Introduction to Human Rights Week 2: The internationalization of Human Rights III. The precursors Several institutions and evolutions of the international legal order have favoured the internationalization of Human Rights. The precursors are notably: - The fight against the slave trade and against slavery - Diplomatic protection - Protection of workers - The protection of minorities - International humanitarian law - International criminal law Let us dwell a moment on the first four points before talking about international humanitarian law and international criminal law with two experts. The first precursor is the fight against the slave trade and against slavery. We have already talked about the movement aiming to abolish slavery. Last week, we saw that this movement contributed to increasing the circle of beneficiaries of Human Rights in the 19th century. The fight against slavery did however not only have an internal dimension. This fight was not confined within States but it also had an international dimension. At the international stage, this fight went on in two phases. First, the fight aimed at slave trade. Then, the fight aimed at the abolition of slavery itself. The first phase goes back to the 19th century. First, in 1815 at the Congress of Vienna, and then in 1885 at the Berlin Conference. The Berlin Conference aimed to establish the rules regarding colonization in Africa. In this context, the colonial powers adopted a Declaration on the slave trade. According to this Declaration, the trade of slaves is forbidden "[...] in conformity with the principles of international law as recognized by the Signatory Powers [...]." Let us focus for a moment on this quotation. "In conformity with the principles of international law" is significant. Let us remember that classic International law is mainly concerned with the interest of States. Here, international law is seen to be concerned with the fate of individuals. Indeed, slavery is mainly about the human person. The fight against slavery went on in the 20th century: A further step was taken in the 20th century. Slave trade was not the only target. The aim was also to put an end to slavery as such. This fight went on under the auspices of the League of Nations. Various measures were taken. The first one was the adoption of the 1926 Slavery Convention. This Convention does not only forbid the slave trade but also slavery as such. In order to shut the door to practices similar to slavery, the Convention also forbids forced labour. Humanitarian grounds were not the only reasons for the international fight against slavery. Other reasons, such as economic ones also played a role. Nevertheless, it was an important precursor to the emergence of Human Rights. International law is concerned with the human person's wellbeing. The prohibition of slavery as such prefigured an important Human Rights norm. the norm aiming to forbid slavery and forced labour. Following the example of the fight against slavery and against slave trade, diplomatic protection has been a precursor to Human Rights. Diplomatic protection is an institution which goes back to the 18th and the 19th centuries. Its aim is to protect the interests of the nationals who live abroad. Diplomatic protection allows a State to espouse the cause of one of its nationals injured by another State. Let us take an example: A State decides to nationalize a firm belonging to a foreigner, without any compensation. The injured person tries to obtain reparation in the host State, without any success. The person then turns to his national State. The person asks for diplomatic protection. If the national State agrees, it can claim reparation of the harm the national suffered in the host State. I said "indirectly" for the following reason: Let us remember that, according to classic international law, the State is the main subject of international law. Another cardinal principle is the sovereignty of the State. According to these principles, the individual could not directly hold the host State responsible for the damage he/she has suffered. The interests of the injured person could only be considered through the national State. Internationalists of the 18th and 19th centuries used a fiction. Referring to the damage incurred by its national, the State invokes its own right and not the national's right. The Permanent Court of International Justice confirmed these theories by noticing in the Mavrommatis' case: "By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right - its right to ensure, in the person of its subjects, respect for the rules of international law." Since the national State is "asserting its own rights" rather than the right of its national, diplomatic protection is a discretionary right of the State. The national State is therefore free to grant or not to grant diplomatic protection. The State decides whether it wants to take up the case of one of its nationals. This depends on the State's national interests. We can therefore see that diplomatic protection remains firmly anchored in the Westphalian paradigm of international law. In this respect, it strongly differs from the international protection of Human Rights as we know it today. What has therefore been the meaning of diplomatic protection for the appearance of Human Rights at the international stage? The diplomatic protection has indeed enabled the creation of a minimum standard of the treatment of foreigners. Among these minimum standards, there are notably fundamental guarantees such as the right to life, the prohibition of torture, prohibition of denial of justice, the right to a fair trial, and also the right to property. These principles can largely be found in the field of Human Rights. Diplomatic protection contributed to the crystallization of several norms which are today part of Human Rights. International law was not only concerned with the interest of the people living abroad. It was also concerned with another category of people: the workers. The international protection of workers goes back to the end of World War I and the Treaty of Versailles of 1919. The international protection of workers was founded on the belief that work must not only be considered as a commodity or as an object of trade. To put it succinctly: labor is not a commodity. The international protection of workers has not only been founded on humanitarian considerations but also on another ground. The aim was also to ensure stability and peace. This goes through social justice. The international protection of workers must also be considered in its historical context. The Treaty of Versailles dates from 1919: This is two years after the October Revolution in Russia and States Parties wanted to protect themselves against revolutionary movements. The Treaty of Versailles states in quite a precise manner the standards that must be