The history of international human rights law

Abstract

The Preamble of the Universal Declaration of Human Rights of 1948 (UDHR)1 reaffirms the ‘faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women’, and expresses the conviction that ‘human rights should be protected by the rule of law’. Article 1 of the same Declaration proclaims that: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ The quoted passages highlight the double nature of international human rights (IHR). They are at the same time legal and moral rights.2 As legal rights,3 human rights are entitlements ‘protected by the rule of law’, which implies that they form part of positive law. More precisely, so as to be accurately described as international human rights, they need to be protected by the international legal order. As moral rights, IHR are generally viewed as basic entitlements that belong to every person by virtue of the sole fact of being human. Based on a common, albeit contested4 classification, they comprise civil and political rights (so-called first generation rights), social, economic and cultural rights (so-called second generation rights) and solidarity rights5 (so-called third generation rights).6 According to the traditional view, first generation rights are negative rights, protecting life, bodily and physical integrity and individual freedom against state interference, as well as formal equality7 and the right to political participation. They comprise mainly classical liberty rights, including, for instance, two of President Roosevelt’s famous four freedoms,8 ‘freedom of speech and freedom of belief’. Second generation rights, by contrast, are primarily positive rights (or welfare rights), reflecting the concern for substantive equality. They impose on the state the duty to provide for people’s basic needs, satisfying what President Roosevelt called ‘freedom from want’. Contrary to the first and second generation of human rights, third generation rights are conceived not as individual but as group rights.9 They include, for instance, people’s rights to selfdetermination, the right to development and to a clean environment, and contribute, through the right to peace, to the realization of President Roosevelt’s fourth freedom, the ‘freedom from fear’. The categorization into three generations is not meant to reflect axiological but temporal priority. Qua moral rights, the first generation is generally considered a child of 17thand 18th-century liberalism, the second generation of 19th-century socialism, whilst the third generation reflects the vindications of a fairer political and economic world order, voiced by developing countries in the context of decolonization, and with strong vigour since the 1970s. Qua legal rights, the positivation of the first two generations has so far been more successful than the codification of rights belonging to the third generation.