INTRODUCTION TO HUMAN RIGHT LAW

You should be familiar with the following areas

  • Meaning  Human Right and Human right Law
  • Nature of Human Rights
  • Scope of Human Right law

1.1 MEANING OF HUMAN RIGHT AND HUMAN RIGHT LAW

1.1.1 Human Rights

According to Black’s Law Dictionary 8th Edition 2004 defines human right as freedoms, immunities and benefits that, according to modern values especially at an international level, all human beings should be able to claim as a matter of right in the society in which they live.

John Locke (1632-1704) define human right as absolute moral claims or entitlement to life, liberty and property.

OR Human Rights are basic rights and freedoms to which all human beings are entitled like civil and political rights, the right to life and liberty, freedom of thought and speech/expression, equality before the law, social, cultural and economic rights, the right to food, the right to work, and the right to education. In short, human rights are freedoms established by custom or international agreement that protect the interests of humans and the conduct of governments in every nation.

1.1.2 Human right law

Is a body of law prohibit practices such as torture, slavery, summary execution without trial, and arbitrary detention or exile. Many human rights are secured by agreements between the governments and those they govern, such as the URT Constitution. Others are protected by international laws and pressure.

1.2 NATURE AND SCOPE HUMAN RIGHTS

1.2.1 Nature of H.R

  • Human Rights are Universal (Worldwide, common)
  • This means human rights apply to all persons regardless of their race, sex, religion, e.t.c. in other words, whether a person is stateless or belongs to a given state; they deserve to exercise their rights. Article one of the universal declaration of human rights states that “all human beings are born free and are equal in dignity and rights.” the universality of human rights means one is entitled to the same rights as everyone else regardless of custom, race, religion e.t.c.
  • Human Rights are Inalienable

Human rights cannot be taken away or abrogated except under specific circumstances. In the event that human rights are taken away, it should be with due process. For instance if an individual violates another person’s rights then the law should take its course by having that person charged or sued. Where the individual is found guilty then he will lose some if his rights like the right to liberty through imprisonment if the punishment so requires.

  • Human Rights are Inherent

Human rights are acquired naturally meaning that everyone acquires human rights at birth. These rights are not conferred upon humans by the government but each individual by having the nature of a human being acquires them upon birth. Article one of the universal Declaration of Human Rights States that: “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.”

  • Human Rights are indivisible

All rights are equal in status and cannot be positioned in a hierarchical order. Denial of one right eventually impedes the full enjoyment of another right. One right cannot be enjoyed at the expense of another right. For instance denying one the right to liberty means all the other rights will be affected.

  • Human Rights are interdependent and interrelated

The fulfilment of one right wholly or partially depends on the fulfilment of another right. Each right plays a great part in the realisation of another right. The right to life may for instance depend on the right to health.

  • Human Right is Absolute and Non Absolute

Under international law some rights are absolute. Absolute rights cannot be limited in any way, at any time for any reason. Absolute rights under the ICCPR include:

  1. The right to be free from torture, and other cruel, inhuman, or degrading treatment or punishment (Article 7)
  2. The right to be free from slavery or servitude (Article 8(1)and (2) )
  3. Prohibition on genocide (Article 6(3)
  4. Prohibition on prolonged arbitrary detention (elements of article 9 (1) )
  5. Prohibition on imprisonment for failure to fulfil a contractual obligation ( Article 11)
  6. Prohibition on the retrospective operation of criminal laws (Article 15)
  7. The right of everyone to recognition everywhere as a person before the law ( Article 16)
  8. The right to freedom from systematic racial discrimination (elements of Article 2(1) and 26 )

All other rights are non absolute meaning that they can be subject to limitations and restrictions as are reasonable, necessary, proportionate and demonstrably justifiable.

  • Derogable and Non derogable Rights

Derogations on the other hand allow states to suspend part of their legal obligations and thus limit /restrict certain rights under certain circumstances. Derogation is used to allow a state to respond to serious public emergency that threaten the life of the nation. Any derogation must be for a limited period of time, proportionate to the emergency and non-discriminatory.

Under Article 4(1) of the ICCPR it is stated that:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under International law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

Before a state of emergency is declared and rights suspended, the UN Secretary General must be informed. Article 4(3) of the ICCPR states that:

Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

By definition, any right that is absolute is also non-derogable meaning that it cannot be suspended even in a declared state of emergency.  Article 4(2) of the ICCPR states that “No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision” In additional to the absolute rights that are non-derogable, the following rights are also non derogable

  1. The right to life (Article 6)
  2. The right to be free medical or scientific experimentation without consent. (Article 7)
  3. Freedom from thought conscience and religion
  4. The right of all persons deprived of their liberty to be treated with humanity and respect for the inherent dignity of the person
  5. Some elements of the rights of persons belonging to an ethnic group, religious, or linguistic minority.
  6. Prohibition against taking hostages, abductions and unacknowledged detentions
  7. Prohibition on the re-introduction of the death penalty if it has abolished
  8. Prohibition on propaganda for war and advocacy on national, religious or racial hatred that constitute incitement to discrimination, hostility, or violence

1.2.2 Scope of Human Rights

In their contemporary manifestation, human rights are a set of individual and collective rights that have been formally promoted and protected through international and domestic law since the 1948 Universal Declaration of Human Rights. It covers (1) civil and political rights, (2) economic, social, and cultural rights, and (3) solidarity rights.