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INTRODUCTION
"Whatever may have been the reasons which motivated the framers of the Charter to establish this
corporate responsibility and whatever the consequences that may flow from it, the concern of the
United Nations with human rights and fundamental freedoms has broken the chain of national authority
and tradition at its strongest link. These rights and freedoms, which have traditionally remained within
the preempted province of the state and its exclusive responsibility, have now become matters of
international concern and the subject of relations between states."(1)
This statement was true in 1968 and it still holds. In this paper the terminology "matters of
international concern" is used to denote matters which, through the process of negotiation, the
formation of customary law or the conclusion of treaties, have become the subject of the relations
between states. These matters, therefore, go beyond a state's exclusive domestic jurisdiction and states
may reciprocally interfere in them. In addition, states, in some instances, have established international
organizations and international monitoring procedures for that purpose. The very fact that a certain
matter has been the object of international negotiation means that the argument that the matter is in the
exclusive domestic jurisdiction can not or no longer be upheld.(2) Interference can, on that account, no
longer be considered as illegal.(3) There was and is no consensus among states on the range of these
matters and the extent of international concern. There is a constant dichotomy between domestic
jurisdiction and international concern.(4)
This is especially the case with international concern with treatment of persons under a state's
jurisdiction, because it generally supports these persons "[...] standing in opposition to their
governments, whereas international law has traditionally focused on the rights of those same nations
in relation to each other, to the almost total exclusion of 'domestic or internal matters.'"(5) In this paper
the term "persons" is used to comprise human beings individually or in groups as entities that derive
certain benefits from international law, notwithstanding the dogma that only states are entitled to rights
and duties in international law.
It is at present generally accepted that states are responsible and accountable for the ways in which they
(fail to) protect and respect human rights. No serious government would invoke the domestic
jurisdiction exception as a shield against interference on behalf of the humane treatment of persons
under its jurisdiction. In addition to these human rights obligations, supervisory procedures and
international bodies to monitor the implementation of the obligations have been established. The most
widely accepted supervisory procedure is the obligation of states to report on a periodic basis to an
international body on the measures they have adopted to implement obligations under a specific treaty
vis-à-vis people living within their jurisdiction.(6)
It is generally assumed that the international law of human rights only evolved after the shock caused
by the Second World War. However, its origins can be traced back to the nineteenth century, and even
before. It is part and parcel of the historical process of the evolution and expansion of a system of
states and the law governing this system and the widening of the scope of international concern. This
subject has already been dealt with by a number of authors and I shall draw upon their work to present
a historical review of this process, as far as it relates to the treatment of persons.
As a basis I will take the system of legal impermeable states, the basic structure of international society
and international law. I will then examine the process by which more and more affairs relating to
treatment of persons became a subject of international concern. This process will be dealt with in three
stages, relating to three historical developments. In the first place, the evolving system of sovereign
states and the qualifications in this system as present at the formation stage are considered. In the
second place, the attention that the person claims and international law and society began to give to
the person and its well-being will be addressed. Finally, the institutionalization in international organizations of international concern with the treatment of persons will be examined.
1 SOVEREIGNTY QUALIFIED
This first section deals with the setting. A system evolved of sovereign and autonomous states evolved
that were the only entities entitled to rights in the system. The apparent rigidity of the system was from
the very beginning qualified in practice. In this respect, treatment of aliens and the practice of interference in religious matters will be dealt with.
1.1 The historical setting: a system of sovereign states
At the end of the Middle Ages, through the power struggle of the territorial princes, the territorial state
gradually emerged as the most powerful, most viable structure in which persons were organized. As
these states maintained relations with one another a system of states came into being and standards of
behavior developed as rules of customary law.(7) Accordingly, the law governing this system of states
was applicable only to the constituent entities, the states. They were the only subjects of international
law and only they could have legal rights under it. An international system emerged that recognized
the state as the sole unit of organization. This evolution was particularly marked by the Peace of
Westphalia concluded after the Thirty Years War (1648).(8) At this peace conference the rulers of the
newly emerged states recognized one another as the most powerful, accordingly most viable partners,
with whom peace settlements in Europe could effectively be made.
Since society was to a great extent determined by religion and since the Thirty Years War had been
a religious war, the settlement of the religious controversy was the manifest task of the conference. In
this respect, the Peace of Westphalia established as a maxim for peaceful co-existence in Europe -
hence a maxim of early international (European) law - that there should be equality of rights between
the Roman Catholic and the Protestant religions in the inter-state arena.(9) In the second place, the
princes accepted 'cuius regio, eius religio'(10) as a principle of co-existence to solve the conflict between
the two religions within the territories of the various princes. This principle implied that the territorial
ruler may decide which religion his subjects should adhere to. The princes regarded one another as
sovereign in these affairs, in which others were not supposed to interfere.(11) The principles of
sovereignty, non-interference and equality of religions purported to guarantee the preservation of the
position of the princes, and accordingly of the state and the system of states. It evolved as the conditio
sine qua non of the system.
At first glance the system appears to have been very rigid. There were two segregated spheres of
affairs: a sphere of affairs within a state where other states could not interfere, and an external sphere,
the system of states, where states were conducting affairs with one another. The two spheres could
only be linked through the sovereign ruler. The ruler, however, did not, by invoking exclusive
domestic jurisdiction, permit such linkage and this invocation was, in principle, recognized by others.
Therefore, for a very long time the prevailing view was that a ruler of a territory could treat his
subjects at discretion (internal sphere of affairs) and was under no obligation whatsoever to account
to anyone for that treatment (external sphere of affairs). But the rigid system was qualified in theory
and in practice.
1.2 The concept of sovereignty qualified
"[...] that international law is the law of sovereign-state relations was never wholly true empirically,
but it was nonetheless extremely powerful as a concept defining and ordering the discipline."(12)
The notion of sovereignty was originally a political, emancipatory slogan, used at the end of the
Middle Ages by the emerging territorial princes (the sovereigns-to-be) to solidify and strengthen their
positions in respect of each other and in opposition to the hierarchical order under the Catholic Church
and the Emperor. They also sought to consolidate their exclusive territorial jurisdiction in contrast to
medieval personal jurisdiction.(13) Sovereignty was the concept which expressed that the princes did not
recognize these aforementioned powers and that they were the supreme power within their respective
territories. Sovereignty, therefore, was vested in the power of the princes. They became the powers
that ruled the territory and people through an organization which may be considered as the forerunner
of the modern state. Later, as the power of the princes as the sovereign entity within a state began to
wither, sovereignty became vested in the state itself.
Various scholars purported to give a legal scope to the concept of sovereignty.(14) Bodin, whose aim it
was to reinforce the French monarchy against the Pope and the Emperor, propagated sovereignty as
the constitutive element of the state. The term "absolute sovereignty", as coined by Bodin, did not
mean that the monarch was not bound by any law, although later scholars and sovereigns gratefully
gave such a meaning to the concept. It meant, rather, that the monarch was not subject to any power
from outside or inside; he held all internal legislative power and he was not responsible for the exercise
of power to any higher authority. Still, the monarch was bound by some higher law. Ideas on the
obligation of the monarchs to govern in a humane manner derived from Greek, Stoic and Christian
sources. Sovereignty was to be regarded as lawful only if the prince ruled in a just and humane way
and safeguarded the rights of his subjects. Bodin maintained that governance should be according to
the laws of God and nature as well as to certain human laws common to all peoples.(15) Grotius, invoking the law of nature, founded primarily on the dictates of reason, declared that international law
governed not only the relations between states, but also relations between a state and its subjects. He
held a concept of sovereignty that considered the individual as the ultimate bearer of the rights of
sovereign states.(16) Thus, according to these scholars, sovereignty was qualified in that it was to be
measured against some higher scale.(17)
Hobbes gave a true absolute meaning to the concept of sovereignty. As he asserted that all people, and
accordingly all sovereigns whose powers derived from these people, lived in a state of nature warring
against each other, there could be no international law limiting normatively their factual power. The
basis of international law was the power of states expressed through their respective wills, rather than
some divine or natural law.(18) This does not preclude the possibility that international agreements may
be entered into or that international law may exist.
In this respect, international practice of that time evidences that states' sovereignty was not absolute,
but qualified. In the first place, states voluntarily(19) renounced sovereignty by entering into agreements
with other states. It may be noted, for example, that a maxim of the Peace of Westphalia was that there
was a common European international law, a bonum commune of Christianity to which the various
sovereigns were bound.(20) This maxim is also referred to in other treaties of the time, such as the Treaty
of Utrecht and the Treaty of Paris.(21)
In addition, sovereignty was qualified by the general obligation of a state within a certain territory to
respect the rights of other states within that territory. Territorial sovereignty is a prerequisite for a state
in order that it may fulfil this obligation.(22) It was manifestly in the duty of state A to treat co-religionists or co-nationals of state B in a just manner. State B was entitled to respect for this duty. If
state A within its sovereign territory failed to respect the rights of state B it was deemed that state B
was entitled to seek redress.(23) Power was a prerequisite. The powerful had the will and the capability
to enforce the principle.(24) They often interfered, sometimes forcibly, for the sake of their creed or their
co-nationals in the domestic affairs of other states, which is, of course, incompatible with the rigid,
absolute concept of sovereignty. The following institutions and doctrines will be dealt with below:
treatment of aliens, religious intervention and cession treaties and capitulations.
1.3 Qualifications in practice
1.3.1 Treatment of aliens
Rules regarding the treatment of aliens existed long before the beginning of a system of states.(25) The
Greeks developed a right of hospitality, which mainly drew upon natural law sources.(26) When
communities entered into relations with one another, it was agreed that they were reciprocally to
observe certain rules, often enshrined in treaties with respect to the status and treatment of aliens
residing in or visiting their territories.
The modern doctrine and institution of the treatment of aliens have their roots in the Middle Ages.(27)
They developed when Europeans began to enter into commercial relations with one another and with
non-European rulers. From the sixteenth century onwards various capitulations, treaties concluded
between the Oriental and European rulers, and commercial treaties amongst European nations
provided, inter alia, for provisions on the treatment of aliens.
In international law, the alien was regarded merely as a continuation of the state whose nationality he
possessed. If an alien of one state was injured by another state the state of the alien was deemed to
have indirectly been 'injured'.(28) Since the individual was not subject to international law, he could not
claim any right of compensation. However, his state could exercise diplomatic protection: it could
make a claim against the injuring state in order to obtain redress.(29) Obligations were owed to states,
therefore a wrong to an alien was to be compensated to his state. Yet, when the harming state paid
compensation to the 'injured' state, the 'injured' state usually paid this compensation to the injured
individual, although international law did not require such payment.(30) However, international law did
not disregard the individual, because the claims were based on the injury the individual had undergone,
not the state.(31)
European commercial treaties usually provided for the treatment of aliens on the basis of national
treatment of citizens. In the nineteenth century the substantive law began to draw on natural law and
various domestic legal doctrines. Also, the influence of the American and French Revolutions was
felt.(32) An international minimum standard for the treatment of aliens developed. It included, inter alia,
respect for property rights and compensation for expropriation, but also such fundamental rights as the
freedom of worship and the prohibition of arbitrary arrest. The standard for the first time provided for
some rudimentary form of international human rights as distinct from citizens' rights which belong
only to citizens.(33) Later international human rights law drew on the substantive principles of the law
of the treatment of aliens.(34)
1.3.2 Interference in religious matters
Notwithstanding the principle of non-interference unilateral interference by states in the domestic, especially religious, affairs of other states still occurred on a regular basis.(35) At the inception of the state
system rulers did not, of course, suddenly disregard their religious loyalties, which still played an
important role in the relations within and between states and which crossed the formal boundaries of
this system. In fact, the Peace of Westphalia, while accepting the principle cuius regio, eius religio,
did acknowledge the existence of religious minorities and provided some, though insufficient,
safeguards for them.(36) Interference did not purport to safeguard the rights of persons or the principle
of religious freedom for all; it was merely intended to protect and promote a religious creed and
guarantee the maintenance of a religion in its social and institutional form.(37) Nevertheless, persons
could derive a benefit from such interference.
