HUMAN RIGHTS LAW –

L212
UNIT ONE
INTRODUCTION TO HUMAN RIGHTS LAW
 UNIT 1

The meaning of `Rights' and `Freedoms'

Legal Rights, Constitutional Rights and Human
Rights
Historical development of Human Rights
Characteristics of Human Rights
Categories of Human Rights
Obligations of the State in relation to Human
rights
Definition of rights and freedoms

 A Right is a common privilege given to all citizens for example the right to vote,
the right to property, the right to worship, the right to information
 Freedom is when you have no constraints to conduct your actions ‘“freedom of
speech, freedom of the press, freedom to religion, freedom to complain.
 In modern language both words refer to similar things like Freedom of the Press
and Right to Information. Freedom means having a good environment where
Rights and Duties are honorably preserved. If you are entitled to something, you
have a Right towards it. Freedom itself is the fundamental human right
Legal Rights, Constitutional Rights and
Human Rights
 Legal Rights, Constitutional Rights and Human Rights
 Legal rights refer to a set of rights formulated by the legal system of a
government. They are given as privileges to the citizens of that particular state.
Thus, they are those liberties or protections of individuals that are originated
through the laws
 In brief, legal rights are the privileges given to citizens by their governments.
Hence, these liberties/right are created and enforced by the legal system of
governments, which also means that they can also be redefined or altered by the
same parties
Legal Rights, Constitutional Rights and
Human Rights Cont’d
 Constitutional rights are the most highly guaranteed freedoms within a legal
system. A constitutional right can be a prerogative or a duty, a power or a restraint
of power, recognized and established by a sovereign state.
 Constitutional rights may be expressly stipulated in a national constitution, or they
may be inferred from the language of a national constitution, which is the
supreme law of the land, meaning that laws that contradict it are considered
unconstitutional and invalid
 . e.g. the right to vote article 46, the right to pension benefit article 187, the right
to request for presidential pardon article 97(2), right to petition and make
comments on legislation and decision of national assembly article 88, right to
challenge constitutionality of statutory instrument article 67(3).
Legal Rights, Constitutional Rights and Human Rights
Cont’d

