3 Historical Events That Led To The Advent Of Human Rights

Prof. Nitin Gomber

Part I

Today, we understand Human Rights as Rights that all people have by virtue of being human beings; the rights that are universal, inalienable, and equal and cannot be taken away; and the rights that ensure that we all are entitled to basic minimum things. The roots of these concepts lie in earlier traditions of many cultures and documents produced by various nations and organizations over a few centuries.

The Cyrus the Great Cylinder

In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia conquered the city of Babylon. He then freed the slaves, declared that all people had the right to choose their own religion and established racial equality. These decrees were recorded on a baked-clay cylinder in the Akkadian language with cuneiform script. The Cyrus the Great Cylinder is the first charter of human rights of nations in the world charter. It was excavated in 1879 by archaeologist, Hormuzd Rassam, in the foundations of Marduk temple of Babylon. It is currently placed in the British museum, London.

The main decrees in the Cyrus Cylinder relate to – the political formulization of racial, linguistic, and religious equality, slaves and all deported peoples were to be allowed to return to home; and all destroyed temples were to be restored. Cyrus the great is considered to be an epitome of great humanistic qualities and for his generous and humane policies.

United Kingdom and evolution of Human Rights:

Magna Carta

Magna Carta means “the great charter.” In 1215, after King John of England lost a battle against French at the Battle of Bouvines in northern France it resulted in violation of a number of ancient laws and customs by which England had been governed. Thereafter, a peace deal was signed between the King and its people at Runnymede, on the River Thames near Windsor in the south of England, in June 1215. It served as a practical solution to the political crisis faced by King John.1 This was known as the Magna Carta. It, for the first time, made the King subject to law like other citizens. Magna Carta originally provided for 63 clauses that enumerated the right of the church to be free from governmental interference, protection from excessive taxes among others. But shortly after its adoption, the questions emerged over its implementation. This again led to a strained relationship between King John and people. After King John’s death in 1216, when King Henry succeeded to the throne he issued a revised version of the Magna Carta. In 1225, Henry III reissued a much-revised version of Magna Carta which was later enrolled on the statute book by King Edward I.

It is believed that United States Bill of Rights (1791), the Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950) echo the principles laid down in Magna Carta. Even though most the clauses in Magna Carta stand repealed today, yet it holds significance for the democratic set up in England and serves in situations where the state exercises arbitrary and tyrannical power against its nationals.

The English Bill of Rights (1689)

In the revolution of 1688, when King James II fled the country and his daughter and her husband had to succeed, they had to agree to accept the Bill of Rights. The British Parliament passed the English Bill of Rights on December 16, 1689. The Bill of Rights covered the most important concern of its time: making the King subject to the rule of law like any other citizen. It contains restrictions on non-Parliamentary taxation, no imprisonment without cause and the use of martial law. It basically established the parliamentary sovereignty and limited constitutional monarchy. Each act by the King and the queen had to be approved by the Parliament so that the rights and liberties of the citizens could be upheld in all situations.

This Bill had a massive impact on the North America and the US Constitution, which are briefly discussed below.

The United States of America:

The United States Declaration of Independence, 1776: The Declaration was adopted by the Congress on July 4, 1776, declaring independence of thirteen British colonies and their formation to the United States of America. Since this document originated out of the experience of the United States under the brutal rule of King George III, it had justified its independence by asserting various natural and legal rights. Philosophically, the Declaration stressed two themes: individual rights and the right of revolution.3 It stated that the creator has endowed all men with certain unalienable rights – life, liberty and a pursuit of happiness. To secure these rights, Governments are instituted among Men. It also provided that whenever any Government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new Government. Prudence indeed will dictate that Governments long established should not be changed for light and transient causes.

But unfortunately, it did not extend human rights to all human beings. It preserved the institution of slavery and did not grant equal rights to women and men who were not white. In fact, the drafter Thomas Jefferson himself is said to have had held hundreds of slaves.

The Constitution of the United States (1787) along with the Bill of Rights (1791) – Written in 1797, the US Constitution is the oldest written constitutions in use. It serves as the foundations of the US federal system and defines the principle organs of the government, their jurisdictions and the basic rights of the citizens. The first ten amendments to the Constitution are called the Bill of Rights. The Bill of Rights came into effect on December 15, 1791. It explicitly protects the rights not incorporated in the Constitution and limited the rights of the federal government.

