Historical Development of Human Rights
The history of human rights
covers thousands of years and draws upon religious, cultural, philosophical and
legal developments throughout the recorded history. It seems that the concept
of human rights is as old as the civilization. This is evident from the fact
that almost at all stages of mankind there have been a human rights documents
in one form or the other in existence. Several ancient documents and later
religious and philosophies included a variety of concepts that may be
considered to be human rights. Notable among such documents are the Edicts of
Ashoka issued by Ashoka the Great of India between 272-231 BC and the
Constitution of Medina of 622 AD, drafted by Muhammad to mark a formal
agreement between all of the significant tribes and families of Yathrib (later
known as Medina). However, the idea for the protection of human rights grew
after the tragic experiences of the two world wars. Prior to the world war,
there was not much codification done either at the national or the
international levels for the protection and implementation of human
rights.
This paper seeks to analyse the concept and approaches of human rights and its
development even before the Greek times. In this regard, the period has been
classified as pre world wars and post war eras. The latter has been further
divided into normative foundation, institution building and stage of
implementation. Several important documents like Magna Carta, French
Declaration of the Rights of Man, UDHR, ICCPR etc. and a brief discussion of
various approaches to human rights have been mentioned.
Concept Of Human Rights
Human rights are the rights a person has simply because he or she is a human
being. Human rights are held by all persons equally, universally, and forever.
“All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a
spirit of brotherhood.”[1] Kant said that human beings have an intrinsic value
absent in inanimate objects. To violate a human right would therefore be a
failure to recognize the worth of human life.[2] Human right is a concept that
has been constantly evolving throughout human history. They have been
intricately tied to the laws, customs and religions throughout the ages. Most
societies have had traditions similar to the "golden rule" of
"Do unto others as you would have them do unto you." The Hindu Vedas,
the Babylonian Code of Hammurabi, the Bible, the Quran (Koran), and the
Analects of Confucius are five of the oldest written sources which address
questions of people’s duties, rights, and responsibilities. Different counties
ensure these rights in different way. In India they are contained in the
Constitution as fundamental rights, i.e. they are guaranteed statutorily. In
the UK they are available through precedence, various elements having been laid
down by the courts through case law. In addition, international law and
conventions also provide certain safeguards.
Human rights refer to the "basic rights and freedoms to which all humans
are entitled." Examples of rights and freedoms which have come to be
commonly thought of as human rights include civil and political rights, such as
the right to life and liberty, freedom of expression, and equality before the
law; and social, cultural and economic rights, including the right to
participate in culture, the right to food, the right to work, and the right to
education. “A human right is a universal moral right, something which all men,
everywhere, at all times ought to have, something of which no one may be
deprived without a grave affront to justice, something which is owing to every
human simply because he is human.”[3] Human rights are inalienable: you cannot
lose these rights any more than you can cease being a human being. Human rights
are indivisible: you cannot be denied a right because it is "less
important" or "non-essential." Human rights are interdependent:
all human rights are part of a complementary framework. For example, your
ability to participate in your government is directly affected by your right to
express yourself, to get an education, and even to obtain the necessities of
life.
Another definition for human rights is those basic standards without which
people cannot live in dignity. To violate someone's human rights is to treat
that person as though he or she was not a human being. To advocate human rights
is to demand that the human dignity of all people be respected.
In claiming these human rights, everyone also accepts the responsibility not to
infringe on the rights of others and to support those whose rights are abused
or denied.
Basic Requirements for Human Rights - Any society that is to protect human
rights must have the following characteristics -
1. A de jure or free state in which the right to self-determination and rule of
law exist.
2. A legal system for the protection of human rights.
3. Effective organized (existing within the framework of the state) or
unorganized guarantees.[4]
Classification - Human rights have been divided into three categories:
1. First generation rights
which include civil and political rights.
2. Second generation rights such as economic, social and cultural rights.
3. Third generation rights such as the right of self-determination and the
right to participate in the benefits from mankind’s common heritage.[5]
Human rights may be either positive or negative. An example of the former is
the right to a fair trial and an example of the latter is the right not to be
tortured.[6]
Approaches To Human Rights
The Natural Law Approach – This theory focuses on a natural law that is higher
than positive law (law created by man) and to which the latter must conform.