 HUMAN RIGHTS → set of norms governing the treatment of individuals and

groups by a state and non-state actors on the basis of ethical principles regarding
what society considers fundamental to a decent life.
 HUMAN RIGHTS → moral principles or norms that describe certain standards
of human behaviour and are regularly protected in national and international law.
They are applicable everywhere and at every time in the sense of being universal.
 Human rights are not given by a government or another institution. Every human
possesses them innately, or simply because they are human. Human rights are
inalienable, meaning a person cannot give them away or have them taken away
 Human rights include the right to life and liberty, freedom from slavery and
torture, freedom of opinion and expression
Legal Rights, Constitutional Rights and
Human Rights Cont’d
 Human Rights Principles
 Equality and Non-discrimination: All individuals are equal as human beings and
by virtue of the inherent dignity of each human person. No one, therefore, should
suffer discrimination on the basis of race, colour, ethnicity, gender, age, language,
sexual orientation, religion, political or other opinion, national
 Participation and Inclusion: All people have the right to participate in and access
information relating to the decision-making processes that affect their lives and
well-being.
 Accountability and Rule of Law: States and other duty-bearers are answerable for
the observance of human rights. In this regard, they have to comply with the legal
norms and standards enshrined in international human rights instruments.
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS
 The history of human rights covers thousands of years and draws upon religious,
cultural, philosophical and legal developments throughout the recorded history. It
seems that the concept of human rights is as old as the civilization.
 This is evident from the fact that almost at all stages of mankind there have been a
human rights documents in one form or the other in existence. Several ancient
documents and later religious and philosophies included a variety of concepts that
may be considered to be human rights.
 Notable among such documents are:
 The Code of Hammurabi; one of the most significant and remarkable
contributions to the historical evolution of law came from King Hammurabi (c
1792-1750 BCE), who ruled ancient Babylon. His famous Code of Hammurabi is
the oldest set of complete laws known to exist in the world.
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 The Cyrus Cylinder: The cylinder was created in 539 BCE. The Cyrus Cylinder or
Cyrus Charter is an ancient clay cylinder a declaration by Cyrus the Great (ruler
of the Persian Empire) who established reforms through this cylinder. The
Cylinder has also been called the oldest known charter or symbol of universal
human rights and also considered a base of the human rights declaration (UDHR)
 It is translated into all six official languages of the United Nations and its
provisions parallel the first four Articles of the Universal Declaration of Human
Rights. Cyrus the Great recognized and protected, what are now called the right to
liberty and security, freedom of movement, right to property and even certain
economic and social rights and created the first humane, equal and religiously
tolerant empire that consisted of different languages, races, religions and cultures.
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 This was as a result of what happened in 539 BC. Cyrus the Great, after conquering the city of
Babylon, did something totally unexpected, he freed the slaves, declared that all people had the
right to choose their own religion, and established racial equality.
 From Babylon, the idea of human rights spread quickly to India, Greece and eventually Rome.
There the concept of “natural law” arose, in observation of the fact that people tended to follow
certain unwritten laws in the course of life, and Roman law was based on rational ideas derived
from the nature of things.
 The new phrase ' Human Rights' was adopted only in the present century from the expressions
previously known as 'Naturals Rights or Rights of Men'. Introducing the concept of Human Rights
it can be said that Human Rights is a twentieth century name for what has been traditionally known
as natural rights or, in a more exhilarating phrase, the rights of men. The Greek thinkers developed
the idea of 'natural law or natural right'.
 They said man possesses "insight" and this insight reveals to him the goodness and badness of
things and makes him to know the absolute and eternal values. According to Greek Philosophy, the
laws of nature are unwritten. Human beings are born with human rights, which are inalienable.
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 In the middle age, great philosopher Thomas Aquinas reaffirmed that the "natural
law" is higher than positive laws (man-made) and it should be obeyed by all.
According to him, any order or authority which contravened the natural law, could
be disobeyed, for "unjust law have no moral validity".
 The great scholars like Hobbes and John Locke of England provided the
necessary wings to the movement of freedom and liberty. They were supporters
and believers of individual freedom and equality of men.
 John Locke discussed that certain rights are apparently available to a person as a
human being only, because they existed in the state of nature before humankind
entered civil society and the main rights of those were the right to life, liberty and
property.
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 Documents asserting individual rights, such the Magna Carta (1215), the
English Bill of Rights (1689), the French Declaration on the Rights of Man
and Citizen (1789), and the US Constitution and Bill of Rights (1791) are the
written precursors to many of today’s human rights documents. Yet many of these
documents, when originally translated into policy, excluded women, people of
color, and members of certain social, religious, economic, and political groups
 Some of the earliest landmarks events relating to the demand by individual
citizens for personal autonomy from control of their states occurred in England.
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 The Magna Carta, or "Great Charter," was arguably the most significant early
influence on the extensive historical process that led to the rule of constitutional
law today in the English-speaking world. In 1215, after King John of England
violated a number of ancient laws and customs by which England had been
governed, his subjects forced him to sign the Magna Carta, which enumerates
what later came to be thought of as human rights.
 Among them was the right of the church to be free from governmental
interference, the rights of all free citizens to own and inherit property and to be
protected from excessive taxes. It established the right of widows who owned
property to choose not to remarry, and established principles of due process and
equality before the law
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 In1628 the magna carta was followed by the ‘petition of rights’ a petition which was
caused by the imposition of taxes on the English tax payers by king Charles 1 through a
royal command without parliamentary assent.
 The tax payers reacted to those unilateral taxes with this petition which forced the king
to give in to the people’s demands for a system of consented taxation.
 In 1679 the Habeas Corpus Act was passed which prohibited arbitrary and unjustified
detention of citizens
 In 1689 the English lawmakers presented to their ruler a much bolder document in
which they declared their freedom of speech and other social political rights, the
document is known as the ‘Bill of Rights 1689’
 This early history of human rights had a tremendous influence on French and British
philosophers whose writings between 1500 and 1770 had an impact on the framers of
the French Bill of Rights and American Declaration of Independence.
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 On July 4, 1776, the United States Congress approved the Declaration of
Independence. Its primary author, Thomas Jefferson, wrote the Declaration as a
formal explanation of why Congress had voted on July 2 to declare independence
from Great Britain, more than a year after the outbreak of the American
Revolutionary War, and as a statement announcing that the thirteen American
Colonies were no longer a part of the British Empire. Congress issued the
Declaration of Independence in several forms.
 Philosophically, the Declaration stressed two themes: individual rights and the
right of revolution. These ideas became widely held by Americans and spread
internationally as well, influencing in particular the French Revolution
HISTORICAL DEVELOPMENT OF
HUMAN RIGHTS CONT’D
 In 1789 the people of France overthrew their monarchy and established the first
French Republic. The Declaration of the Rights of Man and of the Citizen was
adopted by the National Constituent Assembly as the first step toward writing a
constitution for the Republic of France.
 The Declaration proclaims that all citizens are to be guaranteed the rights of
"liberty, property, security, and resistance to oppression." It argues that the need
for law derives from the fact that "...the exercise of the natural rights of each man
has only those borders which assure other members of the society the enjoyment
of these same rights." Thus, the Declaration sees law as an "expression of the
general will," intended to promote this equality of rights and to forbid "only
actions harmful to the society."
CHARACTERISTIC FEATURES OF
HUMAN RIGHTS
 Human rights are universal and inalienable; indivisible; interdependent and interrelated
 HUMAN RIGHTS are:
 universal → they belong to all people equally regardless of status and they are the same for
all human beings everywhere in the world. The universality of human rights is encompassed
in the words of Article 1 of the Universal Declaration of Human Rights: “All human beings
are born free and equal in dignity and rights.” They belong to all people equally regardless
of status and they are the same for all human beings everywhere in the world
 inalienable → they may not be taken away or transferred; people still have human rights
even when their governments violate those rights. Human rights are inalienable, they should
not be taken away except in specific situations and according to due process. Therefore,
Inalienability does not mean that rights are absolute or can never be overridden by other
considerations. Rather it means that its holder cannot lose it temporarily or permanently by
bad conduct or by voluntarily giving it up.
CHARACTERISTIC FEATURES OF
HUMAN RIGHTS CONT’D
 Interconnected (Interrelated)/interdependent → fulfilment or violation of one
right affects the fulfilment of all other rights; together human rights form a
complementary framework. Each one contributes to the realization of a person’s
human dignity through the satisfaction of his or her developmental, physical,
psychological and spiritual needs. The fulfilment of one right often depends,
wholly or in part, upon the fulfilment of others
 indivisible → no right can be treated in isolation; no right is more important than
another. Whether they relate to civil, cultural, economic, political or social issues,
human rights are inherent to the dignity of every human person. Consequently, all
human rights have equal status, and cannot be positioned in a hierarchical order.
Denial of one right invariably impedes enjoyment of other rights.
CATEGORIES OF HUMAN RIGHTS

