University of Southern California Dissertations and Theses

The human rights program of the United Nations 1945-1955

(USC Thesis Other)

The human rights program of the United Nations 1945-1955

PDF

Download a page range

Download transcript

Copy asset link

Request this asset

Transcript (if available)

Content THE HU!Vl,AN RIGHTS PROGRAM OF 1 THE UNITED NATIONS 1945 - 1955 by Leo John Moser A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degre e Doctor of Philosophy (Political Science) June 1957 UNIVERSITY OF SOUTHERN CALIFORNIA GRADUATE SCHOOL UNIVERSITY PARK LOS ANGELES 7 This dissertation, written by Leo John M oser ·---------------~------------------------------------------ ------------------------- under the direction of_hisGuidance Committee, and approved by all its members, has been pre sented to and accepted by the Faculty of the Graduate School, in partial fulfilln1ent of the requirements for the degree of DOCTOR OF PHILOSOPHY Date .. ~~-~~-~=-. ~-J,,l,J zazrman ~ ······:::: J . . . -•-. :I Chapter I. II. III. TABLE OF CONTENTS TOPIC AND SCOPE OF STUDY •••.•••.••• The Topic Statement of the topic Importance of the study Scope of Study Aspects to be covered Period under consideration "Human rights" defined for the purpose of this study "United Nations" defined for the purpose of this study Source Material Utilized in this Study INTERNATIONAL GUARANTEES OF HUMAN RIGHTS PRIOR TO THE UNITED NATIONS ••.... • • • Human Rights Before the League of Nations Human Rights Under the League of Nations System Human rights and the Covenant of the League Human rights and the Minorities Treaties Human rights and the Mandates System Conclusions HUMAN RIGHTS IN THE UNITED NA TIONS CHARTER Projects During the Second World W ar Period Human rights as a war aim Human rights in post-war plans San Francisco Conference Proposals Final Charter Provisions on Human Rights Legal Effects of the Charter Provisions Summary and Conclusions • • IV. WAR CRIMES, INTERNA'l'I ONAL CRIM INALI 'rY AND HUMAN RI G HTS • . • • • • • . • • • • • • • • Pag e 1 8 34 64 Chapter v. VI. VII. VIII . The Crime Against Humanity International Law and the Individual Movement for an International Criminal Jurisdiction Conclusions THE UNIVERSAL DECLARATION OF HUMAN · rGHTS •• Purpose and History of the Declaration Significance of the Universal Declara tion Legal effect Extra-legal effect THE GENOCIDE CONVENT ON •. • • • • • • • • • Drafting the Convention Content of the Completed Convention The Attack on the Convention Conclusions THE COVENANTS ON HUMAN IG TS, IR T PHASE • Purpose of the Covenants Drafting the Early Covenant Division into Two Covenants The issue of one or two covenants The decision to create two covenants Reaction Against the Covenants as Treaties The covenants and rights guaranteed in domestic law The covenants and federalism The covenants as "alien ideology" T COVENANTS ON HUMAN RIGHTS : SE COND PHASE. • • • • • • • • • • • • • • • Official American Position on the Covenants after 1952 • • • Completion of the Draft Covenants Measures of Implementation Implementation of civil and political rights Implementation of economic nd social rights iv Page 78 96 109 145 Chapter IX. x. OTHER HUMAN RIGHTS EFFORT S OF THE UNITED NATIONS. . . . . . . . . . . . . . . . • • Minority Protection The validity of the pre-war Minorities Treaties after World W ar II The approach of the United ations to the problem of minority protection The Sub-Commission on Prevention of Discrimination and Protection of Minorities Status of Women Protection of Dependent Peoples In trust territories In other non-self- governing terri- tories Freedom of Information Anti-Slavery Efforts Efforts of 'pecialized Organizations Rights of refugees Human Rights and the International Labor Organization (ILO) Human Rights and other specialized agencies of the United N tions Efforts through Regional Organizations The Organization of America n States The Council of Europe The "Action Program" Proposals Technical assistance in the field of human rights Annual reports on Human Rights Studies of specific as pects of human rights Conclusions INTERNATIONAL POLITICS AND HUMAN RIGHTS ••• H uman Ri 0 hts as an I nternational Politi cal Issue Human Rights and Cold ar ropaganda Human Ri ghts as a Legitimate Element of National Interest Idealistic views Realistic views Conclusions V Page 175 245 Chapter XI. XII. THE FU URE OF THE HUMAN RIGH TS PROGRAM OF THE UNITED NATIONS • • • • • • • . • • • • Problems of Interpretation Diversity of right s reco gnized by the various legal systems of the world Agencies of interpretation Agencies in existence Proposed agencies Problems of jurisdiction Sanctity of domestic jurisdiction The concept of sovereignty Individuals as subjects of interna- tional law Applicability in federal and colonial areas Problems of Content Specific vs. general r i ghts Political vs. economic and social rights Problem of Sanctions Present sanctions tndar domestic law Pressure of international public opinion Proposals for internationa l a gencies of enforcement SUM. MARY AND CONCLUSIONS. • • • • • • • • • • • BI B LIOGRAPHY •....... - . • • • • • • • • • • • vi Page 264 319 333 CHAPTER I - TOPIC AD SCOPE OF STUDY In the decade that follcwed the adoption of the Charter of the United Nations the international protection of human rights became a central issue before the United Nations and the world. At first, debate on the proper pro gram to be followed by the United Nations was almos total ly optimistic in tone, often verging upon the Utopian. But in the years that followed, there set in the almost in evitable reaction. The tenth anniversary of the United Nations found sentiment markedly divided. The spectrum of opinion ranged from those who retained their original optimism, through those who desired re-evaluation of t he program along more modest lines, to those who felt th pro gram endanger ed the very values that it had been created to protect. Exponents of each of these views have often c· ted the same facts and circumstances in order to arrive at quite different conclusions. There has existed, therefore, a need for a comprehensive analysis of the problems pre sented by the many forms that the Human Rights Program of the United Nati ons ha s taken . 2 The Topic Statement of the topic. It is the purpose of this study to synthesize the various aspects of the first ten years of the Human Rights Program of the United lations and to analyze the underlying legal, political, and philosophi cal problems. It is not the purpose of this study merely to discuss the content of the documents promulgated or proposed by the United Nations in this field. Importance of the study. The ten years that fol lowed the adoption of the Charter contained a great many problems that will continue to have a bearing on both American and international public policy. Several of these problems were closely related to the Human Rights Program, but had ramifications far beyond that Program itself. An example of such an issue was the treaty power question that arose in the United States, in which the Human Rights ro gram undoubtedly influenced Senator John w. Bricker to pro pose an amendment to the Constitution of the United States. It is clear that an understanding of the Human ights Pro gram of the United Nations will continue to be of great importance to anyone interested in the treaty power ques tion, in the formulation of public policy, in domestic or in ernational civil ri hts, or in other humanitarian pro- .rams associated with the United ations. This study will attempt to draw a comprehensive picture of the entire ro gram to meet the need for such an understanding. Scope of Study 3 Aspects to be covered. This study will encompass many diverse ramifications of the Human Rights Program of the United Nations including the several questions of inter national law raised by the Program, the problems of adequate international organization, the international political context of the period under consideration, and the social and cultural pro lems with which the Program was confronted. The study will also emphasize related omestic problems within the United States and especially cover the reaction against th~ Human Right s Program that began in certain America circles during this period. Period under consideration. This study covers the decade following the signing of the United ations Charter, i.e., f r om June 26, 1945 to June 26, 1955. However, since it is necessary tog in a historical context for the Pro gram, some attention will be given to relate international programs and mov ements prior tote s·gnin of the Charter. The only earlier perio that will be con°idered in any etail will be that durin which the League of at·ons was engaged in evolvi ~ proce ures for the international protec ion of the certain human ri hts under t e Mino ities 4 Treaties System. This took place during the years betv,een 1919 - -when the first such treaty was drafted--and 1934- when Poland repudiated any obligation she might have to co operate with the League in the protection of minorities within her boundaries. " Human l ights" defined for the purp se of this study . For the purpose of this study the term "human rights" will be held to encompass all rights and privileges which have been commonly referred to as human rights during discussions by the various organs and agencies of the United Nations. It will therefore include not only civil and political rights but also the so-called "economic and social rights . " Even beyond this extension of terminology, United Nations' usa ge has associated the erm uhuman rights" with other humanitarian pro .rams of t he organization. Since the term "human ri ghts" has been so commonly used beyond the ori inal juridi al context, it will be necessary for this study to begin with a definition as all-inclusive as that given above . Further delineation of the proper use of the term may be supplied during the course of this study. ''United Nations" defined for the purpose of this studx• As used in the title of this study, the term United Nations will be taken to apply primarily to the or anization crea ed by the San rancisco Charter--and to all of its 5 organs and their subsequently created subordinate bodies. Not to be excluded from some consideration, however, are the specialized or regional international organizations which have been in egrated with the United Nations pursuant to the Charter. Source Material Utilized in this Study The pri mary source of information to be used in any study of United Nations affairs would, of course, be the documents and publicat·ons of the United Nations itself. In this study, the documents most commonly relied upon will be those of the Economic and Social Council of the United Nations and its Commission on Human Rights. Summary r•ecords of the meetings of these bodies will be commonly utilized as well. Documents and official records of the General Assembly and of other organs of the United Nations will also be necessary. ource material ror this study. Among the publications prepared by the Secretariat, special attention should be accorded the various issues of the United Nations Yearbook on Human Rights, which collect together the si - nificant developments and advances made each year. Several publications of th9 United Nations Education al, Scientific, and Cultural Or anization (U1 SCO} are of considerable value ~n dealin with the philosophic and cultural problems faced by the H uman Rights Program of the United ations. Especially valuable in this regard are: Human Rights: Comments and Interpretations, published in 1949, and Freedom and Culture, published in 1951. Certain Documents and publications of the other specialized agen cies of the United Nations will be of value, as will some documents of regional organizations such as the Organiza tion of American States or the Council of Europe . 6 Occasional reference will be made to United States government publications, particularly those of the Depart ment of State, and to publications of other governments . The chapter on the period prior to the establishment of the United Nations will maxe reference to a few documents of the League of lations and the Permanent Court of Interna tional Justice, which are particularly significant in this regard. The publi cat i ons or journals of learned societies such as the American Academy of Pol i tical Science Associa tion , the American Society of International Law, ~he London Institute of orld Affairs, 1 and the Royal Institute of nternat i onal Affair s 2 contain invaluable information and comment, usually in the form of articles by leading 1 Publ i shers of the Year Book of Affairs. 2 Publishe s of t he British Yearbook of International Law . 7 authorities in fields related to the Human Rights Program. Particular mention might be made of the January, 1946 issue of the Annals of the American Academy of Political and Social Science which had been devoted entirely to articles on the proposed Human Rights Program of the United Nations. Several books have appeared which deal ~ith the international protection of human rights. Of parti lar value are those of Hersh Lauterpacht, Pieter N. Drost , o. Frederick Nolde, and ehemiah Robinson, although none re recent enough to cover much more than the first half of the period under consideratton. The works of modern inter national lawyers such as Hans Kelsen commonly contain chap ters o sections which bear on the le al problems faced by the Human Rights Pro ram. Much of the debate in the United States on the advisability of certain aspects of the Human Rights Program can be understood only by reference to articles appearing in bar association journals and other le al periodicals. The American Bar Association Journal is especially useful in this regard. CHAPTER II INTERNATIONAL ~ uARANTEES OF HUMAN RIGHTS PRIOR TO THE UlIITED N A TIONS Any study of the efforts of the United Nations to establish legal protection of human rights must consider the status quo in res pect to such rights and their international protection at the time that the United Nations came into being. It will be the purpose of this chapter, therefore, to survey those international guarantees of human rights which prec eded the birth of the organization which is now primarily concerned with their main enance and exension. Three periods can be delineated in the · cradition that led to the incorporation of human rights provisions in the San Francisco document. The first period is that prior to the establishment of the first formalized international political organization established on a world wide scale: he Lea ue of Nations . The second period i s tha during which the Lea ue attempted to e stablish a system guarantee ing minority an other ri hts by international procedures . A third, thou h somewhat confused period i s that of the econd W orld War--after the breakdown of the League system yet prior to the San Francisco onference. 9 Human Rights Before the League of Nations Since the birth of the modern nation-state system, efforts have been made, by both special and general treaties, to protect specific groups of persons from undue restriction of their individual rights. The classes of persons dealt with were in some cases subjects of none of the signatory powers. Many general treaties of peace, especially those establishing new boundaries, included pro visions designed to protect populations within the areas under transfer, or at least to alleviate the har dships of such transfer. 1 Just how old the concept of international protection for the rights of man really is seems to ~q in some doubt, as the following statements reveal: According to Carl B. Rix of the Committee on Peace and Law through United Nations, established by th~ ~merican Bar Associa tion, "Human Rights and international law as a composite until recently was a non-existent problem," 2 while accord ing to Durward Sandifer of the Department of State, "The concept that individuals have rights for which they are entitled to international protection is not new in 1 For example: the Peace of Vienna, 1606; the Treaty of Westphalia, 1648; and the Treaty of Berlin, 1878. 2 carl B. Rix , "Human Rights and International Law," Proceedi as of the American Societ of I nternational Law, 19 9, p. • 10 international law. 11 3 The truth appears to be somewhere in between. The ri hts of aliens, religious and linguistic minor ities, travelers whether pil rims or merchants have been the subject of treaties since the beginning of the nation-state system, and the rights of consular and diplomatic agents represent one of the most ancient fields for international law and treaty.4 Treaty uarantees of such rights have been cited from time to time as preceden~ for the international protection of human rights. ~he Thirty Years' a, the ter mination of which by the treaty of estphalia in 1648 is often used to mark the creation of the modern nation-state system, was itself concerned with el ements which, with only a sli ght amoun t of i maginatio, could be termed the rights of men. Religious lib rty had lready been pledged by the 'hristian nations of Euro e in he Treaty of Augsbur of 3nurward Sandtfer, "The Interna c·onal Protection of uman Rights: the United Nations System," Proceedin~s of the American Society of I nternational Law, 1949, p. 9. 4 On t he ri hts of citizens abroad and the protection of such rights see: Edwin orchard, "Hi torical ackground of International Protec ion of Human ights," Annals of the American Academ of Political and Social Sc ence (hereafter referred to as Anna l s , 2 J :11, January, 19 • 11 1555 . Stipulations on freedom of religion in ceded terri tories also appear~d in the Treaty of Oli'a of 1660 between Poland, Russia, and Sweden and in the Treaties of Nymegen of 1678 and of Ryswyck of 1697 between France and Holland. The protection of Christian minority populations in Turkey was undertaken by th Sublime Porte in various treaties with the Christian rulers, as for example, in Article VII of the Treaty of Ku huk Kainarji of 1774 betwe~n the Sultan and the Russian Czar. The Congress of Vienna in 1815 touched upon several aspects related to human rights . The Treaty of Vienna of May 31, 1815, between Austria, Great Britain, the Nether lands, Prussia, and Russia contained c rtair. clauses on religious liberty and civil rights relating to the union between Belgium and Holland. The Act on the Federal Con stitution of Germany, si ned at Vienna on June 8, 1815 and annexed to the Final Act of the Con ress, provided forcer tain reli ious and civil rights for Jews i~ the rqwly created German Federa ion. Furthermore, Article of the Final ct of the ,ongress, signed on Jun · 8 , 1815 , recog nized olish nationality in such a way as virtually to recognize mi orit ri hts for he Polish populations in the partition states. TL.e Treat of Par · s of 18.56 , enJin the Crimean ar, provided for certa· o ligations in res ect to the 12 populations of Jalachia , Mo l davia and Serbia, while the Treaty of Berlin of 1878 contained elaborate provisions for the protection of minorities. The newly-created sovereign nations of Montenegro, Serbia and Rumania and the "Autono mous Principality of Bulgaria,'' then under Turkish sover eignty, accepted far-reaching obligations in respect to civil and political ri hts and religious liberty. Turkey undertook the prote tion of the Armenians and pled ed once more the maintenanc e of freedom of religion. Provisions re lating to certain aspects of minorities protection can also be found in the reaty of Paris of 1 98 on tre cession of Puerto Rico and the Philippines by Spain to the United States. On the other hand, there is an element of truth in the concept that institutionalized international protection of the rights of men is a new concept, dating perhaps from the nationalistic tensions that foll owed World War I . Sandifer is probably corr&Jt when he reminds us that The most i m mediate precursor of the concept of ~uman rights embodied in the Charter oft e United Nations is the Minorities Treaties of World War I . Those treaties wer e aimed at specific abuses in limited areas but they did establish the right of certain individuals and roups of individuals to international protection against the infrin _ement of specified ri hts by the states of which the were nationals. 5 It i s true, as hown above, that there had been 5 sandifer, op. cit., p . 60 . 13 earlier attempts to protect minorities but such attempts had not been institutionalized. Under the League of Nations they were. Human Rights Under the League of Nations System The end of the First World war found the world in a state of p~litical flux. The two hundred and seventy one years between Westphalia and Versailles had seen the Habeas Corpus Act of 1679, the Bill of Rights of 1689, the American Peclaration of Independence in 1776, thA French Declaration of the Rights of Man in 1789, the First Ten Amendments to the United States Constitution in 1791, the revolutions of 1830 and 1848, with their demands for widened suffrage , and many subsequent reforms as important if not as spectacula r which led to an increased respect for the rights of man throughout most of the world. By 191, the continued violation of many of these generally recognized rights in certain areas of the world led to the concept, hardly articulated at first, that universal appl~ cation of such rights was a necessary corollary to any just peace. Human rights and the Covenant of the League. The human rights uarantees under the League of Nations system were quite mod st when compared to those later to be pro jected under the United Nations . Lea ue j_nterest, moreover. 1 was primaril limited t o two major spheres of activity: the protection of minorities, and the prot ction of the indige nous popula tions in mandated terr tories. The term "human rights" wa s not norr,1ally used to cover this complex of guar antees, and these two spheres were se dom related in the public eye. Except for the creation of the Mandates System, to be discussed below , the Covenant of the League or Nations con tains only one article which mi ht be construed as dealing with human ights. This is Article 23, which reads as fol lows: ubject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upo~, the Members of the Lea ue: (a) W 11 en eavor to secure and maintain fair and humane conditions of labor for men, women and chil dren, both in their own cou tries and in all coun trie to wh· h -heir commercial and industrial rela tions extdnd, and for that purpose will establ sh an maintain the necessary international organ·zations; (b) Undertake to secure just treatment ct' the native inhabitants of territories under their control; (c) ill entrust the League with general supervision over the execution of agreements with regard to the traffic in women and children, and the traffic in opium and other dangerous drugs; • • • • • • • • • • • • • • • • • • • • • • • • • • • (e) Will make provision to secure and naintain free - om of communication and of transit and equitable treatment for the commerce of all Mam ers o the League • • ; (f) Will endeavor to take steps in matters of interna tional concern for the prevention and control of isea e. 15 As may be seen, the term "human rights" does not appear. The purpose of the article was primarily confined to inter relating the League of Nations and the various specialized international agencies and bureaus already in existence or contemplated. The League system for the protection of minorities was derived from no provision of the Covenant, sinc e that document was draf ~ed and published before the minorities question h~d be un seriously to disturb the Peace Conference at Paris, but was rather an independent development utiliz ing the structure an organs of the League of Nat ons. The Mandates System, on the other hand, was structured upon pro visions of the Covenant itself; 6 thus l eavin only one of the tw o major League efforts in the fi eld of human rights as one whi ch had been envisioned in the basic constitution of that or anization. Human rights and t he Minorities Treaties . Never before had a peace conference given so _ _ h attention to the princi ple of nationality a s did the Paris Conference in / 1919. Severa l of ilson's Fourteen Points had recogniz ed the principl~ of national self-determination.7 An attempt was made to draw frontiers along ethnic l.ines. here claims 6 see Article 22 . 7 articularly points 10 , 12 , and 13 . 16 conflicted, plebiscites were to be resorted tc. Yet, ba cause of the age-old scatterin and fragmentation of the population of Eastern urope, one or mo- e national minority groups remained in every newly created or newly enlarged nation in the area. In many areas it 1~oved completely impossible to disentangle mixed populations, while in numer ous instances economic and strata ic consideration~ were allowed to determine final territori a l decisions . 8 At Paris, it was finally decided to draft minimum guarantees necessary for the protection of such minorities --in the interest of enera l European stability . Except for Czechoslovakia, the states containing minorities re sisted vigorously . Eventuall, however, every new or en larged state--except Italy--was compelled to assume an international obligation to protect its minority popula tions. Poland, Czechoslovakia, Rumania, y·ugosla ia , and Greece were obliged to sign special Minorities Treaties . 9 Furthermore , articles were inc rated in the general treaties with the defeate states,with the notable excep tion of Germany. Albania, Latvia, Lithuania, and Estonia also made Declarations acceptin the supervision of the 8 oscar T . Janowsky, Nationalities and ational Minor ities (New York: Macmillan Company, 1945) , pp. 110-11. 9 For review of the developm nt of the concept of mi norities protection see : ary G~rdiner Jones, 'National Minorities: A Case Study in I nternationa l Protection." Law and ,Contemporary Problems 14: 10-18, Autumn, 1949. League of ations over their treatment of minorities. Other cc,ventions regulated minority relations in Memel and Upper Silesia. 10 The Polish Minorities Treaty was the fi~st to be drafted and became the model for all of the subsequent minority pacts. 11 17 Article 1 of the Po~ish treaty declared that Poland recogn zed the basic articles 12 as "fundamental laws" and that no law, re ulation or official action shall conflict or interfere with these stipulations, nor shall any law, re gulation or official action prevail over them. Pol and then went on to guarantee life, liberty, and religious freedom o all its inhabitants ithout distinc tion.13 The next provision granted members of minorities groups olish citizenship. The acceptance of thi guaran tee in the minorities treatie s was based on long pro,oc~- tion. rior to orld War I , Rumania, although bound by 10 On the set e work of the Minor ities Peace Treaties nationality provisions ~ the 1919 treaties William O'Sullivan M olony who s erved on ection of the League: Nationality and the (London : George Allen & Unwin Ltd., 1934)~ PP• 77-148. 11 Lea ue of Nations, Protection of Linguistic, Rae al and Reli ious Minorities b of Nations, Geneva, 1927 C. L. 110. 1927. I. 2 Articles 2 to 11 _./Ar icle 2. • 18 the Treaty of Berlin in 1878 to accord equal ty to its religious minorities , had evaded its international respon sibilities by declaring its Jewish inhabitants to be members of a special civil class: "foreigners who a e not subject to another power'." To prevent such acts, the Polis h Minorities Treaty-- and the other Minorities Treat i es as well--included carefully drawn provisions granting citizenship to per ons born or long resident within he state . Those over eichteen who did not wish to become citizens of the new state were permitted to "opt for any other na t ionality which may be open to them. 111 4 Linguistic minorities were protected against any such suppression of thei r languages such as had been pre viously attempted by t he Prussian and Czarist Russian _overnments. 1 5 Members of minorities were authorized to establish and control, at their own expense , charit able , e ucati ona l , religious, and ~)cial institutions, "with the right to ~~d their own langur ~e and to exerc se their religi n freely therein.ul6 Furthermore, the state was obli gated to provide , in towns and districts with considerable lingu tic minorities , primary schools in which he children of minorities would l4Arti cles J , 15 Article 7. 4, 5, and 6 . 16 Article 8. 19 be taught ''through the medium of their own langua 0 e." 1 7 The state, however, was not thus prevented from making the teaching of the majority ~anguage ob l i gatory in minority schouls. In addition to this generdl statement the trea ties imposed the duty of assuring minorities an equitable share of such public funds as might be allotted for educa tional, religious, or charitable purposes. 18 Two special articles in the Polish Minorities Treaty dealt with Jewish ~ffairs. 19 Local Jewish communities were authorized to appoint educational committees with power to distribute the share of public funds alloc ted to Jewish schools, arrl to organize and to manage these schools. 20 Specifically, Poland promised that the Jewish Sabbath would not be used as an instrument of persecution, by forcing Jews to perform civil or legal affairs on 21 Saturday. The stipulations, so far as the y affected persons belonging to racial, reli~ious, or linguistic minorities, were held to constitute "obli gations of international con cern11 and ware therefore plac ed under the guarant ee of the League of Nations, nor were they to be modifi ed without the assent of a majority of +.he League Council. 22 Any 17 rticle 9 . 19 Articles 10 and 11. 21 Article 11. 18 id. 20 t· 1 Arica 22 Art·cle 10. 12 . 20 member of the Council was given the right to bring to the a tent ion of the Council any infraction, or danger of in fra c t i on of the treaty obligations; and the Council was empowered to take such action and give such direction as it migh t deem proper and effective under the circumstances. Any d i fference of opinion between Poland and any one of the Principal Alli ed and Associated Powers, or Member of the League Council, that might arise from the treaty, was to be recognized as a dispute "of an international character" a defined in the Covenant and was to be referred to the Permanent Cou t of I nternational Justice whether a question of law or of fact . I t the efore fell to the League Council to formulate procedures adequate to assure that the provi sions o the va r i ous Minorities Treaties were properly ob s erv ed . " I n evisin suitable machinery for enforce ent," states J anowsky ir his work ationalit es and ational M inari t i es, the Council was mindful of tw o considerations . n the first place, the purpose of the MinorivAes Treaties was con ceived to g o beyond the m ere humanitarj , n desire to guard the weak and heterdox against persecution. twas clear that the maltreatment of minorities would occasion int ernational strife, and the new regime sought to pro vie s uch means of peaceful adjustment as would prevent conflicts from endangering the peace of the world . herefore ••• it sought t o minimize intercession by in erested i n i vid al states, es pecially y neighboring ones whose "racial'' or cultural kinsmen mi ht be in volved. • • • Secon ly, t he Lea gue Counc i l wa s excee i nly careful not to offend the sensib lities of the "M norities 21 States," that is, the states bound by Minc.,J.,ities Trea ties or Declarations •••• As a resu~c, the procedure evolved by the Council was a compromise between interna tional supervision and the rights of national sover eignty.23 ventually a rather complex procedure came into being; it consisted of Minorities Petitions, a Minorities Section of the Secretariat, and the creation of a series of Minorities Committees. A Minorities Petition represented information com municated to the Lea ue of Nations which purported to demon strate a violation or the d nger of a violation of one of the provisions of a Minorities Treaty. Eventually, certain requirements were established for such petitions. It was held that they had to have in view the protection of minor ities in acco dance with the Treaties, and that they could neither request the severance of political relations between a minority and its state, nor emanate from an anonymous or unauthenticat d s • he etit ons ha o abstain from violent language , and contain information or refer to facts which had not rece11tly been ~he subject of another petition. The ori inator of a petition m. ht be an individual member f"'.. a m.i...t1ori t y or an organize ion of such members, an international organization or a state, thos6 directly concerned or inter ~ted third parties . The petitioner was noJ considered arty to as t; in fact, he ha no legal standin wha soever before the Lea ue or its agencies; his 2 3Janowsky, op. cit., • 116. 22 sole purpose was as a source of information. A petition was usually addressed to the Secretary General of the League of Nations but was sent on to a special group of officials whose duty it was to gather information on minorities--the M inorities Section of the Secretariat. 1 he Director of the Minorities Section deter- mined whether or not a petition was acceptable as such; r it was, it was dispatched for c omment to the Minorities State charged with a violation . If the state concerned did not reply within three weeks or declared that it did not wish to make any reply, the petition was sent on to the members of the League Council . If the state concerned declared that it wished to make a reply, a period of two months w s al wed for the purpose, although the President of the Council ou and did grant an extension beyond the two months. When the comments of the state involved were received, they were sent on with the petition to the members of the Council . 'rhe fact that a pet1. tion was s ent to the members of .._he Council did not inaugurate action by the Council as a body at this time . Council members, in their individual capaci ty, were merely supplied with information to guide their f 11 ture action . Meanwhile, a special Minorities Committee was set up to examine the petition. Such a committee usually had 23 three members: the President of the Council and two addi- tional members appointed by him. 2 4 Care was taken that such committees exclude partisan members. 2 5 The official purpose of the M~ rities Committee was to determine whether the issue should be brought before the League Council as a body. Janowsky stated: In practice, however, the Minorities Committees devoted their best efforts t o dispose of the issues ra sad out of court, as it were, so that official ac ion would be unnecessary. When alleged infr ctions were found to be unfounded , or when a satisfactory explanation was made by the state concerned, the ques tion was dropped. When , however, a genuine grievance was involved, instead of taking steps immediately to inaugurate a public discussion in the League Council , the Minorities Committees attempted first to induce the state to redress the wrong. This was done by means of informal, benevolent and unofficial negotiations, either in private conversations or, more often, through the Lea _ue Secretariat, that is, its Minoriti s Sec tion. Th~ 6 great majority of complaints were thus dis posed of. The Director of the Minorities Section of the Secre tariat always attended the Committee mee ings, accompanied by a subordinate who had previously dealt with the issue under consiaera i o_. 2 7 When t Committee decided to bring the issue formally before the Co' ~cil, the former members 2 4R~lr~ed petitions were often dealt with by the same committee. 25 P. de Azc8rate, League of Nations and National Minorities (Washington , D. C.: Carne ie Endowment for International Peace, 1945), P• 110. 26 Janowsky, op. cit., P• 119. 27 , 5 P. de Azcarate , op. cit., P• 11 . 24 of the Cammi tee, which had one out of existence at the end of its examination of the question, requested that the ca e be placed on the agenda of the Counci l of the League. The Council utilized publicity to bring the erring state into compliance. The facts of the case were first circulated among Council members, an ·mpartial one of whom was chosen rapporteur. Upon contacting the Minorities Sec tion and the state concerned, the rapporteur submitted a report to the C uncil summarizin the history of the qu s tion and the issues involved. Council action usually be an with a request that the state concerned avoid any action which might constitute a fait accompli, and an invitation to submit additional in- formation. ery often, the Minorities Sta e was allowed to retreat racefully by means of a "clarification" involving a reversal of policy, an offer of compensation, or some other form of compromise . If such a retreat was acceptable to the Council : the issue was settled. Lackin~ such a last-minute compromise, the Council went on to determine whether the state had violated its international obligations through the infri gement of its inorities Treaty. This decision was made by a Committee of Jurists or, in several instances, by advisory opin·ons of the Permanent Court of International Justice . Human rights and he Mandates System. Contrary to 25 the development of the minorities pro~edures, the Mandate System of the League was based upon ~ovenant foundations. Article 22 stated that in the territories taken during the war which were inhabited by "peoples not yet able to starrl by themselves under the strenuous L ✓nditions of the modern world" there was to be applied "the principle that the well-being and development of such peoples forms a sacred trust of civilization." Tutelage should be entrusted to "advanced nations" to be exe cised " on behalf of the League." 28 Three classifications of mandated territories were created. The first category was to contain those nations which could soon be recognized as independent states. But in defining the second category, the Covenant became more interested in the rights of the dependent peoples concerned. It stated that other peoples are at such a stage that the Mandatory must be respon s1 e for the administration of the territory under conditions whi ch will guarantee freedom of conscience and r el gion , subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifica tions or military and nava l bases, and of military training of the natives for other than police purposes and the defence of territory , and will also s~ 'H•,e equal opportunities for the trade and commerce of other Members of the League . 29 28 rticle 22, paragraphs 1 E~d 2 . 2 9Article 22, para raph 5. 