Judge Dennis Davis
The Origins of International Law

Judge Dennis Davis - The Origins of International and Human Rights Law and its Relevance Today

- This lecture in a sense is part two of a three part series and I need to explain. Part one of last week, and if you heard it, you will know that what we dealt with was the Nuremberg trials and the significance thereof, and we examined that and the implications which flowed from that, including the Nuremberg principles. I want to extend that discussion tonight. I want to talk a little bit about what happened thereafter, with some emphasis on lesser known but important trials which took place in Tokyo at the end of World War II, and in which, of course, various members of the Japanese military and government were tried in similar trials, and they really do make for interesting observation. But my core, in order, the reason I do that is because I want to show just what the impetus of these sets of trials were for a whole host of international human rights law which followed. Why I say this is the second part of the three part series is because I had hoped, I still do hope, and I’m sure this will happen at some point, that I can engage with that very imminent human rights administrative and international lawyer, Sir Jeffrey Jowell. And we can talk about what I would then regard as what have been the successes and failures of international human rights law over the past, if you wish, a post Second World War period and in particular more recently. I’m going to make some illusions to that tonight. But that you’ll have to wait for the third part ‘cause this is a vast topic.

So let me begin by making a few general observations. What I’m talking about tonight is not international law per se, but international human rights law, and that’s only a subset. Because international law itself is a topic of an interesting conversation, and I do propose to talk about that more generally at another occasion. Because one of the things about international law, as opposed to international human rights law is that international law has itself a very dubious, it actually has a dubious pedigree. International law in many instances supported the Atlantic slave trade and also colonialism. There is a vast body of literature now which shows just how international law developed, as it were, through the colonial project. And one can go back to Grotius, who if you, South African lawyer would know well, 'cause he was central to Roman-Dutch law. But he was also very central to the development of international, as were others. And of course, he did work at one point for the Dutch East India company, and one can therefore draw a fairly clear inference as to what I’m trying to suggest in relation to the inextricable link between the colonial project and the development of international law at that time. But that for another topic. The truth was for many centuries, there was no international human rights law regime in place. And the first developments of that really took place as a result of the First World War, because certainly after the First World War, tentative attempts were made to establish a system of human rights law, particularly under the League of Nations.

Now, just to talk a little bit about that. In 1918, President Woodrow Wilson addressed congress, US Congress, and he spoke of his desire to create a world dedicated to justice and fair dealing. And he then developed what was called a 14 point programme, which include explicit rights to self-determination stated for nationalities seeking autonomy. And it is also true that Wilson’s plan, these 14 points formed the core of the Versailles Peace Treaty in 1919, which established the League of Nations. And out of the League of Nations, the International Labour Organisation, and that of course was a particularly important body which was formed in in 1919 to regulate conditions of labour. It exists today. It’s a vitally important body for all sorts of reasons. Now, the League, in fact, and it emerged out of the League of Nations, because the League of Nations wanted to protect worker rights. The goal of fair and humane conditions of labour form when women, men, and children were stated explicitly in the League Covenant and became central to the work of the International Labour Organisation, commonly known as ILO, which remains one of the most successful bodies, which is basically broadly under the umbrella of the United Nations. The problem with the League of Nations ever was multifaceted. It did do quite a lot of things, apart from worker rights. It did develop various documents to protect minority rights. But it had two fundamental problems. Firstly, a principial problem.

It was a failure to include a non-discrimination provision in the League Covenant. Prof. Cassese, one of the very distinguished national lawyers has written, “The Western great powers neither would nor could accept a principle that would have entrenched heavily on their discriminatory practises against citizens of other areas of the world, and would’ve ended up threatening even the similar practises they still tolerated with their own systems.” And he then puts in brackets, “I have in mind, of course, racial discrimination in the United States.” Talking of the United States, the United States never became a member of the League of Nations, a fatal problem. Why? Because the chairperson of the Senate Foreign Relations Committee, Henry Cabot Lodge had argued that this would constrain, if it did join, American foreign policy, and that they would also be obliged to provide assistance where there would be breaches of the League’s mandate, and everyone would then call on the United States of America, as indeed had happened in the latter part of the First World War. The other problem was, of course, in order to get any action at the League of Nations, you had to have unanimity before action could be taken. And the problem was in fact then exacerbated by virtue of the fact that Germany, and Japan, and Italy left the League of Nations prior to the Second World War. So here was a body which did try very hard to develop protections for national minorities, flights of workers, and generally speaking, to try to hold the peace in terms of the vision that had been developed by Woodrow Wilson in 1918. But for all of the reasons that I mentioned, it failed.

