He 9780198767237 Chapter 1
He 9780198767237 Chapter 1
He 9780198767237 Chapter 1
History
1. History
Author(s): Ed Bates
DOI: 10.1093/he/9780198767237.003.0001
Summary
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1. History
1 Introduction
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We advance to the latter half of the seventeenth century for the next
chapter in the overall story. The context was the English Civil War and the
so-called ‘Glorious Revolution’, culminating in the Bill of Rights of 1689.
Despite its name, that document was really a constitutional settlement
that championed the sovereignty of Parliament. It set the seal on the
absolute power of the Stuart kings after the myth of their ‘divine power’
had been debunked—in England at least, for it would last many more
decades in France. So the bill of 1689 was no bill of rights in the sense
that would be understood in modern democratic societies today.11
Nonetheless it was the source of a limited number of defined rights, for
example that ‘cruel and unusual punishments [should not be] inflicted’,
which were applicable to all, at least in theory. Moreover, there were
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However, it was Locke who carried this concept very much further, above
all in his Two Treatises of Government,13 published in 1690, shortly after
the overthrowing of another English king in 1688 (James II) and the
approval of the Bill of Rights by Parliament in 1689. Locke advocated the
natural liberty and equality of human beings: ‘[m]an’ was born with ‘a
title to perfect freedom, and an uncontrolled enjoyment of all the rights
and privileges of the law of nature, equally with any other man, or
number of men in the world’; he had ‘by nature a power … to preserve his
property, that is, (p. 6) his life, liberty and estate, against the injuries and
attempts of other men’.14 Locke was therefore a strong advocate of
natural rights, and in particular the right to property in the broad sense
identified here, and, as he saw things, it was the state’s duty to provide
an environment in which such rights could flourish. His enduring
contribution to the ideas that fuelled human rights thinking, however, lay
in his theory of government, for it is in Locke that we see the origins of
the idea of limited constitutional government and the fuller development
of the idea of government by consent. Locke wrote that the ‘end of
government is the good of mankind’, so rulers ‘should be sometimes
liable to be opposed, when they grow exorbitant in the use of their power,
and employ it for the destruction, and not the preservation of the
properties of their people’.15 Within Locke’s writing therefore were the
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It was, however, in the ‘new world’ where the ‘ax of rationalization’ first
achieved practical effect in a constitutional document. Locke’s influence
was unmistakable, and immortalized, in the US Declaration of
Independence of 1776. That document listed grievances against (p. 7)
George III and inspired the successful prosecution of the American War of
Independence. Its opening words are now infamous:
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Even before Thomas Jefferson and others penned these words on 4 July
1776, the process of drafting the constitutions of the newly independent
individual states in what would become the United States of America was
well underway. In 1776, five would be drafted so as to enshrine the
protection of human rights, and by 1783 all states would have done so in
one form or another. Probably the most celebrated example was the
Virginia Declaration of Rights of 12 June 1776, regarded by many as the
first ‘proper’ bill of rights. Its first article proclaimed that:
all men are by nature equally free and independent, and have
certain inherent rights, of which, when they enter into a state of
society, they cannot, by any compact, deprive or divest their
posterity; namely, the enjoyment of life and liberty, with the means
of acquiring and possessing property, and pursuing and obtaining
happiness and safety.
The Virginia Declaration then set out the idea of government by consent
(‘all power is vested in, and consequently derived from, the people’) and
separation of powers (‘the legislative and executive powers of the state
should be separate and distinct from the judicative’), before listing a
number of human rights including, for example, basic due process rights
and freedom of expression (‘the freedom of the press is one of the
greatest bulwarks of liberty and can never be restrained but by despotic
governments’).
Events in France would help to ensure that the end of the eighteenth
century was a defining time in the history of human rights. The years
1789–91 stand out above all. The French Revolution swept away any
notions of absolute monarchical power, replacing it with the philosophy of
the French Declaration of the Rights of Man and Citizen. With this
Declaration on 26 August 1789, the French National Assembly
pronounced that ‘ignorance, forgetfulness, or contempt of the rights of
man’ were ‘the sole causes of public misfortunes and of the corruption of
governments’. It therefore:
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starting point for any course on human rights and, no doubt, stimulate
much debate. The Declaration defined ‘liberty’ as ‘the power to do
whatever is not injurious to others’. It followed that ‘the enjoyment of the
natural rights of every man has for its limits only those that assure other
members of society the enjoyment of those same rights’. According to the
Declaration ‘such limits may be determined only by law’. A flavour of
what followed may be gleaned from paragraphs in the Declaration setting
out due process rights such as the presumption of innocence and to the
effect that free speech was ‘one of the most precious of the rights of
man’, so ‘every citizen may speak, write, and print freely’, ‘subject to
responsibility for the abuse of such liberty in cases determined by law’.
