(p. 8) 2. Historical background
Human rights have roots deep in the mists of time yet the term itself dates back really to international discussions preceding the founding of the United Nations. Since 1945, the scope of human rights has been elaborated and the concept now permeates the fabric of international society. The origins of international human rights lie in philosophical discussions evolved through the centuries. Indeed, human rights represents the modern interpretation (and an expansion) of the traditional concept of the rule of law. However, this chapter will provide a basic introduction by placing international human rights in a historical context with an emphasis on developments to the eve of the foundation of the United Nations. What is perhaps most striking when considering this historical background is the relevance of events today—history all too often repeats itself.
2.1 Origins of international human rights
There are divergent views as to the origins of human rights: the existence of a body of basic rights can be traced back to the early thirteenth century in Europe and has featured in various predominantly European schools of thought since that time. In many respects its origins lie in philosophical discourse with concepts such as liberty and even ‘rights’. It is linked to the constitutional concept of the rule of law—the inherent limitations on the exercise of absolute power by a sovereign, parliament, or government. The rule of law in turn links to theories of natural law and religious doctrines. Accordingly, some argue earlier religious scripts embodying rules and regulations governing the conduct of society are the true foundation of human rights. The basic tenets of all faiths prescribe boundaries of conduct, often in norms of religious law. Many aspects of such laws are still applied today—the Shari’a laws of many Islamic States, for example. Although such sources tend to emphasize duties of faith followers, political and religious traditions worldwide proclaimed certain ‘rights’ for peoples: the right to expect their rulers to be fair and reasonable, with limited authority in respect of the private lives and property of their subjects. An example can be found in England, UK: Magna Carta of 1215 enshrined a number of principles which now fall within the broad ambit of human rights, including the principle of equality before the law, a right to property, and an element of religious freedom, albeit such rights extended only to nobles and virtually none remain in force today. The Declaration of Arbroath (Scotland) of 1320, in contrast, spoke of the profound right to liberty, rating it above glory, honour, and riches. Some minimal (p. 9) rights were mentioned in the 1688 Bill of Rights of England and Wales though with little substance. Many customary and traditional systems around the world embed (though may not articulate in written form) ideals on rights and freedoms enjoyed by individuals and often the corollary of duties owed to others.
There are, perhaps, two principal legal theories: the liberty-based approach prevalent in common-law jurisdictions and the rights-based approach of civil legal systems. Both address the relationship between the individual and the State, attempting to regulate interference by the State in an individual’s private life. In essence, the liberty theories demand that the individual is free from arbitrary State interference while the rights theories are based on the inherent rights of peoples, which the State must respect.
A more pragmatic approach is also regularly posited: States must respect human rights in their deeds and actions; protect human rights in laws and policies; and fulfil their treaty obligations.
2.2 The eighteenth century: revolutions and rights
Some of the great philosophers of eighteenth- and nineteenth-century Europe focused on the idea of a body of so-called ‘natural rights’, rights which should be enjoyed by all human beings. These great thinkers developed a corpus of basic rights to be afforded to mankind. Many of those rights found legal expression at the close of the eighteenth century. The United States and France, respectively, adopted statements on rights when proclaiming the independence of the former British North American colonies and when establishing the first French Republic following the 1789 revolution. The French Declaration of the Rights of Man (1789) and the United States’ Declaration of Independence (1776) and Bill of Rights (ie, the first ten amendments which were ratified in December 1791) articulate various rights to be enjoyed by all citizens including liberty and equality.
The French Declaration was inspired by the United States’ Declaration of Independence (though predates its Bill of Rights). It begins by stating that ‘Men are born and remain free and equal in rights’. The concept of liberty is defined in Art 4—‘Liberty consists in being able to do anything that does not harm others’. Other Articles relate to the exercise of the rule of law, including fair trial processes (Arts 6–10). Inevitably, given the nature and origins of the French revolution, the right to free communication of ideas and opinions and the right to manifest such opinions subject only to the limitations of established law and order are guaranteed (Arts 10–11) while matters of taxation are also addressed (Arts 13–14). The Declaration remains a cornerstone of the French Constitutions including the present 1958 version. The French Declaration had considerably wider impact, serving as a guide for constitutions of other European and former colonial countries as well as the European Convention on Human Rights itself (Council of Europe).
The American Bill of Rights refers to freedom of religion (Amendment I), various requirements relating to due process and the right to a fair trial (Amendments V, VI, VII, VIII), and freedom of person and property (Amendment IV). These rights all have modern equivalents in human rights instruments. Perhaps more controversial in modern society is the right to bear arms (Amendment II) although the (p. 10) text refers to it for the purpose of civil defence, ‘necessary to the security of a free State’. These rights remain the foundation of the United States Constitution today, applied regularly in the national courts.
2.3 The role of international law
Originally, international law was, literally, the law of nations. It was exclusively concerned with the interaction of States—diplomatic relations and the laws of war. Individuals were considered the property of the State in which they lived. Until comparatively recently, the manner in which a State treated its own nationals was thus an issue within the exclusive competence of that State, subject to neither external review nor international regulation. The multilateral treaties discussed in this section were the exceptions.
Since time immemorial, customary international law has recognized that some individuals deserved protection, often greater protection than that afforded to the nationals of a State. For example, States have long recognized a duty of care to strangers traversing over their land—for over two thousand years, it has been recognized that emissaries and official State messengers enjoy a right of passage through territories other than their own. This was essential in the days before international post, telephones, and the internet. Similarly, customary international law has decreed the parameters within which wars should be conducted, and the treatment to be accorded to non-combatants. This is now referred to as international humanitarian law. The other principal area of law to be discussed in this chapter is the historic protection of minorities. The work of the League of Nations and the provisions of the peace treaties concluded after the First World War were crucial in developing this area of law. In each of these areas, custom and practice has been codified and consolidated into a written tabulation of rights.