Very significantly, however, as the Second World War dawned, again, just sketching this briefly, a very influential publication emerged, because in 1939, H. G. Wells wrote to “The Times of London” arguing for discussion of the war aims, and he suggested that the League of Nations was a poor and ineffective outcome of that revolutionary proposal to ban, sorry, to banish armed conflict from the world and inaugurate a new life for mankind. Of course, that was slightly sexist language, but let’s leave that aside for the moment. It was 1939. And he then followed up by a further letter upending a declaration of rights to define the spirit in which our people are more or less consciously fighting, as well as to appeal very forcibly to every responsive spirit under the yoke of the obscurantist and totalitarian tyrannise with which we are presently in conflict. So what Wells was talking about was some form of human rights code, and this was developed into the World Declaration of Rights of Man distributed to over 300 editors in 48 countries. And in fact, there is of course a book by H. G. Wells, “What Are We Fighting For?” which essentially encapsulated that and was particularly influential. The declaration was included in this Penguin special distributed in 1940, “The Rights of Man: or, What Are We Fighting For?” And in a way, because he was influential, it did inculcate an interest in human rights which had never previously really taken place, particularly as a result of the failure, the ignominious failure of the League of Nations to promote any form of human rights protection.

Roll on a year or two, and as the horrors of the Second World War unfolded, the impetus for some form of international human rights law did continue. And this was given a great impetus by 1941, in a sense if you say following Wells, because in 1941, President Roosevelt famously proclaimed his annual State of the Union Address to Congress four essential freedom, human freedoms. Freedom of speech, freedom of worship, freedom from want, and freedom from fear. The speech also explained that freedom means supremacy of human rights everywhere. During the same year, Roosevelt and Churchill issued a joint declaration, known now as Atlantic Charter, which set out their vision for the post-World War world. The joint declaration stated that after the final destruction of Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want. Now, of course there was irony in this already because Churchill himself was pretty much still committed to the colonial project, which meant that what I think Roosevelt was talking about and what Churchill had in mind was somewhat different. But the point I’m trying to make is that during this period, finally after generations, the idea of a body of human rights, which would be incorporated into international human rights law, was at least underway. And obviously, that was given great impetus after the Second World War when the Nuremberg International Military Tribunal tried the major war criminals. It was also, of course, there were problems attached to that for all the reasons I advanced last week.

But what I would like to highlight for you is it wasn’t the only trial, and it wasn’t the only trial which focused attention on the need to essentially develop a principle of accountability, where egregious violations of human rights took place. And so the second set of trials, which I have already foreshadowed, took place as a result of the defeat of Japan, which effectively ended the Second World War as a global conflict. And what I wouldn’t mind, simply because I don’t know, you know, it’s less well known. I wanted at least to play a clip for you for a few minutes, which essentially explains what was going on there, and why this too, in some ways, was an important further step in the development of international human rights law. That is after Nuremberg came the Tokyo Trials, and let’s just have a look through this clip at what the Tokyo Trial had in mind.

CLIP BEGINS

• [Narrator] Following the Second World War, a number of trials were held in Germany by the Allied Nations to prosecute those Nazi leaders who had a role in the inhumane crimes of the Third Reich, and also had a role in waging the Second World War. High profile Nazis such as Hermann Goring, Albert Speer, Ernst Kaltenbrunner, and 21 others were subject to the trials. And following Nuremberg, it marked the beginning of the rebuilding of Germany and signalled the end of the Nazis, in a sense. However, as you may know, VE Day in Europe when the Germans offered surrender on the 8th of May, 1945, only stopped the war in Europe, and the conflict would continue in the Pacific against the Japanese. When V-J Day came around on the 15th of August, 1945, following Japan’s surrender, the Second World War came to a complete conclusion. However, what isn’t as well known is that similarly to the Nuremberg Trials, trials were held in Japan to try the leaders of the empire. In this video, we look at the International Military Tribunal for the Far East, also known as the Tokyo Trials. To support the channel, please make sure to subscribe.

• [Court Officer] That is complete the answer to which he says he did not complete on cross examination.

