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Re-Appraising the Significance of ‘Third-Generation’ Rights

in a Globalized World

Dustin N. Sharp*

Writing in 1990, Louis Henkin triumphantly proclaimed human rights to be ‘the idea of
our time.’1 If such optimism was warranted twenty-five years ago, buoyed as it may have
been by a sense of the ‘end of history,’2 the continued relevance of that idea in an era
where globalization has radically altered the landscape in which it was created warrants
careful reflection.3 Not only have rights not always received the ‘universal acceptance’
that Henkin optimistically sounded,4 but the gap between the human rights regime and
some of the most pressing humanitarian issues of the twenty-first century appears to be
growing. Problems of radical poverty and inequality, economic violence5 and global
warming and ecological collapse often seem to elude protections of the dominant, liberal-
legalist human rights regime. At the same time, with a dramatic increase in the number
and power of transnational corporations, together with the influence wielded by
international organizations such as the World Bank, the International Monetary Fund and
the World Trade Organization (WTO), power in a globalized world has become less
state-centric, less democratic and more diffuse. In many instances, this has served to
reduce the policy autonomy of governments, particularly in the Global South, to address
problems such as poverty.

*
Assistant Professor, Joan B. Kroc School of Peace Studies, University of San Diego,
USA. Email: dsharp@sandiego.edu
1
Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990), p. ix.
2
See generally Francis Fukuyama, The End of History and the Last Man (New York:
Avon Books, 1992).
3
See Tony Evans, ‘Universal Human Rights in the Global Political Economy’, in Human
Rights; The Hard Questions, Cindy Holder & David Reidy (eds.) (Cambridge:
Cambridge University Press, 2013), p. 179.
4
Henkin, The Age of Rights, p. ix.
5
As used here, the term ‘economic violence’ clearly echoes Galtung’s notion of
‘structural violence,’ but with at least one very important distinction. Galtung conceived
of structural violence as being essentially impersonal, indirect, and unintentional as
compared with literal physical violence. See, Johan Galtung, ‘Violence, Peace, and Peace
Research’, Peace Research 6(3) (1969), 167-191. In contrast, economic violence—
ranging from corruption and plunder of natural resources to the lopsided trade rules that
underpin the international economic order and structural adjustment programs imposed
the International Financial Institutions—cannot be characterized in the same way, and is
in some ways more akin to direct physical violence than true structural violence.

Electronic copy available at: http://ssrn.com/abstract=2635236

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For the most part, these changing dynamics have not been met with a
corresponding evolution in global normative and institutional accountability mechanisms.
We then end up with a global governance not entirely without governments, but without
the requisite checks and balances required to serve as a ‘gentle civilizer of
globalization.’6 With these challenges in mind, even if one does not believe, as has been
suggested, that Henkin’s ‘Age of Rights’ is entering into its twilight or ‘endtimes,’7 it is
nevertheless incumbent upon each generation to re-appraise the relevance of the human
rights regime to the thorny social justice issues of its own time, and to adapt things where
they are found wanting.
One of the problems with Henkin’s vision of human rights is that it appears to
assume a rather one-directional narrative of progress. Seen through these optics, rights
are a means by which the downtrodden use the power of law to curtail the various
pathologies of state power, re-negotiating the social contract to allow for ‘better
standards of life in larger freedom.’8 While the promise of human rights to tame power is
certainly an important part of the story, overlooked in this conception is the extent to
which human rights law is and always has been a terrain for moral, legal, political and
ideological struggle, representing both the ‘power of law’ as well as the ‘law of power.’9
Thus, if the law, including human rights law, may at times operate as a check on abuses
of power, it may also serve to legitimize the violence of the state—allowing, for example,
certain forms of state sanctioned killing and not others, certain forms of discrimination
and not others, etc.10 By focusing primarily on physical violence meted out by the state,
human rights law may also render largely invisible and legitimize other forms of violence,
including economic and structural violence, not easily captured within the four corners of
its legal cosmovision. Therefore, if human rights law is occasionally subversive, it is also
the product of dominant power relations. When the line between the law’s redemptive
power and its service to power becomes too thin, the perceived legitimacy of the human
rights regime and its ability to constrain power grows dimmer.11

6 See Marttii Koskenniemi, The Gentle Civilizer of Nations; The Rise and Fall of

International Law 1870-1960 (Cambridge: Cambridge University Press, 2004).

7
See Stephen Hopgood, The Endtimes of Human Rights (Ithaca, NY: Cornell University
Press, 2014).
8
Universal Declaration of Human Rights [UDHR], New York, 10 December 1948, GA
Res. 217A (III), UN Doc. A/810 at 71 (1948), Preamble.
9
Terrence E. Paupp, Redefining Human Rights in the Struggle for Peace and
Development (Cambridge: Cambridge University Press, 2014), p. 257.
10
Jeanne Woods, ‘Theorizing Peace as a Human Right’, Human Rights & International
Legal Discourse 7 (2013), 180.
11
See Thomas M. Franck, The Power of Legitimacy among Nations (New York: Oxford
University Press, 1990), 24-26.

Electronic copy available at: http://ssrn.com/abstract=2635236

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These dynamics—the two faces of human rights law—are reflected in the

