The Concept, Philosophy and Historical develpoment of Human Rights

The Concept of Rights

The word “rights” in the noun form means that to which a person has a just or valid claim, whether it be land, a thing, or the privilege of doing something or saying something. (Grammatical Meaning)

In the legal parlance, a right is the legal capacity residing in one man or a group of men of controlling, with the assent and the assistance of the state, the actions of others or even the state. (Legal Meaning)

A privilege on the other hand is a permission, license or concession, the breach of which would lead to the withdrawal of the conferral of that permission or license.

The key of a right is that it is something that can be enforced, while the key of a privilege is that it is a concession which can be withdrawn by who confers such privilege.

According to SALMOND,

“a right is an interest respect for which is a duty, and the disregard of which is wrong”

He identifies four types of rights in a wider sense as rights, powers, liberties and immunities.

The Concept of Human Rights

The word “human” has been defined as “pertaining to, characteristics of, or having the nature of mankind”. Human rights are rights that are peculiar to human beings, i.e. those rights that human beings can claim and enforce when necessary.

Human rights are rights which all human beings everywhere and at all times equally have or ought to have by virtue of being human beings. A human being is defined in The Criminal Code Act as someone who has proceeded from the womb of a mother. Human rights are inherent in human beings simply because of their humanity, and have accordingly been defined as rights which are inherent in human beings. They are rights to be enjoyed by all human beings of the global village and not gifts to be withdrawn, withheld or granted at someone’s whim or will.

‘Human Rights’ mean the freedoms, immunities and benefits that according to modern values, all human beings should be able to claim as a matter of right in the society in which they live.

Human rights are a precondition to a civilized existence. In this sense, they are said to be inalienable or imprescriptible and are part of the very nature of human beings. The concept of human rights embraces both human rights that have been guaranteed by positive law and moral human rights which ought to be, but have not yet been guaranteed by positive law.

Another way to describe human rights is through Natural Rights. “Natural Rights” are a specie of rights which belong to human beings by virtue of their humanity. They are rights conferred by nature and inherent in human persons.

They are fundamental rights and are imprescriptible (that is, not conferred by any government or human authority. It is inherently conferred by God)

The court in SIDDLE V. MAJORS defined fundamental rights as

“those which have their origin in the express terms of the constitution or which are necessary to be implied from those terms”

ESO (JSC) in RANSOME KUTI V. AG FEDERATION opined that

“a right qualified as “human” removes that right from the ambit of positive law. No government person is the donor but the creator himself. A fundamental right is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution since independence… is to have these rights enshrined in the constitution so that the rights could be immutable to the extent of the non-immutability of the constitution itself”

The idea of natural law is also evident in the preamble of the AMERICAN DECLARATION OF INDEPENDENCE 1776

“It is a self-evident principle that the creator has endowed man with certain inalienable rights….life, liberty and the pursuit of happiness”

According to the court in ASEMOTA V. YESUFU

“Fundamental right is undoubtedly an inalienable right, which corresponds to a “jus naturale”. It is the greatest right, and when it is contained in the constitution of a nation, it enshrines a people’s expression of political and civil rights (as endowed by nature) but only to the extent that the strictness of largeness of the modern does permit”

These rights cannot be waived by the state or by the individual where the right is not for his sole benefit, but in the control of the state or the courts. Also, a person does not lose a fundamental right on ground of its non-exercise.

Worthy of note is the fact that the idea of fundamental human rights has a changing content or rather a growing and new rights are constantly being interpreted into old ones and some formerly thought to be not so important being elevated to greater heights .

For example, the right to development and health, reproductive rights etc.

Can Human Rights be enforced in spite of the wishes of the victim

The question or issue came up in the case of ARIORI V. ELEMO. In that case, JUSTICE KAYODE ESO (JSC) said;

“Because of the comparative young age of the Indian and the Nigerian constitution vis-à-vis the American constitution (the Indian constitution was assented to by the president of India on November 4 1949), one can easily compare the situation in this country with that of India. In this country, the people are largely illiterate. The comparative educational backwardness, the socio-economic background of the people and the reliance that is placed as a result of this backgrounds in courts…I think the Supreme Court has a duty to safeguard the fundamental rights in this country which from its age and problems that are bound to associate with its still having an experiment with democracy.”

