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.

(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.

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 minorities 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 signalled 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.

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.

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’.

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.

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 fighting for? The book contained other declarations of rights, including a 1936 ‘Complément à la Déclaration des Droits de l’homme’ prepared by the Ligue des Droits de l’homme.

3. The H. G. Wells paperback; the Allies are said to have dropped the Declaration behind enemy lines. Wells’s Declaration of Rights was widely distributed and translated into not only European languages but also into Chinese, Japanese, Arabic, Urdu, Hindi, Bengali, Gujerati, Hausa, Swahili, Yoruba, Zulu, and Esperanto

At the end of the Second World War, the victorious powers established the Nuremberg International Military Tribunal to try the ‘major war criminals of the European Axis’ and the Tokyo Tribunal to try the ‘major war criminals in the Far East’. These two Tribunals tried individuals for crimes against peace (aggression), war crimes, and crimes against humanity (in connection with aggression or war crimes). The Nuremberg Tribunal sentenced 12 defendants to death, and five defendants to long sentences of imprisonment. The Tokyo Tribunal sentenced seven defendants to death and 16 received life sentences. For some, the purpose of these trials was to demonstrate that the Allies were better than the Fascists, and to serve an educational purpose. However, the trials can also be seen in other ways. From one perspective, they represented victor’s justice: war crimes which may have been committed by the Allies were beyond the jurisdiction of the Tribunals, and the charges of crimes against peace and crimes against humanity seemed to rest on rather uncertain legal ground.