Human rights have roots deep in the mists of time yet the term itself dates back barely sixty years to the international discussions preceding the founding of the United Nations. Since 1945, the scope of human rights has been elaborated and the concept now permeates the fabric of international society.
Although human rights issues continue to be debated and contested, the longer history of human rights is often unexamined and even forgotten. Human rights, rather than being a 20th century phenomenon, marks both a culmination of and a transition from the Western natural law and natural rights traditions.
Human rights are rights possessed by people simply as, and because they are human beings. The term has only come into common currency during the 20th century. Rights are not the same thing as standards of behaviour punishable or required by rules, which can be fundamentally unfair to individuals, or used to oppress minority interests.
Human rights are rights and freedomsto which all humans are entitled. Proponents of the concept usually assert that everyone is endowed with certain entitlements merely by
reason of being human. Human rights are thus conceived in a universalist and egalitarian fashion. However, there is no consensus as to the precise nature of what in particular should or should not be regarded as a human right in any of the preceding senses, and the abstract concept of human rights has been a subject of intense philosophical debate and criticism.
Natural law has objective, external existence. It follows from the ESS (evolutionary stable strategy) for the use of force that is natural for humans and similar animals. The ability to make moral judgments, the capacity to know good and evil, has immediate evolutionary benefits. It evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability to throw rocks accurately.
Donald looks at the meaning of natural law from four perspectives. The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, in the absence of better methods, by individual unorganised violence, in particular the law that historically existed, in so far as any law existed, during the dark ages among the mingled barbarians that overran the Roman Empire. The medieval / philosophical definition: Natural law is that law, which it is
proper to uphold by unorganised individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. The scientific/ socio-biological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganised violence to prevent such conduct, or, in the absence of orderly society, use individual unorganised violence to punish such conduct, then such violence would not indicate that the person using such violence, is a danger to a reasonable man.
The concept of natural rights arises from the belief that there is an instinctive human ability to distinguish right from wrong. Hugo Grotius believed that people have a ‘right reason’ for doing things. Thomas Hobbes, John Locke and Immanuel Kant were supporters of natural rights theories, suggesting that we have basic fundamental rights because we are born human. Natural law thinkers see rights as universal and inalienable. Natural rights theories have been the inspiration behind ideas and democratic struggles, forcing politics to protect the rights of citizens. Natural rights theories imply that all human beings are equal and should be treated equally. The demand for equality before the law in individual states is synonymous with the development of international human rights law.It is therefore correct assertion to point out to the fact that human rights have evolved from natural rights as depicted by natural law theories.
This paper will trace the changes and continuities of debates and claims about rights throughout the late medieval and early modern periods in order to explore how rights
are historically asserted, justified, and defended. It will also delve into the transformation of rights, from natural to human.
Human Rights and the Legal Theories
The origins of international human rights lie in philosophical discussions evolved through the centuries.
The theories of both Locke and Rousseau suffer from their failure to explain how the supreme right of the majority can go together with the inalienable rights of the individual. (Read the fact that legal theories fail to come down on the side of either democratic or autocratic principles of the government.)
Historically, the assertion of natural rights has often been linked with a revolt against state, authority and a humanitarian belief in the equality and dignity of all men. This is true of the legal philosophy of Stoics or of Kant. (The idea of equality of men often causes democrats to be internationalists.)
The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in its course of the last 2500 years, the idea of natural law has appeared, in some form of the other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions about natural law have changed. The only thing that has remained constant is the appeal to something higher than
positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it.
Natural law has fulfilled many functions. It has been the principle instrument in the transformation of the old civil law of the Romans into a broad and cosmopolitan system; it has been a weapon used by both sides in the fight between the medieval church and the German emperors; in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natural law that American judges, professing to interpret the constitution, resisted the attempt of state legislation to modify and restrict the unfettered economic freedom of the individual.
Natural law has, at different times, been used to support almost any ideology; but the most important and lasting theories of natural law have undoubtedly been inspired by the two ideas, of a universal order governing all men, and the inalienable rights of the individual.
Greeks were more interested in the philosophical foundations of law rather than its technical development. Though there were bodies of fundamental laws in the classical period, little attention was paid to the idea of universal law. Plato laid the foundations for much of subsequent speculation on natural law though he had nothing to say as such on natural law. His republic was based on substitution for law of the philosopher-king
which partook of the divine wisdom but remained uncommunicable to lesser mortals. Aristotle was also not interested in natural law. Natural law as a universal system in Greek World came into the fore with the decline of the city state and the rise of large empires and kingdoms. For this stoic philosophers were responsible. They stressed the ideas of individual worth, moral duty and universal brotherhood Stoicism passed over and influenced over to and influenced Roman thought especially Cicero who defined natural (true) law as “right reason in agreement with nature”.