The enlightened members of the society must ensure the enforcement of human rights. As noted by GANI FAWEHINMI (SAN), it is the duty of the courts to enforce the fundamental rights of the individuals despite the inability, incapacity or inpercuinity of the individual.

The courts shall encourage and welcome public interest intigation in the human rights field and no human rights case can be dismissed on the grounds of lack of locus standi.

In particular, human rights activists, advocates or groups as well as any non-governmental organisation may institute human rights action in respect of any applicant.

Human rights applicants may include;

Anyone acting as a member of a group of more than five persons.
Anyone acting in his own interest.

The Social Contract Theory

The principle of social contract according to JEAN JACQUES ROUSSEAU is predicated on the idea that an individual surrenders a certain part of his right to the state (rights such as safety and security) in exchange for state protection.

In the case of a breach of any right surrendered to the state, the state is liable due to the doctrine of privity of contracts (that is, you cannot enforce a contract on a third party)

The idea of social contracts is a deliberate action to maintain social equilibrium.

For instance, if Mr A slaps Mr B, the remedy is not in human rights enforcement procedure, rather the individual can sue in private law and torts of assault.

Whenever there is a transgression of rights, the remedy has a specialized outlet in private law as opposed to public law.

The Concept of Civil Liberties

The concept of civil liberties is an American creation and this is because America is the greatest transgressor of human rights. They are the only country with civil liberties that are superior to international laws and this is by virtue of their domestic laws.

CIVIL LIBERTIES are those rights that can be claimed and enforced anywhere. The concept of civil liberties is conterminous with human rights in terms of its content and connotation but the US introduced the liberties as an extension or aspect of its state sovereignty.

The idea of civil liberties is to domesticate human rights and keep it within its domestic sphere.

In 1964, Malcolm X argued that civil liberties are actually Human Rights. He was able to connect American civil rights with international human rights.

Civil liberties and human rights are essentially and grammatically similar but each value laden. But the US wants to let us understand that it is loaded in content.

Classification and Dimensions of Human Rights

Several schemes of classification of human rights have been adopted. Human rights have been classified into

Personal Rights – Right to life, personal liberty, dignity etc.
Political and Moral Rights – Right to freedom of expression, association, religion etc.
Propriety Rights – Right to property, privacy etc.
Procedural Rights – Right to fair hearing, due process etc.
Equality Rights – Right to freedom from discrimination, equality before the law etc.

The concept of human rights is not static but dynamic. According to Professor Akin Ibidapo-Obe, the concept of hierarchy of human rights is a misnomer as human rights are indivisible, that is there is an essential unity in human rights.

Human rights have also been classified according to the period they emerged or were recognized. However, in order to describe the nature of human rights, its best to arrange them according to their currency and not seniority. Thus, the generation of rights is not the most important but the currency of those rights.

There are three well known stages in the development of human rights as advanced by the French Jurist, Karel Vasak.

FIRST GENERATION RIGHTS – (THE CIVIL AND POLITICAL RIGHTS)
SECOND GENERATION RIGHTS – (ECONOMIC, POLITICAL AND SOCIAL RIGHTS)
THIRD GENERATION RIGHTS – (GROUP OR SOLIDARITY OR PEOPLE’S RIGHTS)
FOURTH GENERATION RIGHTS - (ENVIROMENTAL RIGHTS)

FIRST GENERATION RIGHTS – (THE CIVIL AND POLITICAL RIGHTS)

The first generation rights – the civil and political rights emerged from the ashes of the English, American and French Revolutions. They are aimed at securing the liberty of the individual from the arbitrary actions of the state.

Included in this category of rights are the liberty oriented rights set out in Articles 2-21 of the UDHR. Also belonging to this category are all the rights guaranteed under Chapter IV of the 1999 Constitution of Nigeria.