historically marginal status of economic and social rights, together with the fate of the
rights to development, peace and a healthy environment. Many of these so-called ‘third-
generation’ rights—the right to development in particular—have been met with a degree
of hostility and derision in the liberal West, 12 even while their moral and legal
significance in the Global South are often taken for granted. While their sun initially rose
in 1970s and 1980s, this proved to be a false dawn. With the ascendency of neoliberalism
and globalization as both an ideology and a process, third-generation rights have, in
recent years, been largely pushed to the margins.13 While the Global North can take
much of the blame for the seeming demise of third-generation rights as an ascendant
force, their story and fate is not as simple as a clean political and ideological division
between the West and the rest. Progressive understandings of the right to development—
understandings that might disturb dominant power interests in North and South—have
been undermined by governments worldwide, and constitute a vivid illustration of the
tension between the power of law and the law of power. Yet whatever the cause, the
failure of these rights to take stronger root forces us to ask hard questions about the
politics and ideology of the human rights regime, as well as its relevance to the problems
and suffering of a twenty-first century humanity in a globalized world.
In this chapter, I will examine the history, status and possible future of the right to
development (R2D) and the right to a healthy environment (R2E) in particular.14 I will
argue that renewed engagement, debate and action (particularly from the Global North) is
both timely and essential if we are—to update Henkin’s famous phrase—make human
rights ‘the idea of our [globalized] time.’ Renewed engagement is critical for at least
three reasons. First, because it has become ever clearer that in the twenty-first century,
the R2D and the R2E are true ‘survival rights,’ essential both to our collective ability to
respect, protect and fulfil earlier generations of rights, but also critical in and of
themselves to address threats to human security exacerbated by globalization. Second,
because the R2D and the R2E challenge the traditional narrow boundaries of the
mainstream conception of human rights—expressing more expansive notions of rights
holders, duty bearers and territorial obligations—the questions they raise are critical to
the future of the human rights regime more generally and can serve as the crucible in
which some of the dilemmas arising out of human rights in a globalized world might

12
See, e.g., Jack Donnelly, ‘In Search of the Unicorn: The Jurisprudence and Politics of
the Right to Development’, California Western International Law Journal 15 (1985), 473.
It should be noted that the North-South or East-West divide has been less salient in the
case of the right to a healthy environment than for rights to development and to peace.
13
This is not to say totally abandoned, as evidenced by on-again, off-again efforts within
various rooms and corridors of the United Nations Human Rights Commission.
14
For reasons of space, I will not delve into the right to peace or other third-generation
rights in any degree of detail.

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begin to be reconciled. Finally, forging a greater North-South consensus on the meaning

and status of the R2D and the R2E might take us one step further towards a world in
which human rights are perceived as a shared global project, rather than a largely western
or northern one.
In sum, I will argue that if further development of and acceptance of these rights
as ‘real rights’ is not without challenges, their effective dismissal in many quarters during
previous decades represented a wrong turn for the international human rights regime and
movement as a whole. While taming power in times of globalization is a task with many
dimensions, generating a stronger and more widely shared commitment to the realization
of third-generation rights should be an important part of the landscape.

History & Status of Third-Generation Rights

In 1977, Karel Vasak published an essay in the UNESCO Courier in which he

characterized international human rights in terms of ‘three generations.’ 15 The ‘first
generation’ comprises civil and political rights as reflected in the International Covenant
on Civil and Political Rights (ICCPR)16 such as freedom of expression and the right to be
free from torture. The ‘second generation’ involves economic and social rights now
associated with the International Covenant on Economic, Social and Cultural Rights
(ICESCR), 17 such as rights to education and health. Vasak then identified a ‘third
generation’ of rights, which he called ‘solidarity rights,’ including rights to peace,
development, a healthy environment and the right to ownership of the common heritage
of mankind. Vasak associated each of these ‘generations’ with the motto of the French
Republic, namely liberté, egalité, and fraternité (solidarity) respectively. In a later essay,
Vasak further associated each generation or wave of rights with periods of history, with
the first wave said to arise out of the French revolution, the second wave out of the
Russian revolution of 1917, and the third wave out of ‘the emancipation of colonized and
dominated peoples’ in the mid-twentieth century.18
While Vasak’s concept of generations has been consistently perpetuated in
international law scholarship, it has also been controversial for a number of reasons.19

15
Karel Vasak, ‘A 30-Year Struggle’, UNESCO Courier, November 1977, 29.
16
International Covenant on Civil and Political Rights, New York, 16 Dec. 1966, in force
23 Mar. 1976, 999 UNTS 171.
17
International Covenant on Economic, Social and Cultural Rights, New York, 16 Dec.
1966, in force 3 Jan. 1976, 993 UNTS 3.
18
Karel Vasak, ‘Pour une troisème generation des droits de l’homme’, in C Swinarski
(ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles
(ICRC & Nijhoff, 1984), p. 837.
19
See, e.g., Patrick Macklem, ‘Human Rights in International Law: Three Generations or
One?’, London Review of International Law 3(1) (2015), 61-92.

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Unlike real generations, generations of rights do not of course replace each other.
Moreover, to the extent they are associated with the Universal Declaration of Human
Rights (UDHR) or the subsequent Covenants, so-called first and second generations are
actually contemporaneous. There is also the problem of a potential hierarchy implied by
the first, second and third-generation terminology. On the other hand, abandoning the
term ‘third-generation’ entirely begs the question of suitable alternatives. While some
may prefer “solidarity rights,” one could object to this alternative on the grounds that all
generations of rights can be said to require a certain amount of solidarity for their
realization, not just the third generation. Thus, for example, the right to self-
determination, which can be seen as a collective, group or solidary right akin to other
third-generation rights, is actually set forth in both the ICCPR and ICESCR.
Yet if differences between the various generations are not as crisp as suggested by
Vasak’s typology, third-generation rights can nevertheless lay some claim to
distinctiveness in terms of their historical genesis and conceptualization. In addition, if
the hierarchy suggested by the generational terminology rubs partisans of second and
third-generation rights the wrong way, it may said to accurately reflect to comparative
marginalization of those rights in mainstream discourse and practice. In this light, one
might argue for retention of the “third-generation” label as a form of subversive
appropriation, akin to legal scholars from the Global South who have mobilized under
the banner of TWAIL (‘Third-World Approaches to International Law’).20 For these
reasons, and for want of suitable alternatives, the generational terminology is retained in
this chapter.

The Right to Development: a Brief History

Unlike earlier generations of rights, most third-generation rights do not have a long
historical pedigree, and did not benefit from a lengthy period of normative incubation and
debate within (or outside of) the United Nations prior to being declared as rights, giving
some the impression that they have been ‘conjured up’ out of nowhere.21 Of course, there
is also a strong argument that international human rights of all generations arose
‘seemingly from nowhere,’ gaining serious legal and institutional currency only in the
1970s.22 But as Philip Alston has noted, the rushed and flawed process for the

20
See Makau Mutua and Antony Anghie, ‘What is TWAIL?’, Proceedings of the Annual
Meeting (American Society of International Law) 94 (2000), 31-40.
21
See generally, Philip Alston, ‘Conjuring up New Rights: A Proposal for Quality
Control’, The American Journal of International Law 78(3) (1984). 607-621.
22
See Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard
University Press, 2010), p. 3.

