Economic Rights Working Paper Series

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1 Economic Rights Working Paper Series The Divisibility of Indivisible Human Rights Audrey R. Chapman University of Connecticut Working Paper 9 January 2009 The Human Rights Institute University of Connecticut humanrights@uconn.edu Thomas J. Dodd Research Center Tel: Babbidge Road, U-1205 Fax: Storrs, CT, 06269, USA

2 Abstract The human rights community characterizes the relationships among the various human rights enumerated in the major international human rights instruments as indivisible, interdependent, and interrelated. This working paper raises issues on intellectual and operational grounds as to whether all human rights can be considered to be indivisible. Instead it proposes that there is a need to set priorities for implementation within and among human rights. The article then evaluates various options for developing priorities. Keywords: divisibility of rights, human rights An earlier version of this paper was presented at University of Connecticut Human Rights Institute Workshop on The Indivisibility and Interdependence of Human Rights Workshop, April 12, The Economic Rights Working Paper Series of the University of Connecticut Human Rights Institute is an effort to gather the most recent work on Economic Rights. This paper is work in progress. The authors remain copyright holders of this paper. This working paper is indexed on RePEc,

3 Reiterating a classic human rights formulation, the 1991 Vienna Declaration of the World Conference on Human Rights characterizes the relationships among the various human rights enumerated in the major international human rights instruments as being indivisible and interdependent and interrelated. 1 The formulation of indivisibility first appeared in the Proclamation of Tehran issued at a 1968 international conference on human rights. 2 In 1977 the UN General Assembly also endorsed the indivisibility thesis in a resolution. 3 That all human rights are indivisible, interdependent, and interrelated has become an official doctrine of the United Nations and the Office of the Commissioner for Human Rights 4 and serves as a boilerplate in many human rights resolutions adopted by UN bodies. The implications of the concept of indivisibility are several. Indivisibility affirms the equal status of all universal human rights. It alludes to the shared normative underpinnings of independent human rights regardless of their distinctive subject matter. Some discussions of indivisibility hearken back to the unity of the Universal Declaration of Human Rights, which does not define categories or create divisions between types of human rights. 5 Further, the notion implies that it is not possible to realize the obligations related to any one human right without also fulfilling the requirements of all other human rights. In addition, the affirmation of indivisibility suggests that the content of each human right is intrinsically related to, mutually supportive of, and perhaps even essential to the implementation of others. 1 Vienna Declaration and Programme of Action, World Conference on Human Rights, June, Vienna, U.N. Doc. A/CONF.157/23, Proclamation of Teheran, International Conference on Human Rights, 22 April to 13 May, 1968, 13, U.N. Doc. A/CONF.32/41, Nickel, op.cit., p James W. Nickel, Rethinking Indivisibility: Towards A Theory of Supporting Relations between Human Rights, Human Rights Quarterly 30 (November 2008): Daniel J. Whelan, Untangling the Indivisibility, Interdependence, and Interrelatedness of Human Rights, background paper prepared for the University of Connecticut Human Rights Institute Workshop on The Indivisibility and Interdependence of Human Rights, April 12, 2008.

4 Indivisibility claims arose originally as a protection for economic and social rights by buttressing the equal status of both categories of rights. The text of the Proclamation of Tehran states, for example: Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. 6 At a time when some philosophers and a great many conservative legal theorists and libertarians argued that economic and social rights were not really human rights in the same sense as civil and political rights, but more like policy goals, the indivisibility claim elevated the legitimacy and standing of economic and social rights. It is not so long ago that civil and political rights were widely seen as paramount and better grounded in morality and international law. Civil and political rights were also favored because they were characterized as negative rights that only require forbearance on the part of the state while economic and social rights were viewed as positive rights necessitating investments and the provision of goods and services, thus making them more difficult to implement. 7 In the bad old days of human rights, the two categories of rights were ranked differently: civil and political rights were considered to be first generation rights and social and economic rights relegated to the terminology of second generation rights of secondary importance. It was assumed that civil and political rights could and would be implemented immediately and fully by all states while economic and social rights, because they were subject to resource constraints, progressively over time, if at all. I think that the international human rights community has now progressed beyond the point where economic and social rights have to be protected. So an important issue to address is 6 Proclamation of Tehran, op. cit., para Jack Donnelly, Universal Human Rights in Theory & Practice: Ithaca and London: Cornell University Press, 1989), pp