These rights are called negative rights because they, by and large entail negative obligations on governments not to interfere with the exercise of these rights by individuals without imposing positive obligations on the state for their realization. It must however be noted that all human rights somehow entail positive obligation on the state at least in the sense of obligation to protect the rights.

What is constant in this first generation conception is the notion of liberty, a shield that safeguards the individual, alone and in association with others, against the abuse and misuse of political authority.

SECOND GENERATION RIGHTS

The second generation rights correspond by and large to the economic, social and cultural rights. This category of rights is predicated on the assertion that attainment of a certain level of social and economic living standard is a necessary condition for the enjoyment of the negative rights.

These rights therefore entail positive obligations on the government to provide the living conditions without which the negative rights cannot be enjoyed.

THIRD GENERATION RIGHTS

The third generation rights group or solidarity or people’s rights. According to Vasak, they are a response to the progressive unfolding phenomenon of global interdependence. They are the products of the rise and decline of the nation-state in the last half of the twentieth century. Some of these rights reflect the emergence of the third-world nationalism and its demand for a global redistribution of power, wealth and other important values.

The rights in this category include the right to development, the right to share in the common heritage of mankind, right to self-determination, right to clean and healthy environment and the right to international peace and security. These rights require international cooperation for their realization.

FOURTH GENERATION RIGHTS

The growing global awareness on the necessity for conservation of natural resources and environmental protection now subsumed under the term “sustainable development” has given rise to what has been described as the fourth generation of human rights which deals with environmental issues.

The world court is interested in environmental issues. On 31st March 2014 it gave a decision concerning Japan’s Whaling activities.

Environmental rights are now so important that they are now part of international human rights law. The more positive we are to our environmental rights, the longer we will live.

FIFTH GENERATION RIGHTS

The new frontiers of human rights – rights to democracy and good governance are regarded as the fifth generation of human rights.

The rights in this category are historically traceable to the insistence by western donor countries on open and accountable government as a condition precedent to aid to poor and developing countries. Democracy is the only system of government under which human rights can flourish or be realized.

Historical Evolution and Philosophical Foundation of the Concept of Human Rights

Overtime, rights have been agitated for. Then, they were not referred to as rights in the real sense of the word.

The concept of human rights has its philosophical ancestry in the natural law school. The foundation of human rights is therefore natural law and the subsequent concept of natural rights.

The doctrine of natural rights is traceable to the medieval and ancient times when it was then fashioned as natural law. As a result of the close relationship of these concepts, the expression “human rights” had been used synonymously with natural law and natural rights.

Natural law is predicated on the assertion that there are objective moral principles which depend on upon the nature of the universe and which can be discovered by reason. In other words, the theory of natural law is based on the reasoning that the rules of human conduct are deductions from the nature of man as they reveal themselves in reason.

The theory of natural law draws its inspiration from nature. It is predicated on the assumption that there is a law of nature according to which tenets and principles all things, including man himself, ought to behave. As human nature is identical in all human beings and does not vary, its precepts have universal and immutable validity, notwithstanding the diversity of individual conditions, historical and geographical environments, civilizations and cultures.

In considering the historical evolution of human rights, the periods must be emphasized. This however is a rough periodization and should not be viewed as a perfect chronology of events. They are;

The Period of the Greek Philosophers
The Period of Natural Law Theorists
The Renaissance or Enlightenment or reformation period
The Period of great Human Rights documents
The Period of Internalization of Human Rights

The Period of the Greek Philosophers

This period encompasses the eras of SOCRATES, PLATO, and ARISTOTLE.

SOCRATES was a philosopher in the 5th and 4th century B.C. He lived in the Greek city state of Athens. He as a man of ideas of reasoning and a public speaker per excellence. He was the first natural law philosopher. During his period there was dictatorship in Athens and he held liberal views and thus he was victimized.

Socrates was on the hit list of the military dictatorship in Athens and they caught up with him and consequently he was charged with treason and propounding of heresy and sedition. After Sparta defeated Athens there was a need for a strong leadership and the government was recognised.

Socrates was eventually tried by a military tribunal and he was later convicted. His punishment was to drink “hemlock” a type of poison, until he died.

