Introduction

This chapter focuses on the history of human rights law up to the creation of the United Nations, where the story continues in the UN Chapter. Writing a “history” of human rights law is challenging. We can identify laws concerned with the welfare of people going back thousands of years and draw parallels between them and contemporary human rights law. However, we must be cognisant that human rights developed in a non-linear fashion, advances in protection have often been followed by significant regression. What may appear as progressive, even enlightened, laws from history often did not endure and their influence on later human rights may be indirect and difficult to ascertain. In the arc of history, the importance of conceptual changes – changes in the way people think of the world and their societies – are comparatively more important. We will explore how these changes underpin the development of later International Human Rights Law because International Human Rights Law has always been heavily influenced by different schools of moral philosophy. Sellars notes “human rights first emerged in a few places in the Anglo-European world during the Enlightenment”, as such they were heavily influenced by enlightenment philosophers like John Locke and Jean Jacques Rousseau and as a result the history of human rights has an inherent Anglo-American slant. However, the ideas these philosophers considered have concerned human societies for centuries – questions like “what laws should be hierarchically superior to others and why?”, “What are the legitimate constraints on powerful people?”, “Who is entitled to different protections under the law?”. While human rights are often considered a product of the European Enlightenment period, we can identify similar values in societies across the world. Human rights are just a new way of talking about and addressing issues that humans have been discussing for centuries. Indeed, because their content is visible largely in the constitutional texts of different states, we can see international human rights law as largely re-iterating pre-existing rules in a different form i.e. international treaties. The journey to that point is complex, but we will begin by looking at ancient legal codes that are thousands of years old.

Human Rights Values in the Ancient Era

The historical antecedents of human rights law can be traced back very far in time to some of the earliest legal codes we know about. As Lauren notes, the Code of Hammurabi is the oldest set of complete laws known to exist in the world. The code is important in the context of human rights for a variety of reasons. Firstly, throughout history we regularly see rights directly linked to status and class, but under Hammurabi’s code, protections were granted to a very wide range of people including women, children, destitute people and even slaves. Secondly, the code provided rudimentary protections of things that we would recognise as human rights today, including freedom of expression, the presumption of innocence and the right to fair trial. Perhaps most importantly, as Lauren notes, the code established that “some laws are so fundamental that they apply to everyone, even the king”, which is a foundational principle of the rule of law. There were also ideas of rights and justice in Ancient Egyptian law, including some degree of gender equality in terms of participation in public life; women had a similar legal status to men and therefore had the same rights to own property, enter into contracts and engage in legal disputes.

We can see traces of both the content of human rights protections and the development of important principles reflected in a variety of different philosophical and religious traditions throughout history. While people often refer to human rights as “western ideals”, some of the most fundamental ideas in human rights are evident in eastern civilisations. Centuries before enlightenment philosophers, like John Locke and Jean Jacques Rousseau put forward ideas of social contract and the legitimacy of overthrowing tyrannical rulers, Mencius and other Confucian philosophers were endorsing the right of people to revolt against their rulers. Mencius also put forward the idea that all human beings naturally share a common humanity, moral worth, inherent dignity and goodness, and a compassionate mind capable of empathy ‘that cannot bear to see the suffering of others’. You can see traces of core principles like human dignity, equality, universality and the prohibition on inhumane treatment in his words, which are echoed in contemporary human rights treaties. Many Buddhist teachings emphasise the sanctity of life of all beings and prohibitions on violence against the person and animals. The Edicts of Ashoka, who was an Indian emperor around 200 BCE, sought to codify Buddhist teachings of the time and were carved into stone pillars throughout India, which can still be seen to this day . The Edicts present ideas like equal protection under the law, respect for the lives of others, a right to be free from ‘harsh or cruel’ punishment and, interestingly for the time period, a ban on slavery.

The origins of human rights in western philosophy are evident in several places. Ancient Mosaic Law contains a variety of different ethical rules, which have analogues in contemporary human rights. The ten commandments, which Christians believe Moses received from God and are reflected in the book of Exodus in the bible, contain several such rules, including rudimentary protections of the right to life – “thou shalt not kill”.

In Ancient Greece, the philosopher Plato viewed the basis of all social and moral obligation as connected to the Form of the Good – a supreme form beyond living beings. In other words, Plato thought that a higher order of nature established the morality of human behaviour. Aristotle, who was tutored by Plato, developed this idea of natural law further, and his philosophy provided the basis for later medieval scholarship on natural law that we can see as connected to current international human rights law.

The Natural Law Link to Human Rights Law

Aristotle thought that law was an order based on rationality. He recognised a hierarchy of laws, viewing only those enacted ‘well’ (i.e. in line with the ‘Good’) by a legislator imbued with reason and rationality as good law. Any laws that promoted advantages only to a society’s rulers were incorrect, as laws must promote the common good: “the laws conforming to correct constitutions must be just, but those conforming to deviant constitutions must be unjust”. For Aristotle, good law also required obedience by citizens:

Aristotle did not explicitly recognise the concept of rights, but his understanding of good law as universal, for the common good, and for the protection of citizens from unjust rulers can be understood as forming the basis of the development of human rights. Scholars have therefore interpreted Aristotle’s work as including early understandings of rights, duties, and justice. For example, Ernest Barker argued that “Aristotle thinks of the individual as deserving the right which he ought to enjoy in a society based on (proportionate) equality”. Barker also interpreted Aristotle’s writings as supporting the rights of individuals within the judicial system, and the voting rights of citizens within their state.

In the 1200s, Italian philosopher and priest St. Thomas Aquinas developed upon the writings of Aristotle, and his work on natural theology formed the basis of Catholic legal theory. In his Treatise on Law, Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (90.4). Like Aristotle, Aquinas viewed law as reasonable and for the common good, rather than for the will or benefit of a society’s rulers. Aquinas distinguished between natural and human law, with natural law as the values and virtues of reason that can determine moral behaviour and human law as the applications of this by legislators and other legitimate actors (94-95). Aquinas believed that human law is only valid if it conforms to natural law, and that any unjust law was not actually law but a “perversion of law” (95.2). Aquinas believed in “eternal law” or the will of God, which “directs all the actions and movements of created things” (93.1).

We can see early examples of modern human rights norms in Aquinas’ work—Aquinas believed that unjust capital punishment was to be prohibited, but that the death penalty was acceptable if it was necessary to protect the common good and proportionate to the sin committed (87.3). The wording of the right to life in the European Convention on Human Rights, before the abolition of the death penalty, reflects Aquinas’ approach:

Around the time that Aquinas was writing, we can also see the emergence of human rights norms in other parts of Europe—such as Magna Carta in England.

Magna Carta

Magna Carta (‘The Great Charter’) has been described as “the most influential secular document in the history of the world”. There has been a tendency, particularly among Anglo-American authors, to revere the impact of Magna Carta. While it is an important milestone in the development of what becomes human rights law, we should be careful to place it in context and avoid overstating its impact.

