Origins and sources

The origins of human rights law can be traced back hundreds of years through developments in the legal history of many Western countries. These developments progressively recognised that human rights are not created or granted, but are grounded in the basic dignity and equality of each person.

Pre-twentieth century

Elements of human rights were recognised in the English law that was brought to Australia in 1788. In England, the Magna Carta(1215) and the Bill of Rights(1688) are often said to enshrine human rights, but both deal little with the rights of ordinary people. They are primarily contracts between the King and the barons (Magna Carta) or the House of Commons (the Bill of Rights). Nevertheless, they were significant in the developing recognition of human rights because they gave some limited rights to particular individuals against the sovereign.

From the 17th to 19th centuries various treaties between countries, and declarations within countries, guaranteed the right of non-discrimination for people according to their religion, for example:

  • Roman Catholics and Protestants in the 1648 Treaty of Westphalia;
  • Russian Orthodoxy in Turkey in 1774; and
  • Jews in the 1815 Congress of Vienna.

From statements of human rights such as these, an international law of human rights started to develop. The French Declaration of the Rights of Man and the Citizen of 1789arose out of the French Revolution. It is a much fuller expression of human rights than is found in English law. The Declaration, and the ‘Bill of Rights’ amendments to the United States Constitution in the 1790s, are the first expressions in law of rights which are universal in their application to all citizens, not limited to the aristocracy or Members of Parliament.

These political developments reflected contemporary political and philosophical thought, both for and against what were then termed ‘natural rights’, including the 17th century work of Hugo Grotius and John Locke; Thomas Paine and Edmund Burke in the 18th century; and Jean-Jacques Rousseau, Jeremy Bentham and John Stuart Mill in the 19th century.

The Twentieth Century

Recognition of human rights on an international scale came from the two major wars of the 20th century. Trench warfare and the use of gas in World War I provoked a desire among nations to regulate weapons permissible in war. The Paris Peace Conference in 1919 had significance for the development of human rights in the 20th century through three outcomes:

1. League of Nations

The first outcome was the establishment in 1920 of the League of Nations, which took responsibility for maintaining international peace. Australia was among the 20 founding member countries, and membership expanded to 54. By mutual agreement (a Covenant), members of the League undertook to promote fair working conditions for their citizens, and humane treatment for indigenous peoples in colonised countries. The League supervised the distribution of former German colonies as trust territories, having regard to the rights of the Indigenous people. Most importantly perhaps, the League of Nations initiated the Slavery Convention 1926, to abolish slavery.

As a lasting human rights achievement, the League of Nations was compromised at the outset by the refusal of some founding members, including Australia, to include in the Covenant a commitment to non-discrimination on the basis of race. Despite this, and its ultimate failure to avoid another World War, the League of Nations was a brave experiment which laid the groundwork for the establishment of the United Nations in 1945.

2. International Labour Organisation

With much longer lasting effect, the Paris Peace Conference in 1919 resulted in the establishment of the International Labour Organisation (ILO). The ILO was a product of the Treaty of Versailles, one of the peace treaties signed at the Paris Conference. Beyond its role in promoting improved industrial conditions for workers, the ILO works to prevent abuses of human rights in employment, such as discrimination, slavery, child labour, restrictions on freedom of association.

3. War crimes

The Treaty of Versailles also articulated, for the first time, an international resolve to hold individuals accountable for war crimes. The intention was to try people, including the Kaiser, Wilhelm II, for violating the customs of war – in effect, for what later became humanitarian crimes under the Geneva Conventions of 1949. For political reasons the trials never took place in an international court, but the terms of the Treaty of Versailles anticipated the war crime trials in Germany and Japan after World War II.

United Nations Charter

The events of World War II, particularly the Holocaust, led directly to the establishment of the United Nations, and the modern era of explicit recognition of and commitment to international human rights.

When the United Nations (UN) was established in 1945, its Charter contained the first explicit recognition in international law that an individual was entitled to fundamental rights and freedoms. Among the purposes of the UN set out in Article 1 of the Charter is that of co-operation ‘in promoting respect of human rights and fundamental freedoms for all’. Article 55 commits the United Nations to promoting ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’. Article 56 provides that all members ‘pledge themselves to take joint and several action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55’.

The Charter specifies that the UN should not impose any restrictions on the eligibility of people to participate in the international community, and gives the General Assembly of the UN responsibilities which include assisting the realisation of human rights and fundamental freedoms for all. Through the Charter, nations that become members of the United Nations commit themselves to its framework of human rights.