The existence of a body of basic rights can be traced back to the early thirteenth century in Europe and has featured predominantly in different schools of thought since then. Its origins basically lie in the philosophical discourse with concepts such as liberty and even “rights”.
This was a period when theology of the Catholic Church set the tone and pattern of all speculative thought. The theology was bedevilled by the notion that law and human domination were rooted in sin until Aquinas in the 13thCentury. Aquinas admits that human law, which derives its validity from natural law changes with human circumstances and human reason.
Human rights are linked to the rule of law, a concept that imposes inherent limitations on the exercise of absolute power by a sovereign. The rule of law in turn links to the theories of natural law and to an extent religious doctrines.
The right to expect rulers to be fair and reasonable, with limited authority in respect to the private lives and of their subjects, translating to the rule of law was first enshrined in paper in England in what is referred to as the Magna Carta of 1215. It enshrined a number of principles which now fall within the broad ambit of human rights, including the principle of equality before the law, a right to property and an element of religious freedom, albeit such rights extended only to nobles.
The Declaration of Arbroath in Scotland in 132o, unlike the Magna Carta spoke of the profound right to liberty, rating it above glory, honour, and riches.
Renaissance, Reformation and Counter-Reformation
The renaissance led to an emphasis on the individual and free will and human liberty and a rejection of the universal collective society of medieval Europe in favour of independent national states, and, where the reformation followed, separate national churches. The 16th century also saw the revival of Thomism, a revival of crucial importance for the development of modern natural law theory of the state led by Victoria and Suarez. They took their way of thinking from Aquinas; it was not possible to neglect the law of nature since all men from beginning of creation have been subject to it.
The social contract ideologies associated with Hobbes, Locke, and Rousseau are also traced to the 16th century.
Secularisation of Natural Law
The secularisation of natural law is usually held to begin with Grotius. He inaugurated a new era in natural law thinking by his assertion that natural law would subsist even if God did not exist.His main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation states.
Natural Law and Social Contract
In Hobbes, the social contract is used in defence of absolutism while in Locke in support of limited constitutionalism. Natural law does not loom large in Hobbe’s thinking, except for the fact that he expressed the main precept of natural law in terms of man’s right to self preservation. To Locke the state of nature that preceded the social contact was not, as conceived by Hobbes, one of brutal horror, but rather a golden age, an Eden before the fall. Rousseau’s political theory has weak links to natural law. The general will has come almost to replace the higher law standard that natural law has typically represented.
The emergence of human rights as part of modern domestic law therefore dates back at least to John Locke’s Two Treatises on Civil Government. In 1690, Locke argued that governments were bound in a covenant with the governed to protect an individual’s natural rights to life, liberty, and property.
The 1688 Bill of Rights of England and Wales
In 1688, the Bill of Rights of England and Wales mentioned minimal rights though with little substance. Whatever the case, these early documents connect as to the evolution of human rights. They show that the thinking of the masses then was directed towards human rights as much as ours is today.
The 18th & 19th Centuries: Revolutions and Rights
Though Vico, Herder and Montesquieu, refuted the idea of a universal natural law common to all mankind due to increase in secularism and rationalism, it is during these two centuries that many philosophers and thinkers focussed on the idea of natural rights, rights which should be enjoyed by all humans. A corpus of basic rights to be afforded to all mankind was an obvious result of such thinking. That corpus found legal expression at the close of the 18th Century. The United States and France adopted statements on rights when proclaiming the independence of the former British North American colonies and when establishing the first French Republic following the 1789 revolution.
The United States Declaration of Independence and Bill of Rights, the first ten amendments which were ratified on December 1791, were a big leap into realisation of human rights. The American Bill of Rights refers to freedom of religion, due process and fair trial,and freedom of person and property.
The French Declaration was inspired by the United States Declaration of Independence, though predates the Bill of Rights. It begins by stating that me nare born free and are equal in rights. Liberty is defined as being able to do anything that does not harm others. It also touches on rule of law issues such as a fair trial process.Others to be expounded are right to free communication and taxation issues.
The rights enumerated by the American Bill of Rights and the French Declaration have modern equivalents in human rights instruments. This was another major step in conversion of human rights from theories and thoughts into real legal instruments that could be enforced and followed.
It is arguable that 18th century developments as pertains development of human rights were better those of the 19thcentury where the influential theory of positivism meant that only states had rights in the international arena because of their legal status as subjects of international law rather than individuals whowere viewed as objects of international law.
Challenges of Universality of Human Rights
How can different countries and cultures have the same problems and valuesThis is the main contention to opponents of universality of human rights.
