Historical Development of Human Rights
International law traditionally governs the relations between sovereign states and has therefore, not been considered responsible for regulating the relations between states and their citizens or those among citizens. The latter are part of the individual states sovereignty and, as such, are governed by national law (constitutional, administrative, penal and civil law). It is only since the Second World War, especially in reaction to the atrocities of National Socialism, that international law has come to regulate the rights of individuals in relation to their governments although many states still refuse to surrender their traditional part of their national sovereignty to international law. That is why the development of the international protection of human rights is an ongoing battle against national sovereignty.
Up until the Second World War, international law was not responsible for the rights of individuals unless the interests of more than one state were concerned. This was true in particular in the case of foreigners for whom the state they are citizens of, has protection power vis-à-vis the state that exercises defacto power.
The protection of minorities is a further historical antecedent of international human rights protection, which is also closely related to the protection power of national states. Ethnic, linguistic and religious minorities traditionally developed as new borders were drawn between states in the aftermath of wars. The protection of minorities is also closely linked to the peoples' right of self determination. In the case of the former colonies of the Axis powers, the right of self determination supported by the League of Nations mandates system and the United Nations trusteeship system, eventually led to their independence.
In addition to bringing an end to the First World War and introducing provisions for the protection of minorities, the Peace Treaty of Versailles also created two international organizations which proved to be important for the development of protection of human rights: the League of Nations as predecessor of the United Nations, and the International Labour Office as predecessor of the International Labour Organization, which today is one of the most effective specialized agencies of the United Nations for the protection of economic, social and cultural rights today.
We will finalize the discussion of this section by discussing the International Bill of Human Rights which has been described as a milestone in the history of human rights, a veritable Magna Carta marking mankind’s' arrival at a vitally important phase: the conscious acquisition of human dignity and worth . Since its inception, the United Nations has strived to secure the promotion and protection of human rights worldwide. The first, and possibly the singularly most important, step taken by the United Nations in furtherance of the incumbent obligation to promote respect for human rights and fundamental freedoms was the General Assembly's adoption on 10 December 1948, of the Universal Declaration of Human Rights. Although not technically binding, the effect of the Universal Declaration has far surpassed the expectations of the drafters and it is widely accepted as the consensus of global opinion on fundamental rights. The original intention that it would be followed swiftly by a binding enforceable tabulation of rights was not to be realized; it was to be eighteen years before consensus was reached on the text of the International Covenants and a further ten years before the instruments attracted sufficient ratifications to enter in to force.
The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and two Optional Protocols annexed there to and the International Covenant on Economic, Social and Cultural Rights. It has been referred to by the United Nations as the ethical and legal basis for all the human rights work of the United Nations, the foundation up on which the international system for the protection and promotion of human rights has been developed.
Before and after the adoption of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, the United Nations and its specialized agencies helped to formulate a number of other multilateral treaties which sought to implement specific rights or groups of related rights. These supplement the protection afforded by the covenants and several of them contain implementation procedures of their own. Among the human rights treaties elaborated by, or under the auspices of, the United Nations are:
a) The Convention on the Prevention and Punishment of the Crime of Genocide
b) Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.
c) Convention Relating to the Status of Refugee as Amended by the Protocol of 1966.
d) Convention on the Political Rights of Women.
e) Convention Relating to the Status of Stateless Persons.
f) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.
g) Convention on the Nationality of Married Women.
h) Convention on the Reduction of Statelessness.
i) Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.
j) International Convention on the Elimination of All forms of Racial Discrimination.
k) Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
l) International Convention on the Suppression and Punishment of the Crime of Apartheid
m) Convention on the Elimination of all forms of Discrimination against Women.
n) Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
- o) International Convention against Apartheid in Sports.
p) Convention on the Rights of the Child.
q) International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families
In addition to these international human rights developments, there are also others which grew up as body of regional human rights law. This regional development will be discussed in section
The United Nations Human Rights System
The human rights provisions of the United Nations Charter have been described as scattered, terse, and cryptic. No comprehensive system for protecting human rights was enshrined in the charter. Rather, the goal of securing respect for human rights was specified with state pledging to encourage the promotion and observance of rights with in their territories. There was no real definition or articulation of human rights although reference was made to the concept of equality and the notion of the dignity and worth of the human person. It is unlikely that the drafters of the original Charter could have foreseen the development of international human rights law to its present form based on the Charter’s references.
