Putting to rest the Three Generations Theory of human rights

by Steven L. B. Jensen, Researcher at the Danish Institute for Human Rights and Geneva Blog, Blog, By invitation, International human rights institutions, mechanisms and processes

The notion of three generations of human rights has endured for 40 years. But it has no solid historical or analytic basis, and it obscures rather than clarifies the relationship between rights.

The so-called ‘Three Generations Theory of Human Rights’—known for dividing human rights into three separate generations based on (1) civil and political rights; (2) economic, social and cultural rights; and (3) collective or solidarity rights—recently turned 40.

But is this an anniversary to celebrate?

In November 1977, Karel Vasak, UNESCOs legal advisor and distinguished human rights scholar, wrote an article for the UNESCO Courier, introducing the idea of three generations of human rights. The theory gained traction among researchers and practitioners and became part of the standard vocabulary describing the history and contents of the human rights framework. Despite its many flaws, it continues to be referenced in such flagship journals as Human Rights Quarterly as a relevant analytical framing for the study of human rights.

In the 1977 article, Vasak credits the UNESCO Director-General Amadou-Mathar M’Bow from Senegal with creating the term ‘third generation of human rights.’ It was meant to capture a new emphasis on the rights to development, peace or a healthy environment. Originally intended as a policy formulation addressing contemporary developments, it instead gained traction as a categorization of alleged historical-analytical relevance. This is clear insofar as Vasak had to invent a first and second generation to fit his director’s framing. ‘Categories’ became ‘generations’ with no acknowledgement of the very different connotations carried by these terms.

Perhaps the most glaring flaw with the theory is the unclear time frame. Vasak presented no arguments or explicit timeframe to contextualise the generational concept. He originally used a 30-year span dating back to the 1948 Universal Declaration, followed by the two Covenants from 1966. This version of the three generations theory was based on a post-1945 framing. Two years later, Vasak modified the theory by linking the three generations to the French Revolution’s three concepts of Liberté, Egalité, and Fraternité, thus backdating it another 150 years. This re-cooking of the theory should have rung alarm bells.

Another significant problem emerges in the theory’s promotion of the hierarchy of human experience—placing French and American historical experiences as the defining features of what was always a transnational story. Further, the theory gives sole privilege to the normative dimensions of human rights, placing them apart from wider histories of struggles and contestations and ignoring socio-political developments elsewhere. Other histories are made subservient to French Revolution framings and experiences.

This is problematic in itself but becomes even more so when — as historians of the French Revolution Charles Walton and Dan Edelstein are emphasising in their research — socio-economic rights were themselves part of the human rights contested during the French Revolution. The fact that these rights were not affirmed in various Declarations does not mean they were absent or irrelevant. It would be writing a form of victor’s history if human rights research only captured the normatively affirmed dimensions of its own history. Constitutionalism does not fully capture the ‘condition humaine’ and we should not fool ourselves into thinking so. The Three Generation Theory of human rights unfortunately veers in that direction.

The theory also fails to recognize that the delineations between the categories have historically been much more porous than regularly understood. These criticisms are not just the concerns of historians but are also reflected in recent critiques by scholars from other disciplines. Legal scholar Patrick Macklem writes that the analytical categories that sort human rights into generational conceptions ‘do not capture their legal nature and character’ and ‘fail to appreciate what is common to all human rights in international law.’ Political scientist Daniel J. Whelan writes that the ‘problem with the generations approach is that it permanently categorizes rights, not only by fixing the categories in history but also by finding within each generation incompatible philosophical sources of inspiration.’

The theory appears to have supported two political dynamics. It promoted the third generation ‘collective’ rights agenda pushed by a number of UN member States to little actual benefit and obscuring existing human rights legal obligations. In parallel, the Three Generations Theory gave an ideological underpinning to the notion that a historical chasm and substantive divide existed between civil and political rights on one side and social and economic rights on the other. A theory that pulled these rights apart was politically useful in the emerging neo-liberal age of the 1980s with its Cold War backdrop. This may help explain why the generation language has endured. However, as a result certain rights were privileged over others and social and economic rights were side-lined to the detriment of both individuals and states.

That said, the theory is not just unhelpful and obsolete. It is a misrepresentation which has undermined historical complexity, excluded other geographies from the evolution of human rights and helped instil a hierarchy of rights which has nurtured analytical complacency and over-simplification. In doing so, the theory has caused significant conceptual damage to our understandings of human rights in scholarship and practice. Its wide dissemination may indicate that human rights as a field of practice is too easily prone to certain fashions and superficial forms of thinking.

The Three Generations Theory of Human Rights was a product of its time and not an actual theory of history. Human rights deserves better histories. Rather than a celebration, this anniversary is more deserving of a requiem.

Steven Jensen is a Researcher at the Danish Institute for Human Rights. He has recently published the book The Making of International Human Rights: The 1960s, Decolonization and the Reconstruction of Global Values (Cambridge University Press 2016). He is currently working on a history of economic and social rights after 1945.

Feature photo: Feature photo: The United Nations General Assembly Building – This picture shows the delegates’ area in the plenary hall of the Assembly building, as seen from the public galleries. 1/Oct/1952. © UN Photo/MB licensed under CC BY-NC-ND 2.0.

This article first appeared on openGlobalRights, and has been reproduced with their kind permission.

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