INTRODUCTION TO HUMAN

RIGHTS LAW

Roselyn Karugonjo-Segawa
 Overview of Lecture
 Conceptual and theoretical foundations of human
rights
 History and development of international human rights
law
 Definition of human rights
 Obligations of the State
 Categories of rights
 Principles of human rights
 Goals of human rights promotion and protection
• Prerequisites for effective enforcement of Human
Rights
• Role of Human Rights Defenders
• Conclusion: importance of human rights
What are the conceptual and theoretical
foundations of human rights?
Conceptual and theoretical
foundations of human rights
Human rights law has foundations in the notions
of `natural right' developed by classical Greek
philosophers, such as Aristotle
It also has roots in natural law. Thomas Aquinas
in Summa Theologica stated that: there were
goods or behaviours that were naturally right
(or wrong) because God ordained it so. What
was naturally right could be ascertained by
humans by `right reason' - thinking properly.
 Conceptual and theoretical
foundations of human rights
Hugo Grotius in De jure belli et paci, propounded
the immutability of what is naturally right and
wrong: …Now the Law of Nature is so
unalterable, that it cannot be changed even by
God himself. For although the power of God is
infinite, yet there are some things, to which it
does not extend. ...Thus two and two must
make four, nor is it possible otherwise; nor,
again, can what is really evil not be evil.
 Conceptual and theoretical
foundations of human rights
According to Grotius:
 The moral authority of natural right was
assured because it had divine authorship.
 In effect, God decided what limits should be
placed on the human political activity.
However, this train of political thought faced
several challenges…
 Conceptual and theoretical
foundations of human rights
During the reformation ecclesiastical
authority was shaken and challenged by
rationalism and political philosophers argued
for new bases of natural right.
Thomas Hobbes posed the first major assault
in 1651 on the divine basis of natural right by
describing a State of Nature in which God did
not seem to play any role and a leap from
`natural right' to `a natural right'.
 Conceptual and theoretical
foundations of human rights
In other words, there was no longer just
a list of behaviour that was naturally right
or wrong;
Hobbes added that there could be some
claim or entitlement which was derived
from nature. In Hobbes' view, this natural
right was one of self-preservation.
 Conceptual and theoretical
foundations of human rights
Further reinforcement of natural rights came
with Immanuel Kant's writings later in the 17th
century that reacted to Hobbes' work.
Kant argued that the congregation of humans
into a state-structured society resulted from a
rational need for protection from each other's
violence that would be found in a state of
nature. However, the fundamental requirements
of morality required that each treat another
according to universal principles.
 Conceptual and theoretical
foundations of human rights
Kant argued that a state had to be organized
through the imposition of, and obedience to,
laws that applied universally;
These laws had to respect the equality, freedom,
and autonomy of the citizens which he
prescribed as basic rights necessary for civil
society.
 Conceptual and theoretical
foundations of human rights
Kant argued that:
A true system of politics cannot therefore take
a single step without first paying tribute to
morality. ...The rights of man must be held
sacred, however great a sacrifice the ruling
power must make.
 Conceptual and theoretical
foundations of human rights
John Locke wrote a strong defence of natural rights
in the late 17th century with the publication of
his Two Treatises on Government with references to
what God had ordained or given to mankind.
Locke had a lasting influence on political discourse
that was reflected in both the American Declaration
of Independence and France's Declaration of the
Rights of Man and the Citizen of 1789 which
proclaimed 17 rights as "the natural, inalienable
and sacred rights of man".
 Conceptual and theoretical
foundations of human rights
• However, Jeremy Bentham's in Anarchical
Fallacies, argued vehemently that there can
be no natural rights, since rights are created
by the law of a society
 Conceptual and theoretical
foundations of human rights
• Jeremy Bentham's in Anarchical Fallacies,
argued: Right, the substantive right, is the
child of law: from real laws come real rights;
but from laws of nature, fancied and
invented by poets, rhetoricians, and dealers
in moral and intellectual poisons
come imaginary rights, a bastard brood of
monsters, `gorgons and chimeras dire'.
 Jeremy Bentham's Anarchical Fallacies:
imaginary rights, a bastard brood of
monsters, `gorgons and chimeras dire'
• Gorgon- Greek Mythology of a
fierce, frightening, or repulsive
woman- with snakes for hair,
who had the power to turn
anyone who looked at them to
stone
• Chimera- means a thing that is
hoped or wished for but in fact is
illusory or impossible to achieve
or a fire-breathing female
