First Generation: What Civil and Political Rights Are

In one line

Civil and political rights protect the person against the State and secure their participation in it, they are immediate rather than progressive and are enforceable by courts, and the claim that they are purely negative is false.

The two halves of the category

Civil rights protect the person as a person: life, liberty, security, freedom from torture and slavery, privacy, family life, recognition before the law, fair trial, freedom of thought, conscience and religion, expression, assembly and association.

Political rights protect the person as a member of the polity: to take part in public affairs, to vote and be elected in genuine periodic elections by universal and equal suffrage and by secret ballot, and to have access on general terms of equality to public service.

Why the two are put together. Both concern the relationship between the individual and public power. Civil rights limit what that power may do to a person; political rights determine who holds it. A State that respects the first and denies the second is a benign autocracy, and the framework treats that as a failure and not as a compromise.

Their four distinguishing features

Immediate obligation

The Covenant on Civil and Political Rights requires each State Party to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised, without distinction of any kind, and to take the necessary steps to give effect to them. There is no phasing and no "to the maximum of available resources".

Compare the other Covenant's article 2(1), which requires steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights. The textual difference between the two articles is the single most cited distinction between the generations, and it is real.

Justiciable in form

The content of a first generation right lends itself to adjudication: was this person detained, was the trial fair, was this speech punished. Courts have handled these questions for centuries in domestic law, which is why the first generation slid into constitutional bills of rights without difficulty.

An identified duty-bearer

The State, and usually a specific organ of it. There is a respondent to name and an act to challenge.

A remedy in the instrument itself

Article 2(3) requires an effective remedy determined by competent judicial, administrative or legislative authorities, and that those authorities enforce it. India's article 32 is the same idea made a fundamental right.

The negative-rights account, and what is right and wrong about it

What is right. Many first generation duties are duties of abstention, and abstention is immediate, universal and costless in money. A State can stop torturing tonight. That is a genuine and important asymmetry with the second generation.