Introduction to International Human Rights Theory and Practice – MS-TCDC

Historical, Philosophical and

Jurisprudential Aspects of
Human Rights

Topic – 2 Human Rights Theory

By Adv. Harold G. Sungusia
www.sungcomsultants.co.tz
Outline
 Human Being?
 Philosophical Foundations of Human Rights
 Golden Rule
 Rationalistic Doctrine of Natural Law
 Liberalism
 Democracy
 Socialism
 Features of Human Rights
 Indivisibility
 Equality
 Interdependence
 Universality vs Cultural Relativism
 Conclusion
 1. Human Being?
 Human?
- any living or extinct member of the family Hominidae
characterized by superior intelligence, articulate speech, and
erect carriage
Homo sapiens - the only surviving hominid; species to which
modern man belongs; bipedal primate having language and
ability to make and use complex tools; brain volume at least
1400 cc
Human Rights - an Ideological concept?
Yes or No?

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 Who is a Human Being?
Dehumanizing - From a Nazi SS Propaganda Pamphlet:

Caption: Does the same soul dwell in these bodies?

 Human Being as an Ideological Concept
 Communal Mode of Production
All are regarded equally as human beings
 Slavery Mode of Production
 Slave as a speaking tool
Slave owner considered as a human being
 Feudal Mode of Production
Land lord as a person who deserve rights [ i.e, right to vote etc]
 Capital Mode of Production [colonialism; neo colonialism;
globalization]
All seem equal but not similar – ‘others are more equal’
Those with capital decide

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 Philosophical Foundations of Human Rights
1. Natural law concept –
 John Locke Two treaties of Government, 1690,
 Thomas Paine
 Jean Jaques Rousseau - 17th to 18th Century
 Recognition of individual human beings as subjects endowed with
rights against the society
 Individuals became the center of legal systems
 Rights of individual being natural, inherent and inalienable
 States no longer drew their justifications from the divine order but
from the need to protect the natural rights of the individual
 Driving force to French and the American Revolutions

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….
 American Declaration of Independence – 1776
We hold these truths to be self-evident – that all men are created
equal: that they are endowed by their creator with certain
inalienable rights; that among these are life, liberty, and the
pursuit of happiness. That to secure these rights, governments are
instituted among men deriving their just powers from the consent
of the governed.

 French Declaration of human rights and rights of citizens 1789

Article II.
 ….Philosophical Foundations of Human Rights

2. Liberalism –
 The freedom of individuals to fulfil themselves without interference from outside –
eg. From state, church, or from society.
 Liberal freedom has its natural limits which are to respect the freedom of others
 Immanuel Kant [Uber den Gemeinspruch] 1793 and
See also - French Declaration of human rights and rights of citizens 1789 Article IV.
 John Stuat Mill [On Liberty 1859]
 The Object of this essay is to assert one very simple principle, as entitled to govern
absolutely the dealings of the society with the individual in the way of compulsion
and control, whether the means used be physical force in the form of legal penalties
or the moral coercion of public opinion. That principle is that the sole end for which
mankind are warranted, individually or collectively, in interfering with liberty of action
of any of their number is self protection … over himself, over his own body and mind,
the individual is sovereign

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 ….Philosophical Foundations of Human Rights

3. Democracy –

 Jean Jacques Rousseau (Du Contract Social 1762)

 French Declaration of human rights and rights of citizens 1789

Article VI.

 The Principle of Democracy is the embodiment of political freedom

as coined in the antiquity

 Human rights include rights of citizens to actively participate - to

take part in political decision making processes.

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 ….Philosophical Foundations of Human Rights
4. Socialism –
 Karl Marx [Zur Judenfrage] 1843 and Friedrich Engels [Anti-
Duhring, 1877/78
 Constitution of the Union of Socialist Soviet Republics 1936
 Article 118-132: The first Constitution with an elaborated
catalogue of Economic, Social and Cultural Rights.
 Criticized other schools of thought as propagating right to private
property which is the breeding ground for unstrained capitalism
and thus obstructed the realization of right to equality which is a
central human rights principle.
 Supported the unity of state and society and the reconciliation of
an individual and collective interests

