JAMIA MILLIA ISLAMIA

THE ORIGIN AND DEVELOPMENT OF HUMANITARIAN

LAW

SUBMITTED TO SUBMITTED BY
DR. MOMIN NOORJAHAN Sandeep Chawda
5th sem
Regular

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ABSTRACT

The belief that everyone, by virtue of her or his humanity, is entitled to certain human rights is
fairly new. Its roots, however, lie in earlier tradition and documents of many cultures; it took the
catalyst of World War II to propel human rights onto the global stage and into the global
conscience.

Throughout much of history, people acquired rights and responsibilities through their
membership in a group – a family, indigenous nation, religion, class, community, or state. Most
societies have had traditions similar to the "golden rule" of "Do unto others as you would have
them do unto you." The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran
(Koran), and the Analects of Confucius are five of the oldest written sources which address
questions of people’s duties, rights, and responsibilities. In addition, the Inca and Aztec codes of
conduct and justice and an Iroquois Constitution were Native American sources that existed well
before the 18th century. In fact, all societies, whether in oral or written tradition, have had
systems of propriety and justice as well as ways of tending to the health and welfare of their
members.

INTRODUCTION

The extensive legal protection for human rights that currently exists in national, regional and
international law is the product of millennia of struggle by individuals concerned with human
justice and well-being. These visionaries have provided inspiration and guidance, some of
them acting out of religious belief and duty, others out of compassion or a sense of
responsibility. Perhaps like Edmund Burke they believed that "All that is necessary for the
triumph of evil is that good men [and women] do nothing." Or, like Margaret Mead they
"d[id] not make the mistake of thinking that concerned people cannot change the world; it is
the only thing that ever has."
This short course cannot present a detailed history of all the intellectual, cultural, and
legal developments that have evolved and merged into the current international system for

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the protection of human rights. It does, however, attempt to indicate the principal currents,
events and individuals who contributed to the present human rights era.

National Cultural, Religious and Legal Antecedents

a. Religious traditions: "all of the major religions of the world seek in one way
or another to speak to the issue of human responsibility to others." (Lauren, p. 5)

• Hinduism (texts: Vedas, Agamas, Upanishads) address the necessity for

moral behavior, the importance of duty (dharma) and good conduct toward
others suffering in need. Practice charity and compassion for the hungry,
the sick, the homeless, and the unfortunate. All life is sacred, to be loved
and respected. "Noninjury (ahimsa) is not causing pain to any living being
at any time through the actions of one's mind, speech or body." (Veda)

• Judaism: sacredness of the individual endowed with worth and equal

value. Isaiah 58:6-7: "undo the tongs of the yoke, let the oppressed go
free. . . share your bread with the hungry, and bring the homeless poor
into your house."

• Buddhism: Respect for all life and duties of compassion and charity;
urged renunciation of differences of caste and rank in favor of universal
brotherhood and equality.

• Confucianism: (texts: Analects, Doctrine of the Mean, and Great

Learning) Harmony and cooperation exist when duty and responsibility
towards others leads to treating all human beings as having equal work
and recognizing that "within the four seas, all men are brothers." The
fundamental teaching "Do not impose on others what you yourself do not
desire." Analects, XV, 23. "If there be righteousness in the heart, there
will be beauty in the character. If there is beauty in the character, there

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 will be harmony in the home. If there is harmony in the home, there will
be order in the nation. If there be order in the nation, there will be peace
in the world." Great Learning, cited in Smith, 181.

• Christianity: A message of equality: "there is neither Greek nor Jew, nor

slave nor free, nor man nor woman, but we are all one in Christ." Gal.
3:28. Respect for others: "Do unto others as you would have them do
unto you."

• Islam: Charity or lifting the burdens of those less fortunate is one of the
pillars of belief. The Qur-an speaks to justice, the sanctity of life, freedom,
mercy, compassion and respect for all human beings. All races are equal
and religious toleration should be guaranteed. The first declaration of
religious freedom in the world proclaimed that Jews and Christians shall be
protected from all insults and vexations; they shall have an equal rights and
shall practice their religion as freely as the Muslims.

Note that these texts generally do not speak of rights, but instead address moral
duties and responsibilities towards others. At the same time, the rationales underlying
these duties -- equality, human dignity, and the sacredness of life -- provide a foundation
for the concept of human rights.

b. Cultural and philosophical roots

• Hsün-tzu, Chinese philosopher @ 400 B.C.: "In order to relieve anxiety

and eradicate strife, nothing is as effective as the institution of corporate
life based on a clear recognition of individual rights." UNESCO, p. 303
• African traditions: see UNESCO, pp. 43, 189, 269.

• Greek philosophy: developed the idea of natural law including equal

respect for all citizens, equality before the law, equality in political
power and suffrage, and equality of civil rights.

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 • Cicero: natural law and universal justice binds all human society together
and applies to all without distinction. Each person has unique dignity
which imposes on all the responsibility to look after others. This natural
law is eternal and unchangeable and valid for all nations and all times.

• John Locke: Second Treatise of Government (1690): every individual

person in the state of nature possesses certain natural rights prior to the
existence of any organized government. People are born in a state of
perfect equality and enjoy all rights equally. Societies and governments
are formed to preserve these rights, not to surrender them.

• Jean-Jacque Rousseau: Man is born free with intrinsic worth.

