Wednesday, November 26, 2008

Sarkin on the Origins of Human Rights Law

Jeremy J. Sarkin, Hofstra University School of Law, has posted a recent essay with a very long title: The Historical Origins, Convergence and Interrelationship of International Human Rights Law, International Humanitarian Law, International Criminal Law and Public International Law and Their Application from at Least the Nineteenth Century. It appeared in Human Rights and International Legal Discourse (2007). Here's the abstract:
The emergence and scope of international law, whether in treaties or in customary international law, is especially relevant to those seeking reparations for atrocities committed against indigenous populations during colonization.
This article examines the origins, interrelationship, and dimensions of international law, the law of armed conflict, international human rights law, and international criminal law. It explores the time when these legal regimes came into being and when the protections accorded by them against various types of conduct became available.
It is submitted that by the turn of the twentieth century many of these laws were already available and in force. While it is commonly held that international protections against human rights violations were activated in the post-World War II era, they actually were accessible much earlier.
A specific focus of this article is the Martens Clause adopted into the Hague Conventions of 1899 and 1907. The Martens Clause it is argued constitutes one of the origins of international human rights law in the positivistic sense, and is considered applicable to the whole of international law, and has indeed shaped the development of customary international law. It will be shown that the Martens Clause is a specific and recognized provision giving protection to groups and individuals during both war and peace time.
A further focus of this article is the origins and interconnectedness of concepts such as crimes against humanity and genocide. This article looks as the origins of these notions. It argues that they are tied to the origins of international human rights law and finds they existed at least in the ninetieth century, if not before.