3.5 Classification of Specific Human Rights
United Nations documents emphasize the indivisibility and interdependence of all categories of human rights.58 Human rights are grouped in three categories: civil and political rights (so-called first generation); social, economic, and cultural rights (so-called second generation); and solidarity rights (so-called third generation).
(A) Civil and Political Rights: The First Generation
Civil and political rights, “the rights of Man,” were at their apogee starting in the 18th century. These rights are traced to the “bourgeois” revolutions—particularly the French and American revolutions in the last quarter of the 18th century—that gave rise to the [French] Declaration on the Rights of Man and the U.S. Declaration of Independence, the foundational documents for this group of rights.59
Civil and political rights originally were conceived as negative rights—that is, realms that should be free from government interference.60 Such a conception of negative rights, however, is exceedingly (and misleadingly) limiting. For example, the right to a fair trial falls into this category, yet it requires “positive” state action—the creation of a system of justice for it to be realized.
The right to nondiscrimination on the basis of race, gender, language, religion, culture, family, ethnicity, national origin, and social origin is a basic tenet of civil and political rights. Yet, notwithstanding such a foundational principle, civil and political rights are gendered and racialized. For example, women are far from enjoying equal rights to speech, participation, travel, or owning land.61
Rights of the first generation have been criticized because they have “meant for the majority of the working class and peoples of conquered lands the right to be exploited and colonized. They were regarded as ‘formal’ freedoms that neglected the material realities of social conditions.”62
(B) Social, Economic, and Cultural Rights: The Second Generation
Socialist states posited that the freedoms of the first-generation rights simply permitted the exploitation and subjugation of working and colonized people. The second generation, in contrast, reflects the ideals of the socialist revolutions of the first two decades of the 20th century. The “usher[ing] in [of] the second generation” was effected and underscored by the post-socialist revolution Mexican and Russian constitutions of 1917 as well as by the 1919 Constitution of the International Labour Organization (ILO).63 Contrasted to the first generation’s emphasis on protecting individual rights from governmental tyranny through participation in the political processes, the second-generation rights underscored a rejection of the exploitation of peoples and focused on the intervention of the state in order to effectuate certain claims. As distinguished from the “negative” civil and political rights, social, economic, and cultural rights are positive rights—rights that require state action. These rights emphasize the collective or group, as opposed to the individual.
This second generation includes three different types of rights. First are social rights that consist of, for example, the right to an adequate standard of living, adopting the notion that everyone should enjoy subsistence rights such as adequate food and nutrition, clothing, and housing.64 Economic rights are also included, ranging from the right to social security to the right to work. Finally, a broad spectrum of cultural rights includes the right to take part in cultural life, the right to enjoy the benefits of scientific progress and its applications, and the right to preserve the cultural identity of minority groups.65 Such protection of cultural traditions is significant because culture contains the basic source of identity and preservation of identity, which is important for the well-being and self-respect of a human being (rights that can be called first-generation human rights). Western states in general have resisted the notion of social and economic rights. U.S. President Franklin Delano Roosevelt, however, appears to have wholeheartedly embraced them.66
It is important to note before closing this section that the South’s historical exclusion from enjoyment of rights is particularly true and marked when one considers social, economic, and cultural rights. Colonial regimes deprived persons of their rights to such opportunities as work and education and allowed the exclusion of women from full participation in the public and private spheres. The justification for such exclusion often was based on the pretext of tradition and cultural classifications. Thus, rather than these new rights resulting in women’s equality, they allowed communities to continue their traditional practices or customs that subordinate women.
(C) Solidarity Rights: The Third Generation
Like the first and second generations of rights, the third generation is also sourced in revolution—the anticolonialist revolutions that immediately followed the Second World War and, around 1960, resulted in the independence of many nations. Such revolutions influenced the text of human rights instruments by giving importance and context to the rights to self-determination and nondiscrimination—both of which are found in the ICCPR and the ICESCR. This movement also emphasized the rejection of foreign domination and occupation, freedom from aggression, and threats against national sovereignty. These rights, too, have been labeled as inalienable rights.67
Two distinctive characteristics are attendant to third-generation rights. First, solidarity rights do not belong to the individualistic tradition of the first-generation rights nor to the socialist tradition of the second-generation rights. Second, while these rights are in an early phase of legislative process, documents reveal that they were in the process of being recognized as international human rights during the 1980s. The rights falling under this generation category include the right to environment,68 development,69 peace,70 democracy, as well as rights to common heritage, communication, and humanitarian assistance.71
The notion of interdependence and indivisibility of rights recently was reiterated in the Vienna Declaration, which plainly states that “all human rights are universal, indivisible and inter-dependent and interrelated.”72 Moreover, the generational scheme of classification of rights is questionable in light of the myriad significant documents in which the first-, second-, and third-generation rights coexist, such as in the CRC, the CEDAW, the CERD, and the African Charter.
3.6 Human Rights and Trade
In relation to trade, rights of all generations are relevant. Some rights might appear to have a closer nexus to trade than others. For example, labor rights, including the right to work, to association, to form trade unions, to safe working conditions, to fair wages, and to equality, are plainly connected to trade. The rights to liberty, personhood, and freedom from slavery are key concerns of the trafficking for labor. In addition, the right to a healthy environment is directly linked to trade. Protecting the Amazon has been one of the loudly articulated concerns. With these examples in mind, it is not surprising that labor and environment activities have been among the most vehement opponents to “free trade.”
Other rights, such as the right to a fair trial, have a less direct or obvious linkage to trade, yet the linkage exists. Trade is more likely to occur in a location where investments are secure and travel is safe and, if some problem arises, there is a system of justice that will resolve it in a fair and equitable manner. Yet other rights have both direct and indirect linkages to trade. The right to property has a direct connection regarding economic development. It also has an indirect tie. For instance, foreign investor protections may decrease the enjoyment of property. The chapters in this book will explore the linkages—sometimes direct and sometimes less obvious—between trade and numerous human rights.
4
Splendid Isolation’s Progeny
The Intersections of Trade and Human Rights
4.1 Central Dilemma: Lack of Purposeful Correlation
Having presented in the opening segments the foundational principles of international law-making and the basic concepts of both trade and human rights norms and structures, this chapter turns to an overview of the relationship between human rights and international