Human Rights and the South African Bill of Rights

Overview of Human Rights

• Human rights are characterized as the basic rights and freedoms that belong to every single person simply by virtue of their humanity.
• These rights possess the quality of being universal, which dictates that they apply to everyone regardless of specific factors such as race, gender, age, religion, language, nationality, disability, or social status.
• The primary function of human rights is the protection of human dignity, equality, and freedom, serving as the essential foundation for both peaceful and democratic societies.

Human Rights in the South African Context

• The protection of human rights holds a unique and profound significance in South Africa due to the nation's historical legacy of colonialism and apartheid.
• During the era of apartheid, a significant portion of the population was denied fundamental rights based on race, which resulted in widespread discrimination, systematic inequality, and profound injustice.
• Following the transition to democracy in $1994$, South Africa adopted a new Constitution that placed human rights at the absolute center of the country's legal and political system.

Learning Outcomes and Academic Objectives

• Successful students are expected to acquire integrated knowledge and skills in several areas:
  • A deep understanding of the concept of Human Rights and the various theories regarding the interpretation of the Bill of Rights.
  • Knowledge regarding the international sources of Human Rights.
  • Comprehension of the various classifications used for Human Rights.
  • Familiarity with the right to equality, which is a critical right enshrined in the South African Constitution.
  • An understanding of the application and the justifiable limitations of rights.

Introduction to Human Rights Terminology

• Human rights are frequently referred to using various names and phrases, which are often used interchangeably despite having distinct nuances:
  • "Fundamental" rights
  • "Basic" rights
  • "Natural" rights
  • "Common" rights
• Fundamental or basic rights are defined as those rights that must not be stripped away by any legislation or act of the state. These are typically articulated in the fundamental law of a nation, such as a constitutional Bill of Rights.
• Broadly defined, human rights are those rights inherent in human nature; without them, it is impossible to live as human beings.
• These rights and freedoms allow individuals to fully develop and utilize human qualities, including intelligence, talents, and conscience, while satisfying spiritual needs.
• Possession of these rights occurs by virtue of being human. Therefore, political, economic, or cultural differences cannot be used as a justification for the denial or violation of these rights.

Traditional Classification of Human Rights

First-Generation Rights

• These rights consist of civil and political rights.
• Their primary aim is to protect citizens against the arbitrary actions of the state.
• Specific inclusions are:
  • The right to life
  • The right to liberty and security
  • The right to privacy
  • The right to a fair trial
  • The right to equality
  • The right to dignity
• The primary legal instrument is the International Covenant on Civil and Political Rights (ICCPR).
• The ICCPR was adopted on $16$ December $1966$ by General Assembly resolution $2200A$ ($XXI$).
• The ICCPR entered into force on $23$ March $1976$, reaching the required threshold of $35$ ratifications or accessions later than the ICESCR.

Second-Generation Rights

• These encompass economic, social, and cultural rights.
• They include, but are not limited to:
  • The right to work
  • The right to fair remuneration
  • The right to collective bargaining
  • The right to property
  • The right to housing
  • The right to education
  • The right to health care services
  • The right to social security
  • The right to participate in the cultural life of one's choice
• The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the United Nations General Assembly on $16$ December $1966$.
• The ICESCR entered into force on $3$ January $1976$, upon reaching the threshold of $35$ ratifications or accessions as per Article $49$.

Third-Generation Rights

• This category is of recent origin and is closely associated with the rise of third-world nationalism.
• Developing states realized that the existing international order was biased against them, leading to the emergence of these rights.
• They are known as solidarity rights and are collective in nature, requiring international cooperation and a collective effort between governments and peoples for their achievement.
• Included rights are:
  • The right to peace
  • The right to development
  • The right to a clean environment
• The conceptualization of these "generations" is attributed to French jurist Karel Vasak (a UNESCO legal advisor), who based them on the French Revolutionary values: Liberté (First Generation), Égalité (Second Generation), and Fraternité (Third Generation).

Critique of Traditional Human Rights Approaches

• While the Three Generations typology is a useful tool for conceptualizing rights and extending them beyond Western liberal constructions, it is criticized for being limited and inconsistent.
• Artificial Distinctions: Categorizing rights creates artificial divisions that compartmentalize human rights, eroding the essential notions of indivisibility, universality, and interdependence.
• Static Perception: There is a danger in viewing these categories as rigid, static definitions rather than divisions with permeable conceptual boundaries. This can lead to rights being seen as distinct types rather than aspects of a unified totality.
• Inconsistency with Principles: The main problem is the inconsistency with the principles of universality, indivisibility, and interdependence.