Prior to the adoption of Magna Carta in 1215, the King of England, King John, had engaged in a series of unsuccessful wars against France, resulting in a significant increase in taxes on his subjects. In response, a group of barons, nobles who possessed large amounts of land, rebelled against the King. Their armies seized London and other areas of England and forced King John to negotiate with them to end the conflict. A meeting was held in Runnymede, South-west of London, and the outcome of the meeting was Magna Carta.

Magna Carta contained several precursors to later human rights provisions. We can see early incarnations of the prohibition on arbitrary detention where Magna Carta states:

Echoes of this provision can be seen, for example, in Article 5 of the European Convention on Human Rights, which states in Article 5(1)(a):

Magna Carta also contained an early manifestation of the right to fair and speedy trial where it states:

Echoes of this provision can be seen, for example, in Article 6(1) of the European Convention on Human Rights where it states:

We should be careful not to overstate the impact of these provisions. At the time these provisions were adopted, the English legal system was hardly a paragon of justice and fairness. Trial by ordeal remained a common feature of the English justice system long after Magna Carta’s “fair trial” provisions were proclaimed. Trial by fire, for example, required the accused “to carry a red-hot bar of iron and walk 9ft (3m). If the wound healed cleanly within three days, they were innocent. But if it festered, guilty.”

Magna Carta was also repudiated by the King very shortly after it was agreed, although it was reissued, and reformulated, several times afterwards. The significance of Magna Carta lies not directly in what the document says, but what later generations believed it said and symbolised. Its symbolic merit is far greater than the text itself. Later writers placed a heavy emphasis on the importance of Magna Carta. Edward Coke wrote a series of treatises on the laws of England in the 17th century which made extensive reference to Magna Carta. Similarly, William Blackstone conducted a detailed study of Magna Carta, published in 1759, which informed his commentaries on the Laws of England published a few years later. The work of both these scholars was instrumental in the transmission of English common law to other jurisdictions across the world, particularly the American colonies. It is understandable that American revolutionaries, seeking to justify rebellion against unjust rulers levying unreasonable taxes on them, looked favourably upon Magna Carta for support. While Sumption notes the idea that Kings could be subject to legal constraints was not novel at the time, Magna Carta sought to clearly define what the law was and enforce the kings’ obligations against him. Magna Carta declared that an established committee of barons would supervise the implementation of the charter’s provisions. The King’s powers became clearly constrained by a legal text. One of the enduring legacies of Magna Carta is the limitations it places on executive power through legal texts. While this idea was reflected in other legal texts before Magna Carta, the endurance of the principle within UK common law, seeping into liberal philosophy and later human rights law is an important milestone.

UK Constitutional Law

International law, as a medium through which rights are protected, is a relatively new phenomenon, but there have been many developments in the domestic law of different states that have clearly influenced later international human rights law.

In the UK, the so-called Petition of Right is a prime example. The Petition of Right resulted from a constitutional crisis when King Charles I of England believed that he could govern without the advice and consent of parliament, in particular in relation to the collection of taxes. The king had imprisoned a number of people without trial who had refused to pay a “forced loan” imposed by the king on his wealthy subjects without the consent of parliament. This prompted the parliament to pass the Petition of Right in 1628, which granted ‘diverse Rights and Liberties’ to the King’s subjects . Edward Coke was instrumental in drafting the Petition of Right, which expressly referred to the “Great Charter/Magna Carta” and tried to link the two documents to legitimise the Petition of Right and re-establish the King’s commitment to the rule of law.

The petition sought to secure important legal rights: due process and the idea that legal matters should be resolved according to established rules and principles, preventing arbitrariness, which is a key element of human rights law. It also introduced prohibitions against seizing private property and prohibitions on imprisoning people without cause. The seeds of these protections are later realised in international human rights protections of the right to a fair trial (e.g. Article 14 ICCPR and Article 6 ECHR), the prohibition on punishment without law (e.g. Article 15 ICCPR and Article 7 ECHR) and the prohibitions on arbitrary detention (e.g. Article 9 ICCPR and Article 5 ECHR). Ironically, much like Magna Carta, the terms of the Petition of Right were largely ignored by the king. Not long after it was passed, the King dissolved the parliament and engaged in a lengthy period of individual rule and the country became embroiled in a devastating civil war.

The English Civil War, which lasted from 1642 to 1651, was a conflict between the Royalists, who wanted to maintain a constitutional monarchy, and Parliamentarians, who wanted to expand parliamentary powers. King Charles I refused to summon a Parliament for 11 years, and ruled as an absolute monarch based on the claim that he had the divine right to do so. Charles finally bowed to the pressure to summon a Parliament in 1640, which then sought to restrict the King’s powers. In 1642, Charles entered the House of Commons with 400 soldiers and attempted to arrest five members of Parliament on claims of treason, triggering the First English Civil War.

Freedom of Religion

Throughout the 1600s in the UK, the subject of religious belief was hotly contested and sectarian tensions were widespread. These sectarian tensions contributed heavily to the outbreak of the English Civil War. The parliament’s supporters were ultimately successful and the king was executed in 1649.

The parliament’s supporters were comprised of many different factions, but a group called the Levellers rose to prominence. The victors of the war engaged in discussions about the UK’s future political settlement during the so-called Putney debates in 1647. There was debate about whether to create a constitutional monarchy or a more radical settlement. The Levellers took a particularly radical stance, calling for much greater parliamentary power, significant economic and social reforms and several rights guarantees, including the right to vote, equality before the law and religious tolerance. Thomas Rainsborough, an advocate of the Levellers, argued that

There were several significant developments in UK constitutional law in the late 1600s, which have been influential on later international human rights law norms, most notably the Habeas Corpus Act 1679, the Religious Toleration Act of 1689 and the Bill of Rights 1689. The Habeas Corpus Act 1679 was a significant milestone in the development of protections against arbitrary arrest and imprisonment. While this right had been recognised since before the Magna Carta, the Act sought to better define its scope and operationalise it e.g. by introducing penalties for those who engaged in unlawful detention.