26 The third class of Mandates, those even more depend ent and which could be administered by the Manda ory Powers as integral parts of their territories, w also r 1bjected to the above safeguards "in the interests of the indigenous population.n30 According to other Covenant provisions, there were to be annual reports submitted by the Mandatory Powers on each territory committed to their trust and a permanent commission was to be created to receive and exami e these reports and otherwise advise the League Council on all matters relatin to the observance of ~he mandates. More- over, The degree of authority, control or administration to be exerci s ed by the Mandatory shall, if not previously agreed upon by the Members of the Le~fue, b explicitly defined in each case by the Council.j The Permanent Mandates Commission, a s ubsidiary organ of the League Council, and the Council itself were thus the implementing agencies for the Mandates System. Beyond the guarantees in the Covenant , the agreements be tween the League Council nd the Mandatory Powers contained a number of limiting clauses fo r the protection of the indigeno s populatio s concerned. Similar to the development of the Minorities 30 Article 22, paragraph 6. 3 1 Article 22, paragraph 8. 27 Petition, a system of Mandates Petiticns was developed . Dr . Pieter N Drost has characterized the legal na ure or these petitions as follows: Although petitions from private sou1 es were received and acted upon--a practice officially recognized in various Council resolutions and in numerous regulations of the Commission--it cannot be said that the Mandates System created indivi dual rights in international law . The petition seized the international organ but beyond that it retained its informative charac t er . Te eti tioner was not a party to the proceedings which he ini tiated . The matter brought before the Commission or the Council was not considered to be an issue between the petitioner and the Mandatory Power involving "nd victual rights . Ont e contrary, the questions raised by the petitioner were treated as matters of international con cern dealing with the ob igations of a Mandatory ower versus the internation~~ community represented by the Council of the League . J The guarantees of rights unde the Mandates System were much narrower in scope than under the Mi rities Sys- tem, but although the area of action was limited, the Man dates Petition was in some ways a more r emarkab l e deve op ment than the 1inorities Petition. According to Drost: In general the minorities petition did not constitute a vinculum juri s between the petitioner and the League Council, the competent authority to receive the peti tions. I n order to seize t he Council the initiative had to be taken by one of its Members. The petition served only as a ource of informati n for the Council and its M embers. On the other hand, the mandates petition was not merely a unilateral manifestation. The petition was automatically transmitted by the Mandatory Power to the manent M andate Commission w h "ch ·nits turn trans ferred the matter to the Counc·1. The etition did not 3 2 ie er • Drost, Human R 0 ghts as Legal Rights (Leiden: • • Sij t ~f's Uit eversmij +.v., 1~51) p . 20. 28 possess an informative character only; it was an ~t of lega l consequence.33 hen compared to the more ambitious Minorities Sys tem, the Mandate s System was usually considered a success. _ ny observers would probably agree with Dr. 1 i11 · am • Rappard, a former member of the Permanent Mandates Commis sion, who has declared that T o free government, whatever its inten t ions ••• could afford to arouse the criticism of the M andates Com mission, because such criticism was boun to be re-echoed throughout the world and more pa1 1 ti cularly in its own press an its own parliament, on the con tinued conf~dence of which it depended for its very existence.34 In regard to he comparative success of the two League systems, mandates and minorities, it must be remem bered that the former dealt primar ily with the political democracies of W estern Europe, and their dominions--while the latter was concerned primarily with astern Europe and the Balkans. Add to this Nazi Germany's exploitation of the minorities issue and there is little wonder that the latter program was not as highly regarde in retrospect as the former. It ~s thu easy to see the historical--if not lo ical--reason hat the United ations was willing to take over the Lea 6 ue ~andates ystem (under another name) and to even expand its organ into one of the major organs of the organization, while the Minorities System of the League was JJibi ., p. 111. 34 ill~am • appard, "um.an ights in M andated erritor_es, 1 ' Annals, 243:ll -12. • January 1946. virtually forgotten during the creation of the United a t ions . Conclus·ons 29 The entire system created by the M inorities Treaties ha s often been critic i zed as either inadequate or as being to o readily utilized a tool for propagandistic purposes. Acc ordin to Janows ky, This verdict is understandable in t he light of the residue of two decades of conflict . The literature of minorities bristles with denunciation . The states which were compelled to assume obligations were never reconciled to the restrictions upon their freedom of a c tion and rarely missed an opportunity to condemn with passion and indignation the idea, as well as the meth ods, of this international protection of minorities . The minor · ties, too, bitterly complained that the League regime failed to provide adequate safeguards a gainst injustice.35 The M inorities Treaties were attacked from the very beginni ng as be ng con ary to the pr i nciple of the sover e i n equality of states . Tho s e states bound by th trea ties nev er ave up this position and lost no opportunity to pr ess t h e claims for equality. The League was re gularly presen t ed proposals to g eneralize or univ ersalize the ~on cept of minority protection. Distinctions ha d been made in practice between the r eat Powers and t h e smaller states. No obligations were ssumed b y talJ, whi c h had annexed a larg e minority 35 J anows y, op . cit., pp. 122-23~ 30 population; and even defe ted Germany was treated with special consideration, bein~ forced to assume only short term obligations and for only the minorities of her share of Upper Silesia . 3 6 Only Poland, however, went so far as to repud·ate even a part or a Minorities Treaty. The reasons iven are interesting. In September 1934--eight months after the conclusion of his non-aggression pact with Berlin--the Polish Forei gn Minister, J oseph Beck, formally notified the League that hi s country would no longer allow inter national supervision of its policy toward minorities. He declared: Pending the introduction of a general and uniform system for the protecti n of minorities, my Government is compelled to refuse, s from today, all cooperation with the international organizations in the matter of the s upervision of the application by Poland of the system of minority protection. I need hardly say that the decisi on of the Polish Government is in no sense directed a gainst the inter ests of the minorities. These interests are and will remain protected by the fundam ental laws of Poland, which secure to minorities of language, race, and religion free development and equality o treatment.37 The search for better ways of protecting national min~~ities and preventing international tensions in respect 36 on Upper Silesia see: Julius Stone, Regional Guarantees of M inority Rights (N ew York: Macmillan Co., 1933). 37 1 eague of ations , Records of the 15th Ordinary 9 ~s s ·on of the Ass embly , Offic · a1 Journal, Special Supple- ment No. 125, PP • 2- 43 • 31 to their handling , must not overlook t e values of the in- novations of the 1920 1 s and 1930's. According to Janowsky, The League guarantee exerted a restra ning and paci fying influence . No state subject even t o the limited control of the League's mi oriti e s regime dared assume the high- handed manner which Mussolini and Hitler--both free of international obli a ions with respect to minor ities--have employed. Until Fascist aggression reduced the Lea gue and its a gencies to impotence, compulsory assimilation such as Bismarck enforced in Prussia or Mussolini in outh Tyrol was no t in evidence in east central Europe. Minority l anguages were not outlawed as in I taly; minority schools did not disappear. Nor were minorities stripped oft eir possessions and subject~d to such wholly brutal treatment as in Nazi Germany.Jb Accordin to Dr. Edwin Borchard , r ec o nit on m st be iven to the par t al success of th system: Some go od wa s accomplished by the minorities treati es ev en if they were ·nadequately imp emente, sinc e the right of indivi ual petiti on to the Cou il of the League of ation made the complaint public and doubt less accom lishe some reforms .39 Most perva ing of all the weaknesses o the t1ino 1t·es Treaties as guarantee s of human rights was the stron empha sis upon negotiation an conciliation and co sequently upon a politica l rather than juridical approach. "Contrary to what might a t first sight be thought its character," wrote abl o de Azcarate in 1946, ••• careful exam nation of the treaties and especial ly their applic a t · on reveals , the system was nei ther 38 J anowsky , o. ci ., p . 123 . 9 E w n Borchar , " His orical Back roun of nterna ional rotection of · uman Ri hts ," Annals, 243 : 117 , Janu ary , 1946. 32 humani ta ian nor 1 ~uridical • • • in fact its aim was purely political.40 Often, the Council, fearful of precipitating a new crisis, seemed to act on the t eory that mi norities should be discussed as little as poss ·ble . The settlement of inteP national tensions and the prevention of new incidents ware the compelling considerations. These goals are not, however, unworthy ones for an international organization to pursue; and ~onsequently, the Lea ue should not be judged too harsh ly for allowin delay and negotiation to confuse high issues of justice.4 1 Moreover, as the authors of a work entitled ere the Minorities Treaties a Failure? have pointed out, Justice requires that the work of the League in the fiel of minorities protection should be appraised not merely on the basis of the official record but in its historical context as well. The twenty-year life span granted to the Lea ue of ations was not sufficient t9~ establish a completely new le al sys em an rocedure~ All the so-called international guarante es of human rights prior to the Uni ed Nations have much in common. The normal pattern found a defeated or weakened nation uaranteeing the rights of minorities in which a 4°Pablo de Azcarate, " Protection of Minorities and uman R hts, " Annals, 243:124, January, 1946. 41 , See: de Azcarate, League of Nations and National Minorities, p . 25- 27. 4 2 Robinson, arback, Laserson, et al., eJ •f the i nori ties Trea ·es a Failure? (Institute of Jewish Affairs; ew York: Antin Press, 1943) , 260, 33 victor or stronger nearby state was interest • Such guarantees in effect rationalize a degree of continuing intervention on the part of the dominant power or owers . This was a s surely the case in the guarantees made by the Sultan to the Czar, as it was the case followin the First World War . Consequently, political rather than judicial con siderations were always paramo nt. The fact that many persons grew quite cynical about the Minorities Treaties in the years just prior to the Second orld War may be clearly traced to disillusionment; they had not originally understood the political nature of the commitments, and when finding judicial rationa izations were easily dis carded under political pressure, they became quite embit tered in respect to the entire program. Evaluations of the success or failure of the Minori ties Treaties vary considerably since some ana ysts use a juristic, while others a politica~ measuring rod . From the juristic standpoint, the treaties ~ere doomed from the beginning . From the political standpoint, they were bound to be only temporary arrangements although they had had ,ome chance of success within natural limitations. The historical fact remains that it was the rise of totalitari an dictatorships that made it impossible to realize the political value of the s e treaties, tha t it was not some in tegral defect in the type of politica" r elationship creata:1. CHAPTER III HUM.AN RIGHTS IN THE UNITED NATIONS CHARTER Basic to all recent attempts to create international protection f or h man rights is the Charter of the United Nations. As in many movements of great import, there is en element of paradox in the efforts t o establish guaran tees for the rights of men through the United Nations. With the creation of the United Nations Charter, this para dox to ~ on its present form . The Charter, at several points, expresses the interest of the international organ ization in the international protection of the rights of men while at the same time it declares that nothing con tained in the Charter shall authorize the organization to ''intervene in matters which are essentially within the domestic · risdiction of any state . " 1 Virtually all uaranteas of the rights of man that now exist have been evolved within the nation-state system and have been tradi tionally considered to be matters of primarily domestic concern. reject Durin the Second World War Perie" The Minority Trea~ies System had ~ot been comprehen sive or ~~iversal e1£0ugh for many. New projects had long 1 Article 2 , paragraph 7. 35 envisioned a universalized system f the international protection of human rights. One of the most interesting of early attempts to formulate a list of such rights a been that of the Institute of International Law. In 1929, the Institute had met at Briarcliff, ew York, to create the first draft of an "International Bill of Rights . " The completed document had contained six short articles on some of the most basic of rights: life; liberty; property; religious freedom, li uistic freedom; freedom from dis crimination based on race, sex, langua e, or religion; and the right tc a nationality. 2 While nothing came of this attempt, it do the type of thinking going on in some quart r s reveal ng the decade prior to the Second World ar. The r ise of totali tarian forces during the 1930's only ser ved to mak e the demand for some international protection of the rights or men more general throughout the democratic world. Human rights as a war aim. Up n the beginning of World War II and the concurrent collapse of the League of Nations as a primary element for the protection of human rights, the world entered upon a new period. Force had become the prime consideration, but ot force alone. Be- hind the for of the Allied powers stood its ra ionale: 2 ee James .; Rights," Department Febru y 15, 1948. Hendrick, "An International Bill of of State Bulletin, 18:195-208, • 36 the concept t qt the Axis powers had violated the basic rights and fundamental freedoms of mankind and that they deserved just punishment for their transgressions. If we realize that it was out of this view that the efforts of the United ations to guarante e the rights of man arose, it is clear that a consideration of the war era, although it was not represented by legal systems or formal organizations, is of primary importance to later developments . 3 To the peoples o the wold who had achieved a lar e degree of freedom over the last three centuries, the rise of Fascism ad ational Socialism seemed to threaten all their hard-earned rights. The entire democratic and humanitarian tradition seemed in jeo ardy. In taly and ermany, the individual was losing rather than aining rights . Oppres sion was being sys ematicall based on race and religion, while the freedom of the press, assem ly, and political activity, were replaced by olice-state terrorism. 1 specially repu nant was the azi program for the sys t ematic extermination of the Jews, a clear violation of cot the traditions of Western humanitariani m and the spirit which had gone into the Minorities Treaties . World -·-------------------------- ------ 3see : United States, De artment of State, Organizing the Uniter ations, e artment of Stat Publication 2573 (vashin tc.1t1, D. C.: u.s . overnment rinting Office, 1946); Alice M. McDiarmid, "T _ Charter and the Promotion of Human Rights, " PP • 39-42• 37 public opinion was appealed to by Allien leaders and the prevention of any further activities of so repugnant a nature became one of the war aims of the Allies. As early as January 1941, e even months before Pearl Harbor, President Roosevelt had defined Four Free doms--freedom of speech, freed m of worship, freedom from want, freedom from fear--which must be attained "everywhere in the world.' These freedoms were to be regarded as neces sary to peace, not as distant goals only to be hoped for . These same rights were rec ognized in the Atlantic Charter of Au ust of the same year, when Churchill and Roosevelt listed "the right of all people to choose the form of overnment under which they will live" am listed as common goals such other matters as equal access to trad e and raw materials; improved labor standards, ec~nomic advancement, and social security; and freedom from fear and want.4 In January 1942, the Declaration by United Nations announced that the Allies were convinc ed essential reli ious the·r own that complete victory over their n emie s is to defend life, 1·berty, independence, and freedom, and to pr eserve human rights in 1 nds as well as in other lands . 5 Freedom from fear and want were mentioned once a, in igrid Arne, "A lantic Charter ," United ons rimer ew York: inehart, 194 ), pp. 9-10. 1942 . 5Department of tate u letin, 6:3 - , January 3, 38 in the Declaration issued by the ot Springs Conference in May of 1943. 6 This Conference, dealing with practical prob lem. of food and agriculture, in setting up an interim com mittee which eventually produc ed the Food and Agriculture Organization of the United Nations, represented the first sign of a formalized organization to carry out the often declared aims of the Allied Powers. Human rights in post-w r plans. Definitive planning for the post-war ~uarantees of human rights began with the conversations at Dun1barton Oaks in October 19 4. The Pro posals for a General I nternational Organization which eme ged from ~ his conference made onl one reference to human rights. Section A, paragraph 1, of ,hapter· IX (Arrangements for nternational conomic and Soc ·a1 Cooperation ) made the following suggestion: 1th a view to the creation of conditions of stability and well being wh"ch are necessary for peac ef 1 and friend y relations among nations, the Organization should facilitate solutions of international economic, social and other humanitarian problems and promote re pect for human rights and fund amental freedoms.7 Many private groups were also concerned with t e inclusion of human rights provisions in th postwar politi cal system. Humanitarian, e ucatio al, and reli gious 6 neclaration of the Unit ed ations Conference on Food and Agriculture, Article, i n Arne, op. cit., pp . 25-26. 7 s ee: United Stat ~s , Department of State, he Uni ted ations, Dumbarton Oaks Proposals for~ e Jral Interr tion al Organization, apartment of Sta e ~ubli ation 2297 ( ash in ton, D. • : U. • overnrnent r · ntin O f fie e, 19 ' ) . 19 groups flooded the periodica sand the airwaves with pro- posals. The Commission to Study the Organizat ion of Peace, N. B.C. 's Inter-American University of the Air, World Citi zens Association, Executive Committee of the American Federation of Labor, Universities Committee on Post-War International Problem. ) t h e University of Chicago Round Table, the Catholic Association for International Peace, the Federal Council's Commission on a Just and Durable Peace, the orld Jewish Conference, the American Jewish Conference, the Synagogue Council of America, the American Law I nst ·tute, and many similar organizations were repre sented.8 Some proposals were highly visionary while others would establish complex institutional systems in order to make the guarantees effective. The typical attitude was to consider that the inter national protection of human rights was a natural outgrowth of such protections as had already been evolved with in the domestic jurisdiction of the nation-states. The Magna Charta, the French Declaration of the Rights of Man, the American Bill of Ri ghts were to find their natural destiny · an international bill of rights. 9 8 For a list of such proposals see: Jacob Robinson, umar1 Ri hts and Fundamental Freedoms in the Charter of the United Nations New York: nstitute of Jewish Affairs, 1946), pp.- 3-5. 9A later example of such a historical perspective is given in Leonard P. Aries, "nternational Human Rights and 1 rheir Implementation," George Washington Law Review, 19:580-91, June, 1951. 40 San Francisco Conference roposals In the mont s just prior to the United Nations Con ference on International Organization at San Francisco, private organizations and individuals interes~ad in the protection of human rights became extremely active. The desire that the Charter o beyond the Dumbarton Oaks ro posals was strongly expr essed. Many governments, especial ly the smaller states, were equally interested. Alar e roup of consultants to the United tates Dele~ation to the onference, appointed by national groups on invitation bv the Department of State, signed a letter to the Delegat·on urging that it sponsor amendments to the Proposals: (1) mentioning the promotion of respect for human rights and fundamental freedoms among the purposes of the Organizatior (2) including respect for such rights among the principles of the Organization; (3) adding the develop ment of human rights to the functions of the General Assembly; (4) insuring the establishment of a commission on human rights. \ithin three days the success of these proposals was assured, for the four sponsoring powers had proposed amendments that incorporated the spirit of these sugges tions. o the list of purposes of the or anization proposed at Dumbarton Oaks, the four sponsoring overnrnents 41 suggested the dd tion of promotion and encouragement of respect for human rights an for fundamental freedoms for all without istinc tion as to race, language, religion, or sex. 10 Similar additions were propose by Australia, razil, Cuba, Dominican Republi, Egypt, India, Mexico , and Venezuela . 11 French proposals were a bit stronger . r he rench elegation proposed that it should be a purpose of the new or anization "to see to it that the es ential liberties of all are re spected, w·thout istinction of race, language, or cree • 1112 Several of the maller states seemed to feel that the time ha come for an International i 1 of Ri hts . The delegation of Uru uay proposed that the follo wing be added to the purposes of the United ations : To promote the reco 6 nition of an the essential human liberties and tinction as to race, sex, belief, These li erties an ri ts are to special Cha_ te r . uarantee respect for rights without d s or social status. be define in a r rhe " Cha ter of ankind" mentioned above shall be sub mitt to the consideration of the Assembly within a period of not more than six months, by a technical and juri ical commission esignate byte Ass embly, with notice in advance to eac government, and shall contain: 10 united States, Department of State, The United at·ons Conference on International Or anization ( ashing- ton , u •• overnment Printing Office, 19 6), p . 92 . ll bi ., PP • 92- 1 O. 12 Ibid., P• 95. Italics added. 42 (a) declarations of rights , and (b) a system of effective international guardian ship of those rights.13 The delegation from Panama was responsible for the most elaborate plans along such lines. It was suggested that the United Nations include among its purposes the maintenance and observance of the standards to be set forth in two Declarations to be appen.ded to the Charter, and made an integral part thereof. The first of thee was to be the "Declaration of the Rights and Duties of Nations" ;l4 the second was to be a "Declaration of Essential Human Rights ." Instead of following the Uruguayan proposal of a drafting commission for such a Declaration, the Panamanian Delega tion submitted a draft of the full Declaration as follows: DECLARAT OJ OF SENTIAL HUMAN RIGHTS PREA BL Upon the freedom of the individual depends the wel fare of the people, the safety of the state, and the peace of the world. In society complete freedom cannot be attained; the liberties of the one are limited by the liberties of others, and the preservation of freedom requires the fulfillment b individuals of their duties as members V of society. The function of the sta e is to promote conditions under which the individual can be most free. 13 rbid., P • 100. 1 4The text propo ed was that adopted by the American Institute of nternational Law in ashin tor-, January 6, 1916. 43 To express those freedoms to whic every human being is entitled and to assure that all shall live under a government of the people, by the people, for the people, this declaration is made. Article 1. Freedom of Religion Freedom or belief and of worship is the right of everyone. The state has a duty to protect this freedom. Article 2. Freedom of Opinion Freedom to form and hold opinions and to receive opinions and i n ormat ion is the right of everyone . The state has a duty to protect this freedom. r t ·c1e 3. Freedom of Speech Freedom of exp ass on is the right of everyon . The state has a duty to refrain from arbitrary limitation of this freedom and to prevent denial of reasonable acc ess to channels of comrnunicat on. Art·c1e 4. Freedom of Ass embly Freedom to assemble peaceably with others is the ri ght of everyone . The state has a duty to protect tis freedom. Article 5. Freedom to Form Associations Freedom to form with others associations of a political, economic, religious, social, cultural, or any other character for purposes not inconsistent with these articles is the right of everyone. The state has a duty to protect this freedom. ~ ticle 6. Freedom from Wron ful Interfer ence Freedom from un easonable interference with his per- son, home, reputation, privacy, activities, and proper ty is the right of everyone. The state has a du~y to protect this freedom . Article 7. Fair Trial Everyone has the ri ht to have his criminal and civil liabilities and his ri hts determined without undue delay by fair public trial by a competent tribu nal before which he has had opportunity for a full hearing . The state has a duty to maintain adequat tribunals and procedures to make this right effective. rticle 8. Freedom fr om Arbitary Detention Everyone who is detained has the right to immediate judicial determination of the legality of his deten tion. The state has a duty to provide adequate procedures to make his right effective. Article 9 . Retroactive Laws No one sh 11 be convicted of crime except for viola tion of a law in effect at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that applicable at the time o~ the commission of the of~ense . Article 10 . Property Ri ghts veryone has the right to own property under general l aw. The sta t e shall not deprive anyone of his proper ty exc ept for a public purpose and with just compensa tion . Article 11. ◄ducation ~v eryone has the right to education. The state has a duty to require that every child within its jurisdiction receive education of the primary standard; to maintain or insure that there are m intaine facilities for such education which are adequate and free; and to promote the development of facilities for further education which ar e adequate and effectively available to all its residents. rticle 12 . Work veryone haq the right to work. The state hes a duty to take such measures as may be necessaIJ to insure that all is residents have an opportunity for useful work. Articl e lJ. Conditions of Work Everyone has the ri ht to reasonable conditions of work. The state has a duty to take such measures as may be necessary to insure reasonable wages, hours, and other conditions of work. Article 1. Foo and Housing 45 Everyone has the ri ht to adequate food and housing. The state has a uty to take such measures as may be necessary to insure that all its residents have an opportunity to obtain these essentials. Article 1. Social Security Everyone has the ri ht to social security. The state has a duty to maintain or insure that there a re maintained omprehensive arrangements for the promotion of health, for the prevention of sickness and accident, and for the provision of medical care and of compensation for loss of livelihood. Article 16. Participation in Government Everyone has the right to take part in the govern ment of his state. The state has a duty to conform to the will of the people as manifested by democratic elections. Article 17 . Equal Protection Everyone has the right to protection against arbitra ry discrimination in the provision and application of the law because of race, reli ion, sex, or any other reason . Article 1. Li itations on Exercise of Ri hts n the exerc·se of his ri hts everyone is limited by the ri hts of others and by the ·ust requirements 46 of the democratic state. 1 5 During a discussion of the principles of the United Nations, the Cuban delegation proposed a similar set of Declarations: a "Declaration of the Duties and Rights of Nations" and a "Declaration of the International Duties and Rights of the Individual" to be adopted by the General Assembly "within the shortest possible time after it is constituted." 16 The f ollowing draft Declaration was sub mitted along with the proposal: D ECLA ATION OF TH I INT ~ RNAT ONAL RIGHTS AND DUTI S OF r , • INDI DUAL I . All men are equal before the law and in all the circumstances of life. No state shall recognize any personal exemptions or privileges nor shall it allow any discrimination due to sex, race, religion, color, language , cla ss, or on any other ground whatsoever; and every state shall guaran tee absolute equality of opportunity , in the exercise of the different economic, professional , or industrial act i vities . Laws shall provide penalties for infringers of this precept . II. Every indivi dual shall be entitled to citizen ship somewhere. Whenever he shall have lost it under the law of hi s own country or it shall be denied him in his country of origin, he shall be entitled to obtain that of the state wherein heres i es, after rior compliance with t he r equirements of the laws. III. Every individual shall be entitled to security for his person, papers, and effects to the s ame degree as the nationals of the country in which he lives . 15. b ~d l • , • 97- 99 . 47 IV. ~very individual shall enjoy t~e same civil rights as are established by the laws ior nationals, except those which under personal status correspond to aliens, and more especially the following political and economic rights: (a) he inviolability of property, so that no one may be deprived of his domicile or other patri monial right whatsoever, except pursuant to a judgment publicly rendered in a court, legally proved, and in consideration of just compensa tion. (b) Liberty to enter, stay in, and leave any part of the territory provided that he obey the local laws and police re ulations, without prejudice to the provisions of the immigration laws or to the right of expulsion. (c) Liberty to profess any rel gion which he may freely choose and to practice its worship with out any limitation other than respect for public order and ood morals. (d) Liberty to express his ideas and opinions freel~ by availing himself of any means of diffusion, provided that no injury be done to the honor of persons, to the social order, or to the public peace. (e) Freedom of commerce, navigation, and industry, provided that the laws of the state be obeyed and saving only such exceptions as may be re quired for reasons of public safety. (f) Freedom to present petitions to the authorities in search of redress for any dama es sustained. g) Freedom to assemb e peacefully and without arms, and to associate with others for all lawful ends in life. V. Every individual shall have the same social rights as are established for nationals, with reserva tions as to reciprocity or the public safety, and especially: (a) The right to work us efully and constructively in productive year s . 48 (b) he righc to reasonable _ muneration that shall be adequate to satisfy the needs and amenities of life in exchan e for his work, ideas, savings, and other valuable social services. (c) The right to adequate food, clothing, housing, and medical attendance . (d) The right to peace of mind, free from the fear of old age , penury, dependence, illness, unem ployment, and accident. (e) The right to live under a system of free enter prise, free from forced labor, from irrespon sible private powers, from arbitrary public authorities, and from unregulated onopolies. (f) The right to education to fit him for work to be a useful citizen and for his personal advance ment and happiness, and (g) The right to rest, r ecreation, adventure, and opportunity to enjoy life and to take part in the progress of civilization. VI . Every individual i s ent tled to be tried by courts recognized as competent under the laws of the state of his resi dence, and es ablished prior to the act he is charged with. o one sha 1 bes ntenced, except by due proce s of law and by vir tue of a st tute proclaimed prior to he act im uted to him . VI . Ev ry individual is enti 1 d to b protected and assisted b y the state to which he elongs, in the manner and f orm established by tr aties and by int r national law . No individuaT who, according to the law of the state against whi ch he institutes a claim, as a citizen of that state, s all be entitled to such pro tection . VIII . Every individual shall have the right of asylum in legations e to the protection of the diplo matic representatives of any nation, in the c ses and by the procedure established by tre aties or by interna tional law . rx. to the and to by the Every individual shall be obliged to contribuce public expenses of the c ntry in which he lives serve it in cases of need in the manner provided laws. 49 • No alien may interfere either directly or in directly in the politics of the country in ~hich he happens to be, nor claim the enjoyment of any ri hts or any assertation of such rights other than those pro vided for nationals by the constitution and the laws • . I . Aliens shall be obliged to respect the politi cal, social, and economic re ime pr veiling in the state in which they reside, to observe and obey the laws and other provisions in force therein, and to sub mit to the jurisdiction and decisions of its government authorities and of its courts of justice.17 hen such proposal s on the draftin or inclusion of an already drafted ttrnternational Bill of Rights" were pre sented in Committee, the report stated that The Committee received the idea with sympathy but decided that the resent Conference, if only for lack of time, could not proceed to realize such a draft in an international contract. The Or anization, once formed, could better proceed to consider the suggestion and to deal effectively ~ith it through a special com mission or by some other method . The Committee recom mends that the Gene 1 ~1 ssembly consider the proposal and ive it effect. It was in this vein that President Truman remarked durin th closing plenary session that Under this documen we have ood reason to expect an international bill of rights, acceptable to all the nations involved. That bill of rights will be as much a part of internat onal life as our own Bill of Rights is a part of our Constitution . The Charter is dedicat ed to the achievement and observance of human rights and fundamental freedoms. Unless we can attain those objective s for all men and women everywhere--without 1 7The United ations Conf rence on - nternational anization, · n 1 rancisco, California A ril 25 to June 19 5 Selected Documents · ·ashin ton, • C.: U .s . overnment Printin Office, 1946 ) , PP• 104-05. 18 Ibid., P • 496. regard to race, langua e , or religion--w e cannot have permanent peace and security in t he world . 19 50 It is necessary at this point to move from considera tion of proposals in respect t o the international protection of human rights hich were not found s atisfactor y for inclu sion in the Charter or we a postponed for later action by the organs of the United ations to considera tion of those aspect of the Huma n Rights Program whi h were incorporated in the final document of the San rancisco Conference . Fina l Charter Provisions on Human Right s hen it was completed , the harter written at San Francisco contained numerous references to human rights . These references were quite va ied in approach and in word ing . At se veral points direct reference was ma e to 11 human rights ," as such. The first of these , in the Preamble to the Charter , declared that the peoples of the United at1ons were determine to reaffirm ra · th in fundamental human ri hts, in the i ~nity nd worvh of the human person , in thee ual ri chts of men and women an of nations lar ~ and small, and ••. to promo e social progress and etter stand ards of life in larger free om. Amon the purposes of the or anization, as proclaimed int e first article of the Charter were listed the follow - i n: 19 bid., P • 9 3 • 51 To develop friendly relations among nations based n respect for the princi~Oe of equal rights and self determination of peoples. To achieve international cooperation in solving international problems of an economic, social, cult ral, or humanitarian character, and in promoting and encour aging respect for human rights and for fundamental freedoms for all witho~f distinction as to race, sex, language, or religion. Among the powers granted to the General Assembly of the United Nations organization was the power to initiate studies and make recommendations for the purpose of promoting international cooperation in the economic, social, cultural, educational, and health fields, and in assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.22 Repeating some of the language already used in prior sections of the Charter , but thereby emphasizing the inter est of the organization in human rights, the chapter on international, economic and social cooperation declared that, With a view of the creation of conditions of stabil ity and well-being which are necessary for peaceful and friendly relations amon nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: ••• universal respect for, and observance of, human rights, and fundamental free doms for all without 2 g1s tinction as to race, sex, language, or religion. 20 ch. I, Article 1, paragraph 2. 21 Ibid., paragra ph 3. 22 Ch. I V, Article 13, paragra ph 1 , part b. 23 h. IX , Article 55 . 