respected. In particular, Freedom of association, The prohibition for child labour, Equality between men and women in terms of wages, and also, the right to a pay which provides an adequate standard of living. At the institutional level, the Treaty of Versailles has founded an international organization which aims to protect the workers: the International Labour Organization. the ILO which is based in Geneva. During the interwar period, many conventions concerning the protection of workers were adopted under the auspices of the ILO. These conventions prepared the ground for the emergence of a specific category of Human Rights: economic and social rights. We are going to familiarise ourselves with that during the fourth week of this course. It is also significant that an international compliance mechanism of these labour standards were provided under the auspices of the ILO. This international mechanism broke new ground and paved the path for the emergence of international monitoring mechanisms in the field of Human Rights. Besides workers, States which won World War I were also interested in another category of people: national minorities. As for the protection of workers, there were considerations linked to peace and stability. Indeed, the national cause was seen as a major factor of instability and of source of conflicts. The map of Europe was redrawn after World War I. New States were created on the territory of former empires of the Austro-Hungarian Empire and the Ottoman Empire. These States were created on the basis of the peoples' right to self-determination. Paradoxically, peoples' right to self-determination justified the creation of States which were highly heterogeneous in terms of ethnicity. For strategic, geographic and historical reasons, it was not possible to create nation states homogeneous in terms of ethnicity. This is why the region looked like a patchwork in terms of the composition of population. The fear was that the treatment of minorities would become a source of conflicts and of instability in the region. For this reason, a system was created to protect the minorities under the auspices of The League of Nations. This system was based on a series of treaties concluded with the newly created States. They are represented here on the map. There were two different series of treaties and 14 States were concerned. A first set of treaties concerned Czechoslovakia, Greece, Romania, Yugoslavia, Austria, Bulgaria, Hungary, Turkey and Poland. The second set of treaties concerned Albania, Estonia, Finland, Lithuania, and Latvia. The regime protecting minorities was complicated. Without going into detail, I think that 3 points are important for our course. First, several rights were enshrined by the treaties which aimed to protect minorities. You have read for today the Treaty concluded with Poland. This Treaty was the model for the other treaties concerning minorities. This Treaty is sometimes also called "Little Treaty of Versailles". If you have skimmed this Treaty, you will have especially noticed the right to life, the right to freedom, and a cardinal principle: the prohibition of discrimination based on language, race and religion. As we have already seen, the non-discrimination is a cardinal principle in terms of Human Rights. Rights such as freedom of worship, freedom of language and rights related to education also later became particularly pertinent for minorities. As you might have seen, it is also interesting to notice that the first Article of the Treaty mentions that the State concerned had to acknowledge these rights a part of its fundamental laws. They therefore take precedence over any other contrary national regulation. The second important point can be found in Article 12 of the Treaty. Under this provision, by ratifying to this Treaty, Poland has indeed accepted that the obligations which are under this treaty represent obligations of international interest. These obligations are guaranteed by the League of Nations. This is significant. Let us remember that, according to classic international law and to the Westphalian paradigm, the way a State treats its nationals falls under its reserved domain. Here we are told that the treatment of minorities - which are the nationals of the State - is a concern of international law. The third important point is linked to the second one: the treaties also provided for an implementation machinery. You have read for today the advisory opinion regarding the Treaty with Poland. It concerned the treatment of the German minority. The implementation machinery can quite clearly be observed here. The issue was first brought to the attention of the League of Nations thanks to a petition. Since this dispute could not be settled, the Permanent Court of International Justice was seized. The Court gave an advisory opinion which contributed to clarifying the situation. The competence of the Permanent Court of International Justice is also ensured in Article 12 of the Treaty, which clearly stipulates that disagreements related to the Treaty are to be characterized as international disputes. We can therefore see again that this is not solely an internal matter of States. It is interesting to see in the advisory opinion that Poland precisely made the argument that it was a domestic matter. The advisory opinion concerned the issue of nationality. The Germans were treated as foreigners because they were not given the Polish nationality. Poland pretended that the Germans were not a national minority since they were foreigners. They were therefore not protected by the Treaty. It is interesting to see that the Permanent Court of International Justice interpreted the Treaty broadly. The Court said that it was an international concern and that this issue came under the Treaty. We have seen that the Treaty of minorities institutes an international monitoring mechanism. As in the case of the international protection of workers, these mechanisms prefigure the international supervisory mechanisms for the protection in the field of Human Rights. If we sum up, we have seen four precursors of Human Rights. We have seen that they had different roles in the emergence of Human Rights. They first established several issues regarding the human person as issues of concern of the international legal order. The precursors have then allowed to crystallize the content of the future Human Rights norms. Finally, they have relativized the sovereignty of the States by providing for international control mechanisms. In the two following videos, we will continue to examine together two other precursors: international humanitarian law and international criminal law. We will see that their significations for the emergence of Human Rights at the international stage were similar to the effect that the other precursors that we have talked about until now had.