From the outset, the United Nations has placed great emphasis on the promotion of economic and social progress and development of all states. This has positive repercussions for international human rights, including political and economic stability, conditions more conducive to the realization of human rights.
The failure of national laws to protect citizens had been cruelly demonstrated, the responsibility thus lay with the global community, the new United Nations Organization. As the League of Nations had failed in its attempts to protect minorities from the states in which they find themselves, the new organization sought to approach the question of human rights from a different angle adopting the concept of equality for all in place of the idea of protection of minorities. The new organization was anxious to avoid the problems associated with minorities which has beset its predecessor, ultimately leading to its collapse. The United Nations system is based on a fundamental and irrevocable belief in the dignity and worth of each and every individual. Realization of this should ipso facto obviate the need for minority protection; every individual is entitled to the same fundamental rights and freedoms.
Having pledged to promote universal observance of and respect for human rights, the United Nations required an institutional framework to exercise responsibility thereof. Accordingly, Chapter IX of the Charter, International Economic and Social Cooperation, elaborates on the economic and social foundations of peace. Article 55 of the Charter aims at creating conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self determination of peoples … in furtherance thereof, the Charter then lists economic and social aims which the United Nations shall promote without distinction as to race sex, language or religion (Art 53(31)). Article 61 of the Charter created the Economic and Social Council. One of the functions of this body is making recommendations for the purpose of promoting respect for, and observance of , human rights and fundamental freedoms for all (Art 62/21) . To assist in this task, Economic and Social Council was to establish a commission for the protection of human rights. This commission has been supplemented by a number of other bodies. Today there is a comprehensive body of institutions, organs and committees which over see the implementation and realization of human rights at the international level. Six Committees, created by the principal human rights treaties, monitor the implementation of each treaty. These treaty monitoring bodies are the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, and the Committee on the Rights of the Child. These Committees work with and report through the Economic and Social Council and the General Assembly of the United Nations.
This new international organization very quickly established itself as a body which would actively fulfill its commitment under Article 55 of the Charter, promoting universal respect for, and observance of, human rights and fundamental freedoms. Progress in this area has been achieved in a number of ways: drafting Conventions and resolutions; applying political pressure to states; preparing and disseminating relevant information; and internationally condemning serious human rights violations.
Introduction to Regional human rights systems with particular reference to Africa
Parallel with the United Nations human rights systems, regional human rights systems have developed. In this section we are going to see these regional human rights developments.
There are three main regional systems that aim to protect and promote human rights: the Council of Europe; the Organization of American States, and the African Union. Of these, Europe has the oldest and most developed system with an established judicial mechanism for determining complaints brought by individuals. Like the United Nations, the Council of Europe was founded in the turbulent period after the cessation of hostilities in the Second World War.
Human rights were high on the agenda of the new organization. The founding states drew up a convention on human rights and fundamental freedoms which was opened for signature on 4 November 1950, entering in to force in September 1953. All member states of the Council have signed and ratified it. The drafters sought to provide a mechanism for realizing civil and political rights and freedoms as proclaimed in the Universal Declaration of Human Rights.
The European Convention on the Protection of Human Rights and Fundamental Freedoms is the prime instrument on human rights with in Europe. The rights enshrined therein are essentially drawn from the first half of the Universal Declaration. They are the right to life, freedom from torture and other inhuman , or degrading treatment or punishment, freedom from slavery and forced or compulsory labour, right to liberty and security of person, right to a fair trial, prohibition on retroactive penal legislation, right to private and family life, home and correspondence, freedom of thought, conscience and religion, freedom of expression, freedom of association and assembly, right to marry and found a family , right to an effective remedy for a violation of the rights and freedom from discrimination in respect of the specific rights and freedoms. With a focus primary on civil and political rights, the Convention did not greatly expand the Universal Declaration. It did provide considerably more detail on many of the rights and, of course, it articulated a binding legal framework to ensure the realization of those rights.
When we come to the American system, the Americans host one major regional organization with a significant impact on human rights- the Organization of American States. The Organization of American States (OAS) was established in 1948 at the ninth inter American Conference (Bogota, Colombia).