Interference took various forms: diplomatic pressure in the form of representations and negotiations,
the threat of the use of force or the actual use of force. Interference could result in cession treaties
amongst European states and capitulations with the Ottoman Empire that protected a particular, Christian, religion. Nevertheless, as will be seen below, interference taking the form of the threat or use of
military force - armed interventions - also occurred.
Cession treaties
If, due to occupation or marriage, a territory changed ruler, cession treaties were concluded to regulate
the transfer of territory from one ruler to another. These cession treaties could also include special
provisions that safeguarded the continuance in the territory of the religion of the previous ruler. The
new ruler was under an obligation to respect the current religion of his new subjects.
For example, in 1660, just after the conclusion of the Peace of Westphalia, a cession treaty was
concluded between Sweden, Poland, the German Empire and Brandenburg that secured the continuance
of the Roman Catholic religion of the inhabitants of Pomerania and Livonia, which would come under
Swedish, Protestant, rule. The treaty of Nimegue between France and the Republic of the Netherlands
(1678) guaranteed the continuance of the Roman Catholic religion in the city of Maastricht, which was
ceded to the Republic by France.(38) During the seventeenth and eighteenth centuries similar treaties
were concluded by various European states that safeguarded the Roman Catholic and Protestant
religions in Europe and in the newly discovered territories.(39)
Religious interventions
Before 1648, forceful interventions amongst European states for the protection of co-religionists were
considered justified. The Peace of Westphalia, however, consolidated the existing religious frontiers
and the admissibility of armed interventions was, in the European arena at least, terminated.(40) Armed
interventions still occurred at the European outposts, especially in the Ottoman Empire, where the
European rules of international law did not apply. In addition, such interventions were considered to
be justified, because they purported to protect the Christian religion in the East.
Interventions usually resulted in some arrangements that protected certain interests of the subjecting
state, i.e. capitulations. As noted above, they protected commercial interests and provided for fair
treatment of aliens. In addition, these treaties protected the manifestation of religion of Europeans and
of Christian subjects in Moslem states. When the Ottoman Empire allegedly failed to respect the
provisions of the capitulations, demands for positive action were made by the European Powers on the
basis of these capitulations. If the Ottoman Empire rejected such demands the European Powers intervened again with their armed forces. Apart from religious grounds, interventions could be justified on
humanitarian grounds. However, only in the nineteenth century did states begin to invoke humanitarian
rather than religious arguments for armed interventions.(41)
Capitulations
Non-Christian states in the Levant and in the Far East were not considered to be subject to the
European international law. Under pressure of force European Powers, through these "treaties",
imposed a form of extraterritorial jurisdiction.(42) For example, the capitulation of 1535 between the
French king François I and the Ottoman Porte Soliman II stipulated that the French consul would act
as judge in litigations between French nationals in the Ottoman Empire.(43)
The capitulations of 1673 and 1740 between France and the Ottoman Empire recognized the right of
France to protect the Catholic religion in the Orient.(44) The Treaty of Karlowitz (1699) protected the
profession of the Catholic religion in Turkey. It provided for a method of implementing the guarantees:
in case of violations of the treaty the Polish ambassador was entitled to make representations at the
Turkish throne. As a result of the Peace of Koutschouk-Kainardji (1774) all Christians were included
under treaty protection.(45) On the basis of this treaty the Russian Tsar could make representations on
behalf of Orthodox Christians in the Ottoman Empire.(46)
These and other capitulations protected more and more (Christian) religions and people. They were
an expression of European concern with the internal religious affairs of the Ottoman Empire. Since the
capitulations did not provide for implementation mechanisms or sanctions if the making of representations did not have the desired effect, the only means for enforcement left were those provided by international customary law, such as war. The regime was continued with early minorities treaties of the
nineteenth century. These will be considered in section 2.3.3.
Conclusion
Sovereignty, so central in international law and society, was qualified. International society and
international law never totally excluded what went on inside a state. In fact, it may be suggested that,
in so far as one would try to distinguish between domestic and international affairs, several domestic
affairs, and especially religion, were never really off the international scene, and, consequently, never
were solely domestic affairs.
Interferences and the international minimum standard for the treatment of aliens illustrate that there
was an international practice not in conformity with the rigid concept of sovereignty. It could only be
practiced by powerful states who were capable and willing enough. International concern with persons
may have been stimulated by unilateral interferences by sovereign states in the domestic affairs of other
states. Interferences mainly occurred outside Europe; the non-European world paid a price for
"international concern". Whenever these interferences were justified as being in accord with international law or, at least, not contrary to it, other states could claim the same. In this manner, a gradual
expansion of international concern was more or less authorized and a process of internationalization
set off.
Persons did not have any standing in international law yet. Concern was not with the person qua
human being, but rather with religion or expansion of power.
2 THE HUMANITARIAN DIMENSION IN INTERNATIONAL LAW
In the course of the nineteenth century, persons begin to claim and are accorded some status in
international law and society. The notion spread that international law should protect certain categories
of individuals for their own sake. This section deals with early, rather uncoordinated, developments
for the international protection and promotion of the well-being of persons. Various treaties are
concluded that ban slavery and the slave trade, that protect certain minorities, or protect the victims
of war. In addition, persons begin to claim their rights directly at international conferences. Yet, only
states were considered to have rights and duties under international law.
2.1 The historical setting: democratization
In the course of the last centuries the Enlightment had an impact on the relations between states.
Secularization of a previously religious society and consequently of international society and international law had taken place. The considerations that states invoked to intervene and go to war were no
longer mainly religious; other, for example humanitarian, considerations took their peace.
The English Bill of Rights (1689), the American Declaration of Independence (1776), the American
Bill of Rights (1791) and the French Déclaration des Droits de l'Homme et du Citoyen (1789) had a
great impact in national as well as international life and may be regarded as important stimuli of this
evolution.(47) Due to these various national revolutions and the armed propagation of the ideas of the
French Revolution in Europe the person gradually emerges as a matter of concern in international law
and society: the first signs of an emergence of a human dimension in international law.(48)
The individual person came to be considered as valuable in itself and not as an instrument in the hands
of God. Previously, persons did not participate, neither at the national nor at the international level,
in decisions affecting their fate. Now he claimed to be, and more and more became, the focus of attention in national as well as international society. Friedmann suggests that, inter alia, the process of
democratization following the French Revolution played a part in this development. International
relations were no longer the sole preserve of the sovereign monarch, instead they became more and
more linked to the "[...] internal constitutional and political processes of participating states."(49) Affairs
concerning the treatment of persons became the subject of relations between states and states could not
easily dismiss matters concerning that treatment anymore, because citizens were watching them more
closely than before.(50)
The idea and claims of rights of individuals were developed in the national states in the first place. In
various constitutions of that time individual rights were secured.(51) Nevertheless, in the following
century as the world grew smaller and people more conscious of people elsewhere, humanitarian
concern spread to the international level. Rights similar to the rights that were secured domestically
began to be asserted on behalf of people residing in other states.(52)
Furthermore, after the Napoleonic War a sense of responsibility for a (European) community of nations
and for European values, such as religious tolerance, equality and the security of the person, had
grown. The European Powers sought to cooperate in a more durable way to secure peace and order
in Europe. States agreed to convene periodically to discuss and settle pressing political issues. The
Concert system was established: a system of balance of powers prevented one state from ruling over
the others. If one of the participants played too loudly a tune, he was corrected by the others. No one
overruled; a common effort prevented this. It was the first more or less continuous international system
and "[...] the manifestation of a rudimentary, but growing, sense of interdependence and community
of interest among the states of Europe."(53)
New states were only admitted to the European Concert under the condition that they accepted certain
fundamental principles of the European system of states. There were fundamental principles,
particularly religious freedom and equality, that would no longer be regarded as the concerns of the
(new) sovereigns only.(54) This early international (or rather: European) concern was in the first place
directed towards the world that did not yet have a place in the European Concert of states. In this
respect it must be noted that states' concern with the fate of persons in foreign countries was frequently
guided by national interest.(55)
Whatever the motives, it may be contended that, in retrospect, in the course of the nineteenth century
persons and their fate came increasingly to the fore at the national as well as the international level.
Despite the principle of sovereignty, a breach had become visible. The following sections may illustrate this development.
2.2 Humanitarian intervention
As noted above, in the sixteenth, seventeenth and eighteenth centuries states often intervened forcefully
in other states to protect their co-religionists in those states. However, in the course of the nineteenth
century, there was a shift from protection of religious minorities to the protection of national minorities.(56) Moreover, humanitarian considerations were invoked more and more.(57)
Humanitarian intervention had already been propagated in international legal doctrine.(58) Hugo Grotius
regarded maltreatment by a sovereign state of its subjects a iusta causa for war.(59) The use of force by
states to stop this maltreatment was considered lawful when that maltreatment was so brutal and large
scale as to shock the conscience of mankind. This doctrine was an argument against the dogma that a
state's jurisdiction over its internal affairs was unlimited and that it could treat its subjects as it
wished.(60)
It must be noted, however, that there was and is no doctrinal consensus on whether in this period there
existed a right of humanitarian intervention in international law.(61) This was in contradiction to the
principle of non-intervention, upon which the system of sovereign states was built. In that respect, it
is interesting to note that the practice occurred mainly at the borders of the European system of states,
especially in the Ottoman Empire and in the territories that the Empire formerly held. Again, power
was a prerequisite for such interventions.(62) Notwithstanding possible economic or political motivations,
European states invoked the doctrine of humanitarian intervention as expounded by Grotius. Other
states usually did not explicitly approve of the intervention, because it was against the principle of non-intervention that underlay the system. However, European powers often tolerated or endorsed the
interventions undertaken by their fellow European powers in non-European territories.(63)
Ganji notes that almost all cases of humanitarian intervention up to the First World War were based
on treaty stipulations.(64) However, those treaties were ad hoc and concluded under pressure of force,
they were older treaties, or they were not concluded with the Turkish Empire, where the intervention
would take place, but amongst European Powers only. An example of an ad hoc arrangement that
"legitimized" humanitarian intervention is the Protocol of Paris of 1860 between European Powers and
Turkey. When Christians were massacred in Syria, Turkey, under pressure, "agreed" to a mandate for
France to intervene militarily.(65)
The Treaty of Koutschouk-Kainardji(66) had given Russia certain rights to protect the Christian religion
in the Turkish Empire, the basis of which Russia made several representations to Turkey. However,
the resulting armed intervention of 1827 by Russia in Turkey to suppress the massacre of Greeks was
not based on the violation of any treaty obligation of Turkey. The London Treaty of 1827 between
France, Great Britain and Russia mandated Russia to intervene in Turkey. The intervention itself was
based on political and humanitarian considerations.(67) The Treaty of London was only later, after the
intervention, imposed upon Turkey. Although the use of force in order to enforce treaties was
considered lawful at that time, it is questionable as to how far treaties imposed upon another state may
be considered lawful in the first place.
