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Summary International Human Rights Law
- Instelling
- Rijksuniversiteit Groningen (RuG)
Summary of International Human Rights Law by Moeckli (4th edition).
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Summary 'International Human Rights Law'Chapter 1 History
1 Introduction
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2 Human Rights on the Domestic Plane
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.
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 of 1215.
It had little to do with the rights of the common man, and much to do with securing rights for
powerful barons against an overbearing king of England. The enduring significance of the
Magna Carta, and other similar documents of this age, 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.
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.
,The bill of 1689 was no bill of rights in the sense that would be understood in modern
democratic societies today. 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.
The Bill of Rights of 1689 therefore saw the assertion of human liberty progress a stage further
but, above all, its significance lay in its confirmation of a fundamental idea: that the absolute
power of the state should be limited for the sake of the individuals within it. This idea had been
prevalent in the contemporary writing of Thomas Hobbes and especially John Locke.
2.1 The Enlightenment Thinkers
Hobbes’ Leviathan → A level of abuse on the part of the ruler vis-à-vis his subjects might almost
be expected; it was the price to be paid for the greater collective gain for a society that was
protected from the much greater evil of mass disorder.
Hobbes’ Leviathan is therefore credited with introducing the concept of the ‘social contract’, that
is, the idea that power to govern is to some extent derived from the consent of the governed.
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, his life, liberty and estate, against the injuries and attempts of
other men’. 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.
But it is surely Locke we recall first when we read from the preamble to the Universal
Declaration of Human Rights (UDHR) of almost three hundred years later: ‘Whereas it is
essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of law’.
On the continent of Europe, the major historical contribution to ideas concerning the state and
its relationship with the individual came in the eighteenth century.
‘The Enlightenment’ → Montesquieu’s contribution remains best known for his thoughts on the
structures of government and his emphasis on the separation of powers. Rousseau advanced
the theory of the ‘social contract’.
2.2 Human Rights Transformed into Positive Law
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. 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. 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’).
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’.
Today, a study of the French Declaration would form a good starting point for any course on
human rights and, no doubt, stimulate much debate.
In 1791 the first ten amendments to the Constitution came into force having been ratified by
three-quarters of the states. The (US) Bill of Rights, as it became known, began in now
celebrated tones: ‘Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble and to petition the government for a redress of
grievances.’
2.3 Nineteenth-Century Challenges to Natural Rights
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’. His point was that natural rights
counted for nothing on their own. To mean something, they required the protection of the law.
The nineteenth century also saw an altogether different type of opposition to natural rights in the
writing of Karl Marx. As he saw it, it was found completely wanting for in reality the rights of man
were the privileged rights of the bourgeoisie. According to Marx, rights were for egotistical men;
they did not truly free the individual at all.
2.4 Domestic Protection of Human Rights
We have seen, then, that for domestic law the human rights story really began in the
seventeenth and eighteenth centuries. 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. The inferior position of women both in society generally and in law stirred women’s
, rights campaigners such as Mary Wollstonecraft (Vindication of the Rights of Women, 1792).
Moreover, at this stage the idea of judicial protection of human rights was virtually non-existent.
The USA was quite exceptional in that judicial protection of constitutional safeguards came in
1803 with the US Supreme Court’s watershed decision in Marbury v Madison, holding that it had
an inherent power of judicial review by which it could even declare acts of Congress
unconstitutional. Nonetheless, this was of limited use for individuals in human rights terms, for at
this stage the Bill of Rights was an instrument that applied overwhelmingly at the federal, not the
individual state, level. Of course, the individual state constitutions guaranteed rights, as noted
already, but slavery was flourishing in many such states in the late eighteenth century and would
continue to do so for decades into the nineteenth century.
3 Human Rights on the International Plane Before the Second World
War
Even if within domestic law there was a greater recognition of individual human rights by the
start of the twentieth century, this was certainly not the case for international law. 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.
3.1 International Humanitarian Law and the Abolition of the Slave Trade
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.
Slavery became illegal in England in 1771 after Somersett’s case.36 The UK and the USA
subsequently passed legislation at the start of the nineteenth century to outlaw the trade of
slaves within their own jurisdictions, which included the British colonies. Yet international action
was required to abolish the trade altogether, and here progress was slow.
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