5 whether all human rights are in fact indivisible, interdependent, and interrelated or whether this formulation is little more than political rhetoric. This paper will argue against system-wide indivisibility on both intellectual and operational grounds. Instead, it will propose that limitations of human, material, and institutional resources require setting priorities for the implementation of human rights. It will then explore alternative approaches to doing so. Intellectual Indefensibility To what extent does the realization of any one right depend on the implementation of all or at least many others? In a general sense, the implementation of one human right may be useful for the realization of another human right. But that is not a sufficient intellectual basis on which to argue for the indivisibility of all rights. Indivisibility requires that the rights be indispensable to each other in a wide range of situations. 8 Moreover, as James Nickels points out, to the extent that it exists, a supportive relationship among rights dependents on the quality and distribution of their implementation. Even if widespread indivisibility exists in theory, rights with low quality or uneven implementation cannot be mutually supportive of the realization of other human rights, and unfortunately that is the situation in many, particularly poor, countries. 9 Moreover, the rhetoric of indivisibility obscures the reality that the fulfillment of specific rights can be in conflict with one another requiring limitations, reinterpretations of the right, or choices to be made between them. Some examples follow: 1. The first article of both ICCPR and ICESCR proclaims the right of all peoples to selfdetermination. Broadly interpreted, however, the ability of subgroups, nationalities, and minorities in multi-cultural states to freely dispose of their natural wealth and resources 8 Nickels, op.cit., p Ibid., pp

6 and pursue their own economic, social, and cultural development, as the article advocates, would interfere with the jurisdiction and exercise of the sovereign powers of the state on which the implementation of the human rights system depends. Therefore these provisions of the two major covenants have been effectively shelved. 2. In article 19 ICCPR recognizes the right to hold opinions without interference (19(1)) and freedom of expression (19(2)). However, article 20 prohibits both propaganda for war (20(1)) and advocacy of national, racial or religious hatred (20(2)). Conflicts between free speech and article 20 rights can arise as for example in 2006 with the publication of the Danish cartoons demeaning the prophet Mohammed. Free speech advocates in this country have generally refused to implement the limitations that article 20 imposes. 3. The rights to freedom of expression and to seek, receive, and impart information and ideas orally, in writing, and in print (art of ICCPR) can easily interfere with the right to privacy enumerated in article 17.1 of ICCPR. 4. Article 27 of ICCPR stipulates that in those states in which ethnic, religious, or linguistic minorities exist, persons belonging to these groups have the right to enjoy their own culture, profess and practice their own religion, and to use their own language. A similar principle underlies the right to take part in cultural life, article 15 (10 (a) of ICESCR. However, the cultural norms of many communities stand in conflict with various internationally recognized human rights, particularly the central principle of the equal rights of all men and women. The human rights community has never fully resolved this contradiction.

7 5. A similar tension often arises in the protections and assistance for the family and its recognition as the fundamental group unit in society as noted in article 10 of ICESCR and the individual rights accorded to all women regardless of their role in the family. Many cultures seek to protect the family by making the interests and rights of their female members subservient to specific males within the family or the welfare and integrity of the family as a unit. 6. Building on the Universal Declaration, Article 15 of ICESCR incorporates three component rights- to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which a person is the author. A review of the traveaux preparatoire indicates that there was considerable controversy about the intellectual property components of article 15. In the end author and creator s rights were included because of their instrumental character in realizing other rights, which were seen as having a stronger moral basis. The three provisions of article 15 were viewed by drafters as intrinsically related to one another. 10 But over time the character of intellectual property has changed from a means to provide incentives and to protect the interests of authors and inventors to an instrument to encourage economic investment. And the subject matter of intellectual property rights has expanded greatly. Human rights advocates gradually realized that expanded and globalized intellectual property rights, particularly in the post-trips (World Trade Organization s International Agreement on Trade-Related Aspects of Intellectual Property Rights) era, lack adequate 10 See Audrey R. Chapman, Core Obligations Related to ICESCR Article 15(1)(c), in Audrey R. Chapman and Sage Russell, eds., Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Antwerp: Intersential, 2002):