52 Among the powers granted under the Charter to the 'conomic and Social Council was the power to "make recom mendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all." 2 4 Later on in the same chapter the Charter states that ~he economic and social council shall set up commis sions in economic and social fiel s an:l for the promo tion of human rights, and such other commissions as 25 may be requ·red for the performance of its functions. In the chapter establishin the International Trus teeship System, human rights were again mentioned. Amon the basi objectives of the system were 1·s ed the f ollow ing: to promote the political, economic, social and educa tional advancement of the inhabitants of the trust territories, and their progressive development towards self- overnment or indepen ence as may be appropriate to the particular circumstances of each territory and its peoples and the freely-expre s sed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement •••• to encourage r espect for human rights and for f unda mental freedoms for all without distinction as to race, sex, language , or religion, and to encourage recogni tion of the interdependence of the peoples of the world.26 Two other Gharter articles, although not mentioning human rights .E_er se, are of considerable interest in re spect to the Human Rights Pro ram of the organization 2 4chapter , Article 62, para raph 2 . 25 Article 68. 26 Chapte I, Art ~le 76 . 53 created by the Charter. The first of these applies one of the commonly mentioned r·ghts to the organization itself by declaring that The United Nations shall place no restrictions on the eli ibility of men and women to participate in any capac ty and under conditions of equality in its prin cipal and subsidiary organs.27 A secon provision of general importancA is found in the chapter on international economic and social co operation.28 Article 55 of that chapter was noted above as declaring that one of the purposes of the organization is to promote universa l respect for, and observance of, human rights. Article 56 makes this statement somewhat more forceful by providing that "All Members pledge them selves to take joint and separate action in cooperation with the rganization fr the achievement of the purposes set forth in Article 55." Le al Effects of the Charter Provisions Several interesting questions are raised as to the legal effect of these provisions in r espect to the domestic ·urisdiction of the member states. In the case of the United tates, most of these questions are contingent upon the fact tha t these provisions are integral parts of the 2 7chapter III , Article 8. 28 hapter IX . 54 Charte of the United Nations, 29 and that the Charter is a duly-ratified treaty entered into by the United States and that under the supremacy clause of the Federal Constitution, All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.JO The issue is, however, anything but clear. Many questions arise and many types or interpretations are given.3 1 hans elsen notes that" o other subject matter is so often referred to in the Charter as the human rights and freedoms. They were not mentioned at all in the Dumbarton Oaks proposals. 11 3 2 ut he goes on to declare that "Nevertheless there is, from a strictly legal point of view, no difference between the two documents with re spect to this subject matter. tt33 29 Except for the provision in the Preamble, accord ing to some viewpoints . 30 Article VI, paragraph 2. 3 1 s ee, for example, the discussion of the binding effect of the Charter in Yuen-li Liang, "The Legal Basis of International Relations," Annals, 255 :24 ff, January, 1948; E. H. Crowell, "Declaration of Human Rights, United Nations Charter and thei r ➔ffect on Domestic Law of Human Rights," Virginia Law Review, 36:1059-84, December, 1950; Lawrence reuss, "Some Aspects of the Human Rights Provi sions of the Charter and Their Execution in the United States," American Journal of International Law (hereafter referred to as AJIL), 46 :289 - 96 , April, 1952. 3 2 ans Kelsen, The Law of the United Nations (New York: Frederick A. Praeger, I nc., 1950), P• 33. 33 Loc. cit. Accordin to the study by elsen, • • • the Charter does not impose upon the Members a strict obligation to grant to their subjects the rights and freedoms mentioned in the Preamble or in 55 the text of the Charter •.• • All the formulas con cerned establish purposes of functions of the Organiza tion, not obligations of the Members, and the Organiza tion is not empowered by the Charter to impose upon the governments of the Member states the obligation to guarantee to 4 their subjects the rights referred to in the Charter.3 The apparent contradiction, e.g . , that the Charter so often refers to human rights and yet does not bind its members to grant such rights to their citizens, is noted by Kelsen, who destroys the dile mm to his own satisfac tion as follows: The fact that t he ha r er, as a treaty, refers to a matter is in itself n o a fficient reason for the assumption t h t the Ch re imposes obligations with respect to this matte upon the contracting parties . Besides, the Cha ter doe in no W?Y specify the rights and freedoms to which it refers.3~ In the United State upreme Court, in a case in- volvin he validity of the Alien Land Law of California,3 6 the provisions of the Charter in the matter of human rights were relied upon b four concurring Justices as a source of legal obligations. In is concurrin opinion r . Jus tice Murphy, joined b y r . Justice Rutledge, said: 34 bid., P• 29. ~ J~Ibid., PP • 29-JO. ~ 6 oyama v . Californta \1948), 332 U. S. 633. 56 M oreover, this nati on has recently pledged itself throu~h the United iations Charter to promote res pect ._. for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, languag e or r eli gion. The Alien Land Law s tands as a barrier to the ful fillment of t hat nationa pledge. Its inconsistency with the Charter, ~hich has been duly ratified and adopted by the United cltates, is but one more reason why the Statute must b condemned. I n his concurring opinion , Mr. Justice Black, joined by Mr. Justi e ouglas , aid: There are a dditi on 1 r ea ans no why that law stands as an obstacle to t he f e a c om plis hrnent of our policy in the internation 1 fi eld . ne of these reasons is that we hav e recently dged lves to cooperate with the United a o ' ot e ••• universal respect for, and ob e r ~~- t and funda- mental freedoms f or a i t ot1 a to race, sex, language, a n 1 g c n thi s nation be faithf ul to t his t e na ·r t ate laws which bar land o ars h · d 1 ~~ o~ b a 0 nL r al;_ ~n on account of race a e per , JJ In several member ta ~ the ',h r c4 the nited Nations has i ndi sputa bl bee om p a r~-c .C t h a o e land. or example , accordin t th Fren ~ o t on of 1946, treaties ratifie b t contrary municipal law wi thout an act o e ri e any p ementation by the national legislatur e other than that n ec essa y for the ratification of the tr e ty itselr . 3 37 Loe. cit. 3 8 or a survey of the practi es in such regards, see: Lawrence Preuss, " On Amending the Treaty Making Power: A Comparative Stu_y of the Problem of Self-execut ing Treaties," M ichi an La-w Review, 51:1117- 42 , J une, 1953. 57 According to La u t erpacht, the human rights provi- sions of the Charter impose legal obligations not only upon t he Members of the United Nations. They imply a comprehensive legal obligation upon the United Nations as a whole. They not only authorize the various organs of the United Nations to ldke steps for encouraging and promoting the realization of the crucial purpose of the Charter. They lay dovJn that the United .Jations shall promote 'universal res pect for, and observance of, human rights and fundamental free oms.•39 A State would act contrary to its clear legal obl i gations under the Charter if it were to impose fresh discrimination on a religious, ethnical or racial group. And t here would be no doubt a flagrant breach of its legal obligations if it were to embark upon active persecution of pers ons under its jur isdip51on on account of their race , language or reli gion.~ The most commonly held doctrine respecting the legality of the Charter provisions is , hoe er , that the Charter of the United ations , 1 k e may o her rea t i es, is a non-self-executin ~ doc umen : e . g., re u ~ es fu ther domestic le~islation o he ar t f h e U n e States--or t h e other members- - o t i nto fu 1 f or e w t h n the m unic pal 1 w of h s a e con erne. he f rst decision in United Sta e tea a o o a tre ty inapplicable upon such ground , da e back a s far a 1829 . 4 1 The effec t 39 H. Lauterpac t , nternational Law and H uman Rights (Iew Yor : rederick A. er, I nc., 1950}, P• 159. 40 I b i ., P • 1,53 . 4 1 Foster v. , 2 Pet . 253 • 58 of an unimplemented treaty is an open question in inter national la~.4 2 In order to determine whether a specific treaty is self-executing, and cc~sequently of immediate effect upon municipal law without additional legislation, several tests have been devised. First, the text of the treaty itself may so declare. Secondly, the intent of the parties to the treaty may be examinect.43 Thirdly, the nature or subject matter of the treaty may indicate whether it must be considered self-executing or not. In some nations the test i s a 1·ttle clearer. France, for example, provides in its Constitution44 th t tre ties need no further legis lation to be b nding within municipal law.4 5 British precedent usually required such legislation,4 6 while other nations depended upon such tests as often found in United States treaty law.4.7 4 2 see:c. B. Bourne, "Interna ional Law--Unimplement ed Treaties--Their Effect on Municipal Law--Public Policy," Canadian Bar Review, 29: 969- 74, November , 1951. 4 3 on intent a . the test or a selr- xecutin treaty see: Jack Solomon, "When Are Treaties Self-executing?" Nebraska Law Review, Jl:473-74, March, 1952. 44Articles 26, 27 . 45 ee:Lawrence Press, "Relation of I nternational Law ~ I nternal Law in the French Constitution," AJIL, ~ : 652 ff, October, 1950. 4 6 s ee: Lawrence Preuss, "The xecution of Treaty Obli ations Through Internal Law--System of the United tates and uome Other Countries, " Proceedings of the Ameri can ociety of International Law, 1951, PP• 85- 86 . 47 rbid., etherlands, PP • 88- 9 ; Belgium, P • 89- 90 ; 59 According to traditional American concepts on self executing and non-self-executing treaties, the Charter of the United rations has usually been considered one of the latter. No less an authority than Manley o. Hudson has declared without qualification that the Charter is a non self-executing treaty.4 8 Early fears that the Charter might not be considered a non- elf-executing treaty by the courts appeared justified by the decision o the District Court of Appeal in the Fujii case (to be discussed in Chapter V), and had led Herbert cover to declare, ur·ng a major forei gn policy speech in 1952, that Our relations with the United Nat·ons Charter must be rev·sed. It must not be allowed to dominate the inter nal sovereignty of our Government . Our courts have already made d~~isions that the Charter overrides our domestic laws.4- Al though the issue of self-execution has been set tled to the satisfact·on of most, since the discussion of the Fujii case and the new decision of the higher court, many other questions remain as to the effect of the Charter on United States law. The first of these stresses the I taly, pp . 90- 92 ; Switzerland, pp. 92- 94 ; Germany, pp . 94- 96 . Ri~hts 4 8 -1anley O. Hudson, "Charter Provisions on Human in American Law," AJ'IL, 44: 545 , July, 1950 . 49 The New Yor Times, January 2, 1952. 60 concept of obligation and international law. Does the acceptance of a treaty--even though not self-executing- carry along with it the moral obligation or even the legal obligation under internat·onal law to implement the provi sions of the treaty? Carl B. Rix, of the American Bar Asso ciation's Committee on Peace and Law Through United Nations, has gone so far as to state: Under international law the duty to implement a treaty fully and completely is of the same high moral order as the obligation of the treaty itself. It is asserted ggat Congress has never failed to so implement a treaty. Another interesting question deals with relationships within the American Federal System. In the famous migratory bird case, Missouri v. Holland,5 1 the Supreme Court held that Federal le islation implementing a treaty mi ht beef f ective in a r eas previously considered by some as within the jurisdiction of the states. hat power, then, does the United Nations Charter, as a treaty, grant to the Federal government to legislate in the fiel of human rights that it might not otherwise have? berhard Deutsch expresses little doubt on this topic. "The United Nations Charter," he says, is a ratified treaty. Under Missouri v. Holland , the Charter has undoubtedly already conferred upon Congress 5°carl B. Rix," uman Rights and International Law: Effect of the Covenant under our Const·tution," American Bar Assoc·ation Journal (hereafter referred to as ABAJJ, 35:554, July, 1949. 5 1 252 u 416 (1920) . 61 the unlimited power to implement by legislation all phase~ of individual rights mentioned in that instru ment • .'.:>2 The third outstanding question is raised in the international arena. Do the Charter provisions transfer the field of human rights from domestic jurisdiction to interna tional juris iction, from municipal law to international law? Nations which have ratified a treaty such as the Charter with its many references to international interest in the promotion of human ri hts can surely no longer say that international concern over its treatment of its own citizens should be of no interest to the other signatories. Florence E. Allen has remarked that ••• a majority of the members of the United Nations conside that the eneral statements of the Charter on fundamental freedoms make any iscrimination by a nation among its citizens in violation of the standards of those freedoms a matter not me r ely of interpational concern but one overned by international law.~3 evera cases have come forth in which courts have relie upon provisions of the United ations Charter, not as binding law, but as a more diffuse indication of "public policy." In 19 5, for example, a Canadian court refused to .5 2 Eberhard P. Deutsch, "Treaty Making Power," South ern California Law Review, 26:352, July, 1953. 53 Florence E. Allen , " Human Right s and the I nterna tional Court: the Need for a Jur i ical World Order," ABAJ, 35:71, eptember, 1949. For a discussion of the effect of the Charter generally, see: H. Lauterpacht, "The Legal Effect of the Provisions of the Charter ," Chapter 9 in his I nternational Law and Human Ri hts ( ew York: Frederick A. Praeger, Inc., 19 0 , pp. 1 -1 • • 62 enforce a rest i ctive covenant for the reason t hat it was discrimina ory on account of race. The decision was made by invoking Article 55 and other related provisions of the United ations Charter which in the view of the court became part o f the "public policy" of Canada, when that nation had become a member of the United Nations . 54 In 1948, the United States Supreme Court rende ed a similar decision in a similar matter stating, without specifically referring to the Cha ter, that prohibition of discrimination was now part of the public policy of the nation, for the reason, inter-nlia, of treaties concluded by the United States.55 Summary and Conclusions The provisions of the United Nations Charter that pertain o human rights are the direct outgrowth of an emo tional reaction to Hitler's pe secution of the Jews and other captives of the Third Reich. This persecution was, moreover, the primus motor for the entire Human Rights Pro gram of the United ations . During the drafting of the Charter at San Franci co, it appeared that such a program might be laid down in the Charter itself . The final deci sion, however, was that the Charter should contain only a framework of reference for a later program. The many .. 5 4r n re Drummond ren, 4 Ontario Reports 778 55Hu d v. Hodge, 68 Sup. Ct. 847 • 63 references to human rights found in the Charter do, howeve~ appear to remove any doubt that all questions of human rights can no longer be considered simply within the domes tic jurisdiction of the state concerned. The Charter does not, however, draw the line between the two jurisdictions. It seems merely to state that there are certain questions of human rights which must be matters of international con cern. The Charter evidently intended to leave the rawing of distinctions to the international organs it ereated and to member states themselves. CHAPTER IV W ' AR CRIMES, INT~R ATIONAL CRI INALITY AND HUMAN RIGHTS Any study of the efforts to establish international legal protection of human rights in the period following the Second World War would be incomplete without mention of the motives and reasoning behind the trials of the major war criminals of tha war. These trials and the more recent attempts to establish an international criminal jurisdiction were all based upon the same wave of moral indignation in respect to Nazi brutality that gave birth to the human rights movement proper. tis not within the scope of this work to make a thorough analysis of all the ramifications of those trials, but it will be of value to survey the basic problems that the trials had in common with the Human Rights Program in general and to note the movement to establish a permanent sphere of international criminal jurisdiction. The rela tionship of this latter movement to the Human Rights Pro gram is obvious; if an international organization is to protect the rights of individuals, it would appear lo ical that the inter~ ~tional organization e pect that individuals thereby acquire duties toward the organization, at least insofar as they be obligatea to respect the rights of 65 others. The Crime Against Humanity In war there has been recognized, even among savages, "a certain kind of chivalry. 111 Nevertheless, there have been many notable exceptions to this rule. According to Nicholas Doman, "Every war in itself generates individual and collective crimes because it easily unleashes in man the evil passions which always slumber there." 2 Since many of these excesses were contrary both to civilian criminal la~ and the normal practices of warfare, they hav often been treated as crimes. illard B. Cowles, after study of such instances, concluded in the cases here reported, precedents were available going back to ancient Greece and Rome . Ever since that time, contrary to popular impression, individuals l ave been held responsible fo~ savag e acts committed by them in the c curse of war. J The view that the ar Crime Trials at uremberg and okyo were signi ·cant precedents was probably due to the high office of the persons concerned and the indirect nature of the offences. G. Schwarzenberger in stating that the trial at Nurember was "far from being the first of its 1 Ra nar l umelin, The Beginnings of Di,e_lomacy: A Sociological Stud of Intertribal and International Rela t·or-s (New York: Philosophical Library, 1950), p. 107. 2 icholas Doman, " Political Consequences of the uremberg Trial,u Annals, 246:88, July, 1946. 3 illard B. Cowles, " Trials of War riminals (Non Nurember )," AJIL, 42:319 , April, 1948. 66 kind 11 4 is correct in the general sense . In a more soecific sense, however , it evidenc ed several ne~ characteristics . The most re evant of these to the Human Rights Program of the United Nations was the concept of the "crime against humanity."5 The conce p t of a ncrime against humanity" is much more inclusive than that of war crimes . 6 In order to con trast the concept of the "crime a ainst humanity 11 with the related concept of he war crime, it is of value to note that war crimes were defined in the Charter of the I nterna tional ~ilitary Tribunal as: • • • violations of the laws or customs of war . Such violations shall include, but not be limited to, murder, ill- treatment or d eportation to slave labor or for any othe purpose of civilian population of or in occupied territory, mur er or ill- treatment of prisoners of war or of persons on the seas, killing of hosta es, plunder of public or rivate property, wanton destruction of cities , towns or villages, or evastation not justified by military necessity.I while crimes against humanity were defined by the Charter as: 4G. Schwarzenber er, "The Jud ment at l u.remberg," The Year Book of orld Affairs, 2:9 -96, 1948. 5se e : E on Schwalb, "Crimes Against Humanity," British Yearbook of I nternational Law, 23:178-226, 1946. 6 For the indictment at Nurember (Count 4), see: Trial of the Ma or War International Military Tribunal, 19 7, 7 _rticle 6 (b). Italics a ded. for such crimes Criminals ( Nuremberg: Vol. I, P• 65 ff . 67 ••• murder, extermination, enslavement, depo tation, and other inhumane acts committed against any civilian population, before or during war, or persecution on political, racial, or r ligious grounds in execution of or in connection with any crime within the jurisdic tion of the tribunal, whether or not in violation gr the domestic law of the countr where perpetrated. Thus it would appear that individuals ma y properly be held accountable for the commission of such i humane acts and they cannot claim protection by the doctrine of national sovereignty. According to one observer, The effect of this reasoning is to make every person a citizen of the world with duties under international law which transcend obligations which may be imposed upon him by reason of his citizenship in a sovereign state.9 There were many in erpretations of the effect of the War Crimes Trials on international law in genera1. 10 But there was ~idespread a reement that if the trials were to have any permanent effect, they shou d be mad e the beginning of a re ular practice, rather than remaining isolated punitive example , open to challeng e as being not 8 Article 6 (c) . I talics added. 9 whitney arris, 11 1 1 he ~uremberg Tri a l ," alifornia State Bar Journal, 22 : 111 , March, 1947. For a definition of 11 crimes against humanity," see: Robert H. Jackson , reporter, I nternational Conference on Militar Trials, London 19 , W ashington , D. C.: U. S . overnment Printing Office, 19 9) , PP • 423 ff. Also of interest in this re gard is, Office of the united States Chief of Counsel for Prosecution of Axis Criminality , azi Conspiracy anq Aggression: Opinion and Judgment ( ashington, D. C.: U. S . Government Printin Office, 1947), P • 4• 1 ° For exampl e, obert • W elkin haw, "The Nuremberg and Tokyo Trials: Ano her Step Toward nternational Justice , " ABAJ, }5:299-302, }62- 3, April, 1949; and 68 so much the result of criminality as the penalty of defeat . In the language of George A. Finch, The United Nations should make the Nuremberg principles and procedures applicable to all future aggressors without diitinction as to their enemy or friendly character. 1 International Law and the Individual One of the most commonly mentioned principles of the War Crimes Trials is the concept that they have made the individual person a subject of ·nternational law for the first time. This principle is often cited as the con tribution of the trials to the human rights movement in general . Although this view cannot be fully accepted, there is an element of validity in it. The two fallacies of this view a r e, first, the assumption that the indivi ual ha never been subject to the limitations of international law prior to Nuremberg and Tokyo and, second, the assumption that he has been fully subject since that time. nstead of a pattern of black then white, the pattern has been--and continues to be--one of various shades of rey. Geor e M anner feels that the doubtin the preventive value of such punishment: • B. Schick, ----"The Nuremberg Trial n the International Law of the Future, n AJIL, 41:770-794, October , 1947. 11 eorge • Finch, "The urember g Trial and Interna tional Law," AJ L, 41:35, January, 1947. 69 concept that the individual as only an object rather than a subject of international law is as recent as 1896, and that although it represents the "currently dominant doc trinal con ception" of the status of the individual in in ternational law, it has by no means been the only one. 12 He is of the opinion that such events as the ar Crimes Trials represent only some of the recent reactions against this dominant theory. 1 3 Herbert Br·g s, in concludin is section entitled "The Subjects of International Law, " in his The Law of Nations, makes a similar observation: In conclusion, it may be stated (1) that interna tional law, in addition to re ulating the relations of States, has always contained provisions for the protec tion of individual needs and interests; (2) that the rights and obli gations stipulated by international law with reference to individuals are ordinarily available to the individual only indirectly pursuant to State practice incorporating the provisions of international law into munic p 1 law; (3) that exceptionally, by interna t ional agreement, States hav e made international law directly applicab le to individuals; and (4) that the increasing concern with human rights manifested in the United Nations Charter, the Universal Declaration of Human Rights, the proposed Covenant on Human Rights, the Convention on Genocide, and the proposed imple mentation of the principles of the uremberg Charter and trial will inevitably extend the scope of interna tional law to cover matters of concern to the individu al which have hitherto been unregulated by that law and may lead to a further development of those special 12 eorge Manner , " The Object Theory of the I ndividu al in International Law," AJIL, 46 :42 -49, July, 1952. l3Ibid., P• 449. 70 a reements by which international law has, on occ~sion, been made directly applicable to the individual . 14 One of the most si nificant aspects of the Nuremberg trials was that they came at a time when feeling was the hi hest for some international control over individual act ons, when a great and pressing need was felt among le _alists for such control. "lnternational law has lacked effectiveness," wrote Quincy right in 19 6, "because its rules have lacked effective means of enforcement against individuals . 11 1 5 An in the same year, Clyde Ba leton reflected the same felt need as follows: No system of law and order can succeed without the support of those to whom it applies; and unless inter national law can be brou ht closer to the individual, unless he can see the benefits which it offers him as a person, unless he can feel the pull of loyalty and duty toward it, the average citizen will not ive it the support which we wish it to have and which, indeed, it must have if we hope to have peace and order estab lished in the world.lb It is only natural that these persons who advocated the extension of international jurisdiction over the indi vidual should see in Nuremberg the full rather than partial fulfillment of tha oal. Vespasian Pella, the President of the International Association of Penal Law and long t me 1 4Herbert • Briggs, The Law of Nations (second e ition; ew York: Appleton- r entury-Crofts, Inc., 1952), P• 97 . c' l,:;"tuincy right, "The uremberg 'rrial," Annals, 2 6:79, July , 1946 . 16 Glyde Eagleton, "The Individual and International Law, 11 Proceedings of the American Society of nternational Law, 1946, P • ~2-39. advocate of an international criminal jurisdiction, de clared in 1950 that 71 the individual has become an active subject of inter national penal law in view of the emphatic affirmation i n the Nurnberg Judgment of the primacy of the interna tional obligations of individuals ove 17 their duty to the state of which they are subjects. In the s ame year Quincy Wr~ght was willing to state hat The principle, enerally accepted in the 19th century , that only states are subjects of international law, ha s been challenged by the wides read discussions o human i hts and inhuman offenses. That principle has, in fact, been ignored in so many inst~nces that its continued validity may be questioned.lb M ovement for an International Criminal Jurisdiction Out of the ar Crimes Trial there had developed, as noted above, a movement to create a permanent institu tional method for dealing with such future offenses as might occur . 19 The first definitive step in this direction 17 ves asian • Pella, "Toward an I nternational Criminal Court," AJIL, 44 :52, January, 1950. 18 uincy right, " Freedom and Responsibility in Re s ect to Trans - National Communication," Proceedin~s of the American Societ of International Law, 1950, p . 9. For o her views on individuals and international law, see: . • Lanterpacht, ttThe Individual as a Subj ect of Interna- ional Right s and Duties," Chapter III of his nternational Law and Human Ri ghts ( ew York : Fre derick A. Praeger, Inc., 1950) , • 27-45 ; and Pieter N. Drost, Human Rights as Le~al Ri ghts (Leid en: A. i . s · jthoff's Uitgeversmy N.V., 19 1), pp . 21- 25 . 19 ee , for example, Q .,uincy Wri ht, "The Law of the Nurember Tr al," AJ L, 41 : 38-72, January, 1947, where he concludes the time may be ripe for an international crimi nal court. 72 was taken in November 1947, when the General Assembly of the United Nations directed the I nternat·onal Law Commis sion to prepare a draft code of "Offences Against the Peace and Security of Mankind" in order to indicate the place of the principles developed during the urember trial. As part of this work, the Commission was charged wi h the official formulation of those principles that had been recognized in the Charter of the urnberg Tribunal. On ecember 9 , 1948 , the nternational Law Commission was specificall commissioned by the General Assembly to s tudy the delineation of an international criminal juris diction.20 A " raft Code of Offences Against the Peac e and Security of Vlankind" was prepared . 21 During the summer of 1953 this work was continued by the General Assembly's Committee on I nternationa l Crimina l Jurisdiction meeting at ew York. 22 In Au 0 ust 1953 , a "Revised Draft Statute" was completect. 2 3 20 see Yuen-li Lian, " The Establishment of an Inter nati onal Criminal Jurisdicti on: First Phase," AJIL , 46:73- 88 , J anuary , 1952. 21 Clive Parry, "Some Considerati ons Upon the Content of a Draft Code of Offences Against the Peace and Security of M ankind," The International Law uarter.lx, J : 208 - 227, April, 1950 . 22 uen-li Lian, "Te stablishment of an Interna tional Crimina l Jurisdiction: Second Phase," AJIL, 47: 63 -57, October, 1953 . 2 3"Revised Draft Statute for an International Criminal Court," United ations ulletin, 15 :193- 98, Sep tember 1, 19 • 73 The Statut e was designed to establish an interna- tional court to deal with acts of individual criminality wit in areas of jurisdiction to be conferred by the state within whose jurisdiction the individual otherwise came. There was no question, however, but that the Court was to ubject indivi uals to the law of nations. The proposed Court's very purpos e was "to try natural persons accused of crimes enerally recognized under international law." 2 4 Quincy Wri ht felt that such a permissive area of jurisdiction was too narrow for an international criminal jurisdiction, sayin that if an international criminal court is in any measure to fulfill the purposes of such an institution, it must be given a more extensive authority and a broader juris diction than is provided in the draft statute.25 On the other side of the issue, there were several who saw possible dangers in th establishment of an inter national criminal jurisdi ction, includi g several experts in the fiel of international law who were advocates of the human rights pro ram in enera1J6 Mos t of these fears arose from the propaganda purpos es such a code mi ght be put to under the "Cold ar" conditions then prevailing. The 2 4Article I . 2 ' Quincy Wri ht, "roposal for an I nternational Crim al Court," AJIL, 46:72, January, 1952. 26 Pit an • Potter, "Offenses gainst the eace and ecuri y of ankind, " AJIL, 46 :101- 02 , January, 1952; c. G. Fenwic , "Draft Cod e of Offenses Against the Peace and Securit of M ank·nd," AJ L, 46 : 9 -100, January, 1952. 74 existence of so eneral a code of offenses as those "a ainst _J the peace and security of mankind" mi ght aggravate ra her than allevia te the tensions between 7 ast and West . For example, Fenwick has as ked if Congress mi ght no be liable for passin , the utual Security Act of 1951 and thereby con t ributing to "fomenting civil strife" in the oviet Union by its use of public .funds. 2 7 Other critic:sms were based on domestic rather than interna ional political considerations . The grou f a voring enator ricker 1 s Amendment to the Constitution enerally questioned the le al im l ications of an international criminal court at the same ti me hat they ques t ioned the Genocide Convention or the Covenants on Human Rights. Geor e Finch, f or example, char ed tha the Draft Sta ute was incom a ible wi h the American Bill of Rig h t s for vio- l a in, amon o her 28 hings , the ri ht to tr i al by jur. The draft ode of Offenses a ains the Peace and Security of M ankind , as revise d at sixth session of the I nternationa l Law Commission went befor e the General As sembly at its ninth s ession. The Genera l As sembly adopted a resolution 2 9 postponin furt er consideration of the 2 7Fenwick, op. cit., p . 99 . 28 eor e A. inch, "Trea y M aking Power,n Souther n California Law Review, 26 :J59 , July, 1953. See also his earlier Draft Statut e for an International Crimina l Court," JIL, 46: 9- 9 , January, 1952. 2 9General Assembly Resolution 97 (IX) , "Draft Code of .ffenses A ainst the Peace and Securi ty of ankind, " 75 draft Code ntil the Spe ial ConL~ittee on the question of e in · n a _ ression , establis e by ubm · tted its concl1 sions . earlier resolution, Du in the same session of th General Assembly , the r..,vised draft Stat, te for an I ter at·onal Crl inal Court , r epared by the Co ittee on Inte nation _l Crtmi 1 Juris - a i tion in 1953 , ·as also consi. e The G neral Assembly e · ded o postpo e consider tion of the u stion of an international c lmin 1 jur·sdiction 1ntil it ha t <en p t e report of the Spe ial Co ittee on thA qu~stia o efi · n a gr ssion and the dr t Code of Offens~s a ainst t e Peac and Sec r · ty of 1 Ianki d. 3 1 T · s is where the tt r stood on he tenth ann· ersary o the United ~at io s . Con lusions The ar cr ·mes Tria and the ovement tow rs n Int 0 rn tio al Cod of imin'l aw reorese t some of thJ most v i o et aspects of the rea tion against N 7,i brutality. v ileitis tr . that the entire H man Rights P ogr m w s init "ated nder th s histo ·cal influence, the .rJ r Crimes 'rrials and th subse uent movement to -.Jards an international ---- -- De c e robe r l , 19 5 l • JOGener 1 As embly 11esolL1ti n Be S (IA), " Q stion o.l. De ining A ression, ' 1 December u, 195L~ . 1 era Assemb esol·'-1 ion 898 ( I ) , 1 Interna - t · onal Cri ·nal Jurisdiction," Decemb r 1 , 195. 76 criminal jurisdiction are t he clearest examples of the direct relationship between azi brutality and the United Nation Program forte protection of human rights. During the drafting of the Charter at San Francisco , attempts to write an I nternational Bill of Ri ghts during the heat of the moment were successfully defeated. Had such a bill been drafted under these circumstances , it might very well have run into the same critic isms that wer\e later to be made of the ar Crime s Trials . By the tenth anniversary of the United ations , it had become apparent that the War Crimes Trials were no t to become as significant a precedent as had ori inally been intended . Had the trials been held under the aus ices of the United ations and had the courts includ. ed jurists from nations which had been neutral during the war , there could be no doubt that the results of the tr i als as le al prec edent would have been greatly enhanced . By 1955 , the trials had fad ed into a historical phenomenon , a specific incident mor e commonly thought of as a part of his t ory of the Second orld W ar than as a part of istory of International Law. The movement for the creation of an international criminal jurisdiction is an a tempt to go back and rescue some value from the phenomenon by urning it into precedent to be utilized by a permanent court . tis , however , a bit late to recapture the en- husiasm for such a movemen t that had existed at the end of he war . Paradoxically, i is also probably oo early 77 to create such a jur·s ict · on for future use on a purely evolutionary and pr a ma.tic basis . I appears, the r efor e , that only a Third orld ar or other similar threa t c ould create a cli mate of op i nion in which an internat i onal rirninal juri sdi c t i on would be accepted in the near future . An i nterestin al t ernative to such a juri sdi ction ha been uresented . This would be the e stablishmen t of an ~ internati onal c i vil court havin ju i sdiction over ce r tain phases of internati onal pri ate law so that the experience ained cou d be late r u ilized in reatin a c r iminal counterpar t for this civil court . 3 2 The creation of such a court w oul i nvolve the establishment of re cedents a n rocedu e s that would later be of inestimable value i n the creatio of an International Criminal Court but would no t involve the thorny political problems that mi ht otherwise _oom th second project f r om the start under the resen circumstances . ts advisab . lity as a for~ m f or the settle - ment of issues of international civi l law ·s , however , beyond the scope of this study . 3 2 Fo r one such proposal see : Robert B. Ely, III , "A Proposa l f or an I nte r national Criminal Court: A Critique a nd an Alternati ve," Dickens on Law Review, 57 :46- 60 , Oc tober, 1952 . CHA T~.i11 V 'rHE -rv~- SAL DECLARATI Or OF HUI1A - RIGH s Second only to the Charter of the United Nations in creatin questions in human rights stands the Universal Declaration of Human Ri ht s passed by the General Assembly of the United Nations on December 10, 194 . In this chap ter the history n purpose of the Declaration will be touched upon and an in uiry will be made into the le al effect of such a resolution . 1 Purpose and Histo r y of the Declaration Those who had wanted an International ill of Ri hts as part of the Charter of the United Nations 2 were defeated at an Francisco . u t the movement did not stop there . It is si nificant that President Truman at the closin plenary session of the conference had declared that Under this document /the·Charter7 we have ood reason to expect the framin of an-international bill of ri hts , acce ptable to all the nations involved . That b i 1 of riot s wil be as much a part of our interna tional life as our own Bill of Hi hts is a part of our 1 or an article by artic e interpretation of the final document , with historical notes on the development of each article , see: Nehemiah obins on , Universal Declaration of Huma i ~hts: I ts Or i ins ig~ificance and Interprets"= t ion New York : Institute of Jewish Affairs, 1950), pp . 33- 79 . 2 s ee Chapter I I , PP • 40 - 5 0 . 