The Religious Toleration Act 1688 was another milestone. In 1685, John Locke wrote an influential essay called “A Letter Concerning Toleration” in which he advocated for greater separation of the church and civic affairs and for greater freedom of religion within the UK. The essay strongly influenced the parliament, which passed the Religious Toleration Act and framed the scope of religious toleration within the Act in similar terms to those put forward by Locke. The Act allowed several “nonconformist” groups to establish places of worship, schools and to practice their religion within the UK. These non-conformist groups were effectively different denominations of Protestantism, such as Baptists and Presbyterians, who dissented from the so-called “Church of England” denomination of Protestantism. While we should view this as an important development in what later becomes the protection of freedom of thought, conscience and religion, the religious freedom advanced by Locke was very limited. He did not condone religious freedom, which he thought could generate destabilising political consequences within the State. Thus, the allegiance Roman Catholics displayed to an external power i.e. the Pope, was problematic. The Act’s tolerance did not extend to Jews, atheists or Catholics, who continued to be subject to stringent constraints on their religion for centuries after this. While one could argue the protection of freedom of thought, conscience and religion protected in contemporary human rights law is much more progressive and culturally agnostic, in truth, as a qualified right, its flexibility means that it can condone similar intolerances to those professed by Locke. The European Court of Human Rights’ endorsement of France’s ban on wearing the hijab in public places is an instructive example, which will be discussed further in the chapter on Freedom of Religion and Belief.

The Bill of Rights 1689

After the so-called “Glorious Revolution” in 1688-89 in which King James II was deposed and William III and Mary II took over as monarchs, a more stable settlement between the monarchy and the parliament was established. The settlement was largely codified in the Bill of Rights 1689, which defined the limits of royal power.

The Bill of Rights subjected royal power to strict limits under the law and it advanced many core rights provisions, including the right to own property, the right to be free from royal interference with the law and the courts, thereby safeguarding judicial independence, the right to free elections for representative government, the right of freedom of speech in Parliament, the right to a trial by jury and the right to be free from “cruel and unusual” punishment. The Bill of Rights served an important codifying function and continued the theme established with the Magna Carta and other foundational texts that the power of the State/monarch must be limited for the sake of the individuals within the state. While it serves as a precursor to other human rights obligations later, we should caveat that the rights granted in the Bill of Rights were not universal. The majority of the rights were limited to property owners and excluded large sections of the population, most notably women and children.

Two Ideas of the State: Hobbes and Locke

The English Civil War heavily influenced the English philosopher Thomas Hobbes, who took the view that society should be governed by an ‘absolute sovereign’. In Leviathan, published in 1651, Hobbes wrote that a strong sovereign was necessary to avoid war—and that a monarchy was the best version of this. The sovereign, in Hobbes’ political philosophy, had a number of rights including: subjects cannot lawfully change the form of government; subjects cannot protest against the sovereign without injustice; and the sovereign cannot be put to death by their subjects. Charles I had been executed in 1649.

Alongside these rights, Hobbes also ascribed powers to the sovereign that we would see as infringing the separation of powers and modern human rights norms. For example, Hobbes wrote that the sovereign could prescribe the rules of civil law and property, be a judge in all cases, make war and peace as they saw fit, choose their counsellors and magistrates, and reward and punish as they saw fit. Hobbes also viewed freedom of speech as undesirable, viewing the sovereign as having the power to determine the appropriateness of opinions and doctrine so as to maintain peace. These principles would stand in violation of human rights we now recognise, for example many of those outlined in the Universal Declaration of Human Rights: the right to a fair trial (Article 10), no punishment without law (Article 11), the right to property (Article 17) freedom of expression (Article 19), and the right to take part in the government of one’s country, either directly or through free and equal elections (Article 21).

In contrast, John Locke advocated for a democratic model of government based on natural law and the consent of the people in his 1689 publication, Two Treatises of Government. Due to the controversial nature of his arguments, he published his writing anonymously. Locke’s key ideas rested upon the rejection of the claim that monarchs had a divine right to rule, and advocacy for a democratic government, impartial judges, and the protection of basic rights such as those to life, liberty, and property.

Both Hobbes and Locke were influential in the development of social contract theory—the idea that individuals are willing to give up some of their freedoms for an organised society. For Locke, individuals are ordinarily in a “state of perfect freedom of acting and disposing of their own possessions and persons as they think fit within the bounds of the law of nature”. Hobbes viewed this state of nature as dangerous and chaotic, thus requiring strong sovereign rule to achieve peace and order. Locke likewise viewed the state of nature as an insecure way of enforcing natural law, which would motivate individuals to join a mutually beneficial society. In Locke’s 2nd Treatise of Government, he writes:

US Constitutional Law

The American War of Independence (1775-1783) and its aftermath had a profound impact on the later development of international human rights law. While the rights provisions advanced in the UK continued to be limited by adherence to constitutional monarchy as a form of government, the US establishment of a federal republic in the aftermath of the war of independence enabled a more full-throated commitment to individual rights vis-a-vis the power of the State. In order to understand the developments in US constitutional law and their influence on human rights later, it is important to understand the influence of different enlightenment philosophy and in particular the idea of social contract.

Social Contract

As noted above, the development of human rights is strongly influenced by enlightenment philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Their writings had a profound influence on the actors responsible for creating the US Constitution and its accompanying Bill of Rights and the creators of the French Declaration of the Rights of Man. Social contract theory was particularly influential, and understandably appealing, to the revolutionaries attempting to change the system of government from monarchical rule. Under this theory, the legitimacy of political authority depends on individual consent to be governed. Individuals possess inherent, natural rights and consent, either explicitly or implicitly, to surrender them in exchange for rights in their society and protection and governance from the State. In the state of nature, discussed above, people are in a condition of “freedom” and “equality” and the social contract was formed to secure their “natural rights of life, liberty, and property”. People moved from this “state of nature” to an organised society, administered by an impartial state. In Locke’s view, human rights are conceptualised as “pre-political claims” they exist prior to and are protected through, the formation of a political community. This is an important conceptual turn for the development of human rights, which also views rights as pre-political and inherent. Social contract theorists placed a very strong emphasis on individual autonomy and individual rights. If a state failed to uphold its side of the social contract, it could be legitimately opposed, and potentially overthrown. As such social contract theorists provided a normative basis for resistance. Under this model, the state is both a product of consent and a guarantor of fundamental rights, with the social contract serving as a moral and political device to mediate between liberty, authority, and justice.

Virginia Declaration of Rights

While the US Constitution and its accompanying Bill of Rights is often lauded for its influence on the development of human rights law, the lesser-known Virginia Declaration of Rights was arguably more influential. The Virginia Declaration, drafted over 10 years before the US Constitution in the midst of the American war of Independence, was adopted by the Virginia Constitutional Convention in June 1776. A direct line is distinguishable between this Declaration and a range of subsequent rights protecting measures all the way through to the UDHR over 150 years later.

The influence of social contract theory, in particular the work of John Locke, is evident throughout the Declaration. The core idea of a contract between the people and the state for the common benefit is clearly reflected in Sections 2 and 3 of the Declaration. In Section 2, for example, it states that “all power is vested in, and consequently derived from, the people”. Another core idea of the social contract was that consent to be governed can be revoked by the people and a new contract formed with a different political community. This is clearly reflected in Section 3 “when any government shall be found inadequate […] a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it”.

