Third Generation Human Rights and Good Governance

Human rights are understood as rights which belong to any individual as a consequence of being human, independently of acts of law. Human rights alone do not ensure effective enjoyment of human rights. They must be included in a network of institutions which are guided by the same philosophy. Human rights of the third generation are highly complex composite rights like the right to development, the right to peace, and the right to a clean environment. None of these rights has solid legal foundations in a legal instrument of worldwide applicability. It is certainly say that, there will be many attempts in the future to use unorthodox strategies with a view to enforcing rights which are not capable of being enforced in the country of origin. It is, of course, much easier to guarantee human rights if the basic societal framework corresponds fully to the requirements of democracy and the rule of law.

Introduction

In the most general sense human rights are understood as rights which belong to any individual as a consequence of being human, independently of acts of law. [1] It has become routine to speak of different ‘generations’ of human rights. [2] According to the current terminology, human rights of the first generation are ‘negative’ human rights, or civil liberties, which enjoin starts to abstain from interfering with personal freedom. Freedom and security of person or freedom of speech are paradigmatic examples of this class of rights. When referring to human rights of the second generation or ‘positive’ rights, the speaker has in mind economic or social rights such as the right to work or the rights to social security, which entitle individuals or collectives to the provision of certain goods or social services. Lastly, human rights of the third generation are highly complex composite rights like the right to development, the right to peace, and the right to a clean environment. Third generation human rights are sometimes called ‘solidarity rights’. The most prominent examples of such alleged rights are the right to peace, the right to development, and the right to a clean (healthful) environment. None of these rights has solid legal foundations in a legal instrument of worldwide applicability. At the regional level, however, the African Charter on Human and Peoples’ Rights (AfCHPR) has proclaimed the right to development [3] and the right to peace and security [4] as well as the right to a ‘general satisfactory environment’. [5]

The Three Rights

Right to Development

The right to development, the intellectual authorship of which is attributed to the Senegalese Lawyer Keba Mbaye, [6] was first affirmed in a number of resolutions of the Commission on Human Rights (HRCion). In Resolution 5 (XXXV) of 2 March 1979 the Commission ‘reiterated’ that the right to development was a human right. A more stringent note was struck by the General Assembly (GA) of the United Nations (UN), which, by Resolution 36/133 of 14 December 1981, characterized the right to development as an ‘inalienable’ human right. Eventually, the GA adopted a Declaration on the Right to Development by Resolution 41/128 of 4 December 1986. Article 1 of that Declaration provides, “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”. Clearly, this text mirrors the earlier text of Article 28 of the Universal Declaration of Human Rights, 1948 (UDHR).

As it is defined in GA Resolution 41/128, the right to development appears as an aggregate right which draws its substance from other instruments which set forth human rights and fundamental freedoms with binding effect. [7] Because of its extremely wide scope, it met with a large amount of scepticism on the part of Western states in particular. At the Vienna World Conference on Human Rights in 1993, the United States (US) for the first time accepted the concept of a right to development. Thereafter, for many years working groups established by the HRCion have attempted to clarify in more detail its legal connotations. To date, all these efforts have proved of no avail. The latest resolution of the GA on the issue, adopted on 19 December 2006, again extends the mandate of a working troop (Res 61/169). [8] It reflects almost all of the world’s economic and social problems. Probably the time-honoured French adage applies here as well: Qui trop embrace, mal eternity, which is tantamount to saying that whoever pursues too ambitious goals, will eventually end up with empty hands. [9] In recent years, emphasis has shifted to the fight against poverty. Ambitious goals were defined by the UN Millennium Declaration [10] and confirmed by the 2005 World Summit Outcome. [11] However, political declarations alone do not generate economic resources. The objective of the Millennium Declaration to halve poverty buy 2015 can hardly be reached.

