History of Human Rights

• Author: Mark Freeman, Gibran Van Ert
• Pages: 3-23

The field of international human rights law has disparate historical ori-

gins. Among the most important early developments were the emer-

gence of public international law and the idea of individual rights in

the period following the Treaty of Westphalia 1648. Although histori-

cally international law did not embrace individual rights, there were

some exceptions in the nineteenth and early twentieth centuries. The

formal emergence of the field of international human rights law coin-

cided with the adoption of the Universal Declaration of Human Rights

1948 (UDHR), but even it was preceded by other key events including

the adoption of the Charter of the United Nations 1945 (UN Charter),

the establishment of the UN, and the international trials of Nuremberg

and Tokyo. All of these developments will be reviewed in this chapter,

with the exception of the UDHR. It is examined in Chapter Four.

A. The Development of Public

International Law

“Public international law” refers to the corpus of law governing rela-

tionships between states. It is to be distinguished from “domestic law”

(also known as “municipal” or “national” law), which at its most gen-

eral level refers to the laws applicable within a state and not between

states. It is also to be distinguished from “private international law”

3

History of Human

Rights

chapter 1

(also known as “conflict of laws”), which at its most general level refers

to rules of domestic law that govern the relationship between domes-

tic and foreign law in the context of transactions or events that involve

one or more foreign elements.

Although there have long been rules about the relationships

between states, the advent of public international law is generally

agreed to have occurred in Europe following the Peace of Westphalia

in 1648. The Peace of Westphalia signalled the end of the Thirty Years’

War and marked the creation of the modern independent state. Protes-

tant states had fought the war largely in order to free themselves more

fully from the control of the Catholic Church, while member states of

the Holy Roman Empire had fought the war largely to free themselves

more fully from the Empire. At the end of the war, many of these states

became free from their respective sources of external control, acquiring

powers to independently enter into and withdraw from treaties with

other states, wage war and declare peace, and, most importantly, man-

age domestic affairs without external interference.1Accompanying

these events was an emerging scholarship on the idea of international

law, led by Hugo Grotius who is often described as the intellectual

founder of public international law.2This early international law schol-

arship was focused exclusively on the rights of states. The notion of

international human rights was still a long way off.

Over the following two centuries, the newly independent states of

Europe increasingly asserted themselves, each centralizing its control

over domestic affairs and entrenching its external independence. The

interaction among states during this period produced the founding

tenets and practices of international law. Three inter-related tenets

attained broad acceptance: (i) states are free under international law

(and thus only bound by it upon their consent),3(ii) states are sover-

eign under international law (and thus able to exercise exclusive juris-

4international human rights law

1 J. Currie, Public International Law (Toronto: Irwin Law, 2001) at 6–7.

2 Grotius’ principal work on international law is De Jure Belli ac Pacis Libri Tres

(Three Books on the Law of War and Peace), trans. by F. Kelsey (Oxford: Oxford

University Press, 1925) [Grotius, De Jure Belli ac Pacis Libri Tres]. Other impor-

tant scholars of the time (collectively known as the “primitives”) included Fran-

cisco de Vitoria, Alberico Gentili, and Francisco Suarez.

3 A partial exception to this within contemporary international law is the princi-

ple of jus cogens, discussed in Chapter Three. For a more general challenge to

the consent-based theory of international law, see B. Simma, “From Bilarteralism

to Community Interest in International Law” (1994) 250 (VI) Recueil des Cours

221 at 257-27.