and to be
elected. The rights to food, healthcare, housing, and employment are
considered much less part of the human rights package. However, this
perception of human rights overlooks the comprehensive nature of the
Universal Declaration of Human Rights (UDHR) and notably its Article 28,
which provides that everyone is entitled to a social and international
order in which the rights and freedoms set forth in the Declaration can be
fully realized. Over the years, as the human rights discourse became part
of processes towards widening categories of entitlements and
beneficiaries and linking human rights to the promotion of peace,
security, and sustainable development, as well as preserving a healthy
environment, a comprehensive human rights approach has evolved,
encompassing the broad and interlinked scale of civil, political, economic,
social, and cultural rights.
2.2 Rights of individuals/rights of collectivities
The same process has also had an impact on another traditional

categorization of human rights, namely the distinction between rights of
individuals and rights of collectivities. In the frame of reference of the
UDHR and the international covenants, with their emphasis on human
dignity and the worth and uniqueness of every human being, the focus is
on the rights of every individual person. Of course, in many ways
individual human beings live and work in community and partnership
with other human beings, in family and similar relations, in the exercise
of religion or belief, in educational settings, and in forming and joining
trade unions. Yet it is the individual person, while part of social or
cultural relations of a community nature, who is the beneficiary of rights.
The same construction has been used, at least in the UN

(p. 138)
terminology, where rights of peoples and minority groups, addressed in

Chapter 18, are involved. Minorities, as collectivities, are not referred to
as beneficiaries of rights. This is so that any separatist ambitions that
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they may pursue in the states where they live are not legitimized.
Accordingly, the relevant provision of the ICCPR, Article 27 reads: ‘In
those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in
community with other members of their group, to enjoy their own culture,
to profess and practise their own religion, or to use their own language.’9
This provision is phrased in very restrained terms and avoids, at least in
theory, the recognition of collective rights. Similarly, the UN Declaration
on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities (1992) cautiously and consistently refers to ‘persons
belonging to minorities’, thereby focusing on individuals rather than
collectivities.
A different approach, one that is more collectivist or peoples-oriented, is

to be found in the UN Declaration on the Rights of Indigenous Peoples
(2007). The text of this declaration was negotiated over a period of more
than 20 years with considerable input from indigenous peoples
themselves. In the preamble of the Declaration, the rights of individuals
and the rights of collectivities are brought together in a dialectical
fashion by ‘recognizing and reaffirming that indigenous individuals are
entitled without discrimination to all human rights recognized in
international law and that indigenous peoples possess collective rights
which are indispensable for their existence, well-being and integral
development as peoples’.10 Throughout the text of the Declaration, rights
are attributed to indigenous peoples as well as to indigenous individuals,
with the indigenous peoples as principal rights-holders and the express
recognition of the right to self-determination as the cornerstone of their
rights. Article 3 of the Declaration restates the wording of common
Article 1 of the international covenants, applying it to the particular case
of indigenous peoples: ‘Indigenous peoples have the right to self-
determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development.’
In many ways, the Declaration on the Rights of Indigenous Peoples brings
together peoples’ rights and individual rights in a spectrum of mutual
relationship and reach. A good illustration of this is Article 7, which,
echoing Article 3 UDHR, provides that ‘indigenous individuals have the
rights to life, physical and mental integrity, liberty and security of
person’, while at the same time making it clear, in language similar to the
UN Declaration on the Right of Peoples to Peace (1984),11 that
‘indigenous peoples have the collective right to live in freedom, peace and
security as distinct peoples’.
This collective dimension of the rights of peoples and populations, for

present and future generations, recognizes that the realization and
enjoyment of individual rights are conditioned by the attainment of peace,
security, and development. The same notion is embodied in the right to
self-determination, defined in terms of free determination of political
status and free pursuance of economic, social, and cultural development.
Peoples’ right to self-determination is recognized as a leading and
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underlying principle for the enjoyment of civil, political, economic, social,

and cultural rights and was therefore included in both international
covenants as the first substantive provision. Against this background, the
1993 Vienna World Conference on Human Rights considered the denial of
the right of self-determination as a violation of human rights.12 Similarly,
it is (p. 139) significant that the UN Declaration on the Right to
Development (1986) places the individual and collective aspects of this
right in a mutual relationship and seeks to link the conditions of life of the
human person with the welfare and well-being of peoples.13 Thus, the
right to development is defined as an inalienable human right with the
proviso that equality of opportunity for development is a prerogative both
of nations and of individuals who make up nations. Further, the
Declaration states that ‘the human person is the central subject of
development and should be the active participant and beneficiary of the
right to development’.14
2.3 One-dimensional/composite rights
As compared to rights such as freedom of expression or the right to a fair

