WEEK 1(1) INTERNATIONAL HUMAN RIGHTS LAW – HISTORY THEORY & PRACTICAL
FOUNDATIONS
where do human rights come from? – ideas
- rights derived from our humanity
- common principles
- derived from rules that have been provided by government
the human rights origin story: THE LINEAR PROGRESS NARRATIVE
- dominant
- presents the history of IHR as an exercise of progress and enlightened
- self-contained by one event that naturally led to the other
o logical, coherent and well-structured (neatly) from the beginning
o continual
o impacted by external events
- Samual Moyn: the linear progress narrative is an “idealist and decontextualized exercise in
teleological conceptual accumulation”
o search for beginning point of IHRL began in the aftermath to the 1948 UDHR
o fetishization about origin story in international law
o as inevitable
(1) international human rights law’s ethical, religious, and constitutional antecedents
- ‘what you need to do to live a good an virtuous life’, more collective in nature than
individualistic
- commandments, principles, and virtuous aspirations relating to rights and dutie
- focus on reason, harmony, and the development of a just society rather than the rights of the
individual
- prominence of Christian/Stoic teachings to the exclusion/in ignorance of alternatives
(2) the revolutionary, enlightenment declarative phase (the written precursors to modern IHRL)
- Magna Carta (1215): ”the greatest constitutional document of all times—the foundation of the
freedom of the individual against the arbitrary authority of the despot”
o Habeus Corpus
- English Bill of Rights (1689): set down system of parliamentary rule making (birth of modern
democracy in UK)
- Déclaration des droits de l’homme et du citoyen – Declaration of the Rights of Man and of the
citizen – 1789
o after French Revolution (individuals revolting against the power of the state)
o by Marquis de Lafayette, influenced majorly by Thomas Jefferson
o painting by Jean-Jacques-François Le Barbier presents the Declaration as the
crowning achievement of the Revolution
, o depicts “the allegorical figures of France breaking her chains and Fame under the eye
of God sit atop the Déclaration, which is associated with a red Phrygian cap, a snake
biting its tail and a laurel wreath, representing liberty, eternal unity and glory
respectively”.
- Toussaint-L’Ouverture and the Haitian Slave Rebellion – 1791-1794
- US Constitution and the Bill of Rights (1791)
- abolition of the slave trade – 1807 Act for the Abolition of the Slave Trade
- American Civil War (1861-65) and the emergence of IHL (Lieber Code 1863) and mechanisms
of international dispute settlement (Hague Peace Conferences of 1899 and 1907)
o Martens Clause: “Until a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that in cases not included in the
Regulations adopted by them, populations and belligerents remain under the
protection and empire of the principles of international law, as they result from the
usages established between civilized nations, from the laws of humanity and the
requirements of the public conscience”
o preambular paragraph, dealing with conduct of hostilities
o until concluded a comprehensive of rules applicable in AC we will look at action its
merits, they remain protected
- the establishment of the League of Nations in the aftermath of WWI – apparent commitment to
the protection of minority rights: art. 22 of the Covenant of the League: an exercise in
imperialistic paternalism
o ‘civilized nations’, until ‘uncivilized nations’ are civilized and able to govern
themselves, ‘civilized nations’ are entitled to govern that state for them
- establishment of the ILO: the advancement of economic and social justice through the
acknowledgment of international labour standards.
- Nuremberg IMT (1945)
- UN Charter (1945)
- UDHR (1948) and the International Bill of Rights (1966)
- Genocide Convention (1948)
- ECHR (1950)
and the rapid expansion that has followed since!!
Declaration of the Rights of Man and of the Citizen
- preamble: ‘The representatives of the French people, organized as a National Assembly,
believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of
public calamities and of the corruption of governments, have determined to set forth in a
solemn declaration the natural, unalienable, and sacred rights of man, in order that this
declaration, being constantly before all the members of the Social body, shall remind them
continually of their rights and duties; in order that the acts of the legislative power, as well as
, those of the executive power, may be compared at any moment with the objects and purposes
of all political institutions and may thus be more respected, and, lastly, in order that the
grievances of the citizens, based hereafter upon simple and incontestable principles, shall
tend to the maintenance of the constitution and redound to the happiness of all. Therefore the
National Assembly recognizes and proclaims, in the presence and under the auspices of the
Supreme Being, the following rights of man and of the citizen:…’
1. Men are born and remain free and equal in rights. Social distinctions may be founded only
upon the general good.
