Chapter Two: Human Rights

2.1 Introduction

The proposers of the political tactic to human rights depict the core role of human rights within the realm of international political practice as a comparatively recent occurrence[1]. For instance, Beitz[2] indicates that the practice of the modern human rights began after the Second World War after the implementation of the 1948 Universal Declaration of Human Rights (UDHR). Like Beitz[3], Alfredsson [4] explains that the UDHR was enacted in 1948 and aimed at achieving universal statuses contributing to both economic and social weights. The universal approach to attaining human rights across the world was to warrant a full realisation of the rights explicated to humanity; however, the difference evinced between people and nations have resulted in varied versions and interpretations of the human rights language[5]. According to Marks[6], human rights encompass a set of values and norms that govern the way groups and individuals are treated by both non-states and state actors founded on the ethical philosophies of what is considered fundamental to a society. The norms and values encapsulated in the aspect of human rights are fused in both the international and national legal systems that specify procedures and mechanisms to hold accountable the leaders and offer redress when human rights are violated.

Due to the repute of the lawful construction of human rights alongside their enactment and execution, the current evaluation does not focus on the philosophical underpinnings of the rights in light of nature and morality. This depiction does not indicate that human rights are unfounded on the moral aspect; however, human rights are undoubtedly driven by specific ethical values that havebecome the predominant language used to advocate for nearly all conceivable types of social, political, and legal reform or progress[7]. In line with this argument, Hanna Ardent ascertains that human rights do not indicate given facts, instead, they refer to human concepts that embrace an ongoing composition[8]. Certainly, governments assume a principal role of constructing and enacting or deconstructing and violating human rights. While the transnational human rights law efficaciously redefine exclusively what is entailed in the domestic jurisdictions of lone states[9], which encourages an evolution from Hobbesian national-centred concept of authority to Kantian’s notion of universal solidarity and citizenship[10], human rights are also depicted as providing people with legal and moral claim to hold their government responsible for protection[11]. Ideally, Donnelly notes that the function of states or governments in protecting human rights is strengthened by the notion that there are no human rights in light of compassion or charity; thus, people have the right to hold their government responsible should there be unjust acts by the very government that should protect them.

Mahoney[12], Nickel[13], Beitz[14], Nickel[15] and Claude and Weston[16] ascertain that human rights entail ethical principles and customs that stipulate specific values of human behaviour and ought to be safeguarded as natural and permissible rights by governments, global and regional institutions and the transnational law. The aspect of human rights is considered essential irrespective of race, gender, religion, language and ethnicity among other statuses. According to the UDHR of 1948[17], human rights encompass the right to life, freedom and liberty from servitude and agony, the autonomy to have an opinion and express it freely and the right to fundamental education, among rights. In perspective, all human beings are allowed to enjoy these rights without prejudice and should not be denied or taken away unless a due process that is in line with the rule of law is adhered to. However, there has been disagreement on the degree of human rights that should be enjoyed by citizens, particularly in states where the rule of law is not fairly upheld by reigning authorities. Furthermore, there is contention regarding the means citizens ought to use in case their human rights are neglected. Hence, in exploring justifiability and legality of the right of revolution; this chapter presents various matters regarding human rights.