We also see social contract ideas that rights are both inherent in human persons and inalienable clearly reflected in Section 1 of the Declaration “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity”. The reference to moving from nature “into a state of society” is directly linked to the social contract. The idea of universality of rights is also clearly reflected, “all men” naturally have them, which is echoed in the Preamble to the UDHR when it refers to the “equal and inalienable rights of all members of the human family”. Indeed the language used in Section 1 is echoed in the US Declaration of Independence: “all men are created equal […] they are endowed by their Creator with certain unalienable Rights”; the French Declaration of the Rights of Man: “Men are born and remain free and equal in rights”; all the way through to the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights”.

The Virginia Declaration contains a range of other protections including the right to a fair trial (s.8), prohibition on arbitrary detention (s.8), prohibition on cruel and unusual punishments (s.9), inviolability of the home (s.10), freedom of expression (s.12) freedom of religion (s.16), all of which come to feature in later treaties on civil and political rights. The protections in Section 6, in particular, bear a striking similarity to contemporary protections in international treaties. Section 6 includes a right to have the nature of a criminal accusation clearly communicated (see Article 6(3)(a) ECHR), a right to a speedy and impartial trial (Article 6(1) ECHR) and a right to call evidence (Article 6(3)(d)).

Spahn observes that “the protection of the rights of individuals is arguably one of the most remarkable achievements of Western political philosophy”, but he also notes several limitations of the approach of social contract theorists. The pathological individualism of social contract theory, which extends into human rights, can lead to a toxic kind of egoism with individual interests prioritised at the expense of communities, ecosystems, and future generations. Hellsten also notes that social contract philosophy is a distinctly “Western” idea, which may not have the same relevance in other cultural contexts, “the subjects of social contract thinking are not autonomous individuals but people who are always tied to their circumstances, historical, social and cultural contexts”. The idea that the State is neutral, postulated by social contract theorists, is also problematic as authority is often “kept by a particular (ethnic, tribal, regional, religious, etc.) group/community as the ‘social extension’ of the sovereign”.

While the Virginia Declaration is an important, seminal document in the history of human rights law, we should acknowledge that it is, nonetheless, a very limited statement of rights. Modern human rights treaties are much more comprehensive and detailed by comparison. The statement of freedom of expression here, for example, lacks the specific protections (evident, for example, in Article 10 ECHR) for holding opinions, receiving and imparting information/ideas and there are no detailed statements of the circumstances in which free expression can be justifiably curtailed. We should therefore view the Virginia Declaration as a starting point for the future development of human rights protections, expressing fundamental values and a limited, gestational statement of rights.

The US Constitution

Although the US constitution is famed for its constitutional rights, the protection of rights was not part of the original constitutional settlement. The original constitution was drafted in 1787, but the so-called Bill of Rights was only added in a series of amendments to the constitution in 1791. There was fierce debate about whether the addition of a Bill of Rights to the constitution was necessary.

Alexander Hamilton argued, for example, that while statements of rights were necessary in monarchical systems, such statements were not necessary in a republic. In fact, Hamilton considered they might be dangerous as they created exceptions to powers which were not granted to the state in the first place – “why declare that things shall not be done which there is no power to do?”.

It was only after several states opposed the new constitution because it lacked a Bill of Rights, that the Bill of Rights was drafted by James Madison and added in 1791. The rights were additions to the text designed to placate the States and get them to sign off on the new constitution. There were 10 amendments in total covering a broader range of topics than the rights in the Virginia Declaration. Indeed the author of the Virginia Declaration, George Mason, had earlier called for a more expansive set of rights than those in the Virginia Declaration to be added to the Constitution. The Bill of Rights includes specific provisions on freedom of assembly, rights to petition and a broader right to freedom of speech, which does not relate exclusively to the press as the right in the Virginia Declaration did.

The content of the Bill of Rights, similar to the Virginia Declaration, is limited and contains several measures that would not be classified as “rights” per se. The protection of the right to possess a firearm in the second amendment, the prohibition on forcible housing of military personnel in a citizen’s home during peacetime in the third amendment, the regulation of jury trials in civil claims in the seventh amendment and the regulation of the division of state and federal power in the tenth amendment are not replicated in later human rights treaties and are largely germane to the USA and the circumstances prevailing at the time of its drafting. There are, nonetheless, many recognisable “human rights” provisions within the Bill of Rights. The first amendment’s guarantees for freedom of religion, expression and assembly and the right to petition serve as a foundation for later protections (such as Articles 9, 10 and 11 of the ECHR). The fourth amendment’s prohibition on arbitrary arrest and limitations on search and surveillance serve as a foundation for later protections (such as Articles 5 and 8 of the ECHR). The prohibitions on self-incrimination and protections of due process and fair trial rights in the fifth and sixth amendments serve as the basis for later protections (such as Article 6 of the ECHR). While the prohibition on cruel and unusual punishments in the eighth amendment serves as the basis for later protections (such as Article 3 of the ECHR).

Interestingly, how the constitution operated vis-a-vis other laws was not entirely clear from the outset i.e. the issue of which laws took precedence remained unsettled. The supremacy of the constitution and its rights over ordinary laws passed by the legislature was determined in the case of Marbury v Madison in 1803 where the US Supreme Court ruled that it had the power to declare acts of the legislature that conflicted with the US constitution void as unconstitutional. This elevated the power of constitutional rights . Overall, the US constitution served a useful function in clearly stating principles, codifying rights in a written document and later empowering those rights to override laws passed by the legislature.

The  US Constitution never explicitly mentioned slavery, but there were two key clauses intended to protect slaveholding states. Firstly, the ‘Three-Fifths’ “compromise” was reached in the context of how many seats each state would be given in the House of Representatives and the payment of taxes: slaveholding states wanted the population of enslaved people to be counted, and free states (those that prohibited slavery) did not. Article 1(2)(3) of the Constitution determined that

Secondly, the “fugitive slave” clause under Article 4(2)(3) required enslaved people that escaped to a free state to be returned to their “master”:

In Dred Scott v Sandford (1857), in which an enslaved Black man and his family sued for freedom on the basis that they had been taken to a free state, the Supreme Court held that the US Constitution did not extend citizenship to people of Black African descent, so they could not enjoy the rights contained in the Constitution. As we will also see within the French context, slavery and the denial of rights to people of colour existed alongside proclamations of equal rights.

French Constitutional Law

The 17th and 18th Century saw a philosophical movement across Europe known as the “Age of Enlightenment” which promoted rational liberalism and natural law. The French Revolution was part of this—a period of political and social upheaval between 1789 and 1799 in which revolutionaries pushed for a move away from monarchy towards a liberal democracy much like Locke and Rousseau had advocated. In 1793, following the Revolutionary Wars, King Louis XVI was executed and the monarchy replaced with the French First Republic. The French Revolution led to the drafting of a new constitution and a statement of rights aimed at limited governmental interference with individual freedoms.

