Origin and development of human rights
Human Rights Law and Practice · Unit I · Topic 2 of 18 · 7 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Ancient and religious roots
The phrase “human rights” is modern, but the ideas behind it are old.
- India. The concept of dharma placed duties on the ruler to protect his subjects; the edicts of Ashoka (third century BC) speak of tolerance among religions and humane treatment of prisoners and animals.
- Persia. The Cyrus Cylinder (539 BC) records the release of captive peoples and freedom to return and worship, and is often cited as an early charter.
- Greece and Rome. The Stoics taught that all men share in a universal reason; Roman lawyers developed the jus naturale and jus gentium, law common to all peoples.
- Religious teaching. Christianity, Islam and Buddhism each teach the equal worth of persons before God or the moral law. Medieval natural law (Aquinas) held that a human law contrary to natural law is not true law.
2. National charters: 1215 to 1791
- Magna Carta, 1215. Clause 39 provided that no free man shall be taken, imprisoned, disseised, outlawed or exiled except by the lawful judgment of his peers or by the law of the land. It limited the King, though only for barons and free men.
- Petition of Right, 1628 (no taxation without Parliament, no arbitrary imprisonment) and the Habeas Corpus Act, 1679.
- Bill of Rights, 1689. Free elections, freedom of speech in Parliament, no excessive bail or cruel and unusual punishments.
- John Locke, Two Treatises of Government (1689): men have natural rights to life, liberty and property; government exists to protect them, and a government that violates them may be resisted. This is the philosophy behind the next two documents.
- Virginia Declaration of Rights and the American Declaration of Independence, 1776: all men are created equal and endowed with unalienable rights to life, liberty and the pursuit of happiness. The US Bill of Rights, 1791 (first ten amendments) made such rights enforceable against the federal government.
- French Declaration of the Rights of Man and of the Citizen, 1789. Men are born and remain free and equal in rights; the natural rights are liberty, property, security and resistance to oppression; sovereignty resides in the nation.
These documents were national. They protected citizens against their own government, and they left out slaves, women and colonial subjects. The idea of rights protected by international law came later.
3. International beginnings: 1864 to 1945
- Abolition of the slave trade and slavery: the British Slavery Abolition Act 1833, the General Act of Brussels 1890, and the League’s Slavery Convention 1926.
- Humanitarian law: the first Geneva Convention, 1864, and the founding of the International Committee of the Red Cross.
- After the First World War: the minorities treaties protecting national minorities in the new states of Europe; the mandates system; and the International Labour Organisation, 1919, which began setting labour standards by convention.
- The Second World War made the decisive change. Franklin Roosevelt’s Four Freedoms speech (6 January 1941: freedom of speech, freedom of worship, freedom from want, freedom from fear) and the Atlantic Charter of 1941 set the agenda. The Nuremberg trials (1945–46) established that individuals can be punished under international law for crimes against humanity, and that obedience to national law is no defence.
4. The United Nations era
The UN Charter, 1945 is the first treaty in which states accepted human rights as a matter of international concern: the Preamble reaffirms faith in fundamental human rights, and Articles 1(3), 55 and 56 commit members to promote them (see the note on the UN Charter). The Commission on Human Rights, set up by ECOSOC in 1946, drafted the Universal Declaration of Human Rights, adopted on 10 December 1948. The two Covenants, the ICCPR and the ICESCR, followed on 16 December 1966 and came into force in 1976. Together these three documents are called the International Bill of Human Rights.
Specialised treaties then extended protection to particular wrongs and groups: the Genocide Convention (1948), the Refugee Convention (1951), ICERD (1965), CEDAW (1979), the Convention against Torture (1984), the Convention on the Rights of the Child (1989), the Migrant Workers Convention (1990), and the Conventions on the Rights of Persons with Disabilities and on Enforced Disappearance (2006). Regional systems grew in Europe (1950), the Americas (1969) and Africa (1981). The Vienna World Conference of 1993 led to the post of High Commissioner for Human Rights, and in 2006 the Human Rights Council replaced the old Commission.
5. The Indian story
Demands for rights were part of the freedom movement: the Constitution of India Bill, 1895; the Commonwealth of India Bill, 1925; the Nehru Report, 1928, with a list of fundamental rights; the Karachi Resolution of the Congress, 1931, on fundamental rights and economic policy; and the Sapru Committee Report, 1945. The Constituent Assembly drew on these and on the UDHR, which was being drafted at the same time. Hansa Mehta, India’s delegate on the Commission on Human Rights, is credited with changing “all men are born free and equal” to “all human beings” in Article 1 of the UDHR. India acceded to both Covenants in 1979 and enacted the Protection of Human Rights Act in 1993.
6. Sources: treaty and custom
Article 38(1) of the Statute of the International Court of Justice lists the sources of international law: treaties, international custom “as evidence of a general practice accepted as law”, general principles of law, and, as subsidiary means, judicial decisions and the writings of publicists. Human rights law comes mainly from the first two.
Customary international law has two elements: consistent and general state practice, and opinio juris, the belief that the practice is legally required (North Sea Continental Shelf cases, ICJ, 1969). Custom binds all states, whether or not they have ratified a treaty. Its importance for human rights is that it reaches states that have stayed out of the treaties.
- Many provisions of the UDHR, which was not adopted as a binding instrument, are now regarded as reflecting custom: the prohibitions of slavery, torture, arbitrary killing, prolonged arbitrary detention and systematic racial discrimination.
- Some rules have the status of jus cogens, peremptory norms from which no derogation is permitted (Vienna Convention on the Law of Treaties, 1969, Article 53): a treaty that conflicts with one is void. The prohibitions of genocide, slavery, torture and apartheid are the usual examples.
- In Barcelona Traction (ICJ, 1970) the Court said that certain obligations, such as those arising from the outlawing of aggression and genocide and from the basic rights of the human person, including protection from slavery and racial discrimination, are owed erga omnes, to the international community as a whole.
- In Filártiga v. Peña-Irala (US Court of Appeals, Second Circuit, 1980) a US court held that official torture violates customary international law, allowing a Paraguayan family to sue a Paraguayan police officer found in New York.
In India, customary international law is applied without legislation so long as it does not conflict with an Act of Parliament. In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, 1984 INSC 40, (1984) 2 SCC 534, the Supreme Court accepted the doctrine of incorporation subject to that condition. In Vellore Citizens Welfare Forum v. Union of India, 1996 INSC 952, (1996) 5 SCC 647, it said that rules of customary international law which are not contrary to municipal law are deemed to be incorporated in the domestic law. Treaties are different: under Article 253 Parliament legislates to give effect to them, though courts use unincorporated treaties to interpret fundamental rights (see the note on human rights and the Indian Constitution).
How this is examined
January 2026 asked “Explain the origin and development of human rights” (10 marks) and, as a 6-mark note, “Customary international law and human rights”. June 2025 asked “Trace the evolution of the concept of human rights” and, as the alternative, “Write an essay on the International Bill of Human Rights”. For the essay use sections 1 to 5 with dates; for the International Bill question, expand section 4 using the notes on the UDHR, ICCPR and ICESCR. For the custom note, use section 6: definition, two elements, the UDHR as custom, jus cogens and erga omnes, and the Indian position in Vellore.
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