79 Constitution.3 If the idea had ever been really entertained to at tempt formal amendments to the Charter in order to create an International Bill of Rights, as one might imply from the President's remarks, it was soon discarded. The procedure actually planned was that the Human Rights Commission of th3 Economic and Social Council, provided for in Article 68 of the Charter, would draw up a Declaration of Human Right s in the form of a treaty to be separately ratified. Later this plan was divided into two phases: a generalized Dec aration to be passed in the form of a resolution of the General Assembly and a special, and much more specific, Covenant on Human i ghts to be drafted in treaty form. The Declaration was to be prepared first, since it presented fewer legal problems and could logically be considered a valuable pre liminary step to the drafting of the Covenant . Mrs. Franklin D. Roosevelt, the representative of the United States on the Commission, speaking at the Sorbonne in September 1948, out lined the program as follows: It was decided by our Commission that a Bill of Rights should contain two parts: 1. A Declaration which could be approved through action of the Member States of the United Nations in the General Assembly. This Declaration would have great moral force, and would say to the peoples of the world "This is what we hope human ri hts may mean to all people in the years to come." e have ut down here the rights that we consider basic for individual human beings the world over to have. ithout hem , we feel that the full development of individual personality is 3 ession of June 25 , 19 5. Bulletin, July 1, 1945 , p . 5. n Department of State 80 i possi b e . 2 . 1 he second par of the i 1 .•• · s a cove ant w h i h wou be i n the form of a treaty t o be reseted to he nations o · the wor • ach natio , as it is pre are d to do so , wou~ ratify this covena t and the cove ant woul then be c ome bin in on the nati ons hich adhere to it . Each nation r atifyin ould then be obli ated to chan e its laws w henever t hey did not con orm to the poi ~s contained in t he covenant . As earl as t e secon session of t he Commission at Geneva in 47 , a dr aft dee aration ha been pre are d . At t he thi rd session at La e Success this w s drastically r ewr · ten , espe ia ly re p acin the speci f ic li itations o ri hts i he in ivi al artic es by a sin ~ le artic e l imitin e enti e do ument to the extent ecessary for securin 11 due reco ni ion and r e s pects for -e ri hts and r e e oms of others and ••• meetin the j st requirements of mora ity , pub l ic order and the eneral welfare in a democratic society . 11 5 y the clos · n of the th.rd session , e Declaration was ready for presentati on to the General A sembly ; it was a document of thirty articles ex ressin the h i hest oals of heh man ri hts pro ram in non- tech ical terms without any a ency of enforcement provided . 6 4 s . Franklin D. oosevelt , · i hts , " Human i hts and Genocide , Pub ·cation 1 o . 3 3, Internation 1 eries II (Washinton , D. C.: ice , 9 9) , Vo . 39, p . 2- 3. 5 A r tic e 29 , ec ion 2. 6 "The Stru e fo r Human De artment of State O r anization and Confe p. U. S . Governm nt Prin t · Po~ t or of this sessi on , see : James imsarian, 11 1ir essi on of t United a ions Co ission on H man I i · t s , ' A IL , 2 : 879 - 883 , October, 1 In the course of the dra tin o the eclarat · on by the Commission on Human - i hts in June , 1948 , rs . oosevelt had said , 1 Te Declaration should not e in any sense a le ~is lativ e docurne • The Genera Assembly was ot a le is lative ody •••• It as clear that the Declaration , as envisa ed, id not ere te le al r erredies or ro cedures to ensure respe c t for the ri hts an freedoms i proposed to he world ; ht ideal would have to be ach · ev d by furthe r steps aken in accordance Ji th ir1ternational and d omestic law . he declaration would have mor al , not mandatory fo r ce . ? Later , hie opposin a ussian proposa t o refer expressly · n the Declaration to a l imitation of wor kin hours , she a ain ointed out that he eclaration had 'no juri ical value . • • • Consequently, mentionin that ri tin the Declaration was a meanin es ges t ure . u 8 T is remark rou ht a ret ort on the part f the Sovi e representative , tat the s ame ar ument coul be raised a ainst all other articles of the Dec aration . In co·1nection i a discu.ssi of the question of asylum , the Australian dele ·ation had pointed out that it fe t that f ormulas implyi r :) obli ··ations must be avoided in the text of t e declaration of uman r · hts . 1 he 7 united ·ations cono · c and Social Council , Commi s ion on u an i .htQ , S . ma~y R_ecor ds , /c14/s . ~8 , 1 lay 2 , 19 8, p . 7. See also E/ c· 4/SR . O , 1a 27 , 1948 , p . 8, or ii ar observatio s by the Indian re r e sentative . (Refer ence to t e Corr.mission 1 s u n:mary recor s wi hereafter be in ic,ted on y b he ci tion o a Uf ocu ent number e 7i nin: /c . / .--- ) 8 /c 4/s . , June 1 , 48, p . 10 . 82 Declaration, he said, ''must make no reference to the corre sponding obli gations of States. 11 9 In drafting a preamble for the Declaration, the Soviet Union proposed the followin wording: The General Assembly recommends the following, 11 Declaration of Human Rights" to all State Members of the United ations to be used at t heir discretion both in adopting appropriate le islative an o her measures. Mrs. Roosevelt, however, argued that th·s wording would seriously weaken the mora force of the Declaration. She reasoned as follows: The fact that the Declaration would not be le ally binding upon Governments made it all the more necessary to phrase the Preamble so that it would exercise upo8 them the greatest possible form of moral 1 suasion.• 1 The sole assertion of any l egal force for the Decla ration came from th Frenc and Belgian representat·ves . In the Third Committee, the French representative, M . Cassin, mainta·ned that althou ~h the Declaration would not possess coercive legal powe, it could be considered as an authori~ tive interpretation of the Charter and as the commo11 stand ard to which the legislation of all the Members of the United Nations should aspire. In the view of ranee, he sai , 9 united Nations General Ass embly , h·ra Committee, Summary Records, A/CJ/SR . 121, November 3, 194 . (Summary records of the Third Committee will ereafter be cited by the use of a UN Document number beginnin A/CJ/SR--- ) lOA/CJ/SR . 165, ov mber JO , 194 , P • d . 83 States are compelled by the Charter to recognize the competence of the main bodies of the United Nations in the matter of human rights ••• the competence of the main bodies of the United r ations in questions of human rights is positive.11 Professor Cassin then went on t o read legal consequences into the ac t of adopting such a Declaration, sayin.g : The provisions of Article 2 , . aragra ph 7, of the Charter relating to the dom stic jurisdiction of memb er States, could not b e invoked against such competence when , by the a doption of the Declaration, the question of human rights was a matter no longer of domestic , but of i nternationa l concern. ''rhus," d eclar ed Lauterpacht · n his analysis of Cassin's views , whi l e the distin uishe lawyer was saying , in the firs t part of his statement , that the competence of the United Nations in the matter of human rights was ' positive, .. he proceeded to su gest that such competence was the result of the a option of a Declar a tion whi h prac tically al l M embers of the un·ted ations consider not to ha ve created any le al obligation a t a11 . 1 2 Te view s of the French delegate caus ed the elgian repr esentative , Professor Dehousse , to recons i er his previ ous view of the 'purely optional significanc e of the Decla ration.•13 He pointed out, in the first instance , that the Declaration, b eing a recommendation of the Genera l Ass embly, 11 A/CJ/SR . 92 , October 2 , 1948 . 12 H. Lauterpacht, I nternational Law and Human Right s (N ew York: Frederick A. Praeger, Inc., 1950) , p . 406. · 1 3A/c3/sR . l08 , October 20 , 1948 , p . 8. 4 which was a juridical organ of the Unit ed ations, would have an "un eniably legal character . " M . Dehousse did not, how ever , clarify these statements, nor did he elaborate the significance of .the statement that the document would have an "undeniably legal character . " He did, however, inquire as to whether the Declaration, when accepted, would be pure~ optional or whether it would be a binding in effect. He assumed t hat certain principles of the Declaration were alredy part of the customary law o nations and were, in consequence, reco nized in unwritten international law. The f act that these pri nc~ples had now been made par t of the Declarati on would not, he felt, deprive these rules of their bindin cha acter . Opposition to the propos ed Decla r ation was alr eady developing in some quarters in the United tates. In S e p tember of 1948 the ouse of De l egates of the American Bar Association a pproved a resolution proposed by its Committee for eace an Law Through Un i ted ations: Tha t the Ame r ican a r Associati on is of the opinion that any Declaration on Human Rights should not be in any manner approved, accep ted or promulgate by or in behalf of the government of the United States e c e p t upon and after the submi s sion of such document to, and the ap proval of it by , the Congres s of the Unit ed States . 14 The Committee on eace and Law Throu h the Unit ed 1 4"Decla r ation of uman Ri hts: Canadian, American Bars Ask Delay of Act ·on," A AJ, 34 : 83, Octobe, 1948. 85 Nations was headed by illiam L. Ransom; other members were Frank E . Holman, President-elect of the Association, Fred eric M . Miller, Reinald Heber Smith , Jude Orie L. Phillips, M. C. Sloss, George A. inch, Carl B. Rix, an Tappan Gregory . Several o these person were later to be promi nent in the debate on the advisability of r a tification of the Genocide Convention, the appropriateness of a Covenant on Human Ri ghts, and the need for a Constitutional amend ment to limit the treaty- making power of the executive bra nch of government . The 1948 resolut ions dealin with the Universal Declaration ha been put to a vote by the House of Delegates of the American Bar Associat·on at its meeting in Seattle and were "adopted, with no votes ·n the negative heard . " At about t h e same ti me the Canadian Bar Assoc·ation in a some what milder resolution stated that any such Declaration "ou ht to be examined with the utmost care in all its jurid ical as pects.nl5 During the next year, President Holman became very active in the pro ram to point out the dangers of the Human Ri ghts rogram. But members of the Association were not polled on t e issue and b y the next annual meeting of the ouse of Del e ates, some opposition developed to a resolution 15 . . ~ 4. bid . , P • u 86 proposed by the Committee on eace and Law Through United Nations recommending against ratification of the Genocide Convention. A compromise resolution was finally adopted. 16 Nevertheless the United States government strongly supported the adop t ion of the Declarati on by the United Nations. During the course of his opening statement to the Third Session of the General Assembly in September 1948 , Secretary of State eor g e C. Ma r shall said: Le t this Third Regul ar Session of the General Assem bly approve by an overwhelming majority the Declaration of Human Ri ghts a s a standard of conduc t for all; and let u, as Members of the United Nat i ons, conscious of our own shor tc omings and imperfections, join our ef fort in good faith to live up to this high standara .17 The Declaration was pa s sed by the General Assembly on December 19, 1948 . There were no ne gative votes, although eight states abstained : 0yelorussian Soviet Socialist Re public, Czechos l ovakia, oland, Saudi Arabia, Ukr a i nian Soviet ocialist epublic, Union of South Africa, Union of Soviet Socialist Republics, and Yugoslavia. Si gnificance of the U ni versa l Dec l aration On the very day t hat t he Uni versa l Declaration of Human Ri ghts was passed , Mrs . Roos eve l t expressed , as fo l l~s her view s upon the si nific anc e of what had just been done, l6 " Proceedin 1 . . s of t h e Hous e of De e ates," ABAJ, 35 : 947-65 , ovember, 1949 . l 7 eor e C. M arsha l l, " 1 0 Compromis e on Essential Freedoms," Human Ri ghts an Genocide, Departmen t of State Publication No. J6q.J ( ashing ton,D. C.: U. S . ,overnrnent Print in Off i ce, 19 9 ) , P• 35. 87 In giving our approval to the declaration today, it is of primary importance that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is rot and does not purport to be a statement of law or of legal obligation. It is a declaration of basic prin ciples of human rights and freedoms, to be stamped with the approval of the General Assembly by formal vote of its members, and to serve as a common standa~d of achievement for all peoples of all nations.l~ The issue has not been quite as clear as this state- ment mi ht seem to indicate. ven Mr s . oosevelt, at another place, declared that "The fact that the Declaration does not state rules of law binding upon the Members of the United ations does not mean that it is without weight." 1 9 There have been many opinions as to the type of "weight" such a resolution may have. Benjamin v. Cohen, United States delegate to the General Assembly, emphasized the extra-legal importance of the document: The Declaration is not a t reaty. I t is not legally bindin upon the members of the United ations. But i t is what it is stated to be--a universal Declaration of Ri ght s.20 There are many unresolved questi ons as to the legal and other si nificance whic h may be properly attached to the ------- - . - . - - - - --- 18M r s . Frankl i n D. Roosevelt, "Adoption of Declara t i on of H uman Fi ght s , 11 uman Ri h t s and enocide, p . 25. l 9 n ~e I nt ernational De claration of Human Ri ght s ," uman Rights and enoci e, P• 14. 20B . . enJami n a ti ons har ter , n ummer, 1949 . • Cohen, " I urnan Ri ghts Under the United Law and on t em orar robl ems , 1 : 32, 88 Universal Declaration of Human Rights . Legal effect. o one has , of course, claimed the Declaration to be binding as a treaty; some have, however, claimed that the document is not without legal content . F . Blaine Sloan, in his analysis of the binding force of General Assembly resolutions, declared that, here are circumstances under which a resolution of the General Assembly produces important juridical conse quences and possesses bindin le al force . As a eneral rule, however, resolutions, for lack of intentio or of mandatory power in the Assembly, do no create binding obligations in positive law . 2 1 In respect to the intention of the session of the General Assembly that passed the Universal Declaration, Lauterpacht has noted that The practical unanimity of the Members of the United Nations in stressing the importance of the Declaration was accompanied by an equally eneral repudiation of the idea tha t the Declaration imposed upon them a legal obligation to respect the human rights and fundamental freedoms whi ch it proclaimed . 22 Another aspect of the issue is the relation of the Declaration to international law . Does such a resolution bind those states adoptin it to take actions of a legal nature? o. Frederick Nolde observed that 2lp . Blaine Sloan, "The Binding Force of a ' Recom mendation' of the eneral Ass embly of the United Nations," British Yearbook of I nternational Law , 25:Jl , 1948. 22 • Lauterpacht, 11 The Universal Declaration of Human Ri hts," British Yearbook of International Law, 25 : 356 . See also his eneral discus ion on the bindin _ nature of the eclaration, • 356- 70. 89 ations which are disposed to improv e their con uct in observing hu ,an rights will be able to make use of the Declaration as a standard both for legislation and for court interpretation . 23 ncorporation of General Assembly resolutions into domestic law is not a well settled issue . According to Sloan , resolutions ••• do not directly become a part of any national law as do treaties under the supr macy clause of the nited States Constitution or as do rules of general interna tional law under the Anglo-American doctrine of incorpo ration into the common law . Recommendations mi ht be u ilized directly by courts ••• but enerally speaking le islation wo~ld be necessary to give them effect in municipal law . 4 Perha s them st interes in opini non the n versal Declaration of uman Rights is that it can be considered an interpre a ion of just what is meant by "human rights and fundamental freedoms 0 as referred to in the Charter of the United Nations. Such a view relies upon the fact that the Charter is a formal treaty and indirectly gives le .al effect o the words· of the Declaration as a formal definition of the terms used in the treaty. Th·s opinion is of further interest because of a con rovers al case--Sei Fu.ii v . State of California--in which the dec·sion of the California Dis- trict Court of Appeal illustra ed the impact of such lo ic. 90 Even before the Declaration ~as proclaimed in the General Assembly, Frank Holman, then President of the American Bar Associa ion, expressed his fears that the Declaration might be held as an "authoritative interpreta tion" of the Charter of the United Nations . 2 5 The Fujii case--at the District Court of Appeals level--crystallized this very type of fear. In thi 1950 case, testing the validity of the Alien Land Law of Cali fornia, Judge ilson declared: This nation can be true to its pledges to the other signatories to the Charter only by co-operating in the purposes that are so plainly expressed in it and by removing every obstacle to the fulfillment of those purposes.2 6 The provisions of the Universal Declaration of Human Rights were cited in the decision in an effort to clear up some of the va .ue expressions of the United Nations Charter . "Clearly," continued Jude Wilson, such a discrimination against a people of one race is contrar, both to the letter and to the spirit of the Charter which, as a treaty, is paramount to every law of every State in conflict with it . The Alien Land Law must therefore yield to the treaty as the superior authority.27 As is apparent, such a decision ra i sed many ques tions. The issue of the non-self-executing nature of the 2 5Frank E. olman, "An 'International Bill of Rights•: Proposals Have Dangerous Implications for u.s.," American Ba r Association Journal, 34:9 4, November , 1948. 26 Los Angeles Daily Journal, April 25 , 1950. 27L ·t OCe Cl. • 91 Charter has been discussed above. Opinion was divided on the correctness of the court's reasoning. 2 8 In the light of this decision uincy Wright analyzed the legal nature of the Declaration as follows: Whil e not a treaty, the Declaration is of great interpretive value, manifesting the opinion of the United Nations as to the scope of human rights and fundamental freedoms.29 "In view of ••• divergencies in American practice:• he wrote, "·tis fortunate that the courts have before them the Universal Declaration of uman Ri hts as a gu de to the interpretat:on of Article 56 of the Charter.n30 Dr . Wright was fully willing to hold that the terms of Article 56 amply support th opinion of the court in the Fujii case that the Universal Declara tion of Human Rights, while not a treaty, constitutes an authoritative interpretation of the words "human rights and fundamental freedoms" in Articles .55 and 56 of the Charter.31 Prior to the opinion of uincy Wright , Hans Kelsen had expressed a quite different view of the matter in no uncertain terms. 28 For an excellent analysis of the Fujii case and the le al effect of the Universal Declaration consult: Lawrence Preuss, "Some Aspects of the Human Right s Provi sions of the Charter and Their ·xecution in the United tates," AJIL, 46:289-96, April, 1952. 29 Quincy · right," ational Courts and Human ights- The Fujii Case," AJIL, 45:77, January, 19.51. JOL ·t OC. CJ.• Jl Ibid., P• 72. 92 It stands to reason that the resolution of the General Assembly on human rights has no legal effect whatever. lt cannot be considered as authentic inter pretation of the provisions of the harter referrin to human rights. An authentic interpretation is pos sible only by an amendment to the Charter . 32 Manley o. Hudson, just a few months after the deci sion of the District Court of Appeal, stated that he felt that the reasoning has been "based upon a misconception."33 Although he based most of his own logic on the non-self executing nature of the Charter,34 he said that the Decla ration of Human Right s "is in no sense bindin on the Government of the United States," and that ''its provisions have not been incorporated in our national law."35 Upon the appeal of the decision of the District Court of Appeal to the California Supreme Court, the judg ment was reaffirmed; but the decision was based on the domestic concept of "equal protection of the laws" rather than on any international aspect.3 6 This left the issue still somewhat unsettled . The most common recent comments have, however, t ended to agree with Dr. Hudson rather than 32 Hans Kelsen , The Law of the United Nations (New York: Frederick A. Praeger, Inc., 1950 ), P• 40. 33 Manley o. H uds on, "Charter Provisions on Human Rights in American Law," AJIL, 44:543-48, July, 1950. 34 bid., P• 545 . 35 bid., P • 547 . 36 38 Cal. 2nd 718 (19.52 ) . 93 with Dr. Wright. Extra-legal effect. "There may be a tendency--which ought to be resisted--" said Lauterpacht in late 1948 , to indulge in a legal interpretation of what is not a legal instrument for the reason that its adoption was preceded by prolonged discussion often indiatin uish able from that which precedes the adoption of a statute or a binding international instrument.37 It is probably true that the greatest significance of the Universal Declaration is outside of the legal realm. King Gordon, Chief of Section of the Division of uman Rights, was not thinking in terms of legalities when he recognized in 1952 that 11 The Universal Declaration was a great achievement and, as we have seen, its impact has been enormous and is continuing. 11 38 The educational values of the Declaration has been stressed by several leaders. If only the concept of human rights were propagated among the multitudes their realiza tion would be that much the nearer. Mrs. Roosevelt ex poused this view as follows: twill be a long time before history will make its judgment, and the jud ment will depend, think, on what the people of different nations do to make this document familiar to everyone. If they know it well 37 Laute pacht, op. ci~., P• 370 . 3 8 n Clyde 1 a le ton and Richard • Swift (eds.), 19 2 Annual Review of Unite ations Affairs (New York: New York University Press, 19 3 , P• 101. 94 enou h, they will strive to attain s ome of the ights and freedoms set forth in it . 9 In a somewha t similar vein is the statement of Julian Huxley , then Di r ector- General of UNESCO, that the Universal Declaration is a pu lie asserti on of belief and duty concerning the relations of the human indivi dual to the political and economic forces with which he is surrounded, a proclama tion of what the signa ories believe ought to happen , subjecv o various ·nevitable exceptions, in t he world's present stag e of development . ts value lies precisely in the fact of its be ·n a pu lie profession of general ideas . The prof ssion of belief will undoubtedly often not be fully honoured in practice, the reality will often not correspond fully to the ideal. But the ideal has been publicly roclaimed, nd through that fac the ideas have begun o germinate in the general mind in all parts of the world, so that it will be difficult to erad ca e them, difficult 0 to prevent their rowin slowly to full fruition . Y- Others have emphasiz he value of the Declaration in bri ing the conce ts of li erty of so many cultural grou s into a single , thou h necessari somewhat va gue, document . I has thus internationalized ideas previou ly thou ht of in n tional context only . 4 1 11 orld law to be effective ," declared Benjamin V. Coehn ·n 1949, "must be rooted in sentiments deeply cherished throughout the world 3 9 olde , op . cit., P • 3 • 4°Julian uxley in h i s introduction to Freedom and Culture , a collection of articles edited by U ESCO (London: 1 • i ng a t e , Ltd • , 19 51 ) , p • - 9 • 4 1 For some iscussion of the probl ems of contrasting a proach s to sim lar concepts, see: Ruth enedict, 11 Recog ni ion of Culture versities in he Postwar Worl ," Annals, 22 :101- 07 , July , 1943 • 95 and not simply in national sentiments however strong they may be in some countries."4 2 Mrs . Roosevelt expressed this value of the Declara tion as well, when on the day of its adoption she told the General Assembly that, At a time when there are so many issues on which we find it difficult to reach a common basis of agreement, it is a significant fact that 58 states have found such a large mea~ure of agreement in the complex field of human rights . Y - 3 42 Cohen, o. cit., P • 433• 43M rs. Franklin D. Roosevelt , op. cit., p . 26 . CHAPTER VI THE GENOCIDE CONVENTION Closely related to the idea of a Covenant on Human Rights was the concept of an international treaty to outlaw some of the more severe forms of racial and cultural dis crimination , specifically those actions designed to elimi nate an ethnic group from a national scene . To describe the oal of such actions, the term "genocide ," e . g., the murder of a people, was coined by Raphael Lem.kin in 1944. The primary example in the minds of men such as Lem.kin was, of course , the nature of the Nazi actions against the German J ews . Other recent examples were often cited , how ever, such as Turkish attacks on its Armenian minority durin the First World War period and Czarist Russia's pogroms and other attacks upon its numerous minorities . By the time that the United Nations Charter was ratified, the view was well established that attempts at genocide were within the proper concern of the international community; an several private groups were actively supporting programs esigne to accord international recognition to the fact that ~enocide was contrary to the Law of Nations. 1 1 or a history of the Genocide Movement from 1944-49, 97 Drafting the Convention The first definitive action in this field came on November 2, 1946, when the delegations of Cuba, India, and Panama requested the Secretary-General of the United ations to include the prevention and punishment of the crime of genocide in the agenda of the General Assembly. The Assembly subsequently referred the matter to its Legal Com mittee for study. On December, 1946, the Le al Committee presented the Assembly with a draft resolution on genocide . twas unanimously adopted without debate on December 11, 1946 . 2 he r e solution declared that enocide was a crime under International Law and recommended international cooperation to prevent the commission of the crime and to punish those who may commit such a crime . In order to secure this co operation, the resolution requested the Economic and Social Council to begin work on a draft convention on the subject of genocide . tis interesting to note that Raphael Lamkin, one of the prime movers in the movement to outlaw genocide , see: Josef L. Kunz, "The United Nations Convention on Genocide," AJIL, 43:738-46, October, 1949. 2 United Nations e eral Assembly Resolution 96( ), "The Crime of Genocide," December 11, 1946. 98 felt that his oal had been attained by the resolution of December 11, 1946 , and that a further convention was not necessary in order to provide for the outlawing of acts of genocide under internation~l law. He stated that, By declaring genocide a crime under international law and by making it a problem of international concern, the right of intervention on behalf of minorities slated for destruction has been established. This principle is already acce · ted by the UN and does not need any specU'ic confirmation by treaty •••• Genocide is now estab lished as a crime under international law on a plane with piracy . 3 Nevertheless, an ad hoc Committee on Genocide was constituted by the Ec onomic and Social Council . By late 1948, a draf convention had been prepared, discussed by the Economic and Social Council and the Legal Committee of the General Assembly, and submitted to the General Assembly it selr.4 On December 9 , 1948 , the convention was unanimously adopted. hen si gning the convention on December 11, 1948, the American repr sentative declared: The Government of the United States considers this an event of gr at importance in the development of international law and of cooperation among states for 3 Raphael Len1kin, "Genocide as a Crime Under Inter national Law," AJIL, 1 :150 , January, 1947 . 4united ations, Ec onomic and Social Council, Report of the Ad Hoc Committee on Genocide A ril 5 to May 10, 1948. the purpose of elim.lnating practices offensive to all civilized mankind.~ Content of the Completed Convention 99 The Genocide Convention contains a preamble and nine teen articles. The preamble mentions the resolution of 1946, the historical problem of enocide, and the intent of the Convention t o prevent further instances of genocide . The first nine articles are the substance of the Convention. These articles reaffirm th' t enocide is a crime under international law and that the parties undertake to prevent an punish such crimes . 6 Any of the five acts may constitute an act of genocide, if accompanied by the intent to or destroy, in whole or part, a national, ethnical, racial religious group. These acts are: (a) Killing members of the group; ( b) Causing • bodily or menta l harm to members serious of the group; (c ) Deli erately inflicting on the group conditions of life calculated t o bring about its physical destruction in whole or in part ; (d ) Imposin measures int ended to prevent births with·n the group; (e ) Forcibly transferrin . children of the group to another group . 1 .5James E. ebb, "Report of the Ac ting Secretary of tate, 11 uman Rights and Genocide , Department of State Pub lication 3643 (· ashington, D. C.: . s . overnment rinting Office, October, 19 9 ) , p . 66 . 6 rticle • 7 Article r. 100 The Convention goes on to specify the five types of acts involving enocide as (1) genocide itself, (2) con spiracy to commit enocide, (J) direct and public incite ment to commit genocide, (4) attempt to commit genocide, and (5) complicity in genocide . 8 Persons are to be pun ished irrespective of their public or private status.9 The parties undertake to enact legislation, in accordance with their respective constitutions , in order to provide penalties for those guilty of acts of genocide. 10 Person so charged are to be tried in the courts of the territory in whi h the act was committed, unless the juris diction of an international penal tribunal is accepted by the contracting party concerne • 11 Article VII provide s that the contracting parties agree to extradite, in accordance with their laws and treaties, persons charged in such c a es . enoc· a e is not to be con idered a "political crime" for the purpose of extradition. "With res pect to Art:l,.cle VII regardin extradition," reported the American representative on the Legal Committee in December 1948, 8 Article 10 III . Article V. 9 Article V. 11 ,, Article VI . 101 I desire to state that until the Congress of the United States shall have enacted the necessary legislation to implement the convention it will not be possible for the Government of the United States to surrender a per son accused of a crime not already extraditable under existing laws.12 According to Acting Secretary of State, James E. Webb in 1949, Existing United States law provides for extradition only when there is a treaty therefor in force between the United States and the demandin gov ernment . Only after Congress has defined, and provided for the punish ment of genocide, and authorized surrender therefor, will it be possible to give effect to the provisions of Article VII.13 This issue of extradition was subsequently to b ecome one of the mos t contentious of the several ra·sed y the Convention. It was later to be charged that certain rights of Americans might be destroyed by their extradition to forei gn jurisdictions where identical rights did not exist. These arguments will be noted later in this chapter. The last t wo of the nine substantive articles of the Convention provided that the United ations might call upon its various or ans for aid in the suppression of acts of genocide, and that disput e s on interpretation should be submitted to the International ourt of Justice whenever any party t o a dispute so requests. The other articles are procedural in nature, relat ing to the coming into effect of the Convention, the period 12 H uman Rights and Genocide , P• 69. 13 Loe. cit. 102 of effect, methods of revision and denunciation, and other similar issues. 1 4 The Attack on the Convention Criticism of the Convention on Genocide has come from many directions . These vary in tone from lo ical analysis to emotional attack. ans Kelsen analyzes the weaknesses of the Convention on the basis of its practicali ty when the question of jurisdiction is considered. The er mes det rmined by the Convention £reminds Kelsen7, in ofar as they actually could be committed by private individuals in a way not imputable to the state, constitute crimes whi ch under the criminal law of all the states of the world are severely punishable . To protect mankind against these crimes , no interna tional agreement is necessary.15 ~hen such acts are committed, permitted , or other wise encouraged by the nation- state concerned , the problem becomes somethin quite different . Accordin _ to elsen, The only effective way to punish genocide committ ed as acts of state, and thus to prevent this crime , is the establishment of an international criminal court and the execution of its judgments by an international ly organized power. I n this respect the Convention on enocide only refers to the possibility of the estab lishment of an international penal tribunal . The Con vention does not establish such a tribunal, and the attitude maintained by some Members of the United Nations durin the discussion of this problem shows that the establishment of such c£grt is, at least for the time bein , hardly possible. York: 1 rticles throu h XX . l5 ans elsen, The Law of the United Frederick A. Praeger, nc., 19 0, p . 16 bid., ations ( ew 47. 103 Ins ofar as the Resolution of December 11, 1946 is concerned, there are serious doubts that the General Assem bly can by resolution or other affirmative act make any specific crime the subject of international jurisdiction. This is what the Resolution had purported to have accomplished . Although, as noted above, Lemkin seemed satisfied as to the leg a l effect of such action, others di s miss such effect . Arthur • Kuhn attempted to get at the realities involved, concluding that, Notwithstandin the reference of the General Assem bly to genocide as an international crime, the nations of the world do not yet consist of a society of indi viduals all subject to the authority of a definite legal order . 1 7 n the United States much of the opposition to the onvention on enocide came from the same sources as the opposition to the Covenants on Human Ri hts to be discussed in the following two cha pters . The reasons iven for such opposition were similar . On September 8, 1948, the House of Del e g a tes of the American Bar Association recommended that the United States Senate refuse to ratify the Conven ti on . Frank w . Grinnell, state delegate for Massachusetts , justified such action on the ro unds of state's rights after the action ha been called "shameful" in an editorial 17 Arthur • Kuhn, "The Genocide Convention and Stat e s Rights," AJIL, 43: _501, July, 1949. in the was a 104 oston Traveller. 1 8 Others attempted to demonstrate that the Convention threat to the American Bill of Rights. 19 Joseph L. Call, Judge of the Los An ales Municipal Court, declared that "The ffienocide7 Convention is filled with a multitude of other provisions destroying all fundamental safe uards and privileges of our own state and federal constitution~•ta> Many of these char es were based on the fear of extradition to another nation or to some international tribunal which might not grant the accused all the rights to which American citizens have become accustomed. There was disa reement on the possibility of extradition without legislation; several disagreed with the position of Acting Secretary of State, James E. ebb, who as noted above felt that the treaty would hav e to be implemented by Congress before extradition could take place . These views were based on the belief that the Convention was a self-executing treaty. Jude Orie L. Phillips , for example, declared that under Americ an law, 18 rank • rinnell, "Action of the American Bar Association in Regard to' enocide' Treaty Pending Before United tates Senate and Reasons for it," Mass. Law Quarter !x, 34:2 - 32; Boston Traveller editorial of September 10, 1949, quoted in ibid., pp . 29 - 30 . 1 9 illiam H. Fitzpatrick, "Government by Treaties,n Aransas Law Review, 6:315-1, Summer, 1952. 20 Joseph L. Call , " 'rreaty Making ower," Southern alifornia Law Review, 26:372, July , 1953. ... 105 ••• the Convention in most respects is self-executing, in those r espects, on ratification it would become the supreme law of the land. That would not be true as to any other contractin party except France and a few other states.21 In respect to this last observation, the assumption that the Convention mi ht be self-executing in the United States but nowhere else, A. A. White, Dean of the Law School of the University of Houston, expressed the most extreme point of view, saying that "it may well be that ours is the only nation in which the adoption of the Genocide Convention and the Covenant of Human Ri hts would have any effect. 11 22 On the other side of the issue there were those who pointed out the no1- se l f-ev cuting nature of the Conven tion,23 and stres ed the reasonableness and wisdom of those who woul d provide for the eventua l implementation of the Convention. As the debate over ra ification developed , it became less and less a legal issue and more and more an emotional one . 2 4 he thread of argumentation was finally lost during 21 orie L. Phillips, "The enocide Conventio : Its Effect on Our Legal System, 11 ABAJ, 35:624, Au ust, 1949. 22 A. A. hite, "Tomorrow One May Be Guilty of Geno cide," Texas Bar Journal, 12:229, May, 1949. 23 william c. Gordon, "Self- xecuting Tresties--Geno cide Convention," Michigan Law Review, 48: 52-60, April , 1950. 24 For a histor of earlier views a ainst the Conven- tion, see George • inch, " The enoci d e Convention," AJIL, 43:7 2- 8 , Oc ober, 1949 . 106 the even more complex, but related, debate on the treaty making power itself. It is interesting to note that Senator Bricker, in advocating his proposed amendment to the Consti tution in 1953, declared that, Unless the Constitution is amended as proposed ••• the Genocide Convention is probably only the first of many multilateral treaties that will fail to be ratified by the United States because of uncertainty concerning the nature and extent of constitutional protection. 