Grotius provided a bridge to the positivists by distinguishing between natural law and the customary law of nations based on the conduct and will of nations. The “will of nations” was central to positivism, which relied “on the practice of states and the conduct of international relations as evidenced by customs or treaties” for the statement of the law.15 Positivism focused on states’ conduct—that is, what states did in practice rather then what occurred based on forces existing in nature. The shift to positivism corresponded to the rise of the independent and sovereign nation-state.16
The value of the positivists’ contributions lies in their recognition of the importance of organizing rules by established processes of the states. Once states authoritatively can formulate rules, they can protect human rights. Positivism’s weakness, however, lies in the fact that the values promoted as human rights become wholly dependent on the perspective of the governing elite.17 Under a positivist model, human dignity is what a state makes it.
Some contemporary theories have affected, expanded, and transformed traditional human rights law analysis. These theories include the communications theory (viewing law as an interactive process), the legitimacy theory (concluding that states follow international law because they have a legitimizing voice in its formation), the feminist theory (asking the “woman question” and noting the exclusion of women in international processes and institutions), the Third World or development theory (critiquing the Northern/industrial bias of international law), the Asian critique (noting the Western biases in international law), and the LatCrit critique (emphasizing the Western, industrial, gender bias of law and urging a pluralistic, multidimensional approach).
3.3 Origins of International Human Rights Law: General Concepts
The Second World War was the watershed event for the change of the status of individuals in international law. Nazi atrocities resulted in the punishment of war criminals at Nuremberg and Tokyo. The interrelated desire to prevent the recurrence of such crimes against humanity resulted in the development of new standards for the protection of human rights. It is important to note, however, that the individual was recognized in the global setting prior to the Second World War. Early writers recognized the importance of individuals to the law of nations because individuals constitute “the personal basis of every State,” and, consequently, international law needed to “provide certain rules regarding individuals.”18 Individuals, however, were deemed to be objects, and not subjects, of the law of nations.19
After the Thirty Years War in central Europe, the diversity of peoples and ideologies required orderly processes for state-to-state communications and interchanges. Indeed, in the 17th century, Grotius’s visionary statement that “human rights norms must exist today in a diverse world of immensely varied ideologies and beliefs” effectively predicted the development of a sophisticated human rights system.20
Although in its beginnings international law applied only to states, both customary and conventional norms emerged that dealt with individuals. The individuals were those in whom the state had an interest, such as diplomatic personnel (diplomatic privileges and immunities) and nationals of foreign sovereigns. To accommodate the latter, treaties of friendship, commerce and navigation, jurisdiction, and laws of war emerged. While in these early stages of providing for individuals the obligations always remained with the state, the benefit redounded to the individual.21 Other early instances of protections of individuals also existed (such as the 17th-century negotiation by Catholic princes to ensure appropriate treatment of Catholics by Protestant princes, and vice versa).22
What is presently known as human rights to life, liberty, and equality were unformulated until the last decades of the 18th century. These rights emerged in conjunction with the establishment of democratic forms of government.23 In the 19th and early 20th centuries, states entered into an increasing number of treaties with the purpose of protecting the rights of certain classes of persons, mostly minority groups (that is, persons of a different race, religion, or language from the majority group), within a state. The origins of these treaties can be traced to the period after the First World War when changes in sovereign boundaries required the expansion of rights to minorities because of the rise of nationalistic sentiments that created a real danger of oppression of racial, ethnic, linguistic, and religious minorities. Consequently, the allied and associated powers concluded a number of treaties in which states promised to treat such minority groups justly and equally.
In 1919, states that participated in the First World War endeavored to establish an international organization, the League of Nations, which would be responsible for the maintenance of world order, resolve disputes between states, and halt aggression.24 The League of Nations, succeeded by the United Nations in 1946, played an important role in protecting minorities after the redrawing of boundaries following the First World War.25
Notwithstanding their treaty obligations, states regularly breached their commitments to equal treatment of minority groups. States considered provisions imposing limitations on how they could treat persons located within their borders as intrusions into their national sovereignty. A noted scholar reported: “Before the Second World War, scholars and diplomats assumed that international law allowed each equal sovereign an equal right to be monstrous to his subjects. Summary execution, torture, conviction without due process (or any process, for that matter) were legally significant events only if the victim of such official eccentricities were the citizen of another state. In that case, international law treated him as the bearer not of personal rights but of rights belonging to his government, and ultimately to the state for which it temporarily spoke”26 This attitude resulted in the Permanent Court of International Justice’s (PCIJ) reiteration that discrimination against minorities within a state constituted a violation of obligations under the treaties protecting minority groups.27
In addition to these “minority treaties,” other important 20th-century human rights developments included treaties aimed at abolishing slavery and the slave trade. Freedom from slavery as a customary international norm dates to 1915. This norm was reaffirmed in international conventions such as the 1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery. Subsequent treaties further prohibited the trafficking in women and children.28
In his early treatise, Oppenheim listed “rights of mankind” guaranteed to all individuals by their state of nationality, as well as by foreign sovereigns, pursuant to the law of nations. These included the “right of existence, the right to protection of honor, life, health, liberty, and property, the right of practicing any religion one likes, the right of emigration and the like.”29 While acknowledging that individuals cannot be subjects of law that is limited to relations between states, and recognizing the sovereignty of states, Oppenheim acknowledged the supra-sovereign nature of “human” rights: “There is no doubt that, should a State venture to treat its own subjects or a part thereof with such cruelty as would stagger humanity, public opinion of the rest of the world would call upon the Powers to exercise intervention for the purpose of compelling such State to establish a legal order of things within its boundaries sufficient to guarantee to its citizens an existence more adequate to the ideas of modern civilization.”30
That human rights limit state sovereignty is now accepted. During the Second World War, German Nazis were punished for committing atrocities against millions of innocent civilians, including German Jews. Thus, the state was not insulated from sanctions by an international tribunal for crimes against its own nationals.31
The modern view of human rights, with the individual at the center, emerged in the wake of the Nuremberg and Tokyo trials. In a now oft-quoted phrase, the Nuremberg Tribunal asserted that “crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”32 International law moved from being a statist discipline to being one that recognizes the interests and rights of individuals.33
3.4 Modern Human Rights Developments
(A) The Internationalization of Human Rights Law
Since the signing of the UN Charter in 1945, states