Socrates says nature is primary i.e. the order of things God created is primary, fundamental and lasting. But law is dynamic and susceptible to change. Human law will change as personalities evolve.

In essence, nature has its own set of laws that are permanent. He made three propositions;

He said natural law is wise whole human law is based ob expediency – based on whims and caprices.
Nature is primary while law is secondary and derivative.
Nature created man to be equal while law imposed inequality. Human law applies to man whether good or bad. The laws of nature are norms and it is obligatory, there are no compulsions.

PLATO (427-347 B.C)

He was a very prolific writer who wrote so many books and dialogues which include Timaeus, The Statesman and the Republic. He was Socrates’ student.

Plato and Socrates both believed in and preached natural law but with noticeable differences. Plato put forward the doctrine of individualism as the centrepiece of human rights, while Socrates believed in an agglomeration of families as making up the state.

ARISTOTLE

Aristotle was Plato’s student and was vast in many disciplines; biology, astrology etc. He was also a natural law philosopher and writer. He wrote the books; Ethics and Philosophy.

The central thesis of Aristotle’s works and writings was that natural law (the law of God) is better than the laws of man. Hence, he postulated that divine or natural Law is better than positive law.

The Period of Natural Law Theorists

Natural law theorists transcend about seven centuries. The persons w3ho categorised this period were constituted mainly of Catholics and they include:

ST. Thomas Aquinas, ST. Ambrose, and ST. Augustine to name a few.

Ambrose

Ambrose was the Bishop of Rome in the 5th century. He saw a young man lost in bigotry and reckless abandon, but he discovered that the young man was very smart, intelligent and good at poetry. That man was St. Augustine and Ambrose decided to bring him out of the debauchery and brought him to the catholic faith.

ST. AUGUSTINE

St. Augustine was born in Lumidia which is on the coast of Africa. He was very intelligent and made strides in the intellectual field, despite his debauchery. He left Lumidia and wandered to Rome where St. Ambrose found him.

He wrote a number of books including, Confessions, City of God, amongst other. In City of God, he made a few illustrations. According to St. Augustine, the City of God is the city where natural law holds sway. It is a city where there is serenity, law and order. He then contrasted it with the city of man i.e. Earth where human law holds sway. In his view, Human law is based on ideas, expedience and selfishness.

Part of the Human Rights thesis of St. Augustine was to talk about racial discrimination and human rights. He was basically the first person to discuss racial profiling under human rights. He was part of the first people to mention racial profiling under human rights.

THOMAS AQUINAS

He was a catholic priest who lived in the 13th Century A.D. He was also a natural law philosopher. Thus based on the works of St. Ambrose, St. Augustine and St. Thomas Aquinas, human rights became the pillar of Catholicism and the liberation theology.

FATHER ROBERO is also another outstanding catholic priest who joined the Brazilians in their fight against military dictatorship. He espoused violence as a tool of achieving freedom. He believed in liberation theology i.e. violence as a tool in acquiring freedom.

HUGO GROTIUS, the acclaimed father of international law used natural law as the vehicle to propound his international law principles.

International law had a principle that the world is “terra nullius” i.e. “no man’s land”. Grotius deployed natural law to debunk the idea of “terra nullius”. He said that if god create all men equal, then all men are equal and thus there is no such thing as “no man’s land”. He said each state had its rights to its own land and to use its own natural resources.

The Reformation / Renaissance / Age of Enlightenment

This fell within the 17th century. The medieval period or the period of the monarchical era in Europe preceded this period. During the medieval period, there was wanton abuse of human rights because the monarchy was an abolitionist/totalitarian regime. Thus, the renaissance was a response to this prevalent abuse by the monarchy.

THOMAS HOBBES in his book Leviathan (1651) considered the issue of abuse of power by the monarchy with his book via making a metaphor of the title of the book. He emphasized that life is brutish, nasty and short.

The panacea was offered by JOHN LOCKE in his book Civil Government (1960) where he emphasised on the need for a republican system of government.

