Human rights are a fundamental aspect of our constitutional democracy and are critically important to the functioning of our society. The South African Bill of Rights forms a significant part of our Constitution, and is one of the most comprehensive bills of rights in the world.
Human rights are divided into three categories or “generations”. They are also classified into three colours as the concept of having first, second and third generation rights creates a “hierarchy of rights” or the idea that some rights are more important than others. These classifications are used as a conceptual tool in understanding human rights.
First generation human rights
First generation human rights (or “blue rights”) are strongly individualistic rights as they are civil and political rights. These include the right to life, dignity, freedom of expression, privacy, and the right to vote. They are protected in a negative way, that is to say they operate like a shield. What this essentially means is that rather than imposing an obligation on other parties or the State to do something, they impose a negative obligation of non-interference. They are protected against the State and everyone else, who are not allowed to interfere with these rights or intrude upon them.
They are called first generation rights as they were the first rights to be recognised after the French Revolution that were deemed to be foundational and necessary for a civil and organised society. This tie to the French Revolution is also how they got their name “blue rights” as these rights originally only belonged to the bourgeoisie, whose colour was blue. Following World War II however, there was a shift in the human rights debate as focus shifted to the socio-economic plight of people, and what needed to be done in this regard.
Second generation human rights
Second generation rights (or “red rights”) refer to socio-economic rights such as the right to housing, education, healthcare, water, and other important rights necessary for maintaining an acceptable standard of living. They are called red rights as they are the rights of the workers, whose colour has traditionally been red (as evidenced by the fact that the EFF as the “worker” party has donned red as its colour).
Whereas first generation rights operate like a shield that impose negative obligations of non-interference, second generation rights operate like a sword and require the government to take positive steps to promote the socio-economic well-being of its people. These rights are thus enforceable against the government.
This does not necessarily mean that the State is obliged to provide you with a house or healthcare, however. The case of Government of the Republic of South Africa v Grootboom establishes that first and second generation rights are interlinked as the right to life means very little if you do not have a house or access to clean water. As such, this case establishes that the State must have a “reasonable plan” to provide these rights “within available resources” as opposed to a “minimum core” standard of providing these rights outright to a certain extent. Towards the end of the 20th century however, the human rights debate began to shift yet again, leading to the recent acknowledgement of third generation rights.
Third generation human rights
Third generation rights are also known as “green rights” as they refer to the right to development and the right to a clean environment. These rights, like red rights, operate like a sword and impose a positive obligation on the government to provide these. These rights are becoming increasingly important as our society begins to pay more attention to the environment and our impact upon it.
Ultimately, the State’s obligations in respect of these rights will differ depending on the type of right in question. In this regard, s 7(2) of the Constitution provides that the State has the duty to respect, protect, promote and fulfil all the rights in the Bill of Rights. The South African Bill of Rights accepts the international idea that human rights are interdependent and indivisible. As Yacoob J stated in Grootboom: “All the rights in our Bill of Rights are interrelated and mutually supporting”. It is important to note however that although important, rights are not absolute in their functioning and may be limited. An example of this is how freedom of expression does not extend to hate speech. It is thus important for us to know our rights, and be cognisant of how far they extend.