A short history international human rights law.

• Author: Viljoen, Frans

The phrase "human rights" may be used in an abstract and philosophical sense, either as denoting a special category of moral claim that all humans may invoke or, more pragmatically, as the manifestation of these claims in positive law, for example, as constitutional guarantees to hold Governments accountable under national legal processes. While the first understanding of the phrase may be referred to as "human rights", the second is described herein as "human rights law".

While the origin of "human rights" lies in the nature of the human being itself, as articulated in all the world's major religions and moral philosophy, "human rights law" is a more recent phenomenon that is closely associated with the rise of the liberal democratic State. In such States, majoritarianism legitimizes legislation and the increasingly bureaucratized functioning of the executive. However, majorities sometimes may have little regard for "numerical" minorities, such as sentenced criminals, linguistic or religious groups, non-nationals, indigenous peoples and the socially stigmatized. It therefore becomes necessary to guarantee the existence and rights of numerical minorities, the vulnerable and the powerless. This is done by agreeing on the rules governing society in the form of a constitutionally entrenched and justiciable bill of rights containing basic human rights for all. Through this bill of rights, "human rights law" is created, becoming integral to the legal system and superior to ordinary law and executive action.

In this article, some aspects of the history of human rights law at the global, regional and subregional levels are traced. The focus falls on the recent, rather than the more remote, past. To start with, some observations are made about the "three generations" of human rights law.

THREE GENERATIONS OF INTERNATIONAL HUMAN RIGHTS LAW

Human rights activism can be described as a struggle to ensure that the gap between human rights and human rights law is narrowed down in order to ensure the full legal recognition and actual realization of human rights. History shows that governments do not generally grant rights willingly but that rights gains are only secured through a successful challenge to absolutist authority. Following on the Magna Carta, which set limits on the powers of royal Government in thirteenth century England, the 1776 American Declaration of Independence and the 1789 French Declaration des droits de l'Homme et de du citoyen (Declaration of the Rights of Man and Citizen) were landmarks of how revolutionary visions could be transformed into national law and made into justiciable guarantees against future abuse.

The traditional categorization of three generations of human rights, used in both national and international human rights discourse, traces the chronological evolution of human rights as an echo to the cry of the French revolution: Liberie (freedoms, "civil and political" or "first generation" rights), Egalite (equality, "socio-economic" or "second generation" rights), and Fraternite (solidarity, "collective" or "third generation" rights). In the eighteenth and nineteenth centuries, the struggle for rights focused on the liberation from authoritarian oppression and the corresponding rights of free speech, association and religion and the right to vote. With the changed view of the State role in an industrializing world, and against the background of growing inequalities, the importance of socio-economic rights became more clearly articulated. With growing globalization and a heightened awareness of overlapping global concerns, especially due to extreme poverty in some parts of the world, "third generation" rights, such as the rights to a healthy environment, to self-determination and to development, have been adopted.

During the period of the cold war, "first generation" rights were prioritized in Western democracies, while second generation rights were resisted as socialist notions. In the developing world, economic growth and development were often regarded as goals able to trump "civil and political" rights. The discrepancy between the two sets of rights was also emphasized: "civil and political" rights were said to be of immediate application, while "second generation" rights were understood to be implemented only in the long term or progressively. Another axis of division was the supposed notion that "first generation" rights place negative obligations on States while "second generation" rights place positive obligations on States. After the fall of the Berlin Wall, it became generally accepted that such a dichotomy does not do justice to the extent to which these rights are interrelated and interdependent. The dichotomy of positive/negative obligations no longer holds water. It seems much more useful to regard all rights as interdependent and indivisible, and as potentially entailing a variety of obligations on the State. These obligations may be categorized as the duty to respect, protect, promote and fulfil.

GLOBAL LEVEL

For many centuries, there was no international human rights law regime in place. In fact, international law supported and colluded in many of the worst human rights atrocities, including the Atlantic Slave Trade and colonialism. It was only in the nineteenth century that the international community adopted a treaty abolishing slavery. The first international legal standards were adopted under the auspices of the International Labour Organization (ILO), which was founded in 1919 as part of the Peace Treaty of Versailles. ILO is meant to protect the rights of workers in an ever-industrializing world.

After the First World War, tentative attempts were made to establish a human rights system under the League of Nations. For example, a Minority Committee was established to hear...