Introduction

The United Nations General Assembly (UNGA) proclaimed the Universal Declaration of Human Rights (UDHR) on the 10 December 1948. This single declaration contains a broad range of rights. For example, Article 3 contains the right to life, liberty and security of the person and Article 5, the right to be free from torture. These are civil and political rights. The UDHR also contains rights to the things we all need to live, referred to as socio-economic rights, which require the state to protect access to resources and potentially provide resources to prevent want and need.  Article 25 contains the right to an adequate standard of living including “food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, older age of other lack of livelihood in circumstances beyond his control”. Yet attempts to draft a single binding international treaty on human rights combining socioeconomic rights and civil and political rights failed, resulting instead in two distinct Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICCPR).

Despite repeated statements by the UN and international community that human rights are universal, interdependent, indivisible, and interrelated, these two groups of rights are often said to be very different. One of the reasons for this is the types of obligations that they create for states. It is suggested that civil and political rights largely require the state to refrain from doing certain things, such as arbitrarily depriving people of their liberty. This is a negative obligation. In contrast socio-economic rights require the state to act and provide resources, which is a positive obligation. As will be discussed below, this distinction is false as civil and political rights and socio-economic rights both require positive and negative obligations. However, the division of rights into groups can help explore the common obligations between certain rights and provide guidance for states as to their obligations to realise rights. One such classification of rights is the conceptualisation of rights belonging to generations.

In this classification, Vasak suggested that civil and political rights are first generation rights and socio-economic are second generation rights. Third-generation rights include rights that are based more on collective action and require co-ordinated international action to be realised. They include, among others, the right to self-determination, the right to (sustainable) development and the right to a healthy environment. The differences between rights according to Vasak’s  categorisation are summarised in the table below. However, as will be seen by the end of the chapter, this classification is no longer complete.  This table can be compared with the table at the end of the chapter, which revises this classification based on the discussion that follows.

This classification will now be used to consider the three proposed generations of rights in turn and the nature of the obligations they create for states and the international community.  First, however, some overarching human rights obligations will be considered.

Nature of Human Rights Obligations

International human rights obligations for states come from sources of international human rights law (see Introduction). Based on Article 38 of the Statute of the Internatonal Court of Justice, these are treaties, international custom, general principles of law recognised by civilized nations as well as judicial decisions and academic writings. The clearest articulation of obligations is usually in international and regional treaties. However, the statement of rights in treaties requires further definition and clarification. Human rights treaties usually contain ‘standards.’  The standards in a treaty will state a right in a way that is ‘open-textured and evolutionary.’ This means that they do not fully indicate what is prohibited or required of states. Further elucidation of the obligations for states is required so they can be applied by international, regional and domestic courts. For example, Article 3 of the European Convention of Human Rights states ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Despite the clear statement of this prohibition, the obligations, both positive and negative this creates for states, as well as what constitutes the various forms of ill-treatments have been the subject of many complaints to the European Court of Human Rights (ECtHR).  In Ireland v United Kingdom the ECtHR stated, at paragraph 167:

The ECtHR then went on to list the duration of the treatment, its physical and mental effects, and the age, sex and state of health of the victim.

Such elucidation of the content and boundaries of rights has been carried out extensively for civil and political rights by regional human rights courts and the Human Rights Committee (HRC), the body that hears individual complaints in relation to the rights in the ICCPR. The Optional Protocol for the ICESCR, giving the Committee on Economic Social and Cultural Rights the authority to hear individual complaints was only adopted in December 2008. Although the Committee has produced General Comments and monitored state compliance through the reporting procedure, there is a more limited body of jurisprudence associated with the ICESCR. For both Covenants, the General Comments of the Committees have become an important source of clarification of the content of the rights. General Comments are not law, as states do not ratify them, but they are considered authoritative interpretations of the ICCPR and ICESCR.

Article 2 of the ICCPR and Article 2 of the  ICESCR state how the rights in the respective Covenants are to be implemented and realised.

“Respect and ensure” in the ICCPR, suggests rights are to be realised immediately. This contrasts with the ICESCR that states that “steps are to be taken” within the scope of the state’s available resources. Much has been said about the difference between the wording in these two Articles, including that the rights in the ICESCR do not create immediate obligations and that they are aspirational. In the chapter on socio-economic rights, these ideas will be considered further.

Non-Discrimination

The UDHR indicates that everyone is entitled to the rights it contains, “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Articles 2 of the ICCPR and ICESCR (see box above) indicate that the rights should be achieved without discrimination. As such non-discrimination can be considered a fundamental obligation. Indeed, the Inter-American Court of Human Rights (IACtHR) has indicated that the prohibition of discrimination has reached the states of a jus cogens norm. Yet not every difference in treatment in relation to rights will constitute prohibited discrimination. A definition of discrimination has been provided by the HRC based on various international human rights treaties. In General Comment 18: Non-Discrimination (10 November 1989) UNDOC CCPR/C/21/Rev.1/Add.1 at paragraph 7 it states:

This broad definition leaves room for human rights law to develop and evolve and provide protection for characteristics not mentioned directly in treaties.

