Jun 16, 2019

Evolution Of Human Rights

Definition of Legal Right
It is of paramount importance to know the legal meaning of a right before jumping to its origin and evolution. A legal right, as defined comprehensively by John Austin, is an interest recognized and protected by law. In the light of this definition, all remaining interests which are not protected by law do not fall within the purview of a legal right. Therefore, in common law systems we cannot file a suit in a court of law for the violation of moral and/or religious rights, not recognized under the prevailing law.
Human rights on the other hand are defined as fundamental freedoms and interests to which a person is entitled merely because of being human. The question then is, who is recognized as a human being in the eyes of law? This question has been answered by an eminent jurist John Salmond in the following words: human beings are those who are capable of having interests as well as capable of having duties and punishments imposed on them. In light of this definition, animals and dead bodies of persons do not have legal rights (although they may be prescribed certain rights in a religious or cultural context).
Origins of Human Rights
The origin of human rights can be traced back to the last sermon of the Holy Prophet (peace be upon him) delivered on the ninth day of Zul Hijjah (10 AH) in the Uranah Valley of Mount Arafat, where he emphasized on all kinds of rights for all, including women’s rights and a person’s right to life and property, etc.
“O people, just as you regard this month, this day, this city as sacred, so regard the life and property of every Muslim as a sacred trust. Return the goods entrusted to you to their rightful owners. Hurt no one so that no one may hurt you.”
A later milestone in the history of human rights was the Charter of Liberties, known as the Magna Carta 1215, which was an agreement between England’s King John and rebellion barons. Initially, the said agreement had not been very successful but later on, with certain amendments, it served as the foundation for the English common law system. The Magna Carta is celebrated by the British as a sign of freedom and liberty from the oppression of the then King.
The Magna Carta, written in Latin, consisted of 63 clauses and established certain rights for the first time in European history, such as the right to own property, etc. The writ of habeas corpus was also established, according to which no one was to be imprisoned without lawful authority.
Another evolution in the regime of individual human rights was the Bill of Rights, introduced into the US Constitution through an Amendment in 1789. The rights included the liberty and security of a person and no one being deprived of property without due process of law. In 1878, such rights were made inviolabe by way of the 14th Amendment to the US Constitution. The era was basically known as the “constitutionalism of human rights” as it was for the first time that certain rights had been incorporated into the Constitution.
Then came the stage of “internationalization of human rights”. The Charter of the United Nations was the first document to incorporate human rights at an international level. The United Nations had two main objectives, primary and secondary, whereby the primary objective was to maintain peace and stability among member state while the secondary objective was to protect human rights.
For the promotion of human rights, the United Nations General Assembly (UNGA) in its Third Session on the 10th of December, 1948, adopted a historical document known as the Universal Declaration of Human Rights (UDHR). Fortunately, the UDHR was adopted by a majority of states at that time, with the exception of a few states which denied its adoption citing religious and racial grounds.
Legal Status of UDHR
It must be kept in mind that the UDHR is merely a universal ‘declaration’ regarding human rights. It is neither a treaty nor a covenant, therefore, it essentially has no binding force until enforced by international customary practice or incorporated into national laws of member states.
On the other hand, the rights enshrined under UDHR have received recognition by being incorporated into two covenants adopted by the General Assembly. The first one is the International Covenant on Civil and Political Rights (ICCPR) which came into force on 23rd March, 1976, while the second one is the International Covenant on Economic, Social and Cultural Rights (ICESCR) which came into force on 3rd January, 1976. So, while the UDHR may not have direct binding force, it may still be indirectly binding on member states party to the Covenants.
Moreover, all dualist states which have signed and ratified international instruments are under a legal obligation to take legislative measures within their respective territories to incorporate and legally enforce these international instruments and make local laws compatible with the provisions of international human rights instruments.

-- Meer Khan