International law has undoubtedly shaped human rights. The legal statement of rights is, in some respects, a codification of the rule of law by lawyers and legal draftsmen. International human rights, however, goes beyond the boundaries of general international law. There is an overlap between the traditional effect of international law (relations between States) and the traditional effect of national and constitutional law (relations between the State and individuals) with human rights allowing the international community to determine some limits to what a State may do to its nationals. This has always been controversial with some States reluctant to endorse what they regard as interference in the internal affairs of State.
The traditional approach to recognition of individual rights based the individual’s ‘rights’ on the proprietorial rights of the State. This is best illustrated by reference to the law of aliens which prescribed a certain standard of treatment States were obliged to accord nationals of other States.
2.4 The law of aliens
Hersch Lauterpacht, reworking Oppenheim’s seminal Treatise on International Law, analyses the law of aliens, concluding that international law essentially imposes an obligation on States to ‘grant certain privileges’ to foreign Heads of States (p. 11) and diplomatic personnel in return for which each State has the right to expect its citizens to be granted certain rights by foreign States when on their territory. International law imposes the duty on States; it is the internal laws of the State which realize the rights. The law of aliens facilitated international trade and travel, promoting the development of a more global economy. There are obvious similarities to diplomatic law (discussed at 2.5).
2.4.1 Reparations and reprisals
With the growth of the nation State and the consequential migration of man, the position of the alien underwent a fundamental change: an alien became perceived as representing a facet of the international persona of his or her State of origin. Consequently, an injury to an alien would be construed as an indirect injury to the State of origin for which reparation (in the form of reprisals) could and would be sought. There are a number of cases originating from this. This principle of a wrong to a person being equitable to a wrong to the State is the basis of the nationality ground of jurisdiction in international law—a State has the right to take up any claim on behalf of one of its nationals at the international level.
This theory has also received judicial cognition: in the Panevezys Railway case (Estonia v Lithuania) a precise formulation was provided at p 16: ‘in taking up the case of one of its nationals … a State is in reality asserting its own right to ensure, in the person of its nationals, respect for the rules of international law’. As the decision as to whether to bring an international claim lay solely within the discretion of the State, an individual could not compel a State to act on his or her behalf. Before the individual submitted his or her claim to the government, the injured person must have exhausted the local remedies available in the host State, thereby affording that State an opportunity of redressing the injury sustained. (The same requirement is found in modern law—an individual claiming a violation of a right enshrined in a human rights instrument is usually required to take reasonable steps to exhaust all domestic remedies before bringing the matter to the attention of the international/regional bodies.)
The growing number of international commissions and tribunals established to adjudicate in such matters further evidenced the institutionalization of the treatment of disputes of this nature. The Jay Commissions, constituted pursuant to the 1794 Jay Treaty concluded by the United States and Great Britain, are an early example of this. National and international claims commissions became the accepted modus operandi of settling such international disputes. However, with the advent of the Industrial Revolution, a codification of acceptable State responses to attacks on their nationals was required.
2.4.2 The two schools of thought
The increase in inter-State communications and relationships prompted the development of a corpus of law on the status of aliens. There are two recognized schools of thought as regards the treatment of foreigners by a host State: the national or equality treatment standard and the International Minimum Standard of Treatment.
126.96.36.199 The national or equality standard of treatment
Many developing countries, particularly in Latin America, adhered to this school of thought. In essence, a foreigner should be accorded only the same rights, however (p. 12) few or great in number, as a citizen of the host State. In other words a visitor to a State should not expect to be afforded more protection than a national of that State—that is, there should be no positive or negative discrimination towards the alien. To quote a leading exponent of this school of thought, Carlos Calvo: ‘aliens who established themselves in a country are certainly entitled to the same rights of protection as nationals, but they cannot claim any greater measure of protection’ (Calvo, C (in trans), at p 231).
Calvo’s doctrine was accepted by the First International Conference of American States and later encapsulated in the Montevideo Convention on the Rights and Duties of States 1933, Art 9: ‘nationals and foreigners are under the same protection of the law and the national authorities, and foreigners may not claim rights other than or more extensive than those of nationals’.
This view poses one main problem: it negates public international law in that it deprives a State of the right to protect its nationals outside of her territorial boundaries. Consequently, it could be justifiable for a State to deprive a foreigner of all human rights if its own nationals were similarly deprived. This theory has never been universally accepted. Indeed, judicial disapproval of the Calvo Clause is reported as early as 1926 (North American Dredging Company Case (US/Mexico)), before the Montevideo Convention’s adoption.
188.8.131.52 The International Minimum Standard of Treatment
Adherents to this school of thought, on the other hand, believed that there was a minimum universal standard of treatment which must be observed by all States in their treatment of foreigners. This minimum standard applied irrespective of the treatment accorded to a State’s own nationals.
In many regards, this theory is an expansion of that proposed by Emmerich de Vattel. As Elihu Root states:
each country is bound to give to the nationals of another country in its territory the benefit of the same laws, the same administration, the same protection, and the same redress for injury which it gives to its own citizens, and neither more nor less: provided the protection which the country gives to its own citizens conforms to the established standard of civilisation.
Root, E, p 521
A minimum standard of treatment, ‘the established standard of civilisation’, was thus identified. Concepts of ‘civilisation’ are, of course, rarely part of contemporary international law due to the imperialistic, paternalistic overtures. The Permanent Court of International Justice recognized the International Minimum Standard of Treatment in the Case Concerning Certain German Interests in Polish Upper Silesia (Merits), noting the existence of a generally accepted international law respecting the treatment of aliens which applied irrespective of any adverse or contrary domestic legislation.
184.108.40.206 Recognition of the International Minimum Standard
The doctrine of an International Minimum Standard is also articulated in various international instruments. An early example is the Convention respecting the Conditions of Residence and Business and Jurisdiction, concluded between Britain, France, Italy, Greece, Japan, and Turkey in Lausanne on 24 July 1923.
(p. 13) By virtue of the International Minimum Standard of Treatment, a foreigner may enjoy a greater degree of protection than a national of the State in which he or she is either visiting or temporarily resident—effectively there may be positive discrimination. Indeed the individual in the capacity of an alien enjoys a larger measure of protection under international law than would be accorded to a mere national of a State.
