The Human Rights System Series: Generations of Rights - The Route to the System

Foreword

The search for a series of rules, principles, and regulations capable of organizing and safeguarding those fundamental rights and provisions inherent to the human character has represented, since the dawn of time, a primary interest of humanity as a whole. Human rights emerged from an institutional standpoint with the adoption of the Universal Declaration on Human Rights, adopted after the atrocities of the Second World War to make amends for the crimes committed during the conflict, but their roots predate the 1900s and their character has evolved and morphed drastically since the signing of the Universal Declaration on Human Rights. Indeed, questions concerning their ontology, scope of action, enforceability, and overall efficacy have characterized the debate surrounding the human rights system since its onset, sparking countless chances for debate and development.

This series entails 6 articles, each presenting a different question that emerged in the definition and implementation of the current human rights system, with the aim to analyze the historical and political developments that characterized this mechanism. Such analysis is fundamental in order to properly frame the current human rights system and its provisions but, given the mutable character of this notion and its different interpretations according to the geographical area and the socio-cultural background taken into consideration, the process is still subjected to constant questioning and development.

The Human Rights System Series will be mainly divided into the following chapters of content:

1. The Human Rights System Series: What are human rights? The ontology of right-bearing

2. The Human Rights System Series: Generations of rights. The route to the system

3. The Human Rights System Series: Particular or universal?Applicability of rights

4. The Human Rights System Series: The enforceability of human rights

5. The Human Rights System Series: Regional integration and global development 

6. The Human Rights System Series: The Role of Media and Civil Society

   
   

The concept of sovereignty, understood as a matter of authority to regulate the life and development of a state by its rulers, has constituted, in international relations, one of the building blocks on which the international community built its connections (Donnelly, 2014). In this sense international relations have been regulated by the mutual recognition of power and authority by states, creating a context in which every actor is entitled to regulate and rule over its stretch of territory. Although such an environment rendered the promotion and implementation of supranational mechanisms potentially difficult, the human rights system has always represented a peculiar variation to the international equilibrium. Indeed, the atrocities of the Second World War, accompanied by the growing political pressure of the 1940s, created the premises for the sparking of a newfound interest in the internationalization of human rights (Leib, 2011). The emergence of a new era of human rights started to erode the concept of state sovereignty from multiple angles, promoting an interpretation of international relations in which sovereignty could not be used as a scapegoat to avoid responsibility for protecting human rights (Brown, G. & Global Citizenship Commission, 2016). Such general consciousness of the need to act globally to tackle human rights issues was concretized through engagements on mutual scrutiny, commonly-shared commitments, and programmatic goals that put into question where the sovereignty of one state ends and where a global regime starts.

Indeed, international scrutiny was promoted for the first time through the internationalization of human rights norms and of the mechanisms used to verify the veracity of each State’s commitment to the cause (Leib, 2011). Such commitment can be traced back to the 18th century and to the first declarations of democratic values that emerged in the revolutionary contexts of the United States and France, but the concrete rhetoric of human rights developed internationally only after the Second World War (Brown, G. & Global Citizenship Commission, 2016). In that context, 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 United Nations Charter reflects this objective in Article 1 which reclaims the need to advance universal respect for human rights, opening a new avenue for the codification of fundamental rights in international relations (United Nations, 1945).

Figure 1: Black Lives Matter Flag Richmond. (Deutsch, R. J. 2020).

The development of the UDHR in particular, 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 overall success of the UDHR is in fact due to its conciliatory approach to human rights which created the premises to merge the diverse cultural traditions of states that were not ready to comply with the principles enshrined in the Declaration (Leib, 2011). 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).