Obligations in Relation to Effective Remedies

Article 2(3) of the ICCPR requires states to ensure effective remedies for those whose rights are violated. In General Comment 31, the HRC reminded states of this obligation in relation to the rights in the ICCPR.  Remedies can be administrative or judicial but must be an effective way of establishing if violations of rights have occurred. In addition, as will be discussed further in chapters that consider individual substantive rights, states also have obligations to effectively investigate potential violations of rights. For example, the ECtHR has indicated that the use of  force by the state should be investigated to establish if it is justified. The HRC has also indicated the importance of administrative mechanisms in this context and that investigations into alleged violations of rights should be prompt, thorough and carried out by impartial bodies. The ICESCR does not contain a provision requiring effective domestic remedies. However, the  Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment 9 has stated the need for effective remedies for those whose rights have been violated. Both the CESCR and HRC have indicated that these need not necessarily be judicial, and in some situations administrative remedies, such as investigating potential rights violations by independent bodies, can be the most appropriate. However, in this context, it must be remembered that General Comments are not legally binding. Although they are an authoritative source of interpretation of the Covenant, some states may reject the interpretation which may limit effective remedies in some states in relation to socio-economic rights.

Limitations to Obligations

Most human rights are not absolute. States can place restrictions on the enjoyment of  human rights that are not absolute. This will also be discussed further in relation to individual substantive rights, but this section will discuss some general principles in relation to when and why states may restrict the enjoyment of human rights.

Absolute Rights

There are only a small number of absolute rights. Jus cogens norms including the prohibitions of torture and inhuman and degrading treatment, genocide and slavery are all absolute. The prohibition of these acts is longstanding and they apply to all states whether they have ratified treaties containing these norms or not. Unlike other forms of customary international law, states cannot persistently object to these norms. They apply and cannot be suspended even during times of war, natural disasters and other national emergencies.

The absolute nature of these rights is reinforced in human rights treaties. In the wording of many international human rights treaty articles, there are indications as to when a right may be limited. For example, Article 6 ICCPR, the right to life states that “no one shall be arbitrarily deprived of his life.” This permits the state to kill people in limited and non-arbitrary circumstances, such as in self-defence and the defence of others. For example, see the case of Suarez v Colombia where the ICCPR found a violation of Article 6 due to the police killing suspected kidnappers when it was not necessary for the police’s own defence. In contrast Article 7 ICCPR, which contains the prohibition of torture and cruel, inhuman or degrading treatment or punishment, does not contain any limited circumstances where people can be subjected to such ill-treatment.

In addition, treaties reinforce the absolute nature of these rights through articles that list rights that cannot be derogated from even in times of emergency. In the ICCPR, Article 4(2) indicates that several Articles, including those that contain the right to life, the prohibition of torture and other ill-treatment, the prohibition of slavery and servitude, as stated in the Covenant, cannot be derogated from. Similarly, Article 15(2) of the European Convention on Human Rights (ECHR) prohibits derogations from Article 2, ‘expect in respect of deaths resulting from lawful acts of war,’ the prohibition of torture, inhuman and degrading treatment and punishment, the prohibition of slavery and the prohibition of punishment without law.

Limitations

Many human rights may be limited in pursuit of a legitimate aim. Such limitations should be set out in law, and necessary and proportionate in a democratic society. These requirements ensure limits to rights are transparent and fully justified and prevent arbitrary limits on the enjoyment of rights.  Articles of rights that can be limited in this way will usually list the reasons for which the right should be restricted. For example, Article 18(3) of the ICCPR indicates that the freedom of religion can be ‘subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The right to respect for private and family life is another example of a right that can be limited. The European Convention lists the reasons that states may rely on to limit the enjoyment of this right in Article 8(2)

In addition to the right being limited for one of the reasons listed in such articles, the limitation must also be necessary. To assess whether a restriction of a right is necessary, the principle of proportionality is used (see Chapter on Core Principles) A proportionality assessment considers the importance of the limitation, referred to as a ‘pressing social need’ by the European Court of Human Rights (ECtHR), the relevance of the measure to the aim being pursued, and that it is the least restrictive way to achieve that aim. (For examples see General Comment 27 of the HRC on the Freedom of Movement and the ECtHR fact sheet on Article 11 ECHR).

Returning to Article 8 ECHR, many cases considered under Article 8 of the ECHR are related to child custody proceedings. In such cases, the right to family life of some, may have to be restricted for the protection of rights of the children involved or other members of the family. This may be necessary, for example, to protect a child from family members that may cause the child psychological or physical harm. In the case of Bronda v Italy, the parental rights of the parents and grandparents were limited to protect the interests of the child. The grandparents complained of a decision to remove the child from the family which limited their Article 8 rights. However, in this case, the abuse and neglect suffered by the children meant the removal of the children was necessary to protect them from further treatment that amounted to inhuman and degrading treatment and a violation of Article 3 ECHR. As such, this limitation of the rights of the grandparents was proportionate and necessary to protect the rights of the children.

Derogations

Derogations from human rights obligations are permitted if they are strictly required to respond to an emergency. In such situations, states may be unable to facilitate realisation of all human rights obligations. For example, during the COVID-19 pandemic, many states limited people’s freedom of movement and association to limit the spread of the virus. Although such measures may have been justifiable and necessary, such widespread limitations of rights cannot be arbitrary and so human rights treaties will usually contain strict rules around the length of time derogations can be in place as well as mechanisms for oversight and monitoring. For example, Article 15 of the ECHR sets out the requirements and limitations on derogations from the rights in the Convention.

Typologies for Human Rights Obligations

Before moving to consider the three generations of rights further, it is necessary to briefly discuss the use of typologies, particularly that the ones discussed in this chapter are just a few examples from the many ways people have described and classified human rights obligations. This chapter started with the idea of negative and positive obligations. Negative obligations requiring a state to refrain from doing something, such as torturing people. Positive obligations require the state to do or provide something, such as housing to the homeless. In the section on socio-economic rights the respect, protect and fulfil typology will also be discussed.

