THE CONCEPT AND PHILOSOPHY OF HUMAN RIGHTS.
The Concept of 'Right'
The word “rights” to a lay man 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.
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.
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 distinction between a ‘right’ and a ‘privilege’ lies in their enforcement. While a right is actionable in the sense that a breach entitles a party to seek redress in court, a privilege is merely enjoyed at the mercy or grant of the conferral who may withdraw 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 They are rights to be enjoyed by all human beings of the global village and not gifts to be withdrawn, withheld or granted at someone’s whim or will.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. A-G., 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”.
It has been noted elsewhere that 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 Despite 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 (as he then was) 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 the late Chief Gani Fawehinmi (S.A.N.), 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 litigation 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 organization 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 contract 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. Arguably, America is the only country with civil liberties that are superior to international laws and this is by virtue of her 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-lade.
Classification and Dimensions of Human Rights.
Several schemes of classification of human rights have been adopted. Human rights have been classified int:
- 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, it’s 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.
1. First Generation Rights - (The Civil and Political Rights)
2. Second Generation Rights - (Economic, Political and Social Rights)
3. Third Generation Rights - (Group or solidarity Rights)
4. Fourth Generation Rights - (Environmental Rights).
1. 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 Universal Declaration of Human Rights. 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.
2. 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.
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.
3. 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.
4. 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.
5. Fifth Generation Rights
The new frontiers of human rights – rights to democracy and good governance are regarded as the fifth generation of human rights