Additional resources Chapter 7 The nature and development of human rights Link from page 164 Domestic documents and treaties MAGNA CARTA 1215 (UK) The Magna Carta is a document that certain rebellious nobles forced King John of England to sign in 1215. It limited the king s power in a number of ways. In this document, the king promised that there would be no interference in the life of the Church, that no new taxes would be imposed without agreement, that no free man would be imprisoned without a trial, that all free men could travel anywhere they wished, and that towns would keep all the privileges that they had built up over the years. HABEAS CORPUS ACT 1679 (UK) The Habeas Corpus Act 1679 (UK) declared that the lawfulness of detention must be tested quickly by the courts. This means that people could not be held indefinitely without being charged or facing trial. ENGLISH BILL OF RIGHTS 1688 (UK) The English Bill of Rights (1688) was part of the agreement for reinstating the monarchy in England after the popular overthrow and expulsion (from England) of King James II in 1688. In his place, William of Orange and his wife, Mary, were invited to take the throne of England on the condition that William agree to a bill of rights. This was to prevent a return to the anti parliament policies of James II and two earlier kings: Charles I and Charles II. The English Bill of Rights forbade the king to raise an army or to levy taxes without the consent of parliament. It also guaranteed freedom of speech for those who spoke in parliament and that no one would be imprisoned without trial. This represented an important transfer of power from the monarchy to parliament. Cambridge University Press 1 Milgate, Le Cornu, Miller, Robinson, Kelly, Steed 2011
UNITED STATES DECLARATION OF INDEPENDENCE 1776 The US Declaration of Independence (1776) was really a declaration of war against the repressive British Government. The most important statement contained in the declaration, primarily written by political philosopher Thomas Jefferson, was that all men are created equal. The foundation of this declaration is the concept that rights are seen to exist because we all think and feel them. In other words, all citizens are entitled to basic right and freedoms. Furthermore, they should be entitled to fight in order to preserve these rights. In short, the Declaration of Independence stipulated that we do not have to be told that we have the right to freedom instead, we believe it instinctively. UNITED STATES CONSTITUTION 1787 After winning the War of Independence (1776 83) against Britain, a constitution was written in 1787 by the newly independent government of what would become the United States. The constitution created a federal union of the existing thirteen states. This union came into existence in 1789 and was called the United States of America. A novel idea contained in the constitution is that of separation of powers. This originated from the thinking of a French philosopher, Montesquieu. It was designed to prevent any branch of government from becoming too powerful. UNITED STATES BILL OF RIGHTS 1789 The US Bill of Rights (1791) is also known as Amendments to the Constitution. Originally, there were ten amendments to the US Constitution. These ten amendments are now referred to as the Bill of Rights. Due to concern that the new constitution did not provide safeguards against a future government violating the rights of its citizens, the constitution was amended. The ten amendments included such rights as the freedom of assembly, speech, religion and the press. The Fifth Amendment may be familiar to students. Part of this amendment states that a defendant should not be compelled to take the stand in a court case and, in so doing, be a witness against themselves. This is popularly referred to as taking the Fifth. Another part of the US Bill of Rights that may be known to students is the Second Amendment, which states: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. The original intention of this amendment was to deter any future government from becoming too powerful and taking away the rights of its citizens by allowing the population to arm itself. Today, however, the right of the people to keep and bear arms is used by powerful US pro gun lobby groups, such as the National Rifle Association (NRA), to oppose limitations on the right of citizens to own or use guns. Since 1791 another seventeen amendments have been added to the constitution. One of the most famous amendments is number thirteen, which brought about the abolition of slavery after the Civil War in 1865. Another interesting amendment was the Eighteenth Amendment. Passed in 1919, it forbade the sale of alcohol in the United States. However, it has been generally agreed that this legal attempt to discourage the use of alcohol backfired by encouraging the growth of organised crime. In 1933, the Twenty first Amendment repealed the Eighteenth Amendment. Cambridge University Press 2 Milgate, Le Cornu, Miller, Robinson, Kelly, Steed 2011
