Human Rights as a Universal Concern

 

Pronouncements are mutually agreed upon, through general consensus – based on tests of states accepting them. They are legally binding in international law only if they become part of what is called Customary International Law through the constant practice of states, the international community or of international institutions invoking their provisions over time.

The central declaration in international rights law is the Universal Declaration of Human rights (UDHR) adopted by the United Nation in 1948. This Declaration is seen as the foundation of international human rights protection and subsequent international human rights laws.

The UDHR is widely considered to be part of customary international law and therefore binding upon all state as customs.

In this article you should be able to explain the term universalization of Human Rights, the origin and the content of international human rights norms, understand the meaning of fundamental objective and directive principle of state policy and contrast it with the meaning and provision of fundamental rights in the 1999 Constitution.

  

Also read: What are the 10 Fundamental Rights?

The Universalization of Human Rights, the origin and the content of international human rights norms

Since the end of World War II in 1945, some scholars have observed two crucial instrument of state policy – the sword of armed forces and the shield of international law. Both have cast long opposing shadows on the foreign policy of nations. This makes another of the United Nations charter as “the cornerstones of contemporary Law.”

The Article requires all members of the United Nations to refrain in their International Relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations.

However, three years later, in 1948, the Declaration revolutionized the Human rights issues. States were now held responsible and accountable for any violations of the human rights of their citizen or foreigners under their control in war or peace time.

The universalization of human rights touched off the initial controversial debated on whether human rights conception was really universal or cultural relative.

However, today there is a fair level of consensus that the human rights conceptions, particularly as documented in the various instruments of the Declaration of Human Rights have “their roots in specific circumstances of the western society “and” are of western origin.

Consequently, right from the beginning and particularly in the 1960s and 1970s, Africa and Third World Countries in general “have argued that the philosophy and conceptions of human rights existed in other culture as well and equally deserved attention and recognition.

Naturally what is embodied in the African and third world human rights conceptions include the notions of human dignity and worth, which exists in all societies, but which historically colonialism, slavery and imperialism had tended to ignore.

This therefore, does not mean that the core elements of the Universal Declaration of Human Rights of 1948 are alien to non-Western Cultures including African cultures. Indeed, traditionally, African cultures “have given the greatest importance to the preservation of life and the promotion of human welfare”.

Hence the dead are given the most decent and solemn burial. It also explains the significance of ancestral worship which still prevails in most African countries.

The proclamation of 1948 by the United Nation gives the concept of human rights a Universal application.

The declaration has found effective application in settling the problems of human rights violations in places like Kosovo, Sudan, Chad etc. where International attention was drawn due to internationalized national crises.

  

Read on: 15 Essential Characteristics of Human Rights

Gratified of International Human Rights Norms: A Brief Historical Survey

Before the Second World War, human rights have found protection in domestic courts. The National courts of each country gave expression to the protection according to the socio-economic problems and political demands of the State at the point in time.

There was no recourse to international norms however. Let us take the example of Great Britain which founded the Common Law.

In 1215, the Magna Carter was signed at Runnymede, which is now Survey by King John of England and a committee of feudal barons. This could be the first instance of the British formalized and justiciable Human rights provisions following on the pattern of the XII Tables in Ancient Rome.

The XII Tables, be it noted, have been described by the poet, Livy, as “corpus onmis Romani viris” and “fons publici pirvatique viris” and by another scholar, Tacitus as “finis acqui viris.” In reality, the XII Tables were not so much “finis” as much as a fresh starting point for a new and vigorous legal development.

The Table removed the uncertainty in law, placing all freemen irrespective of their birth or order, on equal footing in respect of legal right and duty – a real exposition of human rights.

The Magna Carter, for its part, declares:- “No freeman may be taken or imprisoned or diseased of his freehold or liberties, or free customs or be outlawed or exiled or in any way molested or judged or condemned except by lawful judgment or in accordance with the law of the land nor may justice be sold, or denied or delayed to any subject,. And the crown or its ministers may not imprison or coerce the subject in any arbitrary manner.”

The Petition of Rights and Bill of Rights provide inter alia –

a) No person owing allegiance to the Crown may be committed to prison or detained by special command of the sovereign without any cause shown.

b) Excessive bail or fines ought not to be required or imposed nor cruel and unusual punishment inflicted.

c) The Crown may not suspend laws or the execution of laws without the consent of Parliament, nor may it dispense with laws, or with their execution.

The 1688 revolution is usually regarded as the Glorious Revolution. Bloodless it was. Parliament was by an Act, signed by Williams of Orange (1650 – 1702), empowered to protect the rights of the individual.

In 1701, still during the reign of Williams of Orange, judges were given security of tenure and it was by this that they were able, finally, to establish their independence from the Government.

In the 19th Century the Reform Act of 1832 extended voting rights to men of substantial property, thereby widening voting rights. Fifty years later (that is in 1884), householders were granted the vote right. But the

19th century did not actually see a total enfranchisement for Britain, for it was not until 1918, after the first World War, that women got voting rights. Even then, the right was for women of over 30 years and women over 21.

Others had to wait till as recently as 1928 , to have equal enfranchisement with men and their more older counterparts. This inward-looking phenomenon, in regard to fundamental human rights no longer had support after the Second World War or rather, after the Universal Declaration of Human rights as a global affair in 1948. Paine, in presenting his-book “Rights of Man” to George Washington in 1791 had prayed “that the rights of man may become universal”.

