constitutions of young states in Asia and Africa recently liberated from colonial rule.
Distinct from the emphasis placed upon civil and political rights in America and France (in what might be described almost as a laissez faire ideology), the Soviets saw the function of the state as providing individuals with other kind of rights. They considered it necessary to modify the liberal programme so as to include in it a greater emphasis on economic equity, labour standards, and the right to education.25 For the Soviet, responsibility for generating economic goods, compensation for labour, restriction of the workday, and paid holiday, was held not by the individual but by the state. This socialist ideology gave birth to a second generation of rights: economic, social, and cultural rights. Another familiar feature of socialism is the emphasis placed upon collectivism. This socialist emphasis, taken together with an antagonism between rich and poor, later influenced the proclamations of collective rights developed by poor countries that wished to avoid some of the social imbalances sometimes associated with an individual rights system. Most states have now opted for constitutions of the western type: the socialist vision of society has largely been dismissed. However, the contribution of socialist thought to human rights history and philosophy has been extensive and hugely important. Indeed, socialist thought plays a critical role in ongoing tensions between north and south, in the debate between notions of commutative and distributive justice, and in antagonist disputes between rich and poor. Indeed, concrete forms of constitutional individual rights are currently taking shape in the international field: one speaks now about the constitutionalization of international law.26
Bartolomé de las Casas (1484 [?]-1566),27 Francisco Suárez (1548-1617),28 and Francisco de Vitoria (1483 [?]-1546).29 Another example is the defence put forward by Gentili (1552-1608) of a common law of humanity whose violation injured everyone30; an historical expression of the universal validity of a certain type of moral claim.
Classical international law also emerged in this period, even if the fathers of classical international law saw little scope for protection of the individual as a rule of international law. Rather, the focus on interstate relations and sovereignty was not easily expanded so as to include the interests of the individual. Instead, the relation among states was conceived in an egoistic manner, as a system in which nations pursued only their own interest: the state possessed moral autonomy such that relations among nations were governed not by any reference to the individual but rather by reference to the state and the principle of pacta sunt servanda. Notwithstanding the absolutist character of the incipient nation state, the founding fathers of international law did admit interference in domestic affairs in order to protect the individual in cases of a grave breach of human morality. From such beginnings emerged the doctrine of humanitarian intervention. At the time in which the New Political Order was conceived, with the rights of the individual at its centre, such basic human considerations obviously formed part of the study of international relations.
2 The notion of intervention
The classic doctrine of humanitarian intervention aimed at protecting the individual beyond national borders. This theory is found in the works of Grotius (1538-1645)31 and Vattel (1714-1767).32 According to such thinkers, a state (or states) could lawfully use force in order to terminate a ruler's incommensurate abuse of their population. The right
27 Ishay, above note 6 p. 165 quoting Bartolomé de las Casas in defense of the Indians 1548. "(...) if Sepúlveda's opinion (that campaigns against the Indians are lawful) is approved, the most holy faith of Christ, to the reproach of the name Christian, will be hateful and detestable to all the peoples of that world to whom the world will come of the inhuman crimes that the Spaniards inflict on that unhappy race (…)"
28 Spanish philosopher and theologian.
29 Spanish philosopher and theologian.
30 James, above note 13, p. 25.
31 Fernando R. Tesón, “Humanitarian Intervention –An Inquiry into Law and Morality”, 1997 (2nd edition) p.56, Hugo Grotius in De iure belli ac pacis 1646 Ch xxv “if a tyrant (…) practices towards his subjects, which no just man can approve, the right of human social connexion is not cut off in such a case”.
32 Ibid.; p. 57 at footnote 8 quoting Emerich De Vattel in The law of nations or the principles of natural law applied to the conduct and to the affairs of nations and sovereigns (1758) "if a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him; if, by his unsupportable tyranny, he brings on a national revolt against him, any foreign power may rightfully give assistance to an oppressed people who asked for its aid.
to intervene on humanitarian grounds formed a part of just war doctrine and an extension of the Lockeian right to resistance against domestic political power.33 The theory is grounded in some minimal limits to the sovereignty of states, such that nations must be regarded as comprising free persons with moral autonomy who live together in a state of nature.34 However, nations should also be restrained by moral limits. These moral limits came eventually to be set at extreme tyranny. Even if restricted to egregious cases, the importance of this doctrine is that, to protect the individual, it legitimizes intervention vis-à-vis states. By contrast, another group of natural lawyers were against force as a means of inculcating truth into a foreign state.35 Based on Hegel's conception of the state as analogous to the moral individual, thinkers of that time proposed that in the same way that individuals were free, states, too, should be prohibited from interfering in domestic affairs.36 Certainly, the doctrine of humanitarian intervention was and is often misused by states motivated, for instance, by commercial or political interest. However, when correctly used it seeks always to maintain a sense of universal community founded upon universal morality.37
Today, the language of humanitarian intervention forms part of the dogma of contemporary international law. Theories that support interventionism rest on the belief that states possess moral authority to intervene under certain conditions. What is of particular significance here is that no one contests that morality should directly and urgently inform legal action.38 Note, too, that even the dogmas of international law are dominated by a species of positivism that clearly recognizes the moral cogency of certain principles in the current world order.
