The Evaluation of Human Rights: An Overview in Historical Perspective

Transcription

1 American Journal of Service Science and Management 2016; 3(2): ISSN: (Print); ISSN: (Online) The Evaluation of Human Rights: An Overview in Historical Perspective Md. Kamruzzaman 1, 2, 4,*, Shashi Kanto Das 3 1 School of Victimology and Restorative Justice, Institute of Social Welfare and Research, University of Dhaka, Dhaka, Bangladesh 2 School of Criminology and Police Science, Mawlana Bhashani Science and Technology University, Tangail, Bangladesh 3 School of Criminology, University of Dhaka, Dhaka, Bangladesh 4 School of Law, National University, Gazipur, Bangladesh address shohag.mbstu.cps@gmail.com (Md. Kamruzzaman) * Corresponding author To cite this article Md. Kamruzzaman, Shashi Kanto Das. The Evaluation of Human Rights: An Overview in Historical Perspective. American Journal of Service Science and Management. Vol. 3, No. 2, 2016, pp Received: June 30, 2016; Accepted: August 11, 2016; Published: September 2, 2016 Abstract A new world order came into being out of the ashes of the World War II in 1945, putting respect for human rights alongside peace, security and development as the primary objectives of the United Nations. The Universal Declaration of Human Rights, proclaimed in 1948, provided a framework for a series of international human right conventions. Presently almost all the national legislations influenced by these conventions. It is universally recognized that Human Rights and Fundamental Freedoms are the birth right of all Human being. The main objective of the study is to investigate the historical development of Human Rights and analyze the philosophical thinking. For conducting this study data was collected from several articles, books and related documents regarding Human Rights as a qualitative paper. Keywords Human Rights, Fundamental Rights, Historical Perspective, Conventions 1. Introduction As the Second World War appeared to be drawing to a close, world leaders started planning for banishing war and resorting sustainable peace. The United Nations Charter envisaged promotion of Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion as one of the means for that end. On the 10 th December, 1948, the U.N. General Assembly adopted and proclaimed the Universal Declaration of Human Rights. The Declaration for the first time generated a common standard of rights for all peoples and all nations without any discrimination [1]. Human Rights are mostly inherent and natural rights, the execution, preservation or enjoyment of Human Rights is simply impossible. It is also true that without ensuring the Human Rights the development of life is quite impossible. In this regard every nation follows the international instrument of Human Rights. In this sense, in 2009 a National Human Rights Commission is established in Bangladesh to protect the human rights of its citizens Concepts of Human Rights Rights are something people demands or desires for their self-development. Rights are those basic standards without which people cannot live in dignity. Hobbhouse says, Rights are what we may expect from others, and others from us and all genuine tights are conditions of social welfare. Thomas Paine, a French first used the term Human Rights While translating the French Declaration of Rights of Man and the Citizen from French to English, But unfortunately he was detained. Human Rights are those basic standards without which people cannot live in dignity. The basic rights and freedoms, to which all humans are entitled, often held to include the

2 6 Md. Kamruzzaman and Shashi Kanto Das: The Evaluation of Human Rights: An Overview in Historical Perspective right to life and liberty, freedom of thought and expression, and equality before the law. To violate someone s human right is to treat that person as though she or he were not a human being. These are basically few natural rights which cannot be denied, but at the same time not guaranteed by Statutory Law. It is the obligation of the state to promote and protect human rights [2]. The New Lexicon Webster s Dictionary of the English language describes the Human Rights expression as under, The right to be free from Governmental violations of the integrity of the persons. Human Rights means Right to life, Right to liberty, Right to equality and Right to dignity of a person guaranteed by the constitution of the People s Republic of Bangladesh and such other Human Rights documents and ratified by the People s Republic of Bangladesh and enforceable by the existing laws of the Bangladesh (National Human Rights Commission Act, 2009 Section-2(f) Types of Human Rights Human Rights are the integrated, broad and covered a wide range of rights. On the basis of Universal Declaration of Human Rights, 1948 there are following classification; A. Civil rights & Political rights; Known as Fundamental rights, Guaranteed by Article (27-44) part (III) of Bangladesh Constitution. B. Economic rights & Social and Cultural rights; Bangladesh constitution, part (II) Article (8-25) not guaranteed. C. Solidarity rights, that is I) right to development II) right to self determination. The total numbers of Human Rights are 27; from which 25 is described by the Universal Declaration of Human Rights, 1948 and rest two are described by the Declaration on the Granting of Independence to Colonial Countries and Peoples (DGICCP) and Declaration on the Right to Development (DRD) [3]. Figure 1. Types of human rights Salient Features of Human Rights The evident characteristics of Human Rights make them different from other rights. The unique features are as follows I. Inherent: The most outstanding characteristics of Human Rights are that it is inherent and natural. None acquires it by any special quality of reputation. It is not the charity of any person or any social system. Every man is by born entitled to these rights. II. Not Exchangeable: Human Rights cannot be handed over, exchanged or transferred. It is excessive to all. It could neither be given away, nor could be stolen or taken away by snatching. III. Universality: Universality stands out as the basic value of human rights. Everyone is entitled to all the rights and freedoms set forth in this Declaration. IV. Equality: Human Rights refer to equal enjoyment of opportunities and resources to all. Justice, rule of law and indiscrimination are the philosophy of Human Rights. V. Feasibility: The important characteristics of Human Rights are its feasibility or effectiveness. That is Human Rights should never be viewed as a hypothetical or abstract concept. It is shaped by the social values, norms, culture and institutions Differences Between Human Rights and Fundamental Rights Definitional Issues Human Rights: Human Rights are those basic standards without which people cannot live in dignity. Human Rights are inherent to each individual. Fundamental Rights: Fundamental Rights are those rights or Human Rights which are guaranteed by the constitution. All Fundamental Rights are Human Rights but all Human Rights are not fundamental rights. Human Rights are concerned with the all human being of the world but fundamental rights are related between one state and their citizens Number of Human Rights and Fundamental Rights According to Universal Declaration of Human Rights, 1948 the number of Human Rights are 25 (Civil and Political Rights-19 and Economic, Social and Cultural Rights-06). There are also another two kinds of Human Rights Known as Solidarity rights. According to DGICCP, one right is to Self-determination and according to DRD another right is to Self-development. So the total numbers of Human Rights are 27. On the other hand, there are no constant numbers of fundamental rights. It varies from country to country. It depends on Political and economic condition of any state. The numbers of Fundamental rights in Bangladesh are Historical Perspective The concept of Human Rights is as old as the ancient doctrine of natural right. It is ultimately created after the creation of human being. Thus Human Rights are developed day by day by the various declaration and treaty. On the other side, the fundamental rights are derived from the Human Rights and recognized by the states own constitution. State organization is precondition for ensuring

3 American Journal of Service Science and Management 2016; 3(2): the fundamental rights but not essential for Human Rights Universality Human Rights are the same for all human beings regardless of race, sex, and religion or political or national origin. Human Rights are Universal. But fundamental rights are applicable only for the own population of any state. In Bangladesh, 12 rights are applicable only for Bangladeshi citizens and rest six are applicable or all either citizens or foreigner stay in Bangladesh Protection and Promotion Human Rights are protected and Promoted by International Law but fundamental rights are protected promoted by the States Constitution Enforcement Though Human Rights are internationally recognized, it is enforced by the United Nations, International laws and other specialized organization. But fundamental rights are enforced by the local Judiciary. There are no remedies against the violation of Human Rights but the violation of fundamental rights will be punished by the local judiciary [4]. 