Right to Peace

The right to peace is the second component for a human right of the third generation. It also grew up within the HRCion, where it was first proclaimed in 1976. A next stage was reached when the GA in 1978 adopted the Declaration on the Preparation of Societies for Life in Peace, [12] which affirmed that ‘every nation and every human being … has the inherent right to life in peace’. The process of standard-setting came to its culmination in 1984 with the adoption of the Declaration on the Right of Peoples’ to Peace. [13] In the vote, not fewer than 34 states abstained even though the resolution solemnly proclaims ‘that the peoples of our planet have a sacred right to peace’. After the demise of the communist regimes in central and Eastern Europe, interest for this ‘right’ faded away. [14] In recent years, however, resolutions of the GA have again referred to the sacred right to peace’ of the peoples of our planet. [15] The observer, nonetheless, fails to perceive nay elements of operational particularization.

Right to a Clean Environment

The right to a clean or healthful environment, by contrast, has lost nothing of its original attractiveness. [16] It was mentioned for the first time in the concluding Declaration adopted by the UN Conference on the Human Environment, held in June 1972 in Stockholm. Principle 1 of that Declaration starts out in a politically incorrect fashion-with the words: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”. [17]

The only truly legal text which has embraced this proposition in broad terms is the AfCHPR, which in Article 24 sets forth a right to a ‘general satisfactory environment’. Mostly, however, a somewhat more cautious attitude has prevailed. Governments are quite aware of the necessity to reconcile environmental concerns with other concerns of public policy. Thus, the Rio Declaration on Environment and Development of 14 June 1992 [18] qualifies the relationship between humankind and its environment by stating that “human beings … are entitled to a healthy and productive life in harmony with nature”. The Declaration refrains from speaking of a ‘right’ to a clean environment; rather, the duties of states to protect the natural environment are stressed. A total departure from an anthropocentric approach can be found in the World Charter for Nature, adopted by the GA on 28 October 1982 (GA Res 37/7), which asserts that nature-and with it humankind as a part of nature-‘shall be respected’. In recent years, the language has generally become even more guarded. It has been recognized that protection of the environment constitutes a challenge to humankind as a whole. Nobody can expect that others assume the burden which everyone has to struggle with. The Johannesburg Declaration of the World Summit on Sustainable Development reaffirmed ‘our commitment to sustainable development’ (para 1). [19] Thus, a realistic assessment has rightly replaced the euphoric rhetoric of the early years. In its Ogoniland decision of 27 October 2001, [20] the African Commission on Human and Peoples’ Rights (AfHPRCion) was able to make a forceful application of Article 24 of the AfCHPR. In that case, the Right showed its usefulness for extreme instances, where the mishandling of environmental issues is obvious and permits of no justification.

Uncertainties of the Third Generation Rights

All human rights of the third generation are surrounded by grave uncertainties regarding their holders, the duty- bearers, and their substance. [21]

Holders of the Rights

According to the Declaration on the Right to Development, for instance, the right is vested in human beings and peoples alike, whereas the African Charter assigns it to peoples alone. As far as the right to peace is concerned, a glaring divergence is obvious. Whereas the Declaration on the Preparation of Societies for a Life in Peace mentions nations and human beings side by side, the Declaration on the Right of Peoples to Peace confines itself to acknowledge a right of peoples to peace. As already pointed out, the right to a satisfactory environment is mentioned as a right of peoples only by the African Charter. Thus, the relevant instruments do not maintain a consistent line. Generally, no great care is taken to specify to whom the benefits connected with the rights are bestowed upon individuals or collective entities, amply demonstrates that the actual effects expected of them are not connected with their specific characteristics as rights under positive international law.

Duty Bearers

According to the ordinary understanding of the essence of a right, a duty must exist as its corollary. Rights embody claims which another persons is legally required to fulfil. Right and duty are just two sides of one and the same coin. In this regard, third generation rights have great weaknesses. Pursuant to the Declaration on the Right to Development, it is in particular states that have to strive for development by taking the steps necessary for that purpose. Translated into concrete terms this means that peoples are pitted against states, a dichotomy the legal implications of which are difficult to grasp. On the one hand, the relevant propositions could mean that peoples have rights against their own governments, which is in fact the tendency pursued by the Declaration of Algiers, a legal text drawn up by a private group of legal scholars in 1978 [22] ; or they could be interpreted to express the idea that poorer states have entitlements vis-à-vis other states, i.e., the international community. All this, however, does not fit easily into the traditional concept of international law where the international community as such has yet to find its proper place.

