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Bringing Individual Human Rights Issues to the United Nations: John Humphrey and the Quest for Compensation
Published online by Cambridge University Press: 09 March 2016
Summary
When the United Nations was formed, one of its earliest tasks was to develop an international bill of human rights that would recognize the individual in international law for the first time. This bill was envisioned to have three parts: a declaration, a convention, and a means of implementation. A number of conventions have since been opened for signature. Two of the means of implementation that have been developed are actions under the Optional Protocol of the International Covenant of Civil and Political Rights and ECOSOC Resolution 1503. This article examines some attempts on the part of individuals or groups to use these mechanisms to gain compensation for human rights violations. It is based on the papers of Canadian human rights advocate John Peters Humphrey, who as an UN official wrote the first draft of the Universal Declaration of Human Rights, worked on the covenants, and first proposed Resolution 1503. Years later, as a private citizen, he helped bring a number of cases to the United Nations using these mechanisms. Humphrey and his allies also attempted to have a declaration of principle on the right to compensation for human rights violations adopted by the General Assembly — a question that has not yet been resolved.
- Type
- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 41 , 2004 , pp. 187 - 223
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2004
References
1 Universal Declaration of Human Rights, GA Res 217(III), UN GAOR. 3rd Sess., Supp. No. 13, UN Doc. A/810 (1948).
2 These were the International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; and the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force jan. 3, 1976).
3 These would include such items as Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684 (1961); and International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969).
4 Optional Protocol to the International Covenant on Civil and Political Rights, GARes. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302 (entered into force March 23, 1976).
5 Details of these procedures can be found at the website of the Office of the UN High Commissioner for Human Rights, Procedure under the Optional Protocol to the International Covenant on Civil and Political Rights at <http://www.unhchr.ch/html/menu6/2/fs7.htm#ccpr>.
6 UN Economic and Social Council [hereinafter ECOSOC] Procedure for Dealing with Communications Relating to Violations of Human Rights and Fundamental Freedoms, Resolution 1503 (XLVIII), 1970, UN Doc. E/4832/Add. 1 (1970), text is available at <http://www1.umn.edu/humanrts/procedures/1503.html>.
7 The workshop, which was jointly sponsored by the UN Centre for Human Rights and the Canadian Department of Justice, was held in Ottawa in June 1990.
8 The proceedings of the workshop were published in the Canadian Human Rights Yearbook 1991–1992 (Ottawa: Human Rights Research and Education Centre, University of Ottawa, 1992). Märtenson’s opening statement can be found on pages 19–26.
9 Ibid. at 19.
10 Humphrey was only invited to a post scriptum after the workshop ended. Reflecting on this event, he wrote in his diary on August 23, 1990:
Incidentally I was not invited by the Canadian government to attend a four day [workshop] recently in Ottawa on the Optional Protocol to the Covenant on Civil and Political Rights. Since I am one of the few surviving people who played a part in its adoption I wonder why. It was true that I was invited to a kind of post scriptum conference of one day later. Nor was I invited to a conference in the same city by the Canadian Commission for UNESCO. I sometimes think that I have more enemies in Ottawa than friends. I could make a list.
Humphrey’s Diary, McGill University Archives [hereinafter MUA] Manuscript Group [hereinafter MG] 4127,Cont. 20, File 16 [hereinafter Humphrey Diary]. In addition to his diary, Humphrey’s extensive collection of papers, of which we cite extensively throughout the footnotes, is housed in the MUA as MG 4127.
11 See Hobbins, A. J., “Humphrey and the High Commissioner: The Genesis of the Office of the UN High Commissioner for Human Rights” (2001) 3 J. History of Int’l L. 38–74.CrossRefGoogle Scholar
12 The association was established in 1920 as the Amputations Association of the Great War. It changed its name during the Second World War.
13 This service provides license plate information to be attached to keys and has resulted in a million lost sets of keys being returned to their owners.
14 ICCPR, supra note 2.
15 Convention on the Rights of the Child, GARes. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989) (entered into force Sept. 2, 1990) at Article 24(d).
16 International Commission of Health Professionals and War Amputations of Canada, Joint Statement to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, August 1989, MUA MG 4127, Cont. 16, File 3 21.