• Olympe de Gouge (nom de plume of Marie Gouze): Declaration of the

Rights of Woman and Citizen (France 1791): "woman is born free and
remains equal to man in her rights". In 1793, de Gouge was beheaded.
• Thomas Paine introduced the expression "human rights" in his best
seller The Rights of Man (1791). He ascribed inspiration to the religious
traditions that all observed the unity of humankind and the equality of all
individuals.
• e Rights of Women.

c. National laws

• Babylon: Code of Hammurabi (1795-1750 B.C.) The oldest legal code

known today was itself based upon earlier texts that are now lost. It
represented a codification and development of the customary law of the
region. While many aspects of it today are incompatible with human
rights (in particular the punishments imposed), other portions established
basic human rights principles such as equal protection of the law and
remedies for mistreatment of prisoners.

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• Laws of the Pharaohs: "Make sure that all is done according to the law,
that custom is observed and the right of each man respected." Lauren, 10.
• Persia: Charter of Cyrus: liberty and security, freedom of movement and
religious belief, the right to property, and some other economic and social
rights.

• India: Edicts of Asoka (300 B.C.): Guaranteed freedom of religion and

other rights. Other Indian customary law developed humanitarian laws of
war, protecting all places of religious worship, civilian houses and
property against attack. The wartime principle of discrimination is found
in the Law of Manu: no killing is permitted of one who is sleeping; who is
without his armour; one who is naked; who is deprived of his weapons;
one who is only looking on and not fighting, and one who is engaged in
fighting with another person. Prisoners of war, the sick and the wounded
were to be well treated. Nirmal, p. 2

• Spain, Kingdom of Leon (1188): Confirmation of the rights of the

assembly including the rights of an accused to a trial and the inviolability
of life, honor, home and property.

• England: The Magna Carta (1215), Petition of Right (1628) and Habeas

Corpus Act (1679): Although imposed by - and largely for - the

nobility, the Magna Carta also contained more broadly applicable civil
rights and established the rule of law: "no freeman shall be arrested, or
detained in prison or deprived of his freehold . . . except by the lawful
judgment of his peers or by the law of the land."

• Hungary: The Golden Bull (Aranybulla, 1222): During the reign of

King András, the Golden Bull recognized the “Hungarian Nation” and
created the framework for an annual meeting of the Diet. The text,
considered the first written Hungarian constitution, was issued at the

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 insistence of the nobility to safeguard their rights. The last item of the
Golden Bull assures the right of individuals to disobey royal acts not
conforming to the law, in effect creating a constitutional monarchy. Any
noble arrested was entitled to a fair trial.

• Virginia: Declaration of Rights (1776): "all men are by nature equally

free and independent, and have certain inherent rights."

• United States: Declaration of Independence (1776): "We hold these truths

to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable rights, that among these are life,
liberty and the pursuit of happiness. That to secure these rights,
governments are instituted among men, deriving their just powers from the
consent of the governed. That whenever any form of government becomes
destructive of those ends, it is the right of the people to alter or to abolish
it, and to institute new government."

• France: Declaration of the Rights of Man and Citizen (1789): "All are
born and remain free and equal in rights." These rights are "natural and
imprescriptible." Political rights include: the right to vote, to participate in
politics. Civil rights: the right to equality before the law, the right to be
protected against arbitrary arrest or punishment, the right to be presumed
innocent until proven guilty, the right to hold personal opinions and
religious beliefs, the right of freedom of expression, and the right to
possess property.

• United States (1791): Bill of Rights to the U.S. Constitution approved by

the States.

Why traditions of tolerance and national laws were insufficient:

For each person favoring human rights throughout the world there were powerful
opponents who sought to retain privilege, hierarchy, hereditary rule, property, continuity

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 and caste. Human rights proponents were challenging and in turn challenged by vested
interests: Thomas Paine was hung in effigy in English cities; Voltaire's writings were
banned. Conservative authors referred to the "monstrous fiction" of human equality.
Jeremy Bentham rejected the idea of natural law, calling it "simple nonsense" and
labeling human rights "nonsense on stilts." People should know "their proper place."
The notion of divine right of rule continued in many countries. Ruling elites
aimed to maintain power and cultural practices subordinating women, children, racial
minorities and workers. Slavery was widespread and torture was a prevalent method of
investigation and punishment. Executions were held in public places and capital
punishment was imposed for a wide variety of offenses. Educational opportunities were
limited to the very rich, a few landholders dominated the numerous and landless poor.
Some human rights abuses gave problems even to rulers because they led to long and
impoverishing wars. In particular, religious persecution, forced conversions, and
massacres of religious minorities provoked conflicts throughout the world. After repeated
and prolonged wars in Europe, peace treaties began to include the first human rights
provisions, guaranteeing freedom of religion.

International Law Before the Twentieth Century: Addressing Specific Issues

While the concept of internationally protected human rights in general did not
appear until the twentieth century, specific human rights issues emerged and were matters of
international concern as early as the seventeenth century.

a. Religious Liberty: On October 24, 1648, the Articles of the Treaties of Peace signed at
Munster and Osnabruck, in Westphalia, ended the Thirty Years War between Protestant and
Catholic areas of Europe. While the Treaty of Westphalia is often cited as the beginning of the
nation-state system and modern international law, the Treaty is also significant in containing
various provisions which today are part of human rights law. First, the treaty declares an amnesty
for all offenses committed during the "troubles" (art. II) and provides for restitution of property
and ecclesiastical or lay status (art. VI-XXXIV). Second, freedom of contract is indicated by
annulling those contracts procured under duress and threats. Freedom of movement, of
commerce, and the right to legal protection are included. .