2.3 Early human rights treaties
In the nineteenth century concern with the fate of persons spread to the international level. The first
treaties that purported to secure internationally what one would now call human rights were concluded.
In this respect, the following sections will deal with minorities treaties, with treaties that sought to ban
slavery and the slave trade and with treaties that purported to protect persons from the cruelties of war.
2.3.1 Treaty protection of minorities before the First World War
After the Vienna Peace Conference in 1815 the European powers set conditions for the admission of
new states to the European states system. The applying states were to recognize the general religious
freedom and the equality of their subjects of different creed in their respective domestic orders. In this
respect treaties were concluded with or imposed upon applying states.
As just noted, the practice especially came to the fore as humanitarian intervention by European
Powers in the Turkish Empire. Claude draws attention to the fact that although religious tolerance had
been accepted as a fundamental principle in the European community of states, the domestic application
of this principle in the various European states had not been accepted as a matter of international
(European) concern generally. It was in the first place accepted for newly recognized or enlarged,
usually considered as backward states.(68)
As pointed out above, already before the nineteenth century treaties were imposed upon Turkey and
the newly emerged states on the territory of the former Turkish Empire. The Treaty of Berlin (1878)
provided for the right of European powers to interfere in Turkey to protect minorities. In addition, an
early reporting system was agreed upon: Turkey was to report periodically to the European powers
on the fulfilment of its duty to make certain - undefined - reforms in Armenia to improve the lot of the
Armenians.(69) European states also gave in. On the insistence of Turkey they accepted that the Treaty
provided that the newly independent states on former Turkish territory were under an obligation to
secure a general freedom and equality of religion.(70) It is interesting to note that protection extended
beyond this criterion to customs, property and law.(71)
The Treaty of Tientsin (1858) between Great Britain and hina provided for the freedom of religion
of Christians resident in China.(72)
Treaties were concluded that, for the first time, provided for an international guarantee that protected,
apart from the Christian religion, other religions as well. The principle of non-discrimination began
to be accepted. For example, Turkey came under a duty to recognize non-discrimination on the basis
of religion and of language and race.(73) The Convention of 1881 for the Settlement of the Frontier
between Greece and Turkey provided for the respect of the lives, property, honour, religion and
customs of the Turkish minorities living in the territories then ceded to Greece. Equality in respect of
civil and political rights was secured. Similar settlements were made for the territories of Turkey that
became under Austrian-Hungarian rule.(74)
In short, during the nineteenth century a practice had developed of protecting minorities in
international law by multilateral treaties. However, implementing these treaties failed. They were often
too inadequate in scope, the provisions were too vague and a machinery for the supervision of the
treaties lacked. Furthermore, the interests of the European powers often conflicted, preventing an
effective, collective effort to secure the rights.(75)
2.3.2 Humanitarian law
Even before the nineteenth century it was felt that any non-combatant person, i.e. the wounded in the
field, prisoners of war and the civilian population, should be treated humanely.(76)
From the sixteenth century onwards warring parties began to conclude ad hoc agreements that provided
for the exchange of prisoners of war and the treatment of the wounded in the field. In these agreements
reference was often made to natural law, the law of nations, humanitarian concerns and the principle
of neutrality of the wounded. However, these agreements were rather occasional and did not lead to
common ground for international custom to develop or international agreements. But they are
interesting as forerunners of international humanitarian law.(77)
Another important forerunner was the Treaty of Friendship and Commerce between Prussia and the
United States of America in 1785. It was the first treaty that was concluded during peacetime that dealt
with the treatment of prisoners of war, and therefore was not an ad hoc arrangement. The treaty
referred to humanitarian principles which were allegedly found in the law of nations and in natural
law.(78)
Only in the nineteenth century would states reach common ground. In the Crimean War it was noted
by Florence Nightingale and prince Demidoff that an international usage had evolved vested in
principles that would later be incorporated in the First Geneva Convention.(79) The Swiss Henri Dunant,
appalled by the atrocities at the Battle of Solferino, advocated the conclusion of international
agreements that would regulate the conduct of war in such a way as to avoid unnecessary suffering of
persons involved. In 1863 the International Committee for the Red Cross was established.(80) As a private organization it gained authority through its independent and impartial status. Upon this private
initiative states convened the first humanitarian conferences in Geneva in 1864 and 1868. The First and
Second Geneva Conventions laid down the fundamental principle that the wounded are neutral and to
be cared for by the state to which they belong. Fieldhospitals, personnel and vehicles carrying the Red
Cross sign are neutral and must be respected. These Conventions were an innovation in international
law since they awarded an explicit protection to individual persons. The rules laid down were not
directly related to states' interests, but rather to individual well-being. The First and Second Geneva
Conventions were signed by virtually all states of that time, which made them universal instruments.(81)
In this respect it may well be noted that for the first time basic humanitarian principles penetrated into
positive international law.
Humanitarian concern the in international law of armed conflict before the First World War culminated
in the two The Hague Peace Conferences of 1899 and 1907. Conventions were adopted that regulated
the conduct of land and sea warfare and the treatment of prisoners of war and of the civilian populations. As suggested by a scholar of international law, these conventions "were probably genuinely
animated, as the preamble to one of the 1907 conventions expressed it, by the desire to serve '...the
interests of humanity and the ever-progressive needs of civilization'."(82) On the other hand, it is
suggested that a motive of the initiator of the conferences, Tsar Nicholas, was that he felt that his
empire was unable to keep up with the arms race in Europe.
2.3.3 Slavery and the slave trade
By the end of the eighteenth century a movement against slavery had emerged. Moral conviction had
played a part, spread especially by the Quakers.(83) A significant change of attitude in Europe was, in
the first place, instigated by England. As early as 1776 the House of Commons adopted a declaration
that sought to stop the slave trade because the trade was against the laws of God and the rights of
man.(84) Humanitarian motives were invoked.
Cassese draws attention to other than humanitarian motives. As soon as the slave trade and slave labour
proved to have major economic drawbacks, and could be replaced, international concern with the slave
trade gathered momentum. Due to the rebellion of the English colonies on the American east coast
England lost a welcome source of income. To avoid a decline of her economic power England sought
to stop the flow of the cheap labour force of slaves to the colonies of other Powers, which would
otherwise become increasingly rich. In this respect, it is interesting to note that the declaration of the
House of Commons was adopted in the same year the Declaration of Independence was adopted by the
American colonies.(85)
Therefore, Great Britain was the first nation to press for the abolition of slavery and the slave trade at a universal level. In the first place the slave trade, and not slavery, was condemned. It was considered even more degrading than slavery itself. Besides, the trade was easier to control because it used the high seas. This opened the way for states to keep an on eye one another. Besides, the eradication of the slave trade had to be undertaken at the international level, since a ban by one state would only lead to other states taking over the trade.(86) At the Congress of Vienna in 1815 the prohibition of the slave trade was for the first time discussed at an international level. A declaration to this effect was adopted. Later, Great Britain concluded bilateral treaties with other European states as well as with African chiefs on the African coasts. The treaties provided for the mutual right of visit and search by warships of the contracting parties on the high seas. Slave traders could be detained and sometimes even brought before mixed courts. Each contracting party could appoint a judge or an arbitrator, who could decide upon the legality, on the basis of the treaty, of the seizure of the vessel. On the basis of some of these treaties, the captain, master, pilot and crew of the vessel as well as the owners could be punished according to the national laws of the vessel.(87) In the course of the nineteenth century some three hundred treaties on slavery were concluded. They were mostly bilateral, with Great Britain as one of the two parties. Some fundamental problems of securing a right internationally came to the fore: the value of bare treaty obligations, the practical problems of international supervision, especially on the high seas, and the role of intergovernmental and non-governmental machinery.(88)
In 1885 the first multilateral convention on the suppression of slavery and the slave trade was
concluded: the General Act of the Berlin Conference. The Act obliged all parties to put an end to the
slave trade. Furthermore, a general obligation to help to suppress slavery, to watch over the preservation of the native tribes and to care for the improvement of the conditions of their moral and material
well-being was included in the Act.(89)
This Act was succeeded by the General Act of the Brussels Conference, concluded in 1890, signed and
ratified by eighteen states. In this Act the suppression of slavery and especially the slave trade was
formulated as a duty of the parties. It provided for the right of visit and search of ships and proceedings before a competent authority of the Power whose flag had been used. In addition, international implementation machinery was adopted, ensuring the execution of the General Act: an International Maritime Office at Zanzibar and an International Bureau, attached to the Belgian Foreign Ministry, was established for the centralization and distribution of information concerning the implementation of the Act. These, then, were the first international, intergovernmental bodies that were under
an assignment to monitor a treaty with a humanitarian dimension. However, their powers were small,
restricted to gathering and distributing information concerning the slave trade.(90)
After the First World War, as a result of the conclusion of the 1919 Convention of Saint-Germain-en-Laye, the Berlin and Brussels Acts were abrogated between the parties to the new convention.
Changing circumstances had rendered the abrogation desirable.(91) In this convention there was only one
provision on slavery, establishing that the contracting parties would "[...] endeavour to secure the
complete suppression of slavery in all its forms and of the slave trade by land and sea."(92) It was a step
backwards, because the new convention did not establish any supervisory machinery.
In respect of the mandates system as established after the First World War, article 22 of the League
of Nations Covenant explicitly placed with the mandatory the responsibility to set conditions for the
prohibition of the slave trade. It cannot, however, be regarded as a general ban on slavery and the
slave trade, as only mandatories were addressed and the obligation was vague. Nonetheless, specific
provisions for the suppression of slavery and the slave trade were included in various Mandates
treaties. The League of Nations could, through the Permanent Mandates Commission and the Council,
supervise the implementation. As will be dealt with below (section ), a periodic reporting system was
established. Nevertheless, the mandates system did not provide any individual rights that could be
enforced against the mandatory.(93)
In 1926 the International Convention on the Abolition of Slavery and the Slave Trade was concluded.
A 'progressive' obligation to suppress slavery and the slave trade was adopted, because it was
suggested that a sudden abolition would result in social and economic disturbances.(94) The instrument
did not provide for the mutual right of visit and search as provided for by the General Act of Brussels
of 1890. To monitor the execution of the instrument the League of Nations appointed a Temporary
Slavery Commission that could make inquiries concerning slavery and communicate its conclusions
to the Council. The 1956 Supplementary Convention on the Abolition of Slavery, Slave Trade and
Institutions Similar to Slave Trade expanded the international protection to more types of servitude.
No right of visit and search was provided. This convention complemented the 1926 Convention.(95)
2.4 Petitioning international peace conferences
The history of petitioning international conferences has been scarcely dealt with in international legal
literature. Therefore, I will mainly use the study undertaken by Feinberg as it was published in the
'Recueil des Cours' for reference.(96)
By the seventeenth century, when international conferences began to convene, individuals and groups
of individuals began to petition these conferences in order to make complaints and demand redress for
wrongs or injustices done (petitions-plaintes) or to express their desires (petitions-voeux). The European conference system of the nineteenth century became an influential policy-making organ.
Therefore, apart from the national level, persons began to make their voices heard at an international
level, because they felt that decisions at the international level would have an influence on their interests. It is suggested that individual action, especially in the nineteenth century, actually favored the
development of international law; at least, it did have a great impact in international life.(97)
In the course of the nineteenth century the European Powers convened congresses on a regular basis.