• [Narrator] The Tokyo War Crimes Tribunal was a military trial that began on April the 29th, 1946, and it aimed to try the leaders of the Japanese Empire for a number of different crimes. The first category, class A, was for joint conspiracy to start and wage a war. Class B crimes were for war crimes, and class C was for crimes against humanity, similar to these at Nuremberg. At these trials would be 11 countries, Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, the Soviet Union, the UK and America. All these countries provided judges and prosecutors for the court. The defence lawyers comprised of Japanese and also American lawyers. There would be 28 Japanese military and political leaders who were charged with 55 different counts, which encompassed the crimes laid out earlier. Inside these charges included accusations of waging aggressive wars, murdering civilians, war crimes committed against prisoners of war and inhabitants of occupied lands as well. The defendants included former prime ministers, members of the government, foreign ministers and military commanders or leaders. Upon the issue of the Potsdam Declaration, it was stated in July, 1945 that all war criminals will be tried and stern justice imposed upon them. The terms of reference for the war crimes trial was set out and issued in January, 1946. There was a disagreement initially between the countries about who should try the defendants and how they should do it. General Douglas MacArthur, the supreme commander of the Allied Powers intervened and decided to initiate the arrests, ordering the detainment of 39 suspects, most of them members of the former prime minister of Japan, General Hideki Tojo’s war cabinet. Tojo himself would try to commit suicide just before his arrest in September, 1945, shooting himself in the chest with a pistol but missing his heart. He would later be resuscitated by American medics and would recover before being placed on trial.

• [Court Officer] Now Mr. McGee, you don’t intend to imply that every Japanese officer and soldier in that area committed outrages of the kind you have described.

• [Narrator] The charter for the trials when it was set out initially was very similar to their Nuremberg trials, and after months of preparation, they were convened on the 29th of April, 1946, with the trials being held in the war ministry’s office in Tokyo. On May 3rd, the prosecution opened their case, charging the defendants with crimes against peace, war crimes and crimes against humanity. The trial would continue for more than two and a half years, and a huge amount of evidence would be presented. Over 400 witnesses would be heard, and almost 4500 pieces of evidence would be presented as well. The indictments laid out in front of the defendants accused them of a number of brutal war crimes, from murdering, maiming, and ill treating prisoners of war, to plundering public and private property, to destroying cities and towns without any justification, to even mass murder, rape, pillage, torture, and other barbaric cruelties against helpless and innocent people.

• And you have a duty to tell the truth and nothing but the truth.

• [Narrator] It will take the prosecution 192 days to present their case. The defendants were represented by over 100 lawyers or attorneys, with roughly 75% of these being Japanese, with the other quarter being American. The defence would open their case on January the 27th, 1947, and it would take 225 days to present their case. The defence argued that the trial was biassed and was never impartial due to the fact it was the enemies of Japan trying the defendants. They also challenged the charges and argued that crimes against peace, and more specifically conspiracy to commit an aggressive war hadn’t been established in international law. Basically saying that the defendants were being tried for violating laws that hadn’t existed when the crimes were being committed. The defence also poked attention towards allied violations of international law and war crimes and argued that they should be examined as well, trying to deflect the attention from the Japanese. Another argument that emerged was that Japan had no choice but to go to war, as they were acting in self-defense.

• Took me seven days to work 120 kilometres. What food we received, we received from Filipinos who would throw the food to us, and the men would break out ranks and run into the fields and gardens and get sugarcane stalks, and Philippine vegetable called singkamas. We were treated throughout the march by the Japanese very badly. We were beaten. The men were bayoneted, stabbed. They were kicked with their hard nail boots. Five, including my real close friend, Staff Sergeant OC Jones fell off to the side. He was immediately bayoneted and beaten. My friend Sergeant Jones had a severe case of dysentery caused from drinking the muddy, terrible water. Off to the rear of the column due to this case of dysentery. He was bayoneted several times and beaten. Yes, I did, I saw many dead men, many of whom were my friends. I also saw two dead women, one of them who was pregnant.

