Despite its fair share of criticism of arbitrarily deciding the starting point, or ignoring the third world perspective, the study of the history of international human rights law (IHRL) is not fruitless. It matters significantly as it has some pragmatic usefulness. The scope of this pragmatic usefulness extends from academia to international courts. In this article, I argue that the study of the history of IHRL brings new dimensions to the understanding of IHRL through its unique perspective and enables us to appreciate aspects of IHRL that otherwise would not have been possible. I illustrate in this article that there is a relevant contribution of the history of IHRL in justifying the reason for having an IHRL system, understanding its legal nature, understanding its specific provisions, determining the status of certain rights, maintaining the elements of continuity, and understanding the perspective and power dynamics at play. The list of utilities discussed in this post is not exhaustive. The article does not claim that the history of IHRL has always been successful in achieving the above-mentioned utilities, however, it has the potential to do so.
Justifying having an IHRL system
The IHRL is a much-contested field in international law as pragmatists often challenge its utility. Therefore, international human rights lawyers are often tasked with justifying the reasons for having an IHRL system (see, Buchanan: 2015). Since the IHRL or international law in general, more often than not, depends on consent, as it lacks authoritative power (or coercive power), a satisfactory justification is instrumental to its acceptance. There is a great number of international lawyers and academics who believe that the IHRL is merely the codification of natural rights that existed universally. Their method of justification is dependent on providing a historical account of how throughout history, human rights were considered to be natural rights that people enjoyed on the virtue of their humanity. Bates (OUP, 2018) for example, in ‘History’, showed how the concept of rights of men could be traced back to the Magna Carta and how it developed through various revolutions and writings of enlightenment thinkers such as Kant, Montesquieu, and Rousseau. Despite being a very euro-centric account, his study claims that the idea of human rights has existed long before its codification as IHRL. Regardless of its flaws, such an account can play a role in justifying having an IHRL system.
Other thinkers have claimed that it is the reaction to the atrocities of the Second World War that gave rise to the IHRL system. This is perhaps the most commonly accepted account (at least in the west) of the history of international human rights. They ground their justification on the “never again” reaction of the Holocaust. For example, Beitz (OUP, 2009) in ‘The Idea of Human Rights’, wrote that immediately after the Second World War and the Holocaust, a conviction was formed for the need of an international system that protected individuals from the states. Buchanan (OUP, 2012), in ‘Human Rights’, gave two more specific reasons for the creation of an IHRL system. He thought that the creation of an IHRL system was a reaction to two fascist ideologies, namely, radical status inegalitarianism (denial of equal basic moral worth to all humans), and radical collectivism (that the moral worth of a human comes from her usefulness and membership in a nation). Without having the atrocities of the Second World War as the background for creating an IHRL system, justifying the reason for having it may become difficult, if not impossible.
Understanding the Nature of Human Rights
A challenge that international human rights lawyers often face is decoding the nature of IHRL. Historical accounts of IHRL can play a significant role in decoding the nature of IHRL. To understand IHRL, one must look at the foundation upon which it was built in. Different accounts of history thus lead us to different conclusions about the nature of IHRL. For example, if one is to believe that the IHRL is simply a reaction to the atrocities of the Second World War, she may be tempted to think that IHRL mainly plays a role in limiting the powers of states. If one is to accept Martinez’s account presented in ‘The Slave Trade and the Origins of International Human Rights Law’ (OUP, 2012), she may be tempted to think IHRL was established to protect individuals from non-state workers as well (in her book she described how IHRL was first used to abolish slave trade by putting sanction against private slave trading ships). That would make non-state actors historically a part of IHRL. If one is to accept Moyn’s account, she may think that the nature of IHRL changes rapidly and may cater to the needs of the society (in Moyn’s case, western society). Accepting Moyn’s account may also lead one to believe that IHRL is governed by western society’s conscience.
A historical analysis of the IHRL system also allows us to uncover the underlying values that gave rise to the current practice. For example, in offering her triangular interpretation method (that dignity, equality, and liberty are to be read as corners of a triangle, instead of conflicting rights), Baer (2009), in ‘Dignity Liberty, Equality’, claimed that historically, the three “rights” were never read in isolation. So, historical analysis plays an important part in her claim of reading dignity, equality, and liberty as corners of a triangle, instead of an individual “rights”. Her claim may be contested (perhaps successfully) by others with a different account of the history of human rights.