There evolved a practice of accepting petitions at these congresses. At the Congress of Vienna in 1815
petitions were officially accepted at the Congress, although there was no obligation to do so. Since
petitioning was accepted at the national level as a "[...] droit sacré de l'individu, droit inhérent à la
nature humaine [...]"(98), they may also, for that same reason, have been accepted at the international
level. The subject of the petitions concerned, inter alia, the demand for equal civil and political rights
for adherents of various religions and freedom of the press,(99) rights that are now considered as internationally protected human rights.
At the Congress of Berlin (1878) a formal procedure was adopted to deal with the expected great
amount of petitions. The secretariat of the Congress made a division between politically less and more
important petitions. The latter were listed and the lists were distributed among the representatives, who
could demand the consideration of the petition by the assembly. Anonymous petitions were not listed.
Before or during later congresses a similar procedure was adopted.(100)
At the Peace Conferences of The Hague (1899 and 1907) the great amount of petitions required a
revision of procedure. A special commission was charged with the administration of the petitions. It
reported to the plenary assembly on the results of its examination of the petitions. The commission
made a division into three groups. One comprised expressions of sympathy or general desires, another
resolutions in favor of disarmament and arbitration and another was considered ratione materiae to lay
outside the competence of the conferences and would therefore not be dealt with. It is interesting to
note that these latter petitions came from representatives of oppressed minorities, submitting their
grievances. The conferences, however, since they had convened for a well-defined purpose, could not
deal with these grievances and adopted a fin de non-recevoir. The procedure did not provide for an oral
hearing of petitioners. Sometimes, however, they were invited to be heard before the President of the
conference.(101)
At the start of the Peace Conference (1919-1920) at the end of the First World War, a procedure,
similar to the previous ones, had already been adopted to deal with petitions. For the first time,
though, petitioners were heard before commissions established for that purpose.(102)
Thus, there had already been a constant practice of accepting petitions at conferences according to a
certain procedure when the League of Nations began to deal with petitioning. Feinberg suggests that
there evolved an obligation of international organizations and conferences to accept them. In the
League of Nations Council decisions had created norms from which individuals obtained a right to
petition.(103)
The practice of petitioning international conferences demonstrated that states convened at the
international level were not loath to admit individuals in their own capacity. It has cast doubt on the
principle that only states are relevant in international law.(104)
Conclusion
The revolutionary era of the eighteenth and nineteenth centuries permeated the rigid concept of
sovereignty in that the people more and more began to take part in the decision-making process
affecting their fate. In addition, the revolutionary, democratic, ideas that had originated in national
states and that focused attention on the well-being of persons seeped to the international level. States
could not easily dismiss such considerations, because, due to the process of democratization, citizens
were watching them closely. In treaties more and more of these ideas began to be embodied in positive
international law.
Humanitarian intervention and many early human rights treaties were founded to a great extent on
humanitarian considerations, but economic factors and national self-interest probably were determining
factors in creating the context for (the invocation of) humanitarian considerations. The territories
outside Europe were the playground for all these consideration, because there European Powers could
impose their will. Probably in the slipstream of various other state interests, persons had begun be
admitted and to make themselves heard at the international level. States had accepted more and more
international responsibility for the treatment persons, the principle of sovereignty over these affairs
more and more began to wither.
3 INSTITUTIONALIZATION OF INTERNATIONAL CONCERN
This section focuses on the origins and development of international concern with treatment of persons
in a permanent, more organized and institutionalized form.(105) International organizations were
established that functioned, up to a certain degree, independent from states. In this respect, the First
World War may be considered as a turning-point, because - at the instigation of the newly founded
League of Nations - international supervisory bodies to which some states were required to account
for the treatment of persons were instituted. However, the practice was not general. Only some states
fell under these arrangements or the concern was only with certain classes of persons. In this section
I will deal with three arenas where persons could most directly derive a benefit from international law:
the International Labour Organization in respect of working people, the post-war minorities settlements
in respect of minorities living in territories of defeated powers and the mandates system in respect of
people living in mandated territories. The events of the First World War had brought these issues to
the fore. The peace settlement after the war purported to deal with them.
3.1 Post First World War minorities settlements
3.1.1 Origins
As examined above, unequality of treatment or even prosecution by the majority in a state or by the
government often led to interference by a kin-state of the minority.(106) The events of the First World
War had made the major powers realize that stability in Europe was fragile and that such unilateral
interferences could easily get out of hand and lead to another major war.(107) The problem became even
more complex and pressing with the creation of new states in Eastern and Central Europe and the
acquisition by some states of territories of defeated Powers.(108)
The major Powers believed they could overcome these threats by internationalizing the protection of
minorities and providing for international means of recourse.(109) It was believed that only an
international guarantee of minority rights would produce the domestic (and international) tranquillity
that would help to minimize friction and thus make arbitrary, unilateral interferences of kin-states in
the affairs of minority states less necessary.(110) Therefore, the major powers sought to establish a system
of minority protection under the auspices of the League of Nations. The system would be impartial,
an objective determination of the facts could be made before action would be taken. In previous
minorities treaties, like the Treaty of Berlin of 1878, this had been almost impossible. Furthermore,
as a nationally independent body that had no interest in the outcome of the controversy, the League
of Nations would be responsible for compelling states to comply with the provisions of the minorities
settlements.(111)
The political situation immediately after the First World War offered a good opportunity to cultivate
an international guarantee for minority rights. The old European order was dissolved, new states
demanded recognition and others demanded approval of territorial accessions. They all addressed these
demands to the Powers who had won the war, the Powers that could satisfy their demands.(112) A
compromise was obvious.
3.1.2 Preparation of the settlements
The solution sought was the embodiment in treaties, with states where minorities resided, of certain
minority rights that the state would apply in its domestic order as fundamental internal laws. The
drafters of the Covenant of the League of Nations discussed a provision on the protection of human
rights; an expansion of the system of minority protection to make it applicable to all states and all
people. The major Powers, however, feared that the acceptance of this concept would open the way
for interferences in their domestic jurisdiction. As far as they were concerned the principle of sovereignty still held strong, notwithstanding the fact that these states themselves had often - and still -
intervened in the domestic affairs of other states.(113) The provision on human rights was not accepted.(114)
The drafters accepted a system for the protection of minorities only, imposing it upon certain states
only.
The Principle Allied and Associated Powers (France, Great Britain, Italy, Japan and the United States)
imposed upon some states an obligation by which those states accepted and agreed to embody in a
treaty with the Powers such provisions as might be deemed necessary by the Powers to protect the
interests of the inhabitants of those states who differed from the majority of the population in race,
language, or religion.(115) Those states were either defeated states (Turkey, Austria-Hungary, Bulgaria)
or states that, due to the war, had newly been formed or had obtained new territories (Yugoslavia,
Armenia, Poland, Greece, Czechoslovakia, Roumania). On the basis of this obligation treaties were
signed that provided for obligations which states had to comply with vis-à-vis their inhabitants, citizens
and minorities living in their territories. In the case of the defeated states the obligations were included
in the peace treaties.(116) Some states (Estonia, Latvia, Lithuania, Finland and Albania), as a condition
for membership of the League of Nations, were to make declarations before the Council to the same
effect as the minorities treaties. Both treaties and declarations were designated "settlements".
There was some discussion on whether to accept representative organizations of minorities or even
individual members of these minorities to appeal for protection to the Council or the Permanent Court
of International Justice. This was not accepted because it was suggested, the appearance of acknowledging a minority as an entity independent of the state should be avoided(117) in order, again, to
maintain peace and order in Europe. Minorities would not have any official standing in the procedure.
3.1.3 The provisions of the settlements
The substantive provisions of the settlements stipulated that all inhabitants, not only minorities,(118)
would enjoy the full and complete protection of life and liberty, and recognized that they were entitled
to the free exercise, whether in public or in private, of any creed, religion or belief whose practices
were not inconsistent with public order or public morals. The settlements further provided for the right
of minorities to equality of treatment before the law, equality of civil and political rights and equality
of treatment and security in law and in fact. Differences of race, language or religion should not
prejudice any national of the country as regards admission to public employment, functions and honours, or to the exercise of professions and industries. Furthermore, states could not restrict the use
of the minority language in private or in public. Positive obligations were imposed upon states to make
provision for education in the minority language in towns and districts where a considerable number
of members of a minority were resident. To minorities would further be assured an equitable share of
public funds provided by the state for educational, religious or charitable purposes.(119) These provisions
were to be applied as fundamental laws in the respective states. Notwithstanding these rights of minorities, most settlements failed to define what minorities were and which the minorities were that could
invoke the protection of the settlements.
Through the 'guarantee clause' inserted in these treaties and in some declarations the League of
Nations was entrusted with the supervision over the minorities settlements, but only in so far as
persons belonging to minorities were affected. Inhabitants were excluded from the guarantee clause.
The states that were subjected to minorities settlements agreed in the first place that any member of
the League of Nations could bring to its attention any infraction, or danger of infraction, of any of the
substantive obligations. Representatives of minorities could not take such action. As pointed out above,
they had no official standing in the procedure. Minorities were dependent upon the cooperation of at
least one of the members of the Council who might draw the Council's attention to an infraction. There
was a heavy political burden upon a member, a burden not many members were willing to carry.
If a case of infraction or danger of infraction was brought before it, the Council could thereupon take
such action and give such directions as it deemed proper and effective in the circumstances. However,
before these actions could be taken the Council had to vote it as a whole, including the vote of the
representative of the accused state. This was a major drawback of the procedure. The accused state
could simply veto the whole procedure. Differences of opinion as to questions of law and fact over the
settlements between the state and one of the Principal Allied and Associated Powers or any other
Power, member of the Council of the League of Nations were to be referred to the Permanent Court
of International Justice, whose decision would be final and binding.(120)
These three elements of the League of Nations guarantee - states calling the attention of the League to
infractions, the Council's competence to act and the competence of the Permanent Court of
International Justice to rule - were a veritable and wide breach in the national sovereignty of some
states. In that period states under these settlements felt they were degraded to second-class citizens in
international society and law.
3.1.4 The supervision of the settlements
Within the limits of the settlements and the guarantee clause the League of Nations sought to make the
system as effective as possible. It adopted a right of petition for minorities in order that they might
inform the members of the Council of infractions. The League of Nations further established Minorities
Committees (usually referred to as Committee of Three or Committee of Five, according to the number
of persons elected to it) out of the Council which would examine petitions emanating from individuals.
In general, for every new minorities question a new Committee was constituted. By establishing these
Committees, no one individual state's representative would bear the responsibility of calling the attention of the Council to violations of the minorities settlements. Rather, the responsibility was collectivized and the initiative could not easily be regarded as an unfriendly act.(121)
The Minorities Section did a prima facie examination and it prepared the petition for examination by
one of the Committees, a section of the League's Secretariat.(122) Requirements were established to make
the division between the petitions worthy of being examined and those which were not. For example,
non-receivable were those petitions emanating from anonymous sources. Furthermore, the infraction
complained of must be an infraction of one of the treaty provisions.
The Committee to which the matter was referred communicated the petition to the government in
question for any observations and forwarded it to the members of the Council for their information.