33 Ibid., p. 55.
34 Ibid., p. 55 at foonote 6 citing Vattel
35 Ibid., p. 58 at footnotes 10-12 Referring to Christian Wolff in “Ius gentium Methodo Scientifica Pretactus” Sec 258, at 132 and sec 259 at 132 .
36 Ibid., p. 66
37 "The validity of humanitarian intervention is not based upon nation-state-oriented theories of international law (…) It is based upon an antinomic but equally vigorous principle, deriving from a long tradition of natural law and secular values: the kinship and minimum reciprocal responsibilities of all humanity, the inability of geographical boundaries to stem categorical moral imperatives, and ultimately, the confirmation of the sanctity of human life, without reference to place transient circumstance." in W M Reisman, "Humanitarian Intervention and Fledgling Democracies" Fordham International Law Journal 1994, Vol. 18 No. 3, p. 749 et seq. Cited in Tesón, above note 31, p. 148.
38 Antony D'Amato, In the Foreword to the 1st edition of Fernando Tesón's book "Humanitarian Intervention- An Inquiry into Law and Morality" "Professor Tesón's argument is a demonstration of morality informing the law. Morality is not something apart from the law; rather, moral imperatives and legal imperatives continually intersect each other over time because they are a function of the same human aspiration: to live in peace in world society", Tesón, above note 31, foreword (D’Amato).
In today's world, arguments in support of state intervention in cases of a gross violation of human rights are still justifiable under the doctrine of intervention.39 Although states prefer to proceed with the consent of the United Nations they may still perfectly well intervene in the internal affairs of another country without it, as in the Iraq War of 2003.
Nowadays, the post-World War II international community recognizes international human rights, social progress and peace (the Preamble of the UN Charter), and a reluctance to use force (Article 2(4) of the UN Charter). However, in Chapter VII of the UN Charter "[A]cts with respect to threats to Peace, Breaches of the Peace and Acts of Aggression" are considered an exception to the prohibition of the use of force established in Article 2(4) of the Charter. Specifically, Articles 41 and 4240 constitute a formal recognition of a far broader scope of humanitarian intervention, including not only the use of military force to preserve peace but also, and preferably, measures other than those based on force, such as a partial or even complete interruption of economic relations. It has been said that implied in the meaning of intervention is "a peremptory demand for positive action or abstention—a demand which, if not complied with involves a threat of recourse to compulsion in some form."41 On this basis, we could redefine intervention in very broad terms, as the use of international mechanisms to help victims of serious human rights deprivations.42
Also worthy of mention in a history of human rights is International Humanitarian Law.
Some even argue that Human Rights Law has its origins in the laws for the conduct of just war (jus in bello) and worries about minimum standards of safety and preservation for individuals.43 The relationship between Human Rights Law and International Humanitarian Law has evolved from separatism to progressive interpenetration.44 These two branches of law emerged from distinct beginnings even as today they are seen also to enjoy areas of close interaction.45 However, our interest here does not lie in the
39 Thomas Buergenthal, "International Human Rights in a Nutshell", 1995 (2nd edition), p. 4.
40 Charter of the United Nations, adopted in San Francisco 26 June 1945, 3 Bevans 1153.
41 Hersch Lauterpacht "The International Protection of Human Rights" “The International Protection of Human Rights” Académie de Droit International, Recueil des Cours/ Collected Papers of the Hague Academy of International Law 1947 Vol. 70 No. 1, p. 19 Discussing the meaning of intervention which includes the opinions of Oppenheim and Verdross.
42 Similarly Tesón, above note 31, p. 147.
43 Francisco F Martin, Stephen J. Schnably, Richard J. Wilson, Jonathan S. Simon, Mark V. Tushnet, (eds.) “International Human Rights and Humanitarian Law: Treaties, Cases & Analysis”, 2006, p. 2.
44 Robert Kolb, “Human Rights and Humanitarian Law” in Max Planck Encyclopedia of Public International Law, R Wolfrum (ed.), 2012, p. 1040.
