Towards the construction of a universal conception of fundamental rights in the 20th century

Towards the construction of a universal conception of fundamental rights in the 20th century

Données clés

Professeur(s)	Victor Monnier
Cours	Introduction to law

Lectures

• The definition of law
• The State
• The different branches of law
• The sources of law
• The great formative traditions of law
• The elements of the legal relationship
• The application of law
• The implementation of a law
• The evolution of Switzerland from its origins to the 20th century
• Switzerland's domestic legal framework
• Switzerland's state structure, political system and neutrality
• The evolution of international relations from the end of the 19th century to the middle of the 20th century
• The universal organizations
• European organisations and their relations with Switzerland
• Categories and generations of fundamental rights
• The origins of fundamental rights
• Declarations of rights at the end of the 18th century
• Towards the construction of a universal conception of fundamental rights in the 20th century

Fundamental rights will be extended through the French Revolution and the ideals it conveys throughout Europe.

With the Revolution, the law became the expression of the general will. This law in the spirit of the time, since it is now the emanation of the people by their representatives, cannot be oppressive, it can only go in the direction of freedom.

In the 20th century, the law will produce the instruments of totalitarianism...

Languages

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Peace treaties: 1919 - 1920

Europe is coming out of the war bloodless, the winners of the Entente led by President Wilson are determined to establish a genuine international order on solid foundations and legal foundations.

Basically, the peace treaties, in some respects, take into account for the first time at the international level fundamental rights, particularly with regard to minorities.

With the defeat of the central empires (Germany, Austria-Hungary, Ottoman Empire), the case of minorities will become a central issue with regard to the protection of their fundamental rights. The recomposition by the victors of new nation-states will exalt a wave of independence.

We are going to recreate a Europe, but this operation by establishing new nations there carries risks. These new States are made up of heterogeneous populations that do not share the same languages, cultures, religions and origins. Therefore, their fate poses some uncertainties.

In order to avoid any danger of confrontation, the authors of peace treaties establish a system of protection aimed at preventing new States from abusing their power to the detriment of minorities.

Articles 86 and 93 of the Treaty of Versailles specify that for the Czechoslovak State and Poland to accept the provisions that the Allied Powers consider necessary to protect the interests of minorities.

These provisions will be implemented in the treaties that recognize Poland and the protection of minorities signed in Versailles on 26 June 1919, and the 1919 treaty signed in Saint-Germain-en-Laye for the protection of minorities and the recognition of Czechoslovakia.

Thus, these provisions concerning Poland are similar for Czechoslovakia and outline a first outline of what will be a fundamental protection of human rights.

Obviously, this guarantee system set up by the League of Nations, like the entire system, is the foundation of collective security.

However, the important thing is to note that a first approach at the international level is being attempted in the treaties resulting from the First World War.

Totalitarianism in the 20th century

We cannot understand the major international texts, in particular the Universal Declaration of Human Rights adopted in 1948 or the European Convention on Human Rights of 1950, without dwelling on the totalitarianisms that will strike Europe in the interwar period, precipitating the world into the tragedy of the Second World War.

Totalitarianism is an apology for a race, considering that the individual exists only in relation to a race. They believe that the individual is at the service of the State, which ensures the individual the right to life and death. With totalitarianism, individualism no longer exists. From now on, the individual must obey the State.

It is necessary to understand how totalitarianisms have taken root in Europe; each of the following dictators has come to power legally.

• Mussolini: after the fascists' march on Rome, the king appointed Benito Mussolini as President of the Council with the agreement of Parliament on 30 October 1922.
• Hitler: appointed Chancellor in 1933 with the approval of Parliament.
• Pétain: Faced with the German invasion of France, the French Parliament granted him on July 10, 1940, the constituent power that would allow him to rule the territory in an almost dictatorial manner during the years of occupation.

Once in power, they will obtain full powers from Parliament, giving them almost dictatorial power within their states. For example, Mussolini obtained extended legislative power from Parliament on 31 January 1926. No law may be presented to the Italian Parliament without its consent. On the other hand, Parliament authorizes it to legislate by decrees. Thus, Parliament is removing its powers in favour of the dictator.

Regimes are created in which the State holds a monopoly on all structures of society with control over information and the press. Totalitarian regimes are based on a single party and omnipresent police and repressive apparatus.

The laws perfectly reveal the totalitarian and racist nature of these legislations, emptying their substance of the constitutions of these countries which were of liberal inspiration, the result of two centuries of evolution as was the German Weimar Constitution of 1919, the Italian Constitution of 1848 (il statuto libertino) or the French Constitution of the third republic of 1875.

The constitutional recognition of fundamental rights from the end of the Second World War and its internationalisation

In the aftermath of the Second World War and after the discovery of atrocities committed by totalitarian regimes, European public opinion became aware of the need to promote a true universal conception of human rights. This awareness of the monstrosities committed will play a decisive role in the international community's construction of a universal conception of Human Rights and Fundamental Rights.

