The historical development of international human rights
When governments, activists, or United Nations documents refer to 'human rights' today they are almost certainly referring to the human rights recognized in international and national law rather than rights in a moral or philosophical sense. Of course, philosophical debate will continue to illuminate (or sometimes obscure) the reasons why we think human rights are important and how to best develop them. But for the moment, the content of human rights is usually understood by reference to the legal catalogue of human rights we find developed through international texts. This legal approach responds to demands for the concrete protection of inherent natural rights, and goes some way to meeting the criticism that we are simply talking about desires and selfishness. The shift to positive law also fixes these rights in an agreed written form. Hersch Lauterpacht's influential book An International Bill of the Rights of Man, published in 1945, drew on a range of natural rights thinking and constitutionally protected rights to argue for a written Bill of Rights to be protected through the UN.
The key text for us today is the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948. But the enumeration of human rights was not simply frozen by proclamation in 1948. Since that time dozens of treaties (agreements that create binding legal obligations for states) and intergovernmental Declarations have supplemented this proclamation of rights. In 1984, at the height of this flurry of writing up rights, Philip Alston suggested that new international human rights be subjected, like wine, to a 'quality control' by the UN General Assembly.
The relevant UN resolution, adopted in 1986, suggested that international human rights instruments should:
(a) Be consistent with the existing body of international human rights law;
(b) Be of fundamental character and derive from the inherent dignity and worth of the human person;
(c) Be sufficiently precise to give rise to identifiable and practicable rights and obligations;
(d) Provide where appropriate, realistic and effective implementation machinery, including reporting systems;
(e) Attract broad international support.
Some may feel that some texts have failed this test, but, overall, the UN's core human rights instruments satisfy these criteria. Let us look in more detail at the development of this human rights catalogue.
The historical development of the international protection of human rights deserves our attention as it tells us much about how and why states use human rights in international relations. The human rights story in the 20th century has multiple layers. At one level, human rights were invoked as a rationale for fighting the world wars. In 1915, in the context of World War I, Sir Francis Young husband set up an organization called the Fight for Right movement; one of its declared aims was 'To impress upon the country that we are fighting for something more than our own defence, that we are fighting the battle of all Humanity and to preserve Human Rights for generations to come.' At another, rather more academic level, the Chilean legal scholar Alejandro Alvarez, the Secretary General of the American Institute of International Law, was promoting in 1917 consideration of international recognition of rights for individual persons and associations.
In his 1918 address to Congress, President Wilson spoke of his desire 'to create a world dedicated to justice and fair dealing'. His ideas were expanded in a proposed 'Fourteen Points' programme, which included explicit reference to rights to self-determination and statehood for nationalities seeking autonomy. Wilson's Fourteen Points formed the basis of the Versailles Peace Treaty in 1919, which established the League of Nations and the International Labour Organization. The League was supposed to preserve international peace and security through the collective action of its member states against any state that resorted to war or the threat of war.
Three developments are relevant: the minority’s treaties, the development of international workers' rights, and the work on the abolition of slavery.
The Allied Powers and various Eastern European countries entered into a series of minority treaties and declarations for the protection of certain minority rights in Albania, Austria, Bulgaria, Czechoslovakia, Estonia, Finland, Greece, Hungary, Latvia, Lithuania, Poland, Romania, Turkey, and Yugoslavia. It was felt that with the redrawing of borders and the creation of new states, one should guard against the mistreatment of minorities in order to avoid disturbing the new 'peace of the world'. These treaties signaled the first multilateral efforts to protect the rights of specific groups of people at the international level. The treaties all contained similar provisions guaranteeing the protection of minority rights in the states party to the treaty, including the right to life and liberty for all inhabitants and civil and political rights for nationals.
These League of Nations efforts to legally recognize and protect minority rights were an important development, as on the one hand, they signaled attempts to protect individual rights through international law, and, on the other hand, they rebutted the argument that the way a state treats its inhabitants is not a subject of legitimate international concern. Yet, despite its important contribution to the protection of minority rights, the human rights protection offered under the League system was obviously limited to certain groups and certain countries.