Contents

It is even more difficult to gain a clear picture of the content of third generation rights. Generally, all of the rights under discussion are extremely wide in scope. They do not set out specific measures and steps to be taken by states or governments, but enunciate comprehensive goals. As indicated by the Declaration on the Right to Development, development means a state of affairs permitting everyone to enjoy to their full extent ‘all’ rights and freedoms. Thus, development has a variety of components and constitutes an ideal situation that rests on a multitude of factual and legal elements many of which are not under the control of governments alone. Similar considerations apply to peace. Peace in the world depends on a wide array of factors, and it can be said that the entire system of the United Nations was established to ensure, in the first place, international peace and security. The effectiveness of the international mechanisms geared to ensure peaceful settlement of international disputes and to prevent wars from occurring is not enhanced by the creation or the recognition of a right of individuals or peoples to peace. The right to a clean and healthful environment, too, belongs to the same category of broadly framed rights, the content of which encompasses almost anything that has some bearing on the sate of the environment. Agenda 21, the Plan of Action adopted by the Rio Conference in June 1992, constitutes in its printed version a book of no fewer than 400 pages. [23] It is in this Plan of Action that the requirements of a healthy environment are spelled out in detail. However, it appears that no one has a legal right to demand that the many steps described therein be taken, since there exist no corresponding legal obligations, Agenda 21 having been conceived of as a political commitment only. [24]

It is highly significant that not a single one of the rights of the third generation has to date received a clear profile. The fact that neither the holders of these rights, nor the corresponding duty bearers, nor the substance of the rights, have been unequivocally identified cannot simply be explained as accidental shortcomings which could without any difficulty be remedied by investing more lawyers’ skills and intelligence. The inference that must be drawn is obvious. It would be more correct to define third generation rights not as true rights, but rather as agreed objectives which the international community has pledged to pursue. Even so, they do not lose their juridical significance. They remain important signposts which mark the paths the international community should embark upon in conceiving and carrying out policies for the welfare of humankind as a whole. Indeed, individual human rights need a general framework of favourable conditions within which they can prosper. Any war threatens to lead to a total denial of indivisual rights by death and destruction. Although a state of affairs where everyone enjoys all the rights guaranteed by the UDHR and the two Covenants of 1966 [25] certainly guarantees peace, and in most instances also development, it has emerged that these macro conditions cannot be ensured from the micro perspective of individual human rights. There is a clear necessity to work on both levels, establishing mechanisms for the vindication of individual rights, but attempting at the same time to ensure peace, development, and a clean and healthful environment on a global level where the issues related to these fields of action are tackled directly in all their complexity. It is the recognition that human rights need a friendly and favourable environment which may also explain other initiatives which have sprung up in recent years. They are not placed under a heading of human rights, but they are all designed to build up that framework of security which is essential for individual rights to take their full effect.

Democracy and Good Governance

Democracy

Democracy may not be a panacea to cure all ills, but it has its origins in the political rights of the individual as they are laid down in all conventional instruments, and on its part it also contributes to stabilizing and strengthening human rights. Article 21 of the UDHR contains everything that is conceivable in terms of political rights of the citizen in a democratic polity.

