Human Rights: Three Generations or One?
HUMAN RIGHTS: THREE GENERATIONS OR ONE?
IN 1977, THE UNESCO Courier published a slender essay by Karel Vasak, a Czech-born, French jurist and director of UNESCO’s Division of Human Rights and Peace. Entitled “A Thirty-Year Struggle,” Vasak’s essay characterized human rights in international law in terms of “three generations.”1 The first generation, he wrote, refers to civil and political rights, specifically those enshrined in the International Covenant on Civil and Political Rights, such as freedom of expression and the right to vote. The second generation concerns economic, social, and cultural rights, specifically those enshrined in the International Covenant on Economic, Social, and Cultural Rights, such as rights to housing and to form a trade union. The third generation, which Vasak characterized as one that “the international community is now embarking on,” refers to what he called “solidarity rights,” which include the right to development, the right to self-determination, minority rights, the right to a healthy environment, the right to peace, and the right to ownership of the common heritage of mankind.2
Vasak’s metaphorical generations have come to assume an intellectual prominence far greater than where they first appeared in print. Classifications that comprehend human rights in terms of generations are now legion in international legal scholarship. Institutions specialize in them, judges invoke them, scholars and practitioners rely on them, and students learn them when they learn about international human rights. Less common are explanations of what actually is meant when we speak of human rights in generational terms. Do “generations” refer to temporal differences concerning the emergence of different human rights in international law? Do they refer to distinctive properties that some rights share with others or analytical differences among rights? Or do they refer to the possibility that the protection of certain kinds of rights is conceptually prior to the protection of other kinds of rights?
This chapter argues that understanding human rights in international law in terms of generations is historically inaccurate, analytically unhelpful, and conceptually misguided. The chronologies suggested by generational conceptions of human rights do not correspond to the history of human rights in international law. The analytical categories into which generational conceptions sort human rights do not capture their legal nature and character. And generational conceptions of human rights, by highlighting differences that allegedly exist among different types of human rights, fail to appreciate what is common to all human rights in international law.
Different human rights seek to protect different kinds of interests, and the nature of these interests will require different means of protection. Whether chronological or analytical, generational conceptions that stylize these differences distract from the function that human rights play in international law by portraying them as belonging to different generations of discovered moral truths. Specifically, generational conceptions miss the fact that, despite the diverse sets of interests they seek to protect, human rights in international law share a common purpose, which is to mitigate injustices produced by the ways in which international law brings legal order to global politics. In this sense, civil and political rights and social, economic, and cultural rights, as well those thought of as third-generation rights, comprise but one generation: a single population of entitlements, speaking to different features of the structure and operation of international law.
GENERATIONS AS CHRONOLOGICAL CATEGORIES
Vasak’s metaphor of generations fails to capture the nature of human rights in at least one respect: classes of human rights, unlike generations in life, do not replace each other sequentially over time.3 Carl Wellman puts it bluntly: “[g]enerations succeed one another, not only in that the members of one generation are born before those of the next generation, but also in that parents tend to die before their children.”4 Nonetheless, some see merit in Vasak’s metaphor because it highlights important chronological facts about human rights. In another essay published a few years after his contribution to the UNESCO Courier, Vasak himself intimated that a generational conception of human rights captures how human rights came into existence in different “waves” throughout history. The first wave, which accompanied the French revolution, gave rise to the generation of civil and political rights. With the second wave, after the Russian revolution of 1917, economic, social, and cultural rights gained universal recognition. The third wave accompanied “the emancipation of colonized and dominated peoples” in the middle of the twentieth century.5
Others draw chronological insight into the relationship between first and second generation rights from the work on citizenship by T.H. Marshall. Writing in 1949, Marshall conceived of citizenship as consisting of three elements—civil, political, and social—each of which emerged and gave shape to the concept in a chronological manner during and after the industrial revolution in England. Civil rights, such as the rights to own property and enter into contracts, the right to sue and be sued, and rights associated with access to the judiciary, conferred legal personality on individuals and were primarily the work of courts. Political rights, such as the right to vote and hold office, were primarily the work of legislatures. And social rights, which range from “the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in society,” were primarily the responsibility of the administrative State and educational systems.6 In Marshall’s words, “it is possible, without doing too much violence to historical accuracy, to assign the formative period in the life of each to a different century—civil rights to the eighteenth, political to the nineteenth and social to the twentieth.”7