trial, the rights to self-determination and development, as well as the
right to peace, are of a more complex nature. Therefore, they are often
described as composite rights. The question may be asked what the legal
significance of such rights is. While they condition the life and welfare of
individual human beings, they are not rights inherent in the human
person. Their realization depends on political, economic, social, and
cultural policies deployed by national and international organs and
institutions. These rights do not lend themselves to enforcement by legal
authorities. Nevertheless, gross violations of the right to peace, the right
to self-determination, or the right to development may, under given
circumstances, incur state responsibility as well as civil responsibility of
other major actors, or, if they amount to aggression, genocide, or crimes
against humanity, even criminal responsibility of natural persons. While
these rights primarily represent major policy objectives of a national and
international order, their legal implications are not without significance
and may be tested in political or judicial settings in case of their breach
or gross denial.
A new instrument in the toolbox of composite rights is the Declaration on

the Right to Peace, which was adopted by the UN General Assembly in
December 2016. The Resolution was adopted by 131 votes in favour to 34
against and 19 abstentions, reflecting a North-South divide that also
existed in respect of the right to self-determination and the right to
development.15 Arguments in favour of the Declaration were based on the
maxim that ‘peace and security, development and human rights are the
pillars of the United Nations system and the foundations for collective
security and well-being’16 and on visions and goals reflected in the 2030
Agenda for Sustainable Development.17 These were countered by
arguments such as the lack of a legal basis for the right to peace in
international law and the lack of consensus on the definition of this right.
The text of the Declaration, which was the outcome of lengthy
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deliberations in the UN Human Rights Council, comes across as a curious

combination of a long preamble of no less than 37 paragraphs and a
minuscule operative part of five articles. Measured against the yardstick
of ambitions and efforts constructively deployed by a broad civil society
constituency and having regard to the creative work performed by the
Advisory Committee of the UN Human Rights Council to spell out the
right to peace into a normative framework with a series of guiding
standards for the Declaration18, the text appears rhetorically tempting
but substantively wanting.
3 Interdependence and indivisibility of all

(p. 140)
human rights
The previous section identified different categories of human rights: civil

and political rights as compared to economic, social, and cultural rights;
rights of individuals as compared to rights of collectives; one-dimensional
rights as compared to rights of a composite nature. But it has also already
been made clear that all these rights are intersected and interrelated.
They condition each other, with the human person, as the UN Declaration
on the Right to Development puts it, as ‘the central subject’ and
‘beneficiary’ of rights,19 and, in the words of the preambles of the
international covenants, with a focus on ‘the ideal of free human beings
enjoying freedom from fear and want’.
Against this background, the interdependence and indivisibility of all

human rights, whether or not classified in various categories, has become
a leading axiom in the international human rights discourse. A number of
examples taken from UN instruments, statements, and practices can be
advanced to underline this interdependence and indivisibility. The
Proclamation of Teheran, adopted at the first world conference on human
rights in 1968, stated that human rights and fundamental freedoms are
indivisible.20 The second world conference held in Vienna in 1993 stated
with greater emphasis that ‘[a]ll human rights are universal, indivisible,
and interdependent and interrelated’.21 The outcome document of the
2005 World Summit reaffirmed this statement.22 The General Assembly
resolution of 2006 establishing the Human Rights Council again
reaffirmed that ‘all human rights are universal, indivisible, interrelated,
interdependent and mutually reinforcing, and that all human rights must
be treated in a fair and equal manner, on the same footing and with the
same emphasis’.23
It may be argued that reiterating and reaffirming the same phrase does
not necessarily make it a reality. Perhaps more convincing are the
language and contents of specific legal instruments on non-discrimination
and the rights of vulnerable persons and persons in need of special
recognition and protection. Thus, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention on the
Elimination of All Forms of Discrimination Against Women, the
Convention on the Rights of the Child, the International Convention on
the Protection of the Rights of All Migrant Workers and Members of Their
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Families, and the Convention on the Rights of Persons with Disabilities all
recognize the full scope of human rights in a comprehensive
interrelationship. Finally, as already noted, it can be argued that the UN
Declaration on the Rights of Indigenous Peoples is in its scope and
wording the most far-reaching illustration of the interdependence and
interrelatedness of all human rights, be they economic, social, cultural,
civil, or political rights; rights of individuals or collectivities; or composite
rights such as the right to self-determination and the right to
development.
In line with the interdependence and indivisibility of all human rights, a