 In the late 1970s, when Karel Vasak offered his concept of the three generations of
rights it was inclusive enough to embrace the whole spectrum of existing human rights
 Karel Vasak was a Czech-French international official and university professor
 it is probably the most practical, commonly used, and comprehensive categorization of
human rights
 it encompasses the dichotomies (division or contrast) used in major attempts of human
rights classification: negative vs. positive rights, individual vs. collective rights, and
national vs. international liability.
 The classification is into three categories, namely:
 First generation rights
 Second generation rights
 Third generation rights
CATEGORIES OF HUMAN RIGHTS
CONT’D
 The first generation regards negative rights and corresponds to civil and political
liberties. The second generation presumes a positive action of the state and
includes social, economic, and cultural rights
 The first two generations of rights have their corresponding covenants signed in
1966: the International Covenant on Civil and Political Rights (ICCPR) for the
first and International Covenant on Economic Social and Cultural Rights
(ICESCR) for the second
 The sharp distinction between the two covenants lies in the parties’ obligations
stemming from the respective Article 2.1. for each of them. The ICCPR relevant
provision requires states’ “respect and insurance” of the rights enlisted in the
Covenant, whereas the ICESCR binds countries only of “taking steps” in certain
direction aiming at the fulfillment of the Covenant’s provisions
CATEGORIES OF HUMAN RIGHTS
CONT’D
 While differentiating between the first and second generations of rights, Vašák
contrasted the negative character of the former and the positive of the latter
 Finally, Vašák’s third generation of human rights is referred to as “rights of
solidarity.” They require collective action of individuals as well as states and other
political units
 First generation rights
 The first generation also has a long history of accenting (emphasizing) liberty, dating back to the Magna
Carta (1215) and including such milestone documents as the United States Bill of Rights (1791) and the
Declaration of Rights of Man and of the Citizen (1789)
 They refer to the civil and political rights as set forth in articles 2 to 31 of the universal declaration of human
rights
 Since the UDHR is not legally binding the civil and political rights where given a binding force in 1966 when
they were put together in the international covenant on civil and political rights
 The first generation rights can be enforced against their violators through the courts of law
 This enforcement process is called justiciability
First generation rights cont’d