The Declaration of the Rights of Man and of the Citizen was the human rights document that emerged from this process, setting out the principles of democracy and individual liberty that we can recognise in modern human rights treaties. It drew upon social contract theory, the idea of the separation of powers and emphasised the role of a democratically elected government in protecting the natural and unalienable rights of man:

Women were not initially excluded from the Revolution, but their participation became increasingly limited by revolutionary leaders, who declined to extend rights to women in the French Declaration and their new constitution. In 1789, working women formed a significant part of the March on Versailles—while this was primarily about the rising price of bread, demonstrators also believed that it was necessary to extend rights to women, political minorities, and landless citizens. The participation of French women in public campaigns continued, but the Revolution sought to shut down women’s groups and organisations as a dangerous threat to their new republic. In 1791, the French feminist Olympe de Gouges published a response to the Declaration of the Rights of Man, titled the “Declaration of the Rights of Woman and of the Female Citizen”. Gouges’ Declaration extended civil rights to men and women, and added new rights such as sexual equality within marriage, divorce, and the right to identify the father of any illegitimate children. Gouges opened her Declaration with the quote: “Man, are you capable of being fair? A woman is asking: at least you will allow her that right. Tell me? What gave you the sovereign right to oppress my sex?” While we now recognise equal human rights for men and women, as well as specific gender-based rights (see the chapter on Gender and Human Rights), this was highly controversial at the time; Gouges was executed in 1793 as a “political enemy” of Revolutionary France.

The French Declaration on the Rights of Man was also adopted while slavery was still widely practiced in French Colonies. In 1685, King Louis XVI had passed the Code Noir to set out punishments for “disobedience” from enslaved people and restricted the activities of free people of colour in the French Colonial Empire. When the Revolution took over, the new National Assembly did not abolish slavery, nor extend the Declaration’s rights to enslaved people or free people of colour, in part because of resistance from colonial landowners. Major slave revolts in Saint-Dominigue (now known as Haiti) forced some changes. In 1791, full political rights were granted to people of colour born to two free parents, but the rights of freed slaves were left to colonial administrators. In 1792, the National Assembly responded to another slave revolt in Haiti by granting citizenship to all free people of colour, and in 1794, passed a decree to abolish slavery in the colonies and grant people of colour full French citizenship. However, Napoleon Bonaparte, who became leader of the French Republic in 1799, repealed the 1794 decree, and reinstated slavery across all of France’s colonies—though Haiti declared itself a free and independent nation without slavery in 1804 (discussed in the next section). Napoleon’s reinstatement of slavery was also accompanied by aggressive policies of segregation and discrimination, including a prohibition on interracial marriages. Slavery remained legal in the French colonies until 1848, when further slave revolts propelled the state to formally abolish slavery.

The exclusion of women and people of colour, including the existence of slavery, alongside proclamations of equal civil liberties undermines the assumption that Western liberal democracy is, and always has been, a guarantor of human rights. Some postcolonial and feminist scholars are therefore critical of Western liberalism for presenting its abstract rationalism as being supposedly gender and race neutral, when in reality it has prioritised the rights and concerns of white, middle-class men. The early human rights documents of the US and Europe and the current international human rights system is rooted in Western liberalism and so some scholars are also critical of the claim that human rights are universal. However, understanding the influence of anti-slavery movements, rights concepts in non-Western cultures, and the women’s rights movements presents an alternative narrative to the idea that the development of human rights norms was solely or primarily an intellectual Enlightenment exercise.

The Haitian Revolution and the Abolition of Slavery

While the US and French revolutions are hailed as seminal moments in the development of human rights law, their proclamations of liberty and individual freedom were undermined by the continued existence of slavery in the USA and throughout the wider French imperial world. In essence, a group of white men declared freedom and equality for all, while continuing to possess and force labour from slaves. Chattel slavery was a central feature of the social and economic world from 1500s-1800s. The scale of the transatlantic slave trade was staggering, with millions of people forcibly displaced to work in American colonies. It is for this reason that the Haitian movement for independence in the late 18th and early 19th centuries makes such an interesting case study.

Haiti, or Saint Domingue as it was then known, was a thriving Caribbean colony in the late 18th century. It was France’s richest overseas colony, built on the labour of hundreds of thousands of slaves. As the impact of the French Revolution spread across the Atlantic, people in the French colonies, including Saint Domingue, began to agitate for more civil rights and representation. A massive slave rebellion erupted in Saint Domingue in 1791, followed by a series of further armed struggles against French dominion. In 1801, Toussaint Louverture, one of the leaders of the Haitian revolution, issued a constitution for the new state which abolished slavery in the territory. In 1804, Haiti ultimately declared independence from France, becoming the first independent, slavery-free nation in the Americas.

The Haitian revolution leaves a deeply complex legacy for human rights law. It challenges the Eurocentric narrative that human rights were a product of white, liberal enlightenment thinkers, marginalising the contributions of non-white people. As Charles notes, in Haiti, those who had been stripped of all rights had reclaimed them through violent revolutionary acts and rebellion against white people. It exposed the hypocrisy of the French and American revolutions and served as “a glaring reminder of the inconsistencies of enlightenment discourse”. The French and American revolutions constrained the granting of their rights in different ways e.g. through concepts like active citizenship (discussed above), limiting universal protection. By contrast, the Haitian revolution and the founding documents of the state, like the 1805 constitution, secured rights to all freed slaves and universality where the other revolutionary texts had failed.

As Charles observes, the Haitian revolution served to inspire both anti-slavery movements and an “international racist project to repress the idea of Black Revolution”. Haiti was isolated economically and diplomatically by France and the USA in the aftermath of its independence, with the United States refusing to recognise its independence for decades. As Owolabi notes, Haiti was “punished and ostracized” for having “the audacity to emancipate themselves in a violent revolution that threatened the racial and political order of the Atlantic world economy”. At the same time, post-revolution Haiti was hardly a paragon of freedom. In the aftermath of the revolution authoritarian leaders, who styled themselves as emperors (Jean-Jacques Dessalines) and kings (Henri Christophe), prioritised national sovereignty and freedom from foreign domination over individual liberties. A system of land management, built on bonded labour akin to that used in countries like Russia at the time, meant the average Haitian continued to be forced to work the land for the State. The Haitian revolution paradoxically succeeded in abolishing slavery and rejecting its imperial overlords only to introduce an empire and a system of forced labour of its own.

Perhaps the true legacy of the Haitian revolution for human rights law lies in its symbolic value to anti-slavery movements of the time. Authors like Martinez trace the origins of international human rights law to the anti-slavery movements of the 19th century, which were bolstered by the example of the Haitian revolution. In 1807, Great Britain became the first country to abolish the slave trade when it enacted the Act for Abolition of the Slave Trade 1807 and played a leading role in the movement to abolish slavery globally. In 1815, British diplomats pressured several other European states into signing the Declaration on the Abolition of the Slave Trade. It was signed by the Great European Powers of the day – Austria, Britain, Prussia, Russia, Portugal, Spain, Sweden and France and is an early example of an international instrument prohibiting a practice profoundly at odds with the concept of human dignity. The UK also negotiated a series of bi-lateral international treaties with other states e.g. Spain and the Netherlands, aimed at the abolition of the slave trade throughout the 19th century.