• [Narrator] Following the conclusion of the defence, the judges would spend the next 15 months reaching their judgments and deliberating on the sentences. The reading of the judgement and sentences would last from December 4th to the 12th, 1948, more than two and a half years after the trial began. Five of the judges representing their nations would feed back, with the other six releasing their opinions outside of the court. Now, with regards to sentencing, there’s a number of different things to consider. Firstly, one, defendant Shumei Okawa, a right wing writer was found mentally unfit for trial. Also, two defence had died from natural causes throughout the length of the trial. Six defendants were sentenced to death by hanging for war crimes, crimes against humanity, and crimes against peace. These consisted of prime minister and foreign minister Koki Hirota, Kenji Doihara, the chief of the intelligence services, General Hideki Tojo, who we mentioned earlier, and other members of the army leadership. These six were found guilty of all three of the classes of charges. Another defendant was sentenced to death by hanging for being found guilty of war crimes and crimes against humanity, the class B and class C charges. This was General Iwane Matsui, the commander of the Shanghai Expeditionary Force who captured Nanjing and later massacred and tortured the population. These defendants were executed in prison on December 23rd, 1948. 16 defendants were sentenced to life imprisonment. This made up of many different members of the war government. For example, prime ministers, war ministers, naval ministers, and part of the Japanese war hierarchy. Three of these would die in prison, and the 13 others would later be paroled. Interestingly, one of the foreign ministers which would be sentenced would later serve as the deputy prime minister in the post-war Japan.

Much like the Nuremberg trials, the Tokyo Trials were seen as the flagship trials. Following these, many other trials occurred inside Japan in which lower ranking personnel and officers would be charged with war crimes. These would be overseen by the nations mentioned earlier. Around 5,700 people would be tried in these. Almost 1000 would be sentenced to death, with the majority being given prison terms. One interesting concept though was the issue of Emperor Hirohito’s responsibility in the war crimes. During the Second World War, he was portrayed equally alongside Hitler as one of the three Axis dictators. However, some argue that he was in fact a powerless figure, and some historians also suggest that he had more power than is thought, but we’ll save this for another video. So much like Nuremberg, many of the accused at Tokyo met their end at the gallows. What is interesting though is that the Nuremberg trials are much more widely remembered than the Tokyo ones in which the Japanese war criminals were tried. It’s definitely an interesting subject, and at a later date, we’ll look at each individual defendant and consider their crimes and verdicts. Once again, thank you for watching. To support our channel, please make sure to subscribe.

CLIP ENDS

• Thanks very much, Emily. It is interesting, isn’t it not, that last question, that the trials, I mean, I wonder if I was sitting in the classroom now, I’d ask you all to put up your hands and say, how many of you know about the Tokyo Trials? And it’s an interesting question that the Tokyo Trials definitely had less traction in the world than did the Nuremberg trials. And there were huge levels of controversy with regard to it because of the fact that Hirohito got off. Albeit as the documentary which I’ve just shown you indicates, the fact was that he was regarded in the same way as Hitler was, given the way that Japan had prosecuted the war. And there’s a great deal of debate that it suited America to put a lot of pressure on Douglas MacArthur, who was really running the Japanese show at that time, to get the stuff out of the way, so that Japan could really be reabsorbed into, if you want, the Western sphere. And it therefore does raise a whole range of questions, which vex us in relation to international human rights law as to whether in fact these sorts of trials only occur as a result of victor’s justice. And then to what extent principial positions of, as it were, imposing the law without fear and favour, as opposed to various political considerations which vex these trials takes place.

They’re all rather interesting questions, and as I said, third part of our presentations, I wanted to turn to that. For those of you interested, by the way, in the Tokyo Trials, there’s a four-part series called the “Tokyo Trials,” a mini-series of four parts. I think it’s on Netflix. It’s certainly available. And I think it came out in about 2017. And I strongly would suggest, if you’re interested, it gives a really interesting and really a very accurate portrayal of both the political and legal influences. And another feature which is important in that case, and which I wanted to highlight, was the different approaches of judges who came from different countries, particularly the Indian judge saw things very differently to, for example, the Australian judge and for all sorts of different reasons. So what the trial raised as well were a whole host of cultural questions which influence legal analysis, which in turn influence outcomes, and we’ll return to that presently. But just to move on to my conspectus on international human rights law. Of course, it’s absolutely correct to say that after the Second World War, the impetus was there to do something, to do what Roosevelt, and to an extent, Churchill had promised. To do what H. G. Wells had published back some years earlier. And as I indicated, what occurred centrally as a result of this was the development of international human rights law, which began unquestionably by the adoption in 1948 of the Universal Declaration of Human Rights. And that in itself then spawned further international human rights documents. I particularly have in mind the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, which were particularly important, together with a series of further conventions which emerged internationally. I’ll mention as well a series of regional and local, sorry, of national documents which emerged there from.