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 The protection of religious liberty continued to be a matter of concern in Europe
through the Congress of Vienna (1814 -1815) which acknowledged that religious
intolerance could jeopardize international peace and security. Thus, the participating
states pledged to maintain religious equality and assure equal protection and favor to
every sect. They specifically agreed to effect "an amelioration in the civil state of those
who profess the Jewish religion in Germany," paying "particular attention to the
measures by which the enjoyment of civil rights shall be secured and guaranteed to
them." (Federative Constitution of Germany, annexed to the Congress of Vienna Treaty,
9 June 1815)

b. Abolition of Slavery and the Slave Trade: Among the first widespread efforts of the nineteenth
century to protect humanity against injustice were those aimed at the institution of slavery.
Slavery had existed throughout history and across the world, but it changed fundamentally in the
sixteenth century with the trans-Atlantic slave trade from Africa. The numbers alone exceeded
any past practice. Moreover, slavery came to focus on Africa and lead to the emergence of
ideologies of racism, apartheid, and segregation. From the sixteenth to the nineteenth century,
the international slave trade flourished and slavery was legally practiced in most countries of the
world.
Throughout the first part of the nineteenth century, public pressure grew. In Britain public
agitation forced members of Parliament to confront the issue. As early as 1807, public opinion
forced votes in the US Congress and British Parliament to end the participation of both countries
in slave trading. The U.S. Act to Prohibit the Importation of Slaves was matched by the British
Act for the Abolition of the Slave Trade. Both made it illegal to trade in, purchase, sell, barter,
transport any human cargo for the purpose of slavery.
Neither law could be effective, however, without international measures of
enforcement and the agreement of other nations. The focus turned to the Congress of
Vienna in 1814-1815, where anti-slavery activists, who viewed the issue as one of
fundamental moral and religious obligation, pressed for action. About this time, Thomas
Clarkson's highly influential tract Evidence on the Subject of the Slave Trade, was
translated from English into French, German, Spanish, and Italian. The British delegate at
the Congress of Vienna complained about the public pressure being mounted, but its force
could not be denied. The Congress of Vienna established a special committee on the
international slave trade and finally agreed to sign the Eight Power Declaration which

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acknowledged that the international slave trade was "repugnant to the principles of
humanity and universal morality" and that "the public voice in all civilized countries calls
aloud for its prompt suppression." Yet the declaration did not make slave trading a crime,
sanction the arrest of slavers or provide machinery for enforcement.

Treaty language soon followed, however. During the Congress iteself, a Treaty
signed Nov. 20, 1815 between Britain, Russia, Austria, Prussia and France included a
pledge to consider measures "for the entire and definitive abolition of a Commerce so
odious and so strongly condemned by the laws of religion and nature." The Treaty of
Ghent signed by the US and Britain the same year declared that traffic in slaves
"irreconcilable with the principles of humanity and justice." Treaty of Peace and Amity,
18 Feb. 1815, 12 T.I.A.S. 47.
Anti- slavery societies continued their pressure, led by Wilberforce in the UK. In
addition, the Pope issued instructions to all Catholics to abstain from the slave trade. In
1840, the first World Anti-Slavery Conference was organized. Eventually governments
responded. By 1882, a network of more than fifty bilateral agreements permitted the
search of suspected slave ships on the high seas, without regard to flag. Internally, states
slowly emancipated their slaves in response to public pressure. Britain did so in 1833,
France in 1848, most Latin American countries did so as they became independent
(Bolivar was a leading opponent of the slave trade and proclaimed the emancipation of
slaves in 1816). The issue of slavery became a major motivation for the U.S. War
between the States and President Lincoln issued the Emancipation Declaration in 1863.
Cuba and Brazil were the last countries in the Western Hemisphere to abolish slavery, in
the late 1880s.

By 1890 governments were prepared to take effective international action. They

negotiated the 1890 General Act for the Repression of the African Slave Trade, which
referred to the "crimes and devastations engendered" by trafficking in humans. The
convention required actions be taken to suppress the slave trade at sea and along inland
caravan routes, to prosecute and punish slave traders, and to liberate captured slaves. The
agreement thus reflected the principle of shared international responsibility to respond to
gross human rights violations and marked the first general agreement on a common

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standard of behavior for all states. (Further agreements on abolition of slavery and
repression of the slave trade were concluded in 1919, 1926, and 1956).

c. The emergence of international humanitarian law:

As early as the fourth century B.C., Chinese military theorist Sun Tzu wrote in
The Art of War that an obligation exists to care for the wounded and prisoners of war.
Yet, for the most part warfare was not governed by any mutually acceptable rules
limiting the actions of soldiers. The Industrial Revolution had a military side to it and
weaponry began an on-going evolution of increased destructiveness. Armies became
more professional and larger, as conscription spread during following the Napoleonic
Wars. At the same time, the emergence of the press and increased literacy brought home
the horrors and atrocities of conflict. The confluence of all these factors led to growing
concern with the conditions of war, the treatment of wounded and sick, and the protection
of civilians.