2. The aim of all political association is the preservation of the natural and imprescriptible
rights of man. These rights are liberty, property, security, and resistance to oppression.
3. The principle of all sovereignty resides essentially in the nation. No body nor individual
may exercise any authority which does not proceed directly from the nation.
4. Liberty consists in the freedom to do everything which injures no one else; hence the
exercise of the natural rights of each man has no limits except those which assure to the
other members of the society the enjoyment of the same rights. These limits can only be
determined by law.
Declaration of the Right of Woman (1791)
- drafted by Olympe de Gouges (executed because of her outspoken opinion)
o Member of the Society of the Friends of Truth
- “Mothers, daughters, sisters, female representatives of the nation ask to be constituted as a
national assembly. Considering that ignorance, neglect, or contempt for the rights of woman
are the sole causes of public misfortunes and governmental corruption, they have resolved to
set forth in a solemn declaration the natural, inalienable, and sacred rights of woman: so that
by being constantly present to all the members of the social body this declaration may always
remind them of their rights and duties; so that by being liable at every moment to comparison
with the aim of any and all political institutions the acts of women's and men's powers may be
the more fully respected; and so that by being founded henceforward on simple and
incontestable principles the demands of the citizenesses may always tend toward maintaining
the constitution, good morals, and the general welfare
- in consequence, the sex that is superior in beauty as in courage, needed in maternal
sufferings, recognizes and declares, in the presence and under the auspices of the Supreme
Being, the following rights of woman and the citizeness:
1. Woman is born free and remains equal to man in rights. Social distinctions may be
based only on common utility
2. The purpose of all political association is the preservation of the natural and
imprescriptible rights of woman and man. These rights are liberty, property, security,
and especially resistance to oppression
, 3. The principle of all sovereignty rests essentially in the nation, which is but the
reuniting of woman and man. No body and no individual may exercise authority which
does not emanate expressly from the nation
4. Liberty and justice consist in restoring all that belongs to another; hence the exercise
of the natural rights of woman has no other limits than those that the perpetual tyranny
of man opposes to them; these limits must be reformed according to the laws of
nature and reason…”
Universal Declaration of Human Rights
- at the request of the UN Commission of Human Rights the Declaration was drafted by eight
states (Australia, Chile, China, France, Lebanon, the USSR, the UK, and the USA) under the
leadership of Eleanor Roosevelt
- intended as an educational tool for the advancement of human rights
- took two years to draft and was extensively discussed in the UNGA (adopted on 10 December
1948)
- addresses both civil and political rights (arts 3-20) and economic, social and cultural rights
(arts 22-27)
o no provisions relating to group or collective rights
o but reflects the imbalance between those two types of rights
the human rights origin story: PRECISE TIMEFRAME THEORIES
- relies on identifying the moment of inception or the Big Bang moment for IHRL
- might focus on the European Renaissance or the Revolutionary period – take your pick and
run with it!
o example: J.S. Martinez, The Slave Trade and the Origins of International Human
Rights Law (2012): argues that modern IHLR flows from the British abolitionist
movement of the early 19th century that culminated in the 1807 Act for the Abolition of
the Slave Trade
- generally presents the emergence of the notion of human rights as part of a Western and
Christian tradition
o linked to notions of reason and ”civilization”
- Balandine Kriegel: “According to this myth, there arose, at the beginning of the eighteenth
century, a new island, this absolute beginning called the individualist doctrine of human rights.