45 Ibid.
concrete rules of International Humanitarian Law and Human Rights Law, but rather the underlying objective of protecting the individual beyond its political and legal domestic system. International Humanitarian Law today is responsible for developing minimum standards for the treatment of persons in regions of armed conflict; it can be considered as the human rights component of the law of war.46 The major part of this branch of international law47is today codified in the four Geneva Conventions (1949) and its Protocols (1977).48 International Humanitarian Law also covers the laws of international armed conflict that relate to rules that establish the means and methods of warfare laid down in the "Hague Law"(1899 and 1907).49 The objective of Human Rights Law is to foster the respect, protection and promotion of human rights necessary for a life to be lived with dignity. Today, these branches of law are progressively merging together because of a shared emphasis on protection of the individual from arbitrary action and inhumane treatment. International Humanitarian Law is a body of rules whose objective is to minimize violence; as with human rights, it is believed that limiting violence is the very essence of civilization.50 The relationship between Human Rights Law and Humanitarian Law has been studied from different perspectives: separatist, complementarist, and integrationist. With the political transformations experienced post-1945, this relationship has mainly evolved in an integrationist direction that, in a shared emphasis on the worth of the individual, acknowledges a core aspect common to both branches.
3 Examples
a Slavery
The next relevant example in the history of modern international human rights comes in the context of the slave trade in the first quarter of the 19th century. Between the 16th and 19th centuries slavery was commonplace. Ideologies of racism, apartheid, and segregation, were legal around the world.51 The abolitionist movement grew in strength as Enlightenment ideals combined with an improvement in economic and industrial
46 Buergenthal, above note 39, p. 17.
47 Ibid., p. 249 Humanitarian law also consists of some earlier instruments on the subject as well as various rules of customary international law.
48 See International Commitee of the Red Cross, under War and Law available at:
http://www.icrc.org/eng/war-and-law/index.jsp last visited November 2012
49 Kolb, above note 44, p. 1040.
50 Henckaeters, Jean-Marie; Doswald-Beck, Louise. Costumary International Humanitarian Law, 2005, Vol. 1 Rules.
51 Lillich et al, above note 12, p. 4.
conditions. The Slave Trade Act in Britain52 and the Act to Prohibit the importation of Slaves in the United States53 constitute early legal examples of attempts to abolish the slave trade. This abolitionist spirit mirrored general international opinion, marking a turning in man's moral image of himself.54 In the Congress of Vienna (1814-1815), the Eight Power Declaration acknowledged that the slave trade was repugnant to the principles of humanity and universal morality.55 The most famous passage of the Declaration is considered to be the most important early development in an international law based on human dignity.56 In the course of the 19th century, slavery and the slave trade were gradually abolished in most European and American countries. Simón Bolívar, in his message to the Congress of Bolivia, described slavery as the "negation of all law and a sacrilege."57 In the 20th century an outstanding advance occurred within the League of Nations: a Temporary Slavery Commission was established to report on slavery practices to the Council of the League. The year 1926 saw the drafting of the Convention on the Abolition of Slavery and the Slave Trade. Its signatories were compelled to end slavery and forced labour in all its many forms.58 Thirty years later, the United Nations published its 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and the Institutions and Practices Similar to Slavery.59
52 An Act for the Abolition of Slave Trade, Act of Parliament of UK, passed on March 25th, 1807 in Lillich et al, above note 12.
53 Act to Prohibit the Importation of Slaves, Act of the US Congress, passed on March 2nd, 1807 in Lillich et al, above note 12.
54; Lillich et al, above note 12, p. 6.
55 Prior to the Treaty of Vienna, the Treaty of Peace and Amity between Britain and US of 24 December 1814 and proclaimed on 18 February 1815 expressed in its Art. X that "whereas the traffic on slaves is irreconcilable with the principles of humanity and justice, and whereas both His Majesty and the United States are desirous of continuing its efforts to promote its entire abolition, it is hereby agreed that both the contracting parties shall use their best endeavours to accomplish so desirable an object." See also Alfred Verdross and Bruno Simma, "Universelles Völkerrecht", 1976, p. 583 "die erste Urkunde, die sich mit dem Schutze der Menschen als solcher in Friedenzeiten befasst, bildet die Erklärung der am Wiener Kongreß versammelten Mächte "sur l'abolition de la traite des nègres" von 8. Februar 1815, in der sie "à la face de l'Europe" ihre Entschlossenheit bekunden, den Handel mit Negersklaven "comme repugnant au principes d'humanité et de morale universelle", sobald als möglich "par tous les moyens à leur dispisition"
zu unterdrücken. See also Shelton, above note 4.
56 Jochen Frowein, A, "Human Dignity in International Law" in The Concept of Human Dignity in Human Rights Discourse D Kretzmer, E Klein (eds.), 2002, p. 122.