These Minorities Committees became a sort of forum of first instance and, in fact, converted into the
'usual forum'. The Committees dealt with the substance of the case and negotiated some settlement so
that there was no need to bring most cases before the Council.(123) Governments were requested to
supplement the Committee with additional information if the observations by the governments were
considered to be unsatisfactory. This Committee procedure was not officially recognized in the League
of Nations Covenant and therefore not hampered by legal provisions.(124) It lacked any coercive machinery apart from persuasion and moral coercion. The Committee usually engaged in confident negotiations
with the accused state. To carry out the negotiations a rapporteur was appointed, usually accompanied
by other members of the Council, forming a new committee.
If negotiations failed the Committee would be obliged to bring the matter to the attention of the Council. If brought before the Council by the Committee the case was handled as a case brought before the
Council by one of its members.(125) This did not occur very often, because states, although they could
impede the procedure before the Council by their veto, tried to avoid public scrutiny of the treatment
of their minorities. In this respect the Minorities Committees had ample opportunities to negotiate with
these states.
Conclusion
The nineteenth century tradition of protecting particular communities was continued with the post First
World War minorities settlements. However, a much more ambitious 'universal' scheme was elaborated by charging the League of Nations with the guarantee of the settlements.
It was noted that the aim of the minorities settlements was not primarily humanitarian, but to prevent
the existence of minorities from becoming a threat to peace, both internal and international. For this
purpose the settlements were useful.(126) Rights of minorities were not insisted upon. Minorities paid the
price for peace, they openly voiced their disappointment and they lost faith in the system.(127) In
addition, because most of the settlements were imposed upon states, they felt treated as second-class
citizens in international relations and became very unwilling to cooperate and settle minorities questions.
Notwithstanding these drawbacks in the system, the minorities settlements included rights that after
the Second World War would be recognized as human rights. Furthermore, a system of permanent,
international supervision on the implementation of these rights was established. In this respect the
world could draw upon the experience.
3.2 The mandates system
The mandates system was a system of control - as designed by the Principal Allied and Associated
Powers after the First World War and as established by article 22 of the Covenant of the League of
Nations - for the various former colonies of the German Empire and the various territories in the
Middle East that were formerly held by Turkey. Those territories were administered on behalf of the
League of Nations by a mandatory, selected by the Principal Allied and Associated Powers. The
administration was to be guided by certain principles and restrictions as expressed in the Covenant.
For this administration the mandatory was responsible to the League of Nations, which in turn
supervised the mandates system through a reporting and petition procedure.(128) Article 22, paragraphs
1 and 2 of the Covenant read:
Art. 22. 1. To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.
2. The best method of giving practical effect to this principal is that the tutelage of
such people should be entrusted to advanced nations who by reasons of their
resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised
by them as Mandatories on behalf of the League.
3.2.1 Origins
Mandates were not unknown to the drafters of the League of Nations Covenant. Mandates were an
innovation in international law, but the ideas underlying the institution of mandates reach back into the
nineteenth century. Besides, the mandatory idea had already made its appearance in some isolated
cases.(129)
The mandates system must be viewed in the light of the development of the colonial system. Through
this system the colonial Powers sought to gain economic benefit by extracting valuable resources from
the colonial territories to be processed in the home country, at the same time opening the colonial
markets for these processed products. In the course of the nineteenth century there were voices
proclaiming that the colonial Powers should also take a humanitarian task upon their shoulders with
regard to the peoples living in their colonies. The advanced nations, as it was put, should feel a sense
of responsibility for the moral improvement of the native races and they should accept a 'tutelage' over
these peoples: the 'white man's burden' to civilize the world.(130) These ideas (and this twisted
reasoning) were probably welcome in order to further legitimize the colonial system and make
colonialism more acceptable in contemporary eyes.(131)
It may be questioned where sovereignty over the mandated territories was vested, in the League or the
mandatory. In the drafting phase of the Covenant of the League of Nations the problem of sovereignty
in mandated territories had been passed over.(132) Wright proposes that sovereignty was vested with the
League of Nations.(133) According to Bentwich, article 22 of the Covenant embodied principles of
delegated government. But he notes that article 22 was not an exact legal instrument, composed by a
body of jurists, but rather a statement of political and ethical principles.(134) In the light of the present
examination it suffices to say that in the drafting phase of the mandates system there was no question
of states accepting any interference in their domestic jurisdiction, because they, at the instigation, had
no sovereignty over those territories (yet) - at least not as comparable to domestic sovereignty - and
they agreed as such. There was international involvement from the beginning and perhaps the mandates
system should not be addressed in terms of sovereignty. States accepted an internationalization of the
government of the mandates up to a certain point. In return, they were appointed as administrators.
3.2.2 Preparation of the mandates system
At the end of the First World War the Powers that were convened at the Peace Conference were
confronted with the problem of the German colonies and former Turkish territories which they
occupied. Under the Peace Settlement Germany and Turkey unconditionally renounced all their rights
and titles over their possessions in favor of the Principal Allied and Associated Powers.
The actual situation was such that various Allied Powers had, amongst themselves, concluded secret
treaties that would ensure the reciprocal support of their various claims to those territories. At the time
of concluding those treaties they had envisaged annexation and at the Peace Conference they did not
want to give up territory.(135) President Wilson of the United States, however, sought to establish a peace
without annexations and promoted the principle of self-determination of peoples, in so far as those
peoples were ready for self-government. He demanded that the interest of the peoples should be the
primary consideration in the settlement.(136) Since the territories under discussion were not considered
to be ready for self-government, independence was out of the question. Therefore, he proposed to put
those peoples under 'tutelage' and to internationalize the administration of this tutelage. The idea of
internationalization was unacceptable to the Powers that already occupied those territories.
A compromise was reached between the proposition put forward by those who advocated annexation
and the proposition put forward by those who wished to entrust the colonial territories to international
administration. The compromise was the mandatory system.(137) The tutelage of the peoples was to be
entrusted to advanced nations and exercised by them as mandatories on behalf of the League of
Nations. The League would supervise the mandates. Several mandatory agreements were concluded
between the League of Nations and the states that were to act as mandatory (Great Britain, France,
Belgium, United States and Japan).
Since states would act as mandatories for the League of Nations it was obvious that the League of
Nations had to perform a function as supervisory body in one way or another. Because these states
were appointed as mandatories, some international supervision by the League of Nations over the tutelage was quite acceptable. There appears to have been no discussion on the specific form of
supervision: a reporting and petition procedure, exercised by a Commission of the League of Nations.
Any further infringement upon the 'jurisdiction' of these states through a more elaborate supervisory
procedure would probably not have been acceptable. Furthermore, it may be questioned whether the
League of Nations would have the political will and the resources to perform a more thorough supervision.
The drafting and the assignment of the mandate agreements was left to the Principal Powers, who all
awarded one another one or more mandates.(138) There were 'A', 'B' and 'C' mandates. Territories
under an 'A' mandate were provisionally recognized as independent nations, but they would receive
advice and assistance by a mandatory with its administration until such time as it was able to stand
alone. For territories under 'B' mandates it was considered impossible to grant autonomy. The
mandatory was fully responsible for administration. 'C' mandates were administered as integral
portions of the territory of the mandatory.(139)
3.2.3 The substantial provisions
I drew on 'The Mandates System', a publication by the League of Nations, to give the following
description of the substantial provisions and the supervisory procedure of the mandates system.(140)
Most 'C' mandates stipulated that the mandatory should promote to the utmost the material and moral
well-being and the social progress of the inhabitants. In particular, the mandatory must see that slavery
and the slave trade were prohibited and that no forced labour was permitted. Furthermore, freedom
of conscience and the free exercise of all forms of worship were to be guaranteed. 'B' mandates
provided furthermore for the protection of the natives from measures of fraud and force by the careful
supervision of labour contracts and the recruiting of labour.(141) In addition, 'A' mandates included the
provision that the mandatory must see that there was no discrimination of any kind between the
inhabitants on grounds of race, religion or language. Respect for the personal status of the various
communities and for their religious interests was guaranteed; each community was entitled to maintain
its own schools for the education of its members in their own language.(142)
It must be noted that the obligations were upon states. Persons were merely beneficiaries of these
obligations. Although individuals were empowered to petition the League of Nations they could not
substantiate any rights before a tribunal.
3.2.4 Supervision of the mandates
Article 22, paragraphs 7 and 9, provided for international supervision over the mandates. The mandatories were under an obligation to submit to the Council an annual report to the satisfaction of that
body, giving full information as to the measures taken to carry out the provisions of the mandate. If
asked for, the mandatories were to furnish supplementary explanations. In addition, mandatories were
required to attach to their annual reports the complete text of legislation and administrative decisions
taken in the mandated territories.(143)
The Council exercised its supervision through the Permanent Mandates Commission. The Permanent
Mandates Commission examined the reports and advised the Council.(144) The members of the
Commission were independent of any government and all were nationals of non-mandatory states.
Reports were examined in the presence of a representative of the mandatory who could furnish the
Commission with further explanations. The Commission not only examined whether the mandatory had
overstepped its powers, but also ascertained whether these powers had been put to good use and in the
interest of the inhabitants as prescribed by the Covenant and the mandate agreement.(145)
There seemed to have been a cooperative atmosphere, because the representatives were usually high-ranking officials, directly involved with the implementation of the mandate agreements.(146) The
Commission could make observations and submit these to the Council. The annual reports, the report
of the Commission to the Council as well as the minutes of the discussions and the comments by the
representatives were all published. The Council examined the reports referred to it and could take such
decision "as it may find expedient."(147) Usually the Council followed the conclusions of the Commission.(148)
Through a Council decision a right of petition for the inhabitants of mandated territories was
established. It was stipulated that any petition from inhabitants of a mandated territory was to be
forwarded to the League of Nations through the mandatory. In their supervisory role the Commission
could also take these petitions into account. The Commission could make comments and recommendations on the petition to the Council. Furthermore, the Commission was not restricted in its use of all
kinds of documents that were communicated to it.(149) However, when there evolved a practice of
hearing petitioners before the Commission, the Council put a stop to it. It followed the opinion of the
mandatory Powers who felt "[...] that, with such a procedure - which would involve the hearing at the
same time of a representative of the mandatory Power - the parties would, in fact, be engaged in a
controversy before the Commission and that any procedure which would seem to transform the
Commission into a court of law would be inconsistent with the very nature of the mandatory
system."(150) This was the well-known argument that a state could not be on an equal footing with its
citizen before an international body. Disputes between the mandatory and any other member of the
League of Nations were to be submitted to the Permanent Court of International Justice.(151)
Conclusion
Although the reasons for the establishment of the system probably was a rationalization of the pre-existing colonial system,(152) through the mandates system humanitarian principles were explicitly vested
in an international legal document and exported all over the (colonial) world. The mandates system defined certain humanitarian principles and, as they were applied to some territories at least, these
principles were transformed into principles of international law. Furthermore, mandatories had
accepted international involvement from the beginning. There was an international supervisory
procedure to monitor the application of these principles in the mandated territories. After the Second
World War the Allied Powers replaced the mandates system with the similar trusteeship system.(153)
3.3 The International Labour Organization
3.3.1 Origins
As early as the nineteenth century there had been private initiatives that called for the improvement
of the conditions of labour at an international level.(154) International competition was an obstacle to
humane labour regulation, because a country unilaterally improving working conditions would risk a
competitive disadvantage in relation to countries not adopting similar regulations. This would, in the
long run, neither be beneficial to the country nor to its working people. It was generally realized that
improvements could only be successfully made through international negotiation and the conclusion
of international conventions.(155)
As industrialization spread all over Europe, international competition became keener and social unrest
more and more began to stir countries to take action and consider international labour regulation.(156)
There was an interest for states in concluding treaties in the field of working conditions. The first conference relating to the matter was convened in 1890 in Berlin which resulted merely in the adoption
of recommendations.(157) In 1904 a first, French-Italian, labour treaty was agreed upon. A number of
other bilateral treaties were concluded on this model.(158) In the meantime, in 1900, the International
Association for Labour Legislation was established. It was a non-governmental organization, that,
nonetheless, received backing from various high-ranking politicians who were among its members. It
set forth to promote the negotiation and conclusion of international labour treaties. There was an
International Labour Office at Basel ensuring continuity of international concern with labour issues.
