The Origins of

1 Human Rights Law

This chapter examines the emergence of human rights law
in the domestic legal systems of the West in the 18th century
and the later emergence of international human rights law
in the 19th and 20th centuries.
The emergence of human rights law in
domestic legal systems in the West
In Britain, the Bill of Rights enacted in 1688 saw the end of
the ‘divine rule’ of kings and power ceded to Parliament, and
like the Magna Carta of the 13th century is often regarded as
a precursor of human rights law. In truth these texts are more
settlements between powerful interest groups, and one must
look further to the great texts of 100 years later—the
Declaration of Independence and the Bill of Rights in America
and the Déclaration des droits de l’homme et du citoyen in
France—for what one may properly recognise as modern
human rights law. These revolutionary documents rested on
three principles:
Œ Universal inherence—every human being has certain
rights which are not conferred on him (or her) but which
inhere in him by virtue of his humanity alone.
 Inalienability—he cannot be deprived of those rights by
another or by his own acts.
Ž The rule of law—just laws must be applied consistently,
independently, impartially and with just procedures.
To put these principles into practice, the US and France
employed written constitutions to declare and entrench a
catalogue of fundamental rights—a method subsequently
adopted by virtually every other nation in the world. The
traditional method adopted in Britain for protecting human

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rights in the absence of a written constitution and the

resistance to entrenchment is examined in Chapter 3.
With the emergence of these principles, there remained the
burning question among jurists of what source these principles
and any consequent laws had for their legitimacy. Throughout
the development of all legal systems, the difficulty has been in
establishing a plausible source for a standard against which
the legitimacy of laws may be judged. In the Middle Ages, claims
for a ‘divine’ source of law revealed in Holy Scripture served to
give legitimacy to state rulers. However, as Paul Sieghart
explains in his book, The International Law of Human Rights
(1983), this ‘single uncritical Christian based source of laws’
was already being questioned during the 15th century
renaissance, was fragmented by reformation in 16th and 17th
centuries and was eventually ‘openly challenged by the
Enlightenment in the eighteenth century and the rapid advances
of natural science in the nineteenth’.
The resultant search for a new source of laws saw the
development of the major political philosophies in the writings
of those such as Locke, Montesquieu, Rousseau, Paine,
Bentham and Marx. Some asserted the principles to be self-
evident truths, others that they could be derived from the ancient
theory of ‘natural law’. Some argued that they derived authority
from a ‘social contract’ between the ruler and his subjects, while
others like Jeremy Bentham rejected such principles of law
altogether as insufficiently specific. In his polemical attack
Anarchical Fallacies, written in the 1790s in response to the
declaration of rights issued in France, Bentham rejected any
concept of ‘natural rights’ or laws existing above all others,
famously describing the idea as ‘nonsense upon stilts’. He
believed that laws could only exist because government made
them and could enforce them (‘legal positivism’). While

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Bentham’s philosophies were extremely influential in the

adoption of much progressive social legislation in the UK, it is
these same arguments against the concept of any fundamental
or higher law that so greatly hindered the adoption of
international human rights law. Many of his objections continue
to be influential in contemporary political philosophy.
The emergence of international human
rights law
The fundamental principle underlying the ‘law of nations’ is
that of sovereignty. According to that principle, a sovereign
state has complete freedom to deal with its own nationals
and territory as it wishes. By seeking to impose restraints from
outside, the development of international law runs contrary to
the strict application of the principle. The adherence to this
principle, combined with the rejection by the positivists, such
as Bentham, of any inherent, inalienable fundamental laws,
greatly slowed the adoption of international human rights law.
The 19th century saw the slow emergence of modern
international law in the West. However, the pacts and
agreements formed during that century did little to protect
individual human rights directly and for the most part were
concerned with ensuring stability and co-operation at state
level. There were a number of enlightened international
conventions such as those to abolish slavery; however, beyond
those, the protection of individual rights by international
convention was limited.
The horrors of the First World War awakened a new sense
of purpose. In the peace treaties that ended the War, the
League of Nations was established for the promotion of
international peace and security, and the International Labour
Organisation (ILO) was established for the protection of

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workers’ rights. The League of Nations declared itself

guarantor for the rights of ethnic minorities within the new
state territories, a precursor of later human rights instruments.
However, the League oversaw as many failures as it did
successes. The continuing ascendance of positivist theories
and the strict application of the doctrine of national sovereignty
ultimately led to the rise of fascism and totalitarianism. The
failure of the Disarmament Conference and Germany’s
withdrawal from the League in 1933 highlighted the League’s
impotence.
The League’s chief success lay in providing the first pattern
for a permanent international organisation, a pattern on which
the later United Nations (UN) was modelled. The League’s
failures were due as much to the indifference of the great
powers (which preferred to reserve decisions on important
matters to themselves) as to weaknesses of the organisation.

