I am pleased to be invited to submit my thoughts in marking Human Rights Day, 10 December 2020, an annual celebration of the UN General Assembly adoption of the Universal Declaration of Human Rights (UDHR) (UN General Assembly Res. 217A) on 10 December 1948. Article One of the UDHR provides simply that, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” A lofty goal, indeed!

The UDHR has unquestionably established the blueprint for international human rights throughout the decades. It remains evergreen, and has formed the foundation for “three generations” of human rights, as so eloquently argued by Karel Vasak, director of the Human Rights and Peace Division of UNESCO in 1977.  (See Karel Vasak, "A 30-Year Struggle," UNESCO Courier (November 1977), p. 29.)   

The “first generation” of human rights are the political and civil rights of the individual which the state is prohibited from interfering with or infringing upon. These liberties correlate to freedoms such as the right to self-expression, the free practice of religion, and other liberties that should not unjustifiably curtailed by the state. These freedoms are eloquently expressed in the Bill of Rights in the U.S. Constitution and are set forth, in substance, in the UN General Assembly Resolution establishing the International Covenant on Civil and Political Rights (ICCPR)(1966). 

The “second generation” of human rights is set forth in the International Covenant on Economic, Social and Cultural Rights (ICESCR). These rights include, for example, the right to work, the right to health, and the right to education. These social, economic, and cultural rights are the primary responsibility of the state insofar as the state has the affirmative duty to provide certain of these social and economic rights to the individual.

The “third generation” of human rights include the so-called “solidarity” rights such as the right to development, the right to peace, and the right to a healthy environment, to name a few. Paul Brietzke points out that these three generations of human rights correspond to the French revolutionary cry for liberté, égalité, and fraternité. (See Paul Brietzke, "Consorting with the Chameleon, or Realizing the Right to Development," 15 Cal. W. Int'l L. J. 560, 587 (1985).

Thus, the first generation of human rights sees the individual as the independent entrepreneur; the second, as the revolutionary worker; and the third, as the oppressed, colonized individual.

It is interesting to see that after decades of a stalwart refusal to even consider the second generation of rights, the political discourse in the United States now includes a fiercely debated idea (and a near-acceptance in some quarters) of the right to health.  This right is mentioned in Art. 25 of the UDHR and in the ICESCR, as well in some other human rights instruments.  The right to health is now seen as encompassing the right to medical care as well.

Of particular interest to me, however, is the “third generation” right to development.  The UN General Assembly recognized the Right to Development in U.N. G.A. Res. 34/46, adopted on November 23, 1979. While the right to development has a long and convoluted history, it has been quietly adopted as a legal, rather than as a human, right.

The African Charter on Human and People's Rights (also referred to as the Banjul Charter) was adopted by what is now known as the African Union (AU) in Nairobi, Kenya in 1981.  Article 22 of the Banjul Charter establishes the right to development which encompasses the rights of “all peoples” to economic, social and cultural development, and that States shall have the duty, both individually and collectively, to ensure the exercise of the right to development.  The Charter did not establish a court to enforce its terms, however.

The African Commission was established in 1987, not as a tribunal, but as a body to make reports, findings and recommendations. In 2009, the Commission found that the Kenyan Government had violated Art. 22 of the Banjul Charter by its forced removal of the Endorois (a pastoral group) from their ancestral land in order to set up a national game reserve and tourist facilities.  

Meanwhile, the AU had established the African Court on Human and Peoples' Rights under a protocol separate from the Banjul Charter.  The Court began ins operations in 2006 in Addis Ababa, Ethiopia.  The Court is empowered, inter alia, to hear cases referred to it by the African Commission.

The African Commission was unable to resolve a dispute that involved the expulsion of the Ogiek people, a Kenyan hunter-gatherer community, from their ancestral lands in the Mau forest. The case was referred to the African Court in 2012, which held that the Ogiek people had an affirmative right to development under Art. 22 of the Banjul Charter, and that their continuous eviction from the Mau Forest by the Kenyan government without effective consultation “adversely impacted their economic, social and cultural development.” 

Thus, the Court agreed in principle with the African Commission’s lower findings, and the Kenyan Government's argument that the eviction was justified by the need to protect the Mau forest was dismissed by the Court.  (See African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights vs. Republic of Kenya, Application No. 006/2012 (May 26, 2017), 208, 210.)

Although the rest of the world is very far away from recognizing, let alone enforcing, the right to development, this judicial ruling is significant.  The skeptics of the “second generation” of rights are now battling to repudiate the right to medical care as a fundamental human right.  The next challenge may well come from the “third generation” right to development.  Clearly, this story is still unfolding.

Ms. Sarkar has a distinguished academic career, and is currently an Assistant Professor at the Uniformed Services University of Health Sciences, Bethesda, Maryland. She has authored four legal texts and many law review articles. Most notably, the second edition of her text, International Development Law: Rule of Law, Human Rights and Global Finance (2d ed., Springer) has been released in the Fall 2020.