2.2 Historical Excursus on the Foundations of Human rights

The historical framework of the human rights concept is viewed through varied perspectives[18]. Risking oversimplification, Marks mentions four tactics to the human rights history. In his words, Marks alludes that the initial approach delves into the deep origins associated with the ancient philosophical and religious concepts of charity, compassion, individual worth, respect and justice for all. These constructs are founded on the religious concepts of Buddhism, Islam, Judaism, Confucianism and Christianity[19]. Ideally, the human rights declaration precursors can be seen in the antique cyphers of Hammurabi espoused in Babylon in 1772 BCE, the Charter inscribed by Persia’s Cyrus the Great in 535 BCE, Ashoka’s edicts India in 250 BCE, and the tradition and rules of pre-Columbian America and pre-colonial Africa[20]. Hunt[21] denotes that the contemporary human rights can be traced back to the advent of theories of natural laws in Rome, Greece and Christian theology witnessed during the Middle Ages. The aspect of natural rights resulted in the rebellions experienced in Europe in 17^th and 18^th centuries, the philosophers that launched the American and French revolutions, the abolitionists of the 19^th century, and the women’s suffrage movements and workers’ rights[22]. Another trend, according to Lauren[23], traces human rights to the enthronement depicted in the United Nations Charter that was enacted in 1945. The charter was ratified to react to the Holocaust and draw on the four freedoms postulated by President Roosevelt and the influence of the UDHR of 1948 on national constitutions, international treaties and foreign policies as well as declarations. The final view is presented by Samuel Moyn in his work “The Last Utopia: Human Rights in History”where provides an account of the revisionist history considering human rights as fringe to the end of the Second World War. Besides, Moyn presents this view as only substantial in line with the utopian movement and ideal at the start of 1970s and as a substitute to the predominant ideological climate[24]. Marks[25] furthers this argument by denoting that much of the North American and European scholarship links modern human rights theories and practices to the transformative influence and enlightenment of American and French revolutions that occurred in the 18^th century. In addition, Marks alludes that human rights are tied to the liberations of the subjugated individuals from colonial control (19^th and 20^th centuries) and slavery. In an essay, The Revolutionary Origins of Human Rights, Hunt ascertains that:

“Most debates about rights originated in the eighteenth century, and nowhere were discussions of them more explicit, more divisive, or more influential than in revolutionary France in the 1790s. The answers given then to most fundamental questions about rights remained relevant throughout the nineteenth and twentieth centuries. The framers of the UN declaration of 1948 closely followed the model established by the French Declaration of the Rights of Man and Citizen of 1789, while substituting ‘human’ for the more ambiguous ‘Man’ throughout”[26].

For instance, in his commentary about the break of the French Revolution with the past, German philosopher Jürgen Habermas mentioned that this revolutionary realisation bred a novel mentality that was fashioned by new era consciousness, new ideas of political practices and new notions of legitimisation[27]. Even though it took time, at least a century, from the end of the French Revolution for such a fresh mentality to incorporate slavery subjects and women, the cognizance that rights of man ought to cover all humans was vehemently argued during the same time by the Society for the Abolition of the Slave Trade of 1783 and Wollstonecraft in A Vindication of the Rights of Woman[28].Basically, valuing every individual as captured in the natural rights was considered a break with the past resilience of duties and rights provided for on the basis of status and hierarchy. Thereafter, the notion of human progress together with the human rights developed in the 19^th century during the transformation of the global economy by the aspects of industrial revolution and capitalism and results in immense wealth without the regard of oppressed workers and colonised people. In particular, the human rights progressed, but they were for propertied individuals, especially the Western males. Subsequently, women, former colonised people, workers and excluded minorities’ rights advanced; nonetheless, there was a gap between the human rights that belong to all individuals irrespective of sex, gender, race, religion, language, social or national origin, political opinions, birth, property and discrimination and inequality. According to Heller[29],

“…The revolution was not a class struggle that gave victory to a capitalist bourgeoisie against a ruling class that was thwarting its progress. The class struggle that did occur in the revolution was between the ruling class and subordinate popular forces. The latter’s class interest had as much to do with opposing as promoting the progress of those capitalist landlords or their bourgeois allies.”

H.G. Wells, in 1940, penned What are We Fighting For? or The Rights of Man[30] while Roosevelt broadcasted the four freedoms[31], which include freedoms of worship and speech and freedoms from fear and want when he was delivering the States of the Union Address in 1941. The United Nations Charter, signed in 1945, established the UN as an intergovernmental organization dedicated to maintaining international peace, fostering cooperation among nations, and promoting social progress, better living standards, and human rights globally[32]. In addition, the Nazi doctors’ trial brought about the bioethics principles, which were, in 1946, codified in the Nuremberg Code[33]. In 1945 through 1946, the Nuremberg Trials established criminal responsibilities for the captured individuals who engaged in mass violations of human rights. Ideally, all these events are related to the WWII and have had significant repercussions for the contemporary human rights. In the aftermath of the WWII, substratum human rights were espoused including the 1948 Genocide Convention[34] and the UDHR, the 1949 Geneva Conventions[35] to protect armed conflict victims and the 1966 International Covenants on Human Rights[36]. In addition to these human rights texts, there were others added including children rights, torture, minorities, disability rights, women discrimination and formulation of accountability an investigative at the intergovernmental levels[37]. After the Cold War, individual criminal accountability for human rights violations resurfaced during ad hoc tribunals, particularly in Rwanda, reviving a previously dormant legal concept[38]. This was also observed in the former Yugoslavia and the International Criminal Court (ICC).