57 Simón Bolívar, Message to the Congress of Bolivia (May 25, 1826) cited in Lillich et al, above note 12.
58 The Slavery Convention adopted on Geneva, 25 September 1926, entered into force 9 March 1927, 60 LNTS 254.
59 The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and the Institutions and Practices Similar to Slavery was adopted by Conference of Plenipotentiaries convened by Economic and Social Council resolution 608 (XXI) of 30 April 1956 done at Geneva on 7 September 1956 entering into force 30 April 1957. 266 UNTS 3 Status of ratification in United Nations Treaty Collection, available at:
http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XVIII~4&chapter=18&Te
b The status of the individual
In the 19th century, international law consisted of a body of rules that regulate the conduct of states in their intercourse with one another, that were based upon sovereignty, equality of states, and non-intervention. That is, states alone were subject to international law. Thus, the individual was merely an object of these international rules. The individual thus lacked international legal personality; individuals were considered to belong to a state, the mere object of international law. Accordingly, if one state harmed a citizen of another state, it was considered to be an injury to the latter state's interest; this latter state could then ask for the reparation of such injury. The right to compensation existed only at the level of the state and not with the injured individual.60 Only in exceptional cases was there a limited recognition and guarantee of individual rights, i.e. in the context of criminal law, piracy and slave trade under the universality principle. In accordance with this principle of universality, an offender could be punished by international tribunal or by any state. The application of this principle has since been extended through customary law to torture, genocide, war crimes, crimes against peace, crimes against humanity, and non-discrimination.61 One profoundly important consequence of World War I was the creation in 1919 of the League of Nations. This organization did not establish a universal but instead a local or regional legal system62 that served later as the model for the United Nations. The League of Nations recognized international human rights: first, through the rights of the minorities; second63, through the system of mandates64; and, third, through the
mp=mtdsg3&lang=en Last visited 25.April.2012. Status: 123 State Parties, 35 Signatories -3 of them have not ratified yet-
60 James, above note 13, pp. 36-37.
61 Ibid., p. 34.
62 André N. Mandelstam, “La Protection Internationale des Droit de l’Homme” Académie de Droit International, Recueil des Cours/ Collected Papers of the Hague Academy of International Law 1931 Vol.
38 No.4, p. 6.
63 Rüdiger Wolfrum and Christiane Philipp (eds.) United Nations: Law, Policies and Practice 1995 Vol. 2 p.892 The system for the protection of minorities provided for a set of rules focused on securing ethnic, religious and linguistic minorities and equal and special protective measures dealing with language, religion and culture. The League of Nations acted as a guarantor of the obligations assumed by the parties to the treaties through a petition system. The Treaty between the Allied and Associated Powers and Poland, signed at Versailles on June 29, 1919 served as a model for subsequent treaties of the same nature. The rights of minorities with the United Nations system are acknowledged in Article 27 of the International Covenant on Civil and Political Rights, as follows: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."
64 Ibid., p.892 The system of mandates under the League of Nations was created by virtue of Article 22.
The underlying principle of this system was that the wellbeing and development of peoples constitute a
establishment of the International Labour Office.65 Such developments may be taken as evidence that, already at that time, the dogma of absolute sovereignty was losing importance in international law; it was giving way to protection rather of the individual and, specifically, the individual as the embodiment of the common interests of the international community. It has been suggested that universal human rights at this point crossed a threshold from a moral to a positivist domain.66 Be that as it may, granting international human rights a formal legal status and value was clear recognition of the central importance of human morality.
c Labour Standards
The creation at the heart of the League of Nations of the International Labour Office was a result of the old struggles of the working class and the influence of the new ideologies born from economic advancement.67 The intention was to achieve a durable peace through the adoption of certain minimum standards for conditions of work. Such aspiration was inspired by sentiments of justice and humanity68; that is, to achieve universal peace through social justice.69 The principles and scope of activity listed in the preamble establishing the organization are still very important today; they retain their validity.70 Article 23 of the Covenant of the League of Nations refers to human rights in that it addresses concerns in respect of fair and human conditions of labour for men, women, and children.71 The ILO constitution came into being in 1919. It has been amended several times, one of the most important changes being the inclusion of the Philadelphia Declaration (1944) concerning the ILO's aims and purpose. The International Labour Organization was granted the status of a specialized agency of the
sacred trust of civilization. After World War II this system was transformed into the Trustee System/
Trustee Council of the United Nations.
65 Art 392, Treaty of Versailles, 28 June 1919, 2 Bevans 235.
66 Madelstam, above note 62, pp. 227-229.
67 Shelton, above note 4.
68 Part XIII Labour, Section I Organization of the Labour, Treaty of Versailles, There it is acknowledged that:
"whereas (...) an improvement of those conditions (of labour) is urgently required: as, for example, by the regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own recognition of the principle of freedom of association, the organisation of vocational and technical education and other measures;
Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries;"
69 Part XIII Labour, Section I Organization of the Labour, Treaty of Versailles.
70 Wolfrum & Philipp, above note 63, Vol. 1 p.714.
71 Art 23, Covenant of the League of Nations, 225 Parry 195 in Treaty of Versailles