This recognition of a basic standard of treatment to be accorded to foreigners predates international recognition of the corpus of law known today as human rights. The historic International Minimum Standard comprises, inter alia, the right to personal liberty and the right to equality before the law—today both are recognized as fundamental human rights.
2.4.3 Contemporary law on aliens
It is interesting to note that the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live 1985, adopted by a consensus of the General Assembly, was intended to prescribe the basic rights of aliens which would, by custom, become binding international law. In accordance with the provisions of international law, declarations of the General Assembly are not legally binding though naturally they enjoy considerable moral force. The Declaration purports to considerably extend the International Minimum Standard of Treatment. With the high profile accorded to the plight of migrants in Europe and South East Asia, its provisions are ever more relevant though other instruments including the Refugee Convention and regional instruments on migration, refugees, and displacement are also relevant. However, such categories of persons are specifically recognized in contemporary international law and have specific rights and freedoms. For obvious reasons, their State of origin is unlikely to act on their behalf.
Although the law of aliens may be considered a distant relation of human rights, insofar as it recognizes the right of aliens to a certain standard of treatment, it does so solely because of the designation of an alien as a part of that State. Thus a violation of the rights of an alien is viewed as a wrong against a State. The individual has no right of action per se. Echoes of this can be seen in contemporary human rights instruments—inter-State action is usually provided for in most treaties, but is not popular. Similarly, the original Council of Europe system (discussed further in Chapter 6) had no locus standi for individuals; rather, complaints were brought to the court by either the then Commission or by a Member State. It must be remembered that the law of aliens, by definition, only applies to an individual in a State other than that of nationality. Human rights, in contrast, apply equally to all individuals without distinction, and can usually be enforced against one’s State of nationality/residence.
2.5 Diplomatic laws
The other related situation in which individuals were accorded some rights under international law on the basis of being viewed as a part of the State is diplomatic law. The law of aliens is a close relative of the law relating to diplomatic status. Kings and emperors traditionally corresponded by messenger—their emissaries and couriers (p. 14) have always been subject to special protection. In Ancient Egypt, the pharaoh’s messengers and diplomatic envoys carried with them the seal of the pharaoh, production of which guaranteed the carrier free and unhindered passage throughout the region. Later, in the Roman Empire, the emperor’s certificate of free passage would be carried by all messengers and would likewise guarantee safe passage.
2.5.1 The development of diplomatic law
Heads of State have always enjoyed a degree of freedom. They effectively ‘owned’ the territory concerned. As a consequence, they could bind the State at the international level, accepting and denouncing treaty and other international obligations. The very root of international law is the relationship between States. As the human manifestation of the State, fair treatment of Heads of State was not so much a courtesy as essential. International relations function in part on the basis of reciprocity, fair treatment of a Head of State by another State assured such fair treatment of that State’s representatives in the host State in return. Diplomatic law functioned initially as an extension of this—diplomatic personnel clearly represent the sovereign and thus should enjoy some of the freedoms and rights accorded to the sovereign. Diplomatic personnel were also entitled to a degree of national legal immunity in order to enable them to discharge their functions on behalf of the sending State. An injury to such a State representative was taken to be an injury to the head of State and thus to the State itself. States were immune from prosecution in other States thus diplomatic personnel should enjoy the same level of immunity. The 1920s marked the apex of the rule of absolute State immunity.
This is reflective of the traditional territoriality principle—the diplomatic personnel were considered to be acting within the territory of the sending State, even when discharging duties within a host State.
2.5.2 Modern diplomatic law
In contemporary international law, the law on diplomatic and consular immunity is codified in the Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963. It represents the culmination of one of the International Law Commission’s greatest attempts at consolidation and progressive development of customary international law. Modern thought has veered away from the theory that diplomatic personnel enjoy certain rights and privileges by virtue of a territoriality principle to the current approach, as adopted by the International Law Commission, of ‘functional necessity’—that is, individuals require rights and privileges in order to perform, unhindered, the functions expected of them. The International Court of Justice considered this in, for example, Case concerning United States Diplomatic and Consular Staff in Tehran, in 1980.
By providing a set of rules for the conduct of diplomatic affairs, the international community has acknowledged that a certain group of people requires certain rights in order to perform their functions. It is for this reason some authors allude to diplomatic law as related to modern human rights. Today diplomatic immunity extends beyond State personnel; those people exercising some human rights functions on the part of the United Nations, for example, are supported by some diplomatic privileges. The 1946 Convention on the Privileges and Immunities of the (p. 15) United Nations enshrines these principles. This allows UN staff and certain international experts to carry out their research unhindered by fear of national prosecution (see, for example, the 1999 International Court of Justice Advisory Opinion on Difference Relating to the Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights). Obviously this only applies to the individuals when carrying our duties on behalf of the State or an international organization; private liability can arise for personal activities (violations of national laws such as theft or murder, for example). There is a body of case law on this area of law elaborating on the immunities and privileges of diplomatic and UN personnel.
2.6 The laws of war—international humanitarian law
An individual’s rights are most likely to be compromised when States engage in armed conflict. Deployment of military force remains within the discretion of States. However, the exercise of powers of war and peace inevitably impact on individuals within the State, both those involved in fighting and civilians. As international conflict (war) was a characteristic of international relations, it was perhaps inevitable that a distinct body of law developed to regulate conduct in such times. Many ancient religious texts advocate respect for adversaries in time of battle. St Augustine, writing in the fourth century, referred to a ‘just war’. Other religious tests make similar provisions for those fighting. By the late thirteenth century, the Viqayet of Spain enshrined a code of conduct for warfare. Bilateral treaties increasingly governed armed conflict, albeit frequently on a war-by-war case-specific basis. Contemporary law on the matter is part custom and part codification in a number of bilateral and multilateral treaties. This is the law of war. International humanitarian law, in contrast, aims at protecting individuals during and after hostilities. It is based on centuries of customary international law. In articulating rights to be accorded to all individuals, it clearly has an impact on human rights.
