Human Rights
Human Rights
Human rights and international law
The United Nations and human rights
Human rights in developing countries
The subject of this article is the international concern with human rights. The article cannot, however, concentrate exclusively on the activities of international organizations and on conferences which purport to promote respect for human rights. The instruments, institutions, and operations of the international organizations of our day have roots in the philosophical, constitutional, and legal developments of many nations spread over many centuries. The work on the international plane has in its turn had considerable influence on constitutional, legal, and political developments within nation-states, not least on the written law of many of the states of Asia, Africa, and the Caribbean which have recently acceded to independence.
Origins and basic concepts
The expression “human rights,” as a term of art, is of recent origin. Even in its French-inspired form “rights of man” (droits de I’homme), it goes back only to the last decades of the eighteenth century. The idea, however, of the law, or the lawgiver, defining and protecting the legal rights of men— mainly the mutual rights of the members of the community—is very old indeed. It would, perhaps, be somewhat farfetched to look for elements of the protection of human rights in the Code of the Babylonian king Hammurabi (about 2130 to 2088 B.C.), the most ancient code of law at present known. The sanctions which it provides in trying to protect worthy human-rights objectives (such as the administration of justice, marriage, and the family) are so disproportionately cruel that it is preferable to disregard this legislator in our context. However, as Rudolph von Jhering pointed out a century ago, the law of ancient republican Rome guaranteed to the Roman citizen (not to the foreigner or to the slave) the right to take part in the government of his country by participating in the exercise of the power of legislation, in the administration of criminal justice, in electing public officials, and even in having a share in the police power (Jhering 1852-1878).
An eminent American scholar has said (Yntema 1958) that the concepts of the Roman civil law, which were formulated by the Roman juridical genius in order to render justice in the mutual relations of individual men, are in essence a practical definition of the rights of man and a reasonable and authoritative criterion to which those who seek justice and protection of the inherent dignity of the human person can appeal. This holds true, in Yntema’s view, of the Roman law as it was applied on the continent of Europe and of the common law of the Anglo-Saxon countries. The common law and the civil law, so different in their institutions and techniques and, at the same time, so similar in their criteria of what is fair, offer an objective yardstick for judging conduct in terms of individual rights and freedoms. These systems have, of course, also tolerated institutions and practices which are inconsistent with the modern conception of a public order protecting human dignity. Nevertheless, through many centuries communities have existed where at least part of what are now considered to be fundamental human rights were well protected by elaborate and refined bodies of law.
In England of the seventeenth century battles were fought against the nonobservance of the ancient rights of Englishmen. Out of these struggles there came two great documents: the Petition of Right of 1628 and the Bill of Rights of 1689. These did not purport to define the basic human rights of all mankind. They were intended to give relief for specific grievances by limiting the power of the king and by strengthening the power of Parliament and of the courts. Their ideas and even their texts are, however, reflected in the work of the American and French revolutionaries of the eighteenth century: in the immortal passages of the American Declaration of Independence, in the Virginia bill of rights of 1776, in the French Declaration of the Rights of Man and of the Citizen, and in the American bill of rights.
In the course of the nineteenth and twentieth centuries, the example set by the United States and France of adopting bills of rights or otherwise embodying such rights in their constitutions, was followed on the entire continent of Europe, and the movement spread to the Americas, Asia, and Africa, but until very recently Britain and the British dominions and possessions remained aloof from this movement.
The Russian Revolution of 1917, while following the American-French precedent in the form of its pronouncements, gave it a fundamentally different substance. The difference lies not in the emphasis on economic and social rights in addition to the traditional political and civil rights. Such provisions are also found in other constitutions, for example, in the Mexican constitution of 1917, in the Weimar constitution of Germany of 1919, and in the constitution of the Republic of Spain of 1931. The difference between the Soviet pronouncements and their Western predecessors lies in the complete transformation of the meaning of political and civil rights.
This basic difference in concepts becomes clear when one compares the provisions of the American bill of rights with the corresponding provisions of the first Soviet constitution. The first amendment to the American constitution provides, among other things, that Congress shall make no law abridging the freedom of speech or of the press; the Russian constitution of 1918 “for the purpose of securing freedom of expression to the toiling masses,” abolishes all dependence of the press upon capital, and turns over to the working people and the poorest peasantry “all technical and material means for the publication of newspapers, pamphlets, books,” etc. The American constitution prohibits abridgment of the right of the people peaceably to assemble, while the Lenin constitution, in order to ensure complete freedom of assembly to the working class and to the poorest peasantry, offers “all premises convenient for public gatherings together with lighting, heating, and furniture.”