However, these are just two typologies that have been used to help define, compare and understand the obligations states have in relation to human rights. For example, Lavrysen has further categorised positive obligations. Substantive positive obligations require states to adopt legislation and procedural positive obligations which would require effective investigations into potential violations of rights. He also divides positive obligations into vertical and horizontal obligations. Vertical obligations protect an individual from the state and horizontal obligations require protection of individuals from other individuals. For example, the ECtHR has stated that the right to life not only requires states to refrain from the arbitrarily killing those in its jurisdiction, but also that the states must take steps to protect the lives of those within their jurisdiction, including from threats from non-state actors. (For further discussion see Osman v UK and the chapter in this textbook on the right to life and Stoyanova on Positive Obligations under ECHR)

This section has discussed some general considerations in relation to human rights obligations. Most rights are not absolute and can be limited and also derogated from in the times of emergency. There are some overarching obligations that apply to all rights such as non-discrimination and certainly for civil and political rights, the right to effective remedies. The section also introduced the idea that the nature obligations required for civil and political rights is different from socio-economic rights, and this discussion will be continued in the next to sections.

Civil and Political Rights

The Nature of Civil and Political Rights

Civil and political rights are a group of rights that protect the life, liberty, integrity and opinions of a person against the state. They can be further divided into two groups. Civil rights broadly speaking include rights such as the right to life, the right to be free form torture and inhuman and degrading treatment, the right to liberty and the right to a fair trial. These protect not only people’s lives, but also their mental and physical integrity, as well as limiting arbitrary detention. Political rights are those that ensure democratic participation, freedom of expression, and freedom of thought, conscience and religion. Protection of such rights, as will be discussed in further detail below and in subsequent chapters dealing with individual substantive rights, require certain structures and institutions to be in place. This might suggest that democracy, with its associated checks and balances would be required for the realisation of civil and political rights. However, it should be noted that international human rights law does not indicate preference for a particular political system.

For example, in General Comment 3 the CESCR indicated that it does not advocate for a certain system of government or specific economic and political systems. Likewise, in General Comment 25 the HRC indicated that the ICCPR does not require a particular electoral system. However, it does indicate that the state must “guarantee and give effect to the free expression of the will of the electors” (see paragraph 21). Although this would suggest that a democratic government may be more likely to facilitate full realisation of civil and political rights, it is by no means a guarantee that violations of rights will not occur. In many countries with democratic systems of government, as Fredman argues, there are structural factors that can result in discrimination, inequality and social exclusion. Socio-economic factors, such as poverty can also contribute to an increased risk of arbitrary arrest, detention and ill-treatment, all violations of civil and political rights.

Obligations for Civil and Political Rights

Civil and political rights are often considered to entail negative obligations. The state should not arbitrarily kill people in their jurisdiction, they must not torture people and should not infringe people’s right to expression unless it is justified and proportionate.  However, when considering what is required to fully realise these rights, it becomes apparent that civil and political rights also entail positive obligations. For example, the right to vote (Article 25 ICCPR) cannot be realised without specific policies that ensure that everyone eligible can vote. As stated by Regan J in the South African Case of Richter, the right to vote ‘necessitates an electoral system and the calling of elections.’ This requires policies that ensure accessible voting locations, which would also require a degree of investment and infrastructure.

Article 1 of the American Convention on Human Rights (ACHR) indicates that state parties have to both ‘respect’ and ‘ensure’ the rights and freedoms in the Convention. The ACtHR has clarified that this requires states to both respect and guarantee the rights contained in the Convention. It goes on to clarify that the requirement for respecting the rights, limits the exercise of public authority. Such limits are necessary as the relationship between human rights and dignity means rights are “superior to the power of the state” (see paragraph 165 of Velásquez-Rodríguez v. Honduras). This clearly articulates the nature and reason for the negative obligations derived from rights in the Covenant. Ensuring the rights and freedoms, however, requires positive obligations such as organisation of government institutions, as well as preventing, investigating and punishing violations of human rights (see paragraph 166 of Velásquez-Rodríguez v. Honduras). Positive and negative obligations have also been developed by the African Commission on Human and People’s Rights (ACmPHR).  Such positive obligations also include the obligation to investigate and punish violations of rights, including those committed by non-state actors.

Returning to the table at the beginning of the chapter, it can now be seen that civil and political human rights also require positive obligations for their full realisation. These rights are not just obligations for states to refrain from certain actions, and for some rights can require extensive investment in infrastructure and institutions.

Economic, Social and Cultural Rights

Nature of Socio-Economic Rights

Economic, social and cultural rights include entitlements relating to a broad range of conditions required for people to live a dignified life. This includes obligations related to the right to work, the right to an adequate standard of living, the right to health, the right to education and right to participate in cultural life. In international human rights law these rights are contained in the ICESCR, as well as international treaties that recognise the rights of specific groups of people such as the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. Some regional human rights treaties also contain socio-economic rights. As already discussed, it is often suggested that socioeconomic rights are distinct from civil and political rights. Socio-economic rights require negative obligations, just as civil and political rights require positive rather obligations. For example, the right to form and join trade unions, found in Article 8 of the ICESCR requires states to refrain from interfering in the formation and function of trade unions.