significant evolution has occurred over the years towards the enhanced
status of economic, social, and cultural rights. Thus, UN supervisory
mechanisms and procedures, including those relating to violations of
human rights, have progressively brought economic, social, and cultural
rights on a par with civil and political rights. Further, while initially, after
the entry into force of the ICESCR, the UN Economic and Social Council
was entrusted with general monitoring tasks, it soon became clear that it
lacked the capacity and expertise to carry (p. 141) out these tasks
effectively. Therefore, the Council established a supervisory committee of
independent experts, the Committee on Economic, Social and Cultural
Rights, with similar tasks and responsibilities as the Human Rights
Committee under the ICCPR. In 2008 the UN General Assembly adopted
an Optional Protocol to the ICESCR, which provides for the right to
petition by individuals or groups of individuals claiming to be victims of a
violation of any of the rights set forth in the Covenant by a state party
that has accepted the Optional Protocol. This legal instrument, which
entered into force in 2013, can be considered as a counterpart to the
previously established First Optional Protocol to the ICCPR. It helps to
strengthen the legal protection of economic, social, and cultural rights by
the development of case law which enhances, domestically and
internationally, the justiciability of economic, social, and cultural rights.
Although the Optional Protocol to the ICESCR was finally, after lengthy
and protracted negotiations, adopted without a vote, it did not attract
unreserved support of the entire UN membership. A number of states
would have preferred an à la carte instrument which would expressly
allow states to select the rights they would accept as falling under the
operation of the Protocol. This view, however, did not prevail and the
Protocol, therefore, covers all the rights included in the ICESCR.
The same tendency of rendering a more prominent status to economic,

social, and cultural rights is also apparent in the system of special
procedures developed under the former UN Commission on Human
Rights and now operating under the authority of the Human Rights
Council. These special procedures with geographic or thematic mandates
were established to respond to gross and consistent patterns of human
rights violations. They initially concentrated on violations of civil and
political rights, notably enforced disappearances, extrajudicial, summary,
and arbitrary executions, torture and ill-treatment, arbitrary arrests and
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detention, freedom of religion or belief, and freedom of opinion and

expression.24 Gradually, however, during the last decade of the twentieth
century and in later years, civil and political rights mandates were
complemented by mandates in the area of economic, social, and cultural
rights, notably dealing with the right to adequate housing, the right to
food, human rights and extreme poverty, the right to physical and mental
health, the right to education, and the right to water. Other thematic
mandates dealing with contemporary forms of racism, indigenous people,
minority issues, the rights of migrants, the promotion of truth, justice,
reparation, and guarantees of non-recurrence, and the protection against
violence and discrimination based on sexual orientation and gender
identity cover a whole range of human rights, not limited to civil and
political rights or economic, social, and cultural rights.
A significant role in identifying and supporting the normative content of

economic, social, and cultural rights was played by the Limburg
Principles on the Implementation of the ICESCR, drawn up in 1986 by a
group of experts.25 The Limburg Principles were instrumental in helping
to frame the conceptual work of the Committee on Economic, Social and
Cultural Rights so as to clarify the obligations of states under the
ICESCR, including their legal duties arising from violations of economic,
social, and cultural rights. Ten years later, the Maastricht Guidelines on
Violations of Economic, Social and Cultural Rights underscored the
violations component by spelling out that violations can occur through
both acts of commission and omissions by the state, and by providing
guidance on states’ responsibility for violations, the notion of victims, and
remedies and other responses to violations.26 More recently, the
Maastricht Principles on Extraterritorial Obligations of States in the Area
of Economic, Social and Cultural Rights were drawn up to clarify the
content of extraterritorial state obligations to realize economic, social,
and cultural rights.27
The focus on violations is linked with the issue of the

(p. 142)
‘justiciability’ of economic, social, and cultural rights. Justiciability refers

to the ability of an independent and impartial body to provide a remedy
for individuals in case of a violation of a right.28 The general comments by
treaty bodies, notably the Committee on Economic, Social and Cultural
Rights and the Committee on the Rights of the Child, have helped to
define the content of economic, social, and cultural rights in view of their
justiciability.29 The Optional Protocol to the ICESCR will contribute to a
broader acceptance of the notion of justiciability of economic, social, and
cultural rights.
4 Core rights
While the principle of interdependence and indivisibility of all

human rights has become axiomatic and largely uncontested, the issue
remains whether certain human rights rank higher than other rights
because they are more essential for the preservation of human life and
the upholding of human dignity and human welfare. For instance, there is
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little doubt that the right to life and the prohibition of torture, enshrined
in Articles 2 and 5 UDHR, are more fundamental or basic than the right
to rest and leisure, set out in Article 24. Widely-ratified human rights
instruments and their interpretation by judicial and quasi-judicial human
rights bodies clearly indicate that certain human rights represent or
embody core attributes of human life and human dignity, so that
violations of these rights entail a special and imperative responsibility to
prevent, to protect, and to remedy. The following examples illustrate that
in international human rights law certain rights and their protection rank
particularly high on the scale of basic values of human life and existence
and can thus be classified as core rights.30
Major human rights treaties, notably the ICCPR, the European