In 1905, 1906 and 1913, at the instigation of the Association, intergovernmental conferences were
convened in Berne which adopted the first international labour conventions.(159) Technical, uncontroversial questions were dealt with. Nevertheless, they purported to improve working conditions,
from which individual workers could benefit. By 1915 some twenty labour treaties had been concluded,
setting the minimum conditions for competition without one state or another suffering unfair competition from abroad. The International Association for Labour Legislation did not survive the First
World War.
At the outset of the First World War national governments feared that the different national working
classes would declare their solidarity and would not be willing to fight each other in combat. Although
it did not turn out that way, the power of the working people had to be reckoned with. In the wartime
years labour was more and more admitted into the national decision-making machinery. The national
war effort depended a great deal upon the dedication of the work forces. Their cooperation and
agreement were sought by national governments.(160) The 1917 Russian revolution shocked governments
in the west and made them even more inclined to take pressures from labour into account.(161) The
apparent imminence of revolution in western and central Europe immediately after the First World War
made it politically urgent to deal with labour issues. It became a matter of course that labour would
emerge as a major force from the war. To avoid radicalization governments admitted the forces of
labour into the international arena.(162)
Therefore, one of the first acts of the Peace Conference after the war related to labour.(163) It was recognized that a universal and lasting peace should be founded upon a firm and internationally defined basis
of social justice.(164) European states sought to establish an international labour organization.
3.3.2 Preparation of the agreement
It was acknowledged (and insisted upon) by governments that national, sovereign states were still the
main actors in the international arena. Therefore, a true supranational organization adopting
international legislation would not be realistic. Rather, the international organization should have its
basis on state sovereignty. So-called international legislation would be in the form of conventions,
subject to national ratification. However, to work as an effective and credible regulating device among
states, an international labour organization should be invested with some international power or
authority in its relations with states. The principle of sovereignty of states needed to be adjusted in
another way as well, because labour was demanding a role in the process of adopting international
labour legislation. One way or another these two factors, the power of labour and the need for international legislation, had to be reconciled with national sovereignty.(165) A compromise had to be made.
In 1919 the Paris Peace Conference established a Labour Commission that was to find such a compromise and produce a draft constitution for an international labour organization. Great Britain had proposed to establish an international labour organization with two organs, a secretariat to collect and furnish information and an annual conference which would negotiate international labour legislation. The draft provided for the establishment of a third main organ as well, a governing body, which was responsible for coordinating the activities of the organization, convening the various meetings of the conference and deciding their agendas.(166)
A way was suggested to reconcile national sovereignty with the power of an international organization
to adopt international legislation. The international decision-making machinery would be linked to the
national in order to make sure that governments would not stand in the way if the national authorities,
competent to ratify and give national effect to the conventions, would be willing to accept proposed
international legislation. Therefore, there should be an obligation upon states to bring conventions,
adopted at the conference of the international labour organization by a two third majority, before these
national authorities. These authorities, usually the parliaments, could then decide upon possible ratification.(167) After prolonged discussions, this scheme was accepted by the Commission.(168) The innovation was that there was a duty upon these governments to avail their parliaments of the power to decide
on the adoption of conventions, even though the government may have not consented to the convention
concerned.
At an annual conference labour was to be proportionally represented as well. The ratio was discussed
at length. Proposals were made for two governmental representatives and two non-governmental
representatives per state at the conference. However, this would make it easy to non-governmental
representatives to overrule governmental representatives, which was unacceptable to states. In the end
a ratio of one workers' representative, one employers' representative and two governmental
representatives was adopted. Non-governmental elements were also represented in the Governing Body.
The organ would be composed of twenty-four representatives, twelve states' representatives and six
employer and six worker delegates.(169)
The draft provided for a system of periodic reporting by states on the measures that they had taken to
give effect to ratified conventions.(170) If we compare the discussion on this draft article with the discussions on other draft articles that had an impact upon states' sovereignty, it is interesting to note that
this draft provision was adopted with only a minor amendment and without much discussion.(171) It may
be likely that governments did not consider this reporting obligation as a serious infringement upon
their sovereignty. However, as will be examined below, the system of reporting carried the seeds to
develop into an influential system in the ILO.(172)
There was discussion on the adoption of the possibility of making representations. An international
labour office would communicate such representations to a governing body, which could communicate
it to the state concerned. The state could make statements as it saw fit. A British proposal to provide
individuals with the possibility of making a representation to the International Labour Office that a
state had failed to observe a labour convention to which it was a party was rejected. It was unacceptable for states that there would be a possibility that individuals could make representations over the
heads of their governments against their own states. Therefore, it was proposed that only industrial
associations of workers or employers could make such representations after a violation of a ratified
convention. This was accepted.(173)
It is interesting to follow the discussion on the adoption of a complaints procedure. It was felt that "[i]t
would be in the interests of States which had ratified a convention that any non-observance of its
provisions should be drawn attention to."(174) Therefore, it was proposed to make this procedure
available to representative organizations of workers or employers, Furthermore, complaints could only
be made by one state against another, with the proviso that both states had to have ratified the convention that had allegedly been violated.(175) Finally, it was felt that states would not be willing to accept
a role of accuser. Therefore, it was accepted that the complaints procedure could also be initiated by
non-governmental elements.(176)
In the end agreements were reached on the foregoing points and the Peace Conference accepted the
proposals of its Labour Commission.(177) On June 28, 1919, part XIII of the Treaty of Versailles dealing
with the issue of labour conditions and providing for the establishment of an international labour
organization was adopted. This was the Constitution of the International Labour Organization.(178) Its
preamble reads:
"[...] Whereas the League of Nations has for its object the establishment of universal
peace, and such a peace can be established only if it is based upon social justice; [...]"
And further:
"[...] Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries;
The High Contracting Parties, moved by sentiments of justice and humanity, as well
as by the desire to secure the permanent peace of the world, agree to the
following:[...]"
From these passages it appears that the parties realized that the improvement of labour conditions was
a prerequisite for justice, which again was a prerequisite for peace. Furthermore it was realized that
the improvements could only be made universally, for reasons of economic competition as pointed out
above.
Entities other than states had been allowed to participate in an international organization that was to
draft international labour conventions. Furthermore, decisions could be taken by a two-thirds majority
instead of the usual unanimity. However, these decisions were not binding on states if they did not
ratify them. Thus, it may be suggested that the International Labour Organization was not invested
with true legislative power. However, this would be simplistic because governments were under an
obligation to submit conventions and recommendations for considerations to the national authorities
competent to give effect to these recommendations and conventions.
3.3.3 Supervision of the international labour standards
Articles 24 to 34 of the ILO Constitution(179) provide for a procedure for member states to make
representations or file a complaint against other member states. The Governing Body may also adopt
the same procedure on its own motion or on the basis of a complaint from a delegate to the
Conference. The Governing Body appoints a Commission of Inquiry to deal with the complaint. After
an inquiry, where non-governmental organizations and witnesses may be heard and which may take
the form of an on-the-spot-visit, the Commission makes recommendations, most of which have been
acted upon.(180) If a party does not accept the recommendations, recourse may be had to the World
Court.(181) The complaints procedure has not been resorted to very much. It is regarded as an unfriendly
act. Furthermore, filing a complaint would set a precedent which could later be invoked against the
initial complaining state.(182)
Article 19 (5(d)) of the Constitution imposes upon the members of the ILO the obligation to implement
ratified conventions. In respect of this obligation article 22 provides for the obligation to submit reports
to the ILO on measures taken to give effect to the provisions of the ratified conventions. Article 19 (5-7) provides for the obligation to submit reports on unratified conventions and on recommendations as
may be requested by the ILO's Governing Body. The obligation to report is not a general, undefined
obligation. Reporting must be in the form prescribed by the Governing Body and must include particulars requested by the Governing Body. Reports should indicate the position of national law and practice regarding the subject matter of recommendation or convention, the extent to which effect has been
given or will be given, and the difficulties causing delay or prevention of implementation. Non-governmental elements have a place in this process. Copies must be sent to representative organizations
of employers and workers. They, again, can comment on these reports.
There are two supervisory bodies examining reports. We deal with both reporting of unratified
conventions and recommendations (as provided for by the amended Constitution of the ILO in 1946)
and with reporting under ratified conventions. The Committee of Experts on the Application of
Conventions and Recommendations was set up in 1927 by the Conference and appointed by the
Governing Body. It is the main supervisory body from the legal point of view, composed of experts
of recognized competence, completely independent of governments and appointed in their personal
capacity by the Governing Body on the proposal of the Director-General. Its function is to determine
whether requirements of conventions are met, whatever the economic and social circumstances of a
country. However, modes of implementation may be different in different countries.(183)
Procedure is based on documentary evidence. However, any other relevant material may be taken into
account. The Committee's comments may be directed to one individual state or may take the form of
a comprehensive study. Individual comments are in the form of observations on a noted discrepancy
or in the form of requests, communicated directly to the government in order that it may reply in its
next report.(184)
The reports of the Committee of Experts are the basis of the work of the other supervisory body
examining reports: the Conference Committee on the Application of Conventions and Recommendations. This Committee is set up by the International Labour Conference at its annual sessions and
consists of representatives of workers, employers and national governments. It selects the most
important cases. Governments are then invited to furnish explanations regarding discrepancies,
measures taken, etcetera. Replies are made orally or in writing and are the basis for the ensuing discussion. Discussions and conclusions are summarized in a report which is again transmitted to the
Conference and discussed in the plenary.
In its report the Committee, by means of a list, may draw attention to cases "where governments apparently encountered serious difficulties in discharging their obligations under the ILO Constitution or
convention they had ratified."(185) The Committee has emphasized that it is not a tribunal. Inclusion of
a country in the list is not to be regarded as a sanction. It nevertheless has a political bearing.(186) The
Conference may adopt 'comments' or 'observations' that recommend that a state or a group of states
take a certain course of action to remove the obstacles for implementation. They are very carefully,
but clearly, formulated: they are adopted after, and on the basis of, a thorough examination by two
independent bodies and they are endorsed by the Conference in which all members of the ILO are
represented. Therefore, these 'recommendations', although not legally binding, do have a political
impact. The initial aim of supervising the international labour conventions - to ensure that states
discharge their obligations - has grown into a system of promotion of ratification and implementation,
where no formal obligations exist.(187)
Conclusion
The International Labour Organization was the first international organization to institute international
concern with the well-being of workers on a permanent basis. There was an obligation to bring
conventions and recommendations adopted by a two third majority before the national authorities. In
addition, the participation of labour and employers' organizations, powerful factors nationally, in the
international decision-making process enhanced the implementation nationally. There was a clear,
institutionalized, link of the decision making process at both the international and the national level.(188)
In this respect, it may be suggested that the ILO, originally based on the sovereignty of states, came
to possess the weight and momentum to constitute an independent factor in international society.(189)
CONCLUSION
The concept of the state as the sovereign unit ruling without outside interference over persons residing
in its territory has been withering in favor of the concept of international concern with persons. At an
international level states have increasingly accepted safeguards against the ill-treatment of persons that
have force in the internal domain of states.