The U.S. Civil War and the Crimean War in Europe brought public attention
forcefully to bear on wartime conditions. The U.S. produced the Lieber Code, the first
western written regulation of armed conflict. In Europe in 1859, Henry Dunant witnessed
the Battle of Solferino, where three hundred thousand troops battled for fifteen hours,
leaving thousands of wounded among the dead. Dunant's account of the battle aroused
public opinion and others offered to support Dunant in an effort to create an international
relief society to care for the wounded as individual human beings without regard to
nationality, class, or race. An organizing committee invited governments to send
representatives to Geneva in order to translate this dream into reality. The Geneva
International Conference met in 1863 and attracted 30 delegates from 14 countries, as
well as four funding agencies. They left the meeting having created a Geneva-based
private international organization, the International Committee of the Red Cross.

Within a year, the ICRC, led by Dunant, organized a second conference of

government representatives. They negotiated the 1864 Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field, the first
international agreement to protect individuals in times of war. The treaty required all

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 signatories to acknowledge and respect the neutrality or immunity of military hospitals
and their staffs, and to protect them from attack. Red Cross societies and volunteers
quickly emerged and became visible in every subsequent conflict.
By 1899 the Hague Peace Conference could conclude a broad Convention on the
Laws and Customs of War on Land that explicitly spoke of the "rights" of the wounded to
receive medical treatment, of prisoners of war to be given food and clothing and
protection under the law, of individuals to be considered inviolable when surrendering,
and of civilians to be protected from unlimited warfare. In 1907 the Hague Peace
Conference extended humanitarian law by concluding new agreements on land and
marine warfare.

In the agreements the Marten's Clause expressed the consensus of participants

that the means and methods of warfare are not unlimited.1
d. Protection of citizens abroad

International travel has always been hazardous. Throughout history, merchants,

diplomats and others traveling abroad have been vulnerable to robbery, murder,
enslavement, or impressment. Ships at sea were frequently looted by privateers or pirates.
The loss of a national was and still is seen as the loss of a valuable asset belonging to the
sovereign, whether prince or state. Those who caused harm to foreign nationals
diminished the wealth of the sovereign to whom such nationals were deemed to belong.
Through protests, reprisals, interventions, and other state practice the rule emerged that a
state was responsible for acts committed against foreign nationals within its territory and
by its nationals on the high seas. The ruler of the acting party and the state itself were
deemed to be collectively responsible for the damage caused to the foreign citizen. The
victim’s ruler could authorize the victim, his family, or commercial partners to use self-
help against the other country and its citizens. These letters of marque and reprisal
authorized the capture of vessels or cargoes belonging to the state whose nationals were
responsible for the wrong, but over time several procedural pre-requisites were developed.

1
Convention Respecting the Laws and Customs of War on Land, Habue IV, 18 October 1907; and
Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, Hague X,
October 1907. The Marten's Clause reads: "Until a more complete code of the laws of war has been ieeud, the High
Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the
inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as
they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the
public conscience."
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Most importantly, it emerged that those wronged had to first seek to obtain justice from
the government of the country in which the damage occurred or whose citizens inflicted
the injury. Only after a denial of justice were reprisals authorized.2 Secondly, reprisals had
to be proportional to the wrong done; some countries required strict accounting to the
government for the execution of reprisals. By the nineteenth century, reprisals for injuries
to aliens were removed from private hands and became the prerogative of the state and by
the middle of that century the concept arose of peaceful, third party settlement of disputes
by arbitration or claims commission. In presenting such claims, the petitioning state was
deemed to be asserting its own right to ensure that its subjects were not mistreated in
violation of international law.

In rare instances, a state would claim the right to intervene not only for the
protection of its own nationals, but on behalf of oppressed minorities. In 1860, the major
European powers authorized France to intervene to protect the Christian population in
Lebanon against massacres by the Druses. Russia similarly intervened in Bulgaria in the
1970s. Weaker states rightly objected to the selectivity and self-interest that motivated
many so-called humanitarian interventions.

The Early Twentieth Century:

The turn of the century saw a wave of globalization with technological advances
in communications (telephone and telegraph) and transportation (rail networks,
steamships) accompanied by increasing mobility of wealth through movements of capital
and labor. The world became smaller and international awareness increased. NGOs
increased in number and variety. The first intergovernmental organizations were formed,
starting with the International Telegraph Union (1865), the International Postal Union
(1874) and the International Meteorological Organization (1878). Among the NGOs, the
Ligue des Droit de l'Homme, which published its first information in 1901, sought to
ensure liberty, justice, equality and fraternity to all humanity. It organized conferences
and pressured governments on human rights throughout the world. In Iran and China

2
Treaties requiring exhaustion of local remedies can be found as early as the ninth century (e.g. Treaty
between Naples and Benevent of 836; Treaty between Lothar I and Venice of 840).

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authors published works promoting the rights of individuals. (See e.g., Talibov-I Tabrizi,
Explanations Concerning Freedom, and Kang Youwei, The Book of Great Harmony).
The International Office of Public health, created in 1907 advocated a global right to
health.