Those prayers were not to be answered until 1948, when the United Nations adopted the Universal Declaration of Human Rights. The General Assembly of the United Nations adopted and proclaimed these rights by resolution 217 A (iii) of 10 December 1948.

On 4th of November 1950, the European Convention for the Protection of Human rights and Fundamental Freedoms was adopted by government signatories who were members of the Council of Europe. Great Britain was a party to this Convention.

The Convention was fashioned on the International Bill of Rights. The 66 Articles contain and consist of the first generation rights of life, that is, right to life, protection from torture, or degrading treatment, and also non- discrimination.

Of importance to the advance of Human rights is the fact that United Kingdom citizens can enforce the rights at the European Commission and Court of Human Rights in Strasburg, France.

This individual right to have assess to the court has been attained by United kingdom citizens since 1966. This is laudable. Some day in Africa, a court, similar to the European Commission and Court of Human Rights, would be established under the African Charter to supplement the African Commission which, from all practical purposes has always appeared toothless and a fortiori impotent.

For those interested in statistics, the United Kingdom has been found guilty at the European Court of Human Rights abuses and of more breaches of the Convention than any other State apart of course from Italy, which holds the unenviable record of being adjudged guilty in practically every reference made to the court since 1966.

Incidentally, such rights as non-discrimination, degrading treatment, protection from torture and use of corporal punishment in schools (which was abolished by the court in 1987) can be enforced by the United Kingdom citizens at the Commission and the court. Greece has the least of guilt- judgment by the court and indeed, the lowest reference to the Court, followed by Denmark. Luxembourg has had no cases preferred against her.

In England, it is notable that the majority decision in Liversidge v Anderson has ceased to be the law. (see R v Home secretary ex-parte Khawaja. See also Reg v Inland Revenue Commissioners Ex parte Roseminster Ltd. (1980) AC 952; 1011.

The minority judgment of Lord Atkin has triumphed. The law has ceased to remain betrayed!

One would at this stage perhaps leave Europe and go to South Africa, where apartheid, up till the very recent, was valid law. The question of human rights was never raised in court, and if politically raised it was with impunity.

The courts hardly, if at all, had any experience of hearing ordinary constitutional matters. The judges, even now, would rather wish to be relieved of constitutional cases in post-apartheid South Africa.

The Inter-American Convention on Human Rights came into being in

1969. Known as the Inter-American Convention on Human Rights, it was within the Organization of American States and of interest is chapter VIII which, like the European Commission, sets up an Inter- American Court of Human rights.

The African Charter is important, in any human rights quest in Africa generally and Nigeria in particular.

In June 1981, the Heads of States and Governments of the Organization of African Unity adopted the African Charter on Human and Peoples’ rights. This was at Nairobi, Kenya.

The Charter, which has been ratified by upwards of forty African states, guarantees right to equality before the law, human dignity and inviolability. In the words of Prof. Umozurike, perhaps nowhere else is a continental organization for the protection and promotion of human rights more desirable than in Africa which has experienced some of the worst abuses of human rights.

Like its predecessors, the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter provides for political and civil rights as well as economic, social and cultural rights and group rights for the individual vis – a – vis the state.

There are 68 Articles in all and they also, apart from providing for rights, provide for duties (Articles 27-44) of the individual to the state. The Charter establishes the Commission which is to be within the Organization for African Unity and invest it with mandate inter alia to- “ensure the protection of human and peoples’ rights under the conditions laid some by the (Present) charter”.

The setting up of a Commission conforms with the norms of the Charter of the European Convention (Art. 19) and the American (Art 33) Convention but as earlier indicated, unlike the provisions of those other Conventions, the African Charter, apart from the provision of the Commission and vesting the Commission with a mandate, (chapter 11 of part II), there is, regrettably no provision for a court.

It is clear therefore, that if the provisions of the Charter are to be given a real effect, the domestic courts of the member nation of the Organization of African Unity would, to an almost total extent, have to be relied upon.

It is humbly submitted that for the Commission to be relied upon. It is believed, in any event, that it would prove a Herculean task for the Commission to ensure, in all the African States, the protection of human rights all by itself. Such assurance would have, firstly to be predicated on the good faith of member nations.

Good faith may not prove a good guarantee for ensuring compliance with human rights, having regard to the political, social and, economic statuses of the African States at present, especially when most to these states accept a veiled totalitarianism or neo-totalitarianism as the accepted norms.

Indeed that is what calls for the title of this piece, the enquiry must be whither the judiciary in these days that call for domestic application of human rights norms – quo vadis Nigerian judiciary?

 

Also read: Historical Antecedents of Human Rights in Nigeria

Conclusion on Human Rights as a Universal Concern

In this article, you have been exposed to the rudimentary aspect of universalization of human rights, the fundamental objective and Directive principle of state policy and provisions of fundamental rights which evolved from the Universal Declarations of Human Rights.

In this article, you have learned how to Identify fundamental Rights as enshrine in the domestic Constitution of Nigeria i.e. 1999 Constitution of Nigeria, Various cultures ad tradition found placement in the universal declaration of human right of 1948 and The fundamental objective and directive principle of the state was influenced by the provisions of the Universal declaration of Human Rights and How UDHR has Universalized Human Rights.