In 1920 the Nineteenth Amendment was passed which prohibits denying any person the right to vote on the basis of their sex paving the way for women being granted the vote. Many of the rights enshrined in the US Bill of Rights are based on the principles of the historic documents discussed above, from the Magna Carta onwards. Therefore, the US Bill of Rights is viewed as a significant landmark in the development of human rights. It represents the most advanced thinking in the area of human rights up to that time in history. Not only has the US Bill of Rights become the cornerstone of the US legal system, it has heavily influenced later human rights documents globally. DECLARATION OF THE RIGHTS OF MAN 1789 (FRANCE) In 1789, after the French Revolution, the French National Assembly proclaimed the Declaration of the Rights of Man. This declaration is similar to the US Bill of Rights. In 1791, some of the rights from this declaration were written into the short lived French Constitution. However, many of the freedoms stated in the Declaration of the Rights of Man were violated in the chaos of the revolutionary years that followed and were curtailed under the rule of Napoleon Bonaparte (1799 1812). Nevertheless, the ideas of this French document were spread to the European nation states that were conquered by the French during Bonaparte s rule and served to inspire their own political progress and sense of nationalism. FOUR FREEDOMS SPEECH 1941 (US) This speech was given to Congress by US President Franklin Roosevelt on 6 January 1941. World War II had been raging in Europe for nearly one and a half years and it looked like Hitler s dream of conquering all Europe to form a Third Reich would come about. At this stage the United States was not at war. Despite the fact that President Roosevelt felt that military force was now the only way to stop Nazi aggression the US Congress would not allow the United States to join in the war. It was in this context that Roosevelt made this speech in which he laid down the values that the world should hold dear. These values were to be incorporated in the Universal Declaration of Human Rights (UDHR) seven years later: Freedom of speech Freedom of belief Freedom from want Freedom from fear. Cambridge University Press 3 Milgate, Le Cornu, Miller, Robinson, Kelly, Steed 2011
International documents and treaties TREATY OF VERAILLES 1919 In 1919, the countries that emerged victorious from World War I held a peace conference at Versailles in France. The result was the establishment, for the first time in history, of a world body with the primary aim of preventing war the League of Nations. This focus on prevention of war can now be described as a collective right to peace. When the treaty was signed, the concept of individual human rights was still in its infancy. The framers of the League of Nations were more focused on the rights of states and peoples to be able to rule themselves free from the threat of oppression by more powerful states. This is now called the collective right to self determination. Concern for the right to self determination did not extend beyond the continent of Europe. In other words, the countries that signed the Treaty of Versailles were not very interested in selfdetermination for those peoples of Africa, Asia and the Pacific who lived in the colonies ruled by the imperial powers of Europe. LEAGUE OF NATIONS 1920 The main aim of the League of Nations was the prevention of war. The League upheld the notion that all states have the right not to be threatened or attacked. All member nations pledged to stick by the principle of collective security, which meant that all members would protect any country that was being attacked by an aggressor. However, it was the League s dramatic failure on this very point that led to it being discredited and ignored by the international community. In the 1930s, the League was ineffective in preventing aggression by Germany, Japan and Italy against weaker nations which ultimately led to the outbreak of World War II in 1939. The League of Nations was formerly dissolved in 1946. ATLANTIC CHARTER 1941 In August 1941, President Roosevelt of the United States and Prime Minister Winston Churchill of Great Britain signed an agreement, known as the Atlantic Charter, designed to act as a blueprint for the post-war world after World War II. At this time, the United States was still not part of the war. Britain was under threat of being invaded by Germany which had already conquered most of Europe over the previous two years. Roosevelt and Churchill placed issues of human security at the forefront of plans for a post-war peace, stating that: territorial changes should only occur with the freely expressed wishes of the people the right of all peoples to choose the form of government under which they live should be respected all men in all lands may live out their lives in freedom from fear and want. The Atlantic Charter of 14 August 1941 was the first official step in the process of the creation of an international organisation to guarantee peace and security. On 1 January 1942, little more than three weeks after Pearl Harbor, the Atlantic Charter was endorsed by the Declaration of the United Nations by the United States, Britain, the Soviet Union and twenty two other nations that had joined the war against Hitler and his allies. This declaration pledged the signature countries to use their full resources against the Axis Powers and to agree not to make a separate peace. Cambridge University Press 4 Milgate, Le Cornu, Miller, Robinson, Kelly, Steed 2011