monster with a lion's head, a
goat's body, and a serpent's tail.
 Conceptual and theoretical
foundations of human rights
• Jeremy Bentham in Anarchical Fallacies, also
argued that:
Natural rights is simple nonsense: natural and
imprescriptible rights, rhetorical nonsense, -
nonsense upon stilts.
 Conceptual and theoretical
foundations of human rights
Edmund Burke also criticised natural rights
and he argued that rights were those benefits
won within each society and that the rights
held by the English and French were different,
since they were the product of different
political struggles through history.
 Conceptual and theoretical
foundations of human rights
Thomas Paine wrote a defence of the
conception of natural rights and their
connection to the rights of a particular society
in The Rights of Man, 1791-1792, and made a
distinction between natural rights
and civil rights
 Conceptual and theoretical
foundations of human rights
Thomas Paine however noted that:
Natural rights are those which appertain to
man in right of his existence. Of this kind are
all the intellectual rights, or rights of the mind,
and also all those rights of acting as an
individual for his own comfort and happiness,
which are not injurious to the natural rights of
others.
 Conceptual and theoretical
foundations of human rights
Thomas Paine further noted that:
Civil rights are those which appertain to man in
right of being a member of society. Every civil
right has for its foundation, some natural right
pre-existing in the individual, but to the
enjoyment of which his individual power is not,
in all cases, sufficiently competent. Of this kind
are all those which relate to security and
protection.
 Conceptual and theoretical
foundations of human rights
Paine's views are similar to Jean-Jacques
Rousseau, who argued that people agree to
live in common if society protects them.
Indeed, the purpose of the state is to protect
those rights that individuals cannot defend on
their own. Rousseau in Social Contract, not
only criticised attempts to tie religion to the
foundations of political order but disentangled
the rights of a society from natural rights.
 Conceptual and theoretical
foundations of human rights
According to Rousseau, the rights in a civil
society are hallowed: "But the social order is a
sacred right which serves as a basis for other
rights. And as it is not a natural right, it must be
one founded on covenants."
 Conceptual and theoretical
foundations of human rights
Human Rights has several approaches:
1.Struggle Approach propounded by Christof
Heyns, who argues that: Legitimate resistance is
the conceptual and historical counterpart and
the ultimate guarantor, of human rights. Human
rights find their most reliable roots in the
struggles throughout history for the values that
underlie these rights.
*Legitimate Resistance = Human Rights
 Conceptual and theoretical
foundations of human rights
Human Rights has several approaches:
2.Pragmatic – presented as an urgent need for a
political, humanitarian or judicial response
3.Semantic- language – natural rights/civil
rights/human rights …emphasis is on the
individual or human being
4. Normative- Moral and Legal foundation of
rights as highlighted in various international and
regional human rights instruments
History & development of Human Rights
Law
Belief that everyone, by virtue of being
human, is entitled certain rights is fairly
new
However, human rights roots lie in earlier
traditions and cultures
People acquired rights & responsibilities
through their membership in a group-
family, clan, tribe, community or State.
 History & development of Human Rights
Law
Most societies had traditions with
systems of propriety and justice as well as
tending to the welfare of its members. In
Africa these were passed on orally to the
next generation.
It took the catalyst of incidents such as
the World War II to propel human rights
onto the global stage
 Precursors to the UDHR
Achaemenid Persian Empire (6th Century)
Cyrus Cylinder (6th Century)
Magna Carta (1215)
Golden Bull of Hungary (1222)
Danish Erik Klipping’s Håndfaestning of 1282
Joyeuse Entrée of 1356 in Brabant (Brussels)
Union of Utrecht of 1579 (The Netherlands)
English Bill of Rights (1689)
American Declaration of Independence 1776
French Declaration on the Rights of Man and
Citizens (1789)
 Precursors to the UDHR
• Many of the movements left out some
groups and were sometimes discriminatory:
e.g. against women, on the basis of race-
against people of African descent and
members of certain social, religious,
economic and political groups but they
formed the basis for oppressed people to
support revolutions and to assert their right
to self determination
 Key Antecedents in Human Rights History
19th Century –efforts to end slave trade &
limit the horrors of war
1919 – ILO to protect workers rights
League of Nations - formed by victorious
European allies, after the first World War. It
had concern over protection of minority
groups but it never achieved its goals and died
with the onset of the Second World War
(1939)
Key Antecedents in Human Rights History