More generally the Declaration profoundly announced that: ‘The law has
the right to forbid only actions which are injurious to society. Whatever is
not forbidden by law may not be prevented, and no one may be
constrained to do what it does not prescribe.’
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included the famous right to bear arms (Amendment II), protection from
unreasonable search and seizure (Amendment IV), various protections
relating to due process and fair trial (Amendments V and VI), and a
prohibition on ‘cruel and unusual punishments’ (Amendment VIII). It
should be added, however, that at this stage such rights were to be
protected only at the federal level. It was in the individual constitutions of
the states, with their own bills of rights, that the expression of the rights
of man was really seen in the USA in the late eighteenth century.
The French Declaration and the US Bill of Rights were landmarks in the
history of human rights for they transformed the philosophy espoused by
the likes of Locke and Rousseau, and the thinking behind natural rights,
into positive law. Nonetheless, during the nineteenth century the idea of
natural rights came under attack from a new generation of philosophers.
The critics were led by Jeremy Bentham who famously criticized the idea
of natural, God-given rights obtained by virtue of birth as ‘nonsense upon
stilts’.21 His point was that natural rights counted for nothing on their
own. To mean something, they required the protection of the law; so the
real issue for Bentham, expounding a very British ‘rights and remedy’
approach to things, was what the law actually protected. As he famously
put it: ‘from real law come real rights; but from imaginary laws, from
laws of nature, fancied and invented by poets, rhetoricians, and dealers in
moral and intellectual poisons, come imaginary rights’.22 For Bentham
natural rights were dangerous since they fuelled revolutions such as
those in France and so ultimately caused great social damage, hence the
title of his famous work The Anarchical Fallacies (1843). Criticism of this
type had already been made by another Englishman at the very time of
the French Revolution. In his Reflections on the Revolution of France,
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We have seen, then, that for domestic law the human rights story really
began in the seventeenth and eighteenth centuries. History will record
the tribute to be paid to the visionaries of that age, such as Locke and
Rousseau, many of whom were treated as dissidents at the time. The Bill
of Rights of 1689, and in particular the American Declaration of
Independence (1776), the French Declaration of the Rights of Man and
Citizen (1789), and the US Bill of Rights (1791) were milestones in
constitutional history, curtailing the sovereign power of the state in
various ways, including by reference to the basic rights of the individual.
This constitutional model certainly caught on as was evident by the
constitutional arrangements secured in the Netherlands in 1798, Sweden
in 1809, Spain in 1812, Norway in 1814, Belgium in 1831, Liberia in
1847, Sardinia in 1848, Denmark in 1849, and Prussia in 1850. In fact, it
has been suggested that over 80 per cent of national (p. 10) constitutions
adopted between 1778 and 1948 provided a human rights guarantee in
one form or another, and that between 1949 and 1975 the figure was 93
per cent.25 That this upward trend continued was evident in the 1990s
with the new constitutions of those states which were formerly part of the
Soviet Union.
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French Declaration had been incorporated as the first part of the formal
French Constitution in 1791, but it was not enforceable by the courts at
that time. As Lauren has observed, the French Declaration, ‘reflected far
more vision than reality’. It ‘emerged not out of long tradition or wide-
spread experience or inclusive election, but rather out of … revolution
and had to be nurtured in the face of overwhelming opposition’.26
The point of this digression is not to single out the practice of the USA in
any way. If this chapter were to attempt to provide even the broadest of
overviews of the failures of other states to protect human rights over the
same timeframe, it would no doubt run into dozens of pages. What has
been said here, however, provides a very useful perspective on Section 3,
which looks at the international protection of human rights. It helps us to
understand how very recent the protection of human rights is by domestic
courts (see Table 1.1) and by reference to bills of rights in the overall
story of the history of human rights. In the
(p. 11)
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US Constitution
UK, for example, there existed a long tradition of Parliament and the
courts protecting the rights of individuals by various statutes and under
the common law. But only in 2000, with the entry into force of the Human
Rights Act 1998, did the UK obtain something akin to a modern bill of
rights encompassing judicial protection of a select number of human
rights against the acts of public authorities, albeit not against
parliamentary acts.32 In France, the 1958 Constitution refers in its
preamble to the French people’s commitment to the Declaration of 1789,
but only a limited challenge to the authority of the legislature is possible
via the Conseil constitutionnel.33 Finally, the USA is without doubt the
most celebrated exponent of the judicial protection of human rights. Yet
only since around 1925 has the Supreme Court begun to use the Bill of
Rights more widely to protect the rights of individuals against
encroachments by the individual states themselves. Indeed, the story of
human rights protection by the Supreme Court is overwhelmingly a post-
Second World War phenomenon.34
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could touch on or address the plight of human beings only in very limited
ways.