 In comparison with the second and third generation rights, civil and political
rights are easier to enforce in that their implementation only requires the act of
persuading a state to abstain from interfering with individual rights. E.g. asking
the state through a Habeas Corpus application to set free a citizen whom it has
wrongfully detained.
 Among those rights are the right to life, freedom of speech, freedom of religion,
right to fair trial, equality before the law, and other civil and political rights
 Also included in this category are political rights, which guarantee individuals the
right to participate in their government either directly or through elected
representatives. It should be noted, however, that some first generation rights also
impose positive duties on the state. For example, the state has a duty to ensure a
fair and prompt trial for anyone accused of an offence.
 The second generation rights
 Comprises the economic social and cultural rights as stated in articles 22 to 27 of the universal declaration of
human rights 1948
 Their distinct feature is the prerequisite for active state involvement.
 They promote the free development of personality through national effort, such as the right to clean water, right
to education, the right to work
 These are difficult rights to implement in developing countries like southern African states because they
demand large amounts of material, financial and human resources which are in short supply in these countries.
 Third generation rights
 These are also known as the solidarity rights, collective rights or people’s rights
 They relate to the idea of human solidarity or universal brotherhood
 They are also referred to as group rights such as women’s rights and children’s rights
 Article 1 of the UDHR represents these rights, 1972 Stockholm (Sweden) declaration of the united
nations conference on human environment Rio Declaration (UN General Assembly 1992), and other
international documents of declaratory character
 They include the right to self determination of a people that occupy a definite territory with the same
language and culture, economic and social development, healthy environment, natural resources, and
participation in cultural heritage
Third generation rights cont’d

