History of Human Rights

AuthorMark Freeman, Gibran Van Ert
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”
History of Human
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.

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