The division in the International Bill of Rights between the two Covenants, which cover civil and political rights  separate from economic, social and cultural rights, hints at a more fundamental difference between these two sets of rights and raises questions about the nature of rights themselves.

The first set is essentially a group of negative prohibitions, a list of ways in which individual liberty cannot be restricted or impeded; the second set lays out a group of positive prescriptions as to what actions should and must be taken to allow for the free exercise of that individual liberty.

Isaiah Berlin http://www.fundacionbases.org/cms/images/stories/i_berlin.jpg

In a famous lecture delivered at Oxford University in 1958, titled “Two Concepts of Liberty,” the political philosopher Isaiah Berlin clarified this distinction, which he framed in terms of positive and negative liberty.¹  If negative liberty is concerned with the freedom to pursue one’s interests according to one’s own free will and without “interference from external bodies,” then positive liberty takes up the “degree to which individuals or groups” are able to “act autonomously” in the first place. In other words, what are the conditions under which individuals shape their understandings of their own free will?² What gives individuals a positive idea about how they should act, rather than negative limitations on how they may not act?

Civil and political rights are concerned with negative liberty, while economic, social and cultural rights are grounded in positive liberty; hence the need for two Conventions. There was some disagreement about the relative importance of these two conceptions during the debates over the Universal Declaration and its Conventions.

While the U.S. had adopted a welfare state model under the New Deal reforms of President Franklin Delano Roosevelt, economic and social rights were not part of the American political tradition in the same way they had been for many continental European governments (or the increasingly powerful Soviet Union, for that matter).

The brewing Cold War between the U.S. and the Soviet Union eventually spilled over into the arena of human rights.³ The Soviets gave a high place to the collective over the individual. This meant priority for positive liberty, which they believed empowered the state to take sweeping action to provide for the well-being and “self-realization” of its citizens, sometimes at the expense of individual civil and political rights, such as the right to political participation.⁴

Many in the West, however, viewed the Soviet position skeptically as a veiled attempt to return to the excesses of authoritarianism that the United Nations system of governance was designed to had been set up to prevent. Great injustices have often been committed for the benefit of the collective good. Berlin and others were wary of “the way in which the apparently noble ideal of freedom as self-mastery or self-realization had been twisted and distorted by the totalitarian dictators of the twentieth century.”⁵

In the end, the Soviet bloc abstained from approving the Universal Declaration. An understanding on human rights between the Soviet Union and the West was finally reached in the Helsinki Accords of 1975, though disputes about the limitations of government authority in cracking down on human rights continued to linger until the Soviet Union’s collapse in 1991.⁶

Ultimately, it remains an open question whether the positive and negative forms of liberty are two aspects of a common conception of rights or two distinct types of rights that are closely related without being identical.

To read Isaiah Berlin’s lecture, see: http://www.hss.bond.edu.au/phil12-205/Berlin%20Liberty2.pdf.

1   It is commonly accepted that liberty, freedom, and rights are, to a large extent, interchangeable

2   “Positive and Negative Liberty”

3   Henkin

4   “Positive and Negative Liberty”

5   Ibid

6 “Helsinki Accords”

Next: Rights vs. Aspirations vs. Duties