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The Right to Petition an International Authority

Published online by Cambridge University Press:  27 January 2016

J. W. Bruegel
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Extract

Article 55 of the United Nations Charter commits the member States to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,” recognising thus for the first time the individual as a subject of international law. This would have certainly been a very welcome step—yet we can hardly overlook the fact that very little has been done during the years since 1945, to enable the individual to enjoy this right, guaranteed by the Charter. The “Bill of Rights,” promised in 1946, is far from being completed and ripe for ratification. Rescinding a decision of its fifth session in favour of the inclusion of economic, social and cultural rights in the Draft Covenant of Human Rights, the General Assembly voted during its sixth session in favour of the drafting of two Covenants, one to guarantee civil and political rights and the other economic, social and cultural rights. The drafts of these two documents in the form they emerged from the ninth session of the UN Commission on Human Rights (April 7 to May 30, 1953) do not provide possibilities for the individual to petition an international authority in case of an alleged violation of the Covenant's provisions—in spite of the opinion expressed by the General Assembly at its third session in 1948, that “the right of petition is an essential human right.”

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 2 , Issue 4 , October 1953 , pp. 542 - 563
Copyright
Copyright © British Institute of International and Comparative Law 1953

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References

1 ProfessorLauterpacht, H., International Law and Human Rights, London, 1950Google Scholar.

2 Resolution 421(V) of December 4, 1950.

3 Resolution 543(VI) of February 5, 1952

4 E/2447.

5 Resolution 217 B(111) of December 10, 1948.

6 E/2447, paragraph 293.

7 It has been laid down by resolution of ECOSOC 75(V) of 1947, amended by Resolutions 116 A(VI) of 1948, 192 A(VIII) of 1949 and 275(X) of 1950. The present status is described in the General Secretary's memorandum E/GN. 4/682 (January, 1953).

8 Memorandum E/CN. 4/165.

9 Resolution 542(VI).

10 Report of the eight session of the Commission on Human Rights (E/2256) and summary reports E/CN.4/S.R. 332 and 335.

11 Summary report E/SR.656.

12 E/2447, paragraphs 285–92, and E/AC.7/L.149.

13 Lauterpacht, op. cit., pp. 177–88.

14 Op. cit., p. 118.

15 Op. cit., pp. 240–1.

16 Op. cit., p. 257.

17 Text: British Yearbook of International Law, 1948, pp. 378–81Google Scholar, Carlyle, Margaret (Edit.), Documents on International Affairs, 1947–1948, London, 1952, pp. 855–61Google Scholar.

18 Neither during the eighth session, held in 1952, nor during the. ninth session in 1953 could the Commission find the time to prepare suggestions for measures of implementation to be incorporated into the Draft Covenant on social, economic and cultural rights.

19 Lauterpacht, op. cit., pp. 244–5.

20 Op. cit., p. 244.

21 Resolution 39(1) of December 12, 1946. This decision was considerably softened by a later Resolution 386(V) of November 4, 1950, which did not affect, however, the quoted sentence. See further Lauterpacht, op. cit., pp. 188–92, Yearbook, of the United Nations, 1946–1947, pp. 126–30Google Scholar.

22 A/68.

23 Resolution 44(1) of December 12, 1946 and Resolution 265(111) of May 14, 1949. For details see Lauterpacht, op. cit., pp. 192–9, Yearbook …, 1947–1948, pp. 56–9, 1948–49, pp. 304–10, 1950, pp. 398–407, 1951, pp. 349–54Google Scholar.

24 Resolution 395(V) of December 2, 1950.

25 However the Soviet bloc does not always refrain from asking UN for interference in the area of domestic jurisdiction of states. A draft resolution, submitted by Czechoslovakia (Doc.A/L.148)—which the General Assembly rejected during the second part of the Seventh session—suggested “to recommend to the United States Government the repeal of those sections of the U.S. Mutual Security Act of 1951 which appropriate funds for subversive activities and espionage” (Press Belease GA/VII/68/Add.1).

26 511(VI) and 615(VII).

27 285(111). For details see Lauterpacht, op. cit., pp. 203–4, Yearbook …, 1948–1949, pp. 327–33Google Scholar.

28 A/764.

29 Resolutions 272(III) of April 30, 1949, 294(IV) of October 22, 1949, and 385(7) of November 3, 1950. Details in: Lauterpacht, op. cit., pp. 205–13, Yearbook …, 1948–1949, pp. 316–27, 1950, pp. 385–97Google Scholar.

