Human rights are natural rights guaranteed to all individuals, regardless of social class, ethnicity, gender, nationality or political position. In the definition of the United Nations, they consist of “universal legal guarantees that protect individuals and groups against actions or omissions of governments that violate human dignity”. When human rights are determined in a legal order, such as treaties and constitutions, they are called fundamental rights.
Human rights are constructed through different historical contexts, molding themselves to the needs of each era. This gives them a sense of evolution that occurs with each generation. For this reason, in 1979, a lawyer named Karel Vasak created a classification of “generations of rights”, which has no scientific pretensions, but helps to situate the different categories of rights in the historical context in which they arose.
In 1979, Vasak presented his generational theory published two years earlier in a lecture. The lecture was the result of a conference at the International Human Rights Institute in Strasbourg (France). The basis of his theory is the principles of the French Revolution: freedom, equality and fraternity. These three concepts are used to divide human rights in a didactic way into three historical perspectives of understanding.
Through Vasak's generational theory, it is possible, therefore, to distribute human rights in: first generation (freedom), second generation (equality) and third generation (fraternity).
First generation human rights
The first generation of human rights is associated with the context of the late 18th century - more precisely the independence of the United States and the creation of its constitution in 1787 - and the French Revolution in 1789. Its historic landmark is the Declaration of Human Rights and Citizen.
This generation has as its main element the classic idea of individual freedom, focused on civil and political rights. These rights could only be achieved by abstaining state control, since their performance interferes with the freedom of the individual.
Civil or individual rights are prerogatives that protect human integrity (protection of physical, mental and moral integrity) against abuse of power or any other form of state arbitrariness. Examples of civil rights are freedom of expression, right to due process, presumption of innocence, protection of private life, freedom of movement, among others.
Political rights, on the other hand, ensure popular participation in the administration of the State. The core of this right involves the right to vote, the right to be voted, the right to hold political positions or functions, and finally the right to remain in those positions. These are citizenship rights, which also ensure rights related to the electoral process, such as party affiliation, electoral enlistment and alternation of power.
The difference between civil and political rights is that the first is universal, that is, it covers all people, without any distinction. But political rights are participation rights restricted to citizenship and therefore only affect voters, guaranteeing them the right to participate in the political and institutional life of their country.
Second generation human rights
Second generation human rights emerge after the First World War, when the concept of the Social Welfare State begins to strengthen. It arises a need for the State to guarantee equal rights of opportunity for all citizens, through public policies such as basic access to health, education, housing, work, leisure, among others.
Thus, the second generation is linked to the concept of equality and more concerned with the power to demand the State the guarantee of social, economic and cultural rights, all essential to the possibility of a dignified life.
These rights appear in the form of so-called fundamental rights, as they impose on the State a set of obligations that materialize in constitutional rules, the execution of public policies, social programs and affirmative actions. It is the State's obligation to comply with them, subject to sanctions otherwise.
Many legal systems have been influenced by this new classification. Among them, the French Constitution of 1848, the Mexican Constitution of 1917, the Treaty of Versailles, of 1919, and the German Constitution of 1919, known as the Weimar Constitution. The latter had a strong influence on democratic countries.
In Brazil, social rights, characteristic of the second generation, appear in article 6 of our most recent constitution, which ensures:
“Education, health, food, work, housing, transportation, leisure, security, social security, maternity and child protection, assistance to the destitute, as provided for in this Constitution, are social rights. " (CF, art. 6)
Still in our constitution tion, we can find a series of examples of the other two categories of second generation rights. Regarding economic rights, he says:
"The economic order, founded on the valorization of human work and free initiative, aims to ensure a dignified existence for all, according to the dictates of social justice [...]" (CF, art. 170)
For that, it must respect the principles of free competition, social function of property, private property, consumer protection, reduction of regional and social inequalities, search for full employment, among others. The same article further states that:
"Everyone is guaranteed the free exercise of any economic activity, regardless of authorization public bodies, except in the cases provided for by law." (CF, art. 170).
Cultural rights, on the other hand, are access to sources of national culture, valorization and dissemination of cultural manifestations, protection of popular, indigenous and Afro-Brazilian cultures; and protection of Brazilian cultural heritage, which are goods of a material and immaterial nature that bear reference to the identity, the action, the memory of the different groups that form Brazilian society. All of this is determined in articles 215 and 216 of the Federal Constitution.
Third generation human rights
the 1960s onwards, a third generation of human rights appeared, guided by the ideal of fraternity or solidarity. The main concern becomes with diffuse rights - that is, rights whose holders cannot be determined, nor measure the exact number of beneficiaries - and with collective rights, which have a determinable number of holders, who in turn share a certain condition. Examples are the protection of vulnerable social groups and the preservation of the environment.
To highlight the difference between the two types of law, we will use as an example the students the state school system, who are linked together through school enrollment. This is a group with collective interests. In diffuse interests, the holders come together through de facto circumstances, such as the broadcasting of misleading advertising on television, it is not possible to calculate how many people were affected.
The defense of rights in the third generation is no longer the responsibility of the State, but a shared responsibility with representatives of civil society, especially non-governmental organizations or in popular actions.
The rights of this new generation are considered transindividual, since they can only be demanded in collective actions, since their exercise is conditioned to the existence of a determined group or not. Achieving these interests benefits everyone and their violation also affects everyone.
At the international level, examples of third generation rights are the right to development, the right to peace, the right of communication, the right of self-determination of peoples, the right to defense against the threat of racial purification and genocide, the right to protection against manifestations of racial discrimination, the right to protection in times of war or any other armed conflict.
In Brazil, the third generation of rights is characterized by environmental law, consumer rights, the rights of the child, adolescent, the elderly and the disabled, as well as the protection of assets that integrate the artistic, historical, cultural, landscape, aesthetic and cultural heritage. touristic.
Is there a possible fourth generation?
The existence of a fourth generation of human rights is an issue that is still divergent among the most diverse theorists. Even among those who defend its existence, there is still a lot of disagreement regarding its content.
For those who defend its existence, the fourth generation develops around two axes: the rights of bioethics and the rights of information technology. This generation is conceived in the twentieth century as a result of the globalization of political rights, the rights to democratic participation, pluralism and information become a concern, all of them founded on the defense of the dignity of the human person against abusive interventions, whether by State or private individuals.
In the axis of the right to bioethics, resulting the advancement of biotechnology and genetic engineering, themes such as suicide, euthanasia, abortion, transsexualism, artificial reproduction and the manipulation of the genetic code appear as concerns.
On the axis of computer rights and complex forms of communication, there are concerns with the transmission of data through electronic and interactive means and the solution of problems involving virtual commerce, piracy, invasion of privacy, copyright and property. industrial.