• Birth of the UN- The idea of human rights

emerged stronger after World War II. The
extermination of 6 million Jews, Sinti and
Romani (gypsies), homosexuals, PWDs
horrified the world. Trials were held in
Nuremburg and Tokyo after World War II and
officials from the defeated countries were
punished for committing war crimes: crimes
against peace and crimes against humanity
Key Antecedents in Human Rights History
Governments then committed themselves
to establishing the UN with the primary
goal of bolstering international peace and
preventing conflict. In other words, to
improve human security: Freedom from
want and fear leading up to the United
Nations Charter in 1945
The call for establishment of National
Human Rights Institutions by the UN was
first made in 1946.
 Key Antecedents in Human Rights History
The call for establishment of NHRIs was
followed by the adoption of the Universal
Declaration on Human Rights (UDHR) in
1948
 Key Antecedents in Human Rights History
• The UDHR is ‘a common standard of
achievement for all people and all
nations’
• It is the ‘mother’ of all international
human rights documents
• It is incorporated in most Constitutions of
the World including Uganda
Human Rights are defined as:
Basic moral and legal entitlements
which are inherent in all human beings,
irrespective of race, gender, ethnic origin,
religion, political or social affiliation
necessary for living a decent life or living
in dignity. For example food, shelter,
clothing or political participation among
others
Human Rights are:
• Standards or conditions necessary for
living a decent life;
• Basic entitlements that protect our
ability to satisfy our basic needs; and
• Claims, which we have by virtue of the
fact that we are human beings.
 Obligations of the State
Respect Refrain from interfering directly or
indirectly with the enjoyment of
the right
Protect Take measures that prevent third
parties from interfering with the
enjoyment of the right

Fulfil Facilitate measures towards the full

realization of the right and to directly
provide assistance or services for the
realization of the right
 OBLIGATION TO PROVIDE DOMESTIC REMEDIES
• The state needs to guarantee the possibility of
recourse to a national judicial, administrative,
legislative or other authority in the event of a
violation of rights
• Every person who claims that his or her rights
have not been respected an must be able to
seek an EFFECTIVE REMEDY before a
competent domestic body vested with the
power to provide redress and to have its
decisions enforced.
 CATEGORIES OF HUMAN RIGHTS
Human rights have been classified as:
 First generation rights, which include
civil and political rights.
 Second generation rights, which include
economic, social and cultural rights.
 Third generation rights, which are
collective rights and include the right to a
culture, development, self-determination,
healthy environment, and the right to
benefit from humankind’s common
heritage.
 TYPES OF RIGHTS
Civil and Political Rights:- these are
rights which protect the individual
from arbitrary exercise of power by
the state. They call upon the state to
refrain from certain actions against
the individual so that the individual
can pursue freedom and
happiness.(rights to life, fair trial
,freedom from torture, freedom of
expression, association etc)
 TYPES OF RIGHTS

