Theories of Human Rights

Theories of Human Rights 

The first theory worthy of consideration in this research is the inherence theory of human rights. The protagonists of this theory hold the view that human rights are innate in human beings and invest in man by reason that he belongs to the class of human and not animals.

The idea of inherence theory of human is inspired by the natural teachings of law that man by nature is clothed with certain freedom and liberties that are inherent in his nature. It was the stoics of the Roman Empire who were the chief exponents of the natural law.[1] Natural law presupposes the existence of moral rules given by God and knowledge through the exercise of reason. [2]

The stoics preached that all men equal and brothers in a world state.[3] The idea of brotherhood all men was the original of the cynics[4] Naturalists generally tend to associate human rights with justice and usually insist that it is inherent and inalienable.

According to Cranston[5]

Human right is something of which no man may be deprived of without a great affront to justice. There are certain deeds which should never be done, certain freedoms which should never be invaded, some things which are supremely   sacred.

These rights exist by virtue of the law of nature which is higher than positive or man-made law and which constitutes a universal and absolute set of principles governing all human beings in time and space.[6]

More so, according to the Universal Declaration of Human Rights, “the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family highlights the foundation of freedom, justice and peace in the world.[7]

The preamble of the African Charter on Human and People’s Right, 1981 also states in part that human rights stem from the attributes of human beings, which justifies their national and international protection and on the other hand that the reality and respect of the people’s right should necessarily guarantee human rights.[8]

Natural law and justice which are the basis of the inherence theory have found significant expression in areas such as fair hearing with all its concomitant manifestations that have not been firmly entrenched in all legal regimes across the world, as we find in both international covenants, domestic statutory provisions and judicial decisions.

According to Miller,[9] rights are the property of men as man without exception that is the reason we says that a man without rights is not more than animals. For the United Nations, human rights could be generally viewed as those rights, which are inherent in our nature and without which we cannot function as human beings[10].

American Declaration of Independence, 1976, states that it is self-evident principle that the creator has endowed man with certain inalienable rights, life liberty and pursuit of happiness. All these assertions support the inherence theory of human rights.

Another theory in this is the Inalienability theory human rights. This theory is to the effect that human rights cannot be taken away permanently from any person nor can anyone renounce his rights as a human being. In other words, human rights are not alienable.

According to Cranston, “human right is something of which one ought not be deprived of, else it will be a great affront to justice……” [11]In the case of Ramsome Kuti v. Attorney General of the Federation, [12] the court held that a human right is a right which stand above the ordinary laws of the land and which is in fact antecedent to the political society itself. The decision of the court above is in agreement with the inalienability of human right under consideration.

Also, in Amaechi v. INEC[13], the apex court held “that a right that inures to the benefit of the entire public can never be waved. Nobody not even the slate can wave the rights entrenched in statutory or constitutional provisions which have been made in favour of the whole country…” “

Again, in the case of Patrick Ziideeh v. Rivers State Civil Service Commission [14] the Supreme Court held that “the right of a person to fair hearing is so fundamental to our concept of justice that it can neither be waved nor taken away by a statute, whether expressly or by implication”. The right to fair hearing is absolute and cannot be prejudiced, compromised or otherwise waved under any circumstances.

Other rights such as the right to liberty, life, freedom of movement and association, right to property, freedom of speech, freedom of assembly and so forth may be restricted as provided under the Constitution of Nigeria 1999[15].

In support of this inalienable theory of human rights, Section 42 of the 1999 Constitution of Nigeria guarantees the freedom from discrimination. However, the same Constitution states that nothing in the above section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the state or as a member of the Nigeria Police Force or to any office in the service of a body corporate established directly by any law in force in Nigeria.[16]

The said 1999 Constitution also secured the right to property[17]. Albeit, this section is also subject to some exceptions.[18] It should be noted that the foregoing discourse reveal that though human rights are not absolute and may be curtailed in the larger interest of society, they nevertheless do not exist at the whims and caprices of the state or its official managers and may not be taken arbitrarily or waved by the persons whom they inure.

Furthermore, there is the universal theory of human rights. The theorists here insist that human rights belong to human kind without except whatsoever; it does not matter the geographical religion, continent, nation, or local community of the world they may be connected with in terms of citizenship, nationality, domicile, or otherwise engaged in business, leisure, trade, profession, or any other activity.

They draw their postulation from the fact that Human beings are the same everywhere regardless of categorization or classification humans in the world as was done during the Roman Empire. Therefore, the rights they are entitled to are the same everywhere and follow the same standards and principles.

In support of the above, Ndubuisi was of the view that[19], “Human rights principles are the same everywhere, irrespective of sex, race, or creed. That means that human rights are applicable in every society and association of human beings.” From the above comment, it therefore means that a Nigerian who goes to settle in London has his fundamental rights intact.

The same thing is applicable to an American who goes to live in France. It is on the basis of this that human rights are said to be superior to man-made law which the state could change at will or administer according to circumstances peculiar to its society.[20]

According to Umozuruike[21]

Human rights are universal, i.e. they apply to all persons regardless of their colour, sex, religion or status in life. The most despotic violator of human rights cherishes those rights for himself. The problem is extending the recognition to the right of others.