On the regional level, the effort to create a confederation of Latin American states
in 1826 led to a series of regional meetings to discuss mutual defense and other forms of
cooperation. Prior to 1980, these meetings or Congresses, were convoked in response to
specific problems or needs. They became institutionalized with the holding of the First
International American Conference in Washington D.C. in 1889-1890. This Conference
created “The International Union of American Republics,” later changed to the “Pan
American Union” which met in regular sessions until 1938 and then emerged after World
War II as the Organization of American States. The Union took up human rights issues
very early;3 it adopted a Convention relative to the Rights of Aliens in 1902,
supplemented in 1928, conventions on asylum in 1928 and 1933, and a convention on
nationality in 1933 (other conventions on the rights of women are mentioned below).
World War I and events surrounding it proved the dangers of nationalism and
ethnic conflict; many ethnic and religious minorities suffered great loss of life. The
carnage led to international efforts to ensure minority rights. The revolutions of the early
twentieth century drew the attention of all governments to the dangers of denying
economic, social and cultural rights.

a. Economic and Social Rights: capitalism, industrialization and the formation of the
ILO
In the nineteenth century serfdom was abolished in many countries, but the
emergence and development of the Industrial Revolution led to a rapid expansion in the
numbers of exploited workers, including young children, in urban centers, primarily in
Europe and North America. The average factory work week in Europe in the mid-
nineteenth century was eight-four hours. Poverty, starvation, epidemics, and crime were
rampant. The obvious social injustices provoked reform movements within countries and
eventually on the international level.
3
Note that the 1826 Treaty of Perpetual Union, League and Confederation (Panama), which never entered
into force recognized the principle of juridical equality of nationals and foreigners and pledged cooperation
in the abolition of the slave trade.

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 Workers fought to create the first trade unions and to take action against abuses.
Socialism and Communism emerged as forces. The Catholic Church took up the issue of
social justice, most famously in the 1891 encyclical Rerum Novarum of Pope Leo XIII,
which focused on "the natural rights of mankind." The encyclical affirms the right of
everyone to procure for themselves and their families the basic needs of life. "Human
rights must be religiously respected wherever they are found; and it is the duty of the
public authority to prevent and punish injury and to protect each one in the possession of
his own. Still, when there is question of protecting the rights of individuals, the poor and
helpless have a claim to special consideration. The richer population have many ways of
protecting themselves."
The dangers of denying a decent living were apparent in the years before and after
World War I. Revolution came to Mexico, Russia, and Ireland. Riots and strikes occurred
in Germany, Russia, Austria, and Italy. The 1910 Mexican Revolution resulted in the first
constitution in the world containing guarantees of economic, social and cultural rights.
During the same year, 1917, a Chilean jurist, Alejandro Alvarez drafted
the "International Rights of the Individual" arguing the need for internationally-protected
human rights for all. Lenin's Declaration of the Rights of the Peoples of Russia called for
abolishing all privileges and disabilities based on nationality or religion.

Even before the revolutions and World War I, governments under pressure to
reform realized the necessity of international action in order to avoid distortions in
competition coming from low labor standards. Some of them met to form the
International Association for the Protection of Labor, with an International Labor Office.
In 1906 they concluded two conventions -- one on night work for women and the other
prohibiting phosphorus in the manufacture of matches -- for the protection of specific
economic and social rights, for the first time obliging governments to respect certain
rights of their own citizens. Following the end of the War, pressed by labor unions,
governments created a Commission on International Labor Legislation comprised of
labor representatives. The Commission produced a draft convention for the establishment
of a permanent organization for international labor law, to promote "lasting peace
through social justice." The proposal envisaged a membership of states represented by a
unique tripartite structure of government, labor, and business.

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 The Commission also produced a second text, a statement of general principles
that declared "labor should not be regarded merely as a commodity or article of
commerce," and that human beings are entitled to "a reasonable standard of life." Other
principles called for adoption of an eight -hour working day, abolition of child labor,
rights of association and equal pay for men and women for equal work.
Many of the general principles were combined with the draft convention to
become the Constitution of the International Labor Organization. It was an organization
founded on human rights principles and its subsequent work has elaborated on and
detailed aspects of economic and social rights. The mandate of the ILO was echoed in the
Covenant of the League of Nations in which all members pledged themselves "to secure
and maintain fair and humane conditions of labor for men, women and children, both in
their own countries and in all countries to which their commercial and industrial relations
extend." They agreed to support enforcement of agreements to combat traffic in women
and children, as well as drugs, and to take steps to prevent and control disease.

By 1933 the ILO had adopted forty conventions, covering hours of work,
maternity leave, unemployment, conditions of labor at night for women and children,
equality of pay, minimum age at sea, forced labor, and freedom of association.

b. The League of Nations Minorities Treaties

President Woodrow Wilson's Fourteen Points promised to support liberty, the right of
self-determination, and equality of rights across borders. According to him "self-
determination is not a mere phrase. It is an imperative principle of action, which
statesmen will henceforth ignore at their peril." Negotiations at the Paris Peace
Conference proved contentious, but ultimately redrew the borders throughout Europe,
ending large multinational empires, but creating a host of new minorities in new states. In
order to protect these minorities, a series of Minorities Treaties provided human rights
guarantees. Poland, Czechoslovakia, Yugoslavia, Romania, and Greece, as a condition of
their creation or expansion, had "to assure full and complete protection of life and liberty"
to all of their inhabitants "without distinction of birth, nationality, language, race, or
religion." The treaties specified equal protection of the law, equal civil and political

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rights, language rights, and the rights of minorities to establish their own schools and
cultural institutions. Specific protection was afforded Jewish and Muslim minorities. To
reinforce the treaties, each one contained a provision stating that "the stipulations in the
foregoing articles, as far as they affect persons belonging to racial, religious, or linguistic
minorities, constitute obligations of international concern and shall be placed under the
guarantee of the League of Nations."4

In practice, the League came to use respect for minority rights as a condition of
membership. The League also encouraged states to sign bilateral agreements protecting
minority rights. The organization further expressed its desire "that the States which are
not bound by any legal obligations to the League with respect to Minorities will
nevertheless observe in the treatment of their own racial, religious, or linguistic
minorities at least as high a standard of justice and toleration as is required by any of the
Treaties and by the regular action of the Council." Res. adopted 21 Sept. 1922.