Natural law is based on equality. However since it employs means such as the
revelation of divine will, transcendental cognition and participation in
natural reason, none of its claims can be conclusively confirmed or
rejected.
The Historical Approach – This approach views human rights as a
function of culture and environment and inculcates space and time factors as
well. However, it has three distinct drawbacks. Firstly, it sometimes does not
consider the individual as an entity outside of the community. Secondly, it
gives more importance to language, religion etc. than the actual views of
people. Thirdly, by focusing on the differences between societies, it
undermines the universality of human rights.
The Positivist Approach – This approach sees law as enacted by an
authoritative sovereign and deriving sanction from coercion. The main
disadvantage here is laws would not stem from the will of the people but from
that of the sovereign. Obedience would be more easily obtained if sanction came
not from force but from laws being based in the values of society. Positivists
also see only nations and not individuals as subject to international law, a
view that would render ineffective a number of instruments available
today.
The Marxist Approach – This view comes from the writings of Karl
Marx in the context of the 19th century industrial revolution. It posits that
in capitalist societies, human rights do not exist. They only come into being
in a classless society where there is public ownership of the means of
production. This approach too suffers from defects one of which is that it
views the development of human rights in a communist society as inevitable and
not problematic.
The Social Science Approach – This approach locates human rights in
the context of larger social processes, dwelling on the community’s role in
shaping principles. It uses scientific and empirical methods, models and
techniques to estimate the degree of success/failure of human rights. It fails
however, to provide a clear link between social processes and the law.
Human Rights In Pre-World War Era
The roots for the protection of the rights of a man may be traced as far back
as in the Babylonian Laws[8]. The development of human rights may be divided
into the following periods prior to the two world wars :
Prior to Greek Period – One of the first examples of a codification of
laws that contain references to individual rights is the tablet of Hammurabi.
The tablet was created by the Sumerian king Hammurabi about 4000 years ago.
While considered barbaric by today's standards, the system of 282 laws created
a precedent for a legal system. This kind of precedent and legally binding
document protects the people from arbitrary prosecution and punishment. The
problems with Hammurabi's code were mostly due to its cause and effect nature,
it held no protection on more abstract ideas such as race, religion, beliefs,
and individual freedoms.
Greek Period – It was in ancient Greece where the concept of human rights
began to take a greater meaning than the prevention of arbitrary persecution.
Greeks were the first profounder of natural law principles. They gave a
conception of universal law for all mankind under which all men are equal and
which is binding on all people. Human rights became synonymous with natural
rights, rights that spring from natural law. According to the Greek tradition
of Socrates and Plato, natural law is law that reflects the natural order of
the universe, essentially the will of the gods who control nature. A classic
example of this occurs in Greek literature, when Creon reproaches Antigone for
defying his command to not bury her dead brother, and she replies that she
acted under the laws of the gods Despite this principle, there are fundamental
differences between human rights today and natural rights of the past. For
example, it was seen as perfectly natural to keep slaves, and such a practice
goes counter to the ideas of freedom and equality that we associate with human
rights today.
Roman Period – This idea of natural rights continued in ancient Rome,
where the Roman jurist Ulpian believed that natural rights belonged to every
person, whether they were a Roman citizen or not. They classified the law of
Rome into three broad categories namely; Jus Civile , Jus Genitum and Jus
Naturale . The first two were the law of the land based on the third concept
(Jus Naturale) which embody the principles of natural law, though not
enforceable in the court directly. The origin of the concept of human rights
are usually agreed to be formed in the Greco-Roman natural law doctrines of
“Stoicism”, which held that a universal force pervades all creation and that
human conduct should therefore be judged according to the law of nature
Christian Period – The idea of natural law continue even after Roman
period which forwarded the cause of human rights. However, natural law, at this
stage was considered as will of God revealed to men by Holy Scriptures.
According to Christian father all laws, government and property were the
product of sin and so human laws contrary to law of God were to be discarded
and ignored. Church as the exponent of divine law could override the State. Medieval
Age – Human Rights were further promoted in the form of natural law in the
middle ages. It was St. Thomas Aquinas who made a classic attempt to harmonise
the teachings of the Church with those of natural laws. He distinguished
between four kinds of law in his “Summa Theology” . He observed that the law of
nature is the discovery of eternal law through reason and reason is the
manifestation of religion.