Convention on Human Rights (ECHR), and the American Convention on
Human Rights (ACHR), recognize a set of core rights from which no
derogation is permitted, not even during times of public emergency. Thus,
Article 4(2) ICCPR lists as non-derogable the right to life, the prohibition
of torture or cruel, inhuman, or degrading treatment or punishment, the
prohibition of slavery, the prohibition of imprisonment because of inability
to fulfil a contractual obligation, the principle of legality in criminal law,
the recognition of everyone as a person before the law, and the freedom
of thought, conscience, and religion. In its General Comment 29, the
Human Rights Committee has analysed the implications of Article 4 in
detail.31 It notes that the enumeration of non-derogable provisions is
related to, but not identical with, the question of whether certain human
rights obligations have the nature of peremptory norms of international
law (jus cogens) and recognizes that some of the non-derogable ICCPR
rights also fall into that category, notably the right to life and the
prohibition of torture or cruel, inhuman, or degrading treatment or
punishment.
Core rights entail essential obligations on the part of states that have
undertaken to respect, protect, and fulfil them. Such obligations are not
limited to the field of civil and political rights but extend to economic,
social, and cultural rights. Thus, the Committee on Economic, Social and
Cultural Rights has stated in its General (p. 143) Comment 3 that ‘a
minimum core obligation to ensure the satisfaction of, at the very least,
minimum essential levels of each of the [ICESCR] rights is incumbent
upon every State party’.32 For example, a state party in which a
significant number of individuals are deprived of essential foodstuffs,
essential primary healthcare, basic shelter and housing, or the most basic
forms of education would, according to the Committee, prima facie be
failing to discharge its obligations under the Covenant. The formulation of
these core obligations relating to basic conditions of human life
corresponds to the phrase in common Article 1(2) of both international
covenants concerning the right of all peoples to self-determination that ‘in
no case may a people be deprived of its own means of subsistence’.
Consequently, basic subsistence rights which determine the life, the
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dignity, and the well-being of individuals and peoples should be

considered as core rights.
Furthermore, with the development of international criminal law through

standard-setting and national and international adjudication, violations of
internationally protected basic human rights may amount to crimes under
international law, with the corresponding duty of states to carry out an
effective and prompt investigation and to prosecute and punish the
perpetrators.33 Another corresponding duty involves the provision of
effective remedies to victims, including reparation for harm suffered. As
the Human Rights Committee has stated in its General Comment 31,
these obligations arise notably in relation to those violations of ICCPR
provisions that are recognized as criminal under domestic or
international law, such as torture, summary and arbitrary killing, and
enforced disappearance.34 When such violations of the Covenant are
committed as part of a widespread or systematic attack on a civilian
population, they are crimes against humanity under Article 7 Statute of
the International Criminal Court.35 While the violation of all human rights
entails legal consequences in terms of effective remedies, the violation of
core rights requires legal action so as to combat impunity and to make
reparations. Moreover, the evolving practice of international human
rights bodies, notably the European Court of Human Rights, the Inter-
American Court of Human Rights, and the Human Rights Committee,
makes it abundantly clear that in cases where core rights such as the
right to life and the right to be free from torture or ill-treatment are at
stake, urgent preventive action by way of provisional or interim measures
are called for in order to avoid irreparable harm to persons.36
Finally, the newly evolving doctrine of the Responsibility to Protect, set

out in the outcome document of the 2005 UN World Summit, attributes
special responsibility to protect populations from genocide, war crimes,
ethnic cleansing, and crimes against humanity. This responsibility rests
primarily with individual states but may also require collective action,
through the UN, should national authorities manifestly fail to protect
their populations from such crimes.37 The doctrine of the Responsibility to
Protect represents a common opinio juris in theory but still needs
affirmation and implementation in practice. However, what is important
for present purposes is that it implies that core rights and core values
pertaining to the very existence and survival of populations may, in
situations where national authorities are failing to respect these rights
and values, prevail over invocations of national sovereignty.
(p. 144) 5 New human rights?
It may be argued that the standard-setting or codification