The treaty between the UK and Spain signed in September 1817, for example, ensured that “the slave trade shall be abolished throughout the entire dominions of Spain”. Article 9 of the treaty permitted the navies of each state to search vessels “as may be suspected, upon reasonable grounds, of having slaves on board” and to detain the vessels to bring them to trial before tribunals established to enforce the treaty. Spain and the UK established “mixed commissions” in different jurisdictions to adjudicate on the detention of the ships and the determination of whether the prohibition on slave trade had been breached. These bodies made decisions on over 600 captured ships and freed over 80,000 slaves. These treaties are important milestones in the development of international human rights law. We can see the first traces of international law being used to protect the rights of individuals outside of their territory, a central motivation of international human rights law. This is an important change because prior to it we saw rights protections reflected predominantly in the constitutional provisions of individual states. We see the idea that violations of human rights were offences of international concern and not just matters between the state and its subjects. We also see the establishment of international courts to enforce humanitarian protections for the benefit of individuals, a feature of many later human rights treaties.

While the bilateral treaties focused on the trade in slaves and not slavery itself, the law continued to develop toward this end in 19th and early 20th centuries. The adoption of the Africa General Act at the Berlin Conference in 1885 committed the parties to the suppression of slavery and the prohibition of the slave trade from Africa. A further multi-lateral treaty was adopted by the League of Nations in 1926 on the abolition of slavery, which has been ratified by 99 parties.

Rights in Non-Western Cultures

As we have explored in this chapter, our modern instruments of international human rights law emerged from Western philosophical thought and constitutional developments in Europe and the United States. This has resulted in the “cultural relativist” critique of human rights—the idea that there are no truly universal norms. This sometimes leads to the claim that international human rights law, as it emerged from Western philosophical thought, is either uniquely Western, or at the very least Western-centric. However, the UN has commented on the importance of cultural diversity for human rights, and  Ahmed Shaheed and Rose Parris Richter argue that “all cultures—Western or otherwise—are acquainted with the experience of injustices, which beget demands for the recognition of human rights from oppressed populations that later give rise to human rights reforms.” As we saw in the first part of this chapter, many ancient cultures had laws in place that we can recognise as early examples of human rights—including the Code of Hammurabi in Babylon (now Iraq and Syria)—and non-Western philosophy, such as Confucian and Buddhist philosophy, recognised ideas about respect, dignity, and equality.

However, many non-Western cultures do have different conceptions of human rights than those emerging within Western liberalism. The colonisation of much of the world by European powers has meant a transplanting of Western laws and values, including around human rights, but we can see alternative conceptions of human rights in pre-colonial legal systems. For example, across the continent of Africa, rights-based values have traditionally related to communitarian values rather than individual entitlements. This is encompassed within the concept of “Ubuntu” (which means humanity), a philosophy that emphasises connection with the community. In traditional Igbo society, the individual’s identity is intertwined with their extended family lineage.  Similarly, the phrase “umuntu ngumuntu ngabantu” in the Zulu language means “a person is a person through people”. This has been explained in other words by the philosopher John Mbiti:

The concept of Ubuntu is therefore underpinned by the importance of the survival of the whole community, requiring interdependence and collective rather than individual autonomy. This carries with it an understanding of human dignity that is about group well-being rather than individual well-being, and thus rights are accompanied by responsibility and obligation to the group. This is a different social contract to that in the philosophical thought of Hobbes, Locke, and Rousseau, but we can see elements of a social contract nonetheless. Archbishop Desmond Tutu notably applied the concept of Ubuntu to the process of reconciliation after South Africa’s transition from an apartheid state to a democracy when he was appointed to the Truth and Reconciliation Commission.

Ubuntu is foundational to traditional African justice systems, and is therefore a close equivalent of the rights we saw emerging in Western constitutional laws. However, there are some individual rights that this conception of human rights would reject; for example, individual property ownership over land. In Igbo communities, for example, land was communally held as farming was necessary for the whole community to gain sustenance and earn a living. PLO Lumumba argues that incorporating “ubuntu within diverse legal systems ipso facto has the potential to foster more inclusive, just and sustainable approaches to addressing complex challenges in diverse spheres of human endeavour.” While the African Charter on Human and People’s Rights (see the chapter on Regional Systems of International Human Rights Protection) incorporates many of the individual rights contained in the international framework, the Preamble notes that consideration has been taken of “their historical tradition and the values of African civilization which should inspire and characterise their reflection on the concept of human and peoples’ rights”. This is reflected in several Articles that lay out individual duties, for example:

The Ottoman Empire, which was active in the Middle East from the 14th to early 20th Centuries and followed Islamic (Shariah) law, similarly prioritised collective justice over individual freedoms. Social and political rights were granted to subjects, both Muslim and non-Muslim, within the Ottoman Empire. This also included some rights for women, including to own property, participate in education, and take up employment. The Ottoman Empire, like all the societies we have covered in this chapter, were by no means perfect in their rights protection. While a degree of autonomy was initially granted to religious communities, the Ottoman Empire transitioned to a centralised, authoritarian state in the 19th Century. The Sultan held absolute power, and subjects were not allowed to participate in politics or political decision-making, and this was justified (much like Hobbes’ version of the social contract) to preserve justice and social order.

Many of the rights recognised within the Ottoman Empire came from an interpretation of the Qu’ran, which includes the recognition of various rights in the context of collective social order and the forbidding of certain actions and punishments for encroaching on the rights of others. By modern standards, some of these punishments—such as the death penalty—would be recognised as human rights violations. There have been two Islamic human rights declarations—the Cairo Declaration on Human Rights in Islam (1990) and the Arab Charter on Human Rights (2004)—but the UN has found aspects of them incompatible with international human rights standards for issues relating to women’s rights, religious freedom, and for allowing the death penalty for children where permitted by individual state laws. In terms of current challenges with respect to human rights in Muslim societies, Nader Hashemi and Emran Qureshi recognise the “ethical chasm between these positions and international human rights standards” but argue that a considerable evolution of Shariah law in line with modern understandings has been and continues to be underway, for example as a result of Muslim women’s rights activism. Hashemi and Quereshi also argue that the recognition of this challenges the view in many Western states that Muslim societies are the worst violators of human rights, recognising that fundamentalist approaches have moved Islamic law away from its historical tradition of religious tolerance and pluralism.