17 Great Britain had in fact no intention of accepting this offer since the presence often Chinese divisions in Hong Kong might have negatively affected the future of the colony.
18 Convention Relative to the Treatment of Prisoners of War, with Annex, July 27, 1929, 118 L.N.T.S. 343 [hereinafter Geneva Convention].
19 This debacle was the subject of a parliamentary enquiry to see if there was any individual culpability for sending the troops in the prevailing circumstances. These facts are taken from Canada, Report of the Royal Commission to Inquire into and Report upon the Organization, Authorization and Dispatch of the Canadian Expeditionary Force to the Crown Colony of Hong Kong (Ottawa: King’s Printer, 1942).
20 The treaty was signed in San Francisco on September 8, 1951 and came into force on April 28, 1952. Both years are used in correspondence to refer to this treaty. Treaty of Peace with Japan (with Two Declarations), September 8, 1951, 136 U.N.T.S. 45.
21 In Article 16 of the treaty, Japan agreed to transfer its assets, and those of its nationals, to create a compensation fund.
22 At this point, a sum of Cdn $12,000,000 was requested — $12,000 per veteran or widow, there then being about 1,000 potential benefactors.
23 Letter from Chadderton to Hees (August 5, 1986, MUA MG 4127, Cont. 16, File 331).
24 Letter from Gingras to Humphrey (November 7, 1986, MUA MG 4127, Cont. 16, File 331).
25 Letter from Humphrey to Gingras (March 7, 1987, MUA MG 4127, Cont. 16, File 331).
26 Letter from Forbes to Humphrey (May 20, 1987, MUA MG 4127, Cont. 16, File 331).
27 Letter from Clarke to Chadderton (undated but received June 30, 1987, MUA MG 4127, Cont. 16, File 331).
28 Great Britain Parliamentary Debates, July 21, 1988, vol. 137, p. 1423–24.
29 No punishment unless a law had been broken. Since Japan was not party to the 1929 Geneva Convention, supra note 18, it could not be held to have broken a law.
30 Letter from Forbes to various recipients (December 18, 1987, MUA MG 4127, Cont. 16, File 331). These included Jean-Jacques Surbeck (International Committee of the Red Cross), Berti Ramcharan (UN Human Rights Centre, Geneva), Marc Bossuyt (Chair, Commission on Human Rights [hereinafter CHR]), Adrien-Claude Zoller (International Human Rights Service, Geneva), Niall MacDermot (International Court of Justice), Chris Avery (Amnesty International), and Serge Wourgaft (World Veterans Federation).
31 Secretary-General of the International Commission of Jurists.
32 Letter from Forbes to Humphrey (January 20, 1988, MUA MG 4127, Cont. 16, File 330).
33 Letter from Humphrey to Forbes (January 27, 1988, MUA MG 4127, Cont. 16, File 330).
34 Letter from Forbes to Humphrey (February 10, 1988, MUA MG 4127, Cont. 16, File 330).
35 Letter from Forbes to various non-governmental organizations [hereinafter NGOs] (February 11, 1988, MUA MG 4127, Cont. 16, File 330).
36 Letter from Chadderton to Braine (August 16, 1988, MUA MG 4127, Cont. 16, File 330).
37 Letter from Humphrey to Forbes (March 11, 1988, MUA MG 4127, Cont. 16, File 330).
38 Letter from Humphrey to Forbes (March 28, 1988, MUA MG 4127, Cont. 16, File 330).
39 Letter from Forbes to Chadderton (April 7 1988, MUA MG 4127, Cont. 16, File 330).
40 Deputy Chief of the Legal Division of the International Committee of the Red Cross [hereinafter ICRC].
41 Letter from Forbes to Chadderton (April 7, 1988, MUA MG 4127, Cont. 16, File 330).
42 Wourgaft wrote to Chadderton on May 8, 1988, stating: “On behalf of our Executive Board, I wish to inform you that the World Veterans Federation fully agrees with the principles set forth in the declaration and is prepared to co-sponsor it should you wish.” Letter from Wourgaft to Chadderton (MUA MG 4127, Cont. 16, File 330).
