Human rights through courtrooms and battlefields: a historical overview
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We are all aware of our human rights. But, depending on who you ask, the term often encompasses different things. There are guiding documents that have been created by organisations such as the United Nations, but, on a global scale, this translates very differently depending on each country. Although the concept of establishing basic human rights may seem straightforward to us today, it has a long and tumultuous history that should not become evanescent. To truly understand where our rights have derived from, we need to look back through history and critically analyse accounts of events.

One of the earliest accounts detailing the idea of human rights dates back to the Magna Carta of 1215. The key principles it introduced were those of equality before the law and the right to a fair trial. There has been some dispute over whether the principle of habeas corpus really originated within the Magna Carta or whether the document simply provided some of the notions needed for its development and legal solidification in the Habeas Corpus Act of 1679.

The writ of habeas corpus could be used to demand that a prisoner be brought before the court to determine whether the custodian has a lawful authority to detain them. This allowed many people to challenge unlawful detentions, particularly when they were used to incarcerate individuals who were criticising the government. This was true in the case of John Lilburne who was a vocal critic of the Government’s position on civil and human rights.

He coined the expression ‘freeborn rights’ which was synonymous with basic human rights. He defined these as being rights that every human is born with as opposed to those granted by society. John Lilburne’s opposition of Oliver Cromwell and his circulation of seditious material led to his repeated detainment. However, he used the concept of habeas corpus to free himself numerous times as there was no formal legal principle detaining him. The principle was initially utilised to justify the right to free speech.

HABEAS CORPUS AND ITS EARLY ROLE IN THE LEGAL FIGHT AGAINST SLAVERY

The principle of habeas corpus would later serve to challenge one of the longest standing and most grievous human rights violations – slavery. The case of Somerset v Stewart in 1772 also called into question previous stances on morality that had been used to justify slavery. An enslaved African, James Somerset, managed to escape after he was brought to England. He was eventually recaptured and imprisoned on a ship destined to go to a British Colony in Jamaica. He was to be sold on a plantation. His godparents obtained a writ for habeas corpus to bring about a legal case to determine whether his imprisonment was lawful.

The Chief Justice of the King’s Bench, Lord Mansfield presided over the case and came to a judgement that Somerset should go free. The legacy of the case is perhaps not in the verbal judgement that was given but instead in what the Lord Mansfield omitted to say; he did not want to seem predisposed to any particular moral aspect; although it was clear from the inferences in his judgement that he believed a greater question about virtue was being asked. Although British participation in slavery did not cease until the Slavery Abolition Act in 1833, the case set a precedent where a judge ruled in favour of a slave being able to have a degree of autonomy over their whereabouts.

The judgement reignited the abolitionist movement and became a notable part of the English Common Law branch pertaining to slavery. Lord Mansfield used the ruling as a precedent for another case in 1785 R v Inhabitants of Thames Ditton, where he ruled that a slave could not be forcibly removed from England against their will. Although this right was meagre when held up against the rights of free English men at the time, it did signify that there were changing attitudes and that the abolition movement was gaining momentum.

INTERPRETATIONS THROUGH HISTORY

Liberalist ideology was a crucial influence on revolutions that were spurred by a desire to obtain basic human rights. Most notably, the theories of the philosopher John Locke. Two of his theories that held the greatest sway were the Social Contract and Natural Law. Locke describes a “state of nature” which we are born into and where each individual is bestowed with certain God-given rights: the right to “life, health, liberty and possessions”. These rights transcend the particular stipulations of any society’s laws. The government exists to ensure its citizens can freely exercise their rights to “life, health, liberty and possessions”, while a general societal order is enforced to the benefit all citizens. These ideas establish a precedent for the concept of the privileges that we should be afforded. An issue that arose as a result was who these rights should specifically apply to.

Nowadays, human rights are consistent regardless of gender or race. However, when slavery was prevalent and women were seen largely as homemakers, these rights were by no means enforced equally. Instead, their enforcement was often used as a matter of convenience. John Locke himself had an economic interest in the topic of slavery while writing his philosophy. He owned land in North Carolina, an area where slavery was used to generate profit for European business owners.

He was also heavily acquainted with people who were slave owners. His work, again, raises the issue of nuances in language that has risen throughout history and has been the subject of many legal disputes. In Locke’s theory, the word ‘possessions’ was often interpreted to comprise of slaves and hence it could be used as a defence of practices that were contradicting the “life, health and liberty” of those who were enslaved, as they were not treated as legal ‘persons’.

The controversial facet of human rights began in America, when the Declaration of Independence was issued. It stated that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that around these are Life, Liberty and the pursuit of happiness”. This statement itself highlighted the nuances in language due to its wide-ranging interpretation of these so called ‘foundational’ American values. What did ‘equal’ really mean? Although it says everyone was ‘equal’, this did not equate to everyone being given equal political participation. This was retained exclusively for men who owned property.

The phrase ‘life, liberty and pursuit of happiness’, was used to defend slavery as many people argued that it was the role of government to protect the rights of property. This was used to harmonise the existence of slavery with the creation of the declaration. It was very much a question of interpretation. Anti-slavery campaigners saw this as a cornerstone for establishing a person’s right to ‘liberty’. But slave owners acknowledged the happiness they derived by the tasks their slaves did and hence used this as a defence of such practices. This was one of the first well known instances of the creation of these quasi human rights.