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formulation and proclamation of many third-generation rights may help to explain, at

least in part, some of the resistance they have faced.23
First popularized by Senegalese jurist Kéba M’Baye in 1972, and then recognized
by the United Nations Commission on Human Rights in 1977, the right to development
(R2D) was enshrined as an international human right in the Declaration on the Right to
Development in 1986.24 In a move that expressed its hostility to economic and social
rights more generally, the Regan administration famously cast the solitary lone vote
against the Declaration (with many European donor states choosing to abstain).25 The
R2D was subsequently unanimously endorsed at the World Conference on Human Rights
in Vienna in 1993, and has been reaffirmed and elaborated upon in resolutions and
publications of various organs of the United Nations ever since.26
Aside from its recognition in one regional convention, the African Charter on
Human and Peoples Rights,27 and several national constitutions,28 the R2D remains ‘soft
law’ and its periodic reaffirmation does little to obscure a deep and abiding debate about
its meaning and significance. Nor has the adoption of the Declaration served to erase the
North-South frictions that gave rise in the 1970s to proposals for a New International
Economic Order (NIEO) that would include a more equitable distribution of resources. If
anything, these proposals were rebutted by the Washington Consensus, structural
adjustment programs, and the WTO, making a gospel out of deregulation, privatization,
elimination of subsidies, and free trade. If the International Financial Institutions now
preach only a chastened version of the Washington Consensus, it is clear that
international law has yet to create a level playing field for the Global South, as issues

23
Philip Alston, ‘Conjuring up New Rights’, 613.
24
Declaration on the Right to Development, New York, 4 December 1986, GA Res.
41/128 (Annex), UN Doc. A/41/53 (1987).
25
Bonny Ibhawoh, ‘The Right to Development: The Politics and Polemics of Power and
Resistance’, Human Rights Quarterly 33 (2011), 86.
26
The culmination of much of this norm development can be found in Office of the
United Nations High Commissioner for Human Rights, Realizing the Right to
Development: Essays in Commemoration of 25 Years of the United Nations Declaration
on the Right to Development, HR/PUB/12/4 (2013).
27
African Charter on Human and People’s Rights, 27 June 1981, in force 21 October
1986, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Art. 22. Though it does
note have the same ‘hard law’ status as the African Charter, the 2012 ASEAN Human
Rights Declaration also recognizes, in its Article 35, the right to development. See
Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration,
Phnom Penh, 18 November 2012.
28
Malawi, Benin, the Central African Republic, the Democratic Republic of the Congo,
Ethiopia, and Senegal. Both Ghana and Uganda include the R2D as a ‘directive principle’
of national policy.

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surrounding the global trading order, loan conditionalities and debt relief suggest all too
well. In short, this is not the world that early proponents of the NIEO and the R2D were
looking for.

The Right to a Healthy Environment: a Brief History

In comparison with the R2D, the R2E is less associated with a North-South cleavage,
even while its status under international law is significantly murkier. As with the R2D,
the R2E is not explicitly mentioned in the UDHR, ICCPR or ICESCR. While
environmental rights are provided for in two regional human rights conventions,29 a right
to a healthy environment is not recognized under international law, in either ‘hard’ or
‘soft’ form.30 There have been multiple opportunities for such recognition to take place
over the last forty plus years. At the 1972 Stockholm Conference on the Human
Environment, the United States actually proposed to cast environmental protection in
human rights terms (‘Every human being has a right to a healthful environment’),31 yet
this proposal was rejected in favour of language noting only that ‘man has the
fundamental right to . . . conditions of life in an environment of quality.’32 Twenty years
later, the 1992 United Nations Conference on Environment and Development (also
known as the Rio Summit, Rio Conference and Earth Summit), produced a declaration
that made scant reference to human rights, affirming only that ‘[human beings] are
entitled to a healthy and productive life in harmony with nature.’33 Yet another two
decades later in 2012, the outcome document to the Rio+20 Conference on Sustainable
Development reaffirmed many first and second-generation rights, and once again
affirmed the right to development, but when it came to a freestanding environmental right,
noted only that ‘some countries recognize the rights of nature in the context of the

29
These are the African Charter on Human and People’s Rights, Art. 24, and the
Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (‘Protocol of San Salvador’), San Salvador, 17
November 1988, in force 16 November 1999, OAS Treaty Series No. 69; 28 ILM 156
(1989), Art. 11. Though it does note have the same ‘hard law’ status, the 2012 ASEAN
Human Rights Declaration also recognizes, it its Article 28, the ‘right to a safe, clean and
sustainable environment.’
30
The only international human rights treaty to make explicit reference to aspects of
environmental protection is the United Nations Convention on the Rights of the Child,
New York, 20 November 1989, in force 2 September 1990, 1577 UNTS 3, Art. 24.
31
Dinah Shelton, ‘Environmental Rights’, in People’s Rights, Philip Alston (ed.)
(Oxford: Oxford University Press 2001), p. 194.
32
Declaration of the United Nations Conference on the Human Environment, Stockholm,
16 June 1972, UN Doc. A/CONF.48/14/Rev.1, 12 ILM 849 (1972).
33
Rio Declaration on Environment and Development, Rio, 14 June 1992,
A/CONF.151/26 (Vol I.) 8, 31 ILM (1992) 881.