The 1948 Universal Declaration of Human Rights

The European conception of human rights marks the culmination of a Western tradition of defending human rights which has taken the form of a declaration of rights process. It was essential to proclaim these Human Rights. After the disastrous experience of totalitarianism, this was no longer enough, it is now a question of declaring them, but also of guaranteeing them, and for this to happen, these fundamental rights must be invoked before a court that can determine whether or not there is a violation or not of the fundamental rights that may even lead to punishment.

Thus, in Europe most constitutions have included a judicial mechanism to guarantee these fundamental rights. We are moving from a process of declaring rights to a process of guaranteeing rights that is first developed at the national level.

The Universal Declaration of Human Rights dates back to 1948 and aims to promote a universal conception of fundamental rights. For most European nations, this promotion of human rights is done at the international level. It proclaims them universally (all member nations of the United Nations that have subscribed to them), but does not guarantee them. This text does not provide for judicial bodies.

On the other hand, the European Convention on Human Rights provides at the regional level for a guarantee mechanism to sanction violations of fundamental rights.

This convention is the beginning of an international conception of fundamental rights by declaring them at the global level.

The guarantee mechanism of the European Convention was established in the 1948 declaration.

The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms

The guarantee mechanism of the European Convention originated in the 1948 declaration marking the evolution of fundamental rights proclaimed at the end of the 19th century and the beginning of the 20th century.

This famous European constitution manifests itself, as do the constitutions of European countries, but also establishes a judicial system that guarantees the rights it proclaims. This European Convention establishes a court to punish violations. Therefore, if there is a judicial mechanism to guarantee these fundamental rights, it is not a coincidence, but a reflection of what has happened at national level.

By guaranteeing human rights, it marks the end of an internal process in constitutional law.

Thus, this regional convention marks the beginning of a recognition and guarantee of human rights not only at the national level, but also at the international level.

The post-war constitutions of some European states

In France, a first constitution was drafted in 1946 and a second one in 1958. The preamble to the 1946 Constitution solemnly reaffirms the Human and Citizens' Rights that had been enshrined in the 1789 Constitution.

In the Italian Constitution of 1947, the fundamental rights are set out, which are then registered under the name of "citizen's right and duty".

The German constitution also highlights these fundamental rights.

These three countries always have in mind the calamitous experience of totalitarianism. They are aware of the dramatic experience of totalitarianism in their countries reaffirming fundamental rights, but establish a means to avoid repeating the mistakes of the past through a constitutionality check, which can be defined as the fact of noting by an appropriate body (Constitutional Committee in the 1948 French Constitution and then the Constitutional Council : in Italy it is the Constitutional Court ; in Germany the Federal Constitutional Court) that a legal act issued by a public authority has been taken or not in breach of the Constitution. If there is a violation, the act issued is devoid of any legal force, as provided for in Article 19 of the German Constitution "anyone whose rights are infringed by the public authorities.... ». Consequently, recourse is possible before a specialized body whose mission is to verify state acts, it may be for the legislature a law as was the case with the laws adopted by the parliaments of totalitarian regimes, if they violate freedoms are broken.

It is therefore important to have protection against Parliament, which can, under certain conditions, draft freedom laws. The power to "do everything" does not give the right to "do everything". The constitutionality review implies a restriction of the sovereignty of the people since the law which is the expression of it, namely that of the general will, is subject to the control of the judge.

The French have found a striking shortcut that limits power by limiting Parliament's influence while respecting the constitution. The constitutional judge must confine himself to regulating the legislative course without claiming to replace the representatives of the people. The judge must only intervene if there is a flagrant violation of fundamental rights and must not interfere in the process of legislation emanating from the popular representation violating the principle of separation of powers.

The law cannot do everything, it reflects the general will, but must above all respect the Constitution, which proclaims fundamental rights. With constitutionality review, there is an effective instrument to guarantee fundamental rights at the national level.

The French declaration of human rights, article 6, specifies that the law is the expression of the general will in opposition to the law of the Ancien Régime emanating from the sovereign, namely the king. With this notion of law described in 1789, which is no longer the expression of the monarch, from then on, emanating from the general will can no longer be oppressive.

However, the experiences of the 20th century have made it clear that the representative of the people is not enough to protect and guarantee human rights. It took World War II to establish effective national judicial bodies to protect and guarantee fundamental rights. After the time of the law, it is now the coming of judges; it is up to them to say the law implying a restriction of the sovereignty of the people. The law is therefore subject to judicial control.

Annexes

• déclaration universelle des droits de l’homme de 1948
• Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales de 1950
• Verfassung des Deutschen Reiches (1919) (version originale)
• Constitution française de 1875, IIIe République
• Traité de Versailles (texte intégral)
• Vers un droit commun de l’humanité, Delmas-Marty, commentaire
• Université de Genève. “Introduction Aux Droits De L'Homme.” Coursera, https://www.coursera.org/learn/droits-de-lhomme.