2.2.1 Human rights as Ethical Concerns with Classical Roots

Mende[39] argues that there is a wide-ranging assumption that human rights are a legacy of the West. In perspective, human rights are normative ethical notions that predate philosophical ideologies of the classical Greeks. In addition, the aspect of human rights is grounded on the ancient religious myths and teachings, which is not doubted. For instance, in a traditional-based lens, human rights can be traced to philosophical inceptions that were witnessed in the Stoic impact of the Romanian jurisprudence and classical in the Athenian democratic structure. Rosenbaum[40] indicates that the traditional Greeks described nature as an objective norm that teaches the human conduct. The viewpoint explicated by Rosenbaum is a fundamental invention when coming up with the human rights. Ideally, the Sophists clearly differentiated between nature (physis) and convention (nomos) where they bolstered the analysis of human morality. Notably, values and behaviours of people in light of natural justice are often administered by the natural law with ultimate knowledge of societal mannerisms[41]. Basically, conventional morality is grounded on a mutual social opinion that doesn’t emanate from wisdom or knowledge through the concept of physis. However, the view held by the classical Greeks recognises that natural law and conventional morality overlap, but coincidentally[42].

Conventionally, while the human rights standards control government actions, the healthcare ethics encompass concerns for particular relationships, inspirations and actions for researchers, health workers and organisations[43]. The ethical concerns that healthcare work is often founded on broad consultations, are drafted by professionals, and are based on guidelines and anticipated code of conduct. For instance, the Helsinki Code was adopted by the World Medical Association in 1964[44]. The Helsinki Code originally was embedded in the involvement of human subjects, was a precursor for bioethics in the field, encompassed researcher conducted in life sciences and as ethics in health practices[45]. On the contrary, human rights standards and norms are conscripted by representatives from governments, negotiated in the political arena and encompassed in intercontinental law through transnational treaties, which ratify legal obligations that ought to be ratified by governments. Even these procedures permit a permanent and legitimate ideology to engage institutions of power and governments, there is inflexibility and unaggressive actions to adopt human rights compared to the ethical guidelines. Although the UDHR of 1948 is shaped meaningfully through diplomatic skills espoused by Eleanor Roosevelt, they reflect numerous principles adopted by many traditions and cultures and the consensus of various rights that exist. Thus, governments are bound to the transnational legal conventions, which were introduced after the ratification of UDHR; hence, the member states ought to respect it.

The emergent literature focusing on human rights and bioethics concedes a shared origin as well as a parallel development[46]. In perspective, human rights are identified as inalienable characteristics that determine what is to be done while ethics addresses how such activities should be conducted. Fortunately, they emphasise inimitable applications that protect human subjects[47]. In context, the rights incorporated in the UDHR of 1948 reflect the awareness regarding a destruction potential entrenched in science and, at the same time, recognising the merits in light of advanced science. The International Covenant on Economic, Social and Cultural Rights (ICESCR) safeguards essential human rights, including adequate living standards, education, and health, complementing civil and political protections[48].  By obligating states to progressively realize these rights, the ICESCR ensures comprehensive protection of human dignity and societal well-being[49]. Article 15 as enshrined in the ICESCR stipulates rights attached to the aspect of scientific enterprises; the article demands governments to: (i) Recognise the rights of individuals to enjoy scientific progress and its applications; (ii) conserve, develop and diffuse all aspects of science; (iii) respect the notion of requisite for scientific-based research; and (iv) bolster and develop transnational interactions and cooperation in line with science[50]. However, the article fails to address the conception of ethics and practices of science extensively. As such, few researchers that have delved into the meaning of rights have stressed that scientific freedom as denoted in Article 15(3) is not complete; hence, it ought to balance in terms of scientific accountability and responsibility to the people including accountability and responsibility to research practices[51].