Social Contractualist – The next fundamental philosophy of human rights
arose from the idea of positive law. Thomas Hobbes (1588-1679) saw natural law
as being very vague and hollow and too open to vast differences of
interpretation. John Locke has often been seen as the seminal figure of the
development of human rights thinking. He claimed that every man had a right to
life, liberty and property. These ideas were based on the idea of rational,
equal men and the natural rights provided by God. Governments that continuously
violated these rights became tyrannies and lost their legitimacy to rule . The
Lockean principles became to fuel the revolutions of the century to come. The
concept of natural rights was pervasive in America. The Americans saw the
English rule as tyranny that had lost its legitimacy by violating their rights.
The American Declaration of Independence certainly reflects Lockean ideals, as
it claims it is self-evident that all men (sic) are created equal and thus have
a right to life, liberty and the pursuit of happiness. In the Bill of Rights,
the set of amendments to the US constitution, these rights are justified by
appeal to natural rights grounded in the rights of God.
In the middle ages and later the renaissance, the decline in power of the
church led society to place more of an emphasis on the individual, which in
turn caused the shift away from feudal and monarchist societies, letting
individual expression flourish. Positivist – After the decline of natural
law conception of human rights, positive law evolved and legislation became the
main source of human rights. The Prominent writers in this regard are Austin
and Bentham. Under positive law, instead of human rights being absolute, they
can be given, taken away, and modified by a society to suit its needs. Jeremy
Bentham sums up the essence of the positivist view as : Right is a child of
law; from real laws come real rights, but from imaginary law, from "laws
of nature," come imaginary rights….Natural rights is simple nonsense.
This transfer of abstract ideas regarding human rights and their relation to
the will of nature into concrete laws is exemplified best by various legal
documents that specifically described these rights in detail:
British Magna Carta (1215) - The English Magna Carta of 1215 granted by King
John is very much significant in the development of human rights. The
overreaching theme of Magna Carta was protection against arbitrary acts by the
King. Land and Property could no longer be seized, judges had to know and
respect laws, taxes could not be imposed without common council. The Carta also
introduced the concept of jury trial in Clause 39, which protect against
arbitrary arrest and imprisonment. Thus, Carta set forth the principle that the
power of king was not absolute. The Carta was later converted to Bill of Rights
in 1689.
French Declaration of the Rights of Man (1789) - The representatives of the
French people, organized as a National Assembly, believing that the ignorance,
neglect, or contempt of the rights of man are the sole cause of public
calamities and of the corruption of governments, have determined to set forth
in a solemn declaration the natural, unalienable, and sacred rights of man, in
order that this declaration, being constantly before all the members of the
Social body, shall remind them continually of their rights and duties; in order
that the acts of the legislative power, as well as those of the executive
power, may be compared at any moment with the objects and purposes of all
political institutions and may thus be more respected, and, lastly, in order
that the grievances of the citizens, based hereafter upon simple and
incontestable principles, shall tend to the maintenance of the constitution and
redound to the happiness of all. Therefore the National Assembly recognizes and
proclaims, in the presence and under the auspices of the Supreme Being. Under
the Declaration, rights of men and citizens includes guarantee of equality,
liberty, free speech and laid down that law is the expression of the general
will.
These apart, there are various
other documents also reflected the ideas of human rights which helps in its
development. In fact, since the beginning of the 19th century it was recognised
in the constitutional law o many States that human beings possess certain rights.
Worth of human personality began to be realised.
Human Rights In Post World Wars Era
Earlier, human beings as such had no rights under the traditional international
law, which was defined as the law which govern relations between States. This
theory about the nature of international law had a number of consequences as
far as individual is concerned like treatment of the individual was limited to
the domestic jurisdiction of each State and Stateless person does not enjoyed
any protection under traditional international law. However, this theory had
exception like intervention of other State on humanitarian ground , limitation
of sovereignty by treatyand mandates system under the league of nation
The idea of human rights emerged stronger after World War II. The extermination
by Nazi Germany of over six million Jews, Sinti and Romani (gypsies),
homosexuals, and persons with disabilities horrified the world. Trials were
held in Nuremberg and Tokyo after World War II, and officials from the defeated
countries were punished for committing war crimes, "crimes against
peace," and "crimes against humanity." Neither utilitarism nor
scientific positivism, the philosophies that had undermined the natural rights
concept, could address the problems. The dominant political paradigm, realism,
could not find national interest violated. The language of human rights seemed
more appropriate. After the war, the Nuremberg War Crimes Tribunal introduces
the subject of gross human rights violations to the international relations.