However, the word ‘democracy’ itself was carefully avoided. Concerning Article 25 of the ICCPR, which reflects almost textually the earlier provision, the same observation can be made. Although the rights of democratic participation are fully covered, one looks in vain for the word ‘democracy’. In some other places, though, in a somewhat hidden fashion, democratic standards are referred to. In the limitation clauses complementing the rights set forth in Articles 14(1), 21, and 22 of the ICCPR, the requirements of a democratic society are mentioned as the criteria for the degree to which governmental interference may affect the substance of the rights concerned. Strangely enough, this yardstick makes no appearance in Article 19 of the ICCPR, the guarantee of freedom of speech, which constitutes the paradigm of a democratic right. On this point, Article 10(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is more consistent. Whatever the reasons for the apparent lack of logic in the ICCPR may be, it is clear that in 1966 the United Nations had not yet evolved a coherent concept of democratic governance. [26]

In recent years, this state of affairs has changed dramatically. Democracy is now explicitly acknowledged as the only legitimate form of governance. The origins of this development go back once again to the HRCion. At its spring session in 1999 the Commission adopted a resolution which affirmed in a fairly succinct way the basic principles of a democratic polity, [27] stressing in particular the interconnection between the democratic form of government and human rights by stating that ‘democracy fosters the full realization of all human rights, and vice versa’ (op para 1). One year later, the HRCion expanded the text considerably and included almost all the rights which are granted to citizens in a liberal state. [28] It is remarkable that the journey of this text did not end in the HRCion, which in spite of its expertise was a subordinate body within the world organization, but found its way to the GA where it was reviewed and eventually approved with only minor modifications. [29] A large majority supported this historic decision. A considerable number of states, however, abstained. The list of these abstentions is highly revealing. It includes the following countries: Bahrain, Bhutan, Brunei Darussalam, China, Cuba, Democratic Republic of the Congo, Honduras, Laos, Libya, Maldives, Myanmar, Oman, Qatar, Saudi Arabia, Swaziland, and Vietnam. Traditional monarchies march hand-in-hand with communist dictatorships and one or the other country whose ambassador may have received wrong instructions from its capital. [30]

Given the weight of these 16 countries, it would be difficult to contend that democracy has become a binding standard under international customary law. China, in particulate, cannot be brushed aside in the same way as an isolative vote of the Maldives would be ignored. Nonetheless, the posture taken by a large and almost overwhelming group of nations is a clear indication of the importance the international community attaches to the necessary environment of human rights. Human rights are part of a system of mutually supportive elements. To rely on them alone does not suffice to protect the human being from encroachments on his/her rights. A proper constitutional structure must provide the foundations of a polity where a life in dignity and self-fulfilment becomes an actual opportunity for everyone. [31] The World Summit Outcome [32] opted for a compromise formulation in characterizing democracy as a universal ‘value’ (para 135), [33] which leaves the issue of its legal classification widely open. Indeed, requests for democratic structures may become embroiled in fundamental controversies. Thus, the demands for a ‘democratic and equitable international order’, articulated in GA Resolution 61/160 (19 December 2006), were rejected by the Western group of states and some Latin American states, whereas the majority of Third World Countries supported the motion. At the international level, claims for the introduction of ‘democracy’ more often than not boil down to a power struggle aiming at depriving Western countries of their structural majorities in world financial institutions. Yet the national model of ‘one man, one vote’ is not suitable for world-wide institutions. Subtle architectural gifts are needed to build such institutions in consonance with democratic tenets. [34]

At the European level, too, it was recognized that the complex mechanisms of the ECHR needed to be complemented by political monitoring efforts and expert advisory services in order to ensure the general framework within which human rights are located. For this purpose, the Venice European Commission for Democracy was founded in 1990. It has assisted, in particular, the new member states of the Council of Europe in building institutions that are permeated by a new spirit of democratic openness. Within the narrower context of the European Union, democracy figures prominently in the clause providing for structural homogeneity. [35]

Good Governance

The considerations set out above are also the background to two more recent developments which seek to build up a framework for securing full enjoyment of human rights. It has been realized that a ‘good life’ depends not only on the basic principles upon which a system of government is predicated, but that the conduct of governmental elites and bureaucrats is a decisive factor in bringing the prevailing societal climate in a given state up to the level of the expectations raised by those principles. [36] In this regard, international organizations and, in particular, the financial agencies of the international community have rightly started playing a role as defenders of the public interest. Since 1989, the World Bank has evolved a doctrine of ‘good governance’, which it has described in the following terms:

