The Coming of Communitarian Rights: Are ‘Third-Generation’ Human Rights Really ‘First-Generation Rights?
| Published date | 01 December 1998 |
| DOI | 10.1177/135822919800300302 |
| Author | Satvinder Juss |
| Date | 01 December 1998 |
International Journal
of
Discrimination and the Law,
1998,
Vol.
3,
pp. 159-180
1358-2291/98
$10
©
1998
A B Academic Publishers. Printed
in
Great Britain
THE COMING OF COMMUNITARIAN RIGHTS: ARE
'THIRD-GENERATION' HUMAN RIGHTS REALLY
'FIRST -GENERATION RIGHTS?
SATVINDER JUSS*
ABSTRACT
This article considers the limits
of
Western rights discourse in relation to the devel-
oping world, with a particular focus on Africa, and argues that the rights debate
is
ideologically driven, with its emphases on 'first-generation' civil and political
rights. For the former European colonial territories, which comprise much
of
the
developing world, it is the so-called 'third-generation' rights
of
communal solidar-
ity and national development that are
of
paramount importance. This article argues
that human rights are socially constructed, bearing little relation to the physical
world, and that the history
of
international human rights evolution -predicated on
parity, equity and justice on
a.
universal scale -has now come full circle to
demand recognition
of
'third-generation' rights
as
equally important rights on par
with 'first-generation' rights in the West.
What exactly are
'third
generation solidarity rights'? And, are they
really qualitatively different from other kinds
of
human rights? Who,
in fact, decides whether rights are first generation, second generation,
or
third generation? The question
of
what we mean
by
rights is
important because
Law
is no longer evaluated
just
in terms
of
its
functional capacity. More and more, its ultimate standard is
judged
in
terms
of
its protection
of
individual human rights. But, what about
rights in the context
of
Community? In this article, I hope to show
that the rights discourse is ideologically driven and that talk
of
rights
as 'first'
or
'second'
or
'third generational' is actually damaging for
the developing world. Indeed, I would even argue that
'third
genera-
tion rights' deserve to be seen as 'first generational' because for
much
of
mankind they are the only rights that are
in
fact achievable.
Consequently, I argue here that the Right to Development by a com-
munity is one
of
the most basic
of
all rights without which all other
human rights are precarious. I will begin by looking first at the cat-
egorisation
of
rights as rights.
It is said that '[J]ust as the British sociologist T.H. Marshall
*Barrister, formerly Human Rights Fellow at Harvard Law School
160
characterized the 18th century as a century
of
civil rights, the 19th
as that
of
political rights and the 20th as that
of
social rights, so too
have some commentators over the past two decades
put
forward
claims for the recognition
of
the new rights, in particular a category
known as the
"third
generation
of
solidarity
rights"
'.
This suggests
that the development
of
human rights is to
be
understood under a tri-
partite ranking order. As such, it implies that '[B]y analogy with the
slogan
of
the French Revolution, these rights have been said to corre-
spond to the theme
of
Fraternite, while first generation
of
civil and
political rights correspond with Liberte and second generation eco-
nomic and social rights with Egalite'. The pioneering exponent
of
third generation human rights has been Karel Vasak whose
'list
of
solidarity rights includes
"the
right to development, the right to
environment, the right to the ownership
of
the common heritage
of
mankind and the right to communication''.'
1
I suggest that this is unhelpful in the context
of
developing non-
western societies because it implies that 'first-generation' human
rights are so-called because they were the first to be discovered and
the first to
be
realised by mankind. Yet, the bulk
of
mankind in the
developing world still knows no rights
of
this kind and when they
think
of
human rights they do so in a decidedly so-called 'third-
generational' sense in terms
of
food, water and shelter. In 1991 the
United Nations Development Programme's Human Development
Report observed the plight
of
the developing world. In Africa two-
thirds
of
the people lack access to safe water. Less than
half
the chil-
dren attend primary School. While we talk
of
human rights in the
West, Africa is a shameful example
of
absolute poverty
on
our
planet. But, it is not just Africa. Even in the booming economies
of
East and Southeast Asia, half the people still lack access to safe
water and basic health care.
Of
the world's current population
of
5-3
billion, over one billion live in absolute poverty; some 180 million
children, one in three, suffer from serious malnutrition; and one and
a
half
billion are deprived
of
primary health care. Nearly three mil-
lion children die each year from immunizable diseases. About
half
a
million women die each year from causes related to pregnancy and
childbirth.
2
The
failure to recognise the Right to Development as a first and
fundamental right
of
mankind in the West has meant, not only that
the rights discourse is fundamentally misconceived for these popula-
tions, but that it is discriminatory on the world stage because it gives
primacy to certain kinds
of
rights as against others.3 Consequently,
Western rights discourse sees the Individual as the bearer
of
rights
and not the Community as the bearer. This can impede the progress
of
societal development around the world. This aspect
of
the rights
To continue reading
Request your trial