Human rights

1. UNIVERSITY OF ZAMBIA
LPU 2995
HUMAN RIGHTS LAW
TUTORIAL - WEEK 1
Introduction to Human Rights Law
Lecturer: Mrs. Chipo Mushota Nkhata
Tutor: Ms. Margaret Sarah Chelemu

2. Overview of the Course
 What are human rights?
 Rights of humans or rights of man.
 These rights are inherent.
 Inherent as God’s gift or self evident or integral for human dignity.
 Synonymous with human rights are words like: right, moral, freedom,
rule of law, justice, fundamental and human.
 Human rights instruments, international and regional, address rights,
freedoms and duties for both the governors and governed.
(Anyangwe, 2004: 1-2)

3. Overview of the Course Cont.
 Understanding the words used in relation to human rights
 Right = a claim to something/authority to do something/interest in
something.
 Morals = have to do with principles of right or wrong behaviour;
standards of behaviour based on people’s sense of right or just; not on
legal rights and obligations.
 Freedom = condition of being free; unrestricted in one’s action.
 Rule of law = within a state, rights must be protected by law.
 Justice = is the upholding of rights and lawful punishment of wrong.
 Fundamental = central, primary or basic – a right is fundamental if it
forms basis for other rights and freedoms.
 Human = human being, a person, man, woman or child.
 State = a territorial division, with defined or ascertainable borders,
in which a people lives under a government and are subject to a
uniform system of law administered by that government.
(Anyangwe, 2004: 2-4)

4. Overview of the Course Cont.
 Influence of religion on the place and role of man
 Judeo-Christian Doctrines
• Source of law is God himself.
• Holy scriptures are divinely inspired and contain God’s law.
• Prophets are God’s vessels and make known God’s will.
• God’s law is higher than man-made law and prevails when the two conflict.
• God’s law must be obeyed or punishment will follow.
• Christian philosopher St Thomas of Aquinas (1225-1274) posited the law of nature = law of God or divine
law = eternal law = God’s plan for creation.
• Eternal law of nature is immutable as it’s complete and perfect like God.
• Dutch lawyer Hugo Grotius (1958-1645) separated law and religion, whilst believing in the Divine Will of
God.
• Grotius inquired into the creation/origin of societies and their adoption of different forms of
government, attributing it to the social contract.
• Grotius answer to restraining hegemony amongst the societies was mutual consent and formation of a
society of states, governed by the law of nature; hence being called the “father of international law”.
(Anyangwe, 2004: 5-6)

5. Overview of the Course Cont.
 Islam
• Islam means submission to God.
• Islam highlights the uniqueness of Allah and God’s workings in the daily life of man.
• Islam holds that the Christian Holy Trinity is tantamount to polytheism.
• Five Pillars of Islam are: (1)Public and visible profession of the Muslim faith (2)
Communal prayer (3) Almsgiving (4) Ritual fasting and (5) Pilgrimage to Mecca.
• Allah is the Law Giver and Shari ’a (path to be followed) is the Islamic religious law
and leads to Allah.
• This universal system of law and ethics regulated every aspect of public and private
life.
• Shari ’a forms part of the socialisation process in Islamic nations.
• Muslim international law (al-siyar) also guarantees human rights.
• Islamic punishment is frowned upon by international human rights law.
• Islam is seen to be intolerant, abrogating the right to freedom of religion and
conscience. Some deem the punishment to be a form of torture.
(Anyangwe, 2004: 7-8)

6. Overview of the Course Cont.
 Influence of Culture
 European secular ideas
• Individual human rights as a political idea are rooted in individualism.
• Individualism is the doctrine of autonomy of the human individual.
• The ideas inspired: (1) rights of autonomy and freedom (liberty and equality) (2)
limitations of government and (3)immunities from undue, unreasonable exercises of
authority.
• This demand for rights was supported by laisser-faire doctrines, which advocated for
less government involvement in the economy and in the enjoyment of civil liberties.
• Fraternity was added to the equation of human rights, with the view that the state had
an obligation to maintain security and protect life, liberty and property, as well as
provide basic human needs.
• In this welfare state ideology, the individual was to be guaranteed freedom from fear
and want.
(Anyangwe, 2004: 8-9)