However, some socio-economic rights do require extensive positive obligations for their realisation. For example, in General Comment 14, the CESCR has indicated that the right to the highest attainable standard of health requires amongst other obligations, national health plans, access to health facilities and the provision of essential drugs, which for many states will require extensive infrastructure and spending. Such extensive obligations have led to the proposal of other ways of clarifying and determining the obligations states have for socio-economic rights as well as civil and political rights. These typologies will now be considered.

Typologies and Socio-Economic rights

The discussion below considers ‘typologies’ used to determine the nature of obligations for states in relation to human rights. Such obligations apply to both civil and political as well as socio-economic rights, but they are discussed here as they were largely developed in the context of socio-economic rights. Other features of the obligations that socio-economic rights create for states, including the minimum core, progressive realisation and extraterritorial obligations are discussed further in the chapter on socio-economic rights.

In General Comment 12, the CESCR stated that, as with any human right, the right to food contains three types or levels of obligation. Specifically, respect requires states to maintain and not interfere with current access to food and to not take measures preventing access. Protect requires states to prevent other individuals or organisations from depriving people of access to food. Finally, the CESCR indicated that fulfil contains two components. Firstly, states should facilitate access to, as well as utilisation of, resources to ensure food security. Secondly, states should provide food when people are unable to access food, including situations such as natural disasters. The CESCR also acknowledges that some of these obligations are more immediate, while others are longer term as part of the progressive realisation of the right to food.

In General Comment 13, the CESCR used a different set of obligations of availability, accessibility, acceptability and adaptability in relation to the right to education. Alston has proposed obligations of recognition, institutionalisation and accountability. He argues that the current failure of implementation of socio-economic rights is a consequence of a lack of legal recognition, institutional arrangements to ensure realisation of the rights and ways to make governments accountable, which is addressed by his suggested typology. However, despite these variations, it is the respect, protect and fulfil typology that has been most widely adopted in relation to socio-economic rights.

Typologies serve a useful purpose in demonstrating that socio-economic rights do contain levels of obligations for states. Yet typologies are not without criticism. Despite their theoretical value, in practice it can often be difficult to determine which level an obligation falls under. Obligations can apparently overlap, and in some situations a state may need to respect, protect and fulfil to realise a component of a certain right. In their Concluding Observations, the CESCR do not uniformly use the respect, protect, and fulfil framework, for example General Comment 13, as mentioned above, uses four A’s. For these reasons some suggest it is better to determine the specific obligations each right creates for states.

This section, like the discussion about civil and political rights, has demonstrated that socio-economic rights also require both negative and positive obligations for their realisation. In addition, it has discussed the typologies for the implementation of socio-economic rights, a topic that is further discussed in Chapter 9 on socio-economic rights. The discussion so far has focused on states’ obligations in relation to human rights within their domestic jurisdictions. The next section discusses when and what obligations states have in relation to people outside of the borders of their state.

Extra-Territorial Obligations

In general, states owe human rights obligations to those that are within their jurisdiction, which is primarily territorial. States agree to human rights obligations and then must ensure they are realised for those that are within that jurisdiction. However, there are many situations where states could have responsibility for human rights violations in other territories or act in a way that hampers the realisation of human rights in other states. For example, when are states responsible for human rights in an area that they are taking military action against? Do developed states have any obligations in relation to poverty and hunger in developing and least developed countries? Do states have responsibilities to address climate change, pollution and other forms of ecological damage across the globe? Some of these questions are explored in the chapter on the scope of obligations in international human rights law, as well as in chapters discussing individual substantive rights. This discussion will briefly outline the principles and debates in relation to civil and political rights and socio-economic rights before moving to consider how third generation human rights create obligations to tackle global threats such as climate change.

Civil and Political Rights

In the ICCPR, the starting point for the jurisdictional scope of the rights it contains is in Article 2(1). This requires that states should “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” The HRC has clarified that the obligation to respect and ensure an individual’s rights includes anyone within “the power or effective control” of a state, even if not in the territory of a state. The meaning of effective control has been elaborated upon Committee and encompasses two general situations. Firstly, when the territory the individual is located is under the effective control of a state (spatial – ‘control over the territory’). Secondly, when the individual is under the control of the state or its agents (personal – ‘control over the victim’).

The ECtHR has followed a similar approach. Article 1 of the ECHR states that the parties shall “secure to everyone within their jurisdiction the rights and freedoms” within the Convention. The ECtHR has gone on to indicate three approaches to jurisdiction, spatial and temporal, similar to the ICCPR. The third is a procedural component, which relates to states obligations to investigate violations of human rights. In Hanan v Germany, the ECtHR established that Germany had jurisdiction in relation to an investigation in Afghanistan of the death of 100 civilians. Jurisdiction in this case was established due to several “special features” that together triggered a jurisdictional link. This link was based on the duty of Germany to investigate breaches of international humanitarian law, on obligations under German law to investigate, as well as the prevention of Afghan authorities from investigating themselves.

The Inter-American System has used a threshold of effective control over a person. The jurisdiction clause in Article 1 of the ACHR is almost identical to that of the ECHR, stating that all “persons subject to their jurisdiction” should have their rights respected. In the work of the Commission and Court, this has been clarified – to establish jurisdiction there needs to be ‘“authority and effective control” over a region or individual. This can mean the person may be within the control of a state’s agents abroad or when a state has taken control over either a whole state or part thereof. In relation to Article 4 of the African Charter on Human and Peoples’ Rights (ACHPR), the right to life, the ACmHPR have also used the idea of effective authority, power or control over individuals to indicate when there will be extraterritorial jurisdiction. In General Comment 3 paragraph 14, the Commission observed

Socio-Economic Rights

The extent of extraterritorial obligations for socio-economic rights is also debated. International cooperation is mentioned in relation to socio-economic rights in several human rights treaties. Article 2(1) ICESCR indicates the rights in the Covenant are to be realised individually “and through international assistance and cooperation”. Article 4 of the Convention on the Rights of the Child refers to the “framework of international cooperation in relation to the realisation of economic, social, and cultural rights.” The ACHR includes international cooperation in both Article 26 and in Article 1 of the Additional Protocol that deals with socio-economic rights. However, the meaning of cooperation and any related obligations for the realisation of socio-economic rights is not defined by these treaties.