Good governance is epitomized by predictable, open, and enlightened policy-making (that is, transparent processes); a bureaucracy imbued with a professional ethos; an executive arm of government accountable for its actions; and a strong civil society participating in public affairs; and all behaving under the rule of law. [37]

Other institutions have followed suit. For the International Monetary Fund, it was an almost natural move to adopt similar strategies. It uses negotiations for orderly exchange arrangements according to Article IV of its Statute to prevail upon member states to adjust their policies to the requirements of good governance. The African Development Bank also adopted a ‘Policy on Good Governance’ which lists exactly the same headings, namely accountability, transparency, combating corruption, political participation of citizens, as well as legal and judicial reforms. This was done in response to the Grand Bay Declaration, adopted on 16 April 1999 by a summit meeting of the Organisation of African Unity (OAU), [38] which affirms the interdependence of the principles of good governance, the rule of law, democracy, and development (para 3). Likewise, the European Community included a clause to that effect in its latest agreement with the Africa, the Caribbean and the Pacific (ACP) region states. [39] Recently, the doctrine of good governance received it is definitive benediction by its inclusion in the UN Millennium Declaration [40] as well as in the World Summit Outcome. [41] It is clear that a framework of good governance, if actually established, leads to a significantly increased effectiveness of human rights.

Human Security

Almost at the same time that the World Bank evolved the concept of good governance, the United Nations Development Programme (UNDP) framed the doctrine of ‘human security’. [42] For many decades, the concept of security was understood exclusively in a military sense. It made its first appearance in the report of the Independent Commission on Disarmament and Security Issues (Palme Commission), issued in 1982. [43] After more than a decade, the UNDP took up the ideas contained therein. In its 1993 Report it stressed that ‘the individual must be placed at the centre of international affairs’. [44] Expanding the new concept, it attempted to give it a more fully substantiated content in its 1994 Report, where, criticizing again the exclusive military use of the term in the past, it mentions seven aspects of what it understands by human security. Starting out with economic security (freedom from poverty), it refers additionally to food security (access to food), health security (access to healthcare and protection from diseases), environmental security (protection from pollution), personal security (physical protection against torture, war, and criminal attacks), community security (survival of traditional cultures), and political security (freedom from political oppression). [45]

It would appear that this new approach is largely the result of overzealous bureaucracy, which has lost sight of the existing achievements in the field of human rights. Almost all of the security items mentioned in these reports are nothing other than a reflection of the rights enunciated in the two International Covenants of 1966. Obviously, what human rights seek to achieve is freedom from want and from fear-the classical formulation laid down in the Atlantic Charter of 1941. There is no real need to coin new concepts. Instead, what seems to be necessary is to relate the activities undertaken by international organization like UNDP to the foundations as they were laid down many decades earlier in the treaties which, still today, constitute the groundwork of the entire of international action in the field of human rights.

Nonetheless, the broad concept of human security should not be totally rejected. It highlights the function which institutions of the international community can discharge for the promotion and defence of human rights. Whoever speaks of human rights has in mind primarily the bilateral relationship between the state and its inhabitants, in particular its citizens. It is not clear, at first sight, which else can make a contribution with a view to making these rights a living reality. The jargon of ‘human security’ changes the perspective in a constructive way, what is referred to be not a situation of rights, which seems to be a priori a positive achievement, but a public interest task. Security is never an existing state of affairs: it is an objective which requires continuous efforts for its attainment. In this sense also, a number of states, among them most prominently Canada and Norway, [46] have integrated the doctrine of human security as a primary aim in their foreign policy, albeit partly in a narrower sense as protection against violent threats. [47] Although the new motto does not usher in new contents, it makes clear that full enjoyment of human rights can only be achieved by structured efforts which view the looming challenge as a complex whole and not as a sequence of separate steps that can be taken independently from one another. The High level Panel on Threats, Challenges and Change, entrusted with laying the intellectual groundwork for a fundamental overhaul of the UN, indeed took human security as its leitmotiv for the integrated approach to international security which it adopted.