The League of Nations was also active in the protection of workers' rights. The goal of 'fair and humane conditions of labour for men, women and children' was stated explicitly in the League Covenant. This goal became central to the work of the International Labour Organization (ILO), which continues today as one of the UN's specialized agencies. While the minorities treaties and the development of workers' rights can be seen as embryonic stages of the development of international human rights, we should be aware that these arrangements were put in place by governments in their states ‘interests. The human rights of individuals were granted legal protection on the basis of the individuals' ties to a state, and in order to reduce political tensions among states that might lead to war. Workers' rights were to be recognized and protected, as this was seen by some states as the best way to prevent their populations from turning to communism and to reduce the risk of revolution.
At the Paris Peace Conference in 1919 various delegates made proposals for the inclusion of respect for equality rights in the Covenant of the League of Nations. There was concern both for religious freedom and to ensure non-discrimination on the basis of race or nationality. The British delegate, Lord Cecil, even proposed that states have a right of ‘intervention' against other states if these states engaged in forms of religious intolerance that would jeopardize global peace. The delegate of Japan, Baron Makino, the Foreign Minister, specifically proposed the inclusion of a sentence that would have bound the member states to agree as soon as possible to accord equal and just treatment to alien nationals of League member states without distinction based on nationality or race.
Neither of these last two proposals was adopted. With regard to the failure to include a non-discrimination provision in the League Covenant, Antonio Cassese has concluded: the Western great powers neither would nor could accept a principle that would have encroached heavily on their discriminatory practices against citizens of other areas of the world, and would have ended up threatening even the similar practices they still tolerated within their own systems (I have in mind above all, of course, racial discrimination in the United States).
We should briefly mention here the fight to outlaw the slave trade and to abolish slavery. Efforts to combat slavery had been ongoing in the 19th century. Although strategic and economic forces played a role in the abolition of slavery, there was also a genuine sentiment that slavery was inhuman; non-governmental organizations such as the Anti-Slavery Society (now Anti-Slavery International) lobbied for international action, and the fight against slavery is sometimes seen as the beginning of the human rights movement. The League set up Commissions on slavery, adopted the 1926 Slavery Convention, and developed conventions on the traffic in women and children to suppress what had been called in a 1910 Convention the White Slave Traffic'.
Sadly, nearly 100 years later the international human rights community is still addressing what are now called 'contemporary forms of slavery' (such as trafficking in persons and forced labour). The older international norms against slavery have been at the core of the international criminalization of trafficking, as well as central to the settlements in the 1990s regarding forced labour during the Second World War. More recently, these rights have been at the crux of the litigation brought in the US Federal Courts by villagers from Myanmar (Burma) against oil companies accused of complicity with the military authorities' forcing of the villagers to build pipelines. In 2005, the Unocal company came to an out-of-court settlement with the villagers, and provided an undisclosed sum that is to be used to compensate the villagers and to develop programmes 'to improve living conditions, health care and education and protect the rights of people from the pipeline region'.
With the League of Nations we have strategic concern for certain national minorities, attention to the plight of workers, and paternalistic worries about women engaged in prostitution. We do not yet have meaningful international rights or obligations which protect human beings as human beings. In the inter-war period there was some interest in developing the scope of international law to cover concern for individual rights. Albert de Lapradelle, a professor of international law at the University of Paris, presented the Institut de droit international (the Institute of International Law) with a draft 'Declaration of the International Rights of Man'. Influenced by the League of Nations minority’s treaties, de Lapradelle sought to create a text that would be universal in nature whilst appealing to all states in the international community. Andre Mandelstam, a professor from Russia, developed a text that formed the basis of the eventual Declaration. Importantly, the final Declaration, approved in 1929 at a meeting of the distinguished members of the Institute in New York, did not refer to the rights of citizens (which were a matter of domestic law and policy) but rather proclaimed rights to life, liberty, and property belonging to individual human beings.