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promotion of sustainable development.’34

As a result of this lacuna in international law, international lawyers working at the
nexus of human rights and the environment have often sought either to use procedural
rights provided for under international human rights law (such as rights to information
and participation) to effect environmental protections,35 or to derive environmental
protections from established rights to life, health and privacy.36 One of the limitations of
such approaches, of course, is that unlike a freestanding R2E, if we require individuals to
wait until the environment has degraded to the point where it seriously threatens the right
to (human) life, it may be too late for both people and their environment, assuming that
notoriously complex issues of causation can be worked out in the first place. Such
approaches to securing environmental protection are also unabashedly anthropocentric,
and may not protect the environment in the case of species loss, habitat loss or pollution
not deemed a threat to human life. With these clear weaknesses in internationally
guaranteed protections, it is worth noting that some kind of environmental duty is present
in nearly every national constitution adopted or revised in since 1970, though judiciaries
differ on whether the right is considered justiciable.37

Crosscutting Issues and Controversies with the R2D and the R2E
Human rights are part of a dynamic and adaptable tradition, and the existing treaties
express less monolithic coherence than a pluralistic and heterogeneous blend of values,
ideas and philosophies. It is perhaps then unsurprising that architects of the modern
international human rights system, including Eleanor Roosevelt, foresaw the inevitability
and importance of demands for new rights.38 Yet almost across the board, third-
generation rights have succeeded in generating more controversy and contentiousness
than consensus, and the R2D and the R2E are no exceptions.

34
Rio+20 United Nations Conference on Sustainable Development, Outcome of the
Conference, The Future We Want, New York, 27 July 2012, GA Res. 66/288 (Annex),
UN Doc. A/RES/66/288, para. 39.
35
Dinah Shelton, ‘Environmental Rights’, 198-213.
36
See, e.g., Melissa Fung, ‘The Right to a Healthy Environment: Core Obligations Under
the International Covenant of Economic, Social and Cultural Rights’, Willamette Journal
of International Dispute Resolution 14 (2006), 97-131; Sumudu Atapattu, ‘The Right to a
Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a
Healthy Environment Under International Law’, Tulane Environmental Law Journal 16
(2002-2003), 98-102.
37
Dinah Shelton, ‘Environmental Rights’, 236.
38
M. Glen Johnson, ‘The Contributions of Eleanor and Franklin Roosevelt to the
Development of International Protection for Human Rights’, Human Rights Quarterly 9
(1987), 36.

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At one level, this is hardly surprising. Every generation of rights has produced
controversy, including the very civil and political rights that Jeremy Bentham famously
described as ‘nonsense upon stilts.’ Also unsurprising, much of the historic opposition in
each era has often come from the dominant power interests of the day. Examples of this
can be seen in the fierce debates surrounding the right to self-determination in the 1950s
and 1960s, which many western lawyers saw as incoherent and non-justiciable, and the
opposition of conservative and neoliberal political interests in the United States to the
concept of economic and social rights.
However, if human rights are not static, and if trying to create new rights should
not be viewed as akin to rewriting the Bible or Koran,39 one must also surely
acknowledge, as the critics of third-generation rights are wont to do, that not everything
good or desirable is a right.40 The proliferation of rights claiming and framing in the
1980s and 1990s caused some to wonder whether rights talk had not become the
‘hegemonic discourse of emancipation,’ with too many activists trying to fit round pegs
better suited for the political and economic marketplace into the square holes of human
rights.41 One might look to the example of the World Tourism Organization’s proposal
for an internationally recognized ‘right to tourism’ as a particularly silly example of this
phenomenon.42 However, while proposals for new rights undoubtedly need some ‘quality
control,’43 the R2D and the R2E can hardly be said to fall into the frivolous category.
Indeed, given the suffering inflicted by radical poverty, inequality and environmental
devastation, it would not be going too far to say that we are dealing with true survival
rights that likely would have long been understood as preemptory norms of international
law were the guardians at the international legal temple forced to walk a mile of the shoes
of those deprived of them.
Nevertheless, even if the gravity of the underlying threats to human security is
recognized, one must confront charges that have dogged the R2D and the R2E that they
are hopelessly vague, non-justiciable, and unenforceable.44 As regards charges of
vagueness, even its staunchest partisans would be hard pressed to argue that the
Declaration on the Right to Development is characterized by an exuberance of legal
precision. Like so many documents produced by the United Nations, it is the result of
compromise and legal sausage making, and in some ways merely encodes rather than
reconciles the heterogeneous and contradictory impulses and political goals of its drafters.
Yet if mere vagueness were the test of whether a right ought to be considered a ‘real

39
Alston, ‘Conjuring up New Rights’, 609.
40
Donnelly, ‘In Search of the Unicorn’, 483.
41
See David Kennedy, ‘The International Human Rights Movement: Part of the
Problem?’, Harvard Human Rights Journal 15 (2002), 108-109.
42
Philip Alston, ‘Peace as a Human Right’, Security Dialogue 11 (1980), 322.
43
See generally, Philip Alston, ‘Conjuring up New Rights’.
44
See, ‘In Search of the Unicorn’, 483.

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right,’ then one is forced to acknowledge that many recognized rights whose status as lex
lata is beyond dispute—ranging from the right to be free from cruel, inhuman and
degrading treatment, to the right to education, to the right to self-determination outside of
the colonial context—appear almost hopelessly vague based on the text, and often also in
practice. And indeed, the same is true for the national constitution of the United States,
where phrases like ‘cruel and unusual punishment’ and ‘unreasonable searches and
seizures’ are still being worked out well over 200 years after the rights in question were
first articulated.
Many such ‘vague’ rights might well have been regarded as ‘non-justiciable’ if
we had not given judiciaries the chance to work though their meaning and applicability in
the context of actual concrete cases and controversies. Where such rare opportunities
have been presented in the case of third-generation rights, such as the SERAC case where
the African Commission on Human and People’s Rights found that Nigeria had violated
the right to a healthy environment under Article 24 of the African Charter, or the
Endorois case where the same Commission found that the government of Kenya had
violated the right to development under Article 22 of the African Charter, judiciaries have
risen to the task.45 One can also look to claims of non-justiciability surrounding economic
and social rights that have been steadily undermined by the work of the Constitutional
Court of South Africa as well as many others.46 Thus, one might say that claims of ‘non-
justiciability’ are in many instances more of a political and ideological construct and
argument than an objective fact.47
If we confront the question of the ‘non-enforceability’ of the R2D and the R2E,
there too one must acknowledge that this is a defect of almost all international human
rights law, which lacks a centralized judiciary and executive body. And as Lauterpacht
observed long ago, ‘the existence of a right and the power to assert it by judicial process
are not identical.’48 Otherwise, governments could always argue that unenforceability
undercuts the existence of a right by simply denying formal means of enforcement,
thereby conjuring away the basis for claims to the existence of the right itself. Thus, as
Jeanne Woods has noted, one should be wary of legal dichotomies such as legal/moral,
justiciable/non-justiciable, and enforceable/non-enforceable as they often operate to mask
prevailing power relations, pushing some issues of concern into the legal foreground, and

