1. Foreword: The generational Changes in Basic Human Rights
Traditional conceptions of basic human rights are based on the political philosophy of liberal individualism and the economic and social doctrine of laissez-faire. Such conceptions stress a belief that people’s motivation in entering into social contracts and founding states is to protect their rights before the state, providing themselves with basic human rights. Therefore, they propose that a state’s responsibility lies in guaranteeing the freedom from interference of its citizens’ basic human rights, and moreover, an active effort to realize these rights. The embodying of these human rights consists of various types of negative liberties afforded as basic civil and political rights, such as the right to own property, freedom of speech, and freedom of person. The human rights thinking that originated in the 17th and 18th centuries’ enlightenment movement are represented by the Declaration of Independence of the United States of America and the French Declaration of the Rights of Man and of the Citizen. In the historical contexts, discussions of basic human rights are considered domestic legal issues in nation-states, particularly constitutional ones. The international system for protection of human rights is in fact founded on “the right to protect citizens abroad’ and “humanitarian interference.” These measures with their national imperialistic overtones do not possess universal support.
The liberal individualist conceptions of human rights has been fiercely criticized by socialist thinkers, who believe that if human rights cannot be given a common material basis in society, providing the subjects of human rights capability to act as true equals, then they will inevitably become a legal tool of the bourgeoisie, by dominating the proletariat class to protect their own class interests. Therefore, socialists emphasize the state's role in actively guaranteeing the economic, social, and cultural position of its citizens—in particular, workers, women, minorities, and all other disadvantaged individuals. Weimar Constitution in Germany and Declaration of Rights of the Working and Exploited People in Russia best represent the results of the socialist revolution. As for capitalist states, their roles changed from watchman states to welfare states, and conceptions of human rights shifted from first-generation negative rights of protection against state intervention to second-generation positive rights for demanding state welfares, with the provisions for various types of rights to benefit or social rights like right to work and right to existence.
In view of the ineffectuality of the established international system for protecting human rights against various violations during the Second World War, The President of the United States of America Franklin D. Roosevelt and British Prime Minister Winston Churchill were the first to link the objectives of their two countries’ war of resistance to international human rights demands, producing the Atlantic Charter in August 1941. This document called for restoration of national sovereign rights and self-government, as well as the realization of a free life for all the world’s people. On January 1, 1942, twenty-six nations assented to the Declaration by the United Nations, expressing subscription with the ideals of the Atlantic Charter. In forming the United Nations, each of the Allies gave special thought to how to achieve “international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all”. A provision from Paragraph 3 in Article 1 of the United Nations Charter foresaw the trend toward internationalization of the human rights issue emerging after the War. The United Nations, and its subordinated organizations of human rights protection, played an active role in international oversight and support work. Contemporary human rights issues in various countries consequently superseded the constitutions of respective countries, and took on a supranational character. In addition, as the technological revolution in human society is giving rise to ever more complex international relations, deepening the level of global interdependence, it is difficult for a single country to fulfill its obligation to protect human rights on its own. For its part, the international community will not easily tolerate any individual country's human rights violations. Development trends in contemporary mechanisms for protecting human rights show that these mechanisms must in the final analysis depend on international cooperation to jointly underwrite their application and to resolve problems thus arisen.
The Senegalese jurist Keba M'Baye, in his monograph on the rights to development “Le Droit du Developpement comme un Droit de l'Homme” in 1972, was the first to point out this trend in contemporary human rights. However, the first to make the concept of so-called "third-generation human rights" well known was French jurist Karel Vasak, former director of the United Nations Educational, Scientific and Cultural Organization (UNESCO)'s Division of Human Rights and Peace. In November 1977 at UNESCO, in a speech commemorating the thirtieth anniversary of the passing of the Universal Declaration of Human Rights, Vasak summarized the development of international human rights and made first mention of the concept of third-generation human rights. He pointed out that third-generation human rights are those born to the obvious brotherhood of men and their indispensable solidarity, and provide that “everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized.” Vasak made an analogy to the three normative themes of the French Revolution—freedom, equality, and fraternity—to differentiate the basic values embodied by three generations of human rights. First-generation human rights concerned the value of liberty, used to counter the state, and are inherent rights. Second-generation human rights laid emphasis on equality, making demands on the state’s positive duties, and are creditors’ rights. Third-generation human rights focus on fraternity, and can be termed under the generic heading of rights to solidarity. In all, Vasak mentioned five related rights—the right to development, the right to peace, the right to environment, the right to the ownership of the common heritage of humankind, and the right to communication.
The greatest distinction between third-generation human rights and the two earlier generations is that third-generation human rights superseded the scope of national constitutions. Third-generation human rights are no longer a matter of the relationship of people to their respective states, nor are their subject individuals or minority groups per se. Rather, the subject of third-generation human rights is people taken as a whole, with their social solidarity—typically, the people of a country. Therefore, third-generation human rights are not traditional human rights of the individual, but a type of collective rights. Correspondingly, the nature of these rights entails their debtor, not being a single country, but all countries in the world and international organizations, led by the United Nations. The issue of third-generation human rights is therefore mainly situated in the realm of international human rights laws that supersede the constitutions of individual states. However, a complication is that international cooperation is deeply tied to international relations. With the crumbling of Cold War structures imposed between East and West, there still remain poverty and wealth gaps between the world's South and North nations, as well as regional conflicts. The realization of solidarity rights has always had restrictions imposed by the objective outer structure, and nations of multi-ethnicities must cope with the diversity of their populations with even more integrity—to say nothing of the fact that some of these ethnic minorities may be the subjects of these third-generation human rights. The question on how to define the extent of the affected groups as a subject and ensure the consistency of their consciousness of these rights must take into consideration restrictions imposed by the subjective inner structure, as well as the complex links to national sovereignty issues. Despite this large number of structural restrictions, the new system of collective human rights for people as a whole is gradually taking shape under the leadership of the United Nations, making it impossible for us to ignore their actual existence. The present article, in acknowledgement of this fact, will below attempt to further explore a theoretical understanding of third-generation human rights—people’s human rights.
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I thank to Professor Hsu, Chih-Hsiung for teaching and suggesting in his seminar at National Taiwan University, Graduate Institute of Law in 1998, and Master Wang, Hui-ying for helping me to translate this paper from Chinese to English sufferingly.
First written in 1998, (Rewritten in March 2002)