The Soviet constitution of 1936, while changing the wording, has, by and large, maintained this general approach. The Western constitutional ideas were designed to prevent interference with fundamental rights mainly, though not exclusively, by the public authorities. The Soviet concept does not treat of this aspect at all. It promises to make available technical facilities; it does not promise freedom in the choice of the purposes for which they will be used. In trying to draw conclusions from the existence in so many legal systems of catalogues of rights, one must keep in mind these differences in the basic concepts.
Human rights and international law
Attempts to seek a foundation for the rights of the individual in the law of nations go back to an early stage in the history of international law. The work of the Spanish theologian-lawyer Francisco de Vitoria—born 1480, died 1546—is perhaps the first attempt to use legal reasoning, moral principle, and political courage in support of a cause which we might consider as involving human rights as well as international law. He lectured about “the Indians recently discovered” and pleaded for their rights vis-a-vis the Spanish conquerors. The greatest figures in the literature of international law in the seventeenth and eighteenth centuries exercised a powerful influence on the growth of the concept of the inalienable rights of man. In 1950 Sir Hersch Lauterpacht characterized the close connection between human rights and international law by saying that “the law of nations, in itself conceivable only as being above the legal order of sovereign States, is not only a law governing their mutual relations but is also, upon final analysis, the universal law of humanity in which the individual human being as the ultimate unit of all law rises sovereign over the limited province of the State” (p. 120).
In the field of action, as distinct from scholarship, the international concern with human rights has manifested itself in two different ways: by so-called “humanitarian intervention” and by the adoption of international treaties.
In traditional international law it was assumed that a state had the authority to treat its own nationals as it saw fit. When, however, the ill-treatment by a state of its own population was of such an intensity that it shocked the conscience of mankind, other states, usually the great powers of the period, took it upon themselves to threaten, or even to use, force in order to come to the rescue of the oppressed population. While resort to this type of action was not infrequent, the doctrine underlying it has never become a generally recognized part of international law because of the abuse inherent in the concept of “humanitarian intervention.”
The protection of oppressed or endangered groups by international treaty started in the seventeenth and eighteenth centuries in matters of religious liberty. In the course of the nineteenth century the international treaty was used also to protect ethnic and racial groups and to combat the slave trade and slavery; in the twentieth century it has been used to improve labor conditions, to arrange for the supervision of the administration of mandated territories, and to provide under the supervision of the League of Nations for certain rights of racial, religious, or linguistic minorities in a number of states, mainly in central and eastern Europe.
The United Nations and human rights
Not until the world had passed through the tragic events of World War II and had witnessed the barbarous acts committed by the totalitarian regimes of that period was the universal organization of the international community, the United Nations, charged with some responsibilities in the matter of human rights, and its members pledged themselves to take action for the achievement of universal respect for and observance of human rights and fundamental freedoms for all.
The San Francisco Charter of 1945 through which the peoples of the United Nations reaffirmed their faith in “fundamental human rights” did not define these rights. The charter has made it abundantly clear, however, that one particular activity at least is repugnant to it: discrimination on the grounds of race, sex, language, or religion.
Nor has the charter established specific international machinery for the enforcement of its human-rights provisions, except for arrangements under the trusteeship system. But it has created organs of general and wide competence—the general Assembly, the Security Council, and the Economic and Social Council—and it has laid the foundations for the establishment of an unlimited number of subsidiary bodies, including commissions in the field of human rights.
The General Assembly, and to some extent also the Economic and Social Council, have not hesitated to use their general powers of investigation and recommendation to take action of varying character and intensity in such situations as violations of religious or political freedom in eastern Europe, race conflict in South Africa, forced labor in various parts of the world, infringement of trade union freedom, practices violating the human dignity of women in less developed communities, the status of Buddhists in South Vietnam, and many others. The fight against colonialism has been one of the characteristics of the international scene in the post-World War II world. Rightly or wrongly, the majority of governments have, to a large extent, identified the struggle against colonial domination with the struggle for human rights.
International bill of rights
Since the United Nations Charter had not defined human rights and had not created special international institutions for their enforcement, it was widely assumed in 1945 that this would soon be done in an “International bill of rights.” In 1947-1948 it was decided that this “bill” would consist of two or more documents: a declaration, a covenant, and “measures of implementation.” In 1948 the General Assembly proclaimed in a resolution the first part of this bill of rights as the Universal Declaration of Human Rights. The drafting of the other parts of the bill has not yet been completed; according to later decisions, they are to consist of two covenants, one on civil and political rights, the other on economic, social, and cultural rights, with provision for international supervision of their implementation. (By the end of 1963 all the general and substantive provisions of the two covenants had been approved on the General Assembly level, while—as of 1965 —the international procedural arrangements have still to be agreed upon.)
