CHAPTER TEN: HISTORICAL DEVELOPMENT AND EVOLUTION OF HUMAN

RIGHTS.

Introduction
In this chapter. We shall try, once more to expand our understanding and knowledge about human
rights. This chapter will emphasize on two key issues. First, we shall unfold how human right
evolved right from the Ancient times to the present. Second we shall deal with the characteristics
of human rights and why they are distinguished from other rights. Further, we shall focus on the
various categorization of human rights as constituted by the UDHR. Finally, arguments in line
with the debate about indivisibility and prioritization of rights will be analyzed for the benefit of
the students.

Defining human rights

Human rights are commonly understood as being those rights which are inherent in the mere fact
of being human. The concept of human rights is based on the belief that every human being is
entitled to enjoy her/his rights without discrimination. Human rights differ from other rights in
two respects. Firstly, they are characterised by being:

 Inherent in all human beings by virtue of their humanity alone (they do not have,e.g., to
be purchased or to be granted);
 Inalienable (within qualified legal boundaries); and
 Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or
agents, not on individuals.

Rationale of human rights

Human Beings are rational beings. They by virtue of their being human possess certain basic and
inalienable rights which are commonly known as human rights. Human Rights are defined as all
those rights which are essential for the protection and maintenance of dignity of individuals and
create conditions in which every human being can develop his personality to the fullest extent may
be termed as human rights. Human rights become operative with the birth of an individual. Human
rights, being the birth right, are inherent in all the individuals irrespective of their caste, religion,
sex and nationality. Because of their immense significance to human beings; human rights are also
sometimes referred to as fundamental rights, basic rights, inherent rights, natural rights and birth
rights.

Historical antecedents

Generally speaking human right are as old as humanity. This is because human rights are inherent
in man and exist because of man’s humane demand for dignity and respect as a human being they
are not a response to any social political, economic life perse.

Ancient period

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Belief in sanctity of life (human life has an ancient precedents in many religions. The idea of
human rights based on a firm believe that human being have inviolable rights simply on grounds
of being human. It is interesting to read the Old Testament and see how life way uplifted and
justice system protecting man.
Aristotle
Aristotle is accused of having had a theory or conception which is explicit about human rights.
However, from his writing human rights as a notion is witnesses when in his political theory and
philosophy presented and talked of very important rights like equality, justice, values, right, truth
etc. For him, human rights spring from the bond that exists between men and the created state. In
other words, there is a relationship between man’s life & conduct and how the state should live,
and act. He examined human rights in his principle of natural rights and just society. He taught
that the notion of state originates from small family developing into village which ultimately
combines with other villages to form community. When it is large enough and self-sufficing, it
becomes a state. Every man strives from lower levels it higher levels. But this higher level must
be built under the principle of Equality. In order to protect every man against the power of the
striving, Aristotle introduced a system of justice and rights. Rights for him human develops from
the creation of a state so that freedom of each man is guaranteed.
In his writing we have the following notions well captured (a) Equality (b) Justice (c) Liberty or
freedom which are the foundation of human rights.

Medieval times
During the medieval times human rights was vaguely conceived. However, there are a lot of
consideration of human rights in St Thomas Aquinas, Summa Theologica. He held an objective
theory of human right where by the centered himself on natural rights (objective natural rights).
Aquinas use of the word jus comes from Justitia– English meaning just thing or just state of affairs.
Aquinas argues that natural law is the foundation of human rights and not positive or moral law.
Because man has a drive to know and drive for his creator, he insisted that man can easily know
what is fundamental is all man and accord it to all others.

Modern period
In the age of enlightenment (18 century) the concept of human rights emerge as an explicit
category. Here man and women were regarded as autonomous individual, endowed by nature with
certain inalienable and inviolable rights. These were supposed to be safeguarded. Human rights
were seen as elementary preconditioning for the existence of human dignity.
In particular Hugo Grotius and John Locke (1632-1704) attracted much interest in Europe.
Locke developed a list of natural rights having life being the most fundamental and liberty and
right to property being equally important.
American declaration of independent 4/7/1776 impacted rights, introducing strong sense of
inalienable rights.