However accurate such chronological accounts of human rights may be, they say little that is meaningful about human rights in international law, which are of a much more recent vintage than, say, rights that surfaced in British common law during the industrial revolution. Before the turn of the twentieth century, positive international law referred to human rights at best obliquely. Samuel Moyn argues that international human rights emerged “seemingly out of nowhere” and acquired political and legal salience only recently, in the 1970s.”8 Others take a longer view, tracing the ancestry of the field to diverse historical events and epochs, including the British movement to abolish the transatlantic slave trade,9 the European renaissance and reformation,10 and the cultural and literary milieu of the enlightenment.11 Accounting for international human rights in terms of generations, however, is not the same as determining their origins or antecedents. A generational account typically assumes their formal international legal existence and, at least from a chronological perspective, classifies them in terms of when they surfaced in international law. Relying on events or periods prior to the twentieth century to identify a chronology of international human rights confuses the origins or antecedents of human rights with their international legal existence.12
The lack of fit between the periods to which generations of human rights are often assigned and their comparatively youthful existence in positive international law does not foreclose the possibility of a chronological account of their international legal status. Human rights in international law are often portrayed by legal scholars as possessing a unique chronology of their own, one that commences in the aftermath of the Second World War and that continues through the latter half of the twentieth century to the present day.13 Vasak alluded to such a conception when he characterized the international community, in 1979, as “embarking on a third generation of human rights” in what has been “a thirty-year struggle.”14 On this conception, first-generation civil and political rights initially received recognition, second-generation social and economic rights subsequently received recognition, and third-generation solidarity rights are in the process of receiving recognition in international law.
If we relax the positivistic premise that human rights received formal legal expression only as of 1948 with the adoption of the Universal Declaration and engage with developments earlier in the twentieth century, any chronology that might exist in the resulting expanded time frame belies the one suggested by Vasak. Philip Alston notes that human rights first emerged in international law when international labor rights, which Marshall conceived of as a subset of social rights, made their first appearance after World War I—with the creation of the International Labour Organization and the various treaties that emerged soon thereafter protecting the rights of workers.15 Asbjørn Eide traces the genesis of labor rights in international law even further back in time, to conferences convened by Swiss authorities in 1905 and 1906, which adopted conventions based on the work of the International Association for the Legal Protection of Workers in 1900, building on a set of recommendations generated by a conference convened in Germany in 1890.16 According to Eide, the main contribution that the 1948 Universal Declaration made to international human rights law was to extend the field beyond social and economic rights to include civil and political rights. From this vantage point, whether the chronology commences at the end of the nineteenth century or the beginning of the twentieth century, social and economic rights are first-generation rights, and civil and political rights are their relatively youthful second-generational relatives.17
In fact, from this perspective, the emergence of what we understand to be third-generation rights occurred before civil and political rights received formal expression in international law. As discussed in more detail in Chapter 5, with the 1648 Treaty of Westphalia guaranteeing religious freedom for minority communities, minority rights received international recognition at the very moment that international law began to conceive of States as sovereign legal actors. While it recognized the sovereign right of princes to determine the religion of their own States, the Treaty of Westphalia also guaranteed Lutherans and Calvinists in specified regions the right to practice their faith in public and private realms.18
Minority rights also rose to international legal prominence after World War I with the adoption of a raft of multilateral and bilateral treaties, monitored by the League of Nations, which provided protection to populations displaced or adversely affected by the war and the subsequent redrawing of territorial boundaries in Europe. Although minority rights were not thought of in universal terms during this period, they shared common features. The relevant legal instruments contained stipulations regarding the acquisition of nationality of the newly created or enlarged State, the right to equal treatment, rights against nondiscrimination, and the protection of ethnic, religious, or linguistic identity, including the rights of minorities to officially use their mother tongue, to have their own schools, and to practice their religion.19
Indigenous rights, too, do not track the common chronological account of Vasak’s three generations of human rights in international law. As described in more detail in Chapter 6, soon after its inception in 1919, the ILO sought to extend its supervisory authority to working conditions in colonies and dependent territories. The ILO undertook studies in 1921 on the working conditions in these jurisdictions, establishing a Committee of Experts on Native Labour to formulate labor standards for what it termed “indigenous” workers in these regions in 1926, and enshrining these standards in seven Conventions that came into force between 1930 and 1955. These Conventions set out relatively weak labor standards for the protection of workers in colonies and dependent territories. They included obligations to phase out the use of forced labor; regulations governing the recruitment of workers that sought to minimize the impact of the demand for labor on the political and social organization of the population; requirements that employers enter into written contracts with employees and bear certain costs associated with relocation and transportation of workers; obligations to phase out, “progressively and as soon as possible,” penal sanctions for breach of contract; provisions specifying the maximum length or term of employment contracts; and regulations governing the use of migrant workers.20 Despite their weaknesses, indigenous civil and social rights nonetheless found formal expression in international law well before the adoption of the Universal Declaration and the entrenchment of so-called first- and second-generation rights in 1948.