The International Court of Justice (ICJ) has considered the impact on socio-economic rights of Israel’s actions in the Advisory Opinion concerning the building of a wall in Palestine Occupied Territory. The ICJ indicated that the area was under the jurisdiction of Israel, which meant that Israel was responsible for human rights in the area, including socio-economic rights. However, states often resist claims that they are responsible for socio-economic rights beyond their own borders, even refuting an obligation to provide food aid despite long standing practices of providing such aid. Such states may claim that they provide such aid, as it is a moral duty, rather than a legal obligation, especially as the ICESCR does not state what obligations international cooperation and assistance creates for states.

In addition, although it is often stated that developed states should provide 0.7% of Gross Domestic Product as international assistance, many states do not do so. This is not a clear legal obligation and although the CESCR will comment on state’s budgets for international assistance, it often does little more than to encourage states to increase their budget for international aid if they fall below this level. There is also no clear guidance as to whether there are obligations associated with aid that is provided. For example, the Concluding Observations on the UK in 2016 raised concerns about financial aid being spent on private education projects that potentially affected free education as well as being discriminatory, the CESCR only called for human rights impact assessments for projects, monitoring, and a complaint mechanism for receiving countries. There was no indication of how such aid could be better spent.

The CESCR has however indicated certain extraterritorial duties within their General Comments. These are considered as part of the tripartite typology discussed above. The duty to respect includes an extraterritorial obligation to not interfere with the enjoyment of the rights in the Covenant of those outside their territories. The CESCR also has stated that states have an obligation to protect rights in other states in the context of the activities of businesses overseas. States also have a general extraterritorial obligation to fulfil rights through creation of an international environment that facilitates the realisation of rights in the ICESCR. These obligations recognise the interconnected nature of states in a time of globalisation. In addition, a group of legal experts adopted the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights in 2011. Principle 9 specifies

Although these may suggest obligations to states, these principles are not legally binding. Yet many of the threats that are facing the world, such as climate change and poverty may require more direct legal binding extraterritorial obligations. Third generation human rights suggest such obligations.

Third Generation Human Rights

 Nature of Third Generation Rights

Third generation rights, often referred to as ‘solidarity rights’, encompass collective and future-oriented rights that necessitate cooperation across societal and national boundaries. These rights are based on the premise that certain entitlements extend beyond the individual to prioritise the benefits of collective entities while simultaneously serving individual interests. For example, protecting the environment from industrial pollution benefits not only individuals living near hazardous activities, but also safeguards the well-being of present and future generations who may be indirectly affected, such as through rising sea levels due to climate change.

The development and promotion of third-generation rights have primarily been driven by Global South countries. These states have criticized the International Covenants for their perceived Western liberal bias which privileges individual rights over communal and collective interests. This critique highlights a broader dissatisfaction with the limitations of these instruments in overlooking non-Western constructs and the diverse experience of non-Western states. According to Freedman, third-generation rights can be understood as emerging in two distinct historical ‘waves’.

The first wave is linked to postcolonial discourse and emerged from the political and legal struggles of newly decolonized states. Central to this wave is the right to self-determination—arguably the foundational third-generation right—which reflects the desire of formerly colonized nations to assert sovereignty and political independence in response to centuries of foreign domination (see Cristescu). Closely related is the right to permanent sovereignty over natural resources, a direct response to the historical exploitation of colonized territories by imperial powers (see Schrijver). These rights not only address past injustices but also assert collective agency and autonomy over national development paths.

The second wave of third-generation rights marks a conceptual expansion beyond postcolonial concerns, reflecting broader efforts by the Global South to incorporate alternative worldviews and ideological perspectives into the international human rights law framework. This wave is also closely linked to the emergence of global challenges, including globalization and the ongoing triple planetary crises of pollution, climate change, and biodiversity loss. These challenges necessitate a re-conceptualisation of the current legal protection system beyond traditional western understandings. This wave includes rights such as the right to a clean, healthy, and sustainable environment and the right to (sustainable) development or the rights of future generations, which were initially neglected or inadequately addressed in other international instruments. These rights reflect a shift towards a more ecological and future-oriented understanding of human rights law, highlighting the importance of sustainability and long-term responsibility.

Types of Obligations

Third generation rights were originally considered to entail positive obligations similar to socio-economic rights. However, as previously argued, there is no bright line distinction between negative and positive obligations. A combination of both is usually required for States to fully realise human rights, including third generation rights. For this reason, Fredman suggests focusing on the nature of the obligations rather than on categorising rights, by contending that each set of rights give rise to a cluster of obligations. The United Nations have long adopted the tripartite typology of human rights obligations, according to which, States must ‘respect’, ‘protect’ and ‘fulfil’ human rights, which also applies to third generation rights. This framework underscores the multifaceted responsibilities of states in ensuring human rights.

