CONCEPT, BASIS & INTERNATIONAL LAW OF

HUMAN RIGHTS
Complete Chronological & Theoretical Exam Study Notes

1. Foundations & Chronological Milestones

• Magna Carta (1215): Designed primarily to protect against arbitrary acts by the King. Safeguarded land/
property from seizure, forced judges to respect laws, barred imprisonment without trial (Clause 39 introduced
jury trial concept), and limited absolute royal power. Reconfirmed by Henry III (1216-17) and Edward I (1297).
Concept broadened via the Bill of Rights (1689).
• Petition of Rights (1628): Buttressed the Magna Carta by asserting citizens' freedoms against
unrepresentative taxation and arbitrary imprisonment.
• Bill of Rights (1689): Formed the baseline for Parliamentary superiority over the Crown in England. Confirmed
the rule of law, mandated free/binding elections, and explicitly condemned excessive bail and cruel/unusual
punishments.
• Philosophical Bridging: Classical jurists like St. Thomas Aquinas and Hugo Grotius heavily reflected the view
that human beings are naturally endowed with eternal, inalienable rights.
• 18th Century Declarations:
◦ American (1776/1787): Virginia Declaration (1776) declared all men naturally free, independent, and
possessing inherent rights. The US Constitution (1787) lacked a Bill of Rights initially but scattered
protections (habeas corpus, jury trials, banning bills of attainder/ex post facto laws); formally amended over
time (1789, 1865, 1869, 1919).
◦ French (1789): Declaration of the Rights of Man and the Citizen stipulated men are born free and remain
equal in rights (liberty, property, security, resistance to oppression). Prompted global adoption across Europe
(e.g., Sweden 1809, Spain 1812, Norway 1814, Belgium 1831).

• Terminology Evolution: The explicit phrase "human rights" entered the vocabulary of mankind relatively late. It
was largely adapted from Thomas Paine's English translation of the French Declaration, stepping in to replace
"natural law" or "rights of man" which historically struggled with controversies and universal inclusivity (such as
omitting women).

2. Jurisprudential Theories (Basis of Human Rights)

A. Natural Law Theory

• Core Concept: Human rights are derived from a supreme, eternal principle of natural law (Divine Law, Law of
Reason, Universal/Common Law, or Unwritten Law).
• Historical Pillars:
◦ Greeks: Viewed it as a body of imperative rules imposed upon mankind by nature (the personified universe),
closely tying it to justice and ethics (Aristotle).
◦ Stoics: Popularized the baseline maxim "live according to nature."

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 ◦ Romans (Cicero, Gaius, Ulpian): Practised natural law as an immutable, universal part of *jus civile*.
Cicero defined true law as right reason in agreement with nature, universally applicable and unchanging.
◦ Christian / Divine Shift: The Christian Fathers extended natural law to a divine origin (citing St. Paul).
Thomas Aquinas argued that natural law is derived from God and written in the hearts of all men.

• Evolution into Natural Rights: Rights shifted from duties under cosmic order to explicit individual legal claims
protected by natural justice, superior to positive state laws.
• Major Scholarly Criticisms:
◦ Rights are strictly creations of positive legal systems; "natural rights" are considered by some critics as a
mere metaphysical metaphor.
◦ The absolute meaning of "nature" or "natural law" is inherently vague, hazy, and has suffered deeply
conflicting moral, religious, or political interpretations.

B. Social Utility Theory

• Core Concept: The ultimate basis of rights rests on "social utility." Rights are genuine only if they conform to
the utility/interests of the individual and maximize the aggregate happiness of the community.
• Major Deficiencies: Regarded as flawed because the interests of a community are a collection of individual
dynamics, but not universally identical. It is a delusion to think individual and collective happiness always align
perfectly; social utility can create sharp, direct conflicts with core individual liberties (sacrificing the minority for
the majority).

True Modern Synthesis: The absolute basis of human rights lies in the simple fact that an individual is a
human being. Wellbeing, dignity, and freedom are essential parameters for a rational being to live a dignified
life, forming the bedrock foundation of human rights law.

3. The Framework of International Human Rights Law

• Universal Application: International Human Rights Law applies universally to all individuals. When States
become parties to international treaties, they assume binding obligations and duties under international law to
respect, protect, and fulfill these rights within their domestic jurisdictions.
• The Sovereignty Conflict: Historically, international human rights law encountered significant friction with the
traditional doctrine of *State Sovereignty*. In the 17th-19th centuries, a state's treatment of its own citizens was
considered an absolute domestic affair, wholly immune to foreign regulation.
• Early Milestones (Pre-WWII): The absolute armor of state sovereignty cracked with early exceptions: the
abolition of slavery/slave trade (e.g., the International Slavery Convention of 1926 under the League of Nations)
and the establishment of the International Labour Organization (ILO) in 1919 to safeguard minority and worker
rights.
• Institute of International Law Declaration (1929): A critical progressive step that laid down 6 specific duties
for States, demanding they recognize every individual's equal right to life, liberty, property, and the free practice
of religion without distinction of nationality, sex, race, language, or religion.