45
Decision Regarding Communication 155/96 (Social and Economic Rights Action
Center/Center for Economic and Social Rights v. Nigeria), Case No.
ACHPR/COMM/A044/1, 27 May 2002; Decision Regarding Communication 276/03
(Centre for Minority Rights Development (Kenya) and Minority Rights Group
International (on behalf of Endorois Welfare Council)/Kenya), 25 November 2009.
46
See generally Malcolm Langford (ed.), Social Rights Jurisprudence: Emerging Trends
in International and Comparative Law (Cambridge: Cambridge University Press, 2008).
47
Woods, ‘Theorizing Peace’, 198.
48
H.P. Lauterpacht, ‘The Subjects of the Law of Nations’, L.Q.R. 63 (1947), 455.

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others into the background, while asking us to imagine that such distinctions are naturally
occurring.49
To be clear, if rights are to be more than paper promises, concerns about
vagueness, justiciability are enforceability are hardly irrelevant. But in the case of the
R2D, for example, the underlying problem appears to be less that it cannot be concretized
or is not susceptible to judicial determination than the fact that the ‘international
community’ simply does not agree on the content of the right that is to be enforced. In
other words, debates about vagueness, justiciability and enforceability are often debates
about substantive content and consensus in drag. As Bonny Ibhawoh has pointed out,
many leaders in the global South have sought to use the R2D as both a sword and a shield,
claiming a collective right to challenge a hegemonic international economic system
controlled by the Global North, while asserting national sovereignty to maintain the
status quo at home,50 including by denying other human rights in the name of
development.51 Yet for many in the Global North, the R2D is understood to require
change in national-level governance in the South, including various ‘good governance’
and economic liberalization reforms, even as suggestions that changes in the international
order might also be required are steadily resisted. Thus, in many ways the impasse in the
debate surrounding the R2D has served to insulate and legitimize status quo power in
both North and South.52
The problem, of course, is that change in both domestic and international orders is
required if the R2D is to be realized, and finger pointing in both North and South can
hardly move the needle forward. The Declaration on the Right to Development clearly
contemplates that the right has both collective and individual dimensions, with positive
and negative obligations for a range of actors at the micro, meso and macro levels. Thus,
lost in both interpretations is a more balanced, yet also radical and counter-hegemonic
view that would see in the R2D both a means of challenging international barriers to
development—rigged trade rules, neoliberal economic orthodoxy and many others—and
the right of individuals to demand things from multiple levels of governance—
participation, transparency, lack of corruption, equitable access to the fruits of
development, and so forth.53 As will be discussed in the following section, the
implications of a broader view of rights bearers and duty holders are revolutionary from
the standpoint of mainstream human rights thinking and practice, yet vital not only to the
goals inherent in the R2D, but to the future of human rights in a globalized world as well.

49
Woods, ‘Theorizing Peace’, 181.
50
Ibhawoh, ‘The Right to Development’, 78.
51
Anne Orford, ‘Globalization and the Right to Development’, in People’s Rights, Philip
Alston (ed.) (Oxford: Oxford University Press, 2001), p. 133.
52
Ibhawoh, ‘The Right to Development,’ 79.
53
See Balakrishnan Rajagopal, ‘Right to Development and Global Governance: Old and
New Challenges Twenty-Five Years On’, Human Rights Quarterly 35 (2013), 899-900.

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Why Renewed Engagement with Third-Generation Rights Matters

It has now been almost thirty years since the Declaration on the Right to Development
was adopted and sadly, the R2E does not even yet have a declaration of its own to debate.
Yet while the legal and political stalemate over the status of these rights has persisted, the
pace of globalization has accelerated, generating both winners and losers to be sure, but
also altering the frameworks and power structures under which the human rights regime
initially evolved. In this section, I set forth my argument that renewed engagement with
third-generation rights, including the R2D and the R2E, is critical to the future of human
rights because: (1) they can help to address grave threats to human security in the
changing landscape of the twenty-first century; (2) they challenge traditional conceptual
boundaries of human rights law that may help push the field forward in ways better
adapted to a globalized world; and (3) forging greater consensus around the meaning and
significance of third-generation rights would help further a sense of human rights as a
shared global project.

Addressing Twenty-First Century Realities

Though a gross oversimplification, one could see the various generations of rights as a
sort of defence mechanism to some of the most pressing threats of the day: in first-
generation rights an effort to protect humans from the weight of the leviathan, the
potential tyranny of the state; and in second-generation rights a buffer against bare-
knuckled industrial capitalism. Following this line, the third generation might be seen to
address threats to collective human survival itself that seem to elude the protections
offered by earlier generations of rights: radical poverty and inequality, economic violence,
global warming and ecological collapse.
Of course, this is hardly a new claim, and indeed arguments that third-generation
rights were necessary to respond to ‘emerging threats’ were forcefully made during the
first wave of debates about these rights in the early 1980s.54 Yet, if anything, the
intervening years have only proved just how prescient those fears were, for the emerging
threats of the early 1980s are the realities of today: climate change, for example, is no
longer the abstraction that is was 35 years ago;55 fish stocks are dwindling, raising the
possibility of a ‘global collapse’ as soon as mid-century;56 species are being driven to
extinction at an unprecedented rate, with the Earth having lost half its wildlife in the last

54
Stephen Marks, ‘Emerging Human Rights: A New Generation for the 1980s?’, Rutgers
Law Review 33 (1980-1981), 440.
55
See Intergovernmental Panel on Climate Change, Fifth Assessment Report (AR5),
http://www.ipcc.ch/report/ar5/index.shtml.
56
Cornelia Dean, ‘Study Sees “Global Collapse” of Fish Species’, The New York Times,
3 November 2006.