Late Modern perspective of human rights

During the 20th, human rights have had a significant improvement and development. The modern
perspective to human rights is reflected in the Vienna Declaration adopted by the World conference

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on Human rights in June 1993. The declaration categorically states that all human rights are
universal, indivisible and interdependent and inter-related and that democracy, development and
respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.
The conference reaffirmed the right to development as a universal inalienable right and an integral
part of the fundamental human rights.

The legal process in the universality of human rights effectively commenced with the universal
declaration of human rights 1948 (UDHR). Adoption of the UN charter in the aftermath of the
Second World War can rightly be considered as a landmark in the journey towards universal
acceptance of human rights.

Through a long process of evolution, modern human rights jurisprudence has crystallized into three
basic principles:

1. The principle of universal inherence

Every human being has certain rights, capable of being enumerated and defined which are not
conferred on him by any ruler, nor earned or acquired by purchase, but which inhere in him by
virtue of his humanity alone.

2. The principle of inalienability:

No human being can be deprived of any of those rights by the acts of any ruler or even by his own
act or in a democracy even by the will of the majority of the sovereign people.

3. The rule of Law

Where rights conflict with each other, the conflicts must be resolved by the consistent, independent
and impartial application of just laws in accordance with just procedures. •

World War Situation

The atrocities of World War II put an end to the traditional view that all rights were preserved by
the state and that state determined which rights should be accorded to the individual. Due to this
various charters were signed to bring forth and defend human rights. Many declarations adopted
by the conference laid down the importance of human rights. The declaration of the United Nations
signed on January 1, 1942 at Washington was the first document which used the term human rights.
Thus, human rights became a matter of International concern with the end of World War II and
the founding of the United Nations. Since then international human rights law has been developing
in an unprecedented way and has become a very substantive part of International law as a whole.
Although there is no global government as such to protect human rights, it is being protected by
the various bodies of the United Nations and the inter- governmental organizations.
Some of the conventions include:
(a) 1945/6/26 Charter of United Nations.
This was the first attempt to bring human rights and put its defense into international perspectives.
All UN members were to adhere to a code of human rights protections.

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(b) UNCHR united nation commission of human rights – was established and they submitted a
draft which led to the establishment of universal declaration of Human rights (UDHR) in
10/12/1948 in pars. Now called human rights Day.
Types of human rights
Generally there are two types of human rights.

There are two kinds of human rights, that is, Civil and Political rights, and Economic social and
cultural rights

Civil and political rights

Civil rights and liberties refer to those rights which are related to the protection of the right to life
and personal liberty. They are essential for a person so that he may live a dignified life. Such rights
include right to life, liberty, right to privacy, freedom from torture and right to own property. These
rights re also known as freedom from.

Whereas political rights refers to those rights which allow a person to participate in the government
of a state. For e.g. right to vote, right to be elected and right to take part in conduct of public affairs.

The nature of both civil and political rights may be different but they are inter-related and therefore
it does not appear logical to differentiate them. This reason led to the formulation of one covenant
covering both civil and political rights into one covenant i.e. International Covenant on civil and
political rights (ICCPR)

Economic, social and cultural rights

Economic, social and cultural rights are based fundamentally on the concept of social equality are
also called ‘freedom to’. They are related to the guarantee of minimum necessities of the life to
human beings. In the absence of these rights the existence of human beings is likely to be
endangered. For instance, Right to adequate food, clothing, housing and adequate standard of
living and freedom from hunger, right to work , right to social security, right to physical and mental
health and right to education are included in this category of rights. These rights sometimes are
called positive rights and they require active intervention, not abstentions on the part of the states.
The enjoyment of these rights requires a major commitment of resources and therefore their
realization cannot be immediate as in the case of civil and political rights. They are recognized in
International Civil, Economic and cultural rights (ICESCR).

Interdependence between civil & political and Economic, social and cultural rights
Although the United Nations has recognized the above two sets of rights in two separate Covenants
i.e. International covenant on civil and political rights ( ICCPR) and International covenant on
economic social and cultural rights ( ICESCR) there is a close relationship between them. It has
been rightly realized especially by the developing countries that civil and political rights can have
no meaning unless they are accompanied by social, economic and cultural rights. Thus both
categories of rights are equally important and where civil and political rights do not exist, there
cannot be full realization of economic, social and cultural rights and vice versa.