Recognising and incorporating non-Western conceptions of human rights, such as the focus on collective justice, can strengthen claims of universality in international human rights law. We can also see these conceptions emerging in the context of new rights claims, such as those relating to climate justice. The African Charter already guarantees all people the right to “a general satisfactory environment favourable to their development” (Article 24), and as explored in the chapter on Regional Systems of International Human Rights Protection, the idea of a right to a clean, safe, and healthy environment has emerged within other human rights bodies too.

Women’s Rights

The development of women’s rights has largely followed from the work of feminist thinkers and activists. In response to the exclusion of women from Enlightenment morality, feminist philosophers such as Mary Wollstonecraft sought to establish that women were also rational and autonomous beings and should have the same rights and duties as men. In A Vindication of the Rights of Woman, written in 1792, Wollstonecraft argued that the differences between men and women that had marked women as irrational and thus unsuited for public life were largely due to the lack of education for girls, as opposed to any biological differences. Influenced by the aftermath of the French Revolution, Wollstonecraft drew upon the natural rights approach to argue that the moral rights held by men were also held by women, as a feature of common humanity, regardless of what the law stated. Wollstonecraft made a number of proposals including: changes to the school curriculum to educate girls; the granting of civil and political rights for women; elected representatives for women; and ensuring that women have economic independence and do not have to marry out of financial necessity. This, she argued, would allow women full citizenship.

Around a century later, John Stuart Mill published his essay The Subjection of Women based on ideas developed with his wife Harriet Taylor Mill, who presented similar arguments in her essay The Enfranchisement of Women. The Mills, like Wollstonecraft, critiqued the view that women’s “nature” precluded them from holding civil and political rights, rejecting the idea that women are “radically inferior” or even “radically different” to men. The Mills advocated for women’s rights to education, the choice to get married and equality within marriage, and to vote. The Subjection of Women also presented the argument that the emancipation of women would carry with it benefits for men:

John Stuart Mill actively campaigned for women’s suffrage as a Member of Parliament in Britain from 1865 to 1868, though the enfranchisement of women was not achieved until 1918 (for those over 30 who owned property) and 1928 on the same terms as for men.  The movement for the enfranchisement of women in Britain became divided into two campaigning strategies: the suffragists, who undertook peaceful action such as petitioning and leafleting, and the suffragettes, who opted for direct action such as smashing windows, chaining themselves to buildings, and going on hunger strikes while in prison. The activism of the National Union of Women’s Suffrage Societies and Emmeline Pankhurst’s more militant Women’s Social and Political Union were influential in pushing for women’s suffrage. However, when voting rights were first granted to women in Britain, this was not equally the case for women in countries that were colonised by the British Empire. In India, for example, voting rights began to be extended to women in the British Provinces between 1919 and 1929, but legal requirements relating to property ownership, literacy, and marriage were maintained, which meant that in practice only a very small minority of Indian women were eligible to vote. The movement for women’s suffrage and political participation in India became part of a larger anti-colonial movement—and following independence from Britain in 1947, the first general elections were held with universal adult suffrage.

Equal access to education, employment, political participation, and marriage rights are now recognised as fundamental human rights contained within the UDHR and the Convention on the Elimination of Discrimination Against Women, but this was once highly controversial and there continue to be inequalities in the representation of women in political and governmental positions. Feminist movements have also continued to push for rights protections in other areas, for example in relation to state obligations to address violence against women and in the recognition of sexual and reproductive rights (see Chapter on Gender and Human Rights). These human rights protections have been hard won by feminist activists who were initially excluded from them.

Formation of Civil Society 

The notion of civil society emerged from ancient philosophical beliefs that equated it with the state and political participation. Aristotle is credited with the first use of the term “civil society” (koinonia politike) but he used it in the sense that a citizen was part of the political order. The role of the state as a dominant entity in many Western and non-Western contexts (such as Britain, France, and the Ottoman Empire) precluded the notion of the autonomous civil society as we understand it today. However, in the 18th and 19th Centuries, during the European “Enlightenment” era, the understanding of civil society underwent a significant transformation as philosophers increasingly criticised the absolute power of the state. Locke, for example, understood civil society as imposing limits on the power of the state. This is the basis of our modern understanding of civil society as separate from the formal state. Thus, in Locke’s conception of the social contract, civil society has the right to revolution against oppressive state governance.

The formation of civil society in this way was a middle class phenomenon, with groups aiming to alleviate poverty, finance projects like building schools and hospitals and to advocate for disenfranchised groups like orphans and children. Significant societal changes taking place within 18th and 19th century Europe, such as industrial revolutions and the transformation from monarchies to democracies, created opportunities for these organisations to have a say in shaping society. However, in the aftermath of industrialisation, which saw the concentration of wealth in the hands of entrepreneurs, social inequality between the middle and working classes became pronounced. Working class co-operatives in countries such as Germany were set up to ensure access to food, housing, and financial security, and labour activists likewise sought social reforms. This led to the creation of trade unions.

Civil society has played an important role in pushing for rights and citizenship for those they were denied to, and in fighting against dictatorship and oppressive political regimes. This includes the anti-slavery and women’s rights movements discussed above, and from the 1960s onwards, the mobilisation of civil society against military dictatorships in Latin America and in support of the transition to democracy. In the modern era, civil society often takes the form of non-governmental organisations (NGOs), collectives, and networks, but can also refer to a looser association of activists and movements—all of which are important for the protection of human rights. Across the continent of Africa, for example, civil society was highly involved in anti-colonial efforts, and NGOs have more recently played a role in addressing humanitarian crises such as the lack of basic services and infrastructure, extreme poverty, and pandemics/epidemics.

Civil society is influential in the implementation of human rights norms, and NGOs can participate in human rights processes such as through the submission of shadow reports to UN Committees and actions before the UN Human Rights Council (see discussion in the UN Chapter). As discussed in the chapter on Gender and Human Rights, the recognition and development of gender-based rights is because of transnational feminist mobilisation. While the focus of human rights is often on international organisations and the state, civil society has always had, and continues to have, a central role to play in the realisation of rights and freedoms.

Internationalisation of Protections: The Influence of International Humanitarian Law

The protection of rights, which developed in domestic constitutional systems, gradually shifted into the international arena over time. The impetus to provide humanitarian oriented protections in international law gathered steam in the 19th century as we noted with the extensive use of bilateral conventions by Great Britain to suppress the slave trade. However, it is also particularly evident in the context of what is now the distinct body of international law known as International Humanitarian Law or the Law of Armed Conflict.