2. Historical Perspective Although belief in the sanctity of human life has ancient precedents in many religions of the world the idea of human rights, that is the notion that a human being has a set of inviolable rights simply on grounds of being human began during the era of renaissance humanism in the Early Modern period. Prior to this habeas corpus had been enshrined in the Magna Carta of 1215 AD. The European wars of religion and the civil wars of seventeenth century England gave rise to the philosophy of liberalism and belief in human rights became a central concern of European intellectual culture during the 18th century Age of Enlightenment. The idea of human rights lay at the core of the American and French revolutions which inaugurated an era of democratic revolution throughout the nineteenth century paving the way for the advent of universal suffrage. The world wars of the twentieth century led to the Universal Declaration of Human Rights. The post-war era saw human rights movements for special interest groups such as feminism and the civil rights of African-Americans. The human rights of members of the Soviet bloc emerged in the 1970s along with workers' rights in the West. The movement quickly jelled as social activism and political rhetoric in many nations put it high on the world agenda [5]. By the 21st century, Moyn has argued, the human rights movement expanded beyond its original antitotalitarianism to include numerous cases involving humanitarianism and social and economic development in the Developing World [6]. Human Rights apparently seem to be a concept of modern age. But the origin of the concept takes us to the remote past. So it can be stated that Human Rights have acquired the sophisticated legal and well arranged present from by wandering a long way. The chronological history of Human Rights can be looked at from three phases according to the development and recognition. These are I). The Ancient Age II). The Medieval Age III). The Modern Age 2.1. The Ancient Age The ancient age expanded approximately from 500 years before A.D. to in 4 th Century. Slavery was viewed as a legal custom in the social system during that time. During this period a slave was considered as animal tool s or living possession and was deprived of minimum basic needs. The slave had no political or economical freedom; they were absolutely used as an instrument of production without enjoyment of any kinds of rights. In this context, the philosophy devoted to humanism and equality came to the surface of human thought in Greece and got momentum. The ancient age can be stigmatized as the blooming stage; of concern and thought related to Human Rights [3]. The earliest legal code known as (c BC) Urukagina of Lagash, have addressed the concept of rights. The oldest legal codex extant today is the Neo-Sumerian Code of Ur- Nammu (2050 BC). Several other sets of laws were also issued in Mesopotamia, including the Code of Hammurabi (1780 BC), one of the most famous examples of this type of document. It shows rules, and punishments if those rules are broken, on a variety of matters, including women's rights, men's rights, children's rights and slave rights. Some historians suggest that the Achaemenid Persian Empire of ancient Iran established unprecedented principles of human rights in the 6th century BC under Cyrus the Great. After his conquest of Babylon in 539 BC, the king issued the Cyrus cylinder, discovered in 1879 and seen by some today as the first human rights document. The cylinder has been linked by some commentators to the decrees of Cyrus recorded in the Books of Chronicles, Nehemiah, and Ezra, which state that Cyrus allowed (at least some of) the Jews to return to their homeland from their "Babylonian Captivity. The German historian Josef Wiesehöfer argues that the image of "Cyrus as a champion of the UN human rights policy... is just as much a phantom as the humane and enlightened Shah of Persia.", while historian Elton L. Daniel has described such an interpretation as "rather anachronistic" and tendentious. The cylinder now lies in the British Museum, and a replica is kept at the United Nations Headquarters The Medieval Age Moderately the period from 5 th to the 15 th century is estimated as medieval age. Middle age is the dark, barren period of Human Rights. Christianity extended great influence both positively and negatively on the new socioeconomic and political structure of that time. The concept of All men are equal to God, Everyone should be obedient towards the legal Government etc. were founded by Christianity which successfully brought equality. Barkey

4 8 Md. Kamruzzaman and Shashi Kanto Das: The Evaluation of Human Rights: An Overview in Historical Perspective Says, Christianity was the only agent of unity and community [7] Magna Carta The most important step of middle age to promote Human Rights was taken by adopting Magna Carta. It was the most famous written document of Human Rights in the middle age. It was a constitutional charter adopted by the King John in1215 A.D. and was reaffirmed by King Edward III. Magna Carta required the King to renounce certain rights, respect certain legal procedures and accept that the will of the King could be bound by the law [8]. There are 63 Articles including Preamble, out of which Article 39 and 40 is very important. Article 39: No freeman shall be arrested or imprisoned or outlawed or exiled or in any way harmed. Nor will we proceed against him, or send others to do so, expect according to the lawful sentence of his peers or according to the Common Law. Article 40: To none will we sell, to none will we refuse of delay right or justice Influence on Magna Carta Magna Carta was the first written document by which liberty of people were guaranteed. It