process of human rights was completed with the adoption and entry into
force of the general and comprehensive human rights instruments,
notably the international covenants and regional instruments such as the
ECHR, the European Social Charter, the ACHR, and the ACHPR.
However, while a broad corpus of internationally recognized standards
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has taken shape in these instruments, the standard-setting process did

not stop but continued progressively in order to respond to widely felt
needs to further define the normative scope of basic rights and principles
and to provide more explicit protection for vulnerable and marginalized
people.
Examples of the further elaboration of the normative scope of human

rights include instruments relating to the abolition of the death penalty,
the prohibition of torture or cruel, inhuman, or degrading treatment or
punishment, and the elimination of discrimination on the grounds of race,
religion, and gender. More explicit protection of specific groups of people
is envisaged in instruments relating to the rights of women, children,
migrant workers, persons with disabilities, persons subjected to enforced
disappearance, and indigenous peoples. These instruments do not define
new rights but re-define and re-conceptualize existing human rights in
order to make them more explicit and more inclusive and to extend their
reach to persons in need of special care, attention, and protection. This is
a dynamic process that involves the shaping of the normative content of
rights and basic principles such as the best interests of the child, the
absolute prohibition of gender-based violence, and the relevance of the
right to self-determination.
Human rights treaty bodies, as authoritative interpreters and custodians

of treaty norms, have drawn up general comments and recommendations
so as to further define or refine the scope and reach of the human rights
norms already embodied in legal instruments. Do treaty bodies thereby
create new human rights norms? This would not seem to be the purpose
and task of treaty bodies. Rather, the purpose of general comments and
recommendations is to clarify the normative scope of human rights. For
instance, in its General Comment 15, the Committee on Economic, Social
and Cultural Rights made it clear that there is a right to water, although
such a right is not explicitly referred to in the ICESCR.38 The Committee
did not proclaim this right as a new human right, but defined it as
emanating from, and indispensable for, the realization of the right to an
adequate standard of living and as inextricably related to the rights to the
highest attainable standard of health, adequate housing, and adequate
food.39 Similarly, the Committee on the Elimination of Racial
Discrimination, in its General Recommendations on the rights of
indigenous peoples, on discrimination against Roma, on descent-based
discrimination, and on discrimination against non-citizens,40 clearly set
out the relevance and the applicability of the International Convention on
the Elimination of All Forms of Racial Discrimination with respect to
groups of marginalized and vulnerable people. It did this, not by the
creation of new rights, but by explaining the normative content and the
implications of the Convention in support of these groups.
In the human rights discourse and campaigns entertained by proponents

of a rights-based strategy on behalf of marginalized and excluded groups,
claims are often framed as being part of a ‘struggle for new rights’.41 The
rights of children born of wartime (p. 145) rape, Dalits, lesbian, gay,
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bisexual, transgender and intersex (LGBTI) people, mentally and

physically disabled people, people living with HIV and AIDS, and other
stigmatized minorities are advocated under this label. These campaigns
have greatly contributed to awareness-building and the broadening and
deepening of a rights-based approach in support of people who for a long
time had been neglected and treated as outsiders or even outcasts. They
constitute another step in the lengthy process from exclusion to inclusion,
with due regard for the specific situation and the specific interests of the
people concerned.
This newly developed reach of human rights has found expression in a

series of new instruments and documents such as the Convention on the
Rights of Persons with Disabilities, the General Recommendations of the
Committee on the Elimination of Racial Discrimination on discrimination
against Roma and descent-based discrimination, the General
Recommendation of the Committee on the Elimination of Discrimination
against Women on the avoidance of discrimination against women in
national strategies for the prevention and control of AIDS, as well as the
General Comment of the Committee on the Rights of the Child on HIV/
AIDS and the rights of the child.42 The Yogyakarta Principles on the
Application of International Human Rights Law in Relation to Sexual
Orientation and Gender Identity are a further example illustrating this
new human rights focus.43 While in all these instances the focus and
scope of human rights is newly-defined and developed to underline their
relevance and applicability to people hitherto neglected, ignored, or
degraded, their basic thrust lies in the recognition that all people, without
discrimination or exclusion, are entitled to the full benefit of all human
rights, notably the right to be equal before the law and non-
discrimination. It appears, therefore, that in these instances the term
‘new human rights’ is conceptually not called for. Instead, the better term
might be ‘newly focused human rights’. The concept of ‘new human
rights’ should be approached with caution.
Attention may also be drawn to victims’ rights in this context. Victims of

gross human rights violations have been largely overlooked, both at the
national and the international level. Only in recent decades, in particular
in the context of transitional justice processes in societies scarred by
serious crimes under international law, has there been a tangible
movement towards the express recognition of victims’ rights as a main
condition for the attainment of reconciliation and justice.44 This emphasis
on victims’ rights is duly reflected in the UN Basic Principles and
Guidelines on the Right to a Remedy and Reparation to Victims of Gross
Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law (2005) (Reparation Principles).45 This
instrument is not intended to define new victims’ rights but to identify
mechanisms, modalities, procedures, and methods for the implementation
of victims’ rights.46 Another normative document of particular relevance
to transitional justice situations is the Updated Set of Principles for the
Protection and Promotion of Human Rights Through Actions to Combat
Page 13 of 18