8 protection of the public interest and can have a detrimental impact on the human rights enumerated in the ICESCR, including and particularly the right to the benefits of scientific, the right to cultural participation, the right to health, and the right to food. 11 More recent statements by UN human rights bodies therefore express concerns about the effects of intellectual property rights on the realization of human rights 12 and seek to limit the conception of intellectual property that can be claimed as a human right. 13 Operational Difficulties Related to Full Implementation of All Rights In the years since the Universal Declaration and the two major covenants were drafted, the scope of internationally recognized human rights has expanded in a variety of ways. New rights have been identified, such as the right to water, as implicit in already recognized rights. 14 Instruments have been adopted to protect specific vulnerable groups of persons, the latest of which is the 2007 Convention on the Rights of Persons with Disabilities. Perhaps most significantly, expansion has occurred through treaty monitoring bodies interpreting rights in their general comments and reviews of states parties performance. In the process, many human rights advocates have become absolutists claiming that adherence to the human rights regime requires full implementation of all components of all rights, something well beyond the capabilities of most, perhaps all states in an era of limited resources. To bridge the gap between lofty goals and limited resources and to overcome some of the limitations of monitoring the progressive realization of economic and social rights, evolving 11 Ibid., pp. pp Sub Commission for the Promotion and Protection of Human Rights, Res. 2000/7 and Res. 2001/21; Committee on Economic, Social and Cultural Rights, Human Rights and Intellectual Property Issues, UN Doc. E/CN.4/Sub.2/2001/13, 27 June Committee on Economic, Social and Cultural Rights, General Comment No The Committee on Economic, Social and Cultural Rights adopted General Comment 15 in 2002 basing the right to water on the requirements of article 11, the right of everyone to an adequate standard of living, and article 12 on the right to the highest attainable standard of health.

9 human rights jurisprudence recognized that there is a minimum core content of economic and social rights that all state parties are obligated to fulfill immediately. 15 The minimum state obligations approach is predicated on a state having irreducible obligations that it is assumed it is able to meet even in highly straitened circumstances. Several of the general comments issued by the UN Committee on Economic, Social and Cultural Rights in the past decade have sought to define the core content of specific rights and human rights scholars have also written on this topic. 16 But generally the definition of core obligations is also quite expansive. Drafters and authors of documents on core obligations seem more intent on identifying the intellectual essence of a right which for them is usually quite broad and extensive - than on defining a limited set of key obligations to which states should accord priority in implementation. Core obligations are by definition intended to be within the means of all states, but it is questionable whether this is the case and whether all states, particularly poor states, have the resources or capabilities needed to meet these minimum obligations in a short period of time. While human rights have been expanding, the power, resources, and often capabilities of governments have been contracting. The classic human rights regime assigns the state the responsibility to implement human rights obligations and to protect its citizens from violations of their human rights. It therefore assumes that the state is sufficiently strong and effective to be able to do so. However, globalization, the growing influence of international institutions like the World Bank and the World Trade Organization, public-private partnerships that have interjected their own priorities, and the role of multinational corporations have all impinged on the ability of states to implement their human rights obligations. 15 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties Obligations (Art.2 (1)), para Efforts to do so are the subject of specific chapters in Chapman and Russell, eds., Core Obligations volume.

10 Generally, the human rights community has been reluctant to deal with this contradiction between an expansive human rights regime and limited government capabilities and resources. Even the notion of core obligations is opposed by some human rights advocates because of the fear that the floor will become a ceiling, i.e. that states will not be responsible for the full implementation of each right. I have been present at a conference in South Africa bringing together representatives of the government and the human rights community where the government people seemed favorably inclined to a core obligations approach to set the parameters for initial state responsibilities but many of the human rights specialists rejected doing so. The human rights community has generally been loathe to set priorities both within and between rights despite the obvious need to do so. One of the recent reports of Paul Hunt, the UN Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental Health, addresses the importance of developing human-rights based methodologies for priority setting if human rights are to be integrated into relevant national and international policies. 17 He relates that when he is on country missions he is frequently asked, Given a finite budget, how can the Ministry of Health prioritize health interventions in a manner that is consistent with the Government s national and international human rights obligation? 18 He also expresses his frustration with the human rights community s typical response to the issue: the need to invest additional resources. He acknowledge that in some circumstances this approach may be appropriate - when a government has not met a minimum threshold of funding, but he is also critical of the reluctance to acknowledge that few countries have sufficient resources to avoid 17 Paul Hunt, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health, report to the United Nations General Assembly, 8 August 2007, A/62/150, paras Ibid., para.12.