In the 1860s, the first of what would become several Geneva Conventions was enacted in 1864. This Convention came about because of the experience Henri Dunant had attempting to assist the wounded at the battle of Solferino during the second Italian War of Independence. Dunant, who went on to establish the International Committee of the Red Cross, was shocked at the lack of medical attention and care given to wounded soldiers and began campaigning to ensure greater protection of wounded soldiers and the neutrality of medical staff. A diplomatic conference was convened in Geneva at which the Convention was concluded, with 57 States signing up to the treaty. The Convention ensured that wounded soldiers would be collected and cared for and provided detailed protections for medical staff. It led to further international conferences and treaties on the subject of protecting soldiers, civilians and non-combatants during wars between States, including an influential series of conventions drafted in the Hague between 1899 and 1907.

The idea of protecting individuals within states from the activities of their own government, which animates contemporary human rights law, was distinctly absent from international humanitarian law for a long time. International Humanitarian Law aimed to regulate international armed conflicts between states, with the protections largely conferred on foreign enemy soldiers and non-combatants only once a conflict existed between states. Guaranteeing similar rights during non-international armed conflicts (what would commonly be called “civil wars”) was largely ignored at this time and considered the rightful remit of states to address as they saw fit. Ironically one of the most influential early codifications of the laws of war, the Lieber Code 1863, was developed with the express purpose of regulating the civil war within the United States of America. It was not until much later, with the adoption of common Article 3 of the Geneva Conventions in 1949 and the second Additional Protocol to these Geneva Conventions adopted in 1977, that the protection of people during non-international armed conflicts became the subject of international treaties.

Individual Protection through International Law

We start to see the protection of individuals within states through international law in a series of treaties following World War 1. At the end of the war, many states’ borders were redrawn, which resulted in large ethnic minorities residing within the borders of new, or newly defined, states. There were serious, largely justified, concerns at the international level over how those minorities would be treated by the governments of the different States. As a result, a number of different treaties were created with the aim of protecting these minority groups.

One such example was the treaty between the Allied Powers and Poland concluded in June 1919. The treaty provides, inter alia, for freedom of religion for minority groups (Article 2), protections of language (Article 7), education rights (Article 9) and guarantees of equality. These treaties are striking because we see many features that will later characterise international human rights law treaties reflected in them. Most notably the idea of compromising state sovereignty to protect individual rights and viewing the protection of individuals as being a collective concern of the international community, rather than the concern of individual states. There was a recognition, particularly in Article 12 of that treaty, that guaranteeing these obligations was “of international concern”. Indeed, ensuring the obligations was “placed under the guarantee of the League of Nations”, which included bringing allegations of infractions to the attention of the League of Nations and the possibility that they would “take such action […] as it may deem proper and effective in the circumstances”.

Interestingly, the treaties also contained different layers of oversight from international organisations. Returning to Article 12 again, it stated that “Poland agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction” of the treaty. The League of Nations “Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances”. The League established a petition procedure whereby aggrieved minorities could submit petitions to them concerning violations of the treaties. In practice, the League of Nations did not typically act in response to the petitions, but there are parallels with contemporary complaint systems e.g. at the UN Human Rights Council (see discussion in the UN Chapter).

In addition to these provisions, the treaties were also significant because they sought to establish judicial oversight of the measures within them through a petition procedure. According to Art. 14 of the Covenant of the League of Nations, the Permanent Court of International Justice (PCIJ – the precursor to the International Court of Justice) was competent to hear and determine any dispute of an international character which the contracting parties submitted to it (see also International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications). The PCIJ could also give an advisory opinion upon any dispute on questions referred to it by the Council or by the Assembly of the League of Nations (Advisory Opinions). The minorities themselves, however, could not address the court, as they had no standing.

The PCIJ actually heard cases related to the application of the minorities treaties. In the Rights of Minorities in Upper Silesia (Minority Schools) judgment, for example, the PCIJ heard a case concerning the right to education of minorities in Upper Silesia, a region split between Poland and Germany at the time. The dispute arose because Polish authorities had sought to establish the authenticity of applications for admission to minority (German-speaking) schools, which resulted in the authorities declaring that thousands of students did not belong to the linguistic minority and denying their applications to the minority schools. Germany asked the PCIJ whether the treaty allowed individuals to declare whether they did or did not belong to a racial, linguistic or religious minority and to choose the language they were taught in within public schools without submitting to “verification processes” by the authorities. The court ultimately held that the Treaty did “bestow upon every national the right freely to declare according to his conscience and on his personal responsibility that he does or does not belong to a racial, linguistic or religious minority and to declare what is the language of a pupil or child for whose education he is legally responsible” and the question of whether a person does or does not belong to a minority must be “subject to no verification, dispute, pressure or hindrance whatever on the part of the authorities”.

We should be careful not to overstate the impact of these treaties and the process surrounding them. The League of Nations was a failure, the petition system did not function as advertised and the PCIJ very seldom dealt with human rights issues in treaties. Nonetheless, this was a pivotal change, which foreshadowed later developments in International Human Rights Law. In this case and others like it, we see an international court issuing a binding judgment against a state on an issue of minority rights and instructing a sovereign state to modify its law and policy to better protect the right to education in the 1920s, which is exactly what human rights courts, like the European Court of Human Rights, do on a daily basis today. The incorporation of international institutional oversight and legal remedies for issues of human rights within these treaties was therefore an important step forward in the development of international human rights law.

Conclusion

This chapter has presented just a snapshot of the history of human rights developments, from the ancient era, through civil wars, and leading up to the protection of human rights in international law.  Questions around justice, punishment, and the role of the state underpinned the historical development of rights and were considered in societies across the world, and these questions continue to be relevant to how we view human rights issues in the modern day. The development of human rights in the US and France existed alongside slavery and other forms of colonial violence, and women and people of colour were excluded from constitutional rights protections. This shows us that human rights have been shaped by the social and cultural norms of the time and place and have thus been deeply flawed. However, anti-slavery and women’s rights movements demonstrate the role of civil society and marginalised groups in shaping our modern human rights, and we can continue to learn from human rights practices and movements across the world.

We ended this chapter with an overview of the development of human rights law through humanitarian protections and the creation of the League of Nations following World War I. While this was a failure, it paved the way for the creation of the United Nations after World War II (see the Chapter on the UN) and the three regional human rights bodies in Europe, Africa, and the Americas. These bodies are the product of this long and complicated journey of human rights development, and as you read more of this book, you will be able to identify aspects of this journey still reflected in the law and practice of human rights.

Further Reading

Many of the documents discussed in this chapter are available at Avalon Project

A collection of constitutions from around the world is available to view and compare.

Charles JM, ‘The Slave Revolt that Changed the World and the Conspiracy Against It: The Haitian Revolution and the Birth of Scientific Racism’ (2020) 51(4) Journal of Black Studies

Mutua, M. ‘The Ideology of Human Rights’ (1996) Virginia Journal of International Law 589

Rodley, N., ‘The Universal Declaration of Human Rights: Learning from Experience’ (2008) 5 (1) Essex Human Rights Review

Suggested Citation – Stuart Wallace and Zoe Tongue, ‘The History of International Human Rights Law’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)