Impunity (2005) (Impunity Principles).47 This document provides for the

right to know, the right to justice, and the right to reparation, and
guarantees of non-recurrence. Under the right to know, the inalienable
right to know the truth figures prominently. This right has a collective
dimension. Every people has the right ‘to know the truth about past
events concerning the (p. 146) perpetration of heinous crimes and about
the circumstances and reasons that led … to the perpetration of those
crimes’.48 But the right to truth also includes the right of victims and
their families ‘to know the truth about the circumstances in which
violations took place and, in the event of death or disappearance, about
the victims’ fate’.49 In line with the Reparation Principles and Impunity
Principles, the International Convention for the Protection of All Persons
from Enforced Disappearance affirms the right of each victim to know the
truth regarding the circumstances of the enforced disappearance, the
progress and results of the investigation, and the fate of the disappeared
person. Finally, it also spells out the right of victims to obtain reparation
and prompt, fair, and adequate compensation.50
These normative developments raise the question of whether the right to

know the truth, as a collective and individual right, qualifies as a ‘new
human right’. It may be argued in this connection that this right is a
corollary of the freedom to seek, receive, and impart information and
ideas of all kinds set out in Article 19(2) ICCPR. Technically speaking, this
argument is correct, although it insufficiently appreciates the existential
life and death dimensions that lie at the basis of the right to know the
truth. Nevertheless, it can be argued that the right to know the truth is a
basic principle that already forms part of existing human rights law. In
fact, the International Convention for the Protection of All Persons from
Enforced Disappearance gives support to this reasoning insofar as its
preamble ‘affirms’ the right of any victim to know the truth.51 Therefore,
the right to know the truth should not be qualified as a ‘new human right’
as if it had only emerged recently. Such a classification would fail to do
justice to efforts to seek and uncover the truth about many historical
wrongs that still beleaguer past and present generations. Rather, there
are good reasons to state, in consonance with the Impunity Principles,
that there is an inalienable right to know the truth. This right is in need of
recognition and renewed emphasis and is thus correctly affirmed in a
legal document such as the International Convention for the Protection of
All Persons from Enforced Disappearance.
6 Conclusion
All human rights are indivisible, interdependent, and interrelated.

This chapter fully subscribes to this postulate, not as a method to put all
rights in a melting-pot where they lose their own distinct character, but
as a means to reinforce the validity and impact of all rights. Classifying
human rights in various categories—civil, political, economic, social, and
cultural; individual and collective; one-dimensional and composite—is not
as such a reduction of the indivisibility, interdependence, and
Page 14 of 18


interrelatedness of human rights. Such classifications or categorizations

are not meant to store human rights in watertight compartments. Their
merit lies in their capacity to operationalize human rights, to make rights
and responsibilities more specific and transparent, with corresponding
claims and obligations.
Neither does the maxim of indivisibility, interdependence, and

interrelatedness of all human rights stand in the way of the notion of core
rights as distinct from other human rights. It is true that the notion of
core rights presumes a ranking or hierarchy of human rights. Such
ranking is inherent in essential rights and entails corresponding core
obligations on the part of states and non-state actors. It runs across all
human rights categories and classifications, with the right to life, the
inviolability of the human person, and the very existence and subsistence
of people as cornerstones.
(p. 147) It is self-evident that human rights, in whatever manner they are
classified or subdivided, are the rights of individuals and collectivities.