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forty years;57 and the parade of horribles seemingly goes on and on. It goes without
saying that environmental collapse would have (and in fact is having) catastrophic effects
on human beings—particularly the most poor and vulnerable, undermining all of the
rights to which they are entitled under international law. If we take the infamous example
of oil extraction in Ogoniland in Nigeria, we see that that the environment itself can
become so degraded as to threaten enjoyment of rights to life and health; aggressive,
profit-driven development at any cost can cause environmental problems; and all of this
creates a political powder keg in which civil and political rights abuses are likely to be
rampant. Thus, all generations of rights exist in a tight nexus, can rightly be seen as
indivisible and must be pursued in harmony with each other.
Even with this, one could still argue, as many have, that third-generation rights
like the R2D are essentially synthetic rights that simply compile existing first and second-
generation commitments. Under this view, third-generation rights have little new to offer
when it comes to facing the challenges of twenty-first century globalization since the
undying harms are sufficiently captured by earlier generations of rights. While a fuller
response to this argument is provided in the following section, as an initial response, one
should note that the re-framing offered by newly articulated rights is important. Just as
the Pope’s 2015 encyclical helped some constituencies to understand climate change as
not just a scientific or political but a moral and spiritual question,58 the R2D and the R2E
help to situate the broad issue of human rights in context of poverty and planetary
survival, and simultaneously help to frame those issues as questions of justice rather than
charity or open-ended policy.
The re-framing that comes with understanding questions of development and the
environment as human rights issues might thus underscore the imperative of actually
doing something about them. Rights framing also helps to provide important directive
principles to policy by emphasizing that when it comes to pursuing solutions to
environmental problems, for example, there are limits to the economic cost-benefit trade-
off analysis that may have helped to create part of the problem the first place.59 It is
intriguing to imagine, for example, what a future round of climate change talks might
look like if the bargaining took place in the shadow of an internationally recognized
human right to a healthy environment. Or what might a future round of WTO trade
negotiations look like if the R2D were accepted by all as a ‘real right,’ requiring that all
international barriers to development be removed? If these seem like idealistic

57
‘The Earth Has Lost Half of Its Wildlife in the Past 40 Years, Says WWF’, The
Guardian, 30 September 2014.
58
Encyclical Letter Laudato Si’ of the Holy Father Francis On Care for Our Common
Home, 24 May 2015.
59
Stephen Gardiner, ‘Human Rights in a Hostile Climate’, in Human Rights; The Hard
Questions, Cindy Holder & David Reidy (eds.) (Cambridge: Cambridge University Press,
2013), 215.

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propositions, it is useful to recall that all human rights would have seemed equally
utopian as early as 70 years ago.
Finally, one should note that historically, giving meaningful content to rights has
depended more on the work of activists and their networks than government officials.
More explicitly articulated rights can be tremendously empowering to those suffering
deprivations, or advocating in these domains. Campaigners attempting to block action
based on violations of a freestanding R2E, for example, may be in a stronger position
than those today who are limited to trying to shoehorn environmental protections into
existing rights to life and privacy.

Adapting Human Rights to a Globalized World

The traditional human rights regime is based on a formally positivist conception of rights
as grounded in legal texts and a global order in which each state serves as the primary
duty bearer, with duties flowing to individuals within its territory. Violations can occur
though acts and omissions, with states having a duty to respect, protect and fulfil the
rights in question.
There are at least two problems with this narrow traditional view. First, if to some
lawyers a right is a right only when the United Nations says so in a treaty, we must
nevertheless acknowledge that, in the minds of many, rights still oscillate between
positive and natural law, the legal and the moral, political constructs and something
higher. It is the very fact that rights are grounded in both of these realms that accounts for
the power of Henkin’s ‘idea’ of human rights. Second, from the perspective of a rights
holder or rights claimant, it hardly matters whether it is a single state that does the
violating, a rapacious corporation, or a group of states acting collectively through the
World Bank. This is especially poignant when we consider that globalization has made a
mockery of the state-based foundation on which the rights regime was built, and a range
of actors and entities, many of them beyond the reach of any single state, now hold sway
over whether individuals will in fact be able to enjoy their internationally guaranteed
rights.60 Problems relating to development and the environment are, more than ever,
fundamentally trans-boundary dilemmas unrestricted to the confines of any one
individual nation state, both in terms of drivers and solutions. Thus, if actual enjoyment
of human rights is the goal, conventional positivist human rights law and discourse is in
many ways ill-suited the realities of a globalized world.61
In contrast, third-generation rights such as the R2D and the R2E generally
embrace more expansive notions of rights holders, duty bearers and territorial obligations,
asking us to take a broader and more ‘purposive’ approach to understanding the

60
Rajagopal, ‘Right to Development and Global Governance’, 895.
61
Ibhawoh, ‘The Right to Development’, 100.

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traditional positivist framework.62 Rights holders are therefore not predominantly

individuals, but include communities; duty bearers are not limited to the state acting
individually, but are extended to states acting collectively through international
organizations such as the World Bank and the WTO; and more expansive notions of
territorial obligations mean that all states have a collective responsibility to address rights
to development and to the environment, even where a policy decision taken in state A has
negative effects on rights holders who happen to live in state B. Responsibilities
transcend borders because threats to human rights transcend borders.
In this way, third-generation rights serve to capture not just the micro and meso,
but also the macro dimensions of harms, including the international and collective
dimensions of harms in ways that earlier generations of rights manage to do only
clumsily, if at all. This is important because traditional conceptions of human rights tend
to reflect a foundational assumption of an individual perpetrator. As Tony Evans has
noted, this is more than a question of individualism and communitarianism; rather it
represents a blindspot to the possibility that the cause of many violations may be rooted
in the larger socio-economic order itself, an order created and enforced by national and
global regulatory regimes.63 Thus, the R2E and the R2D force us to recognize that
pollution does not respect international boundaries and cannot be addressed solely at a
national or individual level; development can only happen with concerted international
and national efforts to eliminate barriers to development, including, to name only a few,
those created by the international trade regime, policy strictures of the World Bank and
the International Monetary Fund, and international money laundering that facilitates
corruption.
It might therefore be said that this more expansive conception of rights maps onto
the expansive realities of globalization, serving to remind us of aspects of human rights
protection that are ‘in danger of being forgotten and discarded,’ including individual and
collective rights, national and interstate behaviour, together with the ever increasing
importance of international organizations as architects of global governance.64 If the
expansiveness of third-generation rights raises hard questions about how to actualize
these extended concepts of rights and duties, these are questions worthy of renewed
debate. Such debates might examine, for example, the merits of further developing
radically extended conceptions rights holders and duty bearers, as opposed to or in
addition to an enhanced understanding of the duty of individual states no just to ‘respect’
the R2D and R2E in a more direct and limited sense, but to more robustly ‘protect’ their
inhabitants from actions taken by corporations, international organizations, and a host of