43 Letter from Louise Doswald-Beck (ICRC) to Forbes (May 10, 1988, MUA MG 4127, Cont. 16, File 330).
44 Ibid.
45 US Office of War Information, Psychological Warfare Team, Japanese Prisoner of War Interrogation Report no. 49 (October 1, 1944, MUA MG 4127, CC. 02-086, Box 4, File 106, p. 1–2).
46 Letter from Forbes to Humphrey (January 27, 1982, MUA MG 4127, Cont. 16, File 330).
47 Letter from Forbes to Dieng (September 10, 1991, MUA MG 4127, Cont. 16, File 330).
48 Typescript of speech, MUA MG 4127, Cont. 16, File 333.
49 Letter from Chadderton to Mulroney (May 7, 1992, MUA MG 4127, Cont. 16, File 330).
50 Vienna Convention on Law of Treaties, May 23, 1969, UN Doc. A/COF.39/27, text is reprinted in 81.L.M. 679 at articles 31(2) and (3).
51 Letter from Forbes to Chadderton (August 25, 1992, MUA MG 4127, Cont. 16, File 330).
52 Humphrey Diary, supra note 10 (June 3, 1989).
53 Letter from Forbes to Chadderton (September 15, 1988, MUA MG 4127, Cont. 16, File 330).
54 UN Human Rights Committee [hereinafter HRC], Report, 46th Session, UN Doc. E/CN.4/1990/94 at 3 and 96.
55 Letter from Chadderton to Mulroney (September 23, 1988, MUA MG 4127, Cont. 16, File 330).
56 Letter from McDougall to Chadderton (November 20, 1992, MUA MG 4127, Cont., 16, File 323).
57 Letter from Forbes to Humphrey (December 21, 1992, MUA MG 4127, Cont., 16, File 323).
58 Forbes summarized this to Chadderton as follows:
You will note [in a draft letter] that I have formally put the Canadian Government on notice that we have no alternative at this time but to commence proceedings under the Optional Protocol given the present position of the Canadian Government in relation to our general initiative within the United Nations.
…
I would suggest that we will want to give the Prime Minister sufficient time to respond to our demands, as I remain concerned that initiation of the Optional protocol procedure can result in a lengthy and complex proceeding (November 2, 1992, MUA MG 4127, Cont., 16, File 323).
59 “Since the involvement of the Dutch civilian internee associations there has been a distinct change in van Boven and Flinterman’s attitudes toward the Japanese claim.” Letter from Forbes to Chadderton (August 27, 1990, MUA MG 4127, Cont., 16, File 323).
60 Ibid.
61 UN CHR, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, 45th Session, Item 4, UN Doc. E/CN.4/Sub.2/1993/8 (provisional).
62 Ibid, at 58.
63 Van Boven produced two revisions of the basic principles (UN Documents E/CN.4/Sub.2/1996/17 and E/CN.4/1997/104).
64 UN CHR, Draft Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law, 56th Sess., Item ι l/d, UN Doc. E/CN.4/2000/62 (provisional).
65 Letter from Forbes to Humphrey (May 12, 1992, MUA MG 4127, Cont., 16, File 323).
66 Letter from Forbes to Chadderton (November 2, 1992, MUA MG 4127, Cont., 16, File 323).
67 The Valour and the Horrorw was actually a series. The item on the Hong Kong veterans was entitled Savage Christmas.
68 Letter from Forbes to Humphrey (January 15,1992, MUA MG 4127, Cont. 16, File 323).
69 UN General Assembly, United Nations Decade of International Law, UN Doc. A/RES/44/23 (1989).
70 Humphrey Diary, supra note 10 (July 21, 1990).
71 For full details, see Hobbins, A. J. and Boyer, Daniel, “Seeking Historical Truth: The International Commission of Inquiry into the 1932–33 Famine in Ukraine” (Fall 2001) 24 Dalhousie L.J. 139–91.Google Scholar
72 Humphrey Diary, supra note 10 (August 22, 1990).
73 Letter from Humphrey to Forbes (August 21, 1990, MUA MG 4127, Cont. 16, File 323).
74 Letter from Forbes to Chadderton (August 27, 1990, MUA MG 4127, Cont., 16, File 323).
75 Letter from Humphrey to Forbes (September 4, 1990, MUA MG 4127, Cont., 16, File 323).
76 Hopkins, T. and Paton, P. D., “The United Nations Decade of International Law: A Canadian Perspective” (1993) 31 Can. Y.B. Int’l L. 283 at 307.Google Scholar
77 Ibid, at 302
78 The name has now been changed from the UN Decade of International Law Newsletter to UN 21 InterestGroup Newsletter and is still edited by Slomanson; available online at <http://www.lawschool.cornell.edu/library/asil/>.