THE FRENCH REVOLUTION: BUILDING A SOCIETY WITH HUMAN RIGHTS AT ITS CORE

France supported the American Revolution by supplying arms and financial resources so they were very much involved with the progression of the revolution. Given the French involvement in American independence, it is perhaps not surprising that the seeds of revolution were planted in France too and it eventually emerged in 1790.  The French Revolution in the 18th century is perhaps one of the most pivotal historical landmarks in establishing a society having human rights as one of its central values. The Declaration of the Rights of Man and Citizen (also referred to as the DOTROMAC) was one of the first documents to explicitly state the values of human rights. The document clearly laid out principles of human rights as well as foundations of liberal democracy.

It is said to have “determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man”. The aims of the revolution were summed up in a short phrase: liberté, égalité, fraternité. The idea of natural and unalienable rights drew directly on philosophical notions of the time. The declaration influenced liberal democracies that were centred around the human rights of its citizens. The ideas of the document subsequently influenced and invigorated the Napoleonic code which was enforced in many European countries that were to be subject to the rule of Napoleon Bonaparte within his empire. The French Revolution was momentous as it led to the emancipation of the individual, the abolishment of privileges designated by noble birth and it was one of the first societies to be supposedly guided by the principle of the equality of men.

The French revolution also had a heavy influence in Britain. Many of those in power were terrified of the peasants rising up in a French-inspired social upheaval. This led to concessions being made by the Government when pressured by the emerging riots. The Reform Acts of 1832 abolished tiny districts and many ‘rotten boroughs’. It also increased citizens’ ability to engage with political decisions, although it still excluded women and only included men who had steady means of income. The Act did extend the franchise considerably and, although it still excluded many social groups, the scale of reform was significant. Most importantly, it showed that Parliament would respond to vocal discomfort from the citizens – even if only to satisfy enough to prevent uprising and incipient revolutions.

THE RED CROSS’S ROLE IN ENFORCING HUMAN RIGHTS

This is an idea which would pervade the majority of European countries throughout the 20th century. The Two World Wars highlighted the importance of human rights. Organisations such as the International Red Cross and Red Crescent Movement were established during these war periods with the aim of “protecting human life and health, to ensure respect for all human beings and to prevent and alleviate all human suffering”. The Red Cross – which today consists of over 97 million volunteers – rose to prominence by physically prioritising the manifestation of human rights even though at this point no formal international documentation had been created to encourage the protection of these rights.

The values of the Red Cross were later articulated into formal treaties at the Geneva Conventions. These were a series of four treaties and three additional protocols that established standard within International Law for humanitarian treatment during war. These extensive documents were a step forward for the principles of human rights. International Law that pertains directly to human rights had never been created before on this scale, hence the conventions gave sway to these rights on a global stage. These treaties have been enforced through International Courts and have acted as guiding code of conducts in any war that has occurred post WW2.

Some objections have been raised on the grounds that the treaties have been used to prosecute humanitarian war crimes that occurred internally within a country – and hence may be a breach of sovereignty. An example of this is the International Criminal Tribunal for the former Yugoslavia (ICTY),which, in the 1999 case of Prosecutor v. Dusko Tadicjudgement, reached a decision that grave breaches apply not only to international conflicts between nations but also in internal armed conflicts.

NOWADAYS: HOW HUMAN RIGHTS ARE CHANGING WITH THE TIMES

This was said to be considered within the jurisdiction of customary International Law. It shows that the concept of ‘human rights’ and what it incorporates is not stagnant. It is constantly changing as we face new global challenges. A key example would be the creation of the Internet – which has led to privacy issues vehemently disputed in recent years. Some have argued that a new, fundamental human right should be recognised:  the ‘right to internet access’. This is because the internet is a necessary tool we need to fully exercise our right to ‘freedom of expression and opinion’ nowadays. It is believed that states should not have the right to restrict internet usage as this, in turn, would infringe on one of the basic human rights.

The UDHR (Universal Declaration of Human Rights) set a unique precedent in showing that multilateral international cooperation could be achieved regarding human rights. This document was adopted by the United Nations’ General Assembly on the 10th of December 1948. It consisted of 30 articles stating the core rights of individuals, many of which have their own treaties that can be referred to for further elaboration. The documents considered to have influenced it the most are the Magna Carta, the American Declaration of Independence and the DOTROMAC. These rights, however, are not legally binding.

THE ‘CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM’: MODERN INTERPRETATIONS

Eight countries abstained from voting in favour of the UDHR. There were criticisms from certain states that the UDHR was too euro-centric and did not take into account the different cultural values of the Middle East. Indeed, in response to the UDHR, the Organisation of Islamic Cooperation created their own document called the ‘Cairo Declaration on Human Rights in Islam’. It acknowledges some but not all of the rights in the UDHR, but primarily focuses on those which are permissible under the rectitude defined by Sharia law.

The declaration has been criticised by many member states as it fails to guarantee freedom of religion and allows corporal punishment. The dichotomy between the two has created an underlying sense of tension, particularly when it comes to the accountability of a state to human rights violations. This appears to be another branch of the cultural relativism debate which has become increasingly prominent in recent years.

The Brexit referendum also sparked a future change in the process of enforcing human rights. When the UK’s transition period ends, documents such as the Charter of Fundamental Rights of the European Union will no longer strictly apply. At present, there is no British Bill of Rights, although it was included in the Conservative Government’s 2015 election manifesto. If a new Bill was created, the previous law of the ECHR (European Court of Human Rights) and the European Convention on Human Rights would no longer be enforceable. This shows that the evolution of human rights is not over yet. And, perhaps, in many ways, at least in the UK, there might even be a new beginning.