 They extend to the rights of ethnic minorities and the disabled

 a group within a community which has different national or cultural
traditions from the main population.
 The African charter on human and people’s rights have a good number of these
rights
 Hence, such rights are positive and collective and demand responsibility, which
lies beyond the nation-state.
 Categories cont’d
 Thus, Vašák’s differentiation between the three generations quite neatly fits into the three dichotomies based
on the major approaches to human rights categorization:
 (1) negative (first generation) and positive (second and third generations), (2) individual (first and second
generations) and collective (third generation), and (3) national (first and second generations) and
international (third generation) liability
 the third generation of rights assumes that they are positive, in terms of requiring active participation of
duty-bearers; collective, in terms that focus on people or collectivities instead of individuals; and
international, that they operate within the international relations instead of the sole relationship between the
state and the individual
The disadvantages of categorization
human rights
 It has to be first acknowledged, however, that any categorization of human rights
inevitably leads to some problem or other. The main problem with the three
generations classification, as has already been mentioned, is that it is inconsistent
with the principles of universality, indivisibility and interdependence of human
rights.
 The principle of universality of human rights is founded on the notion that all
human rights apply uniformly and with equal force throughout the world. The
principle of interdependence of all human rights holds that the full and
meaningful enjoyment of a particular right is dependent on the possession of all
the other rights. And the principle of the indivisibility of human rights is founded
on the assumption that all human rights have the same basic characteristics and
should be upheld through the medium of equally potent enforcement
mechanisms.
The disadvantages of categorization
human rights cont’d
 Categorizing tends to imply that human rights are not inter-related, a notion that
ignores the universally accepted holistic approach towards the protection of
human rights.
 The three generations categorisation may also be seen as fuelling the debate on
individualism and collectivism. It is often assumed that the first generation (civil
and political) rights are individual rights, which can easily be enforced through
domestic courts of law. Second and third generation rights, on the other hand, are
seen as collective rights based on notions of international solidarity and therefore
not justiciable in domestic courts
The disadvantages of categorization
human rights cont’d
 This is not necessarily correct, as has been demonstrated in South Africa where the
Constitutional Court has, over the years, handed down several decisions which demonstrate
that socio-economic rights are in fact justiciable and enforceable through domestic courts.
 For instance in the south African case of Government of the Republic of South Africa v
Grootboom & Others The Court emphasized that civil, political, social and economic
rights in the Constitution are all interrelated and mutually supporting, and that affording
socio-economic rights to people enables them to enjoy their other rights.
 For example, forced evictions often concern whole communities, yet individuals suffer from
the denial of their right to adequate housing. The confusion about the individual or
collective nature derives in part from the fact that redressing economic, social and cultural
rights often requires a collective public effort through the provision of resources and the
development of rights-based policies. To prevent children being denied primary education
because they are unable to pay school fees, a State would need to set up a system to ensure
free primary education for all children. Again, however, this feature does not prevent
individual children from claiming the right to education
The disadvantages of categorization
human rights cont’d
 It is true that many economic, social and cultural rights sometimes require high
levels of investment—both financial and human—to ensure their full enjoyment.
However, economic, social and cultural rights also require the State to refrain
from interfering with individual freedoms, for instance trade union freedoms or
the right to seek work of one’s choosing. Similarly, civil and political rights,
although comprising individual freedoms, also require investment for their full
realization. For example, civil and political rights require infrastructures such as a
functioning court system, prisons respecting minimum living conditions for
prisoners, legal aid, free and fair elections, and so on
Obligations of the State in relation to
Human rights
 All human rights—economic, civil, social, political and cultural—impose
negative as well as positive obligations on States, as is captured in the distinction
between the duties to respect, protect and fulfil.
 RESPECT: governments must not curtail the scope of a right or interfere with
people exercising their rights
 Governments can respect human rights by:
 Creating constitutional guarantees of human rights.
 Refraining from limiting individual freedom unless absolutely necessary for the well-
being of society
 Providing ways for people who have suffered human rights abuses by the government
to seek legal remedies from domestic and international courts; and
 Ratifying and implementing human rights treaties
Obligations of the State in relation to
Human rights cont’d
 PROTECT: Governments must prevent private actors from violating rights of
others.
 This protection is to be granted equally to all. Governments can protect human
rights by:
 Passing laws that prohibit individuals from committing human rights violations
 Prosecuting or pursuing civil actions for crimes and other violations, such as domestic
violence, hazardous work conditions and discrimination.
 Educating people about human rights and the importance of respecting the human
rights of others; and
 Cooperating with international community in preventing and prosecuting crimes
against humanity and other violations.
Obligations of the State in relation to
Human rights cont’d
 FULFIL: governments must take positive action to facilitate the enjoyment of
basic human rights. A rights-based approach develops the capacity of duty-
bearers to meet their obligations and encourages rights holders to claim their
rights.
 Governments can fulfil human rights by:
 Providing free high quality education
 Creating a public defender service to provide indigent people access to lawyers
 Supporting civil society organizations and public participation in order to encourage
freedom of expression and association
 Assisting those people in need by through funding of social service programmes; and
 Funding public education campaign on the right to vote
Restriction of rights by the state (derogation clause and
limitation clauses)

 Laws and policies are able to restrict human rights, but only in a way that is reasonable and justifiable
 Not all human rights principles enjoy the same level of protection. Instead, they can have different legal
characteristics, being absolute or non-absolute in nature or having inherent limitations.
 Examples of human rights which are recognised as absolute rights and cannot be limited for whatever reason:
 Freedom from torture and other cruel, inhuman or degrading treatment or punishment (ICCPR Article 7)
 Freedom from slavery and servitude (ICCPR Article 8)
 Freedom from imprisonment for inability to fulfil a contractual obligation (ICCPR Article 11)
 Prohibition against the retrospective operation of criminal laws (ICCPR Article 15)
 Right to recognition as a person before the law (ICCPR Article 16)
 The absolute character of these rights means that it is not permitted to restrict these rights by balancing their
enjoyment against the pursuit of a legitimate aim
Restriction of rights by the state (derogation clause and
limitation clauses) cont’d

 Most rights, however, are not absolute in character.

