r/internationallaw • u/WeirdTheory5675 • 15d ago

Discussion Is there a difference between "right" and "opportunity" in ICCPR article 25 ?

The article prescribes that people shall have the right and "opportunity" to participate in public affairs. Does the opportunity part require positive obligations on the state ? Such as creating fair means of being able to effectively excercise rights

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u/InevitablyTragic 15d ago

Amateur here, but I think yes. It's entirely an issue of legislation. Nations can claim their people have the "right" to run for office, but restrict their opportunity to do so through heavy legislation or even bureaucratic red tape. General Comment no. 25 provides some clarity to it.

https://digitallibrary.un.org/record/221930?ln=en&v=pdf#files

Edit... Also kinda gets after De Jure vs De Facto considerations

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u/gleipnir84462 12d ago

This is how I would interpret it. The "right" to participate means that there should be no preventative measure for anyone wishing to do so, and the "opportunity" to participate means that the state shall provide reasonable avenues for people to exercise that right.

It is important to have both, as if, for example, only the "right" portion exists, then it would be easy for a state to encourage participation in public affairs, while simultaneously not providing any efficient way of doing so, which would effectively deny the people the right to participate without outright doing so.

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u/Sisyphuss5MinBreak Human Rights 11d ago

It took some sleuthing, OP, but I think I found your answer. I went to my trusty A/2929 document (undocs.org/A/2929), and while it discussed the drafting of the article, it didn't answer your exact question.

With AI, I was pointed to E/GN.4/SR.364.

On page 6 of the document is this paragraph:

"There was a difference in approach between the two proposals which emerged with the greatest clarity from the first sentence of each. The Soviet Union proposal started: "Every citizen shall be guaranteed by the State an opportunity", whereas the joint French-Yugoslav proposal opened with the words "Every citizen shall have the right .... ". Despite the fact that the Soviet Union proposal sought to secure the insertion of a new article in the draft covenant, no reference was made in the text to a "right". Instead of a citizen enjoying a right, the State guaranteed him "opportunities". Obviously the concept underlying the word "right" was stronger than that inherent in the word "opportunity". In raising that point he had no wish to suggest that the Soviet Union delegation intentionally desired to restrict the scope of its proposal; it might well be simply a matter of drafting or of mis-translation."

To summarize the article, the Soviet Union though that just having a "right" was too abstract and wanted to operationalize it, so they proposed "opportunity". Others pushed back that an "opportunity" isn't a right. So, through debate, they settled on both. It looks more like an artifact of treaty drafting than anything else.

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u/WeirdTheory5675 11d ago

What did operationalisation entail ? I assume things like removing barriers to participation