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 4. The Post-WWII Paradigm Shift & The UN Charter
• The Turning Point (1940s): The catastrophic human rights atrocities committed during World War II
(particularly Nazi totalitarianism and lawlessness) permanently broke the traditional approach. The international
community realized that the domestic preservation of human rights was directly linked to the maintenance of
global peace and security.
• FDR’s Four Freedoms (Jan 6, 1941): US President Franklin D. Roosevelt declared four essential human
freedoms as a supreme goal: Freedom of speech, Freedom of religion, Freedom from want, and Freedom
from fear.
• The Atlantic Charter (Aug 14, 1941): Joint declaration by FDR and Winston Churchill cherishing a peace that
affords assurance that all men in all lands may live out their lives free from fear and want.
• Declaration of the United Nations (Jan 1, 1942): Signed by 26 nations at Washington, explicitly using the term
"human rights" for the first time in a formal multilateral text, linking victory over the Axis powers to the defense of
human rights.
• Early Codification Attempts: The Nuremberg Trials (1945) established individual accountability for war crimes,
while the Dumbarton Oaks proposals laid the structural framework for a new global organization.

5. Core Human Rights Mandates in the UN Charter

Though the UN Charter serves as a global constitution, it did *not* explicitly define or enumerate human rights (a
proposed "International Bill of Rights" was rejected during drafting due to state sovereignty anxieties). Instead, it
established binding institutional and promotional obligations through specific provisions:

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 Provision Exact Legal Mandate & Function

Preamble Expresses the fundamental determination of the peoples of the United Nations to reaffirm
faith in fundamental human rights, in the dignity and worth of the human person, and in the
equal rights of men and women.

Article 1(3) Establishes that one of the core purposes of the United Nations is to achieve international co-
operation in promoting and encouraging respect for human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.

Article 13 Empowers the General Assembly to initiate studies and make recommendations for the
purpose of assisting in the realization of human rights without distinction.

Article 55 Mandates that the UN *shall promote* higher standards of living, solutions to economic/
social/health problems, international cultural/educational cooperation, and universal respect
for, and observance of, human rights for all.

Article 56 Creates a explicit pledge where all Member States promise to take joint and separate action
in co-operation with the Organization for the achievement of the purposes set forth in Article
55.

Article 62 & 68 Authorizes the Economic and Social Council (ECOSOC) to make recommendations for
promoting respect for human rights and mandates the setup of commissions (which led to the
Commission on Human Rights and Commission on the Status of Women).

Article 76(c) Establishes as a basic objective of the trusteeship system the encouragement of respect for
human rights and fundamental freedoms for all.

6. Evolution of U.N. Machinery & Mechanisms

• The Legal Nature of the Charter Obligations: Because the Charter did not list the specific rights, courts and
states historically split. Some argued it was merely a vague statement of policy without teeth, while progressive
legal jurisprudence affirmed it created a binding, explicit international obligation rooted in good faith and public
policy.
• 2005 World Summit Outcome: Reaffirmed the total interdependence of human rights, development, and
international security. It replaced the highly politicized Commission on Human Rights with the UN Human
Rights Council (UNHRC), mandating it to address gross/systematic violations and manage the Universal
Periodic Review (UPR).
• Promotion vs. Protection Mechanics:
◦ Promotion (General Assembly, ECOSOC): Involves standard-setting, setting international benchmarks,
education, holding global conferences, and disseminating human rights values.
◦ Protection (Security Council, ICJ, Treaty Bodies): Involves active enforcement, passing binding
resolutions, investigative fact-finding, applying political/economic sanctions against violating states, and
handing down authoritative judicial rulings.

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 💡 WHAT YOU MUST KNOW BESIDES THIS FOR THE EXAM (HIGH-YIELD EXTENSIONS):

• Monism vs. Dualism: Essential for understanding how these international treaties interact with national laws.
Monism views international law and domestic law as a single, unified legal structure (treaties apply
automatically domesticly). Dualism views them as entirely separate spheres; an international treaty ratified by a
state has no internal domestic legal force until the national parliament explicitly passes a domestic enabling act.
• Jus Cogens: Compulsory, peremptory norms of international law from which *no derogation is ever permitted*
by any state (e.g., the absolute prohibitions against genocide, torture, piracy, and crimes against humanity).
They override any conflicting treaty provision.
• Erga Omnes Obligations: Obligations owed by a state towards the *entire international community as a whole*.
Because these rights are so vital, every single state has a legal standing and interest in their protection, allowing
states to claim violations even if their own citizens aren't the direct victims.
• The Treaty Body System: Know the independent expert committees that monitor the core treaties (e.g., the
Human Rights Committee monitors the ICCPR through periodic state reports and general comments).

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