But it has been less obvious, under past and present policies and
practices of exclusion and discrimination, that human rights are the
inalienable rights of all members of the human family. The UDHR
proclaimed human rights as the rights of all human beings and set into
motion a major trend towards the inclusion of all people in human rights
documents. It is in keeping with this trend to grant explicit recognition to
people who had been, over the years and in many places if not
everywhere, the subject of exclusion, discrimination, neglect, or
treatment as inferiors. It was also in line with the same trend that the call
was widely heard: women’s rights are human rights, children’s rights are
human rights, indigenous rights are human rights, Roma rights are
human rights, Dalits rights are human rights, and so on. International
instruments with a specific focus on the human rights of particular
categories of people were drawn up, most recently of persons with
disabilities. Rather than labelling the rights of these persons as ‘new
human rights’, they should be denominated as the rights of newly
identified categories of people, as inclusive rights. In sum, categories of
human rights are not abstract concepts. Human rights relate to all
people, including categories of people who belong to the downtrodden,
the disadvantaged, and the discarded in national and international
society.
Further reading
ALSTON,‘Conjuring up New Human Rights: A Proposal for Quality
Control’ (1984) 78 AJIL 607.
BOB(ed), The International Struggle for New Human Rights (University of

Pennsylvania Press, 2009).
COOMANS(ed), Justiciability of Economic and Social Rights: Experiences

from Domestic Systems (Intersentia, 2006).
Page 15 of 18


DE GREIFF (ed), The Handbook of Reparations (Oxford University Press,

2006).
FERSTMAN, GOETZ,
and STEPHENS (eds), Reparations for Victims of Genocide,
War Crimes and Crimes against Humanity: Systems in Place and Systems
in the Making (Martinus Nijhoff, 2009).
INTERNATIONAL COMMMISSION OF JURISTS,

Courts and the Legal Enforcement of
Economic, Social and Cultural Rights (Geneva, 2008).
MERON, ‘On a Hierarchy of International Human Rights’ (1986) 80 AJIL 1.
QUANE,‘A Further Dimension to the Interdependence and Indivisibility of

Human Rights? Recent Developments Concerning the Rights of
Indigenous Peoples’ (2012) 25 Harvard HRJ 49.
SEIDERMAN, Hierarchy in International Law: The Human Rights Dimension

(Intersentia, 2001).
SHELTON,Remedies in International Human Rights Law (Oxford University

Press, 2015).
VANDENBOGAERDE and VANDENHOLE, ‘The Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights: An Ex Ante
Assessment of its Effectiveness in Light of the Drafting Process’ (2010) 10
HRLR 207.
Notes:
1 Commager, Documents of American History (Crofts, 1946) 634.
2 A/59/2005 (21 March 2005).
3See World Summit outcome document, GA Res 60/1 (24 October 2005)
para 9.
4Van Boven, ‘Distinguishing Criteria of Human Rights’ in Vasak and

Alston (eds), The International Dimensions of Human Rights: Vol 1
(UNESCO/Greenwood Press 1982) 87.
5 CESCR, General Comment 20, E/C.12/GC/20 (2009) para 7.
6 CESCR, General Comment 3, HRI/GEN/1/(Vol 1) 7, para 1.
7 CESCR, General Comment 3, paras 1 and 5.
8See Robinson, ‘Advancing Economic, Social and Cultural Rights: The

Way Forward’ (2004) 26 HRQ 866; Roth, ‘Defending Economic, Social and
Cultural Rights: Practical Issues Faced by an International Human Rights
Organization’ (2004) 26 HRQ 63.
9 Emphasis added.
Page 16 of 18


10 GA Res 61/295 (13 September 2007) preamble.
11 GA Res 39/11 (12 November 1984).
12Vienna Declaration and Programme of Action, A/CONF.157/23 (25 June

1993) para 2. See also Chapter 18.
13 GA Res 41/128 (4 December 1986).
14 GA Res 41/128 (4 December 1986), Art 2(1).
15 GA Res 71/189 (19 December 2016).
16 GA Res 60/1 (24 October 2005).
17 GA Res 70/1 (25 September 2015).
18 See Villán Durán, The Emerging Right to Peace: Its Legal Foundations
(Intersentia, 2014).
19 GA Res 41/128 (4 December 1986), Art 2(1).
20UN, Compilation of International Instruments, Vol 1 (First Part) (1993)

51–4, Art 13.
21Vienna Declaration and Programme of Action, A/CONF.157/23 (25 June

1993), para 5.
22 GA Res 60/1 (24 October 2005), para 13.
23 GA Res 60/251 (3 April 2006), preambular para 3.
24See Limon and Piccone, Human Rights Special Procedures (Foreign

Policy at Brookings & Universal Rights Group, 2014).
25 (1987) 9 HRQ 121.
26 (1998) 20 HRQ 691.
27 (2011) 34 HRQ 1084.
28See Coomans (ed), Justiciability of Economic and Social Rights;

Experiences from Domestic Systems (Intersentia, 2006).
29CESCR, General Comment 20. See further Committee on the Rights of

the Child, General Comment 5, HRI/GEN/1/(Vol II) 421.
30See also Seiderman, Hierarchy in International Law: The Human Rights