The League moved beyond substantive norms to create supervisory machinery

and procedures to monitor compliance with the minority treaty obligations. Petitions
could be brought to the League of Nations and some nine hundred were during the time
the procedure was operational. If the secretary-general of the League considered a claim
meritorious, he could recommend to the Council that it appoint an ad hoc Minorities
Committee to investigate the matter and try to reach a mutually acceptable settlement. If
this friendly settlement effort failed, the complaint could be sent to the council as a whole
or to the Permanent Court of International Justice. It was through this means that the PCIJ
received two requests for advisory opinions. The first case, the Rights of Minorities in
Upper Silesia, concerned the application of racial, linguistic, or religious criteria for
admission to school. The court held any such criteria for admission to be unacceptable.5
In Minority Schools in Albania, a 1935 Advisory Opinion, the court insisted on the
necessity of maintaining equality in fact as well as in law in educational institutions. In
this respect, the closing of minority schools was deemed incompatible with equal
protection because it would destroy the means of preserving cultural uniqueness.6

4
Societe des Nations/League of Nations, Document C.L. 110, 1928.
5
PCIJ, Rights of Minorities in Upper Silesia, Judgment No. 12 of 26 April 1928, 15 PCIJ, Ser. A
6
PCIJ, Minority Schools in Albania, Advisory Opinion of 6 April 1935, PCIJ, Ser. A/B, No. 64.

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 While the League of Nations’ system of minorities protection functioned well for
fifteen years, it ultimately failed. Those subject to it objected that they were bound by
laws that did not apply to the major powers. Further, the United States refusal to join the
League of Nations undermined its effectiveness, as did the requirement of unanimity
before the Council could act.

c. Civil and Political Rights for Women: many of the women who became
leaders in the struggle for women's rights began as abolitionists in the anti-slavery
campaigns of the nineteenth century. They learned effective techniques of organizing and
protesting. They also learned the importance of the moral claim of equality. Through
their efforts, changes began in national law, with women obtaining the right to vote in
Finland and Australia in 1906, Norway in 1913. In China, the revolutionary feminist Qui
Jin organized the first women's association in China and advocated equal rights for
women. Japanese and Filipina women also associated and published works on women's
rights. Similar organizations and efforts appeared in Egypt, Iran, India, Sri Lanka,
Indonesia, Vietnam, Turkey and Korea.7 They soon moved to cooperate internationally
by forming NGOs and international federations of trade unions such as the International
Ladies' Garment Workers' Union.

Many of the international efforts to guarantee rights for women took place in the
regional meetings of the Pan American Union. A 1933 Convention on the Nationality of
Women (1933) was the first to provide binding guarantees. It was followed by the Inter-
American Convention on the Granting of Political Rights to Women (1948) and the Inter-
American Convention on the Granting of Civil Rights to Women (1948), both preceding
UN treaty action by more than 30 years. In addition to the treaties, the Conferences
adopted resolutions on the rights of women, the first in 1923. The 1928 Conference
recommended states adopt legislation on maternity leave and non-discrimination in
employment.

The first half of the twentieth century saw the list of international human rights
concerns grow, to encompass economic, social and cultural rights and the rights of

7
See Kumari Jayawardena, Feminism and Nationalism in the Third World (London: Zed, 1986).
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 minorities. Global and regional institutions not only engaged in standard-setting, they
created the first international petition procedures. The transboundary dimensions of
economic issues perhaps made it easier for states to accept international regulation of
workers’ rights. The issue of national minorities was so closely linked to the onset of
World War I that the peace-human rights link appeared undeniable.

Generalizing Human Rights in Global and Regional Systems of Protection

In August 1941 the Atlantic Charter proclaimed the Four Freedoms8 President
Roosevelt had enunciated at the beginning of the year (Jan. 6, 1941, Eighth Annual
Message to Congress). The Charter also proclaimed the right of self-determination. These
principles were reaffirmed in the Declaration of the 26 United Nations on 1January 1942.
Conferences of the American States became increasingly vocal about human rights prior
to and during World War II, expressing their concern through resolutions: 1936:
Humanization of War; 1938: Defense of Human Rights and Persecution for Racial or
Religious Motives; 1945: International Protection of the Essential Rights of Man.

As is now well-known, the UN Charter contains more than a dozen references to

human rights, from the Preamble to the end. The very purposes of the United Nations
include cooperation in promoting respect for human rights and fundamental freedoms for
all. Many of the provisions were included due to pressure from non-governmental
organizations and smaller states, especially those of Latin America. The original
Dumbarton Oaks proposals for the United Nations prepared by the great powers
contained only one general provision about human rights. Even with the amendments,
many governments felt the provisions were too weak and thus it was agreed that an
international bill of rights should be concluded as soon as possible after the Charter. In
his closing speech to the San Francisco Conference, President Truman referred to the
“framing of an international bill of rights” and observance of human rights and
fundamental freedoms. He added: “Unless we can attain those objectives for all men and
women everywhere – without regard to race, language or religion – we cannot have
permanent peace and security.” The first step was to list and define human rights. Even
before that, the provisions of the United Nations Charter made clear that henceforth

8
The Four Freedoms are: Freedom of speech and expression, freedom of religion, freedom from fear, and freedom
from want. According to Roosevelt, “the social and economic problems . . are the root cause of the social revolution
which is today a supreme factor in the world.”
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 respect for human rights within the member states of the United Nations would be a
matter of international concern.
While the United Nations was emerging as a global institution, two regional
bodies took up the human rights challenge. Given the widespread movement for human
rights, it should not be surprising that regional organizations being created or reformed
after the War should have added human rights to their agendas. All of them drew
inspiration from the human rights provisions of the United Nations Charter and the
Universal Declaration of Human Rights.