BARON DE MONTESQUIEU in his book L’ESPIRIT DE LOIS (THE SPIRIT OF LAW 1721)considered the effectiveness of separation of powers between different organs or government whereby each would act as a check and balance to the other.

JEAN JACQUES ROUSSEAU in his popular book Social Contract emphasized that the relationship between the citizen and the state is contractual i.e. an agreement between equals. He said that citizens have agreed to relinquish some of their rights to the state authority in exchange for their protection/security by the state. The social contract theory presaged and laid out the background for the documentation of human rights and constitutionalism.

The Period of the Great Human Rights documents

The period of documentation of human rights when it was realised that the concept of human rights was beyond conjecture and that it should be documented for posterity and thus creating a point of reference.

This period is not within an exact time span but it is in chronological continuation between various centuries.

THE MAGNA CARTA OF 1215

This was the first documentation of human rights and was in the medieval period. KING JOHN OF ENGLAND was instrumental in the coming alive of the Magna Carta and it was negotiated over five days in Runnymede. It was a product of demands and compromises between the dissident Barons and King John.

The Barons constituted the buffer class. There is clear evidence that this period of documentation did not just begin after the renaissance but has been on and will still be on continuously. Before 1215, the Barons (in King John’s kingdom) turned against the king and aligned with the masses or proletariats and waylaid him at Runinely where he signed the Magna Carta, granting the people some rights.

The rights were however not granted to all. They were concessions which King John made to his barons – that is, the Lords, the Knights and other land owners. The Magna Carta however did begin the process of granting certain rights by the King to his subjects.

The importance of the charter in the history of liberty lay less in its individual provisions than for the principle that the power of the King (or government) is subject to the laws of the land and the voice of the subjects.

THE ENGLISH BILL RIGHTS OF 1689

A bill of rights is a section of a constitution that talks about the rights of individuals vis-à- vis the state. The Bill of Rights (U.K) is a statue passed by convention parliament of England in December 1689 as part of the Revolution settlement for declaring the rights and liberties of the subject and settling the succession to the crown. Through the Glorious Revolution of 1688 the people of Britain removed another absolutist monarch from the throne. Parliament then installed a monarch, William of Orange, who acceded to its Declaration of rights.

The Declaration in due course became the basis for the bill of rights which settled the “religion, laws and liberties of the kingdom”, in order that the future might not be in danger of again being subverted.

THE AMERICAN DECLARATION OF INDEPENDENCE OF 1776

This was presaged by the American war of independence and they developed their own bill of rights in 1778/1779.

THE FRENCH DECLARATION OF RIGHTS OF MAN AND THE CITIZEN.

This was presaged by the French revolution. The Bastille is the symbol of the French revolution. The proletariats stormed the Bastille and took over power from the government. The worldwide trend of reducing human rights into writing has gone through the hierarchy.

Internalization of Human Rights

The active involvement of the international community in the promotion and protection of human rights is what is known as the internalisation of human rights. Until the United Nations Charter of 1945, international law did not expressly recognise the human rights of the individual despite developments in that direction.

Among the early developments in the international recognition of human rights were the conclusion of treaties to protect religious freedom and treaties to ban slave trade.

Another impetus to the evolution of international human rights law was the intervention of the states, through international legal processes, seeking to secure human rights for the inhabitants of other states.

The Treaty of Versailles 1919 that ended the First World War further laid the foundation for the internalization of certain human rights. The peace treaties guaranteed to the minorities, “full and complete protection of life and liberty without distinction at to birth, nationality, language, race or religion”.

Other historical factors that led to the internationalisation of human rights include the provision of minimum standards for labour under the supervision of the international labour organisation and the mandate system for the colonies of the defeated powers in the First World War.

The express recognition of human rights by international law began in1945 after the end of the Second World War. The victorious allies were determined to introduce into international law, new concepts designed to make the recurrence of wars less probable.

It was reasoned that once human rights are recognised and protected all over the world, democracy will be secure and the probability of war and widespread violations of human rights will be remote.