But perhaps at this point it’d be interesting, and I hope you’ll find this instructive, for me to play my second and last clip, which just is a background to this remarkable achievement in 1948 of actually getting a Universal Declaration of Human Rights passed. And what you will see in the clip are some of the dramatis personae, the foreign minister of Australia, who played a particularly important role. The Lebanese diplomat who became the president of the General Assembly. And of course in Western law, Eleanor Roosevelt, who was very, very important in the drafting and finally of the getting through of the Universal Declaration of Human Rights. And I would hope that you would find this clip helpful in giving context to what we’re talking about. Emily, the second clip.

CLIP BEGINS

• Where, after all, do universal human rights begin?

• [Narrator] After World War II, it was clear that the horrors of the war should never be allowed to occur again. Founded in 1945, the United Nations sought to prevent future atrocities by affirming in its foundational charter faith in fundamental human rights, the dignity and worth of the human person, and a commitment to promote better standards of life in larger freedom. In the years that followed, member states of the United Nations strived to develop the human rights provisions of the charter and capture them in a single document. It took three years to agree on a common vision. On the 10th of December, 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations.

• [Evatt] Still, it is the first step in a great evolutionary process. It is the first occasion on which the organised community of nations has made a declaration of human rights and fundamental freedoms, and it has the authority of the body of opinion of the United Nations as a whole. And millions of people, men and women and children all over the world will turn for hope and guidance and inspiration to this document.

• [Malik] While history alone can determine the historic significance of an event, it is safe to say that the declaration before us may be destined to occupy an honourable place in the procession of positive landmarks in human history.

• [Narrator] The declaration consists of a preamble and 30 articles, with Article 1 powerfully proclaiming that “All human beings are born free and equal in dignity and rights. No discrimination, right to life, liberty and security. No slavery. No torture or cruel, inhuman, or degrading treatment or punishment. Equal protection of the law. No arbitrary arrest, detention or exile. Fair and public hearing. No arbitrary interference with privacy. Right to freedom of movement. Right to seek and enjoy asylum. Right to a nationality. Right to marry and to found a family. Right to property. Freedom of thought, conscience and religion. Freedom of opinion and expression. Freedom of peaceful assembly and association. Right to take part in government. Right to work. Right to rest and leisure. Right to food, clothing, housing, medical care and social services. Right to education. Right to participate in cultural life.”

• [Hussein] These human rights are not country specific. They are not a reward for good behaviour, or particular to a certain era or social group. They are the rights of people of every colour, from every race and ethnic group, whether or not they have disabilities, citizens or migrants, no matter their sex, their class, their cast, their creed, their age, or sexual orientation.

• [Narrator] The declaration has generated action for human rights protection in many ways. It has inspired hundreds of human rights instruments that together constitute international human rights law, and a number of international bodies and mechanisms for human rights protection. The principles of the declaration have supported the decolonization struggle, and have been enshrined in the constitutions of the newly established countries which have joined the United Nations. The declaration has inspired national and regional human rights protection systems, including legislation and institutions, and it continues to guide the work of human rights defenders and advocates worldwide. Today, the declaration is available in more than 500 languages and dialects, and it has obtained the Guinness World Record for the most translated document in the world. The 10th of December, the day on which the declaration was adopted is celebrated each year as Human Rights Day. The declaration emphasises the relevance of human rights in our daily lives.

• [Eleanor] Where, after all, do universal human rights begin? In small places, close to home, so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person, the neighbourhood he lives in, the school or college he attends, the factory, farm or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.“

CLIP ENDS

• Thank you. Thanks, Emily. I want to make four points, if I may, in relation to this. The first, of course, is just to pick up on a point that Eleanor Roosevelt is quoted, and I’ll say she was so important in this. What an extraordinary woman. One of my joys perhaps of teaching at NYU was I had friends in the building that I used to visit very often, and that was the building where Eleanor Roosevelt lived for many years. Just an extraordinary human being. But she makes the point about, where do human rights begin? Where do you influence them and how you start. I know I’m going to probably get a lot of questions and rightly so, and we will deal with that particularly in the third part of the series about the failures of international human rights law. But as I read what she had to say about the idea that it starts in small ways, I thought to myself of the famous statement of the Chofetz Chaim who engaged many, many hundreds of years earlier with a not dissimilar problem. But how do you change the world? And he said in a famous statement that when he wanted to change the world, he started off by seeking to change the whole of Poland. And he realised that that was too immense a task. So he then turned his attention to changing his town, a town in which he lived. But of course that too was too enormous a task. And so he said, "I then turned to my street and thought, well, where do I begin? Will I begin with my family,” he said. And ultimately he said, “Well, where do I begin within my family? I have to begin with myself.”