2~ As of June 26 , 1955, the Convention on the Preven tion and Punishment of the Crime of Genocide had een ratifie d by fifty states . 26 Twelve other states had signed the Convention but not yet deposited instruments of ratifi cation. 27 The Convention had entered into force among its ratifyin states on January 12, 1951. onclusions Of all the various aspects of the Human Rights ro gram of the United Nations the basic purpose of the 25 John • Bricker," laking Treaties and Other Inter national Agreements," Annals , 289:138, September, 1953. 26 Ratifications and accessions: Albania, Australia, Belgium, Brazil, Bul -aria, Byelorussian s.s . R., Cambodia , Canada, Ceylon, Chile , China, Costa Rica, Cuba, Czechoslo vakia, Denmark, Ecuador, Egypt, El Salvador , Ethiopia, Federal Republic of Germany, France , Greece , uatemala, Haiti, Jordan, Honduras, Republic of area, Laos , Lebanon, Liberia, Mexico, Monaco, icaragua, Nor~ay, Panama, Philippines, Poland, Romania, Saudi Arabia , Sweden, Syria, Turkey, krainian ~. s.R., u.s .s .R., iet- Jam, and Yugo slavia. 27 Bol ivia, Burma, Col ombia, Dominican Republic, India, ran, ew Zealand, Pakistan, Paraguay, United States, and Uru uay. 107 Genocide Convention is probably the least controversial. Since no advocates of genocid e have raise d their voices against the Convention, the attack has come from other sources . Since there is little objection to the idea of outlawing genocide, the objection has been to the way in which it was to be carried out. The proposals for the Pre vention and unishment for the Crime of Genocide, have been attacked most successfully, on the grounds that the crime itself has been ill defined . This criticism appears at least partially justified, althoug h even t he best of criminal s ·atutes at the municipal level are of necessity always somewhat vague. Some of the more vociferous atta cks on the Convention can be easily coun ered, but critic·sm on the rounds of vagueness cannot as easily be discounted . This is partially due to the fact tha t the term " genocide" was itself coined only some four years before the approval of the Convention. Th e Convention's attempt to define genocide has, moreover, created a l most as many problems as it has solved . By includ- ing such ill defi ned concepts 'mental harm" and "incitement to commit genocide," the Convention may have discouraged ratification in several states and thus blocked progress toward the goal for which it had been created . One may conclude, however, that even disre garding thee istence of the Convention, the public attention which 108 the United Nations has devoted to the prevention of g enocide will probably serve substantially to dissuade any nation, Member or not, from embarkin on a public policy of destroy ing an ethnic group within its boundaries . CHAP 'rER VII THE COVENANTS ON HUM.AN RIGHTS, FI ST PHASE The Universal Declaration of Human Rights, it must be remembered, was to be only the first part of that "International ill of Ri ghts" which many had desired appended to the Charter . The second part was to be a cove nant on human ri ghts--agreed to in treaty form among the members of the United ations. The importance of this second phase was often emphasized. John aster Dulles while in Paris on September 29, 1948 (durin - the third session of the General Assembly) , remarked in a speech at the Paris Hous e of the Carne ie Endowment for International Peace: I hope and believe this assembly will endorse this Declaration. But we must not stop there. We must go on with the draftin of a Covenant which will seek to translate human ri hts into law.l The first phase of the pro ram to draft such a covenant began in great enthlsiasm and ended in a reaction against the very concept of such a document being drafted . 1 U.S. Department of State , Office of ublic Affairs, "Developments in the United ations," Human Rights: Unfold ing of the American Traditi on, Part III (Washinton, D. C.: U.S. overnment Printing Office, 1949 ) , P• 69 . 110 Purpose of the Covenants The basic purpose of a covenant on human rights was to create international obligations in the field of human rights throu h the use of the treaty form . Presumably, a declaration of principles such as the Universal Declaration of Human Ri ghts involved only a vague moral responsicility to attempt to comply with its general outlines, while a convention in treaty form woul d impose specific legal obli- ations on all si __ natory powers. " The convention is the next step" said Philip Jessup i n an early address to the American Bar As socia t ion "a ste p which will transmute the guiding principle into definite legal rule . " 2 On the sub ject of treaty obligations the I nternation al ourt of Justice has held that "refusal to fu l fill a treaty obligation involve s international responsibility , 11 3 and earlier , the Permanent Court of I nternational Justice had declared that "a State which has contracted valid international obligations is bound to make in its le _isla tion such modifications as may be necessary to ensure the 2 Philip C. J essup, ''The Conquering M arch of an The Universal Declaration of Human Rights,u Department State Bulletin, 2:4 _3, September 19 , 1949. dea: of 3 nterna ional Court of Justice Re orts of Jud .men~ Advisory Opinions and O r der s , 19 O. I nterpretation of Peace Treati es with Bulgaria, Hun ary and Romania, Second Pha e , " Advisor O ·nion of Jul y 1, 1950 , p . 228 . 111 fulfillment of the oblig a tions underta en. 11 4 Tis attitude toward treaty o lig a tions was marked in the United States. As early as 1 - 33 the American Secretary of State, Edward Living s on , ac nowled!ed tat The ·overnment of th e United State s presumes that whenever a treaty as been du y concluded and ratified by the acknowledged authorities com etent for that pur pose, an obli ation is th re y impose d upon each an every department of the overnment to carry ·t into complete effect, ac cord in .. ,o · ts uerms and t at on t he performance of this obli ation consi 5 ts t e due observation of ~ood f aith among nat · ons . ot only oes this a ply to self- implementing tre a t ies, but Con ress is also resumably boun to impl ment non- self- implementing provisions . Draftin the e arly Covenant As provi ded in rti c e 6 ·of the C ar t er, the conom i c and Soc·a1 ouncil esta 1·s e d the Commission on Human i ghts in ebruary 1946 . t that time the Council instructoo it to submit recommendations for an interna tional bill of human rights, and in June 1946 , add ed a request that he Com mi s sion submit any other sugges tions it mig t ave regarding ways an means r the effective impleme tation of human ri ghts and fundamental freedoms . The Commis sion on Human 4 Publica ions of the rmanen 1 Justice, eries o . 10 (Ley en. p . 20 . 5"'C1 r nc h rton , I n ional Law Di est (second edi ion; ashin ton , •• : overnm nt Prin i ng Of ice, 1 7) , Vol . I , • 67 . 112 Rights h ld its first essi on durin January and February 1947, when it studi ed a number of draft bills on human r hts an proposal s f or implementation. 6 Upon the reques t of the Ghairman of the Commission , the ~conomic and Social Council approved the creation of a dr fting commit t e e of ei ·ht members of the Commission to pr e are a dr ft i n t ernational bill of human rights on the basis of ocumentation s upplied by the Secretariat . There ad een two as·c views concerning t e arm which the draft of an inter nati onal bill mi ght take. One was tha t the raft shou ta the f rm cf , the other was tha t ·t hould be ·n the form of a c on nt i n . hoe who favore a declaration a ~r eed, however, tat it should be ccompanied or fol l owed y a convention or con vention on specific grou s of ri hts . Those who a dvocated a conven ·.on eventu lly agre e t hat the General Assembly , in recommending a convention o ember States, might also make a _eneral eclara tion that woul d be more general in expression nd wi er in co ten t . The Drafting Committee cons equently ecide to prepa e two documents, a working paper in the orm of a d e c l ara i on to encompass general principles an st n ards of hum n r i ghts; and a working 6un·te a ions , Ec on om c and Socia ouncil , Com mi sion on Hum n ~i h s , _gternational Bill of Rights , working p per prepare by the Secretar · at, January 13 , 1947 Document E/C r . / •• 113 paper in the form of a convention to define spe ific rights to be uaranteed in treaty orm. In June 1947, Lork Dukeston, representat ve of the nited Kin ~ dom , presented the Drafting Committe e of the uman ights Commission the text of a proposed covenant . Thi.s text was studied by the Draftin Cammi ttee and became, in a revise form, the basis for di0cussions in the uman Ri hts Comm · s ion at its second session in Dec embe 1947. 7 T e drafting committee al o consi e e the pro lem of imple mentation and transmitted a memorandum prepared byte Secre tariat on the question to the Commission on Human Ri hts . 8 At its second session the Commission on Human Ri ghts ecided that the terms "international bill of human rights" should be applied jointly o he draft decla ation of human ri hts and the proposed convention or covenant on human rights and mea es o implemen ation. hree working groups were created by the Commiss on, one for the eclaration, one for the covenant and a thi d for implemen ation. On the basis of the r eports of the firs two working groups9 the Com.mission produced a draft declaration of human right s and 7 eport of the rafting Committee to the Commission on wnan ights: irst Session, July 1 , 1947 . UN Document E/CN . 4/21 . 8 bid., Annex • 9 Report of the orkin art on an In ernationa l Con vention on uman ights, December 11 , 19 7. UN Document E/CN . 4/56; Report of the ·orking Group on the Draft Declara tion on uman Rights , Decembe 11 , 1 47. UN Document E/CN.[v 57 . 11 a draft covenant on human rights . 10 The draft covenant was circulat d to all members of the United ations, accompanied by the report of working droup dealin with possible implementation. 11 Th · s circula tion led to addit·onal proposals and later revisions of the draft . 12 During 1948 , however, attention was focused upon the proposed Universal Declaration and only after the adop tion of the Decla ation in December of that year , did the ommiss on once a in turn to the task of drafting the covenant. At the same time that it proclaime t he Universal eclaration, the General Assembly requested the Council to ask the Comm ssion to prepare on a priority basis a draft covenant on human ri g ts and rat measures for implementing such a covenan, examining in particular the question of t e ri ght of petition. 1 3 10 e Declaration of Human Ri ghts has been discu sed in Chapter V, supra. 11 united ations, Economic and Social Council , Com mission on Hu~an i chts: ~ ort of Second Session, 19W. UN Document E/600 . Documents indicated by a number followin a capital E, without a commission (CN) number shown, are irect publications of the Economic an Social Council . ere after such ori _in 1~ill be indica ed by Document number only . 12 Re ort of the Draftin _ Comm ttee to the Comm·ssion on uman ights: Second Session, May 21, 19 • UN Document E/CN . 4/95. 217B ( tion," tional 1 3unite r ations, General Assem ly Resoluti on ) "nternational ill of i ghts: Ri ght of eti- December 10, 194 ; esolution 217E ( ) " nterna- ill of i hts : reparation of a Draft Covenant on 115 By the 1949 meetin s of the Commission, two schools of thought had already develope. One held that the Covenant should be desi ned to receive the widest possible support from member states, while the other held that such an attempt tot ilor the document woul surely result in the creation of a weak instrument for the protection of human rights. 1 4 Discussion also centered on the issue of limitations to provisions of the draft Covenant. Some del egat ·ons felt that a lon list of limitations woul weaken the forc e of the Covenant itself . Others advocated a proc edur e which would all ow ratifying states tom ke reservations at time of ratification if such were necessary to avoid conf lict between the uovenant and provisions of the domestic le al system concerned. still others felt that the Cov enant woul be stronger if limitations were set forth in specific detail in the document itself . Proposed measures of implementation included the establishment of an international court of human rights, and of ad hoc committees or permanent organs, to settle disputes arising out of the interpretat·on or appl ication of the covenant or otherwise to supervise the observance H uman Ri hts a nd Draft 1 easures of I mplementation," Decem ber 10, 194. 1 4 ee Commission on Human Rights : Report of Fifth Session, 1949. N Document /1371. 116 of its provisions, and to which States individuals or groups might submit applications or petitions. According to one school of thought , the recognition of the right of individuals to petition or the creation of any type of supranational a gency of review would undermine the sover eignty and independence of states, and would be in conflict with existin international law. A majority of the Commis sion , however, felt t here should b e some system of imple mentation, and there ~as g eneral agreement that under any system of implementation si gnatory states would hav e the right to initiate inquiries into alleged violations of cer tain human ri ghts. Opinion was sharply divided as to whether individuals and non-governmental groups of i ndividu als should hav e t he right of petition . A draft Covenant was sent out by the fifth session of t he Human Ri ghts Commission to the M embers of the United Nations for their study and recommendations. Along with it were s ent lists of proposed limitat i ons and a series of proposals having to do with such fields as economic and social ri ghts, ri hts of minorities and rights to self determination. These various proposals had been hardly discussed b y t he Commission; they were presented, however, not so much a s provisions to be included in the Covenant, but as possible subject matter f or future conventions. Duri ng the sixth session of the Commission in 1950, 117 pressure was brought by several delegations and by several non-governmental organizations for the inclusion of economic and social rights in the vovenant. The majority, however, rejected this view and decided that the covenant and measures of implementation that had been drafted should be considered as "the first of a series of covenants and measures," and that at its next session the Commission would consider "additional covenants and measures dealing with economic, social, cultural, political and other cate gories of human rights." The Commission also decided that it should ask the cooperation of specialized a gencies in drafting articles on economic, social and cultural rights. 1 5 he question of limitations on human rights, was also dealt with durin the sixth session of the Commission , and it was decided that there mi ht be departures from all but the most basic rights under conditions of emergency or public disaster "to the extent strictly limited by the exigencies of the situation." Turnin to the problem of implementation, the sixt session unanimously a greed that provisions for implementa tion should be written into the Covenant~ A permanent body nown as the "Human.Lights Committee" was to be created. While it was unanimously decided that there should be a provision allowing this body to act on complaints made by the States Parties to the Covenant a gainst other States 1 5 Para _ra phs 29- 33 of Commiss on on Human Righ s : .,, 118 Parties concernin ~ alle ed violations f the Covenant, a similar provisi on allowin complaints by individuals and non - overnmenta l bodies was not rejected . This latter decision was not, however , to rec ude the possib i lity of such procedures being later incorporated into the Covenant in the orm of a separate protocol on the ri ht of etition . Tis "Huma n Ri ghts Committee" was to be composed of seven persons, from seven different States Parties to the Covenant and · dividually elected by those states . The "Committee" was to receive any dispute between States arty in respect to provisions of the Covenant if the matter was not satis actorily settled between the concerned States in s ·x months . The "Committee, was desi ned to ascertain the facts and ma e · ts ood offices available to the states con cern d ·n order to arrive t a solution in kee in with the pur ses of the Covenant . The Co ittee wou d then draft its report on the matter an d transmit it to the states con cerned and to the Secretary- General of the United Nations who was then ✓o publish ·t . If the issue were settled by the states concerned, the report would amount t o no more than a summary of the issue and a statement of its solution; if no solution were arrived at , this report would become somewhat ore i portant , for it was to ive the Committee's conclusions on the facts ascert ined . Re ort o the Sixt Sess · on, 1950. UN Document E/16 1 . 19 Finally, the sixth sessi on o the Commi ssion ecided to transmit to the Counc · fo r its consi eration draft arti- cles on the ap lication of the Covenant in federal states and in non - se f - overnin and trust territories, and it re quested the Secretary- General o prepare a report on poss i - le clauses on ap lication to ederal and v arious non- self overning areas . In Septem er of 1950 , the General ssembly in answer- in certain ues ions o oli cy t to i t by the Ec onomic nd ocia Coun il which was then consi erin the draft Co ve ant , ade sever 1 basic stions that resu te in ma o r chan e in the Coven nt . The Assembly decided that he orkin o the ar t i es should be made more precise and their scope exp anded; it also decide that articles on eco nomic and social ri hts be added to the Covenant alon with specif i reco nition of the e qua ity of men and women i re 1 ate d r · ht s • The conce t that economic a n d social ri hts must be adde d to the more strictly civi l ri hts had been a vanced very early . 16 Char es E . erriam, fo r example, wr ote in a January, 1946 · ssue of the Annals of the American cadem of Politica l and Social Science : conom · c an protecti ons o soc·a1 ri hts are ••• art of the world ura l o r der wh"ch ma es life 1 or a discussio of the conce t of economic and social r· hts, se Ch ter XI . 120 worth living. They reflect the conditions under which the personality of man may be developed, and without which civil and political rights may be and have been from time to time rendered utterly meaningless or inef fective.17 In its resolution on the inclusion of economic and social rights, the Assembly stated that "the enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and interdependent" and that "when deprived of economic, social and cultural rights man does not represent the human person whom the Universal Declaration re ards as the ideal of the free man." r rhe General Assembly then resolved "to include in the covenant on human rights economic, social and cultural rights and an explicit recogni ion of equality of man and woman in related rights as s e t forth in the Char er of the United -ations," and requested the Commission on Human Ri hts "to include in the draft covenant a clear expression of econom ic, social and cultural rights in a manner which relates them to the civic and political freedoms proclaimed by the draft covenant." 1 The Assembly also direc ted the Commission to study possible provisions on the rights of peoples and nations to 17 charles E . M erriam, "T e Content of an I nterna tional Bill of Ri hts," Annals, 243:13, January, 1946. 18 nited ations, eneral Assembly Resolution 421 (V), "Draft nternational Covenant on -uman Ri ghts and M easures of Implementation: Future ork of the Commission on Human Ri hts,n De cemcer 4, 1950 . 121 self- determination and a federal - state article designed to secure the max·mum extension of the Covenant to the constit ent units of federal tates arty to the Covenant while meeting the constitutional problems of Federal States . 1 9 The Assembly also decided that there should be a provision or the equal applicability of Covenant provi sions to all territories of signatory states whether munic ipal , trust , or colonial . 20 In respect to implementation, the Assembly directed the Commiss ·on to study provisions to be inserted in the Covenant or i separate protocols to provide for the receipt and examination of petitions from indivi uals and organizations on alleged violations of the Covenant . Durins its seventh session in A ril and Aay of 1951, the Commission took most of these suggestions and directives into consideration and prepared a revised draft . 21 This draft included provisions on the equality of the sexes in the exercise of the rights included in the Covenant , a series of articles on economic and social ri hts, provision for a system of periodic reports and some other changes in implementation procedures . Representatives of the 19 I bi d . 20 United ations General Assembly esolution 422 (V) "Territorial Application of the International Covenant on Human i ghts,' December 4, 1950 . 21 commission on Human ights : Repor t of the Seventh Session, 1951 . U Docu ent /1992 . • 12 nternational Labo r Or anization , tre or d ea th O r gan·za tion, and UN SCO partici ated in the Commission's delibera - ions . The articles on economic, social, an cultural rights were prefaced ith provisions statin that si natory states would ple d e themselves to achieve pro ressively the full realization of these ri hts and woul make only "such limi tations as are det e rmined by law" and that these limitations woul d be made ''only insofar as tis may be compatible with t h e nat re o these ri ts and so ely or the pur ose of promotin the eneral welfare in a democratic society . " 2 d al sy te o ·mplementation was developed--one rel a t in to he civi l and politic ri ,ht , and the othe r to the economi , social, and cultur 1 ri hts . or the ormer, the concept of the ' Human Ri ts Co itt ee" was retained . I t wa s to ave nine members elected by the Internat · onal Court o Justice from a panel o n mes nominate d by the si natory states . The ommittee ou d be al owed to re uest the Eco nomi c and Social Council to submit le al question concernin its d t ·es o the nternational Court of Justice . The ri ht of individuals to petition the Committee was not settled . I lementation o economi c and social rights was to be car rid out by the Economic an Social Council in coo eration with he Commission on uman Ri hts . The pro ram would in- clude r orts by signatory arties on heir pro r ess in the 2 nn x , ibid . 123 im lementation of the Covenant provisions an a system of consultation with specialized a encies . Provi ion was made for the aia of the Technical ssistance Board in carryin out "internation 1 measures likely to contribute to the pro ressiv · mp ement tion o the Covenant . " The Commission made no decision on whether the arti cles on the pro osed H1man Ri hts Committee should ap ly to economic, so ial, and cultura ri hts as well as civil and politica ri hts, nor did it de ide wheth r the r icles on reportin procedures should ply to civil and oli~ical ri ht s swell s economic, soci 1 , nd cultural r )hts . lthou ·h it w s ) ner lly reed th t economic, oci 1 and c ltur 1 ri h s were as si ni icant s civ·1 an d olitical ri hts, sever 1 dee ti ons he d the the f or er were not u sticiab l e ri hts n d the manner oft eir ·m lement tion ould conse quently h e to e di ferent . I t w s re posed that the Commission reco end t o th Council th t the General ssembly be re uested to r econsider its ecision to include the economic nd social ri hts in the same covenant wi h civil an d olitica l ri ;hts . 2 3 T e proposal was not, noweve~ doted . '1 1 he r covenant was discusse1 by the conom c and of Econom , ial and Cultural Ri hts in the raft Inter - Cov on Human ights . y 1, 9 1 . U .4/6 ev . l . ocial Counc i l at it s thirteenth session in the summer of 1951. The question was raised whether the Human Ri ,hts Co mittee procedure and the periodic reportin rocedure should be applied in one case to civ i l and political ri hts and in the othe · c se to economic and social ri hts , or whether both should be ap lied o oth cate ~ories of ri ~hts . The conomic and Soci 1 Council , considerin the dif icul - tie s which i ht f low rom em odyin in one covenant two dissim · lar ca e ·ories of ri hts, bu nevertheless aware o th i por ance o both, re cmmended that the General Assem bly econs der it s deci sion to i elude rt · les one o o · c , soi 1 and ult ral ri h s i sa e oven nt with rti - so civ · 1 an 0 · t 1 . t 21 rl _ S • n · vision i to Two Cov nant e o one or two The d is b l lity of r tin mor _ ) h no e cov ~n n h d already been dis - ss d on ny 0 C s ons . In 19 0 for examp , the Comrni s - . H • ....ht s 11a d • ed th t its draft nant, n on n C cov h • rt . ntial ivil • ht sh ld ov rin on y C l s rl , he irst . of nants th t it woul d lat ( eri s ov an onsid i "ti 1 nt dealin with • • r n V n econo , SOCl ·- - · - 2 4united ti s , ~conom · c and ocial Council eso u ion 384 (XIII ) , '' eport of the Commission on Huma n Ri ht .. (Seventh ession , " resolved on Au st 29 , 1 51 . be r 1, 25 c ltural , political and other cat o;o r i es o human ri hts . 2 .5 ' r1e Economic and Soci 1 Council s bse uently re uested that the eneral Assembly m ke a olicy ecision on the desir - bil · ty of incl ing articles on economic , social and cul tural ri hts · n the ori inal covenant, and later the saire year , the eneral Assembly eci ed th t the coven nt s ould in 1 de clear expression of econom c, social and cultural ri hts in a manner which relates the to the ivil nd p~litic 1 r ee o s roe ai by h r t ove - nant . b Durin , its seventh ession in 19.51 , the Comm sin r ted a r icl son eco omic , soci 1 d ult r 1 ri hts, d disc ssed t e possib " ity o separ e coven nt to inclu e tho er · hts . 2 7 0 inion of U r ited ations I embers w s clearl i vided a o whether t ere sold be one or two covenant . The e was, however, eneral a r ee ent tat 'th • en ment of c·v · 1 nd political ree o s am of conom c , social nd cultur 1 ri hts ar interconnected and in rd penden 11 and th t 'when de rive d of economic, social 2 5s e ~/ . 4/sR. 184- 187, M y 19 , 1950 to 1ay 22 , 1950. 26 united ation s , Economic and Social Council Resol - tion 303 I (XI) , "Report of he Commi ssion on uman Ri hts ( ixth Session), resolved on u ust 9, 1950 ; General Assem bly esoluti n 421 (V) , " Draft Internati nal Covenant on H um i hts and 1easures f I lement tion : Fut re w ork of the o ission on Human Ri hts, 11 De ember 4 , 19.50 . 7 / N .4/s· . 203- 208 , pril 24 , 1951 to ay 3, 19.51 . 126 and cultural rights, man does not represent the human per son whom the Universal Declaration regards as the ideal of the free man."28 Advocates of a single covenant explained that human rights could not be split into different categories or classified according to a hierarchy of values; human rights, being interdependent, should all be promoted and protected simultaneously. Civil and political rights with out economic and social values would be purely nominal in character . Economic, social and cultural rights would not long be guaranteed to al l if civil and political rights were trampled upon . There should, therefore , be a single covenant to guarantee and interrelate all human ri hts . Supporters of the idea of two separate covenants pointed out the basic differences between the two types of rights: civil and political rights are enforceable , justiciable , and ttabsolute" in character; economic, social, and cultural rights are not absolute but must be progressively imple men ed . Civil and political rights are basically rights of the individual "against" the State, i . e ., against arbitrary or unjust action of the state . Economic, social, and 28 united Nations , General Assembly esolutions 421 (V), "Draft International Covenant on Human Rights and easures of Implementation : Future Work of the Commission on Human Rights," December 4, 1950, and 543 (VI), "Prepara tion of Two Draft International Covenants on Human Rights," February 5, 1952 . 127 cultural rights are rights which can be realized only by positive action on behalf of the state. Because of the difference between the very nature of civil and political rights on one hand and of economic and social rights on the other, and since the relationship of the state to the implementation of the two categories of rights was so dif ferent, it was held necessary to draft separate covenants. It may be seen that the question of creating one or two covenants was intimately related to the problem of implementation. If no system of implementation were to be attached to the substantive list of specific righ s, it would make little difference whether one or two covenants were drafted. The two categories of rights had already appeared together in the Universal Declaration . When implementation was considered , however , it was not nearly so simple to integrate the two classes of rights . It was commonly advanced that civil and political rights were "legal" rights and could best be implemented by the estab lishment of a good office s committee, while economic, social and cultural ri ghts were 'program" rights and could best be implemented by the creation of a system of periodic reports . Since the ri ghts could be so easily div ded into two broad categories to be subject t o separate methods of implementation, it would be convenient and logical to create separate covenants . 128 It was argued on the other hand that all civil and political rights were not considered "legal" rights in all parts of the ~orld nor could all economic, social and cultural rights properly be considered uprogram" rights everywhere . A civil or political right might well be a "program" right under some regimes while an economic, social, or cultural right be treated as a ''legal" right in certain jurisdictions . A covenant could be drafted to allow its signatories to announce, each in so far as it was concerned, which civil, political, economic , social and cultural rights were ttlegal" rights, and which were "program 11 rights, and thereby allow it to choose the procedures by which the various rights would be implemented . Another view, less commonly held, was that there should be only one covenant on civil and political rights, and that economic, social and cultural rights should not be embodied in a legal instrument at all, since they could be promoted only progressively . Other proposals would make the right or the principle of self - determination the subject of a separate covenant or declaration. The decision to create two covenants . Upon receipt of the draft covenant from t h Economic and Social Council with a request that it reconsider its previous decision to include economic and social rights in the same document with the more traditional political and civil rights, the 129 General Assembly reversed its earlier directive to the Commission on Human Rights and requested the Economic and Social Council to ask the Commission on Human ights To d1 1 aft two covenants on human rights • • • , one to contai civil and political ri hts and the other to contain economic, social and cultural rights, in order that the General Assembly may approve the two covenants simultaneously and open them at the same time for sig nature, the two covenants to contain , in order to emphas ze the unity of the aim in view and to ensure respect for an observance of human rights, as many similar provisions as possible.29 The Assembly also requested United Nations Members and specialized a encies to subm t proposals or comments on the form and content of the proposed covenant on economic, social and cultural rights. The General Assembly called upon the Economic and Social Council to ask the Commission to revise the draft articles on econo ic, social and cul tural ri hts an d to take into con s ide at i on such comment . he problem of reservati ons was also reviewed, and the Assembly through the Council instructed the Commission to pre are "one or more clauses relatin to the admissibility or non - admissibility of reservations and to the effect to be attributed to them!'30 The General Assembly also decided (VI), Human 29 united ations, General Assembly esolution 543 "Preparation of Two Draft International Covenants on i hts," Febru ary 5, 1952 . 30 united Nations, General Assembly Resolution 546 (VI), "Inclusion in the Draft International Co enanm n 130 that the coven nts sho ld cont in an article rovi in that '' a 1 peoples shall have th ri ht to self- determi and hat the coven nts should tion" ' thes sti ulate that all States , includin those havin re- s onsibility for t he administratio of non - self - govern in ~ territories , sho ld romote he realization of that ri )ht, in con ormity ith the urpos sand princi _les of the n·ted ations, nd that St t e s havin respon i bility for t he admin str tion f non - self - overnin territories sho ld ro ote · he realiz t· n of th t i ,ht in rel t · on to the ne o les o such territories . 3 1 he Co ission on Hum Ri hts be an to im le ent roposa s by dr ftin an article on the ri ~ht of people s and n · ons to self - deter ination so t · hat it could b nc u e s Article 1 o each co enant . ext it redraft- od the artic es on economic , social, and cultural ri _hts and the rti c es on civil and political ri hts , takin i to consideration the instr ctions of the Assembly and the ob - s rvations o overn ent nd specialized a _encies . 3 2 H uman Ri hts of Provisions Re ardin , Reservat · on ," February 5, 1952 . 3l nited ations , General ssembly Resolution 5 5 (VI) , " Incl sin in the Draft I n ernational Coven nt or Cove ants o an Article elatin to th Ri ht of Peoples to Se f - determination," February 5, 1952 . 32 These aper in Observations ubmitted b ember tates, ebr ary 29, 1 52 . UN Document E C .4 654 and · ts ddenda 1- 9 nd Doc en E/C . /655 and its Addenda 1-. 131 Tis first draft Covenant on Economic, Soci 1 and Cultural Rights included a preamble and fifteen articles on such subjects as the rieht to work, to form and join trade unions, to social security, to special protection of motherhood, children, and the family, to an adequate stand ard of living, to health, and to education . Signatory states undertake both individually and through internation al cooperation to achieve these goals pro ressively over the years without making any distinction of race, color, sex, language, religion, political or other opinion , national or social origin, property, birth, or other sta~s. The first draft of the Covenant on Civil and Politi cal Rights included a preamble and eighteen articles on such subjects as the p rohibition of slavery and forced labor, the prohibition of retroac ive criminal law; the rights to liberty of movement, security of the person, recognition as a person before the law , and a fair trial; free dom of thou ht, conscience, and reli ion; freedom of opinion and expression; the prohibition of inhuman or de grading treatment; freedom from imprisonment on account of inability to fulfill a contractual obligation; and such basic rights as that to life, and that to equality before 132 the law . 33 The Commission was not, however, able to com plete the drafting of the covenants for simultaneous sub- mission to the Council as had been hoped . uestions of implementation , provisions on reservations, and a federal State clause were still pending consideration . In a draft resolution the Commission requested the authorization of the council to complete both covenants simultaneously at its session during 1953 . The Council in turn instructed the Commission to complete work on the covenants at its next session . Reaction Against the Covenants as Treaties Durin 1952 a reaction a ainst the proposed treaty status of the Covenants , which had long been brewin in the United States, came to a head . This led to a eneral review of the legal status of treaties under the U. S . Con stitution and even brou ht proposals for the amendment of that document . This debate had a very significant effect on the progress of the Human ights Pro ram, most particu larly in respect to American support of the proposed Covenants . In or der to make the proposed covenant a part of international ositive law, it had been proposed that it 33 For the formative drafts of 1952 , see Annex 1, Sections A and B of Commi s s ion on Human Ri~hts: Report of the ighth ession, 1952 , U Document E/ 22 6. 133 e dra ted · n treaty for m nd formally ratified by s many members of the United ations s were willin to ccept the necessary obli ations . The covenant would then be le ally bindin in sense that neither the niversal Declaration of Human Ri hts nor any othe pro osal or recommendation of the United tions ever could be . 34 In the United States , or examp e , t r eat es beco me part of the law of the land nder th amed s rem y clause of th Constituti n . 35 he tatus o the Covenant as a t r ea y wo 1 be similar · n most other n tional ·urisdi tons . r eat es are held superior to st te and local stat tes , to r vio s inconsistent ederal st tutes un er 1 mer c n troa y l aw. L ter Federal statutes are , however , usuall held to over e treaties ; "und r our constit i nal doct ine , " st ted Hady • Di 1 rd of the Universit of Vi inia Law 0 chool , " the effect o any t reaty can be le · slated ay if the Con ress feels it is unwise!•36 3 4Fo r a discussi no the rel tionship of uropean treaty law to the Human Ri hts ro ram, see: Pieter • Drost, "Human i _ hts and Tr e ty L w," H uman Ri hts as L~ral ights (Leiden : A. ' . Sijthoff ' s it eversmij N. V., 19 1, • 39-45 . 35se ~ C rl B. ix , "Human Ri hts an International Law : ffect of the Covenant Under O ur Const tution," ABAJ , 35 : 551-Si, 61 - 20, J ly, 19 9. J H rdy C. Di 1 rd , ''Tre ty , Cal i forn a Law evie w, 25 : 383 , uly , referr ed to is obviously limited to kin Power," Southern 19 5 3 • The " e ff e ct , " omestic m tters . 134 evertheless , treaties are not li htly overruled by le is lative action . The re is no uestion but that under the u.s . Consti tution the treaty- makin , pro isions laced a strong power in the hands of the Federal Gove rnment . In •1issouri v . Holland , Justice Holmes asserted the ri ht of th ◄ederal Government to ent r areas thro Jh this power th t ha not revio sly been the con ern o then tional ,ove nment . The drafters of the Constitution were full y aware that the feder 1 tre ty ower was stron ly define d int Const tu- tion . 3 8 The anti - Federalists, in their op osition to the adoption of the Constitution, were e ually aware of the power . atri k Henry in the Vir inia Convention decr · ed the ower iven the "President and a few senators . 