The Bogota Conference adopted the American Declaration on Rights and Duties of Man. This Declaration is similar to the Universal Declaration of Human Rights. The rights included encompass civil and political (life, liberty, religious freedom, inviolability of home and correspondence, fair trial) as well as economic, social, and cultural rights (benefit of culture, leisure time, work, social security). However, it also sets out a number of duties incumbent up on the American citizens. The duties are varied ranging from civil and military service through the support, education, and protection of minor children to a duty to pay taxes.
The American Convention on Human Rights was signed in 1969 and entered in to force in 1978. The Convention restricts itself to a detailed tabulation of civil and political rights. Economic social and cultural rights are covered in a single Article (Art. 26) which cross refers to the charter of the OAS as amended by the Protocol of Buenos Aires. On this matter, it should be noted that in 1988, the OAS adopted an additional protocol in the area of Economic, Social and Cultural Rights. The Convention itself establishes the machinery to be employed in protecting the rights of all Americans. The OAS has also expanded the scope of its human rights protection with a number of further conventions.
Now let’s focus on the African system. The youngest developed regional system is to be found in Africa. The African Union, formerly the Organization of African Unity (OAU) has played a prominent role in developing an African jurisprudence on human rights. The African system is in some ways considerably less developed than its American and European counterparts yet perhaps its greatest success lies on its very existence. It is the youngest system of the fully fledged (i.e. monitored and implemented) regional systems for the protection and promotion of human rights. Human rights were not the sole priority when the Charter was drafted although the OAU Charter provides that the constituent states will coordinate and intensify their collaboration and efforts to achieve a better life for the peoples of Africa. The OAU Charter also stipulates that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples, acknowledging both the United Nations Charter and the Universal Declaration of Human rights in passing (Art II (1) (el).
In 1981, the OAU adopted the African Charter Human and People's Rights. It was designed to reflect African concepts of rights and thus is distinctive in its phraseology and underlying rationale. In 1998, a protocol to the charter was agreed - the Protocol on the Establishment of an African Court on Human and Peoples Rights.
The Charter (often referred to as the Banjul Charter) entered in to force in 1986. It enshrines the African concept of rights and aims to be accessible to African philosophy: it is striking among international and regional instruments in its emphasis on human and peoples' rights and its cataloguing of the duties the individual /group to the state. A further notable feature is that, unlike other international and regional instruments, states are not permitted to derogate from the articles of the Charter. The rights and duties thus apply during times of public emergency.
In addition to the Banjul Charter, the African system has also adopted other human rights instrument. The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) is one of these. With civil unrest, authoritarian rule, inter- faction fighting and natural disasters common place in African Society, there is a frequent displacement of peoples, whether to avoid hostilities or escape famine. Refugees are a major problem in some areas. It is thus perhaps inevitable that Africa should read the way in drafting an instrument aimed solely at regulating refugees. Many of the provisions in the convention reflect those of the United Nations Convention Relating to the Status of Refugees (1951).
The African Charter on the Rights and Welfare of the Child (1950) is the other instrument. This instrument entered in to force in 1999. In many respects, it reflects the scope and popularity of the United Nations Convention on the Rights of the Child. It recognizes that children in Africa need special support and assistance. 'The situation of most African children remains critical due to the unique factors of their socio -economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts , exploitation and hunger.’’ (Preamble). The rights of children are considered to impose duties on every one. Many of the provisions are similar to those included in the United Nation Convention, though in Africa the rights extend to all those below the age of eighteen without exception.
A draft Protocol on Women's Rights has been adopted by the Commission on Human Rights. The draft seeks to respond to the Beijing principles (UN) and plan of action. The Protocol, if and when adopted, will most probably be part of the existing human rights machinery.
Before concluding our discussion on the African human rights system it is important to briefly discuss the institutional framework. The African Commission on Human and Peoples' Rights, a body of eleven independent experts, was created in 1987. The functions of the Commission include the promotion of human rights through collecting documents, undertaking studies on African problems in the field of human and peoples' rights, dissemination of information, organization of symposia, formulation of principles and rules aimed at solving legal problems relating to rights and freedoms, and cooperating with other African and international institutions concerned with the promotion and protection of human and peoples' rights, the protection of human rights in accordance with the Charter, and the interpretation of the Charter (Art 45) .
The other important institution is the African Court on Human and People's Rights. The Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights (1997) seeks to create a court which will complement and reinforce the work of the Commission in furtherance of the protection of human and people's rights as enshrined in the Charter (preamble).