2. HUMAN RIGHTS
2.6. Generations of rights
It has become "routine" to talk about human right is terms of generations of human rights (Tomuschat 2003, 24). The generations model describes the development of the human rights as products of their time. A model has been advanced which captures three generations of human rights which are influenced by the themes of the French
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Revolution. The first generation is that of liberte, i.e. civil and political rights; the second generation, egalite, is of economic, social and cultural rights; and the third generation, fraternite,is of solidarity or collective rights. This model is simplified and does not intend to suggest that the developments follow an absolute, linear historical path. The generations of human rights are overlapping and interdependent.
2.6.1. Civil and political rights
The first generation of human rights are connected to 17th and 18th century reformist theories, related to the English, American and French Revolutions. The philosophical foundations lie in liberal individualism which is related to the rise of capitalism of the time. The first generation of human rights perceives rights in terms of negative rights,
"freedom from" as opposed to positive "rights to" conception. The emphasis is on abstention over intervention of government. The main tenet of the first generation of human rights was originally the right to own property, which is inherently connected to the interests driving the French and American revolutions and the rise of capitalism.
The notion of liberty, protecting the individual against abuse of political authority, is the core idea behind the first generation human rights. Essentially the first generation of human rights is a Western liberal conception, celebrating individualism in the fashion of John Locke and Thomas Hobbes. In the UDHR the articles belonging to this generation are 2-21. First generation rights are the core of most human rights treaties drafted.
2.6.2. Economic, social and cultural rights
The second generation of human rights are connected to the 19th century socialist tradition and its critical view of capitalist development. The second generation of human rights derive from criticism of the conception of individual liberty which allowed exploitation of the working classes, even legitimised this practice. The second generation of human rights as a counterpoint to the civil and political rights emphasised state intervention to secure rights in a positive conception, "rights to", such as protection against ill health, poor housing, etc. The core idea behind the second generation of human rights is social equality. However, there is no agreement on the ways and means of implementing the second generation human rights. Moreover, it has been pointed out that the second generation rights are more "context-dependent" than first generation rights. Therefore, some states (such as the US) do not guarantee the second generation rights at a constitutional level. (Tomuschat 2003, 26-28)
20 2.6.3. Solidarity/Collective rights
The third generation of human rights, i.e. solidarity or collective rights are the most recent in the history of the human rights tradition and are connected to the end of the 20th century both rise and decline of the nation state. There are six rights that are identified in this generation of rights. The first three are connected to the idea of demand for global redistribution of power and wealth and the emergence of Third World nationalism: the right to political, economic, social, and cultural self determination; the right to economic and social development; and the right to participate in and benefit from "the common heritage of mankind". The other three rights of this generation, the rights to peace, healthy and sustainable environment and humanitarian disaster relief, are connected to the idea of lessening importance, the inefficiency, of the nation state in respect to these critical issues. All of the third generation rights are collective rights with an appeal to common efforts of nations and peoples. However, they also have an individual dimension in that even though securing a "new international economic order" is a collective right of countries and peoples, it is also an individuals right to benefit from developmental policy towards this aim. An important point about the third generation of human rights is that they are more aspirational than justifiable and therefore they have remained contested and ambiguous. None of the third generation rights have been affirmed as a legal instrument; they have been incorporated into resolutions of the General Assembly and state conferences, but have not reached the stage of an international treaty (Tomuschat 2003, 24). The uncertainties that surround the third generation rights are who holds these rights, who bears the responsibility and what is the actual content of these rights (ibid., 51).
2.6.4. Discrepancy between the generations of rights
It has been argued that civil and political rights have been treated as more important
"real" rights of individuals. Cassese for instance states that "more space and importance are allotted to civil and political rights than to economic, social and cultural rights" with reference to the UDHR (1992, 31). Not only critics of the human rights recognise this problem: also in the Vienna conference of 1993, the UN acknowledged that "despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social and cultural rights" (UN Doc.E/C.12/1992/2, 83). David Beetham (1995) argues that the reason for this disparity can be found in the language of "rights".
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Beetham points out that because the UDHR and the Covenants have been criticised as being merely aspirations rather that rights as entitlements the disparity is continuing. He contends that for entitlement to be a human right, it must satisfy number of conditions.
These conditions are: it (right) must be fundamental and universal, definable in justifiable form, it must be clear whose duty it is to implement the right and the responsible agency must have the capacity to fulfil its obligation. Critics argue that the rights in the Covenants do not satisfy these conditions (Beetham 1995, 41-42).
Beetham, however, shows against the critics that as far as economic and social rights are concerned they can be practicable in that the duties can indeed be assignable and minimum agenda of basic rights can be defined and justified (ibid., 59). The problem is that it seems that the economic and social rights can only be realised with considerable redistribution of resources and therefore the language of economic and social rights is that of realising them within "available resources" etc. This, according to Beetham, is due to institutional, intellectual and political factors. (ibid., 43)
It is quite obvious that as long as the second generation of rights are contested, the third generation rights are that even more so. In international law rights must have the quality of legal obligation. It has been argued that the third generation rights lack this dimension. According to Martin Dixon, international lawyers would claim that group rights are only rights in a moral or philosophical sense and do not connote legal obligations (1990, 312). Considering the fact that many states do not recognise the legal quality of some of the second generation rights, third generation rights are likely to remain contested. This goes back to Dixon's previous point that there is a need to
"differentiate between human rights susceptible of vindication as a matter of international law and those human rights that exist for the moment in the realm of morality and humanity" (ibid.).