11 39 O ne must remember , of co rse, that in Hen y's time there were but thirteen states and the necessary two - thirds of the Senate needed for rati ication was ut ei ~hteen men--none of whom were d · re ctly elected . Althou h the uest · on had seemed set tle i th the ado tin f the Constitution, cons er tion o t ion , " 1952; to Cri 1952 . 37 252 us 16 . 8 Denys P . 'T ers, ' Tre ty nd Law in the Cons ti tu- e artment of State Bulletin , 26 : 371- 76 , •arch 1 0 , so ech r1.a Chafee , Jr . , 7TAmendin the Constitution le rr re t · s," Louisian eview , 12:345- 82 , 1 ay , 39 rn .,lliot ' s Deb tes, Vo • 3 (Vir ")inia) (second edi - tion; Philade p ·ncott Co . , 1937), • 315 , 313. 135 tl e uman ... i hts ov nants as "legislation ·n trea t y formn brought up consideration of the entire question a gain;4° this time in an era when Senators were directly elected and t , e resident is, f or all purpo ses, as representative of the people of the United States as the enators are of the people of their states. Fear that misuse of the treaty power might upset the separation of powers etween the executive and le islativ e br anches of the Federal Govern- ment was gr owin in the Congress. ome looked upon the treaty powe rovisions as an error or an oversi ht on the pat of he foun in fathers, full of danger for ou democra .ic society.4 1 A great deal of the ap rehension was not ased so much upon the consti tutional issue, however, but upon more s pecific fe ars in respect to the ap li cation of interna ionally drafted human ri ghts treaties upon omestic law. Moreover, the . . . UJll. case added more han it should have to such a pprehension. 2 4oThis does not indicate there had been no discus s~on of the treat power duri ng this period. There had been such discussion but most of this differed in that the proposals for change would hav e limited the Senate rather than the President . See Denna Frank Flemin, The Treaty eto of the American enate ( ew York: •• Putnam's ~ons, 19 0) . 'eel , ,. 41E. • adley, "Tre ty-making Power: an Ac i les ortheastern Law Review, M ay, 19 'l, PP • 49 - 52 . 4 2 see Chapter V, supra. 136 Othe than the domestic question of interference with the s eparation of powers between the le islative and execu tive branches of the Federal :overnment, those who feared the proposed treaty status of the Covenants usually based their arguments on one (or more ) of three basic proposi tions: an international Covenant on uman Rights would threaten the traditional American Bill of Ri hts; it would imperil the division of powers be tween the 'tate and ~ed e r al governments; ·t would incorporate alien, or even Soviet , concepts into American legal th·nking . Thes e ar _uments will be dealt with in order . The covenants uaranteed ·n domestic law . The resolution for a Constitutional amen ment submitted on Febru ry 7, 1952 y enator John ' • ricker , with the approval of fifty - eight othe r members of he Senate clearly showed its relation tote uman Rights rogr am of the nited lations by providin in part: Section 1 . o treaty or executive agreement shall be made res pecting th ri ~hts o citizens of the Unite tates protected by thi Constituti on, 4 or abridg inc or prohibitin _ the free exercise thereof. 3 43 . Co n _ress 1 Record ' 2nd Cong., 2d sess., vol. 98 , no. 20 , aily e ition, February 7 , 1952, • 21. 137 The type of fear represented by this resolut i on had been expressed earlier. Frank • Holman, prior to the adop tion of the niversal Declaration by the General Assem ly, ha d described the "dangerous implica ions " of such action,44 an appear d to have the support of influential el ements of the American Bar Associat·on of whi ch he was then resident. Juvt before Senator Bricker had first proposed his amendment to the Constitution, Holman had declared in a s eech that " the United a ions an ·ts a ents have aid little attention to the proviso re arding non- interference in domestic matters " in respect to problems of human rights . 5 Of rticle 22 , paragra h 2 , of the then proposed covenant, wh·ch uaranteed that othing in this Co venant may be cons ructed as limit ing or dero atin from any of the ri hts and freedoms whi ch may be uaranteed to all under the l aw s of any contracting State or any conventions to which it is a party . 46 _, olman said : tis a "trick provision ••• inten ed to re - assure Americans."47 He claimed it would not cove states r "ghts or reserved rights at all . 44 rank • olman, nAn 'International Bil l of Rights• : roposals ave angerous mplications for u • • ," ABA , 34 : 9 4- 6, 1078- 1, ovember , 194 . 45 :irank olman , "Trea ty Law- - A Threat to American Rights," Journal of the ar Association of Kansas , 20 :254, February, 1952. 4 6 rr•he Draft Covenant as revise d :in 1949 by the Commis sion on Huma n i hts may be found · n Human ights and Geno cide, PP • 37- 46 . 4 7 olman , op . cit., p . 261 . 138 Some outhern comments were even more outspoken. For example , Joseph Johnson in the Alabama Lawyer stated that in his opinion , "It is possible that these treaties mi ght be made the vehicles of _ overnmental tyranny."48 W illiam H. Fitzpatrick, editor of the New Orleans State, in an address before the Arkansas Bar Association , went so f ar as to point out the limitations on ri hts in the proposed Covenan t and to then deduce that the Covenant "makes such persecutions " as those of Cardinal indszenty, illiam Oatis, and Arch bishop roess, ulegal and proper . 11 49 Those countering the arguments on the ossible dan gerous ill effects of Covenants on Human Right s wit full treaty status pointed to the unlikelihood of abuse of the treaty power by our courts or executive branch of govern ment,50 that such Covenants would be non- self-executing , 51 and that any such amendment as proposed by Senator Br·cker would only serve to declar e American opposition to any such covenant or covenants prior to their definitive creation. 5 2 4 8 Joseph H. Johnson, " Federal Tr aty Power: A Consti tutional olf in Sheep ' s Clothing? " .Alabama Lawyer , 11 :123 - 32 , April, 1950 . 49 illiam • Fitzpatrick , nGovernment by Treat i es," Arkansas Law Review, 6:319 , umrner, 1952 . SOHardy C. Dillard , "Treaty · M aking ower ,u outhern California Law Review, 26 : 375 ff , July , 1953 . 5l ichard A. 'dwards , 11 Constitution , the Treaty Power, and J uridical lsolationism, " University of Pittsburgh Law Review, 14 : 219 - 20 , inter , 1953 . 5 2 ran Bielitsky , nDanger in Treaty- making owe r --A Mira ge," Temple Law uarterly , 25 : 70 , April , 19.::,2 ; and Phili B. Perlma n , "on Amending the Treaty ower, 11 Columbia Law Review, 52 : 25- 67 , ovember, 1952 139 Accordin to one commentator in 1953: both the new Draft Covenants make it clear that irre spective of whether a civil right arises from a re straint on Congress on or any other department of the government, the Covenants may operate only to enlarge, rather than diminish, the ~cope of human rights protec tion in the United States.~3 The covenants and federalism. Advocates of the ricker amendment advanced the case that the Human Rights ovenants could, under the rule of issouri v. hollana,54 grant the Federal overnment the power to implement the treaties as it saw fit, and would thus transfer control over all civil ri g ts legislation from testates to the national overnment. 55 This was considered a threat to federalism itself . Senator BricKer said of the second section of his amendment as proposed in 1953 : £f..t7 reverses the doctrine of Missouri v. Holland which hoTds hat a trea may empower Congress to le islate in areas prohibited 6 by the Tenth Amendment in the absence of treaty. ~ 5 ·dwards, o~. cit., p . 22 2 . ee also the answer to olman b Moses os owitz of the Council of Jewish Organ izations, u- s the U.N.' s i l l of luman ights Dan erous?" A BAJ , 3 5 : 2 3 - S 8 , 3 5 - 5 9 , Apr . 1 , 19 3 9 . 54252 us 16 ( 1920) . 55 Eberhard • Deutsch "Treaty 1v aking Power," outhern alifornia Law eview, 26 : 349- 5 , July , 1953 ; islation b Tr eaty," M ichi gan State ar Journal, Jl:19- May, 1952 . 56 John • Br i cker, 11 aking Tr a ies and Other Advocates of the amendment feel t hat this would not unduly limit the Federal Go vernm nt in international affairs . 57 eor ~e Finch, ed·tor of he American Journal of I nternational Law and supporter of the amendment ha s de clared that "International l aw is not concerned with the methods of enforcing treaties in the domestic domain."SB nternational law · s , however , concerned with the fact that treaties be enforced in the domestic domain of a federal state . Sandford Fawcett, legal a visor tote United Kingdo del e ation to the United ations, has summed up the desired elements as follows : h·le a edera l state cannot be requir d to override t e wishes or powers of its constituent stat e s or provinces , the obli gations it assumes under such an in rument as the Covenant must be precise , known to the other contrac in parties, am not 5 more or less burd ensome than those assumed by them. 9 Ac cordin t ano her commentate~ i nternal political obstacle s to a country' s part·ci pation i n international co operation are not rare and ar e by no means to be found in fe eral t ates only. 60 evertheless, he continued, I nternational A reements," Annals, 2 9 : 139 . 5? 'ber hard P. Deutsch, " eed for a Treaty Amendment ; estatement and Reply," ABAJ , 38 : 795 - 96 , Se tember , L952 . 5 8 eorge A. Finch, "Trea y - claus e Amendment : the a s e for he A " .... · a t on, u A BAJ , 3 8 : 6 , June , 19 5 2 • 5 9 s and o d ..,a c t t , nA British View of the Covenant, u Law an ontemporrr Problems , 1 : 46 , ummer, 1949. 0 M Soren en , "Federal t tes and ntern tional ro ection of uman Right ," AJ L, 6 : 208 , April , 1952. '· 1 1 it is a generally accepted principle of international law that a federal state is responsible for the conduct of its constituent states and cannot evade that respon sibility by alleging that its constitutional powers of control over these states are inadequate to enable it to enforce compliance with international obligations. 61 Nevertheless, durin the discussions in the Human Rights Commission the United States c nsistently asked for a special clause in the Human Rights Covenant giving special consideration to federal states. As proposed by the United tates in 1949 , this artic le read as follows : n the case of a Federal Sta t e, the foll owing pro visions shall apply: (a) ith respect to any Articles of this Covenant which the Federal Government regards as a propriate under its constitutional system, in whole or in part, for federal action, the obli ations of the Federal Government shall to this extent, be the same as those of parties which are not Federal States; (b) I n respect of Articles whic h the Federal Gover n m .ent re gards as appropriate under its constitutional system, in whole or in part, for action by the constitu ent states, provinces, or cantons, the e eral overn ment shall bring such provisions, with favorable recom mentation, to the notice of the appropriate authorities of the states, pgovinces or cantons a t e earliest possible moment. 2 The covenants as "alien ideology." Some hav e feared the treaty status of the propos ed covenant s on the round that the covenants embody "al n" or otherwise dangerous 61 bid., p . 210 . 62 n uman Right s and enocide, . 44. ideologies . Senator Bricker charged that there was a M rxian cast to some of the human rights provision s drafted by the United Nations . 6 3 Earlier , peaking of the Declaration of huma n Ri ghts but contemplating the propose covenant , Frank Holman had said: Put these , or similar pronouncements , in trea ty f orm, r atified by the Senate, and you have by a f ew pages of treaty languag e transf ormed the govgrnment of the United States in o a socialist state . 4 On the other side oft e i sue , rs . Roosevelt , on the basis of her experience on the Human Rights Commis sion , has explicitly declared that either of the Covenants as now drafted contains any provisions which depart from the American way of life · n the direction of communism , socialism, s n dicalism , o sta ism . 1 hen such provisions hi~e been proposed , the Unite States has opposed them. ~ Others have pointed out that the very concept of the protection of indiv·d al rights is mo ea part of the merican trad·tion than that of any othe nation, with the 6 3John 1 • ricker' , " Sa feguardin the reaty Power," ederal Bar Journal, 13: ·3, December , 1952 . 6 4} 7 rank E . olman , "Treaty Law - making ," ·ashington Law Re view , 25 : 395 , ovember , 1950 . 6 5~1rs . Franklin D. Roosevelt , 11 regress Toward Cotnpletion of H um n ights Covenants , " De;e_artment of tate ullet · n , 26 : 1026 , June JO , 19 2 . 143 possible exception of Britain or France . 66 Consequently , rather than expressin _ "alien" concepts to America, the ovenants are more likely to spread American concepts to foreig n lan s . Furthermore , within the Unite tates the concept of what is 11 alien 11 an what is "American" is likely to differ with the person employing the term. Some things are "American" ·n terms of ractices and realities, wh le they would have to be funda nentally al tere to comply with what is ''American" in terms of idea s and goals . ome critics of the covenants have overlooke the distinctions in terms of their a uments; for example, one advocate of the ricker amendment expresse his fears of United at·ons Human Right le _islation b remarking that these treat·es might be the cause of abrupt changes the way of li f e of certa n people--notably those in the southe n Unit e tates. For the Human Ri hts Treaty sug_ests that it m ht ~e used a~ a constitu tional basis for obnoxious le _isl tion . 7 • in n respect to this fear of the treaty power a state ment of ecretary of State Dulles is interestin . e reasoned as follows : 66 ilip • erlman , "On mending the reaty Power, " ~olum ia Law Review , 52: 9 , ovember , 1952. 67 Johnson, op . cit., P• 131 . 1 4 We have a system which has survived for over 160 years without there being a sin le instance of treaty abuses such as are feared. Of course, abuse is always a possibility. I admit that •••• But do not admit that, because power can be abused, it follows that power should be annulled. That is the reasoning that leads to anarchy •••• The founders of this Nation , seeing international peril, created power to meet it.68 6 J ohn o st er u 11 e s , "U • • Charter: An Appraisal," Department 29 :309, September 7, 1953. onstitution and U. N. of State ulletin, CH.APTER VIII THE COVE A 'J.1S ON HUMAN RIGHTS: SECOND PHASE During 1952 and 1953 the Human Ri ghts Program of the United Nations entered a second phase as far as the pro posed covenants on um n ight were concerned . The ques tion o one or two covenant seemed firmly resolved in favor of draft ng two covenants . s these documents were drafted into more d efin · te shape than the early draft of a single covenant had ever been, the reaction in the United States a ainst certain features of the covenan s began to affect the entire United ations by helping to prec pitate a reva - uat · on of t he proper approach that should be made to the international protection of human ri gh s . Official Ameri can osition on the Covenants after 1952 Up until 1952 , the official interest of the United States government di . not markedly alter as re spec ts the Human i hts ro ram of the un·ted ations ; altho gh, of course , much o the enthusiasm of 1945 and of 1948 had 1 abated . As evident from the above, reaction against the United ations program ha already begun in the un·ted 1 s ee: Jame Simsarian , "regress Toward Completion of Human Rights Coven nts ," Depar tment of State Bulletin , July 7, 1952 , PP • 20- Jl . States and was threatening the executive power of the gov ernment throug h proposals to amen the onstitution or otherwise limit the treaty-makin power of the resident . At the same time a reevaluation of the Human ights Program was taking place among those sympathetic to its aims and methods, but who were afraid the oals were being endanger ed by overambitious projects, far too utopian and , i nsuffi ciently practical . Rene runet, a former French del egate to the Lea ue expressed such a view even prior to the Universal Declaration when he wrote in 1947 that he felt it would be better to have a few ri hts soundl guaran teed than many rights devoid of any uarantee . 2 Of ~the Universal Declaration, ans · elsen declared in 1950, that in his estimation, n in ernational bi l l of human r ights is almost worthless if it does not e s tablish or at least recom mend to establish an international court to which the human beings whose ri hts are stipulated have direct access and which has t he competence to render decisions binding upon the states which have violated, or not prevented the violation of, these rights.3 Overly idealistic ocuments hav e a l ways been open to critic sm. One commentator, iscussin a sim"lar to pic, - ----------·- -- - -- - -- · - · 2 , Rene Brunet, La a r antie nternationale des Droits de l' omme d'apres la Charte de San- rancisco ( eneva: Grasset, 19 7), P• 266 . 3 ans elsen, York : Frederik • Law of the United ations (New I nc., 1950), P• 41. 147 pointed out the dangers of such statements as follows: In the abse~e of a willingness to provide measures of enforcement, an instrument like the Kellog pact serves only to bring discredit upon the principles it declares . It opens the door to insincerity on the part of its opponents and to di~illusionment on the part of its well-meanin sponsors.4 Occasionally, even in the statements of a sin le person, subtle chan es in outlook toward the Human Rights Program can be noted. For example in 1945, just after the writing of the ha er and its creation of a Commission on uman Ri hts, Ed ar urlington stressed the universal and idealistic aspects of the ogram by sayin hopefully of the members of the Human ights Commission that, With hi -h statesmanship and adroit diplomacy, they may be able, with no sanction other than that of public opinion, to lead the United ations into effective co operation toward universal obs er vance of human ri hts and fundamental freedoms . 5 ut by mid-1951 the same d ar Turlington was emphasizing the localized and the practical aspects of the Program when he wrote as follows: The problem of the present and of the long future, in promoting the observance of fundamental rights and freedoms, is to obtain a reement and ommon action on 4 awrence t pleton, Justice and W orl Societ1 (Chapel ill, . c.: Universit of orth Carolina Pres s , 1944 ) , pp. 12 - 29 . 5 dga r Turlin ton, " The un·ted ati ns Commiss ·on on Human Ri ghts," AJ L, 39 :758, October, 1945 . 148 small, practical measures in ghe direction indicated by the Universal Declaration. He then went on to advocate the methods utilized by the International Labor Organization, and to suggest the United Nations adopt a system of reports, information, and com plaints in order to advance human rights.7 In 1953, with the coming of the new national admin istration, and possibl~ related to the danger of crippling restrictions bein placed upon the treaty power by Consti tutional amendment, the policy of the United States overn ment moved sharply in the direction indicated by the think ing of persons such as Turlington. When appearin ~ before the Senate Judiciary Committee on April 6, 1953, the new Secretary of State, John Foster Dulles, voiced his opposition to the Bricker Amendment, but at the same time pointed out the value of the movement toward such an amendment in pointing out the danger of using the t eaty form in order to accomplish domestic reform. e intimated that in respect to the previous ad- ministration this concern might have been le itimate, but announced that 6 d ar Turlin ton, "uman Rights Commission at the Crossroads," AJIL, 45:5 8, July, 1951. 7 ee vhapter I X, 149 There has been a reversal of the trend toward trying to use the treaty-making power to effect internal social chan~es. This administration is committed to the exercise of the 8 treaty-makin power only within traditional limits. As far as the projec ted covenants on human rights were concerned the Secretary went on to declare: rhe present administration intends to encourage the promotion everywhere of human rights and individual freedoms, but to favor methods of persuasion, ed cation, and example rather than formal undertakin s which com mit one part of the world to impose its particular social an moral stan ards on the worl community which has different standards •••. Therefore, while we will not withhold our counsel from those who seek to draft a treaty o covenant on human ri hts , we do not ourselves look upon a treaty as the means which we woul , now select as the proper and most effective way to spread throughout the world the ~oals of human liberty to which this na tion has been dedicated since its inception. e therefore do not intend to become a party to any such covenant or ~resent it as a treaty for consideration the enate. 9 t hen he uman Ri gh s Commi son met in M ay of 1953 , rs. Oswald Lor --in the posit on reviously held by Mrs. Roosevelt--made clear the posit on of the new administra- tion. he b e an by saying that she wished to "assure the om.mis ion of the continued an whole-hearted s upport of t he nited tates overnment for its work.nlO But went on 8 John oster Dulles, "Te king of Treaties and xecutive A reements," apartment of State Bulletin, 28: 591 92, April 20 , 1953 . 9 Loc. cit. On this chang e of policy , see also L. H. oolsey, "T e ew olicy Re arding ni ted a tions Treaties," AJ L, 47 : 9 - ~l, July , 19 J . 10 / .4/s 340 , M ay 7, 195 3 , P• 8. 1.50 to announce that in the opinion of her delegation, The climate of worl opinion did not yet seem favor able to such covenants concluded within the framework of the United ·ations, and they would probably not be as effective as had been expected. For those reasons the United States ov rnment had com.e to the conclusion that in the pres ent state of international relations it would not rati fy them.11 Mrs . Lord notified the Commission that the United tates would continue , however, t o coo erate in the work of the Commission--includ n the draftin ~ of the covenants ---- or any other projects. She explained , however, that, feelin_ that treaties were not the right approach to the problem, the Uni ted States wishe d to substitute a three point "Action Program" for the furtherin of human rights. 12 This program would consist of annual reports, specific studies , an advisory services. After this announc ement Dia Casanueva of Chile declared that The fact that so powerful a country as the United tates of Amer c a should decline to assume any interna t·onal le al und ertaking in the sphere of human ri hts offered a somewhat dismal prospect of the Commission's future . he representa ·ve of Uruguay felt there was a 11 Ibid ., p . 10 . 12 -b · d 11 ~ 1 M O ld L 1 • , • • .::; e e a so: rs . s w a • , or d, -- " iew U. s. Acti on Pro ram for uman Rights," Department of State ulletin, 29 : 21.5 - 22, ugust 17, 1953 . 1 3~/ .4/s 340 , ay 7, 1953, P· 13 . contradiction in the stand oft e nited States in express ing willingness to work on the drafting of the covenants while declaring it would neither sign nor ratify the com pleted document . 1 4 The ndian del egate expressed her re gret s that such doubts had been raised as to the practicali ty of the covenants. 1 5 Morosov of the ·.s.s .R. took the opportunity to state that his government would continue to cooperate, and that e felt that it was premature for any nation to announce it would not ratify a then non-existent treaty. 16 After some opportunity to study the new proposals was allowed, Whitlam of Australia expressed a favorable attitude toward the ideas brou ht forth , 1 7 while Rene Cassin of France a reed but emphasized that such steps should be taken only in addition to the covenants. 18 He cone uded his remarks wi the hop e that the Uni t ed States mi ht later chang e its opinion. Chen Paonan of China praised American frankness. 9 M ahmoud Azmi of Egypt gave his support to the "action program" as a "useful contribution. 020 14 -b•d l •' pp. 14-15. l 5Ibid., PP• 15- 16 . lb . bid., P• 17. 17 B/C .4/sR . 341, M ay 9, 1953 , PP • 4-5- 1 19 bid., PP • 5-9• bid., PP• 10-11. 20 E/ N .4/sR . 344, June 11 , 1953, P• 9. 152 Later in the session,the American delegate felt that a reply was necessary to the Sovie t Union and declared that the United States dele ation had not implied the Covenants were unimportant or secondary. 21 But this did not prevent M orosov from char ging that one could only come to the inevitable conclusion that t e Uni ed States resolution was completel opposed to the basic pri c· ples f the nited Nat i ons particularly in the field of human ri ghts. It wa s undoubtedly o osed too, to all t h e work in the drafting of the covenants on human ri ghts and aimed at d estroying he fruits of five year' labour.~ 2 At the clos e of the ni th session of the Commission on uman Ri hts, ay JO , 195 , the Chairman of the Commis sion , Mahmoud Azmi of Egypt, stated that he hoped that, although the declaration made by the United States delegation at the opening of the session hat its government woul d not ratif the covenants on uman rights had been received, if not with a·sa proval, at least with dee p regr et , that same dele ation's active participation in the or of the session migh perha s, be re arded as foreshadowing the review of a position which had possibly been dictated by domestic considera tions . 23 It was clear in subsequent deli erat ons on the Covenants that many dela ations continued to hope that under changed poli ical circums t anc es, the United States might affirm its willin ness to give at least consideration to the 21E/C . 4/sR . ~04 , July 28 , 1953 PP • 1 -15. 22E/ • / s . 405 , Ju y 29 , 1953 , P • 21 . 23 /c .4/ sR. 410, October 12, 1953 , • 15 . 153 Covenants in their final form. 2 4 Completion of the Draft Covenants Te Commission on Human Right s devoted the major part of its session in 1953 to consideration of the draft Covenant on Civil and f olitical Rights , seven additional articles being incorporated in that Cov enant. The Commis sion also revised the revisions relating to the establish ment , com osition , a nd jur sdiction of the Human Rights Commit ee in respect to civil and political rights, but it did no ecide wh ther these provisions were to be extended to he Covenant on Economic, Social and Cultural Ri hts . Provisions for the implementation of the right of peoples an nations o self - determi nation were also drafted. Pro - posals relati to the r"ght of petition by individuals, groups , an non- governmental organizations were rejected. Tne Comm · ssion id not have time to reconsider the final clauses , includin federal and reservation clauses . M r. Morosov , of the Soviet delegation , stated that he con tinued to oppose the " artificial division" into two cove nants . 25 A proposal to request the Council to ask the ------- 2 4 he new osi ion taken by the United States government on the ovenants did not result in an end to he debate over h e advisability of placin limitations on the treat. - makin~ power. See R. f aydock, "The Bricker 4mendment- - 19SS od el," Bar Bulletin of the Boston Bar Associ a ion, 26 : 32- 5 , February, 1955 . 25 I I EC .4 R. O, M ay 7, 1953. 154 eneral Assembly to reconsider its previous decisi on that separate covenants should be drafted was , however , defeat - d 26 e • In August 195 3 , the Economic and Social Council requested the Commission to complete the drafting of the Covenants at its tenth session in 1954 . 27 The Commission re ported to the eneral Assembly and invited member states , specialized a gencie s , and non- governrnenta organizat · ons to submit any observations they mi ght hav e on the raft Covenants . tits eighth session , fro m S eptember to December 1953 , the General Assembly dealt with the question of a federal clause and with the ri ht o petition . Although it did not make any policy decision on either questi on , it approved for transmittal to the Commission draf t resolu tions on the federal state issue and on the right of peti tion . Durin its tenth session, from February to Apr·1 1954 , the Commission redrafted the articles relat·ng to the system of periodic reports for the implementat on of the 26 union of Soviet Socialist Draft Reso - lutio n , M ay 11 , 19~3 . UN Document E CN . L272 . The use of the ca pit 1 Lin the Docum nt number indicates a separate eries of pu 1·cations which ar e limited in distribution . 27 united tion , Economi and Social Council esolu tion 501 (XV ), "Draft I nte national Covenants on Human Ri hts , " August J , 19.SJ . 155 Covenant on conomic, Social and Cultural rights, adopted an article concernin reports on civil and political rights for the implementation of the Covenant on Civil and Politi cal Rights, and decided not to apply the uman Rights Committee procedure to the Covenant on conomic, Social and Cultural Rights. The Commission discussed, but did not accept, provisions on the right of petition of indi viduals, groups , or non-governmental organizations in respect to the human rights included in the Covenants. 28 t the 19 session,a federal clause was also adopted, stipulating that the provisions of each Covenant "shall extend to all parts of federal States without limi tations or exceptions," and a territorial application ' , clause was retaine which stated that the provisions of each covenant "shall extend to and be applicable equally to a signatory metropolitan State and to all the territo ries, be they non-self- governing, trust or colonial terri tories, which are being administered or governed by such metropolitan State." 2 9 o a greement was reached on a reservations clause, and it was decided to request the Council to transmit a number of proposals to the General Assem ly. At the end of its tenth session, the Commission 2 Session, • U Docu . 29 T ese provisions are discussed in Chapter I~ had completed its drafting of the Covenants on Human Rights . The dra f t Covenant on Civil and Political Rights as completed by the Commission on Human Rights in April 1954, was composed of the following sections: Preamble Part I Article 1 The right of self-determination Part II Articles 2 - 5 eneral provisions (limitations, obligations, etc.) Part II Articles 6-26 List of civil and political rights Part IV Articles 27- 48 Measures of implementation: The Human Rights Committee Part V Articles 49 -50 easures of implementation: re ports Part VI Articles 51-54 Final clauses The draft Covenant on Economic, Social and Cultural Ri ghts contained the fol lowin correspondin _ parts : Preamble Part Article 1 The right of self-determination Part II Articles 2 - 5 General provisions (limitations, obli ations , ate.) Part III Articles 6-16 List of economic, social and cultural rights Part IV Articles 17-25 Measures of implementation (a system of periodic reports) Part V Articles 26- 29 Final clauses 157 hen it submitted the draft Covenants to the Ec onomic and Social Council, the Commis sion on Human Rights sug ested that the General Assembly give the draft Covenants two separate reading s at two consecutive sessions of the Assem~ bly. At its ninth session, during 1955 , the General Ass embly considered the draft Covenants. A first reading of the draft Covenants, be innin with a general discussion, took place in the Third Commit ee . On the recommendation of the Third Committee, the eneral Assembly adopted a r solution which, after expressing gratitude to the Commis sion for its work on the drafts , stated that the Assembly : 1. nvites: (a) Governments of States ~embers and non- members of the Unite d ations to communicate to the Secretary Genera l , within six months after the end of the present session of the General Assembly, any amendments or addit · ons to the draft international covenants on human ri hts or any observations thereon; (b ) The specialized a encies to communicate to the Secretary- General , within six months after the end of the present session, any observati ons they may wish to make with re ard to the draft international covenants; (c) he non- overnmental organizations concerned with the promotion of human rights , including those in the non-self- _overnin and t r ust territori e s , to stimu late public interest in the draft international cove nants on human rights by all po sible means in their r s active coun r · ; (a) To prepare and istribute to overnm nt s , as early a s possible a concise annotation of the text of the ra~t international ovenants , takin account of 158 the observations made before and urin t e ninth ses sion of the ~eneral Assembly , includin~ those made in the conomic and ocial ouncil and int e Commission on Human Rights ;3 (b) To istribute to overnments , as soon as they are received, the communications which may be made by overnments and by the specialized agenc ies during the next six months; (c) To prepare as a working paper a compilation of all the amendments and proposed new articles whi h may be submitted by overnments durin that period; • equests the Secretary-General to give the draft international covenants on human rights the widest possible publicity through all the media of in formation available to him, and w thin the limits of his bud et; 4. Recommends that , during the tent session of the General Ass embly , the Th.rd Committee _ive priority an devote itself mainly to the discussion, article by article, in an agreed order, of the draft inter national covenants on human rig ts with a view to their adoption at the earliest poss·ble date. The iscuss·on sha l l also cover any new articles which may be propose . 31 is was here matters stoo on th draft Covenants on uman i ghts at the tenth anniversary of the signing of United ations Charter. M easures of Implement ation A wide variety of views were el on the subject of JO his ocument, inc l uding an analytic sum ma y of debate on each a ticle , was issued as: Draft International Covenants on i hts. Annotation Pre ared b Secreta ----:-------~~-:~'---~-- - - ener 1, Jul , 19 Document A 2929 . A capital A, followed directly ya number , indicates the basic series of Assembl documents. os studies by the ecretariat ppear in this serie. 31 nited rations, ene- al Assembly Resolution JJ(I ) nternation 1 Covenants on H uman Ri hts," D cember , 159 the appropriate measures of implementing the prov~sions of the Covenants on Iuman Rights . One view was that althou h the ovenants should be implemented on the national level by appropriate legislative , administrative , and judicial actions, any attempt to provide for implementat·on on the international level would be contrary to the principle of domestic jurisdiction as proclaimed in Article 2 , para graph 7, of t he United ations harter . Most dele gat:ons , however , felt that the principal difference between the Universal eclaration and the Cove nants was to be the inclusion of some system of implementa tion in the later documents . he question then became one of determinin the most appropriate s ystem . This problem was compounded by the natural distinctions between the basicall olitical rights an the economic and social ones . The different considerations involved in implement ing the two categories o rights ha been, of course, t h e primary consideration in the creation of two separate cove nants . mplementation of civil and olitical ri hts . One of the basic views on the implementation of the civil and political rights was that such ri ghts were primarily legal matters an should properly e settled by a judicial body . An internat· onal court of human rights was consequently proposed, havin the power to settle disputes arisin out 160 of the interpretation and application of the Covenant and b efore which states, individuals, roups of individuals, and non- overnmental organizations might appear . In dis cussing the Universal Declaration, Hans Kelsen had ex pressed this purely judicial point of view: The rights stipulated in the Decalaration /;i~7 are rights the individual has to a certain conduct of the state . This is the reason why only an international bill of rights can effectively guarantee these rights , since only by international law an individual can ef fectively be protected against his own sta e . uch protection can be establish~d only by the jurisdiction of an inter national Court . 3 Others took a primarily political point of view and held that violations of the Covenant on Civil and Political Rights should be considered political issues and settled by diplomatic ne otiations between the nat·ons involved . In cases where such negot ations break down, the issue might appropriately be submitte to an ad hoc fact - finding committee . A third view, representing a somewhat in ermediate position favored the creation of a permanent, independent body, with both fact-find'ng and conciliation powers . S ome felt this body should consider complaints from states only, others felt it should also entertain complaints from indi viduals, groups, and non- governmental or anizations . 32 ans elsen, The Law of the United ations (New Yor{: Frederick A. Prae er, I nc . , 1950), p. 41. 