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International Human Rights Law - complete summary
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Weekly readings - International Human Rights LawLecture 1
1 History
Finding a precise point of departure for ‘a history of human rights’ is an inherently
controversial matter. It is probably quite unrealistic to credit any one culture, religion, or
region of the world with the origins of human rights.
1. There are many different threads to the human rights idea as it exists today, and it is
invidious to locate any one specific thread as the beginning.
2. The account that follows focuses especially on the origins of legal measures in the
field of human rights.
From the perspective of legal measures championing the rights of the common person against
the state, the starting point of the history of human rights is typically taken to be the Magna
Carta (1215). The enduring significance of the Magna Carta for the history of human rights
lies in the fact that it has come to be seen as a starting point - the beginning of the limitation
of absolute and arbitrary power of the sovereign.
Hobbes’ Leviathan spoke of a world in which there was an imperative for absolute power; it
needed to keep society from the very type of disorder that had afflicted England in the 1640s.
It envisaged few if any natural rights for the individual, for all were subservient to the ruler.
The ruler was expected to exercise his authority responsibly, and in accordance with the laws
of God and of nature, and in turn this placed theoretical restraints on his authority.
→ concept of the ‘social contract’.
Locke carried this concept much further. He advocated the natural liberty and equality of
human beings. He was therefore a strong advocate of natural rights, and in particular the right
to property in the broad sense identified here, and it was the state’s duty to provide an
environment in which such rights could flourish.
- Within Locke’s writing therefore were the seeds to the idea of modern democratic
governance, although how much Locke expounded the democratic ideal through the
idea of government by consent should not be exaggerated.
Montesquieu → thoughts on the structures of government and his emphasis on the separation
of powers.
Rousseau → advanced the theory of the social contract.
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.
Bentham → natural rights counted for nothing on their own. To mean something, they
required the protection of the law. Natural rights were dangerous since they fueled
revolutions such as those in France and so ultimately caused great social damage.
1
, - Burke → the French Declaration was a ‘monstrous fiction’. It inspired ‘false ideas and
vain expectations into men destined to travel in the obscure walk of laborious life’ and
had ‘serve[d] to exaggerate and embitter that real inequality, which it can never
remove.’
Prior to the 1940s there was no real conception in international law of the idea that one state
had a right to interfere in the sovereign affairs of another state as regards how it treated its
own citizens.
In the 20th 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.
→ International Convention on the Abolition of Slavery and the Slave Trade (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’.
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.
→ the UN Charter (1945).
3 Critiques
Bentham dismissed the predecessor of human rights as ‘nonsense upon stilts’. Does this mean
that utilitarianism is irretrievably opposed to human rights? On the one hand, the logic of
utilitarianism is such that it cannot accept the idea of absolute and inalienable rights, which at
first sight seems central to human rights orthodoxy. On the other hand, individual rights being
obviously conducive to the happiness of a great number of individuals, utilitarianism can act
as a strident defender of human rights.
2
,Utilitarianism= ethical philosophy that posits that an action must be judged morally by
reference to the welfare it produces. It holds that the good act is the one that maximizes
happiness.
Many utilitarians are thus wary of the concept of individual sacrifice for the collective good
which utilitarianism supposedly supports. Utilitarianism does not accept the idea that some
rights are absolute and inalienable.
Marx → the right to liberty was the right to do anything which does not harm others, that is,
the liberty of man ‘as an isolated monad… withdrawn into himself.’
- Man is condemned to lead a double life. This is more serious since citizen is put at the
service of the bourgeois. Man is thus alienated from his true self which is to be a
species-being where the individual interest corresponds to everyone else’s interest.
Recognizing that different societies hold different values need not logically lead to the
conclusion that all these different values and practices must be tolerated. The observation that
cultures produce different moral norms does not say anything about the respective value of
these norms.
The universality of human rights is not a fact. At best, human rights universalism is a theory.
It is a worthwhile project, directed at discussing, agreeing upon, and practicing principles of
governance that should benefit all individuals equally, but it also has a dark side that would
be either disingenuous or naive not to recognize.
Can the argument that human rights remain predominantly male in their conception and
implementation be dismissed in an age when women have successfully fought for the rights
to vote, be educated, manage their property, open a bank account, exercise a profession, keep
their nationality upon marriage with a foreign man, claim equal pay for equal work, and so
on? The affirmation in the law of women’s entitlement to equal rights is assuredly a
momentous achievement. Feminist analyses demonstrate human rights have been and
continue to be male-oriented.
- The feminist critique to which human rights have increasingly been subjected does
not mean that an agreement has emerged as to what constitutes, and what should be
done in respect of, a human rights situation analyzed as problematic for women.
- At the core of the liberal feminist strand is the assumption that women are equal to
men, with the consequence that women must not in principle be excluded from the
rights enjoyed by men.
The post-colonial critique has at its core that there were direct connections between the
Enlightenment universalizing project and the history of European and Western conquest. A
mild post-colonial critique of human rights shows human rights not to have been completely
immune to the colonial logic which long governed the world. Deeper critiques go further than
this and argue that human rights are irretrievably entrenched in a colonial logic.
3
, - Post-colonial perspectives show how the supposedly universal and all-encompassing
liberal tradition in which human rights were developed nurtured stark differences
between ‘us’ and ‘them’ on the basis of arguments about civilization, cultural
backwardness, and racial superiority.
- Moreover, even if the presumed existence of an essential difference between us and
them is no longer referred to in the explicit language used in the formal colonial era,
this arrogance is not something of the past but something which carries on, albeit in
new forms.
The case against human rights (Posner, the Guardian)
We live in an age in which most of the major human rights treaties have been ratified by the
vast majority of countries. Yet it seems that the human rights agenda has fallen on hard times.
The truth is that human rights law has failed to accomplish its objectives. There is little
evidence that human rights treaties have improved the well-being of people. The reason is
that human rights were never as universal as people hoped, and the belief that they could be
forced upon countries as a matter of international law was shot through with misguided
assumptions from the very beginning.
The central problem with human rights law is that it is hopelessly ambiguous. The ambiguity,
which allows governments to rationalize almost anything they do, is not a result of sloppy
draftsmanship but of the deliberate choice to overload the treaties with hundreds of poorly
defined obligations.
In truly international human rights institutions there is a drastic lack of consensus between
nations. To avoid being compelled by international institutions to recognize rights that they
reject, countries give them little power. The multiple institutions lack a common hierarchical
superior and thus provide conflicting interpretations of human rights, and cannot compel
nations to pay attention to them.
What’s right with human rights? (Simmons)
→ critique on Posner
Posner launches his critique of international human rights treaties.
- He describes them as too hazy;
Posner’s complaints about how poorly international law and institutions work are well taken,
but he never confronts the questions: compared to what?
Contrary to Posner’s conclusion that the ‘’actual impact on the conduct of government is …
unclear,’’ recent research suggests the opposite may be the case: As ratification of the ICC
statutes has spread and the Office of the Prosecutor has begun to signal its resolve by
commencing investigations, indicting alleged wrongdoers, and issuing warrants, episodes of
intentional civilian killing by government agents have in fact noticeably declined.
4
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