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Basic Characteristics of Human Rights?
Human rights are commonly understood as inalienable fundamental rights to which a person is
inherently entitled simply because she or he is a human being. Human rights are thus conceived as
universal (applicable everywhere) and egalitarian (the same for everyone). These rights may exist
as natural rights or as legal rights, in both national and international law.

Human rights include the right to personal liberty and Due Process of Law; to freedom of thought,
expression, religion, organization, and movement; to freedom from discrimination on the basis of
race, religion, age, language, and sex; to basic education; to employment; and to property. Human
rights laws have been defined by international conventions, by treaties, and by organizations,
particularly the United Nations. These laws prohibit practices such as torture, Slavery, summary
execution without trial, and arbitrary detention or exile.

The following are the basic characteristics of human rights:

1. Inherent- Human Rights are inherent because they are not granted by any person or
authority. Human rights do not have to be bought, earned or inherited; they belong to people
simply because they are human. Human rights are inherent to each individual.
2. Fundamental - Human Rights are fundamental rights because without them, the life and dignity
of man will be meaningless.
3. Inalienable - Human rights cannot be taken away; no one has the right to deprive another person
of them for any reason. People still have human rights even when the laws of their countries do
not recognize them, or when they violate them - for example, when slavery is practiced, slaves still
have rights even though these rights are being violated. Human rights are inalienable. Human
Rights are inalienable because:
a. They cannot be rightfully taken away from a free individual.
b. They cannot be given away or be forfeited.
4. Imprescriptible - Human Rights do not prescribe and cannot be lost even if man fails to use or
assert them, even by a long passage of time.
5. Indivisible - To live in dignity, all human beings are entitled to freedom, security and decent
standards of living concurrently. Human rights are indivisible. Human Rights are not capable of
being divided. They cannot be denied even when other rights have already been enjoyed.
6. Universal - Human Rights are universal in application and they apply irrespective of one’s
origin, status, or condition or place where one lives. Human rights are enforceable without national
border. Human rights are the same for all human beings regardless of race, sex, religion, political
or other opinion, national or social origin. We are all born free, and equal in dignity and rights—
human rights are universal. Human rights are distinct from civil liberties, which are freedoms
established by the law of a particular state and applied by that state in its own jurisdiction.
7. Interdependent - Human Rights are interdependent because the fulfillment or exercise of one
cannot be had without the realization of the other.

Classification

Human rights can be classified and organized in a number of different ways, at an international
level the most common categorization of human rights has been to split them into civil and political
rights, and economic, social and cultural rights. To start with,

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Civil and political rights are enshrined in articles 3 to 21 of the Universal Declaration of Human
Rights (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR).

Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal
Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and
Cultural Rights (ICESCR).

Debate about Indivisibility of human rights

The UDHR included both economic, social and cultural rights and civil and political rights because
it was based on the principle that the different rights could only successfully exist in combination:
The ideal of free human beings enjoying civil and political freedom and freedom from fear and
want can only be achieved if conditions are created whereby everyone may enjoy his civil and
political rights, as well as his social, economic and cultural rights. This was anchored through—
International Covenant on Civil and Political Rights and the International Covenant on Economic
Social and Cultural Rights, 1966

This is held to be true because without civil and political rights the public cannot assert their
economic, social and cultural rights. Similarly, without livelihoods and a working society, the
public cannot assert or make use of civil or political rights. This is was came to be known as known
as the full belly thesis. The indivisibility and interdependence of all human rights was confirmed
by the 1993 Vienna Declaration and Programme of Action which stated that:

All human rights are universal, indivisible and interdependent and related. The international
community must treat human rights globally in a fair and equal manner, on the same footing, and
with the same emphasis. This is in line with —Vienna Declaration and Programme of Action,
World Conference on Human Rights, 1993

This statement was again endorsed at the 2005 World Summit in New York (paragraph 121).
Although accepted by the signatories to the UDHR, most do not in practice give equal weight to
the different types of rights. Some Western cultures have often given priority to civil and political
rights, sometimes at the expense of economic and social rights such as the right to work, to
education, health and housing. Similarly the ex-Soviet bloc countries and Asian countries have
tended to give priority to economic, social and cultural rights, but have often failed to provide civil
and political rights.