62
Adam McBeth, ‘What do Human Rights require of the Global Economy?’, in Human
Rights; The Hard Questions, Cindy Holder & David Reidy (eds.) (Cambridge:
Cambridge University Press, 2013), 154-162.
63
Evans, ‘Universal Human Rights in the Global Political Economy’, 183.
64
Anne Orford, ‘Globalization and the Right to Development’, 172.

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non-state actors that impact their ability to effectively enjoy such rights. In renewing this
discussion, third-generation rights might serve as the crucible in which the dilemmas and
limitations of human rights in a globalized world might be reconciled, or at least
confronted more seriously.

Furthering a Sense of Human Rights as a Shared Global Project

If Vasak was correct that first-generation rights arose in large part out of two bourgeois
revolutions (French and American), and the second generation arose out of a socialist
revolution, then third-generation rights, and particularly the R2D, represent in a sense an
attempt and an opportunity for the developing or ‘third’ world to make its own lasting
contribution to the human rights corpus. Such a contribution could be viewed to include
the substantive protections contained in Declaration on the Right to Development,
including a right to participation in development, a right to an equitable distribution of
the benefits of development, a right to removal of barriers to development—both
domestic and international—and so forth. However, in a broader sense this contribution
calls upon us to grapple with the deeper notions of shared responsibility and solidary
inherent in most third-generation rights, and to re-appraise the balance required between
liberté, egalité, and fraternité in the realization of all human rights.
Such notions might be seen to present a challenge to the more libertarian and
individualistic aspects of western ideology. Yet these ideas are hardly alien to the
established human rights cannon. The UDHR, for example, provides that ‘[e]veryone has
duties to the community in which alone the free and full development of his personality is
possible,’65 and that ‘[e]veryone is entitled to a social and international order in which the
rights and freedoms set forth in this Declaration can be fully realized.’66 The ICESCR
provides that economic and social rights must be progressively realized both
‘individually and through international assistance and co-operation.’67 Under the UN
Charter, all members have pledged to take ‘joint and separate action’ to promote
‘conditions of economic and social progress and development’ and ‘universal respect for,
and observance of, human rights.’68 Third-generation rights might therefore be seen as
partial elaborations of these established principles, which have otherwise been given
short shrift in international law.
Moreover, if expanded notions of duty and solidary create controversy in the
minds of some,69 grappling with the third-generation rights that embrace these

65
Universal Declaration of Human Rights, Art 29.
66
Ibid, Art. 28.
67
International Covenant on Economic, Social and Cultural Rights, Art 2(1).
68
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Arts.
55 & 56.
69
See, e.g., Carl Wellman, ‘Solidarity, the Individual and Human Rights’, Human Rights
Quarterly 22 (2000), 639-657.

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conceptions might, over time, help reconcile mainstream human rights with non-western
legal traditions because many of them contain a robust jurisprudence of rights and duties
unconstrained by the narrow western model.70 In this way, third-generation rights might
come to evoke notions of human rights as ‘hybridity,’71 and open the door to developing
a more heterogeneous, mosaic and cosmopolitan theory and praxis of human rights.
In the long run, a greater sense of shared authorship of the human rights corpus
has serious implications for human rights compliance across all generations of rights. As
Abdullahi An-Na’im has noted, ‘so long as there is a perception of exclusive western
authorship of the concept of human rights and its normative implications,’ the human
rights movement will not be effective.72 Similarly, if the human rights regime is not seen
as being relevant to the threats arising in a globalized world or otherwise less than fully
preoccupied with the concerns facing all of humanity, how should it be expected to
generate adequate ‘compliance pull’ and help create enthusiastic global ‘compliance
constituencies’? In this sense, re-appraising the significance of third-generation rights is
fundamentally about strengthening the legitimacy of the human rights regime as a global
project.
Many human rights lawyers appear to be stuck in a top-down, rights-as-law,
enforcement mind-set. From this perspective, the question of compliance becomes one of
strengthening formal human rights institutions and enforcement machinery with the aim
of endowing them with some teeth. While these are indeed important questions for the
future of human rights, we also have to think about how to create a sense of global
ownership and trans-civilizational legitimacy that may eventually lead to greater norm
internalization.73 As Jeanne Woods notes, maybe we should think less about enforcement
in a narrow legal sense, and more about holistic operationalization of human rights.74
While third-generation rights are no guarantee that any of this—whether enforcement or

70
See generally, Jason Morgan-Foster, ‘Third Generation Rights: What Islamic Law Can
Teach the International Human Rights Movement’, Yale Human Rights and Development
Journal 8(1) (2005), 67-116.
71
See generally, Rosa Freedman, ‘“Third Generation” Rights: Is There Room for Hybrid
Constructs within International Human Rights Law?’, Cambridge Journal of
International and Comparative Law 2(4) (2013), 935-959.
72
Abdullahi An-Na’im, ‘Human Rights and the Challenge of Relevance: The Case of
Collective Rights’, in The Role of the Nation-State in the 21st Century: Human Rights,
International Organizations, and Foreign Policy, Monique Castermans-Holleman et al
(eds.) (Leiden: Brill-Nijhoff, 1998), p. 7.
73
For a brief overview of the theory of transnational legal process and norm
internalization, see generally Harold Koh, ‘Transnational Legal Process After September
11th’, Berkeley Journal of International Law 22 (2003-2004), 337-354.
74
Woods, ‘Theorizing Peace’, 230.

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operationalization—can be achieved, they might nevertheless be seen as a critical

injection of ideas into a stale compliance debate.

