Why There Are Two Covenants

The evidence that politics mattered is the ratification pattern that followed: several States ratified one Covenant long before the other, which a single instrument would have prevented.

What the split preserved

Adopted and opened for signature on the same day, 16 December 1966, by the Assembly's own 1952 direction, so neither could be presented as senior.

Article 1 is identical in both. All peoples have the right of self-determination; they freely determine their political status and freely pursue their economic, social and cultural development; they may freely dispose of their natural wealth and resources; and in no case may a people be deprived of its own means of subsistence.

That identical article is the drafters' own statement that the two instruments are one framework, and it is the moment self-determination became a treaty right. [Self-Determination] and [Permanent Sovereignty over Natural Resources] both start there.

Both preambles are identical, and both recite that the ideal of free human beings enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his civil and political rights as well as his economic, social and cultural rights.

What it cost the order

A hierarchy in practice. One treaty had a complaints procedure and the other did not for forty-seven years, so one generated jurisprudence and the other generated reports, and the difference in visible law was read as a difference in status.

Selective ratification, so the same instrument does not bind the same set of States.

Two committees, two reporting cycles and two bodies of practice for rights the Declaration treated as one, which is a real burden on a small State's administration.

And a vocabulary for dismissal, used in both directions during the Cold War.

Vienna 1993 is the formal repair: all human rights are universal, indivisible, interdependent and interrelated, and must be treated globally in a fair and equal manner, on the same footing and with the same emphasis.

Worked example

A question asks whether the decision to draft two covenants was justified.

Give the chronology: 1950 for one, 1952 for two, 1966 for adoption, 1976 for entry into force.

Give the four reasons, marking which are formal and which political.

Concede the strongest: supervision genuinely differs, and periodic reporting is the right technique for a progressive obligation. That is a reason, not a pretext.

Then attack: the different-obligation argument fails in both directions, justiciability has been disproved by practice, and the political explanation accounts for a ratification pattern the formal reasons cannot.

Note what the drafters did to prevent a hierarchy: simultaneous adoption, identical article 1, identical preambles.

And close on the outcome: the hierarchy arrived anyway, through the machinery, and Vienna was needed to repudiate it.

What it does NOT mean

It does not mean the drafters intended a hierarchy. Simultaneous adoption and the identical article 1 are evidence they intended the opposite.

It does not mean the split was wrong. The reasons were partly sound and partly convenient, and the consequences were worse than anticipated.

And it does not mean the two are separate frameworks. They share article 1, share a preamble, and were drafted by the same commission from the same Declaration.

Quick revision

• 1950 one covenant; 1952 two, to be adopted simultaneously; 16 December 1966 both adopted with the first Optional Protocol; in force January and March 1976.
• Four reasons: different obligations (respect and ensure against progressively, to the maximum of available resources); different supervision, complaints against reporting, which is the strongest; justiciability; and Cold War politics.
• The machinery consequence: a complaints procedure for one from 1966, and none for the other until the Optional Protocol entered into force in 2013, forty-seven years later.
• Preserved: same-day adoption, identical article 1 on self-determination, identical preambles reciting that the ideal is achieved only if both sets are enjoyed.
• Cost: a practical hierarchy, selective ratification, two committees, and a vocabulary for dismissal. Vienna 1993 is the repair.

Test yourself

1. Trace the decision to split, with dates. The Universal Declaration of 1948 contained both categories in a single instrument. In 1950 the General Assembly resolved that the covenant to be drafted should include economic, social and cultural rights, and the Commission on Human Rights prepared articles on them during 1951. In 1952 the Assembly reversed itself and requested two covenants instead, directing that they be adopted and opened for signature simultaneously so that neither would appear senior to the other. Draft covenants reached the Assembly in 1954, and the Third Committee then considered them article by article for twelve years. Both Covenants and the first Optional Protocol were adopted on 16 December 1966, and they entered into force on 3 January and 23 March 1976 respectively. The interval is worth stating in any answer: eighteen years from the Declaration to adoption and a further decade to entry into force, which is the strongest practical vindication of the decision to produce a declaration first rather than waiting for a treaty.

2. Which of the four reasons survives scrutiny, and why does it matter most to this paper? The supervision argument. A right that must be respected immediately can be supervised by an individual complaint, because a body can decide on given facts whether a particular trial was fair or a particular detention arbitrary. A right realised progressively to the maximum of available resources is harder to supervise that way, because the question is whether the State has done enough over time given what it had, and periodic reporting is the technique suited to that question. That is a genuine institutional reason rather than a pretext. It matters most to a paper about international order because it is the reason that produced two different machineries rather than two different texts: a Human Rights Committee with an individual complaints procedure from 1966, and no complaints procedure at all for economic, social and cultural rights until the Optional Protocol was adopted in 2008 and entered into force in 2013. Forty-seven years of difference in visible law is what created the practical hierarchy, and it is a fact about mechanism rather than about principle.

3. What did the drafters do to prevent a hierarchy, and did it work? Three things. They directed in 1952 that the two Covenants be adopted and opened for signature simultaneously, and both were adopted on 16 December 1966, so neither could be presented as the primary instrument. They gave both an identical article 1, providing that all peoples have the right of self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, and that all peoples may freely dispose of their natural wealth and resources and may in no case be deprived of their own means of subsistence. And they gave both identical preambles, reciting that the ideal of free human beings enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy civil and political rights as well as economic, social and cultural rights. It did not work. The hierarchy arrived through the machinery rather than the text, because one Covenant could be invoked by an individual from the outset and the other could not for forty-seven years, so one accumulated visible jurisprudence and the other accumulated reports, and the difference was read as a difference in status.

4. What did the split cost the international order? Four things. A practical hierarchy, since for forty-seven years only one Covenant could be invoked by an individual, and law that is visible looks more real than law that is reported. Selective ratification, because States could adopt the instrument they favoured and postpone the other, so the same set of rights does not bind the same set of States, which a single covenant would have prevented. Institutional duplication, with two committees, two reporting cycles and two bodies of practice for rights the Declaration had treated as one, which is a genuine administrative burden on a small State and part of the reason for chronic non-reporting. And a vocabulary for dismissal, because anyone wishing to downgrade either category acquired a textual argument, which both blocs used during the Cold War. The formal repair is the Vienna Declaration of 1993, which states that all human rights are universal, indivisible, interdependent and interrelated and must be treated globally in a fair and equal manner, on the same footing and with the same emphasis. The practical repair is the Optional Protocol that finally gave the second Covenant a complaints procedure.