Europe had been the theater of the greatest atrocities of the Second World War
and felt compelled to press for international human rights guarantees as part of European
reconstruction. Faith in western European traditions of democracy, the rule of law and
individual rights inspired belief that a regional system could be successful in avoiding
future conflict and in stemming post-war revolutionary impulses supported by the Soviet
Union.9 The Congress of Europe meeting at the Hague in May 1948 announced its desire
for a united Europe with free movement of persons, ideas and goods. It also expressed
desire for “a Charter of Human Rights guaranteeing liberty of thought, assembly and
expression as well as the right to form a political opposition” and “a Court of Justice with
adequate sanctions for the implementation of this Charter.”

The Universal Declaration of Human Rights:

The copestone of the United Nations in respect of human rights has been without doubt
the Universal Declaration of Human Rights adopted by the UN General Assembly on 10th
December 1948.10 It was intended ot as legally binding achievement as such but, as its preamble
proclaims” a common standard achievement for all peoples and nations” The declaration, which
had a total of 30 articles, contain articles which provides for the respect for human rights

9
In the preamble to the European Convention on Human Rights, the contracting parties declared that they were
"reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the
true source of individual freedom, political liberty and the rule of law, the principles which form the basis of all
genuine democracy." See J.G. Merrills, The Council of Europe (I): The European Convention on Human Rights
10
Oppenheim’s (1992) International law p.1001.
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concerns. Some of these articles are article 7 (provides for equality before the law) 11, article
5(provides for prohibition of torture).12

Although clearly not a legally enforceable instrument, the question arises as to whether
the Declaration has subsequently become binding either by way of custom or general principles
of law, or indeed by virtue of interpretation of the UN charter itself by subsequent practice. 13 The
Declaration has had marked influence upon the constitution of many states upon the formulation
of subsequent human rights treaties and resolutions. Taking an example of the Constitution of the
United Republic of Tanzania CAP 2 of the laws of Tanzania (R.E 202), in some of its articles
which aimed at preserving human rights reflects those of the Declaration. Article 13(1) of the
Tanzanian Constitution talks about equality14 before the law similar to article 7 of the Universal
Declaration of Human Rights, also article 13(6)(e) of the Tanzanian Constitution talks about
prevention of torture15 similar to article 5 of the Declaration.

Thus the Constitution of the United Republic of Tanzania is one of the Constitution
which have been influenced by the Universal Declaration of Human Rights in its provisions
especially those
which have the direct connection with Human Rights issues. The declaration has also been
referred to in many cases and its importance within the context of United Nations human rights
should not be disregarded.

The UN High Commissioner for Human Rights:

The issue of human rights was extremely discussed at the UN World Conference on
Human Rights at Vienna in 1993.16 The Vienna Declaration and Programme of Action, which
was adopted, emphasised that all human rights were universal, indivisible and interdependent
and interrelated. The protection of Human Rights was seen as the priority objective of the UN

11
Art. 7 of the Universal declaration of Human Rights states that “All are equal before the law and are entitled
without any discrimination, to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such discrimination.
12
Ibid, Art. 5 states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment”.
13
Oppenheim’s (1992) International law p.1002
14
Art. 13(1) states that “ All persons are equal before the law and are entitled, without any discrimination, to equal
protection and equality before the law.”
15
Article 13(6) (e) of the Tanzanian Constitution states that “No person shall be subjected to torture or inhuman or
degrading punishment or treatment.”
16
M. N. Shaw , International law 208 ( Cambridge University Press, London, 5 th edn., 2005
22 | P a g e
and the interrelationship of democracy, development and respect for human rights and
fundamental freedoms underlined. Additional facilities for the UN Charter for human rights were
called for as well as the establishment of a UN High Commissioner for Human Rights.17 The
High commissioner is responsible for promoting and protecting the effective enjoyment by all of
all civil, cultural, economic, political and social rights, providing through the UN Charter for
Human Rights and other appropriate institutions, advisory services and other assistance
including education and engaging in dialogue with all governments with a view to rescuing
respect for human rights. The UN High commissioner may also make recommendations to
competent bodies of the UN system with a view to improving the promotion of all human
rights.18

The World Conference on Human Rights (Vienna Conference) 1993.