The most important landmark in the internalisation of human rights is the United Nations Charter of 1945 following the Second World War. It ushered in a new international order of human rights which laid to rest the dogma that how a state treats its own citizens was a matter of domestic and now international concern. It was the coming together of the international community to ensure peaceful co-existence among themselves, thus it was not a human rights document per se. It is tied to human rights by its history, coming so close after the mass murder of the Jews by Adolf Hitler.

The Universal Declaration of Human Rights represents a common statement of goals and aspirations by the world community – a vision of the world as the international community would want it to become. It is an authoritative definition of human rights, setting out the principles and norms for securing respect for the rights of man everywhere in the world.

Though the UDHR at the time of adoption did not impose legally enforceable obligations on member states but was only symbolic and represented aspirations to which member states aimed to attain, it is now being conceived as forming part of customary international law, binding all states and not just the members of the UN.

It took the world 18 more years after the UDHR to prepare and adopt other bills of rights. Ideological and political differences – human rights versus national sovereignty, individual liberty versus communal needs – prevented a consensus. The dispute revolved around the question: whether economic, social and cultural interest should be recognised as rights at par with the civil and political rights.

The capitalist countries – (U.S and her allies) were opposed to the uplifting of the status of economic, social and cultural rights, to a position of equality with the civil and political rights. On the other hand, the communist countries – the former Soviet Union and her allies – held contrary position, and were supported by the newly independent states from the third world.

To resolve the stalemate, the drafters agreed to prepare two covenants, one dealing with civil and political rights while the other one would deal with economic, social and cultural rights, thus giving states the option to ratify either or both of them.

Consequently, on 16th December 1966, the International Covenant on Economic, Social and Cultural Rights (ICESR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted. This document came into existence as a result of “ideological polarism”

The UDHR and the ICESR and ICCPR (the two covenants) constitute the International Bill of Rights.

Apart from the human rights treaties and declarations that have concluded under the auspices of the UN, three regional conventions; The European Convention on Human Rights and Fundamental Freedoms (1950), The Inter-American Human Rights Conventions (1969) and The African Charter on Human and People’s Rights (1981) guarantee human rights in their respective regions.

The human rights treaties and declarations concluded at the UN and regional levels constitute the international law of human rights. Through these multi-lateral treaties, sovereign states consented to be bound by the obligation to respect and secure the human rights specified in the treaties within their own territories, for all individuals over whom they have jurisdiction, including both citizens and aliens.

According to Professor Akin Oyebode, what the international protection of human rights implies is that it enables an aggrieved person to make demands on his state of nationality far beyond what the domestic law provides based on internationally prescribed minimum standards.

A law (including human rights law), whether international or domestic, which does not correspond to justice cannot be binding in conscience. Such a law lacks moral legitimacy and its enforcement involves a violation of human dignity and rights. This is the thesis of natural law.

Professor Ben Nwabueze observed that no society in which morality and religion are absent can never attain and maintain liberty, democracy and justice. Liberty, democracy and justice are actually morality based values.

It has thus been acknowledged that although the concept of human rights ia a product of the UN Charter amplified by the UDHR, it has been influenced by traditional concept of natural rights.

Sources of Human Rights

Domestic Sources

THE CONSTITUTION – The 1999 Constitution of the FRN. The fundamental human rights in Nigeria are cedified on Chapter IV of the Constitution. However, the entire constitution itself is regarded as a Human Rights document and human rights also exist in other sections of the documents.
FEDERAL LAWS There are federal laws governing all aspects of human rights like health, education, child rights, economic and social rights etc. Any law touching on any aspect of human rights is a source of human rights.
STATE LAWS For example; LASEPA, The Criminal Code Act etc.
LOCAL GOVERNMENT LAWS / BYE LAWS

Characteristics of Human Rights

The most important characteristics of human rights have been listed as follows:

Human rights are founded as respect for the dignity and worth of each person.
Human rights are universal, meaning that they are applied equally and without discrimination to all people.
Human rights are inalienable in that no one can have his or her human rights taken away other than in specific situations.
Human rights are indivisible, interrelated and interdependent, for the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect the respect of several other rights. All human rights should therefore be seen as having equal importance and of being equally essential to respect for the dignity and worth of every person.