International Human Rights

HR - Cuts across both domestic and international spheres. One of the few topics when we have both domestic/municipal protection of HR and int protection of HR.

What is HR?

What are rights? When we talk about rights a question which inevitably comes to mind is, rights against whom? When you have a right for something, this right is usually opposable against someone else. If so, then enforceable against whom? Children can have rights against their parents.

When we deal with rights, does this mean that somebody else has a duty towards you, does it also mean that you have a right but you also have duties.

If we look at the philosophical debates about HR, we will notice that many scholars throughout centuries have held that HR are inherent to the human being.

In one International Convention, relatively more recent, one of these regional conventions which is not only called convention on human rights but also in the title itself ‘duties’. It is the African Charter. In the case of an African Child, the charter does not only refer to rights, but also to duties.

Whether rights are universal or whether rights vary according cultural, historical, traditions or even the stage of development of a country. There has been a lot of political debate for the last 70 years that HR have become at the forefront of the international debates.

Issue of HR and the rights of women. If there should be no gender of discrimination between men and women, we still have societies who will argue, for cultural, historical, religious reasons that men and women do not have the same rights.

Theoretically all human beings have the same right, but in practice it is not the case. If we look at what is happening in China today. We do not have multi parties in China, most of the rights do not exist or are not guaranteed in China, but China has managed to be really successful and have come a long way. China would argue that the most important thing is economic development.

For a long time when the Western states were pushing their economy on the world, they said that democracy and development are linked. If you do not have democracy you will not have development. MRU is the only country in this part of the world where there has always been multi parties and democracy. This statement cannot hold true today. One of the arguments made over the years, is that China moved faster than India because it did not have democratic institutions which hindered their development.

Start with textbooks, read the relevant chapters.

The Historical Aspect of Human Rights -

When we consider HR, the general idea of HR, we can go back very far in time. When we look at ancient civilisations, going back 3000 B.C We can find texts which set out what we call HR. Some of these texts were quotes made by rulers/kings and in other cases, texts from leading philosophers which set out rights, and these rights were generally accepted as part of the values of their societies but they were not necessarily part of the law. We can look at 3 regions of the Mesopotamia, India, China and the Middle East.

The first ones were Sumerian 2150 BC, the court of Hamurabi - which historically known as the first court of rights. The king of Babylon set out some of the rights engraved in stone. We find the principles which came with much later, Cybrus the great (580ish BC) The charter of Cyprus. We also find text from China, and India. These are mostly texts from philosophers, Confucius specially with the development of buddhism. In the case of India we have these ancient texts but we don’t even know the authors.

There was a king who is considered as being one of the greatest kings of India Ashoka. The ibhits of Ahsoka?

In the modern times like 200 years ago, the first historical development which is mentioned is from England, it is the Magna Carta, this bill of rights were not so much about individual rights, they were about the rights of the parliament, the rights derived from the monarch to other institutions. Then the monarchs were forced to give up some of their rights. These documents started from 1215 with the Magna Carta then in 1679 there is the Habeas Corpus. Then in 1869 there is the English Bill of Rights but still preserved the rights of parliament more.

Another landmark in the history of rights came in 1776 with the American Declaration of Independence 4th July 1776. In the first lying it is said that all men are created equal and endowed with their creator with inalienable rights. Then later we have the FR revolution and the FR DDHC, article 1 says that men are born and remain free and equal in rights. At the time of these declarations, in FR colonies and in the US itself there was slavery, in fact some of the authors of the American independence were slave owners. In those days slaves were not considered as human beings but as slavers. Even in MRU there was a code noir. There was a separate law which applied to the slaves, their rights were not the same. Even in the last century we still had apartheid in SA. There were different laws for black people in America, there was also apartheid in the US.

Another group are the indigenous people. In Canada they are referred to as the First Nation.

When we look at the early history these were laws, codes which applied to particular states, this was within the national legal order, there was no international legal order applying to HR. International law was always about inter state laws and the subjects of int law was states. Taking in consideration the rights of individuals, giving individuals rights under int law for the first time and to that extent, giving individuals rights as subjects of int law, these are prolly one of the most significant developments in int law. In 1919, the end of the war and the creation of the UN,

The mandate system - after the first world war, the League of Nation created the Mandate system where some territories were placed on the trusteeship of some European powers. One such case is the South West Africa which is today Namibia. When the Germans lost the war, the league of nations mandated SA to administer Namibia. Similarly there was mandates in Abyssinia. What happened under the league of nations is the mandatory power had to guarantee freedom of conscience and religion in the territories where they had a mandate.

ILO provided for standards of working conditions and also rights of association of workers.

When we have a shift from national orders to an int legal order protecting rights,

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