79 Letter from Totsuka to Forbes (March 20, 1992, MUA MG 4127, Cont. 16, File 320).
80 Letter from Totsuka to Forbes (August 22, 1992, MUA MG 4127, Cont. 16, File 320).
81 The Asian Women’s Fund was launched in 1995 with “the aim of expressing a sense of national atonement from the Japanese people to the former ‘comfort women’ and to work to address contemporary issues regarding the honor and dignity of women.” It remains controversial in Japan and most of the “atonement monies” have been paid to Filipina women. See Sarah Soh, Chunghee, “Human Rights and Humanity: The Case of the ‘Comfort Women.’” ICAS Lectures, University of Pennsylvania, December4, 1998.Google Scholar
82 Letter from Totsuka to Forbes (March 20, 1992, MUA MG 4127, Cont. 16, File 320).
83 Fax from Totsuka to Forbes (April 29, 1992, MUA MG 4127, Cont. 16, File 320).
84 Humphrey Diary, supra note 10 (August 16–23, 1992).
85 Ibid. (January 10, 1993)
86 Ibid. (January 11, 1993).
87 Ibid. (February 28, 1992).
88 Charter of the French Language, R.S.Q. eh. C-11 (popularly known as Bill 101).
89 An Act to Amend the Charter of the French Language, Quebec, National Assembly, Thirty-third Legislature, 2nd Session. 1988. Ch. 54. Act amended: Charter of the French Language, R.S.Q., chapter C-11 (popularly known as Bill 178).
90 ICCPR, supra note 2 at Article 19.
91 Ibid. at Article 27.
92 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Quebec Charter of Human Rights and Freedoms, R.S.Q. Ch. C-12.
93 Humphrey Diary, supra note 10 (March 1, 1990).
94 Ibid. (March 19, 1990).
95 Ibid. (March 21, 1990).
96 Humphrey had had advance warning of this which he passed on to Grey, writing in his diary: “Short talk with Julius Grey over the telephone. I passed on to him confidentially the information I was given by a member of the U.N. secretariat to the effect that the Human Rights Committee [would] probably find Canada in default in the ‘notwithstanding clause’ case.” Ibid. (August 30 1992).
97 UN HRC, “Ballantyne, Davidson, Mclntyre v. Canada,” Communications nos. 359/1989 and 385/1989, UN Doc. CCPR/C/47/D/359/ig8g and 385/ 1989/Rev.i (1993).
98 Letter from Forbes to Chadderton (August 27, 1990, MUAMG 4127, Cont. 16, File 323).
99 Byoungwook Park provides a legislative history of these cases, noting:
Compare Okada, Taihei, The Comfort Women Case: Judgment of Apr. 27, 1998, Shimonoseki Branch, Yamaguchi Prefectural Court, Japan, 8 Pac. Rim. L. & Policy J. 63, 63 (1999)Google Scholar (stating that the Yamaguchi District Court decided in favor of the Korean Comfort Women and awarded them monetary damages); with High Court Reverses Ruling Favoring Comfort Women, Daily Yomiuri, Mar. 30, 2001, at 1 (reporting that the Hiroshima High Court reversed the ruling, which ordered the Japanese government to pay three hundred thousand yen to each of the three plaintiffs by holding that the Japanese government is not legally obliged to apologize or pay monetary compensation in connection with the military’s use of Comfort Women).
Park, B., “Comfort Women during WWII: Are U.S. Courts a Final Resort for Justice?” (2002) 17 Am. U. Int’l L. Rev. 403 at note 23.Google Scholar
100 The sub-commission accepted the report of the special rapporteur, Gay McDougall, which can be found in UN CHR, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Report Appendix, “Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict,” UN Doc. E/CN.4/Sub. 2/1998/13, pp. 38–62.
101 Text of the judgment can be found at <http://www.korea-np.co.jp/pk/173rd_issue/2001122610.htm>.