It is recalled that the concept of the state as the sovereign unit was qualified from its very beginning.
In addition, in the course of the last centuries a process of internationalization of domestic affairs in
the fields, sketched above, has been taken place. The process has been sketched in three sections,
which correspond to three historical developments: in the first place, the emergence of sovereign states
and the qualifications of sovereignty; in the second place, the democratization as a result of various
revolutions which influenced international law and society in that it began to focus more on the person;
finally, the institutionalization of international concern with the well-being of persons. International
concern became embodied in international organizations that could function, up to a certain degree,
independent of states.
Even before the First World War, there was some international concern with the fate of individuals
and groups of individuals within other sovereign states. This concern was, however, rather "spasmodic
and unorganized"(190), but strengthened after the First World War when international concern became
permanent, organized and institutionalized. Various settlements were made and international
instruments adopted that established international responsibility. Procedures were accepted to actually
call states to account before an international body for ill-treatment of their nationals. However, this
practice was not general. Only certain states fell under these arrangements or they concerned the treatment of a limited group of persons or a limited set of rights.
Some conditions favoring the expansion of the scope of international concern were mentioned in the
foregoing sections. Although hidden motives - economical and political - often played a part,(191)
humanitarian considerations may have exerted some, not necessarily sufficient or decisive, influence.
In this respect, public opinion has a bearing on such considerations, especially when humanitarian
considerations coincide with other - economical or political - state interests.(192) If humanitarian
considerations are invoked in an international arena, that invocation cannot easily be dismissed by other
states, especially not if citizens watch them closely. This began to play a role in the nineteenth century,
when the individual began to claim a position in the national as well as in the international decision-making machinery.(193) There is evidence of humanitarian principles being accepted internationally. The
public invocation of humanitarian motives for interference in the domestic affairs of another state could
be seen as a demonstration of the generalized acceptance of certain humanitarian principles in
international law. In addition, in various treaties and in the case of humanitarian intervention reference
was made to these principles.
The sections on minorities and on mandates illustrate that so-called international concern with certain humanitarian principles was first applied in those parts of the world that did not yet have an important place in the European system of states and were not considered as subject to the European international law. Usually one or more states paid the price for 'international' regulation, in that treaties were imposed upon them. This was part and parcel of Europe's expanding influence in the world. In that regard it may be suggested that the europeanization (or: the norm-colonization) of the rest of the world facilitated the process of internationalization.
In respect of favoring conditions, it is notable that after a major war, states have appeared to be more
willing to make far-reaching concessions and come to compromises as a response to the atrocities of
the war.(194) This may have played a role in the development of humanitarian law. Furthermore, in order
to prevent disorder and maintain peace and stability, the rights of some persons were guaranteed under
international law. This was the case with the establishment and adoption of international labour
standards by the International Labour Organization and with the minorities settlements after the First
World War. Besides, the origins of the International Labour Organization, of the international
prohibition of slavery and of the mandates system illustrates that the development of international
concern with humanitarian issues also depended on economic conditions.
Compromises between sovereignty on the one hand and forces for human rights and international concern with humanitarian issues on the other hand had to be made over and over during the last centuries. A question which needs further study is whether these compromises leading to some form of international involvement with domestic treatment of persons were (and are) in force for the benefit of persons or for the benefit of the states, who could boast of 'their' human rights. In this respect it may be questioned whether 'international concern' is not just a beautiful facade; or, on the other hand, whether the international bodies that represent international concern with human rights possess sufficient weight and momentum to constitute an independent factor in inter-state affairs, which states have to reckon with.(195) Both alternatives may be near the truth.
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CASES
Island of Palmas Case (Netherlands v. U.S.A.), 4 April 1928, Reports of International Arbitral
Awards, Vol. II, 1949, 829-871.
Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Rep. 1950, 65.
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1. M. Moskowitz, The Politics and Dynamics of Human Rights. Dobbs Ferry 1968, 81.
2. In fact, matters of international concern may never have been exclusively internal matters, because they were not dealt with at the internal level in the first place. On the other hand, some exclusively internal matters have been lifted out of the domestic arena and have become matters of international concern.
3. M. Virally, La Distinction entre Textes Internationaux ayant une Portée Juridique dans les Relations Mutuelles entre leurs Auteurs et Textes qui en sont Dépourvus, in Annuaire Institut de Droit Internationale 10 (1983), Tome I, 328-357 (345-348 and 356). See also Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Rep. 1950, 65, at 70-71. See also Nationality Decrees issued in Tunis and Morocco, Advisory Opinion, P.C.I.J. Rep. 1923 (Ser. B No. 4) at 24. The Court noted that "[f]or the purpose of the present opinion, it is enough to observe that, in a matter which [...] is not, in principle, regulated by international law, the right of a state to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law."
4. See Nationality Decrees issued in Tunis and Morocco, Advisory Opinion, P.C.I.J. Rep. 1923 (Ser. B No. 4) at 24. The Court observed: "[t]he question whether a certain matter is or is not within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations."
5. Gunning makes this observation with regard to human rights. I.R. Gunning, Modernizing Customary International Law: The Challenge of Human Rights, Virginia Journal of International Law 31 (1991), 211-247 (211). See also R. Falk, Human Rights and State Sovereignty. New York 1981, 2.
6. Reporting is provided for in various international human rights instruments. See article 9 of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), article 40 of the International Covenant on Civil and Political Rights (ICCPR), article 16 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), article 19 of the Convention Against Torture and other cruel, inhuman or degrading treatment or punishment (CAT) and article 18 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).
7. A. Cassese, International Law in a Divided World. Oxford 1986, 36.
8. The evolution may also be illustrated with the Treaty of Augsburg (1555), the Treaty of Nimeguen (1679) and the Treaty of Utrecht (1713).
9. Lord Phillimore, Commentaries upon International Law. Vol. 1. London 1879, 621-622. Reference from: M. Ganji, International Protection of Human Rights. Geneva 1962, 17. See also L.C. Green, Protection of Minorities in the League of Nations and the United Nations, in A. Gottlieb (ed.), Human Rights, Federalism and Minorities. Toronto 1970, 180-210 (181).
10. A principle, already recognized in the peace settlement of Augsburg (1555).
11. W. Friedmann, The Changing Structure of International Law. New York 1964, 4.
12. M.W. Janis, International Law? Harvard International Law Journal, 32 (1991), 363-372 (368).
13. L. Henkin, International Law: Politics, Values and Functions. General Course on Public International Law, Recueil des Cours de l'Académie de Droit International, Tome 216 (1989), IV, 25-26. See also M.G. Georgantas, De la Notion de Souveraineté et de son Évolution. Lausanne 1921, 9 and 17. And H. Steinberger, Sovereignty, in R. Bernhardt (ed.) Encyclopedia of Public International Law 10. Amsterdam, 1987, 397-418 (399). R. Lapidoth, Sovereignty in Transition, Journal of International Affairs, 45 (1992), 325-346 (326).
14. Steinberger, at 400.
15. Lapidoth, at 326.
16. P.P. Remec, The Position of the Individual in International Law according to Grotius and Vattel. The Hague 1960, 122-126.
17. See also Falk, at 35.
18. Steinberger, at 402-403. See also Falk, at 35.
19. This is, of course, questionable with respect to capitulations, which were, in general, imposed upon non-European states. See below, section 1.3.2.
20. R. Redslob, Histoire des Grands Principes du Droits des Gens. Depuis l'Antiquité jusqu'a la Veille de la Grande Guerre. Paris 1923, 213-214.
21. Steinberger, at 403.
22. As formulated by Huber in the Palmas Arbitration. Island of Palmas Case (Netherlands v. U.S.A.), 4 April 1928, Reports of International Arbitral Awards, Vol. II, 1949, 829-871 (839).
23. See Island of Palmas Case, at 839.
24. Falk, at 35-36.
25. Redslob, at 67-74 and 129-131.
26. Id., at 68.
27. Id., at 129-131. I. Brownlie, Principles of Public International Law. Oxford 1990, 521.
28. Vattel, Le Droit des Gens. Bk. 11, ch. VI, para. 71. (Reference from Brownlie, at 518.)
29. M. Akehurst, A Modern Introduction to International Law. 1987, 88.
30. T. Buergenthal, International Human Rights in a Nutshell. St. Paul 1988, 11.
31. Akehurst, at 88.
32. R. Arnold, Aliens, in R. Bernhardt (ed.) Encyclopedia of Public International Law 8. Amsterdam, 1981, 6-11 (7-8).
33. Id., at 8.
34. Buergenthal, at 13.
35. See E. Luard, The International Protection of Human Rights. London 1967, 9.
36. P. Thornberry, International Law and the Rights of Minorities. Oxford 1991, 28.
37. T.C. van Boven, De Volkenrechtelijke Bescherming van de Godsdienstvrijheid. (Transl.: International Protection of Religious Liberty) Assen 1967, 9-10. See also Luard, at 9.
38. Van Boven, at 8.
39. Id., at 8-9.
40. Steinberger, at 400.
41. See below section 2.2.
42. R.L. Bledsoe, The International Law Dictionary. Santa Barbara, 1987, 123-124. Brownlie, at 522. It must be noted that China, when entering into these arrangements with European powers did not regard itself to be subjected at all. According to Chinese law China could not be subjected to any outside power. The view rather was that China was the power subjecting the European powers to a tribute. This was to be regularly paid by European powers, but was symbolical in that it confirmed Chinese supremacy.
43. Redslob, at 142-143. The Treaty of 1685 between France and Tripoli provided for similar rights were conferred for the French in Tripoli. Redslob, at 241.
44. Id., at 143-144.
45. Van Boven, at 11.
46. The Treaty of Adrianople (1829) included provisions to the same effect. See Thornberry, at 27.
47. Luard, at 8-10.
48. Id., at 9-10.
49. Friedmann, at 7.
50. See also Falk, at 44.
51. Luard, at 8.
52. Id., at 9-10. Friedmann, at 40.
53. I.L. Claude, Swords into Plowshares. The problems and Progress of International Organization. New York 1971, 26.
54. Van Boven, at 22.
55. Luard, at 10. Humanitarian principles were in the first place applied to the world that had no place in the Concert (yet). In that regard it may be interpreted as the europeanization (or: the norm-colonization) of the rest of the world and not as the internationalization of domestic affairs. See below, section 2.2, 2.3, 3.1 and 3.2. See also I.L. Claude, National Minorities. An International Problem. Westport 1969, 7.
56. Thornberry, at 29.
57. Ganji notes that the history of the protection of minorities is the history of the protection of religious minorities. The history of humanitarian intervention is the protection of religious minorities. Ganji, at 17. See also A. Rougier, La Théorie de l'Intervention d'Humanité, Revue Général de Droit International Public (1910), 468-526. (Reference from: Ganji, at 9-11.)
58. See Ganji, at 9-16.
59. W.D. Verwey, Humanitarian Intervention, in A. Cassese (ed.) The Current Legal Regulation of the Use of Force. Dordrecht 1986, 57-78 (59). Remec, at 122-126.