The law in this area comprises two sets of law: the law of war as currently codified by the Hague Conventions, which primarily articulate the rights and obligations of belligerents and humanitarian law; and the Geneva Conventions, which strive to safeguard the basic rights of non-combatants and civilians. In all circumstances, international humanitarian law represents a balance between the exigencies of combat situations and the generally accepted laws of humanity.
2.6.1 The laws of war
The primary codification of the laws of war appears in the seminal work of Hugo Grotius, De jure belli ac pacis, in the early seventeenth century, whilst the first legal instrument (the Lieber Code of 1863) applied to Union combatants in the American Civil War. It was not until the turn of the century that the first multilateral Convention on the subject was concluded. The year 1899 marked the first International Peace Conference. Czar Nicholas II invited representatives from major European and global States to convene at The Hague. Unfortunately, the Conference was an unqualified disaster—no agreement was reached on the primary objective of securing a real and lasting peace. On a more positive note, (p. 16) a Permanent Court of Arbitration was agreed upon to facilitate the peaceful settlement of inter-State disputes and, perhaps more importantly, international humanitarian law was born. The plenipotentiaries agreed on various texts which established the parameters for the conduct of warfare. The Convention with respect to the Laws and Customs of War on Land and associated regulations codified and developed existing law on the conduct of hostilities.
In 1907, the Hague Convention and Regulations were adopted, remaining in force to the present day. The laws of The Hague (the laws of war) establish the rights and obligations incumbent on belligerents. All military personnel are expected to know and to act in accordance with these principles. Some attempts were made in the Hague Conventions to protect the civilian population, though the Geneva Conventions expanded this considerably.
2.6.2 Humanitarian law
In 1864, the Swiss Government convened a diplomatic conference, chaired by Henry Dunant and attended by sixteen States, including the founders of the International Red Cross Committee. The participants adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field. This Convention enshrined rules to protect the victims of war and wounded military personnel as well as introducing a system for identifying medical personnel, lodgings, and transport by means of the now-famous red cross emblem.
Following the First World War, the 1929 Geneva Convention relating to the treatment of prisoners of war provided some elements of protection for such prisoners. However, these provisions were found lacking during the Second World War. Civilians and military personnel were killed in equal numbers. The Geneva Conventions of 1949 therefore sought to articulate a code of international humanitarian law which would ensure no repeat of this human devastation.
There are four Geneva Conventions which have since been supplemented by two 1977 Protocols. The Conventions relate to the amelioration of the condition of wounded and sick armed forces in the field and at sea, the treatment of prisoners of war, and the protection of civilians in time of war. The Protocols purport to strengthen the protection of victims of international and non-international armed conflicts. This represented a response to the increasingly violent national struggles for liberation which characterized international relations in the latter part of last century. The Geneva Conventions of 1949 and the two Protocols, over 500 Articles in total, remain in force today, the central instruments of international humanitarian law.
Certain principles underpin humanitarian law: persons who are not involved in any hostilities should be treated humanely and cared for without discrimination; captured combatants must be treated humanely and must not be tortured or treated violently; should they be tried before a court of law, regular judicial procedures must be employed; no superfluous injury should be inflicted during the course of hostilities; the civilian population should not be the subject of military attacks. These principles remain fundamental to humanitarian law, according to the International Court of Justice (Case concerning Military and Paramilitary Activities in and against Nicaragua).
To guarantee the securement of the rights incorporated into the Geneva framework, signatory States must ensure these general principles are understood by all (p. 17) members of their armed forces. Those failing to comply with their duties face prosecution. The Tribunals established to try war criminals involved in hostilities in Rwanda and the former Yugoslavia have applied many Articles of the Geneva Conventions and alleged infringement of the Geneva Conventions can result in a referral for investigation by the Office of the Prosecutor at the International Criminal Court (eg, the situations in Darfur and Libya have been referred by the Security Council).
2.6.3 Modern humanitarian law and laws of war
The Geneva Conventions and the two Protocols thereto remain the cornerstone of contemporary humanitarian law. However, a number of other conventions and protocols have added to and updated the law. For example, cultural property is protected by the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Biological and toxic weapons are prohibited by a 1972 Convention. This theme is followed by the 1980 Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects: mines, booby traps, non-detectable fragments, incendiary weapons, and laser weapons are covered. Then 1997 saw the high-profile adoption of a Convention on the prohibition of the Use, Stockpiling, Production, and Transfer of Antipersonnel Mines and on their Destruction. This was a reaction to the increased use of such weapons and the significant killing and maiming of civilians.
The United Nations Charter is clear in its condemnation of recourse to the use of force in international relations (Art 2(4)), following on from the Kellogg–Briand Pact of 1928 (the General Treaty for the Renunciation of War). However, hostilities are a sad reality of the new global order, with civil wars, violent national liberation (p. 18) movements, and United Nations-sanctioned interventions ensuring that there is a continuing need for laws governing conduct in combat situations. Those individuals who breach the fundamental laws of war now run an additional risk of being prosecuted under international criminal law.
International criminal law
The killing fields of Rwanda, Cambodia and the Balkans stand silent witness to the brutality that passed unchecked by an international system lacking both the will and the vision to act. We can and must do better.
Ki-Moon Ban, from www.un.org/reform/responsibility.shtml
International criminal law has developed considerably since the trials in Nuremberg and Tokyo after the Second World War. Ad hoc tribunals have brought some of the perpetrators of the atrocities in Rwanda and the Balkans to justice, while the Extraordinary Chambers in the Courts of Cambodia are commencing proceedings against indicted members of the Khmer Rouge regime. Each body is acting after the events. Similarly, the International Criminal Court exercises jurisdiction over those implicated in current atrocities when the State in question has ratified the Rome Statute and the person can be brought to trial. However, is the will and vision to act to pre-empt atrocities, mentioned by former UN Secretary-General, Ki-Moon Ban, evident?