Dimension (Intersentia, 2001).
31 HRC, General Comment 29, HRI/GEN/1/(Vol I) 234. See also Chapter 5.
32 CESCR, General Comment 3, para 10.
33 See Chapter 26.
Page 17 of 18


34 HRC, General Comment 31, HRI/GEN/1/(Vol I) 243, para 18.
35 HRC, General Comment 31, para 18.
36Rieter, Preventing Irreparable Harm: Provisional Measures in

International Human Rights Adjudication (Intersentia, 2010).
37GA Res 60/1 (24 October 2005), paras 138–40. See further Evans, The
Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All
(Brookings Institution Press, 2008).
38 See Chapter 10.
39 CESCR, General Comment 15, HRI/GEN/1/(Vol I) 97, para 3.
40Committee on the Elimination of Racial Discrimination, General

Recommendation XXIII, HRI/GEN/1/(Vol II) 285, General
Recommendation XXVII, HRI/GEN/1/(Vol II) 289, General
Recommendation XXIX, HRI/GEN/1/(Vol II) 296, General
Recommendation XXX, HRI/GEN/1/(Vol II) 301.
41See in particular Bob (ed), The International Struggle for New Human
Rights (University of Pennsylvania Press, 2009).
42Committee on the Elimination of Racial Discrimination, General

Recommendation XXVII; Committee on the Elimination of Discrimination
against Women, General Recommendation 15, HRI/GEN/1/(Vol II) 327;
Committee on the Rights of the Child, General Comment 3, HRI/GEN/1/
(Vol II) 398.
43 Available at: <http://www.yogyakartaprinciples.org/>. See Chapter 15.
44 De Greiff, Report of the Special Rapporteur on the promotion of truth,

justice, reparation and guarantees of non-recurrence, A/69/518 (14
October 2014).
45 GA Res 60/147 (16 December 2005).
46 GA Res 60/147, preambular para 7.
47E/CN.4/2005/102/Add.1, endorsed by UN Commission on Human Rights

Res 2005/81 (21 April 2005).
48 Impunity Principles, Principle 2.
49 Impunity Principles, Principle 4.
50International Convention for the Protection of All Persons from

Enforced Disappearance (CPED), Art 24.
51 CPED, preambular para 8.
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7.

International Human Rights Law (3rd

Publisher: Oxford University Press Print Publication Date: Dec 2017

Chapter: (p. 135) 7. Categories of rights

Author(s): Theo van Boven

This chapter seeks to identify different categories of human rights,

other rights, raising the issue of whether there is a ranking among

There is a certain uneasiness about classifying human rights in

The comprehensive and holistic nature of human rights was recognized

2 Categories of human rights

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2.1 Economic, social, cultural rights/civil, political rights

Nevertheless, the Committee on Economic, Social and Cultural Rights has

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In addition to the difference between obligations of immediate effect and

2.2 Rights of individuals/rights of collectivities

The same process has also had an impact on another traditional

The same construction has been used, at least in the UN

terminology, where rights of peoples and minority groups, addressed in

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A different approach, one that is more collectivist or peoples-oriented, is

This collective dimension of the rights of peoples and populations, for

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Subscriber: Cambridge University Library; date: 27 March 2020

underlying principle for the enjoyment of civil, political, economic, social,

2.3 One-dimensional/composite rights

As compared to rights such as freedom of expression or the right to a fair

A new instrument in the toolbox of composite rights is the Declaration on

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Subscriber: Cambridge University Library; date: 27 March 2020

deliberations in the UN Human Rights Council, comes across as a curious

3 Interdependence and indivisibility of all

The previous section identified different categories of human rights: civil

Against this background, the interdependence and indivisibility of all

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In line with the interdependence and indivisibility of all human rights, a

The same tendency of rendering a more prominent status to economic,

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Subscriber: Cambridge University Library; date: 27 March 2020

detention, freedom of religion or belief, and freedom of opinion and

A significant role in identifying and supporting the normative content of

The focus on violations is linked with the issue of the

‘justiciability’ of economic, social, and cultural rights. Justiciability refers

While the principle of interdependence and indivisibility of all

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Subscriber: Cambridge University Library; date: 27 March 2020

Major human rights treaties, notably the ICCPR, the European

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Subscriber: Cambridge University Library; date: 27 March 2020

dignity, and the well-being of individuals and peoples should be

Furthermore, with the development of international criminal law through

Finally, the newly evolving doctrine of the Responsibility to Protect, set

(p. 144) 5 New human rights?

It may be argued that the standard-setting or codification

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