The individual German soldiers were charged of crimes against humanity. The
revival of the concept of human rights can thus be seen as a reaction to the
horrors of the War. During the next decades, human right movement saw three
waves of activism, which can be divided into three phases :
1. Normative Foundation – The first wave got its momentum from the horrors
of the World War II. In the aftermath of the war, the United Nations Charter
included promotion of respect for human rights and fundamental freedoms among
the principal purposes of the organization. The UN moved quickly to formulate
international human rights norms. In 1948 the Assembly adopted the Universal Declaration
of Human Rights(UDHR).
The UDHR, commonly referred to as the international Magna Carta, extended the
revolution in international law ushered in by the United Nations Charter –
namely, that how a government treats its own citizens is now a matter of
legitimate international concern, and not simply a domestic issue. It claims
that all rights are interdependent and indivisible. Its Preamble eloquently
asserts that:
“WHEREAS recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world…..”
The influence of the UDHR has been substantial. Its principles have been
incorporated into the constitutions of most of the more than 185 nations now in
the UN. Although a declaration is not a legally binding document, the Universal
Declaration has achieved the status of customary international law because
people regard it "as a common standard of achievement for all people and
all nations."
During that time League of Nations existed but it was weak and lacked the power
to deal with human rights issues and therefore it was expected that the UN
Charter shall provide an effective international systems for the protection of
human rights but this did not happen because of opposition from the major
problems as they had serious problems of their own at that time whereas smaller
countries favoured the inclusion of Bill of Rights in the Charter, lacked the
political influence. Consequently, the human rights provisions of the Charter
as adopted in San Francisco were weak and vague. However, despite the
vagueness, the human rights provisions of the Charter had a number of important
consequences namely;
a) The Charter internationalized the concept of human rights, though all the
matters did not ipso facto come out of domestic jurisdiction
b) Secondly, the obligation of the member States of the UN to cooperate with
the organization in the promotion of human rights provided the UN with the
requisite legal authority to undertake a massive effort to define and codify
these rights.
c) Further, the success of the UN effort is reflected with the adoption of the
International Bill of Rights and in the vast number of international human
rights instruments in existence today.
2. Institution Building – The 2nd stage in the evolution of international
human rights law began in the late 1960s and continued for 15 to 20 years. The
second wave of activism was influenced by the newly independent states of
Africa and Asia. There were some important conventions[30] and covenants[31]
established during the decade: Together with the Declaration the Covenants form
the essential written core of international human rights norms.[32] These
apart, during this period, two distinct developments took place within the UNs
framework. The first focussed on the nature of human rights obligation which
article 55 and 56 created for the member States. The phrase “to promote” was
somewhat vague but the vagueness was removed by the adoption of ECOSOC
resolutions
With the goal of establishing mechanisms for enforcing the UDHR, the UN
Commission on Human Rights proceeded to draft two treaties: the International
Covenant on Civil and Political Rights (ICCPR) and its optional Protocol and
the International Covenant on Economic, Social and Cultural Rights (ICESCR). Together
with the Universal Declaration, they are commonly referred to as the
International Bill of Human Rights. In addition to the covenants in the
International Bill of Human Rights, the United Nations has adopted more than 20
principal treaties further elaborating human rights. These include conventions
to prevent and prohibit specific abuses like torture and genocide and to
protect especially vulnerable populations, such as refugees[34] , women[35] ,
and children[36] . In Europe, the Americas, and Africa, regional documents[37]
for the protection and promotion of human rights extend the International Bill
of Human Rights. These documents have powerfully demonstrated a surge in demand
for respect of human rights. Popular movements in China, Korea, and other Asian
nations reveal a similar commitment to these principles.