From a political point of view, city-state populations, which represent not more than 50% of the Athenian residents are regarded as legatees of the natural law. Typically, this highlights a recognised inequality that even Aristotle and Plato vehemently defended. For instance, Plato and Aristotle paradoxically presented a number of definitions of fairness, which were incorporated into the philosophical discourse. Ideally, these varied conceptions of equality constitute the main elements in the context of the human rights theory, which are references of equal respect for the people (isotimia), equality as enshrined in the law (isonomia), fairness in political influence (isokratia) and in suffrage (isopsephia) and equivalence of civil rights (isopoliteia)[52].

The principles of natural law are regarded as basic values for righteous social relations that spur human interaction. The principles provide the egalitarian scaffold to bolster human rights theories and to advance the idea of quality as drawing its clout from nature; hence, laudable for its preservation in society. Further, the Romans widened this scope of human rights in their routine activities as they were majority legatees compared to the Greek custom. Indicatively, the Stoics were considered proponents of the natural law theory, which indicates that nature details a universalistic system of both ethical and physical rules[53]. Ethical laws can be differentiated through the interpretation of humans as natural phenomena and moral entities that are allied to both social and moral actions, especially through conscience as compared to physical necessity[54]. Typically, a community that emanates from nature will have its governance structure anchored in a universalistic system of laws. As such, when perceiving rational humans as natural, there is a need to consider equal civic statuses as the Stoics went beyond the Greek’s limited political standard. In particular, the Stoics emphasize that the nature laws are components of the universal order. Besides, by virtue of their nature as rational individuals, all people are citizens of a universal community. In context, this Stoical ideology was depicted in Roman jurists including Ulpian, Gaius and philosophers like Seneca, Cicero among others. This had a significant implication for law and philosophy. For example, Gaius alluded that:

“Every human community that is regulated by laws and customs observes a rule of conduct which, in part, is peculiar to itself, and in part is common to mankind in general. The rule of conduct which a people (have) settled for (their) own observance, and which is peculiar to that people, is termed the jus civile. Those principles which natural reason has taught to all mankind, (and) are equally observed by all and collectively are termed the jus gentium”[55].

Notably, the Romanist legal philosopher established the essential conceptual distinction utilised in critiquing the political order. For instance, under its confines, the Roman law was regarded as universal (jus gentium). This view could justify the absorption into the empire of various peoples governed only by local conventional law (jus civile). The ethical virtues of righteousness and justice were definable by the jus gentium, and at the end of the day, the latter is founded on the jus nature. The development of human rights theory during the Roman period reached its apogee in the concept of universal equality. Thus, the Roman doctrine of natural law had imputed to humankind an elemental civic status depicting that all persons in the world are equal[56].

2.2.2 Human Rights as Legal Rights

Following the end of World War II, international human rights protection has significantly advanced, propelled by the United Nations’ formation and the subsequent adoption of the Universal Declaration of Human Rights by the UN General Assembly[57]. Although the initial predecessor of human rights debate was the notion of natural rights which emerged as part of the primitive natural law custom that was well-known throughout the European Enlightenment[58] Legal tools adopted in varied states that acknowledged and protected human rights via the rule of law[59], UDHR contains history of human and civil rights, with thirty articles listing an individual’s “basic rights and fundamental freedoms” and establishing that their entire reputation as essential, absolute and relevant to all human beings. UDHR acts as an average standard of accomplishment for human beings[60].

The UDHR plays a crucial role in establishing human rights as legal rights[61]. It serves as a foundational document that articulates the fundamental rights and freedoms to which all individuals are entitled.[62] While not legally binding itself, the UDHR has inspired numerous legally binding international treaties and has been incorporated into many national constitutions[63]. It has also contributed to the development of customary international law, making certain rights universally applicable[64]. The UDHR’s principles have been used by courts worldwide to interpret and apply human rights laws, giving legal weight to its moral authority[65]. Therefore, it is important to note that the UDHR has set a global standard for human rights, providing a framework for holding governments accountable and advocating for the legal protection of human dignity.

