Since the development of civilization, humanity has searched for a series of rules, principles, and regulations capable of organizing and safeguarding those fundamental rights and provisions inherent to the human character itself. The aim of this 101 series is to focus on the historical and political developments of these mechanisms in order to properly frame the current human rights system and its provisions.
The Human Rights System 101: Generations of Rights: The Route to the System
The Human Rights System 101: Particular or universal? Applicability of rights
The Human Rights System 101: The enforceability of human rights
The Human Rights System 101: Regional integration and global development
Although the concept of state sovereignty has constituted one of the building blocks of international law, the human right system has always represented a peculiar variation to the international equilibrium. Ever since the atrocities of the Second World War sparked a newfound interest in the internationalization of human rights, the concept of state sovereignty has been eroded from multiple angles (Brown, G. & Global Citizenship Commission, 2016). Engagements on mutual scrutiny, commonly-shared commitments, and programmatic goals have put into question where the sovereignty of one state ends and where a global regime starts. The pressure coming from national and supranational bodies eventually led to the insertion of human rights provisions in the Charter of the United Nations and the Universal Declaration of Human Rights (UDHR). These documents represent the basis for the aforementioned system focused on the protection of human rights and the clearest examples of international cooperation.
The development of the UDHR, which still represents a non-binding document in international law, offered the most widespread form of political cooperation in the field of human rights. The example set by the UDHR served as a starting point for the creation of many other instruments which were eventually set in stone through treaties. Instances, like that of the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), contributed to the creation of the “International Bill of Rights”. This collection of documents, as well as other global arrangements, like the UN Convention on the Rights of the Child, actively enshrined human rights in international law (Leib, H. L. 2011).
Image 1: Deutsch, R. J. (2020). Black Lives Matter Flag Richmond.
The institutionalization of human rights in international politics subsequently led to the emergence of new studies and strands of research that attempted to classify said rights. Hence, one of the most popular, and yet questioned, approaches to the taxonomy of human rights is that of the “generations of rights”. Karel Vasak, a Czech jurist, in 1979 proposed to the world an interpretation of human rights viewed through the lenses of generations. This new classification, presented at the 10th Study Session of the International Institute of Human Rights in Strasbourg, became one of the most adopted ways to interpret and analyze the human rights system. According to Vasak, human rights can be divided into three generations: civil and political rights, social, economic, and cultural rights, and a set of rights designed to protect human values that are likely to be severely violated (Leib, H. L. 2011).
The rationale behind Vasak’s interpretation of these rights derives from a theoretical conjunction between the generations of rights and the founding pillars of the French Revolution. As a result, the first generation of rights strives to represent freedoms or liberty, while the second focuses on equality and the third on fraternity, leading to the designation of third-generation rights as "solidarity rights" (Reed, L. 2019). This interpretation quickly became one of the most prominent in the study of human rights, but it also raised many questions. One of the main critics of Vasak’s theory was Philip Alston, an Australian international law scholar, and human rights practitioner. According to Alston, understanding human rights through a generational approach would inevitably create a hierarchy and division between rights. In his view, “newer” rights would be seen as more elaborate, creating conceptual distance from “older” ones and fundamentally questioning the principles of indivisibility in human rights. Further, Alston thoroughly questioned whether it was conceptually possible to create a precise definition between the stages, especially given the fact that both the historical and institutional processes leading to the emergence of the system were mostly fluid and blurred (Alston, P. 1982).
Image 2: Tyson, J. (2021). Untitled.
These elements of fluidity and blurriness have also been underlined by other scholars, like Sandra Fredman, who specifically stressed how the notion of blurriness is inherent to human rights. Such element is present particularly in the definition of a state's obligation in regards to the aforementioned rights and, since such demarcation tends to remain blurred, a strict classification would be inherently limiting (Fredman, S. 2006). Concerning the specific limits of a generational understanding of human rights, a Canadian jurist, Patrick Macklem, highlights how generations could be a misleading categorization of human rights, both from a chronological and analytical perspective.
Image 3: Unuabona, E. A. (2020). London Black Lives Matter Protests.