It’s a very famous statement of the Chofetz Chaim. And it seems to me that’s precisely the point that the traction of human rights is not necessarily that it succeeds in an international context on a day by day basis, but that it did in fact provide a discourse, a framework by which we at least could know what the content would be of a cosmopolitan society in which rights would transcend the differences of race, gender, religion et al. So, that’s my first point. The second, observe the nature of the rights that are contained in the United Nations Declaration of Human Rights. And in effect, it’s an incredibly far-reaching document for a particular reason, and that reason is that it encapsulates, if you’d just, you know, follow the content as the clip went. It encapsulates what we lawyers call the three generations of human rights, which thanks to the Universal Declaration of Human Rights essentially got incorporated into the body of human rights. The first, of course, and if I can just say, the three generations of human rights follow that famous cry of the French Revolution, “Liberte, equalite and fraternite.” That is the whole idea of freedom, equality, and if you wish, solidarity. And first generation human rights, which are encapsulated there are, if you wish, civil and political rights.

The political rights to participate politically in the developments in your country. Freedom of speech, freedom of organisation, freedom of movement. Essentially basic civil and political rights, the absence of which you cannot possibly classify a country as being democratic. Then there was a second generation of rights, and you’ll have seen those two, the rights to work, the right to food, the right to shelter, the right to the basic rudiments of a decent level of living, obligations which were therefore placed upon, if you wish, the state, or if you wish, more internationally, in order to provide any individual with something more than just political rights. I’m reminded whenever I teach this of something that my esteemed friend, in my view, the most distinguished public lawyer that South Africa ever produced, Prof. Etienne Mureinik, remarkable human being whose memory should be blessed. And I remember when we were discussing these question of rights for the South African constitution, and a lot of the sort of libertarian types and traditional liberals essentially eschewed the idea of second generation rights, of these rights, socioeconomic rights. And Prof. Mureinik said to them, “So I see your conception of democracy for South Africa is that everybody should be able to vote, even those people who are in the veldt without any roof over their heads, with no food and no water and no ability to even get to a polling station. Is that your conception of democracy?” That’s a very powerful point, and the point being that what the United Nation Decoration of Human Rights foreshadowed was the notion that we had to develop beyond the political rights. Agreed, we had to start there, but we had to develop beyond. And then there were rights of the collective rights, which in the modern era really are encapsulated most by environmental rights. And how important are those in the 21st century when we’re rapidly destroying our planet, or at least jeopardising the long-term future of our children, grandchildren, and great-grandchildren.

So the second point I wanted to make was that international human rights in a sense foreshadowed in United National Declaration of Human Rights sought to have all three of those. And following from that, and I’ll just, if I can move from international human rights just for a moment to the influences thereof. I know again, as was said in the clip, all of these countries that then developed their own constitutions, many of whom honour them in the breach, rather than the compliance. But the reality was that certainly from the fall of the Soviet Union, and the exponential increase in countries embracing written constitutions, one found in many of those constitutions the containing of all three of these generations of rights. Many of them still honoured in the breach rather than the compliance, but the fact that they were there, the fact that people at least can use these as an anchor for demands for greater acts of citizenship is not something that should be totally discounted, and was an important feature in the development of a body of law which had remained nascent until post the Second World War, albeit the attempts as I sketched of earlier times. So, the next point I want to make is of course the fact that a whole host of international instruments followed, and I’ll perhaps ask too quick just to talk about the International Covenant on Civil and Political Rights and International Covenant on Social and Economic Rights, which took place in the 60s.

But the truth is that the first treaty, which flowed out of the United Nation’s declaration was in 1948, the Convention on the Prevention and Punishment of the Crime of Genocide, which of course had addressed the most immediate past experiences of the Nazi holocaust. And which essentially, to a considerable extent, reflected the word of Raphael Lemkin, who we had met in last week’s lecture. And then we got in 1965, the International Convention on the Elimination of All Forms of Racial Discrimination, which then followed the political covenant and the economic and social covenants in 1966. And of course, that wasn’t the end of it because we then found further conventions, the Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW adopted in 1979. Admittedly, like so many of these, still honoured more in the breach than the compliance, but at least it was adopted. And then the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment and Punishment in 1984. The Convention on the Rights of the Child in 1989. And the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in 1990. And the Convention on the Rights of Persons with Disabilities in 2006.