For example, the inkling of the idea of certain minimal rights for
(p. 12)
Of course, states could enter into legal relations with each other
motivated by a desire to relieve human suffering in certain ways. In this
regard an apparently compassionate dimension to international law had
been evident in the nineteenth century, first with the movement towards
the abolition of the slave trade and, second, with the first steps that were
taken in the field of international humanitarian law.
The second of these is addressed in Chapter 25 and all that need be said
here is that the nineteenth century saw increasing international activity
which expressed a concern with the plight of the individual subjected to
the ravages of war—prisoners of war and wounded soldiers above all. The
founding father of this movement was Henry Dunant, who was so shocked
by scenes of the wounded and vanquished he witnessed at the Battle of
Solferino (1859) that he later helped to establish the International
Committee of the Red Cross. The Geneva Convention of 1864 soon
followed, while the Hague Conventions were adopted in 1899 and 1907.
Perhaps the most significant achievements of this sector of international
law from the perspective of human rights, however, were secured with
the Geneva Conventions of 1949 and the Additional Protocols thereto.
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The list of states committed to abolishing the trade slowly grew, but a
sufficient global consensus on abolition of the slave trade did not emerge
until the last decades of the nineteenth century. Only in 1885 did the
Conference on Central Africa, held in Berlin, see in its General Act a
commitment by states ‘to help in suppressing slavery, and especially the
slave trade’ and their recognition that ‘trading in slaves is forbidden in
conformity with the principles of international law as recognized by the
Signatory Powers’. Five years later, negotiations in Brussels saw the
conclusion of the 1890 General Act, which included an Anti-Slavery Act
ratified by 18 states stipulating specific measures for countering slavery
and the slave trade. By this stage the great majority of states had made
slavery illegal in their own jurisdictions. The experience of the USA, with
President Lincoln’s Emancipation Proclamation of 1863, is known best.
Yet even after the US Civil War, Cuba and Brazil maintained domestic
slavery into the 1880s.
In the twentieth century, the international abolition of the slave trade and
slavery was taken up by the League of Nations, the key international
organization established after the First World War with the principal
objective of maintaining peace and stability in the world. There followed
the International Convention on the Abolition of Slavery and the Slave
Trade of 1926. The declared aim of this treaty was ‘the complete
suppression of slavery in all its forms and of the slave trade by land and
sea’. There have been further international agreements since.
The international effort toward the abolition of the slave trade and
slavery provides some interesting general lessons for students of
international human rights law. The abolition of the trade evidenced why
international law, in the form of bilateral treaties, was needed to improve
the protection of individuals when the activities of more than one state
were involved. But it also demonstrated that general international
agreements may only follow a consensus being reached across a
sufficient number of states, and that this may take a considerable time to
achieve. The abolition of slavery itself inevitably required action on the
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the League of Nations. The arrangements were complex and here we will
identify only three main aspects.45
An extreme view might be that the treaties were not really about human
rights at all, given that they applied only to certain geographical areas
and that the petitions system developed by the League of Nations
depended on status (belonging to a national minority). A sceptic would
also point out that the motive for the creation of the treaties was not so
much the protection of the minorities for humane reasons, but for the
broader aim of regional stability.