influenced many common law and other documents, such as the United States Constitution and Bill of Rights, and is considered one of the most important legal documents in the history of democracy. Almost every fundamental principles of the English Constitution could be test to Magna Carta. According to Coke, It was declaratory of the principal ground of the fundamental laws of England. and Hallam characterized it as the key stone of English liberty [2] The Modern Age At the beginning stage of modern age, the practice of Human Rights had been developed in England. After Magna Carta an important step was taken by the parliament through adopting Petition of Right [3] Petition of Right The Petition of Right is a major English constitutional document that sets out specific liberties of the subject that the king is prohibited from infringing. Passed on 7 June 1628, the Petition contains restrictions on non-parliamentary taxation, forced billeting of soldiers, imprisonment without cause, and restricts the use of martial law. Following disputes between Parliament and King Charles I over the execution of the Thirty Years' War, Parliament refused to grant subsidies to support the war effort, leading to Charles gathering "forced loans" without Parliamentary approval and arbitrarily imprisoning those who refused to pay. Moreover, the war footing of the nation led to the forced billeting of soldiers within the homes of private citizens, and the declaration of martial law over large swathes of the country. There are as many as 4 Articles in Petition of Right as follows: Article 1: No Person should be required to pay a tax or benevolent without parliament approval. Article 2: No Person should be imprisoned without cause being shown with the Royal command not to be sufficient cause. Article 3: No troops should be quarter in private home without consent of and compensation to their owner. Article 4: The Crown should issue no commission Proceeding Martial Law Bill of Rights The Bill of Rights was passed by Parliament on 16 December It was a restatement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689, inviting them to become joint sovereigns of England. It lays down limits on the powers of sovereign and sets out the rights of Parliament and rules for freedom of speech in Parliament, the requirement to regular elections to Parliament and the right to petition the monarch without fear of retribution. It reestablished the liberty of Protestants to have arms for their defense within the rule of law, and condemned James II of England for "causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law". These ideas about rights reflected those of the political thinker John Locke and they quickly became popular in England. It also sets out or, in the view of its drafters, restates certain constitutional requirements of the Crown to seek the consent of the people, as represented in Parliament. The Bill of Rights laid out certain basic rights for all Englishmen. These rights continue to apply today, not only in England and Wales, but in each of the jurisdictions of the Commonwealth realms as well. The Act set out that there should be: No royal interference with the law. Though the sovereign remains the fount of justice, he or she cannot unilaterally establish new courts or act as a judge. No taxation by Royal Prerogative. The agreement of parliament became necessary for the implementation of any new taxes. Only civil courts, not Church courts, are legal. Freedom to petition the monarch without fear of retribution No standing army may be maintained during a time of peace without the consent of parliament. No royal interference in the freedom of the people to have arms for their own defense as suitable to their class and as allowed by law. No royal interference in the election of members of parliament. The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. "Grants and promises of fines or forfeitures" before conviction are void. No excessive bail or "cruel and unusual" punishments may be imposed. Certain acts of James II were also specifically named and

5 American Journal of Service Science and Management 2016; 3(2): declared illegal by the Bill of Rights, while James' flight from England in the wake of the Glorious Revolution was also declared to be an abdication of the throne. Two major revolutions occurred during the 18th century in the United States (1776) and in France (1789). The Virginia Declaration of Rights of 1776 sets up a number of fundamental rights and freedoms. The later United States Declaration of Independence includes concepts of natural rights and famously states "that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness." Similarly, the French Declaration of the Rights of Man and Citizen defines a set of individual and collective rights of the people. These are, in the document, held to be universal - not only to French citizens but to all men without exception Universal Declaration of Human Rights, 1948 The Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly in 1948, partly in response to the barbarism of World War II. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world". The UDHR was framed by members of the Human Rights Commission, with Eleanor Roosevelt as Chair, who began to discuss an International Bill of Rights in The members of the Commission did not immediately agree on the form of such a bill of rights, and whether, or how, it should be enforced. The Commission proceeded to frame the UDHR and accompanying treaties, but the UDHR quickly became the priority. Canadian law professor John Humphrey and French lawyer Rene Cassin were responsible for much of the cross-national research and the structure of the document respectively, where the articles of the declaration were interpretative of the general principle of the preamble. The document was structured by Cassin to include the basic principles of dignity, liberty, equality and brotherhood in the first two articles, followed successively by rights pertaining to individuals; rights of individuals in relation to each other and to groups; spiritual, public and political rights; and economic, social and cultural rights. The final three articles place, according to Cassin, rights in the context of limits, duties and the social and political order in which they are to be realized. Humphrey and Cassin intended the rights in the UDHR to be legally enforceable through some means, as is reflected in the third clause of the preamble [9]. Some of the UDHR was researched and written by a committee of international experts on human rights, including representatives from all continents and all major religions, and drawing on consultation with leaders such as Mahatma Gandhi. The inclusion of both civil and political rights and economic, social and cultural rights was predicated on the assumption that basic human rights are indivisible and that the different types of rights listed are inextricably linked. Though this principle was not opposed by any member states at the time of adoption (the declaration was adopted unanimously, with the abstention of the Soviet bloc, Apartheid South Africa and Saudi Arabia), this principle was later subject to significant challenges [10]. Universal Declaration of Human Rights consists of a preamble and 30 Articles setting forth the basic human rights without any discrimination. The Declaration contained general definitions of two types of rights mentioned below: 1. Civil and Political Rights stated in Article 3 to 21 such as right to life, right to freedom, right to nationality, right to own property, right to freedom of opinion and expression, freedom of thought,conscience and religion, bright to take part in the government etc. 2. Economic Social and Cultural rights are recognized in article 22 to 28. Some of those are right to social security, right to education, right to participate, in the cultural life of the community, right to enjoy the arts and to share in scientific advancement and its benefits etc. It is remarkable that UDHR is neither a convention, nor a treaty and is merely a declaration without any binding force. In spite of this after 1948, this declaration extended strong influence in adopting various international or regional conventions, covenants, promulgating constitution and laws. Thus the International Bill of human rights represents a milestone in the history of human rights, a veritable Magna Carta marking mankind s arrival at a vitally important phase, the conscious acquisition of Human dignity [3] Philosophical Thought in the Development of Human Rights The conquest of the Americas in the 15th and 16th centuries by Spain, during the Age of Discovery, resulted in vigorous debate about human rights in Colonial Spanish America [11]. This led to the issuance of the Laws of Burgos by Ferdinand the Catholic on behalf of his daughter, Joanna of Castile. Fray Antonio de Montesinos, a Friar of the Dominican Order at the Island of Hispaniola delivered a sermon on December 21, 1511, which was attended by Bartolomé de las Casas. It is believed that reports from the Dominicans in Hispaniola motivated the Spanish Crown to act. The sermon, known as the Christmas Sermon, gave way to further debates from between Las Casas and Juan Ginés de Sepúlveda at Valladolid. Among the provisions of the Laws of Burgos were child labor; women's rights; wages; suitable accommodations; and rest/vacation, among others. Several 17th- and 18th-century European philosophers, most notably John Locke, developed the concept of natural rights, the notion that people are naturally free and equal [12]. Though Locke believed natural rights were derived from divinity since humans were creations of God, his ideas were important in the development of the modern notion of rights. Lockean natural rights did not rely on citizenship or any law of the state, nor were they necessarily limited to one particular ethnic, cultural or religious group. Around the same time, in 1689 the English Bill of Rights was created. Two major revolutions occurred during the 18th century in