Those aspects of humanitarian law which articulate rights for individuals clearly are related to human rights, as are those protecting cultural property. However, human rights afford protection to all individuals in peace and war whilst humanitarian law strives to protect individuals in combat situations, governing the conduct of hostilities and the treatment of both civilians and captured combatants (prisoners of war). Most human rights documentation acknowledges that certain human rights are inviolable whilst the enforcement of others may be suspended during emergency situations (discussed in Chapter 10). International humanitarian law ‘fills the gap’, providing a minimum standard of treatment for all during hostilities. As such, it is human rights law for application in the most extreme situations.
From the early nineteenth century, international moves have been made to eliminate slavery. In a comparatively short period of time, customary international law condemned slavery. This arguably demonstrates a degree of recognition of State responsibility for individual safety and security. Moreover, they demonstrate an inherent recognition that the right to liberty and personal freedom is fundamental to individuals. Freedom from slavery remains an inalienable human right today—see Chapter 14.
2.7.1 The development of the law
In 1772, Lord Mansfield gave his seminal judgment in the Somerset case that no man could be a slave on British land: ‘[slavery is] so odious, that nothing can be suffered to support it’ (p 19). Internationally, the 1815 Congress of Vienna declared the slave trade as repugnant to both morality and humanity. During the early nineteenth century, the British government entered into a series of bilateral treaties to secure the right to search vessels on the high seas which were suspected of being involved in slave trading. Treaties were concluded with, inter alia, Spain, Sweden, the Netherlands, Russia, Prussia, France, and the United States. The Brussels Conference of 1890 reached agreement on the searching of suspected vessels within designated areas of African seas. This work was continued by the League of Nations which developed further multilateral conventions on the subject. A Slavery Commission was established by the League Council in 1924. Members were asked to eradicate slave trade practices through sale, exchange, and gifts. Situations of forced labour and ‘coercive’ adoptions were also condemned. It must be recalled that the jurisdiction of the League extended to a number of mandated and colonized territories, including large tracts of Africa. Even as late as 1937, the League was reporting incidences of slave dealings.
The customary international law was codified in 1926 by the Slavery Convention with the 1956 Supplementary Convention on the Abolition of Slavery, the Slave (p. 19) Trade and Institutions and Practices Similar to Slavery expanding the law, clearly prohibiting slavery. It should be noted that other ad hoc conventions strove to suppress trafficking in women and children.
2.7.2 The modern law of slavery
Today the international community, deeming it an international crime, officially abhors slavery, and slave trading is aggressively condemned. Nevertheless there remain numerous examples of individuals being subjected to practices analogous to slavery today. Debt bondage, human trafficking, and people smuggling are all examples. The modern law pertaining to slavery and liberty of persons is considered in Chapter 14.
2.8 Minority rights
While the laws prohibiting slavery provide one example of recognized rights of individuals against the deprivation of human dignity, the evolution of minority rights goes further, providing a more comprehensive set of rights. Minority rights provide groups of individuals who are a minority in a State with certain rights enforceable against the State exercising power over them. Minority rights represent early recognition of the need for individuals to be protected against State interference as opposed to alien and diplomatic law, which were based on a reciprocity of the exercise of State powers, the individuals almost incidentally benefiting therefrom.
The idea of a specific body of law to protect minorities found favour in nineteenth-century Europe, home to a large number of ethnic, religious, and linguistic groups. Minority rights are a precursor to international human rights. The reason for the shift in focus from minority rights to universal rights is discussed in Chapter 3 at 3.9.
2.8.1 The treaty approach to minorities
At the Congress of Vienna in 1815, Austria, Prussia, and Russia declared their intentions of respecting the nationality of their respective Polish subjects: ‘The Poles, who are respectively subjects of Russia, Austria and Prussia, shall obtain a Representation and National Institutions regulated according to the degree of political consideration, that each of the Governments to which they belong shall judge expedient and proper to grant them’ (Final Act of the Congress of Vienna, Art 1). The declaration was a statement of intent thus binding only morally. No State or organization had the power to supervise the action of the States; thus enforcement was within the discretion of each State. The Treaty of Berlin of 1878 is similar—it imposed on the disintegrating Ottoman Empire and its Balkan successors a duty to respect the lives, properties, and religious liberties of their populations.
Most of the major treaties of the time worked on the principle that the Great Powers could implement such guarantees in their agreements with the weaker (p. 20) States by dint of their perceived strength. However, with respect to, inter alia, these provisions, Inis Claude has written that:
[t]he system could have worked satisfactorily only if the great powers had acted together; in practice, each power concerned itself primarily with its own material or political interests, and the Concert of Europe seldom functioned as an instrument for the protection of the collective protection of minorities.
Claude, I, National Minorities: An International Problem, p 8
2.8.2 The link to nationalism
Minority protection before the two world wars may be linked to the contemporaneous rise of nationalism. Individuals began to appreciate the uniqueness of their national, cultural, and social identity. Accordingly, national groups developed individual concepts of nationality based on their unique traits. Karl Marx considered nationalism a ‘characteristic of bourgeois society’ which had outlived its usefulness. However, through time, these identifying characteristics formed the basis of distinction between ethnic groupings in the State. Those groups which possessed different characteristics from the majority of the population came to be regarded as ‘minorities’ and were, in general, proud of their distinctive cultural heritage.
Thus the idealistic goal was not always achieved; the polyglot empires of Central and Eastern Europe tended to respond to the challenge of nationalism by striving to eradicate the distinctive characteristics of their subjects, establishing a common pattern of nationality upon their heterogeneous population. Such attempts to impose an artificial uniform nationality upon all groups (irrespective of their cultural and ethnic origins) in a territory proved, ultimately, unsuccessful.
Indeed, State-imposed oppression of nationalistic expression frequently had the opposite effect from that desired—strengthening the determination of the minority to preserve all aspects of its cultural identity. Nationalism became a major factor in European politics escalating the deterioration of the international order, which culminated in the outbreak of the First World War. Nationalistic propaganda became a weapon in the fight for power.
