Week 19 Wednesday LAWS213 Human Rights: Notions, Purposes, and Generations
Human Rights: Notions, Purposes, and Constitutionalism
Course Information
Course Code: LAWS213
Subject: Public Law / Tikanga o Kāwanatanga
Topic: Human Rights
Lecturer: Dr. Ignacio Giuffré, Victoria University of Wellington
Copyright: © 2025 Dr Ignacio Giuffré, Victoria University of Wellington
Notions of Human Rights
Human rights are understood as provisions that are both protective and constraining, designed to safeguard individual interests by imposing duties on entities whose actions or negligence might jeopardize those interests.
Waldron (Rights and Human Rights, 2020, p. 152): Describes a human right as "A provision that is at one and the same time protective and constraining. It aims to protect (or promote) some individual interest and it does so by imposing duties on those whose actions or neglect are likely to threaten the interest in question."
Raz (Legal Rights, 1984, p. 14): States that "To say that a person has a right… is to say that an interest of his is sufficient ground for holding another to be subject to a duty."
Purposes of Human Rights
Human rights serve several vital purposes, primarily acting as bulwarks against potential societal catastrophes and instruments for justice.
Nino (The Ethics of Human Rights, 1991, p. 1): Views human rights as "A tool for avoiding the kind of catastrophe that often threatens human life… The antidote we have invented to neutralize this source of misfortune." They are a response to lessons learned from history.
Sunstein (The Second Bill of Rights, 2004, p. 178): Characterizes them as "Pragmatic instruments designed to protect important human interests."
Gargarella (The Law as a Conversation Among Equals, 2022, p. 157): Suggests that "Formulating a list of rights… represents a way of declaring publicly… that we have learned from… past experience that we have a propensity to commit unacceptable abuses, and that we want to make it clear that we want to protect certain fundamental interests."
Rights and Constitutionalism
Rights are fundamental instruments with a dual role in shaping constitutional frameworks.
Means/Instruments:
Achieving Justice: They protect and promote individual and collective interests.
Limiting Power: They serve to constrain both public (state) and private power.
Core of Constitutions: Rights and their guarantee through the separation of powers have been central to the definition and operation of constitutions and constitutionalism.
French Declaration of the Rights (Article 16): Explicitly links rights and separation of powers, stating, "A society where rights are not secured or the separation of powers established has no constitution at all." This highlights their intertwined nature.
Palmer (A Bill of Rights for New Zealand: A White Paper, 1985, pp. 5, 69): Emphasized that a Bill of Rights "will place new limits on the powers of Government" and that "Rights are thought of as documents which restrain the great powers of the State."
Generations of Rights: Taxonomy and Evolution
Human rights are often categorized into 'generations' based on their historical emergence and the types of protections they offer.
1st Generation: Civil and Political Rights
Origin: Emerged during the Liberal Revolutions of the 17th to 19th centuries.
Key Instruments:
English Bill of Rights (1689)
French Declaration of the Rights of Man and of the Citizen (1789)
US Bill of Rights (1791)
UN International Covenant on Civil and Political Rights (1966)
New Zealand Bill of Rights Act (1990)
Examples: Right to life, liberty, security, property, expression, assembly, vote, and due process.
Characteristics:
Liberal (or individual) rights: Primarily focus on individual freedoms.
Protection against the State: Designed to protect individuals from state interference.
"Negative" rights: Often described as requiring the State to refrain from acting (i.e., limitations on State power).
2nd Generation: Economic, Social, and Cultural Rights
Origin: Arose from social movements, revolutions, and the development of welfare states from the 20th century onwards.
Key Instruments:
Mexico Constitution (1917)
US Second Bill of Rights (1944)
UN International Covenant on Economic, Social, and Cultural Rights (1966)
Examples: Right to education, health, housing, work, and social security.
Characteristics:
Socio-economic rights: Focus on basic human needs and welfare.
Protection against the State and the market: Address inequalities and vulnerabilities created by both state policies and market forces.
"Positive" rights: Often described as requiring an active role from the State (e.g., providing services or regulating conditions).
3rd Generation: Collective Rights
Origin: Developed from decolonization and environmental movements from the 20th and 21st centuries.
Key Instruments:
ILO Indigenous and Tribal Peoples Convention – 169 (1989)
Rio Declaration on Environment and Development (1992)
United Nations Declaration on the Rights of Indigenous Peoples (2007)
Examples: Environmental rights, multicultural rights, indigenous rights, peace rights, digital rights, and bioethical rights.
Characteristics:
Collective or diffuse rights: Belong to groups or affect humanity as a whole, often transcending individual interests.
Protection against different States and the market: Often require international cooperation and transcend national borders, addressing global challenges.
Also "positive" rights: Frequently require active measures from multiple actors.
Criticism of the "Generations" Taxonomy
While useful for categorization, the "generations" taxonomy faces significant criticism for its misleading implications.
Misleading Chronological Progression: The idea of a sequential development is flawed for at least three reasons:
Cross-Cutting Rights: Many rights, such as gender equality or freedom from torture, cut across all generations. Examples include the UN Convention on the Elimination of all Forms of Discrimination Against Women (1979) and Olympe de Gouges' The Declaration of the Rights of Woman (1791), or the UN Convention Against Torture (1984).
Recent First-Generation Rights: Some recently introduced rights still belong to the "first generation," while later generations are often associated with social rights. For instance, the New Zealand Bill of Rights Act (NBORA) primarily establishes "civil and political rights" (Part 2), despite being a relatively recent instrument.
Limits on Public vs. Private Power: The early focus of rights was on limiting public power, whereas later generations increasingly aim to limit private power as well. Palmer (A Bill of Rights for New Zealand: A White Paper, 1985, p. 69) noted that "Bills of Rights are thought of as documents which restrain the great powers of the State. They are not seen as extending to private actions." However, the NBORA (section 3) specifies its application to acts done "by the legislative, executive, or judicial branches; or by any person or body in the performance of any public function," showing an initial limitation to public power. This distinction becomes blurred in practice and in later generations of rights.
Ignores Interdependence: The taxonomy fails to acknowledge the significant overlap and interdependence among rights across different generations.
Suggests a Hierarchy: It can implicitly suggest a hierarchy where "first generation" rights are considered more enforceable or fundamental, which is not always the case.
Misleading Categories of 'Negative' and 'Positive' Rights: The distinction between 'negative' rights (requiring state abstention) and 'positive' rights (requiring state action) is often misleading because:
"Negative" rights also require positive guarantees (e.g., courts and police to enforce them).
"Positive" rights also require abstention (e.g., the state must not actively undermine efforts to secure economic or social welfare).
Conclusion: Subsequent generations of rights do not merely supplement earlier ones. Instead, they actively reshape the understanding of pre-existing rights and redefine the duties of both States and markets in ensuring those rights.