30 Treaties of Peace with Italy, Rumania, Bulgaria, Hungary and Finland, Cmd. Paper 7022. Furthermore: Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, Advisory Opinions of, the International Court of Justice, May 30, and July 18, 1950 (I.C.J. Reports, 1950, pp. 65 and 221).

31 “Nothing in the present Charter shall invalidate or preclude action, in relation to any Slate which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized aB a result of that war by the governments having responsibility for such action.”

32 427(V) of December 14, 1950.

33 A/2183.

34 The United Kingdom, having first supported South Africa in this matter, abstained from voting on the substantial resolution, when the South African point of view had been defeated.

35 For details of the discussion see the Ad Hoc Political Committee's summary reports A/AC.61/SR.13–21 and the verbatim reports of the General Assembly's meetings A/PV 382 and 401.

36 616 A and B(VII).

37 This phrase was inserted upon a motion presented by Brazil.

38 The Soviet bloc voted for the first and against the second resolution.

39 Since then, the ICFTU has taken over this function.

40 Yearbook …, 1948–1949, pp. 545–7, 1950, 540–1, 1951, 497–501Google Scholar.

41 The ILO Convention No. 29 concerning Forced or Compulsory Labour (1929) defined the term as “all work or service which is exacted from any person under the menace of any penalty and for which the said person had not offered himself voluntarily.” The Convention has been ratified by a large number of countries, including Bulgaria. The Soviet Union was never a member of the International Labour Organisation.

42 Resolution 195(VIII) of March 7, 1949.

43 Resolution 351(XII) of March 19, 1951. The three members were: Sir Bamaswami Mudaliar of India (Member of the International.Court of Justice, Chairman), Mr. Paal Berg, former President of the Supreme Court of Norway, and Mr. Felix Palavacini (Mexico), who was replaced after his death by Mr. Emrique Sayan, former Minister of Foreign Affairs (Peru).

44 Report of the Ad Hoc Committee on Forced Labour, Geneva, 1953 (UN document E/2431).

45 Petitions to this effect had been sent to the Committee as part of a counter-offensive, organised by the Communist-dominated unions.

46 About Malaya, the Committee observed, that the Emergency Begulations, “if broadly interpreted and extensively applied (though there is no evidence that they have been so interpreted or applied) could lead to a system of forced labour as a means of political coercion.” According to the Committee, “the Voluntary Unemployed Persons Ordinance in Kenya could be applied (although it appears that it is not at present so applied) in Buch a way as to result in a system of forced labour of some importance to the economy of Kenya.”

47 E/SR.705.

48 No Communist-dominated State has ratified the Convention so far.

49 Resolution 128(II) of November 17, 1947.

50 Resolution 239(IX) of August 2, 1949.

51 Resolution 277(X).

52 C.W.J., The Protection of Freedom of Association by the International Labour Organisation, British Yearbook of International Law, 1951, pp. 348–59Google Scholar. The ILO activities in this field have been described in detail in: Fourth Report of the ILO to the United Nations (1950), pp. 327–8, Fifth Report … (1951), pp. 253–64, Sixth Report … (1952), pp. 169–237, Seventh Report … (1953), pp. 173–396. See finally: World Labour Report, 1953, Beport of the Director-General of the International Labour Office, 1953, pp. 128–31.

53 ILO Press Release I.S.58.

54 Resolutions 351(XII) of February 28, 1951, 444(V) of July 18, 1952, and 474(XV) of April 9, 1953. When the matter was again discussed during the sixteenth session of ECOSOC, the ICFT U representative (Miss Toni Sender) complained that “no way of action in cases concerning countries not members of the ILO” existed, and she added: “Some mechanism should be found whereby the UN would be able to act on all cases that came under its jurisdiction.” (E/SR.719.)

55 The following territories are at present under trusteeship administration: Cameroons (partly under British, partly under French administration), Nauru (Administering Authority: Australia), New Guinea (Australia), Pacific Islands (United States), Ruanda-Urundi (Belgium), Somaliland (Italy), Tanganyika (Great Britain), Togoland (partly under British, partly under French administration) and Western Samoa (New Zealand).

56 The procedure is regulated in Eules 24 and 76–93 of the Trusteeship Council, republished in document E/857.

57 Lauterpacht, op. cit., pp. 242–4.

58 Resolution 552(VI) from January 18, 1952.

59 Report of the Trusteeship Council to the General Assembly (A/2150).

60 The present composition of the Standing Committee on Petitions is the following: Belgium, Dominican Republic, El Salvador, New Zealand, U.S.A., U.S.S.E. The Trusteeship Committee consists at the moment of the following memberst Australia, Belgium, France, New Zealand, United Kingdom and United States (administering members); China, Dominican Republic, El Salvador, Syria, Thailand and U.S.S.R. (non-administering members).