Core Principles of Human Rights

Principle of Universality

• All human rights apply uniformly and with equal force across the globe.
• Every individual possesses the same fundamental inherent rights simply by virtue of being human, regardless of location or background.
• Under documents like the Universal Declaration of Human Rights (UDHR), these rights are inalienable and cannot be taken away.

Principle of Interdependence

• The meaningful enjoyment of one right is dependent on the possession of all other rights.
• Human rights are connected and interrelated; no right is superior to another. For example, the right to life is interdependent with the rights to food, health, and a clean environment.

Principle of Indivisibility

• All human rights have the same basic characteristics and must be upheld through equally potent enforcement mechanisms.
• Civil, political, economic, social, and cultural rights are equally important and cannot be enjoyed in isolation.

Specific Criticisms of the Three Generations Model

• Hierarchy Concerns: The labels "First," "Second," and "Third" imply a priority or hierarchy, suggesting civil and political rights come first and marginalizing other categories.
• Ideological Association via Colors: Labeling rights with colors creates problematic ideological associations:
  • Blue Rights: Associated with Western liberalism.
  • Red Rights: Associated with socialism or communism.
  • Green Rights: Associated with Third World nationalism focused on development and environment.
• Implementation Disparities: Historically, states like the United States and the United Kingdom argued that civil/political rights are immediately justiciable, while socio-economic rights depend on progressive, programmatic implementation. This creates a perception that only first-generation rights are "real" rights.
• Categorical Overlap: Some rights do not fit neatly into one category or may fall into multiple. For instance, the right to self-determination is variously classified as a first, second, or third-generation right, and is provided for in both the ICCPR and ICESCR.
• Individualism vs. Collectivism: It is often incorrectly assumed that first-generation rights are individual and justiciable, while second and third-generation rights are collective and non-justiciable.
• Justiciability in South Africa: The South African Constitutional Court has demonstrated that socio-economic rights are indeed justiciable and enforceable by national courts, proving that rights can have both individual and collective dimensions.

The Right to Development (RTD)

• The Right to Development (RTD) is one of the most controversial issues in human rights discourse, grounded in third-generation solidarity rights.
• It was introduced to academia in $1972$ by Keba M’Baye, a former Senegalese judge, during a lecture at the International Institute of Human Rights in Strasbourg.
• M’Baye advocated for a New Economic Order to redress global inequities and linked civil and political rights to the fulfillment of economic, social, and cultural rights.

International Legal Context of RTD

• Foundational References:
  • Implicitly referenced in the Declaration of Philadelphia: "All human beings have the right to pursue freely economic security and the opportunity of development."
  • Implicitly referred to in the UN Charter ($1945$) under Articles $1$, $55$, and $56$.
• Formal Recognition:
  • Resolution $4$ ($XXXIII$) on $21$ February $1977$ by the Commission on Human Rights.
  • Commission on Human Rights Resolution $4$ ($XXXV$) of March $1979$ expressly recognized RTD as a human right.
  • The UN General Assembly adopted the Declaration on the RTD in resolution $41/128$ on $4$ December $1886$.
• Further Affirmations:
  • African Charter on Human and Peoples' Rights ($1981$)
  • Rio Declaration on Environment and Development ($1992$)
  • Vienna Declaration and Programme of Action ($1993$)
  • Durban Declaration and Programme of Action
  • UN Declaration on the Rights of Indigenous Peoples
  • $2030$ Agenda for Sustainable Development

Features and Definition of RTD

• According to Article $1$($1$) of the UN Declaration, the RTD is an inalienable right by which every person and all peoples are entitled to participate in, contribute to, and enjoy development where all human rights can be fully realized.
• Key Features (Serges Djoyou Kamga):
  • Absolute and Inalienable: It cannot be bargained away.
  • Process-Oriented: It is a process of securing participation and achieving all fundamental freedoms.
  • Dual Dimension: It is both an individual and a collective right (a uniquely "composite" right).
  • People-Centered: It focuses on well-being rather than just economic growth, enabling meaningful participation in decisions.
  • Holistic Integration: It integrates all categories of human rights (civil, political, economic, etc.).
  • Duty Bearers: States are primary duty bearers responsible for policy creation, while the international community has a duty to cooperate in creating a fair economic order.
  • Substantive and Procedural Elements: Includes non-discrimination, equality, accountability, transparency, and equity, as clarified by the African Commission in the Endorois decision.