Economic, Social and Cultural Rights

(ESCR):- these are concerned with
material, social and cultural welfare of
the person. They are also known as
positive or distributive rights:- they
require the state to progressively do
certain things to ensure the provision of
social goods and services e.g. housing,
food, education, social security.
 Principle of Progressive Realization
• In order for a State to fulfill and protect ESCR
rights it must establish targets and benchmarks
in order to realize certain rights.eg Right to
Health does not mean the right for every one to
be healthy ,but it obliges states in accordance
with their respective economic capabilities,
social and cultural traditions and in observance
of minimum standards to mainatain basic health
services for all.
 TYPES OF RIGHTS
Collective or Solidarity Rights
These are rights that belong to society as a
group. They are important for the proper
functioning and enjoyment of the whole
society. Examples:- the right to peace; the
right to a clean and healthy environment;
the right to development. It also refers to
the rights of a group e.g. women, children,
persons with disability.
 LIMITATIONS TO RIGHTS
• Enjoyment of human rights is not
absolute. They may be subject to
limitations and this has to be done by
law and must be necessary and
acceptable in democratic society.
Limitation should not discriminate
against anybody. However there are
rights under Article 44 of the Constitution
of Republic of Uganda 1995 that are not
restricted. These are known as non-
derogable rights
 When can rights be restricted?

• To require every person, group or organ to

respect the rights of others: in the
enjoyment of one’s right, one should not
violate the right of another

• To protect public interest, public order or

public morality or public health.

• Restrictions must be by law.

 Non – Derogable Rights

 Freedom from torture, cruel, inhuman

or degrading treatment or punishment
 Freedom from slavery
 The right to a fair-hearing
 The right to habeas corpus (i.e. right
to request court that a detained
person be brought before court)
 Principles of Human Rights
a) Human Rights are universal
b) Human rights are inalienable
c) Human Rights are interdependent and
indivisible
d) Human rights have to be applied in an equal
and non-discriminatory manner
e) Rights come with obligations
 Principles of Human Rights
a) Human Rights are universal
• cornerstone of international human rights law.
• Found in the Universal Declaration on Human
Rights in 1948
• Reiterated in numerous international human
rights conventions, declarations, and
resolutions. For example…
 Principles of Human Rights: Human
Rights are Universal
• The 1993 Vienna World Conference on Human
Rights, for example, noted that it is the duty
of States to promote and protect all human
rights and fundamental freedoms, regardless
of their political, economic and cultural
systems.
• All States have ratified at least one, and 80%
of States have ratified four or more, of the
core human rights treaties
 Universality Vs. Cultural Relativism
However, some doubt the universal nature of
rights.
Cultural Relativists object, and argue that
human rights are culturally dependent, and
that no moral principles can be made to apply
to all cultures. They argue that the principles
embedded in the Universal Declaration of
Human Rights (1948) are the product of
Western political history.
 Universality Vs. Cultural Relativism
• Furthermore, cultural Relativists argue that
Universalism, in its attempt to extend a
Western ideal to the rest of the world, is a
form of cultural imperialism.

• What is your take?

 Principles of Human Rights
b) Human rights are inalienable
• They should not be taken away, except in
specific situations and according to due
process. For example, the right to liberty may
be restricted if a person is found guilty of a
crime by a court of law.
 Principles of Human Rights
c) Human Rights are interdependent and
indivisible - All human rights are indivisible,
whether they are civil and political rights, such
as the right to life, equality before the law and
freedom of expression; economic, social and
cultural rights, such as the rights to work, social
security and education, or collective rights, such
as the rights to development and self-
determination, are indivisible, interrelated and
interdependent.
 Principles of Human Rights: Human
Rights are interdependent and
indivisible
• The improvement of one right facilitates
advancement of the others. Likewise, the
deprivation of one right adversely affects the
others.
 Principles of Human Rights
d) Human rights have to be applied in an equal
and non-discriminatory manner
• Non-discrimination is a cross-cutting principle
in international human rights law. The
principle is present in all the major human
rights treaties and provides the central theme
of some of international human rights
conventions such as the CERD and the
CEDAW.
Principles of Human Rights: Human Rights
have to be applied in an equal and non-
discriminatory manner
• The principle of non-discrimination applies to
everyone in relation to all human rights and
freedoms and it prohibits discrimination on
the basis of a list of non-exhaustive categories
such as sex, race, colour and so on. The
principle of non-discrimination is
complemented by the principle of equality, as
stated in Article 1 of the Universal Declaration
of Human Rights: “All human beings are born
free and equal in dignity and rights.
 Principles of Human Rights
e) Rights come with obligations
Human rights entail both rights and obligations.
States assume obligations and duties under
international law to respect, to protect and to
fulfil human rights. The obligation to respect
means that States must refrain from interfering
with or curtailing the enjoyment of human
rights. The obligation to protect requires States
to protect individuals and groups against human
rights abuses.
Principles of Human Rights: Rights come
with obligations