61 For text see Cmd. Paper 8130 (1951), Carlyle, Margaret (Editor): Documents on International Affairs, 1949–1950 (London, 1953), pp. 363–77Google Scholar, furthermore the booklet, published by the Council of Europe, The European Convention on Human Rights (1952)Google Scholar; finally, Robertson, A. H., “The European Convention for the Protection of Human Rights,” The British Yearbook of International Law, 1950, pp. 145–63Google Scholar.

62 The Strasbourg formulas have been taken over from the draft, prepared by the UN Commission on Human Rights in 1949 (E/1371).

63 The Protocol, adding the right to property, the right to education and the right to free elections to the rights safeguarded by the Convention, has, so far, been ratified by the United Kingdom, the Saar, Norway, Ireland, Greece, Denmark, Sweden and Iceland, and will enter into force, after ten instruments of ratifications have been deposited with the Secretary General of the Council of Europe. For details about the Protocol, see: Robertson, A. H., “The European Convention on Human Rights: Recent Developments, in British Yearbook of International Law, 1951, pp. 359–65Google Scholar.

64 United Kingdom, Norway, Sweden, Saar, Germany, Greece, Denmark, Iceland and Luxembourg. France, Italy, Belgium and the Netherlands have not taken any steps for ratification so far.

65 Lauterpacht, op. cit., p. 452.

66 “The representatives of Poland, Ukranian Soviet Socialist Republics and of the Union of Soviet Socialist Republics opposed the inclusion of the parts concerning implementation in the draft Covenants. They considered that these articles … provided for methods of control for carrying out the Covenants which constituted an attempt to interfere in the domestic affairs of States and a violation of their sovereignty " (Report on the ninth session of the Commission on Human Rights, E/2447, paragraph 88).

67 However, this point of view did not deter the Soviet member of the Subcommission on Prevention of Discrimination and Protection of Minorities to demand that the position of Negroes in the U.S.A. be considered by UN(E/CN. 4/Sub.2/24). Soviet pressure for UN interference in internal affairs of Spain is registered in documents E/SR.631, E/SR.632 and A/2112, paragraphs 98–109.

68 Conference Document (General) I.B.13 (Paris Peace Conference, 1946, Selected Documents, Washington, U.S. Government Printing Office, pp. 444—5.

69 E./CN.4/AC.1/27. The text was later republished in the comprehensive report E/1371.

70 E/CN.4/SR.343.

71 Draft report of the Commission, A/CNA/L.45/Add.2.

72 France had suggested the following wording (A/ C.3/306): “Everyone has the right, either individually or in association with others, to petition or to communicate with the public authorities of the State of which he is a citizen or in which he resides. He also has the right to petition or to communicate with the competent organs of the United Nations in matters relating to human rights.”

73 Resolution 217 B(III).

74 E/1371.

75 E/CN.4/419.

76 Published under E/CN.4/353 and Addenda 1–10. Comments analysed under E/CN.4/366. It was rather surprising to note that the Government of Israel, in contradiction to the efforts of the Jewish non-governmental organisations, had declared itself to be neither in favour of the individual's right to petition nor inclined to grant this right to groups of individuals.

77 E/1682.

78 For similar provisions in the European Convention on Human Rights, see the chapter devoted to this matter.

79 E/CN.4/530, paragraphs 85–98.

80 Published under E/CNA/515 and Addenda 1–17, analysed under E/CN.4/552.

81 421 F(V) of December 4, 1950.

82 Report of the seventh session of the Commission on Human Rights, E/1992.

83 E/CN.4/557, republished in the report E/1992.

84 E/CN.4/549.

85 Summarised in the Committe's Report to the General Assembly, A/2112, paragraphs 29–36, Yearbook …, 1951, pp. 488–91Google Scholar.

86 E/CN.4/SR.343.

87 E/2447, paragraph 152.

88 E/CN.4/SR.362. The United Kingdom, represented by Mr. Samuel Hoare, voted against all the quoted proposals.

89 The USA delegate had declared beforehand that her Government did not intend to ratify the prepared Covenants (E/CN.4/SR.340).

90 The sixteenth session of ECOSOC decided on August 3, 1953, to transmit the Commission's report to the General Assembly without adding an opinion (E/SR.746).