The declaration of 1948 is the only world-wide official document where the human rights of which the charter speaks are set forth. Its range is very wide. It proclaims not only the traditional political and civil rights and freedoms of its national predecessors but also “economic, social and cultural rights.” The declaration has, to some extent, filled the gap created by the delay in completing the covenants and acquired a status different from and more important than the one which was originally intended for it. It has been used by the United Nations, by other international organizations and conferences, and by governments as a yardstick to measure the compliance by governments with the obligations deriving from the charter in matters of human rights. It has penetrated into international conventions, national constitutions, and legislation, and even, in isolated cases, into court proceedings.
The technique of developing international standards by proclaiming instruments of the declaration type has been frequently used, the most potent post-1948 example being the Declaration on the Granting of Independence to Colonial Countries and Peoples, of 1960. Additional human-rights declarations were also adopted: the Declaration of the Rights of the Child, in 1959, and the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, in 1963. In other fields examples are the declarations on Permanent Sovereignty Over Natural Resources, 1962, and on Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963. Many more are in various stages of drafting and preparation.
Conventions on specific human-rights subjects
While the work of drafting the comprehensive covenants on human rights has been going on, the United Nations and its specialized agencies have produced a considerable body of treaty law on the subject of human rights by adopting and putting into force conventions on more limited subjects. Important examples are the Freedom of Association and Protection of the Right to Organize Convention, 1948; the Genocide Convention, 1948; the Convention on the Political Rights of Women, 1952; the Conventions on the Status of Refugees, 1951, and of Stateless Persons, 1954; the Conventions on the Reduction of Statelessness, 1961, and on the Nationality of Married Women, 1957; the Supplementary Convention on the Abolition of Slavery, 1956, and the Convention on the Abolition of Forced Labor, 1957; the Discrimination (Employment and Occupation) Convention, 1958, and the Convention against Discrimination in Education, I960; the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962; and the International Convention on the Elimination of All Forms of Racial Discrimination, 1965.
Regional arrangements
In the years during which the United Nations has been slowly working its way toward the completion of the world-wide covenants, much more rapid progress was achieved in western Europe. Under the auspices of the Council of Europe, the European Convention of Human Rights of 1950 came into being, supplemented by protocols of 1952 and 1963 and by the European Social Charter of 1961. By the convention, the 15 European states which are parties to it have undertaken to secure to everyone within their jurisdiction the rights which it defines—most of the traditional political and civil rights. The convention established two new organs to ensure the observance of the engagements undertaken by the parties: the European Commission on Human Rights and the European Court of Human Rights.
The existence of the court is significant primarily as a symbol. Its jurisdiction is very narrowly circumscribed. It was established in 1959, and by the beginning of 1965 only two cases had gone before it. The commission, however, has played an important and effective part. Ten of the European states (not including the United Kingdom and France, the latter not being a party to the convention at all) have accepted the right of individuals to petition the commission and to claim to be the victims of a violation of the convention by one of the parties. It has been the commission’s examination of petitions, and especially the examination of their admissibility, which offered the commission the opportunity to build up an impressive body of case law. And although in the over whelming majority of cases the commission has had to reject the petition, its work has transformed the abstract idea of the international protection of human rights into a concrete, tangible, day-to-day task. This operation has laid bare the formidable problems and pitfalls inherent in so novel an experiment.
For many years, the Organization of American States has tried to establish inter-American institutions for the promotion of respect for human rights. In 1948 the “American Declaration of the Rights and Duties of Man” was proclaimed at Bogota; conventions on political and civil rights of women and on territorial and diplomatic asylum were signed in 1948 and 1954 respectively. An Inter-American Convention on Human Rights providing for the establishment of a commission and a court of human rights, on the European model, was drafted by the Inter-American Council of Jurists in 1959. At the beginning of 1965 final action on the draft had not yet been taken by the political organs.
Program of practical action
The effectiveness and desirability of the international treaty as an instrument for the promotion of human rights was challenged early in the history of the United Nations. The most weighty challenge came in 1953 when U.S. Secretary of State John Foster Dulles stated that the new Eisenhower administration did not believe in “treaty coercion” and did not favor “formal undertakings” as the proper and most effective way to achieve throughout the world the goals of human liberty. As a consequence the United States declared its intention not to become a party to any covenant on human rights or to sign human-rights conventions of a more limited scope. As we have seen, the majority of governments has continued to hold that multilateral conventions have their place among the endeavors to give effect to the human-rights provisions of the charter. Those governments consented, however, to a new program proposed by the United States, provided it was adopted in addition to treaties and not instead of them.