So what I’m trying to say to you is if you look at this body of law, you’ll see that out of the Second World War came a range of international instruments which began to put flesh on the skeletal ideas of an international human rights covenant. And of course, I’ve omitted from those various treaties that are entered into between countries, regional human rights instruments, in particular within Europe, et cetera, and even we have one in the African charter, and there are ones as well in relation to the organisation of American States. That all took place as well. And so what I’m trying to suggest is that unquestionably, what we didn’t have before the Second World War, we now do have that body. How effective it is is an entirely, not a separate question, but a question which of course requires far more treatment. And that is why I wanted to suggest to you that a separate, entirely separate lecture, and I’d like to engage with, in my view, one of the world’s foremost thinkers on this topic. For me, it’ll be a privilege to engage with the Sir Jeffrey and we’ll talk about these issues. But I do think there are one or two other issues that emerge out of all of this. If I can return to the failure of the League of Nations, and one of the problems which the League of Nations followed, and which has dogged international human rights from the beginning, of course, are the various political interests of nation states, which in many ways are at war with the cosmopolitan vision of International Human Rights Law. For example, 20 years after the adoption of the Universal Declaration of Human Rights, the first International Conference on Human Rights was held in 1968 in Teheran, that I might add. And here of course this is in the context of the Cold War.

Very little consensus was achieved. Then the second conference took place in Vienna '93. The Cold War had come to an end, the genocide in Bosnia and Herzegovina was unfolding. And here 171 heads of state and government met and adopted the Vienna Declaration and Programme of Action, reaffirming that all rights are universal, indivisible and independent. Several resolutions adopted there were subsequently implemented, including various optional protocols to the Charter for Women, and the establishment of office of the international, of the United Nations High Commissioner for Human Rights, which began in 1994. But even then, even then, the truth is that you can’t get agreement on these issues not only in their entirety. The question which we want to pose for the next lecture’s why and what solutions are there to the problem? Let me then turn, if I may, to one final issue for this evening’s lecturer, which of course is the failure of the League of Nations. I mentioned to you that the League of Nations was always under peril because notwithstanding that a central visionary in all of this was Woodrow Wilson. The fact was that America, thanks to people like Henry Cabot Lodge, just did not essentially sign on. And that meant that, you know, the country that emerged out of the First World War in this immensely powerful position was not part of it. And then of course, you had to have unanimous agreement, and then certain countries left. The United Nations, of course, you don’t have to act unanimously, but we all know thanks to the Security Council that there are vetoes to give to the five permanent members of the Security Council.

And as a result of which even if they’re not unanimity, the problem still persists. So if you take, for example, the war in Ukraine, United Nations not withstanding the rogue attempts of the Secretary General of the United Nations, Guterres, doesn’t really amount to very much. That’s the first problem. And the second problem is, of course, you have to have a buy-in from countries. And what really worries me about that is obviously you’re not going to get significant buy-in to international human rights from China and Russia. But one worries that if Donald Trump becomes the President of the United States again, after having listened yet again to his CNN Town Hall yesterday, one has to really worry to what extent United States of America will be an advocate of international human rights law, and of international instruments if Donald Trump takes over the presidency. And so if we look at the collapse of the League of Nations in the 1930s, so many of these conditions seem to still be startlingly present now, that I think they are the subject of a great deal of anxiety.

However, let me not end on a negative note. Let me say to you from a point of some positivity that this lecture was designed to show you how out of the horrors of the Holocaust, and of what occurred in Tokyo, sorry, in Japan, and the war that they pursued, not only were there trials, and with all the failure of those trials, what emerged out of that were firstly prohibitions against war crimes, crimes against humanity and genocide. And more than that, a positive vision, which essentially emerged out of the 1948 United Nations Declaration of Human Rights, which still to this day, even though it’s a promotion of the United Nations, still to this day is really a starting point for the drafting of a constitution, which ultimately will promote some measure of democratic governance. And if it doesn’t do that, at least it does this, that we’ve now got a standard set of yardsticks by which we can judge our governments and in fact use our citizenship to, as it were, at least in part, vindicate those rights. And that’s not a small measure, nor is it one that we should discard as being of no use at all. How much use it is, to what extent improvements can be made, you’ll have to wait for our third lecture. Let me take questions now before wishing you well, since we’re running out time. Let’s see.