Such a view had prevailed as far as most states were concerned when the
Covenant of the League of Nations was concluded in 1919. As its
preamble recited, the main aim of that organization was ‘to promote
international co-operation and to achieve international peace and
security’. Talk that all states should protect minorities along the lines of
the minority treaties was quickly dismissed; therefore no guarantees for
the protection of individuals generally were imposed on states after the
First World War. Quite simply, outside the discrete context of the minority
treaties, the notion that international bodies could or should have an
influence on how the state treated its own nationals was not developed at
the general level at this stage. Hence, governments and the League of
Nations made little attempt to intervene in what would today be seen as
the human rights abuses that (p. 16) occurred in countries such as
Germany, the Soviet Union, and Italy in the lead up to the Second World
War. As Luard once put it, this was not because people did not care,
rather:
And here, over an acre of ground, lay dead and dying people. You
could not see which was which, except perhaps by a convulsive
movement, or the last quiver of a sigh from a living skeleton, too
weak to move. The living lay with their heads against the corpses,
and around them moved the awful ghostly procession of emaciated,
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These were the words of Richard Dimbleby reporting for the BBC at the
time of the liberation of the Nazi concentration camp in Belsen. Such
human rights atrocities, and countless others committed during the
Second World War, were a galvanizing force that would help to ensure a
new approach for international law after 1945 as regards the rights of the
individual. They would prompt the first steps towards a modern
international law of human rights.
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So what happened when the conflict finally ended? To what extent were
these lofty ambitions realized in the war-shattered world?
A very important step was taken in 1945 when the victorious powers
decided that the major war criminals of the German Third Reich should
be brought to justice. The Four-Power Agreement of 8 August 1945
provided for the establishment of the International Military Tribunal for
the Prosecution and Punishment of Major War Criminals of the European
Axis (Nuremberg Tribunal). The crimes in question were primarily those
of planning and waging a war of aggression and the committal of war
crimes, but they also included ‘crimes against humanity’. The Nuremberg
Tribunal eventually interpreted these crimes in a rather restrictive way.
Nonetheless, the concept of such crimes was very significant for
international human rights law, for it realized the possibility of
international accountability and punishment for appalling crimes
committed against individuals. More detailed discussion of the
Nuremberg Tribunal can be found in Chapter 26.
The main focus of the immediate post-war story for international human
rights law concerned the attempts made to create legal instruments
protecting human rights. Of course, this meant securing agreement on
what that concept actually covered. The framing of the UN Charter in San
Francisco in 1945 was the obvious starting point in this endeavor. Its
preamble stated that the peoples of the UN were:
Therefore, with the framing of the UN Charter human rights had finally
become a subject of official concern for the international community.
Nonetheless, Article 2(7) UN Charter, the ‘domestic jurisdiction’ clause,57
cast something of a shadow over this, while the six references (p. 18) to
‘human rights’ in the main body of the Charter itself did not appear to
commit member states to very much.58 At most, members of the UN
would be required to ‘promote’ human rights in accordance with Article
55(c) read with Article 56. There had been proposals to go further than
this; Chile and Cuba, for example, had been prepared to accept provisions
in the Charter to guarantee specified rights, and there had been a
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Even before the Commission began its work, the politics of international
human rights protection had become apparent, but by 1947 ‘human
rights’ was rapidly becoming an ideological weapon in the war of words
between East and West.61 So the idea of an International Bill of Rights
was an attractive one in principle, but there were major difficulties when
it came to putting in place concrete measures, especially international
legal obligations.
The Commission quickly decided that the International Bill should have
three parts: a declaration, a convention containing legal obligations, and
‘measures of implementation’, that is, a system of supervision and
control. A drafting committee of eight members (from Australia, Chile,
China, France, Lebanon, the UK, the USA, and the Soviet Union) was
appointed to formulate the declaration. Its chair was Eleanor Roosevelt.