The second World Conference on Human Rights commonly known as Vienna from 14 to
25 June, 1993. The Conference was held 25 years after the International conference on human
rights held in Tehran had assessed the progress achieved under the 1948 Universal Declaration
of Human Rights and laid the foundation for subsequent work in the field of human rights at the
International level.19 The Conference adopted the Vienna Declaration and the programme of
Action which renewed the commitment of the International community for the promotion and
protection of human rights. Among the main points of the Declaration are; obligation of the
states, co-ordination of the activities, universality of human rights, democracy, development and
respect for human rights, right to development, extreme poverty, effective remedies to redress
human rights, external debt burden,
education, implementation and monitoring methods and increased co-ordination on human
rights. In addition to the above, the, the Declaration also stated for the protection of rights of the
child, women, migrant works, refugees, racism, racial discrimination and for the person
belonging to national or ethnic, religious and linguistic minorities. The Conference also stressed
the importance of strengthening the United Nations Charter for human rights and adaptation and
strengthening of the United Nation machinery for human rights including the question of the
establishment of the United Nations High Commissioner for Human Rights.20 The Vienna
Convention has provided an invaluable service by declaring overall principles for formulating

17
Ibid.
18
United Nations High Commissioner for Human Rights, Report , A/49/36, p.2., 1992.
19
Dr. H. O. Agarwal, International law and Human Rights 837( Central Law Publication, Allahabad, 12th edn., 2009)
20
Ibid
23 | P a g e
detailed recommendations for action in the field of human rights. I would like to refer to the
wording of the Secretary-General of the United Nations who rightly stated that:

“The Vienna Declaration and programme of Action undoubtedly constituted one

of the major events in the United Nations history of human rights. If adequately implemented, it
will be a milestone in this history”21

He was trying to establish the vital role of the Vienna Declaration to the history of human
rights in connection to the United Nations but he gave a pre-caution that this role of Declaration
will be effective only if it is fully implemented. So the Vienna Convention was a water-shed,
marking the realization of an ‘era of implementation’ of human rights standards and mechanisms
that have been developed over the past years.

The International Bill of Human Rights:

The International Bill of Human Rights consists of the Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights, the International
Covenant on the Civil and political Rights and the two protocols. These protocols are; the
optional protocol to the International Covenant on Civil and Political Rights ( New York 1966)
and the second optional protocol to the International Covenant on Civil and Political Rights
aiming at abolition of death penalty( New York 1989).

After the United Nations Charter came into force, the most important task before the
United Nations was the implementation of the principles of the universal respect for and
observance of Human Rights and fundamental freedoms for all without distinction as to race,
sex, language, or religion, as laid down under article 55(C) of the Charter of the United
Nations.22 Following this, in 1946, the Economic and Social Council formally endorsed the view
that the purpose of United Nations with regard to promotion and observation of Human Rights
could be fulfilled only if the provision was made for an International Bill of Rights and for its
21
Stated in the Report of the Secretary-General of 1994 to the General Assembly on the follow-up to the World
Conference on Human Rights (A/49/668).
22
Art. 55(C) of the UN Charter states that “...The United Nations shall promote universal respect for, and
observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or
religion.”

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implementation. It was therefore decided to prepare an International Bill of Rights to achieve the
end. The General Assembly referred this matter to the Economic and Social Council for study by
the Commission on Human Rights. The bill was then referred to as the ‘International Bill of
Human Rights’ by the Commission on Human Rights due to its differences of opinions as to its
forms and contents. The Commission therefore decided to draw up simultaneously two sets of
documents; a draft declaration consisting of a declaration of general principles on human rights
and a draft convention, which would be convention on such specific rights as would lend them to
binding legal obligations. The Commission along with the above two documents also prepared a
memorandum on the question of implementation.23 The three documents to be known as
International Declaration of Human Rights, International Covenant on Rights and Measures for
Implementation.

23
P.Williams , International Bill of Human Rights 126 (Entwhistle Books, London, 1st edn., 1999).

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CONCLUSION

Human rights systems have evolved through a complex interplay of environmental pressures,
institutional changes, and inter-system contacts. Perhaps most importantly, the dynamic reading
given human rights guarantees by the global and regional supervisory organs has prevented a
rigid formalism from reducing the relevance of human rights bodies as circumstances change and
new problems arise. Judicial power in the regional systems is very significant, created in large
part by the character of human rights conventions. They are written in general terms, leaving
ample scope for judges and commissioners to apply and creatively interpret their provisions..
The European Court of Human Rights has confirmed that "the convention is a living instrument
which must be interpreted in the light of the present-day conditions24. The Inter-American Court
has similarly emphasized the notion of evolving American law.
All of the systems have a growing case law detailing the rights and duties enunciated in
the basic instruments. The jurisprudence of the regional human rights bodies has thus become a
major source of human rights law. In many instances this case law reflects a convergence of the
different substantive protections in favor of broad human rights protections. In other instances,
differences in treaty terms or approach have resulted in a rejection of precedent from other
systems. In general, the judges and the commissioners have been willing to substantiate or give
greater authority to their interpretations of the rights guaranteed by referencing not only their
own prior case law but the decisions of other global and regional bodies.

24
Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) (1978)at 10
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BIBLIOGRAPHY

1. Nirmal, Chiranjivi, Human Rights in India: Historical, Social and Political

Perspectives (Oxford University Press, 1999).
2. Subramuniyaswami, S.S., Dancing with Siva: Hinduism's Contemporary Catechism
(Concord, Calif: Himilayan Academy, 1993).
3. UNESCO, Birthright of Man (Paris: UNESCO, 1969).
4. H.O Agarwal, International Law and Human Rights (Central Law Publications, 2009)
5. Dr. S.K. Kapoor , Human Rights Under International law and Indian law (Central Law
Agency ,2014)
6. Malcolm N. Shaw, International Law (Cambridge University Press, 2005)

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