These rights are to be respected without any discrimination on grounds of nationality, sex, race, language, or religion. This text, however, remained the work of distinguished lawyers – key governments remained unenthusiastic about the international protection of human rights. In 1933, the last year of the League of Nations, the delegate of Haiti, Antoine Frangulis, argued that states' obligations should go beyond the category of minorities and be extended through a general convention, to offer the same protection and freedoms to everyone. Such a proposal did not suit powerful states. The historian Paul Lauren quotes a British official, who said 'he did not wish to be quoted', as having said 'the acceptance of such a proposal by His Majesty's Government would be entirely impossible in view of our colonial experience'.
Almost from the beginning of the Second World War we find human rights being invoked. In 1939, the British author H. G. Wells wrote to The Times of London arguing for a discussion of the War Aims. He suggested the League of Nations was 'a poor and ineffective outcome of that revolutionary proposal to banish armed conflict from the world and inaugurate a new life for mankind'. Wells was 'terrified' of a repetition of the 'Geneva simulacrum'. In a follow-up letter, he appended a Declaration of Rights to define the spirit in which 'our people are more or less consciously fighting', as well as 'to appeal very forcibly to every responsive spirit under the yoke of the obscurantist and totalitarian tyrannies with which we are in conflict'. In other words, Wells considered these rights had universal appeal and gave sense to the fighting. This Declaration was developed into the World Declaration of the Rights of Man, and distributed to over 300 editors in 48 countries, generating worldwide interest.
The ten paragraphs covered: discrimination; natural resources; health; education; paid employment; the right to buy and sell personal property; the right to move around the world freely; no imprisonment longer than six days without charge, and then no more than three months before a public trial; access to public records concerning individuals; and a prohibition on mutilation, sterilization, torture, and any bodily punishment.
The Declaration was included in Wells's widely distributed 1940 Penguin Special entitled The Rights of Man: or what are we fightingfor? The book contained other declarations of rights, including a 1936 'Complement a la Declaration des Droits de I'homme' prepared by the Ligue des Droits de I'homme.
Wells expressed the concern that laws were being passed that were disproportionate to the threats posed by traitors and foreigners. Interestingly, these concerns are remarkably relevant to present-day debates about terrorists, refugees, and others. The revised version of Wels’s publication, the 1942 Rights of the World Citizen, ended with the following appeal:
These are the rights of all human beings. They are yours whoever you are. Demand that your rulers and politicians sign and observe this declaration. If they refuse, if they quibble, they can have no place in the new free world those dawns upon mankind.
So the horrors of the Second World War provided this impetus for the modern human rights movement. Wells discussed his Declaration with a variety of people, and most importantly with those who were being asked to fight. Their concern was not only to 'put down violence' but more significantly 'they had been stirred profoundly by those outrages upon human dignity perpetrated by the Nazis'.
In 1941, in a related (but not necessarily connected) move, US President Franklin Roosevelt famously proclaimed, in his annual State of the Union address to Congress, four essential human freedoms: freedom of speech, freedom of worship, freedom from want, and freedom from fear. The speech also explained that: 'Freedom means the supremacy of human rights everywhere.'
During the same year, President Roosevelt and Prime Minister Churchill issued a joint declaration known now as the 'Atlantic Charter', which set out their vision for the post-war world. The joint declaration stated that:
…after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want.
In turn, representatives of 26 Allied nations later signed a Declaration by United Nations on 1 January 1942, subscribing to the purposes and principles in the Atlantic Charter and stating that they were:
…convinced that complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands, and that they are now engaged in a common struggle against savage and brutal forces seeking to subjugate the world.
In addition to the Allied nations at war with the Axis powers, a further 21 states had also signed the Declaration by August 1945. This combined group would become the core of the 51 original member states of the United Nations Organization.
The UN Charter adopted in 1945 commits the Organization to encouraging respect for human rights and obligates the member states to cooperate with the UN for the promotion of universal respect for, and observance of, human rights. However, efforts to include a legally binding bill of rights at that time came to nothing. Instead, the immediate focus was on the prosecution of international crimes.
Statute of the International Criminal Court
Article 7 Crimes against humanity
1. For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender... or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.