What are the critical differences between first and second generation rights, and do those differences make second generations rights less important or enforceable? There is a striking difference between the contextual generations of human rights in the primary form of freedoms from versus freedoms to that apply to global citizens. First generation rights are a logical genesis for human rights as they answer the dynamics between actors in a social contract. However, in application first generation rights are given more legitimacy than second generation rights causing profound divisiveness in the international community.
The systemic competition between actors present in Capitalism, which fuels modern Globalization, brings the international community much closer together but also magnifies the separation between communities that are critical for Capitalism to work properly. Global market dynamics create a warped sense of social dislocation that allows the international community to see inequality first hand while also being apathetic to inequality in the same breath. While we cannot spirit away Capitalism and Globalization, nor should we want to, the inherent biases present in these two paradigms are the core threat to human rights and to reducing the divide between first and second generation rights.
Social Contract Theory is important to understand briefly in an attempt to grasp the first generation of human rights further. Social Contract Theory (SCT) or Contractarianism sets the division of power between a state, and its population. Elisabeth Ellis (2005) aptly defines social contract as a society “in which individuals independently endowed with property and with the capacity to exercise political judgment contract together to found the state” (p. 545). A much more straightforward telling of SCT is where an individual within a community will have a greater agency to pursue self-interest when they give up certain authority to a government which can secure the needs of a community more efficient than an individual. The first generation of human rights is a direct answer aimed at tempering the line between people and state.
Understanding specific processes of Capitalism as opposed to a general definition will suit the context of human rights more adequately. It is within market discipline that Capitalism touches human rights intimately. Tony Evans (2005) bridges market discipline and human rights in saying, within the ambit of market discipline, as opposed to that of international law, human rights are conceptualized as the freedoms necessary to maintain and legitimate particular forms of production and exchange. . . Under the terms of this auction, the force of market discipline sees countries bidding against each other to provide a low-cost economic environment with low or nonexistent levels of environmental protection, employment law, trade union law, human rights regulation, and protection for health and safety. (pp. 1057-1059) Market discipline which causes pointed competition between countries has only increased human rights concerns as globalization continues to reduce imaginary political borders. It is worth adding; this is not an attempt to eschew capitalism but rather draw a line towards the ongoing need for authority in regulating market discipline.
Globalization defined by Evans (2005) is, “increasing levels of interconnectedness at all levels of social interaction, which for some suggests the emergence of a single world history, the old political economic, and social barriers erected during a past period are now obsolete” (p. 1048). What Capitalism and Globalization caused is a change in the relationship of exchange. Before, a person directly interacted with another person in exchange. What we see now is the space between interaction reduced and the market is supplanted between actors to facilitate exchange (Evans, 2005, p. 1060). Capitalism and Globalization allow us to see inequality much more vividly because of interconnectedness. However, there is also a firm disconnect supplied through market discipline enabling us to turn a blind eye easily. The dynamics of Capitalism and Globalization produce a sort of social dislocation birthed by market discipline and is to blame for the lack of importance placed on second generation rights. As stated above with Capitalism, these dynamics are not undesirable but rather show a need to buttress those dynamics with a universal acceptance of both generations of human rights. While it might seem logical to express the second generation of human rights – those concerned with economics, social needs, and cultural interests – as a natural answer globalization, in application this view is highly contested.
The first generation of human rights is concerned with civil and political rights. In a summary of Philip Alston and Ryan Goodman (2013), first generations rights are a protection of physical integrity, procedural fairness when a government denies liberty through arrest and court proceedings, equal protection of identities, freedom of ideas and speech, and the right to political participation (p. 160). A brief view of these rights are freedoms from such things as torture, unlawful arrest, and detention, or the right to speak out against the government, along with the rights to organize in political participation. First generation rights have a home in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (Alston & Goodman, 2013, p. 157).
In the context of this essay, first generation rights are seen as complementing the state or authority figure(s). Within a social contract, a person has given power to the state to control certain aspects of life for the sake of efficacy. It is within a state’s self-interest to secure first generation rights for its citizens. First generation rights strengthen the state’s claim to authority by bridging the gap between state and citizen in allowing the citizen to have a voice in determining the future of the government. Chandra Sriram et al. (2014) communicates this in saying, “sovereignty of political authority stems from the consent of the governed, and they do not lose their rights in accepting the rule of a sovereign” (p. 35).
For the sake of argument, first generation rights are viewed as traditional (Alston & Goodman, 2013, p. 278). However, this could be erroneous. Yes, one person can torture another person. However, the bulk of first generation rights covers an individual’s right in a state or organized body of society. This tradition or basis disregards the notion of a state not being a primary form or organization but rather a tertiary body after family and community. Second generation rights do hit more at one person and their activities through life, but the commonly held norm is that they are not basic and before civil and political rights. As Jean Connolly Carmalt (2007) puts it, “in the realm of economic, social and cultural rights (ESCR). This area of human rights – long ignored as second generation or even simply as aspirations rather than rights – has reemerged in the human rights advocacy community over the last decade” (p. 78).
As stated above, second generation rights are concerned with the economic, social and cultural rights of individuals and found in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The ICESCR’s ideological roots stem from socialism and allow the person to make claims of basic welfare on the state (Sriram et al., 2015, p. 35). The ICESCR contains rights to education, unemployment security, and rights to health, to name a few freedoms found in the broad covenant.
The second generation of human rights is where Capitalism, Globalization, inequality, power and person collide. Whereas first generation rights strengthen the authority of a leader(s) or the status-quo, second generation rights at their basic take that power away to give greater access to individuals in an unequal environment. A world dominated by an increasingly interconnected market, a state’s primary paradigm for human rights is economic agency or Capitalism and not the individual as described by Evans (2005) above (pp. 1057-1059).