Looking Forward: Conflicts and Synergies

Greater engagement with third-generation rights, including the R2D and the R2E is
hardly a panacea, and can be expected to generate, at least in the short term, further
conflict and hard questions. As is painfully clear, adoption of the Declaration on the
Right to Development did not indicate that consensus was achieved as to the meaning and
scope of the right, myriad subsequent re-affirmations of the Declaration notwithstanding.
At the same time, progress on R2D cannot be made unless the right is acceptable in North
and South, or at least until a greater degree of consensus is achieved.75
This will be no easy task. Third-generation rights are informed by but also
challenge dominant ideologies. They have been used by those in power, North and South,
to preserve the status quo, and all governments might consider that they have something
to lose from more progressive interpretations of the R2D. Thus, greater engagement with
and even acceptance of third-generation rights will not change the fact that they have
been and will continue to be a terrain for moral, legal, political and ideological
contestation. If the power struggle starts with whether the right ‘exists,’ it then continues
into skirmishes over interpretation and whether such a right should be ensconced in ‘hard
law’ form.
Rights can be framed narrowly or broadly, and the law’s redemptive power and its
service to power play out in complex ways in and through them. For example, the
international community might forge consensus on the existence on the R2E, but in ways
that are so anthropocentric as to only capture the proverbial tip of the (melting) iceberg of
environmental harm. The Global North might come to accept the R2D in more genuine
fashion, but in ways that reduce it to a narrow individual entitlement more in keeping
with other human rights.76 While such an interpretation might be useful for advocates
fighting local development policies or corrupt practices that inhibit development, it might
nevertheless fail to capture the broader collective and trans-boundary harms. One should
not therefore assume that the R2D and R2E will necessarily be synonymous with
‘economic justice’ and ‘environmental justice.’ Even if greater consensus is forged, it
will always be important to ask ‘whose development’ and ‘whose environment’ is really
being protected by the rights in question.
Yet another reason for more sustained engagement with third-generation rights is
that in forging greater consensus as to their content and scope, such rights need to be

75
Atapattu, ‘The Right to a Healthy Life’, 122.
76
Philip Alston, ‘“Peoples” Rights: Their Rise and Fall’, in People’s Rights, Philip
Alston (ed.) (Oxford: Oxford University Press 2001), p. 292.

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considered in interaction with one another. This is particularly true of the R2D and the
R2E. As Balakrishnan Rajagopal has pointed out, to the extent that the R2D is conflated
with ceaseless accumulation, consumption and growth, it is quite simply unsustainable,
and would certainly appear to be in tension with the R2E.77 Thus, it is clear that the R2D
as articulated almost thirty years ago needs to be ‘rethought without being abandoned.’78
Some have pointed to the concept of ‘sustainable development’ as a way to bridge
tensions between the R2E and the R2D,79 yet it should also be said that more equitable
sharing of the environmental burdens of development, especially as regards climate
change, cannot be overlooked.80 Of course, conflict and balance between rights is
certainly nothing new. If ‘characterizing something as a human right elevates it above the
rank and file competing societal goals,’81 courts are nevertheless regularly called upon to
balance things like freedom of expression in view of other human rights commitments.
This is yet then another reason where the evolution of third-generation rights would
benefit from allowing judiciaries to develop a jurisprudence over time.

Conclusion

Even if its precise meaning proves confounding today, the right to self-determination was
one of the great organizing principles of the post-WWII decolonization process.82 It is
intriguing to imagine a century in which third-generation rights—including the R2D, the
R2E and, though it has not been discussed in this chapter for reasons of space, the right to
peace—operated as similar directive principles for national an international policy. Yet it
is hard to imagine them doing so if they are not firmly recognized as rights, even if such
recognition is hardly a sufficient condition for their fruition.
The need to check pathologies of power in the twenty-first century includes
torture and many classic human rights violations, as mass killings and the resurgence of
muscular authoritarianism make all too clear, yet must also be seen to include things like
pollution, climate change and an international trade and financial system that seems
systemically biased against the most poor and vulnerable. These are true forms of

77
Rajagopal, ‘Right to Development and Global Governance’, 908.
78
Ibid at 894.
79
Atapattu, ‘The Right to a Healthy Life’, 125.
80
United Nations Human Rights Council, Working Group on the Right to Development,
‘Report of the High-level Task Force on the Implementation of the Right to Development
on its Sixth Session,’ A/HRC/15/WG.2/TF/2/Add.2, 2 March 2010, p. 9.
81
Philip Alston, ‘Making Space for New Human Rights: The Case for the Right to
Development’, Human Rights Yearbook 1(1988), 4.
82
Roland Rich, ‘Solidarity Rights Give Way to Solidifying Rights’, Dialogue 21(3)
(2002), 28.

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violence legitimated by states, international organizations and the regulatory regimes that
they create and (selectively) enforce, not volcanoes, earthquakes or other forces of nature
beyond our control.83
In thinking about these challenges and the world that globalization is bringing into
existence, human rights advocates need to ask themselves whether the existing body and
theology of human rights is really up to the task of protecting human dignity and security,
of promoting true social justice in the twenty-first century. It may well be that
globalization cannot be ‘tamed’ by a paradigm that fails to capture and contest the deeper,
collective, economic and structural biases at play.84 Human rights were once seen as
subversive, a challenge to the dominant order of the day. Yet if rights are now both more
mainstream while remaining impotent, it must be asked whether they are not, in a sense,
constitutive of the dominant order.85 Any normative regime that helps to legitimize or
render invisible the violence inherent in such an order might well be considered ‘part of
the problem.’86 Now more than ever we need to renew and reinvigorate the global project
of human rights, providing activists with the means to challenge exploitation and
inequality in all its evolving forms.87 The time has come to take third-generation rights
seriously.

83
See note X regarding the directness and intentionality undergirding many forms of
economic violence.
84
Rajagopal, ‘Right to Development and Global Governance’, 896.
85
See generally Nicola Perguini and Neve Gordon, The Human Right to Dominate
(Oxford: Oxford University Press, 2015).
86
See generally, Kennedy, ‘Part of the Problem?’.
87
Anne Orford, ‘Globalization and the Right to Development’, 183.

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