In view of their universal, indivisible, interdependent and interrelated nature, third generation rights, like their predecessors, share a common normative foundation rooted in protecting human dignity and should be understood as part of a unified framework. Nonetheless, they reflect the evolution of human rights law in line with contemporary aspirations, values and surrounding circumstances. In continuity with the debates and developments that emerged in relation to previous generations, the advent of third generation rights has further challenged the dominant position of what constitutes a ‘human right’.

According to Freedman, third generation rights challenge traditional western conception of human rights law in terms of substance, subject and scope. While substance refers to the content of the right, subject refers to who is bound by the rights (duty-bearers) and to whom they are owned (right-holders) and the scope defines the area where a state is bound by that right (jurisdiction). This section illustrates these three aspects by focusing on the right to (sustainable) development, the right to a clean, healthy and sustainable environment and the rights of future generations.

Substance

These rights challenge the traditional dominant anthropocentric notion of human rights. They do so by bringing new dimensions into the human rights matrix. The conventional understanding of human rights is grounded in the idea that humans are the sole bearers of intrinsic worth (see 1993 Vienna Declaration, preamble). In contrast, by bringing the environment into the human rights realm, the right to (sustainable) development and the right to a clean, healthy and sustainable environment recognise that humans and nature are co-dependent (see the chapter on Human Rights and the Environment). By viewing environmental degradation and climate change through a human rights prism, these rights push for a paradigm shift towards an ecological approach to human rights law, wherein humans are no longer the sole focus of human rights protection.

This view has been advanced by the Global South, whose communities, well before Rachel Carson’s Silent Spring was published, have developed rich ecological traditions, rooted in spiritual and ancestral ties to the land and ecosystems. It is significant that, unlike core international human rights treaties, the African Charter on Human and Peoples’ Rights (ACHPR) enshrines rights to development, peace, and a satisfactory environment, reflecting African legal traditions that prioritize communal welfare and interdependence (Articles 20–24). Similarly, the American Convention on Human Rights, through an Additional Protocol, recognises the right to a clean, healthy and sustainable environment (Article 11). Such perspectives have also gained momentum in response to the current ‘triple planetary crisis’ of pollution, climate change, and biodiversity loss, thus becoming central to the evolution of third generation rights. Sustainable development, for instance, reconciles the right to development – first-wave third-generation right – with the protection of the environment. Since the adoption of 2015 Sustainable Development Goals, the links between development, environmental sustainability, and human rights have become more explicit, promoting a more comprehensive understanding of the right to development. In this vein, while outlining his vision for reinvigorating the right, the UN Special Rapporteur Deva Surya has emphasised that ‘the right to development is not a license to destroy the planet’. In doing so, he has called for “mov[ing] towards a model of planet-centred-participatory development” to minimise the negative consequences of anthropocentrism that ‘tend to ignore the relevance of nature and the environment’ to human existence.

Additionally, they introduce a new temporal dimension to human rights thinking. While economic, social, and cultural rights have long required ‘progressive realization’, they remain largely present-focused. The principle of intergenerational equity posits duties in relation to future generations to ensure equitable options, quality and access to natural and cultural resources. The Maastricht Principles on the Human Rights of Future Generations (HRFG), newly adopted by a group of experts, suggests obligations on States that prioritise forward-looking approaches in the recognition that ‘humanity exists within an unbroken continuum in which the line between past, present and future generations continually shifts as new children are constantly being born’ (for further detail see Basson et al). In this context, States are tasked to take measures to facilitate the just distribution of resources, benefits and burdens across generations, for instance, by imposing reasonable restrictions on activities – whether public or private – that may lead to the long-term decline and depletion of nature.

Third generation rights also shift emphasis from rights to responsibilities and duties. This echoes the ACHPR, which unlike other human rights instruments, not only includes a significant list of collective rights (Articles 20-24) but it articulates them more as duties rather than rights. According to UN Special Rapporteur David Boyd, under the right to a clean, safe, and healthy environment, States have a range of obligations—procedural, substantive, and special duties toward vulnerable populations—that primarily relate to the rights of the collective rather than the rights of individuals. The six substantive components—namely, clean air, a safe climate, safe and sufficient water, healthy and sustainably produced food, a non-toxic environment, and healthy ecosystems and biodiversity—require States to establish specific regulatory frameworks, conduct environmental assessments, and due diligence. Furthermore, States must regulate private enterprises by setting standards for clean and safe air, water, and soil or prohibiting toxic substances, phasing out fossil fuels, and transitioning to a green economy in accordance with the Paris Agreement, with particular attention to marginalized groups, including environmental defenders and indigenous communities. Additionally, under the procedural aspect, States are responsible for ensuring accessibility, transparency, and accountability in matters related to environmental and climate change issues.

Subject

Third generation human rights have expanded the traditional understanding of who is the duty-bearer and who is the right-holder. While, almost all rights of the first and second generation focus on states and individuals, third generation rights bring to the fore the idea of collective or people’s rights. By focusing on the right to (sustainable) development, to a clean, healthy and sustainable environment and rights of future generations, rights of third generation broaden the spectrum of human rights’ subjects, thus including multiple right-holders and multiple duty-bearers.