The objections to natural law as a basis for rights are long-standing. It is not difficult, of course, to demonstrate that all human beings share certain characteristics. But finding those that constitute the “essence” of being human and are of sufficient import to serve as a rationale for rights is a bit harder.
Universality is one of the key essentials of human rights. All human beings are holders of human rights, independent from what they do, where they come from, where they live and from their inter alia, national citizenship, and their community. The universality of human rights is embedded in and also influenced by the other characteristics of human rights: human rights are categorical, egalitarian, individual, fundamental and indivisible.
Kirchschlaeger,asserts that human rights struggle with particular interests. States claim the priority of their sovereignty over the universality of human rights and the private sector claims self-regulating approaches and uses this to define its sphere ofinfluence within certain limits. This challenge is part of the political and legal dimension of human rights and as a consequence of the moral dimension of human rights as well. In this regard, one can recognize a positive tendency of acceptance of human rights by states, a growth of an international institutionalization for the protection of human rights and a progress of the mechanisms for monitoring human rights performances by states to respect the universality of human rights and some small steps by the corporate world. At the same time, it has to be stated that the implementation of human rights is not yet there where it should be, and that the vast majority of human beings are still victims of violations of their human rights. The universality is still a claim, not reality.
Human rights are challenged by cultural diversity as well. This challenge is taking place in the moral dimension of human rights. Although the UN Conference in Vienna 1993 reconfirmed the validity of the universality of human rights, the universality faced critics from different quarters because of its alleged western origin.
Countries like China, Venezuela and those in the Arab world human rights as too westernized. Currently, an ongoing case against some Kenyan politicians at the International Criminal Court has added to the rant. In seeking a referral of the case by the Security Council, Kenya has the Support of China, Russia and the African countries but the US, UK and France who wield veto powers do not support the bid. This has been seen as a western effort to intrude into Kenyan sovereignty using human rights as a disguise.
Religions, cultures, traditions, world views and beliefs benefit indirectly from the human right to freedom of religions and belief. This right enables and enhances the authentic practice of an individual and so the peaceful coexistence of religions, cultures, traditions and world views and the dialogue between them. It is an achievement of humanity to protect this variety. A show of universality of human rights was when the UN Security Council, announced a no flying zone in Libya and with the support of the Arab League, France, US and the UK moved to avert deaths of Libyan civilians by bombing strategic points to immobilize Gaddafi troops.
Nickel, observes that the achievements of the human rights movement in have shown both that the optimistic beliefs of proponents of universality were not entirely without foundation and how difficult it is to create genuine international agreement about how governments should behave. Globalization promotes joint ventures between people from different and sharing of ideas or views, thus promoting the development of shared standards.
Toespraak views the criticism of universality with skeptism. He argues that although sometimes the concerns are sincere, sometimes they are simply being abused to hide domestic shortcomings or they serve opportunistic political agendas. Recent initiatives at the UN, both in the General Assembly and in the Human Rights Council, such as the Russian initiative to promote the concept of traditional values, the Cuban initiative on cultural diversity, and the Pakistani proposals on interreligious dialogue, are slow but inhis view sure attempts to weaken the fundaments of universal rights. Some states have argued for a classification based on differences in culture, religion and development In the Universal Periodic Review process. This is all reason for growing concern according to him
Period after World War II and Development of International Law
World War II gave impetus to the modern development of basic principles of human rights and to the general acceptance of the idea that the human rights practices of individual countries toward their own citizens are legitimate matters of international concern. The 1945 United Nations Charter included a general commitment to respect for human rights, but it was the Universal Declaration of Human Rights, 1948 that provided the basic statement of what have become widely accepted international human rights standards.
After World War II, the term human rights came into wide use replacing the earlier phrase “natural rights,” which had been associated with the Greco-Roman concept of natural law since the end of the Middle Ages. As understood today, human rights refer to a wide variety of values and capabilities reflecting the diversity of human circumstances and history. They are conceived of as universal, applying to all human beings everywhere, and as fundamental, referring to essential or basic human needs.
Modern international conceptions of human rights can be traced to the aftermath of World War II and the foundation of the United Nations. The rights espoused in the UN charter would be codified in the International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights
The Universal Declaration was bifurcated into treaties, a Covenant on Civil and Political Rights and another on social, economic, and cultural rights, due to questions about the relevance and propriety of economic and social provisions in covenants on human rights. The covenants provide for the right to self-determination and to sovereignty over natural resources.
The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were also proposed. The disagreement over which rights were basic human rights resulted in there being two covenants. The debate was whether economic and social rights are aspirational, as contrasted with basic human rights which all people possess purely by being human, because economic and social rights depend on wealth and the availability of resources. In addition, which social and economic rights should be recognised depends on ideology or economic theories, in contrast to basic human rights, which are defined purely by the nature (mental and physical abilities) of human beings. It was debated whether economic rights were appropriate subjects for binding obligations and whether the lack of consensus over such rights would dilute the strength of political-civil
rights. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different from the means required for civil-political rights.
