The Generations of Rights, and the Order They Describe
Chapter Twenty-Seven
Syllabus topic 1, "Development of Concept of Human Rights"
Pages 116 to 118 of 594
In one line
Karel Vasak's three generations map liberty onto civil and political rights, equality onto economic, social and cultural rights, and fraternity onto solidarity rights such as development, peace, environment and the common heritage, and the third is the only one whose duty-bearer is the international order itself.
The three
First generation, liberty. Civil and political rights. The duty is mainly one of restraint, the holder is the individual, the enforcement is judicial, and the historical source is the eighteenth-century revolutions. The Civil and Political Covenant is its treaty form.
Second generation, equality. Economic, social and cultural rights. The duty is mainly one of provision, the enforcement is administrative and budgetary as much as judicial, and the historical source is the nineteenth-century labour movement and the Mexican and Weimar constitutions. The Economic, Social and Cultural Covenant is its treaty form.
Third generation, fraternity. Solidarity rights: development, peace, a healthy environment, the common heritage of mankind, communication, and humanitarian assistance. The holder is usually a people or humanity, and the duty falls on the international community.
Vasak proposed the scheme in 1977 as an exposition, not as a hierarchy. It has been used as a hierarchy ever since, which is the criticism the Vienna Declaration answered.
What each generation asks of other States
This is the paper's angle, and it is what separates a Module I answer from a general essay.
The first asks other States for almost nothing except that they not shelter a torturer, which is why universal jurisdiction and extradition arrangements are its only genuinely international demand.
The second asks other States for co-operation, and it says so in article 2(1) of its Covenant, which requires steps individually and through international assistance and co-operation, especially economic and technical.
The third asks other States for structural change. A right to development is not satisfied by any single State behaving well; it requires the terms of trade, the flow of technology and the rules of finance to be different. [What Survived: the Right to Development] and [What the New International Economic Order Was] are Module IV's treatment.
So the generations are also a ladder of demands on the order: tolerate, assist, restructure.
The criticisms
One: it is a false history. The generations did not arrive in sequence. The International Labour Organization was writing second-generation standards from 1919, before any general civil and political treaty existed, and the Declaration of 1948 contains both in one text.
Two: it invites a hierarchy. Calling one set first suggests priority, and States have used the scheme to defer the second and to deny the third.
Three: it misdescribes the duties. The neat division into restraint and provision does not survive analysis. A fair trial requires courts, judges and legal aid, which cost money; the right to food is largely satisfied by not destroying crops and not blocking markets.
The Generations of Rights, and the Order They Describe
Four: the third generation lacks identifiable holders and duty-bearers, which makes it hard to convert into a right in the strict sense. This is the argument [The New International Economic Order Assessed Today] weighs.
What replaced it
The Vienna Declaration of 1993, paragraph 5: all human rights are universal, indivisible and interdependent and interrelated, and the international community must treat them globally in a fair and equal manner, on the same footing, and with the same emphasis.
Indivisible answers the hierarchy. Interdependent answers the false division of duties. On the same footing answers the deferral. [Universality, and What Vienna Settled] takes the paragraph apart.
The generations survive as vocabulary because they are useful shorthand, and an examiner who asks about them expects both the scheme and the correction.
Worked example
Asked whether the right to a healthy environment is a human right, use the scheme to structure the answer rather than to decide it.
As a third-generation claim, it has a holder that is hard to identify, a duty-bearer that is the whole community, and no individual remedy.
As a first-generation claim, it is enforceable now, because environmental harm reaches life under article 6, home and private life under article 17, and health under article 12 of the other Covenant.
As a second-generation claim, article 12(2)(b) already requires the improvement of all aspects of environmental and industrial hygiene.
Conclusion: the substance is protected through the first two generations while the third supplies the framing. That is the pattern for every solidarity right, and saying so shows you understand what the scheme is for.
What it does NOT mean
The generations are not chronological. They are thematic, and the chronology does not fit.
And they are not degrees of bindingness. A treaty obligation is a treaty obligation whichever generation the right is assigned to.
Quick revision
- Karel Vasak, 1977, from liberty, equality, fraternity.
- First: civil and political; restraint; individual holder; judicial enforcement; ICCPR.
- Second: economic, social and cultural; provision; ICESCR; roots in the ILO from 1919 and the Mexican and Weimar constitutions.
- Third: solidarity rights, development, peace, environment, common heritage, communication, humanitarian assistance; holder is a people or humanity; duty on the international community.
- What each asks of other States: tolerate, assist (ICESCR article 2(1)), restructure.
- Four criticisms: false history; invites hierarchy; misdescribes duties; no identifiable holder or duty-bearer in the third.
- Answer: Vienna 1993, paragraph 5: universal, indivisible and interdependent and interrelated, on the same footing and with the same emphasis.
The Generations of Rights, and the Order They Describe
Test yourself
1. Set out the three generations with their content, duty and treaty form. The first generation is liberty: the civil and political rights, whose principal duty is restraint by the State, whose holder is the individual, whose characteristic enforcement is judicial, and whose treaty form is the International Covenant on Civil and Political Rights of 1966. The second is equality: the economic, social and cultural rights, whose principal duty is provision, whose enforcement runs through budgets and administration as much as through courts, whose historical source is the labour movement of the nineteenth century together with the Mexican Constitution of 1917 and the Weimar Constitution of 1919, and whose treaty form is the International Covenant on Economic, Social and Cultural Rights. The third is fraternity: the solidarity rights, including development, peace, a healthy environment, the common heritage of mankind, communication and humanitarian assistance, whose holder is usually a people or humanity as a whole rather than an individual, and whose duty-bearer is the international community. Karel Vasak proposed the scheme in 1977, taking the three terms from the motto of the French Revolution, and he offered it as an exposition rather than as a ranking.
2. What does each generation demand of States other than the one where the right-holder lives? The first demands very little: the obligation is owed by each State to those within its territory and subject to its jurisdiction, and the only genuinely outward-facing demands are that other States not shelter those responsible for the gravest violations and that they co-operate in extradition and, for some offences, exercise universal jurisdiction. The second demands co-operation in terms, since article 2(1) of its Covenant requires each State to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources. The third demands structural change, because no amount of good behaviour by a single State satisfies a right to development: the claim is against the terms of trade, the flow of technology, the rules of finance and the distribution of decision-making power in international institutions. Read this way the generations form a ladder of demands on the order itself, running from tolerate to assist to restructure, and that ladder is why the third generation is the contested one and why it belongs in the module on the international economic order.
3. State the criticisms of the scheme and the answer Vienna gave. The first criticism is historical: the generations did not arrive in sequence, since the International Labour Organization was producing binding second-generation standards from 1919, before any general civil and political treaty existed, and the Universal Declaration of 1948 states both categories in a single text with no seam. The second is that the numbering invites a hierarchy, and States have used it to treat economic and social rights as aspirations to be reached later and third-generation claims as rhetoric. The third is analytical: the division between duties of restraint and duties of provision does not hold, since a fair trial requires courts, judges, interpreters and legal aid, all of which cost money, while much of the right to food is satisfied by not destroying crops and not obstructing markets. The fourth is that the third generation lacks an identifiable right-holder and an identifiable duty-bearer, which makes it difficult to treat as a right in the strict sense. Paragraph 5 of the Vienna Declaration of 1993 answers the first three by declaring all human rights universal, indivisible and interdependent and interrelated, and requiring the international community to treat them globally in a fair and equal manner, on the same footing and with the same emphasis.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.