Contributory to the outbreak of the hostilities in the First World War, nationalism remained prominent as an international problem between the wars. Distinct protection of ethnic/national groups first crystallized into law during the closing stages of the First World War. At the Peace Conference many nationalist aspirations were settled as the ‘Big Four’ States sought to give some substance to the ‘One Nation, One State’ concept of statehood.
2.8.3 After the First World War
Europe’s internal frontiers were essentially redrawn following the conclusion of the First World War. Many potential and actual minority problems were alleviated at this time. However, the seeds of other problems were, as time was sadly to corroborate, sown. The Allied statesmen were faced with a daunting task at the Peace Conference. In the main, the object of the protection of minorities instituted by the treaties was political not humanitarian. The aim was to avoid the many inter-State frictions that had occurred as a result of the frequent ill-treatment of national minorities. By internationalizing the problem of minorities via the treaties, the Allied (p. 21) and Associated Powers sought to secure the guarantee of minority rights in States, thus alleviating the possibility of neighbouring States intervening in domestic affairs. The rationale was sound: national minorities could not disturb international peace and security if their national problems were resolvable in an established international forum (the League of Nations) and thus neighbouring States were not required to resort to covert or open hostilities in defence of a minority group.
This was the first time that nationalist aspirations were considered in the drawing of State boundaries. It was the normal practice, as evidenced at The Congress of Vienna of 1815, for the views of rulers to be regarded as paramount. In 1919, at Versailles, the views of the population were considered, with plebiscites being held as deemed appropriate and beneficial to the interests of the population in question.
2.8.4 The Peace Conference
The Peace Conference settlement effectively encapsulated the ‘mood of the moment’ with a near-total restructuring of Central Europe. Such was the general antipathy towards Germany and Austria, and the ‘superpower’ status assumed by the victorious Allies, that redrawing the European boundaries was approached with vigour, not trepidation. The objectives of rendering the Central Powers politically and economically impotent, while settling many of the nationalist aspirations declared by groups throughout Europe (thereby lessening the threat of further international strife), were realized only to an extent.
Two main systems were established with a view to alleviating Europe’s nationalistic problems: transfers of groups from one State to another and reorganizing boundaries. Part of the aim of the Peace Settlement was to decimate the large powers whose actions had been at the root of the war and who were deemed to be the aggressors as well as losers. By reducing the size of these State-empires, their power was considered diminished and the likelihood of future transgressions minimized due to the umbrella supervision of the Allies over the new States. The enforcement of the imposed minority guarantees by the organs of the League of Nations will be examined at 2.8.5.
Plebiscites enabled the population to decide under which State’s rule they wished to live. Where a group was unavoidably renationalized, minority treaties were drawn up or minority rights enshrined in the relevant treaty in an attempt to protect the group from majority oppression. The break-up of the Austro-Hungarian, Turkish, and German Empires resulted in large areas of Europe being ‘up for grabs’—these areas were either given to the Allied States or combined and enlarged to form new States such as Yugoslavia and Czechoslovakia. Various schemes were implemented to alleviate the human problems caused by this reorganization. For example, the plebiscite held in Schleswig (an area lying north of the Kiel Canal of Germany and at the southern end of mainland Denmark) resulted in Humptrup being granted to Germany and Saed going to Denmark in reflection of the majority wishes of the residents of the area.
220.127.116.11 Forced transfers
Forced transfers of minority groups have been hailed as ‘the most radical means of preventing national minorities’ (De Azcarate, P, p 16). As a remedy for specific (p. 22) problems, this method may be justified. However, as a general remedy for ailing nations, the liberal use of forced population transfers exhibits the failing of society to organize itself in such a way that people may live together in harmony irrespective of race, language, or religion. The very diversity of attitudes and ideas which forced transfers of populations might suppress is often a rich source of vitality and strength in a State. Homogeneity never has been, nor ever can be, an ideal for the organization of human societies.
18.104.22.168 Transfers of populations
Transfers of populations were effected in areas where the new boundaries resulted in substantial numbers of ethnically separate people residing in a State other than that of their nationality. Population transfers were effected, for example, between the Greeks and Bulgarians. Concluded under the auspices of an impartial international commission of four members, this was an exemplary transfer. The commission guaranteed the prevention of State pressure on those eligible to change nationality and provided an unbiased body for effecting the change of nationality for those who so elected. Assistance in transferring material possessions and selling, transferring, and registering property and land was provided.
Exchanges also occurred between Germany and Poland: West Prussia and Posen were transferred to Poland, with control of strategically important Danzig being assumed by the League of Nations. The object of giving the State of Poland access to the sea was thus achieved at the expense of dividing East Prussia from the rest of Germany. Some provisions were made for the transfer of German populations in the Polish corridor to Germany. However, the success of this scheme was limited—indeed, the anomaly of Germans living in the Polish corridor subsequently precipitated the Second World War.
22.214.171.124 Problems associated with these approaches to minorities
It is perhaps indicative of the changing values of the international community that minority transfers were not as prominent a tool for resolving nationality conflicts in the aftermath of the Second World War. Redrawing international frontiers is fraught with potential pitfalls. A declared boundary between any two States will only operate when the separated States are on cordial terms. A breakdown in the transfrontier relations generally results in a break in the territorial integrity of one or other State.
2.8.5 The League of Nations and minorities
The idea of including general provisions on minority protection in the Covenant of the League of Nations was mooted but rejected in 1919. Contrary to popular belief, there is no specific mention of national minorities or the enforcement of the minority clauses in the Covenant of the League of Nations. Consequently, the issue, along with the concerns of the people in the Balkans and certain Poles, was remitted to the New States Committee which imposed minority protection guarantees as a condition of recognition by the Allied and Associated Powers of their new independence or State frontiers. In spite of this, protection of minorities was also stipulated as a precondition to membership of the League itself. Minority protection was of a specialist and limited character under the auspices of the League of Nations—it was a method of ensuring international supervision of new States. (p. 23) The role of the League of Nations in supervising minority rights paved the way for the United Nations’ development and enforcement of universal human rights after the Second World War.