Both the International Covenant on Civil and Political Rights (ICCPR) and ICESCR depicted alongside the UDHR comprise the Bill of Rights, which protect human rights in line with all basic values that are embraced by human societies across states[66]. Additionally, other several ancillary declarations and universal treaties on rights of children, women, stateless persons, refugees, diplomatic agents, persons with disabilities and minorities among others, which have been implemented under the UN systems. Further, there are definite transnational human rights agreements that protect people against atrocities including racial discrimination, genocide, apartheid, forced labour, slavery and torture among others. Since the adoption of the UDHR in 1948, all states worldwide have endorsed at least one international human rights treaty, regardless of their political, historical, social, religious, or cultural differences[67]. This universal engagement reflects the UDHR’s enduring influence in establishing a global framework for human rights protection[68].

2.2.3 Human Rights as Social Claims

Paul Hunt indicates that human rights constitute basic freedoms and rights, which belong to all persons and are founded on shared values such as fairness, dignity, equality and justice[69]. Hunt further adds that the human rights matter as they are associated to issues that are of essence among the humans. International and domestic human rights discourses and documents are characterised by both normative and conceptual linkages between social justice and human rights. Griffin observed disapprovingly that the UDHR is branded by justice as a human right and encompasses both procedural and distributive justice as well as fairness[70]. Ideally, the preamble of the UDHR ascertains that the human rights depict the foundation of justice across the world with most of the articles comprise egalitarian aspirations to fully institutionalise societies in modern politics. For instance, on top of those articles that address procedural justice like article 10, article 7 of the UDHR indicated the protection of people against discrimination as a human right. Article 21.2 of the UDHR confers the right to equal access in light of public services with article 21.3 illuminating democratic rights[71].

Marks alludes that before their inclusion into the legal texts, the human rights emanate from injustice claims, which are grounded on moral sentiments, culturally steered by contextualised religious and moral belief systems[72]. Additionally, revolting against tyrannical governments is not a new phenomenon. Modern precursors of social mobilisations that are geared towards human rights evinced at the national levels emanated from unjust denunciation of Captain Dreyfus who was regarded as a German Spy[73]. A number of non-governmental organisations (NGOs) were founded to address social injustices including the Amnesty International, Helsinki Watch and the Moscow Human Rights Committee. The NGOs were social movements that were characterised by anger due to workers’ exploitation, prisoners’ mistreatment, exclusion of women, persons with disability and children against apartheid, caste systems, colonialism and slavery. In context, the social movements regularly invoke the aspect of human rights to bolster their advocacy objectives. Basically, if the predominant philosophical theories and the human rights codes fail to address the major concerns, these social movements often focus on changing legal and theoretical formulations. In addition, the social movements contributed significantly to the process of UDHR and curbing apartheid, transformed both legal and political configurations in central and Eastern Europe[74], and reinstated democracy in the Latin America[75]. Due to these social mobilisations, new norms were instigated in line with self-determination, punishment and prevention of torture, equal treatment and protection of vulnerable groups.

2.2.4 The Middle Ages

As the ethical contributions and civilisations of India, the Muslim world and China overcame those evinced in the Medieval Europe, the legacy of the enlightenment of Europe in line with the extant comprehension of human rights supersedes other influences[76]. Conditions that spurred the enlightenment aspect combined to end the notion of Middle Ages in Europe; these encompassed the emergence of mercantilism, scientific evolution, global maritime explorations, the establishment of Middle classes and consolidation of nation-states[77]. The developments explicated enthused the extension of Western powers while they spurred the creation of propitious situations to enhance the modern conceptions pertinent to the human rights. Ideally, the developments shuttered feudalism and delegitimised the Kings’ appeals to divine rights. Afterward, human rights visionaries such as Samuel Pufendorf, Hugo Grotius, Rene Descartes and Emmerich de Vattel created a novel secular language that affirmed a shared humanity, which transcended the notion of religious sectarianism[78]. The concept of a dead language is misleading. Current language systems have flaws and often struggle to accurately reflect reality, as evidenced by challenges to the traditional doctrine of separation of powers[79].