7. Overview of the Course Cont.
 African Cultural Ideas
• Guarantees rights but also ascribes duties, being inseparable from rights.
Human rights have always been part of the African governance system and were
not imported during the colonial period.
• Pre-colonial Africa had a coherent human rights system that was developed
differently from elsewhere.
• Traditional African societies have embraced certain fundamental principles and
features of universal truths, values of morality and reasonableness.
• Community spirit is a key element that Africa has brought to the human rights
discourse.
• Noteworthy and special, are the human rights on which Africa places
importance, such as, great respect for elderly persons; family and clan
solidarity; feelings of humanity, brotherhood and solidarity in interpersonal
relationships; the culture of hospitality and friendliness towards strangers; and
non-discrimination between marital and non-marital children.
• African human rights
(Anyangwe, 2004: 8-10)

8. Conceptual Analysis of Human Rights and
Human Rights Law
 The Rights Based Approach
 Natural law
• Man has rights opposable against the government.
• Rights of man are opposable as they are natural rights from natural law.
• Natural law is God given.
• These rights are invested with a higher authority and are binding as a social
force.
• Prescriptive rules of law, what is right or wrong, permissible or impermissible
are self-evident as nature.
• Natural law being God given is superior to man-made law.
• Natural rights of man are superior to the laws of the ruler.
(Anyangwe, 2004: 12)

9. Conceptual Analysis of Human Rights and
Human Rights Law
 Natural rights
• The Lockean theory by John Locke proposes that man as an individual is
autonomous, sovereign, and possessed with a bundle of rights and liberties in
a state of nature.
• Man possess natural rights in his natural state away from the intervention or
support of society and brings these rights into the society.
• Society is not created to destroy these natural rights but to protect them by
enacting laws.
• Man did not cede all his rights to gain civil status in civil society (pactum
unionis). Some rights were ceded to enable society to function (pactum
subjectionis), whilst other were protected by natural law.
• The Swiss theorist Rousseau, counterclaimed that the social contract was
made between the individuals and the society as a whole and not the state
and this guaranteed their freedom and equality.
(Anyangwe, 2004: 12-14)

10. Conceptual Analysis of Human Rights and
Human Rights Law
 Positivism
• There is nothing mystical or divine about law.
• All rules of law are man-made and are acceptable.
• Rights could only flow from the law of a particular society and not from any natural or inherent source.
• Makes a distinction between the laws of the physical universe and normative law regards norms of human
conduct.
• Human inquiry is put into fields of facts, concerned with what ‘is’ (lex lata) actually the case and the
field of ‘ought’, concerned with what ‘ought’ (lex ferenda) to be the case.
• Argue that rights can only come from a law of a particular society and not from any natural and inherent
source.
• A question whether a rule can be qualified as law within a given state is a legal question to be decided by
a criteria that a particular legal system accepts.
• Validity of a legal rule is not affected by moral values such as ‘good’ or ‘bad’.
• A rule properly made and accepted, is a valid law irrespective of its moral content.
(Anyangwe, 2004: 14-15)

11. Conceptual Analysis of Human Rights and
Human Rights Law
 Neo-naturalist
• Lon Fuller (1902-1978) holds the role of reasoning in legal ordering to be the most fundamental tenet
of natural law.
• Law is made possible by the internal and the external morality of the law.
• Internal morality of law = the procedural aspect of law making.
• External morality of law = man’s moral life that may be taken as objects of legislation.
 New Natural law theory
• Immanuel Kant (1724-1804) held that natural law was not based on God, but on what is reasonable, a
moral instinct or intuition.
• Human rights are so reasonable that any society of right thinking people would arrive at the same
conclusion with regards to human rights.
• Emphasised a philosophy of method rather than substance.
• Nature does not provide a superior law against which man-made law is to be judge.
• Based validity or legitimacy of man-made laws on democratically chosen representative majorities.
(Anyangwe, 2004: 15-16)