In Vasak’s defense, social rights and minority rights typically were not cast in universal terms in international law before the adoption of the International Covenant on Civil and Political Rights. They vested in some people and not others and were tailored to the contingent circumstances of the communities they purportedly protected. And characterizations of indigenous rights as instruments that protect interests associated with the right to self-determination—a right that is said to vest in all of us by virtue of our common humanity21—surfaced even more recently. If human rights, understood as universal entitlements, first surfaced in international law with the adoption of the 1948 Universal Declaration, then minority and indigenous rights plausibly could be characterized chronologically as third-generation rights, arguably emerging in universal terms in 1976 and 1989, respectively.22 But if the chronology commences in 1948, then civil and political rights appear in international law at the same time as the appearance of social, economic, and cultural rights.23 The 1948 Universal Declaration enshrines both sets of rights, rendering suspect the claim that first-generation rights chronologically preceded second-generation rights in international legal history.
If instead we tighten the positivistic premise that human rights first appear in international law when they receive formal legal expression, and commence the chronology in 1976 when the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights entered into force, then a chronological account of the three classes of rights is even more historically inaccurate. Under this tighter premise, both first and second generations of human rights came into international legal existence simultaneously, as did minority rights understood as universal entitlements. And the right of self-determination—a so-called third-generation right—was formally recognized as a human right by the International Court of Justice one year before the coming into force of the two Covenants.24 Characterizing human rights in chronological terms, whatever the commencement date, fails to adequately describe the timing of their actual emergence in international law. If we are to ascribe a chronology to these events, it is a much more complex one than what is offered by generational accounts of human rights.
GENERATIONS AS ANALYTICAL CATEGORIES
Another way of understanding human rights in generational terms is to treat Vasak’s three generations as analytical instead of chronological categories. Approached analytically, a human right belongs to a particular generation of rights because of distinctive properties that it possesses. Vasak himself alluded to this approach by distinguishing the three generations of rights in terms of the obligations they generate and on whom their obligations fall. Civil and political rights, he wrote, are “negative rights, in the sense that their respect requires that the state do nothing to interfere with individual liberties.”25 Social, economic, and cultural rights, in contrast, require “positive action by the state to be implemented.”26 Third-generation rights, for Vasak, are distinctive not because of the nature of the obligations they impose but because of the actors who bear these obligations. Unlike first- and second-generation rights, which impose obligations only on governments, third-generation rights, because they “reflect a certain conception of community life, … can only be implemented by the combined efforts of everyone: individuals, states and other bodies, as well as public and private institutions.”27
Critiques of accounts that characterize civil and political rights as negative rights and social and economic rights as positive rights are well known, and there is no need to rehearse their arguments in detail here.28 It suffices to say that, contrary to Vasak, who insisted on a sharp divide between positive and negative rights, all rights—whether civil, political, social, or economic—give rise to both positive and negative governmental obligations calibrated to protect certain interests and not others. The right to property, for example, classically conceived of as a negative civil right that requires government to refrain from interfering with its exercise, requires extensive governmental action—legislative, judicial, and administrative—for its protection. Zoning legislation, criminal law, the common law of property and tort, and environmental agencies and police forces serve to protect the value of one’s property from the actions of others. “The protection of property,” in Neil Komesar’s words, “needs both protection from and the protection of the government.”29
Social and economic rights, too, can be cast in either positive or negative terms, depending on how one characterizes the governmental obligations to which they give rise. State abolition of social assistance, for example, implicates a negative right to minimal subsistence insofar as a State subject to such a right cannot deny a person the minimal subsistence to which she is entitled. But it also implicates a positive right to minimal subsistence insofar as the right obligates a State to secure minimal subsistence to each individual. Similarly, a right to shelter contemplates a negative obligation on government not to demolish one’s housing as well as, under some formulations, an obligation to provide housing to those in need.