3. Implementation and the Post Cold War Period – Although the latter half
of the 20th century saw a rapid development of human rights norms-setting in
international venues, the political agenda of the Cold War did not favour the
issue. The human rights issues remained highly polarized and politicized, as
the East and West had countering opinions and the South its own views. The
third wave was triggered by the revulsion against the overthrow of the Allende
government in Chile in 1973, the fact that Covenants of 1966 entered into force
and the beginning of the Carter presidency in the US. In the 1970's the US
foreign aid was linked to the human rights performance of the recipients. The
middle of the 1970's saw also the rise of the human rights non-governmental
organizations such as Amnesty International[38]. The end of Cold War freed many
nations in Europe from communist rule permitting them to embark on a process of
democratic transformation. The end of the Cold War and its effect on human
rights is reflected in part in the text of 1993 Vienna Declarationand Programme
of Action adopted at the World Conference on human rights held in Vienna in
June, 1993.
The ending of the Cold War in the beginning of 1990's has meant changes in the
activity and functioning of the human rights regime. Human rights have become
more visible in the political language and the institutions are now more
active. It seems there is a new wave of human rights activism going on. Both
the General Assembly and Human Rights Commission have become more active. Most
importantly, the UN goals of peace-keeping and human-rights protection have
become increasingly combined. During the Cold War, genocide in places such as
Burundi, East Pakistan and Cambodia were met only by verbal expressions of
concern. Now, peace-keepers in El Salvador, Haiti, Guatemala and Rwanda have
explicit mandates to investigate human rights violations. Rwanda and Yugoslavia
have international tribunals to handle the charges against human rights
criminals, first time after Nuremberg.
International human rights commitments is still enmeshed with the complex
patterns of international politics, and it is easy to point out cases of
janus-faced will to act in some cases and withdraw in some other. The war in
Iraq, which was partly justified by human rights claims and the international
unwillingness to interfere in Sudan's genocidal civil war is a good
example.
However, after the end of the Cold War the international willingness to use the
human rights language in international power politics has become larger. Even
if this rhetoric hides the true intentions, it tells something about the
accepted values of our times.
Governments then committed themselves to establishing the United Nations, with
the primary goal of bolstering international peace and preventing conflict.
People wanted to ensure that never again would anyone be unjustly denied life,
freedom, food, shelter, and nationality. The essence of these emerging human
rights principles was captured in President Franklin Delano Roosevelt’s 1941
State of the Union Address when he spoke of a world founded on four essential
freedoms: freedom of speech and religion and freedom from want and fear. The
calls came from across the globe for human rights standards to protect citizens
from abuses by their governments, standards against which nations could be held
accountable for the treatment of those living within their borders. These
voices played a critical role in the San Francisco meeting that drafted the
United Nations Charter in 1945.
These apart, the post world war era witnessed a new form of human rights in
which has been termed as collective rights or group rights. These rights
protect and promote the cause of the vulnerable groups namely; women, children,
disabled, minorities etc.
Conclusion
Human
rights are fundamental to the stability and development of countries all around
the world. Great emphasis has been placed on international conventions and
their implementation in order to ensure adherence to a universal standard of
acceptability. With the advent of globalization and the introduction of new
technology, these principles gain importance not only in protecting human
beings from the ill-effects of change but also in ensuring that all are allowed
a share of the benefits. The impact of several changes in the world today on
human rights has been both negative and positive. In particular, the risks
posed by advancements in science and technology may severely hinder the
implementation of human rights if not handled carefully. In the field of
biotechnology and medicine especially there is strong need for human rights to
be absorbed into ethical codes and for all professionals to ensure that basic
human dignity is protected under all circumstances. For instance, with the
possibility of transplanting organs from both the living and dead, a number of
issues arise such as consent to donation, the definition of death to prevent
premature harvesting, an equal chance at transplantation etc. Genetic
engineering also brings with it the dangers of gene mutation and all the
problems associated with cloning. In order to deal with these issues, the
Convention for the Protection of Human Rights and Dignity of the Human Being with
Regard to the Application and Medicine puts the welfare of the human being above
society or science.
However the efficacy of the mechanisms in place today has been questioned in the light of blatant human rights violations and disregard for basic human dignity in nearly all countries in one or more forms. In many cases, those who are to blame cannot be brought to book because of political considerations, power equations etc. When such violations are allowed to go unchecked, they often increase in frequency and intensity usually because perpetrators feel that they enjoy immunity from punishment.