12. Conceptual Analysis of Human Rights and
Human Rights Law
 Human Rights and feminism
 Is this area of human rights domestic law and not public international law?
 Is it important to have separate discourse on human rights law pertaining to women?
 Is it important to challenge existing rights frameworks in order to achieve change for
women?
 Since women are human don’t they naturally fall into the generic ambit of human rights?
 The above questions are posed to address potential conflicts and shed light both on
international rights discourse and on feminist approaches to law.
 Feminists have attempted to expand human rights, urging it to better encompass women's
rights.
 Resulting in the creation of the 1979 Convention on the Elimination of All Forms of
Discrimination Against Women (Women's Convention).
 Belief that women's rights have and can be accommodated and assimilated to the human
rights structure.
 Feminists believe that the structure itself will have to change in order to accommodate
women's rights.

13. Conceptual Analysis of Human Rights and
Human Rights Law
 Is it true that law is an inherently gendered system and suggests that its processes and
principles resonate only with the male experience (Binion, 1995: 510)?
 Feminist Issues
 Women’s autonomy, equality and reproductive health
 Women’s land rights
 Women human rights defenders attacks and gender based violence
 Women perform two-thirds of the hourly labour and receive 10% of the income and hold
barely 1% of property (Binion supra citing UN, The World’s Women 1970-1990).
 Women are more than 51% of the world population, fewer then 5% of the heads of
government and fewer than 10% of the parliamentarians; disempowerment is clearly
political (Binion, 1995: 511).
 The world seeming acceptance of marginalization of women, such as marital rape and
restricted domestic and international movement; disempowerment is clearly social (Binion,
1995: 511).

14. Categories of human rights
1. ‘NEGATIVE’ AND ‘POSITIVE’ RIGHTS
*Freedoms to non-intervention by the State in citizens’ personal
affairs are termed negative rights.
*Civil and political rights are negative rights.
*Rights to intervention by the State to provide redress for social
injustices for citizens are termed positive rights.
2. ‘COSTLY’ AND ‘COST-FREE’ RIGHTS
*Economic, social and cultural rights are costly rights. *Civil and political rights are cost-free rights.
3. ‘INDIVIDUAL’ AND ‘COLLECTIVE’ RIGHTS
*Civil and political rights are individual rights. *Economic, social and cultural rights are collective rights.
4. ‘ABSOLUTE AND IMMEDIATE’ AND ‘RELATIVE AND PROGRESSIVE’ OBLIGATIONS
*Absolute and immediate is the State’s obligation to ensure that
the rights of the citizens are respected.
*Relative and progressive is the State’s obligation to endeavor to
provide for the gradual full realisation of the citizens’ rights as
available resources allow.
5. ‘BASKETS’ OR ‘GENERATIONS’ OF HUMAN RIGHTS
*Baskets or generations of human rights speak to the time sequence in which conceived and developed.
*First Generation = Civil and political rights
*Second Generation = Economic, social and cultural rights
*Third Generation = People’s or solidarity or collective rights
(Anyangwe, 2004: 24-25)

15. END OF TUTORIAL FOR WEEK 1
 TAKEAWAYS
1) Universality, inherent, indivisible, interdependent and non-hierarchical nature of human rights.
2) Set of words synonymous with human rights.
3) Human rights instruments are at a international, regional and national level providing for rights,
freedoms and duties for the State and the people.
4) Human rights are influenced by different doctrines and schools of thought as well as culture.
5) Classification of human rights into first, second and third generation, whilst being non -
hierarchical.
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