Some commentators argue that the Atlantic Charter was a visionary document which laid the foundations of the United Nations, the European Union, NATO, the UDHR and all human rights treaties. The two treaties examined below were written at about the same time as the UDHR. They have a different origin to the UDHR but overlap in their concerns for the welfare of all human beings: GENOCIDE CONVENTION 1948 The Genocide Convention was adopted by the UN General Assembly in 1948 and came into force in 1951. The main reason for the drafting of this convention was the widespread condemnation of the war crime perpetrated against the Jews in the concentration camps of Nazi Germany particularly information that became available at the trials of the Nazi Leaders in the case USA, France, UK, and USSR v. Hermann Goering et al. 1945 46 IMT, Nuremberg). This declaration has been described as the high water mark for human rights because it was the first time in history that genocide was officially made a crime. The treaty was developed at around the same time as the UDHR though by a separate committee and with no collusion between the two committees. It differs from the UDHR in that it is the first piece of hard law drawn up by the United Nations. This means that, theoretically, it could be enforced. Although the Genocide Convention was effective in securing nearly universal condemnation of genocide, it failed to motivate politicians and diplomats to take concrete measures to ensure that these crimes could not be repeated in the future. Also, by the time the convention was written the Cold War was just beginning. During the period of the Cold War (1947 91) the superpowers cooperated on very little including taking steps to give enforceable powers to the Genocide Convention. It was not until the creation of the International Criminal Court in 2002 that the Genocide Convention was made legally enforceable. GENEVA CONVENTIONS 1949 Another major development in human rights that has its origins in the nineteenth century was the establishment of laws of war. Jus in bello is Latin for law in war. These laws define the conduct and responsibilities of warring states in terms of treatment of non combatants and civilians during wartime. Examples of the laws of war include not firing on someone carrying a white flag and not attacking a building, truck or ship with a red cross on it. Jean Henri Dunant, who founded the Red Cross in 1863, played a pioneering role in the establishment of the rules of war. The Red Cross was one of the first global NGOs to be formed. Not only did the Red Cross pioneer humanitarian work to alleviate the suffering of wounded soldiers and prisoners of war, it also championed the development of rules of war, which today we refer to as international humanitarian law (IHL). The Red Cross sponsored an international conference in St Petersburg in 1868 and the resulting convention outlawed the use of exploding bullets and poison gas. There was further development of the rules of war at the Hague Conferences of 1899 and 1907. International humanitarian law was also furthered by the Geneva Conventions of 1864, 1906, 1929 and 1949. All the decisions of the earlier conferences were ratified in 1949 and are simply called the Geneva Conventions. Cambridge University Press 5 Milgate, Le Cornu, Miller, Robinson, Kelly, Steed 2011
Nearly all states of the world today are signatories to the four treaties incorporated in the Geneva Conventions 1949. Three additional protocols to the Geneva Conventions were added in 1977. jus in bello a Latin term meaning law in war international humanitarian law (IHL) the body of international law deriving from treaties and customary Geneva Conventions four treaties and three additional protocols that set the standards in international law for the humane treatment of the victims of war REVIEW 7.10 1 How did the Magna Carta, Habeas Corpus Act and English Bill of Rights limit the sovereign s power? 2 What introductory statement in the US Declaration of Independence is mirrored in Article 1 of the UDHR? 3 What amendment in the US Bill of Rights is referred to repeatedly by the US pro gun lobby today? 4 What post war international organisations, treaties or documents did the Atlantic Charter lay the foundations for? 5 What area of international law do the Geneva Conventions belong to? 6 How has the Genocide Convention been strengthened in recent years? Cambridge University Press 6 Milgate, Le Cornu, Miller, Robinson, Kelly, Steed 2011