Revolutionaries, in the next two centuries, especially in America, England and France used similar discourses to contest colonial authority or aristocratic privileges and to restructure their communities on the basis of the human rights principles. In light of scientific confidence, people writhed for the freedom of pinion and religion, right to life and property rights, which broke the conception of monarchical regimes.

Formation of the new world order occurred after the culmination of WWII experienced in 1945[80]. The establishment put security, development, peace and respect for people’s rights as the core obligations of the UN. The UDHR of 1948 offered a framework to institute transnational human rights resolutions[81]. During the Middle Ages, the religious aspects of humanity compounded the notion of human rights; for instance, the principal of the natural law was extrapolated to include the conception of theological practice. Christian philosophers, especially Saint Thomas Aquinas, depicted the system of natural laws as divinely willed; hence, both ethical and physical laws were regarded as objective and virtuous by virtue of reason and perfection of God[82]. In an epistemological sense, Saint Thomas considered natural laws to be knowable through the faculty of human reason. Natural law theory in the Middle Ages posited an inevitable duality of human existence: Persons were seen to be subjects to the authority of both God and mankind[83]. This duality was mirrored in the pyramidal feudal structure in which the king, although by grace alone, was subject to God’s law. Further, the notion that humans are individuals apart from their memberships in the respective states was a Christian belief, which was founded on universal brotherhood of humanity. Such a discrepancy can be regarded as a conceptual antecedent to the advent of individualism as a political-based theory and freedom and rights. Each of these aspects exert an impact on the construction of the human rights idea in the political theory[84].

The description regarding human rights in the modern era presents two acknowledgements; firstly, human rights ought to be human and they must be founded on the consideration that is shared among all the human beings[85]. In context, human rights should emanate from common traits among the humans. This means that human rights must be entrenched in universality. Secondly, human rights ought to represent an entitlement or claim that can be avowed. Without universality and representation of a claim, human rights are simply viewed as attributes, concerns or interests[86]. Rubin[87] argues that human rights originate from the non-governmental and essential nature of human beings, which is distinct from the aspect of constitutional and governmental laws. The notion of entitlements that can be claimed by humans owe their origin to the principle or natural rights. In light of natural rights progression in the late Middle Ages, scholars have detailed controversial questions regarding whether the claims are human rights. In Edward L. Rubin’s “Rethinking Human Rights”, the relationship witnessed between feudalism and Christianity resulted in the conception of human rights during the pre-social period where the rights are considered on the fact of being human as opposed to systems of positive law. In light of Rubin’s argument, feudalism gave birth to personal rights. Christianity, on the other hand, brought in the facet of natural law[88].

In the article “Are There Any Individual Rights or Only Duties? On the Limits of Obedience in the Avoidance of Sin according to Late Medieval and Early Modern Scholars”, Coleman[89] argues that numerous challenges ensue tracing of theories of human rights from the Middle Ages through modern eras due to the variations in witnessed in medieval traditions on matters rights discussions such as the discourses of theologians and civil lawyers. Coleman also depicts the differences evinced between Dominican and neo-Augustinian traditions. Pegged on the texts she reviewed; Janet ascertains that the Dominican values are linked directly to the rights as claims through the early modern era while neo-Augustinian submerged rights[90]. A number of scholars that consider the medieval rights discussion can concede that the theories of natural rights emerged between the 12^th and 15^th centuries while others argue that the first theories of natural rights can be traced to the epochs of the Stoics and Plato[91]. In addition, studies conducted by Berman, Pennington and Prodi indicate that salient historical events during the initial human rights development imaged; first, the legal studies revival both in the canon and civil law that traces back to the 12^th century; second, evolving ideas on rationalistic notions founded on natural rights theories and voluntarism entrenched in the nominalistic philosophy; third, the controversies of Franciscan poverty between 1250s and 1340s; and lastly the progression of its commune and its vitality in explaining self-defence, property, marriage and procedure and non-Christian rights as rooted in inalienable and natural law and not positive law[92].

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