161 It was decided that the Covenant on Civil and Political Ri~hts should be implemented by the establishment of a" uman Ri hts Committee," composed of nine members elected for five - year terms by the International Court of Justice from lists prepared by states party to the Cove nant. The Committee would not include more than one na t·onal of any state an would reflect an equitable geo graphical distribution of membership. ts s taff wou d be part of the United ations Secretariat . Decisions of the Committee were to be made by majority vote of the members present . n the case of tie votes, the Chairman , elected by the Committee on an annual basis, woul cast the decid ing vote . Whenever a signatory to the Covenant considers that another si natory state is no ~iving effect to a provision of the Covenant, it would have recourse to the Human Ri hts Committee. A complainin state must, however , first be in procedure .. , by a direct written communication to the other state, bringing the matter to its attention. Three months were allowed for a statement or explanation iving, if possible, a list of remedies taken or pending in the matte~ If within six months the matter were not settled to the mutual satisfaction of both states, it might be brou ht before the Committee. All domestic remedies should normal ly have been exhausted . There were provisions , however, 162 for the expeditious handling of ur ent cases. The Committee was to have the power to request all parties concerned to supply any relevant information, ascertain the facts of the matter, and otherwise make available its good offices to the states concerned in order to arrive at a friendly settlement. ithin eighteen months of its receipt of the case, the Committee was to draw up a report on the case to be sent to the states concerned and then to the Secretary-General of the United ations for publication. fa solution had not been reached in the matter, the Committee was to state in its report what it found the facts to be and ive its opinion as to whether the facts found indicated a breach of the Covenant . f the opinion were not unanimous, minority opinions could be attached . f the matter remained unsettled after the pub lication of this report, there was provision for recourse to the nternational Court of J ust ce . The Committee woul d also be empowered to recommend that the Economic and Social Council request the nterna tional Court of Justice to give an advisory opinion on any legal question arisin during consideration of the matter efore the Committee . Annual reports were to be made to the General Assembly on the activities of the Committee . A second form of implementation was provided under Article 49 of the Covenant on Civil and Political Rights : 163 national reports were to be submitted to the Secretary General within one year of the entry into force of the Covenant for the state concerned and thereafter as request ed by the Economic and ocial Council . These reports would list all legislative or other measures, includin '.J judicial remedies, whic had been adopted to give effect to the ri ghts reco gnized in the Covenant . The reports were to be transmitted to the Commission on Human Rights for its information, study, and, if necessary, eneral recommendations. t ha been proposed t hat provision be made for the application of the procedure of the Human Ri ... hts Committee to the economic, social and cultural ri ghts under the second Covenant, but it was decided that the Committee system should rightly be applicable only to civil and political rights, s ince the provisions on civil and oliti cal ri hts were to be effected immediately while many of the provis i ons on economic, social,and cultural rights could only be radually implemente over a period of years. Sugg estions ha been made that the measures of i mplementation might best be embodied in a separate instru ment in order to encourag e states to ratify the Covenant, b allowinc them to subs cribe to the instrument on imple mentation at a later ate. This view was not , however, accepted, since most dele ations felt that at least some measures of implementation should be included in the 164 Covenant . Creation of a Human Rights Committee was not favored by all delegations. It was charged that the concept was in conflict with the entire system of international public law regulatin_ relations between states, and that the action of such a Committee would in effect turn a dispute between a private individual and his government into an international dispute, "the eby substantially enlar ing the area of inter national differences, frictions and incidents, unnecessarily burdening and aggravatin international relations and under mining the foundations of peace. 11 33 Those who proposed the Human ights Committee pointed out that the creation or such a good offices committee, would be a purely voluntary act on the part of the signatory states. Since these states were willin to guarantee the rights set forth in the Covenant on Civil and Political Rights, they should have little reason for hesitating in allowing the submission of any disputes over the application of the Covenant to a good offices committee such as that envisaged. At its 1950 session, the eneral Assembly rejected two oviet proposal : th t the Assembly should reco gnize that implementation of the Covenant fell entirely within the 33Annax III of Commission on Human ights: Report 165 domestic jurisdiction of member sta es and that it should de l ete all of the provisions rela t in _ to the Human Rights Committee on the grounds that cr eati on of such a Committee constituted an attempt to intervene in the domestic juris diction of states and to encroach up n their sover eignty . 34 During its session in 1951 , the Commissi on on Human Ri hts rejected a proposal by the Soviet Union to omit those pro vs ons elating to the Human R hts Committee on the theor ha t they embodied forms of con rol w i .h co sti ut ed an a tempt o i ervene in the internal affairs of states and thus to vi l ate their sovereignty . 35 The majori y view was that a good offic es commi tee and a s stem of periodic reports , would not undermine the prin c · ple of non- interference within the domestic jurisdic tion of members as enuncia ed i Article 2 , paragraph 7 , of the Charter , since tha , principle could not b e inter prete so as to prevent member states from willingly enter i ng into international tr aties sue as the Covenants on Human Rights . States objectin to the creati n of a good offices comm · tee need not a cc ept th Covenant. However , of Fifth Session , 1949 . UW Document E/1371 . 3 4 united ations, General Assembly Official Records : Plenary Records , Fifth Session, M eeting 317, December 4, ·- 1950 . Also s ee: USSR: Amendments to Draf t Resolution I Pro Eosed by the 1h rd Comm · ttee, December 1 , 1950 . UN Docu men A/1576 . 5 00 paragra h 72 of Commi ssion on uman Ri,ht~: ReEor of he eventh ession, 1951. UN Document E 1992 . 166 since in Article 1 , para raph 3 declares that one of the purposes of the United Nations is •~o achieve international co - operation ••• in promoting and encouragin respec for human rights and for fundamental freedoms for all without distinction as to race, sex, langua g e or religion," it was hoped that all M embers would be willing to accept the Cove nant . Indeed, under Article 56 of the Charter , all Members of the United Nations "pl edg e t emselves to take joint and separate action in co- opera · on with t e Organ · zation for the achievement of the pur oses, 11 which include the promo tion of res ect for and observance of human rights . From the ince ption of the un·ted ations, human rights had been treated as matters of international concern, as shown y the unanimous Declarat·on and the subsequent I dr rt · n g of the Covenants . After ratify ng the Covenants, sates could no loner claim that revisions in the Cove nants dealt with matters exclusively withi their domestic juris icti n. The existence of a system of · mplementation would not etermine whether the subject m a -ter of the Cove n nts was international or domestic, acceptance oft e Cove nants would settle the matter . If any of the provisions of the Covenants we~e violated, t he traditional machinery for the enforcement of treaties , such as arb i ration or di lo - matic ne otiation, coul d be set in motion regardless of 167 whe r the ovenants had contained specific provisions on m lementat·on. Me asures of implement a tion we inlcu din he Covenants not to cha ng e hei nature in any way, only to rovi e for clearer and more defin · te a ction than i already prov· ded under he internationa l l aw of treat ·e s . At t e ot er end of the spectrum from those who op posed the very existence of a ood offi es Committe e to hear the complaints of sta es signatory to the Covenants, were those who a vocated the extens i on o the j ri dict · on of the Committee to the receipt of petition s fr. om ind·viduals , _roups , an non- overnmental or anizations. At it ifth session, the -eneral Ass embly had requested the Human Ri ghts Comm ssion to consider a procedure for he receipt of such pet·tion; an a its eighth ession , it had proposed once a _a·n tha ~ion. 3 6 he ommission prepare a draft of such a provi - I n he Human i ~ h s ommission se vere procedures were re ommended for the extension o the ri ht of petiti on to individua l and roups unde the Covenant on Ci vil and olitic a l Ri ghts . ome ropo a ls ould e tend an uncondi - ional ri ht to all individual s and roups , 37 others only 3 n · ted a ions , enera l Ass embly Resolution 42 (V), " Draft I nternational Covenant on Human i hts and Measures of m lementation: uture ·o k o the ommission on Human i hts ," December , 1950 ; Re elution 737 B(Vl I) , " Draf t nternationa l Covenant on Human Ri hts and Measu es of mplementation: R " ht of et·tion," ovember 28 , 1953 . 3 7 ara raph , Cammi sion on Human Rights : Repor t of event h Sess·on, 195 1 . Document E/1 992 . to the parties directly affected by the violation.3 proposals provided that only certain non- overnmental 168 Some organizati ons , such as those having consultative status with the Economic and Social Council, would have the right of petition. One proposal would have given the Committe e power to insti ate its own complaints, another that a post of High Commissioner for uman Ri ghts (Attorney- General) be created , with power to ·nsti ate proc edings before the Human Ri hts Committee . 9 t least one of the proposals ore t e clear im rint of the experience of the Lea Jue of a ions with the Minorities Treaties. Thi s draft article provided: The om ittee may receive , for inf ormation, peti tions from persons who complain that they are victims of violations of a State party to the covenant of the provisions of this covenant . The ommittee may , if it sees fit, approach the impugned State in order to clarify the issue and may endeavor to reach a settlement it considers reasonable by semi - official negotiations with the government of that State . When the issue has been clarified and the results of the committee's intervention communicated to the States parties to the covenant, if one or more of those States considers that it shoul d make a formal char e of violation of the covepant, the Committee shall act as a conciliatory organ . 4° 3 8 rbid ., par a raphs 132- 134. 39 rbid ., Anne • 4°Anne x I , Commission on Human Rights: Report of inth ession, 1953 . U Documen E/2447 . 169 The se various proposals for the extension of the right of petition to individuals were criticized on the ground that they were not sufficiently clear on the rights to be accorded the petitioners, that they did not solve certain questions of procedure, and that they provided the Committee with no criteria with which to determine whether it should take action or not. I t was felt very illogical for the Committee to provid e the si gnatory states with information that they were to use in makin complaints to the Committee . Another criticism was that the proc edures would not take advantage of time-honored methods of settle ment such as diplomatic exchang e between the parties con cerned. The greatest objection was, however , the possibili ty that extension of the ri ht of petition to individuals and _roups might lea d to a delug e of irresponsible or provocative petitions, makin _ it virtually impossible for the Committee to act on, or even find , the wheat among the chaff . Advocates of the extension of right of petition maintained that the experience of the Trusteeship Council and the International Labor Organization showed that a flood of groundless petitions was very unlikely, and that the exi g ency could be met by a relatively simple screening process . The issue of provocative petitions coul d not be as easily dismissed , however, in the light of experience with the inorities r aties ystem. 170 The draft Gov nant on Civil and Political i _ hts as it stood on the tenth ann·versarr of the United ations did not contain any provision for the extension of the right of peti ion o individuals, groups, or non- overn mental organiza ions.4 1 Implementati on of economic ~nd social ri hts. One of the primar reasons for the separation of the ori ginal covenant into two covenants had been the differ nces between the system of implements ion which would be provid ed for civi l and poli ical ri ghts and tha which would have to be provided for economic and soc ·a 1 rights . Presumably , any civil or political rights in the covenant which h a d not been reco _nized by any si natory of the covenant would be recognized immediately upon the comi g into effect of the covenant. Econom·c and social ri hts could not , how ever, be made ossible by the sim le will of the signato ries and would have to be reco nized radually as the eco nomic development o the si na ory states made possible . a ional _uarantees of human ri hts have been tra ditionally expressed in terms of limita ions on the power of he overnmen. hile certain civil, political, and some social ri h s may be uaranteed in his wa , most economic and soc al ri hts can only be _uaranteed by positive state 4 1 se e also hapter X . 171 action. The inclusion of these types of rights in the early covenant had led to criticism of the entire program!¥ It was obvious to most that if economic and social rights were to be guaranteed, it would have to be by a system of implementation somewhat different than that applying to c·vil and political ri ghts . he primary method of implementing the provisions of the draft ovenant on Economic, Social and Cultural Ri hts is through a system of Peports to the Secretary eneral of the nited ations for consideration by the Economic and ocial ouncil on the progress made in achiev ing the observance of the rights recognized in that Cove- nant. 'hese reports may indicate factors and difficulties affecting the de gree of fulfillment of Covenant obli a tions . A copy of the r eport, or relevant extracts, may also be made available to specialized a gencies at the same time . Reports were to be su: mitte in stages, in accord ance with a progra m o be esta blished by the ➔ conomic and Social ~ouncil aft r consultation with the si ~na tories and t e specialize d a encies. Arrang ements mi -ht also be made whereby the special·zed a encies report to the Counc · 1 on 4 2 J udson A. Crane, "The I nterna i onal Covenant on uman i c hts and the Universal Declaration of uman i ghts," Universit of P~ttsbur h Law Review, 10:295 - 97, t arch, 19 9 . 172 matters within their jurisdiction with the power to make recommendations on implementation . The s e various reports might als o be t ransmitted by the Council to the Commiss · on on Human Ri ghts for study and general recommendations , and with the Council's own reports and summaries were to be submitted to the General Assembly from time to time . Provision was also made for the reco _nition of other forms of international action to implement the ri hts in the Covenant, such as conventions , recommendations , tech n · cal assistance , re gional meetin s, technical meetings, and studies wit h _ overnments. There was some o ject · on to the creation of a system of periodic report on the grounds thrt this would violate rticle 2, paragraph 7, of the harter , b y obli gating states to submit p e r io .ic reports to the nited I ations on domestic matters . 1 oreover , the steps that states take to realize economi c , social and cultural rizhts wit h~ n their boundaries should not be sub jected to review an criticism by the Commission on uman Ri ghts or other a gencies of the United rati ons . On the other hand, it was maintained that the periodic reportin system was not created to criticize any particular stat, and woul only review obligations freely undertaken by treaty . There were s everal pr oposa s that would apply cer tain aspects of the um.an i _ ,hts Committee procedure to 173 the Covenant on Economic, Social and ultural Ri 0 hts, althou 0 h each proposal limite this extension in some way. Some proposals woul have applied Committee procedures to certain economic and social rights such as trade union rights ; other proposals would have allowed s i gnatory states to declare at the time of ratification any rights they were willing to place under t e jurisdiction of the ·uman Ri ght s Comrnittee. 43 Specialize agencies, such as the nternational Labor Organization, UN SCO , and the · rorld Heal th Organiza tion, advoca ted he complete divorc e of the uman Ri ghts Committee procedures fro m the Covenant on Economic, ocial nd vultural Ri hts on the round that specialized agenci es were better qualified to implement ri ghts within their purview and that the intrusi on of the Committee into such matters would lead t o duplication and confusion . 1 he raft ovenan t on ~conomic, ocial and Cultural i ghts, as it stoo on t e t enth anniversary of the United r at·ons, made no prov·sion for the applica tion of Human Ri ghts Committee procedures to the ri ghts it enunciated. Some debate on the advisability of extendin _ the right of petition to individuals, groups, and non- govern mental organizations touche upon he -raft Covenan on 4 3uaragraphs 21 6 and 218 , ommis sion on Human Ri ghts: eport of erith ession, 19 '4• U Docurnent /2573. l74 , conomic, 0 ocial and Cultural Ri ghts. General Assembly r es ol utions along this line ha d applied to both cate cries of ri ahts. 1 evertheless, a proposed article providin - for ' such a pplication was not acce pted, although there was some continu·ng discussi on on the value of permitt·ng labor unions and employer's organizati ons t o have t he ri ght to subml t petitions concerning violati ons of trad e union ri ghts. CHAPTER X HE HUMAN R I TS E FORTS OFT , illITED ATOS One of the most conspicuous features of the United ?Jat · ons' effort to provide for the international protection of human ri 5 ht has been the _reat number of different approaches made to the problem. S ome of these efforts went off on experimen al tang ents, later to be unceremoniously abandoned or to be otherw·se snarled in procedural delays vi tually constitut·ng abandonment. eve theless, much of the strength of the overall pro ram may lie in just such di ve ·sifica t ion . Thi s chapter will be devoted to severa of theses ecial programs of the u n · te ations . -t shoul be remembered, however , that t he subject matte of many of these special projects are dealt with in the more eneral programs as well . Thus, for example, the st tus of women-- the subject fiel for a pecial comm·ssion of the Ec onomic and Social Counc · l --is also directl reated in the Un versal Declaration in both Covenants on uman Ri ht as well as bein indirectly a f fected by most othe r hase of the total pr ogram . Spec·alized efforts of the United ations to e dis cussed in thi chapter w·11 include : the protect·on of 176 minorities, the improvement of the status of women, the pro tection of dependent peoples, and the promotion of freedom of information, continuing efforts thorou hly to eradicate the institution of human slavery, the efforts of specialized and regional international organizat·ons related to the United ations, and the naction program " proposed by the United States in 1953. Minority Protection I nority problems created by the boundary settle ments wh·ch followed the First orld W a had led to the cre ation of a system of inorities Treaties and to the estab lishment of a com lex internation 1 proc edure in rega d to the ·r maintenance. The redelineation of boundaries after t e Second orl 1 ar was equally frau _ht with problems cre ated by minority groups. For this reason , the first few years after the Second orl ar brought forth many revalu ation of League experience in this field . Two very differ- ent questions were involved: the first involved the con tinuing le ality of the old Minorities Tr eaties; the second involved the possibility of discovering new and more suc- cessful approaches to the problem throug h the Unit e d Nations. Te validity o the E~e -wa Minoriti es Treaties after \, orl eal o~ discussion ha developed over the question of the continuing vali ity of the post - 177 Versai l les I inorities Tr aties. n action, however, the ~inorities Treaties were generally disre arded or considered only as his torical precedent . s pecially adamant in con- siderin g these tr eat·es void were the apologists of the states whi h had been bound . 1 In order to resolve the question of the continuing effect of the Minorities Treati es as far as the United Nations was concerned, that organization autho zed its ecretariat to make a study of the entire iss e . The results of this st dy were published in 19~0; the answer was a simple one . twas conclude that between 1937 and 1947 circumstances as a whole change to such an extent that, enerally speaking , the Lea g ue of ations system of international protect · on of minor ities should be conside ed a s having cease to exist. 2 ..__, This findin _ wa s , of course, more of an a ministra tive rulin than a le va decision. Being the result of a stud y by the Secretariat, it could ardly b e considered to have the legal effect of a decision of the Cour t of I nterna tional Justice or even the force of a study made by the In- ternational Law Commiss on . evertheless, the study at- tempted to _ive legal reasons for its conclusions . Here it 1 or a discussion of some sch views, see Josef L . _ unz, "The · resent Stat s of the I nter national Law for the Protection of inorities," AJIL , 4 : 202- 87 , April, 1954. 2 tud y of the Legal Validity of the Undertakin~ Concerning Minorities , prepared by t he Secretariat, April 7, 1950 . UN Document E/ C1 . 4;367. 178 followed closely the Draft Convention on the Law of Tr ea ties , Article 2 , as f ormulated by the arvard Law School Res e ar ch in International Law . There was one major dis crepancy , however , between the conclusion of the study and the Draft Convention's formulation of the conditions for the operation of the rule of rebus sic stantibus . No matter how reat the changes of circumstances and condi tions , the rule d oes not automa t ically void a treaty; the treaty merel b ecomes voidable . The rule of rebus sic stantibus mus t be invoked by a state part to he treaty and consented to b the other contractin st te s or by a decision of an ·nternational organ competent to rule on the treaty . ·ome gestures have also been ma e toward the concept that the uman Ri ghts Pro ram of the Unite ations has in some way been substituted for , and had thereby abrogated the Minorities Treaties . here is, however , nothing in the Charter that would lead to such a conclusion . On the other hand , there can be no doubt but that for all intents and purposes the Human Rights ro ram has fallen heir to the tradition exemplified by the Minorities Treaties and has thereby ha the effect of abrogating the need for such tre ties in the popular mind . In respect to the present st tus of the Minorities Treaties,only a few facts emer e clearl . These facts are, 1(9 however, sufficiently overriding as to make unnecessary any further le _al discussion of the validity of the treaties . The realities are : the Grea t ewers considered the Treaties as having ailed in their purposes, from both the humanitar ian and political standpoints; the l'ilinorities States were only too happy to concur in this sentiment; rather than create an unpopular issue by formal abrogation , the treaties wee simply i gnored . Un er such circum tances it would be unrealistic to assert that the tr aties ha any real contin uing validity . The lack of a decent burial cannot disprove the fact that the treaties are dead letter in the world of reality . The a2 proach of the Unite 1ations to the problem of minority protection . Action forte protection of mino i ti es had been one of the primar fiel .s of effort by the Lea ue of ations for the international pro ection of human rights . It was only natural, therefore, that the United ations should also make efforts in that same direction. twas amazin _, however, that the United ations hould pply so little real effort to the field that ha been of so much interest to the Lea ue . As will be seen in t ' e next section, the LeR. gue' s efforts under the anda tes System were carrie over with only minor modifications into the United tons Trustees ip ystem. hy then was not 1 0 the Minorities Syst em similarly recreated ·n United l a ions dress? Part oft e reason is historical . The Minoritie s ystem had not been based on t e League Covenant but rather on the various o t - Versailles peac e treaties with those ta tes tha t were later to be termed the "Ivlinorities States." This circumstance was not fully recreated under the United N tions. It is true , however , that c ertain of the ost ·orld ar II treaties did contai revi s ions under which the states concerned undertook to uarantee certain human rights and fundamental freedoms to all their citizens . Notable examples were those with Bulgar·a, inland, unary, I taly, and Rumania da ed February 10 , 1947 . An id ea of the natur of these provisions can be gai n ed from a study of h un arian treat . Article 2, para ~raph 1 of that reat states : ' H u ary shall take all measures necessary to secure to all persons under ungarian jur · sdiction, without distinction as to race, sex, language or religion , the enjoyment of human ri ghts and of the fundamental free dom, incl ding freedom of ex ressi on , of press and publication , of rel i ious worship, of political opinion and of public meeting.3 hile each of the treaties contained a provision similar to that above , the ··ungarian treaty went on to add : hungar: furthe r undertakes that t e laws in f or ce in ungary shall not , either in their content or in their 3 nited States, Department of State, Treati es and Other nterna ional Acts Series, o. 1648-51 ashington, D. C.: overnment ri tin Office , 1947) . 1 1 applicati n, discriminate or entail any discrim nation be ween persons of Hun arian nationalit on the ground of their race, sex, lan uag or reli g ion, whether in reference to their persons, property, business , pro fessional or financial interests, st~ us, political or civil ri hts or an other matter . 4 Another article, appearing in essence in all the treaties except that for Italy, further declared: u :ary, wh · ch in accordance with the Armistice Agreement has taken measures to set free, irrespective of c·tizenship and nationali y, all per ons held in confinement on account of their activities in favour of, or because of their sympat ies w·th, t e United ations or ecause of their racial or· n , an to repeal discrim · nato le gislation an estrictions imposed thereunder , shall complete these measures and shall in future not take any measures or enact any laws h·ch woul e in 5 compati le with the urposes s et forth n this Article . Another reason for the lack of a stron Uni ed a ions effort in the area of the international protection of minorities alon the li es of Lea ue experience was un doubtedl the pre alent contention that the Lea ue effort had shown he futili of such a pro ram. 1 ven those basically in avor of the Lea gue's ex eriment f ound much to criticize in the way it had been carried out . umerous articles appeared durin t e first few postwar years in 4 rticle 2 , para graph 2 . A similar provisi on also appeared in the umanian treaty . 5 rticle 16 of t e ltalian tr aty reads: "taly s all not prosecute or molest talian nati onals, incl in members of the armed forces , sole l on the g round that durin the eriod from June 10 , 1940 , to the comin into force of the present r eaty, they expressed sym athy wi.th or took acti on in support of the cause of the Allied and Associated owers. 182 which the problems of continuing the Minorities Treaties or their effect was discussea. 6 Specific weaknesses were often pointed out as, for example, the fact that the minorities in question had never been accorded the status of le al entities having collective rights . ? Those who pointed out values in he system were very defensive in attitude, evidently feeling they were in the minority . - t was typical for commentators to make such statements as: M uch of criticism raised against the League was ue to i gnorance of the types of pro lem~ involved and accomplishments which were ac ieved . ~ an elements of these justifications of the League system were, no doubt , accurate; but the mere fact that justifications were felt necessar is more important , for it indicated the general consensus was that the inorities Treaties had failed . It is therefore not surprising that the League of Nations' proc edures in minorities protection were not recreated unde the Unit ed ations . It was not, however , that the United ations was not inter sted in the prevention of discrimination and the 6 see, for example, Oscar Karbach, nrrhe Crisis of inorities Protection," Journal of Legal and Political Sociology, 3:69 - 78, umrner 1945 ; Pablo de Azcarate, Pro tection of inorities and Human Ri _;hts, " Annals, 243:124- 28, Januar, 1946, etc. 7 r.rax • Laser on, "Solvin the inori ties Problem by Le al I eans, 11 Journal of Legal and Political Sociology, J : 1-6, Su mmer 1945 . 8 ary ardiner Jones , "ational M inorities: A Case Study in nternational rotection," Law and Contemporary Problems , 14:261, utumn 1949. 1 3 protection of minority groups. Four different articles of the Charter specify that the promotion of respect for human rights and fundamental freedoms is to be "without distinc tion as to race, sex, language or religion. 11 9 Moreover, the General Assembly at its first session passed a resolu tion in which it declared that it is i t h e higher interests of humanity to put an immediate end to religious and so-called racial per secution and discri ination, and /the eneral Assemblz7 calls upon the overnments and res onsible authorities to conform both to the letter and to the sp it of the Charter of the United ations, and to take the most prompt nd ener _etic steps to that end.IO The Sub-Commission on revention of Discrimination and rotection of inorities. n June 1946, the Economic and Social ouncil authorized t e uman ights • • omm.ission to set up sub-commi ssions to deal with the probl ems of the protection of minorities and the pr vention of discrimina tion. The Commission , however, decided tha the problems were sufficiently interrelated to make a sin le sub-commis sion advisable. T e body created was subsequently known as the Sub - ommission on revention of Discrimination and Pro tection of ~1inor'ities and was compris ed of twelve members servin in individual ca pacity rather than as representa- 9 rticles 1, 1, 55 , and 56. lO nited Nations , eneral Assemb y Resolution 103 (I ), "ersecution and Discrimination," ovember 19, 1946. 181+ tives of states . 11 At its first session 12 t h e Sub - Commission studied the draft Declaration of uman Rights in terms of its con cern for minority protection . It proposed some alt erations in several articles of the draft Declaration which were subsequently taken into consideration in the drafting of the Declar ation . I t was particularly interest ed in Article 36 of the draft, wh h specifically dealt with the protec - on of ethnic, linguistic, or reli gious minorities . At th s first session , the Sub - Commission also a temped o establish eneral principles to aid the draft ers of the Declaration or the future covenant on human ri hts in cons ideri ng the preventi on of di scrimination and the protec ion of minoritie s • . hus , while not attempting crea e ormal definitions, i t held: 1. Prevent ion of discrimination is the prevention of any action whi ch denies to individuals or groups of people equality of treatment wh ch they may wish . 2 . Protection of minorities is the protection of non- dominant groups whi ch , while wishin in general for equ l ity of treatment with the majority , wis h for a measure of differential treatment in order to preserve basic characteristics they possess and which distin guish t h em from the majority of the population. The protec t ion applies equally to individuals belonging to such groups and wishing the same protection . It follo-Js 11 see I nis L. Claude , Jr., "The Nature and Status of the Sub- Commission on Prevention of Discrimination and rotec tion of 1'1inori ties ," I nternational Organization , 5 : J00-12, May , 1951. 12 eneva, November and December of 1947 . 185 that differential treatment of such groups or of indi viduals belongin to such groups is justified when it is exerci s ed in the interest of their contentment and the welfare of the community as a whole. The character istics meriting such protection are race, religion and language . In order to qualify for protec tion a minority must owe undivided alle iance to the Government of the State in which it lives . I s members must also be nationals of that State . I f a minority wishes for assimilation and is debarroo, the question is one of discrimination and should be treated as such. 13 uri ng early 194 ,the conomic and Social Council, acting upon the recommendations of the ub - Commission and the Commission on uman i ghts , had authorize the Secre tary- General to undertake studies and analyses of the ypes and causes of discriminat on and to apprais e the resent validity of the M inorities Treaties, as men ioned a ove . This report was submitted t o the Sub - Commis ion somewhat ove r a ear later and became a workin~ pa er of that body. t contained the findin ~ s of psycholo ists, sociologists , anthropologists , economists, historians , political scien- tists, ·urists, and other ecialists . 1 4 anwhile th e Universal Declaration of Human Ri ght s was enterin _ it s f inals ages of draftin . 13 Report on its First Session. Submitted by the ommission on revention of Discrimination and Protec tion of · inorities, ecember 6, 1947. m Document E/ .4/52 . 1 4 e art on Prevention of Discrimination. repared b y the Secretary- eneral, June 7, 19 9. Document '/ C • 4/S ub • 2/40 • 186 Each of the early drafts of the e claration had in cluded an article on the right s of ethnic, linguistic, and religious minorities. The Secretariat' s Draft Outline of a Bill of Human Rights had provided for such protection. Its provis ion was as foll ows: In State s inhabited by a substantial number of per sons of a ce, lan ua e, or religion other than those of the major· ty of the population , persons belong ·n to sch ethni , linguistic or reli ~io s minorities shall have he ri ht to establish and maintain , out of an equitable proportion of any public funds available for the purpose, the · schools and cul .ural and reli i ous institution, and to use their own langua g e before t he court s and other authorities and organs o{ the tate and in the press and in public assembly . 1 ~ Durin _ the summer of 1947 this Draft Outline was con- s ldered by the raftin ommittee of the Commiss · on on uman ti hts and was modifie to provi et at such minori - ties shall have , the ri ght as far as is compatible with pubic order to establish and maintain their schools and cultural or reli ious institutions, and to use their own language in the press , in pub l ic assemb y and before the courts am other authorities of the State. 1 6 As can be readily observed, th · s repr ented a wea ening of he ~uarantee concerned, omittin reference to public funds nd addin con ider tion for the publi order . ----- - l5 nnex A of Commiss · on on Human Ri ghts , Draftin ommittee on an International Bill of uman ights , First ession Report of the Draftin Committ e to the Commission on Hu n Rights, Jul 1 , 19 7. N Document E , . • 4 21 . 16 Anne in ibid . 187 The ub-Commission on Prevention of Discrim na ion and the Protection of norities was no sa isfied w h this draft n d repared one of t s own. This d at made allowances for minori ie s wh ch wi sh to be assimila ed w· th the majori ty . W i hout su h rovisi ons the Sub Commission was afraid that i ori y protec t i on might be used as a vehicle of discrimi a ion. Te Sub- Commi sion's daft specified that, In States inhabited by well- de i ed ethnic lingu·s t · c or reli gi ous rou s which ar e clearly dis in u·shed from the rest of the popu a in, and hich wa t to be accorded differen i al reatment , persons belongin o such rou~s shall hav e the ri ght, a s far as is com patible with public order nd security, to establish an mainta·n their chools and cul ural or rel gious institutions, and to use heir own 1 n _ a .e and script in the press , the courts and o er au horities of the tate, if t e so choose . 1 7 The Human Ri hts Commiss on at is second • session id not make any decision be ween he ub- Commi~ s on ' s draft and that of its Drafting Committee . Ins ead i sub m· t ed both or fu ure cons i der tion. At is third ses ion t e Commission dec · ded no to include an article on mi ori - ies i the Declar a tion , an a dr ft without any version of the above article was prepared . 1 8 17 Annex A of Commission on Human Ri hts : Re ort of Second Sess·on, 194 . Doc um e t 00 . 1 Annex A of Commission Re ort of T ird Session, 194 • Docum 1 8 hen his draft came before the Third ommittee of the eneral Assembl late i n 1948 , three proposals were put orw rd 1 9 to relns ert a prov sion on minoriti e s protection . , M . Rene assin o the French elegation , pointed out that the general provision of the De claration in res pect to equality of tr eatment ould protect minorities generally, an that specific protection beyon this point was compli cated b the ifferent struc t ure oft e var ous States; he ded the observa ion h t e var · ous drat prov" sions were too ene al to ad much o the guarantees already i n ot her portions of the Dec ara ion . T e · aitian dele ati on sup ported his view bu su este tha the ~ub - Commission on th Drevention of Discri i nation and the Protect i on of Minorities be reques ed to make a study o possible spec·a1 implem ntation of the Declaration in respect to mi norities . 1r . Ka , al " of Syria declared hat the protection of minori ies had of en been used as pol tical excuse for inter vention in the affairs of neighboring stat e s and that any mention of minorities • the eclar a t ion mi ght lead to in a new ave of such abuses . The eavy hand of League • experi - be cle rly • The Committee adopted ence C n seen onc e a gain . the haitian p oposal . 20 19 By Denm r , by the .s ... , and by Yugoslavia . 20 official Records oft e Third Session of the eneral As se bl~ Part I , Thi d Committee , September 21 to , 19 • 1 9 hen the plenary session of the eneral Assembly adopted a text of the Universal Declaration of ~uman Ri hts making no reference to minorities as such, 21 it also adopted a resolution, askin the Commission on Human Rights t o examine the problem of the protection of minorities durin the preparation of the draft Covenant on Human Ri ghts . 22 t shoul be note d that the last three substant·ve articles of the draft ovenant on Civil and Political Ri hts have incorporated minority provisions . The first of these, Article 2 , pertains primarily to discrimination , saying: All persons are equal before the law . The law shall prohibit any discrimination and guarantee to all per sons equal and effect ·ve protection a ga·nst discrimina tion on any ground such as race, colour, sex, lan _ua e, religion, political or other opini on, national ~r social origin, property, birth or other stats . The next two provisions are more specifically im por t ant to the concept of minority protection. They pro vide as follows : 21 official Records of the Third Session of the ~eneral Assembly , Part I : Plenar I eetin s . Summary Report 180 , December 9 , 1948 ; um mary Report s 1 1-2-J December 10, 1 48 . 22 united at ·ons, General As sembly esolution 217 ( ) , "nternational i l l of human Ri ghts," Part , "The 'ate of inorities,u ecember 10, 194 . 2 3 nnex , : Commis si on on - uman ights: Re ort of the Tenth essi