Protection of minority groups under the auspices of the League of Nations was twofold: guarantees embodied in mandates/trust territory treaties and guarantees imposed on States (primarily the defeated States) in the Peace Treaties.
126.96.36.199 Minority guarantee clauses
In entrusting the League with the protection of minorities in the new Europe, a special clause was inserted in the peace treaties of Versailles, Neuilly, St Germain, and Trianon by which Poland, Czechoslovakia, Greece, Romania, or Yugoslavia agreed to protect minorities within their new borders. For example, by Art 93 of the Treaty of Versailles, Poland: ‘agrees and accepts to embody in a Treaty with the Principal Allied and Associated Powers such provisions as may be deemed necessary by the said Powers to protect the interests of inhabitants of Poland who differ from the majority of the population in race, language, or religion’. Such clauses were the basis of the minority system of the League of Nations and the foundation of the subsequent special minority protection treaties drawn up at the Peace Conference. Later, Declarations professing minority protection were recorded by the League of Nations in respect of Albania, Estonia, Latvia, Lithuania, and Finland (the Aaland Islands).
The special-minority chapters in these peace treaties contained what became known as the ‘guarantee clause’. In each instance, identical terms were used. The terminology of the clause indicates the nature of the guarantee and indeed the treaties—part retributive, part supervisory. The Allied and Associated Powers were imposing ‘rules’ on the defeated powers which were in a poor bargaining position and had little option but to accede to the treaties and the guarantees therein.
188.8.131.52 Enforcing the guarantee clauses
The League developed an elaborate enforcement mechanism for the minority- protection guarantees. However, the system enjoyed only a short lifespan—it was never fully or successfully effective. A special ‘minorities section’ was established within the framework of the League to consider minority complaints before remitting them to a tripartite committee of the Council of the League: the president of the League sat with two colleagues in each case. No Council member with an interest in the case or with ethnic origin similar to either the State or the minority concerned could hear the case. Ultimately, a rapporteur on minority questions would examine an admitted case and make a report to the Council with recommendations for remedial action. Given the chaotic state of Europe, the League’s systems arguably were never given a fair chance to work. In 1929, about 300 petitions reached Geneva. Approximately half of these were admitted but only eight reached the Council. In only two instances did the Council eventually propose any action to be taken, requesting an undertaking from the State concerned that it would cease the offending behaviour.
184.108.40.206 The Permanent Court of International Justice
The Permanent Court of International Justice acknowledged the desirability of minority protection. Deciding the Case Concerning the Question of Minority Schools in Albania, the Court held that the treaties for the protection of minorities were (p. 24) designed to ensure the equality of minorities and majorities. The Court also had to adjudicate on the application of the various conventions and treaties adopted in pursuance of the objectives discussed at 2.8.5. The Advisory Opinion on the Greco-Bulgarian Convention is an example of the Court defining minorities who would benefit from the provisions of the Convention. The definition proposed by the Court remained indicative of legal thought in the formative years of minority protection.
220.127.116.11 The success of the League
The League of Nations had limited success enforcing the minority guarantee clauses. Ultimately, the enforcement of any aspect of international law is dependent on the will of the Contracting Parties. As fervent nationalism reared its head, the international organization was powerless to prevent State action. When Germany withdrew from the membership of the Council of the League of Nations, following Hitler’s denunciation of the Locarno Treaty and the reoccupation of the Rhineland by the German army on 7 March 1936, the time bomb began ticking for the Second World War. The League of Nations was rendered impotent by the lack of an effective enforcement mechanism for its guarantees. An epidemic of world lawlessness was spreading. Many international obligations were broken without retribution (not least that of Munich). The League was flouted with impunity. Germany invaded Czechoslovakia in March 1939, Italy invaded and annexed Albania the following month, then Abyssinia and, on 1 September 1939, Germany invaded Poland. The international response was, by then, inevitable.
2.8.6 The modern law on minorities
A degree of minority protection is still present in contemporary law. ‘National minorities’, a term employed in the post-war era to refer to the ethnic groups of Europe, is reincarnated in the 1995 Council of Europe Framework Convention for (p. 25) the Protection of National Minorities. At the international level, in 1995, the United Nations adopted a Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. Nevertheless, the United Nations has enjoyed limited success in specifically protecting minority groups with a legally binding instrument, a legacy of the emphasis on universal rights. The contemporary law relating to minorities is addressed in more detail in Chapter 19.
Advisory Opinion on the Greco-Bulgarian Convention, 1930 PCIJ Rep Series B, No 17, p 19
This opinion was sought in connection with the peace treaties drawn up after the First World War. Clarification was sought over the scope and application of various aspects of the Convention of Neuilly which facilitated reciprocal emigration between Greece and Bulgaria with the aim of defusing potential tension in the region and securing peace. Of particular relevance to minorities is the question of whether Greco-Bulgarian communities possessed the characteristics of minorities even although they shared the same racial origin as the majority. For identifying these communities, the Court suggested the following criterion:
A group of persons living in a given country or locality, having a race, religion, language and traditions of their own, and united by the identity of such race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship securing the instruction and upbringing of their children in accordance with the spirit and traditions of their race and mutually assisting one another.
2.9 The International Labour Organization
Article 23 of the Covenant of the League of Nations comes closest, of all early instruments, to a provision on human rights. It imposes an obligation on Members of the League to ‘secure and maintain fair and humane conditions of labour for men, women, and children’ and ‘to secure just treatment of the native inhabitants of territories under their control’. The former was addressed in more detail by the International Labour Organization while the latter relates to the mandates and guarantees for trust territories (minority protection—see 18.104.22.168).