11 making tough priority choices. I was present at a July 2005 meeting where he sought advice from a small number of experts in the field about priority setting, with the overwhelming majority claiming it is not the role of the human rights community to do so. I agree with Paul Hunt that the traditional human rights techniques that the participants in the meeting preferred evaluating and critiquing policies, naming and shaming, and letter writing campaigns are not sufficient to assure implementation of human rights. 19 Priority Setting Even if we agree on the need for priority setting among and within components of rights, the question is how to do so and specifically the criteria or principles to apply. Priority setting obviously raises profound human rights issues whether it is between or within specific rights. So how do we set priorities between rights? Paul Hunt observes that in the past prioritization has often privileged the health needs of wealthy, urban populations over the entitlements of the poor and marginalized the health entitlements of women, persons with disabilities and other disadvantaged groups. As he notes, this mirroring and deepening of patterns of inclusive and exclusion fundamentally contradicts and is offensive to a human rights approach. 20 So what kinds of criteria are relevant and consistent with human rights principles? The rest of this paper will discuss a few alternatives for purposes of beginning a dialogue around the issue. My purpose is to raise issues rather than to draw conclusions. Henry Shue: Basic Rights In 1980, a very different era in human rights development than our own, Henry Shue, a philosopher interested in public policy, published a book titled Basic Rights: Subsistence, 19 Ibid., para Ibid., para. 15.

12 Affluence, and U.S. Foreign Policy. At the time Shue wrote the two major international covenant based on the Universal Declaration, the ICCESCR and ICCPR, were just coming into force. The United Nations human rights apparatus as we know it today was yet to be put into place. The cold war was raging. Economic and social rights were not accorded full recognition and standing by many of the western powers. The U.S. had signed but not ratified the major human rights instruments. As the title implied, Shue s book was intended to link human rights claims with foreign policy and to set the moral minimum the lower limits on tolerable human conduct, individual and institutional. He sought to define the claims that every person can demand and the least that every person, every government, and every corporation must be made to do. 21 His starting point was to correct the misleading dichotomy between economic rights and political rights by arguing that at least one small set of economic rights, the rights he categorized as economic subsistence rights, belongs among the rights with the highest priority. 22 Shue sought to have U.S. foreign policy predicated on an official acknowledgement that subsistence rights are basic rights and to bolster that affirmation with the ratification of the International Covenant on Economic, Social and Cultural Rights. He also recommended the cessation of economic and security assistance to all governments engaged in the systematic deprivation of subsistence rights. 23 Building on the philosopher John Rawls notion of primary goods, Shue conceptualizes a group of basic rights as having higher priority over other human rights. 24 He identifies a 21 Henry Shue, Basic Rights: Subsistence, and U.S. Foreign Policy (Princeton: Princeton University Press, 1980), p. ix. 22 Ibid., pp Ibid., p Ibid., p. 19.