Despite the reaffirmation of the universality and indivisibility of human rights, their institutionalization in international politics subsequently led to the emergence of new studies and strands of research that attempted to promote their classification (United Nations, 1968). The willingness to classify human rights derived from the need to guarantee punctual implementation and developed firstly from a purely conceptual point of view. Indeed, the primary classification of human rights in international law derived from the promotion of the ICCPR and the ICESCR. The ICCPR and ICESCR trailed the UDHR in the framework of the International Bill of Rights and were intended to provide a legally binding codification of the rights listed in the Declaration. Although they were initially drafted in 1954 as a single document, they were opened for signature and ratification separately in 1966 (At a Glance, 2018). Such distinction retraced the ideological subdivision characterizing the Cold War tensions between the East, which highlighted the importance of economic rights, and the West, which put greater emphasis on civil and political rights (Office of the High Commissioner for Human Rights, 2023). Throughout the entirety of the Cold War, the notion of human rights was politicized and polarised by the different factions through this antithetical separation to pursue specific political objectives (Nowak, 2000).

Figure 2: Article 25 UDHR Poster. (Tyson, J. 2021).

This first classification identified civil and political rights as those referring to the right to life, dignity, opinion, and access to public service, identifying them as the natural expansion of freedom rights. On the other hand, economic and social rights were related since the Cold War era to the pursuit of the principles of the welfare state and labor standards through a series of binding rules used to correct the socioeconomic disparities among different members of society and provide them with education, health, employment (Gözler, 2017). Nonetheless, such classification and division of rights can potentially present dangerous levels of ambiguity, because it fundamentally fails to take into consideration the deep interconnection among the different types of rights enumerated in instruments like the UDHR. Indeed, the ideal of human freedom outlined in the text of the UDHR, which necessarily entails the protection of civil and political rights, could not be pursued without the guarantee of economic and social rights (Bouandel, 1997). A cultural right like the right to education represents the primary medium through which socially and economically weak individuals can access the means to develop, grow, and exercise their democratic rights fully (Gözler, 2017). At the same time, to pursue and enjoy political rights there is a need to satisfy one’s economic necessities. The realization of the freedom from inhuman treatment for example, which falls into the category of civil rights, requires society to provide economic safeguards in employment to protect workers from violations of the aforementioned right, creating a direct link between exercising political freedoms and the realization of economic necessities (Pogge, 2003).

To pursue freedom and solidarity, political rights concretely represent the starting point to develop economic and social rights which will, in turn, guarantee the validity and protection of the aforementioned freedoms. Therefore, the realization that the conceptual classification embodied by the ICCPR and the ICESCR tended to undermine the interconnection and interdependency of rights, pushed scholars to pursue a different approach to the taxonomy of rights. Indeed, one of the most popular, and yet questioned, approaches to the taxonomy of human rights that emerged after the Cold War era is that of the “generations of rights”. Karel Vasak, a Czech jurist, 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).

Figure 3: London Black Lives Matter Protests. (Unuabona, E. A. 2020)

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).

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.

Figure 4: Civil rights march on Washington, D.C. Film negative. (Warren K. Leffler, 1963).

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). 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. Indeed, while the aforementioned classification proved itself to be effective in the conceptualization and extension of human rights beyond the purely-western interpretation of rights, it is still limited because it creates artificial subdivisions and compartmentalizations of human rights (Mubangizi, 2004). Such compartmentalization could potentially erode the notions of indivisibility, universality, and interdependence that characterize the doctrine, fundamentally constricting human rights to rigid definitions and divisions. Therefore, although classifying human rights could represent a useful tool to promote further analysis and growth in the field, 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.

Bibliographic Sources

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Visual Sources

Cover image: Zhyhar, H, (2021). Fighting for freedom. https://unsplash.com/photos/XzsSg0hdXpQ

Figure 1: Deutsch, R. J. (2020). Black Lives Matter Flag Richmond. https://unsplash.com/photos/lZhnckMx15M

Figure 2: Tyson, J. (2021). Article 25 UDHR Poster. https://unsplash.com/photos/H1xbqUBaM_0

Figure 3: Unuabona, E. A. (2020). London Black Lives Matter Protests. https://unsplash.com/photos/72doRdFx-Lo

Figure 4: Warren K. Leffler, (1963). Civil rights march on Washington, D.C. Film negative. https://unsplash.com/photos/WzPxmB_tRlw