Comparative Constitutional Law
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Comparative Constitutional Law

Edited by Tom Ginsburg and Rosalind Dixon

This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law.
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Chapter 28: Socio-economic Rights: Has the Promise of Eradicating the Divide between First and Second Generation Rights Been Fulfilled?

Dennis M. Davis


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 distinction 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 individual 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 positive, 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 adequate food contains three duties, that is, the duty not to eliminate an individual’s only available means of acquiring food, a duty to...

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