The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and bear arms, the freedom of assembly and the freedom to petition. It also prohibits unreasonable search and seizure, cruel and unusual punishment and compelled self-incrimination. The Bill prohibits Congress from making any law respecting an establishment of religion and prohibits the federal government from depriving any person of life, liberty or property without due process of law. Since its inception, the Bill of Rights has contributed significantly in the development of Human rights law in the United States of America.

To further understand the development of Human rights law in the United States of America, let’s understand the three landmark cases decided by the United States Supreme Court:

Dred Scott v. John Sandford (1857)5: Dred Scott was a negro slave belonging to Dr. Emerson, who was a surgeon in the US Army. Originally, Dr. Emerson was posted in the State of Missouri, a slave state6 then. Scott stayed with him. Thereafter, Dr. Emerson moved to the State of Illinois, a free state7 then. Scott stayed with him. Thereafter, Dr. Emerson moved Scott to Upper Lousiana (a territory acquired by the US from France), also a free state. In 1835, Dr. Emerson bought another slave, named Harriet. Harriet and Scott got married in 1836 with due permission. In 1838, Dr. Emerson moved Scott and Harriet to the State of Missouri, once again. Dr. Emerson sold Scott and Harriet to the Defendant, who moved to New York at some point in time. Scott sued the Defendant for his freedom. He alleged that given he’s traveled to  a free state, he is now a free man. In the Missouri Circuit Court of St. Louis County, the Jury decided that Dred Scott and his family were free. Sandford appealed to a higher state court (Missouri Supreme Court) which reversed the decision and held that Dred Scott and his family were not free. Thereafter, Sandford moved to New York, leaving Scott in Missouri. Scott was able to sue Sandford in federal court as a new case where the Jury decided that Scott & his family were not free. Finally, Scott appealed to the Supreme Court. The primary question before the court was, Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges and immunities, guaranteed by that instrument to the citizen? The Court found in favor of Sanford and declared that the African Americans are not citizens and thus have no rights. It was held that the term “We the People of the United States” in the Constitution does not include negros. The framers did not have these people in mind as they were considered a lower class. They were in fact regarded as beings of an inferior order which was altogether unfit to associate with the white race. They were treated as an article of merchandise and traffic. Therefore, the discussion in the case on jurisdiction treats negros as property and on the basis decides held that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States is not warranted by the Constitution and is therefore void.

Plessy v. Ferguson (1896): Plessy, the petitioner, was a citizen of the United States and resident of the State of Louisiana. He was of mixed descent, in the proportion of seven eights Caucasian and one eighth African blood. The mixture of colored blood was not discernible in him. One fine day, he purchased a first class railway ticket to travel from New Orleans to Covington (both in the same state). Thereafter, he took possession of a vacant seat in a coach where passengers of the white race were accommodated. The petitioner was required by the conductor (under penalty of ejection from the said train and imprisonment) to vacate the said coach and take a seat in a coach assigned to people not of the white race. This behavior was based on an Act passed by the state of Louisiana providing for separate railway carriages for the white and coloured races. The petitioner refused to vacate the seat and thereafter was forcibly ejected out and imprisoned. The petitioner was brought before the court for the commencement of trial. After the trial judge refused to give heed to his arguments, Plessy sought a writ of prohibition against the said judge. The court essentially considered the constitutionality of the Act passed by the Louisiana assembly. The first section of the said statute read:

“All railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations; No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.”

The court said, “Slavery implies involuntary servitude, i.e., a state of bondage, the ownership of mankind as a chattel and the absence of a legal right to the disposal of his own person, property, and services.” The court said that what happened with Plessy did not tag him with a badge of slavery. It is an ordinary civil injury cognizable by the laws of the state. A mere legal distinction between the white and coloured races has no tendency to destroy the legal equality of the two races. Interstate commerce may still be governed directly by a Federal Statute. However, for Intrastate commerce, States do have some freedom, which of course must be utilized in a reasonable manner. The court said that the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the coloured man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment. Every exercise of power must be reasonable and extended only to such laws as are enacted in good faith for the promotion of public good, and not for the annoyance or oppression of a particular class. Then, the question was, is the Louisiana legislation reasonable? The court answered this in the affirmative and in effect laid the foundation for “separate but equal” treatment of negros.