From what I have discussed above, we can say that human rights have been classified historically in terms of the notion of three “generations” of human rights. The first generation of civil and political rights, associated with the Enlightenment and the English, American, and French revolutions, includes the rights to life and liberty and the rights to freedom of speech and worship. The second generation of economic, social, and cultural rights, associated with revolts against the predations of unregulated capitalism from the mid-19th century, includes the right to work and the right to an education. Finally, the third generation of solidarity rights, associated with the political and economic aspirations of developing and newly decolonized countries after World War II, includes the collective rights to political self-determination and economic development.
Since then numerous other treaties have been offered at the international level. They are generally known as human rights instruments. Some of the most significant are:
Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Discrimination Against Women
United Nations Convention Against Torture
Convention on the Rights of the Child
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
There are also regional human rights instruments such as the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Convention on Human Rights.
Human rights principles, policy, and practices became an increased focus of popular and public attention during the last quarter of the twentieth century. Several influential nongovernmental organizations were formed during this period to monitor and report on human rights matters.
In the late 20th century ad hoc international criminal tribunals were convened to prosecute serious human rights violations and other crimes in the former Yugoslavia and Rwanda. The International Criminal Court, which came into existence in 2002, is empowered to prosecute crimes against humanity, crimes of genocide, and war crimes.
From the foregoing, it can be concluded that, Human laws are subordinate to natural law; some need more guidance to achieve a virtuous life than others; these people can only be compelled to behave well through human law; reason can be good, but it may be used to exploit base desires and cruelty – linking human law to natural law and natural law is used as a set of general first principles under which human law is made using reason. Using natural reason leads to creation of good human law to deal with the needs of practical situations not expressly covered by natural law.
Human rights have come a long way to not only receive recognition by individual states, but also at the international arena .Universal validity of human rights norms under the current state of international law, does not permit a denial of the universal character of the human rights laws. When implementing human rights, within the context of the principle of universality, there is room for interpretation. The international community should define the scope or variations. Supervision of the implementation of human rights should be conducted by impartial, independent international bodies and not by individual states, as each state has its own particular views on fundamental rights and freedoms which are shaped by different historical developments.
Another major development in the field of human rights is the general acceptance of the principle that human rights are no longer an exclusive domestic affair of states but a legitimate concern of the international community. This principle also reinforces the principle of universality. It is incorporated in the Declaration of the Vienna Conference which was adopted by consensus.
With the 21st century bringing in more in the spheres of technological developments and unified world, we can only wait and see to what level human rights can be pushed.
As Haule puts it, although human rights have their origin from natural law, it took a system of positive law to provide a definite and systematic statement of the actual rights which people possessed.
Rhona K.M. Smith, Textbook on International Human Rights, 2004, Oxford University Press, 2nd Ed.
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Hegarty & Leonard, Human Rights, An Agenda for the 21st Century, (1999) Cavendish Publishing.
History of Universal Human Rights – Up to WW2 Article by Moira Rayner, appearing on http://www.universalrights.net/main/history.htm, accessed on 4th March, 2011.
Human Rights, Wikipedia, Accessed 4
March 2011, http://en.wikipedia.org/wiki/Right.
Natural Law and Natural Rights, paper byJames A Donald, sourced from [email protected], accessed on 4
Australian Human Rights Commission, Human Rights Theories, Fact Sheet 3, 2009, accessed on 4th March 2010.
Mark W Janis, sourced from http://law.jrank.org/pages/18657/Human-Rights-International-Law.html, accessed on 22nd March 2011.
The Origin of Human Rights and the Challenge of Universality, excerpted from the book, Tainted Legacy 9/11 and the Ruin of Human Rights by William Schulz Thunder’s Mouth Press, 2003, paper. Sourced from http://www.thirdworldtraveler.com/Human_Rights/Origin_Human%20Rights_TL.html, accessed on 21st March 2011.
Peter Kirchschlaeger, Universality of Human Rights.
James Nickel, Human Rights and Globalisation, sourced from http://ivr-enc.info/index.php?title=Human_Rights_and_Globalization#Challenges_to_Universality, accessed on 21st March 2011.
Toespraak, On the Universality of Human Rights in a Changing World, sourced from http://www.rijksoverheid.nl/documenten-en-publicaties/toespraken/2010/05/03/on-the-universality-of-human-rights-in-a-changing-world.html, accessed on 21st March 2011.
Romuald R Haule, Some Reflections on the Foundations of Human Rights, Max Planck UNYN, 10 (2006).
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