In this new landscape, states are not only primary duty-bearers but also right-holders. Pursuant to Article 3 of the 1986 Declaration on the right to Development, States have a duty to cooperate with each other to ensure development and to eliminate relevant obstacles. This entails a duty to provide financial and technological assistance or support, developmental aid, institutional capacity building and knowledge sharing, with a particular attention towards developing countries, via bilateral or multilateral agreements. This has two major implications. On the one hand, human rights of third generation aim also at benefitting states as both individual entities and as a group of states. On the other hand, as they require a collective effort, states may be deemed responsible for rights being realized in other states. This clearly builds upon the economic, social and cultural human rights’ framework and the role of international cooperation in their realisation (see discussion above). But it brings it even further given that international cooperation and assistance in Articles 1(3), 55 and 56 of the UN Charter are core duties of third generation rights due to the nature of the challenges they are meant to address (in the context of climate change, see Advisory Opinion n. 32/25 of the IACtHR, paras 247 ff and Advisory Opinion n. 187/25 of the International Court of Justice, paras 301 ff).

Moreover, individuals and communities can also be tasked to do their part in ensuring the promotion, respect and fulfilment of these rights. The 1986 Declaration on the right to Development establishes that “all human beings have a responsibility for development, individually and collectively” (Article 2(2)). This is a radical shift from original Western conceptions where States are considered to be exclusive duty-bearers and individuals are exclusive right-holders, which is rooted in African ideology (see Okere). This applies also across time, as Principle 8 of the Maastricht Principles on the HRFG establishes that “each generation has the duty to protect and sustain the Earth’s natural and cultural heritage for future generations.” Under the intergenerational perspective, each generation is vested with responsibility to act on behalf of the interest of the future generation (for further detail see Basson et al).

Finally, other actors are also bound to respect, protect and fulfil these rights. International organisations and non-states actors, such as business enterprises and civil society organisations, are also duty bearers for the right to (sustainable) development and the right to a clean, healthy and sustainable environment. According to the proposals of Boyd and Surya, as the current planetary crisis is propelled by irresponsible and unsustainable economic and business models, corporations must refrain from treating workers as commodities to maximise profits, promoting unsustainable consumption or lobbying against States’ policies on phasing out fossil fuel. These concepts build upon earlier human rights developments, leading to the United Nations Guiding Principles on Business and Human Rights, which outline standards for states and companies to prevent, address, and remedy human rights abuses in business operations, now evolved to include climate change (on the role of corporations in the context of climate change see also Morgera). Similarly, as suggested by Surya, civil society organisations and non-governmental bodies must play a role by raising awareness, providing expertise, advocating for policy changes and monitoring State compliance and creating space for direct participation.

In summary, under the framework of third-generation human rights, every individual is expected to both collaborate towards the highest possible ambition as well as benefiting from these collective endeavours. This is why third-generation rights are referred to as “solidarity rights,” as they invoke a sense of international solidarity—a concept articulated by Baillet as “the expression of a consciousness about the interconnectedness” of all people across space and time “in the recognition of the rights of others and shared agency and responsibility to cooperate with each other to address common challenges and protect global public goods” (as quoted in Basson et al, p. 65) This necessitates a whole-of-society approach that engages all relevant stakeholders in the pursuit of these shared objectives.

Scope

Traditionally, States are bound to respect, protect and fulfil human rights within their jurisdiction, which is the territory over which they exercise control. Only, in exceptional circumstances, they may also be obliged to do so extraterritorially (see above). This is in line with the Westphalian international legal order which is based on the coexistence of sovereign states ‘peacefully apart’. Third generation human rights challenge such understanding as they extend the scope of rights beyond national borders and interests. The right to a clean, healthy and sustainable environment and the right to (sustainable) development, for example, seek to place obligations on States to ensure a fair and equitable distribution of wealth to enable other States to have enough resources to realise human rights within their territories, including those of the future generations.

According to the UN Special Rapporteur on the right to a clean, healthy and sustainable environment, David Boyd, states must cooperate to ‘tackle tax evasion and avoidance, unfair tax competition, profit-shifting, money-laundering and illicit financial flows, all of which undermine States’ capacity to leverage resources towards realising human rights’. Principle 24 of the Maastricht Principles on the HRFG emphasises the role of States in preventing and resolving “unsustainable State debt (including as appropriate, through unconditional debt relief).” While they build upon the ESCR’s framework on extraterritorial obligations, third generations rights’ scope goes beyond the traditional understanding on where states owe their obligations as discussed in the section above. There are limited agreed extraterritorial obligations in relation to socioeconomic rights, despite the need for international cooperation to tackle issues such as global poverty.

International cooperation and solidarity are essential for achieving shared human rights objectives. As explained by UN Independent Expert Rudi Muhammad Rizki, these objectives are grounded in the principle of shared responsibilities across borders, meaning that all states have extraterritorial obligations. Following this line of reasoning, extraterritorial obligations related to climate change have been increasingly recognised by international and regional human rights bodies. For instance, in Advisory Opinion 23/17, the Inter-American Court of Human Rights, by recognising the right to a healthy environment, established that states must prevent transboundary environmental harm when they have effective control over the source of that harm (provided the source of that harm lies on their territory), thereby introducing a broader concept of extraterritorial jurisdiction. This interpretation, which defines jurisdiction as “control over the source of harm” (but not the victim), was also endorsed by the UN Committee on the Rights of the Child (CRC) in Sacchi et al. v. Argentina et al. and reiterated in General Comment No. 26. By appealing to the principle of inter-generational equity, the CRC emphasised that states possess the ability to regulate the activities responsible for emissions. However, in Europe, the expansion of human rights obligations abroad is still a contentious issue. The European Court of Human Rights applies extraterritorial jurisdiction only in exceptional circumstances (i.e. ‘control over the territory’ or ‘control over the victim’), creating ongoing tension within the European framework regarding states’ responsibilities for climate-related impacts beyond their borders, as noted by Rocha and Heri (for further detail see the chapter on Human Rights and the Environment).