Thus, in 1955-1956 the United Nations started a series of new activities: (1) periodic (triennial) reporting by states on developments; (2) studies of specific rights or groups of rights; and (3) advisory services in the field of human rights. A great number of governments have participated in the reporting procedure in the first three triennial cycles; the Commission on Human Rights has, however, not yet arrived at a final policy about the use to be made of the reports. The first of the studies was a world-wide inquiry and investigation into the status of the right to be free from arbitrary arrest, detention, and exile. The most fruitful branch of the program of advisory services has been the convening of mostly regional conferences (called seminars) to exchange views and experiences on important and topical problems, such as the protection of human rights in criminal law and procedure, the role of the police in the protection of human rights, or the status of women in family law. It was a series of seminars on judicial and other remedies against the illegal exercise or abuse of administrative authority which made the institution of the “ombudsman” known outside the Scandinavian countries and led to its acceptance in at least two other countries (England and New Zealand) and to its consideration elsewhere (Canada and some United States jurisdictions). One such regional conference, held in Kabul, Afghanistan, in 1964, was devoted to “human rights in developing countries,” a basic problem which deserves more detailed discussion (Seminar …1964).
Human rights in developing countries
Observance of human rights poses problems everywhere, and no country’s record, be it highly industrialized or economically underdeveloped, is faultless. In most of the countries which have acceded to independence only recently the problems are aggravated. Many of these countries have implacable enemies: poverty, ignorance, disease, and inertia. Western commentators have tended to underestimate the importance of illiteracy and ignorance, particularly in unsophisticated rural societies (De Smith 1964, p. 237). At the Kabul conference it was agreed that there could be no meaningful exercise of many human rights in a country where economic resources were scarce and the bulk of the population lived on the margin of subsistence. It was argued that in such matters as the development of the whole economy and the improvement of health, education, and housing, the state needed the necessary powers to implement its plans even though, meanwhile, the rights of individuals or groups might be temporarily curtailed. Some speakers wondered, however, whether the governments of some developing countries did not show an excessive concern for the internal and external security of the state and apply unnecessary restrictions on human rights.
Developing countries experience difficulties not only in regard to economic and social rights, the enjoyment of which clearly presupposes a certain economic standard, but also in regard to the “classical” civil and political rights. A basic prerequisite of the right to a fair trial is the existence of an adequate number of well-trained lawyers, and “crash programs” for their training were recommended at the Kabul conference. The scarcity of competent and efficient public officials is also an obstacle to progress in the human-rights field. An other specific problem of the underdeveloped world arises in the very sensitive area of “labor mobili zation.” In some countries, it was alleged at the conference, it is not yet possible to rely exclusively upon systems of voluntary labor to satisfy the basic needs of the nation. Recourse has sometimes to be had to certain forms of labor mobilization involving the compulsory removal of people to areas other than those of their residences. It was claimed, however, that such national labor services should be distinguished from the practices of forced labor which were forbidden by international conventions (see also Cowen 1964).
Neither the human-rights provisions of the United Nations Charter and the Universal Declaration of Human Rights nor the other treaties and declarations mentioned above have brought about the millennium. It is therefore not the purpose of this article to convey the idea that the rights set forth in these instruments are, in fact, respected and observed throughout the world. In 1952, in 1957, and, again, in 1962 the General Assembly of the United Nations reiterated that notwithstanding the obligations arising from the charter and notwith standing the Universal Declaration of Human Rights, violations of human rights continue to occur in various parts of the world, and that notwith standing some progress the situation in many parts of the world was unsatisfactory.
The task of making the protection of human rights general, permanent, and effective still lies ahead. This should not lead us, however, to belittle the progress that has been achieved on the international and national levels since World War II. Whatever the technical position might be in particular instances, and however difficult it might often be to achieve redress through international or national remedies, the traditional concept, that the way a state treats those subject to its power and jurisdiction is within its unfettered discretion, is a thing of the past. A vast but asymmetrical structure of international obligations has been built, some vague, some precise; and injunctions and exhortations have been issued, some authoritative, others less so. The fate of the individual may still in fact be at the mercy of his state, but it is also a matter of continuing and increasing international concern.
Egon Schwelb
[See alsoInternational Crimes. Other relevant material may be found inConstitutional Law, articles onCivil LibertiesandCivil Rights; International Law; International Organization.]
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