After the Second World War

The unprecedented atrocities that were carried out with
complete legality under National Socialist legislation in
Germany during the 1930s and 1940s, and similarly by the
regime in the USSR, spelt the political end for both the strict
theory of legal positivism and the strict application of the
doctrine of national sovereignty. The Second World War would
sweep aside any remaining reluctance about impinging on
national sovereignty. It was now abundantly clear that the basic
rights of individuals needed to be protected in international
law.
When the War ended, and in an attempt to avoid such a
cataclysm in the future, the victorious nations established the
UN with a view to providing international safeguards in the
relationship between governments and their own subjects. The

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UN had 50 members in 1945; it now has approaching 200

members. Article 1 of the United Nations Charter of 1945 seeks
among its purposes ‘to achieve international cooperation…in
promoting and encouraging respect for human rights and for
fundamental freedoms for all’. Articles 55 and 56 record the
‘pledge’ of UN Member States to take joint and separate action
to achieve ‘universal respect for, and observance of, human
rights and fundamental freedoms for all’.
The UN’s initial task after the War was to formulate an up-
to-date catalogue of human rights and freedoms to be
incorporated into international law. Drawing upon the many
existing systems of domestic human rights law, the Universal
Declaration of Human Rights (UDHR), the first international
catalogue of human rights and fundamental freedoms, was
adopted by the UN General Assembly in Paris in 1948.
The establishment of the UN, a ‘global’ organisation, was
quickly followed by the establishment of regional organisations
with similar aims adapted to the needs of more closely related
groups of Member States (eg, the Organization of American
States (1948) and the Council of Europe (1949)). Similarly,
the UDHR inspired several regional conventions. Less than
two years after the adoption of the UDHR, the west European
Member States of the Council of Europe drafted the European
Convention on Human Rights (ECHR), which entered into force
in 1953.
The ECHR provisions were in many aspects more detailed
than those of the UDHR; clearly, agreement on more detailed
provisions is easier and quicker to achieve among governments
within the same geographic region, sharing a common history
and cultural tradition. In general, regional treaties or conventions
are apt to apply more stringent obligations upon their member
states. However, the UDHR was eventually supplemented by

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two more detailed covenants: the International Covenant on

Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICES). The
ICCPR does provide greater protection than the ECHR in
respect of certain rights, such as non-discrimination, a fair trial
and treatment while in detention; also, the ECHR mainly
confined itself to the protection of civil and political rights. Yet
the diverse ideologies and traditions of the UN Member States
delayed the Twin Covenants coming into force until 1976.
The crucial differences between the ECHR and the global
covenants are the provisions for application and enforcement,
which in the case of the regional covenant go much further than
the UN covenants. The ECHR established a permanent
Commission and Court of Human Rights for this purpose, which
along with the Council of Europe have their seats in Strasbourg,
France. It should be remembered that these institutions are
constitutionally distinct from, and must not be confused with,
the institutions of the European Union (the European Parliament
also in Strasbourg, the Council and Commission in Brussels,
and the Court of Justice in Luxembourg).
A full examination of the provisions and procedures under
the ECHR is provided in Chapter 2. Before moving on to that,
some general points may be made on the implications for
Member States participating in international conventions and
their influence upon domestic law.

Participating in international instruments

Rules relating to international agreements have been codified
in the Vienna Convention on the Law of Treaties (concluded
1969, in force 1980). The Convention provides guidance on
the conclusion of agreements, which may be outlined in the
chart opposite.

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Influence upon domestic law

It is well settled that international law will apply to a state
regardless of its domestic law; it cannot plead its own domestic
law or constitution as an excuse for breaches of international
obligations (Art 27 of the Vienna Convention), Yet the question
of whether international law forms a part of domestic law is
more complex. There are two contrasting approaches, which
may be characterised by two academic schools of thought:
‘monism’ and ‘dualism’.
Monists contend that there is one system of law, with
international and domestic laws as but two aspects of that
one system. International law is superior, in that it represents
a higher set of rules to which domestic law must yield. For
example, the US Constitution regards international treaties
that bind the US as ‘the supreme law of the land’ (Art VI, s 2).
Similarly, in France and Germany, international law generally
takes precedence in domestic law without the need to enact
domestic legislation. In this approach, the provisions of
international law are sometimes described as ‘self-executing’.
Dualists, on the other hand, contend that these two kinds
of law are distinct and separate, governing different areas
and relationships, and different in substance. International
law is inferior, and can only ever become part of domestic law
by being incorporated into it by domestic legislation. This is
the case in the UK courts, where the legal system is entirely
dualist and there are no provisions for international law to be
‘self-executing’. So, for example, prior to incorporation of the
ECHR, in Malone v Metropolitan Police Commissioner (No 2)
(1979), Vice Chancellor Megarry stated that ‘the [ECHR] is
not law here’ and as such he had no jurisdiction to declare
police tapping of phone calls to be a violation of Art 8 of the
ECHR.

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The approach adopted by judges in the UK and the position

of the ECHR in English law prior to incorporation by the Human
Rights Act 1998 is considered more fully in Chapter 3.

A new era
Whichever approach is taken at the domestic level, the
emergence of international human rights law after 1945 was
a revolution in the field. In the classical tradition, international
law could only deal with the relations between states, not with
the rights of individuals. The adoption of the UDHR and its
sibling conventions signalled the end of that era.
For a fuller examination of the emergence of international
law after 1945 and the text of the most important treaties, see
Paul Sieghart, The International law of Human Rights (1983).

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