Pure, smooth, round, healthy, and naked, this doctrine was like the noble savage…”
- the UN Charter and the UDHR are by far the most ubiquitous starting points in the literature
the human rights origin story: NEW REVISIONISM THEORY
- fundamentally rejects the linear progress narrative (way too convenient and neat) and
presents instead a discontinuity thesis
o discounts all accounts of HR that don’t conform
FOUNDATIONS
where do human rights come from? – ideas
- rights derived from our humanity
- common principles
- derived from rules that have been provided by government
the human rights origin story: THE LINEAR PROGRESS NARRATIVE
- dominant
- presents the history of IHR as an exercise of progress and enlightened
- self-contained by one event that naturally led to the other
o logical, coherent and well-structured (neatly) from the beginning
o continual
o impacted by external events
- Samual Moyn: the linear progress narrative is an “idealist and decontextualized exercise in
teleological conceptual accumulation”
o search for beginning point of IHRL began in the aftermath to the 1948 UDHR
o fetishization about origin story in international law
o as inevitable
(1) international human rights law’s ethical, religious, and constitutional antecedents
- ‘what you need to do to live a good an virtuous life’, more collective in nature than
individualistic
- commandments, principles, and virtuous aspirations relating to rights and dutie
- focus on reason, harmony, and the development of a just society rather than the rights of the
individual
- prominence of Christian/Stoic teachings to the exclusion/in ignorance of alternatives
(2) the revolutionary, enlightenment declarative phase (the written precursors to modern IHRL)
- Magna Carta (1215): ”the greatest constitutional document of all times—the foundation of the
freedom of the individual against the arbitrary authority of the despot”
o Habeus Corpus
- English Bill of Rights (1689): set down system of parliamentary rule making (birth of modern
democracy in UK)
- Déclaration des droits de l’homme et du citoyen – Declaration of the Rights of Man and of the
citizen – 1789
o after French Revolution (individuals revolting against the power of the state)
o by Marquis de Lafayette, influenced majorly by Thomas Jefferson
o painting by Jean-Jacques-François Le Barbier presents the Declaration as the
crowning achievement of the Revolution
, o depicts “the allegorical figures of France breaking her chains and Fame under the eye
of God sit atop the Déclaration, which is associated with a red Phrygian cap, a snake
biting its tail and a laurel wreath, representing liberty, eternal unity and glory
respectively”.
- Toussaint-L’Ouverture and the Haitian Slave Rebellion – 1791-1794
- US Constitution and the Bill of Rights (1791)
- abolition of the slave trade – 1807 Act for the Abolition of the Slave Trade
- American Civil War (1861-65) and the emergence of IHL (Lieber Code 1863) and mechanisms
of international dispute settlement (Hague Peace Conferences of 1899 and 1907)
o Martens Clause: “Until a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that in cases not included in the
Regulations adopted by them, populations and belligerents remain under the
protection and empire of the principles of international law, as they result from the
usages established between civilized nations, from the laws of humanity and the
requirements of the public conscience”
o preambular paragraph, dealing with conduct of hostilities
o until concluded a comprehensive of rules applicable in AC we will look at action its
merits, they remain protected
- the establishment of the League of Nations in the aftermath of WWI – apparent commitment to
the protection of minority rights: art. 22 of the Covenant of the League: an exercise in
imperialistic paternalism
o ‘civilized nations’, until ‘uncivilized nations’ are civilized and able to govern
themselves, ‘civilized nations’ are entitled to govern that state for them
- establishment of the ILO: the advancement of economic and social justice through the
acknowledgment of international labour standards.
- Nuremberg IMT (1945)
- UN Charter (1945)
- UDHR (1948) and the International Bill of Rights (1966)
- Genocide Convention (1948)
- ECHR (1950)
and the rapid expansion that has followed since!!
Declaration of the Rights of Man and of the Citizen
- preamble: ‘The representatives of the French people, organized as a National Assembly,
believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of
public calamities and of the corruption of governments, have determined to set forth in a
solemn declaration the natural, unalienable, and sacred rights of man, in order that this
declaration, being constantly before all the members of the Social body, shall remind them
continually of their rights and duties; in order that the acts of the legislative power, as well as
, those of the executive power, may be compared at any moment with the objects and purposes
of all political institutions and may thus be more respected, and, lastly, in order that the
grievances of the citizens, based hereafter upon simple and incontestable principles, shall
tend to the maintenance of the constitution and redound to the happiness of all. Therefore the
National Assembly recognizes and proclaims, in the presence and under the auspices of the
Supreme Being, the following rights of man and of the citizen:…’
1. Men are born and remain free and equal in rights. Social distinctions may be founded only
upon the general good.
