Human Rights: Concept and Standards

Janusz Symonides

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351728362
• Edition: 1
• Topic: Derecho
• Subtopic: Derechos civiles en la legislación

Presenting reflections on the historical perspectives and philosophical foundations of human rights, this book provides a detailed analysis of civil and political rights, as well as the rights of persons belonging to such vulnerable groups as women, children and minorities, indigenous people, refugees, displaced persons and migrant workers.

Part I
The Concept of Human Rights

1
International Human Rights in an Historical Perspective

THOMAS BUERGENTHAL

Introduction

The subject of this chapter is the historical evolution of international human rights law and the institutions established for its implementation. Here, therefore, we shall deal neither with the history of human rights in general nor with those historical movements and philosophical principles which gave rise over the past two centuries to national constitutional norms and mechanisms for the protection of the rights of the individual and of groups.¹

It is, of course, true that the evolution of international human rights law cannot be conceptually divorced from the much older domestic constitutional law norms intended to safeguard the rights of the individual against arbitrary state action. As a matter of fact, much of substantive international human rights law, namely the nature or contents of these rights, has its conceptual source in the principles of domestic constitutional law embodied in the fundamental laws of various countries. Their historical and philosophical origins can, in turn, be traced back to such great milestones of human freedom as the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen, among others. These instruments, and the national constitutions which inspired them, greatly influenced the contents of much of modern international human rights law. One cannot, for example, read Article 1 of the Universal Declaration of Human Rights, ‘All human beings are born free and equal in dignity and rights’, without recognizing the debt this formulation owes to the American and French Declarations and to the idea of human freedom they articulate.

The modern international human rights revolution begins with the adoption of the Charter of the United Nations.² While it is certainly true that international law recognized some forms of international human rights protection prior to the Charter, the process which ushered in ‘the internationalization of human rights and the humanization of international law’, as it has been characterized elsewhere,³ begins with the establishment of the United Nations.⁴ The result has been a worldwide movement in which states, intergovernmental and nongovernmental organizations are the principal players in a continuing struggle concerning the role the international community should play in promoting and protecting human rights.

The idea that the protection of human rights knows no international boundaries, and that the international community has an obligation to ensure that governments guarantee and protect human rights wherever they may be violated, has gradually captured the imagination of mankind. The end of the Cold War has deideologized the struggle for human rights and reinforced the international human rights movement. Today, violators of human rights can no longer count on one or the other superpower to shield them from international condemnation, a practice which in the past had a very detrimental effect on the development and application of human rights law.

This is not to say that massive violations of human rights are no longer being committed, or that the international institutions designed to prevent such violations are all in place and working effectively. Many governments still violate human rights on a large scale and many more would prefer never to have to account for their actions. But the fact is that they are increasingly being forced by a variety of external and internal factors to answer for their behaviour to the international community. This reality limits their freedom of action, and in many, albeit not all, cases contributes to an improved human rights situation.

What we have here is a dynamic and continuing process which has its normative basis in the Charter of the United Nations. The Charter in turn has given rise to a vast body of international and regional human rights law and the establishment of numerous international institutions and mechanisms designed to promote and supervise its implementation. In this chapter we shall describe the evolution of this process, as well as the law and institutions it has produced. To do so we need to look first at some relevant historical antecedents of modern international human rights.

Historical Antecedents

The General Rule

Human beings as such had no rights under traditional international law, which was defined as the law which governed relations between states. The traditional definition was expanded somewhat after the First World War, when it came to be recognized that some newly created intergovernmental organizations could, in some limited circumstances, also enjoy rights under international law and, to that extent, be subjects of international law. Since individual human beings were not deemed to have any rights under traditional international law, they were said to be objects rather than subjects of that law. To the extent that states had any international legal obligations concerning the treatment of individuals, they were obligations owing to the states whose nationality the individuals possessed.⁵

These theories about the nature of international law had a number of consequences as far as individual human beings were concerned. First, it was for the state of the individual’s nationality to protect him or her from acts by other states which violated international law. Individuals therefore depended on the states of their nationality to vindicate these rights on the international plane, because private persons had no standing to do so themselves. They also had no standing to compel their states to espouse these claims. Second, because only a state whose nationality the individual possessed could be considered aggrieved, a stateless person enjoyed no protection at all under traditional international law. Third, since individuals had no rights under traditional international law and enjoyed only such protection as the state of their nationality was willing to extend to them, they had no rights and no recourse on the international plane against abuses committed against them by their own governments. Finally, because the treatment by states of their own nationals was not a matter to which international law applied, the entire subject was deemed to fall within the domestic jurisdiction of each state, barring other states from interceding or intervening on their behalf.

As traditional international law evolved over time, it gradually expanded its reach by grafting some exceptions on the principles described above. These exceptions had their source in the international law doctrines and treaty arrangements to be discussed below. Although these exceptions did not nullify the basic rule that individuals as such were not subjects of international law and hence had no rights under that law, they did make international law applicable under certain circumstances to the manner in which governments treated human beings. Where that was so, the doctrine of non-intervention in the domestic jurisdiction of states could no longer be validly invoked to prevent diplomatic intercession or even action by other states.