Q&A and Comments:

Q: “Is it realistic,” says Arlene, “That the world can come together humanitarian, peaceful and self-interest and base instincts seem to rule humans?”

A: You’re dead right, Arlene, I think that is the great anxiety. You know, this attempt at some cosmopolitan vision, I mean, of course you can go to the Bible if you wish. In fact, if you’re Jewish, in this particular you’ve got the vision what social justice means for Judaism. The whole idea of what, you know, of tempering private property relations, of dealing with dignity with workers, with neighbours. The sabbatical year, the jubilee year, it’s all there. But of course it’s true that cultural distinctions can be exploited, opportunist exploited, and I’m with you that we haven’t got the full stuff for a cosmopolitan vision. All I was humbly arguing with that we’re a lot better off than we were when we had none of this.

Q: Susan says, “How is it that we know so little about the Nuremberg trials, first I’ve heard,” sorry, of the Tokyo trials.

A: That’s a really good question and I’ll try to answer it to some extent. And it’s a pity it’s the first you’ve heard of it, which is why I would really urge you to have a look at the Netflix series. It’s really very instructive and it might help answer that question.

Q: Barry asks me, “Would it have been useful to put Robert Mugabe on trial in absenstia for the crimes he committed against the people of Zimbabwe?”

A: Yes, I do think that some of these people, and Mugabe was a shocker. What happened in the 1980s to start with, absolutely shocking breaches of crimes against humanity and indeed genocide. And the problem is, well, you just look at that, South Africa after 1994 flatly refused to do anything in relation to Zimbabwe. I suppose I wasn’t entirely surprised given the information that we now find today that South Africa may have, certain Americans are alleging, supplied arms to Russia. And it does require commitments of governments to ensure this has happened. But had it happened, Barry, I think that would’ve been an important step.

Thank you, Rita. There are, of course, human rights are imbued with limitations. I don’t deny that. And of course, they’re imbued with limitations, if I can just make a legal point that if you look at constitutions of the world, say for the United States one, which is very old, modern constitutions always have limitations and rights, because of course the state may, under justifiable circumstances, limit our rights. But at least it then brings in a culture of justification that you have to have a legal justification for limiting rights. I know the Soviet Union didn’t, it did at the time and then of course has not followed at all the United Nations.

The document was amended, Mark. Of course by expansion, various protocols, but mainly not through its own core, but through the various other documents that have spawned, as I’ve indicated to you.

Jonah says, “As I see it, United Declaration not a reality law. But the self styled rights are merely principles and no special actions are required nor enforcement. If a country does not sign onto it, any law derived from the declaration simply doesn’t apply. Hence, universal self congratulation process of creating it, as you described, bears considerable similarity of the blind man and the elephant.”

Well no, of course you are right that the International Declaration of Human Rights did not have the sort of enforcement mechanism that it should have had. And part of that relates to the very weakness of the mechanism of the United Nations, as I’ve indicated to you. But I think it would be wrong, and I think where you’re wrong is just to dismiss it as a chimaera because it did, your own statement, which suggests that it contained principles, those principles have been translated into law through regional instruments, treaties, and national conventions, national constitutions. And in a sense more than that still remain a yardstick by which to evaluate conduct, and I don’t think that’s too small a measure, right?

Yes, General MacArthur influenced the Tokyo trials, but in fact, I think he would’ve preferred Hirohito to have basically got the rope, but he was constrained by Washington. Yes, of course Putin and Trump will ignore human rights, that’s exactly the problem. But United States committed to the human rights discourse, which will not occur with Donald Trump, is not an unimportant feature, not just for Americans, which it is, but for the rest of the world, which is why we’re also anxious about what’ll happen in 2024. The problem is you can be a signatory, Jonah, to the treaty, but again, there’s no mechanism itself. There are mechanisms if you signed up to the Rome Treaty, as I’ve indicated last week. But even then as we’ve seen in relation to South Africa, which essentially did very little, in fact did nothing about Omar al-Bashir, other than to secrete him out of the country when he was being wanted, when there was a warrant after his arrest, so that he could be ended accountable by the International Criminal Court. Even then South Africa did nothing. So there’s very little one can do about that.

So that basically are the questions I’ve got. Thank you very much for listening. We will have the third session, and I will do a further session on international law and the point that I foreshadowed, its role in the colonial world, and its very, very complex pedigree, but that for another time. Goodnight.