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 ….Philosophical Foundations of Human Rights
 Socialism – ….
 Abolished human rights to private property
 Supported economic and social and cultural rights as primary
and civil and political rights as secondary
 “ as long as there are homeless people in this world, the liberal
righto protection of one’s home means nothing but a luxury” !!
 “ As long as there are illiterate people – right to their freedom of
expression is meaningless”
 It focused on real equality through state interventions
 Liberal approach was compatible with the idea of slavery,
colonialism, suppression of women and the working classes.
 NB:
◦ By subjecting the classical freedoms and liberties to social
collective interests – socialist school lost protection of individual
inherent rights.
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Features of Human Rights
 1993 VIENNA DECLARATION AND PROGRAMME OF ACTION
5. All Human Rights are Universal, Indivisible, and interdependent and
interrelated. The International Community must treat human rights globally in a
fair and equal manner, on the same footing, and with the same emphasis. While
cultural and religious backgrounds must be borne in mind, it is the duty of states
regardless of their political, economic, and cultural systems to promote and
protect human rights and fundamental freedoms.
Agreed by 171 states
It settled the debate on human rights ideology and generations
Settled the issue of sovereignty and HR as exclusive national matter - now
human rights as a priority objective of the UN
 Indivisibility
 Equality
 Interdependence
 Universality vs. Cultural Relativism
Features of Human Rights

Indivisibility
Interrelated
Interdependence
Inalianable
Universality vs. Cultural Relativism
Features of Human Rights

•Human rights can not be divided–

they must be recognised as a whole
•All human rights have equal status
and can not be positioned in a
hierarchical order nor separated
Indivisibility from each other.
•No one should treat the rights
separately – all human rights should
be collectively protectected without
discrimination
Features of Human Rights
Interrelated

Rights do relate to each other

Each right in relation to the other contribute to

recognition and protection of person’s dignity
Fulfilment of one right is related to the realisation of the
other
Denial or Breach of one right affects the enjoyment of
the other rights
…..Features of Human Rights

I n t e r d e p e n d e n c e

Each right
A single violation
contributes to the
of one rights may
realisation of other
Fulfilment of one consequently
rights for purposes
right often affect all or other
Each rights is of ensuring
depends wholly or rights -Eg:
dependent on the developmental,
in part upon Endangering Right
other physical,
fulfilment of the to health is
psychological,
others synonymous to
and spiritual
endangering
satisfaction of
one’s right to life.
human needs.
Features of Human Rights

• Human rights can not be taken

away from a human beings
without affecting their dignity
• All human rights inhere in a
berson by birth – they are not
Inalianable given to a person by anyone
therefore can not be alienated
from a person – they are part of
integral attributes that makes an
individual a human being.
 …..Features of Human Rights

Universality Human rights All people in

are universal the world are
and entitled to
inalienable human rights

All individuals
are equal as
No one should
human beings
suffer
by virtue of
discrimination
their inherent
dignity
 Universalism

 UNIVERSALITY of HR –

 Declaration of 1948

Real human rights protection can only be achieved through a well balanced mix of
different human rights that takes into account the right of individual to non
interference and positive state action immanent in all human rights.

◦ Preamble: Whereas recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human rights family is the foundation
of freedom, justice and peace in the world. ….
◦ The General Assembly proclaims this Universal Declaration a a common
standard of achievement for all peoples and all Nations.
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 Universalism

 Declaration of 1948
Real human rights protection can only be achieved through a well balanced mix of
different human rights that takes into account the right of individual to non
interference and positive state action immanent in all human rights.

◦ Article 1 – UDHR
◦ 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.

 NB: 1993 Vienna Declaration

◦ All human rights for all” = indivisibility and interdependence of all human
rights
◦ A synthesis of different human rights concepts.
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Features of Human Rights
Cultural Relativism
 Whether Universally recognized system of values? Or depend on Cultural
Relativism/Diversity?
 Whether Focus on life and dignity of human beings?

Vs Universality –
– Treat human rights globally in a fair and equal manner, on the same footing,
and with the same emphasis

• Cultural relativism:
Emphasis on significance of national and regional particularities and various
historical, cultural and religious backgrounds when addressing human rights
Conclusion

 All Human Rights are Universal, Indivisible, and interdependent and

interrelated. The International Community must treat human rights

globally in a fair and equal manner, on the same footing, and with

the same emphasis. While cultural and religious backgrounds must

be borne in mind, it is the duty of states regardless of their political,

economic, and cultural systems to promote and protect human

rights and fundamental freedoms.