So-called third-generation rights also possess negative and positive dimensions. The right to development, as we will see, imposes internal obligations on States that are both negative and positive in nature. A State’s negative obligations require it to not act in ways that interfere with the exercise of the right to development. A State’s positive obligations require it to enable its population to participate in and benefit from economic, social, cultural, and political development. It imposes additional external obligations on international legal actors that are also negative and positive in nature. Its negative dimensions require States and international institutions to fashion rules and policies governing the global economy in ways that do not exacerbate global poverty. Its positive dimensions require States and international institutions to provide assistance to developing States in the form of development aid and debt relief.
Given that all rights—regardless of which generation they are said to belong to—give rise to positive and negative State obligations, the key task is not to determine whether any given human right is positive or negative. It is instead to identify, in specific contexts, the particular configuration of State obligations—positive and negative—to which it gives rise. This configuration is itself dependent on the nature of the interests that the right is deemed to protect, and the extent to which it contains positive obligations will depend, in part, on how much value those specifying its terms place on State intervention or market ordering.
Vasak alluded to a conception of human rights that classifies them in terms of the interests they seek to protect by grandly suggesting that the three generations of human rights correspond, respectively, to the three ideals of the French revolution: liberty, equality, and fraternity.30 In his view, liberty corresponds to first-generation rights because they protect fundamental freedoms such as freedom of expression and religion. Equality corresponds to second-generation rights because they are aimed at the amelioration of social and economic inequalities.31 Fraternity—or what Vasak also referred to as solidarity—underpins third-generation rights in the sense that it promotes the social solidarity necessary for individuals to develop their full human potential.32
Vasak argued that third-generation rights were necessary to address two deficiencies associated with first- and second-generation rights. The first is that a culture of rights promotes a culture of individualism, resulting in the social isolation of individuals, which solidarity rights seek to overcome. Second, writing in 1984, Vasak presciently foresaw that processes of economic globalization render it increasingly difficult for States, acting independently, to address problems that second-generation rights were designed to address. Vasak saw third-generation rights as instruments that, because they require cooperative action at the international level, enable a global coordinated response to the social isolation produced by a culture of individualism.33
Equating the three generations of rights with the three ideals of liberty, equality, and fraternity, however, merely underscores the fact that different rights protect different interests and that these interests can be grouped into larger normative categories that speak to different dimensions of the human condition. Conveying this fact by way of a metaphor of generations risks mystifying this simple, albeit important, insight. More important, it obscures what is common to all human rights in international law, despite the diverse sets of interests that they seek to protect.
Another way of understanding generations in analytical terms is to treat them as highlighting a conceptual sequencing of types of human rights. Civil and political rights can be thought of as conceptually prior to, and therefore belonging to a generation “older than,” social and economic rights. This is because civil and political rights establish the legal and political standing of those entitled to exercise and enjoy social and economic rights. And the protection of both sets of rights is necessary to the effective enjoyment of a third generation of human rights, such as the right of self-determination. If one is not vested with civil, political, social, and economic rights, then one cannot be said to be capable of freely determining one’s political status and freely pursuing one’s economic, social, and cultural development.
With generations as proxies for conceptual sequences, however, it is not clear in which direction the sequences run. Social and economic rights can just as easily be comprehended as conceptually prior to civil and political rights for the simple reason that the vesting of civil and political rights is practically meaningless if an individual is incapable of satisfying his or her most basic needs in life. The right to vote means little to someone who is starving. Or, as Jeremy Waldron more elegantly put it, “if one is really concerned to secure civil or political liberty for a person, that commitment should be accompanied by a further concern about the conditions of the person’s life that make it possible for him to enjoy and exercise that liberty.”34
Others locate third-generation rights at the start of the sequence. Advocates of third-generation rights often argue that they are necessary for the full realization of first- and second-generation rights. Jamil Baroody, who represented Saudi Arabia when the United Nations turned its attention to the international legality of colonialism in the 1950s, for example, was successful in his efforts to amend a draft 1952 U.N. resolution on self-determination to proclaim that “[t]he right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights.”35 Similarly, the Indonesian delegate at the time, Nazir Pamontjak, characterized the right of self-determination as “a conditio sine qua non of individual human rights.”36
Henry Shue has offered what is perhaps the most sophisticated account of human rights in terms of their sequential importance. In his book, BASIC RIGHTS, Shue predicates U.S. foreign policy on a commitment to rights that he referred to as economic subsistence rights—a small set of rights that has priority over other human rights.37