 States can limit the exercise of these rights for valid reasons, including the needs of
countering terrorism, as long as they respect a number of conditions.
 Some rights are expressly subject to limitation on grounds such as public order and the
protection of the rights and freedoms of others: for example freedom of information (but
not freedom of opinion, under ICCPR Article 19 (3)).
 These rights are accompanied by various grounds, such as national security or public order,
as well as conditions to be met in order for them to be legitimately limited
 Any permitted measures restricting rights need to :
 be prescribed by law
 be on grounds permitted in relation to the right concerned
 be a reasonable, necessary and proportionate means for pursuit of a legitimate objective
Restriction of rights by the state (derogation clause and
limitation clauses) cont’d

 “In accordance with law”

 "In accordance with the law" (or “prescribed by law”, “provided for by law”)
means that restrictions must have an adequate basis in domestic law; the domestic
law in turn must satisfy treaty requirements and in accordance with the rule of law
Restriction of rights by the state (derogation clause and
limitation clauses) cont’d

 NECESSARY/LEGITIMATE AIM
 Human rights can only be restricted to achieve an important and legitimate purpose.
 Protecting the lives and health of people during the COVID-19 pandemic is such a purpose.
 Decisions to restrict people’s rights should be based on evidence that the restriction is
needed to achieve that purpose.
 If circumstances change, and the restriction is no longer needed to achieve the purpose, it
will no longer be justifiable.
 The specific or “legitimate aim” criterion essentially requires that the authorities act to
achieve a goal specified in the limitation clause when restricting rights. Legitimate interests
include national security; territorial integrity and public safety; the economic well-being of
the country; the prevention of disorder or crime; the protection of health or morals; the
protection of the rights, freedoms, and reputation of others; the prevention of disclosure of
information received in confidence; and the impartiality of the judiciary
Restriction of rights by the state (derogation
clause and limitation clauses) cont’d

 PROPORTIONATE
 The principle of proportionality- an important criterion for assessing whether an
interference with a right is "necessary in a democratic society"- has been used by
many national constitutional courts
 The means used to enforce these measures (such as fines and ‘move on’ powers)
must be proportionate to their purpose.
 The courts have used the proportionality test as a means of controlling the breadth
and reach of state restriction of rights; it serves to balance the legitimate purpose
of the state with individual rights in each case brought before the judiciary
Restriction of rights by the state (derogation clause and
limitation clauses) cont’d

 How are rights restricted?

 Limitation clauses and derogation clauses
 Limitation clauses (or “claw back” clauses) suspend or restrict guaranteed rights
to which they apply and appear in numerous international covenants and national
constitutions.
 They are distinct from derogation clauses because they allow states to breach
obligations to uphold certain rights for reasons unrelated to war or public
emergency.
 Derogative clauses are temporal and triggered in times of emergency and define
rights that are non derogable, whereas claw back clause may be applied even in
normal situations so long as national law is passed to that effect
Restriction of rights by the state (derogation clause and
limitation clauses) cont’d

 The Constitution of Zambia makes provision for legal limitations on the exercise and
protection of rights contained in Part III of the Constitution of Zambia
 Declaratory article 11. [Fundamental rights and freedoms]:
 It is recognized and declared that every person in Zambia has been and shall continue to be
entitled to the fundamental rights and freedoms of the individual, that is to say, the right,
whatever his race, place of origin, political opinions, color, creed, sex or marital status, but
subject to the limitations contained in this Part…
 Art 12. [Protection of right to life] of Zambian constitution:
 (1) No person shall be deprived of his life intentionally except in execution of the sentence
of a court in respect of a criminal offence under the law in force in Zambia of which he has
been convicted.
 Article 25→ allows laws passed when Zambia is at war or under a state of emergency (art
30) to derogate from all of the rights and protections in the Constitution