2. The aim of all political association is the preservation of the natural and imprescriptible
rights of man. These rights are liberty, property, security, and resistance to oppression.
3. The principle of all sovereignty resides essentially in the nation. No body nor individual
may exercise any authority which does not proceed directly from the nation.
4. Liberty consists in the freedom to do everything which injures no one else; hence the
exercise of the natural rights of each man has no limits except those which assure to the
other members of the society the enjoyment of the same rights. These limits can only be
determined by law.
Declaration of the Right of Woman (1791)
- drafted by Olympe de Gouges (executed because of her outspoken opinion)
o Member of the Society of the Friends of Truth
- “Mothers, daughters, sisters, female representatives of the nation ask to be constituted as a
national assembly. Considering that ignorance, neglect, or contempt for the rights of woman
are the sole causes of public misfortunes and governmental corruption, they have resolved to
set forth in a solemn declaration the natural, inalienable, and sacred rights of woman: so that
by being constantly present to all the members of the social body this declaration may always
remind them of their rights and duties; so that by being liable at every moment to comparison
with the aim of any and all political institutions the acts of women's and men's powers may be
the more fully respected; and so that by being founded henceforward on simple and
incontestable principles the demands of the citizenesses may always tend toward maintaining
the constitution, good morals, and the general welfare
- in consequence, the sex that is superior in beauty as in courage, needed in maternal
sufferings, recognizes and declares, in the presence and under the auspices of the Supreme
Being, the following rights of woman and the citizeness:
1. Woman is born free and remains equal to man in rights. Social distinctions may be
based only on common utility
2. The purpose of all political association is the preservation of the natural and
imprescriptible rights of woman and man. These rights are liberty, property, security,
and especially resistance to oppression
, 3. The principle of all sovereignty rests essentially in the nation, which is but the
reuniting of woman and man. No body and no individual may exercise authority which
does not emanate expressly from the nation
4. Liberty and justice consist in restoring all that belongs to another; hence the exercise
of the natural rights of woman has no other limits than those that the perpetual tyranny
of man opposes to them; these limits must be reformed according to the laws of
nature and reason…”
Universal Declaration of Human Rights
- at the request of the UN Commission of Human Rights the Declaration was drafted by eight
states (Australia, Chile, China, France, Lebanon, the USSR, the UK, and the USA) under the
leadership of Eleanor Roosevelt
- intended as an educational tool for the advancement of human rights
- took two years to draft and was extensively discussed in the UNGA (adopted on 10 December
1948)
- addresses both civil and political rights (arts 3-20) and economic, social and cultural rights
(arts 22-27)
o no provisions relating to group or collective rights
o but reflects the imbalance between those two types of rights
the human rights origin story: PRECISE TIMEFRAME THEORIES
- relies on identifying the moment of inception or the Big Bang moment for IHRL
- might focus on the European Renaissance or the Revolutionary period – take your pick and
run with it!
o example: J.S. Martinez, The Slave Trade and the Origins of International Human
Rights Law (2012): argues that modern IHLR flows from the British abolitionist
movement of the early 19th century that culminated in the 1807 Act for the Abolition of
the Slave Trade
- generally presents the emergence of the notion of human rights as part of a Western and
Christian tradition
o linked to notions of reason and ”civilization”
- Balandine Kriegel: “According to this myth, there arose, at the beginning of the eighteenth
century, a new island, this absolute beginning called the individualist doctrine of human rights.
Pure, smooth, round, healthy, and naked, this doctrine was like the noble savage…”
- the UN Charter and the UDHR are by far the most ubiquitous starting points in the literature
the human rights origin story: NEW REVISIONISM THEORY
- fundamentally rejects the linear progress narrative (way too convenient and neat) and
presents instead a discontinuity thesis
o discounts all accounts of HR that don’t conform