Interpreting Specific Provisions
Historical study of individual rights also has an efficient role to play in IHRL practice. For instance, Asad (1996), in ‘On Torture or Cruel, Inhuman and Degrading Treatment’, presented a history of the prohibition on torture. His historical account showed that the moral standard of torture, with its claim of universality, is set by western colonisers. This historical account forces one to reconsider her understanding of torture. Asad highlighted in his article, how certain infliction of pain was declared to be torture by colonisers even when it was not considered as such by that concerned society. Provisions of international human rights instruments containing the prohibition on torture more often than not mention “infliction of severe pain.” Asad’s article presented historical accounts that show that the measurement of pain is not universal, rather it was arbitrarily decided by the colonisers. Such a study of the history of human rights may change how we understand a certain provision of international human rights law.
Determining the Status of a Certain Right
The history of IHRL also plays a significant role in determining the status of a certain right. To be more specific, the history of a certain right can be used to determine its status as customary international law. To be considered customary international law, a law must meet the requirements of state practice and opinion juris. To examine whether a law meets these requirements, historical analysis is often adopted by courts. For instance, in Prosecutor v Anto Furundzija, the ICTY observed that no state has ever claimed that they were authorised to practice torture in times of armed conflict. To make observance about no state claiming to be authorised to practice torture, the court had to look into the history of torture in times of armed conflict.
Maintaining Elements of Continuity
Due to the complex nature of the IHRL, understanding the functions of IHRL may become a challenge. It is often criticised for being incoherent. Shifting through the maze of this alleged incoherence requires the introduction of elements of continuity. The element of continuity was heavily emphasised by Martinez. Martinez’s emphasis on continuity of the laws prohibiting slave trade was criticised by Alston (2013) in his review titled, ‘Does the Past Matter?’, for Martinez’s focus on a single source. However, Alston noted the importance and indispensability of elements of continuity (and discontinuity). The complex principles and laws that international human rights lawyers must deal with cannot be comprehended without considering this element of continuity, which requires a historical study.
Understanding the Perspective and Power Dynamics at Play
The history of IHRL uncovers the perspectives that certain communities hold about the use of IHRL and the power dynamics that are inherent in the international plane. The historical analysis provided by western scholars (at least based in western universities) such as Bates, Moyn, and Martinez, show us IHRL from their perspective. What all three of their historical accounts have in common is that the focus of their studies is on western civilisations. Even though Bates gave a disclaimer in his book chapter that there are maybe other developments of human rights that he did not account for, his book chapter focuses totally on struggles for human rights in the western world.
Martinez’s account of abolition of slavery held Britain to be the “saviour” who nobly fought to abolish slavery, without considering other purposes that Britain might have had for doing so. She also ignored the struggles among slaves to abolish slavery. Moyn’s historical account shows that in his view, IHRL revolves around the western world, more specifically the US. He held the incorporation of the term human rights in the English Language as a new beginning for IHRL, without considering if such term existed in other parts of the world. These studies of history show that there is a popular view that IHRL is an implementation of the western conscience that makes it a “western business.” Such accounts also help prove the concerns Mutua (2001) expressed in his ‘Savages, Victims, Saviour’ theory that westerns think of the third world as savages and victims and think of themselves as saviours.
This article showcases some of the utilities the study of the history of IHRL offers. As seen from the above discussion, even when the historical study of IHRL misses the mark, it is by no means pragmatically futile. It uncovers some of the inner workings of the IHRL, contributes to comprehending IHRL’s foundation, presents new critique, and leaves us with an overall better understanding of IHRL. I do not argue that the historical accounts, regardless of their linear or revisionist nature, are not flawed. They are notorious for missing a holistic approach. However, it shows that the history of the IHRL matters significantly for reasons including the ones mentioned above.
Nafiz Ahmed is an adjunct lecturer at North South University, Bangladesh. He holds an LL.M., University of Cambridge (2021), and an LL.B., North South University (2019).