The American Civil Rights Movement (1954 – 1968): The civil rights movement was initiated in the United States by the African Americans to protest against the racial segregation and discrimination against them. It involved various non-violent protests and civil disobedience movements to seek equal protection of the state and federal laws for the black Americans. The movement was centered on the leadership and philosophy of Martin Luther King, Jr., who won the 1964 Nobel Peace Prize for his role in the movement.

Brown v. Board of Education (1954): This was a class action suit against the Board of Education of the City of Topeka, Kansas. The Topeka Board of Education operated separate elementary schools under a Kansas law which permitted districts to maintain separate school facilities for black and white students. The plaintiffs were thirteen Topeka parents on behalf of their children. Plaintiffs petitioned for the Board of Education to reverse its policy of racial segregation.

The court held that the question presented in these cases must be determined not on the basis of conditions existing when the fourteenth amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the nation. In this regard, the court noted that education is perhaps the most important function of the State. It is the very foundation of his life. This must be made available to all citizens on equal terms. The Court also relied in large part on those qualities which are incapable of objective measurement but which make for the greatness in a school – ability to study, engage in discussions, exchange views. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to slow/retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in the racially integrated school system. Based on the foregoing, it was held that in the field of public education, the doctrine of “separate but equal” has no place and therefore separate educational facilities are inherently unequal.

Europe:

Position in France:

The Declaration of the Rights of Man and of the Citizen, 1789: In 1789, France’s National Constituent Assembly in August passed The Declaration of the Rights of Man and of the Citizen (French: Déclaration des droits de l’homme et du citoyen), which served as a fundamental document of the French Revolution and in the history of human and civil rights. The declaration was influenced by Thomas Jefferson, who played a significant role in drafting United States Declaration of Independence (1776), and the doctrine of natural rights.

Through this document, the people of France brought about the abolishment of absolute monarchy and set the stage for the establishment of the first French Republic. The Declaration of the Rights of Man and the Citizen sees law as an expression of the general will and speaks about its formation through the representatives of the people. It establishes the basic human right of treating all men as equal and free. The declaration calls for the destruction of aristocratic privileges by proclaiming an end to feudalism and to exemptions from taxation and preservation of the rights to liberty, property, security, and resistance to oppression. It also prescribes rights of accused, and responsibility of the State in dealing with such situations.

However, through this declaration, only a few men received the political rights, and they were called the active citizens. The passive citizens, included women, slaves, children, and foreigners, who were deprived of their political rights. Women, in particular, were strong passive citizens who played a significant role in the Revolution. Also, the declaration did not revoke the must established institution of slavery.

Declaration of the Rights of Man and Citizen, 1793 (never officially adopted): A second and lengthier declaration, known as the Declaration of the Rights of Man and Citizen of 1793, was written in 1793 but never formally adopted. The difference between the two declarations is in the egalitarian tendencies. The 1793 version included new rights for citizens including that to work. However, this marked a new beginning for social rights based on citizenship. It was said that a lot more would be done for the real emancipation and true progress of the lower classes.

The Holocaust: When during 1941 to 1945, the Jews were methodologically killed all over Europe, the reaction of the local people was questionable. The Declaration of the Rights of Man and Citizen, 1789: Article 3 of the said declaration states that “The principle of all sovereignty resides essentially in the nation. Nobody nor an individual may exercise any authority which does not proceed directly from the nation.” [one of the world’s first instrument that enumerates the rights of man; first instrument which instead of criticizing a government/state, listed out the rights of its citizens].

The Position in Poland and Italy: Taking lessons from the French Declaration, the Italian and Polish position on rights was that even though the individual is sacred, without placing the nation-state first among aims, through whatever means, individuals can have no name, token, voice nor rights. Note: As a result, rights were impossible to free from a Nation-State theory as rulers were still worried about revolutionary excess. Rights of a man were treated as a sort of stepchild in the nineteenth century.

Reference

1. Anthony D’Amato, Human Rights as Part of Customary International Law:A Plea for Change of Paradigms; http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1087&context =facultyworkingpapers
2. Andrew M. Scoble, Enforcing the Customary International Law of Human Rights in Federal Court; http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2026&context=californiala wreview
3. Assessment of Customary International Law, https://www.icrc.org/customaryihl/eng/docs/v1_rul_in_asofcui