The Universal Declaration of Human Rights (UDHR) was subsequently
formulated from an initial outline produced by John Humphrey, as well as
a British draft.62 Following many sessions of the drafting committee and
approval by the plenary Commission, on 10 December 1948, the UDHR
was proclaimed by 48 states in the UN General Assembly. Indeed, the
years 1948–9 proved to be remarkable ones for human rights standard-
setting (see Table 1.2 for key dates). The Convention on the Prevention
and Punishment of the Crime of Genocide63 was opened for signature on
11 December 1948 and the four Geneva Conventions in 1949.
The UDHR had been accepted by the General Assembly without any
dissenting votes, although there had been eight abstentions from the six
communist states which were then members of the UN (Byelorussian
SSR, Czechoslovakia, Poland, Ukrainian SSR, USSR, and Yugoslavia), plus
Saudi Arabia and South Africa. The 48 states had nevertheless backed the
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(p. 19)
1945 UN Charter
Writing less than two years after the UDHR had been proclaimed,
Lauterpacht dismissed it as being of ‘controversial moral authority’.65 He
was not alone in his criticism of the Declaration. Events, it seemed, had
confirmed that states had failed to rise to the challenge foreseen by
Lauterpacht in his 1945 book. From the perspective of 1950,
Lauterpacht’s disappointment can be appreciated. No International Bill of
Rights was secured in the 1940s. Moreover, in 1950 the prospects for the
remainder of the bill looked bleak. It took until 1954 for the UN
Commission to complete the drafts of what would become the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights
(ICESCR). However, they would not be opened for signature until 1966
and it would take until 1976 before they entered into force for the 35
states that were prepared to ratify them. The drafting history of the two
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5 Conclusion
As the subsequent chapters in this book will reveal, the rights protected
by the UDHR, and the two Covenants more generally, which today have
been ratified by a large majority of states, have become part of a body of
international law the scope, breadth, and general significance of which
would have been impossible to predict in the late 1940s. And if these are
the achievements of only the last 70 years,66 then what further progress
can we expect in this century and beyond?
Further reading
BINGHAM, The Rule of Law (Penguin, 2010) (esp ch 2).
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ISHAY,
The History of Human Rights: From Ancient Times to the
Globalization Era (University of California Press, 2004).
Useful websites
Avalon Project: Documents in Law, History and Diplomacy (many of the
‘constitutional’ documents referred to in this chapter are available on this
site): <http://avalon.law.yale.edu>
Notes:
1
Lauterpacht, An International Bill of Rights of Man (Columbia University
Press, 1945) 9–10.
2
Lauterpacht (1945), 14.
3
Lauterpacht, International Law and Human Rights (Stevens and Sons,
1950).
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4See Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human
Rights’ (2004) 120 LQR 49.
5See Ishay, The History of Human Rights: From Ancient Times to the
Globalization Era (University of California Press, 2004) ch 1; Ishay, The
Human Rights Reader (Routledge, 2007) chs 1–4.
9 For much broader perspectives on the history of human rights, see Ishay
(2004).
10
eg the King’s agreement with the Cortes of Leon (1188, Spain) and the
Magnus Lagaboters Landslov (1275, Norway).
11For modern bills of rights, see Chapter 24. For a highly readable
account of events and legal milestones related to this period, from the
perspective of human rights and the rule of law, see Bingham, The Rule of
Law (Penguin, 2010) ch 2.
17 See also the French Declaration of the Right of Man and Citizen of
1793, a redraft of the 1789 text with an added emphasis on the principle
of equality.
19 Henkin, The Rights of Man Today (Stevens and Sons, 1978) 135.
21 See Chapter 3.
22Waldron (ed), Nonsense upon Stilts: Bentham, Burke and Marx on the
Rights of Man (Routledge, 1987) 69.
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24 See Chapter 3.
28 60 US 353 (1857).
34In 1935–6 only two of the 160 signed written opinions of the Supreme
Court covered ‘basic human freedoms’, but by 1979–80 the ratio had
increased to 80 out of 149. See Abraham and Perry, Freedom and the
Court (OUP, 1998) 5.
36 20 State Trials 1.
38See UDHR, Art 4. See also International Covenant on Civil and Political
Rights, Art 8; European Convention on Human Rights, Art 4; American
Convention on Human Rights, Art 6; African Charter on Human and
Peoples’ Rights, Art 5.
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Bulgaria, Hungary, and Turkey special chapters were inserted into the
General Peace Treaties. Additionally special chapters were inserted into
the German Polish Convention concerning Upper Silesia, and for the
Memel Territory.
52Richard Dimbleby, BBC News (13 May 1945), available at: <http://
news.bbc.co.uk/1/hi/in_depth/4445811.stm>.
54See Dumbach and Newborn, Sophie Scholl and the White Rose
(Oneworld, 2006).
57Art 2(7) reads (in part): ‘Nothing contained in the present Charter shall
authorize the United Nations to intervene in matters that are essentially
within the domestic jurisdiction of any state’.
58See Arts 1, 13, 55, 62(2), 68, and 76. See also the preamble to the
Charter.
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64Moskowitz, Human Rights and World Order (Stevens and Sons, 1959)
79.
66In particular since the late 1970s: see Moyn, The Last Utopia: Human
Rights in History (Harvard University Press, 2010) ch 5. For debate and
discussion on when human rights became a central concept in the
twentieth century, see Hoffmann, ‘Human Rights and History’ (2016) 232
Past and Present 279; Moyn, ‘The End of Human Rights History’ (2016)
233 Past and Present 307; and Hunt, ‘The Long and the Short of the
History of Human Rights’ (2016) 233 Past and Present 323.
67 Lauterpacht (1945).
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