13 right as basic if its enjoyment is essential to the enjoyment of all other rights. 25 Basic rights are considered to be everyone s minimum reasonable and justified demands upon the rest of humanity. On those grounds he argues that there are at least three such rights or more precisely clusters of rights: security, subsistence, and liberty. Shue carefully notes that this list is not necessarily complete or exhaustive. 26 It is important to understand what and why Shue made this distinction between basic and non-basic rights. Shue did not claim to be writing a comprehensive theory of rights. According to Shue, the basic/non-basic dichotomy did not mean that a basic right was intrinsically more valuable. Instead it represented the functional difference between what can be claimed and what can be realized. Basic rights had priority in realization. Another implication of a right having the status of a basic right, and an important one, is that other non-basic rights may be sacrificed, if necessary, to secure the basic right. 27 The central criteria that determined why Shue categorized some human rights as basic is that their realization is essential to the enjoyment of all other rights. In practice, the priority accorded to these rights reflects the need to establish basic rights securely before other rights can be realized. 28 Whether a right is basic is independent of whether the enjoyment is also valuable in itself. Intrinsically valuable rights may or may not also be basic rights, but intrinsically valuable rights can be enjoyed only when basic rights are enjoyed. 29 Shue also considered all basic rights, but not all human rights, to be mutually interdependent Ibid. 26 Ibid., p Ibid., p Ibid., p Ibid. 30 Ibid., pp

14 Shue s list of basic rights includes the following: 1. The first is a right to full physical security which includes a right not to be subjected to murder, torture, mayhem, rape or assault: Shue s reasoning is that no one can fully enjoy any right that is supposedly protected by society if someone can threaten that person with bodily harm when she or he tries to enjoy the alleged right. According to Shue, full physical security is the precondition of the exercise of other rights The second category is subsistence rights or minimal economic security rights. As defined by Shue, this category encompasses elements of many of the rights in the Universal Declaration and the International Covenant on Economic, Social and Cultural Rights and in a few cases goes beyond them. Shue s enumeration of subsistence rights includes unpolluted air, unpolluted water, adequate food, adequate clothing, adequate shelter, and minimal preventive public health care. Shue reasons that it is necessary to have available for consumption what is needed for a decent chance at a reasonably healthy and active life of more or less normal length, barring tragic interventions. 3. The third category for Shue is liberty rights. He argues that the enjoyment of some security and subsistence rights depends on the protection of liberty rights and conversely that key liberty rights depend on the realization of security and subsistence rights. 32 This category of rights includes participation, 33 not usually characterized as a liberty right, and freedom of physical movement Ibid., pp Ibid., p Ibid., pp Ibid., pp. 78=81.

15 Shue s proposal raises three different types of issues. Do we accept his notion that there is a core of basic rights on which the implementation of all other human rights depend? And if so, do we agree with his definition of three sets of rights as basic to the realization of all human rights? And finally, would we be comfortable with his list of basic rights as the basis of prioritizing implementation of human rights? Martha Nussbaum: The Human Capabilities Approach Martha Nussbaum, a feminist philosopher, has put forward what she characterizes as a capabilities approach, which has received considerable attention. Human capabilities, according to Nussbaum, are what people are actually able to do and to be if they are to live a life worthy of the dignity of the human being. Building on work she did with the Nobel economist Amartya Sen, Nussbaum s frame of reference is the lives of women in developing countries. Much like human rights, she conceptualizes capabilities as core human entitlements. Also like human rights Nussbaum identifies the capabilities approach as fully universal and applicable to every nation and each person. Much of her interest is establishing a universally applicable social minimum: she posits that there is a threshold level of each capability beneath which truly human functioning is not available to citizens. 35 Her initial conception of capabilities in Women and Human Development distinguishes between capabilities and rights. 36 Her more recent work, Frontiers of Justice, understands the capabilities approach to be closely allied with, and a species of, a human rights approach Martha C. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), pp Ibid., p Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: The Belknap Press of Harvard University Press, 2006), p.284.

16 Nussbaum s efforts to identify the capabilities central to a life with dignity might offer another approach to prioritizing among human rights. All internationally recognized human rights are said to derive from the inherent dignity of the human person, but that does not necessarily mean that each and everyone is necessary to living a life with dignity. So do the ten central human capabilities defined by Nussbaum offer a way to prioritize among human rights? Nussbaum s central human functional capabilities are the following: (1) Life: being able to live to the end of a human life of normal length; not dying prematurely, or before one s life is so reduced as to be not worth living. (2) Bodily health: being able to have good health, including reproductive health, to be adequately nourished; to have adequate shelter. (3) Bodily integrity: being able to move freely from place to place; being able to be secure against assault, including sexual assault, having opportunities for sexual satisfaction and for choice in matters of reproduction. (4) Senses, imagination, and thought: being able to use the senses, to imagine, think, and reason and to do these things in a way informed and cultivated by an adequate education, including but not limited to literacy and basic mathematical and scientific training. Being able to use one s mind in ways protected by guarantees by freedom of expression with respect to both political and artistic speech. Being able to search for ultimate meaning of life in one s own way. (5) Emotion: being able to have attachments to things and people outside ourselves.