The obligation to fulfil means that States

must take positive action to facilitate the
enjoyment of basic human rights.
At the individual level, while we are entitled
our human rights, we should also respect the
human rights of others.
Goals of Human Rights Protection And
Promotion
• Addressing persistent patterns of
inequality;
• Redressing human rights violations to
ensure that there are remedies;
• Preventing human rights violations before
they occur; and
• Monitoring the trend of human rights
violations
Prerequisites For Effective Enforcement of
Human Rights
1. Independent Pro-active Judiciary
An Independent and forward looking
judiciary is critical to the full and effective
realization of these rights. In this regard,
judicial activism is essential to give full
meaning to the content and scope of the
rights
Prerequisites For Effective Enforcement of
Human Rights
2. Independent and Vibrant Civil Society
An independent and vibrant civil society can
contribute to human rights promotion and
protection through advocacy and monitoring
and documentation of the human rights
situation
Prerequisites For Effective Enforcement of
Human Rights
3. Independent National Human Rights
Institutions
An independent and credible national
human rights institution is one of the most
effective mechanisms for human rights
protection at the national level.
Prerequisites For Effective Enforcement of
Human Rights
4. Adequate legislation and policy on
human rights
Uganda has a constitution and has enacted
some laws to promote human rights e.g. UHRC
Act, EOC Act, Prevention and Prohibition of
Torture Act. Uganda has also adopted the
Human Rights Based Approach to
Development which encourages development
based on the principles of participation,
accountability, equality and non-discrimination,
transparency, respect for human rights,
empowerment and rule of law.
Prerequisites For Effective Enforcement of
Human Rights

5. Rule of law, democracy and good

governance are also key in human rights
enforcement!
 Role of Human Rights Defenders
“Human rights defenders” are persons who,
individually or with others, act peacefully to promote
or protect human rights. Human Rights Defenders:
• Defend human rights for all everywhere – local,
regional or international level
• Collect and disseminate information on violations of
human rights
• Support victims of human rights violations
• Act to secure accountability and to end impunity
• Support better governance and government policy to
implement treaties
• Conduct Human Rights Education
 Conclusion: Importance Of Human Rights
Human rights are important for stability and
security as UN Secretary-General Ban Ki-moon
observed: …poverty, discrimination and violence
feed on each other e.g. French Revolution, Arab
Spring etc
 IMPORTANCE OF HUMAN RIGHTS
• Addressing the needs of the most vulnerable groups
(UHRC Photos)
 Sources of Human Rights Law
• International Customary Law and Jus Cogens
• Human Dignity as a Normative Source – Preambles
of Conventions
• Treaty Instruments – Conventions, Declarations,
Charters, etc.
• ‘Soft Law’ – Declarations, Resolutions and Reports
of Organs of International Organisations
• Scholarly Writings and Opinions of Publicists
• Analogies and Concepts in the Constitution and
other laws
 Direct References and for further
reading
 Christof Heyns, A struggle approach to Human Rights, in
Arend Soeteman, Pluralism and Law, 2001.
 Philip Alston & Ryan Goodman, International Human Rights
Law, Oxford University Press, 2012.
 Szabo, I., ‘Historical Foundations of Human Rights and
Subsequent Developments’ in Vasak, K. (ed.), The
International Dimensions of Human Rights (Greenwood,
1992).
Websites:
 UN OHCHR: http://www.unchr.ch
 http://www1.umn.edu/humanrts
Also refer to your reading list/Course Outline
 Introduction to Human Rights Law
Next Lecture:
UN Treaty Based Human Rights System by
Guest Lecturer,
Dr. Uchenna Emelonye, Head of Office,
UN Office of the High Commissioner for
Human Rights
Introduction to Human Rights Law
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Thank you for listening to me