60. Buergenthal, at 3-4. See above section 1.2.
61. Verwey, at 60.
62. See above section 1.3.2. See also Falk, at 36.
63. Falk, at 39.
64. Ganji, at 22-38.
65. Id., at 24-26.
66. See above section 1.3.2.
67. Ganji, at 23-24. Thornberry, at 33-34.
68. Claude 1969, at 7.
69. Van Boven, at 22. And Ganji, at 21.
70. M.A.N. Mandelstam, La Protection des Minorités, Recueil des Cours de l'Académie de Droit International (1923), 363-519 (377).
71. Thornberry, at 26.
72. Id., at 31-32.
73. Van Boven, at 18.
74. Thornberry, at 25.
75. Claude 1969, at 7-9.
76. Redslob, at 131-134 and 451. M.H. Coursier, L'Évolution du Droit International Humanitaire, Recueil des Cours de L'Académie de Droit International, Tome 99 (1960), I, 357-465 (397).
77. E.g. the cartel of Frankfurt (1743), Hadmersleben (1757), Sluys (1759) and Brandenburg (1759). See Coursier, at 367.
78. Id., at 383.
79. Id., at 369.
80. A red cross sign was already used in 1586 by the "Pères de la Bonne Croix". They were members of a church congregation who accompanied armies in the field and cared for the wounded in the field. Id., at 366.
81. Id., at 369-372.
82. Luard, at 14.
83. Cassese, at 52-53.
84. Luard, at 10-11.
85. Cassese draws attention to other motivations for the British concern with the slave trade. The British conquest of India in the second half of the eighteenth century provided Britain with cheap labour without the need to resort to slavery. Furthermore, as Ireland was united with Britain in 1800, Irish voters and their representatives, who had no commercial interest in the slave trade, could plead in the House of Commons and the House of Lords for equality and justice. See Cassese, at 53.
86. Id., at 53.
87. Ganji, at 89-91.
88. According to Driscoll almost none of them were effective. See D.J. Driscoll, The Development of Human Rights in International Law, in W. Laqueur and B. Rubin (eds.), The Human Rights Reader. New York 1979, 41-56 (53).
89. Ganji, at 93.
90. Id., at 94.
91. This contention is substantiated by the preamble of the 1919 Convention which read that the Signatory Powers were: "Désireux d'assurer par des dispositions appropriées aux exigences modernes l'application des principes généraux de civilisation consacrés par les Actes de Berlin et de Bruxelles." Id., at 96-97.
92. Id., at 97. Article 11, para. 2 of the said convention.
93. Id., at 97-98.
94. Id., at 99.
95. Id., at 99-103.
96. N. Feinberg, La Petition en Droit International, Recueil des Cours de l'Académie de Droit International, 40 (1932), Tome II, 525-644.
97. Id., at 536-537.
98. Id., at 530.
99. Id., at 542, 546. But see at 551-553.
100. Id., at 544-549.
101. Id., at 549-554.
102. Id., at 558-574.
103. Id., at 637-638.
104. V.R. Idelson, The Law of Nations and the Individual, Transactions of the Grotius Society, 30 (1944), 50-66 (57 and 60).
105. Luard, at 14.
106. See above sections 1.3.2, 2.2 and 2.3.1.
107. P. de Azcárate, League of Nations and National Minorities. Washington 1945, 14.
108. Green, at 185. Luard, at 14-15.
109. De Azcárate, at 15.
110. Claude 1969, at 14 and 29.
111. De Azcárate, at 170-171.
112. Claude 1969, at 14.
113. See above sections 1.3.2 and 2.2. See also M.A.N. Mandelstam, La Protection Internationale des Droits de l'Homme, Recueil des Cours de l'Académie de Droit International, 38 (1931), Tome IV, 125-232 (137).
114. In the drafting phase of the Covenant attention had been given to the inclusion in the Covenant of the general application of the principles of religious toleration and racial equality. But on further consideration it was found impossible, or at least undesirable. See De Azcárate, at 169. Thornberry, at 39-40. In respect of the dominated people in their colonies the powers could especially not accept the principle of racial equality. Non-inclusion of this principle lead to fierce protests from Japan, one of the powers represented at the Paris Peace Conference. In the Interbellum the Institut de Droit International frequently discussed and proposed the adoption by the League of Nations of a Declaration of Human Rights. See K.J. Partsch, Menschenrechte und Minderheitenschutz. Zu den Arbeiten des Institut de Droit international in der Zwischenkriegszeit, in Bernhardt et.al (eds.), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit Menschenrechte. Festschrift für Hermann Mosler. Berlin 1983, 649-659 (649-650). See also Mandelstam 1931, at 129-229.
115. De Azcárate, at 92-93.
116. Mandelstam 1923, at 367.
117. De Azcárate, at 171.
118. De Azcárate remarks that it is unclear why this general provision (applicable to all inhabitants of a state) was included in the minorities treaties, especially because the League of Nations guarantee was only applicable as far as minorities were affected. De Azcárate, at 58-59. It may be explained from the fact that it would lead to unequality if only minorities would enjoy the internationally protected rights as stipulated in the text. See also Thornberry, at 44.
119. De Azcárate, at 60-61 and 172-173.
120. Id., at 94-100. Thornberry, at 45.
121. De Azcárate, at 112.
122. Id., at 124.
123. Id., at 121.
124. Id., at 118-119 and 133.
125. Thornberry, at 45.
126. Against this political background the decision by the Council in 1928 that minority cases could only be brought before it in exceptional circumstances, when peace was jeopardized by the gravity of the situation, is understandable. The argument was that a too easy access to the Council would rather disturb than preserve European order. Claude 1969, at 23.
127. In 1939, there were only four petitions addressed to the League of Nations, of which three were rejected. This demonstrates that minorities had lost faith in the system. Thornberry, at 46-47. See also Green, at 195. Claude 1969, at 28-50. Ganji, at 73-77.
128. Q. Wright, Mandates under the League of Nations. Chicago 1930, 3. See also League of Nations, The Mandates System. Origin - Principles - Application. Geneva 1945, 7. A.J. Crozier, The Establishment of the Mandates System 1919-25: Some Problems created by the Paris Peace Conference, Journal of Contemporary History, 14 (1979), 483-513 (483). R.N. Chowdhuri, International Mandates and Trusteeship Systems. A Comparative Study. The Hague 1955, 3.
129. League of Nations, at 7 and 10-11. Wright, at 8-11. Chowdhuri, at 20-24.
130. League of Nations, at 8.
131. See Luard, at 19-20.
132. Crozier, at 485-486 and 488.
133. Wright, at 528-530.
134. N. Bentwich, The Mandates System. London 1950, 2-3.
135. Wright, at 27.
136. Bentwich, at 1.
137. Wright, at 24. Chowdhuri mentions the wish to ensure a lasting peace among the colonial powers as well as the protection of the indigenous inhabitants against exploitation as reasons for the establishment of the mandates system. Chowdhuri, at 3. See also Bentwich, at 2.
138. Wright, at 112.
139. League of Nations, at 24.
140. League of Nations, The Mandates System. Origin - Principles - Application. Geneva 1945.
141. Id., at 25.
142. Id., at 28.
143. Id., at 34.
144. Id., at 24-25.
145. Id., at 37.
146. Id., at 39-40.
147. Id., at 36.
148. Id., at 35-37.
149. Id., at 38-40.
150. Id., at 41.
151. Id., at 25.
152. See Luard, at 19-20.
153. Chowdhuri, at 11, 39, 45-50 and 59.
154. N. Valticos, International Labour Law. Deventer 1979, 17. A. Alcock, History of the International Labour Organisation. London 1971, 5-6.
155. See also J.T. Shotwell, The Origins of the International Labour Organization. Vol. I. History. New York 1934, 12-17.
156. Id., at 19-20. Alcock, at 10.
157. Shotwell, at 6.
158. Alcock, at 11.
159. Shotwell, at 29-52. Valticos 1979, at 18.
160. Shotwell, at 53.
161. Id., at xxi and 67.
162. Id., at xxi. Alcock, at 14-16. See also E.B. Haas, Beyond the Nation State. Functionalism and International Organization. Stanford 1964, 141 and 143.
163. Alcock, at 18-19. See also D.A. Morse, The Origin and Evolution of the I.L.O. and Its Role in the World Community. Ithaca 1969, 4.
164. N. Valticos, The International Labour Organization, in S.M. Schwebel (ed.), The Effectiveness of International Decisions. Leyden 1971, 134-205 (134). See also the Preamble of the ILO Constitution, which highlights the link between just labour conditions and peace and harmony in the world.
165. Alcock, at 21-22.
166. Id., at 25.
167. Werners describes this process as "[...] the confluence of the decision making process at both the international and the national level." S.E. Werners, New Dimensions to Tripartism in the International Labour Organization, Netherlands International Law Review 24 (1977), 323-334 (323).
168. Shotwell, at 145-163.
169. Alcock, at 25.
170. Id., at 24.
171. Shotwell, at 164.
172. See E.A. Landy, The Effectiveness of International Supervision. Thirty Years of I.L.O. Experience. London 1966. But see Haas 1964.
173. Shotwell, at 165.
174. Id., at 166.
175. Alcock, at 31.
176. Shotwell, at 166-167.
177. Id., at 287.
178. See for final text Shotwell, at 424. Under article 23 of the Covenant of the League of Nations the Members pledged they would establish fair and humane conditions of labour and the establish an international organization necessary for the purpose. Id., at 53.
179. As amended in 1946.
180. Valticos 1971, at 149.
181. The Permanent Court of International Justice before and the International Court of Justice after the Second World War.
182. C.W. Jenks, Social Justice in the Law of Nations. The ILO Impact after Fifty Years. London 1970, 47-48.
183. Valticos 1979, at 225-228 and at 240-241.
184. Id., at 241.
185. Id., at 242.
186. There is another system through which the ILO may keep an eye on the implementation of international labour standards. It is the system of 'direct contacts', introduced in 1968. It is resorted to at the request of or with the agreement of the governments concerned. The object is to engage into a more broader and fruitful dialogue with the governments which would lead to a better implementation. Id., at 243.
187. A. Khol, Zwischen Staat und Weltstaat. Vienna 1969, 161-162. Landy, at 53 ff. Haas 1964, at 257 ff.
188. Werners, at 323.
189. E.B. Haas, Human Rights and International Action. Stanford 1970, 20.
190. Luard, at 14.
191. In this respect, Thornberry comments: "The point is not the hidden motives, but the public justifications for intervention. If humanitarian justifications are sufficient ground in themselves, it is supererogatory to cite a cluster of reinforcing reasons." Thornberry, at 35.
192. Falk, at 39 and 43-44.
193. See above section 2.1.
194. In respect of the minorities treaties, Thornberry remarks "The tradition replenished itself whenever the factum of international power was presented with a suitable opportunity for regulation. The treaties were a symbol of international concern. They were forward-looking rather than retrogressive." Thornberry, at 32.
195. Haas 1964, at 82: "Why not speak simply of the growing power of international organizations?"
Reference:
Ingelse, C., Origins and Evolution of International Concern with
Treatment of Individuals and Groups of Individuals, University of
Limburg, Faculty of Law 1992, 36p. (unpublished). An abstract is
available on the World-Wide Web: http://www.xs4all.nl/~ingel/c.ingelse/intconce.htm.
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