17 (6) Practical reason: being able to form a conception of the good and to engage in critical reflection about planning one s life; Nussbaum recognizes that this entails protection for the liberty of conscience and religious observance. (7) Affiliation: being able to live with and toward others; to engage in various forms of social interaction; having the social bases of self-respect and non-humiliation; being able to be treated as a dignified being including protection against discrimination on the basis of race, sex, sexual orientation, religion, case, ethnicity, or national origin. (8) Other species: being able to live with concern for and in relationship to the world of nature. (9) Play: being able to laugh, or play, to enjoy recreational activities. (10) Control over one s environment both politically and materially, including having the right to political participation and having property rights on an equal basis with others, having the right to seek employment on an equal basis with others. 38 Nussbaum s list of capabilities turns out to be problematic to translate into a traditional human rights framework. They are framed in philosophical rather than legal terms. Many of the essential capabilities she identifies incorporate elements of more than one internationally recognized human right. When she does mention the subject matter of specific rights, it is often difficult to ascertain whether the overlap is the full human right or components of it. Her enumeration of human capabilities does not assign the state or any other entity the responsibility of promoting realization. The subject matter of several of her essential capabilities are outside 38 Nussbaum, Women and Human Development, pp ; Nussbaum, Frontiers of Justice, pp

18 the realm of the public sphere and state responsibilities,, for example emotions, relations with other species, most of her affiliation category, and play. Human rights analogues to her list of core capabilities would include the following: (1) The inherent right to life (ICCPR, art. 6.1) ; (2) Components of the right to the highest attainable standard of physical and mental health (ICESCR, art. 14); (3) Parts of the right to adequate education (ICESCR, art. 13); (4) The right to freedom of thought, conscience, and religion (ICCPR, art. 18). (5) The rights to peaceful assembly (ICCPR, art. 21), freedom of association with others (ICCPR, art. 22), and the right to take part in the conduct of public affairs and to vote (ICCPR, art. 25). (6) Equality before the law and the prohibition of discrimination (ICCPR, art. 26). What do we think about Nussbaum s approach and more specifically her list? Does it offer any basis for prioritizing among human rights? Paul Hunt s Criteria for Prioritization Hunt s August 2007 report, mentioned above, makes what he describes as preliminary observations about the process of priority setting within the right to health that may have application to the broader issue of prioritization among rights. Some of his points are procedural considerations, particularly the need for participation in the decision-making about setting priorities, monitoring of their achievement, and accountability for implementation. Hunt

19 underscores the right of all stakeholders, including and particularly marginalized groups, in agenda-setting, decision-making, monitoring, and accountability arrangements. He also notes that given present realities, including resource constraints, prioritization should take place within the framework of progressive realization and a comprehensive national health strategy that specifies how the state plans to progressively implement the various elements of the right to the highest attainable standard of health. 39 His major substantive criterion is the need to improve the situation of populations, communities, and individuals who are especially disadvantaged and vulnerable in the country in question, particularly those who are living in poverty. 40 He also notes the importance of fulfilling core obligations of the minimum essential levels of the right to health while acknowledging the need for more work to clarify their content. 41 Finally, he mentions the principle of non-retrogression that priority setting cannot reduce already achieved levels of implementation of specific components of the right to health. 42 Does Hunt s criterion of the need to improve the situation of disadvantaged and vulnerable communities and individuals offer a basis of prioritizing among human rights obligations? If so, would the priority rights so identified necessarily be the same everywhere? Also would this criterion necessarily favor economic and social rights over civil and political rights? Hopefully these and other issues raised in this paper will be discussed within the human rights community. 39 Hunt, The Right to the Highest Attainable Standard of Health, August 2007, para Ibid., para Ibid., para Ibid., para 29.

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