Firstly, the employment of a generational metaphor to explain the development of human rights fails to take into consideration how the different classes of human rights do not replace each other but build off each other throughout time. Although Vasak’s point of view could be fruitful in underlining some chronological order in the institutionalization of human rights, it makes little to no effort to uncover the foundations and origins of said rights. According to Macklem, a generational account assumes their formal legal existence and classifies them in terms of when they came to exist, but leaves open questions surrounding their legal existence (Macklem, P. 2014). If one was to expand the notion that human rights only received recognition through the UDHR, the chronology of the generations would overlap and shift. Indeed, labor rights arose in the international community’s behavior through the works of the International Association for the Legal Protection of Workers in the early 1900s, which preceded the UDHR. This particular development highlights how the emergence of third-generation rights seems to have occurred before civil and political rights received formal expression in international law (Asbjørn, E. et al., 2001).
Image 4: Library of Congress (2019). Civil rights march on Washington, D.C. Film negative by photographer Warren K. Leffler, 1963.
Secondly, a generational approach could be misleading from an analytical perspective. Since human rights are indivisible, understanding their development through the metaphor of generations would contrast with one of their main characters. In the United Nations' approved interpretation of human rights, the realization of each human right represents a stepping stone towards the pursuance of the rest of them, but not a necessary precondition for it. This specific concept of indivisibility clashes with the generational approach because the connections between rights are not always chronological and directly interdependent. Although the implementation of some rights might be necessary for the enjoyment of others, these connections can be tighter or looser, and not necessarily chronological (Shue, H. 1980). It is this complexity that characterizes the relations among rights, making generational interpretations unsuitable for the process of classification since it overlooks the commonalities between the different fields (Macklem, P. 2014).
In conclusion, although the generational approach to the development of the human rights system might have been useful for the promotion and institutionalization of rights, it shows multiple limitations. The chronological and analytical faults that are present in Vasak’s interpretation tend to ignore the blurred lines that, both historically and procedurally, defined the human rights system. Therefore, in order to properly comprehend the development of the system, it is necessary to adopt a historically-intersectional approach capable of surmounting the mere scientific forms of classification.
Asbjørn Eide, Krause, C., & Rosas, A. (2001). Economic, social and cultural rights : a textbook.
Brown, G., & Global Citizenship Commission. (2016). The Universal Declaration of Human Rights in the 21st century, a living document in a changing world. Open Book Publishers ; New York.
Domaradzki, S., Khvostova, M., & Pupovac, D. (2019). Karel Vasak’s Generations of Rights and the Contemporary Human Rights Discourse. Human Rights Review, 20(4), 423–443. https://doi.org/10.1007/s12142-019-00565-x
Fredman, S. (2006). Human Rights Transformed: Positive Duties and Positive Rights. SSRN; Oxford Legal Studies Research Paper No. 38/2006. https://ssrn.com/abstract=923936
Linda Hajjar Leib. (2011). Human Rights and the Environment : Philosophical, Theoretical and Legal Perspectives (p. Chapter 2). Brill, Berlin.
Macklem, P. (2014). Human Rights in International Law: Three Generations or One? SSRN Electronic Journal. https://doi.org/10.2139/ssrn.2573153
Reed, L. (2019, January 19). The Generations of Human Rights – UAB Institute for Human Rights Blog. Sites.uab.edu. https://sites.uab.edu/humanrights/2019/01/14/the-generations-of-human-rights/
Shue, H. (1980). Basic rights. Princeton University Press.
Cover image: Zhyhar, H, (2021). Fighting for freedom. Retrieved from: https://unsplash.com/photos/XzsSg0hdXpQ
Image 1: Deutsch, R. J. (2020). Black Lives Matter Flag Richmond. Retrieved from: https://unsplash.com/photos/lZhnckMx15M
Image 2: Tyson, J. (2021). Untitled. Retrieved from: https://unsplash.com/photos/H1xbqUBaM_0
Image 3: Unuabona, E. A. (2020). London Black Lives Matter Protests. Retrieved from: https://unsplash.com/photos/72doRdFx-Lo
Image 4: Library of Congress (2019). Civil rights march on Washington, D.C. Film negative by photographer Warren K. Leffler, 1963. Retrieved from: https://unsplash.com/photos/WzPxmB_tRlw