Okpara,[22] on his part states thus:

Human rights enjoy global validity and every man is involved with human rights issues. Despite cultural diversity and geographical dispersion, human beings still stand in brotherhood in terms of human rights issues. Though tribes and tongues may differ yet all members of human group share certain basic rights in common just because they are human beings who belong to the same human group.

Read also: How to Apply for Student Visa in France

Also, it should be borne in mind that the universal theory of human rights has been manifested in several international human right awareness programmes. For example, the United Nation has taken the lead position through the promulgation of treaties such as the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Right 1966, International Covenant on Economic, Social and Cultural Rights 1966 etc.

To further support of the universal theory of human rights, there are other regional instruments that have been made in that regard. They include the European convention of Human Rights, the European social charter, The American Convention on Human Rights the African Charter on Human and People’s Rights and more others.

The Universal Declaration of Human right [23] buttresses the universal theory of human right when it states that the “declaration is to be a common standard of achievement for all peoples and all nation to the end that every individual and every organs of society shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure her universal and effective recognition and observation.”

According to Robinson[24]“universality is in fact, the essence of human rights; all people are entitled to them; all government are bound to observe them.” All state and civil actors should respect them. The goal is nothing less than all human rights for all. The Vienna Declaration and Programme of Action, 1993, settled the debate about the universality of human rights when it is stated that “all human rights are universal, indivisible, interdependent and interrelated”.[25]

Notwithstanding the above, The cultural relative theory is a human rights theory which entails that different cultures espouses different philosophies and values concerning the human condition and, for that matter, there cannot be a commonly and uniformly applicable theory of human rights. According to Chris Brown [26] “it is plausible to think that rights can be extracted from liberal politics, de contextualized and applied as a package worldwide. This is not simply because of international value-pluralism; it is de contextualized that is critical whether international or domestic.

There is also the Indivisibility theory of human right. According to Vasak[27], it envisages the three generations of human rights. The first generation includes the civil and political rights. The second generation consists of economic, social and cultural rights such as right to property right to work etc. Third generation of human rights consist of collective rights which are enjoyed in a group or collectively.

They include the right to development, self-determination, peace and security, to a general satisfactory environment, right to protection of cultural heritage and artefacts among the major ones. It should be noted that in as much as this theory tries to divide human rights, human right is same everywhere and cannot be divided. However, some of these rights will be enjoyed in the future, it should be noted that some of our enjoyed presently.

 

[1]R. J. Vincent, Human Rights and International Relations, (Cambridge. The press syndicate of university of Cambridge, UK, 1999), P.21.

[2]T. Nwazuoke, Introduction to Human Rights Law, (Abakaliki; copy craft int’l Ltd, 2006), P.1.

[3] O. Okpara, Human Rights Law & Practices in Nigeria Vol. 1, (Uwani Enugu; Chengo Ltd, 2005) P.7.

[4] A section or Greek Philosophers of the 4th & 5th Centuries because who held that virtue rather than Intellectual or   Sensual pleasure was the ultimate goal of life.

[5] M. Cranston, Human Rights: Real and supposed in Raphael ed, political theory and Right of Man,

(Blooming ten: Indian University Press, 1967), P.52.

[6] M.N Shaw, International Law 4th ed. (Cambridge. Cambridge, university press), PP. 197, & 939.

[7]  The first paragraph of the International Covenant on Civil and Political Rights, 1966.

39  The Preamble of African Charter on Human and people’s Rights, 1981.

[9]Cited in O.Okpara, Human Rights Law and Practice in Nigeria, Vol.1 Op. Cit. pp. 41, 548.

41This definition was made in 1987 and Cited in O. Okpara op. cit p.41.

42  M. Cranston, op. cit p.52.

43Ramsome Kuti v A.G of Federation (1975) 2 NMLR (pt. 6) p.211.

44 Amaechi V INEC (2008) 33 NSCQR p. 332.

45PatrickZiideeh v. Rivers State civil Service Commission (2007) 1-2 SC p.17. See also section 36(V) of the 1999 Constitution as Amended in 2011.

46  See general section 35(1) of the 1999 Constitution.

47 Section 42(3) of the 1999 Constitution of the Federal Republic of Nigeria.

48 Sections 43 and 44 Ibid.

49 Section 44(2) Ibid.

50  F.N. Ndubuisi and O.C Nathaniel, Issues in Jurisprudence and Principles of Human Rights (Lagos;   Dmodus Publishers, 2002), p. 181.

51  Ibid p. 182.

52  U.O. Umuzuirike, The Concept of Human Rights, Memerid Lectures in Honour of Late Agwu Okpanku,  Organized by the Corporative and Rural Development centre, Akanu Ohiafia 21 December, 2004 p.3.

[22] O. Okpara, Human Rights Law and Practice in Nigeriaop. cit p.43.

[23]    See the Preamble to the Universal Declaration on Human Right, 1948.

[24]   V.I Robinson, Human Development and Human Right (Oxford, Oxford University Press, 2000), p.113.

[25]    Paragraph 5, Vienna Declaration and Programme of Action, A/CONF. 157/23.

[26]   C. Brown, ‘Universal Human Rights: A Critique’, Geneva, International Journal of Human Rights, Vol. 1, series 2 pp.49-54

[27]    K. Vasak, for the third generation of Human Rights: the Rights of Solidarity; Inaugural Lecture with Study   Session of the International institute of Human Rights Strasbourg, 1929.

By Admin

Leave a Reply

Your email address will not be published.