Special Rules and Regimes

First, one of the early exceptions recognized by traditional international law had its legal basis in the doctrine of humanitarian intervention. Under this doctrine, which can be traced back to Hugo Grotius and other early international lawyers, the use of force by one or more states to stop the maltreatment by a state of its own nationals was deemed to be lawful when that conduct was so brutal and large-scale as to shock the conscience of mankind.⁶ Although greatly misused in the past and frequently invoked as a mere pretext for the occupation or invasion of weaker countries,⁷ this doctrine was the first to acknowledge some limits on the freedom states enjoyed under international law in dealing with their own nationals.⁸ Contemporary arguments about the rights of international organizations or groups of states to use force, if necessary, to put an end to massive violations of human rights continue to be justified from time to time by reference to this doctrine.⁹

Second, it is a basic principle of international law that a state may limit its sovereignty by treaty and thus internationalize a subject which would otherwise not be regulated by international law. For example, if one state concludes a treaty with another state in which they agree to treat their respective nationals in a humane manner, they have to that extent internationalized that particular subject.¹⁰ Between these two states, neither can henceforth lawfully assert that its treatment of its own nationals is a subject which falls exclusively within its domestic jurisdiction.¹¹ This principle has been extremely important in the development of international human rights law and the gradual internationalization of human rights.¹² Although the internationalization process continues to this day every time a human rights treaty enters into force, it began in the nineteenth century with the conclusion of treaties to ban the slave trade and to protect various minorities, particularly Christians, in the Ottoman Empire.¹³ These agreements were relied upon by the states comprising the Concert of Europe to provide the legal basis for their diplomatic (and at times even military) interventions on behalf of the Christian populations in the Turkish Empire.¹⁴

Third, although the Covenant of the League of Nations, which established the League in 1920, did not deal with human rights as such, it contained two provisions (Articles 22 and 23) which anticipated some aspects of modern international human rights protection. The League also played an important role in supervising the implementation of post-First World War minorities treaties, which established another exception to the aforementioned general rule. Article 22 of the Covenant established the Mandates System of the League. Under this provision, the former colonies of the states which had lost the First World War were transformed into so-called ‘Mandates’ of the League and placed under the administration of various victorious powers. The latter agreed to administer these territories pursuant to ‘… the principle that the well-being and development of [the native] peoples form a sacred trust of civilization’ and undertook to provide the League with annual reports bearing on the discharge of their responsibilities. These reports were reviewed by the Mandates Commission of the League. Although this body had no real power when first established, its authority to supervise the administration of the Mandates grew with time.¹⁵ Had the Second World War not led to the demise of the League, the Mandates Commission might well have transformed itself into an important institution for the protection of the rights of the native populations in the mandated territories.¹⁶ The reporting requirements found in many present-day human rights treaties hark back to the practice of the Mandates Commission.

The Member States of the League of Nations agreed in Article 23(a) of the League Covenant, ‘subject to and in accordance with the provisions of international conventions existing or to be hereafter agreed upon’, to ‘endeavour to secure and maintain fair and humane conditions of labour for men, women and children, both in their own countries and in all countries to which their commercial and industrial relations extend’. Article 23 also envisaged the establishment of international organizations to promote this objective. That function was assumed by the International Labour Organisation (ILO), which came into being at about the same time as the League and immediately embarked on the task of drafting and promoting the adoption of treaties dealing with fair labour standards. The establishment of the ILO and the functions assigned to it foreshadow modern international human rights concerns with economic rights.

The League of Nations also played a very important role in developing an international system for the protection of minorities.¹⁷ While this subject was not regulated by the Covenant, the League derived its powers in this field from a series of post-First World War treaties. That war produced a substantial redrawing of the political map of Europe and of the Middle East. A number of new states came into being and others regained their independence. Some of these countries, notably Albania, Bulgaria, Czechoslovakia, Hungary, Poland, Romania and Yugoslavia, included pockets of national, linguistic and religious minorities. These groups had good historical reasons to fear for their survival as minorities. The governments of the victorious nations – the so-called ‘Principal Allied and Associated Powers’ – therefore required the new states to conclude special treaties for the protection of some of these minorities.¹⁸

The first treaty to establish this protective regime was the treaty between the Principal Allied and Associated Powers and Poland, signed at Versailles on 29 June 1919. It served as a model for those that followed. In these treaties, the states to which the minorities system applied undertook not to discriminate against members of the protected minorities and to grant them special rights necessary for the preservation of their national, religious or linguistic integrity, including the right to the official use of their languages, to maintain their schools and to practise their religions.

To ensure compliance, the treaties contained provisions similar to Article 12 of the Polish Treaty, which declared that ‘Poland agrees that the stipulations in the foregoing articles, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations/The League of Nations agreed to serve as guarantor of the obligations the parties assumed in these treaties. It exercised that function by developing a system for dealing with petitions by minorities charging violations of their rights. That system was relatively effective and quite advanced for its time. The petitions were reviewed by a Committee of Three of the League Council, the states concerned were given an opportunity to present their views and, when appropriate, the Permanent Court of International Justice was asked to render advisory opinions on disputed questions of law.¹⁹

Although some isolated minorities arrangements of the League era survive to this day, the League’s minorities system as such died with it. As we shall see, there has been a renewed interest in recent years in the protection of minorities.²⁰

Fourth, traditional international law recognized very early in its development that states had an obligation to treat foreign nationals in conformity with certain minimum standards of civilization or justice. Since this obligation was owed to the state of the individual’s nationality rather than to the individual victims, only the state of their...