ARE THE RIGHTS TO A CLEAN, HEALTHY, AND SAFE ENVIRONMENT THIRD GENERATION RIGHTS? DECONSTRUCTING VASAK’S THREE-GENERATION RIGHTS CONCEPT

Abstract

In addressing the global climate catastrophe, the Intergovernmental Panel on Climate Change recommended mitigation and adaptation strategies that adopt rights-based approach pathways. This article specifies a rights-based approach focused on protecting the environment as human rights approach to environmental protection (HRAEP). Since Karl Vasak’s categorisation of environmental rights as third-generation rights, the concept has received wide acceptance from scholars, jurists, and, basically, the legal profession. Given the issues arising from accepting that environmental rights are third-generation rights, such as non-justiciability, it is imperative to examine the validity or otherwise of this philosophy. The article finds that Vasak’s categorisation of human rights as it were into three generations fails to reflect the true nature of the International Bill of Human Rights, namely, universal, inalienable, indivisible, interdependent, and interrelated. Adopting Kooijman’s definition of rights as having specific right-holders and duty-holders, the article posits that accepting that the human right to environmental protection is a third-generation right would inadvertently mean that such a right does not exist, given the absence of a specific right and duty holder. The article finds that HRAEP connotes positive and negative duties to fulfil, respect, promote, and protect, and thus, not a third-generation right.