Linked assets

University of Southern California Dissertations and Theses

Conceptually similar

PDF

Privileges and immunities of international organizations and their personnel

PDF

A comparative study of the experiential approach to religious education and some aspects of existentialism

PDF

The influence of Pietro Aretino on English literature of the Renaissance

PDF

Financing medical care; a critical analysis of the insurance and prepayment methods of financing medical care, with particular reference to California

PDF

Roles student nurses desire or expect to perform and roles achieved by graduate nurses from the same selected school of nursing

PDF

The role of the teacher in dealing with behavior problems in the classroom

PDF

Harry Emerson Fosdick and his impact on liberalism in religion in the United States

PDF

The express warranty as a method of obtaining product quality in industrial purchasing

PDF

A history of the national banking system of the United States

PDF

The development and expansion of the Spanish kingdom into a united nation

PDF

The administration of the social welfare program in several typical foreign schools in Los Angeles city

PDF

Housing conditions among the Mexican population of Los Angeles

PDF

Sources and developments of the implied powers of the constitution of the United States

PDF

The control of voltage fluctuations in high tension transmission systems by the application of synchronous condensers

PDF

Some personality variables in pvert female homosexuality

PDF

Administrative techniques for increasing academic achievement of gifted children within the elementary classroom

PDF

Admission To Membership In The United Nations As An Instrument Of Diplomacy

PDF

The design of steel and reinforced concrete balcony trusses

PDF

Significance of the recent acquisition of insular posessions by the United States

PDF

A history of the political development of the Latin-American republics, showing the influence of the constitutional system of the United States

Asset Metadata

Creator Moser, Leo John (author)

Core Title The human rights program of the United Nations 1945-1955

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Political Science

Degree Conferral Date 1957-06

Publication Date 01/01/1957

Defense Date 01/01/1957

Publisher Los Angeles, California (original), University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest

Format theses (aat)

Language English

Contributor Digitized from microfilm by the USC Digital Library in 2023 (provenance)

Advisor Harley, John Eugene (committee chair), Anderson, Totton James (committee member), Pfiffner, John M. (committee member), Rodee, Carlton Clymer (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-oUC113174237

Unique identifier UC113174237

Identifier Ph. D Po 57 M844 (call number),etd-MoserLeo-1957.pdf (filename)

Legacy Identifier etd-MoserLeo-1957

Document Type Dissertation

Format theses (aat)

Rights Moser, Leo John

Internet Media Type application/pdf

Type texts

Source 20230616-usctheses-microfilm-box8 (batch), University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the author, as the original true and official version of the work, but does not grant the reader permission to use the work if the desired use is covered by copyright. It is the author, as rights holder, who must provide use permission if such use is covered by copyright. The original signature page accompanying the original submission of the work to the USC Libraries is retained by the USC Libraries and a copy of it may be obtained by authorized requesters contacting the repository e-mail address given.

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA

Repository Email cisadmin@lib.usc.edu