Categorization

Opponents of the indivisibility of human rights argue that economic, social and cultural rights are
fundamentally different from civil and political rights and require completely different approaches.
Economic, social and cultural rights are argued to be:

 positive, meaning that they require active provision of entitlements by the state (as opposed
to the state being required only to prevent the breach of rights)
 resource-intensive, meaning that they are expensive and difficult to provide
 progressive, meaning that they will take significant time to implement

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  vague, meaning they cannot be quantitatively measured, and whether they are adequately
provided or not is difficult to judge
 ideologically divisive/political, meaning that there is no consensus on what should and
shouldn't be provided as a right
 socialist, as opposed to capitalist
 non-justiciable, meaning that their provision, or the breach of them, cannot be judged in a
court of law
 aspirations or goals, as opposed to real 'legal' rights
 Similarly civil and political rights are categorized as:
 negative, meaning the state can protect them simply by taking no action
 cost-free provision does not need any resources or incurring of expenditure
 immediate, meaning they can be immediately provided if the state decides to
 precise, meaning their provision is easy to judge and measure
 non-ideological/non-political they are generally agreement on what should be provided
and given
 capitalist they have strong regard to the individual interest than common social aspect
 justiciable you can easily verify or show that they have been provided and can be judged
in a court of law
 real 'legal' rights

Olivia Ball and Paul Gready argue that for both civil and political rights and economic, social and
cultural rights, it is easy to find examples which do not fit into the above categorization. Among
several others, they highlight the fact that maintaining a judicial system, a fundamental
requirement of the civil right to due process before the law and other rights relating to judicial
process, is positive, resource-intensive, progressive and vague, while the social right to housing is
precise, justifiable and can be a real 'legal' right.

Three generations of human rights

Another categorization, offered by Karel Vasak, is that there are three generations of human rights:

First-generation civil and political rights

These are "liberty-orientated" and include the rights to life, liberty and security of the individual;
freedom from torture and slavery; political participation; freedom of opinion, expression, thought,
conscience and religion; freedom of association and assembly.
a) Civil rights is referred to under the collective term ‘due process rights’. These pertain, among
other things, to the right to a public hearing by an independent and impartial tribunal, the
‘presumption of innocence’, the ne bis in idem principle (freedom from double jeopardy) and legal
assistance (see, e.g., Articles 9, 10, 14 and 15 ICCPR).

b) Political rights -are those set out in Articles 19 to 21 UDHR and also codified in the ICCPR.
They include freedom of expression, freedom of association and assembly, the right to take part
in the government of one’s country and the right to vote and stand for election at genuine
periodic elections held by secret ballot (18, 19, 21, 22 and 25 ICCPR).

Second-Generation: Economic, Social and Cultural

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Economic, social and cultural rights -These are security-orientated rights, for example the rights
to work; education; a reasonable standard of living; food; shelter and health care. The economic
and social rights are listed in Articles 22 to 26 UDHR, and further developed and set out as
binding treaty norms in the ICESCR. These rights provide the conditions necessary for
prosperity and wellbeing.

a) Economic rights- refer, for example, to the right to property, the right to work, which one
freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and
trade union rights.

b) Social rights - social’ rights contain elements that require the state to abstain from interfering
with the individual’s exercise of the right. They are those rights necessary for an adequate
standard of living, including rights to health, shelter, food, social care, and the right to education
(Articles 6 to 14 ICESCR).

c) Cultural rights- The UDHR lists cultural rights in Articles 27 and 28: the right to participate
freely in the cultural life of the community, the right to share in scientific advancement and the
right to the protection of the moral and material interests resulting from any scientific, literary or
artistic production of which one is the author

Third-generation: Solidarity rights

These include the rights to live in an environment that is clean and protected from destruction, and
rights to cultural, political and economic development, rights to self-determination, etc.
Out of these generations, the third generation is the most debated and lacks both legal and political
recognition. This categorization is at odds with the indivisibility of rights, as it implicitly states
that some rights can exist without others. Prioritisation of rights for pragmatic reasons is however
a widely accepted necessity.

Human rights expert Philip Alston argues that if every possible human rights element is deemed
to be essential or necessary, then nothing will be treated as though it is truly important. He urged
caution with prioritization of rights. For him the call for prioritizing is not to suggest that any
obvious violations of rights can be ignored. According to Olivia Ball, Paul Gready, Priorities,
where necessary, should adhere to core concepts such as reasonable attempts at progressive
realization and principles such as non-discrimination, equality and participation.)