The participants in the Peace Conference created the International Labour Organization (ILO) in 1919. It is a survivor of the Treaty of Versailles, the Peace Treaty signed with Germany. The idea for such an organization had first been mooted in the nineteenth century (by a Welshman and a Frenchman) with the consequent International Association for Labour Legislation (Basel, 1901) a dry run for the new organization. The ILO was motivated by many factors, humanitarian concerns included—working conditions of the early twentieth century were often exploitative and detrimental to health and well-being; there was little regulation of vulnerable groups, such as children. This was giving rise to increasing concern. Moreover, given history (eg, the Russian Revolution), it is no surprise that the threat of social unrest and even workers’ revolutions unbalancing the new world order was also a consideration. Regulating working conditions should pacify the workers and even, in a way, recognize their contribution to the ensuing peace. The Preamble to its Constitution states that ‘universal and lasting peace can be established only if it is based upon social justice’. The purposes of the organization were outlined in the Preamble and now also in the attached Declaration of Philadelphia 1944 (annexed to the Constitution).
Naturally, the Allies supported international regulation, as it would prevent a less scrupulous State from ignoring any guidelines, exploiting their workforce, and undercutting costs. The ILO was the first international organization on which individuals were represented. Half the executive body comprised government representatives, a quarter employers’ representatives, and the final quarter, employees’ representatives.
The first set of Conventions adopted by the organization addressed various issues of concern including working hours and working conditions for women (including maternity protection) and for children (including minimum-age requirements). Some of these are discussed in Chapter 16 on the right to work. In the last ninety years, the ILO has continued to set standards and supervise the application thereof throughout Member States. It retains a dominant presence in international labour standard setting today. For its efforts, the ILO was even awarded the Nobel Peace Prize in 1969, its fiftieth anniversary.
(p. 26) 2.10 After the Second World War
The Second World War brought with it the persecution of minorities on a scale unprecedented in modern Europe. Genocidal practices became a facet of life in the Third Reich. At the conclusion of the war, Europe was in complete disarray with vast numbers of displaced persons, refugees, and escapees in all States. It was essential that control was exercised over the situation and the slow process of recovery instigated. Within Europe, it was essential to strive for normality in an area stunned with horror at the atrocities perpetrated and devastated by despair and disillusionment with governments.
2.10.1 The Potsdam Conference
The 1945 tripartite Conference of Berlin—the Potsdam Conference—with the ‘Big Three’ States of the United Kingdom, the Union of Soviet Socialist Republics, and the United States of America was the foundation of the central leadership pillar of the post-war period. While Europe remained in turmoil, the ‘Big Three’ helped bridge the gap of transition from the old order through to the construction of the new one, thereby contributing substantially to the framework of the new Europe.
Europe was in a constant state of turmoil and upheaval, with a constant flux of populations through transfers, both forced and voluntary. Aid organizations sought to repatriate displaced persons and reunite families separated during the events of the previous decade. Displaced persons, refugees, and internees were gradually repatriated though it remained impossible to obtain accurate population/census figures. Many States were left with severe labour shortages, others with economic shortfalls. The influx of refugees and displaced persons taxed the already stretched resources of States.
2.10.2 Towards international protection of human rights
In the years following the two world wars, under the guidance of the Allied and Associated Powers, national homogeneity was the declared aim, chaos the result. The original humanitarian principles were often sidestepped and even deliberately ignored. In Czechoslovakia, for example, months of embittered wrangling on both sides preceded the expulsion of minorities such as the Magyars. Minorities and their treatment became a matter for bilateral negotiation, not general international concern. Many pre-war boundaries were simply re-established as the accepted frontiers. The only survivor of the League-style period of minority protection is the Swedish–Finnish agreement concerning the preservation of the culture, language, and traditions of the Swedish population of the Aaland Islands which remain under Finnish jurisdiction.
Even in the twenty-first century, elements of minority protection justifying State intervention can be seen—the Russian Federation’s claims relating to Crimea (legally regarded by the UN as part of Ukraine), Abkhazia, and South Ossetia (both claimed as part of Georgia but no longer under Georgian central government) are two sets of examples.
The tumultuous problems experienced in Europe at this time prompted the new world order to ‘change tack’: minority and sectoral protection was replaced by a (p. 27) concerted global attempt to secure basic rights for all, without distinction. Both the Council of Europe (discussed in Chapter 6) and the United Nations were established at this time. These organizations are known today for their advanced systems aimed at protecting human rights.
2.10.3 On the brink of the United Nations
Before the foundation of the United Nations, the human rights protection which existed was clearly sporadic. As particular problems were identified by the dominant political and economic powers of the day, remedies were sought. Treaties thus protected specified minority groups and addressed specific problems of perceived vulnerable groups.
However, the advent of a truly global international community created in the shadow of mass violations of human rights and serious infringements of territorial sovereignty, with ensuing catastrophic suffering, provided an appropriate platform for the launch of contemporary human rights. In many respects, the development of international human rights is an example of the principle of subsidiarity—the international community only steps in when the State cannot or will not deal with the problem. When the national system does not protect the fundamental rights of the individual, then, by necessity, the needs of those peoples becomes a matter for international law. Today, a substantial body of international law, evolved under the auspices of the United Nations and various regional organizations, recognizes universal human rights. The system of human rights protection developed by the United Nations will be discussed in Chapter 3.
Advisory Opinion on the Greco-Bulgarian Convention, 1930 PCIJ Rep Series B, No 17, p 19.
Advisory Opinion on difference relating to the immunity from legal process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1999, p 62.
Case Concerning Certain German Interests in Polish Upper Silesia (Merits), 1926 PCIJ Rep Ser A, No 7.
Case Concerning United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 3.
Case Concerning Military and Paramilitary Activities in and against Nicaragua, 1986 ICJ Rep 14.
Case Concerning the Question of Minority Schools in Albania, 1935 PCIJ Series A/B, No 64, p 17.
North American Dredging Company Case (US/Mexico), 1926 4 RIAA 26.
Panevezys Railway Case (Estonia v Lithuania), 1939 PCIJ Rep Ser A/B, No 76.
Somerset v Stewart (1772) Lofft I.
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