The ideology underpinning the shared responsibilities is rooted in African ideologies on responsibilities for other states and in post-Marxist theories on global inequalities and more recent, environmental/climate/planetary justice discourses. According to this ideology, obligations are shared across all states but cannot be uniform. Under the right to a clean, healthy and sustainable environment and the rights of future generations, wealthier states must lead the way because they are ‘in a position to assist’ and bear greater responsibilities for addressing global environmental challenges, particularly because of their major role in contributing to the problem. In doing so, they appeal to the principle of common but differentiated responsibilities and respective capabilities of international environmental law (see chapter on Human Rights and the Environment).

Drawing on what appears such understanding, the UN Special Rapporteur on the right to (sustainable) development, Surya states that the latter “offers the potential to address structural issues in the current economic order that systemically disempower developing countries from realising the human rights of their people”. In particular, “it offers a unique “language of resistance deployed both to challenge perceived inequities of the global political economy and to claim development assistance and cooperation as a human rights entitlement in a globalising world.”” In other words, as they aim to eradicate global inequalities through a rebalancing of global powers dynamics (they aim to the creation of new institutional international global order) human rights of third generation place on states responsibilities and results that transcend national borders.

Challenges

Despite their visionary scope, international law has been somewhat hesitant to recognise ‘solidarity rights.’ To date, there are no legally binding international instruments that enshrine third-generation rights, and international law remains primarily focused on individual entitlements. The right to (sustainable) development, for instance, is rooted in the 1986 Declaration on the right to Development, in the 1972 Stockholm Declaration, the 1992 Rio Declaration on Environment and Development and the SDG Agenda 2030. These documents express aspirations and set standards but do not create legally binding obligations for states. A similar reasoning is applied to the right to clean, healthy and sustainable environment and the rights of future generations. While the UN General Assembly has recently recognised that a clean, healthy and sustainable environment is a human right, the adopted Resolution 76/300 is not a legally binding document. Similarly, while intergenerational equity and future generations rights have been mentioned several times, including in the 1972 Stockholm Declaration, the 1986 Declaration on the right to Development, the UN Declaration on the Rights of Indigenous People, until its in-depth holistic articulation in the recently adopted Maastricht Principles on the HRGFG, this recognition does not pass through hard law instruments.

However, the pursuit of these rights is not solely aspirational. There is an increasing acknowledgment of third-generation rights within national constitutions, legislation, and regional instruments. The right to a clean, healthy and sustainable environment is now legally recognised in more than 80 per cent of UN Member States (161 out of 193 States) through constitutions, legislation and regional treaties. Forty one percent of constitutions worldwide provide explicit protection for future generations and besides the explicit recognition in some constitutions, the process of drafting a covenant on the right to (sustainable) development is also at an advanced stage at the UN Human Rights Council, which once adopted will make it a legally binding international obligation. Moreover, through advocacy and strategic climate litigation, these rights have been increasingly recognised by courts at all levels across countries of all regions, thereby gaining legally binding status (see Chapter 9).

Moreover, the threats that many third generation rights seek to address, such as climate change, environmental destruction, and poverty and global inequality also impact civil and political and socio-economic rights. Recent rulings and advisory opinions from the International Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights discuss the impact of climate change on the right to life and some socio-economic rights. Other human rights bodies and international courts have also considered the impact of climate change on human rights. The global threats we face demonstrate more than ever the interconnected nature of human rights, and positive obligations for states and the international community as a whole. If we return to the table at the beginning of the chapter, the discussions above would indicate it should be (changes to the original table are in bold):

Further Reading

Koldo Casla and Marion Sandner, Solidarity as Foundation for Economic, Social and Cultural Rights, (2024) 24 Human Rights Law Review

Carl Jauslin, ‘Solidarity and Human Rights. A difficult marriage with great potential’ (2024) 13 ESIL Reflections (European Society of International Law) 10

Sandrine Maljean-Dubois: The No-Harm Principle as the Foundation of International Climate Law in Debating Climate Law by Benoit Mayer and Alexander Zahar (CUP 2021)

Kobylarz Natalia, Evadne Grant, Human Rights and the Planet. The Future of Environmental Human Rights in the European Court of Human Rights. A Special issue of the journal of Human Rights and the Environment.

Aoife Nolan, ‘Children and Future Generations Rights before the Courts: The Vexed Question of Definitions’ (2024) 13 Transnational Environmental Law 522

Aoife Nolan, The Children are the Future – Or Not? Exploring The Complexities of the Relationship between the Rights of Children and Future Generations (EJIL:Talk! 26 May 2022)

Aristi Volou, ‘The Protection of Socio-Economic Rights through the Canon of Civil and Political Rights: A Comparative Perspective’ (2017) 5 Groningen Journal of International Law 147

Margaretha Wewerinke-Singh, Ayan Garg, Shubhangi Agarwalla ‘In Defence of Future Generations: A Reply to Stephen Humphreys’, (2023) 34 European Journal of International Law 651

Deva Surya – UN special Rapporteur on the right to (sustainable) development

David Boyd – UN special Rapporteur on the right to a healthy environment Interview 1 and Interview 2.

Commentary on the Maastricht Principles on the rights of the future generations

Suggested Citation – Clare James and Erika Moranduzzo, ‘Types of Obligations in International Human Rights Law’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)