Recap
What do you mean by human rights?
Human rights are the basic rights and freedoms that belong to every person in the world, from birth
until death. ... These basic rights are based on shared values like dignity, fairness, equality, respect
and independence. These values are defined and protected by law.

Why are human rights important?

Human rights also guarantee people the means necessary to satisfy their basic needs, such as food,
housing, and education, so they can take full advantage of all opportunities. Finally, by

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guaranteeing life, liberty, equality, and security, human rights protect people against abuse by
those who are more powerful.

What are the basic human rights?

Human rights include the right to life and liberty, freedom from slavery and torture, freedom of
opinion and expression, the right to work and education, and many more. Everyone is entitled to
these rights, without discrimination.

What are the 30 human rights declared by UDHR?

1 All Born Free & Equal.
2 Don’t Discriminate.
3 The Right to Life.
4 No Slavery.
5 No Torture.
6 You Have Rights No Matter Where You Go.
7 We’re All Equal Before the Law.
8 Your Human Rights Are Protected by Law.
9 No Unfair Detainment.
10 The Right to Trial.
12 The Right to Privacy.
13 Freedom to Move.
14 The Right to Seek a Safe Place to Live.
15 Right to a Nationality.
16 Marriage and Family.
17 The Right to Your Own Things.
18 Freedom of Thought.
19 Freedom of Expression.
20 The Right to Public Assembly.
21 The Right to Democracy.
22 Social Security.
23 Workers’ Rights.
24 The Right to Play.
25 Food and Shelter for All.
26 The Right to Education.
27 Copyright.
28 A Fair and Free World.
29 Responsibility.
30 No One Can Take Away Your Human Rights.

What are the United Nations Human Rights?

Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity,
language, religion, or any other status. Human rights include the right to life and liberty, freedom
from slavery and torture, freedom of opinion and expression, the right to work and education, and
many more.

Who is responsible for protecting human rights?

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Under human rights treaties, governments have the primary responsibility for protecting and
promoting human rights. However, governments are not solely responsible for ensuring human
rights. The UDHR states: Every individual and every organ of society.

Who invented human right?

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.

How does the United Nations protect human rights?

Its role is to prevent human rights violations and secure respect for human rights by promoting
international cooperation and coordinating the United Nations’ human rights activities. It also
works directly in areas where there are severe human rights violations though field offices and as
part of UN peace missions.

How important is it to have your rights protected by the government?

However, the government does protect some of our rights from other people. For example, it
protects our right to life and to property. It does this by making and enforcing laws. The
government creates laws, for example, that make it illegal to steal from us by force or bilk us out
of our money by fraud.

Why should anyone respect human rights?

Human rights are needed to protect and preserve every individual’s humanity, to ensure that every
individual can live a life of dignity and a life that is worthy of a human being. Fundamentally,
because everyone is a human being and therefore a moral being.

Why are our rights limited?

This section allows limits on our rights and freedoms when the limitation can be justified by the
government. For example, a freedom may be limited in order to prevent infringement of the rights
or freedoms of others. The rights and freedoms included in the Charter, although guaranteed, are
not absolute.

Where do our human rights come from?

Human rights are the basic rights and freedoms that belong to every person in the world, from birth
until death. They apply regardless of where you are from, what you believe or how you choose to
live your life

Why do governments violate human rights?

Because the abuse of human beings is abhorrent, we normatively expect governments to respect
those rights. However, throughout human history, abuse of human begins has been the norm.
Governments abuse rights because doing so helps leaders exercise, expand, or retain their power

How human rights are categorized?

Human rights can be classified in a number of different ways. One of the most widely used
classifications distinguishes two general categories: classic or civil and political rights, and social
rights that also include economic and cultural rights.

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Self-test Assessment
1) Why would you say that human rights are as old as humanity? 20mks

2) Distinguish between first generation and second generation rights? 20mks

3) While paying attention to Kenyan constitution, show how it has reinforced the united nation
rights which were declared under UDHR 30mks

4) Why should human rights be respected universally by everyone? 20mks

5) How are human rights different from other rights, (legal, moral and others)? 20mks

6) By way of examples, analyse the various characteristics of human rights? 20mks

7) Using the above UDHR 30 human rights list, show those that are:
a) Civil rights
b) Political rights
c) Economic rights
d) Social rights
e) Cultural rights
f) Solidarity rights 30mks

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