Arguably, ICESCR will benefit authority in the long-term because of the rise in living standards in aggregate across the globe. Simply put, if everyone is doing better everything will be better. However, the short-term remains a vacuum of power. A government or powerful organization is not inclined to reduce the amount of power they possess without an adequate trade-off or on principal alone. These dynamics of power sharing without benefit or an unseen benefit cause the ICESCR to be highly contested and disregarded as equal to civil and political rights.
A short communication of the theoretical debates between first and second generation human rights are in order before delving back into Globalization. First off, the divide can be loosely taken as a Cold-War divide between Communism and Democracy (Sriram et al., 2015, p. 39). Furthermore, Sriram et al. (2015) communicate this divide in saying, “separation can be understood as a distinction between positive rights, the duty to provide a baseline of welfare, versus negative rights, the duty to refrain from violating specific rights” (p. 39). First generation rights are argued as negative, in that an individual has the right to disallow an action to happen to them. Inversely, the state does not have the right to do certain things to a person. Advocates of negative rights see second generation rights being positive, or an obligation the state must provide and only civil and political rights as negative, therefore rendering ESCR illegitimate. However, many argue without ESCR civil, and political rights are a mute topic (Sriram et al., 2015, p. 39).
Diving back into Globalization highlights the difference between human rights generations and issues of enforcement as well as acceptance. Admittedly, separating human rights into generations, the first generation is much easier to apply universally, or nationally. Quite simply, the government does not have to expel too much energy. They merely have to refrain from doing certain actions. As well, there is a noted benefit to their authority in complying with first generation rights. Whereas second generation rights do cause a government or organization to contribute to a community actively and to curb certain aspects if its authority by giving them up to the citizen.
Why are Globalization and Capitalism so critical to ESCR human rights? The position this essay takes is quite similar to Karl Polanyi 1944 work The Great Transformation. As Fred Block (2003) says of Polanyi’s work, Polanyi’s point is that since actually existing market economies are dependent upon the state to manage the supply and demand for the fictitious commodities, there can be no analytically autonomous economy. Furthermore, it makes no sense to speak of the logic of the market or the logic of the economy, because pretending that land, labor, and money are true commodities is both irrational and socially dangerous. (pp. 282-283) In other words, Polanyi is saying you cannot have Capitalism without a form of authority to control the conditions and commodities traded in a market. Bringing this to the topic of ESCR, if Capitalism and the state are interdependent and cannot exist without each other, the state would have an obligation to secure ESCR for its citizens, unless Capitalism is inherently fair and equitable for everyone. To make a stand against fairness, a normative statement that people should not be equal must be a core belief.
Social dislocation inherent in Globalization makes the largest case for universal ESCR being equal to or greater than first generation rights. This essay is not positing that the state is irrelevant and as such first generation rights are still critical. In all disclosure, there should have never been a separation of the two, actually three, generations of human rights. More to the point, Capitalism and Globalization has not dispensed with the state but has made interconnectedness more profoundly consequential than the state on an individual. Because we can see and ignore inequality greater in Globalization, space, place and identity become even more important. ESCR secure an identity within a socially created space upon the places in which we live (Carmalt, 2007, p. 69).
Because we are more interconnected but further entrenched in separation, geography continues to be a critical point in physical access to human rights. Carmalt continues throughout her essay to show the importance of geographic studies in administering human rights in very culturally distinct manner. However, the scope is beyond the constraints of this article but is dependent on ESCR equality with civil and political rights (Carmalt, 2007, pp. 78-85). The need for ESCR is compounded more in quoting Evans (2005), while on one hand international law is presented and promoted as the solution to problems of human rights, on the other, the practices of market discipline continue to provide the context in which human rights are violated. International law might, therefore, be seen as a mask that conceals the true causes of many human rights violations. (p. 1067) As startling as that might sound, it appears to be correct when viewing human rights through the lens of Capitalism and Globalization. It also raises serious accusations on diplomats and politicians: are they allowing an ever increasing amount of conflict because of gain and competition? Is democracy a front against human rights insofar as they continue to contain ESCR? Is the continued debate on ESCR also a front to forever relegate ESCR to aspirations and not universal rights?
While brief in scope, this essay has attempted to draw the distinction between first and second generation human rights. This is impossible without mentioning the dynamics of Capitalism and Globalization because of the interconnectedness between markets and a government. Globalization has on one hand erased political borders and raised countless people out of poverty, but on the contrary, it has further entrenched the separation of communities and created smaller yet much graver conditions of inequality in a scenario of social dislocation. We might not be able to counteract social dislocation and as such the need for ESCR is arguably more important in today’s day and age than civil and political rights, which are still important but had their zenith in yesterday’s era.
Alston, P., Goodman, R., & Steiner, H. J. (2013). International human rights: Text and materials. Oxford, United Kingdom: Oxford University Press.
Block, F., & Polanyi, K. (2003). Karl Polanyi and the Writing of “The Great Transformation”. Theory And Society, 32(3), 275-306.
Connolly Carmalt, J. (2007). Rights and place: Using geography in human rights work. Human Rights Quarterly, 29(1), 68(18).
Ellis, E. (2006). Citizenship and Property Rights: A New Look at Social Contract Theory. The Journal Of Politics, 68(3), 544-555
Evans, T. (2005). International human rights law as power/knowledge. Human Rights Quarterly, 27(3), 1046-1068.
Sriram, C. L., Martin-Ortega, O., & Herman, J. (2015). War, conflict and human rights: Theory and practice (Second edition.). London: Routledge.